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Full text of "A memoir of Benjamin Robbins Curtis, LL.D., with some of his professional and miscellaneous writings"



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Cornell University Library 
KF 368.C97C971 
v.2 
A memoir of Benjamin Robbins Curtis, LL. 



3 1924 018 765 010 




The original of this book is in 
the Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924018765010 




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MEMOIR 



OF 



BENJAMIN ROBBINS CURTIS, LL.D. 



WITH SOME OF 



HIS PROFESSIONAL AND MISCELLANEOUS 
WRITINGS. 



EDITED BY HIS SON, 

abb'"" 5 
BENJAMIN R. CURTIS. 



Vol. II. 



BOSTON: 

LITTLE, BROWN, AND COMPANY. 
1879. 




Entered according to Act of Congress, in the year 1879, by 

BENJAMIN K. CURTIS, 

In the Office of the Librarian of Congress at Washington. 



University Press: 
John Wilson and Son, Cambridge. 



CONTENTS OF YOLUME II. 



Page 
A Bowdoin Prize Dissertation 1 

Written at Harvard College in 1828. "How far may Political Igno- 
rance in the People be relied on for the Security of Absolute Gov- 
ernment in Europe % " 

A Bowdoin Prize Dissertation ]3 

Written at the Law School of Harvard University in 1830. " The 
Present Character of the Inhabitants of New England, as result- 
ing from the Civil, Literary, and Religious Institutions of the Eirst 
Settlers." 

Address delivered at Deerfield .... .... 39 

An Address delivered at Deerfield, Mass., February 22, 1832, being 
the Centennial Anniversary of the Birthday of Washington. 

Asa Olmsted versus Daniel Wells 62 

Action for a Libel. — Brief for Argument for Defendant. 

The Case op the Slave Med 69 

Argument before the Supreme Judicial Court of Massachusetts, 
August, 1836. 

Debts op the States 93 

First published in the "North American lieview " for January, 1844. 

Reform of Legal Proceedings . 149 

Report of the Commissioners appointed to revise and reform the 
* Proceedings in the Courts of Justice in this Commonwealth, Janu- 
ary, 1851. 

United States versus Robert Morris 172 

Charge to the Jury in the Case of the United States versus Robert 
Morris, before Curtis and Sprague, JJ., November 11, 1851. 



iv CONTENTS OF VOLUME II. 

Page 
Ark Juries Judges of the Law ? 176 

Judicial Opinion on the Question, whether Juries are rightfully 
Judges of the Law, in Criminal Cases, in the Courts of the 
United States, pronounced in the Case of The United States 
versus Robert Morris, October Term, 1851. 

Greene versus Briggs 191 

Judicial Opinion on the Constitutional Validity of an Act of the 
General Assembly of Rhode Island " for the Suppression of Drink- 
ing-houses and Tippling-shops," delivered November Term, 1852. 

On the Offence of obstructing Process of the United 

States 205 

A Charge delivered to the Grand Jury of the United States Circuit 
Court for the District of Massachusetts, June 7, 1854. 

Dred Scott versus Sandford . . .213 

Dissenting Opinion in the Case of Dred Seott versus Sandford, deliv- 
ered in the Supreme Court of the United States, March 27, 1857. 

Executive Power 306 

A Pamphlet first published in October, 1862. 

Character and Public Services of Chief Justice Taney 336 
Remarks made at a Meeting of the Boston Bar, October 15, 1864. 

Argument in Defence of President Johnson 343 

Delivered before the Senate of the United States, sitting as a Court 
of Impeachment, April 9, 10, 1868. 

United States versus Union Pacific Railroad Company . 423 

Argument in the Case of The United States versus The Union Pacific 
Railroad Company et al., United States Circuit Court, Hartford, 
Conn., September 19, 1873. 



Index to Volume II 437 



PROFESSIONAL 



AND 



MISCELLANEOUS WRITINGS. 



A BOWDOIN PRIZE DISSERTATION, 

WRITTEN AT HARVARD COLLEGE IN 1828. 1 



How far may Political Ignorance in the People be relied 
on for the Security of Absolute Government in Europe ? 

The relations between different countries and different 
classes in the same country are intricate and variable. 
Slight modifications in the circumstances make such wide 
difference in events, that it is almost impossible to predict 
with certainty whether a political scheme will succeed or 
fail, whether its effects will be good or bad. 

Notwithstanding all this doubt attending political sub- 
jects, there are principles which may be applied to them 
with certainty and success ; principles which take the nature 
of man, stripped of all adventitious circumstances, as their 
broad foundation, and which are always applicable as long 
as that foundation remains unchanged. The only difficulty 
is to apply these principles coolly and carefully to particular 
cases, making the necessary allowance for the circumstances 
with which those cases may be attended. 

1 Ante, vol. i. p. 38. 
VOL. II. 1 



2 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

Any one who reads the history of Europe for the last fifty 
years, who perceives the vast changes which have taken 
place in the constitutions and governments of that quarter 
of the world, will be impressed with the idea that the causes 
which have led to these changes are general and widely prev- 
alent. He cannot avoid perceiving that all the countries 
of Europe partake in some "degree of the spirit which has 
overturned so many thrones and brought war and confusion 
into so many communities. He will not believe that an ef- 
fect so general is to be ascribed to very partial and limited 
causes. The question which then occurs is, Where are we 
to look for those causes ? I answer,* In the constitution of 
society in Europe. 

The Northern nations who burst the barriers of the Ro- 
man Empire, and spread "themselves over the most flourishing 
countries of Europe, soon became sensible of the advantages 
and pleasures of civilization. They adopted the improve- 
ments, and in some instances the language, laws, and man- 
ners, of the more cultivated nations whom they had con- 
quered. The sovereigns divided the land among their 
officers, who held their property on condition of performing 
certain services for the crown. 

Thus originated the celebrated feudal system, which has 
had such an important influence on the condition of Europe, 
— an influence which has never for a moment ceased to be 
felt down to the present time. 

This system was founded at a period when the common 
people had no rights and privileges except those which the 
king and the nobles chose to give them, and when they 
had no security for them after they were actually obtained. 
But in process of time things began to wear a different 
aspect. We find one part of the people gradually acquiring 
wealth, together with the importance which always attends 
it. They were at first weak, and forced to join sometimes 
one party and sometimes another in those endless disputes 
between the nobles and the crown. 



A BOWDOIN PRIZE DISSERTATION. 3 

Time, howeyer, added to their strength, success gave them 
confidence, and thus a new order had arisen, for whom no 
adequate provision had been made by states which had 
been constituted long before that order existed. In some 
cases, where circumstances were peculiarly favorable, they 
rose in their strength and wrested from the hands of the 
sovereign those privileges which they had the power and 
the right to possess. 

Where they have not been thus favored by circumstances, 
they have remained to this day without those rights which 
belong to them as men, — a discordant element in the soci- 
ety in which they exist, — protected, indeed, to about the 
same degree, and for nearly the same reasons, that the game 
in the royal forests was anciently protected, — because the 
noble huntsman chose to kill it all himself. 

I have said that this middle class forms a discordant ele- 
ment in the state which virtually denies them existence, and 
it is to the creation of this class that we must look for one 
of the principal causes of the revolutions of modern times. 
The men who compose it are conscious that their knowl- 
edge and wealth entitle them to a high rank in the state : 
they may abstain from action, but they will not abstain from 
hope. They will constantly look forward to a change, and, 
though a revolution may be a fearful and a desperate resource, 
it will be resorted to ; for we must bear it in mind that there 
are always enough of " the irritable who are sensible to op- 
pression, of the high-minded who feel disdain and indignation 
at abusive power in unworthy hands, and of the brave and 
bold who love honorable danger in a generous cause." 

The entire influence of this body of men tends to substi- 
tute a government which shall secure to them their private 
and political rights for one which does not even acknowl- 
edge those rights, much less secure them. And this ten- 
dency becomes more and more direct in proportion as the 
power to make the change increases. 

No one will deny that such a class of men as I have 



4 PROFESSIONAL AND MISCELLANEOUS WHITINGS. 

described does exist in every country in Europe and every 
enlightened man looks to them as the cause of the revolu- 
tions which have shaken that quarter of the world to its 
centre, and poured out like water the blood of a whole gen- 
eration. 

It may seem paradoxical to assert that a small body of 
men, who possessed no share in the government, could be the 
cause of such important events ; but the true secret of their 
power lies not in their physical strength, but in their ability 
to influence and animate the mass of the people. 

I have not made a forced and unnatural distinction be- 
tween this middle class and the mass of the people. A 
distinction does in reality exist, and always must exist, be- 
tween knowledge and ignorance, poverty and wealth. Al- 
lowing therefore what is perfectly true, that this body of 
men who are superior to the mass of the people, but who 
are connected with them by a community of feelings and 
interests, — allowing that they are hostile to absolute gov- 
ernments, and that their power principally consists in the 
influence which their knowledge and wealth give them over 
the people, the grand question then must be, How far will 
political ignorance in the mass of the people prevent this 
influence from being felt ? 

The benevolence of the Deity has provided men with fac- 
ulties which in time adapt themselves to almost any circum- 
stances in which they may be called into action. But, after 
having been a long time accustomed to a certain set of oper- 
ations, it is extremely difficult for them to perform any 
others. The mind as well as the body must be not only 
strong, but well disciplined, in order to act with promptness 
and vigor in new and untried situations. It is hard to turn 
men's minds from the old and deeply worn channels in 
which they have long been flowing. Now there is a same- 
ness in the occupations of the lower classes in civilized 
society, which almost necessarily confines their minds within 
very narrow limits. They have nothing to carry their 



A BOWDOUSr PRIZE DISSERTATION. 5 

thoughts away from the little spot of earth on which they 
live : it is there they find their food and drink and lodging, 
and these are to them the main things of life. Every day's 
experience shows that this is true, in some degree, even of 
men of considerable refinement and education, — of men 
whose professions are of a more dignified and intellectual 
nature ; how much more, then, must it be true of those whose 
knowledge is confined to one simple art, and over whose 
weak and uncultivated minds habit must exercise such an 
unbounded sway ! The advantages of early education they 
have never enjoyed. From infancy to manhood, from man- 
hood to old age, their view is bounded by the narrow horizon 
which their senses have drawn around them ; and they re- 
main ignorant, not only of the nature, but even of the exist- 
ence of objects beyond. " The thoughts which wander 
through eternity " are to them untried things, and darkness 
broods over their minds as it did over chaos before the Spirit 
of God rested there. 

I would not be thought to entertain degraded views of 
human society. I know that men of education are but too 
apt to undervalue the attainments of those who are below 
them in point of cultivation. But I believe that general 
ignorance does produce the effects I have described, and it 
scarcely needs to be proved that these effects are fatal to 
liberty. 

There are many causes why a people politically ignorant 
cannot be roused to action. Perfect political ignorance 
must be accompanied by indifference to the general inter- 
ests of society, and thus one of the most powerful motives 
which can act on the human mind is totally destroyed. The 
love of man, the thought that after ages will feel the effects 
of present events, has nerved many an arm that would 
otherwise have remained weak and inactive. . There are 
temptations enough to draw men from pain to pleasure, 
from labor to ease ; and, when one motive to generous ex- 
ertion is taken away, no man can tell how much the world 



6 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

may lose. He who is unacquainted with the relations in 
which he stands to others acts,, of course, without reference 
to them. He who sees not that strong and uninterrupted 
chain which binds together distant events cannot estimate 
aright the importance of his actions. He who is unconscious 
of the ties which connect him with every individual of his 
species feels no obligation to'make sacrifices for their wel- 
fare or happiness. Can such a man understand why he 
should make sacrifices and incur dangers to reform a sys- 
tem of government, because it is highly injurious to the 
interests of posterity and the world? He would be much 
more likely to exclaim with the member of the Irish par- 
liament, " What has posterity done for me that I should 
make such sacrifices for them? " Can he comprehend why 
he should contend for principles, and not for actions ; why 
he should resist as firmly an act of oppression which does 
not press very heavily on him at the moment, as he should 
one which took the bread from his own mouth or the 
mouths of his family ? 

This cannot be expected from a man totally ignorant of 
the principles of government. " There is little danger from 
Jbe commons," says Bacon, " except where you meddle with 
points of religion, or their customs, or their means of life ; " 
and, doubtless, Bacon spoke truth of commons, such as the 
English were under the reigns of Henry VIII., Mary, and 
Elizabeth, and of such as may be found even at this day in 
many countries of Europe. If they are in want of the neces- 
saries of life, they desire relief : if relief is not obtained, 
they may be roused to violence, but they will vent then: fury 
on some petty object which is, perhaps, the innocent cause 
of their sufferings, while the grand difficulty remains un- 
remedied, and even undiscovered ; and when the little 
strength starvation has left them has been expended, or 
when a temporary relief for their necessities has been found, 
they go back to their old condition, and remain quiet, if not 
satisfied. 



A BOWDOIN PRIZE DISSERTATION. 7 

There are few governments sufficiently strong to resist 
the united force of a whole people ; but how seldom are the 
united exertions of a people directed to a particular end ! 
They have not sufficient discernment to perceive the course 
which it is for their interest to pursue. In remote and ap- 
parently trifling causes, the most serious political difficulties 
often originate, — causes which are not to be detected without 
considerable political skill. Possessing no knowledge of the 
politics of their own country or of foreign nations, ignorant 
of the rights which belong to them as men, and taught by 
sad experience to pay a blind obedience to arbitrary power, 
it is natural that they should look on all measures, except 
those which have a direct and pressing influence on their 
persons and property, with total indifference. The subject 
of a despotic sovereign is not called upon to deliberate, to 
doubt, or to reason : he has only to obey ; and, when obedi- 
ence is the only habitual and safe course, ignorant men will 
hardly trouble themselves about forms and principles. They 
have wants and desires, but they are few and easily satis- 
fied. They are men, and must become attached to the spot 
on which they live and the customs in which they have 
been educated ; but, as long as these are inviolate, they will 
look on all else with a cold and careless eye. 

That tremendous tribunal which we call public opinion 
can be exercised only by an enlightened and judicious 
people. It requires a free and rapid circulation of thoughts 
and opinions, a high degree not only of political informa- 
tion, but of political discernment and skilL It depends for 
its strength and efficacy upon freedom of thought and culti- 
vation of mind. The judgment is not its only instrument : 
the heart must be enlisted in its cause. Sympathy with the 
sufferings of others, strong hatred of injustice, — in short, 
some of the noblest feelings of our nature, — must be excited 
before public opinion can become truly formidable, before 
it can assume that resistless power which God, when he 
formed man for society, intended that it should have. It 



8 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

can never have a decided effect where the great majority do 
not understand the subject on which they are to decide. It 
is only when the people are enlightened, when they are in a 
right direction, that they are truly invincible. 

I do not deny that public opinion is formidable, even 
when erroneous ; but its influence must necessarily be short- 
lived, for the truth will come'at last to put an end to its 
power, or to give it another direction. A people cannot 
judge of the fitness of means to produce ends, or of the con- 
sequences which are to follow from causes with which they 
are wholly unacquainted. " I know of no other guide for 
the future," said a great statesman, " except the experience 
of the past," — an experience which an ignorant people does 
not possess. 

It is evident, therefore, that this tribunal cannot exist 
among a people politically ignorant, and that all the advan- 
tages which may be derived from it, all the unity of thought 
and action which it tends to produce, are lost to them. 

It has been said " that he is not a slave who burns to re- 
cover his freedom." But not even this redeeming quality 
can be urged in favor of an ignorant people. Slavery has 
pervaded every thought and feeling. It has reached the 
mind and corrupted the very sources of life. They have not 
the energy to wish to be free. They are more ignorant 
of the blessings of freedom than the blind man is of the 
beauties of nature; and they see their children growing 
up around them without making one exertion to obtain 
for them those blessings, being ignorant even of their 
existence. 

They have no political spirit ; for there are only two ways 
in which political feeling can be kept alive in a people, — 
either by giving them some share in the government, or by 
cherishing in them a military spirit, and by teaching them 
to look upon themselves as the defenders of their country 
and the guardians of its glory. The former of these condi- 
tions cannot, from the nature of the case, be complied with 



A BOWDOIN PRIZE DISSERTATION. 9 

under an absolute government ; and the introduction of 
standing armies has shown the peasantry but too plainly 
that they are not relied on as the defenders of their country, 
and has destroyed in them much of their interest in its wel- 
fare and their hatred of its oppressors. 

It requires more subtlety than the ignorant possess to 
separate the idea of their country from the government 
which exists in it, and to be able to venerate the one, 
though they may hate and despise the other : when they 
perceive that self-aggrandizement is the object of their 
rulers, that the welfare of the people enters but rarely into 
their thoughts, and then only in connection with their own 
interests, it is not strange that they should shrink within 
themselves and leave their country to its fate. They per- 
ceive that they are mere ciphers in the state, and they lose 
all their energy and spirit, and become ciphers in reality : 
so true is it "that the estimation in which any body of 
men is held soon becomes the standard by which that body 
of men measure themselves." Doubtless there are giant 
minds which have slumbered since their birth, unconscious 
of the powers they possess and of the wonders they might 
achieve, if called into action. And thus it is with a people 
politically ignorant. They have slept for ages, ignorant of 
the vast force which resides in them. They know not, and 
as long as they are politically ignorant they never can 
know, that a remedy for all their sufferings is within the 
reach of their outstretched arm ; and the political fabrics 
which would crumble in their grasp are suffered to remain 
uninjured, except by the clumsiness of those to whose care 
they are intrusted. Whether knowledge will ever come to 
start the blood which has been sleeping in their veins, and 
to point to the path which leads to liberty and happiness, 
is not for me to decide ; but, until it does do this, the people 
will remain a dark and heavy and motionless mass at the 
very bottom of human society. The agitations and strug- 
gles of those above them may move them to and fro for a 



10 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

time, but they will settle down again to their old place as 
dark and as motionless as before. 

But there is another view of the subject, and one which 
it would be well for despotic sovereigns to examine 
closely. 

If the life-blood in their own veins is drawn from the 
hearts of the people, then must corruption in the one pro- 
duce disease in the other. No government can be strong 
and flourishing while the national character is weak and 
degraded. A government must flourish and decay with its 
subjects ; and, when a prince makes a law or performs an 
action which has a tendency to injure the character or pros- 
perity of the nation, he injures himself. He is jealous of 
the increasing wealth and importance of the people, of their 
obtaining sufficient light to show them the position in which 
they stand, and he exerts himself to shut it out from their 
eyes, and to keep them wandering in darkness ; not perceiv- 
ing that he thus weakens himself, and renders his own 
situation more uncertain and dangerous. 

He aims a blow at what he foolishly considers a hostile 
power, and it recoils upon his own head. This course of 
policy has been pursued for ages by the sovereigns in 
the East, and it has uniformly produced the same result. 
While the people have remained in the lowest state of 
degradation, the sovereigns have gone on adding to their 
power, with no foundation on which to build it but the 
weakness of their subjects. They have undermined their 
throne while they were increasing its outward splendor, and 
at the moment when it seemed to be secure it needed but 
an infant's touch to dash it from its foundation. 

It is true that even this feeble blow was often wanting, 
but that was in the East where the vigor of men's minds 
and bodies had sunk under the united influence of an ener- 
vating climate, a degrading religion, and a despotic govern- 
ment. It could never be wanting in Europe ; least of all, 
could it be wanting among a people who burnt their own 



A BOWDOIN PEIZE DISSERTATION. 11 

capital to destroy an invader, or among another who an- 
swered a summons to surrender what it seemed impossible 
to defend with the stern exclamation, " War to the knife- 
point ! " 

I hare thus far endeavored to show that, in the first 
place, there is a class of men living under the absolute gov- 
ernments of Europe who are decidedly hostile to absolute 
government, — they feel that they do not occupy the station 
to which they are naturally entitled by their knowledge 
and wealth, and are constantly striving to attain it ; in the 
second place, that, as long as the subjects of a despotic sov- 
ereign are politically ignorant, they will be inactive, or that 
their exertions, if made at all, would scarcely be dangerous 
to a vigorous government ; in the third place, that political 
ignorance must degrade the people, and consequently 
weaken the government and lessen the difficulty of over- 
throwing it. I do not believe, therefore, that political 
ignorance in the people can be relied on for the preserva- 
tion of absolute government in Europe. The lottery of 
political events produces fearful combinations of circum- 
stances, and every year, as it passes, may bring forth some 
mind capable of starting up and taking advantage of them. 
Do you ask why this has not already happened ? Why the 
iron hand of arbitrary power has so long grasped some of 
the finest countries in Europe ? I answer, that this is not 
to be attributed to political ignorance alone, but also to 
religious ignorance. Princes have taken shelter under the 
cross. Superstition has been called to their aid, and, clothed 
in the garment of religion, has assisted to keep men in bond- 
age. In the words of Burke, " They have consecrated the 
state, that no man should dream of beginning its reforma- 
tion by its subversion." 

They have called to men to beware, for the spot on 
which they stood was holy ground. But let religious igno- 
rance once be removed, let commerce, agriculture, and manu- 
factures flourish, — let the resources of the people be fully 



12 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

developed, — and then a despot would scarcely look down 
from his throne with confidence on such a people, even 
though they were politically ignorant. That one absolute 
government in Europe may support another, experience 
proves ; but this very necessity shows that political igno- 
rance is not to be relied on. 



[A first Bowdoin Prize was awarded in 1829 to Benjamin R. 
Curtis of the Senior Class for the foregoing dissertation.] 



A BOWDOIN PKIZE DISSERTATION. 13 



A BOWDOIN PRIZE DISSERTATION, 

'WRITTEN AT THE LAW SCHOOL OP HAKVARD UNIVERSITY IN 1830.1 



The Present Character of the Inhabitants of New Eng- 
land, as resulting from the Civil, Literary, and Religious 
Institutions of the First Settlers. 

" Our brave progenitors, who rose 
Against oppression with warlike mind, 
And shrunk from vain observances, to lurk 
In woods, and caves, and under dismal rocks, 
Deprived of shelter, covering, fire and food: 
Why 1 For this very reason, — That they felt, 
And did acknowledge, wheresoe'er they moved, 
A spiritual presence, oft-times misconceived, 
But still a high dependence, a divine 
Bounty and government, that filled their hearts 
With joy, and gratitude, and fear, and love, 
And from their fervent lips drew hymns of praise, 
With which the deserts rang." — Wordsworth. 

Without arrogating to ourselves a high degree of supe- 
riority over our ancestors, it cannot be doubted that we are 
sufficiently removed from them, both in point of time and 
temper, to form a fair and even liberal opinion of the worth 
of their institutions. 

To point out the causes which brought them to this coun- 
try, and their principles of government and religion after 
their arrival here ; to trace back, as far as lies within our 
power, to those principles and the institutions which sprang 
from them, the character of the present inhabitants of New 
England, — are the objects of this dissertation. 

1 Ante, vol. i. p. 44. 



14 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

Henry VIII., the first English sovereign who entirely 
threw off the yoke of the Bishop of Rome, knew from 
experience the use which might be made of ecclesiastical 
power : and he did not neglect the opportunity which pre- 
sented itself, of taking that power entirely into his own 
hands. He constituted himself the head of the Church, and 
required that all should acknowledge him as such. 

There had been, however, for a considerable length of 
time in England a body of men in advance of the rest of 
the nation in religious knowledge and religious opinions. 
They were not only prepared to reject the supremacy of the 
Pope, but they were unwilling to admit the supremacy of 
any earthly potentate, looking to Christ alone as the head 
of the Church. 

These men gradually but constantly increased during 
this and the succeeding reign, till Mary came to the throne, 
and brought back, as far as was in her power, the ancient 
forms of worship, together with that spirit of persecution 
which had ever accompanied them. 

Numbers of this sect then went abroad, and prosecuting 
their studies with greater zeal and freedom than before, 
they strengthened their former opinions, and widened the 
breach between themselves and the Anglican Church, by 
their intercourse with the reformers on the Continent. 

At the accession of Elizabeth, they returned to England, 
and being animated with a spirit of opposition to the govern- 
ment, in addition to their former zeal, since they did not 
find there that encouragement and support which they had 
expected, they exerted all their energies to spread their 
opinions among the people, to whom these opinions were 
from their very nature attractive ; so that when, in the 
reign of James I. and Charles I., the arm of the civil power 
was raised to chastise the nonconformists to the Church, 
they numbered among themselves some in very high rank, 
many who were respectable for their birth and wealth, and 
a great number of well-educated, active-minded men. 



A BOWDOIK PRIZE DISSERTATION. 15 

It was not in the nature of free-spirited Englishmen to 
submit quietly to be punished for their religious opinions. 
Still less was it consistent with their firm and almost obsti- 
nate tempers to relinquish those opinions, for which many 
of them had already suffered. 

An alternative only remained, — either to resist the gov- 
ernment or to leave the country. For the former, the 
nation was not yet ripe. They adopted the latter alterna- 
tive, and came to America. 

It may be fully proved that religious persecution, and a 
desire to find a place where they might worship God in 
their own way, were the causes which brought them to this 
country, not only by a consideration of the circumstances 
which I have suggested, but also by the fact that, as soon 
as the Parliament obtained the ascendency and the persecu- 
tion of the Puritans ceased, emigration ceased also. 

It is hardly possible for us at this day to form too high 
an estimate of the strength of motive and the firmness of 
purpose necessary to the accomplishment of a design like 
that which our fathers undertook. We live in a country 
where the idea of such expeditions is familiar to all from 
their infancy. But the idea which is so familiar to us was 
entirely new to them. They had not the benefit of those 
habits, and of that knowledge and skill which experience 
alone can give. They knew not what would be necessary 
or useful to them in their new undertaking. They were 
unassisted by any of the modern improvements in the arts 
and sciences, whose effects may be perceived at this day, 
even in the log hut of a frontier settler. The man who now 
goes forth into the wilderness feels that he may easily and 
safely return ; and that, even if he remain, the tide of civil- 
ization will soon be rolling over the spot where he has fixed 
himself. Not so was it with our fathers. The broad 
ocean intervened between them and their native land, — 
an ocean whose navigation was then but little known and 
greatly dreaded. Imaginary dangers and difficulties were 



16 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

doubtless added to those which really existed, but there 
were enough of the latter to appall a stout heart. In the 
face of all these dangers and difficulties, they landed in 
America; a world all before them, and feeling in their 
inmost hearts that Providence was their guide. 

They were shut in, on the one side by the sea, on the 
other by a vast, untouched wilderness, filled with a strange 
race of men, of whom they knew nothing but their savage 
and treacherous temper. 

They were dependent on their native country for many 
of the necessaries of life. Their lands when cleared were 
not worth the money expended in their improvement ; and, 
while they were in the midst of all these sufferings, their 
ears were filled with tales concerning the fruitful soil and 
delightful climate of Virginia and the West Indian colonies, 
to which they were invited to remove. 

It is not strange that some among them wavered. It is 
indeed wonderful that they did not relinquish their at- 
tempt, and leave the comparatively cold and barren soil 
of New England for other and happier climes. 

Indeed, in the years 1641 and 1642, when a very general 
depression was felt, — when the merchants were unable to 
pay their debts and the farmers had nothing wherewith to 
buy, — it seemed as though the last days of the colony 
had arrived. 

It was then that the influence of such men as Winthrop 
and Cotton and Bradstreet and Dudley was felt ; men who 
had transferred the full strength of their affection from Old 
England to New ; who felt for this land not only common 
patriotism, but all that strong and tender interest which 
would naturally cling to the object of their hopes, their 
cares, and their toils, for. which they had sacrificed all 
earthly things, and in which they found a rest and a refuge 
for themselves and their church. 

The honor of New England was so dear to them, that 
they could not bear to have her in the least degree blamed. 



A BOWDOIN PRIZE DISSERTATION. 17 

or despised. In their greatest distress, when they were 
forced to send agents to England to procure assistance, they 
instructed them " to make use of any opportunity which 
God should offer for the good of the country ; " but they 
added, with jealous caution, "that they should not seek 
supplies by any dishonorable means, as by begging or the 
like." 

Such were the motives and such the patriotism of the 
men "who laid the foundation of the institutions under which 
we now live. 

What those institutions originally were, and what were 
the principles which gave them birth, we will now proceed 
to consider. 

In most of the charters which were granted either to in- 
dividuals or to companies for the purpose of peopling this 
country, the government of the respective colonies was re- 
tained in the hands of the proprietors in England. They 
were to frame institutions and make laws for people of 
whose situation and circumstances they were ignorant, and 
of whose wants they were consequently unfitted to judge. 

This arrangement had existed in the great Plymouth 
Company ; and, as might have been foreseen, it had damped 
the spirit of emigration, and produced other injurious effects. 

When, therefore, in July, 1629, Johnson, Winthrop, Dud- 
ley, and others of good figure and estate, proposed to the 
Company to embark with their families for America, it was 
on condition that the patent and charter should go with 
them. 

Their proposal was accepted, and on the twenty-ninth 
of August " it was determined by the general consent of 
the Company that the government and patent should be 
settled in New England." 

The Governor and Assistants were elected by the freemen 
before leaving England, and for several years after their 
arrival in this country the whole body of freemen continued 
to meet together for the transaction of business. 



18 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

They were, however, a part of the same body of men from 
which Hampden and Sydney soon after sprang, and they 
came here with all the English ideas of the right of repre- 
sentation. Accordingly, we find that in 1634 twenty-four 
of the principal inhabitants appeared as the representatives 
of the body of freemen, though this step was certainly un- 
warranted by their charter. * 

They proceeded to draw up what may be considered a 
bill of rights, or in some measure a constitution, in which 
among other things they declared : — 

That none but the General Court had power to make and 
establish laws, to elect and appoint officers, to remove such 
upon misdemeanor, or to set out the duties and power of 
those officers. 

That none but the General Court has power to raise 
moneys or taxes, and to dispose of lands, viz. to give and 
confirm proprietaries. 

That there shall be four Courts yearly, to be summoned 
by the Governor, and not to be dissolved without the con- 
sent of the major part of the Court. 

That such persons as shall be hereafter deputed by the 
freemen of the several plantations to deal in their behalf in 
the affairs of the Commonwealth shall have the full power 
and voice of the said freemen derived to them for the mak- 
ing and establishing laws, &c, and to deal in all other affairs 
of the Commonwealth wherein the freemen have to do, the 
matter of the election of magistrates and other officers alone 
excepted, wherein every freeman is to give his own voice. 1 

Such were the first provisions for political liberty which 
our ancestors made, and no one can read them without 
recognizing the principal features of our own government 
at the present day. There is the same careful distinction 
between the executive and the legislative branches of the 
government, the same reference to the body of the people 
as the original source of all power ; and there is a strong 

1 Massachusetts Records. 



A BOWDOIN PRIZE DISSERTATION. 19 

and distinct assertion of the unalienable right of freemen 
to tax themselves, — a principle to which their descendants 
have clung with unyielding tenacity, and which lies at the 
foundation of much which is valuable in the State constitu- 
tions of New England at the present day. 

In making these provisions, however, they departed from 
their charter, which did not recognize the right of repre- 
sentation; and since the body which formed this con- 
stitution — if I may so call it — had no legal existence, 
according to the principles of the English law, the con- 
stitution itself and all acts done under it were at least 
voidable, if not ipso facto void. 

They must have been acquainted with this principle ; for 
we cannot suppose so good a lawyer as Winthrop ignorant 
of it, or careless of its application. 

We must look for an explanation to the political creed 
which was very generally adopted by all classes in the 
community. 

They distinguished civil subjection into necessary and 
voluntary. The former arose from residence, the latter 
from compact. 

They rejected the doctrine of indefeasible allegiance, 
maintaining that any man had a right to leave his country 
at any time, unless he thereby weakened it or exposed it 
to danger. 

They considered themselves bound to purchase, and they 
actually did purchase * of the Indian princes who claimed 
the country, the soil and jurisdiction of the territory where 
they resided. 

This freed them from the subjection to the native chiefs, 
which wpuld otherwise have arisen from residence within 
their territories. 

1 Mr. Josias Winslow, Governor of Flymouth, in a letter dated "1st 
May, 1676," says, " I think I can truly say that before these present troubles 
broke out, the English did not possess one foot of land in this colony but 
what was fairly obtained by honest purchase of the Indian proprietors." 
Many other authorities to this point might be given. 



20 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

The King of England indeed had granted the lands to 
some of his- subjects, and in order to a quiet possession they 
purchased this claim of the grantees. He had also given 
them a charter, by which they had entered into a compact 
with the king, the conditions of which they felt bound to 
observe. So far they owed him allegiance, but no farther. 

By this compact, they were not at liberty to subject them- 
selves to or seek protection from any foreign prince ; they 
were to pay a sixth part of the product of all gold and silver 
mines ; they were not to make any laws repugnant to the 
laws of England ; but, when they had complied with these 
conditions, they felt at liberty to govern themselves as 
might be most agreeable to their own tempers and most 
for their own advantage. 1 

This was in effect saying to the King of England, We 
have yielded to you certain of our rights : all others remain 
to us. 

His answer would have been, We have granted to you in 
your charter certain privileges : we cannot resume them as 
long as they are properly used; but you have already 
abused that charter by usurping other powers which it does 
not contain. And when, in 1686, a quo warranto was is- 
sued against the charter of Massachusetts, if that State had 
appeared to plead to the writ, this answer would doubtless 
have been sufficient. But, however inconsistent this theory 
may be with the principles of the English law, it is cer- 
tainly quite reasonable in itself, and was very ingeniously 
adapted to their own situation. 

Let no one say they were unwise in acting upon it. For 
though their success in framing and administering a govern- 
ment on this plan depended upon circumstances beyond 
their control, and though the English government was pre- 
vented from visiting their encroachment on the prerogative 
with severe and speedy punishment only by having too 
many troubles and distractions at home to attend to the 
1 Hutchinson, vol. i. p. 250 ; Winthrop, passim. 



A BOWDOIN PRIZE DISSERTATION. 21 

misconduct of the colonies, still we owe them no small 
thanks that, at this most important period of the first forma- 
tion of their government, they asserted their rights with a 
degree of boldness nearly equal, if we consider their circum- 
stances, to that of their descendants in later times. 

It is true they thus eventually lost their charter, but they 
did not lose it till the people had learned what self-govern- 
ment was, and how to exercise it ; till habits of thought 
had been formed and ideas of political liberty disseminated, 
which, so far as New England was concerned, were the 
great causes of the American Revolution. 

Neither was it abandoned without a struggle ; for, though 
they were so weak as to be harmless as doves, they were 
certainly wise as serpents. Far-famed as their descendants 
are for their shrewdness, I doubt whether they ever dis- 
played that quality in greater perfection than was exhibited 
by their ancestors in escaping the acts of trade and nego- 
tiating concerning the charter. 1 And when that charter 
was at last taken away ; when the royal governor came, and 
with him came taxes of all descriptions, from the petty 
exactions of his inferior agents up to his own severe impo- 
sitions ; when the titles to their lands were questioned and 
set aside ; when, in short, to use the words of their active 
enemy, Randolph, "they were ruled as though they had 

1 It is indeed surprising that not only were the English Government igno- 
rant of their real situation, but were unable to obtain any satisfactory 
information. We find in that very curious book, " The Diary of John 
Evelyn," some notices of the opinions and knowledge of the English Govern- 
ment concerning this country. He was at one period of his life a member 
of the colonial council, and under the date of May 26, 1671, we find the fol- 
lowing : " What the council most insisted on was to know the condition of 
New England, which appearing to be very independent in their regard to 
Old England or his Majesty, rich and powerful as they now were, there 
were great debates in what style to write to them ; for the condition of that 
colony was such, that they were able to break with all the other plantations 
about them, and there was fear of their breaking from all dependence on 
this nation. His Majesty, therefore, commended this affair more expressly. 
We thought fit to acquaint ourselves, as well as we could, of the state of 
that place, by some whom we heard of, that were newly come from thence, 



22 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

been subjects of the Grand Turk," — it was but teaching them 
by the force of contrast the value of their former quiet and 
happy government. 

They felt the force of the comparison. They learned the 
lesson thoroughly. 

No sooner was it rumored in America that William had 
landed in England, than, witBout waiting for news of his 
success, without knowing that they would not thus bring 
down the royal vengeance on their heads, there was a rush 
of popular feeling, and the royal authority was borne down 
by its power in a single day. 

It was a sudden and rash revolution, but it was unaccom- 
panied by cruelty or bloodshed, and serves well to show 
with what reluctance the popular government was resigned, 
and with what a spring they returned to it on the first 
opportunity. 

I have thus far endeavored to present a few of the gen- 
eral principles which guided our ancestors in the formation 
of their government, and to point out some of the effects of 
this early popular government. 

We will now proceed to consider one of their civil insti- 
tutions, which, whether we look at its immediate or its re- 
mote effects, is of great importance. 

I refer to the confederation of New England in 1643. 

The wise men who were at the head of the different gov- 

and to be informed of their present posture and condition. Some of our 
council were for sending them a, menacing letter, which those who better 
understood the peevish and touchy humor of that colony were utterly 
against." Vol. i. p. 438. 

After this, viz. under the 3d of August of the same year, is the follow- 
ing entry : " A full appearance of the council. The matter in debate was, 
whether we should send a deputy to New England, requiring them of the 
Massachusetts to restore such to their limits and respective possessions, as 
had petitioned the council. This to be the open commission, but in truth 
with secret instructions to inform the council of the condition of these colo- 
nies, and whether they were of such power as to be able to resist his 
Majesty, and declare for themselves, as independent of the crown, which 
we were told, and which of late years made them refractory." Vol. i. 
p. 441. 



A BOWDOIN PRIZE DISSERTATION. 23 

emments of New England early felt the value and even the 
necessity of union. They perceived that several independent 
States were growing up side by side, united in some degree 
by having a common origin, and by the similarity of their 
habits and feelings and institutions, but likely to differ in 
after times, when they might no longer possess a community 
of feeling and interest. 

There was one subject on which at this period they felt 
alike, and felt strongly. They had a common enemy, and 
it was avowedly for the purpose of opposing this enemy that 
the league was formed. Undoubtedly, this was its principal 
object; but I do not think it was the only one. 

For, while the articles of confederation were so drawn as 
to preserve the distinct and separate jurisdiction of each 
colony, powers were given to the assembled delegates " to 
establish laws and rules of a civil nature, and of general con- 
cern for the conduct of the inhabitants," viz. relative to their 
" behavior towards the Indians, to fugitives from one colony 
to another, and the like; " and it was also provided "that if 
any colony break any article of the agreement, or in any way 
injure another colony, the matter shall be considered and 
determined by the commissioners of the other colonies." 

These provisions were certainly sufficiently extensive to 
embrace all the sources from which difficulties and disputes 
might arise, and the immediate benefits which they conferred 
on the colonies were important. 

It is true they had provided no means by which the 
award of the commissioners could be enforced; it is true 
also that Massachusetts did once or twice take advantage 
of her superior power to be ungenerous and even unjust : 
but still I cannot allow that the league was a dead letter, 
because its terms could not be enforced at the point of the 
sword. In the controversy between Massachusetts and 
Connecticut relative to the fort at Saybrook, and the im- 
position of duties on the colonies by Massachusetts, we 
find the delegation making use of the following language : 



24 PROFESSIONAL AND MISCELLANEOUS WHITINGS. 

" The commissioners recommend it to the General Court of 
Massachusetts, seriously to consider whether such proceed- 
ings agree with the law of love and the tenor and import of 
the articles of the confederation." 

This appeal was effectual. Let us not say, then, that 
the decisions of the delegates were not respected, and that 
the union was of no avail. 

It is not on account of its immediate effects, however, 
that it has been here introduced. It is because this was the 
first experiment of the kind ever made in this country. It 
is because this was the first public measure ever taken to 
unite New England into a phalanx which has never since 
been broken. It is because this early union did much to 
preserve and increase an habitual and close intercourse be- 
tween the inhabitants of the separate States, and to give 
them a similarity of character and feeling. It is because, 
when the dark hour of the Revolution came, it found them 
familiar with the idea of acting in concert, and ready to 
avail themselves of all the advantages which must result 
from unity of thought and action. 

It has already been remarked that the enjoyment of re- 
ligious privileges was the grand object which brought our 
ancestors to this country. They left Old England that they 
might worship God in their own way, in conformity with 
their ideas of what the Scriptures taught. 

To one who has been educated in the bosom of an Estab- 
lished Church, and who feels in its founders and supporters 
a degree of confidence which will allow him to turn to them 
for guidance when his own light fails him and he feels that 
he is treading on unknown and dangerous ground, it must 
seem the extremity of rashness and presumption for a body 
of men to cut away the ties which connect them with such 
a Church, and, rejecting all other guidance but that of their 
own reason, to set out to explore the dim and boundless 
field which revelation has opened. 

To such an one it must appear that these daring men were 



A BOWDOIN PRIZE DISSERTATION. 25 

about to launch on a dark and dangerous sea, without com- 
pass to guide or anchor to keep them firm ; not even know- 
ing to what haven they wished to direct their course. Not 
so did it appear to the first settlers of New England. They 
turned their backs on all human authority, and, saying that 
the Bible was the only rule for Protestants, they doubted 
not that in that Bible they had discovered a true and per- 
fect rule of faith. 

It may at first sight seem surprising that such a perfect 
conformity should have prevailed in the churches of New 
England for the first fifty years after the settlement of the 
country. 

The vast number of sects into which Christendom is at 
this moment divided proves that the Bible is susceptible 
of a great variety of interpretations. Yet here were many 
thousands whose minds were differently constituted, who 
had enjoyed unequal advantages for cultivation, but who 
still arrived at the same result. Can we believe that they 
were guided solely, or even principally, by then.' own reason ? 
In order to answer this question, we will turn to the exami- 
nation of their religious creed, of the alterations which have 
taken place in that creed, of the effect which it produced 
on their private character, and through them on the New 
England character of the present day. 

The religious creed of the first settlers of New England 
seems to have differed in some respects from all other creeds. 

Unlike the Catholics and Episcopalians, they acknowl- 
edged no head of the Church but Christ. Unlike the Pres- 
byterians, they recognized no ecclesiastical jurisdiction 
extrinsic to a particular assembly of Christians in one place, 
to which they gave the name of " a church" to which such 
a church was subject, and by which it could be censured. 
And though they approached nearer perhaps to the Inde- 
pendents of the time of the Commonwealth in England 
than to any other sect, still they did allow the right of the 
magistrates to interfere in ecclesiastical affairs. 



26 PROFESSIONAL AND MISCELLANEOUS "WHITINGS. 

" Every church," says Lechford, " has power of govern- 
ment in -and by itself, and no church or officer has power 
over one another, but by way of council, saving that the 
General Court do now and then overrule some church 
matters.'''' 

However inconsistent it may appear with the professed 
ecclesiastical constitution, and the freedom of every church 
to govern itself, examples of the interference of the General 
Court, and of their " overruling church matters," may be 
found in many parts of their early history. 

In 1653, they imposed a heavy fine on the church at 
Maiden for choosing a minister without the consent and ap- 
probation of the neighboring clergy and the allowance of 
the magistrates ; and soon after they restrained the North 
Church in Boston from electing one pastor, and even went 
so far as to recommend to them another. About the year 
1650, Mr. Mathews, a minister, was fined ,£10 for preach- 
ing to a church which had been gathered without the con- 
sent of the magistrates. 

On the other hand, we find numerous instances of the 
interference of the clergy in civil affairs, — of interference, 
too, so direct, and often so unwarranted, as to be a little 
complained of even by a man like "Winthrop ; so that it 
does not appear to me that there was as complete a union of 
Church and State in Massachusetts, for instance, under her 
first charter, as has ever existed in England at any period 
since the Conquest. 

In the first place, they cut off all but those of their own 
communion from civil offices. None but freemen were 
allowed to vote, and none were freemen who were not 
church members. Let us look a little farther, and see how 
church members were made. 

They were first examined by the elders, and then pro- 
pounded by them to the brethren for their vote. Upon the 
elders, then, it chiefly depended who should be admitted to, 
and who should be excluded from, the privileges of freemen. 



A BOWDOIN PKIZE DISSERTATION. 27 

They had thus the keys both of Church and State pretty 
effectually in their own hands. 

We have thus seen how great and direct an influence the 
elders of the Church had in civil affairs : we will now look 
for a moment at the power of the magistrates over the 
Church. 

In chapter 17, sec. 3, of the Cambridge Platform, it is 
declared that "the power and authority of magistrates is 
not for the restraining of the Church, or for the restraining 
of any other good work, but for the helping on and further- 
ing thereof." But who is to decide what is the helping on of 
a church, and who is to pronounce what is a good work which 
is not to be restrained ? Who but the magistrates themselves ? 
They are judges both of what the power is and when/ it is to 
be exercised. With them it is deposited, to be used when- 
ever they choose to say there is an occasion for it. 

But, says one of the principal divines of that day, " the 
gospel of Christ has a right paramount to every other right 
in the world : what is contrary to the gospel hath no right, 
and therefore should have no liberty." But who is to say 
what is contrary to the gospel ? Is it the magistrate ? 
Then are the magistrate's ideas of what the gospel teaches 
the rule by which the Church must be governed, and the 
rule by which all must walk. 

If this is not, on the one hand, an assumption of power 
over the Church equal, at least, to what has, in any instance, 
been assumed by a King of England ; and, on the other, an 
encroachment on the civil government by the clergy, as 
great as has ever been made by any hierarchy, then am I 
ignorant of that portion of history in which such assumption 
or encroachment lies. 

I have not been led into these remarks by a desire to de- 
tract from the good name of our ancestors, or to point out 
faults in their government. On the contrary, I believe that 
■ it was the wisest plan of government which, under their cir- 
cumstances and in their condition, could have been adopted. 



28 PROFESSIONAL AND MISCELLANEOUS "WRITINGS. 

And though I do most sincerely lament that they car- 
ried their theory so strictly into practice as actually to 
allow to " those who walked contrary to the ' gospel no 
liberty and no right," not even personal freedom and safety, 
but persecuted them even unto death ; still, the constant 
and rapid advancement of the country, and its freedom from 
internal dissensions, prove, "notwithstanding all arguments 
to the contrary, the wisdom and success of their plan of 
government. It was perfectly consistent with the charac- 
ter of the people. It grew out of that character, and was 
modified by the popular habits and modes of thought. 

I have no intention, therefore, in what I have said of im- 
peaching the general wisdom or integrity of the magis- 
trates, the clergy, or the people. My object is to show 
that, during the first fifty years after the settlement of 
this country, there was an Established Church to all prac- 
tical intents and purposes. My remarks do not apply to 
Rhode Island and Providence Plantations ; for, during the 
period of which I am speaking, they did not form a part of 
New England. They were not admitted into the confeder- 
ation of 1643, and were looked on with a jealous eye by 
Massachusetts, Connecticut, New Haven, and Plymouth. 
When I speak of New England, therefore, at this period, I 
would be understood to refer only to these latter colonies. 

We find, then, that the perfect toleration which now pre- 
vails is essentially a new experiment. It becomes, there- 
fore, an interesting qiiestion to ascertain what effects have 
already followed, and what are likely to result from it in 
future. 

Our limits will not permit us to discuss this question, 
except so far as the change which has taken place has modi- 
fied the religious character of New England. 

Whatever may be the merits of a religious system, its 
effects upon the mass of mankind must depend in an im- 
portant degree upon its teachers. 

All instruction and all truth, except simple mathematical 



A BOWDOIN PRIZE DISSERTATION. 29 

truth, is modified by the medium through, which it is con- 
veyed. And since the Christian religion is so perfectly 
adapted to the nature of man ; since it is something about 
which we not only reason, but hope and fear, love and hate, 
— it is far more likely than any other truth to take the hue 
of the mind through which it passes. 

In examining the religious character of a people, there- 
fore, it is necessary to ascertain the claims of its clergy to 
pure morals and cultivated minds. 

The early clergy of New England may boldly challenge 
this examination. 

In 1638 there were, in Massachusetts and Connecticut 
alone, fifty graduates of Cambridge University in England, 
besides not a few who had received degrees at Oxford ; so 
that there was one person out of every two hundred who 
had received as good an education as could be furnished in 
England, at a time when a reformation had just taken place 
both in philosophy and religion, and the minds of men 
were everywhere awakened by the great discoveries which 
had already been made, and were kept in a state of stir and 
excitement by the expectation of other and greater changes. 

Of these graduates, the whole number, with but few 
exceptions, were ministers. 

"Whatever, then, may have been the faults of the New 
England ministry, none sprung from the want of a strict 
and thorough education, or were generated by the impuri- 
ties of a corrupt and immoral life. 

So far as the human learning of the period could aid 
them, so far as the labors of past generations had formed a 
stepping-stone to something higher, they were prepared to 
avail themselves of its assistance. And if there is indeed 
a connection between good morals and intellectual activity, 
between a pure head and a clear head, then did they possess 
the power of applying their learning practically and skil- 
fully to the great objects of their profession, — the improve- 
ment of men in knowledge and virtue. 



30 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

Let us now call to , mind that the people whom this 
ministry were to guide and instruct had proved their attach- 
ment to religion by coming to this country ; and that now, 
after they had begun to obtain a comfortable subsistence 
here, they were not likely to harden themselves against the 
influence of a body of zealous, learned, and pious men, or to 
listen with cool indifference to their instructions and exhor- 
tations. The recollections of the persecution which they 
had undergone in England, and of the want and suffering 
which they had experienced here, were too recent and too 
strong to allow them to forget the sacrifices they had made 
for their religious principles, or to be indifferent about avail- 
ing themselves of privileges purchased at such a price. 

We accordingly find that the moral influence of the min- 
istry was very great. 

Unaided by their peculiar form of church government, 
the strong religious feelings of our ancestors would have 
presented to an able and zealous minister ample means of 
attaining power. 

But when you place such a minister at the head of a 
church, when we remember that this church thought it so 
incumbent upon them to preserve the strictest moral purity 
in its members ' that every man in the community was in 
fact a spy upon all the rest, and that for the smallest and 
most venial faults and for the most atrocious crimes men 
were brought before this church to be judged, — this able 
and zealous minister acting as grand inquisitor at the trials, 
— we perceive at once that their power over the minds of 
their flock must have been almost unbounded. 

It cannot be denied that such a system did tend to make 
hypocrites. 

Religion may become a fashion as well as any thing else ; 
and, when it does become so, it has as little to do, in those 
who thus hold it, with the heart and the character as any 
other fashion. 

But while I believe that there were some at that day who 



A BCTWDOIN PEIZE DISSERTATION. 31 

concealed an impure heart and a wicked life under a solemn 
exterior, I believe also that the great majority thought and 
felt as they acted and professed ; and no one can hesitate 
concerning the religious character of two communities, 
through one of which vice stalks in open day, while in the 
other it is forced to conceal itself under the semblance of 
virtue. 

The famous Hugh Peters, who was at one period of his 
life in Boston, testified before a committee of the Long Par- 
liament that while he was in America he had never seen a 
single man intoxicated or heard a single oath sworn. The 
most stern and unbending integrity, the most rigid strict- 
ness not only in affairs of moment but in the merest trifles, 
were the only passports to respectability and influence ; and 
though we do not pretend to say that vices did not exist, 
since we have accounts of their punishment, still we do 
know that they were very rare, and that when they did 
exist they were almost necessarily discovered, and when 
discovered were certainly and severely punished. 

Let us now compare this state of society with the char- 
acter of the New England people at the present day, and 
we shall at once perceive in what they differ and from 
whence these discrepancies have arisen. 

The connection between the civil and ecclesiastical govern- 
ment is abolished. The careful supervision of the Church 
over the morals of its members, though not totally done 
away, is greatly relaxed ; and we are not compelled to prize 
our religious privileges, or to avail ourselves of them with 
eagerness, by having suffered in their cause. 

Since we are not called upon as a people to defend those 
privileges, religion has become less a matter of public con- 
cern. It is something between God and each man's own 
conscience, and not between each man's conscience and the 
government. 

Moreover, the civil disabilities which were formally 
imposed upon those who were not church members are now 



32 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

removed, and no one is compelled to submit his morals and 
his conduct to the mild jurisdiction of a New England 
church of the present day. 

From each and all of these causes, it is to be feared that 
the strong and conscientious attachment which our ances- 
tors felt for the sober truths of our religion has been weak- 
ened in their descendants ; that an increase of blessings has 
not brought an increase of gratitude ; and that, though we 
stand on higher ground and our view is wider and clearer 
than theirs, we do not look so steadfastly upon the best and 
brightest of all lights, the light of revelation. 

I am not about to descant on the vices and the degeneracy 
of the present age. I have no wish to declaim about this 
or any subject. There are few men capable of talking 
coolly and sensibly on the character of their own age, and 
those few possess qualities to which I make no pretensions. 

But when we are told by one whose veracity we cannot 
question that in early times there was a great training in 
Boston, at which troops from all parts of the country were 
present ; that they were supplied with wine at the public 
expense, and yet there was no quarrelling, no swearing, no 
drunkenness : and if we then call to mind similar scenes at 
which we have been present, where those who had assumed 
the garb of soldiers seemed to have put on with it the 
nature of brutes, — we must allow that there has been a 
change in the character of the New England people, for 
which an increase of riches and population will hardly 
account. 

Far be it from me to question the influence and character 
of our clergy at the present day. In learning and ability, 
they are most of them equal to those of an earlier period. 

A liberal and far-searching spirit of criticism gives them 
a great advantage over their predecessors ; and, if they do 
not surpass them in purity of morals and holiness of life, it 
is only because they were as near perfection as men can 
attain. 



A BOWDOIN PRIZE DISSERTATION. 33 

Neither do I doubt the utility of the changes which have 
taken place in our civil constitution, or the expediency and 
even necessity of leaving to our countrymen greater liberty 
of thought and action than they once possessed ; a liberty 
which like all other power may be, and in some instances 
always will be, abused for evil as well as used for good 
purposes. 

It is a very general opinion that our clergy are at this 
moment making efforts to recover some portion of that 
power which they have allowed to escape from their hands ; 
and, conscientious as those efforts may be, I should be sorry 
to see them succeed. But still I do believe that from the 
influence of the old New England clergy came that strict 
puritanical morality which entered so intimately into the 
character of our ancestors, and some portion of which, I 
thank God, their descendants do still retain. 

But the fashion has changed. Men have found out that 
there is no necessary connection between a good character 
and a grave face, and they are so anxious to throw off the 
one, that it is to be feared some of the other may go with 
it. They smile at the ignorance and credulity of their 
fathers in supposing it sinful to drink healths ; and in the 
words of an old Puritan, " While they drink to the health 
of others, they not seldom ruin their own." They talk 
scientifically about the bad policy of imposing sumptuary 
laws, and they sacrifice no small part of their comfort and 
happiness to show and fashion. 

I do not believe this is as it should be. The valuable 
parts of the New England character are not of modern 
growth, but have come down to us from the early settlers 
of the country. It is to their wonderful foresight, their un- 
bending integrity, their cool courage ; their spirit of enter- 
prise, which no obstacles could check, no defeat subdue ; 
their power of adapting themselves to all situations, of tak- 
ing advantage of all circumstances, — in short, it is to their 
genuinely shrewd Yankee spirit that we must look as to 



34 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

the causes which produced, and have ever supported, our 
institutions ; and these qualities have descended regularly- 
down from father to son, to the present day. 

It is perfectly obvious that this character greatly needs 
some strong, controlling principle to direct and govern it ; 
and it is as obvious that religious principle is the only 
effectual means of attaining this end. Are we not in dan- 
ger of losing not the active, but the restraining principles 
of the New England character by the reaction which is now 
taking place, which shows itself in what is called the liberal 
spirit of the present day ? There is little danger that our 
countrymen will become sluggards, — that they will lose that 
daring and restless spirit of enterprise which, whether on 
the land or on the sea, has ever been their great character- 
istic ; but is it not to be feared that this energy of character 
will be guided by an all-absorbing selfishness, unrestrained 
by fixed and generous principles ? Granting, then, that our 
ancestors were in some things weak and ignorant, that they 
had narrow and illiberal ideas of toleration, that they did 
drown witches and hang heretics, still it is bad policy 
in us at this day to dwell upon their defects, when the 
stability and advancement of the New England character 
depend upon the tenacity with which we cling to the insti- 
tutions which they founded and the principles by which 
they governed their lives. 

Let us now turn to the literary institutions of New Eng- 
land, and, if I mistake not, we shall find in them greater 
proofs of foresight, clearer evidence of a knowledge of the 
future wants and condition of the country, and less that can 
be objected to on the score of narrow-minded bigotry, than 
in their civil and religious institutions. 

We will consider : first, Common Schools ; second, Col- 
leges : — 

I. The first hint which we have of the formation of the 
common-school system occurs in the records of the town of 
Boston, where, under the date of the thirteenth of the third 



A BOWDOIN PEIZE DISSERTATION. 35 

month, 1635, may be found the following entry : " That our 
brother, Philemon Pormont, shall be entreated to become 
schoolmaster for the teaching and nurturing of children with 
us ; " and thirty acres of land are set off as a compensation. 

It should be remembered that this was but five years 
after the first settlers had established themselves on the 
peninsula which is now covered by the city of Boston, but 
which was then little better than a wilderness ; while they 
were dependent on their native country for their supplies of 
food, and while the savages were everywhere around and 
among them, and each man depended for his personal safety 
upon his arms and his vigilance. 

In 1647, the General Court enacted that in each town a 
school should be kept, where reading and writing should be 
taught ; and that every town of one hundred families should 
maintain a school in which boys could be prepared for the 
College. Like provisions were made in Connecticut and 
New Hampshire in 1656 and 1672. 

No less wisdom was shown in carrying this plan into exe- 
cution than in devising it. The necessary funds were raised 
by a tax upon property ; and thus the benefit of instruction 
was extended to all classes in the community, the rich being 
made to pay for the education of the poor, — certainly for 
the benefit of the poor, whose means would not allow them 
to obtain instruction for their children ; and equally for the 
benefit of the rich, since nothing can give greater security 
and value to property than the certainty of its being in the 
midst of an intelligent, quiet, and orderly population. This, 
therefore, is a tax which the rich man will gladly pay ; for 
it secures him against the evil of being surrounded by a 
rude and disorderly multitude, who render his property less 
secure and the enjoyment of it less valuable. Moreover, 
the funds were to be raised by a tax, laid by the inhabitants 
of each town on themselves ; and the money was in this way 
expended, and the benefit of it received, on the spot where 
it was raised. This was a wise provision ; for the parents 



36 PKOFESSIONAL AND MISCELLANEOUS WBITINGS. 

are far more likely to send their children to school and to 
procure good masters, and in short to get their money's 
worth, when that money is taken directly from their own 
pockets, and applied by themselves under their own direction 
to the education of their own children. 

All departures from this system in later times have 
proved evils, and have shown*the correctness and wisdom 
of the plan devised by our forefathers. 

To a New England man, it is unnecessary to say a word 
about the success of this system; to those who have not 
had the benefit of experience on the subject, we need only 
say, Come and see. 

On this common-school system the New England character 
is mainly based ; and connected as it is, in a thousand ways, 
with the religious institutions and principles of our ances- 
tors, it is undoubtedly the greatest blessing which they have 
conferred upon their descendants. It places within every 
man's reach the means of knowing his duty and great in- 
citements to performing it; and the number of men who 
are at this day in the highest rank among our citizens, who, 
had it not been for common schools, must have remained 
in ignorance and obscurity, furnish good proof of the benefits 
of the system. We do not look to them as the only or even 
the best proof of its utility. We find it in an active popu- 
lation, whose energies are well directed. We find it in the 
desire which is so strong and manifest in all, to give their 
children a better education than they themselves enjoyed. 
We find it in the respect which talents and acquirements 
everywhere command. And we ask for no better or higher 
proof that the common-school system enters into the whole 
character of the New England population, and does not a 
little to distinguish it from every other population in the 
world. 

II. In 1636, in the midst of the Pequot war and the An- 
tinomian controversy, our ancestors laid the foundation of 
the first New England college. It dates only from 1638, 



A BOWDOIN PK1ZE DISSERTATION. 37 

because the college was in that year endowed with a con- 
siderable sum by the will of Mr. John Harvard, but in fact 
the General Court had made an appropriation for it two 
years before. 

It owes its existence to the same foresight, the same 
desire to provide for the future wants of the country, at 
whatever present cost to themselves, which had already laid 
the foundation, and shortly after perfected the system, of 
common schools. 

It is not too much to affirm that they looked forward to 
the future independence of New England and the existence 
of a republican government ; and they knew that the only 
safety for a republic was to be found in the careful educa- 
tion of its citizens. They knew that the bane of all govern- 
ments was the narrow-minded selfishness which ignorance 
so necessarily produces ; and, in founding and supporting 
this institution, they left to their descendants a noble ex- 
ample of a generous and self-sacrificing spirit. 

From their earliest date down to the present day, the 
New England colleges have continued to send forth, from 
year to year, men who have filled the different learned pro- 
fessions with equal honor to themselves and benefit to the 
community ; and, though we naturally look first at the states- 
men who have taken the lead in the great affairs of the 
country, we must not disregard the great number of men 
whom the colleges of New England have produced, who 
carry with them into a narrow circle and into the every- 
day business of life clear and high-minded views, by whom 
the most important truths are disseminated among the 
people, and from whom the people learn the value of educa- 
tion and are led to desire it for their children. 

We have thus taken a rapid view of those civil, religious, 
and literary institutions whose effects are most perceptible 
at this day in the New England character. We find that 
character to be one of great energy, and consequently in 
need of strong restraining principles. We find that the first 



38 PROFESSIONAL AND MISCELLANEOUS WHITINGS. 

settlers of New England have furnished us with ample stores 
from whence those principles may be drawn, and that we 
have only to support and improve the institutions which 
they founded, and we may be assured that the New England 
character, however modified by time and circumstances, will 
remain essentially the same ; that the industry, the morality, 
and the intelligence which have caused the country to ad- 
vance with so rapid a step, will ever insure its progress ; 
and that we may thus leave to our descendants the same 
and even greater blessings than our fathers bequeathed 
to us. 

In conclusion, may I be permitted to express my regret 
that no one has yet undertaken a regular philosophical his- 
tory of New England. The field has been well wrought in 
detached portions by individuals whose industry and skill 
cannot be too much praised. Would that we had an entire 
history of the country from an able pen. For richness and 
variety of materials ; for the number of events from which 
important consequences have followed, and which developed 
as they occurred strongly marked and highly interesting 
characters ; for connection and unity of plan ; for the clear 
light in which every part lies unshaded by time, undisturbed 
by prejudice, — there are few periods of two hundred years 
in the history of any country which can compare with the 
history of New England. 

[A Bowdoin Prize of fifty dollars was awarded in August, 1830, to 
Benjamin B. Curtis for the foregoing dissertation.] 



AN ADDBESS DELIVERED AT DEEEPIELD, MASS. 39 



AN ADDRESS DELIVERED AT DEERFIELD, 

MASS., 

February 22, 1832, 

BEING THE CENTENNIAL ANNIVERSARY OF THE BIRTHDAY OF 
WASHINGTON. 



Friends and Fellow-Citizens: 

The occasion on which we are here assembled is one of 
no inconsiderable interest. One hundred years have elapsed 
since the birth of him whose most familiar name to us is 
the Father of his Country, and we are here to commemorate 
that event. Living and acting men on the earth from which 
he has now gone ; citizens of the country which he so faith- 
fully served, in the enjoyment of the blessings which he so 
greatly contributed to procure for us , — we have laid aside 
the interests and occupations of our daily lives, and come 
here to offer a tribute of respect to his memory. 

In what form shall we make this offering ? His actions 
and character are familiar to every child throughout our 
wide land, and every form of eulogy has been exhausted on 
his name. In the hearts of his countrymen he has found a 
fit and enduring home, and all praise which my feeble tongue 
could give him would sound but faintly on your ears. 

I trust, therefore, that you will not deem it inappropriate 
to the present occasion if, instead of speaking directly of 
Washington, I endeavor to trace an outline of the origin 
and history of the principles of government, in the assertion 
and development and practical application of which Wash- 



40 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

ington had so distinguished a part, since we can in no better 
way show our respect for the memory of him who owes to 
his connection with these principles the warm affection with 
which his countrymen have ever regarded him, as well as 
the distinguished place which he holds on the page of 
history. 

It would seem, too, to be a fit hour for historical recollec- 
tions. We all do know how many associations cluster around 
particular times and seasons hi our individual lives, and how 
naturally our thoughts are led back over the past, when the 
anniversary of one of those periods is brought round to us 
by the passage of time ; we do know also that instruction 
may be gained by such a recurrence to the past. 

What is true in this respect of our individual existence 
is true, in as high and important a sense, of our existence as 
a people. The days of one man's years on earth are short 
and few ; our eyes have not seen the forms, nor our ears 
heard the voices, of the generations which preceded us : 
but still there is no isolation, no independence. Their arts 
and sciences, their government, the treasures of learning and 
wisdom accumulated by their experience and labor, — nay, 
all which they did and thought and suffered here, — bind us 
to them by ties whose number and strength no human mind 
can estimate, and which no human arm can break. The 
same ties bind us to the generations which are coming, and 
unite us into a people which does not die ; whose existence 
is as real, and its different parts and periods as dependent 
on each other, as the life of an individual. And, now that a 
century has passed away since an event of importance in 
our existence as a people, — a century which is to a great 
people like a single year in the life of man, — it is right for us 
to go back to the past. The historical recollections of some 
nations may be little worth preserving : they may disclose 
only dark and unsightly pictures of violence and disorder 
and ignorance and slavery and crime ; but ours are of 
immense importance to us. They not only contain bright 



AN ADDRESS DELIVERED AT DEERFIELD, MASS. 41 

examples of human excellence and instructive lessons to 
guide us in difficulty and danger, but they cherish our 
national spirit, they infuse into our hearts an attachment 
to our common countrymen, they uphold that union' which 
is our strength, they make us understand and feel the spirit 
of our institutions, and that the precious rights which we 
have inherited do not belong to us as individuals, but as 
component parts of a great people; and it is our sacred 
duty, at all fit times and all proper ways, to cherish these 
recollections. 

With these views of the occasion and the ideas naturally 
connected with it, I would, as I have said, endeavor to trace 
an outline of the origin and history, so far as it concerns us, 
of the principles of government with which the distinguished 
individual whose birthday we commemorate was so inti- 
mately connected. 

We naturally look for these principles to the colonists by 
whom North America was originally settled; but as these 
colonies were planted at various times, undertaken from 
different motives, and composed of bodies of men whose 
general characters were dissimilar, we must be careful 
not to confound them, and, because we find certain modes 
of thought and feeling — common characteristics of all the 
colonies — at the commencement of the Revolution, con- 
clude that each brought them from the mother country, or 
that they grew up simultaneously among them after their 
arrival here. 

The first attempts to colonize our country were made in 
the reign of Elizabeth, — a period when the same causes 
which produced the crowd of distinguished men whose 
names adorn this brightest period of English history were 
felt throughout the whole body of the people, and produced 
an energy and an excitement which were not to be worked 
off in the old and tried fields of exertion. 

The age of knight-errantry had passed away; but there still 
remained no small number of men who were burning with 



42 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

the love of romantic adventure, and who were ever ready to 
bring courage and energy and zeal to any undertaking which 
promised to gratify their restless love of enterprise and 
glory. The study of the Spanish language and literature, 
which had become common among the higher classes, natu- 
rally turned their thoughts to America, which seemed to 
open a boundless field for the acquisition of wealth and 
fame. At the head of this class of men stands that splendid 
but unfortunate gentleman, Sir Walter Raleigh. But the 
charters which they obtained from the Crown not only 
betray a gross ignorance of the wants of a colony, but an 
entire disregard of political liberty, and compel us to ac- 
knowledge that, high-spirited and chivalrous as they were, it 
is not among them we can look for the origin of the princi- 
ples which lie at the foundation of our present government. 

It is not singular that we are unable to find in the 
charters of these early adventurers a jealous care for their 
liberties. The Queen by whom they were granted, the 
purposes for which they were obtained, as well as the char- 
acters of these early Southern colonists, sufficiently account 
for the fact; for Elizabeth was excessively jealous of her 
prerogative, the objects of the colonists were wealth and 
adventure rather than a permanent settlement, and although 
a part of the English nation had at this period begun to 
think of their rights, and of the means of regaining and pre- 
serving them, these colonists were not among that number. 

It is to that part of the English people who were at that 
time awakening to a perception of their rights that I would 
now request your attention. 

There has been much dispute relative to the formation of 
the English Constitution, and the existence of its particular 
parts at different periods. On whichever side the truth 
may lie, it appears to me certain that the body of the people 
never entirely lost sight of the rights and liberties which 
they had enjoyed in ancient times. 

The first Magna Charta extorted from John was but a 



AN ADDRESS DELIVERED AT DEERFIELD, MASS. 43 

confirmation of a more ancient one of Henry I. ; and this, too, 
■was in affirmance of the ancient standing laws of the land, 
as they had existed among the Saxons ere the power of the 
Norman chivalry, combined with the subtlety of the Nor- 
man lawyers, had deprived the Saxons — who then formed, 
and whose descendants still form, the mass of the English 
nation — of their ancient civil and political institutions. 

In the famous Law of the 3d Charles I., the Parliament 
say to the King, "TTe have inherited this freedom ;" and the 
same idea is expressed in all the laws which since that 
period have been framed for the preservation of their liber- 
ties. Thus, in the 1st William and Mary, in the celebrated 
statute called the Declaration of Rights, they declare " that 
all and singular the rights and liberties asserted and 
declared are the true ancient and indubitable rights and 
liberties of this kingdom." They claimed them, — as they 
had always claimed them, — not as new privileges, which 
they had the power to extort from their sovereign, but 
as an inheritance which had descended to them from their 
fathers. From the time of the Norman Conqueror, when the 
popular cry was, Give us back the laws of the good King 
Edward, down to the Revolution of 1688, this feeling of 
hereditary right never entirely left the hearts of the English 
nation. 

With such a feeling existing in the body of the people, 
there was always hope for their liberties. It might be 
downcast for a time, but it was easily awakened. No cause 
could operate on the people so as greatly to excite and ani- 
mate them, without a chance of rousing it. Least of all could 
such a cause as the Reformation fail of producing this effect. 

Few single events have occurred in the history of the 
human race, the consequences of which, both immediate 
and remote, have been of such importance as those which 
followed the attack of Luther on the Romish Church. 

In England, even long previous to the appearance of 
Luther, a sect had existed who had separated themselves 



44 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

from the Catholic Church, and attained to considerable light 
on the subject of religion. This sect was not very numer- 
ous nor very powerful; but some of them had , suffered for 
their opinions under the House of Lancaster, and their 
sufferings, together with their great activity and their 
unbounded zeal, had kept the public mind in some measure 
awake, and prepared it for the* great events which were to 
follow. And when the light of the Reformation at last broke 
upon the world ; when that light was turned upon England 
by that good Providence which often renders even the vices 
and crimes of rulers instrumental to the general good of 
their subjects; when, too, that most detestable and brutal 
tyrant who ever disgraced the English throne attempted to 
shut it out from their eyes, and trampled on their relig- 
ious and political rights together, — it cannot be supposed 
that the memory of the liberties wherewith their fathers 
had been free was absent from their minds, or that their 
hearts were cold at the thought of regaining them. 

Here is the foundation and origin of that sect to which 
England, as well as we ourselves, owe so much: I mean 
the Puritans. They had been long prepared to reject the 
supremacy of the Pope, but they were quite as desirous to 
be free from the supremacy of the king, who was always 
at heart a Catholic, and who tolerated the Reformation only 
because he found it convenient to be pope himself. The 
persecution which they endured from him and his daughter 
Mary scattered the most eminent of their number on the 
Continent; and when, at the accession of Elizabeth, they 
returned to England, their sufferings and their intercourse 
with the reformers on the Continent had infused a republican 
spirit even into their religious doctrines, which was ill 
calculated to please that haughty Queen. 

It has been doubted whether their system of religious 
opinions, or any received system of religious opinions, has a 
necessary connection with civil liberty. "We are told that 
popery existed in the free Italian States of the Middle Ages, 



AN ADDRESS DELIVERED AT DEEREIELD, MASS. 45 

and that Presbyterianism has long harmonized with mon- 
archy in Scotland. 

But they who entertain this doubt can have been little 
conversant with the opinions of the sect of the Indepen- 
dents in the time of the Commonwealth in England, or with 
the genius and character of Congregationalism in our own 
country. 

They must be blind to undeniable facts of history, as 
well as to the great deduction from those facts, — that, 
among a people who read and understand the sacred Scrip- 
tures, religious and political liberty will not be separated. 

I do not mean to advance an idea, which has sometimes 
been contended for, that the Scriptures inculcate a particu- 
lar form or particular principles of government. This was 
not any part of their object or design. It could not be : for, 
as they were intended for all nations and tongues and 
people, to say that they do this would involve the absurdity 
that they inculcate the same form of government for the 
Russian and the Englishman, for the subjects of the Grand 
Seignior and the citizens of our own Republic; and a 
greater practical absurdity could not be. 

At the same time, it must be allowed that there are 
passages of Jewish history likely to catch the attention and 
influence the opinions of men, one of whose faults was a too 
great readiness to apply those Scriptures which had a local 
and temporary design to their own affairs; and this fact 
should not be passed over in estimating the causes which oper- 
ated on their minds. Btit the great cause was that a habit of 
free thought on religious subjects naturally led the Puritans 
to examine their civil government. Their strong, bold, and 
active minds soon embraced the whole subject of their rights. 
The arbitrary power of kings had arrayed itself against 
their religion, which they valued more than all earthly 
things ; and the consequence of all this was that a deep- 
seated love of liberty grew up in their bosoms. Not that 
kind of love for it which evaporates in loud cries or empty 



46 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

declamation about the rights of men, but a love which was 
connected with and made a part of their own dignity of 
character, and with the aspirations after personal improve- 
ment and excellence, which they so carefully cherished; and 
it was as a means and condition of this progress, as essen- 
tial to the maintenance of an elevated feeling of personal 
responsibleness, which they dee*ply felt, that they cherished 
this love. 

Unlike the Revolutionists of France, they never dreamed 
of uprooting the foundations of property, that they might 
reform the tenure by which property was held ; nor of 
throwing off the restraints of order and law, and thus mak- 
ing the community slaves to the evil passions of its worst 
members, that they might thereby escape from under the 
burdens with which regal oppression had loaded them ; least 
of all did it ever enter into their minds to destroy the institu- 
tions of religion, and endeavor to root out of the human 
heart those necessities and desires for it which are insepar- 
able from our nature, in order to plant in their place some 
brilliant paradox concerning civil society. 

The liberty which they loved was consistent with law and 
order, and virtue and morality, and religion ; for it was as 
a means of attaining and enjoying these that they valued it, 
and they were too wise to sacrifice the end in order to gain 
that which was valuable, only as a means of attaining that 
end. They have been accused of being republicans, and it 
is an accusation to which we, their descendants, are proud 
to plead guilty ; and we will add, at the same time, that 
whatever liberty America or England possesses at this day 
would have hardly existed, if they had not been so. 

I do not mean to say that the principles of a free govern- 
ment were entirely unknown to the colonies which were 
not composed of Puritans ; on the contrary, we find in the 
acts of many of those colonies, soon after their arrival in 
this country, clear indications that they understood many 
of those principles. The history of Catholic Maryland is a 



AN ADDRESS DELIVERED AT DEERFIELD, MASS. 47 

bright example ; and the laws which were framed by Penn 
for the government of his colony, as well as the curious 
political disquisitions of that great but singular man, show 
that those principles were felt and recognized there. 

But I do mean to say that the English Constitution, in 
the reign of Charles I., had drifted among the same rocks 
and shoals where the other free constitutions of Europe 
went down ; and that, if it had not been for the Puritans, 
those little sparks of fire, which were brought over here and 
laid on the altar of liberty in the wilderness, and which 
have now kindled a flame which lights the world, would 
have been trampled out under the foot of arbitrary power ; 
and I do mean to say, further, that the other colonists were 
not at heart republicans, while the early settlers of New 
England were. 

It is on this account, as well as because their history is 
more nearly interesting to us, that I shall request your 
attention, while I endeavor to trace those principles as 
they showed themselves in the Colony of Massachusetts 
Bay. 

The first settlers of this colony separated themselves from 
their Puritan brethren at a time when the principles of the 
sect were the most pure, and their entire character had an 
energy, a boldness,, and a disinterestedness which has never 
been surpassed ; and the nature of their undertaking, as 
well as the motives which led to it, prove that it was no 
feeble or valueless part of their number which came here. 

It is hardly possible for us, at this day, to estimate the 
strength of motive and the firmness of purpose necessary to 
the undertaking and accomplishment of such a design. But 
they did undertake and accomplish it ; and, having done so, 
they transferred the full strength of their affection from Old 
England to New. They felt for this infant land, not only 
common patriotism, but all that strong and tender interest 
which would naturally cling to the object of their hopes, 
their cares, and their toils, for which they had sacrificed 



48 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

eYery earthly thing, and in which they had found a rest and 
a refuge for themselves and their Church. 

The honor of New England was inexpressibly dear to 
them. In their greatest distress, when they were forced to 
send agents to England to procure assistance, they instructed 
them " to make use of any opportunity which God should 
offer for the good of the country ; " but they added with 
jealous caution " that they should not seek supplies by any 
dishonorable means, as by begging or the like." 

Such were the character and patriotism of the men who 
laid the foundation of our political institutions. We will 
consider some of those institutions and the principles from 
which they sprang. 

In most of the charters which were granted, either to 
individuals or companies, for the purpose of peopling this 
country, the government of the respective colonies was 
retained in the hands of the proprietors in England, under 
the immediate supervision of the Crown. They were to 
frame institutions and make laws for people of whose situ- 
ation and circumstances they were in a great measure 
ignorant, and of whose wants they were consequently 
unfitted to judge. This arrangement had existed in the 
great Plymouth Company, and, as may well be supposed, it 
had damped the spirit of emigration and produced other 
injurious effects. When, therefore, in 1629, a body of men 
of good education and considerable wealth proposed to this 
Company to embark with their families for America, it was 
on condition that the patent and charter should go with them. 
Their proposal was accepted, and, in the language of one of 
their number, "it was determined by the general consent 
of the Company that the government and patent should be 
settled in New England." 

There was more in this measure than at first appears ; 
for it freed them from that embarrassing connection with 
the mother country, which so long prevented the formation 
of free governments in the other colonies, and which was a 



AN ADDRESS DELIVERED AT DEERFD3LD, MASS. 49 

never-failing source of interference on the part of the 
Crown. 

The Governor and Council were elected by the colonists 
before they left England ; and ? for several years after their 
arrival in this country, the whole body of the people con- 
tinued to meet together for the transaction of business. 
They had brought with them, however, all the English ideas 
of the right of representation; and accordingly, in 1634, 
twenty-four of their principal men appeared as the repre- 
sentatives of the people, though this step was certainly 
unwarranted by their charter. 

They proceeded to draw up what may be considered a 
Bill of Rights, in which, among other things, they declare 
" that none but the General Court has power to make and 
establish laws, to elect and appoint officers, to remove such 
upon misdemeanor, and to set out the duties and powers of 
those officers. That none but the General Court has power 
to raise moneys or taxes. That there shall be four courts 
yearly, to be summoned by the Governor, but not to be 
dissolved without the consent of the major part of the court. 
That such persons as shall be hereafter deputed by the free- 
men of the several plantations to deal in their behalf in the 
affairs of the Commonwealth shall have the full power and 
voice of the said freemen derived to them for the making 
and establishing laws, and to deal in all other affairs of the 
Commonwealth wherein the freemen have to do, the matter 
of the election of magistrates and other officers alone ex- 
cepted, wherein every freeman is to give his own voice." 

These were among the first provisions for political liberty 
which our ancestors made, and every one must recognize in 
them the distinguishing features of our government at the 
present day. 

There is the same careful distinction between the Execu- 
tive and the Legislative branches of the government, the 
same reference to the body of the people as the original 
source of all power; and there is a strong and distinct 



50 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

assertion of the right of freemen to tax themselves, — a 
right to which their descendants have clung with unyield- 
ing tenacity, and which lies at the foundation of every free 
government. 

In making these provisions, however, they departed from 
their charter, which did not recognize the right of represen- 
tation ; and since the body which framed this Bill of Rights, 
if I may so call it, had no legal existence, according to the 
principles of the English law, all acts done by this represen- 
tative body were merely void. 

They must have been aware of this fact ; for we cannot 
suppose so good a lawyer as Winthrop ignorant of it, or 
careless of its application. We must look for an explanation 
to the ideas of civil polity which were very generally held 
by all classes in the colony at that time. 

They distinguished civil subjection into necessary and 
voluntary. The former arose from residence, the latter 
from compact. They rejected the doctrine of indefeasible 
allegiance, maintaining that any man had a right to leave 
his country at any time, unless he thereby exposed it to dan- 
ger ; and that by leaving it that necessary subjection which 
arose from residence was at an end. They considered them- 
selves bound to purchase, and they actually did purchase (I 
speak only of the first settlers of the colony) of the Indian 
princes who claimed the country, the soil and jurisdiction of 
the territory whereon they resided. This freed them from 
the subjection to the native chiefs, which would otherwise 
havcarisen from residence within their territories. The King 
of Great Britain had pretended to grant the land to some of 
his subjects ; and, in order to a quiet possession, they pur- 
chased this claim of the grantees. He had also given them a 
charter, by which they had entered into a compact with the 
king,, the conditions of which they considered themselves 
bound to observe. Thus far they owed him allegiance, but 
no farther. 

By this compact they were not at liberty to subject them- 



AN ADDRESS DELIVERED AT DEERPIELD, MASS. 51 

selves to, or seek protection from, any foreign prince ; they 
were to pay a sixth part of the product of all gold and silver 
mines ; they were not to make any laws repugnant to the 
laws of England, &c. ; but when they had complied with 
these conditions they felt at liberty to govern themselves as 
might be most agreeable to their own tempers and most for 
their own advantage. 

This was in effect saying to the king, We have yielded 
to you certain of our rights : all others remain to us. His 
answer would undoubtedly have been, We have granted to 
you in your charter certain privileges : we cannot resume 
them while they are properly used ; but you have already 
forfeited that charter by abusing it and usurping powers 
which it does not contain. And when, in 1686, a quo war- 
ranto was issued against the charter of Massachusetts Bay, 
if the colony had appeared to plead to the writ, that answer 
would probably have procured a judgment in favor of the 
Crown. 

But, however inconsistent their ideas of civil polity might 
be with the principles of the English law, they are cer- 
tainly quite reasonable in themselves, and very ingeniously 
adapted to their own situation. Let no one say they Were 
unwise in acting in conformity with them ; for though their 
success in framing and administering a government on this 
plan depended on circumstances beyond their control, and 
though the British monarch was prevented from visiting 
their encroachments on his prerogative with severe and 
speedy punishment only by having too many troubles and 
distractions at home to attend to the conduct of the colonies, 
still we owe them no little gratitude that, at this most im- 
portant period of the first formation of their government, 
they asserted their rights with a degree of boldness nearly 
equal, if we consider their circumstances, to that of their 
descendants in later times. 

It is, indeed, surprising that not only were the British 
Government ignorant of their real situation, but they were 



52 PROFESSIONAL AND MISCELLANEOUS WRITINGS, 

for a long time unable to procure any satisfactory informa- 
tion concerning them. John Evelyn, who at one period of 
his life was a member of the Colonial Council, says in his 
Diary, under the date of May 26, 1671 : " What the coun- 
cil most insisted on was to know the condition of New 
England, which appearing to be very independent in regard 
to Old England or his Majesty, rich and powerful as they 
now were, there were great debates in what style to write to 
them ; for the condition of that colony was such, that they 
were able to break with all the other plantations about 
them, and there was fear of their breaking from all depend- 
ence on this nation. Some of our council were for sending 
them a menacing letter, which those who best understood 
the peevish and touchy humor of that colony were utterly 
against." 

Afterwards, under the date of the 3d of August in the 
same year, he says : " The matter in debate was, whether we 
should send a deputy to New England, requiring them of 
the Massachusetts to restore such to their respective limits 
and possessions who had petitioned the council. This to be 
the open commission, but in truth with secret instructions, 
to inform the council of the true condition of those colonies, 
and whether they were of such a power as to be able to 
resist his Majesty, and declare for themselves, as independent 
of the crown, which we were told, and which of late years 
had made them very refractory." 

Any one who calls to mind the condition of the Colony of 
Massachusetts Bay in 1671 — more than one hundred years 
before the commencement of the Revolutionary War — will 
be inclined to smile at the ignorance of. the Colonial Coun- 
cil in supposing that colony able to declare for itself and 
set the British Empire at defiance. Considering the amount 
of intercourse between the mother country and the colonies 
at this period, it is wonderful that the colonists could 
impress the government at home with such an idea of their 
strength. They did so, and they acted on the strength of 



AN ADDKESS DELIVERED AT DEEKFIELD, MASS. 53 

this impression ; and, though they thus eventually lost their 
charter, they did not lose it till the whole people had learned 
what self-government was, and how to exercise it ; till 
habits of thought had been formed, and ideas of political 
liberty firmly fixed in their minds, which, so far as Massa- 
chusetts was concerned, were the great causes of the 
American Revolution. 

And when the royal governor at last came, and with him 
came taxes of all descriptions, — from the petty exactions 
of his inf erior agents up to his own severe impositions ; 
when the titles to their lands were questioned and set aside ; 
when, in short, to use the words of their active enemy, 
Randolph, " They were ruled as though they had been the 
subjects of the Grand Turk," — it was but teaching them, by 
the force of comparison, the value of their former quiet and 
happy government. They felt the force of the comparison. 
They learned the lesson thoroughly. No sooner was it 
rumored in the colony that William had landed in Eng- 
land, than, without waiting for news of his success, without 
knowing that they would not thus bring down the royal 
vengeance on their heads, there was a rush of popular feel- 
ing, and the royal authority was borne down by its violence 
in a single day. It was a sudden and rash revolution : but 
it serves well to show with what reluctance the popular 
government had been resigned, and with what a spring they 
returned to it on the first opportunity. 

Political science has made great advances during the last 
two centuries. The heights to which a few leading minds 
alone had then attained are now the common ground on 
which we all stand, so that it is exceedingly difficult for us 
to estimate correctly the political wisdom of our ancestors 
who lived two hundred years ago. 

The formation of a Republic was then literally an experi- 
ment. It is true the revival of learning had placed within 
their view the magnificent structures of Greece and Rome ; 
but the peculiar constitutions of those States, which took 



54 PROFESSIONAL AND MISCELLANEOUS "WHITINGS. 

their form and hue from the character and temperament 
and modes of life of the people to whom they belonged, 
rendered them ill adapted to serve as guides in the forma- 
tion of a free government for Englishmen in the seventeenth 
century. If it be admitted — and it must be admitted, for 
it is a self-evident principle — that a government is good or 
bad in proportion as it is adapted to the character and wants 
of its subjects, it needs no arguments to show that the 
government which was fitted for the Athenian populace 
was ill suited to the Puritans in the wilderness of America. 

It is true also that the free Italian States were before 
their eyes; but an all-absorbing hatred of kingly power, 
which grew out of circumstances connected with their origin 
and early history, as well as a dread of foreign domination 
arising from their local situation in the midst of the great 
kingdoms which have since swallowed them up, had given 
to these governments an aristocratic tendency, and entirely 
unfitted them to serve as models to our ancestors. At the 
same time, their greatness and splendor, as well as the beau- 
tiful pictures of their respective governments which the 
writers of Greece and Rome had transmitted to posterity, 
rendered these examples attractive enough to be dangerous, 
though they were not wise enough to be useful. 

But the first settlers of Massachusetts avoided this danger. 
Indulging in no splendid theories, they drew their ideas of 
government from observation and experience, — from ob- 
servation of the character and relations of their society, 
from experience of the necessities and wants to which 
those relations gave rise. The consequences were not only 
that, after their government was established, their legisla- 
tion was a succession of provisions to meet these wants as 
they arose (for this will always be the case when a people 
capable of self-government legislate for themselves), but 
the principles on which their government was based, as well 
as its whole plan, were naturally deduced from the charac- 
ter and condition of the people. 



AN ADDRESS DELIVERED AT DEERPIELD, MASS. 55 

Much lias been said of late years of their intolerant spirit ; 
of their want of religious liberty; of the union between 
Church and State which existed among them ; but it appears 
to me that any one who looks upon their government from 
the right point of view will discover in this very union clear 
proof of that practical wisdom of which I have just been 
speaking. 

There is no doubt that this union did exist ; for though 
they recognized no head of the Church but Christ, no 
ecclesiastical tribunal extrinsic to a particular assembly of 
Christians in one place, to which they gave the name of 
a church, to which such a church was subject, or by which 
it could be directed or censured, still they did allow the 
civil magistrates to interfere in ecclesiastical affairs. 

" Every church," says Lechford, " has power of govern- 
ment in and by itself, and no church or officer has power 
over one another but by way of counsel, saving that the 
General Court do now and then overrule some church 
matters." Instances of the interference of the General 
Court, and of their "overruling church matters," may be 
found in many parts of their early history. In the year 
1653, they imposed a heavy fine on the church at Maiden 
for choosing a minister without the consent of the magis- 
trates ; and soon after they restrained the North Church in 
Boston from electing one pastor, and even went so far as to 
recommend to them another. About the year 1650, Mr. 
Mathews, a minister, was fined £10 for preaching to a 
church which had been gathered without the consent of the 
magistrates. 

Again, in chapter 17, sec. 3, of the Cambridge Platform, it 
is declared that " the power of the magistrates is not for the 
restraining of a church, or for the restraining of any other 
good work, but for the helping on and furthering thereof." 

But who is to decide what is the helping on of a church, 
and who is to pronounce what is a good work which is not 
to be restrained? Who but the magistrates themselves? 



56 PROFESSIONAL AND MISCELLANEOUS WEITINGS. 

They are the judges both of what the power is and when it 
is to be exercised. With them it is deposited, to be used 
whenever they choose to say there is a fit occasion for it. 

But says one of their greatest divines, "The gospel of 
Christ has a right paramount to every other right in the 
world. What is contrary to the gospel has no right, and 
should have no liberty." Who is to say what is contrary to 
the gospel? Is it the magistrate? Then are the magis- 
trates' ideas of what the gospel teaches the rule by which the 
Church must be governed, and the rule by which all must 
walk. 

On the other hand, the influence of the clergy in civil 
affairs was very great. The right of suffrage was extended 
only to freemen, and none were freemen who were not church 
members. Let us look a little further, and see how church 
members were made. They were first examined by the 
elders, and then propounded by them to their brethren for 
their vote. Upon the elders, then, it chiefly depended who 
should be admitted to, and who should be excluded from, 
the privileges of freemen. 

Now all this strikes us at first view as wrong. We are 
ready to say at once, Here is no liberty, civil or religious. 
And so it is wrong as a theory, and would be wrong in 
practice, as applied to ourselves at the present day. But it 
is not as applicable to our own society that we must consider 
it. We must look at it in connection with their situation 
and character and wants ; and, if we do so, we shall perceive 
its aptitude to them, and that as applied to their society it 
was essentially a free government. 

In a community where all were church members, it would 
be no restraint upon the right of suffrage to make church 
membership a qualification for that franchise. In a com- 
munity where all were church members except a few, and 
those either ignorant and degraded, or persons in the interest 
of the government at home, it was prudent and wise to 
impose this restraint. Such was the case with them ; and 



AN ADDRESS DELIVERED AT DEERFIELD, MASS. 57 

so it will be found that many, if not all those parts of their 
government which contradict our notions of liberty and 
right, grew out of the necessities of their case. 

There are certain principles of civil polity which we look 
upon as fixed and undeniable, and some of these principles 
are contradicted by this union between Church and State ; 
but we should remember that expediency is the only true 
foundation of human government, and that what is expe- 
dient for us at this day was not necessarily so for them. 
" Human institutions cannot be wholly constructed on 
principles of science which is proper to immutable objects. 
In the government of the visible world, the supreme wisdom 
itself submits to be the author of the better; not of the 
best, but of the best possible in the subsisting relations. 
Much more must all human legislators give way to many 
evils rather than encourage the discontent which would 
lead to worse remedies. If it is not in the power, of man to 
construct even the arch of a bridge that shall exactly corre- 
spond, in its strength to the calculations of geometry, how 
much less can human science construct a constitution, 
except by rendering itself flexible to experience and expedi- 
ency ! " * I think you will agree with me when I say, that 
these anomalies in their government are no evidence of 
their want of attachment to the principles of a free govern- 
ment, but that, on the other hand, they are proofs of their 
practical wisdom, and their freedom from the many illusions 
which always beset the path of a people who are forming a 
new government. 

The theory of our own government is now so well settled 
and so generally understood, political subjects are discussed 
with such freedom, and the practical tests so uniformly 
applied to them at the present day, that we can hardly 
estimate their danger of being misled by theory and specu- 
lation. History shows this danger by placing within our 
view the conduct of men in like circumstances with them- 

i South. 



58 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

selves. She points us to the Colony of Carolina, for which 
the celebrated John Locke drafted a constitution, which has 
served as a proof in all succeeding times how utterly absurd 
and inconsistent are the political theories formed by the 
philosopher in his closet, for the direction and government 
of affairs with which he has no practical acquaintance. 
She points us to the countrymen and contemporaries of the 
first settlers of this colony, who, at the suspension of the 
kingly power by the death of Charles I., were left free to 
form a new government; and she tells us that between 
Sydney and his adherents, with their darling democracy, on 
the one hand, and the fifth monarchy men, with their 
government of the saints, on the other, there was not a 
theory to which the human imagination in its wildest moods 
could give birth which was not broached, and did not find 
followers mad enough to adopt it ; that a military despot- 
ism grew up on the patchwork ruins ; and that, at last, the 
whole nation became tired of wandering in the pathless 
wilds of political speculation, and gladly received back the 
son of the tyrant whom they had beheaded. 

But there is more fearful proof of this danger written on 
some of the darkest pages of the history of France. 

Jean Jacques Rousseau framed a theory of civil society, 
which, while it was peculiarly calculated to fascinate noble 
and imaginative spirits, was equally fitted to catch the 
attention and win the affections of a thoughtless multitude. 
By an extended powerful combination of talented men of 
letters, this theory was instilled into the minds of the French 
populace, who were then ignorant and degraded, in con- 
junction with philosophical doctrines, which struck at the 
root of morality and religion; and when the old French 
government was swept away by the torrent of the Revolu- 
tion, and a clear space was left for the erection of a new 
edifice, the theory of this philosopher was the foundation on 
which the National Assembly attempted to build, — a founda- 
tion which lasted only long enough to allow them to raise a 



AN ADDRESS DELIVERED AT DEEBFIELD, MASS. 59 

structure which, in its fall, buried themselves and thousands 
of their fellow-subjects and the liberties of France under its 
ruins. 

From these evils our ancestors were preserved: partly 
by the wisdom and caution which they had learned from 
danger and difficulty and suffering; partly by the very 
marked and uniform character of their society, which was 
too inflexible to allow any great deviations from itself in 
their government ; and partly also by another cause, which 
had an important influence on all the colonies, and greatly 
contributed to guard them from rash and foolish experiments 
in government. 

I have already alluded to the fact that the English people 
were accustomed to look upon their rights and liberties as 
hereditary. Our ancestors brought this feeling with them 
to America ; and not only in their early history, but down 
to the period of the Revolution, their liberties were uni- 
formly claimed as the birthright of Englishmen. Even in 
the midst of the disputes which finally dissolved the connec- 
tion between the colonies and the mother country, this 
feeling continually shows itself. In the State Papers of 
that period there is no pompous declamation about the 
abstract rights of man : they are firm and temperate and 
dignified assertions of the rights which had come down to 
them from their fathers. 

Such a feeling was a constant check upon a wild and care- 
less spirit of innovation. When they looked for the origin 
of their rights, they went, not to the ideal world of dream- 
ing speculators, but to their own past history, where 
experience was ever waiting to teach them wisdom and 
caution ; and when evil times came, and dangers were to be 
encountered for the preservation of their rights, or, what is 
a far better test of their disinterested love of liberty, when 
great and long-continued sacrifices were to be made to pre- 
pare their descendants for the reception and enjoyment and 
preservation of their privileges, they bethought them how 



60 PROFESSIONAL AND MISCELLANEOUS ' WHITINGS. 

their rights had descended to them through a long line of 
honored ancestors, and how the fame of their fathers, as 
well as their own good name and the happiness of their 
posterity, depended on the transmission of them unimpaired 
to us. 

If they had cause to look back on the past with these 
feelings, how much more cause have we, since it is to their 
unbending integrity, their cool courage, their spirit of enter- 
prise, which no obstacles could check, no defeat subdue, 
their power of adapting themselves to all situations, of 
taking advantage of all circumstances, and, above all, to 
their spirit of stern self-sacrifice, that we owe our country 
itself, as well as the noble institutions which have come 
down to us, without labor or sacrifice on our part, who live 
so securely and happily under them ! And how sacred a 
duty should we esteem it, not only to transmit these insti- 
tutions unimpaired to our posterity, but to hold in fresh and 
grateful remembrance those to whom we owe them ! 

Here on this spot, which was so long one of their out- 
posts; in the midst of the descendants of a part of their 
number who cut themselves off from their countrymen, and 
boldly threw themselves into the wilderness, which was the 
home of their savage foe, that they might have a place 
where they could worship God in their own way, — I should 
have felt like an unlineal son if I had forgotten those who 
so uprightly and piously lived, so patiently and firmly 
suffered, and so heroically died for conscience' sake and the 
sake of New England. 

Think not that I detract from the fair fame of Washing- 
ton by giving them their due. I am but laying bare the 
broad and deep foundation on which his greatness rests. 
That foundation is the character and principles of the people 
with whose interests he always identified himself while liv- 
ing, and with whose greatness his own fame is identified 
now that he is dead. History would do him comparatively 
little honor by saying that he was a great general or a great 



AN ADDRESS DELIVERED AT DEEEFIELD, MASS. 61 

statesman. There have been thousands of such men, and 
the weakest and the wickedest have often been first among 
a nation of slaves. But when she tells us that he was first 
in war among a brave people fighting for their rights, first 
in peace among a wise people governing themselves, and 
first in the hearts of his free and discriminating countrymen, 
she places him on a height from which he may look down 
on the world. 



62 PBOFESSIONAL AND MISCELLANEOUS WKITINGS. 



ASA OLMSTED versus DANIEL WELLS. 
ACTION FOR A LIBEL. 



BRIEF FOR ARGUMENT FOR DEFENDANT. 

We shall maintain that this action cannot be supported 
on the evidence because, — 

I. The alleged libel was a paper composed and published 
"in the course of justice;" and therefore an action for a 
libel cannot be supported, even though the defendant had 
no probable cause to believe that its contents were true, 
and was actuated by malice in composing and publish- 
ing it. 

II. The bar is a body competent to institute inquiries 
into the official misconduct of its members, and of course 
may appoint an agent for the purpose of conducting those 
inquiries. The defendant was their agent for this purpose, . 
and acted within the scope of his agency, and therefore 
cannot be liable to an action for so doing. 

III. The bar is a body having a right to inquire into the 
official misconduct of its members ; and therefore a commu- 
nication made to the bar by a member, in regard to the 
official misconduct of another member, is a privileged com- 
munication, and an action for a libel cannot be maintained 
for it, unless the plaintiff proves that the defendant had no 
probable cause to believe the libel true, and resorted to this 
communication to gratify his ill-will against the plaintiff. 

IV. There is a fatal variance between the libel alleged 
and the libel proved. 



ASA OLMSTED V. DANIEL "WELLS. 63 

As to the first point, it is very clear that for a paper com- 
posed and published in the course of justice no action for 
a libel can be maintained. 1 Hawk. P. C. 354. He says 
it hath been resolved " that no false or scandalous matter 
contained in a petition to a committee of Parliament, or in 
articles of the peace exhibited to justices of the peace, or 
in any other proceeding in the regular course of justice, will 
make the complaint amount to a libel." 

This doctrine is supported by numerous authorities from 
Lord Coke's time to the present day. Cutler v. Dixon, 
4 Co. 14 b; Weston v. Dobniet, Cro. Jac. 432; Lake v. King, 

1 Saund. 131 a, and Serj. Wins', n. 1 ; Astley v. Younge, 2 
Bur. 807 ; King v. Bayley, rep. in 2 Esp. Dig. 91 and Bac. 
Ab. Libel, A. 2; Weatherston v. Hawkins, 1 T. R. 110; 

2 Phil. Ev. 109 ; Bac. Ab. Libel, A. 4 ; Jarvis v. Hatheway, 

3 Johns. 180 ; Thorn v. Blanchard, 5 Johns. 508 ; Allen v. 
Crofoott, 2 Wend. 515 ; Harris v. Lawrence, 1 Tyler, 164, 
and Harris v. Huntington, 2 Tyler, 129; Remington v. 
Congdon, 2 Pick. 314; Commonwealth v. Blanding, 3 Pick. 
314; Starkie on Slander, ch. 11. 

This court has power to confer on the bar authority to 
make inquiry concerning the official misconduct of its mem- 
bers, and, if sufficient evidence of misconduct is found, to 
present the same to the court for the court to act thereon. 

That the court may do this may be shown : — . 

I. From the general principle, that having a summary 
jurisdiction over its own officers, in respect to their official 
conduct, it may make rules for the orderly and convenient 
exercise of this jurisdiction. 

A rule that the bar should act as an inquest in respect to 
the official conduct of its members would be highly con- 
venient and beneficial to the court, the bar, the community, 
and the accused. Home v. Bentinck, 2 B. & B. 130 (6 E. 
C. L. R. 68). 

II. From authority as early as Michaelmas Term, 1654, 
a rule was made both in the King's Bench and Common 



64 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

Pleas in England that a jury of able and credible officers 
and clerks should be empanelled once in three years, and 
sworn to inquire: 1st. Of the falsities, contempts, mispri- 
sions, and offences committed by attorneys. 2d. To present 
to the court the names of all the attorneys and clerks that 
should be notoriously unfit to continue on the rolls, or to be 
admitted. 3d. To present such as have exacted new and 
improper fees. 2 Pet. Ab. 607, n. 

This court has the same power to create such an inquest. 

It is not to be doubted that, if such an inquest should 
exist, all the usual and proper proceedings before it, the 
subject-matter of which was within its jurisdiction, would 
be judicial proceedings, or "proceedings in the course of 
justice." 

They are the proceedings of the court. 

The only remaining quesbion is, Has this court conferred 
this authority on the bar ? 

Not necessary to have a written rule to show this ; for 
the practice of this court is made up of three kinds of 
rules : — 

I. Written rules. 

II. Decrees which are made from time to time in a cause, 
for the purpose of bringing it to a proper termination. 

III. Unwritten rules derived from common usage, and 
forming the common law of the court. 

Under this last species comes this whole jurisdiction of 
the court over its own officers. It is that power to punish 
for a contempt which is inherent in the nature of all com- 
mon-law courts, derived from immemorial usage and recog- 
nized by Magna Charta itself. 4 Bl. Com. 286. 

This word " contempt " being of very extensive significa- 
tion, and applying to all the fraudulent and dishonest acts of 
the officers of the courts, such acts being contempts of the 
purity of the court. Bac. Ab. Att. A. ; Com. Dig. Att. A. ; 
8 Johns. 398. 

Since, then, this whole jurisdiction rests upon usage; 



ASA OLMSTED V. DANIEL WELLS. 65 

usage is sufficient and proper evidence to show the mode 
in which this jurisdiction should be exercised, or, in other 
words, to show that the court have conferred upon the bar 
authority to act as an inquest in such cases. 

I. It is the settled practice for the bar to act as an inquest. 

II. This practice is recognized and sanctioned by the 
court. 

III. It is highly reasonable and convenient. 
Not an objection to the form of the action. 
Great importance of this jurisdiction of the bar. 

But if the bar in these proceedings did not act under the 
authority of the court, and its proceedings are not in the 
course of justice, still the bar has a right to institute in- 
quiries into the conduct of a member, and may appoint an 
agent for this purpose ; and while that agent acts within 
the scope of his agency, he does no wrong, and of course is 
liable to no action. 

IV. The bar have a right to make these inquiries, — 

1. In order to inform the court, which receives the me- 
morials of the bar on this subject, and thereby sanctions 
the inquiries which led to them. 

2. The plaintiff, on entering the bar, voluntarily sub- 
jected himself to the discipline of that body. Remington 
v. Congdon, 2 Pick. 314 ; Home v. Bentinck, 2 B. & B. 130 
(6 E. C. L. R. 68), where it is said by the Chief Justice : " It 
is quite impossible not to perceive that the plaintiff in this 
case, when he did become an officer in the army, knew that 
in point of fact he voluntarily subjected himself to that 
court of inquiry to which he must have known that officers 
in other instances had been made amenable." 

3. The bar has this right, because it is an association 
the members of which sustain numerous important and 
delicate relations towards each other, and the whole body 
has a deep interest in the official conduct and character of 
each of the members. 

As to master and servant. Rogers v. Clifton, 3 Bos. & P. 



66 PROFESSIONAL AND MISCELLANEOUS WHITINGS. 

592 ; Weatherston v. Hawkins, 1 T. R. 110 ; Child v. Affleck, 
9 B. & C. 403. Are not the relations of the members of the 
bar such towards each other as to render communications to 
the bar equally privileged as communications to a master ? 
So where a letter was written to a firm of bankers, convey- 
ing charges to the plaintiff, who was their solicitor, this 
was held to be a privileged communication. M'Dougall 
v. Claridge, 1 Camp. 267. Vide also 1 Camp. 269, and 
J. Howe's note to 3 Camp. 296, Fowler v. Homer. So com- 
munications made to a congregation respecting a clergyman 
about to be appointed minister of that congregation are 
privileged. Blackburn v. Blackburn, 3 Car. & P. 146 ; Bar- 
baud v. Hookham, 5 Esp. 109. So communications made 
by a bank director to the board of which he is a member, 
affecting the credit of a merchant, are privileged. Sewall 
v. Catlin, 3 Wend. 291. 

The general principle to be deduced from these cases is 
that, when a person sustains relations to an individual or an 
association of individuals, that individual or association has 
a right to inquire into those particulars of his conduct and 
character which concern those relations. 

This is a dictate of the highest of all laws, viz. of self- 
preservation. 

Relations exist between each individual member of the 
bar and all the rest. 

Associated together in causes and professional reputation, 
the honor of one may be ruined by the dishonesty and fraud 
of his associate. 

The interests of their common client depend on the con- 
fidence which associates repose in each other. 

Opposed to each other there is a still greater demand for 
confidence in the honor and integrity of a brother. 

If the bar may institute these inquiries, of course they 
may appoint an agent to put the charges which exist in the 
community, against a member, in writing, and to lay them 
before the bar and the accused, that the bar may know 



ASA OLMSTED V. DANIEL WELLS. 67 

what they have to examine, and the accused may know 
what he is to answer. 

Of course, if such an agent is appointed, and acts within 
the scope of his agency, he does no wrong, and cannot be 
punished. 

This defendant acted within the scope of his agency. 

Burden on the plaintiff to prove he did not. 

Acts of the bar prove that he did so act. 

If the alleged libel cannot be considered as composed and 
published by the defendant as the agent of the bar, still, as 
it was a communication to the bar by one member concern- 
ing the official conduct of another member, it is a privileged 
communication, and no action can be maintained upon it 
unless the plaintiff proves that the defendant had no proba- 
ble cause to believe the charges true, and resorted to this 
mode of gratifying his ill-will against the plaintiff. 

This was a privileged communication. 

Refer to cases under last point. 

Also, G-ray v. Pentland, 4 S. & R. 420 ; Remington v. 
Congdon, 2 Pick. 314; Bodivell v. Osgood, 3 Pick. 384. 
Plaintiff submitted himself to the jurisdiction, and the 
charges were voted true. 

Actual malice must be shown, &c. Supra, all cases on 
the last point. 3 B. & P. 592 ; 2 Pick. 314 ; 3 Pick. 384. 
King v. Root, 4 Wend. 113 ; Gilb. Cas. L. & E. 190 ; 2 B. 
& C. 257 ; 3 Ibid. 584 ; 1 Chit. Gen. Practice, 46. 

" Malice, said to be the gist of the action in suits for libel 
or verbal slander, does not mean ill-will towards the indi- 
viduals affected, in the ordinary sense of that term. In 
ordinary cases of slander, the term maliciously means in- 
tentionally and wrongfully, without any legal ground of 
excuse. Malice is an implication of law from the false and 
injurious nature of the charge, and differs from actual mal- 
ice or ill-will towards the individual, frequently given in 
evidence to enhance the damages. 

"Privileged communications are prima facie excusable 



68 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

from the cause or occasion of speaking or writing; but, 
even in the case of such communications, an action will 
lie, if the party making the communication knows the 
charge to be false, and adopts that mode of gratifying his 
ill-will or malice. In such cases, however, actual malice 
must be shown, and the question will be submitted to a 

FT-" 

Burden, therefore, on plaintiff to show want of probable 

cause and ill-will. 

Can infer malice from want of probable cause, but can- 
not infer want of probable cause from malice. Yelverton, 
105 a, note, and authorities there cited. 

Plaintiff has given no evidence of either. 

Has given evidence of probable cause. 

Votes of the bar. 

What amounts to a question of law. Starkie on Evidence, 
Part IV. p. 912, n. a. 

As to introducing record. Maybee v. Avery, 18 Johns. 
352. 

There is a fatal variance. 1 Camp. 353 ; 5 B. & A. 615 ; 
13 East, 554. 



THE CASE OF THE SLAVE MED. 69 



THE CASE OF THE SLAVE MED. 



The facts of this case are given ante, vol. i. p. 186, et seq. It 
is reported in the eighteenth volume of Pickering's Eeports, p. 193, 
under the title of The Commonwealth v. Aves. The following 
argument was made in August, 1836: — 

May it please your Honors : 

In the argument which I am about to address to the 
court, I shall endeavor to maintain the following propo- 
sition : — 

That a citizen of a slaveholding State, who comes to Massa- 
chusetts for a temporary purpose of business or pleasure, and 
brings his slave as a personal attendant on his journey, may 
restrain that slave for the purpose of carrying him out of the 
State, and returning him to the domicile of his owner. 

This proposition is broad enough to cover the case before 
the court. If the owner, under such circumstances, has a 
right to restrain his slave for the purpose of removing him 
to his domicile, then the custody of the respondent in this 
case is a lawful custody, and the child cannot be discharged 
from it. 

I shall make two points in support of this proposition : — 

I. That this child, by the laws of the State of Louisiana, 
is now a slave. 

II. That the law of Massachusetts will so far recognize 
and give effect to the law of Louisiana as to allow the 
master to exercise this qualified and limited power over his 
slave. 



70 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

The first point is free from all difficulty. It is perfectly 
clear that this child, being a slave by the laws of the State 
of Louisiana, and having left that State only for a temporary 
purpose, is a slave now by the laws of Louisiana. She has 
not been emancipated by coming into a State where slavery 
is not recognized by the law. And the moment she returns 
again, either to Louisiana or any other State or County 
where slavery is a legal institution, the right of the master 
would be recognized as still subsisting, and as having always 
subsisted, and would be enforced without the least diminu- 
tion on account of the temporary residence of the slave in a 
non-slaveholding State. We need look only to a decision o£ 
the courts of the State of Louisiana, to be satisfied that 
such is the law of that State. 

In a case reported in 14 Martin's Reports, 405, the ques- 
tion came before the court whether a slave, who had been 
removed into the North- Western Territory, and domiciled 
there, was still a slave on his return to Louisiana. The 
North- Western Territory, being under the government of 
the celebrated ordinance of Mr. Dane, was of course a non- 
slaveholding territory ; and the court held that, as the slave 
had gained a domicile in that territory, he was thereby eman- 
cipated. But it is hardly possible to read the judgment of 
the learned court in the case, without perceiving that their 
decision would have been against the freedom of the com- 
plainant, if he had gone into the territory only for a tem- 
porary purpose. If we look at the reports of the decisions 
of other courts, we shall find that this very point has been 
repeatedly decided. 

In a case reported in 2 Marshall's Kentucky Reports, 467, 
the Court of Appeals in Kentucky, at that time composed 
of some very eminent judges, decided that a slave, who was 
carried by his master into the North-Western Territory for 
a temporary purpose, was still a slave on his return to 
Kentucky. The learned counsel, on the other side, may 
perhaps not be inclined to give entire credit to these deci- 



THE CASE OF THE SLAVE MED. 71 

sions, because they were made in slave States ; but I Avill 
now refer your Honors to a decision of this point made by 
one of the greatest judges who ever sat on any bench in any 
country, and who will not be suspected of any undue bias in 
favor of this institution. 

In the matter of the slave Grace, 1 Lord Stowell, sitting 
in the High Court of Admiralty, decided that Grace, a 
female slave, who accompanied her mistress from Antigua 
to England, and resided there six months, was a slave on 
her return to Antigua; that although the rights of the 
mistress over the slave were suspended while in England, 
because the English common law provided no means of 
enforcing those rights, yet they existed, and might be exer- 
cised and enforced on the return of the slave to Antigua. 
I have only to add to the authorities which. I have cited 
the fact that I have not found any thing in the books 
which at all conflicts with them, and therefore I think I was 
warranted in saying that in the first point there is no diffi- 
culty ; that this child is now a slave by the law of Louis- 
iana ; and that, whether the rights of the master are partially 
or entirely suspended by coming into our territory, those 
rights are still in existence, and would be recognized and 
enforced by the law of the domicile of the master and the 
slave. I proceed therefore to consider the second point : — 

That the law of Massachusetts will so far recognize and 
give effect to the law of Louisiana as to allow the master 
to exercise the qualified and limited right over his slave 
which is claimed in this case. 

Before I proceed to discuss this question, I shall submit to 
your Honors that it is competent for this court to decide it. 
No legislation is necessary. It is the proper province of 
this court to determine whether any and what effect is to be 
given to the law of another State within our own territory. 
I refer your Honors to Story's Conflict of Laws. 2 The 
learned author is here considering how the rule as to foreign 

1 2 Haggard's Admiralty Reports, 94. 2 Page 25. 



72 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

laws is to be promulgated, whether it should be done by the 
legislature or the judicial power. He says, "In England 
and America, the courts of justice have hitherto exercised 
the same authority " (that is, the authority in question) 
" in the most ample manner ; and the legislature has in no 
instance (it is believed), in either country, interfered to pro- 
vide any positive regulations. -The common law of both 
countries has been expanded to meet the exigencies of the 
times as they have arisen; and, so far as the practice of 
nations and the jus gentium privatum has been supposed to 
furnish any general principle, it has been followed out with 
a wise and manly liberality." 

So Chief Justice Parker, in Blanchard v. Russell, 1 says, 
"As the laws of foreign countries are not admitted exproprio 
vigore, but only ex comitate, the judicial power will exercise 
a discretion with respect to the laws they may be called 
upon to sanction." And the same doctrine, substantially, 
was laid down by Lord Stowell. 2 

It is clear, therefore, that it is competent for the court to 
decide the question which we present to them. 

I now ask your Honors' attention to what I think is the 
principal question in the case before you. It cannot be 
denied that the general principles of international law are 
broad enough to cover this case. I shall consider presently 
whether the case comes within any exception to those gen- 
eral rules. What I now wish to prove is that the case is 
within certain general rules, unless it is to be excepted out 
of them. 

Slaves are looked upon in all codes, I believe, in two 
lights, as persons and as property. What is the general 
rule of international law applicable to them as persons? 
Qualitas personam sicut umbra sequitur, is a rule found in all 
the principal writers on this branch of the law. " Personal 
capacity or incapacity, attached to a party by the law of 
his domicile, is deemed to exist everywhere, so long as his 
i 13 Mass. 6. s 2 Haggard's Con. Rep. 69. 



THE CASE OF THE SLAVE MED. 73 

domicile remains unchanged, even in relation to transactions 
in a foreign country, where they might otherwise be obli- 
gatory." 1 " We always import " (says Lord Ellenborough 
in the case of Potter v. Brown 2 '), "together with their per- 
sons, the existing relations of foreigners as between them- 
selves, according to the laws of their respective countries, 
except indeed where those laws clash with the rights of our 
own subjects here." 

If we consider the rules applicable to slaves as the 
property of foreigners, we shall find them to be equally 
decisive. 

Pothier, after remarking that movable property has no 
locality, adds that " all things which have no locality follow 
the person of the owner, and are consequently governed by 
the law or custom which governs his person, that is to say, 
by the law of the place of his domicile." And I refer your 
Honors to the work which I have already so often cited, and 
which every one must cite who touches upon a subject 
which the distinguished author has treated with such learn- 
ing and ability, Story's Conflict of Laws, 3 where numerous ' 
authorities on this rule are collected. I submit to your 
Honors that this rule has a more extensive application than 
merely to regulate the forms of transfer or the order of 
succession to personal property. Thus to limit its effect 
would be to stop far short of its real meaning, and I may 
add far short of the effect which it has been allowed to 
have. It means that a right to a movable thing, acquired 
in one country under its laws, ought not to be, and is not, 
devested by removing that thing into another country. And 
here again I must refer the court to the commentaries on 
the Conflict of Laws. 1 There is another view which may 
be taken of this principle, by which its justice and expedi- 
ency will clearly appear. " Even the property of individ- 
uals," says Vattel, 5 " is, in the aggregate, to be considered 

1 Story's Conflict of Laws, 64. 2 5 East, 130. 

3 Pages 209, 312, 213. * Pages 334, 335, 336. « Page 168. 



74 PROFESSIONAL AND MISCELLANEOUS "WRITINGS . 

as the property of the nation, in respect to other States. 
It in some sort really belongs to her, from the right she has 
over the property of her citizens, because it constitutes a 
part of the sum total of her riches and augments her 
power. She is interested in that property by her obligation 
to protect all her citizens. In short, it cannot be otherwise, 
since nations act and treat together as bodies, in their 
quality of political societies, and are considered as so many 
moral persons. All those who form a society, a nation, 
being considered by foreign nations as constituting one 
whole, one single person, — all their wealth together can only 
be considered as the wealth of that same person. Its domes- 
tic relations make no change in its rights with respect to for- 
eigners, nor in the manner in which they ought to consider 
the aggregate of its property, in what way soever it is 
possessed." He then goes on to deduce from this principle 
certain rules of the law of nations, which are fairly deducible 
from it, and are now well settled, and among others the 
following : " The property of an individual does not cease 
to belong to him on account of his being in a foreign 
country : it still constitutes a part of the aggregate wealth 
of his nation. Any power, therefore, which the lord of 
the territory might claim over the property of a foreigner 
would be equally derogatory to the rights of the individual 
owner and to those of the nation of which he is a mem- 
ber." The rule on which we rely is, therefore, deducible 
from this great principle of the law of nations ; and I need 
not say that the application of this principle to the citizen 
of one of our sister States is, to say the least, quite as just 
and politic as to the citizen of a foreign country. 

I submit to the court, then, that by the general rules of 
international law, whether we consider this slave as a per- 
son or as property, the rights of the master, acquired under 
the law of the domicile, are to be recognized and preserved, 
unless there is something in this case which excepts it out 
of those general rules. I proceed, therefore, to inquire 



THE CASE OP THE SLAVE MED. 75 

whether there is any exception to these rules applicable to 
this case. 

There are two well-settled exceptions, and only two, thai 
I have been able to discover. The foreign law is not allowed 
any effect : — 

I. When it would work injury to the State or its citi- 
zens. 

II. When the law is in itself immoral. 1 

In the case of Greenwood v. Curtis, 2 Chief Justice Par- 
sons states these exceptions in somewhat different terms, 
though substantially there is no difference. He says there 
are two exceptions : " One is when the Commonwealth or 
its citizens may be injured by giving effect to a foreign law. 
The second is where the giving effect to a foreign law 
would exhibit to our own citizens an example pernicious 
and detestable." 

I shall endeavor to maintain that it would work no injury 
to the State or its citizens to give to the law of Louisiana 
the qualified and limited effect which we ask for in this 
case, and, secondly, that slavery is not immoral. Before I 
proceed to speak of these points, I feel obliged to anticipate 
an objection, which will undoubtedly be pressed by the 
learned counsel for the petitioner, and which certainly 
comes from high authority. 

" The difficulty of adopting the relation, without adopting it in 
all its consequences, is indeed extreme ; and yet many of those 
consequences are absolutely contrary to the municipal law of 
England. We have no authority to regulate the conditions in 
which law shall operate." — Lord Mansfield, in the Case of 
Sommersett. 

It will be urged that, though we claim to exercise only a 
qualified and limited right over the slave, viz. the right to 
remove him from the State, yet, if this is allowed, all the 
rights of the master must be allowed. That the same for- 

l Story's Conflict of Laws, 96; 2 Kent's Com. 39. 2 6 Mass. 378. 



76 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

eign law, which gives the master a right to remove the 
slave from place to place, gives him a right to his labor, and 
to compel him to labor; and that, if this foreign law is 
recognized at all, full effect must be given to it, and thus 
slavery will be introduced into the Commonwealth. 

To this I answer : — 

1st. There is no practical difficulty in giving this quali- 
fied effect to the law of Louisiana. The Constitution of 
the United States has settled this question. That provides 
for and secures to the master the exercise of his right, to 
the precise extent claimed in this case. 

2d. Neither is there any theoretical difficulty. Not to 
refer again to the Constitution, which, being positive law, 
may be supposed to cut a theoretical knot, I think I can 
show that English judges, since Lord Mansfield's day, have 
not found this difficulty insurmountable, even in regard to 
this very relation of slavery. 

Several cases have occurred in the High Court of Admi- 
ralty in England, where ships of other nations, engaged in 
the slave trade, have been captured by British cruisers, and 
brought in for condemnation. In the cases where the slave 
trade was forbidden by the laws of the nation to which the 
vessel belonged, they were condemned. In other cases, 
where the slave trade was lawful by the laws of the nation 
to which the vessel belonged, the vessel and slaves were 
restored to their owners. The court looked to the foreign 
law. If by that law the owners of the vessels could ac- 
quire a property in the slaves, that property was respected, 
and the slaves were given up. Now here the relation be- 
tween master and slave, which existed by the foreign law, was 
recognized by the English law, and effect given to it, so far 
as to allow the owner to remove them. 1 So, in the case of 
Madrazo v. Willes, 2 a British cruiser captured a Spanish 
slave-ship, and the Court of King's Bench allowed the 

l The Amedie, 1 Acton, 240 ; Fortuna, 1 Dod. 80 ; The Diana, 1 Dod. 96 ; The 
Louis, 2 Dod. 238. 2 3 B. & Aid. 358. 



THE CASE OF THE SLAVE MED. 77 

owner to recover of the captain £30,000 for the loss of his 
slaves. Here also was a strong recognition of the relation 
between master and slave, and an important effect given to 
that relation. But I suppose that the judges who decided 
those cases would have been greatly surprised, if they had 
been told that, by recognizing the right of the master over 
his slave to any extent, they had in effect recognized it for 
all intents and purposes whatsoever; and that they had 
thereby introduced slavery into England. I refer the court 
also to the case of Emerson v. Howland, 1 for a decision made 
in this Commonwealth, founded upon the same principles 
as the case in 3 B. & Aid. 

There is a decision of Chief Justice Reed of Lower 
Canada, 2 which throws light on this point. The case was as 
follows: A citizen of the State of Vermont committed a 
larceny there, and fled into Canada. The executive of the 
State of Vermont requested the Governor of that province 
to deliver up the fugitive. The Governor caused the thief 
to be arrested, and thereupon a habeas corpus was sued out, 
and the man was brought before the chief justice. In a 
very learned and elaborate opinion, the judge decided that 
it was a proper exercise of the executive power, not only 
consistent with the laws of nations, but required by national 
comity, to deliver up the delinquent to the authorities of 
the State of Vermont. Now why did not the chief justice 
say that the crime committed by the thief being an infringe- 
ment of a foreign law, if that law was recognized at all, it 
must be recognized to its full extent, — if any effect should 
be given to it, full effect must be given to it ; that the 
State of Vermont had the same right to try, condemn, and 
punish the thief that they had to remove him ; and, as the 
Governor of Canada could never permit the State of Ver- 
mont to exercise all these rights within his territory, he 
could not recognize their right at all, nor permit the least 
interference with the liberty of the fugitive while on the 

1 1 Mason, 45. 2 Reported in 1 American Jurist, 297. 



78 PROFESSIONAL AND MISCELLANEOUS "WHITINGS. 

soil of Canada. I am unable to perceive why such a course 
of reasoning would not have been equally applicable to that 
case as to the case at bar. And the answer there, as here, 
is, that although the rights arising under a foreign law, and 
properly exercisible on such foreign territory, cannot, con- 
sistently with our domestic policy, be exercised on our own 
territory, yet that is no reason why we should not allow 
the foreigner to remove the subject of those rights to his 
own territory, there to do what his law requires or allows. 

The question in both cases is, whether national comity 
requires the nation, where the subject of the rights claimed 
is, to allow such subject to be removed; and it is not at all 
necessary to give effect to any rights or relations other than 
the right of removal, nor even to consider or take notice of 
any other rights or relations, except so far as they constitute 
or destroy a claim on the comity of the nation to permit 
the removal. I submit to your Honors also that there is no 
difficulty in holding that a judicial tribunal may allow a 
qualified effect to a foreign law. If there are considerations 
which forbid the court from allowing a foreign law to pro- 
duce all its usual and natural effects on the relations of 
foreigners who come within our territory, but at the same 
time it will work no injury to the Commonwealth or its 
citizens, and will exhibit no bad example, to allow some of 
those effects ; if the doing so will at the same time promote 
harmony and good feeling, where it is extremely desirable 
to promote it, encourage frequent intercourse, and soften 
prejudices by increasing acquaintance, and tend to peace 
and union and good-will, — why should not the foreign law 
be allowed to have this useful and just operation within our 
territory ? Useful, because it produces only good effects ; 
just, because it preserves relations acquired at home and 
brought here with the expectation of preserving them, and 
which are in no way injurious to ourselves. Such I under- 
stand to be the opinion of Mr. Justice Story. 1 " A State 

1 Conflict of Laws, 24. 



THE CASE OP THE SLAVE MED. 79 

may recognize and modify and qualify some foreign laws ; 
it may enlarge or give universal effect to others." I have 
already shown, by citations from this book, that it is the 
province of the judicial power to declare what effect a for- 
eign law shall have ; and of course it follows that, when the 
learned author says a State may modify and qualify some 
foreign laws, he means that the judicial power of the State 
may do this. 

I have endeavored to prove that the qualified and limited 
right which we have claimed in this case may be properly 
claimed and allowed, without giving full effect to the foreign 
law concerning master and slave ; and I will now attempt to 
show that to permit such an exercise of the right of the 
master will work no injury to the State or its citizens. 

I. It will work no injury to the State, by violating any 
public law of the State. The only law in our Statute 
Book applicable to the subject of slavery is the law against 
kidnapping. 1 It provides that no person shall, "without 
lawful authority, forcibly or secretly confine or imprison 
any other person within this State, or forcibly carry or send 
any such person out of this State," &c. It does not define 
the " lawful authority : " it leaves that as it found it. In 
short, it provides a penalty for an offence, the gist of which 
depends on the common law ; and to say that the statute 
applies to this case is the same thing as to say that the 
master has no " lawful authority " to confine this slave, 
which is the very question to be decided. 

I.I. It will work no direct injury to the citizens of this 
State, for it has no direct effect on its citizens. It respects 
only strangers. 

III. I am aware that these two divisions by no means 
dispose of all or even of the principal difficulties. A State 
may be injured as vitally by infringements upon its public 
policy as by breaches of its laws ; and I shall endeavor to 
show that it is consistent with the public policy of Massa- 

i Eev. Stats., c. 125, § 20. 



80 PROFESSIONAL AND MISCELLANEOUS "WRITINGS. 

chusetts to permit this qualified and limited exercise of the 
right of the master. I know that this is a wide field, that it 
involves considerations so broad and deep that I cannot hope 
to reach or grasp them ; but while I feel confident that the 
court will perceive and give due weight to all these consid- 
erations, I also feel it to be my duty to suggest to your 
Honors such as have occurred tg my own mind. And, first, 
I beg your Honors to bear in mind that we are considering 
the policy of Massachusetts towards citizens of other States, 
and not towards her own citizens. Laws and institutions 
may exist in other States, which are inconsistent with our 
own policy. We cannot therefore allow our own citizens to 
create such institutions in our territory ; we cannot permit 
foreigners to import them here ; but, at the same time, it 
may be perfectly consistent with our policy, not only to 
recognize the validity and propriety of those institutions in 
the States where they exist, but even to interfere actively, 
to enable the citizens of those States to enjoy those institu- 
tions at home. To illustrate my meaning : suppose the prov- 
ince of Canada should abolish capital punishment, upon the 
ground that it was immoral, inexpedient, and contrary to 
their public policy, and a murderer should escape from Ver- 
mont into that province. The public policy of Canada in 
respect to capital punishment within its own territory would 
hardly furnish a sufficient reason for refusing to deliver up 
the murderer to the authorities of Vermont. 

There is another principle, which seems to me impor- 
tant to be kept in view. In considering whether a stranger 
should be allowed to exercise this right, it is of the utmost 
importance to keep in view the relations between the State of 
which such stranger is a citizen and our own State. A very 
little reflection will convince the court of the truth of this. 
We close our courts of justice to an alien enemy. We open 
them to an alien friend, for personal actions. We open 
them to the citizens of our sister States, in all actions. The 
very phrase which is made use of to express the founda- 



THE CASE OF THE SLAVE MED. 81 

tion on which the admission of all foreign laws rests illus- 
trates this truth. National comity is that foundation. Now 
what may be a proper comity in one case may by virtue 
of a treaty be turned into a right in another, and may 
be wholly done away in a third, either by a want of due 
comity on the other side, or in some other way. In short, 
it is perfectly clear that there can be no general rule, bindr 
ing in all cases, and in regard to the citizens or subjects of 
all foreign States, even in respect to the exercise of the same 
right or the existence of the same relation. Our relations 
to one foreign State may render it perfectly consistent with 
our public policy to permit a citizen of that particular 
State to do an act within our territory, which our public 
policy towards another foreign State would require us to 
forbid its citizens from doing. What, then, are the relations 
which we sustain to the State of Louisiana, which ought to 
affect our public policy towards her citizens ? She is not a 
foreign State. We are bound up with her, by the Constitu- 
tion, into a Union, upon the preservation of which no man 
doubts that our own peace and welfare depend. Other 
nations may cherish friendly relations, and endeavor to pro- 
mote frequent intercourse, from a fear of foreign war or a 
desire of commercial prosperity. But to us these relations 
and this intercourse have a value and importance which are 
inestimable. They are the grounds of safety for our domes- 
tic peace and the happy institutions under which we live. 
Thirteen States of this Union are slaveholding States. 
Negro slavery has become incorporated into all their insti- 
tutions. It is infused into their agriculture, their commerce, 
their mechanical arts, their domestic relations. Their laws 
and policy bear marks of it in every line. To secure its 
advantages, to lessen the evils which are inseparable from it, 
and to avert the overwhelming destruction which it threat- 
ens, occupies the thoughts and engages the anxious solicitude 
of almost every man in those States. And great as is the 
importance of this institution to them, in every point of 



82 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

view, there can be no doubt that it occupies in their minds 
quite as prominent a place as it deserves. Your Honors will 
not forget that we are dealing with this institution thus 
existing in our sister States, and thus deemed to be all- 
important, and being in fact of vast importance to those 
States; that we are considering whether a citizen of one 
of those States, whom our intSrest as well as our inclination 
should lead us to welcome here, can be allowed, consistently 
with our public policy, to exercise a right growing out of 
this important institution, when the exercise of that right 
violates no public law of the State, and has no direct effect 
upon any citizen of the Commonwealth. 

I cannot but think that the Constitution itself furnishes 
a guide, and a safe guide, in the question. I say a guide, 
and not a controlling authority ; for I take it to be clearly 
settled that the Constitution applies only to the case of 
fugitive slaves. But when we find that the States, in the 
solemn compact which they made with each other, provided 
for the exercise of this right in certain cases, it gives us some 
reason to believe that it is consistent with the public policy 
of Massachusetts to protect the right of the master to that 
extent, at least. I know it will be urged that the non- 
slaveholding States came into this measure unwillingly, and 
this for the very reason that it was contrary to their policy ; 
but, unless it was on the whole consistent with their policy, 
it is clear they would never have come into it at all. Mas- 
sachusetts undoubtedly assented to this article in the Con- 
stitution for different reasons from those which operated 
on South Carolina; but her reasons were sufficient. She 
assented to it of her own free will, and it was as much her free 
act as it was the free act of any State which came into the 
Union. It will be urged also, by the learned counsel for 
the petitioner, that although we have assented to the "exer- 
cise of this right in one class of cases, yet the fact that this 
limitation exists is an argument to prove that the exercise 
of the right, in any other case, would be contrary to our 



THE CASE OF THE SLAVE MED. 83 

policy; that if it was not contrary to the policy of the 
non-slaveholding States to permit the master to exercise 
the right "which we claim in this case within their territory, 
we should find a provision adapted to this case in the Con- 
stitution. To this argument there are several answers. In 
the first place, the Constitution provides for that class of 
cases which was most important. It furnishes a remedy for 
an evil which had been deeply felt by the Southern States 
during the existence of the Confederation. It is a class of 
cases, too, which requires the active interposition of the law 
and the application of the civil power in aid of the master's 
right. It is by no means a necessary inference that all 
other cases whatsoever were disregarded or deemed to be 
without remedy. The slave States, having procured the 
insertion of this provision, might be willing to leave other 
cases to the voluntary comity of the non-slaveholding 
States. On the other hand, the non-slaveholding States, 
though they might be unwilling to be bound through all 
time, and amidst all changes, to afford the aid of their civil 
power to enforce any right of the master in their territories, 
might be quite willing to accord as a favor and as a matter 
of comity even more than they were willing to surrender as 
a matter of right. Does not the course of legislation in 
some of the States prove this? Very soon after the adop- 
tion of the Constitution, four non-slaveholding States passed 
laws, securing to citizens of slave States, who came within 
their territories as travellers, and brought their slaves with 
them, a right to remove those slaves from the State, and 
return them to their domicile. 1 In other words, the legisla- 
tures of those States secured to the master the very right 
which we claim in this case. It may be argued, perhaps, 
that the very existence of these statutes proves that some 
action of the legislature is necessary, and that this court is 
not competent to do what those legislatures have done ; but, 

1 1 Rev. Laws of N. Y. 657 ; Laws of R. I, 607 ; Purdon's Digest of Penn- 
sylvania Laws, 6; Laws of N. J. 679. 



84 PROFESSIONAL AND MISCELLANEOUS "WRITINGS. 

if the court will examine those statutes, they will perceive 
why some action of the legislature was necessary there, and 
that the same reason does not exist in this Commonwealth. 
In those laws, the legislatures forbid, under a penalty, the 
introduction of slaves into their several States. Feeling 
the force of the objection, that they had thus cut off almost 
entirely the access of citizens from the Southern States, 
and that so to shut out those persons would be impolitic 
and unjust, they go on to make an exception in favor of 
travellers who come into their respective States for tem- 
porary purposes. But in Massachusetts there is no law 
forbidding the master to bring his slave here, the legislature 
has never acted at all on the subject, and of course it has 
never become necessary to introduce any such exception. 

I cannot but believe that these laws of Pennsylvania, 
New York, New Jersey, and Rhode Island, have an impor- 
tant bearing on this question. The legislatures of those 
States are the legitimate and highest authority, in regard to 
their public policy. What they have declared on this sub- 
ject must be deemed to be true; and where they have 
passed a law securing to the master the right which we 
claim in this case, and have continued the law to the present 
hour, we are not at liberty to suppose that it is contrary 
to their public policy that the master should exercise this 
right within their territory. I respectfully ask the court 
to consider what difference there is between the policy of 
Pennsylvania, New York, Rhode Island, and New Jersey, 
and the policy of Massachusetts, on the subject of slavery. 

I have gone through with such suggestions, in respect to 
this question of public policy, as have occurred to me ; and 
I leave it in the hands of the court. 

I shall now attempt to prove that slavery is not immoral, 
and that to allow the master to exercise this right will not 
exhibit to our citizens an example pernicious and detestable. 
I wish not to be understood to advocate slavery, as consist- 
ent with natural right. I do not believe it to be consistent 



THE CASE OF THE SLAVE MED. 85 

with natural right. If this cause or any cause required me 
to maintain that slavery was not a violation of the law of 
nature, I would abandon it. But this cause does not require 
its advocates to do this. The terms " moral " and " immoral " 
have very wide and various meanings, and of course it is 
necessary to settle the meaning of this word before we look 
further. I take it to be perfectly clear that the standard 
of morality by which courts of justice are to be guided is 
that which the law prescribes. Your Honors' opinion as 
men or as moralists have no bearing on the question. 
Your Honors are to declare what the law deems moral or 
immoral. Such was the opinion of Sir William Scott, 1 
Such also was the opinion of Chief Justice Marshall : — 

" Whatsoever might be the answer of a moralist to the question, 
a jurist must search for its solution in those principles of action 
which are sanctioned by the usages, the national acts, and the 
general assent of that portion of the world, of which he considers 
himself as a part, and to whose law the appeal is made." 2 

The question therefore is, whether, when measured by the 
standard of our law, slavery is immoral. Upon this question, 
I again refer/the court to the case in 3 B. & Aid. 353, where 
the Court of King's Bench allowed the owner of slaves to 
recover ,£30,000 damages for the conversion of his prop- 
erty; and bearing in mind the well-settled principle, that 
the common law requires its suitors to come into court with 
clean hands, and that no man who makes title through an 
immoral act can there obtain damages, I ask your Honors to 
consider whether this decision does not prove that slavery, 
by the law of England, is not an immoral institution. The 
case of Emerson v. Howland 3 is to the same point. That 
was an action on a contract based on the right of property 
in a slave. If the eminent judge who decided that case had 
deemed slavery an immoral basis on which to rest a con- 
tract, he would never have allowed it to be maintained. 

i 2 Dod. 249. ' 2 10 Wheat. 121. 3 1 Mason, 45. 



86 PROFESSIONAL AND MISCELLANEOUS "WRITINGS. 

But, whatsoever may be the law of England on this subject, 
by the law of this Commonwealth slavery is not immoral. 
By the supreme law of this Commonwealth, slavery is not 
only recognized as a valid institution, but to a certain extent 
is incorporated into our own law. Chief Justice Parker * 
says, " The words of the Constitution were used out of 
delicacy, so as not to offend some in the convention, whose 
feelings were abhorrent to slavery ; but we there entered 
into an agreement that slaves should be considered as prop- 
erty." This court will hardly declare in this case that 
slavery is immoral, and that to allow the master to exercise 
the right claimed would exhibit to our citizens an example 
pernicious and detestable, when, before you rise from your 
seats, you may be called upon by the master of a fugitive 
slave to grant a certificate, under the Constitution, which 
will put the whole force of the Commonwealth at his dis- 
posal, to remove his slave from our territory. 

If I have succeeded in convincing the court of the truth 
of the points which I have made, I have shown that this 
case is within the general principles of the law of nations ; 
and that it does not come within any exception to those 
principles, and of course is to be governed by them. I now 
ask the attention of the court to some authorities which 
bear more directly on the question before you. 

The leading case on this subject is the case of the negro 
Sommersett. 2 In many of its leading features, it resembles 
the case at bar. I shall not deny that Sommersett's Case 
settled the law of England. However contrary it may have 
been to the opinions of eminent common lawyers of preced- 
ing times, and to the general current of opinion and prac- 
tice at that day, it has been acquiesced in, applauded, 
confirmed, till it would be folly to deny that the present 
common law of England in regard to slavery is there to be 
found. But I think, nevertheless, that much instruction 
concerning this great case, and much valuable reasoning 

i 2 Pick. 19. 2 20 Howell's State Trials, 20. 



THE CASE OP THE SLAVE MED. 87 

upon the subject of it, may be found in the elaborate opin- 
ion of Lord Stowell, in the matter of the slave Grace, to 
which I have already referred. And, though it may not 
convince us that Sommersett's Case was decided erroneously, 
it will probably prevent us from being misled by the highly 
figurative and declamatory language which was indulged in 
by some of the eminent men concerned in that cause. If 
the reports of the judgment of Lord Mansfield are even 
tolerably full and correct, it is much to be regretted that we 
are not permitted to see a little more fully the grounds on 
which the court proceeded and the train of reasoning by 
which they were brought to the decision which they made. 
The judgment, as reported, is singularly deficient in this 
respect ; and feeling as we do, that it is necessary for us to 
distinguish the case at bar from Sommersett's Case, we are 
not a little embarrassed by our ignorance of these grounds 
and reasons. I have already had occasion to notice one 
expression made use of by his Lordship in that case, and I 
have attempted to show that it need not be an insurmount- 
able obstacle here. I will now call the attention of the 
court to two other principles, being the only principles 
which I have been able to discover in the opinion. 

" Contract for sale of a slave is good here : the sale of 
a slave is a matter to which the law properly and readily 
attaches, and will maintain the price according to the agree- 
ment. But here the person of the slave himself is imme- 
diately the object of the inquiry, which makes a very 
material difference." With all submission, I must confess 
that I am unable to perceive the distinction. What is the 
subject of a contract for the sale of a slave? Is it not the 
person of the slave? And what is the subject of inquiry, 
in an action on such contract? Is it not whether the 
vendor sold to the purchaser the person of the slave? 
What was the subject of inquiry in the action brought by 
the owner of slaves against the captain of the British 
cruiser, and reported in 3 B. & Aid. ? Was it not whether 



88 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

the plaintiff owned the persons of the slaves, and the 
defendant destroyed his property? How, then, can it he 
said that the person of the slave comes in question in the 
one case more than in the other ? 

" The state of slavery is of such a nature that it is inca- 
pable of being introduced on any reasons moral or political, 
but only by positive law." And, again, "Slavery is so 
odious that nothing can be suffered to support it but posi- 
tive law." Now, if by positive law is meant a law enacted 
by the legislative power of the country, this assertion is not 
true in point of fact; for in all modern States, I believe, 
with the exception of some of the colonies of Spain, slavery 
has been introduced by custom, and without any action of 
the legislative power. Negro slaves were introduced, and 
held like merchandise or any species of property, because 
slavery was not forbidden by law, and not because it was 
required or sanctioned by law. 

If by positive law it is meant that there must be some 
law of the State which at least permits the master to exer- 
cise acts of ownership over the slave, this is undoubtedly 
true. We must find in this case some law which will per- 
mit this master to remove the slave, and it must be Massa- 
chusetts law too ; but the law of Massachusetts, which we 
expect to find, is that principle which declares that the law 
of the domicile shall govern, as to the relations between for- 
eigners, except in so far as it contradicts our own policy 
and laws. 

If by positive law is meant a law of the State where the 
question arises, without reference to the law of the domicile, 
and that the law of the domicile cannot be in any degree 
regarded, even where the question arises between strangers, 
then we deny the position. We say it is not true even in 
England, and that the cases in which the English courts 
have recognized the foreigner's right of property in slaves, 
and given him damages for a violation of that right of 
property, prove that it is not the law there. 



THE CASE OF THE SLAVE MED. 89 

But the grounds on which we expect to distinguish this 
case from Sommersett's Case are that the owner of Sonimer- 
sett was a British subject, resident in Virginia, then a 
British colony ; that the question of national comity did not 
arise in that case ; that none of the considerations which 
grow out of our close and peculiar relations with the State 
of Louisiana, there existed ; that the public policy of Eng- 
land in respect to her dependent colonies was a very differ- 
ent thing from the public policy of Massachusetts in respect 
to her sister States ; that a citizen of the State of Louisi- 
ana has a different standing in our courts, at this day, from 
the standing of a Virginian in the King's Bench in 1772, 
just before the breaking out of the Revolutionary War : in 
short, that Sommersett's Case was decided by an English 
court, on considerations proper to that country; that this 
case is to be decided by a Massachusetts court, upon reasons 
proper to ourselves. And if I have succeeded in convincing 
the court that it is consistent with the public policy of 
Massachusetts to permit the master to exercise the right 
claimed in this case, I think the court can feel no difficulty 
in distinguishing this case from Sommersett's Case. I know 
not how I can better illustrate my meaning than by sup- 
posing a case. Suppose that slavery had existed in Scot- 
land before the union; that it had become incorporated 
into all her institutions, civil, political, and domestic ; that it 
was not only of great importance to the Scottish nation, 
but one in which they felt an intense interest, which tran- 
scended even its real importance; that the existence of 
this institution was one of the chief obstacles to a union of 
the two kingdoms ; that its protection was provided for and 
guaranteed, and the faith of the English nation pledged 
thereto, by the act of union ; that it was made the basis 
of taxation and representation in the Imperial Parliament. 
And then suppose that a Scottish gentleman, travelling into 
England with his slave, and restraining him for the purpose 
of carrying him back to Scotland, that slave had been 



90 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

brought before Lord Mansfield on a writ of habeas corpus. 
Do your Honors believe that he would have been dismissed 
from the custody of his master, on the ground that slavery 
was so odious that the master should not be permitted to 
carry his slave home, because there was no positive law of 
Parliament providing for the case? Should we not have 
heard something of the act of .union, of the ultimate rela- 
tions between the two kingdoms, of the great importance 
of the institution to the sister kingdom, of the state of 
feeling there on the subject, of the necessity to preserve 
amicable feelings and encourage intercourse between the 
people of the different sides of the border? I submit 
to your Honors that we should, and that the result 
would have been different from the result of Sommersett's 
Case. 

I now ask your Honors' attention to some authorities in 
support of our view of this case. 

The case of the Antelope, in 10 Wheaton, has already been 
referred to. In that case, a Spanish slave-ship was captured 
on the coast of Africa by a piratical vessel. The slaves 
were brought by the pirates near the coast of the United 
States, probably with the intention of smuggling them into 
some part of our country. The vessel having them on 
board was seized by a public armed vessel of the United 
States, and brought in for adjudication. The Spanish 
owner claimed the slaves, and they were restored to him by 
the court. Now here was a case in which the slaves came 
lawfully into the custody of the United States, and without 
any improper intervention on the part of the public armed 
vessel. The case seems to have been exactly parallel with 
the case of a cargo of slaves cast upon our coast by a storm ; 
and yet the court interfered actively to restore them to 
their foreign owner. 

A case was brought before Judge Morris, of Indiana, in 
1829, in regard to the slaves of one Sewall, by habeas corpus, 
the return to which stated that Sewall was emigrating from 



THE CASE OF THE SLAVE MED. 91 

Virginia to Missouri, with his family and slaves, and that 
his route led him through Indiana. But the evidence 
showed that he was going to settle in Illinois, and intended 
to run his negroes into Missouri for the purpose of selling 
them. The decision turned, therefore, on the fact that the 
party had abandoned his domicile in a State where he could 
hold slaves, and had not shown even an intention of acquir- 
ing a new domicile in another such State; but on the con- 
trary, so far as his intention did appear, it was to settle 
in a non-slaveholding State. The slaves were accordingly 
declared free; but the judge expressly intimates that his 
decision would have been otherwise, if the domicile of the 
owner had continued to be in a slaveholding State. " By 
the law of nature and of nations (see Vattel, 160), and the 
necessary and legal consequences resulting from the civil 
and political relations subsisting between the citizens as 
well as the States of this federative republic, I have no 
doubt but the citizen of a slave State has a right to pass, 
upon business or pleasure, through any of the States, 
attended by his slaves or servants ; and, while he retains 
the character and rights of a citizen of a slave State, his 
right to reclaim his slave would be unquestioned. An 
escape from the attendance upon the person of his master, 
while on a journey through a free State, should be consid- 
ered as an escape from the State where the master had a 
right of citizenship, and by the laws of which the service of 
the slave was due. It is not necessary for me to decide 
whether an emigrant from one slave State to another would 
have the right of reclaiming his slaves, if they should escape 
from him while passing through our State, because that is 
not the case now before me. . . . The emigrant from one 
State to another might be considered prospectively as the 
citizen or resident of the State to which he was removing, 
and should be protected in the enjoyment of those rights he 
acquired in the State from which he emigrated, and which 
are recognized and protected by the laws of the State to 



92 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

which he is going. But this right, I conceive, cannot be 
derived from any provision of positive law." 2 

The case in 2 Marshall's Kentucky Reports, which has 
already been referred to, has an important bearing on this 
case. I have not the book at hand; but your Honors will 
find, on referring to it, that it contains a strong and distinct 
declaration of the opinion of the court in favor of the 
right claimed by the respondent in this case. 

These are the views entertained by the respondent's coun- 
sel, concerning this important and interesting question. 

1 3 American Jurist, 406. 



DEBTS OF THE STATES. 98 



DEBTS OF THE STATES. 

FIRST PUBLISHED IN THE "NORTH AMERICAN REVIEW" FOR 
JANUARY, 1844. 1 



1. State Stocks and Revenues, comprising Statistical Tables of the 

Stocks, Debts, Expenditures, and Revenues of each of the 
United States. New York. 1841. pp. 8. 

2. Report of the Joint Committee of the Senate and House of 

Representatives of the State of Michigan, on the Subject of 
the Five Million Loan Bonds. February, 1843. 

3. Message of Governor McNutt to the Legislature of the State 

of Mississippi. January, 1841. 

4. Message of Governor Porter to the Legislature of the State of 

Pennsylvania. January, 1843. 

These documents are connected with a subject of great 
public importance. Disgrace has fallen upon the people of 
this country in the eyes of the civilized world, and it becomes 
us to inquire how far we deserve it, how far it is unmerited, 
by what means we can justly relieve ourselves from it, and 
what are to be the consequences of our continuing in the 
wrong. We believe that some injustice has been done by 
public opinion, and some needless alarm felt by those most 
directly interested, either through ignorance of the facts, or 
because they have been considered only in a hurried and im- 
perfect manner. We have no doubt, also, that evil principles 
have been disseminated, and false ideas of duty and policy 
presented to the people, in connection with this interesting 
subject, and that these can be effectually exposed only by 
discussion. We propose, therefore, to state the facts, as we 

1 Ante, vol. i. p. 99, et seq. 



94 PROFESSIONAL AND MISCELLANEOUS WHITINGS. 

suppose they really exist, and to examine some of the 
principles connected with the subject. 

At the beginning of the year 1830, the States of this 
Union were in debt only for about $13,000,000. During 
the next seven years, the greater part of the present debt 
was contracted ; and the State governments laid the founda- 
tion for the residue by authorizing loans, and commencing 
public works upon which the money was to be expended. 

These seven years formed one of the most extraordinary 
financial periods — perhaps the most extraordinary- one — 
the world has ever seen, and nowhere were its character 
and effects so fully exhibited as in this country. It may 
not, therefore, prove uninteresting to trace rapidly the causes 
which led to this remarkable state of things in the United 
States. Great injustice has been done to the American 
people by leaving out of view the general state of financial 
affairs at the time when their debts were contracted, and 
when some of the States failed to pay the interest which 
was due. 

The peace of 1815 found Europe, and to some extent 
this country also, exhausted by the wars which were then 
terminated. Great public debts had been created ; popula- 
tion had been kept down by the drain upon it for the armies ; 
production was diminished, and commerce had but a feeble 
life. The habits and pursuits of the people had so long been 
formed to a state of war, that time was requisite to allow 
the general peace of the world to produce its effects. This 
change, however, soon began to be accomplished, and the 
world was not slow in obtaining the benefit of the new condition 
of things. Reverses more or less severe occasionally came, 
especially that most serious one in England in 1825 and 
1826, which was felt in this country also. But, on the whole, 
the affairs of all commercial and manufacturing countries 
were in a hopeful state. Wealth was increasing ; popula- 
tion was greatly multiplied ; production was enlarged still 
faster than population ; and the general condition of man in 



DEBTS OF THE STATES. 95 

most civilized countries was constantly improving. We 
felt some checks during the period between 1815 and 1829 ; 
but they were beneficial rather than injurious, for they tended 
to keep the country in a sober and calm state, and to make 
men industrious and economical without seriously impairing 
their resources. When General Jackson became President 
in 1829, there was a general and well-grounded belief that 
the financial affairs of the country were prosperous, and 
that we were in a condition to go forward with accelerated 
speed. 

In 1834, the last instalment of our public debt was paid. 
No more money went out of the country through this chan- 
nel. This was an event of great importance to the country, 
and certainly its importance was not inadequately estimated 
either at home or abroad. Here, the party newspapers 
made the most of it with the people, in order to obtain 
credit for the preceding administrations which had planned 
it, and for the existing administration by which it had 
been accomplished. Abroad, it was considered very strik- 
ing from its novelty ; for we were the first, and are still the 
only, nation in modern times which has ever wholly freed 
itself from debt. This fact tended to raise the spirits of 
the country, to give the people great confidence in their 
resources, and to incite them to large undertakings. 

During this period, our manufactures increased much; 
and a beneficial change was taking place in an important 
branch of commerce. Instead of sending little or nothing 
but specie beyond the Cape of Good Hope, wherewith to 
purchase agricultural and manufactured products, our own 
manufactures began not only to supply our own wants to a 
great extent, but to be carried elsewhere. A new course of 
trade was thus opened, a good market being provided for 
the products of our own labor ; and the money was kept at 
home which was formerly sent abroad to buy those of other 
nations. 

At the same time, another important change was taking 



96 PROFESSIONAL AKD MISCELLANEOUS WRITINGS. 

place in trade. Under the old system, large amounts of 
specie were carried to China, to the East Indies, and to 
South America, for the purchase of cargoes. Much of this 
same specie sooner or later found its way to London, or 
to places where it was under the immediate control of the 
merchants and bankers of that city. It thus performed long 
and hazardous voyages at great expense and wholly without 
necessity. The transportation of money in this form, to 
some extent, is necessary. The laws of trade require it to 
be carried from one country to another to settle balances of 
account ; and it must go from a place where it is less to 
one where it is more valuable. But to carry it to the East 
Indies, and pay it to a merchant there who the next week 
sends it to London, creates an expense of freight, interest, 
and insurance, without necessity. This is so plain in prin- 
ciple as to have given rise long ago to the practice and 
laws of bills of exchange ; but it was reserved for the pe- 
riod of which we are now speaking to give the fullest effect 
to this practice in this country, by establishing in our princi- 
pal commercial cities agents of merchants and bankers resi- 
dent in London, with authority to grant letters of credit to 
a merchant about to send abroad for a cargo. By virtue of 
such a letter, the master, or supercargo, or some merchant at 
the port of destination, is authorized to draw bills of ex- 
change on the merchant or banker in London for a specified 
amount ; and with these bills, or their proceeds when sold in 
the market of the place, the cargo is purchased. The bor- 
rowing merchant, on his part, agrees to place funds in Lon- 
don wherewith to meet the bills at maturity. It is obvious 
that this arrangement, besides saving large risks and expen- 
ses, must set free a great amount of capital. If employed 
only in safe and legitimate transactions, it would release for 
a considerable period all the capital necessary for them. But 
its effects did not stop here. At a period when confidence 
was rising and profits seemed certain, this new arrangement 
began to be resorted to as a new mode of obtaining means 



DEBTS OF THE STATES. 97 

with which to trade ; while at the same time the general 
confidence and the apparent prosperity made it very easy to 
obtain bills. Credit to an immense amount was thus cre- 
ated, and our whole commerce felt the stimulating effects of 
this new cause. 

While this change was taking effect, the war between the 
Government of the United States and the Bank of the United 
States was carried on. The public deposits were removed 
from that bank to State banks ; and, in anticipation of the time 
when the charter of that institution would expire, local banks 
were chartered all over the country. In seven years, from 
1830 to 1837, the nominal capital of these banks was increased 
from one hundred and ten millions of dollars to two hun- 
dred and twenty-five millions. Paper money multiplied still 
faster. This increase had a necessary effect on prices. 
The ease with which money was obtained, and the apparent 
profit from its use, led to the multiplication of engagements 
of all kinds and to every form of speculation, to an amount 
which, if it could be correctly ascertained, would even now 
fill us with astonishment. 

If we add that, while these causes were in full operation, 
and were gradually working together to produce their natural 
effects, some of the States began to receive and expend the 
great sums of money they had obtained upon loan ; and that 
our own country, in its agriculture and other important re- 
sources, had been making a real and great progress, while 
other countries, and especially England, were in a similar state 
of excitement, and were constantly reacting on us, — if we 
add all these circumstances together, we shall have little 
cause to wonder that the American people were brought into 
that most extraordinary condition in which their public debts 
were contracted. Former times may have exhibited as great 
madness, but it reached fewer persons. At no other period 
did the wild spirit of adventure become epidemic over so 
many countries, till it seemed to affect the whole world. 
At this time, commerce and manufactures had largely in- 



98 PROFESSIONAL AND MISCELLANEOUS "WRITINGS. 

creased. Wealth had been both accumulated and diffused 
to an extent before unknown. Wonderful improvements in 
the means of communication, across wide seas and through 
great continents, had brought all civilized and especially all 
commercial men within one common atmosphere of senti- 
ment and opinion. A long and unbroken peace, in whose 
sunshine population had increased, and production been stim- 
ulated, and private enterprise suffered to act freely, incited 
men to large undertakings. Some, who in former times 
would have found occupation suited to their daring tempers 
in the field, embarked their recklessness in commerce ; others, 
whose rashness under ordinary circumstances would have 
been soon checked by disaster or prevented from showing 
itself by want of means, found that their energy and love of 
adventure had made them leaders ; and others still, whose 
fears would have been roused by danger, lost all hesitation in 
the general confidence. Men acted as if a short and secure 
road to wealth had been discovered, on which all might 
travel, and he who went the fastest would be the first to 
reach the desired end. The result was such a morbid ten- 
dency to excess in all financial affairs as had never before 
been witnessed. In those countries where the currency was 
bank paper, the quantity of. money in circulation was enor- 
mously increased. Partly in consequence of this increase 
and partly on account of the sanguine hopes of men, prices 
continued to rise. All uses of capital seemed to be followed 
by certain and large returns, and men were therefore eager 
to borrow. All pursuits appeared to be safe and prosper- 
ous, and therefore those who had money were desirous to 
lend it. So much security was felt, that little security 
was asked ; and, to obtain money, nothing more was nec- 
essary than to show the lender that it was to be employed 
in some magnificent scheme, which stood well with the 
large expectations of the time, and was in season with the 
glorious summer of men's hopes. 

At this same period, and partly in consequence of this 



DEBTS OF THE STATES. 99 

extraordinary state of things, there arose in this country 
a vehement desire to construct great public works, chiefly 
such as facilitate and promote internal communication. 1 
We do not mean to say that the desire was then new. The 
people of this country are far too sagacious not to have 
discovered before that time the great value of such works, 
and the extraordinary natural opportunities for them pre- 
sented by this continent. They have not much taste for 
cathedrals and palaces, but " the useful magnificence of 
roads and bridges " excites their admiration. They knew 
well enough that a canal or a railroad, piercing a great tract 
of country, was of immense importance to them. They 
quite comprehended its objects, and did not underestimate 
its effects ; and when their hopes had been raised, and their 
judgment somewhat disordered by the fever in their veins, 
and they saw the means of accomplishing these great objects 
not only within reach, but almost thrust into their hands, 
it is not strange that they seized upon them with incautious 
eagerness, and expended them with a prodigality somewhat 
in proportion to the ease with which they were obtained. 

We repeat, therefore, that great injustice must be done 
to the people of this country, if the general state of men's 
minds and of financial affairs is left out of view in consider- 
ing the subject of their indebtedness. They have been rash, 
but it was at a time when rashness was epidemic. They have 
been improvident, but it was when prudence was generally 
considered little better than narrow-minded timidity. Their 
fault may have been very great, but it was very general, and 
it was a fault of which the creditor largely partook with the 
debtor. If it was rash and improvident in them to borrow, 

1 It would seem that contracting public debts for such objects was a 
new thing, for M. Say lays it down as one of his principles that " there 
is this grand distinction between an individual borrower and a borrowing 
government, that, in general, the former borrows capital for the purpose of 
its beneficial employment, the latter for the purpose of barren consumption 
and expenditure. Nations never borrow but with a view to consume out- 
right." 



100 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

it was rash and improvident in others to lend ; for, in these 
cases, the lenders had almost as good means of knowing the 
grounds of credit as the borrowers had. The borrowers 
were States, whose resources and means of payment are 
necessarily made public, so that all may know them. The 
works on which the money was to be expended were public 
works ; their character and purposes were known ; and 
when the loan was obtained for a specific and declared ob- 
ject, which it often was, the reasonableness and the probable 
results of the undertaking were open to the judgment of all 
intelligent men. In our opinion, it was the duty of the lender 
to exercise his judgment on these points. It is reasonable 
to expect that creditors will not only be vigilant, but 
suspicious ; for those qualities naturally grow out of the 
relation of debtor and creditor when it is formed, and they 
spring up whenever an attempt is made to form it. The 
fears of creditors, and of those who are asked to become 
creditors, not seldom lead to untrue judgments and harsh 
constructions, which are not to be blamed, because they 
contribute to the general safety. But when we find rash- 
ness where we had a right to expect caution, and a blind 
confidence in place of a careful examination into means and 
plans, we cannot doubt that the general infatuation must 
thereby be increased, and that they who have departed so 
widely from the qualities which usually belong to their posi- 
tion have done much to produce the mischief. 

Let us not be misconstrued into saying one word that 
tends to affect the legal and moral obligation of any contract 
made under these circumstances. What we have said does 
not touch that obligation. The parties were competent to 
make contracts. The borrowers were free States, whose 
public acts were done by the responsible agents and imme- 
diate representatives of the whole people. Of course it is 
not intended to intimate that such a degree of infatuation 
might exist as would relieve one of the parties from the 
obligation of its contracts. This would be to stultify a sov- 



DEBTS OP THE STATES. 101 

ereign State, — a process which would certainly be entirely 
new in the history of public law, and one to which, it is 
presumed, no State would very willingly submit. Our 
remarks have no reference to the binding force of the con- 
tracts. They are applicable, not to the will to pay, but to 
the ability to pay. They tend to excuse insolvency, not 
fraud. They present some reasons why a people who admit 
their indebtedness may at the same time, without dishonor, 
admit their inability to make payment. It is often danger- 
ous to run too close a parallel between public and private 
duties. The rules for the conduct of States and of indi- 
viduals are not identical, though it is not always easy to see 
just where they differ. But in this matter we can perceive 
no distinction between the case of an upright and well- 
meaning man who cannot pay his debts, and a State which 
is in the like predicament. The mere fact of insolvency 
furnishes no ground for inferring bad faith, or even bad 
judgment. The circumstances under which the debts were 
contracted, and especially the inducements which led to 
them, must be taken into the account before any decision 
unfavorable to the debtor can justly be made. And, if it is 
found that a State has been led astray partly by the insane 
confidence of its creditors, those creditors must bear some 
of the blame which always attaches to unsuccessful rashness. 
There is another fact, which it is important to keep in 
view. The real prosperity of the States at the time when 
these debts were contracted, especially when seen under 
the bright sunshine which then rested upon all things, was 
a cause, and to a great extent a just cause, of confidence. 
Their progress in every thing which makes a people great 
and powerful and rich had been unexampled. Look at 
their population : in thirty years, it had increased from seven 
millions to seventeen millions. This increase took place 
not in a country already overstocked, and where the means 
of employment and subsistence are constantly sought after by 
those who are too numerous to be supplied, but in a courn- 



102 PROFESSIONAL AND MISCELLANEOUS WHITINGS. 

try wide enough to afford ample room ; fertile to produce 
the means of subsistence ; full of all natural resources to 
invite and reward enterprise ; governed by laws that left the 
freest scope for the energies of the people. Let it be borne 
in mind, also, that this people came from that Northern 
stock which has always been so full of vigor ; that they 
have a hereditary right to energy of character ; and that, 
in this New World, they have been so stimulated by the 
opportunities and wants of their country as to be incapable 
of idleness, — finding no satisfaction but in exertion, and no 
rest, so to speak, but in continual labor. 

The results have corresponded to the causes. The do- 
mestic produce of the country exported in 1824 was of the 
value of $50,000,000 ; in 1830, it was $107,000,000. The 
post-office received and expended in 1837 about $4,000,000 ; 
and in 1830, only $2,000,000 : it carried the mail in 1836 
over 32,000,000 of miles of post-roads, though in 1830 it 
carried them over only 14,500,000 miles, and in 1800 the 
distance was only about 3,000,000 of miles. Our manu- 
factures had been created, and a great amount of capital 
had been invested in them. They had been extended till 
they were capable of supplying nearly all our own wants, 
and many of those of foreign nations. In some articles, 
they had reached a point where they were above foreign 
competition ; in others, they were fast approaching it. Re- 
garded at first as hostile to commerce on account of the 
restrictions which were partly designed to encourage them, 
they were now beginning to pay the debt which they had 
owed to foreign trade, by furnishing some of its safest 
exports. 

But these things, important as they are, give only a faint 
idea of what our people had accomplished. The stories of 
the old poets concerning heroes who built cities by the 
shore of the sea, and, by their own mighty energies and the 
direct assistance of divine power, created States that were 
secured by laws, supplied by industry, and adorned with 



DEBTS OF THE STATES. 103 

the arts of life, do not sound incredible or strange in our 
ears. In the lifetime of one generation, we have seen an 
extent of wilderness that seemed illimitable divided into 
cultivated farms; solitary inland seas made glad with the 
presence of an active and prosperous commerce ; great rivers, 
whose waters formerly reflected only the shadows of the 
forest, running by the luxurious abodes of civilized men, 
and bearing the varied products of labor; cities, which 
are already worthy of the name, filled with an indus- 
trious and intelligent population, springing up in the solitary 
places ; nay, great States, whose people are reckoned by 
millions, brought into existence and established during this 
short period. 

What wonder, then, that such a people should have felt 
confidence in their resources ? They knew their means had 
been sufficient to accomplish things which the rest of the 
world looked upon as impossible. They knew that the tide 
of prosperity had been rising so fast, that it had borne every 
thing along with it. Is it strange that they should have 
been led astray by hope, and brought into the midst of 
difficulty by want of caution ? Let us, then, be just to our- 
selves. Let us not sit down under the imputation that no 
more wisdom was to be expected from a government of the 
people. We deny that more wisdom was to be expected of 
any government in similar circumstances. Such mistakes 
are not new. Other governments have done such things 
before, and with far less excuse. 

We do not, however, acquit some of the States of all 
blame for contracting such great debts. They acted in- 
cautiously, and bitterly have they repented of it. But we 
do maintain that, when the circumstances under which the 
debts were contracted, and the objects for which the supplies 
were thus obtained, are fairly examined, those governments 
will not be found exposed to the severe censure which they 
have incurred. Being human, they were imperfect. Suc- 
cess is the sole test with common minds. They who are 



104 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

wiser will look at the causes of failure, and see whether 
these are such as ought reasonably to have been foreseen. 

It is easy for observers to see now that the unnatural 
state of things which existed in 1835 and 1836 could not 
long continue. A few sagacious men, so placed as to be 
able to survey the whole field of commerce, saw this at the 
time ; though we doubt if any one understood, or even con- 
jectured, how extensive the malady was. Even these few 
began at last to doubt whether they, or all the rest of man- 
kind, were mad. The bubble was so strong, and lasted so 
well, that it seemed almost impossible that it should be a 
bubble. 

But at last the fixed laws of trade began to produce 
their long deferred but necessary effects. Contracts of all 
kinds had multiplied to such an extent that a great deal of 
money was wanted to fulfil them. Prices were so high that 
much more money was needed to effect the transfer of prop- 
erty than in the ordinary state of the market. In the midst 
of the greatest apparent prosperity there was a great demand 
for money. The supply had increased enormously, but it 
was not sufficient. The banks did their utmost, but they 
could not keep up to the demand. Money became scarcer 
and dearer. There was now a choice among borrowers, and 
a discrimination between those whose credit rested on some- 
thing and those whose credit had no solid support. It was 
difficult for any one to get money. Many could not get it 
at all, and failures began to take place. The process went 
on, and confidence fell lower, and failures were multiplied 
daily. 

It may here be remarked that, if the Bank of England 
had curtailed its issues early in 1836, a check would have 
been felt, which would probably have gradually reduced our 
headlong speed, and prevented the great calamity of a fail- 
ure of all our banks. The managers of that bank certainly 
had the means of knowing that prices both in England a,nd 
the United States — and especially in the latter country — 



DEBTS OF THE STATES. 105 

were inflated most unnaturally ; that fictitious credit to an 
immense amount had been created, and was constantly 
increasing ; that speculative engagements were enormously 
multiplied, and that there was a constant drain of specie 
from Great Britain. Notwithstanding all this, the bank 
continued to extend its engagements until August, 1836, 
when, finding its specie slipping rapidly away, it began to 
fear for its own safety. Still, its course was rather vacil- 
lating for several months, until it finally gave a decisive 
blow by stopping the credit and cutting off the facilities of 
several of the American banking-houses in London. These 
banking-houses were therefore obliged to call on our mer- 
chants for immediate payment, and our merchants required 
specie from the banks wherewith to make payments. At 
that moment, no ordinary supply of specie could have pre- 
vented a suspension of payment by the banks. The imme- 
diate issue of more than a million sterling of bonds of the 
Bank of the United States of Pennsylvania, designed to 
serve as remittances, had no perceptible effect. There was 
very little real exchange to meet the great and pressing 
want. Exchange based on credit had ceased to exist : 
nothing remained but to send specie, and of course it could 
not be obtained in the great sums which were needed, with- 
out causing all the banks sooner or later to fail. 

But it should be remembered that this suspension took 
place, not in a state of exhaustion, but after years of unex- 
ampled gains, and after the country had made real and 
great advances in all its permanent sources of wealth. 
The fearful rate at which we had been moving rendered 
some check inevitable ; but we had been all the time mov- 
ing onward, and mainly in the right direction. The check 
was sudden and violent. It stopped us short, and we stood 
still. For some months, all the energies of the country 
were employed in liquidating and paying debts. It is 
speaking within bounds to say that within a few months 
engagements amounting to many hundreds of millions were 



106 PROFESSIONAL AND MISCELLANEOUS "WRITINGS. 

paid off. Imports almost ceased, our crops went to market, 
specie flowed in, and at the end of the year 1837 our foreign 
commercial debt was nearly paid. 

The country was then in a condition to resume the pay- 
ment of specie through its banks. But the United States 
Bank of Pennsylvania, and some other great institutions, 
were not ready. During the years of high prices, they had 
lent their capital on paper which rested only on the ex- 
aggerated and unreal values of that period ; and an immedi- 
ate return to specie payments would have shown that their 
capital had been very seriously impaired. The United 
States Bank of Pennsylvania, therefore, at first opposed the 
resumption of specie payments ; and subsequently, when 
compelled to come into the arrangement, it seems to have 
adopted the bold measure of attempting to bring back the 
unnatural state of things which had existed before May, 
1837 ; hoping that, by means of high prices and unlimited 
credit, it might be able gradually to withdraw itself from 
its dangerous position. It entered largely into the purchase 
of State stocks, speculations in cotton, and other trans- 
actions. It was impossible in the nature of things that 
this scheme should succeed ; but it had some effect. Many 
began to think that the reverses of 1837 were small affairs, 
and that they were already overcome ; that the disease was 
cured, and the patient restored to a sound state and ready 
for action. Our foreign commercial debt had been paid 
with so much promptness, that European capitalists formed 
a very high opinion both of our resources and our honor, 
and they took the stocks of the States as freely as if they 
had been gold and silver. 

But the day of calamity was again at hand. The Bank 
of England again found itself in a critical condition. 
Money became scarce, beyond all precedent, in England; 
prices fell ; stocks were unsalable ; the Bank of the United 
States of Pennsylvania again stopped payment, and its ex- 
ample was followed by every bank south of Philadelphia. 



DEBTS OF THE STATES. 107 

Men's eyes were at last opened. They saw that the country 
had not recovered from the effects of the years of specu- 
lation, and that the attempts to return to a false position 
had but increased their difficulties. A panic succeeded. 
All property seemed for a time to have lost its value. 
These were necessary results of the former distempered 
state of affairs, and this depression was the only method by 
which a sound condition of things could be produced. But 
it was a severe operation. 

In some of the new States, it was difficult even for the 
wealthy to obtain money for the daily uses of life. We 
have heard of farmers, owning large and well-stocked farms, 
who could hardly get money enough to pay the postage on a 
letter. They had scarcely any currency, and most of that 
which they had was bad. In the commercial States, mat- 
ters were but little better. Failures were almost innumer- 
able. Trade had fallen off, and when prosecuted was 
hazardous. A deep gloom settled upon men's minds. Gov- 
ernments felt it as much as individuals. Their ordinary 
resources were diminished. Their means of obtaining 
extraordinary supplies were lessened in proportion to the 
general distress. The physical means of making payment 
of their debts were wanting in some States, for there was 
no money to be had. The people were amazed at the extent 
of their own disasters, and afraid to act in any way lest they 
should run into new mistakes. It was in such a posture of 
affairs that some of the States, to which we shall more par- 
ticularly refer, refused, and others omitted, to provide for 
the interest which had become payable on their debts. 

The first of these cases which we shall notice is that of 
Pennsylvania. On the first of August, 1842, the interest on 
its funded debt became due, and was not paid. It having 
been foreseen that there would be no money in the treasury 
with which to meet the dividend, — amounting to eight 
hundred and seventy-one thousand dollars, — an act was 
passed by the legislature, directing the treasurer to borrow 



108 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

the sum necessary for its payment, and, in the event of his 
being unable to obtain it on the terms proposed, authorizing 
the issue of certificates to the persons entitled to dividends 
of interest, for the sums due to them, payable in August, 
1843, with interest at the rate of six per cent. A law was 
subsequently passed, authorizing the issue of certificates in 
payment of the two succeeding dividends, bearing interest 
at the rate of six per cent per annum, and redeemable in 
August, 1846. These certificates, with the interest which 
has accrued upon them, are yet unpaid. 

The whole amount of the funded debt of this State on 
the first of January, 1843, was $37,937,788.24, payable at 
different periods, and in different sums, the last of which will 
fall due in the year 1870. 1 The internal improvements, for 
the construction of which the great bulk of the debt is due, 
consist of seven hundred and ninety-three miles of railways 
and canals which are completed, and one hundred and forty 
miles of canals in progress and nearly completed in January 
last. The principal work, or rather chain of works, is that 
between Philadelphia and Pittsburg, extending nearly the 
whole length of the State, — a distance of three hundred 
and ninety-five miles, — and connecting the Atlantic with 
the Ohio River and the great Western waters. 

1 This debt was contracted for the following purposes : — 

For canals and railways §30,533,629.15 

To pay interest on the public debt 4,410,135.03 

For the use of the treasury 1,571,689.00 

Turnpike, State roads, &c 930,000.00 

Union Canal 200,000.00 

Eastern Penitentiary 120,000.00 

Franklin Railroad 100,000.00 

Pennsylvania and Ohio Canal 50,000.00 

Insane Asylum 22,335.06 

$37,937,788.24 
To this may now be added the amount of certificates 
authorized to be issued in payment of the last two 
gemi-annual dividends of interest, amounting to . . §1,787,454.89 

Making a total of $39,725,243.13 



DEBTS OF THE STATES. 109 

These are the objects on which far the greatest part of 
the money borrowed by the State has been expended. It 
is manifest that such works must be highly important and 
useful to Pennsylvania, independently of the revenues which 
they may yield. From various causes, which our limits do 
not permit us to notice, these revenues have thus far disap- 
pointed the expectations of the people. But the Governor 
presented to the legislature in January last a very encour- 
aging account of the income from the works during the year 
then just elapsed ; and facts may be cited which go far to 
prove that the profit which the State will hereafter derive 
from them must be very great. 

Pennsylvania contains 1,724,000 free people, inhabiting 
a territory of 47,000 square miles. The soil is generally 
fertile, and, being under good cultivation, the amount of its 
agricultural products is very great. Their annual value was 
estimated in 1842 to be $126,620,617. The manufactures 
during the same period, including iron, were estimated at 
upwards of $64,000,000. The coal mined in the State during 
the same time was worth about $9,000,000. It appears, 
then, that the annual products of the State amount to the 
enormous value of $200,000,000. The annual charge upon 
the State for the interest upon its debts is, in round numbers, 
$2,000,000. Suppose the public works were to yield no 
revenue at all, and the whole of this charge were to fall on 
the people in a direct tax : it is only one per cent on their 
annual products. A capitation tax of one dollar a head 
would nearly pay it. Of course, no burden of debt can be 
pronounced heavy or light except by comparing it with the 
resources and means of the debtor, and such a comparison 
will show that Pennsylvania is not heavily burdened. Her 
vast and easily wrought mines of the best kinds of coal, 
lying side by side with inexhaustible treasuries of the richest 
iron ore; her abundant supply of water-power; her fertile 
soil, temperate climate, and industrious and frugal popula- 
tion, — are resources so immense that even her great debt 



110 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

appears but a light incumbrance. There cannot be the 
smallest doubt that she is able, without the least embarrass- 
ment, to fulfil all her engagements. It is a lamentable fact 
that she has not done so ; but there has been a concurrence 
of causes to produce this result, most of which have no 
connection with the honesty of her people. We deny that 
any man has the right to say that Pennsylvania has acted 
fraudulently. Mistakes in judgment have been committed, 
and we are sorry to add that there has been some remiss- 
ness of conduct. There has also been clearly shown a 
disposition to do right. The measures taken by the legis- 
lature to raise the necessary revenue, under the peculiar 
circumstances of the times, have proved insufficient; but 
they were adopted for that purpose, and were such as not 
fairly to be open to the charge of being mere pretences. 
Besides raising more than 1300,000 for the support of the 
schools, the ordinary expenses of the government are fully 
provided for by taxes of some years' standing. In addition 
to these, which are indirect taxes, the legislature voted a 
direct tax of one mill upon every dollar of taxable property 
in the State ; and by a law passed in 1842, which was de- 
signed to go into effect in 1843, this tax was doubled. The 
produce of the first-mentioned tax of one mill was about half 
a million of dollars ; and if another half million were raised 
by the law last mentioned, as the legislature designed to do, 
the sum, together with the revenue actually realized from 
the public works, would pay about nine tenths of the inter- 
est on the funded debt. But there was some ambiguity in 
the law ; and in some counties advantage was taken of the 
doubt thus created to avoid payment of the tax. This is 
one of the embarrassments in the details of a law which 
often occur in practice ; but it will undoubtedly be remedied 
by further legislation. The State has also had a large 
unfunded debt, due chiefly to contractors on the public 
works ; and to the payment of this sum the revenues of the 
State have been applied. We understand that this unfunded 



DEBTS OF THE STATES. Ill 

debt is now paid, and that for the future the revenues from 
direct taxation and the public works will be applicable to 
the payment of the interest on the State stock. We have 
already said that they will be sufficient to pay about nine 
tenths of it ; and, if the income from the public works should 
not increase, it will only be needful to provide for the 
arrears of interest since August, 1842, and for the remaining 
tenth part of the interest hereafter to accrue. Those who 
know Pennsylvania entertain no great doubt respecting her 
future course; and the moment the State shows a deter- 
mination to pay punctually, there will not be the smallest 
difficulty in obtaining by a permanent loan the means of 
paying the arrears of interest. 

Maryland is another delinquent State, which has failed 
during the last two years to make payment of the interest 
on her public debt. The bonds of this State which have 
been issued amount to a little more than $15,000,000 ; but of 
these about $ 3,175,000, issued to the Baltimore and Ohio 
Railroad, have not been negotiated ; and, should they be 
negotiated, the interest on them will be paid by the com- 
pany. Of the residue, nearly $ 1,300,000 are the property 
of the State, having been purchased by the income of the 
sinking fund. These bonds are subject to different rates of 
interest, the greater part being at five per cent, and the 
whole interest, after deducting what goes to the sinking 
fund, amounting to something less than $600,000 a year. 

The whole of this debt, with the exception of $215,947, 
was contracted for purposes of internal improvement, partly 
by subscriptions to stock in canal and railroad companies 
on account of the State, and partly by grants in the form 
of loans to such companies, they being bound to pay the 
interest on the bonds, and ultimately to repay the principal ; 
the works of the said companies being mortgaged for the 
security of the respective debts. In making these large 
advances and entering into these engagements, the legis- 
lature of the State relied upon the income of the works to 



112 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

meet the interest of the debt. In this expectation they have 
been disappointed. The Baltimore and Ohio Railroad alone 
has made an adequate return for the expenditure. The 
sum of 11,022,000, invested in the stocks of this railroad, 
earns an income of seven per cent per annum. The sum of 
12,232,000, invested in the bonds and stock of the Balti- 
more and Susquehannah Raikoad, has made some small 
return, and there is a prospect that the income from this 
source will slightly increase. On $1,000,000, loaned to the 
Susquehannah Tide-water Canal, no return has yet been 
received ; but it is confidently anticipated that this canal 
will shortly be able to pay the interest on the loan, amount- 
ing to 155,000 per annum. The largest investments have 
been made in the stocks and bonds of the Chesapeake and 
Ohio Canal Company. This canal being yet unfinished, 
and requiring a farther sum of a million and a half or two 
millions of dollars to complete it, no income is expected from 
it until the means shall be found to raise that sum, and 
extend the canal to the coal-mines near Cumberland. Some 
smaller advances, which have been made to other companies, 
are not expected to make any return. The annual income, 
therefore, which can be for the present anticipated from 
the public works, is limited to about $150,000. The residue 
of the interest, amounting to about $450,000, must there- 
fore be met by taxation. A direct tax, sufficient for this 
object, was voted by the legislature ; but, in consequence of 
the severe embarrassments of the last three years, and of 
the want of a proper system for the collection of direct 
taxes, a large proportion of the taxes for the years 1841, 
1842, and 1843 has been suffered to fall in arrear, and in 
consequence the means of the treasury have been inade- 
quate to the payment of the interest on the debt. From 
January, 1842, this interest has not been paid, except that 
for some part coupons have been issued, promising payment 
at a future day, and receivable in payment of taxes. For 
the restoration of the credit of the State, it is necessary 



DEBTS OF THE STATES. 113 

that the arrears of interest should be provided for, which 
can be done in the manner spoken of in the case of Penn- 
sylvania, and by enforcing a more prompt payment of taxes. 
The taxes already levied appear to be fully sufficient for this 
object, if collected. Maryland has other revenues, inde- 
pendent of the direct taxes, amply sufficient for meeting all 
the other expenditures of the State. These taxes, to nearly 
the whole amount now levied, will be necessary to pay the 
interest on the debt until an income shall be derived from 
the large investments in the loans or stocks of the Chesa- 
peake and Ohio Canal and Susquehannah Railroad, and for 
this purpose these taxes must be enforced. As levied by 
the legislature, they amount to twenty-five cents upon every 
hundred dollars of taxable property in the State. We do 
not say this is a trifling burden. It requires resolution to 
sustain it. But the case presents every motive which can 
operate upon the minds of honorable men to induce them to 
make the effort. The money was borrowed by their agents. 
It has been expended upon their soil. Its results thus far 
may not be such as they desire ; but for this their own 
agents, and they themselves, who selected those agents, and 
from year to year sanctioned their proceedings, are alone to 
be blamed. The debt is a just debt. They can and they 
will pay it. We look upon the position and future conduct 
of this State as of the greatest importance to the honor, the 
credit, and the future reputation of the whole country. It 
occupies a position, and is placed in circumstances which 
render its action almost decisive of the fate of this great 
question of public morals. Pennsylvania can pay almost 
without an effort. Her debt is really nothing compared with 
her resources. Indiana and Illinois are differently situated, 
and at present cannot pay. Maryland occupies an inter- 
mediate position. She can pay, but it costs her a strong 
effort to do so. Her condition is such as to try her sense of 
honor. Hers is the opportunity to settle the question 
whether a popular government is too selfish to be just. Her 



114 PROFESSIONAL AND MISCELLANEOUS "WRITINGS. 

people have it in their power to say to the world : " We are 
capable of governing ourselves, for we can make sacrifices 
for the sake of duty and honor : no human power can force 
them upon us, but we freely make them. We owe alle- 
giance neither to kings, nor princes, nor any earthly poten- 
tate ; but we obey His will who created us, and we are 
governed by His laws. Freely and cheerfully, because 
we know it to be our duty, will we do this thing." Let 
the people of Maryland remember also that, if they make 
this effort, they will transmit to their children the inherit- 
ance of an untarnished honor ; that they will lay the foun- 
dations of public prosperity deep and strong in the public 
faith ; that the sacrifices which they are now called upon 
to make cannot long be necessary, and will grow less with 
the increase of population and wealth and the rising income 
from the public works. That they may see these things, 
and act as if they saw them, is the earnest wish of many 
who love their country, and think that its honor and wel- 
fare are deeply involved in the issue. 

The miserable sophistry — for we can call it by no better 
name — with which some have attempted to delude the 
people of Maryland into a belief that their legislature had 
not the constitutional power to contract these debts would 
not be worthy of a moment's attention, if the subject on 
which it is employed were not of such importance. There 
is an article in the Bill of Rights of this State of the follow- 
ing tenor : " Every person in the State ought to contribute 
his proportion of public taxes for the support of government, 
according to his actual worth in real and personal prop- 
erty." The argument is that the legislature has power to 
tax the people only "for the support of government; " that 
the construction of railroads and canals is not one of the 
legitimate objects of government, and therefore it is not 
within the constitutional power of the legislature to tax the 
people to make or pay for them. 

We can hardly call this an ingenious argument, for in- 



DEBTS OF THE STATES. 115 

genuity would certainly have devised something which 
should have the appearance of truth ; but here is involved 
so palpable a falsehood that it is difficult to believe it could 
ever impose on anybody. Not one of the legitimate objects 
of government to build railways and canals ! How is this 
question to be settled ? First of all, by the universal prac- 
tice of all civilized governments. That which every civilized 
people, under every form of administration, has caused its 
government to do, may well be thought to be within the 
legitimate powers of a government. And what people has 
ever doubted that the building of roads and bridges was a 
subject not only fit for the action of government, but neces- 
sarily under its exclusive control ? Have the people of 
Maryland ever doubted this? Let them consult their own 
statutes and ordinances, and see whether, from the first 
moment when they acted in a political capacity, this subject 
has not always been ranked among the powers which the 
government has exercised. Not only has this been the uni- 
versal practice, but it is absolutely requisite that the practice 
should continue. Keeping open the means of communication 
between one part of the territory of a State and another, 
and affording facilities of passage for persons and property 
over land by means of convenient roads, and over the waters 
by means of bridges and ferries, is absolutely necessary. 
Hardly any object of civil society can be accomplished with- 
out them, and the right of eminent domain not only always 
has been, but always must be, exercised for this end. It 
has been seriously doubted whether a government acts 
wisely in delegating this power to private corporations, 
even where they are held in check by the legislature; but 
we never heard it suggested that a government could dele- 
gate this power without first possessing it. It is very clear, 
therefore, that these objectors would never have a road 
made, or a bridge built, or a ferry established, or a canal 
dug, within the limits of their State: not by the govern- 
ment, for it is not within the powers delegated to the State ; 



116 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

not by those authorized by the government, for the adminis- 
tration certainly cannot empower a corporation or an indi- 
vidual to take land and other private property for a purpose 
which the government itself has not a right to effect. We 
suppose no one will be so hardy as to attempt to make a 
distinction between a ferry and a canal, or a bridge and 
a railroad. The power of States over this subject arises 
from the nature of the object to be accomplished, which is 
to effect an easy, cheap, and safe passage; and of course it 
is restricted to no particular means. 

The truth is the whole argument betrays lamentable 
ignorance of the nature and objects of all social institutions, 
or it betrays something worse. The first object of govern- 
ment undoubtedly is to secure its citizens from violence and 
wrong. But this by no means exhausts its powers or fulfils 
its duties. It may do much towards the increase of knowl- 
edge, the advancement of education both religious and secu- 
lar, the progress of the sciences, the promotion of a free 
intercourse between communities and nations, and the in- 
crease and diffusion of wealth and comfort; and what it 
can do towards these objects, securely and wisely, it is 
bound to do. This duty has been felt by all governments, 
and to some extent has been performed by all. Great pub- 
lic works, designed for the common benefit and executed 
by the combined power of the whole people, have always 
been looked upon as monuments of civilization, and of the 
wisdom and virtue of the administration which planned 
them. It is now for the first time denied that they are 
within its legitimate powers. 

Of course we do not here refer to the national government. 
The question whether the Constitution of the United States 
gives the power to construct roads within the States is an 
open and difficult one ; but it has nothing to do with the 
subject here discussed. It turns not on the general ques- 
tion whether such works are legitimate objects for the 
action of government, but on the question whether this 



DEBTS OF THE STATES. 117 

power is granted in the Constitution of the United States. 
The question in Maryland is exactly the opposite ; namely, 
Has this power been taken away from the legislature by the 
Bill of Rights ? It must exist, unless it was abrogated by 
the article we have already quoted. 

The word repudiation, in the sense in which it is now 
commonly used, was first adopted in the State of Missis- 
sippi. It occurred for the first time, we believe, in the 
message of the Governor to the legislature of that State in 
January, 1841, in which he adverts to the plan of " repudi- 
ating the sale of certain of the State bonds, on account of 
fraud and illegality." The material facts in reference to 
the action of this State upon the subject of its debt are 
these. In 1838 the State chartered the Mississippi Union 
Bank, and, in order to provide capital for the institution, it 
was enacted in the charter that the directors might borrow 
$15,500,000 ; and that the Governor might issue seven thou- 
sand five hundred bonds for $2,000 each, bearing five per 
cent interest, and redeemable in twelve, eighteen, and 
twenty years, and deliver them to the officers of that insti- 
tution from time to time, in proportion to the amounts sub- 
scribed for bank stock, the price of which was to be secured 
to the satisfaction of the directors. The bonds were made 
negotiable by the indorsement of the president and cashier 
of the bank. By an additional act, the Governor was author- 
ized to subscribe in behalf of the State for $5,000,000 
of the stock of the bank, and he did so. In June, 1838, 
he delivered to the bank two thousand five hundred bonds, 
amounting to $5,000,000, payable in twelve and twenty 
years from the fifth day of February, 1838, and bearing 
five per cent interest from their date. The charter required 
the bank to appoint three commissioners for .the sale of the 
bonds, and imposed this restriction on their authority, that 
the bonds should not be sold under their par value. On the 
18th of August, 1838, the commissioners sold all the bonds 
to Mr. Biddle for the sum of $5,000^00, payable in five 



118 PROFESSIONAL AND MISCELLANEOUS ■WHITINGS. 

equal instalments, of one million each, on the first day of 
November, 1838, and the first days of January, March, 
May, and July, 1839, without interest. This money was 
punctually paid to the bank, which went into operation, 
and before January, 1841, lost all its capital. 

Now we feel constrained to say that, if this matter had 
rested here, the State of Mississippi would not be legally 
bound to pay this debt. We think the commissioners did 
not conform to their authority in making the sale.- They 
were in terms prohibited from selling the bonds under their 
par value. The par value of a bond is the amount which 
is due upon it ; and this includes interest as well as princi- 
pal. This seems to us to be the fair meaning of the words 
of the charter, and any other construction would render the 
restriction itself nugatory ; since, by allowing the interest to 
accumulate long enough, the commissioners would have had 
it in their power to obtain $5,000,000 for the bonds, though 
at the very moment when they sold them $7,000,000 might 
be due upon them. They made such a sale as not to receive 
in cash an amount equal to the liability of the State on the 
bonds, and therefore we believe that they exceeded their 
authority. We think also that the State had the legal 
right to insist at a proper time on this want of authority, 
even against the subsequent purchasers of these bonds; 
because any one who takes a title through an agent is bound 
by law to look to the authority delegated to him, and to see 
that he acts or has acted within its scope in making the title. 

But we need hardly say that the question whether a 
sovereign State shall avail itself of its legal rights depends 
upon considerations quite distinct from the mere rights 
themselves. Rules of jurisprudence are necessarily general ; 
and, being general, they may, and sometimes do, work some 
injustice. A State, like an individual, ought to place itself 
quite above these general rules, and consider only the justice 
of the particular case. It is due to its own dignity, to the 
magnitude of the case, to the importance of preserving the 



DEBTS OF THE STATES. 119 

great fountain of power and justice pure, that the most 
enlarged and liberal rules of equity should be observed. It 
is due to its position, being both a party in interest and a 
judge, to venture on no decision which will admit of ques- 
tion. And so the State of Mississippi must have thought, 
for so it acted. 

In responding to the message of the Governor in January, 
1841, the legislature resolved, — 

" First, That the State of Mississippi is bound to the holders of 
the bonds of the State, sold on account of the bank, for the amount 
of the principal and interest. 

" Secondly, That the State of Mississippi will pay her bonds and 
preserve her faith inviolate. 

" Thirdly, That the insinuation that the State of Mississippi 
would repudiate her bonds and violate her plighted faith is a 
calumny upon the justice, honor, and dignity of the State." 

These resolves are such as might be expected from the 
legislature of a free State under such circumstances ; for a 
fact which we have not yet stated was known to that legis- 
lature, and in our judgment is sufficient to settle the ques- 
tion. The legislature met in 1839 for the first time after 
the sale of the bonds. Only one fourth of the purchase 
money had then been paid over to the bank. The facts were 
communicated by the Governor to the legislature, and they 
resolved : " That the sale of the bonds was highly advan- 
tageous to the State and the bank, and in accordance with 
the injunctions of the charter, reflecting the highest credit 
on the commissioners, and bringing timely aid to an embar- 
rassed community." The next legislature, which assembled 
in 1840, appointed a committee on the affairs of the bank, 
but uttered not one word respecting the sale of the bonds. 

But the constitution of Mississippi contains a provision 
that no law shall be passed to raise a loan of money upon 
the credit of the State for the payment or redemption of any 
loan or debt, unless it be sanctioned by a majority of each 
house, the yeas and nays being entered on the journals ; and 



120 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

be then referred to the next legislature, public notice where- 
of is to be given in the newspapers three months before the 
election, and unless then passed by a majority in each 
branch of this second legislature. Upon the ground that the 
State was not originally bound to pay this debt, and that the 
illegal acts of their agents had not been ratified by two suc- 
cessive legislatures, after public notice in the newspapers, 
Governor McNutt made his appeal to the people of the 
State ; and in 1842 a majority of the members of both 
branches of the legislature were found to be in favor of 
repudiation. 

But although a majority of the people of Mississippi 
seem to have formed at that time an erroneous opinion on 
this question, and although we think meanly enough of the 
honesty of their advisers, we should not hastily adopt the 
conclusion that the majority are hopelessly in the wrong. 
There has been from the first a large body of intelligent 
and honorable men in that State who determined to do their 
duty upon this great question, and they are now manfully 
engaged in the work. They have exhibited deep legal learn- 
ing, sound logic, a clear perception of the great principles 
of justice and duty, and a calm determination which must 
and will prevail in the contest. It may not be during this 
year or the next, but it appears to us certain that the peo- 
ple of this State will see the truth and act in accordance 
with it. Sufficient allowance has not always been made 
for the peculiar circumstances of the case. An intelli- 
gent foreigner, who feels a just indignation when he hears of 
repudiation, probably knows the difference between a High- 
land chieftain and a London merchant, but is profoundly 
ignorant that differences quite as great exist between the 
people of Mississippi and the people of Massachusetts. 
Probably there are few points in which these differences 
would be so likely to be exhibited as upon this matter of 
paying debts. To pay debts punctually is the point of honor 
among all commercial people. But the planters of Missis- 



DEBTS OF THE STATES. 121 

sippi do not so esteem it. They do not feel the importance 
of an exact conformity to contracts. It has not been their 
habit to meet their engagements on the very day, if not quite 
convenient. Certainly they attach no idea of dishonesty to 
such a course of dealing. They mean to pay, but they did 
not expect, when they contracted the debt, to distress them- 
selves about the payment. If a friend wants a thousand 
dollars for a loan or a gift, he can have it, though perhaps a 
creditor wants it also. We do not mean to intimate that 
there are no high qualities in such a character ; but they 
are different from those which make good bankers and mer- 
chants, and therefore bankers and merchants ought not to 
expect such men to look at a debt just as they do. In time 
they will see the substance of the matter and act accordingly. 
Convince them that their State is now pursuing an arbitrary, 
unfair, and oppressive course of conduct, and they will take 
care that it is pursued no longer. They have been in great 
pecuniary distress. Their condition has been so bad that 
they have looked upon a creditor demanding payment of his 
debt as little better than an enemy, and to be treated accord- 
ingly. They have seen that the institution which had the 
proceeds of these bonds was managed as if it had been a 
gambling-house. They have been told by those in whom 
they had been accustomed to put confidence that the sale of 
these bonds was a part of the same nefarious course of con- 
duct which ruined the bank, and that, if they should pay the 
debt, they must do it for the benefit of those who defrauded 
the State in making the purchase of the bonds. We may 
deeply regret that they acted in conformity with these views. 
We may believe that the conduct of the State has been 
unwise and unfair ; that it has shown any thing but that dig- 
nified caution, and that clear perception of the great princi- 
ples of justice, equity, and clemency, which a sovereign State 
should always exhibit in its dealings with individuals, espe- 
cially where it is both party and judge. But let us not show 
the same want of moderation by running into extremes 



122 PROFESSIONAL AND MISCELLANEOUS WHITINGS. 

ourselves ; let us not exhibit the same want of charity by 
believing that a majority of the people of that State are 
knaves. Their affairs are now improving. The people are 
recovering from the sore and irritable state into which they 
had fallen. Allow time for them to see the truth, which 
the high-minded men of that State know so well how to 
exhibit and enforce, and we shall find that, though the 
people may sometimes make a great mistake, they mean to 
do right, and they will discover and correct the error. 

The State of Michigan has denied its obligation to pay a 
part of its outstanding bonds. The material facts are that, 
by an act of the legislature of that State passed on the 21st 
of March, 1837, amended by another act passed on the 15th 
of November in the same year, the Governor was author- 
ized to negotiate for a loan of five millions of dollars, which 
was to be expended on . the public works. Under this 
authority, the Governor, on the 1st of June, 1838, entered 
into a contract with the Morris Canal and Banking Company 
of the city of New York, by which he constituted that com- 
pany the agents of the State to make sales of the five mil- 
lions loan. The power of the Governor to enter into this 
contract with the Banking Company has not been questioned. 
Acting under this agency, the Banking Company, before 
the 15th of November, 1838, sold to various persons bonds 
amounting to §1,187,000, and duly paid over to the State 
the proceeds of those sales. On the first day of July, 1841, 
the interest on the bonds so sold became payable, and, the 
State not having made provision for its payment, it remained 
unpaid. Reasons for this default were assigned by the legis- 
lature at a subsequent period, which seem to us to be well- 
founded and to afford sufficient excuse for it ; but our limits 
will not permit us to examine or even to state them. Suffice 
it to say that, in February, 1843, the legislature took the 
subject into consideration, declared that the State was 
" legally and equitably bound to provide for the payment of 
the principal and interest of these bonds," covenanted with 



DEBTS OF THE STATES. 123 

the holders to fund the interest till July, 1845 pledged the 
revenue from the public works to the payment of the interest 
which should accrue after that time, and voted a direct tax 
to be assessed and levied in the same manner as the other 
State taxes, in order to pay any deficiency of the interest 
which that revenue might fail to meet. Thus far the con- 
duct of the State has been such as the country had a right 
to expect. 

We wish it were in our power to approve of its conduct 
in respect to the residue of this loan, the history of which is 
briefly as follows. The Morris Canal and Banking Com- 
pany met with great difficulties in the* sale of the residue 
of these bonds ; and being called on by the Governor in 
November, 1838, to state the account of their sales, and to 
make such suggestions as they should think important con- 
cerning future proceedings, replied by a proposal to pass the 
whole amount of the bonds at par, after deducting their 
commission as agents, to the credit of the State of Michi- 
gan : provided the Governor would deliver to the Banking 
Company the whole of the bonds at once, and take the obli- 
gation of the United States Bank of Pennsylvania to pay 
three fourths, and of the Morris Canal and Banking Com- 
pany to pay one fourth of the amount, at certain periods 
which had been fixed in the contract of agency before men- 
tioned. To this proposal, the Governor replied that he had 
no objection to the details ; that their contract of agency 
gave them full powers to act as the interest of the State 
required, and that they must take the responsibility of decid- 
ing whether this was the best thing that could be done for 
the interest of the State. The Banking Company say in 
answer that they think it is best for the State to accept the 
offer which had been made, and that they have closed the 
bargain. The Governor afterwards delivered the bonds, took 
the obligations of the United States Bank of Pennsylvania 
and the Morris Canal and Banking Company for the price, 
and in his next message announced the sale to the legislature, 



124 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

and communicated to them the documents respecting it. 
The legislature interposed no objection. Subsequently, the 
State received from the purchasers about -$1,000,000, in 
part payment of their obligations ; and then the United States 
Bank of Pennsylvania and the Morris Canal and Banking 
Company having both become insolvent, and having failed 
to pay the balance of the purchase-money, the State de- 
clared that it owed upon these bonds so much as the pur- 
chasers had paid, and that it was ready to issue new bonds 
for that amount upon the surrender of all the bonds so sold, 
and that as to the residue " it was a transaction between the 
State and the purchasers, and their agreements are to be 
judged of by the circumstances attending them." 

It only remains to add that these bonds, all of which 
went to the United States Bank of Pennsylvania, were 
pledged by that bank to various banking houses in Europe to 
secure money previously borrowed, money advanced at the 
time of making the pledges, and subsequently paid on the 
faith of the pledges ; that the bonds are, in form and by law, 
negotiable ; and that no evidence has ever appeared, so far 
as we know, that either of those banking houses had knowl- 
edge at the time they took the bonds, or when they after- 
wards advanced money upon them, of any defect in the title 
of the United States Bank of Pennsylvania. 

Now we should agree at once that, if the United States 
Bank of Pennsylvania and the Morris Canal and Banking 
Company held these bonds, the State might justly refuse to 
consider any greater amount of them as due than had been 
paid for. The law of all civilized countries would in some 
way come to this result. But every system of law with 
which we have any acquaintance, and certainly the law of 
Michigan, makes a distinction between the case of these 
banks and that of bona fide purchasers. We believe the 
principle to be universally admitted that, whenever a pur- 
chaser of property acquires a title from the seller which he 
can transmit although that title be tainted with fraud, if he 



DEBTS OF THE STATES. 125 

sells to a bona fide purchaser who parts with his money or 
any other thing of value on the faith of the property, such 
purchaser obtains a valid title purged of the fraud. This 
principle is not only well established, but society could 
hardly get along without it ; and it is most often and most 
liberally applied to the sales and transfers of negotiable secu- 
rities. That the United States Bank of Pennsylvania had 
a title which it could transmit does not admit of a doubt. 
The sale negotiated by the Morris Canal and Banking Com- 
pany might have been open to some objection, as they were 
themselves the agents to sell, and seem to have been in some 
way interested in the purchase ; but surely it is too late to 
object, after the Governor, who was the immediately author- 
ized agent of the State, had, with a knowledge of all the 
facts, ratified the contract and delivered the bonds, and 
after the legislature, with all the facts before them, had 
interposed no objection, and had taken one third of the 
purchase-money. The only possible question therefore is 
whether the European bankers parted with their money in 
good faith ; and we are not aware of any evidence to the 
contrary. The legislature do not assert that these bankers 
had notice, either actual or constructive, of any fact which 
would deprive them of the protection due to all bona fide 
purchasers of negotiable securities. The mere fact that the 
bonds had not been paid for, even if known to the persons 
to whom they were pledged, would not have this effect. It 
would be monstrous to say that, because property bought 
on credit has not been paid for, the holder cannot give a 
good title to it. Such a doctrine would overset half the 
sales made in the country. But we repeat we have never 
seen any evidence or any reason to believe that even this 
fact was known to the foreign bankers. To do the legisla- 
ture justice, both by their committee and by the act relating 
to this subject, they preserve a silence which is dignified and 
proper, if they have no satisfactory evidence of such notice, 
but believe that inquiries made afterwards may possibly 



126 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

elicit it. And this we understand to be their position. 
But even without such evidence we cannot doubt the equi- 
table and legal claim of the holders of these bonds to be 
paid what is due on them to the extent of the amount for 
which they were pledged. And we add that we entertain 
as little doubt that the State of Michigan will hereafter act 
according to this view of the subject, and adopt in reference 
to these bonds the same just and honorable measures which 
it has already taken concerning the others. 

The State of Louisiana has loaned its credit to several 
banking corporations the capital stock of which was secured 
by mortgages on real estate. The bonds issued by this 
State amount to about 122,000,000, of which about 
$17,000,000 have been sold. They are all payable in 
England. The immense trade of New Orleans, the port of 
entry and export for the great valley of the Mississippi and 
all its tributary waters, has for a long time caused capital 
to be in great demand there ; and this method of obtaining 
it by means of loans to banks whose stock is secured by 
mortgages of real estate was devised about twenty years 
ago. These banks were well managed, and from their 
profits a fund was accumulating, which before the maturity 
of the bonds would have been sufficient to redeem them. 

But unfortunately New Orleans partook quite as much as 
any other city, and probably more than any other, of the 
unnatural excitement of the times, and felt more than any 
other the corresponding depression which followed. Dur- 
ing the period of prosperity, cotton, the great staple, bore 
very high prices ; property of all kinds was held at values 
merely factitious ; and, confidence being great and credit 
being easily obtained, the banks discounted an immense 
amount of paper, which was found to be bad when the day 
of trial came. The consequence has been that the resources 
of the banks have been very much diminished, and the 
assets of one or more of them may not be sufficient to pay 
the bonds loaned to them by the State. We do not think 



DEBTS OF THE STATES. 127 

the deficit will be large. Our limits do not allow us to state 
their condition particularly: suffice it to say that, if they 
are judiciously managed, we believe they can pay so large 
an amount of the bonds loaned to them as to leave only a 
small sum to be paid by the State. 

In no part of the United States are there men of higher 
honor and greater intelligence respecting financial affairs 
than in Louisiana. Nowhere is the necessity of preserving 
the public faith inviolate better known or more strongly felt. 
The State is gradually but securely rising from her great 
pecuniary difficulties ; property is attaining its just and safe 
value ; capital is again increasing rapidly, and almost before 
the people are aware of it they will again be in a prosperous 
condition. It is a high and clear duty of the people of this 
State to watch vigilantly over their crippled banks ; to 
see that their assets are honestly applied to the payment of 
the bonds ; and to adopt such legislative measures as shall 
secure and preserve the faith of the State towards its credi- 
tors, and procure for themselves again the use of the foreign 
capital which they so much need. 

We regret that there should be any thing in the legislation 
of Louisiana upon this subject to require comment ; but we 
feel bound to say that an act passed at the last session of 
the legislature, in reference to the liquidation of the affairs 
of some of the banks, is open to very serious objection. 
The act we refer to was passed on the 5th of April, 1843, 
and provides that all debts due to the banks in question 
may be paid in State bonds issued by the banks, which bonds 
are to be received in payment at par. It must be borne in 
mind that the capital stock of these banks consisted of the 
obligations of those who subscribed for the stock to pay the 
sums for which they subscribed, secured by mortgages on 
real estate; and, before these bonds were issued, it was 
provided by law that these obligations of the stockholders, 
together with the mortgages by which they were secured, 
should be deposited in the offices of the banks for safe-keep- 



128 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

ing, and as a guaranty for the reimbursement of the prin- 
cipal and interest of the bonds to be issued by the State ; and 
that all the hypothecary obligations of whatever nature, sub- 
scribed by individuals in favor of the banks, should stand as 
collateral security for the payment of the money loaned on 
the bonds of the State, and the interest which should accrue 
thereon. Now there is not the»smallest doubt that this law 
amounted to a contract made by the State and the banks 
with every bondholder, that these mortgages should be held 
by the banks in trust, to secure the payment of the money 
loaned on the bonds. There is not a court in the country 
which would hesitate so to declare upon these facts. And 
when the State placed these banks in liquidation, and thus 
took the control of their affairs, it was bound to guard this 
trust strictly and faithfully. It had no right to receive 
depreciated bonds at par, in payment for well-secured debts 
which it held in trust for third persons. What would the 
law of Louisiana or the courts of Louisiana say to a tutor 
or guardian who should receive depreciated paper in payment 
of a debt due to his ward secured by mortgage ? Un- 
doubtedly, they would say it was unfaithful administration, 
and would order him to make good the difference. And 
may the legislature itself justly do what its own laws con- 
demn as unfaithful and unjust? As a question of right, 
this matter admits of no doubt. As a question of the con- 
stitutional power of the legislature, it is equally clear. This 
law impairs the obligation of a plain contract between the 
State and the banks on the one part, and the bondholders on 
the other ; and it is therefore in conflict not only with the 
Constitution of the United States, but with the fundamental 
law of Louisiana, which prohibits the legislature from enact- 
ing any law impairing the obligation of a contract. There 
are other grave objections to this law, which our limits do 
not permit us to state. 

In regard to the States of Indiana and Illinois, we have 
very little to say. Indiana has a debt of more than 



DEBTS OF THE STATES. 129 

3,000,000, with a population of about 700,000 souls. 
The amount of taxable property in the State was returned 
in 1840 as about 192,000,000. Illinois has a debt of up- 
wards of #13,000,000. The population of the State was 
less than 500,000 in 1840. To both these States the re- 
mark of Governor Carlin, of Illinois, in one of his messages, 
is applicable : " Unfortunately, at an unguarded moment, the 
State was allured from the path of wisdom and economy by 
the seductive spirit of speculation, and the wild fury of pop- 
ular delusion which spread over every part of the Union, 
and induced to embark in an expensive system of internal 
improvements at a period when the country was literally 
deluged with an inflated circulating medium, which gave the 
semblance of success to the most visionary and chimerical 
enterprises." But both these States have immense natural 
resources, and a rapidly increasing population fully capable 
of developing them, and they must become wealthy. At 
present, we believe it is not in their power to comply with 
their engagements. 

We have thus taken a rapid view of the condition of the 
public debt of those States which have not complied with 
their obligations. We find three distinct cases : States 
which are so deeply involved in debt that it is out of their 
power at present to perform their engagements ; States 
whose resources and means of payment are ample, and who 
have never questioned the binding force of their contracts ; 
and States able to pay, but refusing upon the ground that 
they are not bound to pay. Each has its duties and its dan- 
gers. The duty of those first named is clear. Their excuse 
for not paying is their inability. This excuse of course 
relieves them from nothing which they can do. 1 It may be 
a sufficient reason for not at once paying in full : it is no rea- 

1 The rule and its limits are equally clear : " If the obstacle be real, time 
must be given, for no one is bound to an impossibility." Vattel, 1. 4, § 51. — 
"Non ultra obligari quam in quantum facere potest; et, an possit, permit- 
tendum alterius principis, qua boni viri, arbitrio." Bynk. Q. J. P., 1. 2, 
c. 10. 

VOL. II. 



130 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

son why they should not pay something ; and that something 
should be enough to include all they can possibly effect. To 
do less than this is to avail themselves, for their own benefit, 
of the misfortunes which have fallen alike upon themselves 
and their creditors : it is, in fact, to commit a fraud. How 
much they can do and in what ways it can best be done the 
people of those States are themselves the most competent 
to decide. It is to be earnestly hoped that, in making the 
decision, they will not forget that their own honor and the 
honor of the country is deeply involved in it. Their danger 
is that they may postpone their measures too long. The 
great accumulation of interest is adding much every year to 
their burden. Every year they are becoming more and more 
accustomed to look upon the load as too heavy to be carried, 
and therefore to believe that no attempt ought to be made 
to lift any part of it. Such a feeling should be thrown off 
at once, and a manly vigor, such as the Western people are 
known to possess, should now be exerted. 

The duty of those States which have the ability to pay, 
and have never questioned the obligation of their promises, 
is also clear. Unforeseen difficulties and disasters have pre- 
vented them from keeping the promises on which so many 
have relied. They have now had time to survey their diffi- 
culties, to recover from the amazement which their great 
disasters caused, to examine their resources and select 
the proper means to draw from them the needed supplies. 
The state of the country has become greatly improved. 
During the last four years, the people, made wiser by adver- 
sity, have been industrious and economical. They have 
consumed little, and produced a great deal. They have 
been blessed with fruitful seasons. The bankrupt law has 
relieved those who were insolvent and set them at work. 
Caution and honesty pervade the trade of the country. The 
general aspect of affairs is becoming prosperous, with a 
promise of security and permanency. This is the time to 
act on this great and urgent subject. Delay is not only 



DEBTS OF THE STATES. 131 

dishonorable, but unwise. Every private man knows that a 
state of insolvency is the most expensive of all conditions ; 
and this is quite as true of a commonwealth as of an indi- 
vidual. Its best arrangements when in such a condition 
can be only a succession of shifts to get round difficulties 
which it would be much wiser and on the whole easier to 
clear away at once. 

But without regard to the expediency of this course it 
ought to be and it will be enough for the people of Penn- 
sylvania and Maryland that justice requires them to pursue 
it. They have not fallen into repudiation. They know the 
difference between honor and dishonor; and they know 
also that the honor of their government is their own. They 
will not fail to ask themselves the question what difference 
there is between denying the obligation of a contract and 
admitting its obligation but neglecting to keep it, between 
an open repudiation of a debt and fraudulently withholding 
the money. They will answer this question as all right- 
minded men must answer it: by admitting that in both 
cases the same injustice is done to the creditor ; that in both 
cases the injustice is wilfully done by the debtor ; and that 
it is of very little consequence by what name it is called or 
under the shadow of what pretence refuge is taken. 

There remains only one other case of which to speak, 
and no true-hearted American can speak of it without pain. 
We refer of course to those States whose legislatures have 
by public acts repudiated portions of their debts. Before 
noticing these acts at all in detail, we wish to say what is 
not always remembered, either here or in foreign countries, 
that no legislature has repudiated a contract without at the 
same time declaring it to have been made under such cir- 
cumstances as not to be a valid obligation either in point of 
law or natural equity. It has been seen how far we are 
from admitting that this plea amounts to a full defence. But 
we think it is of some importance to show what is undoubt- 
edly true, that no public body in this country has denied the 



132 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

obligation of the State to pay an admitted debt. Reasons 
affecting the equity of the claims and grounds which would 
be tenable if they existed have always been relied on as 
the cause of repudiation. We are not aware that it has 
been maintained anywhere that the people of a State can 
cancel an obligation by their mere will. How is it possible 
that the American people should, ever listen to a doctrine so 
absurd ? How can they forget that the binding force of a 
contract depends upon a law which neither kings nor people 
enacted or can repeal ? It comes from the awful Being who 
created and fashioned us, who sustains our life and judges 
our actions. It was enacted by His will ; it is enforced by 
His power ; and the united will of the whole human race 
cannot influence it. That which is unjust will remain so, 
though all mankind should call it just, and try to believe it. 
He who enacted this law will surely enforce it. He doth 
govern the nations upon earth; and they who disregard 
their solemn obligations and break their plighted faith, and 
repay confidence with deceit, and a trusting dependence on 
their honor with open injustice, must come to know and 
feel bitterly that the high qualities they have set at naught 
are essential to their own prosperity; that without them 
nothing is secure ; that embarrassment and loss, undeveloped 
resources which produce only discontent, and energies 
unexercised which create nothing but restlessness, are the 
inevitable destiny of a people guilty of bad faith. We be- 
lieve the American people know this; and, because they 
know it, they who would lead them to do wrong have sought 
for fair pretences to make it seem right. The great mass 
of the people of the United States never have listened to 
these pretences, and we firmly believe never will listen to 
them. It is not strange, however, that some should have 
hearkened to them and been led astray. But the time is 
fast approaching, and is now close at hand, when every 
State which has the ability to pay its debts or any part of 
them must begin to pay, or begin to be openly and know- 



DEBTS OF THE STATES. 133 

ingly fraudulent.^ Two ways are before them, the one lead- 
ing to justice and honor, the other to repudiation and 
disgrace : one or the other must be deliberately chosen, and 
that soon. 

It may assist us to discern the character of one of these 
paths, if we will attend for a moment to the true meaning of 
the word repudiation. In substance it means confiscation. 
There is no just distinction between an act of the legislature 
requiring me to surrender a part of my property to the 
public use without compensation, and an act declaring that 
the State shall not and will not pay an equal amount which 
is due to me. No doubt the former would alarm a greater 
number of persons than the latter ; but this only renders it 
less dangerous, if such things admit of degrees of danger. 
Analyze the laws, and see if there be any difference between 
them, and where the difference lies. By the act first 
supposed, the State puts in motion its agents, and its civil 
or military force, and transfers to itself the possession and 
use of that which is mine. But in so doing it does no 
wrong. This is an act of eminent domain such as every 
government performs occasionally ; and it would cease to be 
strong enough for any useful purpose, if it did not possess 
this power. But as soon as my property has been thus 
taken the State owes me compensation for what I have 
surrendered. If it makes this compensation, all is right ; 
and my property has been lawfully appropriated to the use 
of the State. If it refuses to make it, then my property has 
been confiscated, and the State has been guilty of a gross 
act of arbitrary power. 

Such are the principles involved in the law first sup- 
posed ; and, if we consider the other, we shall find the same 
principles applicable there. The State borrows my money, 
promising to pay it to me or to any one to whom I shall 
assign the obligation. It now owes to- me a recompense 
for what it has received. This duty grows out of the 
receipt of my money by the State, as in the other case it 



134 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

grew out of the receipt of my property. In the one case, 
the obligation to make compensation arises out of the mere 
justice of the claim, or, to use legal language, it is implied 
from the circumstances of the parties ; in the- other case, 
the obligation arises from the express promise of the State. 
In both there is a perfect obligation, and the wrong done is 
the same ; namely, the violatioa of a perfect obligation to 
make compensation for money or property used by the 
State. It may be added that the wilful refusal to repay a 
loan to the State, made on the faith of a positive promise, 
contains an element of wrong which does not ordinarily 
belong to mere seizures and confiscations ; for it is treacher- 
ous as well as unjust. 

There is another respect in which the two cases approach 
still nearer to each other. The written obligation of the 
State by which it has promised to pay to me, or to any one 
to whom I shall assign such obligation, a sum of money, is 
both in form and in substance property. It is so known to 
the law, and it is so in fact. It may be the subject of a lar- 
ceny or a trespass, of a sale or a bequest : it is a thing of 
value of which I have the rightful possession. And it is 
wholly immaterial to me and to the question of right whether 
the State takes it out of my possession by force or renders 
it valueless by refusing to pay it. The only difference 
between the two would be that in the one case I should lose 
the paper and ink of the obligation; in the other case I 
should not, — a distinction which will hardly be deemed 
important. It is clear, therefore, that repudiation and con- 
fiscation are in principle the same ; and, if we can feel a 
preference for one over the other, we should say without 
hesitation, Let us have confiscation ; let us have seizures 
made and contributions levied openly and with as much 
fairness as acts of such arbitrary power admit, rather than 
obtain possession of money under the confidence reposed in 
solemn promises, and then add treachery to injustice by repu- 
diating them. The violent course is the more manly one. 



DEBTS OP THE STATES. 135 

Certainly, it would be desirable that perfect justice to all 
men should be at once the only foundation and the object 
of human governments. This never has been, and perhaps 
never will be. But mankind have continued to live, and 
have enjoyed many, and perhaps most, of the blessings 
which grow out of the social state under governments in 
whose constitutions it is easy to detect bad elements. But 
if there is one principle of policy which can be considered 
as settled, and as essential to all tolerable government, it 
is that which demands the absolute security of property. 
Men will submit to a great deal so long as a just regard is 
shown for the rights of property : when these are attacked, 
they will submit no longer, unless they are content to be 
slaves. This is a truth made familiar and practical to the 
people of this country by the war of the Revolution which 
grew out of it, and by the written Constitution of the Union, 
and of every State in the confederacy which embodies and 
repeats it, and draws around it all the safeguards which 
human wisdom and foresight can supply. That private 
property shall not be applied to public uses without a just 
compensation ; that no man shall be deprived of his inherit- 
ance except by the judgment of his peers and the standing 
laws of the land; and that no State shall pass any law 
impairing the obligation of any contract, — are principles as 
familiar to us as our own names. The anxious care which 
our fathers took of the right of property has not been in 
vain. The principle was planted in a friendly soil, and has 
struck deep root. That branch of the great Anglo-Saxon 
family by which this continent is peopled has a strong and 
honest attachment to property and its rights. It is not a 
blind and sordid love of wealth, debasing the mind and 
hardening the heart. As a people, we are not avaricious. 
We spend freely, and we give with the largest generosity. 
It is because we know the uses of property that we value 
and love it. We want it for ourselves, that we may have a 
freer and larger scope for wise enjoyment and improvement. 



136 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

We want it for our children, that they may be secured, as 
far as we can secure them, from the evils of ignorance and 
dependence. "We want it for the charities which are wag- 
ing perpetual war upon vice, and alleviating the miseries of 
the human condition ; and for our churches and colleges 
and schools, which fit us to live in this world, and teach us 
humbly to hope for a better life^hereafter. We want it for 
our country, in whose grand march of improvement we feel 
so much pleasure and pride. We have connected with it — 
and we think it a natural connection — all our ideas of 
justice, of social order, of personal security, and of the 
peaceful pursuit of happiness. 

How great, then, must be the violence done to the sense 
of right of such a people before they can bring themselves 
to injure these clear and well-understood rights of property ! 
They must first be corrupted and degraded. In this coun- 
try, all power emanates from them, and at frequently 
recurring periods returns to them to be delegated anew. 
And though it may sometimes happen that they are not 
responsible for particular measures at the time they are 
taken, it cannot happen that any unjust thing of sufficient 
importance to attract their attention should be done by 
their delegated government, and remain without a remedy 
except by their will. This subject of repudiation is too 
large to escape notice, and too important to be passed over 
without a distinct and strong exertion of the popular will. 
If the doctrine it involves is ever carried into effect, it must 
be because a majority of the people have adopted it. Can 
that evil day come without first corrupting the people? 
What will, then, have become of that loyalty which attaches 
us to our country with the bonds of strong affection ; of that 
love of national glory, and that quick sense of national dis- 
grace without which no people ever were, or deserved to 
be, great ; of that regard for justice upon which alone rest 
our laws and all our social order and internal peace ; of that 
attachment to property out of which spring our habits of 



DEBTS OP THE STATES. 137 

industry, our untiring energies, our progress in the arts and 
comforts and securities and charities of life? What will 
have become of all these when a majority of this people 
come to look upon a particular body of men, embracing 
citizens as well as foreigners, as their lawful prey, to be 
pursued across the barriers of the Constitution, and over 
every safeguard which national honor and good faith can 
raise up, and to be seized and destroyed in the sight of the 
civilized world ? 

Let us not think, if we do this wrong, that we are no worse 
than others, for we are bound by more and stronger obliga- 
tions than ever rested on any other people. The reverence 
of the Pilgrims for duty and conscience ; the lofty love of 
justice of Penn and his associates ; the pure equity and con- 
stant regard for the rights of all of Lord Baltimore and his 
colony; the high honor and chivalric spirit of Smith and 
Oglethorpe, and the Southern colonists, — all call out to 
us not to bring disgrace upon the children of such fathers. 
The providence of God, which has led us through a feeble 
infancy and supported our steps in times of great trial, 
and raised up mighty men to supply our needs and stand as 
examples in time to come, which has made us millions from 
a handful, and poured upon us a tide of prosperity such as 
never blessed any other people, persuades us not to repay 
this kindness by breaking His law of justice. The hopes of 
mankind that the great experiment of self-government may 
succeed, and its influences go forth all over the earth, till 
all men are raised to freedom and established in its secure 
enjoyment, beseech us not to violate that principle of jus- 
tice which is the corner-stone of every free government. 
They warn us that we are extinguishing the light which 
had begun to enlighten the world ; that we are putting into 
the mouths of kings and nobles the bitter words of con- 
tempt against all republics ; that we are enabling them to 
say, not without an appearance of truth, that, because we 
have no hereditary nobility, we have no nobleness of soul ; 



138 PROFESSIONAL AND MISCELLANEOUS WRITINGS . 

that, because we have abolished the rights of primogeniture, 
we can no longer inherit the manly virtues of our fathers ; 
that in a republic nothing is fixed ; that it is not too much 
for such a government to attempt by its will to displace 
God's eternal laws for the sake of a base pecuniary advan- 
tage ; and that, if a people so descended, so taught by 
experience, so educated by schools and churches, so prosper- 
ous and proud, will descend so low, how little can justly be 
expected of any other people who should attempt self- 
government ! Such is the language to which the friends of 
free government abroad are forced to listen, and to the 
truth of which they begin to assent. 

But it is not merely the regard which we owe to our 
fathers, our gratitude to God, and our duty to the principles 
of a free government, which urge upon us the rightful course. 
There is, besides, an enlightened and religious public opin- 
ion, which shines upon the world like the sun and penetrates 
everywhere like the common air. No people can escape 
from its influence or resist its power. It has already be- 
come the voice of the great family of civilized man. None 
can refuse to hear it. It comes from the heart of our com- 
mon humanity, and so must reach the heart of all whom it 
addresses. As yet it does not speak on many subjects ; but 
who can doubt that a deliberate and wilful violation of the 
plighted faith of great republics, by which distress and ruin 
are brought into numberless homes, is a subject on which it 
will speak ? Who can doubt that it will find in such cases 
those elements in which all mankind have a common interest? 
Have men ceased to entertain a profound regard for good 
faith ? Has fidelity to engagements ceased to be a virtue of 
importance ? Has common honesty become useless to man- 
kind ? " Justice is the great standing policy of all civilized 
States." All the world now knows it, and no nation can 
depart from this policy without dishonor and degradation. 

Let us, then, look upon this matter as it really is, and as 
all men must at last view it ; nay, as it stands now before 



DEBTS OF THE STATES. 139 

that great tribunal where no popular pretexts can avail. 
There it is of no advantage to say that many of these debts 
are held by rich and selfish foreign capitalists who care for 
nothing so much as to wring money from the hard earnings 
of our people. A wise man told us long ago that he did 
not listen with much credulity to any who spoke evil of 
those whom they were going to plunder ; and the world 
thinks little of the epithets we bestow on those who ask us 
only for justice. It demands of us, In what code of morals 
or laws do we find it written that the circumstances or con- 
dition of a man furnish the least excuse for doing him a 
wilful wrong? It asks us if this is the spirit of our repub- 
lican doctrine, that all men are equal in the sight of the law. 
It asks how we can know the conditions and circumstances 
of our creditors ; whether we have the means of investigat- 
ing them ; whether we have attempted to use those means ; 
how many widows and orphans, whose sole hope of earthly 
comfort rested upon our honor, we find recorded on our list ; 
how many aged men, past the season of active labor, have 
invested the savings of long lives in our good faith, and what 
we have done to relieve them. These are questions which 
the public opinion of Christendom already asks, and which 
must be answered; and, unless we speedily act upon this 
subject as justice and honesty require, the misery of our 
case will be that we can make no answer which will not 
involve us in deep disgrace. We may, it is true, attempt to 
plead that as to some of these debts there are technical 
defences ; and that, in respect to others, the agents who were 
charged with their negotiation committed gross frauds on 
the States. Be it so. But the States selected their own 
agents, and trusted them; and therefore every just principle 
requires that the States should bear the consequences of 
these frauds. And as to the technical objections, if any 
such exist, no civilized government is worthy of its name 
which would take advantage of them. A government strain- 
ing after a technical objection to avoid payment of a just 



140 PROFESSIONAL AND MISCELLANEOUS WHITINGS. 

debt to a creditor who probably scarcely looked at the 
instrument when he parted with his money, except to see 
plainly expressed upon it that " the faith and credit of the 
State was pledged " for its payment ! Such a government, 
we repeat it, is not worthy of the name. It is a great petti- 
fogger, and not a government. The more powerful it is, 
the greater is its disgrace. The more proud it is, the 
greater is its meanness. The more enlightened it is, the 
greater is its sin. 

We have, said that, in substance, repudiation is confisca- 
tion. And what would future times say to a series of acts 
of confiscation by which the great republics of the New 
World, in the middle of the nineteenth century, should 
appropriate millions of property to their own use? The 
inquiry would be made, Was it enemy's property, seized in 
time of war ; or was it taken in the midst of a revolution as 
a signal and severe punishment for great crimes against the 
State? If so, though opposed to the lenient and more 
humane spirit of the present age, and in itself of very doubt- 
ful propriety, the laws of nations do not positively forbid it, 
and the examples of nations in less favored times might 
afford some excuse for it. But what must be the reply ? It 
must be that these acts were done in a time of profound 
peace ; that they fell alike upon citizens and upon strangers, 
upon the child who was too young to be otherwise than 
innocent, and women and aged men who were too feeble to 
be feared ; that they were directed against no crime ; that 
they were justified by no principle ; that they were naked 
acts of arbitrary power, prompted by no motive except a 
base love of money. We cannot bring ourselves to fear 
that the American people, or any considerable part of them, 
will ever stand fairly before the world in judgment for this 
great crime. We know that their dangers and difficulties 
are not small ; but we believe they will be met and over- 
come by the vigor and courage which have hitherto con- 
quered all difficulties and met all dangers undismayed. It 



DEBTS OF THE STATES. 141 

is, however, the part of wisdom to look steadily at these 
dangers and difficulties ; and it may aid us to do so, if we 
consider the effects already produced by repudiation. 

The first and most obvious effect of even the small favor 
with which this doctrine has been received is that it has 
seriously impaired the pecuniary credit and resources of the 
country. The conduct of a few States has not only de- 
stroyed their own credit, and left their sister States very 
little to boast of, but has so materially affected the credit of 
the whole Union that it was found impossible to negotiate 
in Europe any part of the loan authorized by Congress in 
1842. It was offered on terms most advantageous to the 
creditor, — terms which in former times would have been 
eagerly accepted ; and, after going a begging through all 
the exchanges of Europe, the agent gave up the attempt to 
obtain the money in despair. It is impossible to believe 
that any capitalist refused to lend his money because he 
doubted the ability of the United States to pay their debts. 
Nor is it credible that the mere failure of a few of the State 
governments to meet their engagements would have pro- 
duced this extraordinary effect. It is the truth, and it 
should sink into the heart of every American, that this loan 
was refused because Europe doubted the honor of this coun- 
try. We say it should sink into the hearts of our country- 
men ; but it should stir no anger there. We know that the 
honor of this Union is, and we firmly believe it ever will be, 
untarnished. We know the distinction between the States 
and the national government, and the hardship of most of 
the cases in which States have failed to perform their prom- 
ises ; and we know, too, how little progress the odious and 
infamous doctrine of repudiation has made. But the word 
repudiation has been sounded in the ears of men in Europe 
till they have begun to fear it is the settled doctrine of a 
majority of our people. Every failure to meet an engage- 
ment by a State is looked upon as a practical result of this 
theory. And it is, therefore, not at all wonderful that the 



142 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

pecuniary credit of the country should first be brought into 
doubt and then speedily destroyed. We have no right to 
be angry ; but we cannot help feeling a deep concern both 
for the cause and the effect. 

For, aside from all considerations which affect our na- 
tional honor, the pecuniary credit of a State is a matter 
of great public concern. All governments are liable to 
unforeseen and pressing wants, which can only be met and 
supplied through the public credit, because these wants 
occur under such circumstances as render immediate and 
adequate supplies highly important or absolutely necessary, 
and when taxation cannot furnish them speedily enough to 
meet the pressing occasion. Our form of government does 
not exempt us from such wants. The two great political 
parties which have ruled this country since the adoption of 
the Constitution agree that any accumulation of money 
raised by taxation is not to be thought of, and that no more 
is to be drawn from the people than is absolutely necessary 
for the time being, to enable the government to exercise 
economically its appropriate functions. But both parties 
have found, when in power, what, indeed, any party must 
always find, — that there are always great obstacles in the 
way of a large and sudden increase of taxes. No people 
will submit to it willingly. It requires time to convince 
them of its necessity and policy ; some time is necessary to 
enable them to accommodate their affairs and resources to 
the new demand. But the emergency leaves no time. In- 
vasion or insurrection will not wait till public opinion has 
become reconciled to an increase of taxation, and till the 
public agents have gone through the slow process of obtain- 
ing a supply from that source. 

We have learned also from the experience of the last 
three years that even in time of peace, and when there are 
no extraordinary demands upon the energies of the country, 
it may not be possible to carry on the government without 
the aid of loans. Within that short period, we have seen 



DEBTS OP THE STATES. 143 

the national government become so embarrassed that it 
could not have performed its most necessary functions, if 
relief had not been obtained by borrowing money. And 
we have had some opportunity to see what great pecuniary 
sacrifices must be made by the public when money must be 
had while a shade rests on the credit of the borrower, and 
how important, in point of economy as well as honor, is an 
unstained reputation for fidelity to engagements. It con- 
cerns, therefore, the safety of every government that the 
prompt and adequate resources of the public credit should 
not be trifled with and lost. 

The views which we have thus far presented respect our 
domestic condition and policy ; but the subject has a direct 
connection with the foreign relations of the United States. 
It has always been admitted to be one of the duties, and 
consequently one of the rights, of the sovereign power in 
every nation to see that gross injustice be not done to its 
subjects or citizens in a foreign country. If the injustice 
be of such a nature as to admit of legal remedy, and the 
courts of the land where it is done are open for redress, the 
sovereign is bound to wait till that redress has been sought 
for and refused in the highest court known to the law of 
that country. It is presumed that justice will be done ac- 
cording to the course of the law of the land ; and this pre- 
sumption can be removed only by an actual failure to obtain 
it in the highest court. No nation can answer for the 
equity of proceedings in all its inferior courts. It suffices 
to provide a supreme judicature by which error and parti- 
ality may be corrected. This presumption holds even when 
redress has been refused, unless the decision is palpably 
wrong, — in re minime dubia. But where the decision 
against the foreign claimant is evidently unjust, or when 
the law studiously withholds its aid, so that he cannot ob- 
tain the fruits of a decision in his favor, or when the courts 
of the country are not open to his suit, the foreign sovereign 
is bound to listen to the complaints of his subject thus 



144 PROFESSIONAL AND MISCELLANEOUS WHITINGS. 

injured, and either make indemnification or seek it from the 
people by whom the wrong has been done. It is apparent, 
therefore, that at no distant day this matter may become 
the occasion of negotiation with those governments whose 
subjects are interested in these debts. In such an event, the 
preliminary question would be whether any courts of this 
country are open to foreigners seeking to recover their money 
of the States. As a general rule, the courts of the States 
cannot entertain a suit against the States. There are only 
three exceptions known to us, and those are the State of 
Mississippi, which allows the holders of her bonds to bring 
suits against the State in her own Court of Chancery, and 
the States of Maryland and Virginia, which in some in- 
stances have allowed suits against themselves, but always, 
we believe, by special laws. How far the case of Mississippi 
would come within the rule of international law which binds 
the claimant to seek for redress in the courts of the land 
where the wrong was done, we are not prepared to say. So 
far as we know, it would be a new case. The Chancellor of 
Mississippi is elected by the people every six years. He is, 
therefore, appointed by and directly dependent on one of 
the parties to the suit, and the case has been prejudged 
by the legislature. Now, if the rule should apply at all, and 
the parties should be held bound to seek for justice at the 
hands of a judge thus situated, it seems clear that the de- 
cision would be much more open to doubt than in ordinary 
cases where the foreigner sues a citizen. If the presumption 
that justice will be done according to the law of the land 
should exist, it would certainly be weak and easily removed, 
and would be quite as likely to lead to disputes and con- 
tentions as to settle them. 1 

1 The conduct of the courts of the States in reference to British debts 
was a fruitful source of controversy between England and this country in 
1792, and it is notorious that great amounts of those debts were not and 
could not be recovered until after the establishment of the courts of the 
United States. See the correspondence between Mr. Jefferson and Mr. Ham- 
mond, the minister of Great Britain. Waite's Am. State Papers, 1789 to 
1796; Ware v. Hykan, 3 Dal. 199; Elliot's Debates, 142-144, 282. 



DEBTS OF THE STATES. 145 

It is manifestly of great importance to us to have the full 
benefit of the presumption which, for the sake of peace, 
the law of nations raises in such cases. Without this pre- 
sumption, the claim for redress must be made on the govern- 
ment of the United States, and the cases judged of and 
decided by the parties to the negotiation ; after which, if 
the foreign government is not satisfied with the result, it 
has just cause for reprisals, and even for war. With it, the 
matter is first submitted to the highest legal tribunal ; and 
the foreign government is bound to be satisfied with its 
decision, unless so palpably wrong as to give rise to the 
belief that it was corruptly made. We have said that the 
claim for redress must be made upon the United States ; 
for we cannot entertain the least doubt that the national 
government is as much responsible for injustice done to 
foreigners by the States as by individuals or corporations. 
Foreign States can know only that sovereign which has the 
power to make war and peace, to negotiate and enter into 
treaties. They can no more have relations with a State 
than with a county. If the wrong is done within the ter- 
ritory of the United States, the United States must answer 
for it. 

But we believe our Constitution has not left us without 
the protection which is enjoyed by all other nations who 
have courts of justice open to foreigners seeking redress, 
and where they are bound to presume that justice will be 
done. The Constitution, as originally adopted, contained, in 
Art. III. Sect. 2, the following words : " The judicial power 
shall extend to controversies between a State, or the citizens 
thereof, and foreign States, citizens, or subjects." The 
eleventh article of the amendments declares that "the 
judicial power of the United States shall not be construed 
to extend to any suit in law or equity, commenced or prose- 
cuted against one of the United States by citizens of another 
State, or by citizens or subjects of any foreign State." Thus 
the original provision as to suits against one of the United 

VOL. II. 10 



146 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

States by foreign States was allowed to stand. Mr. Chief 
Justice Marshall, in his very able opinion in the case of 
Chisholm v. The State of Georgia, has stated the reason 
of this provision in such a manner as renders it quite ap- 
plicable to our present purpose. He says the Constitution 
contained this provision: "because, as every nation is respon- 
sible for the conduct of its citizens towards other nations, 
all questions touching the justice due to foreign nations or 
people ought to be ascertained by and depend on national 
authority." There can be no doubt, therefore, that by the 
very terms of the Constitution a foreign State or sovereign 
may sue one of the United States in some court of the 
United States. Nor has the Constitution left it doubtful, or 
even left it for Congress to provide, which court it shall be ; 
for it contains the following words : " In all cases affecting 
ambassadors, other public ministers, and consuls, and those 
in which a State shall be a party, the Supreme Court shall 
have original jurisdiction." 

We conceive also that a foreign State or sovereign may 
easily be placed in such a condition as to prosecute these 
claims. It is incident to the sovereign power that it should 
be able to make itself the owner of such claims. The rules 
as to the purchase and sale of rights of action which affect 
individuals are not applicable to the sovereign. The law 
presumes that the government of a country will not be guilty 
of champerty or maintenance. Under the common law, the 
king might take an assignment of a debt, and sue therefor in 
his own name. And we have no doubt that the same law 
exists in all countries. It seems to follow, then, that if the 
sovereign should take an assignment of a claim, and sue 
therefor in the court of a foreign country, the comity and 
respect due to the foreign sovereign would necessarily pre- 
vent the court from inquiring into the causes and motives of 
the assignment ; especially in a country where the common 
law exists, which makes all debts negotiable between the 
sovereign and a subject or citizen. And if this motive were 



DEBTS OP THE STATES. 147 

inquired into, it would appear that the foreign sovereign 
had taken the assignment merely to discharge a duty to 
his subjects by affording to them a remedy for a supposed 
wrong. 1 

Certainly it would not be a subject of complaint or regret 
on our part that this course should be taken, and that the 
foreign sovereign should submit the question to the decision 
of our own highest tribunal, instead of resorting directly to 
negotiation. In the event of such a thing becoming neces- 
sary, we should look upon an application to the Supreme 
Court of the United States as not only practicable but de- 
sirable, and we should feel thankful for the existence of 
that principle in the public law, and that wise provision in 
our own Constitution, which enable us to ask foreigners to 
seek for justice in that high tribunal which was created 
to establish it, — a tribunal known to the world as elevated 
far above all State biases and prejudices, whose members 
come together from the North and the South, from the East 
and the West, across distances wider than half of Europe, 
and listen to sovereign States as they contest their claims 
to territory and jurisdiction; a tribunal which sits in judg- 
ment on the acts of the legislature of the nation, and de- 
crees them to be valid or void ; a tribunal which is our own 
ark of safety, and to which offended Europe may come 
confidently and obtain such justice as war and reprisals 
never gave and never can give. 

We have now presented our views of this important sub- 
ject. We fear that intelligent men throughout the country 
have hitherto scarcely done their duty in regard to it. They 
have looked upon it as interesting only those States which 

1 It has sometimes been suggested, in answer to the view taken by us, 
that the Judiciary Act has so limited the jurisdiction of the courts of the 
United States that an indorsee or assignee of a chose in action cannot sue 
in those courts, unless the assignor or indorser could himself sue therein ; 
but that limitation has reference only to suits in the Circuit and District 
Courts. It does not touch the original jurisdiction of the Supreme Court, 
which is conferred by the Constitution, and is not within the control of 
Congress. 



148 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

are embarrassed by debts, and those which have taken false 
steps to escape from them. They have thought it a matter 
of national concern only because it affects our character as a 
people. But they must no longer forget that the rights of 
every honest man are violated by an unjust act of the gov- 
ernment under which he lives. It has been thought to be 
one of the advantages of a free government that the indi- 
vidual is not merged in the State ; that each citizen is 
regarded and cared for, not merely because important to the 
State, but for the sake of his own welfare and happiness. 
For him, as a man, laws are enacted ; for him rights exist ; 
for him remedies are provided. He stands before all tri- 
bunals capable of claiming whatever is just. He means not 
to identify himself with any class or community or corpo- 
ration. As a citizen, he has all the rights which can be 
had; and, among those rights, he has eminently that of 
requiring the government of which he is a constituent part 
to do nothing which shall stain his honor, or shock his sense 
of justice, or lessen his patriotism, or deprive him of his 
share of the glory of his country ; and if any public act does 
this, he has as much right to feel aggrieved as if his personal 
liberty were infringed. It is true he walks abroad un- 
harmed in his person, but a violent constraint has been put 
upon his love of justice. It is true, his house and land are 
untouched; but his country's glory, for which he would at 
any time have sacrificed them, has been squandered and 
lost. He still has a country, but that which made it lovely 
in his eyes has been defaced and destroyed. 

Let every honest man, then, take care to do what in him 
lies to protect himself from this great wrong, and never rest 
until the faith of his country has been redeemed, and its 
honor secured from reproach. 



REFORM OF LEGAL PROCEEDINGS. 149 



REPORT OF THE COMMISSIONERS 

APPOINTED 

TO REVISE AND REFORM THE PROCEEDINGS IN THE COURTS OF 
JUSTICE IN THIS COMMONWEALTH. 

Januaet, 1851. 



COMMONWEALTH OF MASSACHUSETTS. 

The Commissioners, appointed in pursuance of the Resolves of 
the Legislature, " to revise and reform the proceedings in the 
courts of justice in this Commonwealth, except in criminal cases, 
and report the same to the Legislature, subject to its adoption or 
modification," do now, in execution of their commission, so far as 
they have been able to complete the same, respectfully submit the 
following 

REPORT. 

They beg leave to state that, as early as possible after 
this commission was filled, they took measures to avail 
themselves of the practical experience of the courts and bar 
of the Commonwealth, by addressing every judge and law- 
yer known to them, and inviting their attention to the 
subject of this Resolve. From members of the courts as 
well as of the bar, replies were obtained, containing very 
important suggestions, and strongly tending to confirm the 
commissioners in the belief that defects now exist in the 
proceedings for the administration of justice, which admit 
of remedy. 

It may at first view seem unaccountable that in a State 
which from early times has enjoyed the advantages of a 
learned and upright judiciary, an accomplished and vigilant 
bar, and a legislature easily appealed to, and always found 



150 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

mindful of the importance of reform in the proceedings for 
the administration of justice, we should find ourselves, at 
this day, working under what can hardly be called a system 
of procedure, and which every well-informed lawyer con- 
demns, under whatever name it may go. To understand 
this, and at the same time to perceive the point where, 
as we think, a wrong course* was taken, which has been 
further and further followed until it has led to the present 
state of things, it is necessary to look for a moment at the 
history of this branch of the law, the evils which have led 
to legislation, and the nature of the remedy which has been 
adopted. 

The proceedings of the courts of this Commonwealth 
were always simple when compared with those of the Eng- 
lish common-law courts, from which those proceedings were 
mainly derived. But we borrowed, among other things, 
special pleading. No one can have understood this system 
without a profound admiration of it as a work of human 
genius, nor without perceiving that it is capable of accom- 
plishing perfectly those objects of first-rate importance 
where facts are to be tried by a jury, the separation of the 
law from the fact, and the production of simple and exact 
issues, to be submitted to their appropriate tribunals. 

It certainly was not to be wondered at that special 
pleading, which had been considered an integral part of the 
common law, and which had so many excellencies to rec- 
ommend it, should have been imported with that law and 
introduced into use here. But it was found that it had 
great defects as a practical system. In perfectly skilful 
and cautious hands, it worked admirably, but unfortunately 
perfect knowledge of so complicated and subtle a system, 
and extreme vigilance in the use of it, are things not to be 
reckoned on in practice; and accordingly this sharp and 
powerful machine inflicted many wounds on the ignorant 
and unwary. This was seen to be wrong ; but instead of 
looking for the defects in the system, and amending them, 



REFORM OP LEGAL PROCEEDINGS. 151 

if capable of amendment, and, if not, changing it for 
another, a course of legislation was begun, which has ended 
in having no system at all. 

Thus, as early as 1783 (Stat. 1783, c. 38, § 8), it was 
enacted that executors, administrators, and guardians should 
not be compelled to plead specially, but might give any 
defence in evidence under the general issue. As if it were 
a hardship, not to be inflicted on these classes of persons, 
but which must still be endured by suitors generally. 
Similar favors, as it would seem they were considered, were 
from time to time granted to all persons sued before justices 
of the peace, except in cases where title in trespass was to 
be pleaded (than which few things are more difficult to do 
rightly), to persons sued on penal statutes, to civil officers 
and persons acting by their commands, insurance com- 
panies, and dog-killers. And, finally, by Statute 1836, 
c. 273, all special pleas in bar were abolished, the general 
issue, general demurrers, pleas in abatement (to which a 
general demurrer operates as special), motions in arrest of 
judgment, writs of error and declarations according to the 
old system being still retained. So that he who now sur- 
veys what remains sees every plaintiff left to inhabit the 
old building, while all others are turned out of doors. We 
seem to be walking for a short distance in the ancient but 
strongly built streets of an old town, and all at once to step 
out into the open fields, having here and there a piece of 
sunken fence and a half-filled up ditch, and some ruins of 
broken walls, which afford excellent lurking-places for con- 
cealment and surprise, but no open highway for the honest 
traveller. 

The evils of this state of things may'not readily occur to 
the mind, but they are very great. They are felt in prep- 
aration for, during, and after the trial. Neither party has 
any legal means of knowing what questions of fact or law 
are to be tried. Each must therefore conjecture, as well as 
he can, all reasonable possibilities, and prepare for them. 



152 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

This not only occasions much needless labor of the party 
and his counsel, but the expense of witnesses to prove facts 
which on the trial are found to be immaterial, or are ad- 
mitted. This last consequence by no means exhausts itself 
in the needless fees of witnesses. In this industrious com- 
munity, it is to most persons an inconvenience and cause of 
loss to attend the courts as witnesses : this inconvenience and 
loss are, not seldom, very considerable.; and the onerous 
duty should be imposed on as few persons as possible. 

Both parties coming to the trial with no certain knowl- 
edge of the points of the case, or the course which the trial 
is to take, each must feel his way as he goes : the court and 
jury must do the same, and it often happens that it is not 
till the concluding arguments of the counsel are made that 
the jury can get any clear idea of what is to be tried by 
them ; the case on neither side having been opened, because 
neither side knew what the case was. The immediate 
effects are very dilatory conduct of the trial, and the con- 
sumption of much time in beating over ground, which is 
found, at last, to lie quite outside of the case. The remote 
effects are to induce a loose habit of preparation for the 
trial, to compel the court to rule on questions without any 
general view of the case, and to find out the matters to be 
tried often near the close of the trial ; to cause a nisi prius 
trial to be a kind of preliminary inquiry to get the case into 
shape, instead of a trial of it ; to render verdicts less impor- 
tant ; and, as a consequence of the operation of all these 
causes, to make it almost a general rule that cases of con- 
siderable importance go before the whole court upon excep- 
tions or motions for new trials. The commissioners have 
carefully endeavored not to overstate the effects of the 
present condition of our law of procedure, and they know 
that the opinions of many experienced persons, both judges 
and lawyers, concur with their own on this subject. 

Looking back over the course which has been pursued, 
and seeing the end at which we have arrived, the commis- 



EEEORM OF LEGAL PROCEEDINGS. 153 

sioners submit that the principles of legislation on this 
subject have been erroneous. They do so with the highest 
respect for former legislatures, and with diffidence as to 
their own conclusions. But they feel it to be their duty 
to state those conclusions frankly, and to submit for the 
consideration of the legislature the reasons on which they 
are founded. 

The course of legislation clearly shows that former legis- 
latures, feeling the evils resulting from special demurrers, 
motions in arrest of judgment, and the other machinery by 
which the rules of special pleading have been enforced, and 
seeing the hardships and frequent failures of justice to 
suitors which they have occasioned, instead of keeping in 
view the great objects of pleading and the substantial 
means of attaining those objects, and endeavoring to dimin- 
ish the number of technical rules and to restrict the limits 
within which objections should be allowed to be taken, 
have swept away from time to time the essential with the 
useless, the substantial with the formal, without regard to 
any differences between them; and have done this by a 
series of acts which have rested on no principle, but have 
been occasional, fragmentary, and partial. Even the last 
sweeping act, while it prohibits defendants from pleading 
specially, relieves the plaintiff from no technical rule which 
could be taken advantage of by general demurrer, or motion 
in arrest of judgment, or writ of error. 

The question for us is, What should be done? The 
answer to this question must depend upon the choice which 
is made of one of several general modes of procedure. One 
is to have all the proceedings, after the parties are sum- 
moned, conducted orally. Under this, the parties come 
before the tribunal with their witnesses, and talk out their 
case. Neither party has any legal means of knowing 
beforehand what the other will say or prove. There are 
no limits for the debate, nor certainty nor definiteness con- 
cerning the subject of dispute, nor record of what has been 



154 PROFESSIONAL AND MISCELLANEOUS WHITINGS. 

done. It is obvious that this would not answer our wants. 
In a rude state of society, whose manners are simple and 
whose affairs are easy of comprehension, it is probably the 
best of all modes. No man can suppose it fitted for this 
rich, populous, and refined Commonwealth. The oral plan, 
probably all will agree, must be rejected, and we must have 
written allegations. These are demanded for four pur- 
poses : 1st. That each party may be under the most effect- 
ual influences which the nature of the case admits of, so 
far as he admits or denies any thing, to tell the truth. 
2d. That each party may have notice of what is to be tried, 
so that he may come prepared with the necessary proof, and 
may save the expense and trouble of what is not necessary. 
3d. That the court may know what the subject-matter of 
the dispute is, and what is asserted or denied concerning it, 
so that it may restrict the debate within just limits, and 
discern what rules of law are applicable. 4th. That it may 
ever after appear what subject-matter was then adjudicated, 
so that no farther or other dispute should be permitted to 
arise concerning it. 

These being the ends to be attained, it is manifest that 
system is best, theoretically, which most perfectly attains 
those ends. But practically they may all be perfectly 
attained, and yet at such an expense of time and money, 
and the failure of justice from technical rules, as to render 
the system the worst possible. What we have to seek, 
therefore, is the system which will best attain these impor- 
tant ends at the least expense of time and money, and with 
the fewest technical rules, which, though necessary to some 
extent, should not be permitted to work substantial injus- 
tice ; and, above all, should not be allowed to operate when 
their object has been accomplished, or in the progress of the 
suit has ceased to be possible. 

So far as known to us, the experience of mankind has 
developed but two general plans of proceeding by written 
allegations. One is to have the allegations settled and the 



REFORM OE LEGAL PROCEEDINGS. 155 

issues framed by a public officer. The other is to have each 
party, "with the aid of his counsel, make such allegations as 
he thinks proper. The first was the Roman mode. The 
parties went before the Praetor, who, having heard them, 
settled the allegations which each was allowed to make. 
This has been imitated in some modern codes ; but we have 
no hesitation in saying it is impracticable in this Common- 
wealth. Not to dwell upon the habits of our people, which 
would render them very reluctant to have their own affairs 
taken out of their hands in this way, we are satisfied that 
the hearing necessary to settle the issues would be nearly 
equivalent in expense and trouble to a trial, and that it 
would require a large number of officers, possessed of skill, 
learning, and character, little, if at all, inferior to the judges 
of the courts. This mode, therefore, we cannot advise. 

The other general mode is the one which has always been 
pursued under the common law, and it receives our decided 
preference. The question is, under what particular rules it 
shall be worked out. 

We are of opinion that it is not expedient to restore 
special pleading, even as modified by the new rules in Eng- 
land. We do not deem it necessary to examine in detail 
the objections to this system, but will state shortly those 
which have satisfied our own minds. 

1st. The divisions of actions seem to us to be too numer- 
ous ; and the necessity of preserving each division, and of 
applying to it its own peculiar rules, gives rise under that 
system to many technical questions. 

2d. The rules concerning special pleas, though logically 
correct, and necessary perhaps to the perfection of that par- 
ticular system, are so numerous, so refined, and not seldom 
so difficult of application, as to require the highest skill 
and care in their use. If they exist, they must be adminis- 
tered ; and the opinion of the profession in England at this 
moment seems to be that they produce a great deal of injus- 
tice and still more inconvenience. Yet pleadings are there 



156 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

drawn by men whose sole occupation is to learn and apply 
these rules, and who undoubtedly possess a degree of skill 
and habits of caution in its use, which ought not to be ex- 
pected, and certainly would not be found, amidst the wider 
range of occupation and attainment at our bar. 

. 3d. It has long been considered essential to this system to 
allow objections to mere form. . If a party concludes his plea 
by saying that he is ready to verify what he has averred, 
when he should have said that he puts himself on the coun- 
try or e contra, and the defect is taken advantage of, his plea 
is bad. A system which can only be worked by a strict 
observance of many minute and subtle forms will scarcely 
work well in practice anywhere, certainly not here. It has 
been rather a favorite saying with common lawyers that 
form is often substance. By this is meant more than that 
the safest way to secure substance is to observe an approved 
form : it is meant that form is so necessary that it is practi- 
cally substance. And this is true to a great extent in 
special pleading. But surely it is a grave objection to the 
system. To attain the ends of pleading with the use of the 
fewest possible merely technical rules is the desideratum. 
And we do not think the system of special pleading has 
arrived at it. 

4th. In our judgment, it is a serious defect in this system 
that it requires the record, when examined upon a writ of 
error or a motion in arrest of judgment, to be free in all its 
parts from what are deemed substantial defects. In stating 
the objects of pleading, we have considered that they are 
four in number : by reference to them, it will be seen that 
all but the last have respect only to the preparation for and 
conduct of the trial. Now if the trial has been had, if all 
parties and the court have treated the allegations as suffi- 
cient, it is extremely difficult to see why in our practice 
they should not be deemed so. A trial is not like a lesson 
or a work of discipline or instruction, to be gone over again 
because it was not perfectly done the first time. Counts in 



KEFORM OF LEGAL PROCEEDINGS. 157 

contract and tort are not to be joined, because it may be 
inconvenient to try them together. But if they have been 
tried together, and the inconvenience suffered, or found 
in that particular case not to exist, it would seem to be 
a strange way to attempt to lessen the inconvenience by 
setting aside all that was done, and doing the work over 
again. Allegations are made that the parties may have 
notice. But if both parties were content to act upon 
what they had, why should either be allowed to com- 
plain afterwards? The verdict ought to conform to the 
allegations, so that it may be known that the jury have 
passed on the actual subject of dispute. But if the losing 
party makes no objection to it and suffers a judgment to be 
rendered in conformity with it, why should he be allowed 
afterwards to say that the real dispute has not been settled ? 
How do we know it has not ? He may answer, " Because 
the allegations show it." He should have said that earlier. 
Suppose he were to say, " I made a mistake in my allega- 
tions and they do not present the actual case, and so the 
jury have not passed on the real right of the matter." The 
ready answer would be, "You should have shown that 
before verdict." Why should he not show the other before 
judgment ? In short, why should any rule of proceeding be 
enforced in a particular case after the practical object of 
that rule has either been attained or waived by the parties, 
so that its attainment is no longer possible ? The rule for 
that case should be deemed to have answered its purpose, 
and be no more spoken of. 

The system of special pleading known to the common 
law seems to us not to have worked well in practice. Of this 
there is the evidence afforded by the direct testimony of 
those best qualified to judge, and by the printed reports 
of the courts by which the system has been administered. 
No more disinterested and competent witness than Lord 
Coke can be found. Speaking in the reign of James I., he 
says : " When I consider the course of our books of years 



158 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

and terms, from the beginning of the reign of Edward III., 
I observe that more jangling and questions grow upon the 
matter of pleading and exceptions to form than upon the 
matter itself ; and infinite causes lost or delayed for want of 
good pleading." (Coke on Littleton, 303 a.) 

An examination of the various statutes for the amend- 
ment of this branch of law, and the decisions of the 
courts since his day, will convince any one that these dis- 
cordant sounds have not ceased. Notwithstanding the 
efforts at reform made by the judges in the reign of William 
IV., and the new rules promulgated by them, the dissatis- 
faction of the profession and the public has continued to 
increase, and recent publications by highly respectable 
barristers assert that it is now universal at the English 
bar. During the past year, a commission has been author- 
ized by Parliament upon the promotion of the attorney- 
general, which is now considering this subject and which is 
expected to report what can usefully be done. 

Having for these reasons concluded that the English sys- 
tem of special pleading is not to be adopted, the inquiry 
recurs, What is to be done ? Shall we rest with what we 
have, or borrow a plan from a system of foreign law, or 
attempt to create a new one? We can advise neither. There 
seem to us to be decisive objections to each. To rest as we 
are is to continue to impose upon the people of the Common- 
wealth a burden of delay, vexation, and expense, which in our 
judgment necessarily grows out of the present state of things. 

To borrow a plan from a system of foreign law would be 
extremely hazardous and inconvenient. There is an intimate 
connection between a system of law and its modes of proce- 
dure, and we should fear to try the experiment of raising 
such a foreign plant in our soil. The habits, terms, modes 
of thinking, and all that enters into the practical working 
of proceedings for the administration of justice, and causes 
them to move kindly and easily, forbid such an attempt. 

Still less should we be willing to create a new plan. Wo 



REFORM OP LEGAL PROCEEDINGS. 159 

have no such confidence in our own powers as would permit 
us to engage in such a work. Indeed, we have little respect 
for such a work, in whosever hands it may be. From the 
days when Mr. Locke created a constitution down to the 
production of the last code which came out of the closet of 
any professor, we believe one important lesson has been 
taught: that all law should be derived, not created; deduced 
by experience and careful observation from the existing 
usages, habits, and wants of men, and not spun out of the 
brains even of the most learned. 

Our earnest endeavor therefore has been to take what we 
now have, — with which all practitioners and, to a certain 
extent, the people themselves are acquainted, and to which 
their habits are adapted, — and amend and build upon it, not 
in a foreign style of architecture or with wholly new mate- 
rials, but, as far as possible, with old materials and after 
the old fashions, calling things by their old names when- 
ever they can be applied. We have proposed to retain the 
ancient, fixed, and well-defined general division of personal 
actions, striking out the sxibdivisions which we deem unneces- 
sary, and thus getting rid of a large body of technical rules 
respecting those subdivisions and the means of preserving 
them. Something had already been done by the legislature 
in this quarter. By Statute 1836, c. 273, § 3, it was enacted 
that, when the plaintiff shall mistake the form of action 
suited to his claim, the court shall permit amendments ; 
and by Statute 1839, c. 151, § 4, it was enacted that in 
actions on the case it shall be no objection that the form 
ought to have been trespass. It would seem to be difficult 
to give a good reason why the converse should not hold 
true, and that of this statute it might be said that it is a 
poor rule which will not work both ways. 

We have proposed to retain the declarations known to the 
common law, because practitioners and the courts are now 
familiar with them, and because we believe there is thereby 
afforded a body of precedents for stating the plaintiff's case, 



160 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

which for clearness, precision, and brevity have never been 
equalled, and a system of rules for framing new forms, 
when the rare case occurs requiring one, which system, as 
amended in this act, is not difficult to be understood and 
applied. We have endeavored to provide forms adapted to 
some usual cases, that they might be enacted by the legisla- 
ture, placed in the hands of ail who have use for them, and 
afford guides for the framing of such others as may be need- 
ful in practice. The office of the declaration is to state 
the facts on which the plaintiff founds his claim, and to 
make known to the defendant and the court what that 
claim and those facts are. By an amendment proposed 
(sect. 2), nothing more than this shall be required. Here- 
after no judgment shall be arrested, because the plaintiff 
does not say contra formam gtatuti, when it is the business 
of the court to know whether what is alleged to have been 
done was against the form of a statute ; nor shall he be 
required to state any thing but the truth. Legal fictions 
may be harmless, for they deceive no one ; but we do not 
find them necessary, and they would be a serious embar- 
rassment in the plan we propose, which requires each party 
to verify by his oath or affirmation what he alleges. 

This subject of the verification of allegations by the 
parties has been much considered. 

According to the rules which we propose, the parties will 
have two strong reasons for telling what they believe to be 
the truth in their allegations, so far as those allegations go. 
The first is that each party puts the result of his case upon 
the facts which he states ; and he will of course desire to 
state those which he believes he can prove, otherwise he 
must fail. The second is that he is required to declare, 
under the highest sanction known to the law, that he 
believes what he says. We cannot think it unreasonable 
to require this of the parties. If they do not believe what 
they say, they ought not to have an opportunity to try to 
make the court and jury believe it, or to call witnesses and 



REFORM OF LEGAL PROCEEDINGS. 161 

make their oaths a substitute for their own. It is our 
opinion that this requisition will be attended with impor- 
tant practical benefits ; that it will check unfounded claims, 
and still oftener unjust defences to good claims, which are 
now entered upon not seldom, we fear, with a knowledge 
on the part of the defendant that the plaintiff ought to pre- 
vail, but a hope that, if put to prove his claim, he may on 
some point fail. If every defendant be required to state 
distinctly in writing what his defence is, and to verify it 
by his oath, we think very few such defences would be at- 
tempted. It may be said, " Bad men will swear falsely." 
But no new advantage will be gained by them, if they do 
so ; for their oath is not evidence : it only puts them in a 
condition to be heard upon their proofs, and they have that 
privilege now without any restriction. 

It is the opinion of the commissioners that the system of 
written allegations proposed in the following statute will pro- 
duce speedy judgments at a small expense on uncontested 
claims ; that it will tend to check merely speculative suits ; 
that it will generally prevent parties who know they have 
no defence from pretending to have one, in order to obtain 
delay, or to put the plaintiff to prove his case in the hope 
that he may fail ; that it will separate the actions which are 
for trial from those which are not for trial ; that it will 
apprise the parties and the court of what is to be tried ; that 
it will afford means of separating the law from the fact ; and 
that it will accomplish these objects by few technical rules, 
and with as little labor and expense as their nature admits of. 

To this plan the commissioners propose to have added 
such provisions as will enable each party to resort to the 
knowledge of the other party, and obtain a discovery of facts 
and documents pertinent to the suit. This may now be 
done by a separate suit in equity called a bill of discovery. 
But it is expensive, dilatory, hampered by many technical 
rules, and from these and other causes is, in our practice, as 
nearly useless as any remedy can well be. 

VOL. II. 11 



162 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

The commissioners for revising the statutes, in their re- 
port, made in December, 1834, revised the then existing law 
of the Commonwealth respecting forcible entry and detainer, 
and embodied it in the first nineteen sections of the one 
hundred and fourth chapter of their report. The residue of 
that chapter contained the laws of remedy as between land- 
lord and tenant, to which the process of forcible entry and 
detainer was supposed to have some resemblance. When 
this report came under consideration of the legislature, 
those two subjects were amalgamated, and one process only 
was provided for both classes of cases. It has seemed to 
the undersigned, from their knowledge of the practical effect 
of this change, as well as from a review of the legal prin- 
ciples involved in it, that these two processes do not admit 
of being thus united without working important and injuri- 
ous changes in the character of both, and that the manner 
of> uniting them in the Revised Statutes has obliterated the 
distinctive features of the process of forcible entry, and 
greatly impaired its utility. The object of this process is 
not to settle title, but only the right of present possession ; 
and not even this, except in cases where the possession has 
been disturbed, or an entry is prevented, by force. It is 
really to quell force and violence, and to protect the public 
peace, by promptly depriving the wrong-doer of the fruit 
of his wrong. This is very different from a case where a 
tenant holds over after the end of his term, and requires 
a different remedy ; and the ancient and long existing law 
of the State provided one adapted to the case, but differing 
widely from the landlord and tenant's process. The former, as 
we have said, did not involve title. If the person entering or 
detaining by force was the lawful owner, and the complain- 
ant had, as against him, no mere right whatever to the 
property, such owner was to be turned out of the possession 
which he unlawfully gained by force. But the latter is 
always a question of title, and nothing else. The former 
was an inquisition, the latter is a trial with right of appeal. 



REFORM OF LEGAL PROCEEDINGS. 163 

This is far from being a formal distinction. Mingling these 
remedies renders impossible that summary and vigorous 
justice which is appropriate to a case where illegal violence 
has been used to disturb possession. We attribute no little 
importance also to the fact that the inquisition was to be 
made by twelve men of the neighborhood. It seems to us 
to be fit that in such a case a jury should be called ; that it 
would tend to check such wrongs, as well as to discover the 
truth in the particular case. A forcible entry is a high 
offence against the public peace, undoubtedly indictable as 
a misdemeanor, and should be treated with more solemnity 
than to be disposed of in a justice's office in the same way 
as a small debt. On examining the different sections of the 
104th chapter of the Revised Statutes, we find it difficult to 
determine how far some of them apply to one or the other 
of these proceedings. The third section is as follows : 
" No restitution shall be made, under the provisions of this 
chapter, of any lands or tenements of which the party com- 
plained of, or his ancestors, or those under whom he holds 
the premises, have been in the quiet possession for three 
years next before the filing of the complaint, unless his 
estate therein is ended." This limitation, which without 
the last restrictive clause is perfectly applicable to forcible 
entry, with this last clause ought not to be so applied. For 
suppose the party's estate is ended, if he has held more than 
three years by force, it would be absurd to give a summary 
remedy against him. The process is not fit for such a case. 
On the other hand, as between landlord and tenant, this 
last clause makes the whole section useless. For of course 
the landlord cannot have restitution till the tenant's estate 
is ended. So that the exception embraces every case of this 
class which could by possibility come within the rule. The 
eighth section gives a right of appeal, and upon appeal the 
case is to be conducted like other appeals from justices in 
civil actions ; and, by section ninth, if the title shall appear 
to be in question, the case is to be transferred to the Court 



164 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

of Common Pleas. How much of this is applicable to the 
one proceeding or the other, it is not easy to say. If it was 
meant that the title can and may be put in issue in a pro- 
cess for forcible entry, it is plain it ceases to be of any 
value when the party who entered with force had title, and 
the process becomes a clumsy writ of entry, which tries the 
title without settling it. We have concluded, therefore, to 
recommend the restoration of the law substantially as it 
existed from ancient times, and the necessary provisions 
for that purpose will be found in sections 83 to 102 
inclusive. 

According to the common law, no person who has pre- 
viously been convicted of any infamous offence in this Com- 
monwealth (Rev. Stat. c. 94, § 56), of which petty larceny 
may be considered the least ; and no person who has any 
pecuniary interest in the result of the suit can be examined 
as a witness. Persons convicted of those offences out of the 
Commonwealth, or who have received a pardon from the 
executive, are competent. Any one having a pecuniary 
interest, who can divest himself of it or be released, may 
thus become competent. The statutes of this Common- 
wealth have from time to time made many inroads on these 
rules of exclusion. From the year 1785 down to the last 
session of the legislature, a series of acts have rendered 
competent members of certain public and private corpora- 
tions, some informers suing for penalties, parties when a 
third person contested the title to property attached, or 
where usury or gaming was averred, fence-viewers in suits 
for fees, and executors, administrators, guardians, and trus- 
tees in certain cases. In England as early as 31 Geo. III. 
c. 127, persons convicted of petty larceny were made com- 
petent to testify; and by 9 Geo. IV. c. 32," the disability 
was removed from those convicted of misdemeanors ; and, 
finally, in 1843 (6 & 7 Vict. c. 85) it was enacted that no 
person should be disqualified to give evidence by reason of 
interest in the subject of the suit, or by a previous con vie- 



REFORM OF LEGAL PEOCEEDINGS. 165 

tion of any offence ; but this was not extended to parties, 
or to the husband or wife of any party. 

This law in substance the commissioners recommend to 
be passed, and the 104th section of the act contains the 
necessary provisions to that effect. It affects two distinct 
classes of cases, — interested witnesses and criminal wit- 
nesses. Different considerations are applicable 'to each. 
And, first, as to interested witnesses. If the object of the 
law is to allow those only to testify who are free from 
interest, it certainly does not attain this end, not only be- 
cause it does not attempt to exclude any who have an 
interest, however deep, in the parties to the suit or in the 
question to be tried, but because in almost all cases any 
person whom either party desires to call, and who is willing 
to be called, can easily qualify himself or be qualified, 
without changing his actual relation to the suit or its sub- 
ject-matter. The very common case of a corporation illus- 
trates this. A person owns stock in a corporation. The 
corporation wants his evidence in a suit to which it is a 
party. He is willing to testify, and he transfers his shares 
to a friend and takes a note in payment. There is no con- 
tract that he shall have the shares again and restore the 
note, — • though it is an every-day occurrence for such wit- 
nesses frankly to say on the stand that they have no doubt 
they shall have the shares again ; and it not seldom happens, 
when a second trial comes on, that the witness has had them 
back, and has gone through the form a second time, just 
previously to or during the second trial. So when a mas- 
ter is sued for the negligence of his servant, and in a great 
variety of other eases, a release puts an end to the legal diffi- 
culty, though the witness's real disposition and relation to 
the suit have not changed. Now this state of the law is 
open to very serious objections. It gives rise to many nice 
and difficult questions respecting interest, to be passed on 
by the judge in the course of a jury trial, which not only 
consume much time in discussion, but not seldom, being 



166 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

ruled erroneously, render new trials necessary. It begets 
contempt of the law, to see it insisting positively on rules 
which a scratch of the pen evades, and tends to fix in the 
public mind an impression that the law countenances indi- 
rection and quibbling. It puts it in the power of witnesses 
to determine whether they shall be examined or not. For 
if a person will not qualify himself or be qualified, he can- 
not be examined, and thus he may if he please keep back so 
much of the truth as he knows, and increase the chances of 
injustice. When we consider, therefore, how incomplete 
the rule is at the best, how many embarrassments its ad- 
ministration produces, how easily it is evaded, and how 
much reproach it brings upon the administration of justice, 
we do not hesitate to recommend a change. 

Respecting persons convicted of crimes, we have much 
more doubt. The theory of the law is that such persons 
have shown themselves not possessed of that moral charac- 
ter which is a necessary basis on which to repose confi- 
dence ; that what they say may be true or false, but we 
have no such certainty that it is the former as to render 
their evidence fit material out of which to construct a ver- 
dict. But here, again, the rule is extremely partial and 
incomplete. There is no difference between a larceny and 
a conviction of it on one side of the State line and the 
other. Yet, if on our side, the man is excluded; if on the 
other side, he is admitted. It is true that all general rules 
must stop somewhere, and the State line in this case may be 
the proper place. As a rule of exclusion, it may be the best 
which the subject admits of. If we are to have a rule of 
exclusion, this may be the right one. But this does not 
prove that any rule of exclusion is practically expedient; 
and, in determining its practical expediency, the impossibil- 
ity of framing one which is not partial and incomplete is 
seriously to be weighed. It may be said that this consid- 
eration is not of much importance, because persons convicted 
of crimes and offered as witnesses here in Massachusetts 



REFORM OF LEGAL PROCEEDINGS. 167 

will most probably have been convicted here, and so be 
excluded. But we doubt this fact. Criminals are not gen- 
erally stationary. When out of the hands of justice, they 
are very apt to go where they are not known ; and, consider- 
ing the great increase of immigration into this State from 
foreign countries, and the facilities for locomotion which are 
increasing so fast, and the laws punishing what are called 
" second comers," we can have little doubt that the number 
of persons now within our limits, who have been convicted 
of crimes out of Massachusetts, exceeds the number con- 
victed in Massachusetts ; and this disproportion is not 
likely to diminish. The rule has not therefore the recom- 
mendation that it is directed against those cases most likely 
to occur, qua frequentius accidunt. On the contrary, its 
practical effect is to operate on the smaller, and leave 
untouched the larger number. 

We have been a good deal influenced by the course of 
legislation in England. It is well known that changes of 
this character in their common law are made with great 
caution, not to say reluctance, and that this was even more 
true formerly than at present. It is known also that such 
changes when made are watched by very vigilant and com- 
petent persons, and that, if their practical operation proves 
to be bad, no enlargement of them is to be expected. Now, 
as we have said before, this rule of the common law exclud- 
ing persons convicted of infamous offences was broken in 
upon in the 31st of Geo. III. After some years' experience 
of its operation, it was still further restricted ; and in 1843, 
under the auspices of a judge of great practical experience 
as well as eminent judgment and sagacity, the whole rule 
was abolished. We would not speak with confidence of the 
identity of their wants and ours, for we know the difficulty 
of forming a comprehensive and perfectly safe opinion on 
such a subject. But there are so many points of resem- 
blance that we think we cannot err in saying that their 
experience is worthy of great consideration. In both coun- 



168 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

tries, substantially the same system of law is administered, 
by tribunals constituted in the same way, and eliciting 
truth by the same instrumentalities. The court tries the 
law, and the jury the facts. The rules of examination and 
cross-examination are similar. We should be sorry to 
believe, and see no reason to believe, that our juries are 
less intelligent, discriminating, , sagacious, or judicious, in 
short, less fit to be trusted to weigh and sift doubtful testi- 
mony, than theirs. And therefore we have been influenced 
ourselves by their course of legislation, and have brought it 
to the notice of the legislature, that it may have its due 
weight. 

It has been suggested that all rules of exclusion should 
be repealed, that parties to suits should be allowed and 
compelled to testify, and the husband and wife be witnesses 
for and against each other. In this opinion we do not 
concur, for reasons which apply to each case. 

As regards husband and wife, we are satisfied of the pro- 
priety of the rule, which protects as confidential all that 
may be said or done by either when alone with the other, 
except so far as the personal safety of either party from 
violence requires its disclosure. The reasons for this must 
occur to every mind. We think it would materially affect 
this most important relation, if the parties could be com- 
pelled to appear as witnesses against each other. To allow 
a husband to call his wife as a witness in his own behalf 
seems to us also objectionable, not so much from the danger 
of perjury as from the effect of influences extremely adverse 
to the perception and recollection of the truth. 

A great deal of discussion has been had concerning the 
examination of parties on the stand. The plan does not 
meet our approval, though we have no doubt that the means 
of probing the conscience of a party concerning facts within 
his knowledge ought to be greatly increased, and we have 
accordingly proposed such provisions as seem to us to be 
safe and expedient. But against the examination of parties 



KEFORM OF LEGAL PROCEEDINGS. 169 

in open court on the stand there are many objections, and 
one which to our minds is alone decisive. Advocates, 
charged with the management and conduct of causes on 
trial, have been found necessary in all civilized countries. 
One principal reason is that there are great inequalities 
between different men in respect to memory, judgment, 
acuteness, rapidity of perception, power of expression, and 
whatsoever tends to make a strong impression on a tribunal 
and to produce a favorable result. This inequality is much 
diminished by employing persons trained to this occupa- 
tion ; for, though there are inequalities in these particulars 
amongst persons so trained, they are far less than would 
otherwise be found. Now, if parties are put on the stand 
in presence of the jury, to be examined and cross-examined 
by dexterous and skilful lawyers, this inequality comes in 
play with increased effect. Place a man with a strong, 
clear head, and quick apprehensions on one side, and one 
who never knew any thing certainly in his lifetime on the 
other, and what chance of justice would the last have in a 
case at all doubtful ? It is a great mistake to suppose that 
all justice or all truth is on one side of every case or even 
of most cases. By far the larger number have elements of 
right and truth on both sides, and the grand difficulty con- 
sists in finding out which has the most. Now, let such a 
man as is first described stand up and testify his part of the 
truth, and you will be sure to get it all, and that in the way 
to make the most impression ; and when the other comes to 
tell his part, he does not know it, or if he does he cannot 
tell it, and is about as likely to go wrong as right, with 
intentions as fair as those of the first one. Every experi- 
enced lawyer knows that this must be so from his inter- 
course with clients under circumstances far more favorable 
to the discovery of the truth, than if they were on the 
stand. So that we believe it would prove in practice to 
be any thing but promotive of that equality which justice 
loves, and which is essential to the attainment of it, to 



170 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

allow parties to appear on the stand. We should also 
apprehend not a little danger of rash and inconsiderate 
swearing in the heat and excitement of a trial, when the 
stress of the case was felt, if dexterous examination and 
cross-examination should be applied to the litigants them- 
selves. We do not think it for the interests of justice or 
the public morals that parties ^should be placed in such 
situations. 

Nevertheless, it does not seldom happen that facts are 
known to parties alone, or that the means of proof are 
expensive and difficult to be had, or that the facts are not 
susceptible of denial, and no proof ought to be required; 
and in these cases it is clear there should be some means of 
compelling the parties to answer. This is now done by a 
bill of discovery filed on the equity side of the court ; but 
this is a slow, expensive, and we think the experience of 
the profession will justify us in saying almost a useless, 
remedy. We propose to substitute for this a right to file 
interrogatories in writing touching any matter pertinent to 
the suit, which the party to whom they are addressed must 
answer on oath or affirmation. This has long been prac- 
tised in courts of admiralty, and was introduced into the 
courts of Virginia some time since, and more recently into 
those of some other States. We believe it will be an 
extremely useful instrument, and will attain most of the 
benefits, without the evils, of examining parties as witnesses 
on the stand. 

Explanations of many of the proposed changes will be 
found in the form of notes under the sections to which 
they respectively relate. 

The commissioners have embraced in this report no pro- 
visions as to proceedings in equity. The reason is that they 
have arrived at an opinion : that proceedings in equity may 
reasonably be conformed to a very great extent to proceed- 
ings at law, that this is the best mode of reforming those 
proceedings, and that, until the latter have been settled and 



EEFOEM OF LEGAL PROCEEDINGS. 171 

enacted by the legislature, it is not wise to attempt to do 
any thing with the former. They have, however, prepared 
themselves to report on this part of their commission at an 
early day ; and, as soon as they can know what system of 
legal proceedings is to be taken as their basis, they will 
have the honor to submit their second report. 

It is scarcely necessary to say that the statute which fol- 
lows has no pretension to the name or character of a code 
of practice. It is simply what its title imports, an act to 
change some of the proceedings, practice, and rules of evi- 
dence of the courts of the Commonwealth. It may be 
doubted whether the codification of the law of procedure 
would have been within the authority conferred on the com- 
missioners. But they have not particularly considered this, 
for they are of opinion that it is not expedient to make such 
a code. All changes in the form as well as in the substance 
of laws are necessarily productive of some inconvenience, 
and tend to produce new doubts and questions. Changes 
can be justified only by the existence of practical evils which 
admit of clear and appropriate remedy. By these consid- 
erations, the commissioners have endeavored to govern them- 
selves in making the proposals contained in the following 
draft of an act, which they respectfully submit to the legis- 
lature. They desire to bear their testimony in favor of the 
simplicity, efficiency, and general excellence of a large part 
of the modes of proceeding in the courts of justice in this 
Commonwealth. No better evidence of their own opinion 
can exist than that, under a commission so broad, they have 
recommended comparatively few changes. From these, if 
adopted by the legislature, they believe important benefits 
will be derived. 

All which is respectfully submitted by 

B. R. Curtis, 
N. J. Lord, 
R. A. Chapman, 
Commissioners. 



172 PROFESSIONAL AND MISCELLANEOUS "WRITINGS. 



CHAKGE TO THE JURY 

IN THE CASE pF THE 

UNITED STATES versus ROBERT MORRIS, 

Before Curtis and Sprague, JJ. 

November 11, 1851. 



Judge Curtis in charging the jury said that a preliminary 
question as to the powers of the court and jury in criminal 
cases, which had been fully and ably argued in their hear- 
ing, had been considered by the court and an opinion pro- 
nounced ; and that the court had decided that it was their 
duty to express their opinion of the law, and that the jury 
were to take the law as stated by the court, and apply it to 
the facts which they find. As to the facts, the court had 
no responsibility; and here the responsibility of the jury 
begins. The indictment was explained to consist of a large 
number of counts, which, however, for the sake of clearness 
and convenience, might be divided into two classes. First, 
the first fourteen counts to sustain which it was necessary 
for the government to prove that Shadrach was lawfully 
held to service by John Debree ; that he escaped to Massa- 
chusetts ; that John Caphart was Debree's agent, duly 
authorized to claim him; that on Caphart's complaint a 
warrant was issued by the commissioner; that Shadrach 
was arrested thereon and brought into this court-room ; 
that time was granted by the commissioner ; that an order 
was passed by the commissioner, directing to keep the pris- 
oner, which order was delivered to Patrick Riley, the 



UNITED STATES V. ROBERT MORRIS. 173 

Deputy Marshal ; that Shadrach, while so held by the mar- 
shal under this order escaped, and that Morris aided the 
escape. Under the second class, embracing the remaining 
counts of the indictment, it was necessary for the govern- 
ment to prove that Mr. Riley held Shadrach under lawful 
process of the United States, and that Morris obstructed 
him in the execution of this process ; and, as to all this, the 
burden of the proof is on the government. 

The court said that it would be best for the jury to 
examine these charges separately, although all the facts 
were common to both. And, first, they should consider 
whether in point of law and fact they were made out. As 
to some of the facts, there was no controversy, but other im- 
portant facts remained on which the jury must pass. First, 
was Shadrach held to service, by the laws of Virginia, by 
John Debree ; and was he the identical person respecting 
whom the papers were given by Debree to Caphart? It 
had been argued to the jury that they were to believe these 
facts only on such evidence as would induce them to send 
one of their own children into slavery. But this was not 
so : there was here no such question, it is to be judged by 
the facts ; and the question is, Do the jury believe the wit- 
nesses ? As to Debree there is no question, and no attempt 
is made to impeach him. Then as to Caphart. The law 
has provided rules ; and one is that a witness under oath is 
to be believed, unless in some way his testimony is im- 
peached or invalidated. Is any thing adduced here going 
to impugn Caphart's character for truth and veracity ? It 
has been argued that he has made such statements as to his 
relations with the colored population as should have that 
effect. A witness, a stranger among us, should be treated 
with fairness, and is not to be overwhelmed by our tem- 
pestuous sensibility. If, however, his statements as to his 
occupation and station in life seem to you to discredit him, 
then the first charge against the prisoner must fail, because 
Shadrach is not shown to have been held as alleged, or was 



174 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

not the person described. All these counts rest on that 
allegation. 

In the next place, there is very little controversy as to the 
question whether Mr. Riley was a person lawfully assisting 
the agent of Debree, as all these facts do appear by the 
papers of the case, and are made out by the law. The main 
question in the case then is, Did the defendant knowingly 
aid or assist in the escape ? The question of conspiracy has 
been fully argued, but does not appear to the court to be 
very material. It is agreed that Shadrach was rescued by 
a body of men acting in concert, and it is quite immaterial 
at what time that concert was formed. Morris's acts and 
declarations might be divided into two parts, those made 
before the adjournment of the court and those subsequent 
to that time. The first depends on the declaration of Shad- 
rach himself ; and they were to consider whether any others 
than counsel had communicated with him, whether it was 
made in reference to an escape or attempt to do so, and 
whether it was in consequence of any declaration made by 
Mr. Morris. The government is bound to show not only 
that the circumstances are consistent with guilt, but that 
they are inconsistent with innocence. Morris, as counsel, 
had the same rights and privileges as other counsel, and his 
conduct must be presumed right until proved to be wrong. 

It may perhaps be necessary to take other circumstances 
into consideration : they must be viewed as a whole. If all 
his conduct is sufficient to satisfy you that he was engaged 
in preparing a rescue, he is guilty of this part of the charge ; 
but if, viewed altogether, it is consistent with his having no 
such plan, the charge is not proved. Even if it do not 
appear that he aided in the rescue, yet if he was present, 
and did nothing to prevent it, this would render him guilty 
under the statute ; or in the testimony respecting his dec- 
laration in the entry, that there was a good " time " or 
" chance," it was their duty to take that impression which 
was most favorable to the prisoner, if there is any difference 



UNITED STATES V. ROBERT MORRIS. 175 

between them. As to his alleged acts opposite Deacon 
Grant's house, there is a contradiction between the wit- 
nesses, and you will consider whether their testimony can 
be reconciled. As to the contradictory evidence respecting 
the question whether or not he was in the cab, they were 
to consider the probability of Harding's seeing Morris walk- 
ing with Shadrach in Southac Street, others testifying that 
they did not see him there. 1 

The greatness of the crime and its consequences had been 
spoken of to the jury. And it was true that a great crime 
had been committed in the very place where justice is ad- 
ministered, which, if repeated, may lead to violence and 
bloodshed ; but, though thus serious, they were not to con- 
vict an innocent man, but to consider the evidence with 
vigilance and fairness. The importance of the consequences 
to the prisoner should on the other hand guard them against 
light suspicions : they should act only on proper proof. They 
were to decide on their evidence as the good of society and 
the demands of justice required. 

The jury received the case at half-past two o'clock, and 
at five were directed to return a sealed verdict, in case they 
should agree before the coming in of the court. At half- 
past nine o'clock this morning, they returned a verdict of 
not guilty. 

1 Under the second counts, it was necessary to prove that Shadrach was 
lawfully held by the marshal ; and, if the jury believe that he was so held 
by the order of the commissioner, the same evidence that would have proved 
aiding in the rescue under the first counts will, under these, show that he 
resisted the officer. The Fugitive Slave Law the court held to be constitu- 
tional and valid, binding on the court and the jury as citizens, and in their 
official capacity. 



176 PROFESSIONAL AND MISCELLANEOUS WHITINGS. 



JUDICIAL OPINION 

ON THE QUESTION, WHETHER JURIES ARE RIGHTFULLY 
JUDGES OF THE LAW, IN CRIMINAL CASES, IN THE 
COURTS OF THE UNITED STATES. 

Pronounced in the Case of Tub United States v. Robert Morris, in the 
Circuit Court of the United States, for the Massachusetts District, October 
Term, 1851. 



The circumstances of the case in which this question arose are 
stated ante, vol. i. chap. vii. 

The Constitution of the United States, art. 3, § 2, pro- 
vides that " the trial of all crimes, except in cases of 
impeachment, shall be by jury." The counsel for the de- 
fendant maintains that, in every such trial of a crime, the 
jury are the judges of the law as well as of the fact ; that 
they have not only the power, but the right, to decide the 
law; that, though the court may give its opinion to the 
jury respecting any matter of law involved in the issue, yet 
the jury may and should allow to that opinion only just 
such weight as they may think it deserves ; that, if it does 
not agree with their own convictions, they are bound to dis- 
regard it, the responsibility of deciding rightly all questions 
both of law and fact involved in the general issue resting 
upon them, under the sanction of their oaths. 

This is an important question, and it has been pressed 
upon the attention of the court with great earnestness and 
much power of language by one of the defendant's counsel. 
I have no right to avoid a decision of it. I certainly should 
have preferred to have a question of so much importance 
— respecting which so deep an interest is felt, such strong 



ABE JURIES JUDGES OF THE LAW? 177 

convictions entertained, and, I may add, respecting which 
there has not been an entire uniformity of opinion — go to 
the highest tribunal for a decision ; but it is not practicable 
in this case. I proceed, therefore, to state the opinion 
which I hold concerning it. The true question is, What 
is meant by that clause of the Constitution, "the trial of 
crimes shall be by jury " ? 

Assuming what no one will controvert, that the tribunals 
for the trial of crimes were intended to be constituted as 
all common-law tribunals in which trial by jury was prac- 
tised were constituted, having one or more judges who 
were to preside at the trials and form one part of the tri- 
bunal, and a jury of twelve men who were to form the 
other part, and that one or the other must authoritatively 
and finally determine the law, was it the meaning of the 
Constitution that to the jury, and not to the judges, this 
power should be intrusted? There is no sounder rule of 
interpretation than that which requires us to look at the 
whole of an instrument before we determine a question of 
construction of any particular part ; and this rule is of the 
utmost importance, when applied to an instrument the 
object of which was to create a government for a great 
country, working harmoniously and efficiently through its 
several executive, legislative, and judicial departments. It 
is needful, therefore, before determining this question upon 
a critical examination of the particular phrase in question, 
to examine some other provisions of the Constitution, which 
are parts of the same great whole to which the clause in 
question belongs. We find in article 6 : " This Constitu- 
tion, and the laws of the United States which shall be made 
in pursuance thereof, and all treaties made, or which shall 
be made, under the authority of the United States, shall be 
the supreme law of the land." Nothing can be clearer than 
the intention to have the Constitution, laws, and treaties 
of the United States in equal force throughout every part of 
the territory of the United States, alike in all places, at all 

VOL. II. 12 



178 PROFESSIONAL AND MISCELLANEOUS WHITINGS. 

times. To secure this necessary end, a judicial department 
was created, whose officers were to be appointed by the 
President, paid from the national treasury, responsible, 
through the House of Representatives, to the Senate of the 
United States, and so organized, by means of the Supreme 
Court established by the Constitution, and such inferior 
courts as Congress might establish, as to secure a uniform 
and consistent interpretation of the laws, and an unvarying 
enforcement of them according to their just meaning and 
effect. That whatever was done by the government of the 
United States should be by standing laws, operating equally 
in all parts of the country, binding on all citizens alike, and 
binding to the same extent and with precisely the same 
effect on all, was undoubtedly intended by the Constitu- 
tion ; and any construction of a particular clause of the 
Constitution which would tend to defeat this essential end 
is, to say the least, open to very serious objection. 

It seems to me that what is contended for by the defend- 
ant's counsel -would have something more than a mere 
tendency of this kind. " The Federalist," in discussing 
the judicial power, remarks : " Thirteen independent courts 
of final jurisdiction over the same causes, arising upon the 
same laws, is a hydra in government, from which nothing 
but contradiction and confusion can proceed." 1 But what 
is here insisted on is that every jury, impanelled in every 
court of the United States, is the rightful and final judge 
of the existence, construction, and effect of every law which 
may be material in the trial of any criminal case ; and not 
only this, but that every such jury may, and, if it does its 
duty, must, decide finally, and without any possibility of a 
revision, upon the constitutional power of Congress to enact 
every statute of the United States which on such a trial 
may be brought in question. So that we should have, not 
thirteen, but a vast number of courts, having final jurisdic- 
tion over the same causes, arising under the same laws ; 

1 Federalist, No. 80. 



ARE JURIES JUDGES OF THE LAW ? 179 

and these courts chosen by lot among us, and selected by 
the marshal elsewhere, out of the body of the people, with 
no reference to their qualifications to decide questions of 
law ; not allowed to give any reasons for their decisions, as 
will be presently shown, not sworn to decide the law, nor 
even to support the Constitution of the United States ; and 
yet possessing complete authority to determine that an act 
passed by the legislative department, with all the forms of 
legislation, is inoperative and invalid. The practical con- 
sequences of such a state of things are too serious to be 
lightly encountered ; and, in my opinion, the Constitution 
did not design to create or recognize any such power by 
the clause in question. 

Some light as to its meaning may be derived from other 
provisions in the same instrument. The sixth article, after 
declaring that the Constitution, laws, and treaties of the 
United States shall be the supreme law of the land, 
proceeds, " and the judges in every State shall be bound 
thereby." 

But was it not intended that the Constitution, laws, and 
treaties of the United States should be the supreme law in 
criminal as well as in civil cases ? If a State law should 
make it penal for an officer of the United States to do what 
an act of Congress commands him to do, was not the latter 
to be supreme over the former? And if so, and in such 
cases, juries finally and rightfully determine the law, and 
the Constitution so means when it speaks of a trial by jury, 
why was this command laid on the judges alone, who are 
thus mere advisers of the jury, and may be bound to give 
sound advice, but have no real power in the matter ? 

It was evidently the intention of the Constitution that 
all persons engaged in making, expounding, and executing 
the laws, not only under the authority of the United States, 
but of the several States, should be bound by oath or 
affirmation to support the Constitution of the United States. 
But no such oath or affirmation is required of jurors, to 



180 PKOFESSIONAL AND MISCELLANEOUS WHITINGS. 

whom it is alleged the Constitution confides the power of 
expounding that instrument ; and not only construing, but 
holding invalid, any law which may come in question on a 
criminal trial. 

This may all be true; but strong reasons should be 
shown before it can be admitted. 

I have considered with much care the reasons assigned 
and the authorities cited by the defendant's counsel, and 
have examined others which he did not cite ; and the result 
is that his position, both upon authority and reason, is not 
tenable. I will first state what is my own view of the 
rightful powers and duties of the jury and the court in 
criminal cases, and then see how far they are in conformity 
with the authorities, and consistent with what is admitted 
by all to be settled law. 

In my opinion, then, it is the duty of the court to decide 
every question of law which arises in a criminal trial : if 
the question touches any matter affecting the course of the 
trial, such as the competency of a witness, the admissibility 
of evidence, and the like, the jury receive no direction con- 
cerning it ; it affects the materials out of which they are to 
form their verdict, but they have no more concern with it 
than they would have had if the question had arisen in 
some other trial. If the question of law enters into the 
issue, and forms part of it, the jury are to be told what the 
law is, and they are bound to consider that they are told 
truly : that law they are to apply to the facts as they find 
them, and thus, passing both on the law and the fact, they 
from both frame their general verdict of guilty or not 
guilty. Such is my view of the respective duties of the 
different parts of this tribunal in the trial of criminal cases ; 
and I have not found a single decision of any court in Eng- 
land, prior to the formation of the Constitution, which 
conflicts with it. It was suggested at the bar that Chief 
Justice Vaughan's opinion, in Bushnell's Case, 5 State 
Trials, 99, was in support of the right of juries to deter- 



ARE JURIES JUDGES OP THE LAW? 181 

mine the law in a criminal case : but it will be found that 
he confines himself to a narrow, though, for the case, a con- 
clusive line of argument, — that, the general issue embrac- 
ing fact as well as law, it can never be proved that the jury 
believed the testimony on which the fact depended, and in 
reference to which the direction was given, and so they 
cannot be shown to be guilty of any legal misdemeanor in 
returning a verdict, though apparently against the direction 
of the court in matter of law. 

Considering the intense interest excited, the talent and 
learning employed, and consequently the careful researches 
made in England, near the close of the last century, when 
the law of libel was under discussion in the courts and in 
Parliament, it cannot be doubted that, if any decision hav- 
ing the least weight could have been produced in support 
of the general proposition that juries are judges of the law 
in criminal cases, it would then have been brought forward. 
I am not aware that any such was produced. And the 
decision of the King's Bench in Rex v. The Bean of St. 
Asaph, 3 T. R. 428, and the answers of the twelve judges 
to the questions propounded by the House of Lords, as- 
sume, as a necessary postulate, what Lord Mansfield so 
clearly declares in terms, — that, by the law of England, 
juries cannot rightfully decide a question of law. Passing 
over what was asserted by ardent partisans and eloquent 
counsel, it will be found that the great c6ntest concerning 
what is known in history as Mr. Fox's Libel Bill was car- 
ried on upon quite a different ground by its leading friends, 
— a ground which, while it admits that the jury are not to 
decide the law, denies that the libellous intent is matter of 
law, and asserts that it is so mixed with the fact that, 
under the general issue, it is for the jury to find it as a 
fact. 1 Such I understand to be the effect of that famous 
declaratory law. (Stat. 32 Geo. III. c. 60.) The defend- 

1 Annual Register, vol. xxxiv. p. 170 ; 29 Par. His. Debates in the Lords, 
and particularly Lord Camden's Speeches. 



182 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

ant's counsel argued that this law had declared that, on 
trials for libel, the jury should he allowed to pass on law 
and fact, as in other criminal cases. But this is erroneous. 
Language somewhat like this occurs in the statute, but in 
quite a different connection, and, as I think, with just the 
opposite meaning: — 

" The court or judge, before, whom such indictment or 
information shall be tried, shall, according to their or his 
discretion, give their or his opinion and directions to the 
jury, on the matter in issue between the king and the 
defendant, in like manner as in other criminal cases." 

This seems to me to carry the clearest implication that, 
in this and all other criminal cases, the jury may be 
directed by the judge; and that, while the object of the 
statute was to declare that there was other matter of fact 
besides publication and the innuendoes to be decided by the 
jury, it was not intended to interfere with the proper prov- 
ince of the judge to decide all matters of law. That this 
is the received opinion in England, and that the general 
rule, declared in Rex v. Dean of St. Asaph, that juries 
cannot rightfully decide the law in criminal cases, is still 
the law in England, may be seen by reference to the 
opinions of Parke, B., in Parmiter v. Copeland, 6 M. & 
W. 165 ; and of Best, C. J., in Levi v. Milne, 4 Bing. 
195. 

I conclude, then, that when the Constitution of the 
United States was founded, it was a settled rule of the com- 
mon law that, in criminal as well as civil cases, the court 
decided the law, and the jury the facts ; and it cannot 
be doubted that this must have an important effect in 
determining what is meant by the Constitution when it 
adopts a trial by jury. 

It is argued, however, that, in passing the Sedition Law, 
Stat. 1798, c. 74, § 3, Congress expressly provided that the 
jury should have the right to determine the law and the 
fact, under the direction of the court, as in other cases, 



ARE JURIES JUDGES OF THE LAW? 183 

and that this shows that in other cases juries may decide 
the law, contrary to the direction of the court. 

I draw from this the opposite inference : for where was 
the necessity of this provision, if, by force of the Constitu- 
tion, juries, as such, have both the power and the right to 
determine all questions in criminal cases? and why are 
they to be directed by the court ? In Montgomery v. The 
State, 11 Ohio, 427, the Supreme Court of Ohio, in dis- 
cussing the question whether juries are judges of the law, 
refer to an article in the Bill of Rights of that State, which 
is in the same words as this section of the Sedition Act, and 
the opinion of the court then proceeds : " It would seem 
from this that the framers of our Bill of Rights did not 
imagine that juries were rightfully judges of law and fact 
in criminal cases, independently of the direction of courts. 
Their right to judge of the law is a right to be exercised 
only under the direction of the court ; and if they go aside 
from that direction, and determine the law incorrectly, they 
depart from their duty and commit a public wrong, and 
this in criminal as well as civil cases.'' 

There is, however, another act of Congress which bears 
directly on this question. The act of the 29th of April, 
1802, in section 6, after enacting that, in case of a division 
of opinion between the judges of the Circuit Court on any 
question, such question may be certified to the Supreme 
Court, proceeds, " and shall by the said court be finally 
decided. And the decision of the Supreme Court, and 
their order in the premises, shall be remitted to the Circuit 
Court, and be there entered of record, and have effect 
according to the nature of such judgment and order." The 
residue of this section proves that criminal as well as civil 
cases are embraced in it; and under it many questions 
arising in criminal cases have been certified to and decided 
by the Supreme Court, and persons have been executed by 
reason of such decisions. 

Now, can it be that, after a question arising in a criminal 



184 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

trial has been certified to the Supreme Court, and there, in 
the language of this act, finally decided, and their order 
remitted here and entered of record, that, when the trial 
comes on, the jury may rightfully revise and reverse this 
final decision? Suppose, in the course of this trial, the 
judges had divided in opinion upon the question of the 
constitutionality of the Act of 1850, and that, after a final 
decision thereon by the Supreme Court and the receipt of 
its mandate here, the trial should come on before a jury, 
does the Constitution of the United States, which estab- 
lished that Supreme Court, intend that a jury may, as 
matter of right, revise and reverse that decision ? And, if 
not, what becomes of this supposed right? Are the deci- 
sions of the Supreme Court binding on juries, and not the 
decisions of inferior courts ? This will hardly be pretended ; 
and, if it were, how is it to be determined whether the 
Supreme Court has or has not, in some former case, in 
effect settled a particular question of law? In my judg- 
ment, this act of Congress is in accordance with the Con- 
stitution, and designed to effect one of its important and 
even necessary objects, — a uniform exposition and inter- 
pretation of the law of the United States, — by providing 
means for a final decision of any question of law, — final as 
respects every tribunal, and every part of any tribunal in 
the country ; and, if so, it is not only wholly inconsistent 
with the alleged power of juries, to the extent of all ques- 
tions so decided, but it tends strongly to prove that no 
such right as is claimed does or can exist. 

An examination of the judicial decisions of courts of the 
United States since the organization of the government will 
show, as I think, that the weight of authority is against the 
position taken by the defendant's counsel. 

The earliest case is 3 Dall. 4. Chief Justice Jay is 
there reported to have said to a jury that on questions of 
fact it is the province of the jury, on questions of law it is 
the province of the court, to decide. And, in the very next 



AKE JURIES JUDGES OP THE LAW? 185 

sentence, he informs them they have the right to take 
upon themselves to determine the law as well as the fact. 
And he concludes with the statement that both law and 
fact are lawfully within their power of decision. 

I cannot help feeling much doubt respecting the accuracy 
of this report ; not only because the different parts of the 
charge are in conflict with each other, but because I can 
scarcely believe that the Chief Justice held the opinion 
that in civil cases, and this was a civil case, the jury had 
the right to decide the law. Indeed, the whole case is an 
anomaly. It purports to be a trial by jury, in the Supreme 
Court of the United States, of certain issues out of chan- 
cery. And the Chief Justice begins by telling the jury 
that the facts are all agreed, and the only question is a 
matter of law, and upon that the whole court were agreed. 
If it be correctly reported, I can only say it is not in ac- 
cordance with the views of any other court, so far as I 
know, in this country or in England, and is certainly not 
in accordance with the course of the Supreme Court for 
many years. 

In United States v. Wilson et al., Baldw. 78, which 
was an indictment for robbing the mail, the court instructed 
the jury explicitly that they had a right to judge of the 
law, and decide contrary to the opinion of the court ; but 
in The United States v. Shine, Baldw. 510, which was an 
indictment for passing a counterfeit note of the Bank of 
the United States, the defendant's counsel having insisted 
to the jury that the bank was unconstitutional, the court 
with equal explicitness told the jury they had no right to 
judge of the constitutionality of an act of Congress, and in 
the strongest terms declared that the exercise of such a 
power would leave us without a constitution or laws. With 
great respect for the very able and learned judge, I cannot 
but think that the criticism of Judge Conkling (Conk. Pr. 
426) is just, when he confesses his inability to discover any 
difference in principle between these two cases, with respect 



186 PKOFESSIONAL AND MISCELLANEOUS WHITINGS. 

to the rights of juries to decide the law in criminal cases ; 
and, if so, the later opinion of that court was entirely- 
adverse to the right claimed. 

It has been suggested that the articles of impeachment 
of Judge Chase, and the line of defence adopted by his 
counsel, have a tendency to support the views of the de- 
fendant's counsel. The first article of impeachment does 
speak of the undoubted right of juries to judge of the law 
in criminal cases ; but I can allow no other force to this 
than that it proves that a majority of the then House of 
Representatives thought it fit to make that allegation in 
that proceeding. And, although the counsel for the ac- 
cused rested the defence of their client against this charge 
mainly on a denial of the facts, yet in the arguments of 
Mr. Martin and Mr. Harper will be found a statement of 
their opinions on this question, marked with that ability 
for which both were so highly distinguished, and leaving no 
ground for the assertion that the right in question was 
conceded by them. 1 

In United States v. Battiste, 2 Sumner, 240, Mr. Justice 
Story pronounced an opinion on this question during the 
trial of a capital indictment. He denied that this right 
existed, and gave reasons for the denial of exceeding weight 
and force. If we look to the decisions of the courts of 
the States, I think we shall find their weight in the same 
scale. 

The earliest case is People v. Croswell, 3 Johns. Cas. 
337. The question was as to the right of the jury to pass 
on and decide the intent, under an indictment for a libel. 
The court were equally divided. As has already been 
suggested, this is by no means the question raised here. 
And that by the law of the State of New York, at this day, 
the jury are not judges of the law, in the sense now con- 
tended for, I infer from the opinion of Judge Barculo in 
People v. Price, 1 Barb. (S. C.) 566 ; for, in the trial of 

1 Chase's Trial, p. 182. 



ARE JURIES JUDGES OE THE LAW? 187 

an indictment for murder, he told the jury that it was 
their duty to receive the law from the court, and conform 
their decision to its instructions ; and under this ruling the 
prisoner was convicted and executed. 

This question has been very carefully considered, and 
elaborate and extremely able opinions upon it delivered by 
the highest courts in Indiana, New Hampshire, and Mas- 
sachusetts. 1 The reasoning of these opinions, so far as it 
is applicable to the question before me, has my entire 
assent. The question is not necessarily the same in the 
courts of the several States and of the United States, 
though many of the elements which enter into it are alike 
in all courts of common law, not bound by some statute or 
constitutional provision. 

It remains for me to notice briefly some of the arguments 
which are relied on by the defendant's counsel, in support 
of his position. It is said that, in rendering a general ver- 
dict of guilty or not guilty, the jury have the power to 
pass, and do in fact pass, on every thing which enters into 
the crime. This is true. But it is just as true of a gen- 
eral verdict in trover or trespass ; and yet I suppose the 
right of the jury to decide the law in those cases is not 
claimed. The jury have the power to go contrary to the 
law as decided by the court; but that the power is not 
the right is plain, when we consider that they have also 
the like power to go contrary to the evidence, which they 
are sworn not to do. 

It is supposed that the old common-law form of the 
oath of jurors in criminal cases indicates that they are 
not bound to take the law from the court. It does not 
so strike my mind. They are sworn to decide according 
to the evidence. This must mean that they are to decide 
the facts according to the evidence. But, if they may also 

i Townsend v. The State, 2 Blackf. (Ind.) 152; Pierce v. The State, 13 
N. H. 536; Commonwealth v. Porter, 10 Met. 263. 



188 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

decide the law, they are wholly unsworn as to that, and 
act under no obligation of an oath at all in making such 
decision. A passage in Littleton's Tenures (lib. 3, § 368), 
and the Statute Westminster, 2d C. 30 (13 Edw. I.), and 
the Commentary of Coke thereon, relating to an assize 
(2 Inst. 425), have been referred to, as throwing light on 
this inquiry; but it seems to me enough to say that the 
assize was not a jury ; that an assize was not a criminal 
case, but an action between party and party ; and that, if 
the statute intended to confer on the assize the right as 
well as the power to decide the law, it was a strange pro- 
vision which subjected them to punishment if they decided 
the law wrong ; for it would seem that what was right or 
what was wrong must be determined by the tribunal hav- 
ing the rightful power to determine it, which is supposed to 
be the assize itself. 1 

That it has been a familiar saying among the profession 
in this country, and an opinion entertained by highly 
respectable judges, that the jury are judges of the law as 
well as of the facts, I have no doubt. In some sense, I 
believe it to be true ; for they are the sole judges of the 
application of the law to the particular case. In this 
sense, theirs is the duty to pass on the law, — a most im- 
portant and often difficult duty, which, when discharged, 
makes the difference between a general and a special ver- 
dict, which, although they may return, they are not bound 
to return. They are a co-ordinate branch of the tribunal, 
having their appropriate powers and rights and duties, 
with the proper discharge and exercise of which no court 
can without usurpation interfere : but it is not their prov- 
ince to decide any question of law in criminal, any more 
than civil, cases ; and, if they should intentionally fail to 
apply to the case the law given to them by the court, it 

1 For some able criticism on this statute, see the opinion of Gilchrist, J., 
in 13 N. H. 542 ; Worthington on Juries, 72-94. 



ARE JURIES JUDGES OF THE LAW? 189 

would be, in my opinion, as much, a violation of duty as 
if they were knowingly to return a verdict contrary to the 
evidence. 

A strong appeal has been made to the court by one of 
the defendant's counsel, upon the ground that the exercise 
of this power by juries is important to the preservation of 
the rights and liberties of the citizen. If I thought so, 
I should pause long before I denied its existence. But a 
good deal of reflection has convinced me that the argu- 
ment drawn from this quarter is really the other way. As 
long as the judges of the United States are obliged to 
express their opinions publicly, to give their reasons for 
them when called upon in the usual mode, and to stand 
responsible for them, not only to public opinion, but to a 
court of impeachment, I can apprehend very little danger 
of the laws being wrested to purposes of injustice. But, 
on the other hand, I do consider that this power and cor- 
responding duty of the court, authoritatively to declare the 
law, is one of the highest safeguards of the citizen. The 
sole end of courts of justice is to enforce the laws uniformly 
and impartially, without respect of persons or times, or the 
opinions of men. To enforce popular laws is easy. But 
when an unpopular cause is a just cause, when a law 
unpopular in some locality is to be enforced there, then 
comes the strain upon the administration of justice; and 
few unprejudiced men would hesitate as to where that 
strain would be most firmly borne. 

I have entered thus at large into this important question, 
in the course of a jury trial, with unaffected reluctance. 
Having been directly and strongly appealed to, and finding 
that no judge of any court of the United States had in 
any published opinion examined it upon such grounds 
that I could feel I had a right to repose on his decision 
without more, I knew not how to avoid the duty which 
was thus thrown upon me. My firm conviction is that 



190 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

under the Constitution of the United States juries in 
criminal trials have not the right to decide any question 
of law ; and that, if they render a general verdict, their 
duty and their oath require them to apply to the facts, 
as they may find them, the law given to them by the 
court. 



GREENE V. BRIGGS. 191 



JUDICIAL OPINION 

ON THE CONSTITUTIONAL VALIDITY OF AN ACT OF THE 
GENERAL ASSEMBLY OF RHODE ISLAND "FOR THE SUP- 
PRESSION OF DRINKING-HOUSES AND TD?PLING-SHOPS." 

Delivered in the Case of Greene v. Briggs, in the Circuit Court of the United 
States for the Rhode Island District, November Term, 1852. 



The occasion on which this opinion was delivered is described 
mite, vol. i. chap. vii. 

This is an action of replevin for a quantity of wine and 
spirits, alleged to have been unlawfully taken and detained 
by the defendants, who justify the taking and detention 
by virtue of certain proceedings set forth in their avowry. 
These proceedings depend, for their validity, upon an act 
of the General Assembly of the State of Rhode Island, 
passed at its May session in the year 1852, and entitled 
" an Act for the suppression of drinking-houses and tippling- 
shops." 

The plaintiff, having demurred to the avowry, insists that 
some of the provisions of this act, necessary to maintain the 
validity of these proceedings, are in conflict with the Con- 
stitution of the State, and therefore void ; and so the taking 
and detention complained of are not justified. 

The plaintiff is a citizen of the State of New York. 
Under the Constitution and laws of the United States, he 
is entitled to come into this court, and find here a remedy 
for any legal wrong done to him by citizens of Rhode Island. 
An adjudication upon his rights may, and in this case does, 
involve important questions arising under the Constitution 



192 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

and laws of the State ; but in such a case it is our duty to 
determine them, — a duty which we should neither seek 
nor avoid, but perform. 

The Constitution of Rhode Island (art. 1, § 15) de- 
clares : — 

" The right to the trial by jury shall remain inviolate." 
The tenth section of the same article is as follows : — 
" In all criminal prosecutions, the accused shall enjoy the 
right to a speedy and public trial by an impartial jury ; to 
be informed of the nature and cause of the accusation ; to be 
confronted with the witnesses against him ; to have com- 
pulsory process for obtaining them in his favor ; to have the 
assistance of counsel in his defence, and shall be at liberty 
to speak for himself ; nor shall he be deprived of life, lib- 
erty, or property, unless by the judgment of his peers, or 
the law of the land." 

Taking these two sections together, it may be said of 
them in general that, while the fifteenth section recognizes 
the existence of the right of trial by jury, and makes effect- 
ual provision for its preservation as it existed when the 
Constitution was formed, the tenth section declares, not 
only that this right is to exist in all criminal cases, but is 
to be accompanied by certain incidents and modes of pro- 
ceeding, which are therein prescribed and defined. In other 
terms, in civil causes a trial by jury is to be had in those 
classes of cases in which it had been practised down to the 
time when the Constitution was formed ; and such trial is 
to be substantially in accordance with such modes of pro- 
ceeding as had then existed, or might thereafter be devised 
by the legislature, without, impairing the right itself. But, 
in all criminal cases, the right to a trial by jury, accompa- 
nied by the other privileges enumerated and denned, is 
absolutely to exist. 

In order to decide whether those parts of this act neces 
sary to sustain the avowry are in conflict with these funda- 
mental laws, we must have a clear view of what the act 



GREENE V. BEIGGS. 193 

contains ; and as it provides for modes of proceeding quite 
anomalous, and some of its clauses need construction, I shall 
begin by stating what these parts of the act, in my judg- 
ment, authorize and require; and I shall then consider 
whether the proceedings, thus authorized and required, are 
in harmony with the constitution of the State. 

Under this act, three voters, in the town or city where the 
complaint is made, may make a complaint in writing, under 
oath, to some justice of the peace, setting forth that they 
have reason to believe, and do believe, that spirituous or 
intoxicating liquors are kept or deposited and intended for 
sale in that town or city, by some person not authorized to 
sell the same under the provisions of the act. It is not 
required that any particular person should be named in the 
complaint as the person intending to sell such liquors con- 
trary to law ; nor was any person in fact named in the 
complaint which was the foundation of the proceedings in 
question. Upon the filing of such a complaint, the justice 
of the peace is to issue a warrant of search, directed to the 
sheriff, his deputy, the town sergeants, or constables in the 
county, one of whom is to proceed to search the premises 
described in the warrant ; and, if any spirituous or intoxi- 
cating liquors are there found, he is to seize, secure, and 
keep them, until final action shall be had thereon. The 
officer is further required to summon the owner or keeper 
of the liquors seized, if known to him ; but there is no other 
provision for giving notice to the owner or possessor, prior 
to an adjudication of forfeiture. There is a provision that, 
in case the owner is unknown to the officer, the liquors shall 
not be destroyed until they shall have been advertised for 
two weeks, to enable the agent of any town, duly authorized 
to sell such liquors, to appear and claim them ; and, upon 
making due proof of title, the liquors are to be delivered to 
him, and not destroyed. But this has no application to any 
other owner ; and the law expressly requires the justice to 
adjudge a forfeiture, if the owner fail to appear. 

VOL. II. 13 



194 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

Upon the return of the warrant, if the owner or keeper 
do appear, and the justice is of opinion that the liquors 
have been kept or deposited for sale contrary to the provi- 
sions of the act, he is to adjudge a forfeiture, cause them to 
be destroyed, and inflict a fine of twenty dollars ; or, if this 
fine be not paid, imprisonment for thirty days upon such 
owner or keeper. An exception is made in favor of im- 
ported liquors contained in their original packages ; but the 
burden of proof is put upon the party appearing, to make 
out this defence. If the person claiming the liquors shall 
appeal to the Court of Common Pleas, he is required to 
enter into a recognizance, in a sum not less than two hun- 
dred dollars, with good and sufficient sureties, conditioned, 
among other things, that he will pay all fines and costs that 
may be awarded against him ; and if the final decision shall 
be against the appellant, that such liquors were intended by 
him for sale, contrary to the provisions of the act, and the 
quantity seized exceed five gallons, he is to be adjudged " a 
common seller of intoxicating liquors," and punished as such 
by a fine of one hundred dollars, or, in default of its payment, 
by imprisonment for sixty days ; and he is also subjected to 
increased penalties on a second conviction. 

On reviewing these proceedings, it will be seen that, in 
order to obtain a trial by jury, the party must give security in 
a sum not less than two hundred dollars, with two sufficient 
sureties, to pay all fines and costs which may be adjudged 
against him ; and must subject himself to the hazard of hav- 
ing the fine inflicted by the justice of the peace, increased 
fivefold, if the quantity of liquor seized should exceed, as in 
this case it did exceed, five gallons. 

To require security for the payment of the penalty and 
costs, as a condition for having a trial, so far as I am 
informed, is a novelty in criminal jurisprudence ; and, in 
my opinion, it is not only essentially unjust, but in conflict 
with that clause of the Constitution which secures the ac- 
cused from being deprived of his life, liberty, or property, 



GREENE V. BRIGGS. 195 

unless by the judgment of his peers, or the law of the land. 
Natural right requires that no man should be punished for 
an offence until he has had a trial, and been proved to be 
guilty ; and a law which should provide for the infliction of 
punishment, upon a mere accusation without any trial, if the 
accused should fail to furnish two sureties to pay the penalty 
which might after the trial be adjudged against him, would 
be viewed by all just minds as tyrannical; for it would 
treat the innocent, who are unable to furnish the required 
security, as if they were guilty and would punish them, 
while still presumed innocent, for their poverty or want of 
friends. 

And it is equally clear that such a law would not be " the 
law of the land," within the settled meaning of that impor- 
tant clause in the Constitution. Certainly this does not 
mean any act which the Assembly may choose to pass. If 
it did, the legislative will could inflict a forfeiture of life, 
liberty, or property, without a trial. The exposition of 
these words as they stand in Magna Charta, as well as in 
the American Constitutions, has been that they require 
"due process of law;" and in this is necessarily implied 
and included the right to answer to and contest the charge, 
and the consequent right to be discharged from it, unless it 
is proved. Lord Coke, giving the interpretation of these 
words in Magna Charta (2 Inst. 50, 51), says they mean 
due process of law, in which is included presentment or in- 
dictment, and being brought in to answer thereto. And 
the jurists of our country have not relaxed this interpreta- 
tion. Hoke v. Henderson, 4 Dev. 15 ; Taylor v. Porter, 
4 Hill, 146, 147 ; 3 Story, Com. on the Const. 661 ; 2 Kent, 
13, n. 

It follows that a law which should preclude the accused 
from answering to and contesting the charge, unless he 
should first give security in the sum of two hundred dollars, 
with two sufficient sureties, to pay all fines and costs, and 
which should condemn him to fine and forfeiture unheard, 



196 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

if he failed to comply with this requisition, would deprive 
him of his liberty or property, not by the law of the land, 
but by an arbitrary and unconstitutional exertion of the 
legislative power. 

And if this would be the character of a law which made 
the right to any trial dependent on such a condition, can 
it be maintained that to prescribe such a condition does 
not impair the right to a trial by jury ? In such a case, the 
appeal has annulled the sentence of the justice of the peace. 
The accused is presumed' to be innocent. He has had no 
such trial as he has a right to have. He now claims this 
particular kind of trial, as the prescribed constitutional 
means of determining whether he is to be punished. A 
condition which would impair his right to any trial, if pre- 
scribed as the condition of his having any, impairs his 
right to this trial if prescribed as a condition for his 
having it. 

The fourteenth section of the first article of this Consti- 
tution declares : — 

"Every man being presumed innocent until he is pro- 
nounced guilty by the law, no act of severity, which is not 
necessary to secure an accused person, shall be permitted." 

Undoubtedly, this clause has reference chiefly to acts of 
severity against the person of the accused. But it not only 
contains the great principle of the presumption of innocence 
until the accusation is proved, but points out the security 
of the person that he may be tried, as the only just or ad- 
missible reason for exercising any control over one still 
presumed to be innocent. And in my judgment any law 
which disregards these principles, and introduces a new ob- 
ject, — namely, the security of the payment of the fine and 
costs, — and denies a trial by jury, unless the security is given, 
does not allow the right to such a trial to remain unim- 
paired. If this were not so, there would be no limit to 
legislative control over this right; for if one onerous con- 
dition may be imposed, so may any number, until the right 



GREENE V. BBIGGS. 197 

becomes so difficult of attainment that it ceases to be a 
common right, and can be enjoyed only by a few. 

I find it equally difficult to reconcile the increase of 
penalties upon a conviction after an appeal with the un- 
impaired enjoyment of the right of trial by jury. The act 
inflicts a fine of twenty dollars, if a • conviction takes place 
before a justice of the peace. It must be that the legisla- 
ture considered this the appropriate penalty for the offence. 
Certainly it cannot be said that the offence is aggravated 
by the accused having claimed a trial by jury. For what, 
then, is the additional penalty of eighty dollars, or the ad- 
ditional imprisonment for thirty days, inflicted ? If the 
offence remains the same, and the offender has done nothing 
but claim an appeal, in order to have his case tried by a 
jury, must not these additional penalties be founded on the 
exercise of that right ? Here, also, it is manifest that this 
.right is not secured by the Constitution, but is wholly 
under the control of the legislative power, if it can annex 
penalties to the exercise of the right. 

These proceedings are clearly criminal in their nature. 
Their object is to inflict upon the person fine or imprison- 
ment, and at the same time to adjudicate a forfeiture of the 
liquors. The process, and the judicial action under it, are 
directed both against the offender and his property. It is 
true the warrant does not require the officer to arrest any 
one, but only to seize and hold the property, and summon 
the owner or keeper, if known to him. But the arrest of 
property to compel an appearance is a known and effectual 
mode of proceeding against the owner of that property. 
Indeed, all mesne process, both civil and criminal, which 
results in giving bail for an appearance, is only a mode of 
binding a certain amount of property to a forfeiture on non- 
appearance. And when this law provides that the property 
is to be seized and detained, and adjudged forfeited if the 
owner or keeper fail to appear ; and, if he do appear, that 
he shall be fined or imprisoned, if found guilty, — it has 



198 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

brought into action a criminal process both against the 
owner and his property. That spirituous or intoxicating 
liquors are still property, notwithstanding this act, is cer- 
tain. The act nowhere declares the contrary ; and it recog- 
nizes them as property by providing for the appointment of 
public agents, to buy and sell them, by expressly declaring 
that they may lawfully be held by chemists and others, and 
by not interfering with the title to them, under any cir- 
cumstances, unless they are held in some town in the State, 
for sale within that town. Indeed, the very terms employed 
to describe the judgment to be entered by the justice of the 
peace, " they shall be adjudged forfeited," " and the owner 
shall pay a fine," &c, are applicable only to property, and 
clearly imply that there is deemed to be some title to be 
devested, something for such a judgment to operate upon, 
and something which, until forfeiture, had an owner. 

This being a criminal prosecution, directed against per-' 
son and property, having for its end both fine or imprison- 
ment and forfeiture, it becomes necessary to compare the 
law authorizing this prosecution with another requirement 
of the tenth section of the first article of the Constitution of 
the State, already quoted. The accused is " to be informed 
of the nature and cause of the accusation." This act does 
not require that any particular person should be charged ; 
and, in the case at bar, the complaint charges no one. It 
merely sets forth that the complainants have reason to be- 
lieve, and do believe, that spirituous or intoxicating liquors 
are kept or deposited in several buildings which are men- 
tioned, or in the yards or cellars thereto belonging, and are 
intended for sale in the city of Providence, by a person 
not authorized to sell the same. Whether these particular 
liquors, or others seized at the same time and claimed 
by different persons, were referred to ; whether the plain- 
tiff who owned these liquors, or some other person in 
whose care they were left, had this unlawful intent, — is not 
stated or shown by the complaint. There being no accu- 



GREENE V. BRIGGS. 199 

sation whatever against the plaintiff, how can he be said to 
be informed of its nature and cause? When the Constitu- 
tion requires that the accused should be informed of the 
nature and cause of the accusation, it clearly implies that 
there is to be an accusation against him. An accusation 
against another, or against no one in particular, is not such 
an accusation as will satisfy this clause of the Constitution . It 
stands in the same article which demands a conformity to the 
" law of the land," — that is, due process of law, — and should 
be interpreted as requiring that certainty which the common 
law has deemed essential to the protection of the accused. 
Certainty, in respect to the person charged, is not the least 
essential particular to which the constitutional requisition 
extends. Sandford v. Nichols, 13 Mass. 286 ; Reed v. 
Rice, 2 J. J. Marsh. 45 ; Commonwealth v. Davis, 11 Pick. 
432 ; Commonwealth v. Phillips, 16 Pick. 211. If the 
complaint had charged the owner of particular liquors, 
so described as to be capable of being distinguished from 
all others, with an unlawful attempt to sell them, perhaps 
this might be sufficient ; though, when it is borne in mind 
that this is a proceeding in personam as well as in rem, 
such a mode of presentment would be novel, especially as 
applied to a case in which the unlawful intent of a par- 
ticular person is the substance of the offence. But here it 
does not appear the owner was intended to be charged. The 
complaint alleges only that some person has this unlawful 
intent ; but whether the owner, or some person to whom he 
had confided the possession, or a mere wrong-doer who had 
possession, does not appear. Nor is there any description of 
the property capable of distinguishing it from all other of 
like kind, and consequently of identifying the owner, if he 
should appear, as the person intended to be charged. The 
only description given is that the property is liquors, spir- 
ituous or intoxicating; and that they are in one or all of 
three storehouses mentioned in the complaint, or in the 
cellars or yards belonging thereto. If it should turn out, 



200 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

as it did in this case, that more than one person had, or 
claimed to have, such liquors in one of those places, how is 
the accusation to be treated, and which claimant is to be 
selected as the one to be tried, and who is to make the 
selection ; or, under a complaint charging a person, to the 
complainants unknown, with a criminal intent, is a trial to 
be had of all claimants who may appear, however numerous 
they may be ? The complainants having sworn that some 
one person is believed by them to be guilty, is the justice to 
go on and try all comers till he finds some one guilty, and 
there stop and discharge the rest, or proceed and convict 
two or three, or any other number, if he find evidence 
enough under a complaint against one only? 

But this is by no means the only difficulty. The ac- 
cused has an absolute right to a trial by jury. He has also 
a right to be so charged that, when that trial takes place, 
the jury shall pass upon the whole charge, so far as it in- 
volves matter of fact, and under the direction of the court 
shall apply the law to all mixed questions of law and fact. 

Now, if the owner of liquors seized reach a jury trial by 
an appeal, and the quantity of liquors seized exceed five 
gallons, the court is required to adjudge him " a common 
seller of intoxicating liquors," and he is to be punished 
accordingly. But the complaint does not charge him with 
being such a common seller, nor with having and intending 
to sell over five gallons ; and no such fact is required to be 
or can be put to the jury, to be tried. Yet upon this fact 
the judgment that he is guilty of a distinct offence, and the 
higher punishment appropriate to that offence, are rested. 
So that he is to be convicted of this higher offence without 
being charged with it, and without a trial by jury, of one of 
the facts essential to constitute it. 

It is urged,' however, that nevertheless this may be a 
valid proceeding against the property, although the court 
could not thus convict the person. If this were simply a 
proceeding to forfeit property, .it would nevertheless be a 



GKEENE V. BRIGGS. 201 

criminal prosecution within the meaning of this clause in 
the Constitution ; and the owner would be entitled to a 
trial by jury, and to have the accusation relied upon to work 
the forfeiture set forth substantially, in accordance with the 
rules of the common law, so that he could discern its nature 
and cause. And I should more than doubt whether a com- 
plaint stating only that some liquors were in one or all of 
several buildings mentioned, and were intended by some per- 
son to be sold, would be sufficient. Suppose it is all admitted, 
non constat, that the liquors seized are those referred to, or 
that their owner, or any person to whom he had intrusted 
the possession, had any unlawful intent. It may be so, but 
it also may not be so ; and a criminal charge, not only ac- 
cording to the rules of common law, but from the nature of 
the thing, should at least contain enough to show that, if 
true, the appropriate punishment should be inflicted. Yet 
here all that the complaint avers may be true, and yet the 
property of the plaintiff never held for sale in Providence, 
by him or his agent. It is to be borne in mind that this 
complaint is not merely the ground for issuing a warrant of 
search, and for the arrest and detention of the property, but 
it is the sole basis for judicial action afterwards. It is the 
only presentment of the offence ; and therefore, if the pro- 
ceeding was to result only in a forfeiture of property, I 
should still consider the complaint as so deficient in the 
requisite certainty as to be bad for that cause. 

But it is not possible thus to separate the proceedings 
under this act against the property from the proceedings 
against the person on appeal. The court is to order the 
property to be destroyed only in the event " if the final 
decision shall be against the appellant." If there is no 
accusation upon which the appellant can lawfully be tried, 
there can be no final decision against him, and the property 
cannot be destroyed. 

When this writ of replevin was served, this property was 
held under an order of forfeiture, which was invalid, for 



202 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

two reasons : first, because there was no sufficient com- 
plaint ; and, secondly, because the plaintiff was deprived of 
his property by a criminal prosecution, in which he neither 
had, nor could have, a trial by jury, without submitting to 
conditions which the legislature had no constitutional power 
to impose. 

In general, a judicial act is not void, but voidable only ; 
and, therefore, it is necessary to consider whether this order 
comes within that class of acts which are only voidable by 
some appropriate legal proceeding in the same case, or was 
absolutely void. 

An order made by a justice of the peace concerning a 
matter not within his jurisdiction is void ; and he and all 
ministerial officers who execute that order are trespassers. 
Wise v. Withers, 3 Cranch, 331 ; Cowp. 140 ; 7 B. & C. 536 ; 
5 M. & S. 314; 11 Conn. 95; 7 Wend. 200. 

Such an order confers no authority to detain property, 
and is not a defence to an action of replevin by its owner. 
The inquiry, therefore, is whether the magistrate had 
jurisdiction to make this order; and I am of opinion that 
he had not. 

It has already been stated that this is a criminal prose- 
cution. So far as this law attempts to confer jurisdiction 
upon justices of the peace to inflict fine and forfeiture, a 
trial by jury being at the same time denied, unless the 
accused should comply with conditions to which he is not 
bound to submit, it is in conflict with the Constitution, and 
is wholly inoperative. 

The legislature may confer on justices of the peace 
power to punish offences ; but it must be so done as to pre- 
serve unimpaired the right of trial by jury : otherwise, the 
whole proceeding is void ah initio. The Constitution de- 
clares that, " in all criminal prosecutions, the accused shall 
enjoy the right to a speedy and public trial by an impartial 
jury." The act now under consideration provides that the 
right shall not be enjoyed in all criminal prosecutions, but 



GREENE V. ISRIGGS. 203 

under this act only in those cases in which security shall be 
given to pay all fines and costs. 

It is not practicable to consider the grant of jurisdiction 
to the justice valid, and the condition imposed on the exer- 
cise of the right of appeal void, because an appeal in a 
criminal case can exist only by force of a statute ; and, if 
the statute has given it only on certain conditions, the 
magistrate must execute his judgment, and cannot allow 
the appeal; and the Appellate Court cannot entertain it 
unless those conditions are complied with. In substance, it 
is a grant of final jurisdiction to a justice of the peace, in all 
cases in which such security is not given ; and this is such 
a criminal jurisdiction as cannot be created under the Con- 
stitution of Rhode Island. 

I am of opinion also that the complaint in this case Was 
so defective as to render all proceedings under it void. 
Here also the rule is that, if the process, though erroneous, 
is voidable only, it must be avoided by some proper legal 
proceedings ; and, while it stands, they who act under it are 
not trespassers. But this is not an authorized legal proceed- 
ing in which an error has occurred. The complaint is in 
the form required by the act. The difficulty is that the 
act has authorized a criminal prosecution founded on a com- 
plaint which is not " due process of law." This act, so far 
as it authorizes such a prosecution, being in conflict with 
the Constitution, is inoperative ; and it seems to be a neces- 
sary conclusion that it confers no jurisdiction to receive and 
proceed upon such a complaint. , 

This may be illustrated by supposing a law authorizing 
a criminal prosecution without any complaint. In such 
case, there could be no doubt that the whole proceeding 
would be absolutely void. I think it would be difficult 
to make a sound distinction between no complaint and 
one which does not satisfy this requisition of the Con- 
stitution, which, therefore, is no legal complaint, and 
is not " due process of law," within the definition by 



204 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

Lord Coke of the words " law of the land " in Magna 
Charta. 

It has long been settled (Martin v. Marshall, Hob. 63) 
that the magistrate must not only have a jurisdiction of 
the subject-matter, but of the process. And if the law 
conferring jurisdiction is fatally defective as respects the 
process, — which is the foundation of the jurisdiction, — 
the jurisdiction does not exist. Grumond v. Raymond, 
1 Conn. 40. 

For both these reasons, I am of opinion that the proceed- 
ings before the Court of Magistrates were inoperative to 
devest the owner of this property of his legal rights ; and, 
consequently, neither the taking nor detention are justified 
by the avowry. 

Several other questions have been argued at the bar in 
this case, but I do not find it necessary to consider them. 
They involve important rights under the Constitution and 
laws of the State. If any case should come here for judg- 
ment requiring their decision, I shall pass upon them. This 
case is determined without doing so. 

My opinion is that there should be a judgment for the 
plaintiff upon the demurrer ; and, if he claims damages foi 
the taking and detention, their amount must be assessed by 
a jury. 



ON THE OFFENCE OF OBSTRUCTING PROCESS. 205 



A CHAEGE 

DELIVERED TO THE GRAND JURY OF THE UNITED STATES 
CIRCUIT COURT FOR THE DISTRICT OF MASSACHUSETTS, 
JUNE 7, 1854. 

ON THE OFFENCE OF OBSTRUCTING PROCESS OF THE 
UNITED STATES. 



The occurrences which led to this charge are stated mile, vol. i. 
chap. vii. 

There is another criminal law of the United States to 
which I must call your attention, and give you in charge. 
It was enacted on the 13th of April, 1790, and is in the 
following words : — 

" If any person shall knowingly or wilfully obstruct, resist, or 
oppose any officer of the United States in serving or attempting to 
serve or execute any mesne process or warrant, or any rule or 
order of any of the courts of the United States, or any other legal 
writ or process whatever, or shall assault, beat, or wound any officer 
or other person duly authorized, in serving or executing any writ, 
rule, order, process, or warrant aforesaid, such person shall on con- 
viction be imprisoned not exceeding twelve months, and fined not 
exceeding three hundred dollars." 

You will observe, gentlemen, that this law makes no provi- 
sion for a case where an officer or other person duly authorized 
is killed by those unlawfully resisting him. That is a case of 
murder, and is left to be tried and punished under the laws 
of the State within whose jurisdiction the offence is com- 
mitted. Over that offence against the laws of the State of 
Massachusetts we have here no jurisdiction. It is to be 
presumed that the duly constituted authorities of the State 



206 PROFESSIONAL AND MISCELLANEOUS WHITINGS. 

will in any such case do their duty, and, if the crime of 
murder has been committed, will prosecute and punish all 
who are guilty. 

Our duty is limited to administering the laws of the 
United States ; and, by one of those laws which I have read 
to you, to obstruct, resist, or oppose, or beat, or wound any 
officer of the United States, or. other person duly authorized 
in serving or executing any legal process whatsoever, is 
an offence against the laws of the United States, and is 
one of the subjects concerning which you are bound to 
inquire. 

It is not material that the same act is an offence both 
against the laws of the United States and of a particular 
State. Under our system of government, the United States 
and the several States are distinct sovereignties, each hav- 
ing its own system of criminal law which it administers in 
its own tribunals ; and the criminal laws of a State can 
in no way affect those of the United States, The offence, 
therefore, of obstructing legal process of the United States 
is to be inquired of and treated by you as a misdemeanor, 
under the Act of Congress which I have quoted, without 
any regard to the criminal laws of the State or the nature 
of the crime under these laws. 

This Act of Congress is carefully worded, and its meaning 
is plain. Nevertheless, there are some terms in it and some 
rules of law connected with it which should be explained 
for your guidance. And, first, as to the process the execu- 
tion of which is not to be obstructed. 

The language of the act is very broad. It embraces 
e\ery legal process whatsoever, whether issued by a court in 
session or by a judge or magistrate or commissioner acting 
in the due administration of any law of the United States. 
You will probably experience no difficulty in understanding 
and applying this part of the law. 

As to what constitutes an obstruction, it was many years 
ago decided by Justice Washington that to support an 



ON THE OFFENCE OF OBSTRUCTING PROCESS. 207 

indictment under this law it was not necessary to prove 
the accused used or even threatened active violence. Any 
obstruction to the free action of the officer or his lawful 
assistants, wilfully placed in his or their way for the purpose 
of thus obstructing him or them, is sufficient. And it is 
clear that if a multitude of persons should assemble even in 
a public highway, with the design to stand together, and 
thus prevent the officer from passing freely along the way in 
the execution of his precept, and the officer should thus be 
hindered or obstructed, this would, of itself and without any 
active violence, be such an obstruction as is contemplated 
by this law. If to this be added use of any active violence, 
then the officer is not only obstructed, but he is resisted and 
opposed ; and of course the offence is complete, for either of 
them is sufficient to constitute it. 

If you should be satisfied that an offence against this law 
has been perpetrated, you will then inquire by whom ; and 
this renders it necessary for me to instruct you concerning 
the kind and amount of participation which brings individ- 
uals within the compass of this law. 

And, first, all who are present and actually obstruct, resist, 
or oppose, are of course guilty. So are all who are present 
leagued in the common design, and so situated as to be able 
in case of need to afford assistance to those actually engaged, 
though they do not actually obstruct, resist, or oppose. If 
they are present for the purpose of affording assistance in 
obstructing, resisting, or opposing the officers, and are so 
situated as to be able, in any event which may occur, actually 
to aid in the common design, though no overt act is done by 
them, they are still guilty under this law. The offence 
defined by this act is a misdemeanor ; and it is a rule of law 
that whatever participation in case of felony would render a 
person guilty, either as a principal in the second degree or as 
an accessory before the fact, does in a case of misdemeanor 
render him guilty as a principal : in misdemeanors, all are 
principals. And therefore, in pursuance of the same rule, 



208 PROFESSIONAL AND MISCELLANEOUS "WRITINGS. 

not only those who are present, but those who, though 
absent when the offence was committed, did procure, coun- 
sel, command, or abet others to commit the offence, are 
indictable as principals. 

Such is the law; and it would seem that no just mind 
could doubt its propriety. If persons haying influence over 
others use that influence to induce the commission of crime, 
while they themselves remain at a safe distance, that must 
be deemed a very imperfect system of law which allows them 
to escape with impunity. Such is not our law. It treats 
such advice as criminal, and subjects the giver of it to pun- 
ishment according to the nature of the offence to which his 
pernicious counsel has led. If it be a case of felony, he is by 
the common law an accessory before the fact, and by the 
laws of the United States and of this State is punishable to 
the same extent as the principal felon. If it be a case of 
misdemeanor, the adviser is himself a principal offender, and 
is to be indicted and punished as if he himself had done the 
criminal act. It may be important for you to know what in 
point of law amounts to such an advising or counselling 
another as will be sufficient to constitute this legal element 
in the offence. It is laid down by high authority that 
though a mere tacit acquiescence or words which amount to 
a bare permission will not be sufficient, yet such a procure- 
ment may be either by direct means, as by hire, counsel, or 
command ; or indirect, by evincing an express liking, appro- 
bation, or assent to another's criminal design. From the 
nature of the case, the law can prescribe only general rules 
on this subject. My instruction to you is that language 
addressed to persons who immediately afterwards commit au 
offence, actually intended by the speaker to incite those 
addressed to commit it, and adapted thus to incite them, is 
such a counselling or advising to the crime as the law con- 
templates, and the person so inciting others is liable to be 
indicted as a principal. 

In the case of the Commonwealth v. Bowen, 13 Mass. 359, 



ON THE OFFENCE OP OBSTRUCTING PROCESS. 209 

which, was an indictment for counselling another to com- 
mit suicide, tried in 1816, Chief Justice Parker, instructing 
the jury and speaking for the Supreme Court of Massa- 
chusetts, said : — - 

" The government is not bound to prove that Jewett would not 
have hung himself, had Boweu's counsel never reached his ear. 
The very act of advising to the commission of a crime is of itself 
unlawful. The presumption of law is that advice has the influence 
and effect intended by the adviser, unless it is shown to have been 
otherwise ; as that the counsel was received with scoff, or was mani- 
festly rejected and ridiculed at the time it was given. It was said 
in the argument that Jewett's abandoned and depraved character 
furnishes ground to believe that he would have committed the act 
without such advice from Bowen. Without doubt, he was a hard- 
ened and depraved wretch ; but it is in man's nature to revolt at 
self-destruction. When a person is predetermined upon the com- 
mission of this crime, the seasonable admonitions of a discreet and 
respected friend would probably tend to overthrow his determina- 
tion. On the other hand, the counsel of an unprincipled wretch, 
stating the heroism and courage the self-murderer displays, might 
induce, encourage, and fix the intention, and ultimately procure the 
perpetration of the dreadful deed ; and, if other men would be influ- 
enced by such advice, the presumption is that Jewett was so influ- 
enced. He might have been influenced by many powerful motives 
to destroy himself. Still, the inducements might have been insuffi- 
cient to procure the actual commission of the act, and one word of 
additional advice might have turned the scale." 

When applied — as this ruling seems to have been here 
applied — to a case in which the advice was nearly con- 
nected in point of time with the criminal act, it is in my 
opinion correct. If the advice was intended by the giver 
to stir or incite to a crime, — if it was of such a nature as 
to be adapted to have this effect, and the persons incited 
immediately afterwards committed that crime, — it is a just 
presumption that they were influenced by the advice or 
incitement to commit it. The circumstances or direct proof 
may or may not be sufficient to control this presumption ; 

VOL. II. 14 



210 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

and whether they are so can duly be determined in each 
case, upon all its evidence. 

One other rule of law on this subject is necessary to be 
borne in mind : the substantive offence to which the advice 
or incitement applied must have been committed ; and it is 
for that alone the adviser or procurer is legally accountable. 
Thus, if one should counsel another to rescue one prisoner, 
and he should rescue another unless by mistake ; or if the 
incitement was to rescue a prisoner and he commit a larceny, 
the inciter is not responsible. But it need not appear that 
the precise time or place or means advised were used. Thus 
if one incite A to murder B, but advise him to wait until B 
shall be at a certain place at noon, and A murders B at a 
different place in the morning, the adviser is guilty. So if 
the incitement be to poison, and the murderer shoots or 
stabs. So if the counsel be to beat another, and he is beaten 
to death, the adviser is a murderer; for, having incited 
another to commit an unlawful act, he is responsible for 
all that ensues upon its execution. 

These illustrations are drawn from cases of felonies, 
because they are the most common in the books and the 
most striking in themselves ; but the principles on which 
they depend are equally applicable to cases of misdemeanor. 
In all such cases, the real question is whether the accused 
did procure, counsel, command, or abet the substantive 
offence committed. If he did, it is of no importance that his 
advice or directions were departed from in respect to the 
time or place or precise mode or means of committing it. 

Gentlemen, the events which have recently occurred in 
this city have rendered it my duty to call your attention to 
these rules of law, and to direct you to inquire whether in 
point of fact the offence of obstructing process of the United 
States has been committed : if it has, you will present for 
trial all such persons as have so participated therein as to be 
guilty of that offence. And you will allow me to say. to you 
that if you or I were to begin to make discriminations 



ON THE OFFENCE OF OBSTRUCTING PROCESS. 211 

between one law and another, and say this we will enforce 
and that we will not enforce, we should not only violate our 
oaths, but, so far as in us lies, we should destroy the liberties 
of our country, which rest for their basis upon the great 
principle that our country is governed by laws constitu- 
tionally enacted, and not by men. 

In one part of our country, the extradition of fugitives 
from labor is odious ; in another, if we may judge from some 
transactions, the law concerning the extradition of fugitives 
from justice has been deemed not binding; in another still, 
the tariff laws of the United States were considered oppres- 
sive and not fit to be enforced. 

Who can fail to see that the government would cease to 
be a government, if it were to yield obedience to those local 
opinions ? While it stands, all its laws must be faithfully 
executed, or it becomes the mere tool of the strongest faction 
of the place and the hour. If forcible resistance to one law 
be permitted practically to repeal it, the power of the mob 
would inevitably become one of the constituted authorities 
of the State, to be used against any law or any man obnoxious 
to the interests and passions of the worst or most excited 
part of the community; and the peaceful and the weak 
would be at the mercy of the violent. 

It is the imperative duty of all of us concerned in the 
administration of the laws to see to it that they are firmly, 
impartially, and certainly applied to every offence, whether 
a particular law be by us individually approved or disap- 
proved. And it becomes all to remember that forcible and 
concerted resistance to any law is civil war, which can make 
no progress but through bloodshed, and can have no termi- 
nation but the destruction of the government of our coun- 
try or the ruin of those engaged in such resistance. It is 
not my province to comment on events which have recently 
happened. They are matters of fact which, so far as they 
are connected with the criminal laws of the United States, 
are for your consideration. I feel no doubt that, as good 



212 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

citizens and lovers of our country and as conscientious men, 
you will well and truly observe and keep the oath you have 
taken, diligently to inquire and true presentment make of all 
crimes and offences against the laws of the United States 
given you in charge. 1 

1 Law Reporter, August, 1854. 



DEED SCOTT V. SANDFOED. 213 



DISSENTING OPINION 

IN THE 

CASE OF DEED SCOTT versus SANDFORD. 

DELIVERED IN THE SUPREME COURT OE THE UNITED STATES, 
MARCH 27, 185T. 



The facts in this case, and the questions arising on the record, 
are fully explained, ante, vol. i. p. 194, et seq. 

I dissent from the opinion pronounced by the Chief 
Justice, and from the judgment which the majority of the 
court think it proper to render in this case. The plaintiff 
alleged in his declaration that he was a citizen of the State 
of Missouri, and that the defendant was a citizen of the 
State of New York. It is not doubted that it was neces- 
sary to make each of these allegations to sustain the juris- 
diction of the Circuit Court. The -defendant denied by a 
plea to the jurisdiction, either sufficient or insufficient, that 
the plaintiff was a citizen of the State of Missouri. The 
plaintiff demurred to that plea. The Circuit Court ad- 
judged the plea insufficient; and the first question for 
our consideration is whether the sufficiency of that plea is 
before this court for judgment upon this writ of error. 
The part of the judicial power of the United States con- 
ferred by Congress on the Circuit Courts being limited 
to certain described cases and controversies, the question 
whether a particular case is within the cognizance of a 
Circuit Court may be raised by a plea to the jurisdiction 
of such court. When that question has been raised, the 
Circuit Court must in the first instance pass upon and 



214 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

determine it. Whether its determination be final, or sub- 
ject to review by this appellate court, must depend upon 
the will of Congress; upon which body the Constitution 
has conferred the power, with certain restrictions, to estab- 
lish inferior courts, to determine their jurisdiction, and to 
regulate the appellate power of this court. The twenty- 
second section of the Judiciary Act of 1789, which allows a 
writ of error from final judgments of Circuit Courts, pro- 
vides that there shall be no reversal in this court, on such 
writ of error, for error in ruling any plea in abatement, 
other than a plea to the jurisdiction of the court. Accord- 
ingly it has been held, from the origin of the court to the 
present day, that Circuit Courts have not been made by 
Congress the final judges of their own jurisdiction in- civil 
cases ; and that when a record comes here upon a writ of 
error or appeal, and on its inspection it appears to this 
court that the Circuit Court had not jurisdiction, its judg- 
ment must be reversed, and the cause remanded, to be 
dismissed for want of jurisdiction. 

It is alleged by the defendant in error, in this case, that 
the plea to the jurisdiction was a sufficient plea ; that it 
shows, on inspection of its allegations, confessed by the 
demurrer, that the plaintiff was not a citizen of the State 
of Missouri ; that, upon this record, it must appear to this 
court that the case was not within the judicial power of the 
United States, as defined and granted by the Constitution, 
because it was not a suit by a citizen of one State against a 
citizen of another State. 

To this it is answered, first, that the defendant, by plead- 
ing over, after the plea to the jurisdiction was adjudged 
insufficient, finally waived all benefit of that plea. 

When that plea was adjudged insufficient, the defendant 
was obliged to answer over. He held no alternative. He 
could not stop the further progress of the case in the Cir- 
cuit Court by a writ of error, on which the sufficiency of 
his plea to the jurisdiction could be tried in this court, 



DRED SCOTT V. SANDFOED. 215 

because the judgment on that plea was not final, and no 
writ of error would lie. He was forced to plead to the 
merits. It cannot be true, then, that he waived the benefit 
of his plea to the jurisdiction by answering over. Waiver 
includes consent. Here there was no consent. And, if the 
benefit of the plea was finally lost, it must be, not by any 
waiver, but because the laws of the United States have not 
provided any mode of reviewing the decision of the Circuit 
Court on such a plea, when that decision is against the 
defendant. This is not the law. Whether the decision of 
the Circuit Court on a plea to the jurisdiction be against 
the plaintiff or against the defendant, the losing party may 
have any alleged error in law, in ruling such a plea, ex- 
amined in this court on a writ of error, when the matter in 
controversy exceeds the sum or value of two thousand dol- 
lars. If the decision be against the plaintiff, and his suit 
dismissed for want of jurisdiction, the judgment is techni- 
cally final ; and he may at once sue out his writ of error. 
Mollan v. Torrance, 9 Wheat. 537. If the decision be 
against the defendant, though he must answer over, and 
wait for a final judgment in the cause, he may then have 
his writ of error, and upon it obtain the judgment of this 
court on any question of law apparent on the record, touch- 
ing the jurisdiction. The fact that he pleaded over to the 
merits under compulsion can have no effect on his right to 
object to the jurisdiction. If this were not so, the condi- 
tion of the two parties would be grossly unequal. For, if a 
plea to the jurisdiction were ruled against the plaintiff, he 
could at once take his writ of error, and have the ruling 
reviewed here ; while, if the same plea were ruled against 
the defendant, he must not only wait for a final judgment, 
but could in no event have the ruling of the Circuit Court 
upon the plea reviewed by this court. I know of no ground 
for saying that the laws of the United States have thus 
discriminated between the parties to a suit in its courts. 
It is further objected that, as the judgment of the Circuit 



216 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

Court was in favor of the defendant, and the writ of error 
in this cause was sued out by the plaintiff, the defendant is 
not in a condition to assign any error in the record, and 
therefore this court is precluded from considering the 
question whether the Circuit Court had jurisdiction. 

The practice of this court does not require a technical 
assignment of errors. (See the rule.) Upon a writ of 
error, the whole record is open for inspection ; and, if any 
error be found in it, the judgment is reversed. Bank of 
United States v. Smith, 11 Wheat. 171. 

It is true, as a general rule, that the court will not allow 
a party to rely on any thing as cause for reversing a judg- 
ment which was for his advantage. In this we follow an 
ancient rule of the common law. But so careful was that 
law of the preservation of the course of its courts, that it 
made an exception out of that general rule, and allowed a 
party to assign for error that which was for his advantage, 
if it were a departure by the court itself from its settled 
course of procedure. The cases on this subject are col- 
lected in Bac. Abr. Error H. 4. And this court followed 
this practice in Gapron v. Van Noorden, 2 Cranch, 126, 
where the plaintiff below procured the reversal of a judg- 
ment for the defendant, on the ground that the plaintiff's 
allegations of citizenship had not shown jurisdiction. 

But it is not necessary to determine whether the defend- 
ant can be allowed to assign want of jurisdiction as an error 
in a judgment in his own favor. The true question is, not 
what either of the parties may be allowed to do, but 
whether this court will affirm or reverse a judgment of the 
Circuit Court on the merits, when it appears on the record 
by a plea to the jurisdiction that it is a case to which the 
judicial power of the United States does not extend. The 
course of the court is, where no motion is made by either 
party on its own motion, to reverse such a judgment for 
want of jurisdiction, not only in cases where it is shown 
negatively, by a plea to the jurisdiction, that jurisdiction 



DEED SCOTT V. SANDFOED. 217 

does not exist, but even where it does not appear, affirma- 
tively, that it does exist. Pequignot v. The Pennsylvania 
R.R. Co., 16 How. 104. It acts upon the principle that 
the judicial power of the United States must not be exerted 
in a ease to which it does not extend, even if both parties 
desire to have it exerted. Cutler v. Mae, 7 How. 729. I 
consider, therefore, that, when there was a plea to the juris- 
diction of the Circuit Court in a case brought here by a 
writ of error, the first duty of this court is sua sponte, if not 
moved to it by either party, to examine the sufficiency of 
that plea; and thus to take care that neither the Circuit 
Court nor this court shall use the judicial power of the 
United States in a case to which the Constitution and laws 
of the United States have not extended that power. 

I proceed, therefore, to examine the plea to the juris- 
diction. 

I do not perceive any sound reason why it is not to be 
judged by the rules of the common law applicable to such 
pleas. It is true, where the jurisdiction of the Circuit 
Court depends on the citizenship of the parties, it is incum- 
bent on the plaintiff to allege on the record the necessary 
citizenship ; but, when he has done so, the defendant must 
interpose a plea in abatement, the allegations whereof show 
that the court has not jurisdiction, and it is incumbent on 
him to prove the truth of his plea. 

In Sheppard v. G-raves, 14 How. 27, the rules on this 
subject are thus stated in the opinion of the court : " That 
although, in the courts of the United States, it is necessary 
to set forth the grounds of their cognizance as courts of 
limited jurisdiction, yet wherever jurisdiction shall be 
averred in the pleadings, in conformity with the laws creat- 
ing those courts, it must be taken prima facie as existing ; 
and it is incumbent on him who would impeach that juris- 
diction for causes dehors the pleading to allege and prove 
such causes ; that the necessity for the allegation, and the 
burden of sustaining it by proof, both rest upon the party 



218 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

taking the exception." These positions are sustained by 
the authorities there cited, as well as by Wickliffe v. Owings, 
17 How. 47. 

When, therefore, as in this case, the necessary averments 
as to citizenship are made on the record, and jurisdiction is 
assumed to exist, and the defendant comes by a plea to the 
jurisdiction to displace that presumption, he occupies, in 
my judgment, precisely the position described in Bacon 
Abr. Abatement : " Abatement, in the general acceptation 
of the word, signifies a plea put in by the defendant, in 
which he shows cause to the court why he should not be 
impleaded; or, if at all, not in the manner and form he 
now is." 

This being, then, a plea in abatement to the jurisdiction 
of the court, I must judge of its sufficiency by those rules 
of the common law applicable to such pleas. 

The plea was as follows: ''And the said John F. A. 
Sandford, in his own proper person, comes and says that 
this court ought not to have or take further cognizance of 
the action aforesaid, because he says that said cause of 
action, and each and every of them (if any such have ac- 
crued to the said Dred Scott), accrued to the said Dred 
Scott out of the jurisdiction of this court, and exclusively 
within the jurisdiction of the courts of the State of Mis- 
souri ; for that, to wit, the said plaintiff, Dred Scott, is not 
a citizen of the State of Missouri, as alleged in his declara- 
tion, because he is a negro of African descent ; his ancestors 
were of pure African blood, and were brought into this 
country and sold as negro slaves ; and this the said Sandford 
is ready to verify. Wherefore, he prays judgment whether 
this court can or will take further cognizance of the action 
aforesaid." 

The plaintiff demurred, and the judgment of the Circuit 
Court was that the plea was insufficient. 

I cannot treat this plea as a general traverse of the 
citizenship alleged by the plaintiff. Indeed, if it were so 



DEED SOOTT V. SANDPORD. 219 

treated, the plea was clearly bad; for it concludes with a 
verification, and not to the country, as a general traverse 
should. And, though this defect in a plea in bar must be 
pointed out by a special demurrer, it is never necessary to 
demur specially to a plea in abatement : all matters, though 
of form only, may be taken advantage of upon a general 
demurrer to such a plea. Chitty on Pleading, 465. 

The truth is that, though not drawn with the utmost 
technical accuracy, it is a special traverse of the plaintiff's 
allegation of citizenship, and was a suitable and proper 
mode of traverse under the circumstances. By reference to 
Mr. Stephen's description of the uses of such a traverse, 
contained in his excellent analysis of pleading (Stephen 
on Pleading, 176), it will be seen how precisely this plea 
meets one of his descriptions. No doubt, the defendant 
might have traversed, by a common or general traverse, the 
plaintiff's allegation that he was a citizen of the State of 
Missouri, concluding to the country. The issue thus pre- 
sented being joined would have involved matter of law, on 
which the jury must have passed, under the direction of the 
court. But, by traversing the plaintiff's citizenship spe- 
cially, — that is, averring those facts on which the defend- 
ant relied to show that, in point of law, the plaintiff was not 
a citizen, and basing the traverse on those facts as a deduc- 
tion therefrom, — opportunity was given to do what was 
done ; that is, to present directly to the court by a de- 
murrer the sufficiency of those facts to negative, in point 
of law, the plaintiff's allegation of citizenship. This, then, 
being a special and not a general or common traverse, the 
rule is settled that the facts thus set out in the plea as the 
reason or ground of the traverse must of themselves consti- 
tute, in point of law, a negative of the allegation thus trav- 
ersed. Stephen on Pleading, 183 ; Chitty on Pleading, 620. 
And, upon a demurrer to this plea, the question which arises 
is whether the facts that the plaintiff is a negro of African 
descent, whose ancestors were of pure African blood, and 



220 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

were brought into this country and sold as negro slaves, 
may all be true, and yet the plaintiff be a citizen of the 
State of Missouri within the meaning of the Constitution 
and laws of the United States, which confer on citizens 
of one State the right to sue citizens of another State in 
the Circuit Courts. Undoubtedly, if these facts, taken 
together, amount to an allegation that at the time of action 
brought the plaintiff was himself a slave, the plea is suf- 
ficient. It has been suggested that the plea, in legal effect, 
does so aver, because, if his ancestors were sold as slaves, 
the presumption is they continued slaves ; and, if so, the 
presumption is the plaintiff was born a slave ; and, if so, the 
presumption is he continued to be a slave to the time of 
action brought. 

I cannot think such presumptions can be resorted to, to 
help out defective averments in pleading ; especially in plead- 
ing in abatement, where the utmost certainty and precision 
are required. Chitty on Pleading, 457. That the plaintiff 
himself was a slave at the time of action brought is a sub- 
stantive fact, having no necessary connection with the fact 
that his parents were sold as slaves. For they might have 
been sold after he was born ; or the plaintiff himself, if once 
a slave, might have become a freeman before action brought. 
To aver that his ancestors were sold as slaves is not equiv- 
alent, in point of law, to an averment that he was a slave. 
If it were, he could not even confess and avoid the averment 
of the slavery of his ancestors, which would be monstrous ; 
and, if it be not equivalent in point of law, it cannot be 
treated as amounting thereto when demurred to ; for a de- 
murrer confesses only those substantive facts which are well 
pleaded, and not other distinct substantive facts which 
might be inferred therefrom by a jury. To treat an aver- 
ment that the plaintiff's ancestors were Africans, brought 
to this country and sold as slaves, as amounting to an aver- 
ment on the record that he was a slave, because it may lay 
some foundation for presuming so, is to hold that the facts 



DEED SCOTT V. SAiTDFOEiD. 221 

actually alleged may be treated as intended as evidence of 
another distinct fact not alleged. But it is a cardinal rule 
of pleading laid down in Bowman's Case (9 Rep. 9 b), and 
in even earlier authorities therein referred to, "that evidence 
shall never be pleaded, for it only tends to prove matter of 
fact; and therefore the matter of fact shall be pleaded." 
Or, as the rule is sometimes stated, pleadings must not be 
argumentative. Stephen on Pleading, 384, and authorities 
cited by him. In Com. Dig. Pleader E. 3, and Bac. Abridg- 
ment, Pleas I, 5, and Stephen on Pleading, many decisions 
under this rule are collected. In trover, for an indenture 
whereby A granted a manor, it is no plea that A did not 
.grant the manor, for it does not answer the declaration ex- 
cept by argument. Yelv. 223. 

So in trespass for taking and carrying away the plaintiff's 
goods, the defendant pleaded that the plaintiff never had 
any goods. The court said, " This is an infallible argu- 
ment that the defendant is not guilty, but it is no plea." 
Dyer, 43 a. 

In ejectment, the defendant pleaded a surrender of a 
copyhold by the hand of Fosset, the steward. The plaintiff 
replied that Fosset was not steward. The court held this 
no issue, for it traversed the surrender only argumentatively. 
Cro. Eliz. 260. 

In these cases, and many others reported in the books, 
the inferences from the facts stated were irresistible. But 
the court held they did not, when demurred to, amount 
to such inferable facts. In the case at bar, the inference 
that the defendant was a slave at the time of action brought, 
even if it can be made at all, from the fact that his parents 
were slaves, is certainly not a necessary inference. This 
case, therefore, is like that of Digby v. Alexander, 8 Bing. 
116. In that case, the defendant pleaded many facts 
strongly tending to show that he was once Earl of Stirling; 
but as there was no positive allegation that he was so at the 
time of action brought, and as every fact averred might be 



222 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

true, and yet the defendant not have been Earl of Stir- 
ling at the time of action brought, the plea was held to be 
insufficient. 

A lawful seisin of land is presumed to continue. But if, 
in an action of trespass quare clausum, the defendant were 
to plead that he was lawfully seised of the locus in quo one 
month before the time of the alleged trespass, I should have 
no doubt it would be a bad plea. See Mollan v. Torrance, 
9 Wheat. 537. So if a plea to the jurisdiction, instead 
of alleging that the plaintiff was a citizen of the same State 
as the defendant, were to allege that the plaintiff's ancestors 
were citizens of that State, I think the plea could not be 
supported. My judgment would be — as it is in this case — . 
that, if the defendant meant to aver a particular substantive 
fact as existing at the time of action brought, he must do it 
directly and explicitly, and not by way of inference from 
certain other averments, which are quite consistent with the 
contrary hypothesis. I cannot therefore treat this plea as 
containing an averment that the plaintiff himself was a 
slave at the time of action brought ; and the inquiry recurs 
whether the facts that he is of African descent, and that his 
parents were once slaves, are necessarily inconsistent with 
his own citizenship in the State of Missouri, within the 
meaning of the Constitution and laws of the United States. 

In Gassies v. Ballon, 6 Pet. 761, the defendant was de- 
scribed on the record as a naturalized citizen of the United 
States, residing in Louisiana. The court held this equiva- 
lent to an averment that the defendant was a citizen of 
Louisiana ; because a citizen of the United States, residing 
in any State of the Union, is, for purposes of jurisdiction, a 
citizen of that State. Now, the plea to the jurisdiction in 
this case does not controvert the fact that the plaintiff re- 
sided in Missouri at the date of the writ. If he did then 
reside there, and was also a citizen of the United States, no 
provisions contained in the Constitution or laws of Mis- 
souri can deprive the plaintiff of his right to sue citizens 



DEED SCOTT V. SANDFOED. 223 

of States other than Missouri in the courts of the United 
States. 

So that, under the allegations contained in this plea and 
admitted by the demurrer, the question is whether any per- 
son of African descent, whose ancestors were sold as slaves 
in the United States, can be a citizen of the United States. 
If any such person can be a citizen, this plaintiff has the 
right to the judgment of the court that he is so ; for no 
cause is shown by the plea why he is not so, except his 
descent and the slavery of his ancestors. 

The first section of the second article of the Constitution 
uses the language : " a citizen of the United States at the 
time of the adoption of the Constitution." One mode of 
approaching this question is to inquire who were citizens 
of the United States at the time of the adoption of the 
Constitution. 

Citizens of the United States at the time of the adoption 
of the Constitution can have been no other than citizens of 
the United States under the Confederation. By the Articles 
of Confederation, a Government was organized, the style 
whereof was " The United States of America." This Gov- 
ernment was in existence when the Constitution was framed 
and proposed for adoption, and was to be superseded by the 
new Government of the United States of America, organized 
under the Constitution. When, therefore, the Constitution 
speaks of the citizenship of the United States existing at 
the time of the adoption of the Constitution, it must neces- 
sarily refer to citizenship under the Government which 
existed prior to and at the time of such adoption. 

Without going into any question concerning the powers 
of the Confederation to govern the territory of the United 
States out of the limits of the States, and consequently to 
sustain the relation of Government and citizen in respect to 
the inhabitants of such territory, it may safely be said that 
the citizens of the several States were citizens of the United 
States under the Confederation. 



224 PROFESSIONAL AND MISCELLANEOUS ■WRITINGS. 

That Government was simply a confederacy of the several 
States, possessing a few defined powers over subjects of gen- 
eral concern, each State retaining every power, jurisdiction, 
and right not expressly delegated to the United States in 
Congress assembled. And no power was thus delegated to 
the Government of the Confederation to act on any question 
of citizenship, or to make any rules in respect thereto. The 
whole matter was left to stand upon the action of the several 
States, and to the natural consequence of such action, that 
the citizens of each State should be citizens of that Confed- 
eracy into which that State had entered, the style whereof 
was " The United States of America." 

To determine whether any free persons, descended from 
Africans held in slavery, were citizens of the United States 
under the Confederation, and consequently at the time of 
the adoption of the Constitution of the United States, it is 
only necessary to know whether any such persons were 
citizens of either of the States under the Confederation at 
the time of the adoption of the Constitution. 

Of this there can be no doubt. At the time of the ratifi- 
cation of the Articles of Confederation, all free native-born 
inhabitants of the States of New Hampshire, Massachusetts, 
New York, New Jersey, and North Carolina, though de- 
scended from African slaves, were not only citizens of those 
States, but such of them as had the other necessary qualifi- 
cations possessed the franchise of electors, on equal terms 
with other citizens. 

The Supreme Court of North' Carolina in the case of The 
State v. Manuel, 4 Dev. & Bat. 20, has declared the law of 
that State on this subject in terms which I believe to be as 
sound law in the other States I have enumerated as it was 
in North Carolina. 

" According to the laws of this State," says Judge Gaston, 
in delivering the opinion of the court, " all human beings 
within it, who are not slaves, fall within one of two classes. 
Whatever distinctions may have existed in the Roman laws 



DRED SCOTT V. SANDFORD. 225 

between citizens and free inhabitants, they are unknown 
to our institutions. Before our Revolution, all free per- 
sons born within the dominions of the King of Great 
Britain, whatever their color or complexion, were native- 
born British subjects ; those born out of his allegiance 
were aliens. Slavery did not exist in England, but it did in 
the British colonies. Slaves were not in legal parlance 
persons, but property. The moment the incapacity, the 
disqualification of slavery, was removed, they became per- 
sons, and were then either British subjects or not British 
subjects, according as they were or were not born within 
the allegiance of the British King. Upon the Revolution, 
no other change took place in the laws of North Carolina 
than was consequent on the transition from a colony de- 
pendent on a European King to a free and sovereign State. 
Slaves remained slaves. British subjects in North Carolina 
became North Carolina freemen. Foreigners, until made 
members of the State, remained aliens. Slaves, manumitted 
here, became freemen, and therefore, if born within North 
Carolina, are citizens of North Carolina ; and all free per- 
sons born within the State are bom citizens of the State. 
The Constitution extended the elective franchise to every 
freeman who had arrived at the age of twenty-one, and paid 
a public tax ; and it is a matter of universal notoriety that 
under it free persons, without regard to color, claimed and 
exercised the franchise, until it was taken from free men of 
color a few years since by our amended Constitution." 

In The State v. JYewcomb, 5 Ired. 253, decided in 1844, 
the same court referred to this case of The State v. Manuel, 
and said : " That case underwent a very laborious inves- 
tigation, both by the bar and the bench. The case was 
brought here by appeal, and was felt to be one of great 
importance in principle. It was considered with an anxiety 
and care worthy of the principle involved, and which give 
it a controlling influence and authority on all questions of a 
similar character." 

VOL. II. 15 



226 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

An argument from speculative premises, however well 
chosen, that the then state of opinion in the Commonwealth 
of Massachusetts was not consistent with the natural rights 
of people of color who were born on that soil, and that they 
were not, by the Constitution of 1780 of that State, ad- 
mitted to the condition of citizens, would be received with 
surprise by the people of that State, who know their own 
political history. It is true, beyond all controversy, that 
persons of color, descended from African slaves, were by 
that Constitution made citizens of the State ; and such of 
them as have had the necessary qualifications have held and 
exercised the elective franchise as citizens from that time 
to the present. See Commonwealth v. Aves, 18 Pick. 210. 

The Constitution of New Hampshire conferred the elec- 
tive franchise upon " every inhabitant of the State having 
the necessary qualifications," — of which color or descent 
was not one. 

The Constitution of New York gave the right to vote to 
" every male inhabitant who shall have resided," &c, — 
making no discrimination between free colored persons and 
others. See Const, of New York, Art. 2 ; Rev. Stats, of New 
York, vol. i. p. 126. 

That of New Jersey, to " all inhabitants of this colony, 
of full age, who are worth £50 proclamation money, clear 
estate." 

New York, by its Constitution of 1820, required colored 
persons to have some qualifications as prerequisites for 
voting, which white persons need not possess. And New 
Jersey, by its present Constitution, restricts the right to vote 
to white male citizens. But these changes can have no 
other effect upon the present inquiry, except to show that 
before they were made no such restrictions existed ; and 
colored in common with white persons were not only citizens 
of those States, but entitled to the elective franchise on the 
same qualifications as white persons, as they now are in New 
Hampshire and Massachusetts. I shall not enter into an 



DEED SCOTT V. SANDFOKD. 227 

examination of the existing opinions of that period respects 
ing the African race, nor into any discussion concerning the 
meaning of those who asserted in the Declaration of Inde- 
pendence that all men are created equal ; that they are 
endowed by their Creator with certain inalienable rights ; 
that among these are life, liberty, and the pursuit of hap- 
piness. My own opinion is, that a calm comparison of these 
assertions of universal abstract truths, and of their own 
individual opinions and acts, would not leave these men 
under any reproach of inconsistency ; that the great truths 
they asserted on that solemn occasion they were ready and 
anxious to make effectual, wherever a necessary regard to 
circumstances, which no statesman can disregard without 
producing more evil than good, would allow ; and that it 
would not be just to them nor true in itself to allege that 
they intended to say that the Creator of all men had en- 
dowed the white race exclusively with the great natural 
rights which the Declaration of Independence asserts. But 
this is not the place to vindicate their memory. As I conceive, 
we should deal here, not with such disputes, — if there can 
be a dispute concerning this subject, — but with those sub- 
stantial facts evinced by the written constitutions of States, 
and by the notorious practice under them. And they show, 
in a manner which no argument can obscure, that, in some 
of the original thirteen States, free colored persons, before 
and at the time of the formation of the Constitution, were 
citizens of those States. 

The fourth of the fundamental articles of the Confedera- 
tion was as follows : " The free inhabitants of each of these 
States — paupers, vagabonds, and fugitives from justice ex- 
cepted — shall be entitled to all the privileges and immuni- 
ties of free citizens in the several States." 

The fact that free persons of color were citizens of some 
of the several States, and the consequence that this fourth 
article of the Confederation would have the effect to confer 
on such persons the privileges and immunities of general 



228 PROFESSIONAL AND MISCELLANEOUS -WRITINGS. 

citizenship, were not only known to those who framed and 
adopted those articles, but the evidence is decisive that the 
fourth article was intended to have that effect, and that 
more restricted language, which would have excluded such 
persons, was deliberately and purposely rejected. 

On the 25th of June, 1778, the Articles of Confederation 
being under consideration by the Congress, the delegates 
from South Carolina moved to amend this fourth article by 
inserting after the word " free," and before the word " in- 
habitants," the word "white," so that the privileges and 
immunities of general citizenship would be secured only to 
white persons. Two States voted for the amendment, eight 
States against it, and the vote of one State was divided. 
The language of the article stood unchanged; and both 
by its terms of inclusion, " free inhabitants," and the strong 
implication from its terms of exclusion, " paupers, vaga- 
bonds, and fugitives from justice," who alone were excepted, 
it is clear that under the Confederation, and at the time of 
the adoption of the Constitution, free colored persons of 
African descent might be, and by reason of their citizenship 
in certain States were, entitled to the privileges and im- 
munities of general citizenship of the United States. 

Did the Constitution of the United States deprive them 
or their descendants of citizenship ? 

That Constitution was ordained and established by the 
people of the United States, through the action in each 
State of those persons who were qualified by its laws to act 
thereon in behalf of themselves and all other citizens of that 
■ State. In some of the States, as we have seen, colored per- 
sons were among those qualified by law to act on this sub- 
ject. These colored persons were not only included in the 
body of " the people of the United States," by whom the 
Constitution was ordained and established, but in at least 
five of the States they had the power to act, and doubtless 
did act, by their suffrages upon the question of its adoption. 
It would be strange if we were to find in that instrument 



DEED SCOTT V. SANDFOED. 229 

any thing which deprived of their citizenship any part of the 
people of the United States who were among those by whom 
it was established. 

I can find nothing in the Constitution which proprio vigore 
deprives of their citizenship any class of persons who were 
citizens of the United States at the time of its adoption, or 
who should be native-born citizens of any State after its 
adoption ; nor any power enabling Congress to disfranchise 
persons born on the soil of any State, and entitled to citizen- 
ship of such State by its Constitution and laws. And my 
opinion is that, under the Constitution of the United States, 
every free person born on the soil of a State, who is a citizen 
of that State by force of its Constitution or laws, is also a 
citizen of the United States. 

I will proceed to state the grounds of that opinion. 

The first section of the second article of the Constitu- 
tion uses the language, " a natural-born citizen." It thus 
assumes that citizenship may be acquired by birth. Un- 
doubtedly, this language of the Constitution was used in 
reference to that principle of public law, well understood in 
this country at the time of the adoption of the Constitution, 
which referred citizenship to the place of birth. At the 
Declaration of Independence, and ever since, the received 
general doctrine has been in conformity with the common 
law, that free persons born within either of the colonies 
were subjects of the king ; that by the Declaration of In- 
dependence, and the consequent acquisition of sovereignty 
by the several States, all such persons ceased to be subjects 
and became citizens of the several States, except so far as 
some of them were disfranchised by the legislative power of 
the States, or availed themselves seasonably of the right to 
adhere to the British Crown in the civil contest, and thus 
to continue British subjects. Mcllvain v. Coze's Lessee, 
4 Cranch, 209 ; Inglis v. Sailors' Snug Harbor, 3 Peters, 99 ; 
Shanks v. Dupont, Ibid. 242. 

The Constitution having recognized the rule that persons 



230 PROFESSIONAL AND MISCELLANEOUS WHITINGS. 

born within the several States are citizens of the United 
States, one of four things must be true : — 

First, that the Constitution itself has described what 
native-born persons shall or shall not be citizens of the 
United States; or 

Second, that it has empowered Congress to do so ; or 

Third, that all free persons, born within the several 
States, are citizens of the United States ; or 

Fourth, that it is left to each State to determine what 
free persons, born within its limits, shall be citizens of such 
State, and thereby be citizens of the United States. 

If there be such a thing as citizenship of the United 
States acquired by birth within the States, which the Con- 
stitution expressly recognizes, and no one denies, then these 
four alternatives embrace the entire subject, and it only 
remains to select that one which is true. 

That the Constitution itself has defined citizenship of the 
United States by declaring what persons, born within the 
several States, shall or shall not be citizens of the United 
States, will not be pretended. It contains no such declara- 
tion. We may dismiss the first alternative, as without 
doubt unfounded. 

Has it empowered Congress to enact what free persons, 
born within the several States, shall or shall not be citizens 
of the United States ? 

Before examining the various provisions of the Constitu- 
tion which may relate to this question, it is important to 
consider for a moment the substantial nature of this inquiry. 
It is, in effect, whether the Constitution has empowered 
Congress to create privileged classes within the States, who 
alone can be entitled to the franchises and powers of citi- 
zenship of the United States. If it be admitted that the 
Constitution has enabled Congress to declare what free 
persons, born within the several States, shall be citizens of 
the United States, it must at the same time be admitted 
that it is an unlimited power. If this subject is within the 



DEED SCOTT V. SANDFOED. 231 

control of Congress, it must depend wholly on its discretion. 
For, certainly, no limits of that discretion can be found in 
the Constitution, which is wholly silent concerning it ; and 
the necessary consequence is that the Federal Government 
may select classes of persons within the several States who 
alone can be entitled to the political privileges of citizen- 
ship of the United States. If this power exists, what 
persons born within the States may be President or Vice- 
President of the United States, or members of either House 
of Congress, or hold any office or enjoy any privilege 
whereof citizenship of the United States is a necessary 
qualification, must depend solely on the will of Congress. 
By virtue of it, though Congress can grant no title of 
nobility, they may create an oligarchy, in whose hands 
would be concentrated the entire power of the Federal 
Government. 

It is a substantive power, distinct in its nature from 
all others ; capable of affecting not only the relations of 
the States to the General Government, but of controlling 
the political condition of the people of the United States. 
Certainly, we ought to find this power granted by the Con- 
stitution, at least by- some necessary inference, before we 
can say it does not remain to the States or the people. 
I proceed therefore to examine all the provisions of the 
Constitution which may have some bearing on this subject. 

Among the powers expressly granted to Congress is "the 
power to establish a uniform rule of naturalization." It is 
not doubted that this is a power to prescribe a rule for the 
removal of the disabilities consequent on foreign birth. To 
hold that it extends further than this would do violence to 
the meaning of the term naturalization, fixed in the com- 
mon law (Co. Litt. 8 a, 129 a; 2 Ves. Sen. 286 ; 2 Bl. Com. 
293), and in the minds of those who concurred in framing 
and adopting the Constitution. It was in this sense of con- 
ferring on an alien and his issue the rights and powers of a 
native-born citizen that it was employed in the Declaration 



232 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

of Independence. It was in this sense it was expounded in 
the " Federalist," No. 42 ; has been understood by Congress, 
by the Judiciary, 2 Wheat. 259, 269; 3 Wash. 313, 322; 
12 Wheat. 277 ; and by commentators on the Constitution, 
3 Story's Com. on Con. 1-3; 1 Rawle on Con. 84-88; 
1 Tucker's Bl. Com. App. 255-259. 

It appears, then, that the 6nly power expressly granted 
to Congress to legislate concerning citizenship is confined 
to the removal of the disabilities of foreign birth. 

Whether there be any thing in the Constitution from 
which a broader power may be implied will best be seen 
when we come to examine the two other alternatives, which 
are whether all free persons born on the soil of the several 
States, or only such of them as may be citizens of each 
State respectively, are thereby citizens of the United States. 
The last of these alternatives, in my judgment, contains the 
truth. 

Undoubtedly, as has already been said, it is a principle 
of public law, recognized by the Constitution itself, that 
birth on the soil of a country both creates the duties and 
confers the rights of citizenship. But it must be remem- 
bered that, though the Constitution was to form a govern- 
ment, and under it the United States of America were to 
be one united sovereign nation, to which loyalty and obedi- 
ence on the one side, and from which protection and privi- 
leges on the other would be due, yet the several sovereign 
States whose people were then citizens were not only to 
continue in existence, but with powers unimpaired except 
so far as they were granted by the people to the National 
Government. 

Among the powers unquestionably possessed by the sev- 
eral States was that of determining what persons should 
and what persons should not be citizens. It was practica- 
ble to confer on the government of the Union this entire 
power. It embraced what may, well enough for the pur- 
pose now in view, be divided into three parts: first, the 



DEED SCOTT V. SANDFOKD. 233 

power to remove the disabilities of alienage either by spe- 
cial acts in reference to each individual case, or by estab- 
lishing a rule of naturalization to be administered and 
applied by the courts ; second, determining what persons 
should enjoy the privileges of citizenship, in respect to the 
internal affairs of the several States ; third, what native- 
born persons should be citizens of the United States. 

The first-named power, that of establishing a uniform 
rule of naturalization, was granted; and here the grant, 
according to its terms, stopped. Construing a constitution 
containing only limited and defined powers of government, 
the argument derived from this definite and restricted 
power to establish a rule of naturalization must be ad- 
mitted to be exceedingly strong. I do not say it is neces- 
sarily decisive. It might be controlled by other parts of 
the Constitution. But when this particular subject of citi- 
zenship was under consideration, and in the clause specially 
intended to define the extent of power concerning it we 
find a particular part of this entire power separated from 
the residue and conferred on the General Government, 
there arises a strong presumption that this is all which is 
granted, and that the residue is left to the States and to the 
people. And this presumption is, in my opinion, converted 
into a certainty by an examination of all such other clauses 
of the Constitution as touch this subject. 

I will examine each which can have any possible bearing 
on this question. 

The first clause of the second section of the third article 
of the Constitution is : " The judicial power shall extend to 
controversies between a State and citizens of another State ; 
between citizens of different States ; between citizens of the 
same State claiming lands under grants of different States ; 
and between States, or the citizens thereof, and foreign 
States, citizens, or subjects." I do not think this clause 
has any considerable bearing upon the particular inquiry 
now under consideration. Its purpose was to extend the 



234 PROFESSIONAL AND MISCELLANEOUS "WHITINGS. 

judicial power to those controversies into which local feel- 
ings or interests might so enter as to disturb the course of 
justice, or give rise to suspicions that they had done so, and 
thus possibly give occasion to jealousy or ill-will between 
different States, or a particular State and a foreign nation. 
At the same time, I would remark, in passing, that it has 
never been held — I do not*know that it has ever been 
supposed — that any citizen of a State could bring himself 
under this clause and the eleventh and twelfth sections of 
the Judiciary Act of 1789, passed in pursuance of it, who 
was not a citizen of the United States. But I have referred 
to the clause only because it is one of the places where citi- 
zenship is mentioned by the Constitution. Whether it is 
entitled to any weight in this inquiry or not, it refers only 
to citizenship of the several States ; it recognizes that ; but 
it does not recognize citizenship of the United States as 
something distinct therefrom. 

As has been said, the purpose of this clause did not neces- 
sarily connect it with citizenship of the United States, even 
if that were something distinct from citizenship of the sev- 
eral States, in the contemplation of the Constitution. This 
cannot be said of other clauses of the Constitution, which I 
now proceed to refer to. 

" The citizens of each State shall be entitled to all the 
privileges and immunities of citizens of the several States." 
Nowhere else in the Constitution is there any thing con- 
cerning a general citizenship ; but here privileges and im- 
munities to be enjoyed throughout the United States, under 
and by force of the national compact, are granted and 
secured. In selecting those who are to enjoy these national 
rights of citizenship, how are they described ? As citizens 
of each State. It is to them these national rights are 
secured. The qualification for them is not to be looked for 
in any provision of the Constitution or laws of the United 
States. They are to be citizens of the several States, and 
as such the privileges and immunities of general citizenship, 



DBBD SCOTT V. SANDFOKD. 235 

derived from and guaranteed by the Constitution, are to be 
enjoyed by them. It would seem that if it had been in- 
tended to constitute a class of native-born persons within 
the States, who should derive their citizenship of the 
United States from the action of the Federal Government, 
this was an occasion for referring to them. It cannot be 
supposed that it was the purpose of this article to confer 
the privileges and immunities of citizens in all the States 
upon persons not citizens of the United States. 

And, if it was intended to secure these rights only to 
citizens of the United States, how has the Constitution 
here described such persons ? Simply as citizens of each 
State. 

But, further : though, as I shall presently more fully state, 
I do not think the enjoyment of the elective franchise essen- 
tial to citizenship, there can be no doubt it is one of the 
chiefest attributes of citizenship under the American con- 
stitutions ; and the just and constitutional possession of this 
right is decisive evidence of citizenship. The provisions 
made by a constitution on this subject must therefore be 
looked to as bearing directly on the question what persons 
are citizens under that constitution ; and as being decisive to 
this extent, that all such persons as are allowed by the Con- 
stitution to exercise the elective franchise, and thus to par- 
ticipate in the Government of the United States, must be 
deemed citizens of the United States. 

Here, again, the consideration presses itself upon us that, 
if there was designed to be a particular, class of native-born 
persons within the States, deriving their citizenship from 
the Constitution and laws of the United States, they should 
at least have been referred to as those by whom the Presi- 
dent and House of Eepresentatives were to be elected, and 
to whom they should be responsible. 

Instead of that, we again find this subject referred to the 
laws of the several States. The electors of President are 
to be appointed in such manner as the legislature of each 



236 PROFESSIONAL AND MISCELLANEOUS "WRITINGS. 

State may direct, and the qualifications of electors of mem- 
bers of the House of Representatives shall be the same as 
for electors of the most numerous branch of the State 
legislature. 

Laying aside, then, the case of aliens, concerning which 
the Constitution of the United States has provided, and con- 
fining our view to free persons born within the several 
States, we find that the Constitution has recognized the 
general principle of public law, that allegiance and citizen- 
ship depend on the place of birth ; that it has not attempted 
practically to apply this principle by designating the par- 
ticular classes of persons who should or should not come 
under it; that when we turn to the Constitution for an 
answer to the question, What free persons, born within the 
several States, are citizens of the United States ? the only 
answer we can receive from any of its express provisions is, 
The citizens of the several States are to enjoy the privileges 
and immunities of citizens in every State, and their franchise 
as electors under the Constitution depends on their citizenship 
in the several States. Add to this that the Constitution 
was ordained by the citizens of the several States ; that they 
were " the people of the United States," for whom and whose 
posterity the Government was declared in the preamble of 
the Constitution to be made ; that each of them was " a 
citizen of the United States at the time of the adoption of 
the Constitution," within the meaning of those words in that 
instrument ; that by them the Government was to be and 
was in fact organized ; and that no power is conferred on 
the Government of the Union to discriminate between them 
or to disfranchise any of them, — the necessary conclusion 
is that those persons born within the several States who, 
by force of their respective constitutions and laws, are 
citizens of the State, are thereby citizens of the United 
States. 

It may be proper here to notice some supposed objections 
to this view of the subject. 



DEED SCOTT V. SANDFOED. 237 

It has been often asserted that the Constitution was made 
exclusively by and for the white race. It has already been 
shown that in five of the thirteen original States colored 
persons then possessed the elective franchise, and were 
among those by whom the Constitution was ordained and 
established. If so, it is not true in point of fact that the 
Constitution was made exclusively by the white race. And 
that it was made exclusively for the white race is, in my 
opinion, not only an assumption not warranted by any thing 
in the Constitution, but contradicted by its opening decla- 
ration that it was ordained and established by the people 
of the United States for themselves and their posterity. 
And, as free colored persons were then citizens of at least 
five States, and so in every sense part of the people of 
the United States, they were among those for whom and 
whose posterity the Constitution was ordained and estab- 
lished. 

Again, it has been objected that, if the Constitution has 
left to the several States the rightful power to determine 
who of their inhabitants shall be citizens of the United 
States, the States may make aliens citizens. 

The answer is obvious. The Constitution has left to the 
States the determination what persons, born within then- 
respective limits, shall acquire by birth citizenship of the 
United States: it has not left to them any power to pre- 
scribe any rule for the removal of the disabilities of alienage. 
This power is exclusively in Congress. 

It has been further objected that, if free colored persons, 
born within a particular State, and made citizens of that 
State by its constitution and laws, are thereby made citizens 
of the United States, then, under the second section of the 
fourth article of the Constitution, such persons would be 
entitled to all the privileges and immunities of citizens in 
the several States ; and, if so, then colored persons could 
vote, and be eligible to not only Federal offices, but offices 
even in those States whose constitutions and laws dis- 



238 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

qualify colored persons from voting or being elected to 
office. 

But this position rests upon an assumption which I deem 
untenable. Its basis is that no one can be deemed a citizen 
of the United States who is not entitled to enjoy all the 
privileges and franchises which are conferred on any citizen. 
See 1 Lit. Kentucky, 326. That this is not true under the 
Constitution of the United States, seems to me clear. 

A naturalized citizen cannot be President of the United 
States, nor a Senator till after the lapse of nine years, nor a 
Representative till after the lapse of seven years from his 
naturalization. Yet as soon as naturalized he is certainly a 
citizen of the United States. Nor is any inhabitant of the 
District of Columbia or of either of the Territories eligible 
to the office of Senator or Representative in Congress, though 
he may be a citizen of the United States. So, in all the 
States, numerous persons, though citizens, cannot vote or 
cannot hold office, either on account of their age or sex, or 
the want of the necessary legal qualifications. The truth 
is that citizenship under the Constitution of the United 
States is not dependent on the possession of any particular 
political or even of all civil rights; and any attempt so 
to define it must lead to error. To what citizens the elective 
franchise shall be confided is a question to be determined 
by each State in accordance with its own views of the 
necessities or expediencies of its condition. What civil 
rights shall be enjoyed by its citizens, and whether all shall 
enjoy the same, or how they may be gained or lost, are to 
be determined in the same way. 

One may confine the right of suffrage to white male citi- 
zens ; another may extend it to colored persons and females; 
one may allow all persons above a prescribed age to convey 
property and transact business ; another may exclude mar- 
ried women. But whether native-born women, or persons 
under age or under guardianship because insane or spend- 
thrifts, be excluded from voting or holding office, or allowed 



DEED SCOTT V. SANDFOED. 239 

to do so, I apprehend no one will deny that they are citizens 
of the United States. Besides, this clause of the Constitution 
does not confer on the citizens of one State in all other States 
specific and enumerated privileges and immunities. They are 
entitled to such as belong to citizenship, but not to such as 
belong to particular citizens attended by other qualifications. 
Privileges and immunities which belong to certain citizens of 
a State by reason of the operation of causes other than mere 
citizenship are not conferred. Thus, if the laws of a State 
require, in addition to citizenship of the State, some qualifi- 
cation for office or the exercise of the elective franchise, 
citizens of all other States coming thither to reside, and not 
possessing those qualifications, cannot enjoy those privileges, 
not because they are not to be deemed entitled to the 
privileges of citizens of the State in which they reside, but 
because they, in common with the native-born citizens of that 
State, must have the qualifications prescribed by law for 
the enjoyment of such privileges under its constitution and 
laws. It rests with the States themselves so to frame their 
constitutions and laws as not to attach a particular privilege 
or immunity to mere naked citizenship. If one of the States 
will not deny to any of its own citizens a particular privi- 
lege or immunity, if it confer it on all of them by reason of 
mere naked citizenship, then it may be claimed by every 
citizen of each State by force of the Constitution ; and it 
must be borne in mind that the difficulties which attend 
the allowance of the claims of colored persons to be citizens 
of the United States are not avoided by saying that, though 
each State may make them its citizens, they are not thereby 
made citizens of the United States, because the privileges 
of general citizenship are secured to the citizens of each 
State. The language of the Constitution is, " The citizens 
of each State shall be entitled to all privileges and immuni- 
ties of citizens in the several States." If each State may 
make such persons its citizens, they become as such entitled 
to the benefits of this article, if there be a native-born citizen- 



240 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

ship of the United States distinct from a native-born citi- 
zenship of the several States. 

There is one view of this article entitled to consideration 
in this connection. It is manifestly copied from the fourth 
of the Articles of Confederation, with only slight changes 
of phraseology, which render its meaning more precise, and 
dropping the clause which excluded paupers, vagabonds, 
and fugitives from justice, — probably because these cases 
could be dealt with under the police powers of the States, 
and a special provision therefor was not necessary. It has 
been suggested that, in adopting it into the Constitution, the 
words " free inhabitants " were changed for the word " citi- 
zens." An examination of the forms of expression com- 
monly used in the State Papers of that day, and an attention 
to the substance of this article of the Confederation, will 
show that the words " free inhabitants," as then used, were 
synonymous with citizens. When the Articles of Confed- 
eration were adopted, we were in the midst of the war of 
the Revolution ; and there were very few persons then 
embraced in the words " free inhabitants " who were not 
born on our soil. It was not a time when many, save the 
children of the soil, were willing to embark their fortunes 
in our cause ; and, though there might be an inaccuracy in 
the uses of words to call free inhabitants citizens, it was 
then a technical rather than a substantial difference. If we 
look into the Constitutions and State Papers of that period, 
we find the inhabitants or people of these colonies, or the 
inhabitants of this State or Commonwealth employed to 
designate those whom we should now denominate citizens. 
The substance and purpose of the article prove it was in 
this sense it used these words : it secures to the free inhabi- 
tants of each State the privileges and immunities of free 
citizens in every State. It is not conceivable that the 
States should have agreed to extend the privileges of citizen- 
ship to persons not entitled to enjoy the privileges of citizens 
in the States where they dwelt; that under this article 



DRED SCOTT V. SANDFOED. 241 

there was a class of persons in some of the States, not citi- 
zens, to whom were secured all the privileges and immuni- 
ties of citizens when they went into other States ; and the 
just conclusion is that, though the Constitution cured an 
inaccuracy of language, it left the substance of this article 
in the National Constitution the same as it was in the 
Articles of Confederation. 

The history of this fourth article, respecting the attempt 
to exclude free persons of color from its operation, has been 
already stated. It is reasonable to conclude that this 
history was known to those who framed and adopted the 
Constitution. That under this fourth article of the Con- 
federation free persons of color might be entitled to the 
privileges of general citizenship, if otherwise entitled 
thereto, is clear. When this article was in substance 
placed in and made part of the Constitution of the United 
States, with no change in its language calculated to exclude 
free colored persons from the benefit of its provisions, the 
presumption is, to say the least, strong that the practical 
effect which it was designed to have and did have under 
the former Government, it was designed to have and should 
have under the new Government. 

It may be further objected that, if free colored persons 
may be citizens of the United States, it depends only on the 
will of a master whether he will emancipate his slave, and 
thereby make him a citizen. Not so. The master is sub- 
ject to the will of the State. Whether he shall be allowed 
to emancipate his slave at all ; if so, on what conditions ; 
and what is to be the political status of the freed man, — 
depend, not on the will of the master, but on the will of the 
State, upon which the political status of all its native-born 
inhabitants depends. Under the Constitution of the United 
States, each State has retained this power of determining the 
political status of its native-born inhabitants, and no excep- 
tion thereto can be found in the Constitution. And if a 
master in a slaveholding State should carry his slave into a 

VOL. II. 16 



242 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

free State, and there emancipate him, he would not thereby 
make him a native-born citizen of that State, -and conse- 
quently no privileges could be claimed by such emancipated 
slave as a citizen of the United States. For, whatever 
powers the States may exercise to confer privileges of citi- 
zenship on persons not born on their soil, the Constitution 
of the United States does not recognize such citizens. As 
has already been said, it recognizes the great principle of 
public law, that allegiance and citizenship spring from the 
place of birth. It leaves to the States the application of 
that principle to individual cases. It secured to the citi- 
zens of each State the privileges and immunities of citizens 
in every other State. But it does not allow to the States 
the power to make aliens citizens, or permit one State to 
take persons born on the soil of another State, and, contrary 
to the laws and policy of the State where they were born, 
make them its citizens, and so citizens of the United States. 
No such deviation from the great rule of public law was 
contemplated by the Constitution ; and, when any such 
attempt shall be actually made, it is to be met by applying 
to it those rules of law and those principles of good faith 
which will be sufficient to decide it, and not, in my judg- 
ment, by denying that all the free native-born inhabitants 
of a State, who are its citizens under its Constitution and 
laws, are also citizens- of the United States. 

It has sometimes been urged that colored persons are 
shown not to be citizens of the United States by the fact 
that the naturalization laws apply only to white persons. 
But whether a person born in the United States be or be 
not a citizen cannot depend on laws which refer only to 
aliens, and do not affect the status of persons born in the 
United States. The utmost effect which can be attributed 
to them is to show that Congress has not deemed it expe- 
dient generally to apply the rule to colored aliens. That 
they might do so, if thought fit, is clear. The Constitution 
has not excluded them. And, since that has conferred the 



DRED SCOTT V. SANDFORD. 243 

power on Congress to naturalize colored aliens, it certainly 
shows color is not a necessary qualification for citizenship 
under the Constitution of the United States. It may be 
added that the power to make colored persons citizens of 
the United States under the Constitution has been actually 
exercised in repeated and important instances. See the 
Treaties with the Choctaws, of Sept. 27, 1830, art. 14; 
with the Cherokees, of May 23, 1836, art. 12 ; Treaty of 
Guadalupe Hidalgo, Feb. 2, 1848, art. 8. 

I do not deem it necessary to review at length the legis- 
lation of Congress having more or less bearing on the citi- 
zenship of colored persons. It does not seem to me to have 
any considerable tendency tD prove that it has been con- 
sidered by the legislative department of the Government 
that no such persons are citizens of the United States. 
Undoubtedly, they have been debarred from the exercise of 
particular rights or privileges extended to white persons, 
but, I believe, always in terms which by implication admit 
they may be citizens. Thus the Act of May 17, 1792, for 
the organization of the militia, directs the enrolment of 
" every free, able-bodied, white male citizen." An assump- 
tion that none but white persons are citizens would be as 
inconsistent with the just import of this language as that 
all citizens are able-bodied or males. 

So the Act of Feb. 28, 1803, 2 Stat, at Large, 205, to 
prevent the importation of certain persons into States, when 
by the laws thereof their admission is prohibited, in its first 
section forbids all masters of vessels to import or bring 
" any negro, mulatto, or other person of color, not being 
a native, a citizen, or registered seaman of the United 
States," &c. 

The acts of March 3, 1813, § 1, 2 Stat, at Large, 809, 
and March 1, 1817, § 3, 3 Stat, at Large, 351, concerning 
seamen, certainly imply there may be persons of color, 
natives of the United States, who are not citizens of the 
United States. This implication is undoubtedly in accord- 



244 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

ance with the fact. For not only slaves, but free persons 
of color, born in some of the States, are not citizens. But 
there is nothing in these laws inconsistent with the citizen- 
ship of persons of color in others of the States, nor with 
their being citizens of the United States. 

Whether much or little weight should be attached to the 
particular phraseology of these and other laws, which were 
not passed with any direct reference to this subject, I con- 
sider their tendency to be, as already indicated, to show 
that, in the apprehension of their framers, color was not a 
necessary qualification of citizenship. It would be strange 
if laws were found on our statute book to that effect, when 
by solemn treaties large bodies of Mexican and North 
American Indians as well as free colored inhabitants of 
Louisiana have been admitted to citizenship of the United 
States. 

In the legislative debates which preceded the admission 
of the State of Missouri into the Union, this question was 
agitated. Its result is found in the resolution of Congress, 
of March 5, 1821, for the admission of that State into the 
Union. The Constitution of Missouri, under which that 
State applied for admission into the Union, provided that it 
should be the duty of the legislature " to pass laws to pre- 
vent free negroes and mulattoes from coming to and settling 
in the State, under any pretext whatever." One ground of 
objection to the admission of the State under this Constitu- 
tion was that it would require the legislature to exclude 
free persons of color, who would be entitled, under the sec- 
ond section of the fourth article of the Constitution, not 
only to come within the State, but to enjoy there the 
privileges and immunities of citizens. The resolution of 
Congress admitting the State was upon the fundamental 
condition " that the Constitution of Missouri shall never be 
construed to authorize the passage of any law, and that no 
law shall be passed in conformity thereto by which any 
citizen of either of the States of this Union shall be ex- 



DEED SCOTT V. SANDFOBD. 245 

eluded from the enjoyment of any of the privileges and 
immunities to -which such citizen is entitled under the Con- 
stitution of the United States." It is true that neither this 
legislative declaration, nor any thing in the Constitution or 
laws of Missouri, could confer or take away any privilege 
or immunity granted by the Constitution. But it is also 
true that it expresses the then conviction of the legislative 
power of the United States, that free negroes, as citizens of 
some of the States, might be entitled to the privileges and 
immunities of citizens in all the States. 

The conclusions at which I have arrived on this part of 
the case are : — 

First, that the free native-born citizens of each State are 
citizens of the United States. 

Second, that as free colored persons born -within some of 
the States are citizens of those States, such persons are also 
citizens of the United States. 

Third, that every such citizen, residing in any State, has 
the right to sue and is liable to be sued in the Federal 
courts, as a citizen of that State in which he resides. 

Fourth, that as the plea to the jurisdiction in this case 
shows no facts except that the plaintiff was of African 
descent, and his ancestors were sold as slaves, and as these 
facts are not inconsistent with his citizenship of the United 
States and his residence in the State of Missouri, the plea 
to the jurisdiction was bad, and the judgment of the Circuit 
Court overruling it was correct. 

I dissent, therefore, from that part of the opinion of the 
majority of the court, in which it is held that a person of 
African descent cannot be a citizen of the United States ; 
and I regret I must go further, and dissent both from what 
I deem their assumption of authority to examine the con- 
stitutionality of the act of Congress commonly called the 
Missouri Compromise Act, and the grounds and conclusions 
announced in their opinion. 

Having first decided that they were bound to consider 



246 PROFESSIONAL AND MISCELLANEOUS WRITINGS. . 

the sufficiency of the plea to the jurisdiction of the Circuit 
Court, and having decided that this plea showed that the 
Circuit Court had not jurisdiction, and consequently that 
this is a case to which the judicial power of the United 
States does not extend, they have gone on to examine the 
merits of the case as they appeared on the trial before the 
court and jury, on the issues joined on the pleas in bar, and 
so have reached the question of the power of Congress to 
pass the act of 1820. On so grave a subject as this, I feel 
obliged to say that, in my opinion, such an exertion of 
judicial power transcends the limits of the authority of the 
court, as described by its repeated decisions, and, as I under- 
stand, acknowledged in this opinion of the majority of the 
court. 

In the course of that opinion, it became necessary to com- 
ment on the case of Legrand v. Darnall (reported in 2 Peters, 
664). In that case a bill was filed by one alleged to be a 
citizen of Maryland against one alleged to be a citizen of 
Pennsylvania. The bill stated that the defendant was the 
son of a white man by one of his slaves ; and that the 
defendant's father devised to him certain lands, the title to 
which was put in controversy by the bill. These facts were 
admitted in the answer ; and upon these and other facts the 
court made its decree, founded on the principle that a devise 
of land by a master to a slave was by implication also a 
bequest of his freedom. The facts that the defendant was 
of African descent, and was born a slave, were not only 
before the court, but entered into the entire substance of 
its inquiries. The opinion of the majority of my brethren 
in this case disposes of the case of Legrand v. Darnall, by 
saying, among other things, that, as the fact that the defend- 
ant was born a slave only came before this court on the bill 
and answer, it was then too late to raise the question of the 
personal disability of the party, and therefore that decision 
is altogether inapplicable in this case. 

In this I concur. Since the decision of this court in 



DRED SCOTT V. SANDFORD. 247 

Livingston v. Story, 11 Peters, 351, the law has been settled 
that, when the declaration or bill contains the necessary aver- 
ments of citizenship, this court cannot look at the record to 
see whether those averments are true, except so far as they 
are put in issue by a plea to the jurisdiction. In that case, 
the defendant denied by his answer that Mr. Livingston was 
a citizen of New York, as he had alleged in the bill. Both 
parties went into proofs. The court refused to examine 
those proofs, with reference to the personal disability of 
the plaintiff. This is the settled law of the court, affirmed 
so lately as Shepherd v. Graves, 14 How. 27, and Wickliff \. 
wings, 17 How. 51. See also Be Wolf v. Rabaud, 1 Peters, 
476. But I do not understand this to be a rule which the 
court may depart from at its pleasure. If it be a rule, it is 
as binding on the court as on the suitors. If it removes 
from the latter the power to take any objection to the per- 
sonal disability of a party alleged by the record to be com- 
petent, which is not shown by a plea to the jurisdiction, it 
is because the court are forbidden by law to consider and 
decide on objections so taken. I do not consider it to be 
within the scope of the judicial power of the majority of 
the court to pass upon any question respecting the plain- 
tiff's citizenship in Missouri, save that raised by the plea to 
the jurisdiction ; and I do not hold any opinion of this court 
or any court binding, when expressed on a question not legit- 
imately before it. Carroll v. Carroll, 16 How. 275. The 
judgment of this court is that the case is to be dismissed 
for want of jurisdiction, because the plaintiff was not a 
citizen of Missouri, as he alleged in -his declaration. Into 
that judgment, according to the settled course of this court, 
nothing appearing after a plea to the merits can enter. A 
great question of constitutional law, deeply affecting the 
peace and welfare of the country, is not, in my opinion, a 
fit subject to be thus reached. 

But, as in my opinion the Circuit Court had jurisdic- 
tion, I am obliged to consider the question whether its 



248 PROFESSIONAL AND MISCELLANEOUS 'WRITINGS. 

judgment on the merits of the case should stand or be 
reversed. 

The residence of the plaintiff in the State of Illinois, and 
the residence of himself and his wife in the Territory acquired 
from France lying north of latitude thirty-six degrees thirty 
minutes, and north of the State of Missouri, are each relied 
on by the plaintiff in error. A s the residence in the Ter- 
ritory affects the plaintiff's wife and children as well as 
himself, I must inquire what was its effect. 

The general question may be stated to be whether the 
plaintiff's status as a slave was so changed by his residence 
within that Territory that he was not a slave in the State of 
Missouri at the time this action was brought. 

In such cases, two inquiries arise, which may be con- 
founded, but should be kept distinct. 

The first is, What was the law of the Territory into which 
the master and slave went, respecting the relation between 
them? 

The second is, whether the State of Missouri recognizes 
and allows the effect of that law of the Territory on the 
status of the slave, on his return within its jurisdiction. 

As to the first of these questions, the will of States and 
nations, by whose municipal law slavery is not recognized, 
has been manifested in three different ways. 

One is absolutely to dissolve the relation and terminate 
the rights of the master existing under the law of the 
country whence the parties came. This is said by Lord 
Stowell, in the case of the slave Grace (2 Hag. Ad. 94), 
and by the Supreme Court of Louisiana, in the case of 
Maria Louise v. Marot (8 Louis. 475), to be the law of 
France ; and it has been the law of several States of this 
Union in respect to slaves introduced under certain condi- 
tions. Wilson v. Isabel, 5 Call, 430 ; Hunter v. Hudcher, 
1 Leigh, 172 ; Stewart v. Oaks, 5 Har. & John. 107. 

The second is where, the municipal law of a country not 
recognizing slavery, it is the will of the State to refuse the 



DEED SCOTT V. SANDPORD. 249 

master all aid to exercise any control over his slave ; and, if 
lie attempt to do so in a manner justifiable only by that 
relation, to prevent the exercise of that control. But no law 
exists designed to operate directly on the relation of master 
and slave, and put an end to that relation. This is said by 
Lord Stowell, in the case above mentioned, to be the law 
of England, and by Mr. Chief Justice Shaw, in the case of 
The Commonwealth v. Aves, 18 Pick. 193, to be the law of 
Massachusetts. 

The third is to make a distinction between the case of a 
master and his slave only temporarily in the country — animo 
non manendi — and those who are there to reside for perma- 
nent or indefinite purposes. This is said by Mr. Wheaton to 
be the law of Prussia, and was formerly the statute law of 
several States of our Union. It is necessary in this case to 
keep in view this distinction between those countries whose 
laws are designed to act directly on the status of a slave, 
and make him a free man, and those where his master can 
obtain no aid from the laws to enforce his rights. 

It is to the last case only that the authorities out of 
Missouri relied on by defendant apply, when the resi- 
dence in the non-slaveholding Territory was permanent. In 
The Commonwealth v. Aves, 18 Pick. 218, Mr. Chief Justice 
Shaw said : " From the principle above stated, on which a 
slave brought here becomes free, to wit, that he becomes 
entitled to the protection of our laws, it would seem to 
follow as a necessary conclusion that, if the slave waives the 
protection of those laws and returns to the State where he 
is held as a slave, his condition is not changed. It was upon 
this ground, as is apparent from his whole reasoning, that 
Sir William Scott rests his opinion in the case of the slave 
Grace. To use one of his expressions, the effect of the law 
of England was to put the liberty of the slave into a par- 
enthesis. If there had been an act of Parliament declaring 
that a slave coming to England with his master should 
thereby be deemed no longer to be a slave, it is easy to see 



250 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

that the learned judge could not have arrived at the same 
conclusion. This distinction is very clearly stated and 
shown by President Tucker, in his opinion in the case of 
Betty v. Horton, 5 Leigh, Va. 615. See also Hunter v. 
Fletcher, 1 Leigh, Va. 172 ; Maria Louise v. Marot, 8 La. 
475 ; Smith v. Smith, 13 La. 441 ; Thomas v. Genevieve, 16 
La. 483 ; Rankin v. Lydia, 2 A. K. Marshall, 467 ; Davies v. 
Tingle, 8 B. Monroe, 539; Griff eth v. Fanny, Gilm. Va. 
143 ; Lumford v. Coquillon, 14 Martin, La. 405 ; Josephine 
v. Poultney, 1 La. Ann. 329. 

But, if the acts of Congress on this subject are valid, the 
law of the Territory of Wisconsin, within whose limits the 
residence of the plaintiff and his wife, and their marriage 
and the birth of one or both of their children took place, 
falls under the first category, and is a law operating directly 
on the status of the slave. By the eighth section of the act 
of March 6, 1820 (3 Stat, at Large, 548), it was enacted 
that within this Territory " slavery and involuntary servi- 
tude, otherwise than in the punishment of crimes whereof 
the parties shall have been duly convicted, shall be and is 
hereby for ever prohibited : provided always that any per- 
son escaping into the same, from whom labor or service is 
lawfully claimed in any State or Territory of the United 
States, such fugitive may be lawfully reclaimed and con- 
veyed to the person claiming his or her labor or service, as 
aforesaid." 

By the act of April 20, 1836 (4 Stat, at Large, 10), 
passed in the same month and year of the removal of the 
plaintiff to Fort Snelling, this part of the territory ceded by 
France, where Fort Snelling is, together with so much of 
the territory of the United States east of the Mississippi as 
now constitutes the State of Wisconsin, was brought under 
a Territorial Government, under the name of the Territory 
of Wisconsin. By the eighteenth section of this act, it was 
enacted : " That the inhabitants of this Territory shall be 
entitled to and enjoy all and singular the rights, privileges, 



DRED SCOTT V. SANDFOED. 251 

and advantages granted and secured to the people of the 
Territory of the United States north-west of the river 
Ohio, by the articles of compact contained in the ordi- 
nance for the government of said Territory, passed on the 
thirteenth day of July, 1787 ; and shall be subject to all the 
restrictions and prohibitions in said articles of compact im- 
posed upon the people of the said Territory." The sixth 
article of that compact is : " There shall be neither slavery 
nor involuntary servitude in the said Territory, otherwise 
than in the punishment of crimes whereof the party shall 
have been duly convicted : provided always that any per- 
son escaping into the same, from whom labor or service is 
lawfully claimed in any one of the original States, such 
fugitive may be lawfully reclaimed and conveyed to the per- 
son claiming his or her labor or service, as aforesaid." By 
other provisions of this act establishing the Territory of 
Wisconsin, the laws of the United States, and the then 
existing laws of the State of Michigan, are extended over 
the Territory ; the latter being subject to alteration and 
repeal by the legislative power of the Territory created by 
the act. 

Fort Snelling was within the Territory of Wisconsin, and 
these laws were extended over it. The Indian title to that 
site for a military post had been acquired from the Sioux 
nation as early as Sept. 23, 1805 (Am. State Papers, In- 
dian Affairs, vol. i. p. 744), and until the erection of the 
Territorial Government the persons at that post were gov- 
erned by the rules and articles of war, and such laws of the 
United States, including the eighth section of the act of 
March 6, 1820, prohibiting slavery, as were applicable to 
their condition ; but after the erection of the Territory, and 
the extension of the laws of the United States and the laws 
of Michigan over the whole of the Territory, including this 
military post, the persons residing there were under the 
dominion of those laws in all particulars to which the rules 
and articles of war did not apply. 



252 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

It thus appears that, by these acts of Congress, not only 
was a general system of municipal law borrowed from the 
State of Michigan, which did not tolerate slavery, but it 
was positively enacted that slavery and involuntary servi- 
tude, with only one exception, specifically described, should 
not exist there. It is not simply that slavery is not recog- 
nized and cannot be aided by the municipal law. It is 
recognized for the purpose of being absolutely prohibited, 
and declared incapable of existing within the Territory, 
save in the instance of a fugitive slave. 

It would not be easy for the legislature to employ more 
explicit language to signify its will that the status of slavery 
should not exist within the Territory than the words found 
in the act of 1820 and in the ordinance of 1787 ; and if any 
doubt could exist concerning their application to cases of 
masters coming into the Territory with their slaves to re- 
side, that doubt must yield to the inference required by the 
words of exception. That exception is of cases of fugitive 
slaves. An exception from a prohibition marks the extent 
of the prohibition ; for it would be absurd as well as useless 
to except from a prohibition a case not contained within it. 
9 Wheat. 200. I must conclude, therefore, that it was the 
will of Congress that the state of involuntary servitude of 
a slave coming into the Territory with his master should 
cease to exist. The Supreme Court of Missouri so held in 
Rachel v. Walker, 4 Misso. 350, which was the case of a 
military officer going into the Territory with two slaves. 

But it is a distinct question whether the law of Missouri 
recognized and allowed effect to the change wrought in the 
status of the plaintiff by force of the laws of the Territory 
of Wisconsin. 

I say the law of Missouri, because a judicial tribunal in 
one State or nation can recognize personal rights acquired 
by force of the law of any other State or nation only so far as 
it is the law of the former State that those rights should be 
recognized. But, in the absence of positive law to the con- 



DRED SCOTT V. SANDFORD. 253 

trary, the will of every civilized State must be presumed to be 
to allow sucb effect to foreign laws as is in accordance with 
the settled rules of international law. And legal tribunals 
are bound to act on this presumption. It may be assumed 
that the motive of the State in allowing such operation to 
foreign laws is what has been termed comity. But, as has 
justly been said (per Chief Justice Taney, 13 Pet. 589), it 
is the comity of the State, not of the court. The judges 
have nothing to do with the motive of the State. Their 
duty is simply to ascertain and give effect to its will. And 
when it is found by them that its will to depart from a rule 
of international law has not been manifested by the State, 
they are bound to assume that its will is to give effect to it. 
Undoubtedly, every sovereign State may refuse to recognize 
a change wrought by the law of a foreign State on the 
status of a person while within such foreign State, even in 
cases where the rules of international law require that re- 
cognition. Its will to refuse such recognition may be mani- 
fested by what we term statute law, or by the customary 
law of the State. It is within the province of its judicial 
tribunals to inquire and adjudge whether it appears, from 
the statute or customary law of the State, to be the will of 
the State to refuse to recognize such changes of status by 
force of foreign law as the rules of the law of nations re- 
quire to be recognized. But, in my opinion, it is not within 
the province of any judicial tribunal to refuse such recog- 
nition from any political considerations, or any view it may 
take of the exterior political relations between the State 
and one or more foreign States, or any impressions it may 
have that a change of foreign opinion and action on the sub- 
ject of slavery may afford a reason why the State should 
change its own action. To understand and give just effect 
to such considerations, and to change the action of the 
State in consequence of them, are functions of diplomatists 
and legislators, not of judges. 

The inquiry to be made on this part of the case is, there- 



254 PROFESSIONAL AND MISCELL ANEO US WRITINGS. 

fore, whether the State of Missouri has, by its statute or its 
customary law, manifested its will to displace any rule of 
international law applicable to a change of the status of a 
slave by foreign law. 

I have not heard it suggested that there was any statute 
of the State of Missouri bearing on this question. The cus- 
tomary law of Missouri is the common law introduced by 
statute in 1816. 1 Ter. Laws, 436. And the common law, 
as Blackstone says (4 Com. 67), adopts in its full extent 
the law of nations, and holds it to be a part of the law of 
the land. 

I know of np sufficient warrant for declaring that any 
rule of international law, concerning the recognition in that 
State of a change of status wrought by an extra-territorial 
law, has been displaced or varied by the will of the State 
of Missouri. 

I proceed, then, to inquire what the rules of inter- 
national law prescribe concerning the change of status of 
the plaintiff wrought by the law of the Territory of Wis- 
consin. 

It is generally agreed by writers upon international law, 
and the rule has been judicially applied in a great number 
of cases, that, wherever any question may arise concerning 
the status of a person, it must be determined according to 
that law which has next previously rightfully operated on 
and fixed that status. And, further, that the laws of a 
country do not rightfully operate upon and fix the status of 
persons who are within its limits in itinere, or who are abid- 
ing there for definite temporary purposes, as for health, 
curiosity, or occasional business ; that these laws, known to 
writers on public and private international law as personal 
statutes, operate only on the inhabitants of the country. 
Not that it is or can be denied that each independent nation 
may, if it thinks fit, apply them to all persons within their 
limits. But when this is done, not in conformity with the 
principles of international law, other States are not under- 



DEED SCOTT V. SANDFOED. 255 

stood to be willing to recognize or allow effect to such 
applications of personal statutes. 

It becomes necessary, therefore, to inquire whether the 
operation of the laws of the Territory of Wisconsin upon 
the status of the plaintiff was or was not such an operation 
as these principles of international law require other States 
to recognize and allow effect to. 

And this renders it needful to attend to the particular 
facts and circumstances of this case. 

It appears that this case came on for trial before the Cir- 
cuit Court and a jury, upon an issue, in substance, whether 
the plaintiff and his wife and children were the slaves of 
the defendant. 

The court instructed the jury that, " upon the facts in 
this case, the law is with the defendant." This withdrew 
from the jury the consideration and decision of every matter 
of fact. The evidence in the case consisted of written ad- 
missions, signed by the counsel of the parties. If the case 
had been submitted to the judgment of the court upon an 
agreed statement of facts, entered of record in place of a 
special verdict, it would have been necessary for the court 
below and for this court to pronounce its judgment solely 
on those facts, thus agreed, without inferring any other 
facts therefrom. By the rules of the common law applica- 
ble to such a case, and by force of the seventh article of the 
amendments of the Constitution, this court is precluded 
from finding any fact not agreed to by the parties on the 
record. No submission to the court on a statement of facts 
was made. It was a trial by jury, in which certain admis- 
sions made by the parties were the evidence. The jury 
were not only competent, but were bound to draw from that 
evidence every inference which, in their judgment, exer- 
cised according to the rules of law, it would warrant. The 
Circuit Court took from the jury the power to draw any 
inferences from the admissions made by the parties, and 
decided the case for the defendant. This course can be 



256 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

justified here, if at all, only by its appearing that, upon the 
facts agreed and all such inferences of fact favorable to the 
plaintiff's ease as the jury might have been warranted in 
drawing from those admissions, the law was with the de- 
fendant. Otherwise, the plaintiff would be deprived of the 
benefit of his trial by jury, by whom, for aught we can 
know, those inferences favorable to his case would have 
been drawn. 

The material facts agreed, bearing on this part of the 
case, are that Dr. Emerson, the plaintiff's master, resided 
about two years at the military post of Fort Snelling, being 
a surgeon in the army of the United States, his domicile 
of origin being unknown ; and what, if any thing, he had 
done to preserve or change his domicile prior to his residence 
at Rock Island, being also unknown. 

Now it is true that under some circumstances the resi- 
dence of a military officer at a particular place, in the 
discharge of his official duties, does not amount to the acqui- 
sition of a technical domicile. But it cannot be affirmed, 
with correctness, that it never does. There being actual 
residence, and this being presumptive evidence of domicile, 
all the circumstances of the case must be considered before 
a legal conclusion can be reached that his place of residence 
is not his domicile. If a military officer stationed at a 
particular post should entertain an expectation that his 
residence there would be indefinitely protracted, and in 
consequence should remove his family to the place where 
his duties were to be discharged, form a permanent domes- 
tic establishment there, exercise there the civil rights and 
discharge the civil duties of an inhabitant, while he did no 
act and manifested no intent to have a domicile elsewhere, 
I think no one would say that the mere fact that he was 
himself liable to be called away by the orders of the Gov- 
ernment would prevent his acquisition of a technical domi- 
cile at the place of the residence of himself and his family. 
In other words, I do not think a military officer incapable 



DEED SCOTT V. SANDPOKD. 257 

of acquiring a domicile. Bruce v. Bruce, 2 Bos. & Pul. 230 ; 
Munroe v. Bouglass, 5 Mad. Ch. 232. This being so, 
this case stands thus : There was evidence' before the jury 
that Emerson resided about two years at Fort Snelling, in 
the Territory of Wisconsin. This may or may not have 
been with such intent as to make it his technical domicile. 
The presumption is that it was. It is so laid down by this 
court in Ennis v. Smith, 14 How. 400, and the authorities in 
support of the position are there referred to. His intent 
was a question of fact for the jury. Fitchburg v. Winchertr 
don, 4 Cush. 190. 

The case was taken from the jury. If they had power to 
find that the presumption of the necessary intent had not 
been rebutted, we cannot say on this record that Emerson 
had not his technical domicile at Fort Snelling. But, for 
reasons which I shall now proceed to give, I do not deem 
it necessary in this case to determine the question of the 
technical domicile of Dr. Emerson. 

It must be admitted that the inquiry whether the law 
of a particular country has rightfully fixed the status of a 
person, so that in accordance with the principles of inter- 
national law that status should be recognized in other juris- 
dictions, ordinarily depends on the question whether the 
person was domiciled in the country whose laws are as- 
serted to have fixed his status. But in the United States 
questions of this kind may arise where an attempt to decide 
solely with reference to technical domicile, tested by the 
rules which are applicable to changes of places of abode 
from one country to another, would not be consistent with 
sound principles. And, in my judgment, this is one of 
those cases. 

The residence of the plaintiff who was taken by his 
master, Dr. Emerson, as a slave, from Missouri to the State 
of Illinois, and thence to the Territory of Wisconsin, must 
be deemed to have been for the time being, and until he as- 
serted his own separate intention, the same as the residence 

VOL. II. 17 



258 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

of his master; and the inquiry whether the personal stat- 
utes of the Territory were rightfully extended over the 
plaintiff, and ought, in accordance with the rules of inter- 
national law, to be allowed to fix his status, must depend 
upon the circumstances under which Dr. Emerson went 
into that Territory, and remained there ; and upon the 
further question whether any thing was there rightfully 
done by the plaintiff to cause those personal statutes to 
operate on him. 

Dr. Emerson was an officer in the army of the United 
States. He went into the Territory to discharge his duty 
to the United States. The place was out of the jurisdic- 
tion of any particular State, and within the exclusive juris- 
diction of the United States. It does not appear where the 
domicile of origin of Dr. Emerson was, nor whether or not 
he had lost it and gained another domicile, nor of what 
particular State, if any, he was a citizen. 

On what ground can it be denied that all valid laws of 
the United States, constitutionally enacted by Congress for 
the government of the Territory, rightfully extended over 
an officer of the United States and his servant who went 
into the Territory to remain there for an indefinite length 
of time, to take part in its civil or military affairs ? They 
were not foreigners coming from abroad. Dr. Emerson was 
a citizen of the country which had exclusive jurisdiction 
over the Territory; and not only a citizen, but he went 
there in a public capacity, in the service of the same sover- 
eignty which made the laws. Whatever those laws might 
be, whether of the kind denominated personal statutes or 
not, so far as they were intended by the legislative will, 
constitutionally expressed, to operate on him and his ser- 
vant, and on the relations between them, they had a right- 
ful operation ; and no other State or country can refuse to 
allow that those laws might rightfully operate on the plain- 
tiff and his servant, because such a refusal would be a 
denial that the United States could, by laws constitution- 



DEED SCOTT V. SANDFORD. 259 

ally enacted, govern their own servants residing on their 
own Territory, over which the United States had the 
exclusive control, and in respect to which they are an 
independent sovereign power. Whether the laws now in 
question were constitutionally enacted, I repeat once more, 
is a separate question. But assuming that they were, and 
that they operated directly on the status of the plaintiff, I 
consider that no other State or country could question the 
rightful power of the United States so to legislate, or, 
consistently with the settled rules of international law, 
could refuse to recognize the effects of such legislation 
upon the status of their officers and servants, as valid every- 
where. 

This alone would, in my apprehension, be sufficient to 
decide this question. 

But there are other facts stated on the record which 
should not be passed over. It is agreed that, in the year 
1836, the plaintiff, while residing in the Territory, was mar- 
ried with the consent of Dr. Emerson to Harriet, named in 
the declaration as his wife, and that Eliza and Lizzie were 
the children of that marriage, the first-named having been 
born on the Mississippi River, north of the line of Missouri, 
and the other having been born after their return to Mis- 
souri. And the inquiry is whether, after the marriage of 
the plaintiff in the Territory, with the consent of Dr. Emer- 
son, any other State or country can, consistently with the 
settled rules of international law, refuse to recognize and 
treat him as a free man, when suing for the liberty of him- 
self, his wife, and the children of that marriage. It is in 
reference to his status, as viewed in other States and coun- 
tries, that the contract of marriage and the birth of children 
become strictly material. At the same time, it is proper 
to observe that the female to whom he was married, having 
been taken to the same military post of Fort Snelling as 
a slave, and Dr. Emerson claiming also to be her master 
at the time of her marriage, her status, and that of the 



260 PKOFESSIONAL AND MISCELLANEOUS WRITINGS. 

children of the marriage, are also affected by the same 
considerations. 

If the laws of Congress goTerning the Territory of Wis- 
consin were constitutional and valid laws, there can be no 
doubt these parties were capable of contracting a lawful 
marriage, attended with all the usual civil rights and obli- 
gations of that condition. In that Territory, they were abso- 
lutely free persons, having full capacity to enter into the 
civil contract of marriage. 

It is a principle of international law, settled beyond con- 
troversy in England and America, that a marriage, valid by 
the law of the place where it was contracted, and not in 
fraud of the law of any other place, is valid everywhere; 
and that no technical domicile at the place of the contract 
is necessary to make it so. See Bishop on Marriage and 
Divorce, 125-129, where the cases are collected. 

If, in Missouri, the plaintiff were held to be a slave, the 
validity and operation of his contract of marriage must be 
denied. He can have no legal rights ; of course, not those 
of a husband and father. And the same is true of his wife 
and children. The denial of his rights is the denial of theirs. 
So that, though lawfully married in the Territory, when they 
came out of it, into the State of Missouri, they were no longer 
husband and wife ; and a child of that lawful marriage, though 
born under the same dominion where its parents contracted 
a lawful marriage, is not the fruit of that marriage, nor the 
child of its father, but subject to the maxim, partus sequitur 
ventrem. 

It must be borne in mind that in this case there is no 
ground for the inquiry whether it be the will of the State 
of Missouri not to recognize the validity of the marriage of 
a fugitive slave, who escapes into a State or country where 
slavery is not allowed, and there contracts a marriage ; or 
the validity of such a marriage, where the master, being a 
citizen of the State of Missouri, voluntarily goes with his 
slave, in itinere, into a State or country which does not per- 



DEED SCOTT V. SANDFOED. 261 

mit slavery to exist, and the slave there contracts marriage 
without the consent of his master; for in this case, it is 
agreed, Dr. Emerson did consent ; and no further question 
can arise concerning his rights, so far as their assertion is 
inconsistent with the validity of the marriage. Nor do I 
know of any ground for the assertion that this marriage was 
in fraud of any law of Missouri. It has been held by this 
court that a bequest of property by a master to his slave 
by necessary implication entitles the slave to his freedom ; 
because only as a freeman could he take and hold the 
bequest. Legrand v. Darnall, 2 Peters, 664. It has also 
been held that when a master goes with his slave to reside 
for an indefinite period in a State where slavery is not toler- 
ated, this operates as an act of manumission ; because it is 
sufficiently expressive of the consent of the master that the 
slave should be free. 2 Marshall's Ken. 470 ; 14 Martin, 
La. 401. 

What, then, shall we say of the consent of the master that 
the slave may contract a lawful marriage, attended with all 
the civil rights and duties which belong to that relation ; 
that he may enter into a relation which none but a free 
man can assume, — a relation which involves not only the 
rights and duties of the slave, but those of the other party 
to the contract, and of their descendants to the remotest 
generation? In my judgment, there can be no more effect- 
ual abandonment of the legal rights of a master over his 
slave than by the consent of the master that the slave 
should enter into a contract of marriage in a free State, 
attended by all the civil rights and obligations which belong 
to that condition. 

And any claim by Dr. Emerson, or any one claiming 
under him, the effect of which is to deny the validity of 
this marriage and the lawful paternity of the children born 
from it, wherever asserted, is, in my judgment, a claim incon- 
sistent with good faith and sound reason, as well as with the 
rules of international law. And I go further : in my opin- 



262 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

ion, a law of the State of Missouri, which should thus annul 
a marriage, lawfully contracted by these parties while resi- 
dent in Wisconsin, not in fraud of any law of Missouri, or 
of any right of Dr. Emerson, who consented thereto, would 
be a law impairing the obligation of a contract, and within 
the prohibition of the Constitution of the United States. 
See 4 Wheat. 629, 695, 696. 

To avoid misapprehension on this important and difficult 
subject, I will state distinctly the conclusions at which I 
have arrived. They are : — 

First, the rules of international law respecting the eman- 
cipation of slaves, by the rightful operation of the laws of 
another State or country upon the status of the slave, while 
resident in such foreign State or country, are part of the 
common law of Missouri, and have not been abrogated by 
any statute law of that State. 

Second, the laws of the United States, constitutionally 
enacted, which operated directly on and changed the status 
of a slave coming into the Territory of Wisconsin with his 
master, who went thither to reside for an indefinite length 
of time, in the performance of his duties as an officer of the 
United States, had a rightful operation on the status of the 
slave ; and it is in conformity with the rules of international 
law that this change of status should be recognized every- 
where. 

Third, the laws of the United States, in operation in the 
Territory of Wisconsin at the time of the plaintiff's resi- 
dence there, did act directly on the status of the plaintiff, 
and change his status to that of a free man. 

Fourth, the plaintiff and his wife were capable of con- 
tracting, and, with the consent of Dr. Emerson, did contract 
a marriage in that Territory, valid under its laws ; and the 
validity of this marriage cannot be questioned in Missouri, 
save by showing that it was in fraud of the laws of that 
State, or of some right derived from them ; which cannot be 
shown in this case, because the master consented to it. 



DEED SCOTT V. SANDFORD. 263 

Fifth, that the consent of the master that his slave, resid- 
ing in a country which does not tolerate slavery, may enter 
into a lawful contract of marriage, attended with the civil 
rights and duties which belong to that condition, is an 
effectual act of emancipation. And the law does not enable 
Dr. Emerson, or any one claiming under him, to assert a 
title to the married persons as slaves, and thus destroy the 
obligation of the contract of marriage, and bastardize their 
issue, and reduce them to slavery. 

But it is insisted that the Supreme Court of Missouri has 
settled this case by its decision in Scott v. Emerson, 15 Mo. 
576; and that this decision is in conformity with the weight 
of authority elsewhere, and with sound principles. If the 
Supreme Court of Missouri had placed its decision on the 
ground that it appeared Dr. Emerson never became domi- 
ciled in the Territory, and so its laws could not rightfully 
operate on him and his slave ; and the facts that he went 
there to reside indefinitely, as an officer of the United 
States, and that the plaintiff was lawfully married there, 
with Dr. Emerson's consent, were left out of view, — the deci- 
sion would find support in other cases, and I might not be 
prepared to deny its correctness. But the decision is not 
rested on this ground. The domicile of Dr. Emerson in 
that Territory is not questioned in that decision ; and it is 
placed on a broad denial of the operation, in Missouri, of 
the law of any foreign State or country upon the status of a 
slave, going with his master from Missouri into such foreign 
State or country, even though they went thither to become, 
and actually became, permanent inhabitants of such foreign 
State or country, the laws whereof acted directly on the 
status of the slave, and changed his status to that of a 
freeman. 

To the correctness of such a decision I cannot assent. 
In my judgment, the opinion of the majority of the court 
in that case is in conflict with its previous decisions, with 
a great weight of judicial authority in other slaveholding 



264 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

States, and with fundamental principles of private inter- 
national law. Mr. Chief Justice Gamble, in his dissenting 
opinion in that case, said : — 

" I regard the question as conclusively settled by repeated adju- 
dications of this court ; and, if I doubted or denied the propriety of 
those decisions, I would not feel myself any more at liberty to over- 
turn them, than I would any other series of decisions by which the 
law upon any other question had been settled. There is with me 
nothing in the law of slavery which distinguishes it from the law 
on any other subject, or allows any more accommodation to the 
temporary excitements which have gathered around it. . . . But, 
in the midst of all such excitement, it is proper that the judicial 
mind, calm and self-balanced, should adhere to principles estab- 
lished when there was no feeling to disturb the view of the legal 
questions upon which the rights of parties depend." 

" In this State, it has been recognized from the beginning of the 
government, as a correct position in law, that the master who takes 
his slave to reside in a State or Territory where slavery is prohib- 
ited, thereby emancipates his slave." Winney v. Whitesides, 1 Mo. 
473 ; Le Grange v. Chouteau, 2 Mo. 20; Milley v. Smith, Id. 36; 
Ralph v. Duncan, 3 Mo. 194; Julia v. McKinney, Id. 270; Nat 
v. Ruddle, Id. 400 ; Rachel v. Walker, 4 Mo. 350 ; Wilson, v. 
Melvin, Id. 592. 

Chief Justice Gamble has also examined the decisions 
of the courts of other States in which slavery is estab- 
lished, and finds them in accordance with these preceding 
decisions of the Supreme Court of Missouri to which he 
refers. 

It would be a useless parade of learning for me to go over 
the ground which he has so fully and ably occupied. 

But it is further insisted we are bound to follow this de- 
cision. I do not think so. In this case, it is to be deter- 
mined what laws of the United States were in operation in 
the Territory of Wisconsin, and what was their effect on 
the status of the plaintiff. Could the plaintiff contract a 
lawful marriage there ? Does any law of the State of Mis- 
souri impair the obligation of that contract of marriage, 



DEED SCOTT V. SAJSDFORD. 265 

destroy his rights as a husband, bastardize the issue of the 
marriage, and reduce them to a state of slavery ? 

These questions, which arise exclusively under the Con- 
stitution and laws of the United States, this court, under 
the Constitution and laws of the United States, has the 
rightful authority finally to decide. And, if we look beyond 
these questions, we come to the consideration whether the 
rules of international law, which are part of the laws of 
Missouri until displaced by some statute not alleged to 
exist, do or do not require the status of the plaintiff, as 
fixed by the laws of the Territory of Wisconsin, to be rec- 
ognized in Missouri. Upon such a question, not depending 
on any statute or local usage, but on principles of universal 
jurisprudence, this court has repeatedly asserted it could 
not hold itself bound by the decisions of State courts, how- 
ever great respect might be felt for their learning, ability, 
and impartiality. See Swift v. Tyson, 16 Peters, 1 ; Car- 
penter v. The Providence Ins. Co., Id. 495 ; Foxeroft v. 
Mallet, 4 How. 353 ; Rowan v. Runnels, 5 How. 134. 

Some reliance has been placed on the fact that the deci- 
sion in the Supreme Court of Missouri was between these 
parties, and the suit there was abandoned to obtain another 
trial in the courts of the United States. 

In Homer v. Brown, 16 How. 354, this court made a de- 
cision upon the construction of a devise of lands, in direct 
opposition to the unanimous opinion of the Supreme Court 
of Massachusetts, between the same parties, respecting the 
same subject-matter, — the claimant having become nonsuit 
in the State court, in order to bring his action in the Circuit 
Court of the United States. I did not sit in that case, hav- 
ing been of counsel for one of the parties while at the bar ; 
but, on examining the report of the argument of the counsel 
for the plaintiff in error, I find they made the point that 
this court ought to give effect to the construction put upon 
the will by the State court, to the end that rights respect- 
ing lands may be governed by one law, and that the law of 



266 PROFESSIONAL AND MISCELLANEOUS -WRITINGS. 

the place where the lands are situated ; that they referred 
to the State decision of the case, reported in 3 Cush. 390, 
and to many decisions of this court. But this court does 
not seem to have considered the point of sufficient impor- 
tance to notice it in their opinions. In Millar v. Austin, 13 
How. 218, an action was brought by the indorsee of a writ- 
ten promise. The question was whether it was negotiable 
under a statute of Ohio. The Supreme Court of that State 
having decided it was not negotiable, the plaintiff became 
nonsuit, and brought his action in the Circuit Court of the 
United States. The decision of the Supreme Court of the 
State, reported in 4 Ves. L. J. 527, was relied on. This 
court unanimously held the paper to be negotiable. 

When the decisions of the highest court of a State are 
directly in conflict with each other, it has been repeatedly 
held here that the last decision is not necessarily to be 
taken as the rule. State Bank v. Knoop, 16 How. 369; 
Pease v. Peck, 18 How. 599. 

To these considerations I desire to add that it was not 
made known to the Supreme Court of Missouri, so far as 
appears, that the plaintiff was married in Wisconsin with 
the consent of Dr. Emerson ; and it is not made known to 
us that Dr. Emerson was a citizen of Missouri, a fact to 
which that court seem to have attached much importance. 

Sitting here to administer the law between these parties, 
I do not feel at liberty to surrender my own convictions of 
what the law requires to the authority of the decision in 
15 Missouri Reports. 

I have thus far assumed, merely for the purpose of the 
argument, that the laws of the United States respecting 
slavery in this Territory were constitutionally enacted by 
Congress. It remains to inquire whether they are consti- 
tutional and binding laws. 

In the argument of this part of the case at bar, it was 
justly considered by all the counsel to be necessary to ascer- 
tain the source of the power of Congress over the territory 



BRED SCOTT V. SANDFORD. 267 

belonging to the United States. Until this is ascertained, 
it is not possible to determine the extent of that power. 
On the one side, it was maintained that the Constitution 
contains no express grant of power to organize and govern 
what is now known to the laws of the United States as a 
Territory. That whatever power of this kind exists is 
derived by implication from the capacity of the United 
States to hold and acquire territory out of the limits of any 
State, and the necessity for its having some government. 

On the other side, it was insisted that the Constitution 
has not failed to make an express provision for this end, 
and that it is found in the third section of the fourth article 
of the Constitution. 

To determine which of these is the correct view, it is 
needful to advert to some facts respecting this subject, 
which existed when the Constitution was framed and 
adopted. It will be found that these facts not only shed 
much light on the question whether the framers of the Con- 
stitution omitted to make a provision concerning the power 
of Congress to organize and govern Territories, but they 
will also aid in the construction of any provision which 
may have been made respecting this subject. 

Under the Confederation, the unsettled territory within 
the limits of the United States had been a subject of deep 
interest. Some of the States insisted that these lands were 
within their chartered boundaries, and that they had suc- 
ceeded to the title of the Crown to the soil. On the other 
hand, it was argued that the vacant lands had been acquired 
by the United States by the war carried on by them under 
a common government and for the common interest. 

This dispute was further complicated by unsettled ques- 
tions of boundary among several States. It not only 
delayed the accession of Maryland to the Confederation, but 
at one time seriously threatened its existence. 5 Jour, of 
Cong. 208, 442. Under the pressure of these circum- 
stances, Congress earnestly recommended to the several 



268 PROFESSIONAL AND MISCELLANEOUS "WRITINGS. 

States a cession of their claims and rights to the United 
States. 5 Jour, of Cong. 442. And before the Constitu- 
tion was framed, it had been begun. That by New York 
had been made on the first day of March, 1781 ; that of 
Virginia, on the first day of March, 1784 ; that of Massa- 
chusetts, on the nineteenth day of April, 1785 ; that of Con- 
necticut, on the fourteenth dayof September, 1786 ; that of 
South Carolina, on the eighth day of August, 1787, while 
the Convention for framing the Constitution was in session. 

It is very material to observe, in this connection, that 
each of these acts cedes, in terms, to the United States, as 
well the jurisdiction as the soil. 

It is also equally important to note that, when the Con- 
stitution was framed and adopted, this plan of vesting in 
the United States, for the common good, the great tracts of 
ungranted lands claimed by the several States, in which so 
deep an interest was felt, was yet incomplete. It remained 
for North Carolina and Georgia to cede their extensive and 
valuable claims. These were made by North Carolina on 
the twenty-fifth day of February, 1790, and by Georgia on 
the twenty-fourth day of April, 1802. The terms of these 
last-mentioned cessions will hereafter be noticed in another 
connection ; but I observe here that each of them distinctly 
shows upon its face that they were not only in execution 
of the general plan proposed by the Congress of the Con- 
federation, but of a formed purpose of each of these States 
existing when the assent of their respective people was 
given to the Constitution of the United States. 

It appears, then, that, when the Federal Constitution was 
framed and presented to the people of the several States for 
their consideration, the unsettled territory was viewed as 
justly applicable to the common benefit, so far as it then 
had or might attain thereafter a pecuniary value ; and so 
far as it might become the seat of new States to be ad- 
mitted into the Union upon an equal footing with the 
original States. And also that the relations of the United 



DEED SCOTT V. SANDFORD. 269 

States to that unsettled territory were of different kinds. 
The titles of the States of New York, Virginia, Massachu- 
setts, Connecticut, and South Carolina, as well of soil as of 
jurisdiction, had been transferred to the United States. 
North Carolina and Georgia had not actually made trans- 
fers ; but a confident expectation, founded on their appre- 
ciation of the justice of the general claim, and fully justified 
by the results, was entertained that these cessions would be 
made. The ordinance of 1787 had made provision for the 
temporary government of so much of the territory actually 
ceded as lay north-west of the river Ohio. 

But it must have been apparent, both to the framers of 
the Constitution and the people of the several States who 
were to act upon it, that the government thus provided for 
could not continue, unless the Constitution should confer on 
the United States the necessary powers to continue it. 
That temporary government, under the ordinance, was to 
consist of certain officers, to be appointed by and responsi- 
ble to the Congress of the Confederation : their powers had 
been conferred and defined by the ordinance. So far as it 
provided for the temporary government of the Territory, it 
was an ordinary act of legislation, deriving its force from 
the legislative power of Congress, and depending for its 
vitality upon the continuance of that legislative power. 
But the officers to be appointed for the North-western 
Territory, after the adoption of the Constitution, must 
necessarily be officers of the United States, and not of the 
Congress of the Confederation ; appointed and commis- 
sioned by the President, and exercising powers derived 
from the United States under the Constitution. 

Such was the relation between the United States and the 
North-western Territory, which all reflecting men must have 
foreseen would exist, when the government created by the 
Constitution should supersede that of the Confederation. 
That if the new government should be without power to 
govern this Territory, it could not appoint and commission 



270 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

officers and send them into the Territory, to exercise there 
legislative, judicial, and executive power; and that this 
Territory, which was even then foreseen to be so important 
both politically and financially to all the existing States, 
must be left not only without the control of the general 
government, in respect to its future political relations to the 
rest of the States, but absolutely without any government 
save what its inhabitants, acting in their primary capacity, 
might from time to time create for themselves. 

But this North-western Territory was not the only terri- 
tory the soil and jurisdiction whereof were then understood 
to have been ceded to the United States. The cession by 
South Carolina, made in August, 1787, was of " all the ter- 
ritory included within the river Mississippi and a line begin- 
ning at that part of the said river which is intersected by the 
southern boundary of North Carolina, and continuing along 
the said boundary line until it intersects the ridge or chain 
of mountains which divides the Eastern from the Western 
waters ; then to be continued along the top of the said ridge 
of mountains until it intersects a line to be drawn due west 
from the head of the southern branch of the Tugaloo River 
to the said mountains, and thence to run a due west course 
to the river Mississippi." 

It is true that by subsequent explorations it was ascer- 
tained that the source of the Tugaloo River, upon which the 
title of South Carolina depended, was so far to the north- 
ward that the transfer conveyed only a narrow slip of land, 
about twelve miles wide, lying on the top of the ridge of 
mountains, and extending from the northern boundary of 
Georgia to the southern boundary of North Carolina. But 
this was a discovery made long after the cession ; and there 
can be no doubt that the State of South Carolina, in mak- 
ing the cession, and the Congress in accepting it, viewed it 
as a transfer to the United States of the soil and jurisdiction 
of an extensive and important part of the unsettled terri- 
tory ceded by the Crown of Great Britain by the treaty of 



DRED SCOTT V. SANDFORD. 271 

peace, though, its quantity or extent then remained to be 
ascertained. 1 

It must be remembered also, as has been already stated, 
that not only was there a confident expectation entertained 
by the other States that North Carolina and Georgia would 
complete the plan already so far executed by New York, 
Virginia, Massachusetts, Connecticut, and South Carolina, 
but that the opinion was in no small degree prevalent that 
the just title to this " back country," as it was termed, had 
vested in the United States by the treaty of peace, and 
could not rightfully be claimed by any individual State. 

There is another consideration applicable to this part of 
the subject, and entitled, in my judgment, to great weight. 

The Congress of the Confederation had assumed the 
power not only to dispose of the lands ceded, but to insti- 
tute governments and make laws for their inhabitants. In 
other words, they had proceeded to act under the cession, 
which, as we have seen, was as well of the jurisdiction as of 
the soil. This ordinance was passed on the 13th of July, 
1787. The Convention for framing the Constitution was 
then in session at Philadelphia. The proof is direct and 
decisive that it was known to the Convention. 2 It is equally 
clear that it was admitted and understood not to be within 
the legitimate powers of the Confederation to pass this 
ordinance. Jefferson's Works, vol ix. pp. 251, 276 ; Fede- 
ralist, Nos. 38, 43. 

The importance of conferring on the new government 
regular powers commensurate with the objects to be attained, 

1 This statement that some territory did actually pass by this cession is 
taken from the opinion of the court, delivered by Mr. Justice Wayne, in the 
case of Howard v. Ingersoll, reported in 13 How. 405. It is an obscure mat- 
ter ; and, on some examination of it, I have been led to doubt whether any 
territory actually passed by this cession. But, as the fact is not important 
to the argument, I have not thought it necessary further to investigate it. 

2 It was published in a newspaper at Philadelphia, in May, and a copy 
of it was sent by R. H. Lee to General Washington, on the 15th of July. 
See Cor. of Am. Rev., vol. iv. p. 261, and Writings of Washington, vol. ix. 
p. 174. 



272 PBOFESSIONAL AND MISCELLANEOUS WEITINGS. 

and thus avoiding the alternative of a failure to execute the 
trust assumed by the acceptance of the cessions made and 
expected, or its execution by usurpation, could scarcely fail 
to be perceived. That it was in fact perceived is clearly 
shown by the Federalist (No. 38), where this very argument 
is made use of in commendation of the Constitution. 

Keeping these facts in view^it may confidently be asserted 
that there is very strong reason to believe, before we ex- 
amine the Constitution itself, that the necessity for a com- 
petent grant of power to hold, dispose of, and govern 
territory ceded and expected to be ceded, could not have 
escaped the attention of those who framed or adopted the 
Constitution ; and that, if it did not escape their attention, 
it could not fail to be adequately provided for. 

Any other conclusion would involve the assumption that 
a subject of the gravest national concern, respecting which 
the small States felt so much jealousy that it had been 
almost an insurmountable obstacle to the formation of the 
Confederation, and as to which all the States had deep 
pecuniary and political interests, and which had been so 
recently and constantly agitated, was nevertheless over- 
looked; or that such a subject was not overlooked, but 
designedly left unprovided for, though it was manifestly a 
subject of common concern which belonged to the care of 
the General Government, and adequate provision for which 
could not fail to be deemed necessary and proper. 

The admission of new States to be framed out of the 
ceded territory early attracted the attention of the Conven- 
tion. Among the resolutions introduced by Mr. Randolph, 
on the 29th of May, was one on this subject (Res. No. 10, 
5 Elliot, 128), which having been affirmed in Committee of 
the Whole, on the 5th of June (5 Elliot, 156), and reported 
to the Convention on the 13th of June (5 Elliot, 190), 
was referred to the Committee of Detail to prepare the 
Constitution, on the 26th of July (5 Elliot, 376). This com- 
mittee reported an article for the admission of new States 



DEED SCOTT V. SANDFOED. 273 

"lawfully constituted or established." Nothing was said 
concerning the power of Congress to prepare or form such 
States. This omission struck Mr. Madison, who on the 
18th of August (5 Elliot, 439) moved for the insertion of 
power to dispose of the unappropriated lands of the United 
States, and to institute temporary governments for new 
States arising therein. 

On the 29th of August (5 Elliot, 492), the report of the 
committee was taken up, and after debate — which exhibited 
great diversity of views concerning the proper mode of pro- 
viding for the subject, arising out of the supposed diversity 
of interests of the large and small States, and between those 
which had and those which had not unsettled territory, but 
no difference of opinion respecting the propriety and neces- 
sity of some adequate provision for the subject — Gouver- 
neur Morris moved the clause as it stands in the Constitution. 
This met with general approbation, and was at once adopted. 
The whole section is as follows : — 

" New States may be admitted by the Congress into this Union ; 
but no new State shall be formed or erected within the jurisdiction 
of any other State, nor any State be formed by the junction of two 
or more States, or parts of States, without the consent of the legis- 
latures of the States concerned, as well as of Congress. 

" The Congress shall have power to dispose of and make all 
needful rules and regulations respecting the territory or other prop- 
erty belonging to the United States ; and nothing in this Constitu- 
tion shall be so construed as to prejudice any claims of the United 
States or any particular State." 

That Congress has some power to institute temporary 
governments over the territory, I believe all agree ; and, if 
it be admitted that the necessity of some power to govern 
the territory of the United States could not and did not 
escape the attention of the Convention and the people, and 
that the necessity is so great that, in the absence of any ex- 
press grant, it is strong enough to raise an implication of 
the existence of that power, it would seem to follow that it 

VOL. II. 18 



274 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

is also strong enough to afford material aid in construing an 
express grant of power respecting that territory ; and that 
they who maintain the existence of the power, without find- 
ing any words at all in which it is conveyed, should be 
willing to receive a reasonable interpretation of language of 
the Constitution manifestly intended to relate to the territory, 
and to convey to Congress some authority concerning it. 

It would seem, also, that when we find the subject-matter 
of the growth and formation and admission of new States, 
and the disposal of the territory for these ends, were under 
consideration, and that some provision therefor was ex- 
pressly made, it is improbable that it would be in its terms 
a grossly inadequate provision ; and that an indispensably 
necessary power to institute temporary governments, and 
to legislate for the inhabitants of the territory, was passed 
silently by, and left to be deduced from the necessity of the 
case. 

In the argument at the bar, great attention has been paid 
to the meaning of the word " territory." 

Ordinarily, when the territory of a sovereign power is 
spoken of, it refers to that tract of country which is under 
the political jurisdiction of that sovereign power. Thus, 
Chief Justice Marshall (in United States v. Bevans, 3 Wheat. 
386) says : " What, then, is the extent of jurisdiction which 
a State possesses? We answer without hesitation, The 
jurisdiction of a State is co-extensive with its territory." 
Examples might easily be multiplied of this use of the word, 
but they are unnecessary, because it is familiar. But the 
word "territory" is not used in this broad and general sense 
in this clause of the Constitution. 

At the time of the adoption of the Constitution, the 
United States held a great tract of country north-west of 
the Ohio ; another tract, then of unknown extent, ceded by 
South Carolina ; and a confident expectation was then en- 
tertained, and afterwards realized, that they then were or 
would become the owners of other great tracts claimed by 



DEED SCOTT V. SANDFOED. 275 

North Carolina and Georgia. These ceded tracts lay within 
the limits of the United States, and out of the limits of any 
particular State; and the cessions embraced the civil and 
political jurisdiction, and so much of the soil as had not 
previously been granted to individuals. 

These words, " territory belonging to the United States," 
were not used in the Constitution to describe an abstrac- 
tion, but to identify and apply to these actual subjects mat- 
ter then existing and belonging to the United States, and 
other similar subjects which might afterwards be acquired ; 
and, this being so, all the essential qualities and incidents 
attending such actual subjects are embraced within the words 
" territory belonging to the United States," as fully as if 
each of those essential qualities and incidents had been 
specifically described. 

I say, the essential qualities and incidents. But, in deter- 
mining what were the essential qualities and incidents of 
the subject with which they were dealing, we must take 
into consideration, not only all the particular facts which 
were immediately before them, but the great consideration 
ever present to the minds of those who framed and adopted 
the Constitution, — that they were making a frame of govern- 
ment for the people of the United States and their posterity, 
under which they hoped the United States might be, what 
they have now become, a great and powerful nation, possess- 
ing the power to make war and to conclude treaties, and 
thus to acquire territory. See Cerri v. Pitot, 6 Cr. 336 ; 
Am. Ins. Co. v. Canter, 1 Peters, 542. With these in view, 
I turn to examine the clause of the article now in question. 

It is said this provision has no application to any territory 
save that then belonging to the United States. I have 
already shown that, when the Constitution was framed, a 
confident expectation was entertained, which was speedily 
realized, that North Carolina and Georgia would cede their 
claims to that great territory which lay west of those States. 
No doubt has been suggested that the first clause of this 



276 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

same article, which enabled Congress to admit new States, 
refers to and includes new States to be formed out of. this 
territory, expected to be thereafter ceded by North Carolina 
and Georgia, as well as new States to be formed out of ter- 
ritory north-west of the Ohio, which then had been ceded 
by Virginia. It must have been seen, therefore, that the 
same necessity would exist for an authority to dispose of 
and make all needful regulations respecting this territory, 
when ceded, as existed for a like authority respecting ter- 
ritory which had been ceded. 

No reason has been suggested why any reluctance should 
have been felt by the framers of the Constitution to apply 
this provision to all the territory which might belong to the 
United States, or why any distinction should have been 
made, founded on the accidental circumstance of the dates 
of the cessions, — a circumstance in no way material as 
respects the necessity for rules and regulations, or the 
propriety of conferring on the Congress power to make 
them. And, if we look at the course of the debates in the 
Convention on this article, we shall find that the then un- 
ceded lands, so far from having been left out of view in 
adopting this article, constituted, in the minds of members, 
a subject of even paramount importance. 

Again, in what an extraordinary position would the limi- 
tation of this clause to territory then belonging to the United 
States place the territory which lay within the chartered 
limits of North Carolina and Georgia. The title to that 
territory was then claimed by those States and by the 
United States, their respective claims are purposely left 
unsettled by the express words of this clause ; and, when 
cessions were made by those States, they were merely of 
their claims to this territory, the United States neither ad- 
mitting nor denying the validity of those claims : so that it 
was impossible then, and has ever since remained impossible, 
to know whether this territory did or did not then belong 
to the United States ; and consequently to know whether it 



DEED SCOTT V. SANDFOED. 277 

was within or without the authority conferred by this 
clause, to dispose of and make rules and regulations respect- 
ing the territory of the United States. This attributes to 
the eminent men who acted on this subject a want of ability 
and forecast, or a want of attention to the known facts upon 
which they were acting, in which I cannot concur. 

There is not, in my judgment, any thing in the language, 
the history, or the subject-matter of this article, which re- 
stricts its operation to territory owned by the United States 
when the Constitution was adopted. 

But it is also insisted that provisions of the Constitution 
respecting territory belonging to the United States do not 
apply to territory acquired by treaty from a foreign nation. 
This objection must rest upon the position that the Consti- 
tution did not authorize the Federal Government to acquire 
foreign territory, and consequently has made no provision 
for its government when acquired; or that, though the 
acquisition of foreign territory was contemplated by the 
Constitution, its provisions concerning the admission of new 
States, and the making of all needful rules and regulations 
respecting territory belonging to the United States, were 
not designed to be applicable to territory acquired from 
foreign nations. 

It is undoubtedly true that at the date of the treaty of 
1803, between the United States and France, for the cession 
of Louisiana, it was made a question whether the Constitu- 
tion had conferred on the executive department of the Gov- 
ernment of the United States power to acquire foreign 
territory by a treaty. 

There is evidence that very grave doubts were then enter- 
tained concerning the existence of this power. But that 
there was then a settled opinion in the executive and legis- 
lative branches of the Government that this power did not 
exist cannot be admitted without at the same time imputing 
to those who negotiated and ratified the treaty, and passed 
the laws necessary to carry it into execution, a deliberate 



278 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

and known violation of their oaths to support the Constitu- 
tion; and, whatever doubts may then have existed, the 
question must now be taken to have been settled. Four 
distinct acquisitions of foreign territory have been made by 
as many different treaties, under as many different adminis- 
trations. Six States formed on such territory are now in 
the Union. Every branch »of this Government, during a 
period of more than fifty years, has participated in these 
transactions. To question their validity now is vain. As was 
said by Mr. Chief Justice Marshall, in the Am. Ins. Go. v. 
Canter, 1 Peters, 542 : " The Constitution confers absolutely 
on the Government of the Union the powers of making war 
and of making treaties : consequently, that Government 
possesses the power of acquiring territory, either by con- 
quest or treaty." See CerrS v. Pitot, 6 Cr. 336. And I 
add, it also possesses the power of governing it, when 
acquired, not by resorting to supposititious powers, nowhere 
found described in the Constitution, but expressly granted 
in the authority to make all needful rules and regulations 
respecting the territory of the United States. 

There was to be established by the Constitution a frame 
of government, under which the people of the United States 
and their posterity were to continue indefinitely. To take 
one of its provisions, the language of which is broad enough 
to extend throughout the existence of the Government, and 
embrace all territory belonging to the United States through- 
out all time, and the purposes and objects of which apply 
to all territory of the United States, and narrow it down to 
territory belonging to the United States when the Constitu- 
tion was framed, while at the same time it is admitted that 
the Constitution contemplated and authorized the acquisition 
from time to time of other and foreign territory, seems to 
me to be an interpretation as inconsistent with the nature 
and purposes of the instrument as it is with its language, 
and I can have no hesitation in rejecting it. 

I construe this clause, therefore, as if it had read, Con- 



DRED SCOTT V. SANDFORD. 279 

gress shall liave power to make all needful rules and regu- 
lations respecting those tracts of country out of the limits 
of the several States which the United States have acquired, 
or may hereafter acquire, by cessions, as well of the ju- 
risdiction as of the soil, so far as the soil may be the 
property of the party making the cession, at the time of 
making it. 

It has been urged that the words "rules and regulations" 
are not appropriate terms in which to convey authority to 
make laws for the government of the Territory. 

But it must be remembered that this is a grant of power 
to the Congress, — that it is therefore necessarily a grant of 
power to legislate ; and, certainly, rules and regulations re- 
specting a particular subject, made by the legislative power 
of a country, can be nothing but laws. Nor do the particu- 
lar terms employed, in my judgment, tend in any degree to 
restrict tliis legislative power. Power granted to a legisla- 
ture to make all needful rules and regulations respecting 
the Territory is a power to pass all needful laws respect- 
ing it. 

The word "regulate," or "regulation," is several times used 
in the Constitution. It is used in the fourth section of the 
first article, to describe those laws of the States which pre- 
scribe the times, places, and manner of choosing Senators 
and Representatives ; in the second section of the fourth 
article, to designate the legislative action of a State on the 
subject of fugitives from service, having a very close rela- 
tion to the matter of our present inquiry ; in the second 
section of the third article, to empower Congress to fix the 
extent of the appellate jurisdiction of this court; and, 
finally, in the eighth section of the first article are the 
words, " Congress shall have power to regulate commerce." 

It is unnecessary to describe the body of legislation which 
has been enacted under this grant of power : its variety and 
extent are well known. But it may be mentioned, in pass- 
ing, that under this power to regulate commerce Congress 



280 PROFESSIONAL AND MISCELLANEOUS "WHITINGS. 

has enacted a great system of municipal laws, and extended 
it over the vessels and crews of the United States on the 
high seas and in foreign ports, and even over citizens of the 
United States resident in China ; and has established judi- 
catures, with power to inflict even capital punishment within 
that country. 

If, then, this clause does contain a power to legislate re- 
specting the Territory, what are the limits of that power ? 

To this I answer, that, in common with all the other 
legislative powers of Congress, it finds limits in the express 
prohibitions on Congress not to do certain things ; that, in 
the exercise of the legislative power, Congress cannot pass 
an ex post facto law or bill of attainder ; and so in respect 
to each of the other prohibitions contained in the Consti- 
tution. 

Besides this, the rules and regulations must be needful. 
But, undoubtedly, the question whether a particular rule or 
regulation be needful must be finally determined by Con- 
gress itself. Whether a law be needful is a legislative or 
political, not a judicial question. Whatever Congress deems 
needful is so under the grant of power. 

Nor am I aware that it has ever been questioned that 
laws providing for the temporary government of the settlers 
on the public lands are needful, not only to prepare them 
for admission to the Union as States, but even to enable 
the United States to dispose of the lands. 

Without government and social order, there can be no 
property ; for, without law, its ownership, its use, and the 
power of disposing of it, cease to exist, in the sense in which 
those words are used and understood in all civilized States. 

Since, then, this power was manifestly conferred to enable 
the United States to dispose of its public lands to settlers, 
and to admit them into the Union as States, when in the 
judgment of Congress they should be fitted therefor ; since 
these were the needs provided for ; since it is confessed that 
government is indispensable to provide for those needs, and 



DEED SCOTT V. SANDFOED. 281 

the power is to make all needful rules and regulations re- 
specting the territory, — I cannot doubt that this is a power 
to govern the inhabitants of the territory by such laws 
as Congress deems needful until they obtain admission as 
States. 

Whether they should be thus governed solely by laws 
enacted by Congress, or partly by laws enacted by legisla- 
tive power conferred by Congress, is one of those questions 
which depend on the judgment of Congress, — a question 
which of these is needful. 

But it is insisted that, whatever other powers Congress 
may have respecting the territory of the United States, the 
subject of negro slavery forms an exception. 

The Constitution declares that Congress shall have power 
to make " all needful rules and regulations " respecting the 
territory belonging to the United States. 

The assertion is, though the Constitution says all, it 
does not mean all, — though it says all, without qualifica- 
tion, it means all except such as allow or prohibit slavery. 
It cannot be doubted that it is incumbent on those who 
would thus introduce an exception not found in the lan- 
guage of the instrument to exhibit some solid and satis- 
factory reason, drawn from the subject-matter or the pur- 
poses and objects of the clause, the context, or from other 
provisions of the Constitution, showing that the words em- 
ployed in this clause are not to be understood according to 
their clear, plain, and natural signification. 

The subject-matter is the territory of the United States 
out of the limits of every State, and consequently under the 
exclusive power of the people of the United States. Their 
will respecting it, manifested in the Constitution, can be 
subject to no restriction. The purposes and objects of the 
clause were the enactment of laws concerning the disposal 
of the public lands, and the temporary government of the 
settlers thereon until new States should be formed. It will 
not be questioned that, when the Constitution of the United 



282 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

States was framed and adopted, the allowance and the pro- 
hibition of negro slavery were recognized subjects of muni- 
cipal legislation : every State had in some measure acted 
thereon ; and the only legislative act concerning the terri- 
tory — the ordinance of 1787, which had then so recently 
been passed — contained a prohibition of slavery. The 
purpose and object of the clause being to enable Congress 
to provide a body of municipal law for the government of 
the settlers, the allowance or the prohibition of slavery- 
comes within the known and recognized scope of that 
purpose and object. 

There is nothing in the context which qualifies the grant 
of power. The regulations must be " respecting the terri- 
tory." An enactment that slavery may or may not exist 
there is a regulation respecting the territory. Regulations 
must be needful ; but it is necessarily left to the legislative 
discretion to determine whether a law be needful. No 
other clause of the Constitution has been referred to at the 
bar, or has been seen by me, which imposes any restriction 
or makes any exception concerning the power of Congress 
to allow or prohibit slavery in the territory belonging to the 
United States. 

A practical construction, nearly contemporaneous with 
the adoption of the Constitution, and continued by repeated 
instances through a long series of years, may always influ- 
ence, and in doubtful cases should determine, the judicial 
mind on a question of the interpretation of the Constitution. 
Stuart v. Laird, 1 Cranch, 269 ; Martin v. Hunter, 1 Wheat. 
304 ; Cohens v. Virginia, 6 Wheat. 264 ; Prigg v. Pennsyl- 
vania, 16 Pet. 621; Cooley v. Port Wardens, 12 How. 315. 

In this view, I proceed briefly to examine the practical 
construction placed on the clause now in question, so far 
as it respects the inclusion therein of power to permit or 
prohibit slavery in the Territories. 

It has already been stated that, after the Government 
of the United States was organized under the Constitution, 



DEED SCOTT V. SANDFOKD. 283 

the temporary government of the territory north-west of the 
river Ohio could no longer exist, save under the powers 
conferred on Congress by the Constitution. Whatever leg- 
islative, judicial, or executive authority should be exercised 
therein, could be derived only from the people of the United 
States under the Constitution. And, accordingly, an act 
was passed on the seventh day of August, 1789 (1 Stat, at 
Large, 50), which recites : " Whereas, in order that the 
ordinance of the United States in Congress assembled, for 
the government of the territory north-west of the river Ohio, 
may continue to have full effect, it is required that certain 
provisions should be made, so as to adapt the same to the 
present Constitution of the United States." It then pro- 
vides for the appointment, by the President, of all officers 
who, by force of the ordinance, were to have been appointed 
by the Congress of the Confederation, and their commission 
in the manner required by the Constitution ; and empowers 
the Secretary of the Territory to exercise the powers of the 
Governor in case of the death or necessary absence of the 
latter. 

Here is an explicit declaration of the will of the first 
Congress, of which fourteen members, including Mr. Madi- 
son, had been members of the Convention which framed the 
Constitution, that the ordinance, one article of which pro- 
hibited slavery, "should continue to have full effect." 
General Washington, who signed this bill, as President, 
was the president of that Convention. 

It does not appear to me to be important, in this connec- 
tion, that that clause in the ordinance which prohibited 
slavery was one of a series of articles of what is therein 
termed a compact. The Congress of the Confederation had 
no power to make such a compact, nor to act at all on the 
subject ; and after what had been so recently said by Mr. 
Madison on this subject, in the thirty-eighth number of the 
" Federalist," I cannot suppose that he, or any others who 
voted for this bill, attributed any intrinsic effect to what 



284 PKOEESSIONAL AND MISCELLANEOUS "WRITINGS. 

was denominated in the ordinance a compact between "the 
original States and the people and States in the new terri- 
tory ; " there being no new States then in existence in the 
territory, with whom a compact could be made, and the few 
scattered inhabitants, unorganized into a political body, not 
being capable of becoming a party to a treaty, even if the 
Congress of the Confederation* had had power to make one 
touching the government of that territory. 

I consider the passage of this law to have been an asser- 
tion by the first Congress of the power of the United States 
to prohibit slavery within this part of the territory of the 
United States ; for it clearly shows that slavery was there- 
after to be prohibited there; and it could be prohibited 
only by an exertion of the power of the United States, 
under the Constitution; no other power being capable of 
operating within that territory after the Constitution took 
effect. 

On the 2d of April, 1790 (1 Stat, at Large, 106), the 
first Congress passed an act accepting a deed of cession, by 
North Carolina, of that Territory afterwards erected into the 
State of Tennessee. The fourth express condition con- 
tained in this deed of cession, after providing that the in- 
habitants of the Territory shall be temporarily governed in 
the same manner as those beyond the Ohio, is followed by 
these words : " Provided, always, that no regulations made 
or to be made by Congress shall tend to emancipate slaves." 

This provision shows that it was then understood Con- 
gress might make a regulation prohibiting slavery, and that 
Congress might also allow it to continue to exist in the 
Territory; and accordingly when, a few days later, Congress 
passed the act of May 20, 1790 (1 Stat, at Large, 123), for 
the government of the territory south of the river Ohio, it 
provided, " And the government of the territory south of the 
Ohio shall be similar to that now exercised in the territory 
north-west of the Ohio, except so far as is otherwise pro- 
vided in the conditions expressed in an act of Congress of 



DRED SCOTT V. SANDFOED. 285 

the present session, entitled ' an Act to accept a cession of 
the claims of the State of North Carolina to a certain dis- 
trict of western territory.' " Under the government thus 
established, slavery existed until the Territory became the 
State of Tennessee. 

On the 7th of April, 1798 (1 Stat, at Large, 649), an act 
was passed to establish a government in the Mississippi 
Territory in all respects like that exercised in the territory 
north-west of the Ohio, " excepting and excluding the last 
article of the ordinance made for the government thereof by 
the late Congress, on the thirteenth day of July, 1787." 
When the limits of this Territory had been amicably set- 
tled with Georgia, and the latter ceded all its claim thereto, 
it was one stipulation in the compact of cession that the 
ordinance of July 13, 1787, " shall in all its parts extend to 
the Territory contained in the present act of cession, that 
article only excepted which forbids slavery." The govern- 
ment of this Territory was subsequently established and 
organized under the act of May 10, 1800 ; but so much of 
the ordinance as prohibited slavery was not put in operation 
there. 

Without going minutely into the details of each case, I 
will now give reference to two classes of acts, in one of 
which Congress has extended the ordinance of 1787, includ- 
ing the article prohibiting slavery over different Territories, 
and thus exerted its power to prohibit it; in the other, 
Congress has erected governments over Territories acquired 
from France and Spain, in which slavery already existed, 
but refused to apply to them that part of the government 
under the ordinance which excluded slavery. 

Of the first class are the act of May 7, 1800 (2 Stat, at 
Large, 58), for the government of the Indiana Territory ; 
the act of Jan. 11, 1805 (2 Stat, at Large, 309), for the 
government of Michigan Territory ; the act of May 3, 1809 
(2 Stat, at Large, 514), for the government of the Illinois 
Territory; the act of April 20, 1836 (5 Stat, at Large, 10), 



286 PROFESSIONAL AND MISCELLANEOUS "WRITINGS. 

for the government of the Territory of "Wisconsin ; the act 
of June 12, 1838, for the government of the Territory of 
Iowa ; the act of Aug. 14, 1848, for the government of the 
Territory of Oregon. To these instances should be added 
the act of March 6, 1820 (3 Stat, at Large, 548), prohibit- 
ing slavery in the Territory acquired from France, being 
north-west of Missouri, and north of thirty-six degrees 
thirty minutes north latitude. 

Of the second class, in which Congress refused to inter- 
fere with slavery already existing under the municipal law 
of France or Spain, and established governments by which 
slavery was recognized and allowed, are : the act of March 
26, 1804 (2 Stat, at Large, 283), for the government of 
Louisiana ; the act of March 2, 1805 (2 Stat, at Large, 
322), for the government of the Territory of Orleans ; the 
act of June 4, 1812 (2 Stat, at Large, 743), for the govern- 
ment of the Missouri Territory ; the act of March 30, 1822 
(3 Stat, at Large, 654), for the government of the Territory 
of Florida. Here are eight distinct instances, beginning 
with the first Congress, and coming down to the year 1848, 
in which Congress has excluded slavery from the territory 
of the United States ; and six distinct instances in which 
Congress organized governments of Territories by which 
slavery was recognized and continued, beginning also with 
the first Congress, and coming down to the year 1822. 
These acts were severally signed by seven Presidents of 
the United States, beginning with General Washington, 
and coming regularly down as far as Mr. John Quincy 
Adams, thus including all who were in public life when 
the Constitution was adopted. 

If the practical construction of the Constitution contem- 
poraneously with its going into effect, by men intimately 
acquainted with its history from their personal participa- 
tion in framing and adopting it, and continued by them 
through a long series of acts of the gravest importance, be 
entitled to weight in the judicial mind on a question of 



DEED SCOTT V. SANDFORD. 287 

construction, it would seem to be difficult to resist the force 
of the acts above adverted to. 

It appears, however, from what has taken place at the 
bar, that notwithstanding the language of the Constitution, 
and the long line of legislative and executive precedents 
under it, three different and opposite views are taken of the 
power of Congress respecting slavery in the Territories. 

One is that, though Congress can make a regulation pro- 
hibiting slavery in a Territory, they cannot make a regula- 
tion allowing it ; another is that it can neither be established 
nor prohibited by Congress, but that the people of a Terri- 
tory, when organized by Congress, can establish or prohibit 
slavery; while the third is that the Constitution itself secures 
to every citizen who holds slaves, under the laws of any State, 
the indefeasible right to carry them into any Territory, and 
there hold them as property. 

No particular clause of the Constitution has been referred 
to at the bar in support of either of these views. The first 
seems to be rested upon general considerations concerning 
the social and moral evils of slavery, its relations to repub- 
lican governments, its inconsistency with the Declaration 
of Independence and with natural right. 

The second is drawn from considerations equally general, 
concerning the right of self-government and the nature of 
the political institutions which have been established by the 
people of the United States. 

While the third is said to rest upon the equal right of all 
citizens to go with their property upon the public domain, 
and the inequality of a regulation which would admit the 
property of some and exclude the property of other citizens, 
and inasmuch as slaves are chiefly held by citizens of those 
particular States where slavery is established, it is insisted 
that a regulation excluding slavery from a Territory oper- 
ates practically to make an unjust discrimination between 
citizens of different States in respect to their use and enjoy- 
ment of the territory of the United States. 



288 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

With the weight of either of these considerations, when 
presented to Congress to influence its action, this court has 
no concern. One or the other may be justly entitled to 
guide or control the legislative judgment upon what is a 
needful regulation. The question here is, whether they are 
sufficient to authorize this court to insert into this clause of 
the Constitution an exception of the exclusion or allowance 
of slavery, not found therein, nor in any other part of that 
instrument. To engraft on any instrument a substantive 
exception not found in it must be admitted to be a matter 
attended with great difficulty. And the difficulty increases 
with the importance of the instrument, and the magnitude 
and complexity of the interests involved in its construction. 
To allow this to be done with the Constitution, upon reasons 
purely political, renders its judicial interpretation impossi- 
ble ; because judicial tribunals, as such, cannot decide upon 
political considerations. Political reasons have not the re- 
quisite certainty to afford rules of juridical interpretation. 
They are different in different men. They are different in 
the same men at different times. And when a strict inter- 
pretation of the Constitution, according to the fixed rules 
which govern the interpretation of laws, is abandoned, and 
the theoretical opinions of individuals are allowed to con- 
trol its meaning, we have no longer a Constitution : we are 
under the government of individual men, who for the time 
being have power to declare what the Constitution is, ac- 
cording to their own views of what it ought to mean. 
When such a method of interpretation of the Constitu- 
tion obtains, in place of a republican government, with 
limited and defined powers, we have a government which 
is merely an exponent of the will of Congress; or what, 
in my opinion, would not be preferable, an exponent of 
the individual political opinions of the members of this 
court. 

If it can be shown, by any thing in the Constitution itself, 
that, when it confers on Congress the power to make all 



DEED SCOTT V. SANDFOED. 289 

needful rules and regulations respecting the territory belong- 
ing to the United States, the exclusion or the allowance of 
slavery was excepted ; or, if any thing in the history of this 
provision tends to show that such an exception was intended 
by those who framed and adopted the Constitution to be 
introduced into it, I hold it to be my duty carefully to con- 
sider, and to allow just weight to such considerations in 
interpreting the positive text of the Constitution. -But 
where the Constitution has said all needful rules and regu- 
lations, I must find something -more than theoretical reason- 
ing to induce me to say it did not mean all. 

There have been eminent instances in this court, closely 
analogous to this one, in which such an attempt to introduce 
an exception, not found in the Constitution itself, has failed 
of success. 

By the eighth section of the first article, Congress has the 
power of exclusive legislation in all cases whatsoever within 
this district. 

In the case of Loughborough v. Blake, 5 Wheat. 324, the 
question arose whether Congress has power to impose direct 
taxes on persons and property in this district. It was in- 
sisted that, though the grant of power was in its terms 
broad enough to include direct taxation, it must be limited 
by the principle that taxation and representation are insep- 
arable. It would not be easy to fix on any political truth 
better established or more fully admitted in our country, 
than that taxation and representation must exist together. 
We went into the war of the Revolution to assert it, and it 
is incorporated as fundamental into all American govern- 
ments. But, however true and important this maxim may 
be, it is not necessarily of universal application. It was for 
the people of the United States, who ordained the Constitu- 
tion, to decide whether it should or should not be permitted 
to operate within this district. Their decision was embodied 
in the words of the Constitution ; and, as that contained no 
such exception as would permit the maxim to operate in this 

VOL. II. 19 



290 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

district, this court, interpreting that language, held that the 
exception did not exist. 

Again, the Constitution confers on Congress power to 
regulate commerce with foreign nations. Under this, Con- 
gress passed an act on the 22d of December, 1807, unlimited 
in duration, laying an embargo on all ships and vessels in 
the ports or within the limits and jurisdiction of the United 
States. No law of the United States ever pressed so severely 
upon particular States. Though the constitutionality of the 
law was contested with an earnestness and zeal proportioned 
to the ruinous effects which were felt from it, and though, 
as Mr. Chief Justice Marshall has said (9 Wheat. 192), " A 
want of acuteness in discovering objections to a measure to 
which they felt the most deep-rooted hostility will not be 
imputed to those who were arrayed in opposition to this," I 
am not aware that the fact that it prohibited the use of a 
particular species of property, belonging almost exclusively 
to citizens of a few States, and this indefinitely, was ever 
supposed to show that it was unconstitutional. Something 
much more stringent, as a ground of legal judgment, was 
relied on, — that the power to regulate commerce did not 
include the power to annihilate commerce. 

But the decision was that, under the power to regulate 
commerce, the power of Congress over the subject was re- 
stricted only by those exceptions and limitations contained 
in the Constitution ; and as neither the clause in question, 
which was a general grant of power to regulate commerce, 
nor any other clause of the Constitution, imposed any re- 
strictions as to the duration of an embargo, an unlimited 
prohibition of the use of the shipping of the country was 
within the power of Congress. On this subject, Mr. Justice 
Daniel, speaking for the court in the case of United States 
v. Marigold, 9 How. 560, says : " Congress are, by the Con- 
stitution, vested with the power to regulate commerce with 
foreign nations; and however, at periods of high excite- 
ment, an application of the terms ' to regulate commerce,' 



DEED SCOTT V. SANDFORD. 291 

such, as would embrace absolute prohibition, may have been 
questioned, yet, since the passage of the embargo and non- 
intercourse laws, and the repeated judicial sanctions these 
statutes have received, it can scarcely at this day be open 
to doubt that every subject falling legitimately within the 
sphere of commercial regulation may be partially or wholly 
excluded, when either measure shall be demanded by the 
safety or the important interests of the entire nation. The 
power once conceded, it may operate on any and every sub- 
ject of commerce to which the legislative discretion may 
apply it." 

If power to regulate commerce extends to an indefinite 
prohibition of the use of all vessels belonging to citizens 
of the several States, and may operate without exception 
upon every subject of commerce to which the legislative 
discretion may apply it, upon what grounds can I say that 
power to make all needful rules and regulations respecting 
the territory of the United States is subject to an exception 
of the allowance or prohibition of slavery therein ? 

While the regulation is one " respecting the territory ; "- 
while it is, in the judgment of Congress, " a needful regula- 
tion," and is thus completely within the words of the grant ; 
while no other clause of the Constitution can be shown, 
which requires the insertion of an exception respecting 
slavery ; and while the practical construction for a period of 
upwards of fifty years forbids such an exception, — it would, 
in my opinion, violate every sound rule of interpretation to 
force that exception into the Constitution upqn the strength 
of abstract political reasoning, which we are bound to 
believe the people of the United States thought insufficient 
to induce them to limit the power of Congress, because 
what they have said contains no such limitation. 

Before I proceed further to notice some other grounds of 
supposed objection to this power of Congress, I desire to 
say that, if it were not for my anxiety to insist upon what 
I deem a correct exposition of the Constitution, if I looked 



292 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

only to the purposes of the argument, the source of the 
power of Congress asserted in the opinion of the majority 
of the court would answer those purposes equally well. 
For they admit that Congress has power to organize and 
govern the Territories until they arrive at a suitable condi- 
tion for admission to the Union ; they admit, also, that the 
kind of government which shall thus exist should be regu- 
lated by the condition and wants of each Territory, and that 
it is necessarily committed to the discretion of Congress to 
enact such laws for that purpose as that discretion may dic- 
tate; and no limit to that discretion has been shown, or 
even suggested, save those positive prohibitions to legislate 
which are found in the Constitution. 

I confess myself unable to perceive any difference what- 
ever between my own opinion of the general extent of the 
power of Congress and the opinion of the majority of the 
court, save that I consider it derivable from the express 
language of the Constitution, while they hold it to be 
silently implied from the power to acquire territory. Look- 
ing at the power of Congress over the Territories as of the 
extent just described, what positive prohibition exists in the 
Constitution which restrained Congress from enacting a law 
in 1 820 to prohibit slavery north of thirty-six degrees thirty 
minutes north latitude ? 

The only one suggested is that clause in the fifth article 
of the amendments of the Constitution which declares that 
no person shall be deprived of his life, liberty, or property, 
without due process of law. I will now proceed to examine 
the question whether this clause is entitled to the effect 
thus attributed to it. It is necessary, first, to have a clear 
view of the nature and incidents of that particular species 
of property which is now in question. 

Slavery, being contrary to natural right, is created only 
by municipal law. This is not only plain in itself, and 
agreed by all writers on the subject, but is inferable from 
the Constitution, and has been explicitly declared by this 



DEED SCOTT V. SANDPOKD. 293 

court. The Constitution refers to slaves as " persons held 
to service in one State under the laws thereof." Nothing 
can more clearly describe a status created by municipal law. 
In Prigg v. Pennsylvania, 10 Peters, 611, this court said : 
" The state of slavery is deemed to be a mere municipal 
regulation, founded on and limited to the range of territo- 
rial laws." In Rankin v. Lydia, 2 Marsh. 12, 470, the 
Supreme Court of Appeals of Kentucky said : " Slavery is 
sanctioned by the laws of this State, and the right to hold 
them under our municipal regulations is unquestionable. 
But we view this as a right existing by positive law of a 
municipal character, without foundation in the law of 
nature or the unwritten common law." I am not ac- 
quainted with any case or writer questioning the correct- 
ness of this doctrine. See also 1 Burge, Col. & For. Laws, 
738-741, where the authorities are collected. 

The status of slavery is not necessarily always attended 
with the same powers on the part of the master. The 
master is subject to the supreme power of the State, whose 
will controls his action towards his slave, and this control 
must be defined and regulated by the municipal law. In 
one State, as at one period of the Roman law, it may put 
the life of the slave into the hand of the master ; others, 
as those of the United States, which tolerate slavery, may 
treat the slave as a person when the master takes his life ; 
while, in others, the law may recognize a right of the slave 
to be protected from cruel treatment. In other words, the 
status of slavery embraces every condition, from that in 
which the slave is known to the law simply as a chattel, 
with no civil rights, to that in which he is recognized as 
a person for all purposes, save the compulsory power of 
directing and receiving the fruits of his labor. Which of 
these conditions shall attend the status of slavery must 
depend on the municipal law which creates and upholds it. 

And not only must the status of slavery be created and 
measured by municipal law, but the rights, powers, and 



294 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

obligations which, grow out of that status must be defined, 
protected, and enforced by such laws. The liability of the 
master for the torts and crimes of his slave, and of third 
persons for assaulting or injuring or harboring or kidnapping 
him, the forms and modes of emancipation and sale, their 
subjection to the debts of the master, succession by death 
of the master, suits for freedom, the capacity of the slave to 
be party to a suit or to be a witness, with such police regu- 
lations as have existed in all civilized States where slavery 
has been tolerated, are among the subjects upon which 
municipal legislation becomes necessary when slavery is 
introduced. 

Is it conceivable that the Constitution has conferred the 
right on every citizen to become a resident on the territory 
of the United States with his slaves, and there to hold 
them as such, but has neither made nor provided for any 
municipal regulations which are essential to the existence 
of slavery? 

Is it not more rational to conclude that they who framed 
and adopted the Constitution were aware that persons held 
to service under the laws of a State are property only to the 
extent and under the conditions fixed by those laws ; that 
they must cease to be available as property when their 
owners voluntarily place them permanently within another 
jurisdiction, where no municipal laws on the subject of 
slavery exist ; and that, being aware of these principles, and 
having said nothing to interfere with or displace them, or to 
compel Congress to legislate in any particular manner on 
the subject, and having empowered Congress to make all 
needful rules and regulations respecting the territory of the 
United States, it was their intention to leave to the dis- 
cretion of Congress what regulations, if any, should be made 
concerning slavery therein ? Moreover, if the right exists, 
what are its limits, and what are its conditions ? If citizens 
of the United States have the right to take their slaves to a 
Territory, and hold them there as slaves, without regard to 



DRED SCOTT V. SANDFOUD. 295 

the laws of the Territory, I suppose this right is not to be 
restricted to the citizens of slaveholding States. A citizen 
of a State which does not tolerate slavery can hardly be 
denied the power of doing the same thing. And what law 
of slavery does either take with him to the Territory ? If 
it be said to be those laws respecting slavery which existed 
in the particular State from which each slave last came, 
what an anomaly is this ! Where else can we find, under 
the law of any civilized country, the power to introduce 
and permanently continue diverse systems of foreign muni- 
cipal law for holding persons in slavery? I say, not merely 
to introduce, but permanently to continue, these anomalies. 
For the offspring of the female must be governed by the 
foreign municipal laws to which the mother was subject; 
and when any slave is sold, or passes by succession on the 
death of the owner, there must pass with him, by a species 
of subrogation, and as a kind of unknown jus in re, the 
foreign municipal laws which constituted, regulated, and 
preserved the status of the slave before his exportation. 
Whatever theoretical importance may be now supposed to 
belong to the maintenance of such a right, I feel a perfect 
conviction that it would, if ever tried, prove to be as impracti- 
cable in fact as it is, in my judgment, monstrous in theory. 
I consider the assumption which lies at the basis of this 
theory to be unsound ; not in its just sense, and when prop- 
erly understood, but in the sense which has been attached 
to it. That assumption is that the territory ceded by 
France was acquired for the equal benefit of all the citizens 
of the United States. I agree to the position. But it was 
acquired for their benefit in their collective, not their indi- 
vidual capacities. It was acquired for their benefit as an 
organized political society, subsisting as " the people of the 
United States," under the Constitution of the United States ; 
to be administered justly and impartially, and as nearly as 
possible for the equal benefit of every individual citizen, ac- 
cording to the best judgment and discretion of the Congress ; 



296 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

to whose power, as the legislature of the nation which ac- 
quired it, the people of the United States have committed 
its administration. Whatever individual claims may be 
founded on local circumstances or sectional differences of 
condition cannot, in my opinion, be recognized in this 
court without arrogating to the judicial branch of the Gov- 
ernment powers not committed to it ; and which, with all 
the unaffected respect I feel for it when acting in its proper 
sphere, I do not think it fitted to wield. 

Nor, in my judgment, will the position that a prohibition 
to bring slaves into a Territory deprives any one of his 
property without due process of law bear examination. 

It must be remembered that this restriction on the legis- 
lative power is not peculiar to the Constitution of the 
United States ; it was borrowed from Magna Charta ; was 
brought to America by our ancestors as part of their in- 
herited liberties, and has existed in all the States, usually in 
the very words of the great charter. It existed in every 
political community in America in 1787, when the ordinance 
prohibiting slavery north and west of the Ohio was passed. 

And, if a prohibition of slavery in a Territory in 1820 
violated this principle of Magna Charta, the ordinance of 
1787 also violated it ; and what power had, I do not say the 
Congress of the Confederation alone, but the legislature of 
Virginia, or the legislature of any or all the States of the 
Confederacy, to consent to such a violation ? The people 
of the States had conferred no such power. I think I may 
at least say, if the Congress did then violate Magna Charta 
by the ordinance, no one discovered that violation. Besides, 
if the prohibition upon all persons — citizens as well as 
others — to bring slaves into a Territory, and a declaration 
that, if brought, they shall be free, deprives citizens of their 
property without due process of law, what shall we say of 
the legislation of many of the slaveholding States which 
have enacted the same prohibition ? As early as October, 
1778, a law was passed in Virginia, that thereafter no slave 



DEED SCOTT V. SANDFOED. 297 

should be imported into that Commonwealth by sea or by- 
land, and that every slave who should be imported should 
become free. A citizen of Virginia purchased in Maryland 
a slave who belonged to another citizen of Virginia, and 
removed with the slave to Virginia. The slave sued for her 
freedom and recovered it, as may be seen in Wilson v. 
Isabel, 5 Call, 425. See also Hunter v. Hulsher, 1 Leigh, 
172; and a similar law has been recognized as valid in 
Maryland, in Stewart v. Oaks, 5 Har. & J. 107. I am not 
aware that such laws, though they exist in many States, 
were ever supposed to be in conflict with the principle of 
Magna Charta incorporated into the State Constitutions. 
It was certainly understood by the Convention which framed 
the Constitution, and has been so understood ever since, 
that under the power to regulate commerce Congress could 
prohibit the importation of slaves ; and the exercise of the 
power was restrained till 1808. A citizen of the United 
States owns slaves in Cuba, and brings them to the United 
States, where they are set free by the legislation of Con- 
gress. Does this legislation deprive him of his property 
without due process of law? If so, what becomes of the 
laws prohibiting the slave trade ? If not, how can a similar 
regulation respecting a Territory violate the fifth amend- 
ment of the Constitution ? 

Some reliance was placed by the defendant's counsel upon 
the fact that the prohibition of slavery in this Territory was 
in the words, " that slavery, &c, shall be and is hereby for 
ever prohibited." But the insertion of the words for ever 
can have no legal effect. Every enactment not expressly 
limited in its duration continues in force until repealed or 
abrogated by some competent power, and the use of the 
words "for ever" can give to the law no more durable oper- 
ation. The argument is that Congress cannot so legislate 
as to bind the future States formed out of the Territory, and 
that in this instance it has attempted to do so. Of the 
political reasons which may have induced the Congress to 



298 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

use these words, and which caused them to expect that sub- 
sequent legislatures would conform their action to the then 
general opinion of the country that it ought to be permanent, 
this court can take no cognizance. 

However fit such considerations are to control the action 
of Congress, and however reluctant a statesman may be to 
disturb what has been settled, every law made by Congress 
may be repealed; and saving private rights, and public 
rights gained by States, its repeal is subject to the absolute 
will of the same power which enacted it. If Congress had 
enacted that the crime of murder committed in this Indian 
Territory, north of thirty-six degrees thirty minutes, by or 
on any white man, should for ever be punishable with death, 
it would seem to me an insufficient objection to an indict- 
ment found while it was a Territory, that at some future 
day States might exist there, and so the law was invalid, 
because by its terms it was to continue in force for ever. 
Such an objection rests upon a misapprehension of the 
province and power of courts respecting the constitutionality 
of laws enacted by the legislature. 

If the Constitution prescribe one rule and the law another 
and different rule, it is the duty of courts to declare that 
the Constitution, and not the law, governs the case before 
them for judgment. If the law include no case save those 
for which the Constitution has furnished a different rule, or 
no case which the legislature has the power to govern, then 
the law can have no operation. If it includes cases which 
the legislature has power to govern, and concerning which the 
Constitution does not prescribe a different rule, the law gov- 
erns those cases, though it may in its terms attempt to 
include others on which it cannot operate. In other words, 
this court cannot declare void an act of Congress which con- 
stitutionally embraces some cases, though other cases, within 
its terms, are beyond the control of Congress, or beyond the 
reach of that particular law. If, therefore, Congress had 
power to make a law excluding slavery from this Territory, 



DRED SCOTT V. SANDFOED. 299 

while under the exclusive power of the United States, the 
use of the words " for ever " does not invalidate the law, so 
long as Congress has the exclusive legislative power in the 
Territory. 

But it is further insisted that the treaty of 1803, between 
the United States and France, by which this Territory was 
acquired, has so restrained the constitutional powers of Con- 
gress that it cannot by law prohibit the introduction of 
slavery into that part of this Territory north and west of 
Missouri, and north of thirty-six degrees thirty minutes 
north latitude. 

By a treaty with a foreign nation, the United States may 
rightfully stipulate that the Congress will or will not exer- 
cise its legislative power in some particular manner, on 
some particular subject. Such promises, when made, should 
be voluntarily kept with the most scrupulous good faith. 
But that a treaty with a foreign nation can deprive the 
Congress of any part of the legislative power conferred by 
the people, so that it no longer can legislate as it was 
empowered by the Constitution to do, I more than doubt. 

The powers of the Government do and must remain 
unimpaired. The responsibility of the Government to a 
foreign nation for the exercise of those powers is quite 
another matter. That responsibility is to be met and justi- 
fied to the foreign nation, according to the requirements of 
the rules of public law ; but never upon the assumption that 
the United States had parted with or restricted any power 
of acting according to its own free will, governed solely by 
its own appreciation of its duty. 

The second section of the fourth article is, " This Consti- 
tution, and the laws of the United States which shall be 
made in pursuance thereof, and all treaties made or which 
shall be made under the authority of the United States, 
shall be the supreme law of the land." This has made 
treaties part of our municipal law ; but it has not assigned 
to them any particular degree of authority, nor declared 



300 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

that laws so enacted stall be irrepealable. No supremacy 
is assigned to treaties over acts of Congress. That they are 
not perpetual, and must be in some way repealable, all will 
agree. 

If the President and the Senate alone possess the power 
to repeal or modify a law found in a treaty, inasmuch as 
they can change or abrogate one treaty only by making 
another inconsistent with the first, the Government of the 
United States could not act at all to that effect, without the 
consent of some foreign government. I do not consider — 
I am not aware it has ever been considered — that the 
Constitution has placed our country in this helpless condi- 
tion. The action of Congress in repealing the treaties with 
France by the act of July 7, 1798 (1 Stat, at Large, 578), 
was in conformity with these views. In the case of Taylor 
et al. v. Morton, 2 Curtis's C. C. 454, I had occasion 
to consider this subject, and I adhere to the views there 
expressed. 

If, therefore, it were admitted that the treaty between 
the United States and France did contain an express stipu- 
lation that the United States would not exclude slavery 
from so much of the ceded territory as is now in question, 
this court could not declare that an act of Congress exclud- 
ing it was void by force of the treaty. Whether or not a 
case existed sufficient to justify a refusal to execute such a 
stipulation, would not be a judicial, but a political and leg- 
islative question, wholly beyond the authority of this court 
to try and determine. It would belong to diplomacy and 
legislation, and not to the administration of existing laws. 
Such a stipulation in a treaty to legislate or not to legislate 
in a particular way has been repeatedly held in this court 
to address itself to the political or the legislative power, by 
whose action thereon this court is bound. Foster v. Nieol- 
son, 2 Peters, 314 ; Grarcia v. Lee, 12 Peters, 519. 

But, in my judgment, this treaty contains no stipulation 
in any manner affecting the action of the United States 



DEED SCOTT V. SANDFOBD. 301 

respecting the Territory in question. Before examining 
the language of the treaty, it is material to bear in mind 
that the part of the ceded Territory lying north of thirty-six 
degrees thirty minutes, and west and north of the present 
State of Missouri, was then a wilderness, uninhabited save 
by savages whose possessory title had not then been extin- 
guished. 

It is impossible for me to conceive on what ground France 
could have advanced a claim, or could have desired to ad- 
vance a claim, to restrain the United States from making 
any rules and regulations respecting this Territory, which 
the United States might think fit to make ; and still less 
can I conceive of any reason which would have induced the 
United States to yield to such a claim. It was to be ex- 
pected that France would desire to make the change of 
sovereignty and jurisdiction as little burdensome as possible 
to the then inhabitants of Louisiana, and might well exhibit 
even an anxious solicitude to protect their property and 
persons, and secure to them and their posterity their relig- 
ious and political rights ; and the United States, as a just 
Government, might readily accede to all proper stipulations 
respecting those who were about to have their allegiance 
transferred. But what interest France could have in unin- 
habited territory which, in the language of the treaty, was 
to be transferred " for ever, and in full sovereignty," to the 
United States, or how the United States could consent to 
allow a foreign nation to interfere in its purely internal 
affairs, in which that foreign nation had no concern what- 
ever, is difficult for me to conjecture. In my judgment, 
this treaty contains nothing of the kind. 

The third article is supposed to have a bearing on the 
question. It is as follows : " The inhabitants of the ceded 
Territory shall be incorporated in the Union of the United 
States, and admitted as soon as possible, according to the 
principles of the Federal Constitution, to the enjoyment of 
all the rights, advantages, and immunities of citizens of the 



302 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

United States ; and in the mean time they shall be main- 
tained and protected in the enjoyment of their liberty, 
property, and the religion they profess." 

There are two views of this article, each of which, I 
think, decisively shows that it was not intended to restrain 
the Congress from excluding slavery from that part of the 
ceded Territory then uninhabited. The first is that, mani- 
festly, its sole object was to protect individual rights of the 
then inhabitants of the Territory. They are to be " main- 
tained and protected in the free enjoyment of their liberty, 
property, and the religion they profess." But this article 
does not secure to them the right to go upon the public 
domain ceded by the treaty, either with or without their 
slaves. The right or power of doing this did not exist 
before or at the time the treaty was made. The French 
and Spanish governments while they held the country, as 
well as the United States when they acquired it, always 
exercised the undoubted right of excluding inhabitants from 
the Indian country, and of determining when and on what 
conditions it should be opened to settlers. And a stipula- 
tion that the then inhabitants of Louisiana should be pro- 
tected in their property can have no reference to their use 
of that property where they had no right, under the treaty, 
to go with it, save at the will of the United States. If one 
•who was an inhabitant of Louisiana at the time of the treaty 
had afterwards taken property then owned by him, consist 
ing of fire-arms, ammunition, and spirits, and had gone into 
the Indian country north of thirty-six degrees thirty min- 
utes, to sell them to the Indians, all must agree the third 
article of the treaty would not have protected him from 
indictment under the act of Congress of March 30, 1802 
(2 Stat, at Large, 139), adopted and extended to this Ter- 
ritory by the act of March 26, 1804 (2 Stat, at Large, 
283). 

Besides, whatever rights were secured were individual 
rights. If Congress should pass any law which violated 



DRED SCOTT V. SANDFOED. 303 

such rights of any individual, and those rights were of such 
a character as not to be within the lawful control of Con- 
gress under the Constitution, that individual could complain, 
and the act of Congress, as to such rights of his, would be 
inoperative ; but it would be valid and operative as to all 
other persons whose individual rights did not come under 
the protection of the treaty. And inasmuch as it does not 
appear that any inhabitant of Louisiana, whose rights were 
secured by treaty, had been injured, it would be wholly inad- 
missible for this court to assume : first, that one or more such 
cases may have existed ; and, second, that, if any did exist, 
the entire law was void, — not only as to those cases, if any, 
in which it could not rightfully operate, but as to all others, 
wholly unconnected with the treaty, in which such law could 
rightfully operate. 

But it is quite unnecessary, in my opinion, to pursue this 
inquiry further, because it clearly appears from the language 
of the article, and it has been decided by this court, that the 
stipulation was temporary, and ceased to have any effect 
when the then inhabitants of the Territory of Louisiana, in 
whose behalf the stipulation was made, were incorporated 
into the Union. 

In the cases of New Orleans v. Be Armas et al., 9 Peters, 
223, the question was, whether a title to property, which 
existed at the date of the treaty, continued to be protected 
by the treaty after the State of Louisiana was admitted to 
the Union. The third article of the treaty was relied on. 
Mr. Chief Justice Marshall said: "This article obviously 
contemplates two objects. One, that Louisiana shall be 
admitted into the Union as soon as possible, on an equal 
footing with the other States ; and the other, that, till such 
admission, the inhabitants of the ceded territory shall be 
protected in the free enjoyment of their liberty, property, 
and religion. Had any one of these rights been violated 
while these stipulations continued in force, the individual 
supposing himself to be injured might have brought his case 



304 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

into this court, under the twenty-fifth section of the judicial 
act. But this stipulation ceased to operate when Louisiana 
became a member of the Union, and its inhabitants were 
" admitted to the enjoyment of all the rights, adyantages, 
and immunities of citizens of the United States." 

The cases of Chouteau v. Margue.rita, 12 Peters, 507, and 
Permoli v. New Orleans, 3 How. 589, are in conformity with 
this view of the treaty. 

To convert this temporary stipulation of the treaty, in 
behalf of French subjects who then inhabited a small por- 
tion of Louisiana, into a permanent restriction upon the 
power of Congress to regulate territory then uninhabited, 
and t6 assert that it not only restrains Congress from affect- 
ing the rights of property of the then inhabitants, but ena- 
bled them and all other citizens of the United States to go 
into any part of the ceded Territory with their slaves, and 
hold them there, is a construction of this treaty so opposed 
to its natural meaning, and so far beyond its subject-matter 
and the evident design of the parties, that I cannot assent 
to it. In my opinion, this treaty has no bearing on the 
present question. 

For these reasons, I am of opinion that so much of the 
several acts of Congress as prohibited slavery and involun- 
tary servitude within that part of the Territory of Wiscon- 
sin tying north of thirty-six degrees thirty minutes north 
latitude, and west of the river Mississippi, were constitu- 
tional and valid laws. 

I have expressed my opinion, and the reasons therefor, at 
far greater length than I could have wished, upon the differ- 
ent questions on which I have found it necessary to pass, to 
arrive at a judgment on the case at bar. These questions 
are numerous, and the grave importance of some of them 
required me to exhibit fully the grounds of my opinion. I 
have touched no question which, in the view I have taken, 
it was not absolutely necessary for me to pass upon, to ascer- 
tain whether the judgment of the Circuit Court should stand 



DEED SCOTT V. SANDFOED. 305 

or be reversed. I have avoided no question on which the 
validity of that judgment depends. To have done either 
more or less would have been inconsistent with my views 
of my duty. 

In my opinion, the judgment of the Circuit Court should 
be reversed, and the cause remanded for a new trial. 



306 PROFESSIONAL AND MISCELLANEOUS "WRITINGS. 



EXECUTIVE POWEK. 



The circumstances under which this pamphlet was written and 
published are fully explained, ante, vol. i. p. 350, et seq. It first 
appeared in October, 1862. 



DEDICATION. 

TO ALL PERSONS WHO HAVE SWORN TO SUPPORT 

THE CONSTITUTION OE THE UNITED STATES, 

AND 

TO ALL CITIZENS WHO VALUE THE PRINCIPLES OP CIVIL LIBERTY WHICH 

THAT CONSTITUTION EMBODIES, AND FOR THE PRESERVATION 

OP WHICH IT IS OUR ONLY SECURITY, 

Sfjm 3Pages 

ARE RESPECTFULLY DEDICATED 

BY THE AUTHOR 



PREFACE. 

Extract from President Lincoln's Proclamation of Sep- 
tember 22, 1862. 

" That, on the first day of January, in the year of our Lord one 
thousand eight hundred and sixty-three, all persons held as slaves 
within any State, or designated part of a State, the people whereof 
shall then be in rebellion against the United States, shall be then, 
thenceforward, and for ever free; and the Executive Government of 
the United States, including the military and naval authority thereof, 
will recognize and maintain the freedom of such persons, and will 
do no act or acts to suppress such persons, or any of them, in any efforts 
they may make for their actual freedom." 

" That the Executive will, on the first day of January aforesaid, by 
proclamation, designate the States, and parts of States, if any, in which 



EXECUTIVE POWEB. 307 

the people thereof respectively shall then be in rebellion against the 
United States ; and the fact that any State, or the people thereof, shall 
on that day be in good faith represented in the Congress of the United 
States, by members chosen thereto at elections wherein a majority of 
the qualified voters of such State shall have participated, shall, in the 
absence of strong countervailing testimony, be deemed conclusive evi- 
dence that such State, and the people thereof, are not then in rebellion 
against the United States." 

" Understand, I raise no objection against it on legal or constitu- 
tional grounds ; for, as commander-in-chief of the army and navy, in 
time of war, I suppose I have a right to take any measure which may best 
subdue the enemy." — President Lincoln to the Chicago Dele- 
gation. 

Proclamation op September 24, 1862. 

" Whereas, it has become necessary to call into service not only 
volunteers, but also portions of the militia of the States by draft, in 
order to suppress the insurrection existing in the United States, and 
, disloyal persons are not adequately restrained by the ordinary processes 
of law from hindering this measure, and from giving aid and comfort 
in various ways to the insurrection : 

" Now, therefore, be it ordered, — 

" First. That, during the existing insurrection, and as a necessary 
measure for suppressing the same, all rebels and insurgents, their 
aiders and abettors, within the United States, and all persons dis- 
couraging volunteer enlistments, resisting militia drafts, or guilty of 
any disloyal practice, affording aid and comfort to the rebels against 
the authority of the United States, shall be subject to martial law, 
and liable to trial and punishment by courts-martial or military com- 
mission. 

" Second. That the writ of habeas corpus is suspended in respect to 
all persons arrested, or who are now, or hereafter during the rebellion 
shall be, imprisoned in any fort, camp, arsenal, military prison, or 
other place of confinement, by any military authority, or by the sen- 
tence of any court-martial or military commission. 

" In witness whereof, I have hereunto set my hand, and caused the 
seal of the United States to be affixed. 

" Done at the city of Washington, this twenty-fourth day of 
September, in the year of our Lord one thousand eight hun- 
L L - 8 -J dred an( i sixty-two, and of the independence of the United 
States the eighty-seventh. Abraham Lincoln. 

" By the President: 

" William H. Seward, Secretary of State." 



308 PROFESSIONAL AND MISCELLANEOUS "WRITINGS. 



Orders of the Secretary op War promulgated September 

26, 1862. 

First. There shall be a provost-marshal-general of the war de- 
partment, whose head-quarters will be at Washington, and who will 
have the immediate supervision, control, and management of the 
corps. 

Second. There will be appointee^ in each State one or more special 
provost-marshals, as necessity may require, who will report and receive 
instructions and orders from the provost-marshal-general of the war 
department. 

Third. It will be the duty of the special provost-marshal to arrest 
all deserters, whether regulars, volunteers, or militia, and send them 
to the nearest military commander or military post, where they can 
be cared for and sent to their respective regiments ; to arrest, upon the 
warrant of the judge-advocate, all disloyal persons subject to arrest 
under the orders of the war department ; to inquire into and report 
treasonable practices, seize stolen or embezzled property of the govern- 
ment, detect spies of the enemy, and perform such other duties as may 
be enjoined upon them by the war department, and report all their 
proceedings promptly to the provost-marshal-general. 

Fourth. To enable special provost-marshals to discharge their duties 
efficiently, they are authorized to call on any available military force 
within their respective districts, or else to employ the assistance of citi- 
zens, constables, sheriffs, or police-officers, so far as may be necessary 
under such regulations as may be prescribed by the provost-marshal- 
general of the war department, with the approval of the Secretary of 
War. 

Fifth. Necessary expenses incurred in this service will be paid on 
duplicate bills certified by the special provost-marshals, stating time 
and nature of service, after examination and approval by the provost- 
marsh al-general. 

Sixth. The compensation of special provost-marshals will be 

dollars per month, and actual travelling expenses, and postage will be 
refunded on bills certified under oath and approved by the provost- 
marshal-general. 

Seventh. All appointments in this service will be subject to be 
revoked at the pleasure of the Secretary of War. 

Eighth. All orders heretofore issued by the war department, confer- 
ring authority upon other officers to act as provost-marshals, except 
those who received special commissions from the war department, are 
hereby revoked. 

By order of the Secretary of War. 

L. Thomas, Adjutant-General. 



EXECUTIVE POWER. 309 

EXECUTIVE POWER. 

No citizen can be insensible to the vast importance of the 
late proclamations and orders of the President of the United 
States. Great differences of opinion already exist concern- 
ing them. But, whatever those differences of opinion may 
be, upon one point all must agree. They are assertions of 
transcendent executive power. 

There is nothing in the character or conduct of the chief 
magistrate, there is nothing in his present position in 
connection with these proclamations, and there is nothing 
in the state of the country, which should prevent a candid 
and dispassionate discussion either of their practical ten- 
dencies, or of the source of power from whence they are 
supposed to spring. 

The President on all occasions has manifested the strong- 
est desire to act cautiously, wisely, and for the best interests 
of the country. What is commonly called his proclamation 
of emancipation is, from its terms and from the nature of 
the case, only a declaration of what, at its date, he believed 
might prove expedient, within yet undefined territorial 
limits, three months hence, thirty days after the next meet- 
ing of Congress, and within territory not at present subject 
even to our military control. Of course such an executive 
declaration as to his future intentions must be understood 
by the people to be liable to be modified by events, as well 
as subject to such changes of views, respecting the extent 
of his own powers, as a more mature and possibly a more 
enlightened consideration may produce. 

In April, 1861, the President issued his proclamation, de- 
claring that he would treat as pirates all persons who should 
cruise, under the authority of the so-called Confederate 
States, against the commerce of the United States. 

But subsequent events induced him, with general acqui- 
escence, to exchange them as prisoners of war, — not from 
any fickleness of purpose, but because the interests of the 



310 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

country imperatively demanded this departure from his 
proposed course of action. 

In like manner, it is not to be doubted by any one who 
esteems the President honestly desirous to do his duty to 
the country, under the best lights possible, that "when the 
time for his action on his recent proclamations and orders 
shall arrive it will be in conformity with his own wishes 
that he should have those lights which are best elicited in 
this country by temperate and well-considered public dis- 
cussion, — discussion, not only of the practical consequences 
of the proposed measures, but of his own constitutional 
power to decree and execute them. 

The Constitution has made it incumbent on the President 
to recommend to Congress such measures as he shall deem 
necessary and expedient. Although Congress will have 
been in session nearly thirty days before any executive 
action is proposed to be taken on this subject of emancipa- 
tion, it can hardly be supposed that thi,s proclamation was 
intended to be a recommendation to them. Still, in what 
the President may perhaps regard as having some flavor of 
the spirit of the Constitution, he makes known to the peo- 
ple of the United States his proposed future executive 
action ; certainly not expecting or desiring that they should 
be indifferent to such a momentous proposal, or should fail 
to. exercise their best judgments and afford their best coun- 
sels upon what so deeply concerns themselves. 

Our public affairs are in a condition to render unanimity, 
not only in the public councils of the nation, but among 
the people themselves, of the first importance. But the 
President must have been aware, when he issued these proc- 
lamations, that nothing approaching towards unanimity 
upon their subjects could be attained among the people, 
save through their public discussion. And, as his desire to 
act in accordance with the wisest and best settled and most 
energetic popular sentiment cannot be doubted, we may 
justly believe that executive action has been postponed, 



EXECUTIVE POWER. 311 

among otter reasons, for the very purpose of allowing time 
for such discussion. 

And in reference to the last proclamation, and the orders 
of the Secretary of War intended to carry it into practical 
effect, though their operation is immediate, so far as their 
express declarations can make them so, they have not yet 
been practically applied to such an extent or in such a way 
as not to allow it to be supposed that the grounds upon 
which they rest are open for examination. 

However this may be, these are subjects in which the 
people have vast concern. It is their right, it is their duty, 
to themselves and to their posterity, to examine and to con- 
sider and to decide upon them ; and no citizen is faithful 
to his great trust, if he fail to do so according to the best 
lights he has or can obtain. And if, finally, such examina- 
tion and consideration shall end in diversity of opinion, it 
must be accepted as justly attributable to the questions 
themselves, or to the men who have made them. 

It has been attempted by some partisan journals to raise 
the cry of " disloyalty " against any one who should ques- 
tion these executive acts. 

But the people of the United States know that loyalty is 
not subserviency to a man or to a party, or to the opinions 
of newspapers ; but that it is an honest and wise devotion 
to the safety and welfare of our country, and to the great 
principles which our Constitution of government embodies, 
by which alone that safety and welfare can be secured. 
And, when those principles are put in jeopardy, every truly 
loyal man must interpose according to his ability, or be an 
unfaithful citizen. 

This is not a government of men. It is a government of 
laws. And the laws are required by the people to be in 
conformity with their will declared by the Constitution. 
Our loyalty is due to that will. Our obedience is due to 
those laws ; and he who would induce submission to other 
laws springing from sources of power not originating in the 



312 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

people, but in casual events, and in the mere will of the 
occupants of places of power, does not exhort us to loyalty, 
but to a desertion of our trust. 

That they whose principles he questions have the conduct 
of public affairs ; that the times are most critical ; that pub- 
lic unanimity is highly necessary, — while these facts afford 
sufficient reasons to restrain «all opposition upon any per- 
sonal or party grounds, they can afford no good reason — 
hardly a plausible apology — for failure to oppose usurpa- 
tion of power, which, if acquiesced in and established, must 
be fatal to a free government. 

The war in which we are engaged is a just and neces- 
sary war. It must be prosecuted with the whole force of 
this government till the military power of the South is 
broken, and they submit themselves to their duty to obey, 
and our right to have obeyed, the Constitution of the United 
States as " the supreme law of the land." But with what 
sense of right can we subdue them by arms to obey the 
Constitution as the supreme law of their part of the land, if 
we have ceased to obey it, or failed to preserve it, as the 
supreme law of our part of the land. 

I am a member of no political party. Duties inconsist- 
ent, in my opinion, with the preservation of any attachments 
to a political party, caused me to withdraw from all such 
connections many years ago, and they have never been re- 
sumed. I have no occasion to listen to the exhortations, 
now so frequent, to divest myself of party ties and disregard 
party objects, and act for my country. I have nothing but 
my country for which to act in any public affair ; and solely 
because I have that yet remaining, and know not but it 
may be possible, from my studies and reflections, to say 
something to my countrymen which may aid them to form 
right conclusions in these dark and dangerous times, I now 
reluctantly address them. 

I do not propose to discuss the question whether the first 
of these proclamations of the President, if definitively 



EXECUTIVE POWER. 313 

adopted, can have any practical effect on the unhappy race 
of persons to whom it refers ; nor what its practical conse- 
quences would be upon them and upon the white population 
of the United States, if it should take effect ; nor through 
what scenes of bloodshed, and worse than bloodshed, it may 
be, we should advance to those final conditions ; nor even 
the lawfulness, in any Christian or civilized sense, of the 
use of such means to attain any end. 

If the entire social condition of nine millions of people 
has, in the providence of God, been allowed to depend upon 
the executive decree of one man, it will be the most stu- 
pendous fact which the history of the race has exhibited. 
But, for myself, I do not yet perceive that this vast respon- 
sibility is placed upon the President of the United States. 
I do not yet see that it depends upon his executive decree 
whether a servile war shall be invoked to help twenty mil- 
lions of the white race to assert the rightful authority of the 
Constitution and laws of their country over those who refuse 
to obey them. But I do see that this proclamation asserts 
the power of the executive to make such a decree. 

I do not yet perceive how it is that my neighbors and 
myself, residing remote from armies and their operations, 
and where all the laws of the land may be enforced by con- 
stitutional means, should be subjected to the possibility of 
military arrest and imprisonment, and trial before a military 
commission, and punishment at its discretion for offences 
unknown to the law ; a possibility to be converted into a 
fact at the mere will of the President, or of some subordi- 
nate officer, clothed by him with this power. But I do 
perceive that this executive power is asserted. 

I am quite aware that, in times of great public danger, 
unexpected perils, which the legislative power have failed 
to provide against, may imperatively demand instant and 
vigorous executive action, passing beyond the limits of the 
laws ; and that, when the Executive has assumed the high 
responsibility of such a necessary exercise of mere power, 



314 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

he may justly look for indemnity to that department of the 
government which alone has the rightful authority to grant 
it, — an indemnity which should be always sought and ac- 
corded upon the clearest admission of legal wrong, finding 
its excuse in the exceptional case which made that wrong 
absolutely necessary for the public safety. 

But I find no resemblance between such exceptional 
cases and the substance of these proclamations and these 
orders. They do not relate to exceptional cases : they estab- 
lish a system. They do not. relate to some instant emer- 
gency : they cover an indefinite future. They do not seek 
for excuses : they assert powers and rights. They are gen- 
eral rules of action, applicable to the entire country and to 
every person in it, or to great tracts of country and to the 
social condition of their people ; and they are to be applied 
whenever and wherever and to whomsoever the President, 
or any subordinate officer whom he may employ, may 
choose to apply them. 

Certainly, these things are worthy of the most deliberate 
and searching examination. 

Let us, then, analyze these proclamations and orders of 
the President : let us comprehend the nature and extent of 
the powers they assume. Above all, let us examine that 
portentous cloud of the military power of the President, 
which is supposed to have overcome us and the civil liber- 
ties of the country, pursuant to the' will of the people, or- 
dained in the Constitution because we are in a state of war. 

And, first, let us understand the nature and operation of 
the proclamation of emancipation, as it is termed ; then, 
let us see the character and scope of the other proclamation, 
and the orders of the Secretary of War, designed to give it 
practical effect ; and, having done so, let us examine the 
asserted source of these powers. 

The proclamation of emancipation, if taken to mean 
what in terms it asserts, is an executive decree that, on 
the first day of January next, all persons held as slaves, 



EXECUTIVE POWER. 315 

within such States or parts of States as shall then be desig- 
nated, shall cease to be lawfully held to service, and may 
by their own efforts, and with the aid of the military power 
of the United States, vindicate their lawful right to their 
personal freedom. 

The persons who are the subjects of this proclamation 
are held to service by the laws of the respective States in 
which they reside, enacted by State authority as clear and 
unquestionable, under our system of government, as any 
law passed by any State on any subject. 

This proclamation, then, by an executive decree, proposes 
to repeal and annul valid State laws which regulate the 
domestic relations of their people. Such is the mode of 
operation of the decree. 

The next observable characteristic is that this executive 
decree holds out this proposed repeal of State laws as a 
threatened penalty for the continuance of a governing ma- 
jority of the people of each State, or part of a State, in rebel- 
lion against the United States. So that the President hereby 
assumes to himself the power to denounce it as a punish- 
ment against the entire people of a State, that the valid 
laws of that State which regulate the domestic condition of 
its inhabitants shall become null and void, at a certain 
future date, by reason of the criminal conduct of a govern- 
ing majority of its people. 

This penalty, however, it should be observed, is not to be 
inflicted on those persons who have been guilty of treason. 
The freedom of their slaves was already provided for by the 
act of Congress, recited in a subsequent part of the proc- 
lamation. It is not, therefore, as a punishment of guilty 
persons that the commander-in-chief decrees the freedom 
of slaves. It is upon the slaves of loyal persons, or of those 
who, from their tender years, or other disability, cannot be 
either disloyal or otherwise, that the proclamation is to 
operate, if at all ; and it is to operate to set them free, in 
spite of the valid laws of their States, because a majority 



316 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

of the legal voters do not send representatives to Con- 
gress. 

Now it is easy to understand how persons held to service 
under the laws of these States, and how the army and navy 
under the orders of the President, may overturn these valid 
laws of the States, just as it is easy to imagine that any 
law may be violated by physical force. But I do not under- 
stand it to be the purpose of the President to incite a part 
of the inhabitants of the United States to rise in insurrec- 
tion against valid laws ; but that, by virtue of some power 
which he possesses, he proposes to annul those laws, so that 
they are no longer to have any operation. 

The second proclamation, and the orders of the Secre- 
tary of War, which follow it, place every citizen of the 
United States under the direct military command and 
control of the President. They declare and define new 
offences, not known to any law of the United States. 
They subject all citizens to be imprisoned upon a military 
order, at the pleasure of the President, when, where, and so 
long as he, or whoever is acting for him, may choose. 
They hold the citizen to trial before a military commission 
appointed by the President, or his representative, for such 
acts or omissions as the President may think proper to 
decree to be offences ; and they subject him to such pun- 
ishment as such military commission may be pleased to 
inflict. They create new offices, in such number, and 
whose occupants are to receive such compensation, as the 
President may direct; and the holders of these offices, 
scattered through the States, but with one chief inquisitor 
at Washington, are to inspect and report upon the loy- 
alty of the citizens, with a view to the aboVe-described 
proceedings against them, when deemed suitable by the 
central authority. 

Such is a plain and accurate statement of the nature and 
extent of the powers asserted in these executive proclama- 
tions. 



EXECUTIVE POWER. 317 

What is the source of these vast powers ? Have they 
any limit? Are they derived from, or are they utterly 
inconsistent with, the Constitution of the United States ? 

The only supposed source or measure of these vast 
powers appears to have been designated by the President, 
in his reply to the address of the Chicago clergymen, in the 
following words : " Understand, I raise no objection against 
it on legal or constitutional grounds ; for, as commander-in- 
chief of the army and navy, in time of war, I suppose I 
have a right to take any measure which may best subdue 
the enemy." This is a clear and frank declaration of the 
opinion of the President respecting the origin and extent 
of the power he supposes himself to possess ; and, so far as 
I know, no source of these powers other than the authority 
of commander-in-chief in time of war, has ever been 
suggested. 

There has been much discussion concerning the question 
whether the power to suspend the " privilege of the writ of 
habeas corpus " is conferred by the Constitution on Con- 
gress or on the President. The only judicial decisions 
which have been made upon this question have been ad- 
verse to the power of the President. Still, very able law- 
yers have endeavored to maintain — perhaps to the sat- 
isfaction of others, have maintained — that the power to 
deprive a particular person of " the privilege of the writ " 
is an executive power. For while it has been generally, 
and, so far as I know, universally admitted, that Congress 
alone can suspend a law, or render it inoperative, and con- 
sequently that Congress alone can prohibit the courts from 
issuing the writ, yet that the Executive might, in particular 
cases, suspend or deny the privilege which the writ was 
designed to secure, I am not aware that any one has 
attempted to show that, under this grant of power to sus- 
pend "the privilege of the writ of habeas corpus," the Presi- 
dent may annul the laws of States, create new offences 
unknown to the laws of the United States, erect military 



318 PBOFESSIONAL AND MISCELLANEOUS WRITINGS. 

commissions to try and punish them, and then, by a sweep- 
ing decree, suspend the writ of habeas corpus as to all per- 
sons who shall be " arrested by any military authority." I 
think he would make a more bold than wise experiment on 
the credulity of the people, who should attempt to convince 
them that this power is found in the habeas corpus clause 
of the Constitution. No such attempt has been, and I 
think none such will be, made. And therefore I repeat 
that no other source of this power has ever been suggested, 
save that described by the President himself, as belonging 
to him as the commander-in-chief. 

It must be obvious to the meanest capacity that, if the 
President of the United States has an implied constitutional 
right, as commander-in-chief of the army and navy in time 
of war, to disregard any one positive prohibition of the 
Constitution, or to exercise any one power not delegated 
to the United States by the Constitution, because, in his 
judgment, he may thereby "best subdue the enemy," he 
has the same right, for the same reason, to disregard each 
and every provision of the Constitution, and to exercise 
all power needful, in his opinion, to enable him "best to 
subdue the enemy." 

It has never been doubted that the power to abolish 
slavery within the States was not delegated to the United 
States by the Constitution, but was reserved to the States. 
If the President, as commander-in-chief of the army and 
navy in time of war, may, by an executive decree, exercise 
this power to abolish slavery in the States, which power was 
reserved to the States, because he is of opinion that he may 
thus " best subdue the enemy," what other power, reserved 
to the States or to the people, may not be exercised by the 
President, for the same reason that he is of opinion he may 
thus best subdue the enemy? And, if so, what distinction 
can be made between powers not delegated to the United 
States at all, and powers which, though thus delegated, are 
conferred by the Constitution upon some department of the 



EXECUTIVE POWER. 319 

Government other than the Executive ? Indeed, the procla- 
mation of Sept. 24, 1862, followed by the orders of the 
War Department, intended to carry it into practical effect, 
are manifest assumptions by the President of powers dele- 
gated to the Congress and to the judicial department of the 
Government. It is a clear and undoubted prerogative of 
Congress alone to define all offences, and to affix to each 
some appropriate and not cruel or unusual punishment. 
But this proclamation and these orders create new offences, 
not known to any law of the United States. " Discourag- 
ing enlistments," and "any disloyal practice," are not of- 
fences known to any law of the United States. At the 
same time, they may include, among many other things, 
acts which are offences against the laws of the United 
States, and, among others, treason. Under the Constitution 
and laws of the United States, except in cases arising in 
the land and naval forces, every person charged with an 
offence is expressly required to be proceeded against, and 
tried by the judiciary of the United States and a jury of his 
peers ; and he is required by the Constitution to be pun- 
ished, in conformity with some act of Congress applicable to 
the offence proved, enacted before its commission. But this 
proclamation and these orders remove the accused from the 
jurisdiction of the judiciary ; they substitute a report, made 
by some deputy provost-marshal, for the presentment of a 
grand jury ; they put a military .commission in place of a 
judicial court and jury required by the Constitution ; and 
they apply the discretion of the commission and the Presi- 
dent, fixing the degree and kind of punishment, instead of 
the law of Congress fixing the penalty of the offence. 

It no longer remains to be suggested that, if the ground 
of action announced by the President be tenable, he may, 
as commander-in-chief of the army and navy, use powers 
not delegated to the United States by the Constitution ; or 
may use powers by the Constitution exclusively delegated 
to the legislative and the judicial departments of the Govern- 



320 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

ment. These things have been already done, so far as the 
proclamations arid orders of the President can effect them. 

It is obvious that, if no private citizen is protected in his 
liberty by the safeguards thrown around him by the express 
provisions of the Constitution ; but each and all of those 
safeguards may be disregarded, to subject him to military 
arrest upon the report of some deputy provost-marshal, and 
imprisonment at the pleasure of the President, and trial be- 
fore a military commission, and punishment at its discretion, 
because the President is of opinion that such proceedings 
" may best subdue the enemy," — then every member of either 
House of Congress and every judicial officer is liable to be 
proceeded against as a " disloyal person," by the same means 
and in the same way. So that, under this assumption con- 
cerning the implied powers of the President as commander- 
in-chief in time of war, if the President shall be of opinion 
that the arrest and incarceration, and trial before a military 
commission, of a judge of the United States, for some judi- 
cial decision, or of one or more members of either House of 
Congress for words spoken in debate, is " a measure which 
may best subdue the enemy," there is then conferred on him 
by the Constitution the rightful power so to proceed against 
such judicial or legislative officer. 

This power is certainly not found in any express grant of 
power made by the Constitution to the President, nor even 
in any delegation of power made by the Constitution of the 
United States to any department of the Government. It is 
claimed to be found solely in the fact that he is the com- 
mander-in-chief of its army and navy, charged with the duty 
of subduing the enemy. And to this end, as he understands 
it, he is charged with the duty of using, not only those great 
and ample powers which the Constitution and laws, and the 
self-devotion of the people in executing them, have placed in 
his hands, but charged with the duty of using powers which 
the people have reserved to the States, or to themselves ; and 
is permitted to break down those great constitutional safe- 



EXECUTIVE POWER. 321 

guards of the partition of governmental powers, and the 
immunity of the citizen from mere executive control, which 
are at once both the end and the means of free govern- 
ment. 

The necessary result of this interpretation of the Consti- 
tution is that, in time of war, the President has any and 
all power which he may deem it necessary to exercise, to 
subdue the enemy; and that every private and personal 
right of individual security against mere executive control, 
and every right reserved to the States or the people, rests 
merely upon executive discretion. 

But the military power of the President is derived solely 
from the Constitution ; and it is as sufficiently defined there 
as his purely civil power. These are its words : " The Presi- 
dent shall be the Commander-in-chief of the army and navy 
of the United States, and of the militia of the several States, 
when called into the actual service of the United States." 

This is his military power. He is the general-in-chief ; 
and as such, in prosecuting war, may do what generals in 
the field are allowed to do within the sphere of their actual 
operations, in subordination to the laws of their country, 
from which alone they derive their authority. 1 

1 The case of Mitchel v. Harmony, 13 How. 115, presented for the decision 
of the Supreme Court of the United States the question of the extent of the 
right of a commanding general in the field to appropriate private property 
to the public service ; and it was decided that such an appropriation might 
be made, in case it should be rendered necessary by an immediate and press- 
ing danger or urgent necessity existing at the time, and not admitting of 
delay, but not otherwise. 

In delivering the opinion of the court, the Chief Justice said: "Our 
duty is to determine under what circumstances private property may be 
taken from the owner by a military officer in a time of war. And the ques- 
tion here is whether the law permits it to be taken, to insure the success of 
any enterprise against a public enemy, which the commanding officer may 
deem it advisable to undertake. And we think it very clear that the law 
does not permit it. The case mentioned by Lord Mansfield, in delivering his 
opinion in Mostyn v. Fabrigas, 1 Cowp. 180, illustrates the principle of which 
we are speaking. Captain Gambier, of the British navy, by the order of 
Admiral Boscawen, pulled down the houses of some sutlers on the coast of 
Nova Scotia, who were supplying the sailors with spirituous liquors, the 
VOL. II. 21 



322 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

When the Constitution says that the President shall be 
the commander-in-chief of the army and navy of the United 
States, and of the militia of the several States when called 
into the actual service of the United States, does it mean 
that he shall possess military power and command over all 
citizens of the United States; that by military edicts he 
may control all citizens as if enlisted in the army or navy, 
or in the militia called into the actual service of the United 
States ? Does it mean that he may make himself a legis- 
lator, and enact penal laws governing the citizens of the 
United States, and erect tribunals and create offices to en- 
force his penal edicts upon citizens ? Does it mean that he 
may, by a prospective executive decree, repeal and annul 
the laws of the several States which respect subjects re- 
served by the Constitution for the exclusive action of the 
States and the people ? The President is the commander- 
in-chief of the army and navy, not only by force of the 
Constitution, but under and subject to the Constitution, and 
to every restriction therein contained, and to every law 
enacted by its authority, as completely and clearly as the 
private in his ranks. 

He is general-in-chief ; but can a general-in-chief disobey 
any law of his own country ? When he can, he superadds 

health of the sailors being injured by frequenting them. The motive was 
evidently a laudable one, and the act done for the public service. Yet it 
was an invasion of the rights of private property and without the authority 
of law ; and the officer who executed the order was held liable to an action, 
and the sutlers recovered damages against him to the value of the prop- 
erty destroyed. This case shows how carefully the rights of property are 
guarded by the laws of England ; and they are certainly not less valued, 
nor less securely guarded, under the Constitution and laws of the United 
States." 

It may safely be said that neither of the very eminent counsel by whom 
that case was argued, and that no judge before whom it came, had then 
advanced to the conception that a commanding general may lawfully take 
any measure which may best subdue the enemy. The wagons, mules, and 
packages seized by General Donophon, in that case, were of essential ser- 
vice in his brilliant and successful attack on the lines of Chihuahua. But 
this did not save him from being liable to their owner as a mere wrong-doer, 
under the Constitution and laws of the United States. 



EXECUTIVE POWER. 323 

to his rights as commander the powers of a usurper ; and 
that is military despotism. In the noise of arms, have we 
become deaf to the warning voices of our fathers to take 
care that the military shall always be subservient to the 
civil power. Instead of listening to these voices, some per- 
sons now seem to think that it is enough to silence objec- 
tion to say, True enough, there is no civil right to do this 
or that, but it is a military act. They seem to have forgot- 
ten that every military act is to be tested by the Constitu- 
tion and laws of the country under whose authority it is 
done. And that, under the Constitution and laws of the 
United States, no more than under the government of Great 
Britain, or under any free or any settled government, the 
mere authority to command an army is not an authority to 
disobey the laws of the country. 

The framers of the Constitution thought it wise that the 
powers of the commander-in-chief of the military forces of 
the United States should be placed in the hands of the chief 
civil magistrate. But the powers of commander-in-chief 
are in no degree enhanced or varied by being conferred upon 
the same officer who has important civil functions. If the 
Constitution had provided that a commander-in-chief should 
be appointed by Congress, his powers would have been the 
same as the military powers of the President now are. 
And what would be thought by the American people of an 
attempt by a general-in-chief to legislate by his decrees for 
the people and the States. 

Besides, all the powers of the President are executive 
merely. He cannot make a law. He cannot repeal one. 
He can only execute the laws. He can neither make nor 
suspend nor alter them. He cannot even make an article 
of war. He may govern the army, either by general or 
special orders, but only in subordination to the Constitution 
and laws of the United States, and the articles of war 
enacted by the legislative power. 

The time has certainly come when the people of the 



324 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

United States must understand and must apply those great 
rules of civil liberty which have been arrived at by the- self- 
devoted efforts of thought and action of their ancestors dur- 
ing seven hundred years of struggle against arbitrary power. 
If they fail to understand and apply them, if they fail to 
hold every branch of their government steadily to them, 
who can imagine what is to come out of this great and 
desperate struggle ? The military power of eleven of these 
States being destroyed, what then ? What is to be their 
condition ? What is to be our condition ? 

Are the great principles of free government to be used 
and consumed as means of war ? Are we not wise enough 
and strong enough to carry on this war to a successful mili- 
tary end, without submitting to the loss of any one great 
principle of liberty ? We are strong enough. We are 
wise enough, if the people and their servants will but un- 
derstand and observe the just limits of military power. 

What, then, are those limits ? They are these : there is 
military law; there is martial law. Military law is that 
system of laws enacted by the legislative power for the 
government of the army and navy of the United States, and 
of the militia when called into the actual service of the 
United States. It has no control whatever over any person 
or any property of any citizen. It could not even apply to 
the teamsters of an army, save by force of express provi- 
sions of the laws of Congress making such persons amenable 
thereto. The persons and the property of private citizens 
of the United States are as absolutely exempted from the 
control of military law as they are exempted from the con- 
trol of the laws of Great Britain. 

But there is also martial law. What is this ? 1 It is the 

1 The following extracts from the opinion of Mr. Justice Woodbury, 
delivered in the Supreme Court of the United States in the case of Luther 
v. Borden, 7 How. 62, state what martial law is, and some of the incidents 
of its History : — 

" By it every citizen, instead of reposing under the shield of known and 
fixed laws as to his liberty, property, and life, exists with a rope round his 



EXECUTIVE POWER. 325 

will of a military commander operating without any re- 
straint, save his judgment, upon the lives, upon the property, 
upon the entire social and individual condition of all over 
whom this law extends. But, under the Constitution of the 
United States, over whom does sucb law extend ? 

neck, subject to be hung up by a military despot at the next lamp-post, under 
the sentence of some drum-head court-martial. See Simmons's Practice of 
Courts-Martial, 40. See such a trial in Hough on Courts-Martial, 383, where 
the victim on the spot was 'blown away by a gun,' neither time, place, nor 
persons considered.' As an illustration how the passage of such a law may 
be abused, Queen Mary put it in force in 1558, by proclamation merely, and 
declared, ' That whosoever had in his possession any heretical, treasonable, 
or seditious books, and did not presently burn them, without reading them 
or showing them to any other person, should be esteemed a rebel, and with- 
out any further delay be executed by the martial law.' Tytler on Military 
Law, chap. i. § 1, p. 50. 

"Por convincing reasons like these, in every country which makes any 
claim to political or civil liberty, ' martial law ' as here attempted, and as 
once practised in England against her own people, has been expressly for- 
bidden there for near two centuries, as well as by the principles of every 
other free constitutional government. 1 Hallam's Const. Hist. 420. And it 
would be not a little extraordinary, if the spirit of our institutions, both State 
and national, was not much stronger than in England against the unlimited 
exercise of martial law over a whole people, whether attempted by any chief 
magistrate, or even by a legislature. 

" One object of parliamentary inquiry, as early as 1620, was to check the 
abuse of martial law by the king, which had prevailed before. Tytler on 
Military Law, 502. The Petition of Right, in the first year of Charles I., 
reprobated all such arbitrary proceedings in the just terms and in the terse 
language of that great patriot as well as judge, Sir Edward Coke, and prayed 
they might be stopped and never repeated. To this the king wisely replied, 
' Soit droit fait comme est desire,' — ' Let right be done as desired.' Petition 
of Right in Statutes at Large, 1 Charles I. 

"Putting it in force by the king alone was not only restrained by the 
Petition of Right early in the seventeenth century, but virtually denied as 
lawful by the Declaration of Rights in 1688. Tytler on Military Law, 307.- 
Hallam, therefore, in his ' Constitutional History,' 420, declares that its use 
by ' the commissioners to try military offenders by martial law was a pro- 
cedure necessary, within certain limits, to the discipline of an army, but 
unwarranted by the Constitution of this country.' Indeed, a distinguished 
English judge has since said, that 'martial law' as of old, now 'does not 
exist in England at all,' was ' contrary to the Constitution, and has been for 
a century totally exploded.' Grant v. Godd, 2 Hen. Bl. 69 ; 1 Hale, P. C. 
346; Hale's Com. Law, chap. ii. p. 36; 1 MacArthur, 55. 

" This is broad enough, and is correct as to the community generally, in 
both war and peace." 



326 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

Will any one be bold enough to say, in view of the his- 
tory of our ancestors and ourselves, that the President of 
the United States can extend such law as that over the en- 
tire country, or over any denned geographical part thereof, 
save in connection with some particular military operations 
which he is carrying on there ? Since Charles I. lost his 
head, there has been no king in England who could make 
such law in that realm. And where is there to be found in 
our history or our constitutions, either State or national, 
any warrant for saying that a President of the United States 
has been empowered by the Constitution to extend martial 
law over the whole country, and to subject thereby to his 
military power every right of every citizen ? He has no 
such authority ? 

In time of war, a military commander, whether he be the 
commander-in-chief or one of his subordinates, must pos- 
sess and exercise powers both over the persons and the 
property of citizens which do not exist in time of peace. 
But he possesses and exercises such powers, not in spite of 
the Constitution and laws of the United States, or in dero- 
gation from their authority, but in virtue thereof and in 
strict subordination thereto. The general who moves his 
army over private property in the course of his operations 
in the field, or who impresses into the public service means 
of transportation or subsistence, to enable him to act against 
the enemy, or who seizes persons within his lines as spies, 
or destroys supplies in immediate danger of falling into the 
hands of .the enemy, uses authority unknown to the Consti- 
tution and laws of the United States in time of peace, but 
not unknown to that Constitution and those laws in time of 
war. The power to declare war includes the power to use 
the customary and necessary means effectually to carry it 
on. As Congress may institute a state of war, it may legis- 
late into existence and place under executive control the 
means for its prosecution. And, in time of war without 
any special legislation, not the commander-in-chief only, 



EXECUTIVE POWER. 327 

but every commander of an expedition or of a military post 
is lawfully empowered by the Constitution and laws of the 
United States to do whatever is necessary, and is sanctioned 
by the laws of war to accomplish the lawful objects of his 
command. But it is obvious that this implied authority 
must find early limits somewhere. If it were admitted that 
a commanding general in the field might do whatever in his 
discretion might be necessary to subdue the enemy, he could 
levy contributions to pay his soldiers ; he could force con- 
scripts into his service ; he could drive out of the entire coun- 
try all persons not desirous to aid him : in short, he would be 
the absolute master of the country for the time being. 

No one has ever supposed — no one will now undertake 
to maintain — that the commander-in-chief, in time of war, 
has any such lawful authority as this. 

What, then, is his authority over the persons and prop- 
erty of citizens ? I answer, that over all persons enlisted in 
his forces he has military power and command ; that over 
all persons and property within the sphere of his actual 
operations in the field, he may lawfully exercise such re- 
straint and control as the successful prosecution of his par- 
ticular military enterprise may, in his honest judgment, 
absolutely require; and upon such persons as have com- 
mitted offences against any article of war, he may, through 
appropriate military tribunals, inflict the punishment pre- 
scribed by law. And there his lawful authority ends. 

The military power over citizens and their property is 
a power to act, not a power to prescribe rules for future 
action. It springs from present pressing emergencies, and 
is limited by them. It cannot assume the functions of the 
statesman or legislator, and make provision for future or 
distant arrangements by which persons or property may be 
made subservient to military uses. It is the physical force 
of an army in the field, and may control whatever is so near 
as to be actually reached by that force in order to remove 
obstructions to its exercise. 



328 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

But when the military commander controls the persons 
or property of citizens who are beyond the sphere of his 
actual operations in the field, when he makes laws to govern 
their conduct, he becomes a legislator. Those laws may be 
made actually operative: obedience to them may be en- 
forced by military power : their purpose and effect may be 
solely to recruit or support his armies, or to weaken the 
power of the enemy with whom he is contending. But he 
is a legislator still ; and whether his edicts are clothed in 
the form of proclamations or of military orders, by what- 
ever name they may be called, they are laws. If he have 
the legislative power conferred on him by the people, it is 
well. If not, he usurps it. 

He has no more lawful authority to hold all the citizens 
of the entire country, outside of the sphere of his actual 
operations in the field, amenable to his military edicts, than 
he has to hold all the property of the country subject to his 
military requisitions. He is not the military commander of 
the citizens of the United States, but of its soldiers. 

Apply these principles to the proclamations and orders of 
the President. They are not designed to meet an existing 
emergency in some particular military operation in the 
field : they prescribe future rules of action touching the per- 
sons and property of citizens. They are to take effect, not 
merely within the scope of military operations in the field 
or in their neighborhood, but throughout the entire country, 
or great portions thereof. Their subject-matter is not mili- 
tary offences or military relations, but civil offences and 
domestic relations ; the relation of master and servant ; the 
offences of "disloyalty or treasonable practices." Their 
purpose is not to meet some existing and instant military 
emergency, but to provide for distant events which may or 
may not occur ; and whose connections, if they should 
coincide with any particular military operations, are indi- 
rect, remote, casual, and possible merely. 

It is manifest that, in proclaiming these edicts, the Presi- 



EXECUTIVE POWER. 329 

dent is not acting under the authority of military law : first, 
because military law extends only over the persons actually 
enlisted in the military service ; and, second, because these 
persons are governed by laws enacted by the legislative 
power. It is equally manifest that he is not acting under 
that implied authority which grows out of particular actual 
military operations ; for these executive decrees do not 
spring from the special emergencies of any particular mili- 
tary operations, and are not limited to any field in which 
any such operations are carried on. 

Whence, then, do these edicts spring ? They spring from 
the assumed power to extend martial law over the whole 
territory of the United States, — a power for the exercise of 
which by the President there is no warrant whatever in the 
Constitution ; a power which no free people could confer 
upon an executive officer and remain a free people. For it 
would make him the absolute master of their lives, their 
liberties, and their property, with power to delegate his 
mastership to such satraps as he might select, or as might 
be imposed on his credulity or his fears. Amidst the great 
dangers which encompass us, in our struggles to encounter 
them, in our natural eagerness to lay hold of efficient means 
to accomplish our vast labors, let us beware how we borrow 
weapons from the armory of arbitrary power. They cannot 
be wielded by the hands of a free people. Their blows will 
finally fall- upon themselves. 

Distracted councils, divided strength, are the very earliest 
effects of an attempt to use them. What lies beyond, no 
patriot is now willing to attempt to look upon. 

[ x These conclusions concerning the powers of the Presi- 
dent cannot be shaken by the assertion that " rebels have 
no rights." The assertion itself is not true, in reference 
either to the seceding States or their people. 

It is not true of those States ; for the Government of the 

1 The passages here enclosed in brackets were inserted in the second 
edition. 



330 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

United States has never admitted, and cannot admit, that, 
as States, they are in rebellion. A State is simply inca- 
pable of doing any valid act, in conflict with the Constitu- 
tion or laws of the United States ; and the Constitution is 
as much the supreme law of the land in Tennessee to-day, 
as it was before the void act of secession was attempted by 
a part of its people. Else the act was effectual, and the 
State is independent of the Government of the United States, 
and the war is a war of conquest and subjugation. 

Nor is the assertion that " rebels have no rights " appli- 
cable to the people of those States. It is strange that any 
one having even that acquaintance with public law which 
Chatham's indignant protest has made familiar to Ameri- 
cans, could have failed to feel it to be untrue. When 
many millions of people are involved in civil war, human- 
ity, and that public law which in modern times is humane, 
forbid their treatment as outlaws. And if public law and 
the Constitution and laws of the United States are now 
their rules of duty towards us, on what ground shall we 
deny that public law and the Constitution, and the laws 
made under it, are also our rules of duty towards them? 
The only just idea of a law is that it is a rule of action 
which governs all who are within its scope. None are so 
degraded, even by crime, as to be too low for its protection ; 
none so elevated by position or power as to be above its 
reach. And when we advance to that highest conception 
of human law, known, practically, in our own country only, 
and come to constitutional law, the embodied will of the 
people by which they govern the governors, what governors 
are beyond its control, what citizens are too low for its pro- 
tection ? Penalties and forfeitures may be inflicted by the 
legislative power as punishment for crime; but not even 
treason, the most deadly of all crimes, can set free the legis- 
lative or executive power from the restraints which the 
people's law has imposed on them, or remove one man or 
any number of men from under its protection. 



EXECUTIVE POWER. 331 

But, if it were conceded that "rebels have no rights," 
there would still be matter demanding the gravest consid- 
eration. For the inquiry which I have invited is not what 
are their rights, but what are our rights. 

"Whatever may be thought of the wisdom of the procla- 
mation of the President, concerning the emancipation of 
slaves, no one can doubt its practical importance, if it is to 
take effect. To set free about four millions of slaves, at 
an early fixed day, with absolutely no preparation for their 
future, and with no preparation for our future, in their rela- 
tions with us, and to do this by force, must be admitted to 
be a matter of vast concern, not only to them and to their 
masters, but to the whole continent on which they must 
live. There may be great diversities of opinion concerning 
the effects of such an act. But that its effects must be of 
stupendous importance, extending not only into the border 
loyal States, but into-all the States, North as well as South, 
I suppose no rational man can doubt. How has the Presi- 
dent acquired the power to decide the question whether this 
great act shall be done ? How have the people of the United 
States, or any part of them, conferred on him the rightful 
power to determine for them this question of such an eman- 
cipation, to be made under such circumstances? If the 
people who are in rebellion have no rights, the loyal peo- 
ple of Kentucky, of Indiana, Illinois, Ohio, Maryland, and 
Pennsylvania, have rights. It is among those rights that 
the President shall not assume to decide for them a ques- 
tion which they deem of vast practical importance to them- 
selves, and which they have never consented he should 
decide. It is among the rights of all of us that the powers 
of each State to govern its own internal affairs should not 
be trespassed on by any department of the Federal power ; 
and it is a right essential to the maintenance of our system 
of government. It is among the rights of all of us that the 
executive power should be kept within its prescribed con- 
stitutional limits, and should not legislate, by its decrees, 



332 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

upon subjects of transcendent importance to the whole 
people. 

Whether such decrees are wise or unwise, whether their 
subjects are citizens or not, if they are usurpations of 
power, our rights are both infringed and endangered. They 
are infringed, because the power to decide and to act is 
taken from the people without their consent. They are en- 
dangered, because, in a constitutional government, every 
usurpation of power dangerously disorders the whole frame- 
work of the State.] 

A leading and influential newspaper, while expressing 
entire devotion to the President, and approbation of his 
proclamation of emancipation, says : " The Democrats talk 
about 'unconstitutional acts.' Nobody pretends that this 
act is constitutional, and nobody cares whether it is or not." 

I think too well of the President to believe he has done 
an act involving the lives and fortunes of millions of human 
beings, and the entire social condition of a great people, 
without caring whether it is conformable to that Constitu- 
tion which he has many times sworn to support. 

Among all the causes of alarm which now distress the 
public mind, there are few more terrible to reflecting men, 
than the tendency to lawlessness which is manifesting itself 
in so many directions. No stronger evidence of this could 
be afforded than the open declaration of a respectable and 
widely circulated journal, that " nobody cares " whether a 
great public act of the President of the United States is in 
conformity with or is subversive of the supreme law of the 
land, — the only basis upon which the government rests; 
that our public affairs have become so desperate, and our 
ability to retrieve them by the use of honest means is so 
distrusted, and our willingness to use other means so un- 
doubted, that our great public servants may themselves 
break the fundamental laws of the country, and become 
usurpers of vast powers not intrusted to them, in violation 
of their solemn oaths of office ; and " nobody cares." 



EXECUTIVE POWER, 333 

It is not believed that this is just to the people of the 
United States. They do care, and the President cares, that 
he and all other public servants should obey the Constitu- 
tion. Partisan journals, their own honest and proper desire 
to support the President, — on whose wisdom and firmness 
they rely to relieve their country from its evils and dangers, 
— and the difficulties which the mass of the people encounter 
in forming opinions on questions of constitutional law, may 
prevent them for a limited time from arriving at a just 
judgment of such questions, or of the vast practical effects 
dependent on them. 

But the people of the United States do not expect national 
concord to spring from usurpations of power ; or national 
security from the violation of those great principles of pub- 
lic liberty which are the only possible foundation in this 
country of private safety and of public order. Their in- 
stincts demand a purer and more comprehensive states- 
manship than that which seizes upon unlawful expedients, 
because they may possibly avert for the moment some 
threatening danger, at the expense of the violation of great 
principles of free government, or of the destruction of some 
necessary safeguard of individual security. 

It is a subject of discussion in the public journals whether 
it is the intention of the Executive to use the powers asserted 
in the last proclamation, and in the orders of the Secretary 
of War, to suppress free discussion of political subjects. I 
have confidence in the purity and the patriotism both of the 
President and of the Secretary of War. I fear no such 
present application of this proclamation and these orders by 
them. But the execution of such powers must be intrusted 
to subordinate agents, and it is of the very essence of arbi- 
trary power that it should be in hands which can act 
promptly and efficiently, and unchecked by forms. These 
great powers must be confided to persons actuated by party 
or local or personal feelings and prejudices ; or, what would 
often prove as ruinous to the citizen, actuated by a desire 



334 PROFESSIONAL AND MISCELLANEOUS "WRITINGS. 

to commend their vigilance to their employers, and by a 
blundering and stupid zeal in their service. 

But it is not this or that particular application of power 
which is to be considered. It is the existence of the power 
itself, and the uses of which it is susceptible, while following 
out the principle on which it has been assumed. 

The uses of power, even in despotic monarchies, are more 
or less controlled by usages and customs, or, in other words, 
by public opinion. In good hands, and in favorable times, 
despotic power is not commonly allowed to be felt to be 
oppressive; and always the forms of a free government, 
which has once existed, so far as is practicable, are carefully 
and speciously preserved. But a wise people does not trust 
its condition and rights to the happy accident of favorable 
times or good hands. It is jealous of power. It knows that 
of all earthly things it is that thing most likely to be abused; 
and, when it affects a nation, most destructive by its abuse. 
They will rouse themselves to consider what is the power 
claimed ; what is its origin ; what is its extent ; what uses 
may be made of it in dangerous times, and by men likely to 
be produced in such times ; and while they will trust their 
public servants, and will pour out their dearest blood like 
water to sustain them in their honest measures for their 
country's salvation, they will demand of those servants 
obedience to their will, as expressed in the fundamental 
laws of the government, to the end that there shall not be 
added to all the sufferings and losses they have uncomplain- 
ingly borne that most irreparable of all earthly losses, — the 
ruin of the principles of their free government. 

What, then, is to be done ? Are we to cease our utmost 
efforts to save our country, because its chief magistrate 
seems to have fallen, for the time being, into what we 
believe would be fatal errors, if persisted in by him and 
acquiesced in by ourselves ? Certainly not. Let the peo- 
ple but be right, and no President can long be wrong ; nor 
can he effect any fatal mischief, if he should be. 



EXECUTIVE POWER. 335 

The sober second thought of the people has yet a con- 
trolling power. Let this gigantic shadow, which has been 
evoked out of the powers of the commander-in-chief, once 
be placed before the people, so that they can see clearly its 
proportions and its mien, and it will dissolve and disappear 
like the morning cloud before the rising sun. 

The people yet can and will take care, by legitimate 
means, without disturbing any principle of the Constitu- 
tion, or violating any law, or relaxing any of their utmost 
efforts for their country's salvation, that their will, embodied 
in the Constitution, shall be obeyed. If it needs amend- 
ment, they will amend it themselves. They will suffer 
nothing to be added to it, or taken from it, by any other 
power than their own. If they should, neither the Gov- 
ernment itself, nor any right under it, will any longer be 
theirs. 



336 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 



CHARACTER AND PUBLIC SERVICES OF 
CHIEF JUSTICE TANEY. 

REMARKS MADE AT A MEETING OF THE BOSTON BAR, 
October 16, 1864. 



At a meeting of the members of the Bar of the First 
Circuit, held at Boston on Saturday, the fifteenth day of 
October, 1864, to take measures for giving expression to 
the feelings of the Bar on occasion of the death of Chief 
Justice Taney, the meeting having been called to order 
by Richard H. Dana, Jr., Attorney of the United States, 
Sidney Bartlett was appointed Chairman ; and Elias Merwin, 
Secretary. 

On motion of Mr. Dana, a committee, consisting of Ben- 
jamin R. Curtis, Caleb Cushing, Richard H. Dana, Jr., and 
Sidney Bartlett, was appointed to prepare and report reso- 
lutions for the consideration of the Bar. 

At an adjourned meeting, held Monday, the seventeenth 
day of October, 1864, the following resolutions, reported by 
Benjamin R. Curtis in behalf of the committee, were unani- 
mously adopted, namely : — 

"Resolved, That the members of this Bar render the 
tribute of their admiration and reverence for the pre- 
eminent abilities, profound learning, incorruptible integrity, 
and signal private virtues, exhibited in the long and illus- 
trious judicial career of the late lamented Chief Justice 
Taney. 



A TRIBUTE TO CHIEF JUSTICE TANEY. 337 

" Resolved, That the Attorney of the United States be 
requested to communicate these proceedings to the Court, 
and ask to have them entered on the records of the Court. 

"Sidney Bartlett, Chairman. 

" Elias Mer win, Secretary." 

Mr. B. R. Curtis then addressed the Court : — 

" May it please the Court : I have been requested to 
second ' the resolutions which Mr. Attorney has presented. 
I suppose the reason for this request is that for six years 
I was in such official connection with the late Chief Justice 
as enabled me to know him better than the other members 
of this Bar. My intimate association with him began in 
the autumn of 1851. He was then seventy-three years old, 
— a period of life when, the Scripture admonishes us and 
the experience of mankind proves, it is best for most men 
to seek that repose which belongs to old age. But it was 
not best for him. 

" I observe that it has been recently said, by one who had 
known him upwards of forty years, that during all those 
years there had never been a time when his death might 
not reasonably have been anticipated within the next six 
months. Such was the impression produced on me when I 
first knew him. His tall, thin form, not much bent with 
the weight of years, but exhibiting in his carriage and 
motions great muscular weakness, the apparent feebleness 
of his vital powers, the constant and rigid care necessary to 
guard what little health he had, strongly impressed casual 
observers with the belief that the remainder of his days 
must be short. But a more intimate acquaintance soon 
produced the conviction that his was no ordinary case, be- 
cause he was no ordinary man. An accurate knowledge of 
his own physical condition and its necessities ; an unyield- 
ing will,' which, while it conformed every thing to those 
necessities, braced and vivified the springs of life ; a temper 
which long discipline had made calm and cheerful ; and the 
vol. ii. 22 



338 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

consciousness that he occupied and continued usefully to fill 
a great and difficult office, whose duties were congenial to him, 
gave assurance, which the event has justified, that his life 
would be prolonged much beyond the allotted years of man. 

" In respect to his mental powers, there was not then, 
nor at any time while I knew him intimately, any infirmity 
or failure whatever. I beliteve the memory is that faculty 
which first feels the stiffness of old age. His memory was 
and continued to be as alert and true as that of any man I 
ever knew. In consultation with his brethren, he could, 
and habitually did, state the facts of a voluminous and com- 
plicated case, with every important detail of names and 
dates, with extraordinary accuracy, and, I may add, with 
extraordinary clearness and skill. And his recollection of 
principles of law and of the decisions of the court over 
which he presided was as ready as his memory of facts. 

" He had none of the querulousness which too often ac- 
companies old age. There can be no doubt that his was a 
vehement and passionate nature; but he had subdued it. I 
have seen him sorely tried when the duly observable effects 
of the trial were silence and a flushed cheek. So long as he 
lived, he preserved that quietness of temper and that con- 
sideration for the feelings and wishes of others which were 
as far as possible removed from weak and selfish querulous- 
ness. And I believe it may truly be said, that though the 
increasing burden of years had somewhat diminished his 
bodily strength, yet down to the close of the last term of 
the Supreme Court his presence was felt to be as important 
as at any period of his life. 

" I have been long enough at the Bar to remember Mr. 
Taney's appointment ; and I believe it was then a general 
impression, in this part of the country, that he was neither 
a learned nor a profound lawyer. This was certainly a mis- 
take. His mind was thoroughly imbued with the rules of 
the common law and of equity law; and, whatever may 
have been true at the time of his appointment, when I first 



A TRIBUTE TO CHIEF JUSTICE TANEY. 339 

knew him he was master of all that peculiar jurisprudence 
which it is the special province of the courts of the United 
States to administer and apply. His skill in applying it 
was of the highest order. His power of subtle analysis ex- 
ceeded that of any man I ever knew, — a power not without 
its dangers to a judge as well as to a lawyer ; but in his 
case it was balanced and checked by excellent common 
sense and by great experience in practical business, both 
public and private. His physical infirmities disqualified 
him. from making those learned researches, with the re- 
sults of which other great judges have illustrated and 
strengthened their written judgments; but it can be truly 
said of him that he rarely felt the need of them. The same 
cause prevented him from writing so large a proportion of 
the opinions of the court as his eminent predecessor ; and 
it has seemed to me probable that for this reason his real 
importance in the court may not have been fully appreci- 
ated, even by the Bar of his own time. For it is certainly 
true — and I am happy to be able to bear direct testimony to 
it — that the surpassing ability of the Chief Justice, and all 
his great qualities of character and mind, were more fully 
and constantly exhibited in the consultation-room, while pre- 
siding over and assisting the deliberations of his brethren, 
than the public knew, or can ever justly appreciate. There, 
his dignity, his love of order, his gentleness, his caution, his 
accuracy, his discrimination, were of incalculable impor- 
tance. The real intrinsic character of the tribunal was 
greatly influenced by them, and always for the better. 

" How he presided over the public sessions of the court, 
some who hear me know. The blandness of his manner, 
the promptness, precision, and firmness which made eVc^ry 
word he said weighty, and made very few words necessary, 
and the unflagging attention which he fixed on every one 
who addressed the court, will be remembered by all. 

" But all may not know that he had other attainments 
and qualities important to the prompt, orderly, and safe 



340 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

despatch of business. In the time of his predecessor, the 
practice of the court is understood to have been somewhat 
loosely administered. The amount of business in the court 
was then comparatively so small that this occasioned no 
real detriment, probably no considerable inconvenience. 
But when the docket became crowded with causes, and 
heavy arrears were accumulated, it would have been quite 
otherwise. The Chief Justice made himself entirely familiar 
with the rules of practice of the court and with the circum- 
stances out of which they had arisen. He had a natural 
aptitude to understand, and, so far as was needed, to reform 
the system. It was almost a necessity of his character to 
have it practically complete. It was a necessity of his 
character to administer it with unyielding firmness. I have 
not looked back to the reports to verify the fact, but I 
have no doubt it may be found there, that, even when so in- 
firm that he could not write other opinions, he uniformly 
wrote the opinions of the court upon new points of its prac- 
tice. He had no more than a just estimate of their impor- 
tance. The business of the Supreme Court came thither 
from nearly the whole of a continent. It arose out of many 
systems of laws, differing from each other in important par- 
ticulars. It was conducted by counsel who travelled long 
distances to attend the court. It included the most diverse 
cases tried in the lower courts in many different modes of 
procedure, — some according to the course of the common 
law, some under the pleadings and practice of the courts of 
chancery in England, some under forms borrowed from the 
French law, many under special laws of the United States 
framed for the execution of treaties, and many more so 
anomalous that it would not be easy to reduce them to any 
classification. And the tribunal itself, though it was abso- 
lutely supreme within the limits of its powers, was bounded 
and circumscribed in its jurisdiction by the Constitution 
and by Acts of Congress, which it was necessary constantly 
to regard. Let it be remembered, also, — for just now we 



A TRIBUTE TO CHIEF JUSTICE TANEY. 341 

may be in some danger of forgetting it, — that questions of 
jurisdiction were questions of power as between the United 
States and the several States. The practice of the court 
therefore involved not merely the orderly and convenient 
conduct of this vastly diversified business, drawn from a 
territory so vast, but questions of constitutional law, running 
deep into the framework of our complicated political system. 
Upon this entire subject, the Chief Justice was vigilant, 
steady, and thoroughly informed. Doubtless, it would be 
the tendency of most second-rate minds, and of not a few 
first-rate minds, to press such a jurisdiction out to its ex- 
tremest limits, and occasionally beyond them; while for 
timid men, or for those who might come to that Bench with 
formed prejudices, the opposite danger would be imminent. 
Perhaps I may be permitted to say that, though on the only 
important occasions on which I had the misfortune to differ 
with the Chief Justice on such points, I thought he and 
they who agreed with him carried the powers of the court 
too far, yet, speaking for myself, I am quite sure he fell into 
neither of these extremes. The great powers intrusted to 
the court by the Constitution and laws of his country he 
steadily and firmly upheld and administered ; and, so far as 
I know, he showed no disposition to exceed them. 

" I have already adverted to the fact that his physical 
infirmities rendered it difficult for him to write a large pro- 
portion of the opinions of the court. But my own impres- 
sion is that this was not the only reason why he was thus 
abstinent. He was as absolutely free from the slightest 
trace of vanity and self-conceit as any man I ever knew. 
He was aware that many of his associates were ambitious 
of doing this conspicuous part of their joint labor. The 
preservation of the harmony of the members of the court, 
and of their good-will to himself, was always in his mind. 
And I have not the least doubt that these considerations 
often influenced him to request others to prepare opinions 
which he could and otherwise would have written. As it 



342 PROFESSIONAL AND MISCELLANEOUS "WHITINGS. 

was, lie has recorded many which are important, some 
which are very important. This does not seem to me to be 
the occasion to specify, still less to criticise them. They 
are all characterized by that purity of style and clearness 
of thought which marked whatever he wrote or spoke ; and 
some of them must always be known and recurred to as 
masterly discussions of their subjects. 

"It is one of the favors which the providence of God has 
bestowed on our once happy country, that for the period of 
sixty-three years this great office has been filled by only 
two persons, each of whom has retained to extreme old age 
his great and useful qualities and powers. The stability, 
uniformity, and completeness of our national jurisprudence 
are in no small degree attributable to this fact. The last of 
them has now gone. God grant that there may be found 
a successor true to the Constitution, able to expound and 
willing to apply it to the portentous questions which the 
passions of men have made." 



DEFENCE OF PRESIDENT JOHNSON. 343 



ARGUMENT IN DEFENCE OF PRESIDENT 
JOHNSON. 

DELIVERED BEFORE THE SENATE OF THE UNITED STATES, SITTING 
AS A COURT OF IMPEACHMENT, 

Apeil 9, 10, 1868. 



The history of the impeachment, so far as it was necessary to 
elucidate the part taken in the trial by Judge Curtis, is given ante, 
vol. i. chap. xiii. 

Thubsdat, April 9, 1868. 

The Chiee Justice. The managers of the House of 
Representatives state that the evidence on their part, with 
the exception just indicated, is closed. Gentlemen of coun- 
sel for the President, you will proceed with the defence. 
Mr. Cuktis, of counsel for the respondent, rose and said: 
Mr. Chief Justice, I am here to speak to the Senate of the 
United States sitting in its judicial capacity as a court of 
impeachment, presided over by the Chief Justice of the 
United States, for the trial of the President of the United 
States. This statement sufficiently characterizes what I 
have to say. Here party spirit, political schemes, foregone 
conclusions, outrageous biases can have no fit operation. 
The Constitution requires that here should be a " trial ; " 
and, as in that trial the oath which each one of you has 
taken is to administer " impartial justice according to the 
Constitution and the laws," the only appeal which I can 
make in behalf of the President is an appeal to the con- 
science and the reason of each judge who sits before me. 
Upon the law and the facts, upon the judicial merits of the 
case, upon the duties incumbent on that high officer by vir- 



344 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

tue of his office, and his honest endeavor to discharge those 
duties, the President rests his defence. And I pray each 
one of you to listen to me with that patience which belongs 
to a judge for his own sake, which I cannot expect to com- 
mand by any efforts of mine, while I open to you what that 
defence is. 

The honorable managers, through their associate who has 
addressed you [Mr. Butler], have informed you that this is 
not a court, and that, whatever may be the character of this 
body, it is bound by no law. Upon those subjects I shall 
have something hereafter to say. The honorable manager 
did not tell you, in terms at least, that here are no articles 
before you, because a statement of that fact would be in 
substance to say that here are no honorable managers before 
you ; inasmuch as the only authority with which the hon- 
orable managers are clothed by the House of Representa- 
tives is an authority to present here at your bar certain 
articles, and within their limits conduct this prosecution; 
and, therefore, I shall make no apology, senators, for asking 
your close attention to these articles, one after the other, hi 
manner and form as they are here presented, to ascertain 
in the first place what are the substantial allegations in 
each of them, what is the legal operation and effect of those 
allegations, and what proof is necessary to be adduced in 
order to sustain them ; and I shall begin with the first, not 
merely because the House of Representatives, in arranging 
these articles, have placed that first in order, but because 
the subject-matter of that article is of such a character that 
it forms the foundation of the first eight articles in the 
series, and enters materially into two of the remaining 
three. 

What, then, is the substance of this first article? "What, 
as the lawyers say, are the gravamina contained in it? 
There is a great deal of verbiage — I do not mean by that 
unnecessary verbiage — in the description of the substantive 
matters set down in this article. Stripped of that verbiage, 



DEFENCE OF PRESIDENT JOHNSON. 345 

it amounts exactly to these things : first, that the order set 
out in the article for the removal of Mr. Stanton, if exe- 
cuted, would be a violation of the tenure-of-office act ; sec- 
ond, that it was a violation of the tenure-of-office act ; third, 
that it was an intentional violation of the tenure-of-office 
act ; fourth, that it was a violation of the Constitution of 
the United States ; and, fifth, was by the President intended 
to be so. Or, to draw all this into one sentence which yet 
may be intelligible and clear enough, I suppose the sub- 
stance of this first article is that the order for the removal 
of Mr. Stanton was, and was intended to be, a violation of 
the tenure-of-office act, and was intended to be a violation 
of the Constitution of the United States. These are the 
allegations which it is necessary for the honorable managers 
to make out in proof, to support that article. 

Now, there is a question involved here which enters 
deeply, as I have already intimated, into the first eight arti- 
cles in this series, and materially touches two of the others ; 
and to that question I desire in the first place to invite the 
attention of the court. That question is whether Mr. Stan- 
ton's case comes under the tenure-of-office act. If it does 
not, — if the true construction and effect of the tenure-of-office 
act, when applied to the facts of his case, exclude it, — then 
it will be found by honorable senators, when they come to ex- 
amine this and the other articles, that a mortal wound has 
been inflicted upon them by that decision. I must there- 
fore ask your attention to the construction and application 
of the first section of the tenure-of-office act. It is, as sena- 
tors know, but dry work : it requires close, careful attention 
and reflection ; no doubt it will receive them. Allow me, 
in the first place, to read that section : — 

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 enti- 
tled to hold such office until a successor shall have been in a like 



346 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

manner appointed and duly qualified, except as herein otherwise 
provided. 

Then comes what is " otherwise provided : " — 

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 during the term of the President by whom they may have 
been appointed, and for one month thereafter, subject to removal 
by and with the advice and consent of the Senate. 

Here is a section, then, the body of which applies to all 
civil officers, as well to those then in office as to those who 
should thereafter be appointed. The body of that section 
contains a declaration that every such officer " is," — that is, 
if he is now in office, — " and shall be," — that is, if he shall 
hereafter be appointed to office, — entitled to hold until a 
successor is appointed and qualified in his place. That is the 
body of the section. But out of this body of the section it 
is explicitly declared that there is to be excepted a particu- 
lar class of officers, " except as herein otherwise provided." 
There is to be excepted out of this general description of all 
civil officers a particular class of officers as to whom some- 
thing is " otherwise provided ; " that is, a different rule is 
to be announced for them. 

The Senate will perceive that in the body of the section 
all officers, as well those then holding office as those there- 
after to be appointed, are included. The language is : — 

Every person holding any civil office to which he has been ap- 
pointed, . . . and every person who shall hereafter be appointed, 
... is and shall be entitled, &c. 

It affects the present ; it sweeps over all who are in office 
and come within the body of the section ; it includes by its 
terms as well all those now in office as those who may be 
hereafter appointed. But, when you come to the proviso, 
the first noticeable thing is that this language is changed : 
it is not that " every Secretary who now is, and hereafter 



DEFENCE OP PRESIDENT JOHNSON. 347 

may be, in office, shall be entitled to hold that office " by 
a certain rule which is here prescribed; but the proviso, 
while it fixes a rule for the future only, makes no declara- 
tion of the present right of one of this class of officers ; and 
the question whether any particular Secretary comes within 
that rule depends on another question, whether his case 
comes within the description contained in the proviso. 
There is no language which expressly brings him within the 
proviso ; there is no express declaration, as in the body of 
the section, that "he is, and hereafter shall be, entitled," 
merely because he holds the office of Secretary at the time 
of the passage of the law. There is nothing to bring him 
within the proviso, I repeat, unless the description which 
the proviso contains applies to and includes his case. Now, 
let us see if it does : — 

That the Secretaries of State, &c, shall hold their offices re- 
spectively for and during the term of the President by whom they 
may have been appointed. 

The first inquiry which arises on this language is as to 
the meaning of the words " for and during the term of the 
President." Mr. Stanton, as appears by the commission 
which has been put into the case by the honorable mana- 
gers, was appointed in January, 1862, during the first term 
of President Lincoln. Are these words, " during the term 
of the President," applicable to Mr. Stanton's case? That 
depends upon whether an expounder of this law judicially, 
who finds set down in it as a part of the descriptive words 
" during the term of the President," has any right to add 
" and any other term for which he may afterward be 
elected." By what authority short of legislative power can 
those words be put into the statute, so that " during the 
term of the President " shall be held to mean " and any 
other term or terms for which the President may be 
elected" ? I respectfully submit no such judicial interpre- 
tation can be put on the words. 



348 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

Then, if you please, take the next step. "During the 
term of the President by whom he was appointed." At 
the time when this order was issued for the removal of Mr. 
Stanton, was he holding " during the term of the President 
by whom he was appointed " ? The honorable managers 
say yes, because, as they say, Mr. Johnson is merely serv- 
ing out the residue of Mr. Lincoln's term. But is that so 
under the provisions of the Constitution of the United 
States ? I pray you to allow me to read two clauses which 
are applicable to this question. The first is the first section 
of the second article : — 

The executive power shall be vested in a President of the 
United States of America. He shall hold his office during the 
term of four years, and, together with the Vice-President, chosen 
for the same term, be elected as follows. 

There is a declaration that the President and the Vice- 
President is each respectively to hold his office for the term 
of four years ; but that does not stand alone : here is its 
qualification : — 

Iu case of the removal of the President from office, or of his 
death, resignation, or inability to discharge the powers and duties 
of the said office, the same shall devolve on the Vice-President. 

So that, although the President, like the Vice-President, 
is elected for a term of four years, and each is elected for 
the same term, the President is not to hold his office abso- 
lutely during four years. The limit of four years is not an 
absolute limit. Death is a limit. A " conditional limita- 
tion," as the lawyers call it, is imposed on his tenure of 
office. And when, according to this second passage which 
I have read, the President dies, his term of four years for 
which he was elected, and during which he was to hold, 
provided he should so long live, terminates, and the office 
devolves on the Vice-President. For what period of time ? 
For the remainder of the term for which the Vice-President 
was elected. And there is no more propriety, under these 



DEFENCE OP PRESIDENT JOHNSON. 349 

provisions of the Constitution of the United States, in call- 
ing the time during which Mr. Johnson holds the office of 
President after it was devolved upon him a part of Mr. Lin- 
coln's term, than there would be propriety in saying that 
one sovereign who succeeded to another sovereign by death 
holds a part of his predecessor's term. The term assigned 
to Mr. Lincoln by the Constitution was conditionally as- 
signed to him. It was to last four years, if not sooner 
ended ; but, if sooner ended by his death, then the office 
was devolved on the Vice-President, and the term of the 
Vice-President to hold the office then began. 

I submit, then, that upon this language of the act it is 
apparent that Mr. Stanton's case cannot be considered as 
within it. This law, however, as senators very well know, 
had a purpose : there was a practical object in the view of 
Congress ; and, however clear it might seem that the lan- 
guage of the law when applied to Mr. Stanton's case would 
exclude that case, however clear that might seem on the 
mere words of the law, if the purpose of the law could be 
discerned, and that purpose plainly required a different in- 
terpretation, that different interpretation should be given. 
But, on the other hand, if the purpose in view was one 
requiring that interpretation to which I have been drawing 
your attention, then it greatly strengthens the argument ; 
because not only the language of the act itself, but the 
practical object which the legislature had in view in using 
that language, demands that interpretation. 

Now, there can be no dispute concerning what that pur- 
pose was, as I suppose. Here is a peculiar class of officers 
singled out from all others and brought within this provi- 
sion. Why is this ? It is because the Constitution has pro- 
vided that these principal officers in the several executive 
departments may be called iipon by the President for advice 
"respecting" — for that is the language of the Constitution 
— " their several duties ; " not, as I read the Constitution, 
that he may call upon the Secretary of War for advice 



350 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

concerning questions arising in the Department of War. 
He may call upon him for advice concerning questions 
which are a part of the duty of the President, as well as 
questions which belong only to the Department of War. 
Allow me to read that clause of the Constitution, and see if 
this be not its true interpretation. The language of the 
Constitution is : — 

He [the President] may require the opinion in writing of the 
principal officer in each of the executive departments upon any 
subject relating to the duties of their respective offices. 

As I read it, relating to the duties of the offices of these 
principal officers, or relating to the duties of the President 
himself. At all events, such was the practical interpreta- 
tion put upon the Constitution from the beginning of the 
Government ; and every gentleman who listens to me, who 
is familiar, as you all are, with the political history of the 
country, knows that from an early period of the administra- 
tion of General Washington his Secretaries were called upon 
for advice concerning matters not within their respective 
departments, and so the practice has continued from that 
time to this. This is one thing which distinguishes this 
class of officers from any other embraced within the body 
of the law. 

But there is another. The Constitution undoubtedly 
contemplated that there should be executive departments 
created, the heads of which were to assist the President in 
the administration of the laws as well as by their advice. 
They were to be the hands and the voice of the President ; 
and accordingly that has been so practised from the begin- 
ning, and the legislation of Congress has been framed on 
this assumption in the organization of the departments, and 
emphatically in the act which constituted the Department 
of War. That provides, as senators well remember, in so 
many words, that the Secretary of War is to discharge such 
duties of a general description there given as shall be assigned 



DEFENCE OP PBESIDENT JOHNSON. 351 

to him by the President, and that he is to perform them under 
the President's instructions and directions. 

Let me repeat that the Secretary of War and the other 
Secretaries, the Postmaster-General, and the Attorney-Gen- 
eral, are deemed to be the assistants of the President in the 
performance of his great duty to take care that the laws are 
faithfully executed ; that they speak for and act for him. 
Now, do not these two views furnish the reasons why this 
class of officers was excepted out of the law? They were 
to be the advisers of the President : they were to be the 
immediate confidential assistants of the President, for whom 
he was to be responsible, but in whom he was expected to 
repose a great amount of trust and confidence ; and there- 
fore it was that this act has connected the tenure of office of 
these Secretaries to which it applies with the President by 
whom they were appointed. It says, in the description 
which the act gives of the future tenure of office of Secre- 
taries, that a controlling regard is to be had to the fact that 
the Secretary whose tenure is to be regulated was appointed 
by some particular President, and during the term of that 
President he shall continue to hold his office ; but as for 
Secretaries who are in office, not appointed by the Presi- 
dent, we have nothing to say : we leave them as they here- 
tofore have been. I submit to senators that this is the nat- 
ural, and, having regard to the character of these officers, 
the necessary conclusion : that the tenure of the office of a 
Secretary here described is a tenure during the term of ser- 
vice of the President by whom he was appointed ; that it 
was not, the intention of Congress to compel a President 
of the United States to continue in office a Secretary not 
appointed by himself. 

We have, however, fortunately, not only the means of 
interpreting this law which I have alluded to, — namely, the 
language of the act, the evident character and purpose of the 
act, — but we have decisive evidence of what was intended 
and understood to be the meaning and effect of this law in 



352 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

each, branch of Congress at the time when it was passed. 
In order to make this more apparent, and its just weight 
more evident, allow me to state what is very familiar, no 
doubt, to senators, but which I wish to recall to their minds, 
the history of this proviso, this exception. 

The bill, as senators will recollect, originally excluded 
these officers altogether. It«rnade no attempt — indeed, it 
rejected all attempts — to prescribe a tenure of office for them, 
as inappropriate to the necessities of the Government. So 
the bill went to the House of Representatives. It was there 
amended by putting the Secretaries on the same footing as 
all other civil officers appointed with the advice and consent 
of the Senate, and, thus amended, came back to this body. 
This body disagreed to the amendment. Thereupon, a com- 
mittee of conference was appointed; and that committee, 
on the part of the House, had for its chairman Hon. Mr. 
Schenck, of Ohio ; and, on the part of this body, Hon. Mr. 
Williams, of Oregon, and Hon. Mr. Sherman, of Ohio. 
The committee of conference came to an agreement to alter 
the bill by striking these Secretaries out of the body of the 
bill, and inserting them in the proviso containing the matter 
now under consideration. Of course, when this report was 
made to the House of Representatives and to this body, it 
was incumbent on the committee charged with looking after 
its intentions and estimates of the public necessities in refer- 
ence to that conference, — it was expected that they would 
explain what had been agreed to, with a view that the body 
itself, thus understanding what had been agreed to be done, 
could proceed to act intelligently on the matter. 

Now, I wish to read to the Senate the explanation given 
by Hon. Mr. Schenck, the chairman of this conference on. 
the part of the House, when ,he made his report to the 
House concerning this proviso. After the reading of the 
report, Mr. Schenck said : — 

I propose to demand the previous question upon the question of 
agreeing to the report of the committee of conference. But, before 



DEFENCE OP PRESIDENT JOHNSON. 353 

doing so, I will explain to the House the condition of the bill, and 
the decision of the conference committee upon it. It will be remem- 
bered that by the bill, as it passed the Senate, it was provided that 
the concurrence of the Senate should be required in all removals 
from office, except in the case of the heads of departments. The 
House amended the bill of the Senate so as to extend this require- 
ment to the heads of departments as well as to other officers. 

The committee of conference have agreed that the Senate shall 
accept the amendment of the House. But, inasmuch as this would 
compel the President to keep around him heads of departments 
until the end of his term, who would hold over to another term, 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 propo- 
sition reported by the committee of conference : it is, in fact, an 
acceptance by the Senate of the position taken by the House. (Con- 
gressional Globe, thirty-ninth Congress, second session, p. 1340.) 

Then a question was asked, whether it would be necessary 
that the Senate should concur in all other appointments, &c. ; 
in reply to which Mr. Schenck said : — 

That is the case. But their terms of office, — 

That is, the Secretaries' terms of office — 

are limited, as they are not now limited by law, so that they ex- 
pire with the term of service of the President who appoints them, 
and one month after, in case of death or other accident, until others 
can be substituted for them by the incoming President. (Ibid.) 

Allow me to repeat that sentence : — 

They expire with the term of service of the President who 
appoints them, and one month after, in case of death or other 
accident. 

In this body, on the report being made, the chairman, 
Hon. Mr. Williams, made an explanation. That explanation 
was, in substance, the same as that made by Mr. Schenck 
vol. ii. 23 



354 PROFESSIONAL AND .MISCELLANEOUS "WRITINGS. 

in the House ; and thereupon a considerable debate sprang 
up, which was not the case in the House, for this explana- 
tion of Mr. Schenck was accepted by the House as correct, 
and unquestionably was acted upon by the House as giving 
the true sense, meaning, and effect of this bill. In this body, 
as I have said, a considerable debate sprang up. It would 
take too much of your time and too much of my strength to 
undertake to read this debate, and there is not a great deal 
of it which I can select so as to present it fairly and intelli- 
gibly without reading the accompanying parts ; but I think 
the whole of it may fairly be summed up in this statement : 
that it was charged by one of the honorable senators from 
Wisconsin that it was the intention of those who favored 
this bill to keep in office Mr. Stanton and certain other 
Secretaries. That was directly met by the honorable sen- 
ator from Ohio — one of the members of the committee of 
conference — by this statement : — 

I do not understand the logic of the senator from Wisconsin. 
He first attributes a purpose to the committee of conference which 
I say is not true. I say that the Senate have not legislated with a 
view to any persons or any President, and therefore he commences 
by asserting what is not true. We do not legislate in order to 
keep in the Secretary of War, the Secretary of the Navy, or the 
Secretary of State. {Ibid., p. 1516.) 

Then a conversation arose between the honorable senator 
from Ohio and another honorable senator, and the honorable 
senator from Ohio continued thus : — 

That the Senate had no such purpose is 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 Secretary 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 



DEFENCE OF PRESIDENT JOHNSON. 355 

the United States that his services were no longer needed, I cer- 
tainly, as a senator, would consent to his removal at any time, and 
so would we all. {Ibid., p. 1516.) 

I read this, senators, not as expressing the opinion of an 
individual senator concerning the meaning of a law which 
was under discussion and was about to pass into legislation. 
I read it as the report, for it is that in effect, — the expla- 
nation, rather, of the report of the committee of conference 
appointed by this body to see whether this body could agree 
with the House of Representatives in the frame of this bill, 
which committee came back here with a report that a cer- 
tain alteration had been made and agreed upon by the 
committee of conference, and that its effect was what is 
above stated. And now I ask the Senate — looking at the 
language of this law, looking at its purpose, looking at the 
circumstances under which it was passed, the meaning thus 
attached to it by each of the bodies which consented to it 
— whether it is possible to hold that Mr. Stanton's case is 
within the scope of that tenure-of-office act? I submit it is 
not possible. 

I now return to the allegations in this first article ; and 
the first allegation, as senators will remember, is that the 
issuing of the order which is set out in the article was a 
violation of the tenure-of-office act. It is perfectly clear 
that is not true. The tenure-of-office act in the sixth sec- 
tion enacts " that every removal, appointment, or employ- 
ment, made, had, or exercised, contrary to the provisions 
of this act," &c, shall be deemed a high misdemeanor. 
" Every removal contrary to the provisions of this act." In 
the first place, no removal has taken place. They set out 
an order. If Mr. Stanton had obeyed that order, there 
would have been a removal ; but, inasmuch as Mr. Stanton 
disobeyed that order, there was no removal. So it is quite 
clear that, looking to this sixth section of the act, they have 
made out no case of a removal within its terms ; and, there- 
fore, no case of violation of the act by a removal. But it 



356 PROFESSIONAL AND MISCELLANEOUS "WRITINGS. 

must not only be a removal, it must be " contrary to the 
provisions of this act ; " and, therefore, if you could hold 
the order to be in effect a removal, unless Mr. Stanton's 
case was within this act, unless this act gave Mr. Stanton a 
tenure of office and protected it, of course the removal — 
even if it had been actual instead of attempted merely — 
would not have been "contrary to the provisions of the 
act," for the act had nothing to do with it. 

But this article, as senators will perceive on looking at it, 
does not allege simply that the order for the removal of Mr. 
Stanton was a violation of the tenure-of-office act. The 
honorable House of Representatives have not, by this article, 
attempted to erect a mistake into a crime. I have been 
arguing to you at considerable length, no doubt trying your 
patience thereby, the construction of that tenure-of-office 
law. I have a clear idea of what its construction ought to 
be. Senators, more or less of them who have listened to 
me, may have a different view of its construction ; but I 
think they will in all candor admit that there is a question 
of construction : there is a question of what the meaning of 
this law was, — a question whether it was applicable' to Mr. 
Stanton's case, — a very honest and solid question which 
any man could entertain ; and, therefore, I repeat it is im- 
portant to observe that the honorable House of Represen- 
tatives have not, by this article, endeavored to charge the 
President with a high misdemeanor because he had been 
honestly mistaken in construing that law. They go further, 
and take the necessary step. They charge him with inten- 
tionally misconstruing it : they say, " Which order was 
unlawfully issued with intention then and there to violate 
said act." So that, in order to maintain the substance of 
this article, without which it was not designed by the House 
of Representatives to stand, and cannot stand, it is neces- 
sary for them to show that the President wilfully miscon- 
strued this law ; that having reason to believe, and actually 
believing, after the use of due inquiry, that Mr. Stanton's 



DEFENCE OP PRESIDENT JOHNSON. 357 

case was within the law, he acted as if it was not within the 
law. That is the substance of the charge. 

What of the proof in support of that allegation offered by 
the honorable managers? Senators must undoubtedly be 
familiar with the fact that the office of President of the 
United States, as well as many other executive offices, and 
to some extent legislative offices, call upon those who hold 
them for the exercise of judgment and skill in the construc- 
tion and application of laws. It is true that the strictly 
judicial power of the country, technically speaking, is vested 
in the Supreme Court and such inferior courts as Congress 
from time to time have established or may establish. But 
there is a great mass of work to be performed by executive 
officers in the discharge of their duties, which is of a judicial 
character. Take, for instance, all that is done in the audit- 
ing of accounts : that is judicial, whether it be done by an 
auditor or a comptroller, or whether it be done by a chan- 
cellor ; and the work has the same character, whether done 
by one or by the other. They must construe and apply the 
laws ; they must investigate and ascertain facts ; they must 
come to some results compounded of the law and of the 
facts. 

Now, this class of duties the President of the United 
States has to perform. A case is brought before him, which, 
in his judgment, calls for action : his first inquiry must be, 
What is the law on the subject? He encounters, among 
other things, this tenure-of-office law in the course of his 
inquiry. His first duty is to construe that law ; to see 
whether it applies to the case ; to use, of course, in doing so, 
all those means and appliances which the Constitution and 
the laws of the country have put into his hands to enable 
him to come to a correct decision. But, after all, he must 
decide in order either to act or to refrain from action. 

That process the President in this case was obliged to go 
through, and did go through ; and he came to the conclusion 
that the case of Mr. Stanton was not within this law. He 



358 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

came to that conclusion, not merely by an examination of 
this law himself, but by resorting to the advice which the 
Constitution and laws of the country enable him to call for 
to assist him in coming to a correct conclusion. Having 
done so, are the Senate prepared to say that the conclusion 
he reached must have been a wilful misconstruction, — so 
wilful, so wrong, that it can justly and properly, and for 
the purpose of this prosecution, effectively be termed a high 
misdemeanor? How does the law read? What are its 
purposes and objects ? How was it understood here at the 
time when it was passed ? How is it possible for this body 
to convict the President of the United States of a high mis- 
demeanor for construing a law as those who made it con- 
strued it at the time when it was made? 

I submit to the Senate that thus far no great advance has 
been made toward the conclusion either that the allegation 
in this article that this order was a violation of the tenure- 
of-office act is true, or that there was an intent on the part 
of the President thus to violate it. And, although we have 
not yet gone over all the allegations in this article, we have 
met its " head and front ; " and what remains will be found 
to be nothing but incidental and circumstantial, and not the 
principal subject. If Mr. Stanton was not within this act, 
if he held the office of Secretary for the Department of War 
at the pleasure of President Johnson as he held it at the 
pleasure of President Lincoln, if he was bound by law to 
obey that order which was given to him, and quit the place 
instead of being sustained by law in resisting that order, I 
think the honorable managers will find it extremely difficult 
to construct out of the broken fragments of this article any 
thing which will amount to a high misdemeanor. What 
are they? They are, in the first place, that the President 
did violate, and intended to violate, the Constitution of the 
United States by giving this order. Why ? They say, as 
I understand it, because the order of removal was made 
during the session of the Senate ; that for that reason the 



DEFENCE OF PRESIDENT JOHNSON. 359 

order was a violation of the Constitution of the United 
States. 

I desire to be understood on this subject. If I can make 
my own ideas of it plain, I think nothing is left of this 
allegation. In the first place, the case, as senators will 
observe, which is now under consideration, is the case of a 
Secretary of War holding during the pleasure of the Pres- 
ident by the terms of his commission ; holding under the 
act of 1789, which created that department, which, although 
it does not affect to confer on the President the power to 
remove the Secretary, does clearly imply that he has that 
power by making a provision for what shall happen in case 
he exercises it. That is the case which is under considera- 
tion, and the question is this : whether, under the law of 1789 
and the tenure of office created by that law, — designedly 
created by that law, after the great debate of 1789, — and 
whether under a commission which conforms to it, holding 
during the pleasure of the President, the President could 
remove such a Secretary during the session of the Senate. 
Why not ? Certainly there is nothing in the Constitution 
of the United States to prohibit it. The Constitution has 
made two distinct provisions for filling offices. One is by 
nomination to the Senate and confirmation by them, and a 
commission by the President upon that confirmation : the 
other is by commissioning an officer when a vacancy hap- 
pens during the recess of the Senate. But the question 
now before you is not a question how vacancies shall be 
filled ; that the Constitution has thus provided for : it is a 
question how they may be created, and when they may be 
created, — a totally distinct question. 

Whatever may be thought of the soundness of the con- 
clusion arrived at upon the great debate in 1789 concerning 
the tenure of office, or concerning the power of removal 
from office, no one, I suppose, will question that a conclu- 
sion was arrived at ; and that conclusion was that the 
Constitution had lodged with the President the power of 



860 PROFESSIONAL AND MISCELLANEOUS WHITINGS. 

removal from office independently of the Senate. This 
may be a decision proper to be reversed : it may have been 
now reversed, — of that I say nothing at present ; but that it 
was made, and that the legislation of Congress of 1789, and 
so on down during the whole period of legislation to 1867, 
proceeded upon the assumption, express or implied, that 
that decision had been made, nobody who understands the 
history of the legislation of the country will deny. 

Consider, if you please, what this decision was. It was 
that the Constitution had lodged this power in the Presi- 
dent ; that he alone was to exercise it ; that the Senate had 
not and could not have any control whatever over it. If 
that be so, of what materiality is it whether the Senate is 
in session or not ? If the Senate is not in session, and the 
President has this power, a vacancy is created; and the 
Constitution has made provision for filling that vacancy by 
commission until the end of the next session of the Senate. 
If the Senate is in session, then the Constitution has made 
provision for filling a vacancy which is created by a nomi- 
nation to the Senate ; and the laws of the country, as I am 
presently going to show you somewhat in detail, have made 
provisions for filling it ad interim without any nomination, 
if the President is not prepared to make a nomination at 
the moment when he finds the public service requires the 
removal of an officer. So that, if this be a case within the 
scope of the decision made by Congress in 1789, and within 
the scope of the legislation which followed upon that deci- 
sion, it is a case where either by force of the Constitution 
the President had the power of removal without consulting 
the Senate, or else the legislation of Congress had given it 
to him ; and, either way, neither the Constitution nor the 
legislation of Congress had made it incumbent on him to 
consult the Senate on the subject. 

I submit, then, that if you look at this matter of Mr. 
Stanton's removal just as it stands on the decision in 1789, 
or on the legislation of Congress following upon that deci- 



DEFENCE OF PRESIDENT JOHNSON. 361 

sion, and in accordance with which are the terms of the 
commission under which Mr. Stanton held office, you must 
come to the conclusion, without any further evidence on the 
subject, that the Senate had nothing whatever to do with 
the removal of Mr. Stanton, either to advise for it or to 
advise against it ; that it came either under the constitu- 
tional power of the President, as it had been interpreted in 
1789, or it came under the grant made by the legislature to 
the President in regard to all those secretaries not included 
within the tenure-of-office bill. This, however, does not 
rest simply upon this application of the Constitution and of 
the legislation of Congress. There has been, and we shall 
bring it before you, a practice by the Government, going 
back to a very early day, and coming down to a recent 
period, for the President to make removals from office when 
the case called for them, without regard to the fact whether 
the Senate was in session or not. The instances, of course, 
would not be numerous. If the Senate was in session, the 
President would send a nomination to the Senate, saying, 
" A B, in place of C D, removed ; " but then there were 
occasions, — not frequent, I agree, — but there were occa- 
sions, as you will see might naturally happen, when the 
President, perhaps, had not had time to select a person 
whom he would nominate, and when he could not trust the 
officer then in possession of the office to continue in it, 
when it was necessary for him by a special order to remove 
him from the office, wholly independent of any nomination 
sent in to the Senate. Let me bring before your considera- 
tion for a moment a very striking case which happened 
recently enough to be within the knowledge of many of 
you. We were on the eve of a civil war : the War Depart- 
ment was in the hands of a man who was disloyal and un- 
faithful to his trust. His chief clerk, who on his removal 
or resignation would come into the place, was believed to 
be in the same category with his master. Under those 
circumstances, the President of the United States said to 



362 PROFESSIONAL AND MISCELLANEOUS "WRITINGS. 

Mr. Floyd, "I must have possession of this office;" and 
Mr. Floyd had too much good sense or good manners, or 
something else, to do any thing but resign ; and instantly 
the President put into the place General Holt, the Post- 
master-General of the United States at the time, without 
the delay of an hour. It was a time when a delay of 
twenty-four hours might have been of vast practical conse- 
quence to the country. There are classes of cases arising 
in all the departments of that character followed by that 
action ; and we shall bring before you evidence showing 
what those cases have been, so that it will appear that so 
long as officers held at the pleasure of the President, and 
wholly independent of the advice which he might receive 
in regard to their removal from the Senate, — so long, when- 
ever there was an occasion, the President used the power, 
whether the Senate was in session or not. 

I have now gone over, senators, the considerations which 
seem to me to be applicable to the tenure-of-office bill, and 
to this allegation which is made that the President know- 
ingly violated the Constitution of the United States in the 
order for the removal of Mr. Stanton from office while the 
Senate was in session; and the counsel for the President 
feel that it is not essential to his vindication from this 
charge to go further upon this subject. Nevertheless, there 
is a broader view upon this matter, which is an actual part 
of the case — and it is due to the President it should be 
brought before you — that I now propose to open to your 
consideration. 

The Constitution requires the President to take care that 
the laws be faithfully executed. It also requires of him, as 
a qualification for his office, to swear that he will faithfully 
execute the laws, and that, to the best of his ability, he will 
preserve, protect, and defend the Constitution of the United 
States. I suppose every one will agree that, so long as the 
President of the United States, in good faith, is endeavor- 
ing to take care that the laws be faithfully executed, and in 



DEFENCE OP PRESIDENT JOHNSON. 363 

good faith, and to the best of his ability, is preserving, 
protecting, and defending the Constitution of the United 
States, although he may be making mistakes, he is not 
committing high crimes or misdemeanors. 

In the execution of these duties, the President found, for 
reasons which it is not my province at this time to enter 
upon, but which will be exhibited to you hereafter, that it 
was impossible to allow Mr. Stanton to continue to hold 
the office of one of his advisers, and to be responsible for 
his conduct in the manner he was required by the Consti- 
tution and laws to be responsible, any longer. This was 
intimated to Mr. Stanton, and did not produce the effect 
which, according to the general judgment of well-informed 
men, such intimations usually produce Thereupon, the 
President first suspended Mr. Stanton, and reported that to 
the Senate. Certain proceedings took place, which will be 
adverted to more particularly presently. They resulted in 
the return of Mr. Stanton to the occupation by him of this 
office. Then it became necessary for the President to con- 
sider, first, whether this tenure-of-office law applied to the 
case of Mr. Stanton ; secondly, if it did apply to the case of 
Mr. Stanton, whether the law itself was the law of the land, 
or was merely inoperative because it exceeded the constitu- 
tional power of the legislature. 

I am aware that it is asserted to be the civil and moral 
duty of all men to obey those laws which have been passed 
through all the forms of legislation until they shall have 
been decreed by judicial authority not to be binding ; but 
this is too broad a statement of the civil and moral duty in- 
cumbent either upon private citizens or public officers. If 
this is the measure of duty, there never could be a judicial, 
decision that a law is unconstitutional, inasmuch as it is 
only by disregarding a law that any question can be raised 
judicially under it. I submit to senators that not only is 
there no such rule of civil or moral duty, but that it may 
be and has been a high and patriotic duty of a citizen to 



864 PBOFESSIONAL AND MISCELLANEOUS WRITINGS. 

raise a question whether a law is within the Constitution of 
the country. Will any man question the patriotism or the 
propriety of John Hampden's act, when he brought the 
question whether " ship money " was within the Constitu- 
tion of England before the courts of England ? Not only is 
there no such rule incumbent upon private citizens which 
forbids them to raise such questions, but, let me repeat, 
there may be, as there not unfrequently have been, in- 
stances in which the highest patriotism and the purest civil 
and moral duty require it to be done. Let me ask any of 
you, if you were a trustee for the rights of third persons, 
and those rights of third persons, which they could not de- 
fend themselves by reason, perhaps, of sex or age, should be 
attacked by an unconstitutional law, should you not deem 
it to be your sacred duty to resist it, and have the question 
tried? And if a private trustee may be subject to such a 
duty, and impelled by it to such action, how is it possible 
to maintain that he who is a trustee for the people of 
powers confided tq him for their protection, for their secu- 
rity, for their benefit, may not in that character of trustee 
defend what has thus been confided to him ? 

Do not let me be misunderstood on this subject. I am 
not intending to advance upon or occupy any extreme 
ground, because no such extreme ground has been advanced 
upon or occupied by the President of the United States. 
He is to take care that the laws are faithfully executed. 
When a law has been passed through the forms of legisla- 
tion, either with his assent or without his assent, it is his 
duty to see that that law is faithfully executed, so long as 
nothing is required of him but ministerial action. He is 
not to erect himself into a judicial court, and decide that the 
law is unconstitutional, and that therefore he will not execute 
it ; for, if that were done, manifestly there never could be 
a judicial decision. He would not only veto a law, but he 
would refuse all action under the law after it had been 
passed, and thus prevent any judicial decision from being 



DEFENCE OF PRESIDENT JOHNSON. 365 

made. He asserts no such power. He has no such idea of 
his duty. His idea of his duty is that, if a law is passed 
over his veto which he helieves to be unconstitutional, and 
that law affects the interests of third persons, those whose 
interests are affected must take care of them, vindicate 
them, raise questions concerning them, if they should be so 
advised. If such a law affects the general and public inter- 
ests of the people, the people must take care at the polls 
that it is remedied in a constitutional way. 

But when, senators, a question arises whether a particu- 
lar law has cut off a power confided to him by the people, 
through the Constitution, and he alone can raise that ques- 
tion, and he alone can cause a judicial decision to come 
between the two branches of the Government to say which 
of them is right ; and after due deliberation, with the advice 
of those who are his proper advisers, he settles down firmly 
upon the opinion that such is the character of the law, it 
remains to be decided by you whether there is any violation 
of his duty when he takes the needful steps to raise that 
question and have it peacefully decided.. 

Where shall the line be drawn ? Suppose a law should 
provide that the President of the United States should not 
make a treaty with England or with any other country. It 
would be a plain infraction of his constitutional power ; 
and, if an occasion arose when such a treaty was in his judg- 
ment expedient and necessary, it would be his duty to 
make it ; and the fact that it should be declared to be a 
high misdemeanor, if he made it, would no more relieve him 
from the responsibility of acting through the fear of that 
law than he would be relieved of that responsibility by a 
bribe not to act. 

Suppose a law that he shall not be Commander-in-chief 
in part or in whole, — a plain case, I will suppose, of an in- 
fraction of that provision of the Constitution which has 
confided to him that command ; the Constitution intending 
that the head of all the military power of the country 



366 PROFESSIONAL AKD MISCELLANEOUS WRITINGS. 

should be a civil magistrate, to the end that the law may 
always be superior to arms. Suppose he should resist a 
statute of that kind in the manner I have spoken of by 
bringing it to a judicial decision? 

It may be said these are plain cases of express infractions 
of the Constitution ; but what is the difference between a 
power conferred upon the President by the express words 
of the Constitution and a power conferred upon the Presi- 
dent by a clear and sufficient implication in the Constitu- 
tion ? Where does the power to make banks come from ? 
Where does the power come from to limit Congress in as- 
signing original jurisdiction to the Supreme Court of the 
United States, — one of the cases referred to the other day ? 
Where do a multitude of powers upon which Congress acts 
come from in the Constitution except by fair implications ? 
Whence do you derive the power, while you are limiting 
the tenure of office, to confer on the Senate the right to 
prevent removals without their consent ? Is that expressly 
given in the Constitution, or is it an implication which is 
made from some of its provisions ? 

I submit it is impossible to draw any line of duty for the 
President, simply because a power is derived from an impli- 
cation in the Constitution instead of from an express pro- 
vision. One thing unquestionably is to be expected of the 
President on all such occasions : that is, that he should 
carefully consider the question ; that he should ascertain 
that it necessarily arises ; that he should be of opinion that 
it is necessary to the public service that it should be de- 
cided ; that he should take all competent and proper advice 
on the subject. When he has done all this, if he finds that 
he cannot allow the law to operate in the particular case 
without abandoning a power which he believes has been 
confided to him by the people, it is his solemn conviction 
that it is his duty to assert the power and obtain a judicial 
decision thereon. And although he does not perceive, nor 
do his counsel perceive, that it is essential to his defence in 



DEFENCE OF PEESIDENT JOHNSON. 367 

this case to maintain this part of the argument, neverthe- 
less, if this tribunal should be of that opinion, then before 
this tribunal, before all the people of the United States, 
and before the civilized world, he asserts the truth of this 
position. 

I am compelled now to ask your attention, quite briefly, 
however, to some considerations which weighed upon the 
mind of the President, and led him to the conclusion that 
this was one of the powers of his office which it was his 
duty, in the manner I have indicated, to endeavor to 
preserve. 

The question whether the Constitution has lodged the 
power of removal with the President alone, with the Presi- 
dent and Senate, or left it to Congress to be determined at 
its will in fixing the tenure of offices, was, as all senators 
know, debated in 1789 with surpassing ability and knowl- 
edge of the frame and necessities of our Government. 

Now, it is a rule long settled, existing, I suppose, in all 
civilized countries, certainly in every system of law that I 
have any acquaintance with, that a contemporary exposi- 
tion of a law made by those who were competent to give it 
a construction, is of very great weight ; and that when such 
contemporary exposition has been made of a law, and it has 
been followed by an actual and practical construction in 
accordance with that contemporary exposition, continued 
during a long period of time and applied to great numbers 
of cases, it is afterward too late to call in question the cor- 
rectness of such a construction. The rule is laid down, in 
the quaint language of Lord Coke, in this form : — 

Great regard ought, in construing a law, to be paid to the con- 
struction which the sages who lived about the time or soon after it 
was made put upon it, because they were best able to judge of the 
intention of the makers at the time when the law was made. 
" Contemporanea expositio est fortissima in lege." 

I desire to bring before the Senate in this connection, 
inasmuch as I think the subject has been frequently misun- 



368 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

derstood, the form taken by that debate of 1789, and the 
result which was attained. In order to do so, and at the 
same time to avoid fatiguing your attention by looking 
minutely into the debate itself, I beg leave to read a pas- 
sage from Chief Justice Marshall's Life of Washington, 
where he has summed up the whole. The writer says, 
on page 162 of the second volume of the Philadelphia 
edition : — 

After an ardent discussion, which consumed several days, the 
committee divided, and the amendment was negatived by a majority 
of thirty-four to twenty. The opinion thus expressed by the House 
of Representatives did not explicitly convey their sense of the Con- 
stitution. Indeed, the express grant of the power to the President 
rather implied a right in the legislature to give or withhold it at 
their discretion. To obviate any misunderstanding of the principle 
on which the question had been decided, Mr. Benson moved in the 
House, when the report of the Committee of the "Whole was taken 
up, to amend the second clause in the bill so as clearly to imply the 
power of removal to be solely in the President. He gave notice 
that, if he should succeed in this, he would move to strike out the 
words which had been the subject of debate. If those words con- 
tinued, he said, the power of removal by the President might here- 
after appear to be exercised by virtue of a legislative grant only, 
and consequently be subjected to legislative instability ; when he 
was well satisfied in his own mind that it was by fair construction 
fixed in the Constitution. The motion was seconded by Mr. Madi- 
son, and both amendments were adopted. As the bill passed into 
a law, it has ever been considered as a full expression of the sense 
of the legislature on this important part of the American Consti- 
tution. 

Some allusion has been made to the fact that this law 
was passed in the Senate only by the casting vote of the 
Vice-President ; and upon that subject I beg leave to refer 
to the Life of Mr. Adams by his grandson (vol. i. pp. 448- 
450). He here gives an account — so far as could be ascer- 
tained from the papers of President Adams — of what that 
debate was, and finally terminates the subject in this way: — 



DEFENCE OF PRESIDENT JOHNSON. 369 

These reasons [that is, the reasons of Vice-President Adams] 
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. 

I desire leave, also, to refer on this subject to the first 
volume of Story's Commentaries on the Constitution, section 
four hundred and eight, in support of the rule of interpre- 
tation which I have stated to the Senate. It will there be 
found that it is stated by the learned commentator that a 
contemporaneous construction of the Constitution, made 
under certain circumstances, which he describes, is of very 
great weight in determining its meaning. He says : — 

After all, the most unexceptionable source of collateral interpre- 
tation is from the practical exposition of the Government itself, in 
its various departments, upon particular questions discussed and 
settled upon their own single merits. These approach the nearest 
in their own nature to judicial expositions, and have the same gen- 
eral recommendation that belongs to the latter. They are decided 
upon solid argument pro re nata, upon a doubt raised, upon a lis 
mota, upon a deep sense of their importance and difficulty, in the 
face of the nation, with a view to present action in the midst of 
jealous interests, and by men capable of urging or repelling the 
grounds of argument from their exquisite genius, their comprehen- 
sive learning, or their deep meditation upon the absorbing topic. 
How light, compared with these means of instruction, are the 
private lucubrations of the closet or the retired speculations of 
ingenious minds, intent on theory or general views, and unused to 
encounter a practical difficulty at every step ! 

On comparing the decision made in 1789 with the tests 
which are here suggested by the learned commentator, it 
will be found, in the first place, that the precise question 
was under discussion ; secondly, that there was a deep sense 
of its importance, for it was seen that the decision was not 
to affect a few cases lying here and there in the course of 
the Government, but that it would enter deeply into its prac- 
tical and daily administration ; and, in the next place, the 
vol. ii. 24 



370 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

determination was, so far as such determination could be 
entertained, thereby to fix a system for the future ; and, in 
the last place, the men who participated in it must be 
admitted to have been exceedingly well qualified for their 
work. 

There is another rule to be added to this, which is also 
one of very frequent application ; and it is that a long-con- 
tinued practical application of a decision of this character 
by those to whom the execution of a law is confided is of 
decisive weight. To borrow again from Lord Coke on this 
subject, " Optimus legum interpres consuetudo," — " Prac- 
tice is the best interpreter of law." Now what followed this 
original decision? From 1789 down to 1867, every Pres- 
ident and every Congress participated in and acted under 
the construction given in 1789. Not only did the Govern- 
ment so conduct, but it was a subject sufficiently discussed 
among the people to bring to their consideration that such 
a question had existed, had been started, had been settled 
in this manner, had been raised again from time to time, 
and yet, as everybody knows, so far from the people inter- 
fering with this decision, so far from ever expressing in 
any manner their disapprobation of the practice which 
had grown up under it, not one party nor two parties, 
but all parties, favored and acted upon this system of gov- 
ernment. 

Mr. Edmunds (at 2 o'clock and 25 minutes P. M.). — 
Mr. President, if agreeable to the honorable counsel, I will 
move that the Senate take a recess for fifteen minutes. 

The motion was agreed to. 

The Chief Justice resumed the chair at 15 minutes to 3 
o'clock, and called the Senate to order. 

Mr. Morrill, of Vermont (after a pause). I move that 
the Senate do now adjourn, — I see that most of the sen- 
ators are away, — and on that motion I ask for the yeas 
and nays. 

The yeas and nays were ordered. 



DEFENCE OP PRESIDENT JOHNSON. 371 

Mr. Conkling. What is the motion ? I did not hear it. 

The Chief Justice. The motion is to adjourn until 
to-morrow at 12 o'clock, and upon that motion the yeas and 
nays are ordered. 

The question, being taken by yeas and nays, resulted — 
yeas, 2 ; nays, 35 — as follows : — 

Yeas. — Messrs. McCreery, and Patterson of Tennessee, — 2. 

Nays. — Messrs. Buckalew, Cattell, Chandler, Cole, Conkling, 
Corbett, Cragin, Davis, Dixon, Doolittle, Drake, Ferry, Fessenden, 
Frelinghuysen, Grimes, Henderson, Hendricks, Howard, Howe, 
Johnson, Morgan, Morrill of Maine, Morrill of Vermont, Morton, 
Pomeroy, Ross, Sherman, Stewart, Sumner, Thayer, Tipton, Van 
Winkle, Viekers, Willey, and Yates, — 35. 

Not Voting. — Messrs. Anthony, Bayard, Cameron, Conness, 
Edmunds, Fowler, Harlan, Norton, Nye, Patterson of New Hamp- 
shire, Ramsey, Saulsbury, Sprague, Trumbull, Wade, Williams, 
and Wilson, — 17. 

So the Senate refused to adjourn. 

The Chief Justice. The counsel for the President 
■will proceed with the argument. 

Mr. Ctjetis. Mr. Chief Justice and Senators, when the 
Senate adjourned, I was asking attention to the fact that 
this practical interpretation was put upon the Constitution 
in 1789, and that it had been continued with the concur- 
rence of the legislative and executive branches of the Gov- 
ernment down to 1867, affecting so great a variety of 
interests, embracing so many offices, so well known, not 
merely to the members of the Government themselves, but 
to the people of the country, that it was impossible to doubt 
that it had received their sanction, as well as the sanction 
of the executive and the legislative branches of the Gov- 
ernment. 

This is a subject which has been heretofore examined, and 
passed upon judicially in very numerous cases. I do not 
speak now, of course, of judicial decisions of this particular 
question which is under consideration, whether the Consti- 



372 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

tution has lodged the power of removal in the President 
alone, or in the President and Senate, or has left it to be a 
part of the legislative power; but I speak of the judicial 
exposition of the effect of such a practical construction of 
the Constitution of the United States, originated in the way 
in which this was originated, continued in the way in which 
this was continued, and sanetioned in the way in which this 
has been sanctioned. 

There was a case that arose soon after the organiza- 
tion of the Government, and which is reported under 
the name of Stuart v. Laird, in 1 Cranch, 299. It was a 
question concerning the interpretation of the Constitution 
in relation to the power which the Congress had to assign to 
the judges of the Supreme Court circuit duties. From that 
time down to the decision in the case of Cooley v. The Port 
Wardens of Philadelphia, reported in 12 How. 315, — a 
period of more than half a century, — there has been a series 
of decisions upon the effect of such a contemporaneous con- 
struction of the Constitution, followed by such a practice in 
accordance with it ; and it is now a fixed and settled rule, 
which I think no lawyer will undertake to controvert, that 
the effect of such a construction is not merely to give weight 
to an argument, but to fix an interpretation. And accord- 
ingly it will be found, by looking into the books written by 
those who were conversant with this subject, that they have 
so considered and received it. I beg leave to refer to the 
most eminent of all the commentators on American law, 
and to read a line or two from Chancellor Kent's Lectures, 
found in the first volume, page 310, marginal paging. After 
considering this subject, — and it should be noted in refer- 
ence to this very learned and experienced jurist considering 
it in an unfavorable light, because he himself thought that 
as an original question it had better have been settled the 
other way, that it would have been more logical, more in con- 
formity with his views of what the practical needs of the 
Government were, that the Senate should participate with 



DEFENCE OF PRESIDENT JOHNSON. 373 

the President in the power of removal : nevertheless, he sums 
it all up in these words : — 

This amounted to a legislative construction of the Constitution, 
and it has ever since been acquiesced in and acted upon as of 
decisive authority in the case. It applies equally to every other 
officer of the Government appointed by the President and Senate, 
whose term of duration is not specially declared. It is supported 
by the weighty reason that the subordinate officers in the executive 
department ought to hold at the pleasure of the head of that depart- 
ment, because he is invested generally with the executive authority ; 
and every participation in that authority by the Senate was an 
exception to the general principle, and ought to be taken strictly. 
The President is the great responsible officer for the faithful ex- 
ecution of the law, and the power of removal was incidental to 
that duty, and might often be requisite to fulfil it. 

This, I believe, will be found to be a fair expression of 
the opinions of those who have had occasion to examine this 
subject in their closets as a matter of speculation. 

In this case, however, the President of the United States 
had to consider not merely the general question where this 
power was lodged, not merely the effect of this decision 
made in 1789, and the practice of the Government under it 
since, but he had to consider a particular law, the provisions 
of which were before him, and might have an application 
to the case on which he felt called on to act; and it is 
necessary, in order to do justice to the President in refer- 
ence to this matter, to see what the theory of that law 
is, and what its operation is or must be, if any, upon the 
case which he had before him ; namely, the case of Mr. 
Stanton. 

During the debate in 1789 there were three distinct 
theories held by different persons in the House of Repre- 
sentatives. One was that the Constitution had lodged the 
power of removal with the President alone ; another was 
that the Constitution had lodged that power with the Pres- 
ident, acting with the advice and consent of the Senate ; the 



374 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

third was that the Constitution had lodged it nowhere, but 
had left it to the legislative power, to be acted upon in con- 
nection with the prescription of the tenure of office. The 
last of these theories was at that day held by comparatively 
few persons. The first two received not only much the 
greater number of votes, but much the greater weight of 
reasoning in the course of that debate ; so much so, that 
when this subject came under the consideration of the 
Supreme Court of the United States, in the case of Ex parte 
Hennan, collaterally only, Mr. Justice Thompson, who de- 
livered the opinion of the court on that occasion, says that 
it has never been doubted that the Constitution had lodged 
the power either in the President alone or in the President 
and Senate, — certainly an inaccuracy ; but then it required 
a very close scrutiny of the debates, and a careful examina- 
tion of the few individual opinions expressed in that debate, 
in that direction, to ascertain that it ever had been doubted 
that, one way or the other, the Constitution settled the 
question. 

Nevertheless, as I understand it, — I may be mistaken in 
this, — but, as I understand it, it is the theory of this law 
which the President had before him that both these opin- 
ions were wrong: that the Constitution has not lodged 
the power anywhere ; that it has left it as an incident to 
the legislative power, which incident may be controlled, of 
course, by the legislature itself, according to its own will ; 
because, as Chief Justice Marshall somewhere remarks (and 
it is one of those profound remarks which will be found to 
have been carried by him into many of his decisions), when 
it comes to a question whether a power exists, the particu- 
lar mode in which it may be exercised must be left to the 
will of the body that possesses it ; and, therefore, if this be 
a legislative power, it was very apparent to the President 
of the United States, as it had been very apparent to Mr. 
Madison, as was declared by him in the course of his cor- 
respondence with Mr. Coles, which is, no doubt, familiar to 



DEFENCE OF PKESIDENT JOHNSON. 375 

senators, that, if this be a legislative power, the legislature 
may lodge it in the Senate, may retain it in the whole body 
of Congress, or may give it to the House of Representatives. 
I repeat, the President had to consider this particular law ; 
and that, as I understand it, is the theory of that law. I do 
not undertake to say it is an unfounded theory ; I do not 
undertake to say that it may not be maintained success- 
fully ; but I do undertake to say that it is one which was 
originally rejected by the ablest minds that had this subject 
under consideration in 1789 ; that, whenever the question 
has been started since, it has had, to a recent period, very 
few advocates ; and that no fair and candid mind can deny 
that it is capable of being doubted and disbelieved after 
examination. It may be the truth, after all ; but it is not 
a truth which shines with such clear and certain light that 
a man is guilty of a crime because he does not see it. 

The President not only had to consider this particular 
law, but he had to consider its constitutional application to 
this particular case, supposing the case of Mr. Stanton to 
be, what I have endeavored to argue it was not, within its 
terms. Let us assume, then, that his case was within its 
terms ; let us assume that this proviso, in describing the 
cases of Secretaries, described the case of Mr. Stanton ; 
that Mr. Stanton, having been appointed by President Lin- 
coln in January, 1862, and commissioned to hold during the 
pleasure of the President, by force of this law acquired a 
right to hold this office against the will of the President 
down to April, 1869. Now, there is one thing which has 
never been doubted under the Constitution, — is incapable of 
being doubted, allow me to say, — and that is that the Presi- 
dent is to make the choice of officers. Whether, having 
made the choice, and they being inducted into office, they 
can be removed by him alone, is another question. But to 
the President alone is confided the power of choice. In the 
first place, he alone can nominate. When the Senate has 
advised the nomination, consented to the nomination, he is 



376 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

not bound to commission the officer. He has a second op- 
portunity for consideration, and acceptance or rejection of 
the choice he had originally made. On this subject, allow 
me to read from the opinion of Chief Justice Marshall, in 
the case of Marbury v. Madison, where it is expressed more 
clearly than I can express it. After enumerating the dif- 
ferent clauses of the Constitution which bear upon this 
subject, he says : — 

These are the clauses of the Constitution and laws of the United 
States which affect this part of the case. They seem to contemplate 
three distinct operations : — 

1. The nomination. This is the sole act of the President, and is 
completely voluntary. 

2. The appointment. This is also the act of the President, and 
is also a voluntary act, though it can only be performed by and 
with the advice and consent of the Senate. 

3. The commission. To grant a commission to a person ap- 
pointed might perhaps be deemed a duty enjoined by the Consti- 
tution. " He shall," says that instrument, " commission all the 
officers of the United States." 1 Cranch, 155. 

He then goes into various considerations to show that 
it is not a duty enjoined by the Constitution ; that it is 
optional with him whether he will commission even after 
an appointment has been confirmed, and he says : — 

The last act to be done by the President is the signature of the 
commission. He has then acted on the advice and consent of the 
Senate to his own nomination. The time for deliberation has then 
passed. He has decided. His judgment, on the advice and con- 
sent of the Senate concurring with his nomination, has been made, 
and the officer is appointed. Ibid., 157. 

The choice, then, is with the President. The action of 
the Senate upon that choice is an advisory action only at a 
particular stage after the nomination, before the appoint- 
ment or the commission. Now, as I have said before, Mr. 
Stanton was appointed under the law of 1789, constituting 
the "War Department ; and, in accordance with that law, he 



DEFENCE OE PRESIDENT JOHNSON. 377 

was commissioned to hold during the pleasure of the Presi- 
dent. President Lincoln had said to the Senate, " I nomi- 
nate Mr. Stanton to hold the office of Secretary for the 
Department of War during the pleasure of the President." 
The Senate had said, " We assent to Mr. Stanton's holding 
the office of Secretary for the Department of War during 
the pleasure of the President." What does this tenure-of- 
office law say, if it operates on the case of Mr. Stanton? 
It says, Mr. Stanton shall hold office against the will of the 
President, contrary to the terms of his commission, contrary 
to the law under which he was appointed, down to the 4th 
of April, 1869. For this new, fixed, and extended term, 
where is Mr. Stanton's commission? Who has made the 
appointment ? Who has assented to it ? It is a legislative 
commission ; it is a legislative appointment ; it is assented 
to by Congress, acting in its legislative capacity. The 
President has had no voice in the matter. The Senate, 
as the advisers of the President, have had no voice in the 
matter. If he holds at all, he holds by force of legislation, 
and not by any choice made by the President, or assented 
to by the Senate. And this was the case, and the only 
case, which the President had before him, and on which he 
was called to act. 

Now, I ask senators to consider whether, for having 
formed an opinion that the Constitution of the United 
States had lodged this power with the President, — an 
opinion which he shares with every President who has pre- 
ceded him, with every Congress which has preceded the 
last ; an opinion formed on the grounds which I have im- 
perfectly indicated ; an opinion which, when applied to this 
particular case, raises the difficulties which I have indicated 
here, arising out of the fact that this law does not pursue 
either of the opinions which were originally held in this 
Government, and have occasionally been started and main- 
tained by those who are restless under its administration ; 
an opinion thus supported by the practice of the Govern- 



378 PROFESSIONAL AND MISCELLANEOUS WHITINGS. 

ment from its origin down to Ms own day, — is he to be 
impeached for holding that opinion? If not, if he might 
honestly and properly form such an opinion under the lights 
which he had, and with the aid of the advice which we shall 
show you he received, then is he to be impeached for act- 
ing upon it to the extent of obtaining a judicial decision 
whether the executive department of the Government was 
right in its opmion, or the legislative department was right 
in its opinion? Strangely enough, as it struck me, the 
honorable managers themselves say, "No: he is not to be 
impeached for that." I beg leave to read a passage from 
the argument of the honorable manager by whom the 
prosecution was opened : — 

If the President had really desired solely to test the constitu- 
tionality of the law or his legal right to remove Mr. Stanton, 
instead of his defiant message to the Senate of the 2 1 st of Feb- 
ruary, informing them of the removal, but not suggesting this pur- 
pose, which is thus shown to be an afterthought, he would have 
said, in substance : " Gentlemen of the Senate, in order to test the 
constitutionality of the law entitled ' An Act regulating the tenure 
of certain civil offices,' which I verily believe to be unconstitutional 
and void, I have issued an order of removal of E. M. Stanton from 
the office of Secretary of the Department of War. I felt myself 
constrained to make this removal, lest Mr. Stanton should answer 
the information in the nature of a quo warranto, which I intend 
the Attorney- General shall file at an early day, by saying that he 
holds the office of Secretary of War by the appointment and au- 
thority of Mr. Lincoln, which has never been revoked. Anxious 
that there shall be no collision or disagreement between the several 
departments of the Government and the Executive, I lay before 
the Senate this message, that the reasons for my action, as well 
as the action itself, for the purpose indicated, may meet your 
concurrence.'' 

Thus far are marks of quotation showing the communica- 
tion which the President should have obtained from the 
honorable manager and sent to the Senate, in order to make 
this matter exactly right. Then follows this : — 



DEFENCE OF PRESIDENT JOHNSON". 379 

Had the Senate received such a message, the representatives of 
the people might never have deemed it necessary to impeach the 
President for such an act, to insure the safety of the country, even 
if they had denied the accuracy of his legal positions. 

So it seems that it is, after all, not the removal of Mr. 
Stanton, but the manner in which the President com- 
municated the fact of that removal to the Senate after it 
was made. That manner is here called the " defiant mes- 
sage " of the 21st of February. That is a question of taste. 
I have read the message, as you all have read it. If you can 
find any thing in it that is not decorous and respectful to 
this body and to all concerned, your taste will differ from 
mine. But, whether it be a point of manners well or ill 
taken, one thing seems to be quite clear: that the Presi- 
dent is not impeached here, because he entertained an opin- 
ion that this law was unconstitutional ; he is not impeached 
here, because he acted on that opinion and removed Mr. 
Stanton ; but he is impeached here, because the House of 
Representatives considers that this honorable body was ad- 
dressed by a "defiant message," when they should have 
been addressed in the terms which the honorable manager 
has dictated. 

I now come, Mr. Chief Justice and senators, to another 
topic connected with this matter of the removal of Mr. 
Stanton and the action of the President under this law. 
The honorable managers take the ground, among others, 
that whether upon a true construction of this tenure-of- 
office act Mr. Stanton be within it, or even if you should 
believe that the President thought the law unconstitutional, 
and had a right, if not trammelled in some way, to try that 
question, still by his own conduct and declarations the 
President is estopped, as they phrase it. He is not to be 
permitted here to assert the true interpretation of this law ; 
he is not to be permitted to allege that his purpose was to 
raise a question concerning its constitutionality; and the 
reason is that he has done and said certain things. All of 



380 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

us who have. read law-books know that there is in the com- 
mon law a doctrine called rules of estoppel, founded, un- 
doubtedly, on good reason, although, as they are called from 
the time of Lord Coke, or even earlier, down to the present 
day, odious, because they shut out the truth. Nevertheless, 
there are circumstances when it is proper that the truth 
should be shut out. What are the circumstances ? They 
are where a question of private right is involved ; where on 
a matter of fact that private right depends, and where one 
of the parties to bhe controversy has so conducted himself 
that he ought not in good conscience to be allowed either 
to assert or deny that matter of fact. 

But did any one ever hear of an estoppel on a matter of 
law ? Did any one ever hear that a party had put himself 
into such a condition that, when he came into a court of jus- 
tice even to claim a private right, he could not ask the 
judge correctly to construe a statute, and insist on the con- 
struction when it was arrived at in his favor? Did any- 
body ever hear, last of all, that a man was convicted of 
crime by reason of an estoppel, under any system of law that 
ever prevailed in any civilized State ? That the President 
of the United States should be impeached and removed 
from office, not by reason of the truth of his case, but 
because he is estopped from telling it, would be a spectacle 
for gods and men. Undoubtedly, it would have a place in 
history which it is not necessary for me to attempt to 
foreshadow. 

There is no matter of fact here. They have themselves 
put in Mr. Stanton's commission, which shows the date of 
the commission and the terms of the commission ; and that 
is the whole matter of fact which is involved. The rest is 
the construction of the tenure-of-office act and the applica- 
tion of it to the case, which they have thus made them- 
selves ; and also the construction of the Constitution of the 
United States, and the abstract public question whether 
that has lodged the power of removal with the President 



DEFENCE OF PRESIDENT JOHNSON. 381 

alone, or with the President and Senate, or left it to Con- 
gress. I respectfully submit, therefore, that the ground is 
untenable that there can be an estoppel by any conduct of 
the President, who comes here to assert, not a private right, 
but a great public right confided to the office by the people, 
in which, if anybody is estopped, the people will be es- 
topped. The President never could do or say any thing 
which would put this great public right into that extraor- 
dinary predicament. 

But ,what has he done ? What are the facts upon which 
they rely out of which to work this estoppel, as they call it ? 
In the first place, he sent a message to the Senate on the 
12th of December, 1867, in which he informed the Senate 
that he had suspended Mr. Stanton by a certain order, a 
copy of which he gave; that he had appointed General 
Grant to exercise the duties of the office ad interim by a 
certain other order, a copy of which he gave ; and then he 
entered into a discussion, in which he showed the existence 
of this question, whether Mr. Stanton was within the tenure- 
of-office bill ; the existence of the other question, whether 
this was or was not a constitutional law ; and then he in- 
voked the action of the Senate. There was nothing mis- 
represented. There was nothing concealed which he was 
bound to state. It is complained of by the honorable 
managers that he did not tell the Senate that, if their action 
should be such as to restore Mr. Stanton practically to the 
possession of the office, he should go to law about it. That 
is the complaint : that he did not tell that to the Senate. 
It may have been a possible omission, though I rather think 
not. I rather think that that good taste which is so preva- 
lent among the managers, and which they so insist upon 
here, would hardly dictate that the President should have 
held out to the Senate something which might possibly have 
been construed into a threat upon that subject. He laid 
the case before the Senate for their action ; and now, for- 
sooth, they say he was too deferential to this law, both 



382 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

by reason of this conduct of his. and also what he did upon 
other occasions, to which I shall presently advert. 

Senators, there is no inconsistency in the President's 
position or conduct in reference to this matter. Suppose 
this case : a party who has a private right in question sub- 
mits to the same -tribunal in the same proceeding these 
questions : first, I deny the constitutionality of the law under 
which the right is claimed against me ; second, I assert that 
the true interpretation of that law will not affect this right 
which is claimed against me ; third, I insist that, even if it is 
within the law, I make a case within the law, — is there any 
inconsistency in that ? Is not that done every day, or some- 
thing analogous to it, in courts of justice? And where was the 
inconsistency on this occasion ? Suppose the President had 
summed up the message which he sent to the Senate in this 
way : " Gentlemen of the Senate, I insist, in the first place, 
that this law is unconstitutional; I insist, in the second 
place, that Mr. Stanton is not within it; I respectfully 
submit for your consideration whether, if it be a con- 
stitutional law and Mr. Stanton's case be within it, the 
facts which I present to you do not make such a case that 
you will not advise me to receive him back into office." 
Suppose he had summed up in that way, would there have 
been any inconsistency then? And why is not the sub- 
stance of that found in this message ? Here it is pointed 
out that the question existed whether the law was unconsti- 
tutional; here it is pointed out that the question existed 
whether Mr. Stanton was within the law; and then the 
President goes on to submit for the consideration of the 
Senate — who, he had reason to believe, and did believe, 
thought the law was constitutional, though he had no reason 
to believe that they thought Mr. Stanton was within the 
law — the facts to be acted upon within the law, if the case 
was there. It seems the President has not only been thus 
anxious to avoid a collision with this law : he has not only 
on this occasion taken this means to avoid it, but it seems 



DEFENCE OF PRESIDENT JOHNSON. 383 

that lie has actually in some particulars obeyed the law ; he 
has made changes in the commissions, or rather they have 
been made in the departments, and, as he has signed the 
commissions, I suppose they must be taken, although his 
attention does not appear to have been called to the subject 
at all, to have been made "with his sanction, just so far, and 
because he sanctions that which is done by his secretaries, 
if he does not interfere actively to prevent it. 

He has done not merely this, but he has also in several 
cases — four cases : three collectors and one consul, I think 
they are — sent into the Senate notice of suspension, notice 
that he had acted under this law, and suspended these 
officers. This objection proceeds upon an entire misappre- 
hension of the position of the President and of the views 
which he has of his own duty. It assumes that, because 
when the emergency comes, as it did come in the case of Mr. 
Stanton, when he must act or else abandon a power which 
he finds in the particular instance it is necessary for him to 
insist upon, in order to carry on the Government, — that 
because he holds that opinion, he must run a muck against 
the law, and take every possible opportunity to give it a 
blow, if he can. He holds no such opinion. 

So long as it is a question of administrative duty merely, 
he holds that he is bound to obey the law. It is only when 
the emergency arises, when the question is put to him so 
that he must answer it : " Can yoU carry on this department 
of the Government any longer in this way?" "No." 
" Have you power to carry it on as the public service de- 
mands?" "I believe I have." Then comes the question 
how he shall act. But whether a consul is to be suspended 
or removed, whether a defaulting collector is to be sus- 
pended or removed, does not involve the execution of the 
great powers of the Government. It may be carried on : 
he may be of opinion with less advantage, he may be of 
opinion not in accordance with the requirements of the 
Constitution, but it may be carried on without serious em- 



384 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

barrassment or difficulty. Until that question is settled, 
he does not find it necessary to make it, — settled in some 
way, by some person who has an interest to raise and have 
it settled. 

I wish to observe also (the correctness of which obser- 
vation I think the Senate will agree with) that these 
changes which have been made in the forms of the commis- 
sions really have nothing to do with this subject; for 
instance, the change is made in the Department of State, 
"subject to the conditions prescribed by law." That is the 
tenure on which I think all commissions should originally 
have run, and ought to continue to run. It is general 
enough to embrace all. If it is a condition prescribed by 
law that the Senate must consent to the removal of the in- 
cumbent before .he is rightfully out of office, it covers that 
case. If the tenure-of-office bill be not a law of the land 
because it is not in accordance with the Constitution, it 
covers that case. It covers every case necessarily from 
its terms ; for every officer does, and should, and must hold 
subject to the conditions prescribed by law, — not neces- 
sarily a law of Congress, but a law of the land, — the Con- 
stitution being supreme in that particular. 

There is another observation, also ; and that is that the 
change that was made in the Department of the Treasury — 
" until a successor be appointed and qualified " — has mani- 
festly nothing whatever to do with the subject of removal. 
Whether the power of removal be vested in the President 
alone, or vested in the President by and with the advice and 
consent of the Senate, this clause does not touch it. It is just 
as inconsistent with removal by the President with the con- 
sent of the Senate as it is inconsistent with the removal by the 
President alone. In other words, it is the general tenure 
of the office which is described, according to which the 
officer is to continue to hold ; but he and all other officers 
hold subject to some power of removal vested somewhere, 
and this change which has been made in the commission 



DEFENCE OP PRESIDENT JOHNSON. 385 

does not declare where it is vested, nor has it any influence 
on the question in whom it is vested. 

I wish to add to this, that there is nothing, so far as I 
see, on this subject of estoppel, growing out of the action of 
the President, either in sending the message to the Senate 
of the twelfth of December, or in the changes in the com- 
missions, or in his sending to the Senate notices of suspen- 
sions of different officers, which has any bearing whatever 
upon the tenure-of-office act as affecting the case of Mr. 
Stanton. That is a case that stands by itself. The law 
may be a constitutional law ; it may not only be a law 
under which the President has acted in this instance, but 
under which he is bound to act, and is willing to act, if you 
please, in every instance : still, if Mr. Stanton is not within 
that law, the case remains as it was originally presented ; 
and that case is that, not being within that law, the first 
article is entirely without foundation. 

I now, Mr. Chief Justice, have arrived at a point in my 
argument when, if it be within the pleasure of the Senate 
to allow me to suspend it, it will be a boon to me to do so. 
I am unaccustomed to speak in so large a room, and it is 
fatiguing to me. Still, I would not trespass at all upon 
the wishes of the Senate, if they desire me to proceed 
further. 

Mr. Johnson. I move that the court adjourn until 
to-morrow at twelve o'clock. 

The motion was agreed to; and the Senate, sitting for 
the trial of the impeachment, adjourned. 



Friday, April 10, 1868. 
The Chief Justice of the United States entered the 
Senate Chamber at 12 o'clock, and took the chair. 

The usual proclamation having been made by the Ser- 
geant-at-arms, — 

The managers of the impeachment on the part of the 
vol. ii. 25 



386 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

House of Representatives appeared, and took the seats 
assigned them. 

The counsel for the respondent also appeared, and took 
their seats. 

The presence of the House of Representatives was next 
announced ; and the members of the House, as in Commit- 
tee of the Whole, headed by Mr. E. B. Washburne, the 
Chairman of that Committee, and accompanied by the 
Speaker and Clerk, entered the Senate Chamber, and were 
conducted to the seats provided for them. 

The Chief Justice. The Secretary will read the min- 
utes of the last day's proceedings. 

The Secretary read the journal of yesterday's proceedings 
of the Senate sitting for the trial of the impeachment. 

The Chief Justice. Senators will please to give their 
attention. The counsel for the President will proceed with 
the argument. 

Mr. Curtis. Mr. Chief Justice and senators, among the 
points which I accidentally omitted to notice yesterday was 
one which seems to me of sufficient importance to return, 
and for a few moments to ask the attention of the Senate, 
to it. It will best be exhibited by reading from Saturday's 
proceedings a short passage. In the course of those pro- 
ceedings, Mr. Manager Butler said : — 

It will be seen, therefore, Mr. President and senators, that the 
President of the United States says in his answer that he sus- 
pended Mr. Stanton under the Constitution, indefinitely and at his 
pleasure. I propose, now, unless it be objected to, to show that 
that is false under his own hand ; and I have his letter to that effect, 
which, if there is no objection, I will read, the signature of which 
was identified by C. E. Creecy. 

Then followed the reading of the letter, which was 
this : — 

Executive Mansion, 
Washington, D. C, Aug. 14, 1867. 

Sir, — In compliance with the requirements of the eighth sec- 
tion of the act of Congress of March 2, 1867, entitled " An Act 



DEFENCE OF PRESIDENT JOHNSON. 387 

regulating the tenure of certain civil offices," you are hereby noti- 
fied that on the 12th instant Hon. Edwin M. Stanton was sus- 
pended from office as Secretary of War, and General Ulysses S. 
Grant authorized and empowered to act as Secretary of War ad 
interim. 

I am, sir, very respectfully yours, 

Andrew Johnson. 

This is the letter which was to show, under the hand of 
the President, that when he said in his answer he did not 
suspend Mr. Stanton by virtue of the tenure-of-office act, 
that statement was a falsehood. Allow me now to read the 
eighth section of that act : — 

That whenever the President shall, without the advice and con- 
sent of the Senate, designate, authorize, or employ any person to 
perform the duties of any office, he shall forthwith notify the Sec- 
retary of the Treasury thereof ; and it shall be the duty of the 
Secretary of the Treasury thereupon to communicate such notice 
to all the proper accounting and disbursing officers of his depart- 
ment. 

The Senate will perceive that this section has nothing to 
do with the suspension of an officer, and no description of 
what suspensions are to take place ; but the purpose of the 
section is that if in any case the President, without the 
advice and consent of the Senate, shall under any circum- 
stances designate a third person to perform temporarily the 
duties of an office, he is to make a report of that designa- 
tion to the Secretary of the Treasury, and that officer is to 
give the necessary information of the event to his subordi- 
nate officers. The section applies in terms to and includes 
all cases. It applies to and includes cases of designation on 
account of sickness or absence or resignation, or any cause 
of vacancy, whether temporary or permanent, and whether 
occurring by reason of a suspension or of a removal from 
office ; and, therefore, when the President says to the Sec- 
retary of the Treasury, " I give you notice that I have des- 
ignated General Grant to perform the duties ad interim of 



388 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

Secretary of "War," lie makes no allusion, by force of that 
letter, to the manner in which that vacancy has occurred 
or the authority by which it has been created ; and hence, 
instead of this letter showing, under the President's own 
hand, that he had stated a falsehood, it has no reference to 
the subject-matter of the power or the occasion of Mr. 
Stanton's removal. 

Mr. Manager Butler. Read the second section, please ; 
the first clause of it. 

Mr. Curtis. What did the manager call for ? 

Mr. Manager Butler. Read the first clause of the 
second section of the act, which says that in no other case 
except when he suspends shall he appoint. 

Mr. Curtis. The second section provides : — 

That when any officer appointed as aforesaid, excepting judges 
of the United States courts, shall, during a recess of the Senate, 
be shown by satisfactory evidence, &c. 

The President is allowed to suspend such an officer. 
Now, the President states in his answer that he did not act 
under that section. 

Mr. Manager Butler. That is not reading the section. 
That is not what I desired. 

Mr. Curtis. I am aware that is not reading the section, 
Mr. Manager. You need not point that out. It is a very 
long section, and I do not propose to read it. 

Mr. Manager Butler. The first half a dozen lines. 

Mr. Curtis. This second section authorizes the Presi- 
dent to suspend in cases of crime and other cases which are 
described in this section. By force of it, the President 
may suspend an officer. This eighth section applies to all 
cases of temporary designations and appointments, whether 
resulting from suspensions under the second section, or 
whether arising from temporary absence, or sickness or 
death or resignation : no matter what the cause may be, if 
for any reason there is a temporary designation of a person 



DEFENCE OF PRESIDENT JOHNSON. 389 

to supply an office ad interim, notice is to be given to the 
Secretary of the Treasury ; and therefore I repeat, senators, 
that the subject-matter of this eighth section, and the letter 
which the President wrote in consequence of it, have no 
reference to the question under what authority he suspended 
Mr. Stanton. 

I now ask the attention of the Senate to the second arti- 
cle in the series ; and I will begin, as I began before, by 
stating what the substance of this article is, what allega- 
tion it makes, so as to be the subjects of proof; and then 
the Senate will be prepared to see how far each one of these 
allegations is supported by what is already in the case, and 
I shall be enabled to state what we propose to offer by way 
of proof in respect to each of them. The substantive alle- 
gations of this second article are that the delivery of the 
letter or authority to General Thomas was without author- 
ity of law; that it was an intentional violation of the 
tenure-of-office act ; that it was an intentional violation of 
the Constitution of the United States ; that the delivery of 
this order to General Thomas was made with intent to vio- 
late both the act and the Constitution of the United States. 
That is the substance of the second article. The Senate 
will at once perceive that if the suspension of Mr. Stanton 
was not a violation of the tenure-of-office act in point of 
fact, or, to state it in other terms, if the case of Mr. Stan- 
ton is not within the act, then his removal, if he had been 
removed, could not be a violation of the act. 

If his case is not within the act at all, if the act does not 
apply to the case of Mr. Stanton, of course his removal is 
not a violation of that act. If Mr. Stanton continued to 
hold under the commission which he received from Presi- 
dent Lincoln, and his tenure continued to be under the act 
of 1789, and under his only commission, which was at the 
pleasure of the President, it was no violation of the tenure- 
of-office act for Mr. Johnson to remove, or attempt to 
remove, Mr. Stanton; and therefore the Senate will per- 



390 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

ceive that it is necessary to come back again, to recur under 
this article, as it will be necessary to recur under the whole 
of the first eight articles, to the inquiries, first, whether Mr. 
Stanton's case was within the tenure-of-office act ; and, sec- 
ondly, whether it was so clearly and plainly within that act 
that it can be attributed to the President as a high misde- 
meanor that he construed jt not to include his case. But 
suppose the case of Mr. Stanton is within the tenure-of- 
office act, still the inquiry arises whether what was done in 
delivering this letter of authority to General Thomas was a 
violation of that act ; and that renders it necessary that I 
should ask your careful attention to the general subjects- 
matter of this act, and the particular provisions which are 
inserted in it in reference to each of those subjects. 

Senators will recollect undoubtedly that this law, as it 
was finally passed, differs from the bill as it was originally 
introduced. The law relates to two distinct subjects. One 
is removal from office : the other subject is appointments of 
a certain character made under certain circumstances to fill 
offices. It seems that a practice had grown up under the 
Government that where a person was nominated to the 
Senate to fill an office, and the Senate either did not act on 
his nomination during their session or rejected the nomina- 
tion, after the adjournment of the Senate and in the recess 
it was considered competent for the President by a tempo- 
rary commission to appoint that same person to that same 
office ; and that was deemed by many senators — unques- 
tionably by a majority, and I should judge from reading 
the debates by a large majority of the Senate — to be an 
abuse of power, not an intentional abuse. But it was a 
practice which had prevailed under the Government to a 
very considerable extent. It was not limited to very recent 
times. It had been supported by the opinions of different 
Attorneys-General given to different Presidents. But still 
it was considered by many senators to be a departure from 
the spirit of the Constitution, and a substantial derogation 



DEFENCE OF PRESIDENT JOHNSON. 391 

from the just power of the Senate in respect to nominations 
for office. That being so, it will be found on an examina- 
tion of this law that the first and second sections of the act 
relate exclusively to removals from office and temporary 
suspensions in the recess of the Senate; while the third 
section and several of the following sections, to which I 
shall ask your particular attention, relate exclusively to this 
other subject of appointments made to office after the Sen- 
ate had refused to concur in the nomination of the person 
appointed. Allow me now to read from the third sec- 
tion : — 

That the President shall have power to fill all vacancies which 
may happen during the recess of the Senate, by reason of death or 
resignation. 

I pause here to remark that this does not include all cases. 
It does not include any case of the expiration of a commis- 
sion. It includes simply death and resignation, not cases 
of the expiration of a commission during the recess of the 
Senate. Why these were thus omitted I do not know ; but it 
is manifest that the law does not affect to — and in point of 
fact does not — cover all cases which might arise belonging to 
this general class to which this section was designed to refer. 

The law goes on to say : — 

That the President shall have power to fill all vacancies which 
may happen during the recess of the Senate, by reason of death or 
resignation, by granting commissions which shall expire at the end 
of their next session thereafter. And if no appointment, by and 
with the advice and consent of the Senate, shall be made to such 
office so vacant or temporarily filled as aforesaid during such next 
session of the Senate, such office shall remain in abeyance, without 
any salary, fees, or emoluments attached thereto, until the same 
shall be filled by appointment thereto, by and with the advice and 
consent of the Senate ; and during such time all the powers and 
duties belonging to such office shall be exercised by such other 
officer as may by law exercise such powers and duties in case of a 
vacancy in such office. 



392 PROFESSIONAL AND MISCELLANEOUS WHITINGS. 

Here all the described vacancies in office occurring dur- 
ing the recess of the Senate, and the failure to fill those 
vacancies in accordance with the advice of the Senate, 
are treated as occasioning an abeyance of such offices. 
That applies, as I have said, to two classes of cases, — 
vacancies happening by reason of death or resignation. It 
does not apply to any otheK vacancies. 

The next section of this law does not relate to this sub- 
ject of filling offices, but to the subject of removals : — 

That nothing in this act contained shall be construed to extend 
the term of any office the duration of which is limited by law. 

Tbe fifth section is : — 

That if any person shall, contrary to the provisions of this act, 
accept any appointment to, or employment in, any office, or shall 
hold or exercise, or attempt to hold or exercise, any such office or 
employment, he shall be deemed, and is hereby declared to be, 
guilty of a high misdemeanor, and, upon trial and conviction 
thereof, he shall be punished therefor by a fine not exceeding 
$10,000, or by imprisonment, &c. 

Any person who shall, " contrary to the provisions of this 
act," accept any appointment. What are the " provisions 
of this act" in respect to accepting any appointment? 
They are found in the third section of the act putting cer- 
tain offices in abeyance under the circumstances which are 
described in that section. If any person does accept an 
office which is thus put into abeyance, or any employment 
or authority in respect to such office, he comes within the 
penal provisions of the fifth section ; but outside of that 
there is no such thing as accepting an office contrary to the 
provisions of the act, because the provisions of the act, in 
respect to filling offices, extend no further than to these 
cases ; and so in the next section it is declared : — 

That every removal, 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 



DEFENCE OF PRESIDENT JOHNSON. 393 

letter of authority for or in respect to any such appointment or em- 
ployment, shall he deemed, and are hereby declared to be, high 
misdemeanors, &c. 

Here, again, the making of a letter of authority contrary to 
the provisions of the act can refer only to those cases which 
the act itself has described, which the act itself has pro- 
hibited; and any other cases which are outside of such 
prohibition, as this case manifestly is, do not come within 
its provisions. 

The stress of this article, however, does not seem to me 
to depend at all upon this question of the construction of 
this law, but upon a totally different matter, which I agree 
should be fairly and carefully considered. The important 
allegation of the article is that this letter of authority was 
given to General Thomas, enabling him to perform the 
duties of Secretary of War ad interim without authority 
of law : that I conceive to be the main inquiry which 
arises under this article, provided the case of Mr. Stan- 
ton and his removal are within the tenure-of-office bill 
at all. 

I wish first to bring to the attention of the Senate the act 
of 1795, which is found in 1 Statutes at Large, page 415. 
It is a short act, and I will read the whole of it : — 

That in case of vacancy in the office of Secretary of State, 
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 not in the head thereof, whereby they cannot per- 
form the duties of their said respective offices, it shall be lawful for 
the President of the United States, in case he shall think it neces- 
sary, to authorize any person or persons, at his discretion, to per- 
form the duties of the said respective offices until a successor be 
appointed or such vacancies be filled : provided, that no one 
vacancy shall be supplied in manner aforesaid for a longer term 
than six months. 

This act, it has been suggested, may have been repealed 
by the act of Feb. 20, 1863, which is found in 12 Statutes 



394 PROFESSIONAL AND MISCELLANEOUS "WHITINGS. 

at Large, page 656. This also is a short act, and I will 
trespass on the patience of the Senate by reading it : — 

That 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 the head of any other executive depart- 
ment, or other officer in either of said departments whose appoint- 
ment 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 inability by sickness shall cease : provided, 
that no one vacancy shall be supplied in manner aforesaid for a 
longer term than six months. 

These acts, as the Senate will perceive, although they 
may be said in some sense to relate to the same general 
subject-matter, contain very different provisions, and the later 
law contains no express repeal of the other. If, therefore, the 
later law operates, as a repeal, it is only as a repeal by impli- 
cation. It says in terms that " all acts and parts of acts incon- 
sistent with this act are hereby repealed." That a general 
principle of law would say, if the statute did not speak those 
words. The addition of those words adds nothing to its 
repealing power. The same inquiry arises under them that 
would arise if they did not exist ; namely, how far is this 
later law inconsistent with the provisions of the earlier 
law? 

There are certain rules which I shall not fatigue the 
Senate by citing cases to prove, because every lawyer will 
recognize them as settled rules upon this subject. 

In the first place, there is a rule that repeals by implica- 
tion are not favored by the courts. This is, as I understand 
it, because the courts act on the assumption or the principle 
that, if the legislature really intended to repeal the law, they 
would have said so ; not that they necessarily mast say so, 



DEFENCE OF PRESIDENT JOHNSON. 395 

because there are repeals by implication: but the pre- 
sumption is that, if the legislature entertained a clear and 
fixed purpose to repeal a former law, they would be likely 
at least to have said so ; and, therefore, the rule is a settled 
one that repeals by implication are not favored by the 
courts. Another rule is that the repugnancy between the 
two statutes must be clear. It is not enough that under 
some circumstances one may possibly be repugnant to the 
other. The repugnancy, as the language of the books is, 
between the two must be clear ; and, if the two laws can 
stand together, the latter does not impliedly repeal the 
former. If senators have any desire to recur to the author- 
ities on this subject, they will find a sufficient number of 
them collected in Sedgwick on Statute Law, page 126. 

Now, there is no repugnancy whatsoever between these 
two laws, that I can perceive. The act of 1795 applies to 
all vacancies, however created. The act of 1863 applies 
only to vacancies, temporary or otherwise, occasioned by 
death and resignation : removals from office, expiration of 
commissions, are not included. The act of 1795 applies only 
to vacancies ; the act of 1863, to temporary absences or 
sickness. The subject-matter, therefore, of the laws is dif- 
ferent : there is no inconsistency between them ; each may 
stand together and operate upon the cases to which each 
applies ; and, therefore, I submit that, in the strictest view 
which may ultimately be taken of this subject, it is not prac- 
ticable to maintain that the later law repealed altogether 
the act of 1795. But, whether it did or not, I state again 
what I have had so often occasion to repeat before : is it 
not a fair question ? Is it a crime to be on one side of that 
question and not on the other ? Is it a high misdemeanor 
to believe that a certain view taken of the repeal of this 
earlier law by the later one is a sound view? I submit that 
that would be altogether too stringent a rule, even for the 
honorable managers themselves to contend for; and they 
do not, and the House of Representatives does not, contend 



396 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

for any such rule. Their article alleges as matter of fact 
that there was a wilful intention on the part of the Presi- 
dent to issue this letter to General Thomas without authority 
of law, — not on mistaken judgment, not upon an opinion 
which, after due consideration, lawyers might differ about, 
but by reason of a wilful intention to act without author- 
ity ; and that, I submit, from, the nature of the case, cannot 
be made out. 

The next allegation in this article to which I desire to 
invite the attention of the Senate is that the giving of this 
letter to General Thomas during the session of the Senate 
was a violation of the Constitution of the United States. 
That will require your attentive consideration. The Consti- 
tution, as you are well aware, has provided for two modes 
of filling offices. The one is by temporary commissions, 
during the recess of the Senate, when the vacancy happens 
in the recess : the other is by appointment with the advice 
and consent of the Senate, followed by a commission from 
the President. But it very early became apparent to those 
who administered the government that cases must occur to 
which neither of those modes dictated by the Constitution 
would be applicable, but which must be provided for, — 
cases of temporary absence of the head of a department, the 
business of which, especially during the session of Congress, 
must, for the public interest, continue to be administered ; 
cases of sickness ; cases of resignation or removal, — for the 
power of removal, at any rate in that day, was held to be in 
the President; cases of resignation or removal in reference 
to which the President was not, owing to the suddenness of 
the occurrence, in a condition immediately to make a nomi- 
nation to fill the office, or even to issue a commission to fill 
the office, if such vacancy occurred in vacation ; and there- 
fore it became necessary by legislation to supply these 
administrative defects which existed and were not provided 
for by the Constitution. And accordingly, beginning in' 
1792, there will be found to be a series of acts on this sub- 



DEFENCE OF PRESIDENT JOHNSOK. 397 

ject of filling vacancies by temporary or ad interim author- 
ity ; not appointments, not filling vacancies in offices by a 
commission in the recess of the Senate, nor by a commission 
signed by the President in consequence of the advice and 
consent of the Senate, but a mode of designating a particu- 
lar person to perform temporarily the duties of some par- 
ticular office, which otherwise, before the office can be 
filled in accordance with the Constitution, would remain 
unperformed. These acts are : one of May 8, 1792, sect. 8 
(1 Statutes at Large, p. 281) ; Feb. 17, 1795 (1 Statutes at 
Large, p. 415) ; and, last, in Feb. 20, 1863 (12 Statutes 
at Large, p. 656). 

The Senate will observe what particular difficulty these 
laws were designed to meet. This difficulty was the occur- 
rence of some sudden vacancy in office, or some sudden in- 
ability to perform the duties of an office ; and the intention 
of each of these laws was, each being applied to some par- 
ticular class of cases, to make provision that notwithstanding 
there was a vacancy in the office, or notwithstanding there 
was a temporary disability in the officer without a vacancy, 
still the duties of the office should be temporarily discharged. 
That was the purpose of these laws. It is entirely evident 
that these temporary vacancies are just as liable to occur 
during the session of the Senate as during the recess of the 
Senate ; that it is just as necessary to have a set of legisla- 
tive provisions to enable the President to carry on the public 
service in case of these vacancies and inabilities during the 
session of the Senate as during the recess of the Senate ; 
and, accordingly, it will be found, by looking into these 
laws, that they make no distinction between the sessions of 
the Senate and the recesses of the Senate in reference to 
these temporary authorities. " Whenever a vacancy shall 
occur," is the language of the law, — " whenever there shall 
be a death or a resignation or an absence or a sickness." The 
law applies when the event occurs that the law contemplates 
as an emergency ; and the particular time when it occurs is 



398 PROFESSIONAL AND MISCELLANEOUS "WRITINGS. 

of no consequence in itself, and is deemed by the law of 
no consequence. In accordance with this view, senators, 
has been the uniform and settled and frequent practice of the 
Government from its very earliest date, as I am instructed 
we shall prove, not in any one or two or few instances, 
but in great numbers of instance's. That has been the prac- 
tical construction put upon these laws from the time when 
the earliest law was passed, in 1792 ; and it has continued 
down to this day. 

The honorable managers themselves read a list a few days 
since of temporary appointments, during the session of the 
Senate, of heads of departments, which amounted in number, 
if I counted them accurately, to upward of thirty ; and, if 
you add to these the cases of officers below the heads of de- 
partments, the number will be found, of course, to be much 
increased ; and, in the course of exhibiting this evidence, it 
will be found that, although the instances are not numerous, 
— for they are not very likely to occur in practice, — yet 
instances have occurred on all-fours with the one which is 
now before the Senate, where there has been a removal or a 
suspension of an officer, — sometimes one and sometimes the 
other, — and the designation of a person has been made at 
the same time temporarily to discharge the duties of that 
office. 

The Senate will see that in practice such things must 
naturally occur. Take the case, for instance, of Mr. Floyd, 
which I alluded to yesterday. Mr. Floyd went out of office. 
His chief clerk was a person believed to be in sympathy 
with him and under his control. If the third section of the 
act of 1789 was allowed to operate, the control of the office 
went into the hands of that clerk. The Senate was in 
session. The public safety did not permit the War De- 
partment to be left in that predicament for one hour, if it 
could be avoided; and President Buchanan sent down to 
the Post Office Department, and brought the Postmaster- 
General to the War Department, and put it in his charge. 



DEFENCE OP PRESIDENT JOHNSON. 399 

There was then in this body a sufficient number of persons 
to look after that matter. They felt an interest in it, and 
consequently they passed a resolve inquiring of President 
Buchanan by what authority he had made an appointment 
of a person to take charge of the War Department without 
their consent, without a nomination to them, and their ad- 
vising and consenting to it, to which a message was sent in 
answer containing the facts on this subject, and showing to 
the Senate of that day the propriety, the necessity, and the 
long-continued practice under which this authority was ex- 
ercised by him, and giving a schedule running through the 
time of General Jackson and his two immediate successors, 
I think, showing great numbers of ad interim appointments 
of this character, and to those, as I have said, we shall add 
a very considerable number of others. 

I submit, then, that there can be no ground whatever 
for the allegation that this ad interim appointment was 
a violation of the Constitution of the United States. The 
legislation of Congress is a sufficient answer to that charge. 

I pass, therefore, to the next article which I wish to con- 
sider, and that is not the next in number, but the eighth ; 
and I take it in this order, because the eighth article, as I 
have analyzed it, differs from the second only in one par- 
ticular ; and therefore, taking that in connection with the 
second, of which I have just been speaking, it will be neces- 
sary for me to say but a very few words concerning it. 

It charges an attempt unlawfully to control the appro- 
priations made by Congress for the military service, and 
that is all there is in it except what there is in the second 
article. 

Upon that, certainly, at this stage of the case, I do not 
deem it necessary to make any observations. The Senate 
will remember the offer of proof on the part of the mana- 
gers designed, as was stated, to connect the President of 
the United States, through his private secretary, with the 
treasury, and thus enable him to use unlawfully appropria- 



400 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

tions made for the military service. The Senate will rec- 
ollect the fate of that offer, and that the evidence was not 
received ; and, therefore, it seems to me quite unnecessary 
for me to pause to comment any further upon this eighth 
article. 

I advance to the third article, and here the allegations 
are that the President appointed General Thomas; second, 
that he did this without the advice and consent of the Sen- 
ate ; third, that he did it when no vacancy had happened in 
the recess of the Senate ; fourth, that he did it when there 
was no vacancy at the time of the appointment ; and, fifth, 
that he committed a- high misdemeanor by thus intention- 
ally violating the Constitution of the United States. 

I desire to say a word or two upon each of these points ; 
and, first, we deny that he ever appointed General Thomas 
to an office. An appointment can be made to an office 
only by the advice and consent of the Senate, and through 
a commission signed by the President, and bearing the great 
seal of the Government. That is the only mode in which 
an appointment can be made. The President, as I have 
said, may temporarily commission officers when vacancies 
occur during the recess of the Senate. That is not an ap- 
pointment. It is not so termed in the Constitution. A 
clear distinction is drawn between the two. The President 
also may, under the acts of 1795 and 1863, designate per- 
sons who shall temporarily exercise the authority and per- 
form the duties of a certain office when there is a vacancy ; 
but that is not an appointment. The office is not filled by 
such a designation. Now, all which the President did was 
to issue a letter of authority to General Thomas, authoriz- 
ing him ad interim to perform the duties of Secretary of 
War. In no sense was this an appointment. 

It is said it was made without the advice and consent of 
the Senate. Certainly it was. How can the advice and 
consent of the Senate be obtained to an ad interim author- 
ity of this kind under any of these acts of Congress ? It is 



DEFENCE OE PRESIDENT JOHNSON. 401 

not an appointment that is in view. It is to supply tempo- 
rarily a defect in the administrative machinery of the Gov- 
ernment. If he had gone to the Senate for their advice 
and consent, he must have gone on a nomination made by 
him of General Thomas to this office, — a thing he never 
intended to do, and never made any attempt to carry into 
effect. 

It is said no vacancy happened in the recess. That I 
have already considered. Temporary appointments are not 
limited to the temporary supply of vacancies happening in 
the recess of the Senate, as I have already endeavored to 
show. 

It is said there was no vacancy at the time the act was 
done. That is begging the question. If Mr. Stanton's 
case was not within the tenure-of-office act ; if, as I have so 
often repeated, he held under the act of 1789, and at the 
pleasure of the President, the moment he received that 
order which General Thomas carried to him, there was a 
vacancy in point of law, however he may have refused to 
perform his duty and prevented a vacancy from occurring 
in point of fact. But the Senate will perceive these two 
letters were to be delivered to General Thomas at the same 
time. One of them is an order to Mr. Stanton to vacate 
the office : the other is a direction to General Thomas to 
take possession, when Mr. Stanton obeys the order thus 
given. Now, may not the President of the United States 
issue a letter of authority in contemplation that a vacancy 
is about to occur ? Is he bound to take a technical view of 
this subject, and have the order creating the vacancy first 
sent and delivered, and then sit down at his table and sign 
the letter of authority afterward ? If he expects a vacancy, 
if he has done an act which in his judgment is sufficient to 
create a vacancy, may he not, in contemplation that that 
vacancy is to happen, sign the necessary paper to give the 
temporary authority to carry on the duties of the office ? 

Last of all, it is said he committed a high misdemeanor 
vol. ii. 26 



402 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

by intentionally violating the Constitution of the United 
States when he gave General Thomas this letter of author- 
ity. If I have been successful in the argument I have 
already addressed to you, you will be of opinion that in 
point of fact there was no violation of the Constitution of 
the United States by delivering this letter of authority, 
because the Constitution o£ the United States makes no 
provision on the subject of these temporary authorities, and 
the law of Congress has made provision equally applicable 
to the recess of the Senate and to its session. 

Here, also, I beg leave to remind the Senate that if Mr. 
Stanton's case does not fall within the tenure-of-office act, 
if the order which the President gave to him to vacate the 
office was a lawful order and one which he was bound to 
obey, every thing which is contained in this article, as well 
as in the preceding articles, fails. It is impossible, I sub- 
mit, for the honorable managers to construct a case of an 
intention on the part of the President to violate the Consti- 
tution of the United States, out of any thing which he did 
in reference to the appointment of General Thomas, pro- 
vided the order to Mr. Stanton was a lawful order, and Mr. 
Stanton was bound to obey it. 

I advance now, senators, to a different class of articles ; 
and they may properly enough, I suppose, be called the 
conspiracy articles, because they rest upon charges of con- 
spiracy between the President and General Thomas. There 
are four of them, — the fourth, fifth, sixth, and seventh in 
number as they stand. The fourth and the sixth are 
framed under the act of July 31, 1861, which is found in 
12 Statutes at Large, page 284. The fifth and seventh are 
framed under no act of Congress. They allege an unlaw- 
ful conspiracy, but they refer to no law by which the acts 
charged are made unlawful. The acts charged are called 
unlawful, but there is no law referred to and no case made 
by the articles within any law of the United States that is 
known to the President's counsel. I shall treat these arti- 



DEFENCE OF PRESIDENT JOHNSON. 403 

cles, therefore, the fourth and sixth together, and the fifth 
and seventh together, because I think they belong in that 
order. In the first place, let me consider the fourth and 
sixth, which charge a conspiracy within this act which I 
have just mentioned. It is necessary for me to read the 
substance of this law, in order that you may see whether it 
can have any possible application to this case. It was 
passed on the 31st of July, 1861, as a war measure, and is 
entitled " An Act to define and punish certain conspiracies." 
It provides — 

That if two or more persons within any State or Territory of 
the United States shall conspire together to overthrow or to put 
down or to destroy by force the Government of the United States, 
or to levy war against the United States, or to oppose by force the 
authority of the Government of the United States, or by force to 
prevent, hinder, or delay the execution of any law of the United 
States, or by force to seize, take, or possess any property of the 
United States against the will or contrary to the authority of the 
United States, or by force, or intimidation, or threat to prevent 
any person from accepting or holding any office or trust or place 
of confidence under the United States. 

These are the descriptions of the offences. The fourth 
and sixth articles contain allegations that the President and 
General Thomas conspired together, by force, intimidation, 
and threats, to prevent Mr. Stanton from continuing to hold 
the office of Secretary for the Department of War ; and 
also that they conspired together by -force to obtain posses- 
sion of property belonging to the United States. These are 
the two articles which I suppose are designed to be drawn 
under this act; and these are the allegations which are 
intended to bring the articles within it. 

Now, it does seem to me that the attempt to wrest this 
law to any bearing whatsoever upon this prosecution is one 
of the extraordinary things which the case contains. In the 
first place, so far from having been designed to apply to the 
President of the United States, or to any act he might do 



404 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

in the course of the execution of what he believed to be his 
duty, it does not apply to any man or any thing within the 
District of Columbia at all. 

If two or more persons within any State or Territory of the 
United States. 

Not within the District of Columbia. This is a highly 
penal law, and an indictment found in the very words of 
this act charging things to have been done in the District 
of Columbia and returned into the proper court of this Dis- 
trict, I will undertake to say, would not bear a general 
demurrer, because there is locality given to those things 
made penal by this act of Congress. It is made applicable 
to certain portions of the country, but not made applicable 
to the District of Columbia. 

But not to dwell upon that technical view of the matter, 
and on which we should not choose to stand, let us see 
what is this case. The President of the United States is of 
opinion that Mr. Stanton holds the office of Secretary for 
the Department of War at his pleasure. He thinks so, 
first, because he believes the case of Mr. Stanton is not pro- 
vided for in the tenure-of-office act, and no tenure of office 
is secured to him. He thinks so, secondly, because he 
believes that it would be judicially decided, if the question- 
could be raised, that a law depriving the President of the 
power of removing such an officer at his pleasure is not a 
constitutional law. He is of opinion that in this case he 
cannot allow this officer to continue to act as his adviser, 
and as his agent to execute the laws, if he has lawful power 
to remove him; and under these circumstances he gives 
this order to General Thomas. 

I do not view this letter of authority to General Thomas 
as a purely military order. The service which General 
Thomas was invoked for is a civil service, but at the same 
time senators will perceive that the person who gave the 
order is the Commander-in-chief of the army ; that the per- 



DEFENCE OF PRESIDENT JOHNSON.. 405 

son to whom it was given is the Adjutant-General of the 
army ; that the subject-matter to which the order relates is 
the performance of services essential to carry on the mili- 
tary service ; and, therefore, when such an order was given 
by the Commander-in-chief to the Adjutant-General re- 
specting a subject of this kind, is it too much to say that 
there was invoked that spirit of military obedience which 
constitutes the strength of the service ? Not that it was 
a purely military order, not that General Thomas would 
have been subject to a court-martial for disobeying it, but 
that as a faithful Adjutant-General of the army of the 
United States, interested personally and professionally and 
patriotically to have the duties of the office of Secretary for 
the Department of War performed in a temporary vacancy, 
was it not his duty to accept the appointment, unless he saw 
and knew that it was unlawful to accept it ? I do not 
know how, in fact, he personally considered it : there has 
been no proof given on the subject ; but I have always as- 
sumed — I think senators will assume — that when the dis- 
tinguished General of the army of the United States, on a 
previous occasion, accepted a similar appointment, it was 
under views of propriety and duty such as those which I 
have now been speaking of ; and how and why is there to 
be attributed to General Thomas, as a co-conspirator, the 
guilty intent of designing to overthrow the laws of his 
country, when a fair and just view of his conduct would 
leave him entirely without reproach ? 

And when you come, senators, to the other co-conspirator, 
the President of the United States, is not the case still 
clearer ? Make it a case of private right, if you please ; 
put it as strongly as possible against the President, in order 
to test the question. One of you has a claim to property : 
it may be a disputed claim ; it is a claim which he believes 
may prove, when judicially examined, to be sound and good. 
He says to A. B., "Go to C. D., who is in possession of 
that property : I give you this order to him to give it up to 



406 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

you; and, if he gives it up, take possession." Did anybody 
ever imagine that that was a conspiracy ? Does not every 
lawyer know that, the moment you introduce into any trans- 
action of this kind the element of a claim of right, all crimi- 
nal elements are purged at once ; and that this is always 
true between man and man, where it is a simple assertion of 
private right, the parties to which are at liberty either to 
assert them or forego them, as they please? But this was 
not such a case : this was a case of public right, of public 
duty, of public right claimed upon constitutional grounds 
and upon the interpretation of the law which had been 
given to it by the law-makers themselves. How can the 
President of the United States, under such circumstances, 
be looked upon by anybody, whether he may or may not 
be guilty or not guilty of other things, as a co-conspirator 
under this act ? 

These articles say that the conspiracy between the Presi- 
dent and General Thomas was to employ force, threats, 
intimidation. What they have proved against the Presi- 
dent is that he issued these orders, and that alone. Now, 
on the face of these orders, there is no apology for the as- 
sertion that it was the design of the President that any- 
body at any time should use force, threats, or intimidation. 
The order is to Mr. Stanton to deliver up possession. The 
order to General Thomas is to receive possession from Mr. 
Stanton, when he delivers it up. No force is assigned to 
him ; no authority is given to him to apply for or use any 
force, threats, or intimidation. There is not only no ex- 
press authority, but there is no implication of any authority 
to apply for or obtain or use any thing but the order which 
was given him to hand to Mr. Stanton ; and we shall offer 
proof, senators, which we think cannot fail to be satisfactory 
in point of fact, that the President from the first had in 
view simply and solely to test this question by the law ; 
that, if this was a conspiracy, it was a conspiracy to go to 
law, and that was the whole of it. We shall show you 



DEFENCE OF PKESIDENT JOHNSOX. 407 

what advice the President received on this subject, what 
views in concert with his advisers he entertained, which, of 
course, it is not my province now to comment upon : the 
evidence must first be adduced, then it will be time to 
consider it. 

The other two conspiracy articles will require very little 
observation from me, because they contain no new allega- 
tions of fact which are not in the fourth and sixth articles, 
which I have already adverted to ; and the only distinction 
between them and the others is that they are not founded 
upon this conspiracy act of 1861 : they simply allege an un- 
lawful conspiracy, and leave the matter there. They do not 
allege sufficient facts to bring the case within the act of 
1861. In other words, they do not allege force, threats, or 
intimidation. I shall have occasion to remark upon these 
articles when I come to speak of the tenth article, because 
these articles, as you perceive, come within that category 
which the honorable manager announced here at an early 
period of the trial, — articles which require no law to support 
them ; and when I come to speak of the tenth article, as I 
shall have occasion to discuss this subject, I wish that my 
remarks, so far as they may be deemed applicable, should 
be applied to these fifth and seventh articles which I have 
thus passed over. 

I shall detain the Senate but a moment upon the ninth 
article, which is the one relating to the conversation with 
General Emory. The meaning of this article, as I read it, 
is that the President brought General Emory before him- 
self as Commander-in-chief of the army for the purpose of 
instructing him to disobey the law, with an intent to induce 
General Emory to disobey it, and with intent to enable 
himself unlawfully, and by the use of military force through 
General Emory, to prevent Mr. Stanton from continuing to 
hold office. Now I submit that not only does this article 
fail of proof in its substance as thus detailed, but that it 
is disproved by the witness whom they have introduced to 



408 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

support it. In the first place, it appears clearly from Gen- 
eral Emory's statement that the President did not bring 
him there for any purpose connected with this appropria- 
tion bill affecting the command of the army, or the orders 
giyen to the army. This subject General Emory introduced 
himself ; and, when the conversation was broken off, it was 
again recurred to by himself asking the President's permis- 
sion to bring it to his attention. Whatsoever was said 
upon that subject was said not because the President of the 
United States had brought the commander of the departs 
ment of Washington before him for that purpose, but 
because, having brought him there for another purpose, to 
which I shall allude in a moment, the commanding general 
chose himself to introduce that subject, and converse upon 
it, and obtain the President's views upon it. 

In the next place, having his attention called to the act 
of Congress and to the order under it, the President ex- 
pressed precisely the same opinion to General Emory that 
he had previously publicly expressed to Congress itself at 
the time when the act was sent to him for his signature ; 
and there is found set out in his answer on page 32 of the 
official report of these proceedings what that opinion was : 
that he considered that this provision interfered with his 
constitutional right as the Commander-in-chief of the army; 
and that is what he said to General Emory. There is not. 
even probable cause to believe that he said it for any other 
than the natural reason that General Emory had introduced 
the subject, had asked leave to call his attention to it, and 
evidently expected and desired that the President should 
say something on the subject; and, if he said any thing, 
was he not to tell the truth ? That is exactly what he did 
say : I mean the truth as he apprehended it. Tt will ap- 
pear in proof, as I am instructed, that the reason why the 
President sent for General Emory was not that he might 
endeavor to seduce that distinguished officer from his alle- 
giance to the laws and the Constitution of his country, but 



DEFENCE OP PRESIDENT JOHNSON. 409 

because he wished to obtain information about military 
movements, which he was informed, upon authority which 
he had a right to and was bound to respect, might require 
his personal attention. 

I pass, then, from this article, as being one upon which I 
ought not to detain the Senate ; and I come to the last one, 
concerning which I shall have much to say, and that is the 
tenth article, which is all of and concerning the speeches of 
the President. 

In the front of this inquiry, the question presents itself : 
What are impeachable offences under the Constitution of 
the United States ? Upon this question, learned disserta- 
tions have been written and printed. One of them is 
annexed to the argument of the honorable manager who 
opened the cause for the prosecution. Another one, on the 
other side of the question, written by one of the honorable 
managers themselves, may be found annexed to the pro- 
ceedings in the House of Representatives upon the occasion 
of the first attempt to impeach the President. And there 
have been others written and published by learned jurists 
touching this subject. I do not propose to vex the ear of 
the Senate with any of the precedents drawn from the 
Middle Ages. The framers of our Constitution were quite 
as familiar with them as the learned authors of these trea- 
tises ; and the framers of our Constitution, as I conceive, 
have drawn from them the lesson which I desire the Senate 
to receive, that these precedents are not fit to govern their 
conduct on this trial. 

In my apprehension, the teachings, the requirements, the 
prohibitions of the Constitution of the United States prove 
all that is necessary to be attended to for the purposes of 
this trial. I propose, therefore, instead of a search through 
the precedents which were made in the times of the Plan- 
tagenets, the Tudors, and the Stuarts, and which have been 
repeated since, to come nearer home and see what pro- 
visions of the Constitution of the United States bear on 



410 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

this question, and whether they are not sufficient to settle 
it. If they are, it is quite immaterial what exists elsewhere. 

My first position is that, when the Constitution speaks of 
"treason, bribery, and other high crimes and misdemean- 
ors,"' it refers to, and includes only, high criminal offences 
against the United States, made so by some law of the 
United States existing when the acts complained of were 
done; and I say that this is plainly to be inferred from 
each and every provision of the Constitution on the subject 
of impeachment. 

" Treason " and " bribery." Nobody will doubt that 
these are here designated high crimes and misdemeanors 
against the United States, made such by the laws of the 
United States, which the framers of the Constitution knew 
must be passed in the nature of the Government they were 
about to create, because these are offences which strike at 
the existence of that Government. " Other high crimes 
and misdemeanors." Noscitur a sociis. High crimes and 
misdemeanors, — so high that they belong in this company 
with treason and bribery. That is plain on the face of the 
Constitution, — in the very first step it takes on the sub- 
ject of impeachment. " High crimes and misdemeanors " 
against what law ? There can be no crime, there can be no 
misdemeanor without a law, written or unwritten, express 
or implied. There must be some law, otherwise there is no 
crime. My interpretation of it is that the language " high 
crimes and misdemeanors" means "offences against the 
laws of the United States." Let us see if the Constitution 
has not said so. 

The first clause of the second section of the second article 
of the Constitution reads thus : — 

The President of the United States shall have the power to 
grant reprieves and pardons for offences against the United States, 
except in cases of impeachment. 

" Offences against the United States " would include 
" cases of impeachment," and they might be pardoned by 



DEFENCE OP PRESIDENT JOHNSON. 411 

the President, if they were not excepted. Then cases of 
impeachment are, according to the express declaration of 
the Constitution itself, cases of offences against the United 
States. 

Still, the learned manager says that this is not a court, 
and that, whatever may be the character of this body, it is 
bound by no law. Very different was the understanding of 
the fathers of the Constitution on this subject. 

Mr. Manager Butler. Will you state where it was I 
said it was bound by no law ? 

Mr. Stanbeuy. "A law unto itself." 

Mr. Manager Butler. "No common or statute law," 
was my language. 

Mr. Curtis. I desire to refer to the sixty-fourth number 
of the " Federalist," which is found in Dawson's edition, on 
page 453 : — 

The remaining powers which the plan of the Convention allots 
to the Senate, in a distinct capacity, are comprised in their partici- 
pation with the Executive in the appointment to offices, and in 
their judicial character as a court for the trial of impeachments, as 
in the business of appointments the Executive will be the principal 
agent, the provisions relating to it will most properly be discussed 
in the examination of that department. We will therefore conclude 
this head with a view of the judicial character of the Senate. 

And then it is discussed. The next position to which I 
desire the attention of the Senate is that there is enough 
written in the Constitution to prove that this is a court in 
which a judicial trial is now being carried on. " The Sen- 
ate of the United States shall have the sole power to try all 
impeachments." " When the President is tried, the Chief 
Justice shall preside." " The trial of all crimes, except in 
case of impeachment, shall be by jury." This, then, is the 
trial of a crime. You are triers, presided over by the Chief 
Justice of the United States in this particular case, and that 
on the express words of the Constitution. There is also, 
according to its express words, to be an acquittal or a con- 



412 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

viction on this trial for a crime. "No person shall be 
convicted without the concurrence of two thirds of the 
members present." There is also to be a judgment in case 
there shall be a conviction. 

Judgment in cases of impeachment shall not extend further 
than removal from office and disqualification to hold any office of 
honor, trust, or profit under the United States. 

Here, then, there is the trial of a crime, a trial by a tri- 
bunal designated by the Constitution in place of court and 
jury ; a conviction, if guilt is proved ; a judgment on that 
conviction ; a punishment inflicted by the judgment for a 
crime ; and this on the express terms of the Constitution itself. 
And yet, say the honorable managers, there is no court to 
try the crime, and no law by which the act is to be judged. 
The honorable manager interrupted me to say that he quali- 
fied that expression of no law : his expression was, " no 
common or statute law." Well, when you get out of that 
field, you are in a limbo, a vacuum, so far as law is concerned, 
to the best of my knowledge and belief. 

I say, then, that it is impossible not to come to the 
conclusion that the Constitution of the United States has 
designated impeachable offences as offences against the 
United States; that it has provided for the trial of those 
offences ; that it has established a tribunal for the purpose 
of trying them ; that it has directed the tribunal, in case of 
conviction, to pronounce a judgment upon the conviction 
and inflict a punishment. All this being provided for, can 
it be maintained that this is not a court, or that it is bound 
by no law ? 

But the argument does not rest mainly, I think, upon the 
provisions of the Constitution concerning impeachment. It 
is, at any rate, vastly strengthened by the direct prohibitions 
of the Constitution. " Congress shall pass no bill of attain- 
der or ex post facto law." According to that prohibition of 
the Constitution, if every member of this body, sitting in 



DEFENCE OP PRESIDENT JOHNSON. 413 

its legislative capacity, and every member of the other 
body, sitting in its legislative capacity, should unite in pass- 
ing a law to punish an act 'after the act was done, that law 
would be a mere nullity. Yet what is claimed by the hon- 
orable managers in behalf of members of this body? As a 
Congress, you cannot create a law to punish these acts, if no 
law existed at the time they were done ; but sitting here as 
judges, not only after the fact, but while the case is on trial, 
you may individually, each one of you, create a law by him- 
self to govern the case. 

According to this assumption, the same Constitution which 
has made it a bill of rights of the American citizen, not only 
as against Congress, but as against the legislature of every 
State in the Union, that no ex post facto law shall be passed, 
— this same Constitution has erected you into a body and 
empowered every one of you to say, Aut inveniam aut 
faciam, — "If I cannot find a law, I will make one." Nay, 
it has clothed every one of you with imperial power : it haa 
enabled you to say, Sic volo, sicjubeo, stat pro ratione, vol- 
untas, — " I am a law unto myself, by which law I shall gov- 
ern this case." And, more than that, when each one of you 
before he took his place here called God to witness that he 
would administer impartial justice in this case according to 
the Constitution and the laws, he meant such laws as he 
might make as he went along. The Constitution, which 
had prohibited anybody from making such laws, he swore 
to observe ; but he also swore to be governed by his own 
will : his own individual will was the law which he t"hus 
swore to observe ; and this special provision of the Constitu- 
tion, that when the Senate sits in this capacity to try an 
impeachment the senators shall be on oath, means merely 
that they shall swear to follow their own individual wills ! 
I respectfully submit, this view cannot consistently and 
properly be taken of the character of this body, or of the 
duties and powers incumbent upon it. 

Look for a moment, if you please, to the other provision. 



414 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

The same search into the English precedents, so far from 
having made our ancestors who framed and adopted the 
Constitution in love with them, led them to put into the 
Constitution a positive and absolute prohibition against any 
bill of attainder. What is a bill of attainder ? It is a case 
before the Parliament where the Parliament make the law 
for the facts they find. Each legislator — for it is in their 
legislative capacity they act, not in a judicial one — is, to 
use the phrase of the honorable managers, "a law unto 
himself," and according to his discretion, his views of what 
is politic or proper under the circumstances, he frames a 
law to meet the case, and enacts it or votes in its enactment. 
According to the doctrine now advanced, bills of attainder 
are not prohibited by this Constitution: they are only 
slightly modified. It is only necessary for the House of 
Representatives by a majority to vote an impeachment and 
send up certain articles and have two thirds of this body 
vote in favor of conviction, and there is an attainder ; and it 
is done by the same process and depends on identically the 
same principles as a bill of attainder in the English Parlia- 
ment. The individual wills of the legislators, instead of 
the conscientious discharge of the duty of the judges, settle 
the result. 

I submit then, senators, that this view of the honorable 
managers of the duties and powers of this body cannot be 
maintained. But the attempt made by the honorable man- 
agers to obtain a conviction upon this tenth article is attended 
with some peculiarities which I think it is the duty of the 
counsel of the President to advert to. So far as regards the 
preceding articles, the first eight articles are framed upon 
allegations that the President broke a law. I suppose the 
honorable managers do not intend to carry their doctrine so 
far as to say that, unless you find the President did inten- 
tionally break a law, those articles are supported. As to 
those articles, there is some law unquestionably, the very 
gist of the charge being that he broke a law. You must 



DEFENCE OF PRESIDENT JOHNSON. 415 

find that the law existed ; you must construe it, and apply 
it to the case ; you must find his criminal intent wilfully to 
break the law, before the articles can be supported. But 
we come now to this tenth article, which depends upon no 
law at all, but, as I have said, is attended with some ex- 
traordinary peculiarities. 

The complaint is that the President made speeches against 
Congress. The true statement here would be much more 
restricted than that ; for, although in those speeches the 
President used the word " Congress," undoubtedly he did 
not mean the entire constitutional body organized under the 
Constitution of the United States : he meant the dominant 
majority in Congress. Everybody so understood it : every- 
body must so understand it. But the complaint is that 
he made speeches against those who governed in Congress. 
Well, who are the grand jury in this case? One of the 
parties spoken against. And who are the triers? The 
other party spoken against. One would think there was 
some incongruity in this, some reason for giving pause be- 
fore taking any very great stride in that direction. The 
honorable House of Representatives sends its managers here 
to take notice of what ? That the House of Representatives 
has erected itself into a school of manners, selecting from 
its ranks those gentlemen whom it deems most competent 
by precept and example to teach decorum of speech ; and 
they desire the judgment of this body whether the President 
has not been guilty of indecorum, whether he has spoken 
properly, to use the phrase of the honorable manager. Now, 
there used to be an old-fashioned notion that, although there 
might be a difference of taste about oral speeches, and no 
doubt always has been and always will be many such dif- 
ferences, there was one very important test in reference to 
them, and that is whether they are true or false; but 
it seems that in this case that is no test at all. The 
honorable manager, in opening the case, finding, I sup- 
pose, that it was necessary in some manner to advert to 



416 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

that subject, has done it in terms which. I will read to 
you : — 

The words are not alleged to be either false or defamatory, 
because it is not within the power of any man, however high his 
official position, in effect to slander the Congress of the United 
States, in the ordinary sense of that word, so as to call on Congress 

to answer as to the truth of the accusation. 

*- 

Considering the nature of our Government, considering 
the experience which we have gone through on this subject, 
that is a pretty lofty claim. Why, if the Senate please, if 
you go back to the time of the Plantagenets and seek for 
precedents there, you will not find so lofty a claim as that. 
I beg leave to read from two statutes — the first being 3 Ed- 
ward I., ch. 34; and the second, 2 Richard II., ch. 1 — a 
short passage. The statute 3 Edward I., ch. 34, after the 
preamble, enacts : — 

That from henceforth none be so hardy to tell or publish any 
false news or tales, whereby discord or occasion of discord or slan- 
der may grow between the king and his people, or the great men 
of the realm ; and he that doeth so shall be taken and kept in until 
he hath brought him into- court, which was the first author of the 
tale. 

The statute 2 Richard II., c. 1, § 5, enacted with some 
alterations the previous statute. It commenced thus : — 

Of devisors of false news and of horrible and false lies of pre- 
lates, dukes, earls, barons, and other nobles and great men of the 
realm ; and also of the chancellor, treasurer, clerk of the privy seal, 
steward of the king's house, justices of the one bench or of the other, 
and of other great officers of the realm. 

The great men of the realm in the time of Richard II. were 
protected only against "horrible and false lies," and when 
we arrive in the course of our national experience during 
the war with France and the administration of Mr. Adams 
to that attempt to check, not free speech, but free writing, 
senators will find that, although it applied only to written 



DEFENCE OF PRESIDENT JOHNSON. 417 

libels, it contained an express section that the truth might 
be given in evidence. That was a law, as senators know, 
making it penal by written libels to excite the hatred or 
contempt of the people against Congress among other 
offences ; but the estimate of the elevation of Congress 
above the people was not so high, but that it was thought 
proper to allow a defence of the truth to be given in evi- 
dence. I beg leave to read from this sedition act a part of 
one section, and make a reference to another to support the 
correctness of what I have said. It is found in Statutes at 
Large, page 596 : — 

That if any person shall write, print, utter, or publish, or shall 
cause or procure to be written, printed, uttered, or published, or 
shall knowingly and willingly assist or aid in writing, printing,, 
uttering, or publishing any false, scandalous, and malicious writing 
or writings against the Government of the United States, or either 
House of the Congress of the United States, or the President of 
the United States, with intent to defame the said Government, or 
either House of the said Congress, or the said President, or to bring 
them, or either or any of them, the hatred of the good people of 
the United States, or to stir up sedition within the United States, 
or to excite any unlawful combinations therein, &c. 

Section three provides : — 

That if any person shall be prosecuted under this act for the. 
writing or publishing any libel aforesaid, it shall be lawful for the 
defendant, upon the trial of the cause, to give in evidence in his 
defence the truth of the matter contained in the publication charged 
as a libel. And the jury who shall try the cause shall have a right 
to determine the law and the fact, under the direction of the court, 
as in other cases. 

In contrast with the views expressed here, I desire now to 
read from the fourth volume of Mr. Madison's Works, pages 
542 and 547, passages which, in my judgment, are as mas- 
terly as any thing Mr. Madison ever wrote, upon the relations 
of the Congress of the United States to the people of the 
United States, in contrast with the relations of the Govern- 

vol, ii. 27 



418 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

ment of Great Britain to the people of that island ; and the 
necessity which the nature of our Government lays us under 
to preserve freedom of the press and freedom of speech : — 

The essential difference between the British Government and 
the American Constitution will place this subject in the clearest 
light. 

In the British Government,- the danger of encroachments on the 
rights of the people is understood to be confined to the executive 
magistrate. The representatives of the people in the legislature 
are only exempt themselves from distrust, but are considered as 
sufficient guardians of the rights of their constituents against the 
danger from the executive. Hence it is a principle that the Parlia- 
ment is unlimited in its power; or, in their own language, is 
omnipotent. Hence, too, all the ramparts for protecting the rights 
of the people — such as their Magna Charta, their Bill of Rights, 
&c. — are not reared against the Parliament, but against the royal 
prerogative. They are merely legislative precautions against ex- 
ecutive usurpations. Under such a government as this, an exemp- 
tion of the press from previous restraint, by licensers appointed by 
the king, is all the freedom that can be secured to it. 

In the United States, the case is altogether different. The 
people, not the government, possess the absolute sovereignty. The 
legislature, no less than the executive, is under limitations of 
power. Encroachments are regarded as possible from the one as 
well as from the other. Hence, in the United States, the great and 
essential rights of the people are secured against legislative as well 
as against executive ambition. They are secured not by laws para- 
mount to prerogative, but by constitutions paramount to laws. 
This security of the freedom of the press requires that it should be 
exempt not only from previous restraint by the executive, as in 
Great Britain, but from legislative restraint also ; and this exemp- 
tion, to be effectual, must be an exemption not only from the pre- 
vious inspection of licenses, but from the subsequent penalty of 
laws. 

One other passage, on page 547, which has an extraordi- 
nary application to the subject now before you : — 

1. The Constitution supposes that the President, the Congress, 
and each of its houses may not discharge their trusts, either from 



DEFENCE OF PRESIDENT JOHNSON. 419 

defect of judgment or other causes. Hence they are all made re- 
sponsible to their constituents at the returning periods of election ; 
and the President, who is singly intrusted with very great powers, 
is, as a further guard, subjected to an intermediate impeachment. 

2. Should it happen, as the Constitution supposes it may hap- 
pen, that either of these branches of the Government may not 
have duly discharged its trust, it is natural and proper that, accord- 
ing to the cause and degree of their faults, they should be brought 
into contempt or disrepute, and incur the hatred of the people. 

3. Whether it has in any case happened that the proceedings 
of either or all of those branches evince such a violation of duty as 
to justify a contempt, a disrepute, or hatred among the people, can 
only be determined by a free examination thereof, and a free com- 
munication among the people thereon. 

4. Whenever it may have actually happened that proceedings 
of this sort are chargeable on all or either of the branches of the 
Government, it is the duty, as well as right, of intelligent and 
faithful citizens to discuss and promulge them freely, as well to 
control them by the censorship of the public opinion as to promote 
a remedy according to the rules of the Constitution. And it can- 
not be avoided that those who are to apply the remedy must feel, 
in some degree, a contempt or hatred against the transgressing 
party. 

These observations of Mr. Madison were made in respect 
to the freedom of the press. There were two views enter- 
tained at the time when the sedition law was passed con- 
cerning the power of Congress over this subject. The one 
view was that, when the Constitution spoke of freedom of 
the press, it referred to the common-law definition of that 
freedom. That was the view which Mr. Madison was con- 
troverting in one of the passages which I have read to you. 
The other view was that the common-law definition could 
not be deemed applicable, and that the freedom provided 
for by the Constitution, so far as the action of Congress was 
concerned, was an absolute freedom of the press. But no 
one ever imagined that freedom of speech, in contradistinc- 
tion from written libel, could be restrained by a law of 
Congress ; for whether you treat the prohibition in the Con- 



420 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

stitution as absolute in itself, or whether you refer to the 
common law for a definition of its limits and meaning, the 
result will be the same. Under the common law, no man 
was ever punished criminally for spoken words. If he 
slandered his neighbor and injured him, he must make good 
in damages to his neighbor the injury he had done ; but 
there was no such thing al the common law as an indict- 
ment for spoken words. So that this prohibition in the 
Constitution against any legislation by Congress in restraint 
of the freedom of speech is necessarily an absolute prohibi- 
tion ; and therefore this is a case not only where there is no 
law made prior to the act to punish the act, but a case 
where Congress is expressly prohibited from making any 
law to operate even on subsequent acts. 

What is the law to be ? Suppose it is, as the honorable 
managers seem to think it should be, the sense of propriety 
of each senator appealed to. What is it to be ? The only 
rule I have heard, the only rule which can be announced, is 
that you may require the speaker to speak properly. Who 
are to be the judges whether he speaks properly? In this 
case, the Senate of the United States, on the presentation 
of the House of Representatives of the United States ; and 
that is supposed to be the freedom of speech secured by this 
absolute prohibition of the Constitution. That is the same 
freedom of speech, senators, in consequence of which thou- 
sands of men went to the scaffold under the Tudors and the 
Stuarts. That is the same freedom of speech which caused 
thousands of heads of men and of women to roll from the 
guillotine in France. That is the same freedom of speech 
which has caused in our day, more than once, " order to 
reign in Warsaw." The persons did not speak properly in 
the apprehension of the judges before whom they were 
brought. Is that the freedom of speech intended to be 
secured by our Constitution ? 

Mr. Chief Justice and Senators, I have to detain you but 
a very short time longer, and that is by a few observations 



DEFENCE OF PRESIDENT JOHNSON. 421 

concerning the eleventh article ; and they will be very few, 
for the reason that the eleventh article, as I understand it, 
contains nothing new which needs any notice from me. It 
appears by the official copy of the articles which is before 
us, the printed copy, that this article was adopted at a later 
period than the preceding nine articles ; and I suppose it 
has that appearance, that the honorable managers, looking 
over the work they had already performed, perhaps not 
feeling perfectly satisfied to leave it in the shape in which 
it then stood, came to the conclusion to add this eleventh 
article, and they have compounded it out of the materials 
which they had previously worked up into the others. In 
the first place, they said, Here are the speeches, we will 
have something about them ; and accordingly they begin by 
the allegation that the President, at the Executive Mansion 
on a certain occasion, made a speech and, without giving 
his words, it is attributed to him that he had an inten- 
tion to declare that this was not a Congress within the 
meaning of the Constitution, all of which is denied in his 
answer, and there is no proof to support it. The President, 
by his whole course of conduct, has shown that he could 
have entertained no such intention as that. He has ex- 
plained that fully in his answer, and I do not think it 
necessary to repeat the explanation. 

Then they come to the old matter of the removal of Mr. 
Stanton. They say he made this speech, denying the com- 
petency of Congress to legislate ; and, following up its intent, 
he endeavored to remove Mr. Stanton. I have sufficiently 
discussed that, and I shall not weary the patience of the 
Senate by doing so any further. 

Then they say that he made this speech, and followed up 
its intent by endeavoring to get possession of the money 
appropriated for the military service of the United States. 
I have said all I desire to say upon that. 

Then they say that he made it with the intent to obstruct 
what is called the law " for the better government of the 



422 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

rebel States," passed in March, 1867, and in support of that 
they have offered a telegram to him from Governor Parsons, 
and an answer to that telegram from the President, upon 
the subject of an amendment of the Constitution, sent in 
January before the March when the law came into exist- 
ence ; and, so far as I know, that is the only evidence which 
they have offered upon that subject. I leave, therefore, 
with these remarks, that article for the consideration of 
the Senate. 

It must be unnecessary for me to say any thing concerning 
the importance of this case, not only now, but in the future. 
It must be apparent to every one, in any way connected 
with or concerned in this trial, that this is and will be the 
most conspicuous instance which ever has been or can ever 
be expected to be found of American justice or American 
injustice, of that justice which Mr. Burke says is the great 
standing policy of all civilized States, or of that injustice 
which is sure to be discovered and which makes even the 
wise man mad, and which, in the fixed and immutable 
order of God's providence, is certain to return to plague its 
inventors. 



TINITED STATES V. UNION PACIFIC U.K. CO. ET AL. 423 



ARGUMENT 



CASE OF THE UNITED STATES versus THE UNION 
PACIFIC RAILROAD COMPANY ET AL., 

United Stales Circuit Court, Hartford, Conn., September 19, 1873. 



The occasion on which this argument was made is described 
ante, vol. i. chap. xiv. 

May it please the Court : 

I wish, to make one or two remarks on this point of form 
which has now been started, before I proceed to what I 
desire to say on the merits of this motion. 

This bill states that certain of the defendants are not 
residents of Connecticut, but of other States and districts, 
which are mentioned in the bill in connection with their 
names. 

The record, including what is to be in it when the record 
is made up, contains certain summonses or subpcenas which 
have been issued to these parties, — those alleged to reside 
out of the district, — and the return of the marshal thereon 
shows that each one of them was not found in the district 
of Connecticut, but was found in the States and districts 
where they severally resided ; so that this record shows on 
its face that, if nothing but the act of 1791, and some other 
acts of Congress which have slightly changed the act of 
1791, are alone to be applied to this case, this bill must be 
dismissed. And therefore it is not only a proper subject of 
a motion in behalf of each one of these defendants so situ- 



424 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

ated, but a motion is the only proper way in which the judg- 
ment of the court to dismiss the bill can be invoked. 

If there were any fact here relied upon dehors the record, 
it would be proper to plead that additional fact not appear- 
ing upon the record, so that it should be a part of the record 
by a plea ; but, inasmuch as every fact relied upon in sup- 
port of this motion does now appear upon the record, a plea 
would be merely a change in the form of the heading of the 
paper filed ; and the substance of the thing, and the facts 
which constitute that substance, would be precisely the 
same in the one case as in the other ; and the decision of 
this court, either refusing to grant the motion and dismiss 
the bill, or granting the motion and dismissing the bill, in 
either event would be a decision reviewable, upon appeal, 
by the Supreme Court of the United States. Because, if 
the court should grant our motion and dismiss the bill, that 
would be a final decree, as has over and over again been 
held. On the other hand, if the court should overrule our 
motion, and refuse to dismiss the bill, and proceed with the 
case, when an appeal shall carry this record to the Supreme 
Court of the United States, the same question which arises 
here now, on this motion, would arise there as a preliminary 
question of jurisdiction. 

I submit that these motions are proper in point of form, 
that they are suited to raise all questions which can be 
raised, and to place them in as favorable a condition to pre- 
serve the substantial rights of the parties as any form which 
could be adopted. And I add to this, may it please your 
Honors, although motions are oftentimes, and perhaps gen- 
erally, appeals to the discretion of the court, this is not 
such an appeal. A motion to quash an indictment, for 
instance, is an appeal to the discretion of the court; and 
it has been held that overruling such a motion is not the 
subject of a writ of error, for the reason that it is an appeal 
to the discretion of the court. 

This is not such an appeal. This is an appeal to the 



UNITED STATES V. UNION PACIFIC E.E. CO. ET AL. 425 

law of the land, to be administered by the court and applied 
to the case without the exercise of any discretion what- 
soever. 

I pass from this subject to the merits of these motions; 
and I wish to say, as a general remark, that I shall not find 
it necessary, in what I have to say to the court, to comment 
on the particular cases, which have been collected with so 
much industry and skill, in what the senior counsel on the 
other side has rightly called the excellent brief of his junior ; 
not because they are not worthy of examination and consid- 
eration by the court in connection with this case ; not be- 
cause some observations might not be made upon each of 
them which would be pertinent, according to the view which 
we take of the law ; but because it has never been my habit, 
and I have never thought it expedient or useful, to reply in 
that detailed course to an argument on the other side, when 
the argument which I have to submit, and the principles on 
which I shall rely, in no manner conflict with any one of the 
decisions that has been produced. 

If I can succeed in placing before your Honors the views 
which I entertain myself, and if your Honors shall find those 
views to be sound, there will be found nothing in any of 
these cases, I venture to say, in conflict with these views. 
On the other hand, if your Honors should not find those 
views to be sound, then the ground upon which we have 
expected to support this motion fails, and it is immaterial 
to us what decisions are cited. 

Your Honors are already aware that the principal inquiry 
in respect to these motions appears to be whether that clause 
of the Constitution of the United States which prevents a 
person from being deprived of life, liberty, or property with- 
out due process of law, is applicable to this case, and con- 
trols the provisions of this law of Congress, by force of 
which these defendants, not living here, are brought before 
the court. And before I speak particularly of the language 
of that clause, and attribute to it, or endeavor to attribute 



426 PROFESSIONAL AND MISCELLANEOUS WBITINGS. 

to it, the effects which I conceive belong to it, I think it 
needful to ask your Honors' attention to the history of the 
clause itself, to the circumstances under which it was intro- 
duced into the Constitution, and to the evident object which 
it was designed to accomplish. 

In the first place, then, I begin with this statement which 
not only your Honors, buj every well-educated man in the 
country will assent to : that when the Constitution of the 
United States was formed and adopted, it was received uni- 
versally as a fundamental principle of republican govern- 
ment that all citizens must stand equal before the laws of 
the land ; and when the Constitution of the United States 
was proposed for adoption to the people of the different 
States in their conventions, one great difficulty encountered 
by the friends of the Constitution was the apprehension that 
that great principle had not been sufficiently secured by the 
provisions of the Constitution then proposed. It is impos- 
sible to read the discussions which took place preliminary 
to the presentation of the Constitution to the different con- 
ventions, in the " Federalist " and other publications of the 
day, without seeing that that was a great and prominent 
difficulty which the friends of the Constitution felt was to 
be encountered in asking the ratification of that instrument 
from the people. Well, they argued as well as they could, 
and certainly with great ability ; and, so far as the imme- 
diate or the present adoption of the Constitution was con- 
cerned by the requisite number of States, with success, that 
the Constitution did contain sufficient provisions to secure 
the perpetual and uniform application of this great funda- 
mental principle. In the first place, they relied upon the 
fact, and reiterated it in every possible form, that the laws 
to be made were to be made by representatives who would 
be themselves bound by them ; and, secondly, that the con- 
stituents of these legislators, who had sent them there, would 
also be bound by them, and that would secure, or tend to 
secure, the requisite uniformity in the application of this 



UNITED STATES V. UNION PACIFIC JR.R. CO. ET AL. 427 

great principle. They relied further upon particular provi- 
sions of the Constitution, — upon the trial by jury, upon 
the administration of the laws by a separate and indepen- 
dent judiciary, and upon some other minor provisions of the 
Constitution, — which they insisted were sufficient to secure 
this great end ; and the adoption of the Constitution was 
made by the requisite number of States and went into 
operation. 

But though the people of the United States were not 
willing to forego the opportunity then presented of form- 
ing a new and better government than they then possessed, 
they were not satisfied upon this point and subject ; and 
in consequence of their dissatisfaction, under the direction 
of the ablest lawyers and statesmen that then existed in 
this country, the people, by a separate act of their sovereign 
power, inserted, among other provisions, this one which is 
now in question ; and they inserted it, beyond all doubt, for 
the purpose of closing up every gap which had been left in 
the construction of the original constitution, whereby any 
inequality of citizens before the law could be created by the 
legislative power. 

Now, may it please your Honors, it is in the light of these 
historical facts, known beyond all dispute, that the language 
of this clause is to be construed. It is when considered or 
taken along with the consideration of the end and purpose 
for which this special act was passed by the people of the 
United States, — it is in considering that, and the circum- 
stances under which it was passed, — that we are to turn to 
see what was said for this purpose. 

Now, I take it to be an established rule, to which the 
good sense of every -man will, I think, subscribe, that no 
court is authorized to put upon the language of any clause 
of the Constitution, important or unimportant, original, or 
inserted by amendment, a construction which shall deprive 
that clause of its ability to attain any part of the end for 
which it was inserted ; provided always the language of the 



428 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

clause, when properly considered, is sufficient, completely 
and effectually, to attain that end. I agree that in the first 
place you are to ascertain for what end the clause was in- 
serted ; in the next place, whether the proposed interpreta- 
tion will deprive it of any part of its power to attain that 
great end, or any part of that great end ; and, in the third 
place, whether you can fairly, without distorting the mean- 
ing, so construe it that it shall completely and perfectly 
attain that end. 

Now, let us look at this thing. " No man shall be de- 
prived of life, liberty, or property without due process of 
law." In the first place, what is meant by " due process of 
law " ? Those words have been construed by the Supreme 
Court of the United States, in an opinion given by Chief 
Justice Marshall, cited in our brief (I do not mean the 
words occurring in this clause of the Constitution, but the 
same language occurring in an act of Congress), and the con- 
struction was one to which I think every lawyer must assent, 
that due process of law includes every act of the court, from 
its first issue of mesne process to call parties before it, down 
to the last act in issuing execution and causing its judgment 
to be executed. 

Every step taken by the court in a suit brought before it 
is process of law. 

This, then, is not any distorted construction of this lan- 
guage of the Constitution. When you are considering how 
you can construe it in such a way as to carry out and per- 
fectly attain the object fully and fairly for which it was 
inserted, you are not called upon to put any distorted con- 
struction upon these words ; when you know that they cover 
the first act of court in issuing the process, and every thing 
it does afterwards till the case is finally disposed of, their 
natural meaning, without any distortion, is broad enough to 
cover all we ask in this case. 

The other side seem to maintain — they have not done so 
in so many words, but I infer that is their view — that it 



UNITED STATES V. UNION PACIFIC U.K. CO. ET AL. 429 

does not include mesne process by which the court calls 
parties before it. 

Why, if it please your Honors, suppose Congress should 
enact that in a particular class of cases the court shall pro- 
ceed ex parte, without any notice, and shall apply the prin- 
ciples of jurisprudence, the statute law, or common law, or 
equity law, to that case, just as in all other cases, and so 
proceed to adjudge it. Would not this clause have the 
effect to say that such a proceeding as that was not due 
process of law ? Because you had not given notice to the 
party, you had not taken the first step in the process ; and 
therefore the judgment which is rendered against him de- 
prives him of his property without due process of law. 
Would any lawyer question that? 

And, may it please your Honors, is it not easy to take 
the next step ? If Congress has not the power, by reason 
of this provision of the Constitution, securing due process 
of law to cause a court to proceed without notice to a party, 
can they cause the court to proceed with notice to the party, 
but impose onerous conditions upon that party, without the 
performance of which the notice is to be of no avail to him ? 
Suppose that in a particular case the act said you must give 
him notice, but you shall not allow him to appear unless 
he incurs a particular expense, or pays a particular sum of 
money, or performs some other onerous condition not im- 
posed on citizens generally? Has Congress power to do 
that ? Is the right of a party to appear and defend him- 
self, which is so sacred that it is recognized in all systems 
of jurisprudence, — can that right, which cannot be taken 
away, be incumbered with any conditions which Congress 
chooses to impose upon it, although all other citizens are 
free from all these conditions ? I respectfully submit not. 

Now what was the state of the law, and why was it the 
law, at the time when this act in question was passed? 
Judge Washington, in the case which my colleague referred 
to yesterday, has given one of his clear statements of the 



430 PROFESSIONAL AND MISCELLANEOUS WHITINGS. 

nature of the judicial jurisdiction under the Constitution 
and laws of the United States; and, he says, what every- 
one must know to be true, that if Congress had not taken 
the course it did in the act of 1789, in regard to processes 
running out of the district, it would have been an intoler- 
able burden to the citizen; and your Honors see that it 
would have been so. Why,, what would Congress itself say 
at any time, what would it have ever said, and what would 
it be likely to say in the future, to the proposition of a gen- 
eral law by which any citizen of California who had a claim 
against any citizen of Connecticut might summon him across 
the continent to answer to that claim ? Why, it would be 
an absurdity to make such a proposition. The answer would 
be, it could hardly be submitted to ; the burden would be 
intolerable ; we cannot pass any such law ; we cannot im- 
pose upon the citizens of the country, generally, the duty 
of travelling these vast distances, and incurring these 
greatly increased expenses, to say nothing of other prac- 
tical difficulties ; we cannot impose that upon the country 
generally. 

Well, if it is so enormously burdensome, as everybody 
must see it is, that is the condition imposed upon these de- 
fendants. You may appear and be heard, but you must 
comply with these conditions, so onerous that no general 
law could be passed affecting citizens generally, otherwise 
you shall not be heard. 

Now, will it be contended that a citizen is not deprived 
of his property without due process of law, unless the law 
which controls the trial is not due process of law ? 

I understand the argument to go to that length on the 
other side. If so, the observations which I have submitted, 
showing the necessity for an opportunity of appearing and 
defending, unrestricted by these intolerable, burdensome con- 
ditions, must satisfy your Honors, I think that the scope of 
this language of the Constitution is much broader than has 
been conceded on the other side. 



UNITED STATES V. UNION PACIFIC E.R. CO. ET AL. 431 

Why, if you come to the precise inquiry into dollars and 
cents, does it not deprive a citizen of his property to compel 
him to travel two thousand miles more than you compel 
another citizen to do to defend himself against a particular 
claim, whether he goes himself, or whether he sends the 
counsel whom he habitually employs ? And when he resorts 
to inquiries what he can do amongst these strangers, not a 
man of whom lives within a hundred miles of the court- 
house that he has ever seen or heard of, is he not deprived 
of some of his property, in order to do this ? Can he do it 
without expense ? Can he do it, not merely without expense 
of his own time and labor and anxiety, but must he not incur 
additional expense ? 

I submit that the court will take judicial notice that that 
which Judge Washington calls an intolerable burden is a 
burden which carries along with it some dollars and cents, 
and it does not matter how many or how few. I respect- 
fully submit that, when Congress required these defendants, 
who are classed in this act as clearly as if they had been 
nominated by their Christian and surnames, to submit to 
these onerous conditions, or otherwise depriving them of 
their property by a decree, that was not due process of 
law. Therefore, not without anxiety as to the results to 
which your Honors may come, it does seem to me there can 
be but one answer to that question : therefore, allow me to 
call your Honors' attention to the fact that you are not con- 
struing an ordinary statute, but a great and important pro- 
vision of the fundamental instrument of this Government, 
which ought to be extended, so far as its language will fairly 
admit, to accomplish that equality before the law which, as 
I have said, is the great fundamental principle of republican 
government. 

I pass from this point of the argument to the question 
whether an executor or administrator can be called here ; 
and on that it seems to me necessary to say but a very few 
words. 



432 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

That cannot be due process of law, I respectfully submit, 
which calls on a person in a fiduciary relation to appear and 
defend a suit which he has no power to appear and defend. 
You might as well give notice to the first man the marshal 
should meet in the street, as to give notice to a person who 
has no authority — if he has the notice — to appear and 
defend. * 

Now, there is nothing better settled than that the powers 
not only of administrators, but of executors, who, as held 
by the Supreme Court of the United States in the case re- 
ferred to in our brief, derive their authority not from the 
will, but from the letters testamentary, there is nothing 
better settled than that their power and authority to sue 
and be sued is limited to the territorial jurisdiction of the 
State from which that authority is derived. And, when 
you call upon an administrator or executor to come here 
and answer to a suit, you call upon him to do what the law 
says he has no power to do. And, what is more, you call 
upon him to do what Congress cannot give him the power 
to do. There cannot be found any thing in the Constitu- 
tion of the United States, special or general, which will 
enable Congress to pass an act increasing the powers of 
executors and administrators appointed by the States ; and, 
therefore, no help can be derived from the provision of this 
act, had there been one, — which there is not, — that admin- 
istrators or executors might be summoned here. 

There is a provision of the act that, if parties die during 
the pendency of the suit, an executor or administrator may 
be summoned in. Of course he cannot be summoned in 
until he is appointed. Now, the act gives no particular 
direction, or even intimation, how he is to be appointed. 
If he is to be appointed in the State where the decedent 
resided, why, the same difficulty would occur that I have 
already been insisting on. If, in fact, he should be ap- 
pointed in the State of Connecticut, where the suit is pend- 
ing, then he has authority to appear in the limits of that 



UNITED STATES V. UNION PACIFIC E.E. CO. ET AL. 433 

State and defend the suit; and the court might summon 
him, and in that contingency only, I respectfully submit. 

There is one other point which it will be necessary for 
your Honors to pass upon, and concerning which I wish to 
say so much as will make my view of the act apparent to 
the court. The Constitution provides that the judicial 
power of the United States shall be vested in one Supreme 
Court, and in such inferior courts as Congress shall from 
time to time establish. 

Now, to establish one of these inferior courts includes 
establishing its jurisdiction, — conferring and defining its 
jurisdiction : of that there can be no question. As all the 
circuit courts existing in the country were from time to 
time established by Congress, their jurisdiction was assigned 
to them ; not always the same jurisdiction, I agree, for cer- 
tainly it is not necessary that every circuit or district court 
in the country should possess identically the same jurisdic- 
tion. Congress may assign more or less to one than to 
another, but Congress must assign it : the court must pos- 
sess it by the will of Congress, constitutionally expressed, 
that that court should possess it. The responsibility rests 
with Congress : the power is in Congress, and is there 
alone. 

Now, here is an act which provides for the institution of 
one suit. The Attorney-General, it is said, is to file a bill : 
then the character of the bill is given. There can be but 
one suit. Then it is said this suit may be brought in any 
district in the country. It is not required that some of the 
defendants should reside in that district : it might be brought 
in any district in the country. Well, that is equivalent to 
an expression by Congress that the court of the district 
where the suit is brought is to possess the necessary juris- 
diction to sustain the suit and grant the relief required. 
That must necessarily be taken, as it seems to me, to be an 
expression of the will of Congress that the one court in 
which this suit is brought is to possess this necessary juris- 

TOL. II. 28 



434 PROFESSIONAL AND MISCELLANEOUS WRITINGS. 

diction over that one suit, and no other court does possess 
or can exercise it. 

And, among other things, it is provided, in so many 
terms, — and it is quite important to advert to those terms 
— that on filing the bill writs of subpoena may be issued by 
said court (that is, the court in which the bill is filed) against 
any parties defendant. 

On filing the bill, the court possesses jurisdiction over 
that suit which no other court possesses, — granted, I agree, 
by Congress, and not by the Attorney-General : it possesses 
that jurisdiction ; and, on filing the bill, it possesses this ex- 
traordinary power of sending its subpoenas into any dis- 
trict. Now, where has Congress failed to perform that 
duty, assigned to it by the Constitution, to establish the 
jurisdiction of the court, the one court ? They have failed 
because they have not designated what one court. They 
have left that to be designated by the Attorney-General, 
and it is according to his will that this act comes into opera- 
tion and applies to this court, because it is according to his 
will that he files the bill here. 

I respectfully submit to your Honors that Congress had 
no power to delegate to an executive officer of the court the 
right to select a particular court, which should have a juris- 
diction over a particular suit, over which jurisdiction was 
possessed by no other court; leaving it to his discretion 
which court should have that jurisdiction. 

Your Honors will not misunderstand me. Congress 
stopped short of its duty. After describing what the juris- 
diction should be, and that some one court should possess 
it, it stopped short of its duty in not taking that responsi- 
bility that belonged to Congress alone to say what court 
that should be. 

Your Honors can well see to what enormous abuse this 
power, if it existed, would be subject. The bill may be 
filed in any district ; the process is to run into any district ; 
an executive officer is vested with authority to say where 



UNITED STATES V. UNION PACIFIC K.E. CO. ET AL. 435 

that bill shall be filed, and to that place everybody must 
come. And what a means of rewarding friends or punish- 
ing enemies this might be I Of course I do not mean to 
impute to the eminent gentleman to whom this authority 
was confided any thing but the purest intentions in any 
action which he has taken upon this subject: that is not 
the question. It is a question of power, not of its mode of 
use after it has been obtained. And I respectfully submit 
that, when the Constitution says that Congress is to execute 
this power of defining and conferring the jurisdiction, they 
stopped short when they failed to point out the particular 
court which should possess it, and left an executive officer 
to exercise that enormous power. 



INDEX TO VOLUME II. 



Absolute Government, in Europe, 
political ignorance security for, 1-13. 

Allegations, verification of, 160. 

American Revolution, causes of, in New 
England, 21. 

Antelope, case of the, 85, 90. 

Antinomian controversv, 36 

Articles of Confederation, 223, 227, 240. 

Bacon, Lord, extract from, on the 

Commons, 6. 
Bill of Rights, in Massachusetts, 18, 49 ; 

in Ohio'. 183." 
Bowdoin Prize Di-sertations, 1, 13. 
Bradstreet, Governor, influence of, 16. 
Burke, Edmund, quoted, 11. 

Cambridge Platform, quoted, 27, 55. 
Caphart, John, agent of owner in the 

case of Shadrach, 172. 
Carlin, Governor, of Illinois, quoted, 129. 
Carolina, colony of, 58: John Locke 

drafts constitution of, ib. 
Chapman, R. A., commissioner to reform 

legal proceedings in Massachusetts, 

171. 
Chase, Judge, impeachment of, 186. 
Chitty on Pleading, cited, 219, 220. 
Church and State, union of, 26, 55. 
Citizenship, opinion in regard to, 229 et 

seq. 
Clergv, the, of New England, 29. 
Coke," Lord, cited, 158, 188, 195, 204, 367, 

370. 
Colleges, New England, 34, 36, 37. 
Commander-in-chief, authority of, 327. 
Common schools in New England, 34. 
Commonwealth v. Aves, 69 ; Chief Jus- 
tice Shaw's opinion in, quoted. 249, 

250. 
Commonwealth.!). Bowen, 208, 209. 
Confederation of New England 22; 

Rhode Island not a member of, 28. 
Constitution of United States, provides 

for rendition of fugitives from slavery, 



82 et seq. ; law of Louisiana in refer- 
ence to banks, in conflict with, 127; 
authorizes foreign states to sue 1 in our 
courts, 145 ; provides for trial of crimes 
by jury, 176 ; supreme law of the laDd, 
177 et seq., 299, 312; does not make 
juries judges of the law, 190; quoted, 
196; defines who shall be citizens, 230 ; 
not made exclusively for the white 
race, 237 ; provision in, as to new 
States, 273; use of the word "regu- 
late" in, 279. 

Cotton, John, influence of, 16. 

Congress, power of, over territory of 
United States, 266 et seq.; power to 
admit new States, 273 ; to make neces- 
sary laws and regulations for all the 
territory of the United States. 273 et 
seq. ; to regulate commerce, 290. 

Dane, Nathan, ordinance for govern- 
ment of Northwestern Territory, 70, 
252. 

Debree, John, claimant of the slave 
Shadrach, 172. 

Debts of the States. See States, Debts 
of. 

Declaration of Rights, 43. 

Deerfield, address delivered at, 39-61. 

Dred Scott, dissenting opinion in the 
case of, 213-305 ; jurisdiction of Cir- 
cuit Court denied, 213; authorities 
cited. 219 et seq. ; slaves, when manu- 
mitted, citizens, 224 et seq. ; Articles 
of Confederation quoted, 227; Consti- 
tution deprives no persons of right of 
citizenship, 229 : not made exclusively 
for the white race, 237; free colored 
persons citizens of United States, 245 ; 
opinion of Chief Justice Shaw in Com- 
monwealth v. Aves quoted, 249, 250; 
citizenship of the plaintiff, 250 et seq. ; 
ceased to be a slave when brought 
into Wisconsin, 2.V2, 262; opinion of 
Chief Justice Gamble of Missouri, 264; 



438 



INDEX TO VOLUME II. 



cession of territory by States to the 
United States, 267 et seq.; power of 
Congress over territories, 273 et seq. ; 
to protect slavery in, 282 et seq. ; 
cases of exercise of this power, 285 et 
seq. ; opinion of Judge Curtis that the 
acts of Congress prohibiting slavery 
in these territories are constitutional 
and valid, 304 ; that the judgment of 
the Circuit Court should be reversed, 
305. 

Drinking-houses and tippling-shops, act 
for suppression of, 191; Judge Curtis's* 
opinion on the validity of, 191-204; 
violation of the right of trial bv jury, 
192 ; in conflict with the Constitution, 
194 et seq. 

Dudley, Governor, influence of, 16 ; em- 
barks for America, 17. 

East, policy of sovereigns of the, 10. 

Kllenborough, Lord, quoted, 73. 

Evelyn, John, diary of, quoted, 21, 22, 52. 

Executive power, pamphlet on, 306-335 ; 
President Lincoln's proclamations, 306, 
307 ; orders of Secretary of War, 308 ; 
importance of, 309 et seq. ; right and 
duty of the people to examine them, 
311 ; nature and extent of powers as- 
sumed, 314; source of these powers, 
317; no grant of them in the Consti- 
tution, 320 ; President no such power 
as commander-in-chief, 322; he can- 
not make laws, 323; military law, 
324; martial law, ib. ; assertion that 
"rebels have no rights " untrue, 329; 
a wise people jealous of power, 334. 

Federalist, the, quoted, 178, 411. 

First settlers of New England, institu- 
tions of the, 13 ; creed of, 25. 

Fugitive slave law, held to be constitu- 
tional by Supreme Court of Massachu- 
setts, 175. 

Gamble, Chief Justice, of Missouri, 

his opinion quoted, 264. 
Grace, case of the slave, 71, 87. 
Greene v. Briggs, case of, 191-204. 

Hampden, John, 18, 364. 

Harvard, John, founder of the College, 
37. 

Husband and Wife, 168. 

Hutchinson, Governor, cited, 20. 

Habeas Corpus, proclamation suspend- 
ing the, 307. 

Impeachment, of Judge Chase, 186; 
of President Johnson, 343 et seq. 

Indiana, debt of, 128. 

Indians, territory of New England pur- 
chased from, 19. 

Illinois, debt of, 129. 



Jay, Chief Justice, opinion whether 
juries are judges of the law, 184. 

Johnson, Isaac, embarks for America, 17. 

Johnson, President, impeachment of, 
343; argument in defence of, 343- 
422 ; Constitution requires a trial, 343 ; 
removal of Mr. Stanton, 345; not a 
violation of the tenure of office act, 
355; power of removal in the Presi- 
dent, 361 et seq. ; charge of conspiracy 
with General Thomas, 403; what are 
impeachable offences under the Con- 
stitution, 409. 

Judiciary Act, the, 145, 214. 

Juries, not judges of the law in criminal 
cases, 176-190 ; Lord Mansfield's opin- 
ion on, 181 ; law of England, 182 ; to 
be directed by the judge in all cases, 
182 ; opinion of Chief Justice Jay on 
the subject, 184. 

Jury, right of trial by, established by 
tfie Constitution of the United States, 
176, 192 ; by that of Rhode Island, 192. 

Kent, Chancellor, quoted, 373. 

Lechford, Thomas, quoted, 26, 55. 

Legal Proceedings, report on reform of, 
in Massachusetts, 149-171; defects of, 
149, 150; want of system in, 151; spe- 
cial pleading, 151 et seq. ; objections 
to, 155 ; reforms suggested, 159 et seq. ; 
verification of allegations, 160; forci- 
ble entry and detainer, 162 ; witnesses, 
164; husband and wife, 168; examina- 
tion of parties, 168-170; draft of an 
act in relation to, 171. 

Legrand v. Darnall, case of, 246. 

Libel, action for a, against Daniel Wells 
of Greenfield, 62; Mr. Curtis's brief 
for defendant, 62-68. 

Lincoln, President, his emancipation 
proclamation, 306; proclamation de- 
claring martial law and suspending 
the habeas corpus, 307. 

Locke, John, drafts Constitution of Caro- 
lina, 58, 159. 

Lord, N. S. commissioner to reform legal 
proceedings in Massachusetts, 171. 

Louisiana, debt of, 126. 

Madison, James, quoted, 418, 419. 

Magna Charta, referred to, 42, 64, 195, 
204. 

Mansfield, Lord, quoted, 75; declares 
juries not judges of the law, 181. 

Marshall, Chief Justice, quoted, 85, 146, 
303, 368, 374, 376. 

Martial law, defined, 324 et seq. 

Maryland, debt of, 111. 

Massachusetts, quo warranto against 
charter of, 20; superior power of, in 
New England confederacy, 23 ; union 
of church and state in, "26; account 



INDEX TO VOLUME II. 



439 



of the Colony of, 47 et seq. ; Bill of 
Rights of, 49; commission to reform 
legal proceedings in, 171. 

Mathews, Mr., restrained from preach- 
ing, 26. 

Michigan, deht of, 122. 

Med, case of the slave, 69-92. 

Military law, defined, 324. 

Military officer, domicile of a, 256. 

Mississippi, debt of , 1 17 ; word " repudi- 
ation " first used in, ib. 

Morris, Judge, of Indiana, decision of, 
in relation to fugitive slaves, 91. 

Morris, Gouverneur, moves clause in 
Constitution for admission of States 
into the Union, 273. 

Morris, Robert, indictment for rescue of 
the slave Shadrach, 172 ; Judge Cur- 
tis's charge to the jury, 172-175; his 
opinion in the case, 176-190. 

New England, character of people of, 
resulting from civil and religious in- 
stitutions of first settlers, 13-38 ; Con- 
federation of, 22 ; creed of first set- 
tlers, 25 ; early clergy of, 29, 33 ; com- 
mon schools of, 34 ; colleges of, 36, 37. 

North America, colonists of, 41. 

North American Review, article on Debts 
of the States in, 93-148. 

North Church, Boston, 26. 

Offence of obstructing process of the 

United States, 205-212. See United 

States. 
Officer, domicile of a military, 256. 
Olmsted, Asa, action for libel against 

Daniel Wells, 62; Mr. Curtis's brief 

for defendant, 62 -68. 
Ordinance of 1787, abolishes slavery in 

the Northwestern Territory, 70, 252. 

Parker, Chief Justice, quoted, 209. 

Penusvlvania, debt of, 107. 

Peters", Hugh, 31. 

Pleading, special, 150 et seq. 

Plymouth Company, 17. 

Political Ignorance, security for absolute 
government in Europe, 1-12; accom- 
panied by indifference to interests of 
society, 5. 

Pothier, quoted, 73. 

Public Opinion exercised only by an en- 
lightened people, 7. 

Puritans, the, origin of, 14-44; causes 
which brought them to America, 15 ; 
love of liberty, 46. 

Quo Warranto, issued against Massa- 
chusetts charter, 20. 

Raleigh, Sir Walter, 42. 
Randolph, Edward, arrives in New Eng- 
land, 21 ; quoted. 53. 



Reed, Chief Justice, of Lower Canada, 
decision of, 77. 

" Regulate," use of the word in the Con- 
stitution, 270. 

Reform of legal proceedings in Massa- 
chusetts, 149-171. See Legal Pro- 
ceedings. 

" Repudiation, '' word first used in Mis- 
sissippi, 117; true meaning of the 
word, 133 ; is confiscation, 140 ; effects 
produced by, 141. 

Rhode Island, not a member of the 
Confederation of New England, 28; 
act for suppression of tippiing-shops 
in, 191. 

Rousseau, theory of civil society, 58. 

Shadrach, arrested as a fugitive slave, 
172 ; charge to the jury in the case of, 
172-175 ; rescue of, 174. 

Shaw, Chief Justice, opinion of, in 
Commonwealth v. Aves, quoted, 249, 
250. 

Sheppard v. Graves, quoted, 217. 

Slave Med, case of, argument of Mr. 
Curtis in, 69-92. 

Slavery, not immoral, 84; introduced 
by custom, not positive law, 88; de- 
cision of Judge Morris in relation to, 
91; contrary to natural right, 292; cre- 
ated only by municipal law, ib.. 

Slaves, when manumitted, become free- 
men, 225. 

Sommersett's case, 75, 86 et seq. 

Special Pleading, 150 et seq. 

States, Debts of, article on, 93-148; ori- 
gin of, 94 et seq. ; debt of Pennsylva- 
nia, 107; of Maryland 111 ; of Missis- 
sippi, 117; word "repudiation" first 
used, ib. ; debt of Michigan, 122; of 
Louisiana, 126; of Indiana and Illi- 
nois, 128; duties of States in relation 
to, 130; meaning of the word "repu- 
diation," 133; means confiscation, 
ib. ; credit of the country impaired 
by, 141; connection with our foreign 
relations, 143 ; conduct of States in 
regard to British debts in 1792, 144. 

Stephen on Pleading, cited, 219, 221. 

Storv, Justice, his Conflict of Laws 
quoted, 71, 73, 78; Commentaries on 
the Constitution, quoted, 369. 

Stowell, Lord, opinion in the case of the 
slave Grace, 71, 87. 

Sydney, Algernon, 18. 

Taney, Chief Justice, character and 
public services of, 336-342; resolu- 
tions of the Boston Bar, 336 ; address 
bv Judge Curtis, 337. 

Tenure-of-Otfice Act, President John- 
son impeached for violating, 345 et 
seq. 

" Territory," meaning of the word, 274. 



440 



INDEX TO VOLUME II. 



Trial by Jury, right of, established by- 
Constitution of United States, 176, 
192; by that of Rhode Island, 192. 

United States, obstructing process of 
the, 205-212; an offence against the 
laws, 206 ; not necessary, to prove vio- 
lence, 207; Chief Justice Parker on, 
209 ; all laws equally to be enforced, 
211. 

United States v. Robert Morris, charge 
to the jury in the case of, 172-176. 

United States v. Union Pacific Railroad" 
Co., argument in the case of, 423- 
435. 

United States Bank, of Pennsylvania, 
issue bonds, 105; opposes resumption 
of specie payments, 106 ; again stops 



payment, ib. ; connection with Michi- 
gan State bonds, 123. 

Vattel, quoted, 73, 74, 91, 129. 

Washington, address delivered at Deer- 
field on the anniversary of his birth, 
39-61. 

Wells, Daniel, suit against, for libel, by 
Olmsted, 62-68. 

Winslow, Josias, letter of, 19. 

Winthrop, John, influence of, 16; em- 
barks tor America, 17; cited, 20. 

Witnesses, provisions concerning, by 
Massachusetts laws, 164 et seq. 

Woodbury, Justice, states what martial 
law is, 324. 

Wordsworth, William, quoted, 13. 



University Press: John Wilson & Son, Cambridge.