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THE
WORKS
OF
DANIEL WEBSTER.
VOLUME VI
EIGHTEENTH EDITION.
BOSTON:
LITTLE, BROWN, AND COMPANY.
1881.
Entered according to Act of Congress, in the year 1851, by
George W. Gordon and James W. Paige,
in the Clerk's Office of the District Court of the District of Massachusetts
Entered for renewal of Copyright, according to Act of Congress, in the year 1879,
By Caroline S. Webster,
in the Office of the Librarian of Congress, at Washington.
DEDICATION
OF THE SIXTH VOLUME.
With the warmest paternal affection, mingled with deeply afflicted
feelings, I dedicate this, the last volume of my Works, to the memory
of my deceased children :
JULIA WEBSTER APPLETON,
beloved in all the relations of Daughter, Wife, Mother, Sister, and
Friend ; and
MAJOR EDWARD WEBSTER,
who died in Mexico, in the military service of the United States, with
unblemished honor and reputation, and who entered that service solely
from a desire to be useful to his country and do honor to the State
in which he was born.
" Go, gentle Spirits, to your destined rest :
While I, reversed our Nature's kindlier doom,
Pour forth a Father's sorrow on your tomb."
DANIEL WEBSTER
CONTENTS
OF THE SIXTH VOLUME.
LEGAL ARGUMENTS AND SPEECHES TO THE JURY.
Paoi
The Case of Gibbons and Ogden 3
An Argument made in the Case of Gibbons and Ogden, in the Supreme
Court of the United States, February Term, 1824.
The Case of Ogden and Saunders 24
An Argument made in the Case of Ogden and Saunders, in the Supreme
Court of the United States, January Term, 1827.
The Murder of Captain Joseph White .... 41
An Argument on the Trial of John Francis Knapp, for the Murder of
Joseph White, Esq., of Salem, in Essex County, Massachusetts, on the
Night of the 6th of April, 1830.
The Bank of the United States against William D. Prim-
rose 106
An Argument made in the Supreme Court of the United States, on the 9th
of February, 1839.
The Christian Ministry and the Religious Instruction of
the Young 133
A Speech delivered in the Supreme Court at Washington, on the 20th of
February, 1844, in the Case of Francois F6nelon Vidal, John F. Girard,
' and others, Complainants and Appellants, against the Mayor, Aldermen,
and Citizens of Philadelphia, the Executors of Stephen Girard, and others,
Defendants.
The Providence Railroad Company against the City of
Boston . . . . ... . . . . 185
An Argument before the Supreme Court of Massachusetts, sitting at Boston
as a Court of Equity, on the 3d of April, 1 844.
n CONTENTS.
The Rhode Island Government 21"7
An Argument made in the Supreme Court of the United States, on the 27th
of January, 1848, in the Case of Martin Luther against Luther M. Borden
and others.
DIPLOMATIC AND OFFICIAL PAPERS
The Case of Alexander McLeod 24T
Mr. Fox to Mr. Webster. March 12, 1841.
Mr. Webster to Mr. Fox. April 24, 1841.
Mr. Webster to the Attorney- General of the United States. March 15, 1841.
An Act to provide further remedial Justice in the Courts of the United
States. Passed August 29, 1842.
Treaty of Washington of 1842 270
THE NORTHEASTERN BOUNDARY.
Mr. Webster to Mr. Everett. January 29, 1842.
Mr. Webster to Governor Fairfield. April 11, 1842.
Mr. Webster to the Maine Commissioners. July 15, 1842.
Lord Ashburton to Mr. Webster. July 16, 1842.
Mr. Webster to Lord Ashburton. July 27, 1842.
Lord Ashburton to Mr. Webster. July 29, 1842.
Lord Ashburton to Mr. Webster. August 9, 1842.
Mr. Webster to Lord Ashburton. August 9, 1842.
SUPPRESSION OP THE SLAVE-TRADE.
Mr. Webster to Captains Bell and Paine. April 30, 1842.
Correspondence with Lord Ashburton .... 292
INVIOLABILITY OP NATIONAL TERRITORY. — CASE OF THE "CAROLINE."
Mr. Webster to Lord Ashburton. July 27, 1842.
Extract from the Message of the President at the Commencement of the
Second Session of the 27th Congress.
Lord Ashburton to Mr Webster. July 28, 1842.
Mr. Webster to Lord Ashburton. August 6, 1842.
MARITIME RIGHTS. — CASE OF THE "CREOLE."
Mr. Webster to Lord Ashburton. August 1, 1842.
Lord Ashburton to Mr. Webster. August 6, 1842.
Mr. Webster to Lord Ashburton. August 8, 1842.
IMPRESSMENT.
Mr. Webster to Lord Ashburton. August 8, 1842.
Lord Ashburton to Mr. Webster. August 9, 1842.
CONTENTS. vii
The Right of Search 329
Mr. Webster to the President of the United States. February 26, 184 J.
Mr. Webster to Mr. Everett. March 28, 1843.
Mr. Webster to General Cass. April 5, 1842.
The Treaty of Washington 347
President's Message, transmitting the Treaty of Washington to the Senate.
Vote of the Senate on the Final Question of Ratification, &c.
Letters to General Cass on the Treaty of Washington 367
Mr. Webster to General Cass. August 29, 1842.
Mr. F. Webster to General Cass. October 11, 1842.
Mr. Webster to General Cass. November 14, 1842v
Mr. Webster to General Cass. December 20, 1842.
Relations with Spain. — Schooner "Amistad" . . 391
The Chevalier d'Arga'fz to Mr. Webster. April 5, 1841.
The Chevalier d'Arga'fz to Mr. Webster. April 11, 1841.
Mr. F. Webster to the Chevalier dArgafz. May 3, 1841.
The Chevalier d'Arga'fz to Mr. Webster. May 29, 1841.
Mr. Webster to the Chevalier d'Argafz. September 1, 1841.
Mr. Webster to the Chevalier d'Arga'fz. June 21, 1842.
Sound Dues at Elsinore, and the German Zoll-Verein . 406
Mr. Webster to the President of the United States. May 24, 1841.
Treaty with Portugal 415
Mr. Webster to M. de Figaniere e Morao. February 9, 1842.
Relations with Mexico . . 422
AMERICAN CITIZENS CAPTURED AT SANTA FE.
Mr. Webster to Mr. Ellis. January 3, 1842.
Mr. Webster to Mr. Ellis. January b, 1842.
Mr. Webster to Mr. Peyton. January 6, 1842.
Mr Webster to Mr. Thompson. April 15, 1842
s
INDEPENDENCE OP TEXAS.
Message from the President of the United States, transmitting Copies of
Papers upon the Subject of the Relations between the United States and
the Mexican Republic, July 14, 1842.
Mr. Webster to the President of the United States. July 13, 1842.
M. Velazquez de Leon to Mr. Webster. June 24, 1 842.
Mr. Webster to M. Velazquez de Leon. June 29, 1842.
M. de Bocanegra to Mr. Webster. May 12, 1842.
riii CONTENTS.
Mr. Webster to Mr. Thompson. July 8, 1842.
M. de Bocanegra to Mr. Webster. May 31, 1842.
Mr. Webster to Mr. Thompson. July 13, 1842.
CAPTURE OF MONTERET.
Mr. Webster to Mr. Thompson. January 17, 1843.
Mr. Webster to General Almonte. January 21, 1843.
Mr. Webster to General Almonte. January 30, 1843.
China and the Sandwich Islands ..... 463
Message from the President of the United States, on the Subject of the Trade
and Commerce of the United States with the Sandwich Islands, and of
Diplomatic Intercourse with their Government ; also, in Relation to the
new Position of Affairs in China, growing out of the late War between
Great Britain and China, and recommending Provision for a Diplomatic
Agent, December 31, 1842.
INTERCOURSE WITH CHINA.
Mr. Webster to Mr. Cushing. May 8, 1843.
Mr. Webster to Mr. Cushing. May 8, 1843.
Letter to the Emperor. July 12, 1843.
INDEPENDENCE OF THE SANDWICH ISLANDS
The Secretary of State to the Agents of ,lhe Sandwich Islands. Decembci
19, 1842.
Boundaries of Texas 479
Mr. Webster to his Excellency P. H. Bell, Governor of Texas. August 5,
1850.
Correspondence with the Chevalier Hulsemann . . 488
Chevalier J. G. Hulsemann to the Secretary of State. September 30, 1850.
The Secretary of State to the Chevalier Hulsemann. December 21, 1850.
The Chevalier Hulsemann to Mr. Webster. March 11, 1851.
Mr. Webster to the Chevalier Hulsemann. March 15, 1851.
Excesses committed at New Orleans .... 507
Mr. Webster to Don A. Calderon de la Barca, Minister of Spain to the
United States. November 13, 1851.
The Lopez Expedition . 513
Mr. Webster to Mr. Barringer, Minister of the United States to Spain. No-
vsmber 26, 1851.
The Case of Thrasher 518
Mr. Webster to Mr. Barringer. December 13, 1851.
Mr. Webster to the President of the United States. December 23, 1851.
CONTENTS. ix
MISCELLANEOUS LETTERS.
Imprisonment for Debt 533
To the Rev. Louis Dwight, Secretary of the Prison Discipline Society. May
2, 1830.
Slavery .......... 536
To John Bolton, Esq., of Georgia. May 17, 1833.
Power of the States to contract Loans . . • 537
To Messrs. Baring Brothers & Co. October 16, 1839.
Intercourse with England ...... 540
To the Duke of Rutland. November 16, 1839.
Laborers on the Public Works ..... 542
To M. St. Clair Clarke, Wm. S. Murphy, and Hudson M. Garland. March
27, 1841.
To his Political Friends in New Hampshire . . . 543
To Messrs. John Haven and others. January 3, 1844.
Reply to the Boston Address ...... 546
To the Hon. Thomas H. Perkins and others, Citizens of Boston. April 9,
1850.
Slavery in New Mexico 548
To the Hon. Hugh N. Smith, Delegate from New Mexico. April 8, 1850.
Hon. Hugh N. Smith to the Hon. Daniel Webster. April 9, 1850.
To a former Political Opponent ..... 550
To Hon. Isaac Hill. April 20, 1850.
To Citizens of Newburyport, Mass 551
To Edward S. Rand and others, Citizens of Newburyport, Mass. May 15,
1850.
To Citizens of Medford, Mass. . . . . . 563
To Dudley C. Hall, Esq., and others, Citizens of Medford, Mass. June 3,
1850.
Celebration of the Seventeenth of June . . . 565
To G. W. Warren, Esq., Chairman of the Bunker Hill Committee. June
13, 1S>0.
x COOTEJ\rS.
To Citizens on the Kennebec River .... 566
To R. H. Gardiner, Esq., and others, Inhabitants of the Cities and Towns
on the Kennebec River. June 17, 1850.
To his New Hampshire Neighbors ..... 575
To the Rev. Ebenezer Price and others, Neighbors of Mr. Webster in New
Hampshire. September 21, 1850.
Union Meeting at Castle Garden ..... 577
To Messrs. F. S. Lathrop and others, New York. October 28, 1850.
To Citizens of Staunton, Virginia 579
To Messrs. William Kinney and others, of Staunton, Virginia. November
23, 1850.
To Citizens of Westchester, New York . . . 582
To J. A. Hamilton, Esq., and others, Westchester, New York. January 27,
1851.
The Birthday of Washington 586
To the New York Committee for the Celebration of the Birthday of Wash-
ington. February 20, 1851.
Release of the Hungarian Refugees . .. . . 591
To George P. Marsh, Esq., &c, Constantinople. February 28, 1851.
Invitation to New York . .... 595
To George Griswold, Esq., and others, in Reply to a Letter transmitting
an Invitation signed by more than five thousand Citizens of New York,
" Friends of the Union, without Distinction of Party." May 9, 1851.
To his Cape Cod Friends 59b
To a Number of Friends at West Dennis, Mass. July 14, 1851.
[nvitation to Georgia 599
To Mark A. Cooper, Esq., Macon, Georgia. October 6, 1851.
Monument to Isaac Davis ....... 601
To Mr. J. T. Woodbury, Chairman of the Committee of Arrangements for
the Celebration at Acton, Mass. October 15, 1851.
Index 603
LEGAL ARGUMENTS
AND
SPEECHES TO THE JURY.
(continued.)
VOL. VI.
THE CASE OF GIBBONS AND OGDEN.*
This was an appeal from the Court for the Trial of Impeachment*
and Correction of Errors of the State of New York. Aaron Ogden
filed his bill in the Court of Chancery of that State, against Thomas
Gibbons, setting forth the several acts of the legislature thereof, enacted
for the purpose of securing to Robert R. Livingston and Robert Fulton
the exclusive navigation of all the waters within the jurisdiction of that
State, with boats moved by fire or steam, for a term of years which had
not then expired ; and authorizing the Chancellor to award an injunction,
restraining any person whatever from navigating those waters with boats
of that description. The bill stated an assignment from Livingston and
Fulton to one John R. Livingston, and from him to the complainant,
Ogden, of the right to navigate the waters between Elizabethtown, and
other places in New Jersey, and the city of New York ; and that Gib-
bons, the defendant below, was in possession of two steamboats, called
the Stoudinger and the Bellona, which were actually employed in run-
ning between New York and Elizabethtown, in violation of the exclu-
sive privilege conferred on the complainant, and praying an injunction
to restrain the said Gibbons from using the said boats, or any other pro-
pelled by fire or steam, in navigating the waters within the territory of
New York.
The injunction having been awarded, the answer of Gibbons was filed,
in which he stated, that the boats employed by him were duly enrolled
and licensed to be employed in carrying on the coasting trade, under
the act of Congress, passed the 18th of February, 1793, ch. 8, entitled,
" An Act for enrolling and licensing ships and vessels to be employed
in the coasting trade and fisheries, and for regulating the same." And
the defendant insisted on his right, in virtue of such licenses, to navigate
the waters between Elizabethtown and the city of New York, the said
•Argument made in the Case df Gibbons and Ogden, in the Supreme Court
oi the United States, February Term, 1824.
4 THE CASE OF GIBBONS AND OGDEN.
acts of the legislature of the State of New York to the contrary ncl-
withstanding. At the hearing, the Chancellor perpetuated the injunction,
being of the opinion that the said acts were not repugnant to the Con-
stitution and laws of the United States, and were valid. This decree
was affirmed in the Court for the Trial of Impeachments and Correction
of Errors, which is the highest court of law and equity in the State of
New York before which the cause could be carried, and it was there-
upon carried up to the Supreme Court of the United States by appeal.
The following argument was made by Mr. Webster, for the plaintiff
in error.
It is admitted, that there is a very respectable weight of au-
thority in favor of the decision which is sought to be reversed.
The laws in question, I am aware, have been deliberately re-
enacted by the legislature of New York ; and they have also
received the sanction, at different times, of all her judicial tribu-
nals, than which there are few, if any, in the country, more
justly entitled to respect and deference. The disposition of the
court will be, undoubtedly, to support, if it can, laws so passed
and so sanctioned. I admit, therefore, that it is justly expected
of us that we should make out a clear case ; and unless we do so,
we cannot hope for a reversal. It should be remembered, how-
ever, that the whole of this branch of power, as exercised by this
court, is a power of revision. The question must be decided by
the State courts, and decided in a particular manner, before it
can be brought here at all. Such decisions alone give this
court jurisdiction ; and therefore, while they are to be respected
as the judgments of learned judges, they are yet in the condition
of all decisions from which the law allows an appeal.
It will not be a waste of time to advert to the existing state
of the facts connected with the subject of this litigation. The
use of steamboats on the coasts and in the bays and rivers of
the country, has become very general. The intercourse of its
different parts essentially depends upon this mode of conveyance
and transportation. Rivers and bays, in many cases, form the
divisions between States ; and thence it is obvious, that, if the
States should make regulations for the navigation of these wa-
ters, and such regulations should be repugnant and hostile, em-
barrassment would necessarily be caused to the general inter-
course of the community. Such events have actually occurred,
and have created the existing state of things.
THE CASE OF GIBBONS AND OGDEN. 5
By the law of New York, no one can navigate the bay of
New York, the North River, the Sound, the lakes, or any of the
waters of that State, by steam-vessels, without a license from
the grantees of New York, under penalty of forfeiture of the
vessel
By the law of the neighboring State of Connecticut, no one
can enter her waters with a steam-vessel having such license.
By the law of New Jersey, if any citizen of that State shall be
restrained, under the New York law, from using steamboats be-
tween the ancient shores of New Jersey and New York, he shall
be entitled to an action for damages, in New Jersey, with treble
costs against the party who thus restrains or impedes him under
the law of New York! This act of New Jersey is called an act
of retortion against the illegal and oppressive legislation of New
York; and seems to be defended on those grounds of public law
which justify reprisals between independent States.
It will hardly be contended, that all these acts are consistent
with the laws and Constitution of the United States. If there
is no power in the general government to control this extreme
belligerent legislation of the States, the powers of the govern-
ment are essentially deficient in a most important and interest-
ing particular. The present controversy respects the earliest of
these State laws, those of New York. On these, this court is
now to pronounce ; and if they should be declared to be valid
and operative, I hope somebody will point out where the State
right stops, and on what grounds the acts of other States are to
be held inoperative and void.
It will be necessary to advert more particularly to the laws of
New York, as they are stated in the record. The first was
passed March 19th, 1787. By this act, a sole and exclusive
right was granted to John Fitch, of making and using every kind
of boat or vessel impelled by steam, in all creeks, rivers, bays,
and waters within the territory and jurisdiction of New York,
for fourteen years.
On the 27th of March, 1798, an act was passed, on the sug-
gestion that Fitch was dead, or had withdrawn from the State,
without having made any attempt to use his privilege, repealing
the grant to him, and conferring similar privileges on Robert R.
Livingston, for the term of twenty years, on a suggestion, made
by him, that he was possessor of a mode of applying the steam-
1*
6 THE CASE OF GIBBONS AND OGDEN.
engine to propel a boat, on new and advantageous principles.
On the 5th of April, 1803, another act was passed, by which it
was declared, that the rights and privileges granted to Robert R.
Livingston by the last act should be extended to him and Rob-
ert Fulton, for twenty years from the passing of the act. Then
there is the act of April 11, 1808, purporting to extend the mo-
nopoly, in point of time, five years for every additional boat, the
whole duration, however, not to exceed thirty years ; and forbid-
ding any and all persons to navigate the waters of the State
with any steam boat or vessel, without the license of Livingston
and Fulton, under penalty of forfeiture of the boat or vessel.
And lastly comes the act of April 9, 1811, for enforcing the pro-
visions of the last-mentioned act, and declaring, that the forfeit-
ure of the boat or vessel found navigating against the provisions
of the previous acts shall be deemed to accrue on the day on which
such boat or vessel should navigate the waters of the State ; and
that Livingston and Fulton might immediately have an action
for such boat or vessel, in like manner as if they themselves had
been dispossessed thereof by force ; and that on bringing any
such suit, the defendant therein should be prohibited, by injunc-
tion, from removing the boat or vessel out of the State, or using it
within the State. There are one or two other acts mentioned
in the pleadings, which principally respect the time allowed for
complying with the condition of the grant, and are not mate-
rial to the discussion of the case.
By these acts, then, an exclusive right is given to Livingston
and Fulton to use steam navigation on all the waters of New
York, for thirty years from 1808.
It is not necessary to recite the several conveyances and agree-
ments, stated in the record, by which Ogden, the plaintiff below,
derives title under Livingston and Fulton to the exclusive use
of part of these waters for steam navigation.
The appellant being owner of a steamboat, and being found
navigating the waters between New Jersey and the city of New
York, over which waters Ogden, the plaintiff below, claims an
exclusive right, under Livingston and Fulton, this bill was filed
against him by Ogden, in October, 1818, and an injunction
granted, restraining him from such use of his boat. This in-
junction was made perpetual, on the final hearing of the cause,
in the Court of Chancery ; and the decree of the Chancellor has
THE CASE OF GIBBONS AND OGDEN. 7
been duly affirmed in the Court of Errors. The right, there-
fore, which the plaintiff below asserts, to have and maintain his
injunction, depends obviously on the general validity of the New
York laws, and especially on their force and operation as
against the right set up by the defendant. This right he states
in his answer to be, that he is a citizen of New Jersey, and
owner of the steamboat in question ; that the boat is a vessel
of more than twenty tons burden, duly enrolled and licensed for
carrying on the coasting trade, and intended to be employed by
him in that trade, between Elizabethtown, in New Jersey, and
the city of New York ; and that it was actually employed in nav-
igating between those places at the time of, and until notice of,
the injunction from the Court of Chancery was served on him.
On these pleadings the substantial question is raised, Are
these laws such as the legislature of New York has a right to
pass? If, so, do they, secondly, in their operation, interfere
with any right enjoyed under the Constitution and laws of the
United States, and are they therefore void, as far as such inter-
ference extends?
It may be well to state again their general purport and effect,
and the purport and effect of the other State laws which have
been enacted by way of retaliation.
A steam-vessel, of any description, going to New York, is
forfeited to the representatives of Livingston and Fulton, unless
she have their license. Going from New York or elsewhere
to Connecticut, she is prohibited from entering the waters of
that State if she have such license.
If the representatives of Livingston and Fulton in New
York carry into effect, by judicial process, the provision of the
New York laws, against any citizen of New Jersey, they ex-
pose themselves to a statute action in New Jersey for all dam-
ages, and treble costs.
The New York laws extend to all steam-vessels ; to steam
frigates, steam ferry-boats, and all intermediate classes. They
extend to public as well as private ships ; and to vessels em-
ployed in foreign commerce, as well as to those employed in
the coasting trade.
The remedy is as summary as the grant itself is ample ; for
immediate confiscation, without seizure, trial, or judgment, isi
the penalty of infringement.
Q THE CASE OF GIBBONS AND OGDEN.
In regard to these acts, I shall contend, in the first place, that
they exceed the power of the legislature ; and, secondly, that, if
they could be considered valid for any purpose, they are void
still, as against any right enjoyed under the laws of the United
States with which they come in collision ; and that in this
case they are found interfering with such rights.
I shall contend that the power of Congress to regulate com-
meice is complete and entire, and, to a certain extent, neces-
sarily exclusive ; that the acts in question are regulations of
commerce, in a most important particular, affecting it in those
respects in which, it is under the exclusive authority of Con-
gress. I state this first proposition guardedly. I do not mean
to say, that all regulations which may, in their operation, affect
commerce, are exclusively in the power of Congress ; but that
such power as has been exercised in this case does not remain
with the States. Nothing is more complex than commerce ;
and in such an age as this, no words embrace a wider field
than commercial regulation. Almost all the business and in-
tercourse of life may be connected incidentally, more or less,
with commercial regulations. But it is only necessary to ap-
ply to this part of the Constitution the well-settled rules of
construction. Some powers are held to be exclusive in Con-
gress, from the use of exclusive words in the grant ; others, from
the prohibitions on the States to exercise similar powers ; and
others, again, from the nature of the powers themselves. It
has been by this mode of reasoning that the court has adjudi-
cated many important questions ; and the same mode is proper
here. And, as some powers have been held to be exclusive, and
others not so, under the same form of expression, from the na-
ture of the different powers respectively ; so where the power,
on any one subject, is given in general words, like the power to
regulate commerce, the true method of construction will be to
consider of what parts the grant is composed, and which of
those, from the nature of the thing, ought to be considered ex-
clusive. The right set up in this case, under the laws of New
York, is a, monopoly. Now I think it very reasonable to say,
that the Constitution never intended to leave with the States
the power of granting monopolies either of trade or of naviga-
tion ; and therefore, that as to this, the commercial power ia
exclusive in Congress.
THE CASE OF GIBBONS AND OGDEN. 9
It is in vain to look for a precise and exact definition of the
powers of Congress on several subjects. The Constitution
does not undertake the task of making such exact definitions.
In conferring powers, it proceeds by the way of enumeration,
stating the powers conferred, one after another, in few words ;
and where the power is general or complex in its nature, the
extent of the grant must necessarily be judged of, and limited,
by its object, and by the nature of the power.
Few things are better known than the immediate causes
which led to the adoption of the present Constitution ; and
there is nothing, as I think, clearer, than that the prevailing mo-
tive was to regulate commerce ; to rescue it from the embarrass-
ing and destructive consequences resulting from the legislation
of so many different States, and to place it under the protection
of a uniform law. The great objects were commerce and reve-
nue; and they were objects indissolubly connected. By the
Confederation, divers restrictions had been imposed on the
States ; but these had not been found sufficient. No State, it
is true, could send or receive an embassy ; nor make any treaty ;
nor enter into any compact with another State, -or with a for-
eign power ; nor lay duties interfering with treaties which had
been entered into by Congress. But all these were found to be
far short of what the actual condition of the country required.
The States could still, each for itself, regulate commerce, and
the consequence was a perpetual jarring and hostility of com-
mercial regulation.
In the history of the times, it is accordingly found, that the
great topic, urged on all occasions, as showing the necessity ol
a new and different government, was the state of trade and
commerce. To benefit and improve these was a great object
in itself; and it became greater when it was regarded as the
only means of enabling the country to pay the public debt, and
to do justice to those who had most effectually labored for its
independence. The leading state papers of the time are full of
this topic. The New Jersey resolutions* complain that the
regulation of trade was in the power of the several States,
within their separate jurisdiction, to such a degree as to involve
many difficulties and embarrassments; and they express an
* 1 Laws U. S. p. 28, Bioren and Duane's ed.
10 THE CASE OF GIBBONS AttD OGDEN.
earnest opinion, that the sole and exclusive power of regulating
trade with foreign states ought to be in Congress. Mr. With-
erspoon's motion in Congress, in 1781, is of the same general
character ; and the report of a committee of that body, in 1785,
is still more emphatic. It declares that Congress ought to pos-
sess the sole and exclusive power of regulating trade, as well
with foreign nations as between the States.* The resolutions
of Virginia, in January, 1786, which were the immediate cause
of the Convention, put forth this same great object. Indeed, it
is the only object stated in those resolutions. There is not an-
other idea in the whole document. The sole purpose for
which the delegates assembled at Annapolis was to devise
means for the uniform regulation of trade. They found no
means but in a general government ; and they recommended a
convention to accomplish that purpose. Over whatever other
interests of the country this government may diffuse its benefits
and its blessings, it will always be true, as matter of historical
fact, that it had its immediate origin in the necessities of com-
merce ; and for its immediate object, the relief of those neces-
sities, by removing their causes, and by establishing a uniform
and steady system. It will be easy to show, by reference to the
discussions in the several State conventions, the prevalence of
the same general topics ; and if any one would look to the pro-
ceedings of several of the States, especially to those of Massa-
chusetts and New York, he would see very plainly, by the
recorded lists of votes, that wherever this commercial necessity
was most strongly felt, there the proposed new Constitution had
most friends. In the New York convention, the argument aris-
ing from this consideration was strongly pressed, by the dis-
tinguished person f whose name is connected with the present
question.
We do not find, in the history of the formation and adoption
of the Constitution, that any man speaks of a general concur-
rent power, in the regulation of foreign and domestic trade,
as still residing in the States. The very object intended, more
than any other, was to take away such power. If it had not
so provided, the Constitution would not have been worth ac«
cepti ng.
* t Laws U. S., p. 50. f Chancellor Livingston.
THE CASE OF GIBBONS AND OGDEN. H
I contend, therefore, that the people intended, in establishing
the Constitution, to transfer from the several States to a general
government those high and important powers over commerce,
which, in their exercise, were to maintain a uniform and gen-
eral system. From the very nature of the case, these powers
must be exclusive; that is, the higher branches of commercial
regulation must be exclusively committed to a single hand.
What is it that is to be regulated ? Not the commerce of the
several States, respectively, but the commerce of the United
States. Henceforth, the commerce of the States was to be a
unit ; and the system by which it was to exist and be governed
must necessarily be complete, entire, and uniform. Its character
was to be described in the flag which waved over it, E pluribus
unum. Now, how could individual States assert a right of con-
current legislation, in a case of this sort, without manifest en-
croachment and confusion? It should be repeated, that the
words used in the Constitution, "to regulate commerce," are so
very general and extensive, that they may be construed to cover
a vast field of legislation, part of which has always been occu-
pied by State laws ; and therefore the words must have a rea-
sonable construction, and the power should be considered as
exclusively vested in Congress so far, and so far only, as the
nature of the power requires. And I insist, that the nature of
the case, and of the power, did imperiously require, that such
important authority as that of granting monopolies of trade
and navigation should not be considered as still retained by the
States.
It is apparent, from the prohibitions on the power of the
States, that the general concurrent power was not supposed to
be left with them. And the exception out of these prohibitions
of the inspection laws proves this still more clearly. Which
most concerns the commerce of this country, that New York and
Virginia should have an uncontrolled power to establish their
inspection of flour and tobacco, or that they should have an un-
controlled power of granting either a monopoly of trade in their
own ports, or a monopoly of navigation over all the waters lead-
ing to those ports ? Yet the argument on the other side must
be, that, although the Constitution has sedulously guarded and
limited the first of these powers, it has left the last wholly unlim-
ited and uncontrolled.
12 THE CASE OF GIBBONS AND OGDEN.
But although much has been said, in the discussion on former
occasions, about this supposed concurrent power in the States, I
find great difficulty in understanding what is meant by it. It
is generally qualified by saying, that it is a power by which +he
States could pass laws on subjects of commercial regulation,
which would be valid until Congress should pass other laws
controlling them, or inconsistent with them, and that then the
State laws must yield. What sort of concurrent powers are
these, which cannot exist together ? Indeed, the very reading
of the clause in the Constitution must put to flight this notion
of a general concurrent power. The Constitution was formed
for all the States ; and Congress was to have power to regulate
commerce. Now, what is the import of this, but that Congress
is to give the rule, to establish the system, to exercise the con-
trol over the subject ? And can more than one power, in cases
of this sort, give the rule, establish the system, or exercise the
control ? As it is not contended that the power of Congress is
to be exercised by a supervision of State legislation, and as it
is clear that Congress is to give the general rule, I contend that
this power of giving the general rule is transferred, by the Con-
stitution, from the States to Congress, to be exercised as that
body may see fit; and consequently, that all those high exer-
cises of power, which might be considered as giving the rule, or
establishing the system, in regard to great commercial interests,
are necessarily left with Congress alone. Of this character I
consider monopolies of trade or navigation ; embargoes ; the
system of navigation laws ; the countervailing laws, as against
foreign states ; and other important enactments respecting our
connection with such states. It appears to me a most reasona-
ble construction to say, that in these respects the power of Con-
gress is exclusive, from the nature of the power. If it be not so,
where is the limit, or who shall fix a boundary for the exercise
of the power of the States ? Can a State grant a monopoly
of trade ? Can New York shut her ports to all but her own cit-
izens ? Can she refuse admission to ships of particular nations?
The argument on the other side is, and must be, that she might
do all these things, until Congress should revoke her enact-
ments. And this is called concurrent legislation ! What con-
fusion such notions lead to is obvious enough. A power in the
States to do any thing, and every thing, in regard to commerce,
THE CASE OF GIBBONS AND OGDEN. 13
till Congress shall undo it, would suppose a state of things at
least as bad as that which existed before the present Constitu-
tion. It is the true wisdom of these governments to keep their
action as distinct as possible. The general government should
not seek to operate where the States can operate with more ad-
vantage to the community; nor should the States encroach on
ground which the public good, as well as the Constitution, re-
fers to the exclusive control of Congress.
If the present state of things, these laws of New York, the
laws of Connecticut, and the laws of New Jersey, had been all
presented, in the convention of New York, to the eminent per-
son whose name is on this record, and who acted on that oc-
casion so important a part ; if he had been told, that, after all
he had said in favor of the new government, and of its salutary
effects on commercial regulations, the time would yet come
when the North River would be shut up by a monopoly from
New York, the Sound interdicted by a penal law of Connecti-
cut, reprisals authorized by New Jersey against citizens of
New York, and when one could not cross a ferry without
transshipment, does any one suppose he would have admitted
^1 this as compatible with the government which he was rec-
ommending?
This doctrine of a general concurrent power in the States is
insidious and dangerous. If it be admitted, no one can say
where it will stop. The States may legislate, it is said, wherev-
er Congress has not made a plenary exercise of its power. But
who is to judge whether Congress has made this plenary exer-
cise of power ? Congress has acted on this power ; it has done
all that it deemed wise ; and are the States now to do whatever
Congress has left undone ? Congress makes such rules as, in
its judgment, the case requires; and those rules, whatever they
are, constitute the system.
All useful regulation does not consist in restraint ; and that
which Congress sees fit to leave free is a part of its regulation,
as much as the rest.
The practice under the Constitution sufficiently evinces, that
this portion of the commercial power is exclusive in Congress.
When, before this instance, have the States granted monopo-
lies? When, until now, have they interfered with the naviga-
tion of the country ? The pilot laws, the health laws, or quar*
vol. vi. 2
14 THE CASE OF GIBBONS AND OGDEN.
antine laws, and various regulations of that class, which have
been recognized by Congress, are no arguments to prove, even
if they are to be called commercial regulations (which they are
not), that other regulations, more directly and strictly commer-
cial, are not solely within the power of Congress. There is a1
singular fallacy, as I venture to think, in the argument of very
.earned and most respectable persons on this subject. That
argument alleges, that the States have a concurrent power
with Congress of regulating commerce ; and the proof of this
position is, that the States have, without any question of their
right, passed acts respecting turnpike-roads, toll-bridges, and
ferries. These are declared to be acts of commercial regulation,
affecting not only the interior commerce of the State itself, but
also commerce between different States. Therefore, as all these
are commercial regulations, and are yet acknowledged to be
rightfully established by the States, it follows, as is supposed,
that the States must have a concurrent power to regulate com-
merce.
Now, what is the inevitable consequence of this mode of rea-
soning ? Does it not admit the power of Congress, at once,
upon all these minor objects of legislation ? If all these be reg*
ulations of commerce, within the meaning of the Constitution,
then certainly Congress, having a concurrent power to regulate
commerce, may establish ferries, turnpike-roads, and bridges,
and provide for all this detail of interior legislation. To sus-
tain the interference of the State in a high concern of maritime
commerce, the argument adopts a principle which acknowledges
the right of Congress over a vast scope of internal legislation,
which no one has heretofore supposed to be within its powers.
But this is not all ; for it is admitted that, when Congress and
the States have power to legislate over the same subject, the
power of Congress, when exercised, controls or extinguishes the
State power ; and therefore the consequence would seem to
follow, from the argument, that all State legislation over such
subjects as have been mentioned is, at all times, liable to the
superior power of Congress ; a consequence which no one would
admit for a moment. The truth is, in my judgment, that all
these things are, in their general character, rather regulations of
police than of commerce, in the constitutional understanding of
that term. A road, indeed, may be a matter of great commer-
THE CASE OF GIBBONS AND OGDEN. 15
cial concern. In many cases it is so ; and when it is so, there
is no doubt of the power of Congress to make it. But, gener-
ally speaking, roads, and bridges, and ferries, though of course
they affect commerce and intercourse, do not possess such im-
portance and elevation as to be deemed commercial regulations.
A reasonable construction must be given to the Constitution ;
and such construction is as necessary to the just power of the
States, as to the authority of Congress. Quarantine laws, for
example, may be considered as affecting commerce ; yet they
are, in their nature, health laws. In England, we speak of the
power of regulating commerce as in Parliament, or the king,
as arbiter of commerce ; yet the city of London enacts health
laws. Would any one infer from that circumstance, that the
city of London had concurrent power with Parliament or the
crown to regulate commerce ? or that it might grant a monop-
oly of the navigation of the Thames ? While a health law is
reasonable, it is a health law ; but if, under color of it, enact-
ments should be made for other purposes, such enactments
might be void.
In the discussion in the New York courts, no small reliance
was placed on the law of that State prohibiting the importation
of slaves, as an example of a commercial regulation enacted
by State authority. That law may or may not be constitution-
al and valid. It has been referred to generally, but its particu-
lar provisions have not been stated. When they are more clear-
ly seen, its character may be better determined.
It might further be argued, that the power of Congress over
these high branches of commerce is exclusive, from the consid-
eration that Congress possesses an exclusive admiralty juris-
diction. That it does possess such exclusive jurisdiction will
hardly be contested. No State pretends to exercise any juris-
diction of that kind. The States abolished their courts of ad-
miralty, when the Constitution went into operation. Over
these waters, therefore, or at least some of them, which are
the subject of this monopoly, New York has no jurisdiction
whatever. They are a part of the high seas, and not within the
body of any county. The authorities of that State could not
punish for a murder, committed on board one of these boats, in
some places within the range of this exclusive grant. This
restraining of the States from all jurisdiction out of the body
16 THE CASE OF GIBBONS AND OGDEN.
of theii own counties, shows plainly enough that navigation
on the high seas was understood to be a matter to be regulated
only by Congress. It is not unreasonable to say, that what are
called the waters of New York are, for purposes of navigation
and commercial regulation, the waters of the United States.
There is no cession, indeed, of the waters themselves, but their
use for those purposes seems to be intrusted to the exclusive
power of Congress. Several States have enacted laws which
would appear to imply their conviction of the power of Con-
gress over navigable waters to a greater extent.
If there be a concurrent power of regulating commerce on
the high seas, there must be a concurrent admiralty jurisdiction,
and a concurrent control of the waters. It is a common prin-
ciple, that arms of the sea, including navigable rivers, belong to
the sovereign, so far as navigation is concerned. Their use is
navigation. The United States possess the general power over
navigation, and, of course, ought to control, in general, the use
of navigable waters. If it be admitted that, for purposes of
trade and navigation, the North River and its bay are the river
and bay of New York, and the Chesapeake the bay of Vir-
ginia, very great inconveniences and much confusion might be
the result.
It may now be well to take a nearer view of these laws, to
see more exactly what their provisions are, what consequences
have followed from them, and what would and might follow
from other similar laws.
The first grant to John Fitch gave him the sole and exclusive
right of making, employing, and navigating all boats impelled
by fire or steam, " in all creeks, rivers, bays, and waters within
the territory and jurisdiction of the State." Any other person
navigating such boat was to forfeit it, and to pay a penalty of
a hundred pounds. The subsequent acts repeal this, and grant
similar privileges to Livingston and Fulton; and the act of
1811 provides the extraordinary and summary remedy which
has been already stated. The river, the bay, and the marine
league along the shore, are all within the scope of this grant.
Any vessel, therefore, of this description, coming into any of
those waters, without a license, whether from another State or
from abroad, whether it be a public or private vessel, is instantly
forfeited to the grantees of the monopoly.
THE CASE OF GIBBONS AND OGDEN. 17
Now it must be remembered that this grant is made as an
exercise of sovereign political power. It is not an inspection
law, nor a health law, nor passed by any derivative authority ;
it is professedly an act of sovereign power. Of course, there is
no limit to the power, to be derived from the purpose for which
it is exercised. If exercised for one purpose, it may be also for
another. No one can inquire into the motives which influence
sovereign authority. It is enough that such power manifests
its will. The motive alleged in this case is, to remunerate the
grantees for a benefit conferred by them on the public. But
there is no necessary connection between that benefit and this
mode of rewarding it ; and if the State could grant this mo-
nopoly for that purpose, it could also grant it for any other
purpose. It could make the grant for money ; and so make the
monopoly of navigation over those waters a direct source of
revenue. When this monopoly shall expire, in 1838, the State
may continue it, for any pecuniary consideration which the
holders may see fit to offer, and the State to receive.
If the State may grant this monopoly, it may also grant
another, for other descriptions of vessels ; for instance, for all
sloops.
If it can grant these exclusive privileges to a few, it may
grant them to many ; that is, it may grant them to all its own
citizens, to the exclusion of every body else.
But the waters of New York are no more the subject of ex
elusive grants by that State, than the waters of other States
are subjects of such grants by those other States. Virginia
may well exercise, over the entrance of the Chesapeake, all the
power that New York can exercise over the bay of New York,
and the waters on her shores. The Chesapeake, therefore, upon
the principle of these laws, may be the subject of State mo-
nopoly; and so may the bay of Massachusetts. But this is
not all. It requires no greater power to grant a monopoly of
trade, than a monopoly of navigation. Of course, New York,
if these acts can be maintained, may give an exclusive right
of entry of vessels into her ports ; and the other States may
do the same. These are not extreme cases. We have only to
suppose that other States should do what New York has
already done, and that the power should be carried to its full
extent.
2*
IS THE CASE OF GIBBONS AND OGDEN.
To all this, no answer is to be given but one, that the con-
current power of the States, concurrent though it be, is yet
subordinate to the legislation of Congress ; and that therefore
Congress may, whenever it pleases, annul the State legislation ;
but until it does so annul it, the State legislation is valid and
effectual. What is there to recommend a construction which
leads to a result like this ? Here would be a perpetual hostility ;
one legislature enacting laws, till another legislature should
repeal them ; one sovereign power giving the rule, till another
sovereign power should abrogate it ; and all this under the idea
of concurrent legislation !
But, further, under this concurrent power, the State does that
which Congress cannot do ; that is, it gives preferences to the
citizens of some States over those of others. I do not mean
here the advantages conferred by the grant on the grantees ; but
the disadvantages to which it subjects all the other citizens of
New York. To impose an extraordinary tax on steam naviga-
tion visiting the ports of New York, and leaving it free every-
where else, is giving a preference to the citizens of other States
over those of New York. This Congress could not do ; and
yet the State does it ; so that this power, at first subordinate,
then concurrent, now becomes paramount.
The people of New York have a right to be protected against
this monopoly. It is one of the objects for which they agreed
to this Constitution, that they should stand on an equality in
commercial regulations ; and if the government should not in-
sure them that, the promises made to them in its behalf would
not be performed.
I contend, therefore, in conclusion on this point, that the
power of Congress over these high branches of commercial reg-
ulation is shown to be exclusive, by considering what was
wished and intended to be done, when the convention for form-
ing the Constitution was called; by what was understood, in
the State conventions, to have been accomplished by the in-
strument ; by the prohibitions on the States, and the express
exception relative to inspection laws ; by the nature of the pow-
er itself; by the terms used, as connected with the nature of the
power; by the subsequent understanding and practice, both of
Congress and the States ; by the grant of exclusive admiralty
jurisdiction to the federal government; by the manifest danger
THE CASE OF GIBBONS AND OGDEN. 19
of the opposite doctrine, and the ruinous consequences to which
it directly leads.
Little is now required to be said, to prove that this exclu-
sive grant is a law regulating commerce ; although, in some of
the discussions elsewhere, it has been called a law of police. If
it be not a regulation of commerce, then it follows, against the
constant admission on the other side, that Congress, even by
an express act, cannot annul or control it. For if it be not a
regulation of commerce, Congress has no concern with it. But
the granting of monopolies of this kind is always referred to the
power over commerce. It was as arbiter of commerce that the
king formerly granted such monopolies.* This is a law regu-
lating commerce, inasmuch as it imposes new conditions and
terms on the coasting trade, on foreign trade generally, and on
foreign trade as regulated by treaties ; and inasmuch as it inter-
feres with the free navigation of navigable waters.
If, then, the power of commercial regulation possessed by
Congress be, in regard to the great branches of it, exclusive ;
and if this grant of New York be a commercial regulation, afTect-
ing commerce in respect to these great branches, then the grant
is void, whether any case of actual collision has happened or not.
But I contend, in the second place, that whether the grant
were to be regarded as wholly void or not, it must, at least, be
inoperative, when the rights claimed under it come in collision
with other rights, enjoyed and secured under the laws of the
United States ; and such collision, I maintain, clearly exists in
this case. It will not be denied that the law of Congress is
paramount. The Constitution has expressly provided for that.
So that the only question in this part of the case is, whether the
two rights be inconsistent with each other. The appellant has
a right to go from New Jersey to New York, in a vessel owned
by himself, of the proper legal description, and enrolled and
licensed according to law. This right belongs to him as a citi-
zen of the United States. It is derived under the laws of the
United States, and no act of the legislature of New York
can deprive him of it, any more than such act could deprive
him r[ the right of holding lands in that State, or of suing
* 1 Black. Com. 273 ; 4 Black. Com. 160
20 THE CASE OF GIBBONS AND OGDEN.
in its courts. It appears from the record, that the boat in
question was regularly enrolled at Perth Amboy, and properly
licensed for .carrying on the coasting trade. Under this enrol-
ment, and with this license, she was proceeding to New York,
when she was stopped by the injunction of the Chancellor, on
the application of the New York grantees. There can be no
doubt that here is a collision, in fact; that which the appellant
claimed as a right, the respondent resisted ; and there remains
nothing now but to determine whether the appellant had, as he
contends, a right to navigate these waters ; because, if he had
such right, it must prevail.
Now, this right is expressly conferred by the laws of the
United States. The first section of the act of February, 1793,
ch. 8, regulating the coasting trade and fisheries, declares, that
all ships and vessels, enrolled and licensed as that act provides,
" and no others, shall be deemed ships or vessels of the United
States, entitled to the privileges of ships or vessels employed in
the coasting trade or fisheries." The fourth section of the same
act declares, " that, in order to the licensing of any ship orves-
sel, for carrying on the coasting trade or fisheries," bond shall be
given, according to the provisions of the act. And the same
section declares, that, the owner having complied with the requi-
sites of the law, " it shall be the duty of the collector to grant a
license for carrying on the coasting trade " ; and the act proceeds
to give the form and words of the license, which is, therefore, of
course, to be received as a part of the act ; and the words of the
license, after the necessary recitals, are, " License is hereby grant-
ed for the said vessel to be employed in carrying on the coast-
ing trade." "Words could not make this authority more express.
The court below seems to me, with great deference, to have
mistaken the object and nature of the license. It seems to have
been of opinion, that the license has no other intent or effect than
to ascertain the ownership and character of the vessel. But
this is the peculiar office and object of the enrolment. That doc-
ument ascertains that the regular proof of ownership and char-
acter has been given ; and the license is given to confer the
right to which the party has shown himself entitled. It is the
authority which the master carries with him, to prove his right
to navigate freely the waters of the United States, and to carry
on the coasting trade.
THE CASE OF GIBBONS AND OGDEN. 21
In some of the discussions which have been had on this ques-
tion, it has been said, that Congress has only provided for ascer-
taining the ownership and property of vessels, but has not pre-
scribed to what use they may be applied. But this is an ob-
vious error. The whole object of the act regulating the coasting
trade is to declare what vessels shall enjoy the benefit of being
employed in that trade. To secure this use to certain ves-
sels, and to deny it to others, is precisely the purpose for which
the act was passed. The error, or what I humbly suppose 1o
be the error, in the judgment of the court below, consists in that
court's having thought, that, although Congress might act, it had
Mot yet acted, in such a way as to confer a right on the appel-
lant ; whereas, if a right was not given by this law, it never
^tould be given. No law can be more express. It has been ad-
mitted, that, supposing there is a provision in the act of Con-
gress, that all vessels duly licensed shall be at liberty to navi-
gate, for the purpose of trade and commerce, all the navigable
harbors, bays, rivers, and lakes within the several States, any
law of the States creating particular privileges as to any partic-
ular class of vessels to the contrary notwithstanding, the only
question that could arise, in such a case, would be, whether the
Jaw was constitutional ; and that, if that was to be granted or
decided, it would certainly, in all courts and places, overrule
and set aside the State grant.
Now, I do not see that such supposed case could be distin-
guished from the present. We show a provision in an act of
Congress, that all vessels, duly licensed, may carry on the coast-
ing trade ; nobody doubts the constitutional validity of that
Jaw ; and we show that this vessel was duly licensed according
to its provisions. This is all that is essential in the case sup-
posed. The presence or absence of a non obstante clause can-
not affect the extent or operation of the act of Congress. Con-
gress has no power of revoking State laws, as a distinct power.
It legislates over subjects; and over those subjects which are
within its power, its legislation is supreme, and necessarily
overrules all inconsistent or repugnant State legislation. If
Congress were to pass an act expressly revoking or annulling,
in whole or in part, this New York grant, such an act would be
wholly useless and inoperative. If the New York grant be op-
posed to, or inconsistent with, any constitutional power which
22 THE CASE OF GIBBONS AND OGDEN.
Congress has exercised, then, so far as the incompatibility ex-
ists, the grant is nugatory and void, necessarily, and by reason
of the supremacy of the law of Congress. But if the grant be
not inconsistent with any exercise of the powers of Congress,
then, certainly, Congress has no authority to revoke or annul it.
Such an act of Congress, therefore, would be either unconstitu-
tional or supererogatory. The laws of Congress need no non
obstante clause. The Constitution makes them supreme, when
State laws come into opposition to them. So that in these
cases there is no question except this ; whether there be, or be
not, a repugnancy or hostility between the law of Congress and
the law of the State. Nor is it at all material, in this view,
whether the law of the State be a law regulating commerce,
or a law of police, nor by what other name or character it
may be designated. If its provisions be inconsistent with an
act of Congress, they are void, so far as that inconsistency ex-
tends. The whole argument, therefore, is substantially and
effectually given up, when it is admitted that Congress might,
by express terms, abrogate the State grant, or declare that it
should not stand in the way of its own legislation ; because
such express terms would add nothing to the effect and opera-
tion of an act of Congress.
I contend, therefore, upon the whole of this point, that a case
of actual collision has been made out between the State grant
and the act of Congress ; and as the act of Congress is en-
tirely unexceptionable, and clearly in pursuance of its constitu-
tional powers, the State grant must yield.
There are other provisions of the Constitution of the United
States, which have more or less bearing on this question. " No
State shall, without the consent of Congress, lay any duty of
tonnage." Under color of grants like this, that prohibition might
be wholly evaded. This grant authorizes Messrs. Livingston
and Fulton to. license navigation in the waters of New York.
They, of course, license it on their own terms. They may re-
quire a pecuniary consideration, ascertained by the tonnage of
the vessel, or in any other manner. Probably, in fact, they gov-
ern themselves, in this respect, by the size or tonnage of the
vessels to which they grant licenses. Now, what is this but
substantially a tonnage duty, under the law of the State ? Or
THE CASE OF GIBBONS AND OGDEN. 23
does it make any difference, whether the receipts go directly
into her own treasury, or into the hands of those to whom she
has made the grant?
There is, lastly, that provision of the Constitution which gives
Congress power to promote the progress of science and the
useful arts, by securing to authors and inventors, for a limited
time, an exclusive right to their own writings and discoveries.
Congress has exercised this power, and made all the provisions
which it deemed useful or necessary. The States may, indeed,
like munificent individuals, exercise their own bounty towards
authors and inventors, at their own discretion. But to confer
reward by exclusive grants, even if it were but a part of the use of
the writing or invention, is not supposed to be a power properly
to be exercised by the States. Much less can they, under the no-
tion of conferring rewards in such cases, grant monopolies, the
enjoyment of which is essentially incompatible with the exer-
cise of rights possessed under the laws of the United States. I
shall insist, however, the less on these points, as they are open
to counsel who will come after me on the same side, and as I
have said so much upon what appears to me the more impor«
tant and interesting part of the argument.
THE CASE OF OGDEN AND SAUNDERS.
#
This was an action of assumpsit, brought originally in the Circuit
Court of Louisiana, by Saunders, a citizen of Kentucky, against Ogden,
a citizen of Louisiana. The plaintiff below declared upon certain bills
of exchange, drawn on the 30th of September, 1806, by one Jordan, at
Lexington, in the State of Kentucky, upon the defendant below, Ogden,
in the city of New York, (the defendant then being a citizen and resi-
dent of the State of New York,) accepted by him at the city of New
York, and protested for non-payment.
The defendant below pleaded several pleas, among which was a cer-
tificate of discharge under the act of the legislature of the State of New
York, of April 3d, 1801, for the relief of insolvent debtors, commonly
called the Three-Fourths Act.
The jury found the facts in the form of a special verdict, on which
the court rendered a judgment for the plaintiff below, and the cause
was brought by writ of error before this court. The question which
arose under this plea, as to the validity of the law of New York as being
repugnant to the Constitution of the United States, was argued at Feb-
ruary term, 1824, by Mr. Clay, Mr. D. B. Ogden, and Mr. Haines, for
the plaintiff in error, and by Mr. Webster and Mr. Wheaton, for the
defendant in error, and the cause was continued for advisement until
the present term. It was again argued at the present term, by Mr.
Webster and Mr. Wheaton, against the validity, and by the Attorney-
General, Mr. E. Livingston, Mr. D. B. Ogden, Mr. Jones, and Mr.
Sampson, for the validity.
Mr. Wheaton opened the argument for the defendant in error ; he
was followed by the counsel for the plaintiff in error ; and Mr. Webster
replied as follows.
* An Argument made in the Case of Ogden and Saunders, in the Supreme
Court of the United States, January Term, 1827.
THE CASE OF OGDEN AND SAUNDERS 25
The question arising in this case is not more important, noi
so important even, in its bearing on individual cases of private
right, as in its character of a public political question. The
Constitution was intended to accomplish a great political ob-
ject. Its design was not so much to prevent injustice or injury
in one case, or in successive single cases, as it was to make
general salutary provisions, which, in their operation, should
give security to all contracts, stability to credit, uniformity
among all the States in those things which materially con-
cern the foreign commerce of the country, and their own credit,
trade, and intercourse with each other. The real question
is, therefore, a much broader one than has been argued. It is
this: Whether the Constitution has not, for general political
purposes, ordained that bankrupt laws should be established
only by national authority ? We contend that such was the
intention of the Constitution ; an intention, as we think, plainly
manifested in several of its provisions.
The act of New York, under which this question arises, pro-
vides that a debtor may be discharged from all his debts, upon
assigning his property to trustees for the use of his creditors.
When applied to the discharge of debts contracted before the
date of the law, this court has decided that the act is invalid.*
The act itself makes no distinction between past and future
debts, but provides for the discharge of both in the same manner.
In the case, then, of a debt already existing, it is admitted that
the act does impair the obligation of contracts. We wish the
full extent of this decision to be well considered. It is not
merely that the legislature of the State cannot interfere by law,
in the particular case of A or B, to injure or impair rights
which have become vested under contracts ; but it is, that they
have no power by general law to regulate the manner in which
all debtors may be discharged from subsisting contracts ; in
other words, they cannot pass general bankrupt laws to be ap-
plied in presenti. Now, it is not contended that such laws are
unjust, and ought not to be passed by any legislature. It is
not, said that they are unwise or impolitic. On the contrary,
we know the general practice to be, that, when bankrupt laws
are established, they make no distinction between present and
# Sturges v. Crowninshield, 4 Wheat. Rep. 122.
VOL. VI. 3
26 THE CASE OF OGDEN AND SAUNDERS.
future debts. While all agree that special acts, made for indi-
vidual cases, are unjust, all admit that a general law, made for
all cases, may be both just and politic. The question, then,
which meets us on the threshold is this : If the Constitution
meant to leave the States the power of establishing systems of
bankruptcy to act upon future debts, what great or important
object of a political nature is answered by denying the oower
of making such systems applicable to existing debts?
The argument used in Sturges v. Crowninshield was, afc
least, a plausible and consistent argument. It maintained that
ihe prohibition of the Constitution was levelled only against
interferences in individual cases, and did not apply to general
laws, whether those laws were retrospective or prospective in
their operation. But the court rejected that conclusion. It de-
cided that the Constitution was intended to apply to general
laws or systems of bankruptcy ; that an act providing that all
debtors might be discharged from all creditors, upon certain con-
ditions, was of no more validity than an act providing that a
particular debtor, A, should be discharged on the same condi-
tions from his particular creditor, B.
It being thus decided that general laws are within the pro-
hibition of the Constitution, it is for the plaintiff in error now
to show on what ground, consistent with the general objects
of the Constitution, he can establish a distinction which can
give effect to those general laws in their application to fu-
ture debts, while it denies them effect in their application to
subsisting debts. The words are, that " no State shall pass
any law impairing the obligation of contracts." The general
operation of all such laws is to impair that obligation ; that is,
to discharge the obligation without fulfilling it. This is admit-
ted ; and the only ground taken for the distinction to stand on
is, that, when the law was in existence at the time of the mak-
ing of the contract, the parties must be supposed to have refer-
ence to it, or, as it is usually expressed, the law is made a part
of the contract. Before considering what foundation there is
for this argument, it may be well to inquire what is that obli-
gation of contracts of which the Constitution speaks, and
whence is it derived.
The definition given by the court in Sturges v. Crowninshield
is sufficient for our present purpose. " A contract," say the
THE CASE OF OGDEN AND SAUNDERS. 27
court, "is an agreement to do some particular thing; the law
binds the party to perform this agreement, and this is the obli-
gation of the contract."
It is indeed probable that the Constitution used the words
in a somewhat more popular sense. We speak, for example,
familiarly of a usurious contract, and yet we say, speaking tech-
nically, that a usurious agreement is no contract.
By the obligation of a contract, we should understand the
Constitution to mean, the duty of performing a legal agreement.
If the contract be lawful, the party is bound to perform it. But
bound by what ? What is it that binds him ? And this leads us
to what we regard as a principal fallacy in the argument on the
other side. That argument supposes, and insists, that the whole
obligation of a contract has its origin in the municipal law,
This position we controvert. We do not say that it is that
obligation which springs from conscience merely ; but we deny
that it is only such as springs from the particular law of the
place where the contract is made. It must be a lawful con-
tract, doubtless ; that is, permitted and allowed ; because society
has a right to prohibit all such contracts, as well as all such
actions, as it deems to be mischievous or injurious. But if the
contract be such as the law of society tolerates, in other words,
if it be lawful, then we say, the duty of performing it springs
from universal law. And this is the concurrent sense of all the
writers of authority.
The duty of performing promises is thus shown to rest on
universal law ; and if, departing from this well-established prin-
ciple, we now follow the teachers who instruct us that the obli-
gation of a contract has its origin in the law of a particular
Slate, and is in all cases what that law makes it, and no more,
and no less, we shall probably find ourselves involved in inex-
tricable difficulties. A man promises, for a valuable consider-
ation, to pay money in New York. Is the obligation of that
contract created by the laws of that State, or does it subsist
independent of those laws ? We contend that the obligation
of a contract, that is, the duty of performing it, is not created
by the law of the particular place where it is made, and de-
pendent on that law for its existence ; but that it may subsist,
and does subsist, without that law, and independent of it. The
obligation is in the contract itself, in the assent of the parties.
28 THE CASE OF OGDEN AND SAUNDERS.
and in the sanction of universal law. This is the doctrine ol
Grotius, Vattel, Burlamaqui, Pothier, and Rutherforth. The
contract, doubtless, is necessarily to be enforced by the munici-
pal law of the place where performance is demanded. The
municipal law acts on the contract after it is made, to compel
its execution, or give damages for its violation. But this is a
very different thing from the same law being the origin or foun-
ta.n of the contract.
Let us illustrate this matter by an example. Two persons
contract together in New York for the delivery, by one to the
other, of a domestic animal, a utensil of husbandry, or a weapon
of war. This is a lawful contract, and, while the parties remain
in New York, it is to be enforced by the laws of that State.
But if they remove with the article to Pennsylvania or Mary-
land, there a new law comes to act upon the contract, and to
apply other remedies if it be broken. Thus far the remedies
are furnished by the laws of society. But suppose the same
parties to go together to a savage wilderness, or a desert island,
beyond the reach of the laws of any society. The obligation of
the contract still subsists, and is as perfect as ever, and is now
to be enforced by another law, that is, the law of nature ; and
the party to whom the promise was made has a right to take
by force the animal, the utensil, or the weapon that was prom-
ised him. The right is as perfect here as it was in Pennsyl-
vania, or even in New York ; but this could not be so if the
obligation were created by the law of New York, or were de-
pendent on that law for its existence, because the laws of that
State can have no operation beyond its territory. Let us
reverse this example. Suppose a contract to be made between
two persons cast ashore on an uninhabited territory, or in* a
place over which no law of society extends. There are such
places, and contracts have been made by individuals casually
there, and these contracts have been enforced in courts of law
in civilized communities. Whence do such contracts derive
their obligation, if not from universal law ?
If these considerations show us that the obligation of a law-
ful contract does not derive its force from the particular law
of the place where made, but may exist where that law does
not exist, and be enforced where that law has no validity, then
it follows, we contend, that any statute which diminishes 01
THE CASE OF OGDEN AND SAUNDERS. 29
lessens its obligation does impair it, whether it precedes or suc-
ceeds the contract in date. The contract having an indepen-
dent origin, whenever the law comes to exist together with it,
and interferes with it, it lessens, we say, and impairs, its own
original and independent obligation. In the case before the
court, the contract did not owe its existence to the particular
law of New York ; it did not depend on that law, but could be
enforced without the territory of that State, as well as within it.
Nevertheless, though legal, though thus independently existing,
though thus binding the party everywhere, and capable of
being enforced everywhere, yet the statute of New York says
that it shall be discharged without payment. This, we say,
impairs the obligation of that contract. It is admitted to have
been legal in its inception, legal in its full extent, and capable
of being enforced by other tribunals according to its terms.
An act, then, purporting to discharge it without payment, is,
as we contend, an act impairing its obligation.
Here, however, we meet the opposite argument, stated on
different occasions in different terms, but usually summed up in
this, that the law itself is a part of the contract, and therefore
cannot impair it. What does this mean ? Let us seek for clear
ideas. It does not mean that the law gives any particular con-
struction to the terms of the contract, or that it makes the
promise, or the consideration, or the time of performance, other
than is expressed in the instrument itself. It can only mean,
that it is to be taken as a part of the contract, or understand-
ing of the parties, that the contract itself shall be enforced
by such laws and regulations, respecting remedy and for the
enforcement of contracts, as are in being in the State where it
is made at the time of entering into it. This is meant, or noth-
ing very clearly intelligible is meant, by saying the law is part
of the contract.
There is no authority in adjudged cases for the plaintiff in
error but the State decisions which have been cited, and, as has
already been stated, they all rest on this reason, that the law is
part of the contract.
Against this we contend, —
1st. That, if the proposition were true, the consequence would
not follow.
2d. That the proposition itself cannot be maintained.
3*
30 THE CASE OF OGDEN AND SAUNDERS.
1. If it were true that the law is to be considered as part of
the contract, the consequence contended for would not follow ;
because, if this statute be part of the contract, so is every other
legal or constitutional provision existing at the time which af-
fects the contract, or which is capable of affecting it; and espe-
cially this very article of the Constitution of the United States
is part of the contract. The plaintiff in error argues in a com-
plete circle. He supposes the parties to have had reference to
it because it was a binding law, and yet he proves it to be a
binding law only upon the ground that such reference was made
to it. We come before the court alleging the law to be void,
as unconstitutional ; they stop the inquiry by opposing to us the
law itself. Is this logical ? Is it not precisely objectio ejus, cvjus
dissolutio petitur? If one bring a bill to set aside a judgment,
is that judgment itself a good plea in bar to the bill ? We pro-
pose to inquire if this law is of force to control our contract,
or whether, by the Constitution of the United States, such force
be not denied to it. The plaintiff in error stops us by saying
that it does control the contract, and so arrives shortly at the
end of the debate. Is it not obvious, that, supposing the act
of New York to be a part of the contract, the question still re-
mains as undecided as ever. What is that act? Is it a law,
or is it a nullity ? a thing of force, or a thing of no force ?
Suppose the parties to have contemplated this act, what did they
contemplate? its words only, or its legal effect? its words, or
the force which the Constitution of the United States allows
to it? If the parties contemplated any law, they contemplated
all the law that bore on their contract, the aggregate of all the
statute and constitutional provisions. To suppose that they
had in view one statute without regarding others, or that they
contemplated a statute without considering that paramount
constitutional provisions might control or qualify that statute,
or abrogate it altogether, is unreasonable and inadmissible.
" This contract," says one of the authorities relied on, " is to be
construed as if the law were specially recited in it." Let it be
so for the sake of argument. But it is also to be construed as
if the prohibitory clause of the Constitution were recited in it,
and this brings us back again to the precise point from which
we departed.
The Constitution always accompanies the law, and the latter
THE CASE OF OGDEN AND SAUNDERS. 31
can have no force which the former does not allow to it. If the
reasoning were thrown into the form of special pleading, it
would stand thus : the plaintiff declares on his debt ; the de-
fendant pleads his discharge under the law; the plaintiff alleges
the law unconstitutional ; but the defendant says, You knew of
its existence ; to which the answer is obvious and irresistible, I
knew its existence on the statute-book of New York, but I knew,
at the same time, it was null and void under the Constitution
of the United States.
The language of another leading decision is, " A law in force
at the time of making the contract does not violate that con-
tract" ; but the very question is, whether there be any such law
" in force " ; for if the States have no authority to pass such
laws, then no such law can be in force. The Constitution is a
part of the contract as much as the law, and was as much in
the contemplation of the parties. So that the proposition, if it
be admitted that the law is part of the contract, leaves us just
where it found us ; that is to say, under the necessity of compar-
ing the law with the Constitution, and of deciding by such com-
parison whether it be valid or invalid. If the law be unconsti-
tutional, it is void, and no party can be supposed to have had
reference to a void law. If it be constitutional, no reference to
it need be supposed.
2. But the proposition itself cannot be maintained. The law
is no part of the contract. What part is it? the promise? the
consideration ? the condition ? Clearly, it is neither of these.
It is no term of the contract. It acts upon the contract only
when it is broken, or to discharge the party from its obligation
after it is broken. The municipal law is the force of society
employed to compel the performance of contracts. In every
judgment in a suit on contract, the damages are given, and the
imprisonment of the person or sale of goods awarded, not in
performance of the contract, or as part of the contract, but as
an indemnity for the breach of the contract. Even interest,
which is a strong case, where it is not expressed in the contract
itself, can only be given as damages. It is all but absurd to say
that a man's goods are sold on a fieri facias, or that he himself
goes to jail, in pursuance of his contract. These are the penal-
ties which the law inflicts for the breach of his contract. Doubt-
less, parties, when they enter into contracts, may well consider
32 THE CASE OF OGDEN AND SAUNDERS.
both what their rights and what their liabilities will be by the
law, if such contracts be broken ; but this contemplation of con-
sequences which can ensue only when the contract is broken, is
no part of the contract itself. The law has nothing to do with
the contract till it be broken ; how, then, can it be said to form a
part of the contract itself?
But there are other cogent and more specific reasons against
considering the law as part of the contract. (1.) If the law be
part of the contract, it cannot be repealed or altered ; because,
in such case, the repealing or modifying law itself would impair
the obligation of the contract. The insolvent law of New York,
for example, authorizes the discharge of a debtor on the consent
of two thirds of his creditors. A subsequent act requires the
consent of three fourths; but if the existing law be part of the
contract, this latter law would be void. In short, nothing which
is part of the contract can be varied but by consent of the par-
ties; therefore the argument runs in absurdum ; for it proves that
no laws for enforcing the contract, or giving remedies upon it, or
any way affecting it, can be changed or modified between its
creation and its end. If the law in question binds one party
on the ground of assent to it, it binds both, and binds them un-
til they agree to terminate its operation. (2.) If the party be
bound by an implied assent to the law, as thereby making the
law a part of the contract, how would it be if the parties had
expressly dissented, and agreed that the law should make no
part of the contract? Suppose the promise to have been, that
that the promiser would pay at all events, and not take advan-
tage of the statute ; still, would not the statute operate on the
whole ; on this particular agreement and all ? and does not this
show that the law is no part of the contract, but something
above it ? (3.) If the law of the place be part of the contract,
one of its terms and conditions, how could it be enforced, as we
all know it might be, in another jurisdiction, which should have
no regard to the law of the place ? Suppose the parties, after
the contract, £o remove to another State, do they carry the law
with them as part of their contract ? We all know they do not.
Or take a common case. Some States have laws abolishing im-
prisonment for debt; these laws, according to the argument, are
all parts of the contract ; how, then, can the party, when sued in
another State, be imprisoned contrary to the terms of his con-
THE CASE OF OGDEN AND SAUNDERS. 33
tract? (4.) The argument proves too much, inasmuch as it ap-
plies as strongly to prior as to subsequent contracts. It is
founded on a supposed assent to the exercise of legislative au-
thority, without considering whether that exercise be legal or
illegal. But it is equally fair to found the argument on an im-
plied assent to the potential exercise of that authority. The im-
plied reference to the control of legislative power is as reasona-
ble and as strong when that power is dormant, as while it is in
exercise. In one case, the argument is, " The law existed, you
knew it, and acquiesced." In the other it is, " The power to
pass the law existed, you knew it, and took your chance."
There is as clear an assent in one instance as in the other.
Indeed, it is more reasonable and more sensible to imply a gen-
eral assent to all the laws of society, present and to come, from
the fact of living in it, than it is to imply a particular assent to
a particular existing enactment. The true view of the matter
is, that every man is presumed to submit to all power which
may be lawfully exercised over him or his right, and no one
should be presumed to submit to illegal acts of power, whether
actual or contingent. (5.) But a main objection to this argu-
ment is, that it would render the whole constitutional provision
idle and inoperative ; and no explanatory words, if such words
had been added in the Constitution, could have prevented this
consequence. The law, it is said, is part of the contract ; it can-
not, therefore, impair the contract, because a contract cannot
impair itself. Now, if this argument be sound, the case would
have been the same, whatever words the Constitution had
used. If, for example, it had declared that no State should pass
any law impairing contracts prospectively or retrospectively ; or
any law impairing contracts, whether existing or future; or,
whatever terms it had used to prohibit precisely such a law as is
now before the court, the prohibition would be totally nugatory
if the law is to be taken as part of the contract; and the result
would be, that, whatever may be the laws which the States by
this clause of the Constitution are prohibited from passing, yet,
if they in fact do pass such laws, those laws are valid, and bind
parties by a supposed assent.
But further, this idea, if well founded, would enable the
States to defeat the whole constitutional provision by a general
enactment. Suppose a State should declare, by law, that all
34 THE CASE OF OGDEN AND SAUNDERS.
contracts entered into therein should be subject to such laws as
the legislature, at any time, or from time to time, might see fit
to pass. This law, according to the argument, would enter into
the contract, become a part of it, and authorize the interference
of the legislative power with it, for any and all purposes, wholly
uncontrolled by the Constitution of the United States.
So much for the argument that the law is a part of the con-
tract. We think it is shown to be not so ; and if it were, the
expected consequence would not follow.
The inquiry, then, recurs, whether the law in question be such
a law as the legislature of New York had authority to pass.
The question is general. We differ from our learned adver-
saries on general principles. We differ as to the main scope
and end of this constitutional provision. They think it entirely
remedial ; we regard it as preventive. They think it adopted
to secure redress for violated private rights ; to us, it seems in-
tended to guard against great public mischiefs. They argue it
as if it were designed as an indemnity or protection for injured
private rights, in individual cases of meum and tuum; we look
upon it as a great political provision, favorable to the commerce
and credit of the whole country. Certainly we do not deny its
application to cases of violated private right. Such cases are
clearly and unquestionably within its operation. Still, we think
its main scope to be general and political. And this, we think,
is proved by reference to the history of the country, and to the
great objects which were sought to be attained by the establish-
ment of the present government. Commerce, credit, and con-
fidence were the principal things which did not exist under the
old Confederation, and which it was a main object of the pres-
ent Constitution to create and establish. A vicious system of
legislation, a system of paper money and tender laws, had com-
pletely paralyzed industry, threatened to beggar every man of
property, and ultimately to ruin the country. The relation be-
tween debtor and creditor, always delicate, and always danger-
ous whenever it divides society, and draws out the respective
parties into different ranks and classes, was in such a condition
in the years 1787, 1788, and 1789, as to threaten the overthrow
of all government; and a revolution was menaced, much more
critical and alarming than that through which the country had
THE CASE OF OGDEN AND SAUNDERS. 35
recently passed. The object of the new Constitution was to
arrest these evils; to awaken industry by giving security to
property ; to establish confidence, credit, and commerce, by salu-
tary Jaws, to be enforced by the power of the whole community.
The Revolutionary War was over, the country had peace, but
little domestic tranquillity; it had liberty, but few of its enjoy-
ments, and none of its security. The States had struggled to-
gether, but their union was imperfect. They had freedom, but
not an established course of justice. The Constitution was
therefore framed, as it professes, "to form a more perfect union,
to establish justice, to secure the blessings of liberty, and to
insure domestic tranquillity."
It is not pertinent to this occasion to advert to all the means
by which these desirable ends were to be obtained. Some of
them, closely connected with the subject now under consider-
ation, are obvious and prominent. The objects were com-
merce, credit, and mutual confidence in matters of property ;
and these required, among other things, a uniform standard of
value or medium of payments. One of the first powers given
to Congress, therefore, is that of coining money and fixing the
value of foreign coins ; and one of the first restraints imposed
on the States is the total prohibition to coin money. These
two provisions are industriously followed up and completed
by denying to the States all power to emit bills of credit, or to
make any thing but gold and silver a tender in the payment of
debts. The whole control, therefore, over the standard of value
and medium of payments is vested in the general government.
And here the question instantly suggests itself, Why should
such pains be taken to confide to Congress alone this exclusive
power of fixing on a standard of value, and of prescribing the
medium in which debts shall be paid, if it is, after all, to be
left to every State to declare that debts may be discharged, and
to prescribe how they may be discharged, without any pay-
ment at all ? Why say that no man shall be obliged to take,
in discharge of a debt, paper money issued by the authority of
a State, and yet say, that by the same authority the debt may
be discharged without any payment whatever ?
We contend, that the Constitution has not left its work thus
unfinished. We contend,, that, taking its provisions together,
it is apparent it was intended to provide for two things, inti-
mately connected with each other. These are, —
36 THE CASE OF OGDEN AND SAUNDERS.
1. A medium for the payment of debts ; and
2. A uniform manner of discharging debts, when they are to
be discharged without payment.
The arrangement of the grants and prohibitions contained in
the Constitution is fit to be regarded on this occasion. The
grant to Congress and the prohibition on the States, though
they are certainly to be construed together, are not contained in
the same clauses. The powers granted to Congress are enu-
merated one after another in the eighth section ; the principal
limitations on those powers, in the ninth section ; and the pro-
hibitions to the States, in the tenth section. Now, in order to
understand whether any particular power be exclusively vested
in Congress, it is necessary to read the terms of the grant, to-
gether with the terms of the prohibition. Take an example
from that power of which we have been speaking, the coinage
power. Here the grant to Congress is, " To coin money, regu-
late the value thereof, and of foreign coins." Now, the correla-
tive prohibition on the States, though found in another section,
is undoubtedly to be taken in immediate connection with the
foregoing, as much as if it had been found in the same clause.
The only just reading of these provisions, therefore, is this :
" Congress shall have power to coin money, regulate the value
thereof, and of foreign coin ; but no State shall coin money,
emit bills of credit, or make any thing but gold and silver
coin a tender in payment of debts."
These provisions respect the medium of payment, or standard
of value, and, thus collated, their joint result is clear and deci-
sive. We think the result clear, also, of those provisions which
respect the discharge of debts without payment. Collated in
like manner, they stand thus : " Congress shall have power to
establish uniform laws on the subject of bankruptcies through-
out the United States ; but no State shall pass any law impair-
ing the obligation of contracts." This collocation cannot be
objected to, if they refer to the same subject-matter; and that
they do refer to the same subject-matter we have the authority
of this court for saying, because this court solemnly deter-
mined, in Sturges v. Crowninshield, that this prohibition on
the States did apply to systems of bankruptcy. It must be
now taken, therefore, that State bankrupt laws were in the
'-nind of the convention when the prohibition was adopted, and
THE CASE OF OGDEN AND SAUNDERS. 37
therefore the grant to Congress on the subject of bankrupt
laws, and the prohibition to the States on the same subject, are
properly to be taken and read together ; and being thus read
together, is not the intention clear to take away from the
States the power of passing bankrupt laws, since, while enact-
ed by them, such laws would not be uniform, and to confer the
power exclusively on Congress, by whom uniform laws could
be established ?
Suppose the order of arrangement in the Constitution had
been otherwise than it is, and that the prohibitions to the States
had preceded the grants of power to Congress, the two powers,
when collated, would then have read thus : " No State shall
pass any law impairing the obligation of contracts ; but Con-
gress may establish uniform laws on the subject of bankrupt-
cies." Could any man have doubted, in that case, that the
meaning was, that the States should not pass laws discharging
debts without payment, but that Congress might establish uni-
form bankrupt acts ? And yet this inversion of the order of the
clauses does not alter their sense. We contend, that Congress
alone possesses the power of establishing bankrupt laws ; and
although we are aware that, in Sturges v. Crown inshield, the
court decided that such an exclusive power could not be in-
ferred from the words of the grant in the seventh section, we
yet would respectfully request the bench to reconsider this
point. We think it could not have been intended that both
the States and general government should exercise this power;
and therefore, that a grant to one implies a prohibition on the
other. But not to press a topic which the court has already
had under its consideration, we contend, that, even without
reading the clauses of the Constitution in the connection
which we have suggested, and which is believed to be the true
one, the prohibition in the tenth section, taken by itself, does
forbid the enactment of State bankrupt laws, as applied to fu-
ture as well as present debts. We argue this from the words
of the prohibition, from the association they are found in, and
from the objects intended.
1. The words are general. The States can pass no law im-
pairing contracts ; that is, any contract. In the nature of
things a law may impair a future contract, and therefore such
contract is within tl e protection of the Constitution. The
VOL. vi. 4
38 THE CASE OF OGDEN AND SAUNDERS.
words being general, it is for the other side to show a limita-
tion ; and tnis, it is submitted, they have wholly failed to do,
unless they shall have established the doctrine that the law it-
self is part of the contract. It may be added, that the particu-
lar expression of the Constitution is worth regarding. The
thing prohibited is called a laiv, not an act. A law, in its gen-
eral acceptation, is a rule prescribed for future conduct, not a
legislative interference with existing rights. The framers of
the Constitution would hardly have given the appellation of
law to violent invasions of individual right, or individual prop-
erty, by acts of legislative power. Although, doubtless, such
acts fall within this prohibition, yet they are prohibited also by
general principles, and by the constitutions of the States, and
therefore further provision against such acts was not so neces-
sary as against other mischiefs.
2. The most conclusive argument, perhaps, arises from the
connection in which the clause stands. The words of the pro-
hibition, so far as it applies to civil rights, or rights of property,
are, that " no State shall coin money, emit bills of credit, make
any thing but gold and silver coin a tender in the payment of
debts, or pass any law impairing the obligation of contracts."
The prohibition of attainders, and ex post facto laws, refers en-
tirely to criminal proceedings, and therefore should be consid-
ered as standing by itself ; but the other parts of the prohibi-
tion are connected by the subject-matter, and ought, therefore,
to be construed together. Taking the words thus together, ac-
cording to their natural connection, how is it possible to give a
more limited construction to the term " contracts," in the last
branch of the sentence, than to the word " debts," in that im-
mediately preceding ? Can a State make any thing but gold
and silver a tender in payment of future debts ? This nobody
pretends. But what ground is there for a distinction ? No
State shall make any thing but gold and silver a tender in the
payment of debts, nor pass any law impairing the obligation of
contracts. Now, by what reasoning is it made out that the
debts here spoken of are any debts, either existing or future,
but that the contracts spoken of are subsisting contracts only ?
Such a distinction seems to us wholly arbitrary. We see no
ground for it. Suppose the article, where it uses the word debts,
had used the word contracts. The sense would have been the
THE CASE OF OGDEN AND SAUNDERS. 39
same then that it now is ; but the identity of terms would have
made the nature of the distinction now contended for somewhat
more obvious. Thus altered, the clause would read, that no
State should make any thing but gold and silver a tender in
discharge of contracts, nor pass any law impairing the obliga-
tion of contracts ; yet the first of these expressions would have
been held to apply to all contracts, and the last to subsisting
contracts only. This shows the consequence of what is now
contended for in a strong light. It is certain that the substitu-
tion of the word contracts for debts would not alter the sense;
and an argument that could not be sustained, if such substitu-
tion were made, cannot be sustained now. We maintain,
therefore, that, if tender laws may not be made for future debts,
neither can bankrupt laws be made for future contracts. All
the arguments used here may be applied with equal force to
tender laws for future debts. It may be said, for instance,
that, when it speaks of debts, the Constitution means existing
debts, and not mere possibilities of future debt ; that the object
was to preserve vested rights; and that if a man, after a
tender law had passed, had contracted a debt, the manner
in which that tender law authorized that debt to be dis-
charged became part of the contract, and that the whole
debt, or whole obligation, was thus qualified by the preexisting
law, and was no more than a contract to deliver so much pa-
per money, or whatever other article might be made a tender,
as the original bargain expressed. Arguments of this sort will
not be found wanting in favor of tender laws, if the court yield
to similar arguments in favor of bankrupt laws.
These several prohibitions of the Constitution stand in the
same paragraph ; they have the same purpose, and were intro-
duced for the same object ; they are expressed in words of simi-
lar import, in grammar, and in sense; they are subject to the
same construction, and we think no reason has yet been given
for imposing an important restriction on one part of them
which does not equally show that the same restriction might
be imposed also on the other part.
We have already endeavored to maintain, that one great
political object intended by the Constitution would be defeated,
if this construction were allowed to prevail. As an object of
political regulation, it was not important to prevent the States
40 THE CASE OF OGDEN AND SAUNDERS.
from passing bankrupt laws applicable to present debts, while
the power was left to them in regard to future debts ; nor was
it at all important, in a political point of view, to prohibit ten-
der laws as to future debts, while it was yet left to the States to
pass laws for the discharge of such debts, which, after all, are
little different in principle from tender laws. Look at the law
before the court in this view. It provides, that, if the debtor
will surrender, offer, or tender to trustees, for the benefit of his
creditors, all his estate and effects, he shall be discharged from
all his debts. If it had authorized a tender of any thing but
money to any one creditor, though it were of a value equal to
the debt, and thereupon provided for a discharge, it would have
been clearly invalid. Yet it is maintained to be good, merely
because it is made for all creditors, and seeks a discharge from
all debts ; although the thing tendered may not be equivalent to
a shilling in the pound of those debts. This shows, again, very
clearly, how the Constitution has failed of its purpose, if, hav-
ing in terms prohibited all tender laws, and taken so much
pains to establish a uniform medium of payment, it has yet
left the States the power of discharging debts, as they may
see fit, without any payment at all.
To recapitulate what has been said, we maintain, first, that
the Constitution, by its grants to Congress and its prohibitions
on the States, has sought to establish one uniform standard of
value, or medium of payment. Second, that, by like means, it
has endeavored to provide for one uniform mode of discharging
debts, when they are to be discharged without payment. Thi d,
that these objects are connected, and that the first loses much
of its importance, if the last, also, be not accomplished. Fourth,
that, reading the grant to Congress and the prohibition on the
States together, the inference is strong that the Constitution
intended to confer an exclusive power to pass bankrupt laws
on Congress. Fifth, that the prohibition in the tenth section
reaches to all contracts, existing or future, in the same way that
the other prohibition in the same section extends to all debts
existing or future. Sixthly, that, upon any other construction,
one great political object of the Constitution will fail of ita
accomplishment.
THE MURDER OF CAPTAIN JOSEPH WHITE:
INTRODUCTORY NOTE.f
The following argument was addressed to the jury at a trial for a
remarkable murder. A more extraordinary case never occurred in this
country, nor is it equalled in strange interest by any trial in the French
Causes Celebres or the English State Trials. Deep sensation and in-
tense curiosity were excited through the whole country, at the time of
the occurrence of the event, not only by the atrocity of the crime, but
by the position of the victim, and the romantic incidents in the detection
and fate of the assassin and his accomplices.
The following outline of the facts will assist the reader to understand
the bearings of the argument.
Joseph White, Esq., was found murdered in his bed, in his mansion-
house, on the morning of the 7th of April, 1830. He was a wealthy
merchant of Salem, eighty-two years of age, and had for many years
given up active business. His servant-man rose that morning at six
o'clock, and on going down into the kitchen, and opening the shut-
ters of the window, saw that the back window of the east parlor was
open, and that a plank was raised to the window from the back yard ;
he then went into the parlor, but saw no trace of any person having
been there. He went to the apartment of the maid-servant, and told
her, and then into Mr. White's chamber by its back door, and saw that
the door of his chamber, leading into the front entry, was open. On
approaching the bed he found the bed-clothes turned down, and Mr.
White dead, his countenance pallid, and his night-clothes and bed
* Argument on the Trial of John Francis Knapp, for the Murder of Joseph
White, Esq., of Salem, in Essex County, Massachusetts, on the Night of the
6th of April, 1830.
f This interesting and valuable account of the crime which led to the fol-
lowing speech to the jury was written by the late Honorable Benjamin Merrill
of Salem.
4*
42 THE MURDER OF CAPTAIN JOSEPH WHITE.
drenched in blood. He hastened to the neighboring houses to mike
known the event. He and the maid-servant were the only persons who
slept in the house that night, except Mr. White himself, whose niece
Mrs. Beckford, his housekeeper, was then absent on a visit to her daugh-
ter, at Wenham.
The physicians and the coroner's jury, who were called to examine
the body, found on it thirteen deep stabs, made as if by a sharp dirk
or poniard, and the appearance of a heavy blow on the left temple,
which had fractured the skull, but not broken the skin. The body was
cold, and appeared to have been lifeless many hours.
On examining the apartments of the house, it did not appear that any
valuable articles had been taken, or the house ransacked for them ;
there was a rouleau of doubloons in an iron chest in his chamber, and
costly plate in other apartments, none of which was missing.
The perpetration of such an atrocious crime, in the most populous
and central part of the town and in the most compactly built street,
and under circumstances indicating the utmost coolness, deliberation,
and audacity, deeply agitated and aroused the whole community ; inge-
nuity was baffled in attempting even to conjecture a motive for the
deed ; and all the citizens were led to fear that the same fate might
await them in the defenceless and helpless hours of slumber. For
several days, persons passing through the streets might hear the con-
tinual sound of the hammer, while carpenters and smiths were fixing
bolts to doors and fastenings to windows. Many, for defence, furnished
themselves with cutlasses, fire-arms, and watch-dogs. Large rewards
for the detection of the author or authors of the murder were offered
by the heirs of the deceased, by the selectmen of the town, and by the
Governor of the State. The citizens held a public meeting, and ap-
pointed a Committee of Vigilance, of twenty-seven members, to make
all possible exertions to ferret out the offenders.
While the public mind was thus excited and anxious, it was announced
that a bold attempt at highway robbery was made in Wenham by three
footpads, on Joseph J. Knapp, Jr. and John Francis Knapp, on the even-
ing of the 27th of April, while they were returning in a chaise from
Salem to their residence in Wenham. They appeared before the investi-
gating committee, and testified that, after nine o'clock, near the Wen-
ham Pond, they discovered three men approaching. One came near,
seized the bridle, and stopped the horse, while the other two came, one
on each side, and seized a trunk in the bottom of the chaise. Frank
Knapp drew a sword from his cane and made a thrust at one, and
Joseph with the but-end of his whip gave the other a heavy blow across
the face. This bold resistance made them fall back. Joseph sprung
from the chaise to assail the robbers. One of them then gave a shrill
THE MURDER OF CAPTAIN JOSEPH WHITE. 43
whistle, when they fled, and, leaping over the wall, were soon lost in the
darkness. One had a weapon like an ivory dirk-handle, was clad in a
sailor's short jacket, cap, and had whiskers ; another wore a long coat,
with bright buttons ; all three were good-sized men. Frank, too, sprung
from the chaise, and pursued with vigor, but all in vain.
The account of this unusual and bold attempt at robbery, thus given
by the Knapps, was immediately published in the Salem newspapers,
with the editorial remark, that " these gentlemen are well known in this
town, and their respectability and veracity are not questioned by any of
our citizens."
Not the slightest clew to the murder could be found for several weeks,
and the mystery seemed to be impenetrable. At length a rumor reached
the ear of the committee that a prisoner in the jail at New Bedford,
seventy miles from Salem, confined there on a charge of shoplifting,
had intimated that he could make important disclosures. A confidential
messenger was immediately sent, to ascertain what he knew on the sub-
ject. The prisoner's name was Hatch ; he had been committed before
the murder. He stated that, some months before the murder, while he
was at large, he had associated in Salem with Richard Crowninshield,
Jr., of Danvers, and had often heard Crowninshield express his in-
tention to destroy the life of Mr. White. Crowninshield was a young
man, of bad reputation ; though he had never been convicted of any
offence, he was strongly suspected of several heinous robberies. He
was of dark and reserved deportment, temperate and wicked, dar-
ing and wary, subtle and obdurate, of great adroitness, boldness, and
self-command. He had for several years frequented the haunts of
vice in Salem ; and though he was often spoken of as a dangerous man,
his person was known to few, for he never walked the streets by day*
light. Among his few associates he was a leader and a despot.
The disclosures of Hatch received credit. When the Supreme Court
met at Ipswich, the Attorney-General, Morton, moved for a writ of
habeas corpus ad testify and Hatch was carried in chains from New
Bedford before the grand jury, and on his testimony an indictment
was found against Crowninshield. Other witnesses testified that, on
the night of the murder, his brother, George Crowninshield, Colonel
Benjamin Selman, of Marblehead, and Daniel Chase, of Lynn, were
together in Salem, at a gambling-house usually frequented by Richard ;
these were indicted as accomplices in the crime. They were all arrest-
ed on the 2d of May, arraigned on the indictment, and committed to
piison to await the sitting of a court that should have jurisdiction of
the offence.
The Committee of Vigilance, however, continued to hold frequent
meetings in order to discover further proof, for it was doubted by many
44 THE MURDER OlT CAPTAIN JOSEPH WHITE.
whether the evidence already obtained would be sufficient to convict the
accused.
A fortnight afterwards, on the 15th of May, Captain Joseph J. Knapp,
a shipmaster and merchant, a man of good character, received by mail
the following letter : —
Charles Grant, Jr., to Joseph J. Knapp.
" Belfast, May 12, 1830.
" Dear Sir, — I have taken the pen at this time to address an utter
stranger, and, strange as it may seem to you, it is for the purpose of re-
questing the loan of three hundred and fifty dollars, for which I can
give you no security but my word, and in this case consider this to be
sufficient. My call for money at this time is pressing, or I would not
trouble you ; but with that sum, I have the prospect of turning it to so
much advantage, as to be able to refund it with interest in the course of
six months. At all events, I think it will be for your interest to comply
with my request, and that immediately — that is, not to put off any longer
than you receive this. Then set down and inclose me the money with
as much despatch as possible, for your own interest. This, Sir, is my
advice ; and if you do not comply with it, the short period between now
and November will convince you that you have denied a request, the
granting of which will never injure you, the refusal of which will ruin
you. Are you surprised at this assertion — rest assured that I make it,
reserving to myself the reasons and a series of facts, which are founded
on such a bottom as will bid defiance to property or quality. It is use-
less for me to enter into a discussion of facts which must inevitably har-
row up your soul. No, I will merely tell you that I am acquainted
with your brother Franklin, and also the business that he was transacting
for you on the 2d of April last ; and that I think that you was very ex-
travagant in giving one thousand dollars to the person that would execute
the business for you. But you know best about that, you see that such
things will leak out. To conclude, Sir, I will inform you that there is a
gentleman of my acquaintance in Salem, that will observe that you do
not leave town before the first of June, giving you sufficient time between
now and then to comply with my request ; and if I do not receive a line
from you, together with the above sum, before the 22d of this month, I
shall wait upon you with an assistant. I have said enough to convince
you of my knowledge, and merely inform you that you can, when vou
answer, be as brief as possible.
" Direct yours to
" Charles Grant, Jr., of Prospect, Maine.
This letter was an unintelligible enigma to Captain Knapp ; he knew
no man of the name of Charles Grant, Jr., and had no acquaintance
at Belfast, a town in Maine, two hundred miles distant from Salem. Af-
ter poring over it in vain, he handed it to his son, Nathaniel Phippen
Knapp, a young lawyer ; to him also the letter was an inexplicable riddle.
The receiving of such a threatening letter, at a time when so many felt
.nsecure, and were apprehensive of danger, demanded their attention
THE MURDER OF CAPTAIN JOSEPH WHITE. 45
Captain Knapp and his son Phippen, therefore, concluded to ride to
Wenham, seven miles distant, and show the letter to Captain Knapp's
other two sons, Joseph J. Knapp, Jr., and John Francis Knapp, who were
then residing at Wenham with Mrs. Beckford, the niece and late house-
keeper of Mr. White and the mother of the wife of J. J. Knapp, Jr.
The latter perused the letter, told his father it " contained a devilish lot
of trash,11 and requested him to hand it to the Committee of Vigilance.
Captain Knapp, on his return to Salem that evening, accordingly deliv-
ered the letter to the chairman of the committee.
The next day J. J. Knapp, Jr. went to Salem, and requested one of
his friends to drop into the Salem post-office the two following pseu
donymous letters.
" May 13, 1830.
"Gentlemen of the Committee of Vigilance, — Hearing that you
have taken up four young men on suspicion of being concerned in the
murder of Mr. White, I think it time to inform you that Steven White
came to me one night and told me, if I would remove the old gentleman,
he would give me five thousand dollars ; he said he was afraid he would
alter his will if he lived any longer. I told him I would do it, but I was
afeared to go into the house, so he said he would go with me, that he
would try to get into the house in the evening and open the window,
would then go home and go to bed and meet me again about eleven.
I found him, and we both went into his chamber. I struck him on the
head with a heavy piece of lead, and then stabbed him with a dirk ; he
made the finishing strokes with another. He promised to send me the
money next evening, and has not sent it yet, which is the reason that I
mention this. Yours, &c,
" Grant.1'
This letter was directed on the outside to the u Hon. Gideon Barstow,
Salem,11 and put into the post-office on Sunday evening, May 16, 1830.
" Lynn, May 12, 1830.
" Mr. White will send the $ 5,000, or a part of it, before to-morrow
night, or suffer the painful consequences.
" N. Claxton, 4th."
This letter was addressed to the " Hon. Stephen White, Salem, Mass.,"
and was also put into the post-office in Salem on Sunday evening.
When Knapp delivered these letters to his friend, he said his father
had received an anonymous letter, and " What I want you for is to put
these in the post-office in order to nip this silly affair in the bud.11
The Hon. Stephen White, mentioned in these letters, was a nephew
of Joseph White, and the legatee of the principal part oi his large prop-
erty.
When the Committee of Vigilance read and considered the letter, pur-
posing to be signed by Charles Grant, Jr., which had been delivered
46 THE MURDER OF CAPTAIN JOSEPH WHITE.
to them by Captain Knapp, they were impressed with the belief that it
contained a clew which might lead to important disclosures. As they
had spared no pains or expense in their investigations*, they immediately
despatched a discreet messenger to Prospect, in Maine ; he explained his
business confidentially to the postmaster there, deposited a letter ad-
dressed to Charles Grant, Jr., and awaited the call of Grant to receive it.
He soon called for it, when an officer, stationed in the house, stepped
forward and arrested Grant. On examining him, it appeared that his
true name was Palmer, a young man of genteel appearance, resident in
the adjoining town of Belfast. He had been a convict in Maine, and had
served a term in the State's prison in that State. Conscious that the cir-
cumstances justified the belief that he had had a hand in the murder, he
readily made known, while he protested his own innocence, that he could
unfold the whole mystery. He then disclosed that he had been an as-
sociate of R. Crowninshield, Jr., and George Crowninshield ; had spent
part of the winter at Danvers and Salem, under the name of Carr ; part
of the time he had been their inmate, concealed in their father's house
in Danvers ; that on the 2d of April he saw from the windows of the
house Frank Knapp and a young man named Allen ride up to the house ;
that George walked away with Frank, and Richard with Allen ; that
on their return, George told Richard that Frank wished them to under-
take to kill Mr. White, and that J. J. Knapp, Jr. would pay one thou-
sand dollars for the job. They proposed various modes of executing it,
and asked Palmer to be concerned, which he declined. George said the
housekeeper would be away at the time ; that the object of Joseph J.
Knapp, Jr. was to destroy the will, because it gave most of the property
to Stephen White ; that Joseph J. Knapp, Jr. was first to destroy the
will ; that he could get from the housekeeper the keys of the iron chest
in which it was kept ; that Frank called again the same day, in a chaise,
and rode away with Richard ; and that on the night of the murder
Palmer staid at the Half-way House, in Lynn.
The messenger, on obtaining this disclosure from Palmer, without de-
lay communicated it by mail to the Committee, and on the 26th of May,
a warrant was issued against Joseph J. Knapp, Jr. and John Francis
Knapp, and they were taken into custody at Wenham, where they were
residing in the family of Mrs. Beckford, mother of the wife of Joseph J.
Knapp, Jr. They were then imprisoned to await the arrival of Palmer,
for their examination.
The two Knapps were young shipmasters, of a respectable family.
Joseph J. Knapp, Jr., on the third day of his imprisonment, made a full
confession that he projected the murder. He knew that Mr. White had
made his will, and given to Mrs. Beckford a legacy of fifteen thousand dol-
Ws; but if he died without leaving a will, he expected she would inherit
THE MURDER OF CAPTAIN JOSEPH WHITE. 47
nearly two hundred thousand dollars. In February he made known to
his brother his desire to make way with Mr. White, intending first to
abstract and destroy the will. Frank agreed to employ an assassin, and
negotiated with R. Crowninshield, Jr., who agreed to do the deed for a
reward of one thousand dollars ; Joseph agreed to pay that sum, and
as he had access to the house at his pleasure, he was to unbar and
unfasten the back window, so that Crowninshield might gain easy en-
rrance. Four days before the murder, while they were deliberating on
the mode of compassing it, he went into Mr. White's chamber, and, find-
ing the key in the iron chest, unlocked it, took the will, put it in his
chaise-box, covered it with hay, carried it to Wenham, kept it till after
the murder, and then burned it. After securing the will, he gave no-
tice to Crowninshield that all was ready. In the evening of that day he
had a meeting with Crowninshield at the centre of the common, who
showed him a bludgeon and dagger, with which the murder was to be
committed. Knapp asked him if he meant to do it that night ; Crown-
inshield said he thought not, he did not feel like it ; Knapp then went
to Wenham. Knapp ascertained on Sunday, the 4th of April, that Mr.
White had gone to take tea with a relative in Chestnut Street. Crownin-
shield intended to dirk him on his way home in the evening, but Mr. White
returned before dark. It was next arranged for the night of the 6th,
and Knapp was on some pretext to prevail on Mrs. Beckford to visit her
daughters at Wenham, and to spend the night there. He said that, all
preparations being thus complete, Crowninshield and Frank met about
ten o'clock in the evening of the 6th, in Brown Street, which passes the
rear of the garden of Mr. White, and stood some time in a spot from
which they could observe the movements in the house, and perceive
when Mr. White and his two servants retired to bed. Crowninshield re-
quested Frank to go home ; he did so, but soon returned to the same spot.
Crowninshield, in the mean time, had started and passed round through
Newbury Street and Essex Street to the front of the house, entered the
postern gate, passed to the rear of the house, placed a plank against the
house, climbed to the window, opened it, entered the house alone, passed
up the staircase, opened the door of the sleeping-chamber, approached
the bedside, gave Mr. White a heavy and mortal blow on the head with
a bludgeon, and then with a dirk gave him many stabs in his body.
Crowninshield said, that after he had "done for the old man," he put his
lingers on his pulse to make certain he was dead. He then retired from
the house, hurried back through Brown Street, where he met Frank, wait-
ing to learn the event. Crowninshield ran down Howard Street, a soli-
tary place, and hid the club under the steps of a meeting-house. He
then went home to Danvers.
Joseph confessed further that the account of the Wenham robbery
48 THE MURDER OF CAPTAIN JOSEPH WHITE.
on the 27th of April, was a sheer fabrication. After the murder
Crowninshield went to Wenham in company with Frank to call for the
one thousand dollars. He was not able to pay the whole, but gave him
one hundred five-franc pieces. Crowninshield related to him the par-
ticulars of the murder, told him where the club was hid, and said he
was sorry Joseph had not got the right will, for if he had known there
was another, he would have got it. Joseph sent Frank afterwards to
find and destroy the club, but he said he could not find it. When Jo-
seph made the confession, he told the place where the club was con-
cealed, and it was there found ; it was heavy, made of hickory, twenty-
two and a half inches long, of a smooth surface and large oval head,
loaded with lead, and of a form adapted to give a mortal blow on the
skull without breaking the skin ; the handle was suited for a firm grasp.
Crowninshield said he turned it in a lathe. Joseph admitted he wrote
the two anonymous letters.
Crowninshield had hitherto maintained a stoical composure of feel-
ing ; but when he was informed of Knapp's arrest, his knees smote
beneath him, the sweat started out on his stern and pallid face, and he
subsided upon his bunk.
Palmer was brought to Salem in irons on the 3d of June, and com-
mitted to prison. Crowninshield saw him taken from the carriage. He
was put in the cell directly under that in which Crowninshield was kept.
Several members of the Committee entered Palmer's cell to talk with
him ; while they were talking, they heard a loud whistle, and, on look-
ing up, saw that Crowninshield had picked away the mortar from the
crevice between the blocks of the granite floor of his cell. After the
loud whistle, he cried out, " Palmer ! Palmer ! " and soon let down a
string, to which were tied a pencil and a slip of paper. Two lines of
poetry were written on the paper, in order that, if Palmer was really
there, he should make it known by capping the verses. Palmer shrunk
away into a corner, and was soon transferred to another cell. He
seemed to stand in awe of Crowninshield.
On the 12th of June a quantity of stolen goods was found concealed
in the barn of Crowninshield, in consequence of information from
Palmer.
Crowninshield, thus finding the proofs of his guilt and depravity
thicken, on the 15th of June committed suicide by hanging himself to
the bars of his cell with a handkerchief. He left letters to his father
and brother, expressing in general terms the viciousness of his life, and
his hopelessness of escape from punishment. When his associates in
guilt heard his fate, they said it was not unexpected by them, for they
had often heard him say he would never live to submit to an ignominious
punishment.
THE MURDER OF CAPTAIN JOSEPH WHITE. 49
A special term of the Supreme Court was held at Salem on the
20th of July, for the trial of the prisoners charged with the murder ; it
continued in session till the 20th of August, with a few days1 intermis-
sion. An indictment for the murder was found against John Francis
Knapp, as principal, and Joseph J. Knapp, Jr. and George Crownin-
shield, as accessories. Selman and Chase were discharged by the
Attorney-General.
The principal, John Francis Knapp, was first put on trial. As the
law then stood, an accessory in a murder could not be tried until a prin-
cipal had been convicted. He was defended by Messrs. Franklin Dexter
and William H. Gardiner, advocates of high reputation for ability and
eloquence ; the trial was long and arduous, and the witnesses numerous.
His brother Joseph, who had made a full confession, on the govern-
ment's promise of impunity if he would in good faith testify the truth,
was brought into court, called to the stand as a witness, but declined
to testify. To convict the prisoner, it was necessary for the government
to prove that he was present, actually or constructively, as an aider or
abettor in the murder. The evidence was strong that there was a con-
spiracy to commit the murder, that the prisoner was one of the con-
spirators, that at .the time of the murder he was in Brown Street at the
rear of Mr. White's garden, and the jury were satisfied that he was in
that place to aid and abet in the murder, ready to afford assistance, if
necessary. He was convicted.
Joseph J. Knapp, Jr., was afterwards tried as an accessory before
the fact, and convicted.
George Crowninshield proved an alibi, and was discharged.
The execution of John Francis Knapp and Joseph J. Knapp, Jr.
closed the tragedy.
If Joseph, after turning state's evidence, had not changed his mind,
neither he nor his brother, nor any of the conspirators, could have
been convicted ; if he had testified, and disclosed the whole truth, it
would have appeared that John Francis Knapp was in Brown Street,
not to render assistance to the assassin ; but that Crowninshield, when
he started to commit the murder, requested Frank to go home and go to
bed ; that Frank did go home, retire to bed, soon after arose, secretly
left his father's house, and hastened to Brown Street, to await the com-
ing-out of the assassin, in order to learn whether the deed was accom-
plished, and all the particulars. If Frank had not been convicted as
principal, none of the accessories could by law have been convicted.
Joseph would not have been even tried, for the government stipulated
that, if he would be a witness for the State, he should go clear.
The whole history of this occurrence is of romantic interest. The
murder itself, the corpus delicti, was strange ; planned with delibera*
VOL. VI. 5
50 THE MURDER OF CAPTAIN JOSEPH WHITE.
tion and sagacity, and executed with firmness and vigor. While con«
jecture was baffled in ascertaining either the motive or the perpetrator,
it was certain that the assassin had acted upon design, and not at ran-
dom. He must have had knowledge of the house, for the window had
been unfastened from within. He had entered stealthily, threaded his
way in silence through the apartments, corridors, and staircases, and
cooLy given the mortal blow. To make assurance doubly sure, he in-
flicted many fatal stabs, " the least a death to nature," and staid not
his hand till he had deliberately felt the pulse of his victim, to make cer-
tain that life was extinct.
It was strange that Crowninshield, the real assassin, should have been
indicted and arrested on the testimony of Hatch, who was himself in
prison, in a distant part of the State, at the time of the murder, and had
no actual knowledge on the subject.
It was very strange that J. J. Knapp, Jr. should have been the in-
strument of bringing to light the mystery of the whole murderous con-
spiracy ; for when he received from the hand of his father the threaten-
ing letter of Palmer, consciousness of guilt so confounded his faculties,
that, instead of destroying it, he stupidly handed it back, and requested
his father to deliver it to the Committee of Vigilance.
It was strange that the murder should have been committed on a
mistake in law. Joseph, some time previous to the murder, had made
inquiry how Mr. White's estate would be distributed in case he died
without a will, and had been erroneously told that Mrs. Beckford, his
mother-in-law, the sole issue and representative of a deceased sister of
Mr. White, would inherit half of the estate, and that the four children
and representatives of a deceased brother of Mr. White, of whom the
Hon. Stephen White was one, would inherit the other half. Joseph had
privately read the will, and knew that Mr. Wrhite had bequeathed to
Mrs. Beckford much less than half.
It was strange that the murder should have been committed on a
mistake in fact also. Joseph furtively abstracted a will, and expected
Mr. White would die intestate ; but after the decease, the will, the last
will, was found by his heirs in its proper place ; and it could never have
been known or conjectured, without the aid of Joseph's confession, that
lie had made either of those blunders.
Finally, it was a strange fact that Knapp should, on the night fol-
lowing the murder, have watched with the mangled corpse, and at the
funeral followed the hearse as one of the chief mourners, without be-
traying on either occasion the slightest emotion which could awaken a
suspicion of his guilt.
THE MURDER OF CAPTAIN JOSEPH WHITE. 51
Th« following note was prefixed to this argument in the former
edition.
Mr. White, a highly respectable and wealthy citizen of Salem, about
eighty years of age, was found, on the morning of the 7th of April,
1830, in his bed murdered, under such circumstances as to create a
strong sensation in that town and throughout the community.
Richard Crowninshield, George Crowninshield, Joseph J. Knapp, and
John F. Knapp were, a few weeks after, arrested on a charge of hav-
ing perpetrated the murder, and committed for trial. Joseph J. Knapp
soon after, under the promise of favor from government, made a full
confession of the crime and the circumstances attending it. In a few
days after this disclosure was made, Richard Crowninshield, who was
supposed to have been the principal assassin, committed suicide.
A special session of the Supreme Court was ordered by the legisla-
ture, for the trial of the prisoners, at Salem, in July. At that time, John
F. Knapp was indicted as principal in the murder, and George Crown-
inshield and Joseph J. Knapp as accessories.
On account of the death of Chief Justice Parker, which occurred on
the 26th of July, the court adjourned to Tuesday, the 3d day of August,
when it proceeded in the trial of John F. Knapp. Joseph J. Knapp, be-
ing called upon, refused to testify, and the pledge of the government
was withdrawn.
At the request of the prosecuting officers of the government, Mr
Webster appeared as counsel, and assisted in the trial.
Mr. Franklin Dexter addressed the jury on behalf of the prisoner, and
was succeeded by Mr. Webster in the following speech.
1 am little accustomed, Gentlemen, to the part which I am
now attempting to perform. Hardly more than once or twice
has it happened to me to be concerned on the side of the gov-
ernment in any criminal prosecution whatever ; and never, until
the present occasion, in any case affecting life.
But I very much regret that it should have been thought ne-
cessary to suggest to you that I am brought here to " hurry
you against the law and beyond the evidence." I hope I have
too much regard for justice, and too much respect for my own
character, to attempt either ; and were I to make such attempt,
I am sure that in this court nothing can be carried against the
law, and that gentlemen, intelligent and just as you are, are
52 THE MURDER OF CAPTAIN JOSEPH WHITE.
not, by any power, to be hurried beyond the evidence. Though
I could well have wished to shun this occasion, I have not felt
at liberty to withhold my professional assistance, when it is
supposed that I may be in some degree useful in investigat-
ing and discovering the truth respecting this most extraordinary
murder. It has seemed to be a duty incumbent on me, as on
every other citizen, to do my best and my utmost to bring to
light the perpetrators of this crime. Against the prisoner at
the bar, as an individual, I cannot have the slightest prejudice.
I would not do him the smallest injury or injustice. But I do
not affect to be indifferent to the discovery and the punishment
of this deep guilt. I cheerfully share in the opprobrium, how
great soever it may be, which is cast on those who feel and
manifest an anxious concern that all who had a part in plan-
ning, or a hand in executing, this deed of midnight assassina-
tion, may be brought to answer for their enormous crime at the
bar of public justice.
Gentlemen, it is a most extraordinary case. In some respects,
it has hardly a precedent anywhere; certainly none in our New
England history. This bloody drama exhibited no suddenly
excited, ungovernable rage. The actors in it were not surprised
by any lion-like temptation springing upon their virtue, and
overcoming it, before resistance could begin. Nor did they do
the deed to glut savage vengeance, or satiate long-settled and
deadly hate. It was a cool, calculating, money-making murder.
It was all " hire and salary, not revenge." It was the weigh-
ing of money against life ; the counting out of so many pieces
of silver against so many ounces of blood.
An aged man, without an enemy in the world, in his own
house, and in his own bed, is made the victim of a butcherly
murder, for mere pay. Truly, here is a new lesson for painters
and poets. "Whoever shall hereafter draw the portrait of mur-
der, if he will show it as it has been exhibited, where such ex-
ample was last to have been looked for, in the very bosom of
our New England society, let him not give it the grim visage
of Moloch, the brow knitted by revenge, the face black with
settled hate, and the blood-shot eye emitting livid fires of mal-
ice. Let him draw, rather, a decorous, smooth-faced, bloodless
demon ; a picture in repose, rather than in action ; not so much
an example of human nature in its depravity, and in its parox-
THE MURDER OF CAPTAIN JOSEPH WHITE. 53
ysms of crime, as an infernal being, a fiend, in the ordinary
display and development of his character.
The deed was executed with a degree of self-possession and
steadiness equal to the wickedness with which it was planned.
The circumstances now clearly in evidence spread out the
whole scene before us. Deep sleep had fallen on the destined
victim, and on all beneath his roof. A healthful old man, to
whom sleep was sweet, the first sound slumbers of the night
held him in their soft but strong embrace. The assassin enters,
through the window already prepared, into an unoccupied apart-
ment. With noiseless foot he paces the lonely hall, half lighted
by the moon ; he winds up the ascent of the stairs, and reaches
the door of the chamber. Of this, he moves the lock, by soft
and continued pressure, till it turns on its hinges without noise ;
and he enters, and beholds his victim before him. The room
is uncommonly open to the admission of light. The face
of the innocent sleeper is turned from the murderer, and the
beams of the moon, resting on the gray locks of his aged tem-
ple, show him where to strike. The fatal blow is given ! and
the victim passes, without a struggle or a motion, from the re-
pose of sleep to the repose of death ! It is the assassin's pur-
pose to make sure work ; and he plies the dagger, though it
is obvious that life has been destroyed by the blow of the
bludgeon. He even raises the aged arm, that he may not fail
in his aim at the heart, and replaces it again over the wounds
of the poniard! To finish the picture, he explores the wrist fm
the pulse ! He feels for it, and ascertains that it beats no long-
er! It is accomplished. The deed is done. He retreats, re-
traces his steps to the window, passes out through it as he came
in, and escapes. He has done the murder. No eye has seen him,
no ear has heard him. The secret is his own, and it is safe !
Ah ! Gentlemen, that was a dreadful mistake. Such a secret
can be safe nowhere. The whole creation of God has neither
nook nor corner where the guilty can bestow it, and say it is
safe. Not to speak of that eye which pierces through all dis-
guises, and beholds every thing as in the splendor of noon, such
secrets of guilt are never safe from detection, even by men.
True it is, generally speaking, that " murder will out." True it
is, that Providence hath so ordained, and doth so govern things,
that those who break the great law of Heaven by shedding
5*
54 THE MURDER OF CAPTAIN JOSEPH WHITE.
man's blood seldom succeed in avoiding discovery. Especially,
in a case exciting so much attention as this, discovery must
come, and will come, sooner or later. A thousand eyes turn at
once to explore every man, every thing, every circumstance, con-
nected with the time and place ; a thousand • ears catch every
whisper ; a thousand excited minds intensely dwell on the scene,
shedding all their light, and ready to kindle the slightest circum-
stance into a blaze of discovery. Meantime the guilty soul
cannot keep its own secret. It is false to itself; or rather it
feels an irresistible impulse of conscience to be true to itself. It
labors under its guilty possession, and knows not what to do
with it. The human heart was not made for the residence of
such an inhabitant. It finds itself preyed on by a torment,
which it dares not acknowledge to God or man. A vulture is
devouring it, and it can ask no sympathy or assistance, either
from heaven or earth. The secret which the murderer possesses
soon comes to possess him ; and, like the evil spirits of which
we read, it overcomes him, and leads him whithersoever it will.
He feels it beating at his heart, rising to his throat, and de-
manding disclosure. He thinks the whole world sees it in his
face, reads it in his eyes, and almost hears its workings in the
very silence of his thoughts. It has become his master. It be-
trays his discretion, it breaks down his courage, it conquers his
prudence. When suspicions from without begin to embarrass
him, and the net of circumstance to entangle him, the fatal
secret struggles with still greater violence to burst forth. It
must be confessed, it will be confessed ; there is no refuge from
confession but suicide, and suicide is confession.
Much has been said, on this occasion, of the excitement
which has existed, and still exists, and of the extraordinary
measures taken to discover and punish the guilty. No doubt
there has been, and is, much excitement, and strange indeed it
would be had it been otherwise. Should not all the peaceable
and well-disposed naturally feel concerned, and naturally exert
themselves to bring to punishment the authors of this secret
assassination ? Was it a thing to be slept upon or forgotten ?
Did you, Gentlemen, sleep quite as quietly in your beds after
this murder as before? Was it not a case for rewards, for
meetings, for committees, for the united efforts of all the good,
to find out a band of murderous conspirators, of midnight ruf-
THE MURDER OF CAPTAIN JOSEPH WHITE. 55
hans, and to bring them to the bar of justice and law ? If this
be excitement, is it an unnatural or an improper excitement ?
It seems to me, Gentlemen, that there are appearances of an-
other feeling, of a very different nature and character ; not very
extensive, I would hope, but still there is too much evidence of
its existence. Such is human nature, that some persons lose
their abhorrence of crime in their admiration of its magnificent
exhibitions. Ordinary vice is reprobated by them, but extraor-
dinary guilt, exquisite wickedness, the high flights and poetry
of crime, seize on the imagination, and lead them to forget the
depths of the guilt, in admiration of the excellence of the per-
formance, or the unequalled atrocity of the purpose. There are
those in our day who have made great use of this infirmity of
our nature, and by means of it done infinite injury to the cause
of good morals. They have affected not only the taste, but I
fear also the principles, of the young, the heedless, and the im-
aginative, by the exhibition of interesting and beautiful mon-
sters. They render depravity attractive, sometimes by the polish
of its manners, and sometimes by its very extravagance ; and
study to show off crime under all the advantages of cleverness
and dexterity. Gentlemen, this is an extraordinary murder, but
it is still a murder. We are not to lose ourselves in wonder at
its origin, or in gazing on its cool and skilful execution. We
are to detect and to punish it ; and while we proceed with cau-
tion against the prisoner, and are to be sure that we do not visit
on his head the offences of others, we are yet to consider that
we are dealing with a case of most atrocious crime, which has
not the slightest circumstance about it to soften its enormity.
It is murder ; deliberate, concerted, malicious murder.
Although the interest of this case may have diminished by
the repeated investigation of the facts ; still, the additional labor
which it imposes upon all concerned is not to be regretted, if it
should result in removing all doubts of the guilt of the prisoner.
The learned counsel for the prisoner has said truly, that it is
your individual duty to judge the prisoner ; that it is your indi-
vidual duty to determine his guilt or innocence ; and that you
are to weigh the testimony with candor and fairness. But much
at the same time has been said, which, although it would seem
to have no distinct bearing on the trial, cannot be passed over
without some notice.
56 THE MURDER OF CAPTAIN JOSEPH WHITE.
A tone of complaint so peculiar has been indulged, as woula
almost lead us to doubt whether the prisoner at the bar, or the
managers of this prosecution, are now on trial. Great pains
have been taken to complain of the manner of the prosecution.
We hear of getting up a case ; of setting in motion trains of ma-
chinery ; of foul testimony ; of combinations to overwhelm the
prisoner ; of private prosecutors ; that the prisoner is hunted,
persecuted, driven to his trial ; that every body is against him ;
and various other complaints, as if those who would bung to
punishment the authors of this murder were almost as bad as
they who committed it.
In the course of my whole life, I have never heard before so
much said about the particular counsel who happen to be em-
ployed ; as if it were extraordinary that other counsel than the
usual officers of the government should assist in the manage*
ment of a case on the part of the government. In oue of the last
criminal trials in this county, that of Jackman for the " Good-
ridge robbery" (so called), I remember that the learned head of
the Suffolk Bar, Mr. Prescott, came down in aid of the officers
of the government. This was regarded as neither strange nor
improper. The counsel for the prisoner, in that case, contented
themselves with answering his arguments, as far as they were
able, instead of carping at his presence.
Complaint is made that rewards were offered, in this case,
and temptations held out to obtain testimony. Are not rewards
always offered, when great and secret offences are committed ?
Rewards were offered in the case to which I have alluded ; and
every other means taken to discover the offenders, that ingenui-
ty or the most persevering vigilance could suggest. The learned
counsel have suffered their zeal to lead them into a strain of
complaint at the manner in which the perpetrators of this crime
were detected, almost indicating that they regard it as a posi-
tive injury to them to have found out their guilt. Since no
man witnessed it, since they do not now confess it, attempts to
discover it are half esteemed as officious intermeddling and im-
pertinent inquiry.
It is said, that here even a Committee of Vigilance was ap-
pointed. This is a subject of reiterated remark. This commit-
tee are pointed at, as though they had been officiously intermed-
dling with the administration of justice. They are said to have
THE MURDER OF CAPTAIN JOSEPH WHITE. 57
been " laboring for months " against the prisoner. Gentlemen
what must we do in such a case ? Are people to be dumb and
still, through fear of over-doing? Is it come to this, that an
effort cannot be made, a hand cannot be lifted, to discover the
guilty, without its being said there is a combination to over-
whelm innocence? Has the community lost all moral sense?
Certainly, a community that would not be roused to action up-
on an occasion such as this was, a community which should
not deny sleep to their eyes, and slumber to their eyelids, till
they had exhausted all the means of discovery and detection,
must indeed be lost to all moral sense, and would scarcely de-
serve protection from the laws. The learned counsel have en-
deavored to persuade you, that there exists a prejudice against
the persons accused of this murder. They would have you un-
derstand that it is not confined to this vicinity alone ; but that
even the legislature have caught this spirit. That through the
procurement of the gentleman here styled private prosecutor,
who is a member of the Senate, a special session of this court
was appointed for the trial of these offenders. That the ordi-
nary movements of the wheels of justice were too slow for the
purposes devised. But does not every body see and know, that
it was matter of absolute necessity to have a special session of
the court ? When or how could the prisoners have been tried
without a special session ? In the ordinary arrangement of the
courts, but one week in a year is allotted for the whole court to
sit in this county. In the trial of all capital offences a major-
ity of the court, at least, is required to be present. In the
trial of the present case alone, three weeks have already been
taken up. Without such special session, then, three years
would not have been sufficient for the purpose. It is answer
sufficient to all complaints on this subject to say, that the law
was drawn by the late Chief Justice himself,* to enable the
court to accomplish its duties, and to afford the persons ac-
cused an opportunity for trial without delay.
Again, it is said that it was not thought of making Franc'13
Knapp, the prisoner at the bar, a principal till after the death
of Richard Crownin shield, Jr. ; that the present indictment is
an afterthought; that " testimony was got up" for the occa-
* Chief Justice Parker.
58 THE MURDER OE CAPTAIN JOSEPH WHITE.
sion. It is not so. There is no authority for this suggestion.
The case of the Knapps had not then been before the grand jury.
The officers of the government did not know what the testi-
mony would be against them. They could not, therefore, have
determined what course they should pursue. They intended
to arraign all as principals who should appear to have been
principals, and all as accessories who should appear to have
been accessories. All this could be known only when the evi-
dence should be produced.
But the learned counsel for the defendant take a somewhat
loftier flight still. They are more concerned, they assure us, for
the law itself, than even for their client. Your decision in this
case, they say, will stand as a precedent. Gentlemen, we hope
it will. We hope it will be a precedent both of candor and in-
telligence, of fairness and of firmness ; a precedent of good
sense and honest purpose pursuing their investigation discreet-
ly, rejecting loose generalities, exploring all the circumstances,
weighing each, in search of truth, and embracing and declaring
the truth when found.
It is said, that " laws are made, not for the punishment of
the guilty, but for the protection of the innocent." This is not
quite accurate, perhaps, but if so, we hope they will be so ad-
ministered as to give that protection. But who are the inno-
cent whom the law would protect ? Gentlemen, Joseph White
was innocent. They are innocent who, having lived in the
fear of God through the day, wish to sleep in his peace through
the night, in their own beds. The law is established that those
who live quietly may sleep quietly ; that they who do no harm
may feel none. The gentleman can think of none that are in-
nocent except the prisoner at the bar, not yet convicted. Is a
proved conspirator to murder innocent? Are the Crownin-
shields and the Knapps innocent ? What is innocence ? How
deep stained with blood, how reckless in crime, how deep in
depravity may it be, and yet retain innocence ? The law is
made, if we would speak with entire accuracy, to protect the
innocent by punishing the guilty. But there are those inno-
cent out of a court, as well as in; innocent citizens not sus-
pected of crime, as well as innocent prisoners at the bar.
The criminal law is not founded in a principle of vengeance.
It does not punish that it may inflict suffering. The humanity
THE MURDER OF CAPTAIN JOSEPH WHITE. 59
of the law feels and regrets every pain it causes, every hour of
restraint it imposes, and more deeply still every life it forfeits.
But it uses evil as the means of preventing greater evil. It
seeks to deter from crime by the example of punishment. This
is its true, and only true main object. It restrains the liberty
of the few offenders, that the many who do not offend may
enjoy their liberty. It takes the life of the murderer, that
other murders may not be committed. The law might open
the jails, and at once set free all persons accused of offences,
and it ought to do so if it could be made certain that no other
offences would hereafter be committed ; because it punishes,
not to satisfy any desire to inflict pain, but simply to prevent
the repetition of crimes. When the guilty, therefore, are not
punished, the law has so far failed of its purpose ; the safety
of the innocent is so far endangered. Every unpunished mur-
der takes away something from the security of every man's
life. Whenever a jury, through whimsical and ill-founded
scruples, suffer the guilty to escape, they make themselves an-
swerable for the augmented danger of the innocent.
We wish nothing to be strained against this defendant.
Why, then, all this alarm ? Why all this complaint against
the manner in which the crime is discovered? The prisoner's
counsel catch at supposed flaws of evidence, or bad character
of witnesses, without meeting the case. Do they mean to
deny the conspiracy ? Do they mean to deny that the two
Crowninshields and the two Knapps were conspirator? ? Why
do they rail against Palmer, while they do not disprove, and
hardly dispute, the truth of any one fact sworn to by him ? In-
stead of this, it is made matter of sentimentality that Palmer
has been prevailed upon to betray his bosom companions and
to violate the sanctity of friendship. Again I ask, Why do
they not meet the case ? If the fact is out, why not meet it ?
Do they mean to deny that Captain White is dead ? One
would have almost supposed even that, from sorrie remarks
that have been made. Do they mean to deny the conspiracy?
Or, admitting a conspiracy, do they mean to deny only that
Frank Knapp, the prisoner at the bar, was abetting in the
murder, being present, and so deny that he was a principal ?
If a conspiracy is proved, it bears closely upon every subse-
quent subject of inquiry. Why do they not come to the fact?
CO THE MURDER OF CAPTAIN JOSEPH WHITE.
Here the defence is wholly indistinct. The counsel neither
take the ground, nor abandon it. They neither fly, nor light.
They hover. But they must come to a closer mode of contest.
They must meet the facts, and either deny or admit them.
Had the prisoner at the bar, then, a knowledge of this conspir-
acy or not? This is the question. Instead of laying out their
strength in complaining of the manner in which the deed is dis-
covered, of the extraordinary pains taken to bring the prisoner's
guilt to light, would it not be better to show there was no
guilt? Would it not be better to show his innocence? They
say, and they complain, that the community feel a great de-
sire that he should be punished for his crimes. Would it not
be better to convince you that he has committed no crime ?
Gentlemen, let us now come to the case. Your first inquiry,
on the evidence, will be, Was Captain White murdered in pur-
suance of a conspiracy, and was the defendant one of this con-
spiracy ? If so, the second inquiry is, Was he so connected
with the murder itself as that he is liable to be convicted as a
principal? The defendant is indicted as a principal. If not
guilty as such, you cannot convict him. The indictment con-
tains three distinct classes of counts. In the first, he is charged
as having done the deed with his own hand ; in the second, as
an aider and abettor to Richard Crowninshield, Jr., who did
the deed ; in the third, as an aider and abettor to some person
unknown. If you believe him guilty on either of these counts,
or in either of these ways, you must convict him.
It may be proper to say, as a preliminary remark, that there
are two extraordinary circumstances attending this trial. One
is, that Richard Crowninshield, Jr., the supposed immediate
perpetrator of the murder, since his arrest, has committed sui-
cide. He has gone to answer before a tribunal of perfect infalli-
bility. The other is, that Joseph Knapp, the supposed originator
and planner of the murder, having once made a full disclosure
of the facts, under a promise of indemnity, is, nevertheless, not
now a witness. Notwithstanding his disclosure and his prom-
ise of indemnity, he now refuses to testify. He chooses to
return to his original state, and now stands answerable himself,
when the time shall come for his trial. These circumstances
it is fit you should remember, in your investigation of the case.
Your decision may affect more than the life of this defendant.
THE MURDER OF CAPTAIN JOSEPH WHITE. 61
If he be not convicted as principal, no one can be. Nor can
any one be convicted of a participation in the crime as ac-
cessory. The Knapps and George Crowninshield will be again
on the community. This shows the importance of the duty
you have to perform, and serves to remind you of the care and
wisdom necessary to be exercised in its performance. But cer-
tainly these considerations do not render the prisoner's guilt
any clearer, nor enhance the weight of the evidence against
him. No one desires you to regard consequences in that light.
No one wishes any thing to be strained, or too far pressed
against the prisoner. Still, it is fit you should see the full im-
portance of the duty which devolves upon you.
And now, Gentlemen, in examining this evidence, let us be-
gin at the beginning, and see first what we know independent
of the disputed testimony. This is a case of circumstantial
evidence. And these circumstances, we think, are full and sat-
isfactory. The case mainly depends upon them, and it is com-
mon that offences of this kind must be proved in this way.
Midnight assassins take no witnesses. The evidence of the
facts relied on has been somewhat sneeringly denominated by
the learned counsel, " circumstantial stuff," but it is not such
stuff as dreams are made of. Why does he not rend this
stuff? Why does he not scatter it to the winds ? He dis-
misses it a little too summarily. It shall be my business to
examine this stuff, and try its cohesion.
The letter from Palmer at Belfast, is that no more than
flimsy stuff?
The fabricated letters from Knapp to the committee and to
Mr. White, are they nothing but stuff?
The circumstance, that the, housekeeper was away at the
time the murder was committed, as it was agreed she would be,
is that, too, a useless piece of the same stuff?
The facts, that the key of the chamber door was taken out
and secreted ; that the window was unbarred and unbolted ; are
these to be so slightly and so easily disposed of?
It is necessary, Gentlemen, to settle now, at the commence-
ment, the great question of a conspiracy. If there was none, or
the defendant was not a party, then there is no evidence here to
convict him. If there was a conspiracy, and he is proved to
have been a party, then these two facts have a strong bearing
vol. vi. 6
62 THE MURDER OF CAPTAIN JOSEPH WHITE.
on others, and all the great points of inquiry. The defendant's
counsel take no distinct ground, as I have already said, on this
point, either to admit or to deny. They choose to confine
themselves to a hypothetical mode of speech. They say, sup-
posing there was a conspiracy, non sequitur that the prisoner is
guilty as principal. Be it so. But still, if there was a con-
spiracy, and if he was a conspirator, and helped to plan the
murder, this may shed much light on the evidence which goes
to charge him with the execution of that plan.
We mean to make out the coxispiracy ; and that the defend-
ant was a party to it ; and then to draw all just inferences
from these facts.
Let me ask your attention, then, in the first place, to those
appearances, on the morning after the murder, which have a
tendency to show that it was done in pursuance of a precon-
certed plan of operation'. What are they? A man was found
murdered in his bed. No stranger had done the deed, no one
unacquainted with the house had done it. It was apparent
chat somebody within had opened, and that somebody witb-
mt had entered. There had obviously and certainly been
concert and cooperation. The inmates of the house were
not alarmed when the murder was perpetrated. The assas-
sin had entered without any riot or any violence. He had
found the way prepared before him. The house had been pre-
viously opened. The window was unbarred from within, and
its fastening unscrewed. There was a lock on the door of the
chamber in which Mr. White slept, but the key was gone. It
had been taken away and secreted. The footsteps of the mur-
derer were visible, out doors, tending toward the window. The
plank by which he entered the window still remained. The
road he pursued had been thus prepared for him. The victim
was slain, and the murderer had escaped. Every thing indi-
cated that somebody within had cooperated with somebody
without. Every thing proclaimed that some of the inmates, or
somebody having access to the house, had had a hand in the
murder. On the face of the circumstances, it was apparent,
therefore, that this was a premeditated, concerted murder; that
there had been a conspiracy to commit it. Who, then, were
the conspirators ? If not now found out, we are still groping
in the dark, and the whole tragedy is still a mystery.
THE MURDER OF CAPTAIN JOSEPH WHITE. 63
If the Knapps and the Crowninshields were not the con-
spirators in this murder, then there is a whole set of conspira-
tors not yet discovered. Because, independent of the testimony
of Palmer and Leighton, independent of all disputed evidence;
we know, from uncontroverted facts, that this murder was, and
must have been, the result of concert and cooperation between
two or more. We know it was not done without plan and de-
liberation ; we see, that whoever entered the house, to strike the
blow, was favored and aided by some one who had been pre-
viously in the house, without suspicion, and who had prepared
the way. This is concert, this is cooperation, this is conspir-
acy. If the Knapps and the Crowninshields, then, were not
the conspirators, who were? Joseph Knapp had a motive
to desire the death of Mr. White, and that motive has been
shown.
He was connected by marriage with the family of Mr. White.
His wife was the daughter of Mrs. Beckford, who was the only
child of a sister of the deceased. The deceased was more than
eighty years old, and had no children. His only heirs were
nephews and nieces. He was supposed to be possessed of a
very large fortune, which would have descended, by law, to his
several nephews and nieces in equal shares ; or, if there was
a will, then according to the will. But as he had but two
branches of heirs, the children of his brother, Henry White,
and of Mrs. Beckford, each of these branches, according to the
common idea, would have shared one half of his property.
This popular idea is not legally correct. But it is common,
and very probably was entertained by the parties. According
to this idea, Mrs. Beckford, on Mr. White's death without a
will, would have been entitled to one half of his ample for-
tune ; and Joseph Knapp had married one of her three chil-
dren. There was a will, and this will gave the bulk of the prop-
erty to others ; and we learn from Palmer that one part of the
design was to destroy the will before the murder was commit-
ted. There had been a previous will, and that previous will
was known or believed to have been more favorable than the
other to the Beckford family. So that, by destroying the last
will, and destroying the life of the testator at the same time,
either the first and more favorable will would be set up, or the
deceased would have no will, which would be, a? was supposed,
b4 THE MURDER OF CAPTAIN JOSEPH WHITE.
still more favorable. But the conspirators not having succeeded
in obtaining and destroying the last will, though they accom-
plished the murder, that will being found in existence and
safe, and that will bequeathing the mass of the property to oth-
ers, it seemed at the time impossible for Joseph Knapp, as for
any one else, indeed, but the principal devisee, to have any mo-
tive which should lead to the murder. The key which unlocks
the whole mystery is the knowledge of the intention of the con-
spirators to steal the will. This is derived from Palmer, and it
explains all. It solves the whole marvel. It shows the motive
which actuated those, against whom there is much evidence, but
who, without the knowledge of this intention, were not seen to
have had a motive. This intention is proved, as I have said,
by Palmer; and it is so congruous with all the rest of the case,
it agrees so well with all facts and circumstances, that no man
could well withhold his belief, though the facts were stated by a
still less credible witness. If one desirous of opening a lock
turns over and tries a bunch of keys till he finds one that will
open it, he naturally supposes he has found the key of that lock.
So, in explaining circumstances of evidence which are ap-
parently irreconcilable or unaccountable, if a fact be suggested
which at once accounts for all, and reconciles all, by whomsoever
it may be stated, it is still difficult not to believe that such fact
is the true fact belonging to the case. In this respect, Palmer's
testimony is singularly confirmed. If it were false, his ingenu-
ity could not furnish us such clear exposition of strange appear-
ing circumstances. Some truth not before known can alone do
that.
When we look back, then, to the state of things immediately
on the discovery of the murder, we see that suspicion would nat-
urally turn at once, not to the heirs at law, but to those princi-
pally benefited by the will. They, and they alone, would be
supposed or seem to have a direct object for wishing Mr.
White's life to be terminated. And, strange as it may seem, w^
find counsel now insisting, that, if no apology, it is yet mitigation
of the atrocity of the Knapps' conduct in attempting to charge
this foul murder on Mr. White, the nephew and principal devi-
see, that public suspicion was already so directed ! As if assas-
sination of character were excusable in proportion as circum-
stances may render it easy. Their endeavors, when they knew
THE MURDER OF CAPTAIN JOSEPH WHITE. 65
they were suspected themselves, to fix the charge on others, by
foul means and by falsehood, are fair and strong proof of their
own guilt. But more of that hereafter.
The counsel say that they might safely admit that Richard
Crowninshield, Jr. was the perpetrator of this murder.
But how could they safely admit that? If that were admit-
ted, every thing else would follow. For why should Richard
Crowninshield, Jr. kill Mr. White? He was not his heir, nor
his devisee ; nor was he his enemy. What could be his mo-
tive? If Richard Crowninshield, Jr. killed Mr. White, he did it
at some one's procurement who himself had a motive. And
who, having any motive, is shown to have had any intercourse
with Richard Crowninshield, Jr., but Joseph Knapp, and this
principally through the agency of the prisoner at the bar? It
is the infirmity, the distressing difficulty of the prisoner's case,
that his counsel cannot and dare not admit what they yet can-
not disprove, and what all must believe. He who believes, on
this evidence, that Richard Crowninshield, Jr. was the immedi-
ate murderer, cannot doubt that both the Knapps were conspir-
ators in that murder. The counsel, therefore, are wrong, I think,
in saying they might safely admit this. The admission of so
important and so connected a fact would render it impossible to
contend further against the proof of the entire conspiracy, as we
state it.
What, then, was this conspiracy? J. J. Knapp, Jr., desirous
of destroying the will, and of taking the life of the deceased,
hired a ruffian, who, with the aid of other ruffians, was to enter
the house, and murder him in his bed.
As far back as January this conspiracy began. Endicott tes-
tifies to a conversation with J. J. Knapp at that time, in which
Knapp told him that Captain White had made a will, and given
the principal part of his property to Stephen White. When asked
how he knew, he said, " Black and white don't lie." When
asked if the will was not locked up, he said, " There is such a
thing as two keys to the same lock." And speaking of the then
late illness of Captain White, he said, that Stephen White would
not have been sent for if he had been there.
Hence it appears, that as early as January Knapp had a
knowledge of the will, and that he had access to it by means
of false keys. This knowledge of the will, and an intent to
6*
M THE MURDER OF CAPTAIN JOSEPH WHITE.
destroy it, appear also from Palmer's testimony, a fact disclosed
to him by the other conspirators. He says that he was informed
of this by the Crowninshields on the 2d of April. But then it is
said that Palmer is not to be credited ; that by his own confes-
sion he is a felon; that he has been in the State prison in Maine;
and, above all, that he was intimately associated with these con-
spirators themselves. Let us admit these facts. Let us admit
him to be as bad as they would represent him to be; still, in
law, he is a competent witness. How else are the secret designs
of the wicked to be proved, but by th^ wicked companions, to
whom they have disclosed them ? The government does not
select its witnesses. The conspirators themselves have chosen
Palmer. He was the confidant of the prisoners. The fact,
however, does not depend on his testimony alone. It is corrob-
orated by other proof; and, taken in connection with the other
circumstances, it has strong probability. In regard to the testi-
mony of Palmer, generally, it may be said that it is less con-
tradicted, in all parts of it, either by himself or others, than that
of any other material witness, and that every thing he has told
is corroborated by other evidence, so far as it is susceptible of
confirmation. An attempt has been made to impair his testi-
mony, as to his being at the Half-way House on the night of
the murder; you have seen with what success. Mr. Babb is
called to contradict him. You have seen how little he knows,
and even that not certainly ; for he himself is proved to have
been in an error by supposing Palmer to have been at the Half-
way House on the evening of the 9th of April. At that time
he is proved to have been at Dustin's, in Danvers. If, then,
Palmer, bad as he is, has disclosed the secrets of the conspiracy,
and has told the truth, there is no reason why it should not be
believed. Truth is truth, come whence it may.
The facts show that this murder had been long in agitation;
that it was not a new proposition on the 2d of April ; that it
had been contemplated for five or six weeks. Richard Crown-
inshield was at Wenham in the latter part of March, as testi-
fied by Starrett. Frank Knapp was at Danvers in the latter
part of February, as testified by Allen. Richard Crowninshield
inquired whether Captain Knapp was about home, when at
Wenham. The probability is, that they would open the case to
Palmer as a new project. There are other circumstances that
THE MURDER OF CAPTAIN JOSEPH WHITE. 67
show it to have been some weeks in agitation. Palmer's testi-
mony as to the transactions on the 2d of April is corroborated
by Allen, and by Osborn's books. He says that Frank Knapp
came there in the afternoon, and again in the evening. So the
book shows. He says that Captain White had gone out to his
farm on that day. So others prove. How could this fact, or
these facts, have been known to Palmer, unless Frank Knapp
had brought the knowledge ? And was it not the special object
of this visit to give information of this fact, that they might
meet him and execute their purpose on his return from his farm?
The letter of Palmer, written at Belfast, bears intrinsic marks of
genuineness. It was mailed at Belfast, May 13th. It states facts
that he could not have known, unless his testimony be true.
This letter wTas not an afterthought; it is a genuine narrative.
In fact, it says, " I know the business your brother Frank was
transacting on the 2d of April." How could he have possibly
known this, unless he had been there? The "one thousand
dollars that was to be paid " ; where could he have obtained
this knowledge ? The testimony of Endicott, of Palmer, and
these facts, are to be taken together ; and they most clearly
show that the death of Captain White was caused by some-
body interested in putting an end to his life.
As to the testimony of Leighton, as far as manner of testi-
fying goes, he is a bad witness ; but it does not follow from this
that he is not to be believed. There are some strange things
about him. It is strange, that he should make up a story against
Captain Knapp, the person with whom he lived ; that he never
voluntarily told any thing : all that he has said was screwed out
of him. But the story could not have been invented by him ;
his character for truth is unimpeached; and he intimated to
another witness, soon after the murder happened, that he knew
something he should not tell. There is not the least contra-
diction in his testimony, though he gives a poor account of
withholding it. He says that he was extremely bothered by
those who questioned him. In the main story that he relates
lie is entirely consistent with himself. Some things are for him,
and some against him. Examine the intrinsic probability of
what he says. See if some allowance is not to be made for
him, on account of his ignorance of things of this kind. It
is said to be extraordinary, that he should have heard just so
68 THE MURDER OF CAPTAIN JOSEPH WHITE.
much of the conversation, and no more ; that he should have
heard just what was necessary to be proved, and nothing else.
Admit that this is extraordinary ; still, this does not prove it un-
true. It is extraordinary that you twelve gentlemen should be
called upon, out of all the men in the county, to decide this
case; no one could have foretold this three weeks since. It is
extraordinary that the first clew to this conspiracy should have
oeen derived from information given by the father of the pris-
oner at the bar. And in every case that comes to trial there are
many things extraordinary. The murder itself is a most ex-
traordinary one; but still we do not doubt its reality.
It is argued, that this conversation between Joseph and
Frank could not have been as Leighton has testified, because
they had been together for several hours before; this subject
must have been uppermost in their minds, whereas this appears
to have been the commencement of their conversation upon it.
Now this depends altogether upon the tone and manner of the
expression ; upon the particular word in the sentence which was
emphatically spoken. If he had said, " When did you see Dick,
Frank ? " this would not seem to be the beginning of the con-
versation. With what emphasis it was uttered, it is not possible
to learn; and therefore nothing can be made of this argument.
If this boy's testimony stood alone, it should be received with
caution. And the same may be said of the testimony of Palm-
er. But they do not stand alone. They furnish a clew to
numerous other circumstances, which, when known, mutually
confirm what would have been received with caution without
such corroboration. How could Leighton have made up this
conversation? "When did you see Dick?" UI saw him this
morning." " When is he going to kill the old man ?" u I don't
know." " Tell him, if he don't do it soon, I won't pay him."
Here is a vast amount in few words. Had he wit enough to
invent this? There is nothing so powerful as truth; and often
nothing so strange. It is not even suggested that the story was
made for him. There is nothing so extraordinary in the whole
matter, as it would have been for this ignorant country boy to
invent this story.
The acts of the parties themselves furnish strong presump-
tion of their guilt. What was done on the receipt of the letter
from Maine? This letter was signed by Charles Grant, Jr^
THE MURDER OF CAPTAIN JOSEPH WHITE. 69
a person not known to either of the Knapps, nor was it known
to them that any other person beside the Crowninshields kiiew
of the conspiracy. This letter, by the accidental omission of
the word Jr., fell into the hands of the father, when intended
for the son. The father carried it to Wenham where both the
sons were. They both read it. Fix your eye steadily on this
part of the circumstantial stuff which is in the case, and see
what can be made of it. This was shown to the two broth-
ers on Saturday, the 15th of May. Neither of them knew
Palmer. And if they had known him, they could not have
known him to have been the writer of this letter. It was mys-
terious to them how any one at Belfast could have had knowl-
edge of this affair. Their conscious guilt prevented due cir-
cumspection. They did not see the bearing of its publication.
They advised their father to carry it to the Committee of Vigi-
lance, and it was so carried. On the Sunday following, Joseph
began to think there might be something in it. Perhaps, in the
mean time, he had seen one of the Crowninshields. He was
apprehensive that they might be suspected ; he was anxious to
turn attention from their family. What course did he adopt to
effect this ? He addressed one letter, with a false name, to Mr.
White, and another to the committee ; and to complete the
climax of his folly, he signed the letter addressed to the com-
mittee, " Grant," the same name as that which was signed to
the letter received from Belfast. It was in the knowledge of
the committee, that no person but the Knapps had seen this
letter from Belfast ; and that no other person knew its signa-
ture. It therefore must have been irresistibly plain to them
that one of the Knapps was the writer of the letter received
by the committee, charging the murder on Mr. White. Add
to this the fact of its having been dated at Lynn, and mailed
at Salem four days after it was dated, and who could doubt
respecting it ? Have you ever read or known of folly equal
to this ? Can you conceive of crime more odious and abomi-
nable? Merely to explain the apparent mysteries of the letter
from Palmer, they excite the basest suspicions against a man,
whom, if they were innocent, they had no reason to believe
guilty ; and whom, if they were guilty, they most certainly knew
to be innocent. Could they have adopted a more direct method
of exposing their own infamy ? The letter to the committee
70 THE MURDER OF CAPTAIN JOSEPH Willi E.
has intrinsic marks of a knowledge of this transaction. It tells
the time and the manner in which the murder was committed.
Every line speaks the writer's condemnation. In attempting
to divert attention from his family, and to charge the guilt upon
another, he indelibly fixes it upon himself.
Joseph Knapp requested Allen to put these letters into the
post-office, because, said he, " I wish to nip this silly affair in the
bud." If this were not the order of an overruling Providence,
I should say that it was the silliest piece of folly that was ever
practised. Mark the destiny of crime. It is ever obliged to
resort to such subterfuges ; it trembles in the broad light ; it
betrays itself in seeking concealment. He alone walks safely
who walks uprightly. Who for a moment can read these let-
ters and doubt of Joseph Knapp's guilt? The constitution of
nature is made to inform against him. There is no corner dark
enough to conceal him. There is no turnpike-road broad enough
or smooth enough for a man so guilty to walk in without stum-
bling. Every step proclaims his secret to every passenger. His
own acts come out to fix his guilt. In attempting to charge
another with his own crime, he writes his own confession. To
do away the effect of Palmer's letter, signed Grant, he writes a
letter himself and affixes to it the name of Grant. He writes
in a disguised hand; but how could it happen that the same
Grant should be in Salem that was at Belfast? This has
brought the whole thing out. Evidently he did it, because he
has adopted the same style. Evidently he did it, because he
speaks of the price of blood, and of other circumstances con-
nected with the murder, that no one but a conspirator could
have known.
Palmer says he made a visit to the Crowninshields, on the
9th of April. George then asked him whether he had heard of
the murder. Richard inquired whether he had heard the music
at Salem. They said that they were suspected, that a committee
had been appointed to search houses ; and that they had melted
up the dagger, the day after the murder, because it would be a
suspicious circumstance to have it found in their possession.
Now this committee was not appointed, in fact, until Friday
evening. But this proves nothing against Palmer ; it does not
prove that George did not tell him so ; it only proves that he
gave a false reason for a fact. They had heard that they were
1HE MURDER OF CAPTAIN JOSEPH WHITE. 71
suspected ; how could they have heard this, unless it were from
the whisperings of their own consciences? Surely this rumor
was not then public.
About the 27th of April, another attempt was made by the
Knapps to give a direction to public suspicion. They reported
themselves to have been robbed, in passing from Salem to Wen-
ham, near Wenham Pond. They came to Salem and stated
the particulars of the adventure. They described persons, their
dress, size, and appearance, who had been suspected of the
murder. They would have it understood that the community
was infested by a band of ruffians, and that they themselves
were the particular objects of their vengeance. Now this turns
out to be all fictitious, all false. Can you conceive of any thing
more enormous, any wickedness greater, than the circulation of
such reports? than the allegation of crimes, if committed, cap-
ital ? If no such crime had been committed, then it reacts with
double force upon themselves, and goes very far to show their
guilt. How did they conduct themselves on this occasion ? Did
they make hue and cry? Did they give information that they
had been assaulted that night at Wenham ? No such thing.
They rested quietly that night; they waited to be called on for
the particulars of their adventure; they made no attempt to
arrest the offenders; this was not their object. They were con-
tent to fill the thousand mouths of rumor, to spread abroad
false reports, to divert the attention of the public from them-
selves ; for they thought every man suspected them, because
they knew they ought to be suspected.
The manner in which the compensation for this murder was
paid is a circumstance worthy of consideration. By examining
the facts and dates, it will satisfactorily appear that Joseph
Knapp paid a sum of money to Richard Crowninshield, in five-
franc pieces, on the 24th of April. On the 21st of April, Joseph
Knapp received five hundred five-franc pieces, as the proceeds
of an adventure at sea. The remainder of this species of cur-
rency that came home in the vessel was deposited in a bank at
Salem. On Saturday, the 24th af April, Frank and Richard rode
to Wenham. They were there with Joseph an hour or more,
and appeared to be negotiating private business. Richard con-
tinued in the chaise ; Joseph came to the chaise and conversed
with him These facts are proved by Hart and Leighton, and
72 THE MURDER OF CAPTAIN JOSEPH WHITE.
by Osborn's books. On Saturday evening, about this time,
Eichard Crowninshield is proved, by Lummus, to have been at
Wenham, with another person whose appearance corresponds
with Frank's. Can any one doubt this being the same evening?
What had Richard Crowninshield to do at Wenham, with
Joseph, unless it were this business ? He was there before the
murder ; he was there after the murder ; he was there clandes-
tinely, unwilling to be. seen. If it were not upon this business,
let it be told what it was for. Joseph Knapp could explain it ;
Frank Knapp might explain it. But they do not explain it;
and the inference is against them.
Immediately after this, Richard passes five-franc pieces ; on
the same evening, one to Lummus, five to Palmer; and near
this time George passes three or four in Salem. Here are nine
of these pieces passed by them in four days ; this is extraor-
dinary. It is an unusual currency ; in ordinary business, few
men would pass nine such pieces in the course of a year. If
they were not received in this way, why not explain how they
came by them ? Money was not so flush in their pockets that
they could not tell whence it came, if it honestly came there.
It is extremely important to them to explain whence this money
came, and they would do it if they could. If, then, the price
of blood was paid at this time, in the presence and with the
knowledge of this defendant, does not this prove him to have
been connected with this conspiracy ?
Observe, also, the effect on the mind of Richard, of Palmer's
being arrested and committed to prison ; the various efforts he
makes to discover the fact ; the lowering, through the crevices
of the rock, the pencil and paper for him to write upon ; the
sending two lines of poetry, with the request that he would re-
turn the corresponding lines; the shrill and peculiar whistle; the
inimitable exclamations of "Palmer! Palmer! Palmer!" All
these things prove how great was his alarm ; they corroborate
Palmer's story, and tend to establish the conspiracy.
Joseph Knapp had a part to act in this matter. He must
have opened the window, and secreted the key ; he had free
access to every part of the house ; he was accustomed to visit
there ; he went in and out at his pleasure ; he could do this
without being suspected. He is proved to have been there the
Saturday preceding.
THE MURDER OF CAPTAIN JOSEPH WHITE. 73
If all these things, taken in connection, do not prove that
Captain White was murdered in pursuance of a conspiracy,
then the case is at an end.
Savary's testimony is wholly unexpected. He was called for
a different purpose. When asked who the person was that he
saw come out of Captain White's yard between three and four
o'clock in the morning, he answered, Frank Knapp. It is not
clear that this is not true. There may be many circumstances
of importance connected with this, though we believe the murder
to have been committed between ten and eleven o'clock. The
letter to Dr. Barstow states it to have been done about eleven
o'clock ; it states it to have been done with a blow on the head,
from a weapon loaded with lead. Here is too great a corre-
spondence with the reality not to have some meaning in it.
Dr. Peirson was always of the opinion, that the two classes
of wounds were made with different instruments, and by dif-
ferent hands. It is possible that one class was inflicted at one
time, and the other at another. It is possible that on the last
visit the pulse might not have entirely ceased to beat; and then
the finishing stroke was given. It is said, that, when the body-
was discovered, some of the wounds wept, while the others did
not. They may have been inflicted from mere wantonness.
It was known that Captain White was accustomed to keep
specie by him in his chamber ; this perhaps may explain the
last visit. It is proved, that this defendant was in the habit
of retiring to bed, and leaving it afterwards, without the knowl-
edge of his family ; perhaps he did so on this occasion. We
see no reason to doubt the fact ; and it does not shake our be-
lief that the murder was committed early in the night.
What are the probabilities as to the time of the murder?
Mr. White was an aged man; he usually retired to bed at
about half past nine. He slept soundest in the early part of the
night; usually awoke in the middle and latter part; and his
habits were perfectly well known. When would persons, with
a knowledge of these facts, be most likely to approach him ?
Most certainly, in the first hour of his sleep. This would be
the safest time. If seen then going to or from the house, the
appearance would be least suspicious. The earlier hour would
then have been most probably selected.
Gentlemen, I shall dwell no longer on the evidence which
VOL. vi. 7
74 THE MURDER OF CAPTAIN JOSEPH WHITE.
tends to prove that there was a conspiracy, and that the prison-
er was a conspirator. All the circumstances concur to make
out this point. Not only Palmer swears to it, in effect, and
Leighton, but Allen mainly supports Palmer, and Osborn's
books lend confirmation, so far as possible, from such a source-
Palmer is contradicted in nothing, either by any other witness,
or any proved circumstance or occurrence. Whatever could be
expected to support him does support him. All the evidence
clearly manifests, I think, that there was a conspiracy ; that
it originated with Joseph Knapp ; that defendant became a
party to it, and was one of its conductors, from first to last.
One of the most powerful circumstances is Palmers letter
from Belfast. The amount of this is a direct charge on the
Knapps of the authorship of this murder. How did they treat
this charge ; like honest men, or like guilty men ? We have
seen how it was treated. Joseph Knapp fabricated letters, charg-
ing another person, and caused them to be put into the post-
office.
I shall now proceed on the supposition, that it is proved that
there was a conspiracy to murder Mr. White, and that the pris-
oner was party to it.
The second and the material inquiry is, Was the prisoner
present at the murder, aiding and abetting therein ?
This leads to the legal question in the case. What does the
law mean, when it says, that, in order to charge him as a prin-
cipal, " he must be present aiding and abetting in the murder " ?
In the language of the late Chief Justice, " It is not required
that the abettor shall be actually upon the spot when the mur-
der is committed, or even in sight of the more immediate per-
petrator of the victim, to make him a principal. If he be at a
distance, cooperating in the act, by watching to prevent relief,
or to give an alarm, or to assist his confederate in escape, hav-
ing knowledge of the purpose and object of the assassin, this
in the eye of the law is being present, aiding and abetting, so
as to make him a principal in the murder."
" If he be at a distance cooperating." This is not a distance
to be measured by feet or rods ; if the intent to lend aid combine
with a knowledge that the murder is to be committed, and the
person so intending be so situate that he can by any possibility
end this aid in any manner, then he is present in legal contem-
THE MURDER OF CAPTAIN JOSEPH WHITE. 75
plation. He need not lend any actual aid ; to be ready tc assist
is assisting.
There are two sorts of murder; the distinction between them
it is of essential importance to bear in mind : 1. Murder in an
affray, or upon sudden and unexpected provocation. 2. Murder
secretly, with a deliberate, predetermined intention to commit
the crime. Under the first class, the question usually is, whether
the offence be murder or manslaughter, in the person who com-
mits the deed. Under the second class, it is often a question
whether others than he who actually did the deed were present,
aiding and assisting therein. Offences of this kind ordinarily
happen when there is nobody present except those who go on
the same design. If a riot should happen in the court-house,
and one should kill another, this may be murder, or it may not,
according to the intention with which it was done ; which is
always matter of fact, to be collected from the circumstances at
the time. But in secret murders, prem ^ditated and determined
on, there can be no doubt of the murderous intention ; there
can be no doubt if a person be present, knowing a murder is to
be done, of his concurring in the act. His being there is a
proof of his intent to aid and abet; else, why is he there?
It has been contended, that proof must be given that the per-
son accused did actually afford aid, did lend a hand in the mur-
der itself; and without this proof, although he may be near by,
he may be presumed to be there for an innocent purpose ; he
may have crept silently there to hear the news, or from mere
curiosity to see what was going on. Preposterous, absurd !
Such an idea shocks all common sense. A man is found to be
a conspirator to commit a murder; he has planned it; he has as-
sisted in arranging the time, the place, and the means ; and he is
found in the place, and at the time, and yet it is suggested that
he might have been there, not for cooperation and concurrence,
but from curiosity ! Such an argument deserves no answer.
It would be difficult to give it one, in decorous terms. Is it not
to be taken for granted, that a man seeks to accomplish his own
purposes ? When he has planned a murder, and is present at
ils execution, is he there to forward or to thwart his own de-
sign ? is he there to assist, or there to prevent ? But " Curi-
osity " ! He may be there from mere " curiosity " ! Curiosity
to witness the success of the execution of his own plan of mur«
76 THE MURDER OF CAPTAIN JOSEPH WHITE.
der ! The very walls of a court-house ought not to stand, the
ploughshare should run through the ground it stands on, where
such an argument could find toleration.
It is not necessary that the abettor should actually lend a
hand, that he should take a part in the act itself; if he be pres-
ent ready to assist, that is assisting. Some of the doctrines
advanced would acquit the defendant, though he had gone to
the bedchamber of the deceased, though he had been standing
by when the assassin gave the blow. This is the argument we
have heard to-day.
The court here said, they did not so understand the argument of the
counsel for defendant. Mr. Dexter said, " The intent and power alone
must cooperate."
No doubt the law is, that being ready to assist is assisting,
if the party has the power to assist, in case of need. It is so
stated by Foster, who is a high authority. " If A happeneth
to be present at a murder, for instance, and taketh no part in it,
nor endeavoreth to prevent it, nor apprehendeth the murderer,
nor levyeth hue and cry after him, this strange behavior of his,
though highly criminal, will not of itself render him either
principal or accessory." " But if a fact amounting to murder
should be committed in prosecution of some unlawful purpose,
though it were but a bare trespass, to whicji A in the case last
stated had consented, and he had gone in order to give assist-
ance, if need were, for carrying it into execution, this would
have amounted to murder in him, and in every person present
and joining with him." " If the fact was committed in prose-
cution of the original purpose which was unlawful, the whole
party will be involved in the guilt of him who gave the blow.
For in combinations of this kind, the mortal stroke, though
given by one of the party, is considered in the eye of the law,
and of sound reason too, as given by every individual present and
abetting. The person actually giving the stroke is no more than
the hand or instrument by which the others strike." The author,
in speaking of being present, means actual presence ; not actual
in opposition to constructive, for the law knows no such distinc-
tion. There is but one presence, and this is the situation from
which aid, or supposed aid, may be rendered. The law docs not
say where the person is to go, or how near he is to go, but that
he must be where he may give assistance, or where the perpe-
THE MURDER OF CAPTAIN JOSEPH WHITE. 77
trator may believe that he may be assisted by him. Suppose
that he is acquainted with the design of the murderer, and has a
knowledge of the time when it is to be carried into effect, and
goes out with a view to render assistance, if need be ; why,
then, even though the murderer does not know of this, the per-
son so going out will be an abettor in the murder.
It is contended that the prisoner at the bar could not be a
principal, he being in Brown Street, because he could not there
render assistance; and you are called upon to determine this
case, according as you may be of opinion whether Brown Street
was, or was not, a suitable, convenient, well-chosen place to aid
in this murder. This is not the true question. The inquiry
is not whether you would have selected this place in preference
to all others, or whether you would have selected it at all. If
the parties chose it, why should we doubt about it ? How do
we know the use they intended to make of it, or the kind of aid
that he was to afford by being there ? The question for you to
consider is, Did the defendant go into Brown Street in aid of this
murder ? Did he go there by agreement, by appointment with
the perpetrator? If so, every thing else follows. The main thing,
indeed the only thing, is to inquire whether he was in Brown
Street by appointment with Richard Crowninshield. It might
be to keep general watch ; to observe the lights, and advise as to
time of access ; to meet the murderer on his return, to advise him
as to his escape ; to examine his clothes, to see if any marks of
blood were upon them ; to furnish exchange of clothes, or new
disguise, if necessary; to tell him through what streets he could
safely retreat, or whether he could deposit the club in the place
designed; or it might be without any distinct object, but merely
to afford that encouragement which would proceed from Rich-
ard Crowninshield's consciousness that he was near. It is of
no consequence whether, in your opinion, the place was well
chosen or not, to afford aid ; if it was so chosen, if it was by ap-
pointment that he was there, it is enough. Suppose Richard
Crowninshield, when applied to to commit the murder, had
said, " I won't do it unless there can be some one near by to
favor my escape ; I won't go unless you will stay in Brown
Street." Upon the gentleman's argument, he would not be an
aider and abettor in the murder, because the place was not well
chosen ; though it is apparent that the being in the place chosen
78 THE MURDER OF CAPTAIN JOSEPH WHITE.
was a condition, without which the murder would never have
happened.
You are to consider the defendant as one in the league, in
the combination to commit the murder. If he was there by ap-
pointment with the perpetrator, he is an abettor. The concur-
rence of the perpetrator in his being there is proved by the pre-
vious evidence of the conspiracy. If Richard Crowninshield, for
any purpose whatsoever, made it a condition of the agreement,
that Frank Knapp should stand as backer, then Frank Knapp
was an aider and abettor ; no matter what the aid was, or what
sort it was, or degree, be it ever so little ; even if it were to
judge of the hour when it was best to go, or to see when the
lights were extinguished, or to give an alarm if any one ap-
proached. "Who better calculated to judge of these things than
the murderer himself? and if he so determined them, that is
sufficient.
Now as to the facts. Frank Knapp knew that the murder was
that night to be committed ; he was one of the conspirators, he
knew the object, he knew the time. He had that day been to
Wenham to see Joseph, and probably to Danvers to see Rich-
ard Crowninshield, for he kept his motions secret. He had that
day hired a horse and chaise of Osborn, and attempted to con-
ceal the purpose for which it was used ; he had intentionally
left the place and the price blank on Osborn's books. He went
to Wenham by the way of Danvers; he had been told the week
before to hasten Dick ; he had seen the Crowninshields several
times within a few days ; he had a saddle-horse the Saturday
night before ; he had seen Mrs. Beckford at Wenham, and knew
she would not return that night. She had not been away be-
fore for six weeks, and probably would not soon be again. He
had just come from Wenham. Every day, for the week previous,
he had visited one or another of these conspirators, save Sunday,
and then probably he saw them in town. When he saw Joseph
on the 6th, Joseph had prepared the house, and would naturally
teL him of it; there were constant communications between
them ; daily and nightly visitation ; too much knowledge of
these parties and this transaction, to leave a particle of doubt on
the mind of any one, that Frank Knapp knew the murder was
to be committed this night. The hour was come, and he knew
it; if so, and he was in Brown Street, without explaining why
THE MURDER OF CAPTAIN JOSEPH WHITE. 79
he was there, can the jury for a moment doubt whether he was
there to countenance, aid, or support; or for curiosity alone ; or
to learn how the wages of sin and death were earned by the
perpetrator ?
Here Mr. Webster read the law from Hawkins. 1 Hawk. 204, Lib.
1, ch. 32, sec. 7.
The perpetrator would derive courage, and strength, and con-
fidence from the knowledge that one of his associates was near
by. If he was in Brown Street, he could have been there for
no other purpose. If there for this purpose, then he was, in
the language of the law, present, aiding and abetting in the
murder.
His interest lay in being somewhere else. If he had nothing
to do with the murder, no part to act, why not stay at home ?
Why should he jeopard his own life, if it was not agreed that
he should be there? He would not voluntarily go where the
very place would cause him to swing if detected. He would
not voluntarily assume the place of danger. His taking this
place proves that he went to give aid. His staying away would
have made an alibi. If he had nothing to do with the murder,
he would be at home, where he could prove his alibi. He knew
he was in danger, because he was guilty of the conspiracy, and,
if he had nothing to do, would not expose himself to suspicion
or detection.
Did the prisoner at the bar countenance this murder? Did
he concur, or did he non-concur, in what the perpetrator was
about to do ? Would he have tried to shield him ? Would he
have furnished his cloak for protection ? Would he have point-
ed out a safe way of retreat ? As you would answer these ques-
tions, so you should answer the general question, whether he
was there consenting to the murder, or whether he was there as
a spectator only.
One word more on this presence, called constructive presence.
What aid is to be rendered? Where is the line to be drawn,
between acting, and omitting to act ? Suppose he had been in
the house, suppose he had followed the perpetrator to the cham-
ber, wThat could he have done ? This was to be a murder by
stealth ; it was to be a secret assassination. It was not their
purpose to have an open combat ; they were to approach their
80 THE MURDER OF CAPTAIN JOSEPH WHITE.
victim unawares, and silently give the fatal blow. But if he
had been in the chamber, no one can doubt that he would have
been an abettor; because of his presence, and ability to render
services, if needed. What service could he have rendered, if
there ? Could he have helped him to fly ? Could he have aid-
ed the silence of his movements ? Could he have facilitated his
retreat, on the first alarm ? Surely, this was a case where there
was more of safety in going alone than with another ; where
company would only embarrass. Richard Crowninshield would
prefer to go alone. He knew his errand too well. His nerves
needed no collateral support. He was not the man to take with
him a trembling companion. He would prefer to have his aid
at a distance. He would not wish to be encumbered by his
presence. He would prefer to have him out of the house. He
would prefer that he should be in Brown Street. But whether
in the chamber, in the house, in the garden, or in the street,
whatsoever is aiding in actual presence is aiding in constructive
presence ; any thing that is aid in one case is aid in the other.*
If, then, the aid be anywhere, so as to embolden the perpetra-
tor, to afford him hope or confidence in his enterprise, it is the
same as though the person stood at his elbow with his sword
drawn. His being there ready to act, with the power to act,
is what makes him an abettor.
Here Mr. Webster referred to the cases of Kelly, of Hyde, and
others, cited by counsel for the deiendant, and showed that they did not
militate with the doctrine for which he contended. The difference is,
in those cases there was open violence ; this was a case of secret assas-
sination. The aid must meet the occasion. Here no acting was ne-
cessary, but watching, concealment of escape, management.
What are the facts in relation to this presence ? Frank
Knapp is proved to have been a conspirator, proved to have
known that the deed was now to be done. Is it not probable
that he was in Brown Street to concur in the murder ? There
were lour conspirators. It was natural that some one of them
should go with the perpetrator. Richard Crowninshield was to
be the perpetrator ; he was to give the blow. There is no evi-
dence of any casting of the parts for the others. The defend-
ant would probably be the man to take the second part. He
* 4 Hawk. 201, Lib. 4, ch. 29, sec. 8.
THE MURDER OF CAPTAIN JOSEPH WHITE. 81
was fond of exploits, he was accustomed to the use of s\v jrd*
canes and dirks. If any aid was required, he was the man to
give it. At least, there is no evidence to the contrary of this.
Aid could not have been received from Joseph Knapp, or
from George Crowninshield. Joseph Knapp was at Wenham,
and took good care to prove that he was there. George
Crowninshield has proved satisfactorily where he was ; that he
was in other company, such as it was, until eleven o'clock.
This narrows the inquiry. This demands of the prisoner to
show, if he was not in this place, where he was. It calls on
him loudly to show this, and to show it truly. If he could
show it, he would do it. If he does not tell, and that truly, it is
against him. The defence of an alibi is a double-edged sword.
He knew that he was in a situation where he might be called
upon to account for himself. If he had had no particular ap-
pointment or business to attend to, he would have taken care
to be able so to account. He would have been out of town,
or in some good company. Has he accounted for himself on
that night to your satisfaction ?
The prisoner has attempted to prove an alibi, in two ways.
In the first place, by four young men with whom he says he
was in company, on the evening of the murder, from seven
o'clock till near ten o'clock. This depends upon the certainty
of the night. In the second place, by his family, from ten
o'clock afterwards. This depends upon the certainty of the
time of the night. These two classes of proof have no connec-
tion with each other. One may be true, and the other false ;
or they may both be true, or both be false. I shall examine
this testimony with some attention, because, on a former trial,
it made more impression on the minds of the court than on my
own mind. I think, when carefully sifted and compared, it will
be found to have in it more of plausibility than reality.
Mr. Page testifies, that on the evening of the 6th of April he
was in company with Burchmore, Balch, and Forrester, and
that he met the defendant about seven o'clock, near the Salem
Hotel ; that he afterwards met him at Remond's, about nine
o clock, and that he was in company with him a considerable
part of the evening. This young gentleman is a member of
college, and says that he came to town the Saturday evening
previous ; that he is now able to say that it was the night of
82 THE MURDER OF CAPTAIN JOSEPH WHITE.
the murder when he walked with Frank Knapp, from the recol-
lection of the fact, that he called himself to an account, on the
morning after the murder, as it is natural for men to do when
an extraordinary occurrence happens. Gentlemen, this kind of
evidence is not satisfactory ; general impressions as to time are
not to be relied on. If I were called on to state the particular
day on which any witness testified in this cause, I could not do
it. Every man will notice the same thing in his own mind.
There is no one of these young men that could give an ac-
count of himself for any other day in the month of April. They
are made to remember the fact, and then they think they re-
member the time. The witness has no means of knowing it
was Tuesday rather than any other time. He did not know it
at first ; he could not know it afterwards. He says he called
himself to an account. This has no more to do with the mur-
der than with the man in the moon. Such testimony is not
worthy to be relied on in any forty-shilling cause. What occa-
sion had he to call himself to an account? Did he suppose
that he should be suspected ? Had he any intimation of this
conspiracy ?
Suppose, Gentlemen, you were either of you asked where
you were, or what you were doing, on the fifteenth day of June ;
you could not answer this question without calling to mind
some events to make it certain. Just as well may you remem-
ber on what you dined each day of the year past. Time is
identical. Its subdivisions are all alike. No man knows one
day from another, or one hour from another, but by some fact
connected with it. Days and hours are not visible to the
senses, nor to be apprehended and distinguished by the un-
derstanding. The flow of time is known only by something
which marks it ; and he who speaks of the date of occurrences
with nothing to guide his recollection speaks at random, and
is not to be relied on. This young gentleman remembers the
facts and occurrences ; he knows nothing why they should not
have happened on the evening of the 6th ; but he knows no
m )re. All the rest is evidently conjecture or impression.
Mr. White informs you, that he told him he could not tell
what night it was. The first thoughts are all that are valuable
in such case. They miss the mark by taking second aim.
Mr. Balch believes, but is not sure, that he was with Frank
THE MURDER OF CAPTAIN JOSEPH WHITE. 83
Knapp on the evening of the murder. He has given different
accounts of the time. He has no means of making it certain.
All he knows is, that it was some evening before Fast-day
But whether Monday, Tuesday, or Saturday, he cannot tell.
Mr. Burchrnore says, to the best of his belief, it was the even-
ing of the murder. Afterwarls he attempts to speak positively,
from recollecting that he mentioned the circumstance to Wil-
liam Peirce, as he went to the Mineral Spring on Fast-day.
Last Monday morning he told Colonel Putnam he could not
fix the time. This witness stands in a much worse plight than
either of the others. It is difficult to reconcile all he has said
with any belief in the accuracy of his recollections.
Mr. Forrester does not speak with any certainty as to the
night ; and it is very certain that he told Mr. Loring and others,
that he did not know what night it was.
Now, what does the testimony of these four young men
amount to ? The only circumstance by which they approximate
to an identifying of the night is, that three of them say it was
cloudy ; they think their walk was either on Monday or Tues-
day evening, and it is admitted that Monday evening was clear,
whence they draw the inference that it must have been Tues-
day.
But, fortunately, there is one fact disclosed in their testimony
that settles the question. Balch says, that on the evening,
whenever it was, he saw the prisoner ; the prisoner told him he
was going out of town on horseback, for a distance of about
twenty minutes' drive, and that he was going to get a horse at
Osborn's. This was about seven o'clock. At about nine, Balch
says he saw the prisoner again, and was then told by him that
he had had his ride, and had. returned. Now it appears by
Osborn's books, that the prisoner had a saddle-horse from his
stable, not on Tuesday evening, the night of the murder, but
on the Saturday evening previous. This fixes the time about
which these young men testify, and is a complete answer and
refutation of the attempted alibi on Tuesday evening.
I come now to speak of the testimony adduced by the de-
fendant to explain where he was after ten o'clock on the night
of the murder. This comes chiefly from members of the fam
ily ; from his father and brothers.
£4 THE MURDER OF CAPTAIN JOSEPH WHITE.
It is agreed that the affidavit of the prisoner should be re-
ceived as evidence of what his brother, Samuel H. Knapp,
would testify if present. Samuel H. Knapp says, that, about
ten minutes past ten o'clock, his brother, Frank Knapp, on his
way to bed, opened his chamber door, made some remarks,
closed the door, and went to his chamber; and that he did not
hear him leave it afterwards. How is this witness able to fix
the time at ten minutes past ten? There is no circumstance
mentioned by which he fixes it. He had been in bed, probably
asleep, and was aroused from his sleep by the opening of the
door. Was he in a situation to speak of time with precision ?
Could he know, under such circumstances, whether it was ten
minutes past ten, or ten minutes before eleven, when his brother
spoke to him ? What would be the natural result in such a
case ? But we are not left to conjecture this result. We have
positive testimony on this point. Mr. Webb tells you that
Samuel told him, on the 8th of June, " that he did not know
what time his brother Frank came home, and that he was not
at home when he went to bed." You will consider this testi-
mony of Mr. Webb as indorsed upon this affidavit; and with
this indorsement upon it, you will give it its due weight. This
statement was made to him after Frank was arrested.
I come to the testimony of the father. I find myself incapa-
ble of speaking of him or his testimony with severity. Unfor-
tunate old man ! Another Lear, in the conduct of his children ;
another Lear, I apprehend, in the effect of his distress upon his
mind and understanding. He is brought here to testify, under
circumstances that disarm severity, and call loudly for sympathy.
Though it is impossible not to see that his story cannot be
credited, yet I am unable to speak of him otherwise than in
sorrow and grief. Unhappy father! he strives to remember,
perhaps persuades himself that he does remember, that on the
evening of the murder he was himself at home at ten o'clock.
He thinks, or seems to think, that his son came in at about five
minutes past ten. He fancies that he remembers his conversa-
tion; he thinks he spoke of bolting the door; he thinks he asked
the time of night; he seems to remember his then going to his
bed. Alas! these are but the swimming fancies of an agitated
and distressed mind. Alas ! they are but the dreams of hope,
its uncertain lights, flickering on the thick darkness of parental
THE MURDER OF CAPTAIN JOSEPH WHITE. 85
distress. Alas ! the miserable father knows nothing, in reality,
of all these things.
Mr. Shepard says that the first conversation he had with Mr.
Knapp was soon after the murder, and before the arrest of his
sons. Mr. Knapp says it was after the arrest of his sons. His
own fears led him to say to Mr. Shepard, that his "son Frank
was at home that night; and so Phippen told him," or " as Phip-
pen told him." Mr. Shepard says that he was struck with the
remark at the time; that it made an unfavorable impression on
his mind ; he does not tell you what that impression was, but
when you connect it with the previous inquiry he had made,
whether Frank had continued to associate with the Crownin-
shields, and recollect that the Crowninshields were then known
to be suspected of this crime, can you doubt what this impres-
sion was ? can you doubt as to the fears he then had ?
This poor old man tells you, that he was greatly perplexed at
the time; that he found himself in embarrassed circumstances;
that on this very night he was engaged in making an assign-
ment of his property to his friend, Mr. Shepard. If ever charity
should furnish a mantle for error, it should be here. Imagina-
tion cannot picture a more deplorable, distressed condition.
The same general remarks may be applied to his conversa-
tion with Mr. Treadwell, as have been made upon that with
Mr. Shepard. He told him, that he believed Frank was at
home about the usual time. In his conversations with either oi
these persons, he did not pretend to know, of his own knowl-
edge, the time that he came home. He now tells you posi-
tively that he recollects the' time, and that he so told Mr. Shep-
ard. He is directly contradicted by both these witnesses, as
respectable men as Salem affords.
This idea of an alibi is of recent origin. Would Samuel
Knapp have gone to sea if it were then thought of? His testi-
mony, if true, was too important to be lost. If there be any
truth in this part of the alibi, it is so near in point of time that
it cannot be relied on. The mere variation of half an hour
would avoid it. The mere variations of different time-pieces
would explain it.
Has the defendant proved where he was on that night ? If
you doubt about it, there is an end of it. The burden is upon
him to satisfy you beyond all reasonable doubt. Osborn's book?
VOL. vi. 8
86 THE MURDER OF CAPTAIN JOSEPH WHITE.
in connection with what the young men state, are conclusive,
I think, on this point. He has not, then, accounted for him-
self; he has attempted it, and has failed. I pray you to re-
member, Gentlemen, that this is a case in which the prisoner
would, more than any other, be rationally able to account for
himself on the night of the murder, if he could do so. He
was in the conspiracy, he knew the murder was then to be
committed, and if he himself was to have no hand in its actual
execution, he would of course, as a matter of safety and pre-
caution, be somewhere else, and be able to prove afterwards
that he had been somewhere else. Having this motive to prove
himself elsewhere, and the power to do it if he were elsewhere,
his failing in such proof must necessarily leave a very strong
inference against him.
But, Gentlemen, let us now consider what is the evidence
produced on the part of the government to prove that John
Francis Knapp, the prisoner at the bar, was in Brown Street
on the night of the murder. This is a point of vital importance
in this cause. Unless this be made out, beyond reasonable
doubt, the law of presence does not apply to the case. The
government undertake to prove that he was present aiding in
the murder, by proving that he was in Brown Street for this
purpose. Now, what are the undoubted facts ? They are,
that two persons were seen in that street, several times dur-
ing that evening, under suspicious circumstances ; under such
circumstances as induced those who saw them to watch their
movements. Of this there can be no doubt. Mirick saw a
man standing at the post opposite his store from fifteen min-
utes before nine until twenty minutes after, dressed in a ful]
frock-coat, glazed cap, and so forth, in size and general appear-
ance answering to the prisoner at the bar. This person was
waiting there ; and whenever any one approached him, he
moved to and from the corner, as though he would avoid being
suspected or recognized. Afterwards, two persons were seen
by Webster walking in Howard Street, with a slow, deliberate
movement that attracted his attention. This was about half
past nine. One of these he took to be the prisoner at the bar,
the other he did not know.
About half past ten a person is seen sitting on the ropewalk
steps, wrapped in a cloak. He drops his head when passed, to
THE MURDER OF CAPTAIN JOSEPH WHITE. 87
avoid being known. Shortly after, two persons are seen to
meet in this street, without ceremony or salutation, and in a
hurried manner to converse for a short time; then to separate,
and run off with great speed. Now, on this same night a gen-
tleman is slain, murdered in his bed, his house being entered
by stealth from without ; and his house situated within three
hundred feet of this street. The windows of his chamber were
in plain sight from this street ; a weapon of death is afterwards
found in a place where these persons were seen to pass, in a re-
tired place, around which they had been seen lingering. It is
now known that this murder was committed by four persons,
conspiring together for this purpose. No account is given who
these suspected persons thus seen in Brown Street and its
neighborhood were. Now, I ask, Gentlemen, whether you or
any man can doubt that this murder was committed by the
persons who were thus in and about Brown Street. Can any
person doubt that they were there for purposes connected with
this murder? If not for this purpose, what were they there
for ? When there is a cause so near at hand, why wander into
conjecture for an explanation ? Common sense requires you
to take the nearest adequate cause for a known effect. Who
were these suspicious persons in Brown Street? There was
something extraordinary about them ; something noticeable, and
noticed at the time ; something in their appearance that aroused
suspicion. And a man is found the next morning murdered in
the near vicinity.
Now, so long as no other account shall be given of those sus-
picious persons, so long the inference must remain irresistible
that they were the murderers. Let it be remembered, that it is
already shown that this murder was the result of conspiracy
and of concert; let it be remembered, that the house, having
been opened from within, was entered by stealth from without.
Let it be remembered that Brown Street, where these persons
were repeatedly seen under such suspicious circumstances, was
a place from which every occupied room in Mr. White's house
is clearly seen ; let it be remembered, that the place, though
thus very near to Mr. White's house, is a retired and lonely
place ; and let it be remembered that the instrument of death
was afterwards found concealed very near the same spot.
Must not every man come to the conclusion, that these per-
88 THE MURDER OF CAPTAIN JOSEPH WHITE.
sons thus seen in Brown Street were the murderers? Every
man's own judgment, I think, must satisfy him that this must
be so. It is a plain deduction of common sense. It is a point
on which each one of you may reason like a Hale or a Mans-
field. The two occurrences explain each other. The murder
shows why these persons were thus lurking, at that hour, in
Brown Street; and their lurking in Brown Street shows who
committed the murder.
If, then, the persons in and about Brown Street were the
plotters and executers of the murder of Captain White, we
know who they were, and you know that there is one of them.
This fearful concatenation of circumstances puts him to an
account. He was a conspirator. He had entered into this
plan of murder. The murder is committed, and he is known
to have been within three minutes' walk of the place. He
must account for himself. He has attempted this, and failed.
Then, with all these general reasons to show he was actually
in Brown Street, and his failures in his alibi, let us see what is
the direct proof of his being there. But first, let me ask, is it
not very remarkable that there is no attempt to show where
Richard Crowninshield, Jr. was on that night? We hear
nothing of him. He was seen in none of his usual haunts
about the town. Yet, if he was the actual perpetrator of the
murder, which nobody doubts, he was in the town somewhere.
Can you, therefore, entertain a doubt that he was one of the
persons seen in Brown Street? And as to the prisoner, you will
recollect, that, since the testimony of the young men has failed
to show where he was on that evening, the last we hear or know
of him, on the day preceding the murder, is, that at four o'clock,
P. M., he was at his brother's in Wenham. He had left home,
after dinner, in a manner doubtless designed to avoid observa-
tion, and had gone to Wenham, probably by way of Danvers.
As we hear nothing of him after four o'clock, P. M., for the re-
mainder of the day and evening; as he was one of the conspir-
ators ; as Richard Crowninshield, Jr. was another ; as Richard
Crowninshield, Jr. was in town in the evening, and yet seen in
no usual place of resort ; the inference is very fair, that Richard
Crowninshield, Jr. and the prisoner were together, acting in ex-
ecution of their conspiracy. Of the four conspirators, J. J.
Knapp, Jr. was at Wenham, and George Crowninshield has
THE MURDER OF CAPTAIN JOSEPH WHITE. 89
been accounted for; so that if the persons seen in Brown Street
were the murderers, one of them must have been Richard
Crowninshield, Jr., and the other must have been the prisoner
at the bar.
Now, as to the proof of his identity with one of the persons
seen in Brown Street. Mr. Mirick, a cautious witness, examined
the person he saw, closely, in a light night, and says that he
thinks the prisoner at the bar is the person ; and that he should not
hesitate at all, if he were seen in the same dress. His opinion is
formed partly from his own observation, and partly from the de-
scription of others. But this description turns out to be only in re-
gard to the dress. It is said, that he is now more confident than
on the former trial. If he has varied in his testimony, make such
allowance as you may think proper. I do not perceive any ma-
terial variance. He thought him the same person, when he was
first brought to court, and as he saw him get out of the chaise.
This is one of the cases in which a witness is permitted to give an
opinion. This witness is as honest as yourselves, neither willing
nor swift; but he says, he believes it was the man. His words
are, " This is my opinion " ; and this opinion it is proper for him
to give. If partly founded on what he has heard, then this
opinion is not to be taken ; but if on what he saw, then you
can have no better evidence. I lay no stress on similarity of
dress. No man will ever lose his life by my voice on such evi-
dence. But then it is proper to notice, that no inferences drawn
from any dissimilarity of dress can be given in the prisoner's
favor ; because, in fact, the person seen by Mirick was dressed
like the prisoner.
The description of the person seen by Mirick answers to fhat
of the prisoner at the bar. In regard to the supposed discrep-
ancy of statements, before and now, there would be no end to
such minute inquiries. It would not be strange if witnesses
should vary. I do not think much of slight shades of variation.
If I believe the witness is honest, that is enough. If he has
expressed himself more strongly now than then, this does not
prove him false.
Peter E. Webster saw the prisoner at the bar, as he then
thought, and still thinks, walking in Howard Street at half past
nine o'clock. He then thought it was Frank Knapp, and has
uot altered his opinion since. He knew him well ; he had long
8* •
90 THE MURDER OF CAPTAIN JOSEPH WHITE.
known him. If he then thought it was he, this goes far to prove
it. He observed him the more, as it was unusual to see gentle-
men walk there at that hour. It was a retired, lonely street.
Now, is there reasonable doubt that Mr. Webster did see him
there that night? How can you have more proof than this?
He judged by his walk, by his general appearance, by his deport-
ment. We all judge in this manner. If you believe he is right,
it goes a great way in this case. But then this person, it is said,
had a cloak on, and that he could not, therefore, be the same
person that Mirick saw. If we were treating of men that had
no occasion to disguise themselves or their conduct, there might
be something in this argument. But as it is, there is little in it.
It may be presumed that they would change their dress. This
would help their disguise. What is easier than to throw off a
cloak, and again put it on? Perhaps he was less fearful of be-
ing known when alone, than when with the perpetrator.
Mr. Southwick swears all that a man can swear. He has the
best means of judging that could be had at the time. He tells
you that he left his father's house at half past ten o'clock, and as
he passed to his own house in Brown Street, he saw a man sit-
ting on the steps of the ropewalk ; that he passed him three
times, and each time he held down his head, so that he did not
see his face. That the man had on a cloak, which was not
wrapped around him, and a glazed cap. That he took the man
to be Frank Knapp at the time ; that, when he went into his
house, he told his wife that he thought it was Frank Knapp ;
that he knew him well, having known him from a boy. And
his wife swears that he did so tell her when he came home.
What could mislead this witness at the time ? He was not then
suspecting Frank Knapp of any thing. He could not then be
influenced by any prejudice. If you believe that the witness
saw Frank Knapp in this position at this time, it proves the
case. Whether you believe it or not depends upon the credit
of the witness. He swears it. If true, it is solid evidence.
Mrs. Southwick supports her husband. Are they true ? Are
they worthy of belief? If he deserves the epithets applied to
him, then he ought not to be believed. In this fact they cannot
be mistaken ; they are right, or they are perjured. As to his not
speaking to Frank Knapp, that depends upon their intimacy.
But a \ery good reason is, Frank chose to disguise himself,
THE MURDER OF CAPTAIN JOSEPH WHITE. 91
This makes nothing against his credit. But it is said that he
should not be believed. And why ? Because, it is said, he him-
self now tells you, that, when he testified before the grand jury at
Ipswich, he did not then say that he thought the person he saw
in Brown Street was Frank Knapp, but that " the person was
about the size of Selman." The means of attacking him, there-
fore, come from himself. If he is a false man, why should he
tell truths against himself? They lely on his veracity to prove
that he is a liar. Before you can come to this conclusion, you
will consider whether all the circumstances are now known,
that should have a bearing on this point. Suppose that, when
he was before the grand jury, he was asked by the attorney this
question, " Was the person you saw in Brown Street about the
size of Selman ? " and he answered, Yes. This was all true.
Suppose, also, that he expected to be inquired of further, and no
further questions were put to him ? Would it not be extremely
hard to impute to him perjury for this? It is not uncommon
for witnesses to think that they have done all their duty, when
♦ they have answered the questions put to them. But suppose
that we admit that he did not then tell all he knew, this does not
affect the fact at all ; because he did tell, at the time, in the hear-
ing of others, that the person he saw was Frank Knapp. There
is not the slightest suggestion against the veracity or accuracy
of Mrs. Southwick. Now she swears positively, that her hus-
band came into the house and told her that he had seei> ti
person on the ropewalk steps, and believed it was Frank
Knapp.
It is said that Mr. Southwick is contradicted, also, by Mr,
Shillaber. I do not so understand Mr. Shillaber's testimony. I
think what they both testify is reconcilable, and consistent. My
learned brother said, on a similar occasion, that there is more
probability, in such cases, that the persons hearing should mis-
understand, than that the person speaking should contradict
himself. I think the same remark applicable here.
You have all witnessed the uncertainty of testimony, when
witnesses are called to testify what other witnesses said. Sev-
eral respectable counsellors have been summoned, on this occa-
sion, to give testimony of that sort. They have, every one of
them, given different versions. They all took minutes at the
time, and without doubt intend to state the truth. But still the?
92 THE MURDER OF CAPTAIN JOSEPH WHITE.
differ. Mr. Shillaber's version is different from every thing that
South wick has stated elsewhere. But little reliance is to be
placed on slight variations in testimony, unless they are mani-
festly intentional. I think that Mr. Shillaber must be satisfied
that he did not rightly understand Mr. Southwick. I confess 1
misunderstood Mr. Shillaber on the former trial, if I now rightly
understand him. I, therefore, did not then recall Mr. Southwick
to the stand. Mr. Southwick, as I read it, understood Mr. Shil-
laber as asking him about a person coming out of Newbury
Street, and whether, for aught he knew, it might not be Richard
Crownin shield, Jr. He answered, that he could not tell. He
did not understand Mr. Shillaber as questioning him as to the
person whom he saw sitting on the steps of the ropewalk.
Southwick, on this trial, having heard Mr. Shillaber, has been
recalled to the stand, and states that Mr. Shillaber entirely mis-
understood him. This is certainly most probable, because the
controlling fact in the case is not controverted ; that is, that
Southwick did tell his wife, at the very moment he entered his
house, that he had seen a person on the ropewalk steps, wnom*
he believed to be Frank Knapp. Nothing can prove with more
certainty than this, that Southwick, at the time, thovght the per-
son whom he thus saw to be the prisoner at the bar.
Mr. Bray is an acknowledged accurate and intelligent witness.
He was highly complimented by my brother on the former
trial, although he now charges him with varying his testimony.
What could be his motive ? You will be slow in imputing to
him any design of this kind. I deny altogether that there is
any contradiction. There may be differences, but not contra-
diction. These arise from the difference in the questions put;
the difference between believing and knowing. On the first
trial, he said he did not know the person, and now says the
same. Then, we did not do all we had a right to do. We did
not ask him who he thought it was. Now, when so asked, he
says he believes it was the prisoner at the bar. If he had then
been asked this question, he would have given the same an-
swer. That he has expressed himself more strongly, I admit;
but he has not contradicted himself. He is more confident now;
and that is all. A man may not assert a thing, and still may
have ro doubt upon it. Cannot every man see this distinc-
tion to be consistent ? I leave him in that attitude ; that only
THE MURDER OF CAPTAIN JOSEPH WHITE. 93
is the difference. On questions of identity, opinion is evidence.
We may ask the witness, either if he knew who the person
seen was, or who he thinks he was. And he may well answer,
as Captain Bray has answered, that he does not know who it
was, but that he thinks it was the prisoner.
We have offered to produce witnesses to prove, that, as soon
as Bray saw the prisoner, he pronounced him the same person.
We are not at liberty to call them to corroborate our own wit-
ness. How, then, could this fact of the prisoner's being in Brown
Street be better proved ? If ten witnesses had testified to it, it
would be no better. Two men, who knew him well, took it to
be Frank Knapp, and one of them so said, when there was noth-
ing to mislead them. Two others, who examined him closely,
now swear to their opinion that he is the man.
Miss Jaqueth saw three persons pass by the ropewalk, sev-
eral evenings before the murder. She saw one of them point-
ing towards Mr. White's house. She noticed that another had
something which appeared to be like an instrument of music;
that he put it behind him and attempted to conceal it. Who
were these persons ? This was but a few steps from the place
where this apparent instrument of music (of music such as Rich-
ard Crowninshield, Jr. spoke of to Palmer) was afterwards
found. These facts prove this a point of rendezvous for these
parties. They show Brown Street to have been the place for
consultation and observation ; and to this purpose it was wel]
suited.
Mr. Burns's testimony is also important. What was the de-
fendant's object in his private conversation with Burns? He
knew that Burns was out that night; that he lived near Brown
Street, and that he had probably seen him ; and he wished him
to say nothing. He said to Burns, " If you saw any of your
friends out that night, say nothing about it; my brother Joe and
I are your friends." This is plain proof that he wished to say
to him, if you saw me in Brown Street that night, say nothing
about it.
But it is said that Burns ought not to be believed, because he
mistook the color of the dagger, and because he has varied in
his description of it. These are slight circumstances, if his gen-
eral character be good. To my mind they are of no importance.
It is for you to make what deduction you may think proper, on
94 THE MURDER OF CAPTAIN JOSEPH WHITE.
this account, from the weight of his evidence. His conversation
with Burns, if Burns is believed, shows two things ; first, that he
desired Burns not to mention it, if he had seen him on the night
of the murder; second, that he wished to fix the charge of mur-
der on Mr. Stephen White. Both of these prove his own guilt.
I think you will be of opinion, that Brown Street was a prob-
able place for the conspirators to assemble, and for an aid to
be stationed. If we knew their whole plan, and if we were
skilled to judge in such a case, then we could perhaps deter-
mine on this point better. But it is a retired place, and still
commands a full view of the house ; a lonely place, but still a
place of observation. Not so lonely that a person would excite
suspicion to be seen walking there in an ordinary manner; not
so public as to be noticed by many. It is near enough to the
scene of action in point of law. It was their point of central-
ity. The club was found near the spot, in a place provided for
it, in a place that had been previously hunted out, in a con-
certed place of concealment. Here was their point of rendezvous.
Here might the lights be seen. Here might an aid be secreted.
Here was he within call. Here might he be aroused by the
sound of the whistle. Here might he carry the weapon. Here
might he receive the murderer after the murder.
Then, Gentlemen, the general question occurs, Is it satisfac-
torily proved, by all these facts and circumstances, that the de-
fendant was in and about Brown Street on the night of the
murder ? Considering that the murder was effected by a conspir-
acy ; considering that he was one of the four conspirators ; con-
sidering that two of the conspirators have accounted for them-
selves on the night of the murder, and were not in Brown
Street ; considering that the prisoner does not account for him-
self, nor show where he was ; considering that Richard Crownin-
shield, the other conspirator and the perpetrator, is not account-
ed for, nor shown to be elsewhere ; considering that it is now
past all doubt that two persons were seen lurking in and about
Brown Street at different times, avoiding observation, and ex-
citing so much suspicion that the neighbors actually watched
them ; considering that, if these persons thus lurking in Brown
Street at that hour were not the murderers, it remains to this
day wholly unknown who they were or what their business was ;
considering the testimony of Miss Jaqueth, and that the club
THE MURDER OF CAPTAIN JOSEPH WHITE. 95
Was afterwards found near this place ; considering, finally, that
Webster and Southwick saw these persons, and then took one
of them for the defendant, and thai Southwick then told his
wife so, and that Bray and Mirick examined them closely, and
now swear to their belief that the prisoner was one of them ; it
is for you to say, putting these considerations together, whether
you believe the prisoner was actually in Brown Street at the
lime of the murder.
By the counsel for the prisoner, much stress has been laid
upon the question, whether Brown Street was a place in which
aid could be given, a place in which actual assistance could be
rendered in this transaction. This must be< mainly decided
by their own opinion who selected the place ; by what they
thought at the time, according to their plan of operation.
If it was agreed that the prisoner should be there to assist, it
is enough. If they thought the place proper for their purpose/
according to their plan, it is sufficient. Suppose we could
prove expressly that they agreed that Frank should be there,
and he was there, and you should think it not a well-chosen
place for aiding and abetting, must he be acquitted ? No ! It
is not what /think or you think of the appropriateness of the
place ; it is what they thought at the time. If the prisoner was
in Brown Street by appointment and agreement with the per-
petrator, for the purpose of giving assistance if assistance
should be needed, it may safely be presumed that the place was
suited to such assistance as it was supposed by the parties
might chance to become requisite.
If in Brown Street, was he there by appointment ? was he
there to aid, if aid were necessary ? was he there for, or against,
the murderer ? to concur, or to oppose ? to favor, or to thwart ?
Did the perpetrator know he was there, there waiting? If so,
then it follows that he was there by appointment. He was at the
post half an hour ; he was waiting for somebody. This proves
appointment, arrangement, previous agreement ; then it follows
that he was there to aid, to encourage, to embolden the perpetra-
tor ; and that is enough. If he were in such a situation as to
afford aid, or that he was relied upon for aid, then he was aiding
and abetting. It is enough that the conspirator desired to have
him there. Besides, it may be well said, that he could afford just
as much aid there as if he had been in Essex Street, as if he had
96 THE MURDER OF CAPTAIN JOSEPH WHITE.
been standing even at the gate, or at the window. It was not
an act of power against power that was to be done ; it was a
secret act, to be done by stealth. The aid was to be placed in
a position secure from observation. It was important to the
security of both that he should be in a lonely place. Now it
is obvious that there are many purposes for which he might be
in Brown Street.
1. Richard Crowninshield might have been secreted in the
garden, and waiting for a signal ;
2 Or he might be in Brown Street to advise him as to the
time of making his entry into the house ;
3. Or to favor his escape ;
4. Or to see if the street was clear when he came out ;
5. Or to conceal the weapon or the clothes ;
6. To be ready for any unforeseen contingency.
Richard Crowninshield lived in Danvers. He would retire
by the most secret way. Brown Street is that way. If you
find him there, can you doubt why he was there ?
If, Gentlemen, the prisoner went into Brown Street, by ap-
pointment with the perpetrator, to render aid or encourage-
ment in any of these ways, he was present, in legal contempla-
tion, aiding and abetting in this murder. It is not necessary
that he should have done any thing ; it is enough that he was
ready to act, and in a place to act. If his being in Brown
Street, by appointment, at the time of the murder, emboldened
the purpose and encouraged the heart of the murderer, by the
hope of instant aid, if aid should become necessary, then, with-
out doubt, he was present, aiding and abetting, and was a prin-
cipal in the murder.
I now proceed, Gentlemen, to the consideration of the testi-
mony of Mr. Colman. Although this evidence bears on every
material part of the cause, I have purposely avoided every com-
ment on it till the present moment, when I have done with the
other evidence in the case. As to the admission of this evi-
dence, there has been a great struggle, and its importance de-
manded it. The general rule of law is, that confessions are to
be received as evidence. They are entitled to great or to little
consideration, according to the circumstances under which they
are made. Voluntary, deliberate confessions are the most im-
THE MURDER OF CAPTAIN JOSEPH WHITE. 97
portant and satisfactory evidence, but confessions hastily made,
or improperly obtained, are entitled to little or no consideration.
It is always to be inquired, whether they were purely volun-
tary, or were made under any undue influence of hope or feai ;
for, in general, if any influence were exerted on the mind of the
person confessing, such confessions are not to be submitted to a
jury.
Who is Mr. Column ? He is an intelligent, accurate, and
cautious witness; a gentleman of high and well-known charac-
ter, and of unquestionable veracity ; as a clergyman, highly re-
spectable ; as a man, of fair name and fame.
Why was Mr. Colman with the prisoner? Joseph J. Knapp
was his parishioner ; he was the head of a family, and had been
married by Mr. Colman. The interests of that family were dear
to him. He felt for their afflictions, and was anxious to allevi-
ate their sufferings. He went from the purest and best of mo-
tives to visit Joseph Knapp. He came to save, not to destroy ;
to rescue, not to take away life. In this family, he thought there
might be a chance to save one. It is a misconstruction of Mr,
Colman's motives, at once the most strange and the most un-
charitable, a perversion of all just views of his conduct and in-
tentions the most unaccountable, to represent him as acting, on
this occasion, in hostility to any one, or as desirous of injuring
or endangering any one. He has stated his own motives, and
his own conduct, in a manner to command universal belief and
universal respect. For intelligence, for consistency, for accu-
racy, for caution, for candor, never did witness acquit himself
better, or stand fairer. In all that he did as a man, and all he
has said as a witness, he has shown himself worthy of entire re-
gard.
Now, Gentlemen, very important confessions made by the
prisoner are sworn to by Mr. Colman. They were made in
the prisoner's cell, where Mr. Colman had gone with the prison-
er's brother, N. Phippen Knapp. Whatever conversation took
place was in the presence of N. P. Knapp. Now, on the part
of the prisoner, two things are asserted; first, that such in duo
ments were suggested to the prisoner, in this interview, that no
confessions made by him ought to be received ; second, thvt, in
point of fact, he made no such confessions as Mr. Colman
testifies to, nor, indeed, any confessions at all. These r .70 prop-
/OL. vi. 9
98 THE MURDER OF CAPTAIN JOSEPH WHITE.
ositions are attempted to be supported by the testimony of N.
P. Knapp. These two witnesses, Mr. Colman and N. P
Knapp, differ entirely. There is no possibility of reconciling
them. No charity can cover both. One or the other has sworn
falsely. If N. P. Knapp be believed, Mr. Colman's testimony
must be wholly disregarded. It is, then, a question of credit,
a question of belief between the two witnesses. As you clecide
between these, so you will decide on all this part of the case.
Mr. Colman has given you a plain narrative, a consistent ac-
count, and has uniformly stated the same things. He is not
contradicted, except by the testimony of Phippen Knapp. He
is influenced, as far as we can see, by no bias, or prejudice, any
more than other men, except so far as his character is now
at stake. He has feelings on this point, doubtless, and ought
to have. If what he has stated be not true, I cannot see any
ground for his escape. If he be a true man, he must have heard
what he testifies. No treachery of memory brings to memory
things that never took place. There is no reconciling his evi-
dence with good intention, if the facts are not as he states them.
He is on trial as to his veracity.
The relation in which the other witness stands deserves your
careful consideration. He is a member of the family. He has
the lives of two brothers depending, as he may think, on the
effect of his evidence ; depending on every word he speaks. 1
hope he has not another responsibility resting upon him. By
the advice of a friend, and that friend Mr. Colman, J. Knapp
made a full and free confession, and obtained a promise of par-
don. He has since, as you know, probably by the advice of
other friends, retracted that confession, and rejected the offered
pardon. Events will show who of these friends and advisers
advised him best, and befriended him most. In the mean time,
if this brother, the witness, be one of these advisers, and ad-
vised the retraction he has, most emphatically, the lives of his
brothers resting upon his evidence and upon his conduct. Com-
pare the situation of these two witnesses. Do you not see
mighty motive enough on the one side, and want of all motive
on the other ? I would gladly find an apology for that witness,
in his agonized feelings, in his distressed situation; in the agita-
tion of that hour, or of this. I would gladly impute it to error,
or to want of recollection, to confusion of mind, or disturbance
THE MURDER OF CAPTAIN JOSEPH WHITE. 99
of feeling. I would gladly impute to any pardonable source
that which cannot be reconciled to facts and to truth ; but, even
in a case calling for so much sympathy, justice must yet pre-
vail, and we must come to the conclusion, however reluctantly,
which that demands from us.
It is said, Phippen Knapp was probably correct, because he
knew he should probably be called as a witness. Witness to
what? When he says there was no confession, what could he
expect to bear witness of? But I do not put it on the ground
that he did not hear; I am compelled to put it on the other
ground, that he did hear, and does not now truly tell what he
heard.
If Mr. Colman were out of the case, there are other reasons
why the story of Phippen Knapp should not be believed. It
has in it inherent improbabilities. It is unnatural, and incon-
sistent with the accompanying circumstances. He tells you that
they went " to the cell of Frank, to see if he had any objection
to taking a trial, and suffering his brother to accept the offer of
pardon " ; in other words, to obtain Frank's consent to Joseph's
making a confession ; and in case this consent was not obtained,
that the pardon would be offered to Frank. Did they bandy
about the chance of life, between these two, in this way ? Did
Mr. Colman, after having given this pledge to Joseph, and after
having received a disclosure from Joseph, go to the cell of Frank
for such a purpose as this ? It is impossible ; it cannot be so.
Again, we know that Mr. Colman found the club the next-
day ; that he went directly to the place of deposit, and found it
at the first attempt, exactly where he says he had been informed
it was. Now Phippen Knapp says, that Frank had stated noth-
ing respecting the club ; that it was not mentioned in that con-
versation. He says, also, that he was present in the cell of
Joseph all the time that Mr. Colman was there; that he believes
he heard all that was said in Joseph's cell ; and that he did not
himself know where the club was, and never had known where
it was, until he heard it stated in court. Now it is certein that
Mr Colman says he did not learn the particular place of de-
posit of the club from Joseph ; that he only learned from him
that it was deposited under the steps of the Howard Street
meeting-house, without defining the particular steps. It is cer-
tain, also, that he had more knowledge of the position of the
100 THE MURDER OF CAPTAIN JOSEPH WHITE.
club than this ; else how could he have placed his hand on it sc
readily ? and where else could he have obtained this knowledge,
except from Frank ?
Here Mr. Dexter said that Mr. Colman had had other interviews with
Joseph, and might have derived the information from him at previous
visits. Mr. Webster replied, that Mr. Colman had testified that he
learned nothing in relation to the club until this visit. Mr. Dexter de-
nied there being any such testimony. Mr. Colman's evidence was
read, from the notes of the judges, and several other persons, and Mr.
Webster then proceeded.
My point is to show that Phippen Knapp' s story is not true,
is not consistent with itself; that, taking it for granted, as he
says, that he heard all that was said to Mr. Colman in both
cells, by Joseph and by Frank ; and that Joseph did not state
particularly where the club was deposited ; and that he knew as
much about the place of deposit of the club as Mr. Colman
knew ; why, then Mr. Colman must either have been miracu-
lously informed respecting the club, or Phippen Knapp has not
told you the whole truth. There is no reconciling this, without
supposing that Mr. Colman has misrepresented what took place
in Joseph's cell, as well as what took place in Frank's cell.
Again, Phippen Knapp is directly contradicted by Mr. Wheat-
land. Mr. Wheatland tells the same story, as coming from
Phippen Knapp, that Colman now tells. Here there are two
against one. Phippen Knapp says that Frank made no confes-
sions, and that he said he had none to make. In this he is con-
tradicted by Wheatland. He, Phippen Knapp, told Wheat-
land, that Mr. Colman did ask Frank some questions, and that
Frank answered them. He told him also what these answers
were. WTheatland does not recollect the questions or answers,
but recollects his reply ; which was, " Is not this premature ? I
think this answer is sufficient to make Frank a principal."
Here Phippen Knapp opposes himself to WTheatland, as well
as to Mr. Colman. Do you believe Phippen Knapp against
these two respectable witnesses, or them against him ?
Is not Mr. Colman's testimony credible, natural, and proper?
To judge of this, you must go back to that scene.
The murder had been committed; the two Knapps were
now arrested; four persons were already in jail supposed to be
THE MURDER OF CAPTAIN JOSEPH WHITE. 101
concerned in it, the Crowninshields, and Selman, and Chase.
Another person at the Eastward was supposed to be in the plot ;
it was important to learn the facts. To do this, some one of
those suspected must be admitted to turn state's witness. The
contest was, Who should have this privilege ? It was under-
stood that it was about to be offered to Palmer, then in Maine :
there was no good reason why he should have the preference.
Mr. Colman felt interested for the family of the Knapps, and
particularly for Joseph. He was a young man who had hitherto
maintained a fair standing in society; he was a husband. Mr.
Colman was particularly intimate with his family. With these
views he went to the prison. He believed that he might safely
converse with the prisoner, because he thought confessions made
to a clergyman were sacred, and that he could not be called
upon to disclose them. He went, the first time, in the morning,
and was requested to come again. He went again at three
o'clock ; and was requested to call again at five o'clock. In the
mean time he saw the father and Phippen, and they wished he
would not go again, because it would be said the prisoners were
making confession. He said he had engaged to go again at
five o'clock ; but would not, if Phippen would excuse him to
Joseph. Phippen engaged to do this, and to meet him at his
office at five o'clock. Mr. Colman went to the office at the
time, and waited ; but, as Phippen was not there, he walked
down street, and saw him coming from the jail. He met him,
and while in conversation, near the church, he saw Mrs. Beck-
ford and Mrs. Knapp going in a chaise towards the jail. He
hastened to meet them, as he thought it not proper for them to
go in at that time. While conversing with them near the jail,
he received two distinct messages from Joseph, that he wished
to see him. He thought it proper to go ; and accordingly went
to Joseph's cell, and it was while there that the disclosures were
made. Before Joseph had finished his statement, Phippen came
to the door ; he was soon after admitted. A short interval en-
sued, and they went together to the cell of Frank. Mr. Col-
man went in by invitation of Phippen ; he had come directly
from the cell of Joseph, where he had for the first time learned
the incidents of the tragedy. He was incredulous as to some
of the facts which he had learned, they were so different from
his previous impressions. He was desirous of knowing whether
9*
102 THE MURDER OF CAPTAIN JOSEPH WHITE.
he could place confidence in what Joseph had told hin. He,
therefore, put the questions to Frank, as he has testified before
you; in answer to which Frank Knapp informed him, —
1. u That the murder took place between ten and eleven
o'clock."
2. " That Richard Crowninshield was alone in the house."
3. " That he, Frank Knapp, went home afterwards."
4. " That the club was deposited under the steps of the
Howard Street meeting-house, and under the part nearest the
bun ing-ground, in a rat hole."
5. M That the dagger or daggers had been worked up at the
factory."
It is said that these five answers just fit the case ; that they
are just what was wanted, and neither more nor less. True,
they are ; but the reason is, because truth always fits. Truth is
always congruous, and agrees with itself; every truth in the
universe agrees with every other truth in the universe ; whereas
falsehoods not only disagree with truths, but usually quarrel
among themselves. Surely Mr. Colman is influenced by no
bias, no prejudice ; he has no feelings to warp him, except, now
that he is contradicted, he may feel an interest to be believed.
If you believe Mr. Colman, then the evidence is fairly in the
case.
I shall now proceed on the ground that you do believe Mr.
Colman.
When told that Joseph had determined to confess, the de-
fendant said, " It is hard, or unfair, that Joseph should have
the benefit of confessing, since the thing was done for his bene-
fit." What thing was done for his benefit ? Does not this
cany an implication of the guilt of the defendant? Does it
not show that he had a knowledge of the object and history of
the murder?
The defendant said, " I told Joseph, when he proposed it,
that it was a silly business, and would get us into trouble."
He knew, then, what this business was ; he knew that Joseph
proposed it, and that he agreed to it, else he could not get us
into trouble ; he understood its bearing and its consequences.
Thus much was said, under circumstances that make it clearly
evidence against him, before there is any pretence of an in-
ducement held out. And does not this prove him to have had
a knowledge of the conspiracy ?
THE MURDER OF CAPTAIN JOSEPH WHITE. 103
He knew the daggers had been destroyed, and he knew who
committed the murder. How could he have innocently known
these facts ? Why, if by Richard's story, this shows him
guilty of a knowledge of the murder, and of the conspiracy.
More than all, he knew when the deed was done, and that he
went home afterwards. This shows his participation in that
deed. "Went home afterwards!" Home, from what scene?
home, from what fact? home, from what transaction? home,
from what place ? This confirms the supposition that the pris-
oner was in Brown Street for the purposes ascribed to him.
These questions were directly put, and directly answered. He
does not intimate that he received the information from an-
other. Now, if he knows the time, and went home afterwards,
and does not excuse himself, is not this an admission that he
had a hand in this murder? Already proved to be a conspira-
tor in the murder, he now confesses that he knew who did it, at
what time it w^as done, that he was himself out of his own
house at the time, and went home afterwards. Is not this con-
clusive, if not explained ? Then comes the club. He told
where it was. This is like possession of stolen goods. He
is charged with the guilty knowledge of this concealment. He
must show, not say, how he came by this knowledge. If a
man be found writh stolen goods, he must prove how he came
by them. The place of deposit of the club was premeditated
and selected, and he knew where it was.
Joseph Knapp was an accessory, and an accessory only ; he
knew only what was told him. But the prisoner knew the par-
ticular spot in which the club might be found. This shows his
knowledge something more than that of an accessory. This
presumption must be rebutted by evidence, or it stands strong
against him. He has too much knowledge of this transaction
to have come innocently by it. It must stand against him
until he explains it.
This testimony of Mr. Colman is represented as new matter,
and therefore an attempt has been made to excite a prejudice
against it. It is not so. How little is there in it, after all, that
did not appear from other sources ? It is mainly confirmatory.
Compare what you learn from this confession with what you
before knew.
As to its being proposed by Joseph, was not that known ?
104 THE MURDER OF CAPTAIN JOSEPH WHITE.
As to "Richard's beinsr alone in the house, was not that known?
As to the daggers, was not that known ?
. As to the time of the murder, was not that known ?
As to his beins: out that night, was not that known ?
As to his returning afterwards, was not that known ?
As to the club, was not that known ?
So this information confirms what was known before, and
fullv confirms it.
One word as to the interview between Air. Colman and
Phippen Knapp on the turnpike. It is said that Air. Colman' s
conduct in this matter is inconsistent with his testimony. There
does not appear to me to be any inconsistency. He tells you
that his object was to save Joseph, and to hurt no one. and
least of all the prisoner at the bar. He had probably told Mr.
"White the substance of what he heard at the prison. He had
probably told him that Frank confirmed what Joseph had con-
fessed. He was unwilling to be the instrument of harm to
Frank. He therefore, at the request of Phippen Knapp. wrote
a note to Air. White, requesting him to consider Joseph as au-
thority for the information he had received. He tells you that
this is the onlv thino- he has to resrret : as it mav seem to be an
evasion, as he doubts whether it was entirely correct. Iff it was
an evasion, if it was a deviation, if it was an error, it was an
error of mercy, an error of kindness : an error that proves he had
no hostility to the prisoner at the bar. It does not in the least
van* his testimony, or affect its correctness. Gentlemen. I look
on the evidence of Air. Colman as highly important : not as
bringing into the cause new facts, but as confirming, in a very
satisfactory manner, other evidence. It is incredible that he
can be false, and that he is seeking the prisoner's life through
false swearing. If he is true, it is incredible that the prisoner
can be innocent.
Gentlemen. I have gone through with the evidence in this
case, and have endeavored to state it plainly and fairly before
you. I think there are conclusions to be drawn from it. the ac-
curacy of which you cannot doubt. I think you cannot doubt
that there was a conspiracy formed for the purpose of commit-
dns this murder, and who the conspirators were :
That you cannot doubt that the Crowninshields and the
fvnapps were the parties in this conspiracy :
THE MURDER OF CAPTAIN JOSEPH WHITE. 105
That you cannot doubt that the prisoner at the bar knew
that the murder was to be done on the night of the 6th of
April :
That you cannot doubt that the murderers of Captain White
were the suspicious persons seen in and about Brown Street on
that night:
That you cannot doubt that Richard Crowninshield was the
perpetrator of that crime :
That you cannot doubt that the prisoner at the bar was in
Brown Street on that night.
If there, then it must be by agreement, to countenance, to aid
the perpetrator. And if so, then he is guilty as Principal.
Gentlemen, your whole concern should be to do your duty,
and leave consequences to take care of themselves. You will
receive the law from the court. Your verdict, it is true, may
endanger the prisoner's life, but then it is to save other lives.
If the prisoner's guilt has been shown and proved beyond all
reasonable doubt, you will convict him. If such reasonable
doubts of guilt still remain, you will acquit him. You are the
judges of the whole case. You owe a duty to the public, as
well as to the prisoner at the bar. You cannot presume to be
wiser than the law. Your duty is a plain, straight- forward one.
Doubtless we would all judge him in mercy. Towards him, as
an individual, the law inculcates no hostility; but towards him,
if proved to be a murderer, the law, and the oaths you have
taken, and public justice, demand that you do your duty.
With consciences satisfied with the discharge of duty, no
consequences can harm you. There is no evil that we cannot
either face or fly from, but the consciousness of duty disregard-
ed. A sense of duty pursues us ever. It is omnipresent, like
the Deity. If we take to ourselves the wings of the morning,
and dwell in the uttermost parts of the sea, duty performed, or
duty violated, is still with us, for our happiness or our misery.
If we say the darkness shall cover us, in the darkness as in the
light our obligations are yet with us. We cannot escape their
power, nor fly from their presence. They are with us in this
life, will be with us at its close ; and in that scene of inconceiv-
able solemnity, which lies yet farther onward, we shall still find
ourselves surrounded by the consciousness of duty, to pain us
wherever it has been violated, and to console us so far as God
may have given us grace to perform it.
THE BANK OF THE UNITED STATES AGAINST
WILLIAM D. PRIMROSE.*
The case of The Bank of the United States against William D. Prim-
rose was brought up by appeal from the Circuit Court of Alabama, to-
gether with the cases of The Bank of Augusta against Joseph B. Earle,
and The New Orleans and Carrollton Railroad Company also against
Joseph B. Earle. The same principle was at issue in the three cases.
The facts in the case of The Bank of the United States against Wil-
liam D. Primrose were as follows.
" The Bank of The United States, incorporated by the legislature of
the State of Pennsylvania, as the holders of a bill of exchange, protested
for non-payment, for five thousand three hundred and fifty dollars, drawn
by Charles Gascoigne, at Mobile, on the 14th of January, 1837, at four
months, on J. and C. Gascoigne of JNiew York, in favor of William D.
Primrose, and by him indorsed, instituted, in October, 1837, an action
against the indorser of the bill, in the Circuit Court of the Southern Dis-
trict of Alabama. The agreed facts of the case which were submitted
to the Circuit Court were as follows.
" The plaintiffs are a body corporate existing under and by virtue of
a law of the State of Pennsylvania, authorized by its charter to sue and
be sued by the name of the President, Directors, and Company of the
Bank of the United States, and to deal in bills of exchange ; and com-
posed of citizens of Pennsylvania, and of States of the United States
other than the State of Alabama. The defendant is a citizen of the
State of Alabama. George Poe, Jr. was the agent of the plaintiffs, resi-
dent in Mobile, and in the possession of funds belonging to the plain-
tiffs, intrusted to him for the sole purpose of purchasing bills of ex-
change. The said George Poe, Jr., as such agent, on the 14th day of
January, 1837, purchased at Mobile the bill declared upon, and paid for
the same in notes of the branch of the Bank of the State of Alabama at
* An argument made in the Supreme Court of the United States, on the 9tb
•f February, 1839.
THE UNITED STATES BANK AGAINST PRIMROSE. 107
Mobile. The defendant is the payee of the bill, and indorsed it to j Iain-
tiffs, the present holders. The bill was presented at maturity- to the ac-
ceptors, and duly protested for non-payment, and due and legal notice
given to the defendant.
" The question for the opinion of the court on the foregoing statemenl
of facts is, whether the purchase of the said bill of exchange by the plain-
tiffs as aforesaid was a valid contract under the laws of Alabama. If
the court be of opinion that the said contract was valid, and that the said
plaintiffs, as holders of the said bill, acquired the legal title thereto by
the said purchase, then judgment to be rendered for the plaintiffs for the
sum of five thousand three hundred and fifty dollars, with interest at
eight per cent, since the 30th of May, 1837, and ten per cent, dam-
ages. But if the court be of opinion that the said purchase was prohib-
ited by the laws of Alabama, and the contract was therefore invalid and
void, judgment is to be rendered for the defendant.
" The Circuit Court of Alabama gave judgment for the defendant.'"
The cause was transferred by writ of error to the Supreme Court of
the United States, and was tried in connection with the two others above
named, in which the same question was raised.
The case of The Bank of the United States against Primrose was ar-
gued by Mr. Sergeant and Mr. Webster for the plaintiffs in error. The
cause was one of high importance, covering a vast variety of contracts
entered into in the several States of the Union by the agents of corpora-
tions established in other States. It was calledat the time the " Great
Appeal Case from Alabama."
The opinion of the Supreme Court of the United States, reversing the
decision of the court below, was delivered by Chief Justice Taney, Mr.
Justice Baldwin concurring in the judgment of the court, for reasons
stated in an opinion of his own, and Mr. Justice McKinley dissenting.
Mr. Webster's argument was as follows.
The record presents this case.
The Bank of the United States is a corporation created by a
.aw of the State of Pennsylvania. By that act the bank, among
other functions, possesses that of dealing in bills of exchange.
In the month of January, 1837, having funds in Mobile, this
bank, through the instrumentality of its agent, Mr. Poe, pur-
chased a bill of exchange to remit to New York. This bill,
drawn at Mobile upon New York, and indorsed by William D.
Primrose, the defendant in this case, not having been paid either
at New York or by the drawer, the Bank of the United States
instituted this suit in the Circuit Court of Alabama, to recover
the money due on the bill.
108 THE BANK OF THE UNITED STATES
In the court below, it was decided that the contract by Poe in
behalf of the bank was void, on two grounds : First, because
it was a contract made by the Bank of the United States, in
the State of Alabama ; whereas a bank incorporated by the
State of Pennsylvania can do no act out of the limits of Penn-
sylvania. Secondly, because Alabama has a bank of her own,
the capital of which is owned by the State herself, which is au-
thorized to buy and sell exchange, and from the profits of which
she derives her revenue ; and the purchase of bills of exchange
being a banking operation, the purchase of such bills by others,
at least by any corporation, although there is no express law for-
bidding it, is against the policy of the State of Alabama, as it
may be inferred from the provisions of the constitution of that
State, and the law made in conformity thereto.
It is admitted that the parties are rightfully in court. It is
admitted, also, that the defendant is a citizen of Alabama, and
that all the citizens who compose the corporation of the Bank
of the United States are citizens of the State of Pennsylvania,
or of some other State than Alabama. The question is, Can
they, as a corporation, do any act within the State of Alabama?
In other words, is there any thing in the constitution or laws of
the State of Alabama which prohibits, or rightfully can prohib-
it, citizens of other States, or corporations created by other
States, from buying and selling bills of exchange in the State of
Alabama ?
In his argument, yesterday, 'for the defendant in this case,
my learned friend* asked certain questions which I propose to
answer.
Can this bank, said he, transfer itself into the State of Ala-
bama ? Certainly not. Can it establish a branch in the State
of Alabama, there to perform the same duties, and transact the
same business, in all respects, as in the State of Pennsylvania ?
Certainly not. Can it exercise in the State of Alabama any of
its corporate functions ? Certainly it can. For my learned
friend admits its right to sue in that State, which is a right that
it possesses solely by the authority of the Pennsylvania law by
which the bank is incorporated.
We thus clear the case of some difficulty by arriving at this
* Mr. Vande Gruff.
AGAINST WILLIAM D. PRIMROSE. 109
point, the admission on both sides that there are certain powers
which the bank can exercise within the State of Alabama, and
certain others which it cannot exercise.
The question is, then, whether the bank can exercise, within
the State of Alabama, this very power of buying a bill of ex-
change.
Our proposition is, that she can buy a bill of exchange within
the State of Alabama ; because there are no corporate functions
necessary to the act of buying a bill of exchange ; because buying
and selling exchange is a thing open to all the world, in Alaba-
ma as well as everywhere else ; because, although the power to
buy and sell bills of exchange be conferred upon this bank by
its charter, and it could not buy or sell a bill of exchange with-
out that provision in its charter, yet this power was conferred
upon it, as were other powers conferred by its charter, to place
the bank upon the same footing as an individual ; to give it, not
a monopoly, not an exclusive privilege, in this respect, but sim-
ply the same power which the members of the corporation, as
individuals, have an unquestionable right to exercise. The
banker, the broker, the merchant, the manufacturer, all buy bills
of exchange as individuals; the individuals who compose a cor-
poration may do it; and we say that they may do it, though
they do it in the name of, and for, the corporation. We say,
undoubtedly, that they cannot acquire power, under the Penn-
sylvania charter, to do acts in Alabama which they cannot do
as individuals ; but we say that the corporation may do, in their
corporate character, in Alabama, all such acts, authorized by
their charter, as the members thereof would have a right to per-
form as individuals.
The learned counsel on the other side was certainly not dis-
posed to concede, gratuitously, any thing in this case. Yet he
did admit that there might be a case in which the acts of a cor-
poration created by one State, done in another State, would
be valid. He supposed the case of a railroad company in one
State sending an agent into another State to buy iron for the
construction of the road. Without conceding expressly the point
of law in that case, he admitted that it would be a case very
different from the present ; and he gave as a reason for this ad-
mission, that it would be a single special act, necessary to ena-
ble the corporation to execute its functions within the State to
vol. vi. 10
110 THE BANK OF THE UNITED STATES
which it belonged, and in this respect differing from the case
now under consideration. In what circumstance, it may well
be asked, do the cases differ ? One act only of the corporation
of the Bank of the United States is set forth in this record, and
that act stands singly and by itself. There is no proof before
the court, that the corporation ever bought another bill of ex-
change than that which is the subject of this suit. Transac-
tions of this nature must necessarily come one by one before
this court, when they come at all, and must stand or fall on
their individual merits, and not upon the supposition of any
policy which would recognize the legality of a single act, and
deny the validity of the dealings or transactions generally, of
which that act is a part.
Then, as to the other reason stated by my learned friend in
support of the idea that such a purchase of iron might be ad-
mitted, he says it is because that, in that case, the purchase,
being made abroad solely to enable the corporation to perform
its functions at home, might be considered legal, under the law
of comity of one State toward another.
Now, that supposed case is precisely the case before the
court. Here is the case of a corporation ertablished in Phila-
delphia, one of whose lawful functions is to deal in exchange.
A Philadelphia merchant, having complied with the order of
his correspondent in Alabama, draws a bill upon him for the
amount due in consequence, goes to the Bank of the United
States, and sells the bill. The funds thus realized by the bank
from the purchase of bills of exchange accumulate in Alabama.
How are those funds to be brought back by the Philadelphia
corporation within its control? The bank has unquestioned
power to deal in bills of exchange1. Can there be such a thing
as dealing in exchange, with a power to act only at one end of
the line ? Certainly not. How, then, is the bank in Philadel-
phia to get its funds back from Alabama ? Suppose that it
were to send an agent there and buy specie. Can the bank
ship the specie ? Can it sign an agreement for the freight, in-
surance, and charges of bringing it round? To do that would
be an act of commerce, of navigation, not of exchange. A
power conferred upon a bank to deal in exchange would be
perfectly nugatory, unless accompanied by a power also to
direct its funds to be remitted. The practical result of a con-
AGAINST WILLIAM D. PRIMROSE. HI
fcrary construction would be, that this Pennsylvania bank may
carry on exchange between Philadelphia and Reading, or Phil-
adelphia and Lancaster, but not by possibility with Mobile, or
any other city or place in the South, or even with New York,
Trenton, or Baltimore. Out of Pennsylvania it could only buy
and remit. It could get no return. An exchange that runs but
one way ! What sort of an exchange is that ?
Having cleared the case of some of these generalities, Mr. Webster
proceeded to the exposition of what he considered a constitutional,
American view of the question.
The record of this case finds that these plaintiffs, the mem-
bers of the corporation of the Bank of the United States, are
citizens of other States, and that the defendant is a citizen of
Alabama. Now, in the first place, (to begin at the begin-
ning of this part of the question,) what are the relations which
the individual citizens of one State bear to the individual citi-
zens of any other State of this Union ?
How did the matter stand before the Revolution ? When
these States were Colonies, what was the relation between the
inhabitants of the different Colonies? Certainly it was not one
of aliens. They were not, indeed, all citizens of the same Col-
ony ; but certainly they were fellow-subjects, and owed a com-
mon allegiance ; and it was not competent for the legislative
power to say that the citizens of any one of the Colonies should
be alien to the others. This was the state of the case until the
4th of July, 1776, when this common allegiance was thrown
off. After a short interval of two years, and the renunciation
of that allegiance, the Articles of Confederation were adopted ;
and now let us see what was the relation between the citizens
of the different States by those articles. The government had
become a confederation. But it was something more, much
more. It was not merely an alliance between distinct govern-
ments for the common defence and general welfare, but it rec-
ognized and confirmed a community of interest, of character,
and of privileges, between the citizens of the several States.
" The better to secure and perpetuate mutual friendship and in-
tercourse among the people of the different States in thih
Union," said the fourth of the Articles of Confederation, " the
free inhabitants of each of these States shall be entitled to all
the privileges and immunities of free citizens in the several
112 THE BANK OF THE UNITED STATES
States; and the people of each State shall have free ingress and
egress to and from any other State, and shall enjoy therein all
the privileges of trade and commerce." This placed the inhab-
itants of each State on equal ground as to the rights and privi-
leges which they might exercise in every other State.
So things stood at the adoption of the Constitution of the
United States. The article of the present Constitution, in fewer
words , and more general and comprehensive terms, confirms
this community of rights and privileges in the following form:
" The citizens of each State shall be entitled to all the privileges
and immunities of citizens in the several States." However ob-
vious and general this provision may be, it will be found to have
some particular application to the case now before the court;
the article in the Confederation serving as the expounder of
this article in the Constitution.
That this article in the Constitution does not confer on the
citizens of each State political rights in every other State is ad-
mitted. A citizen of Pennsylvania cannot go into Virginia and
vote at an election in that State ; though when he has acquired
a residence in Virginia, and is otherwise qualified as required
by her constitution, he becomes, without formal adoption as a
citizen of Virginia, a citizen of that State politically. But for
the purposes of trade, commerce, buying and selling, it is evi-
dently not in the power of any State to impose any hinderance
or embarrassment, or lay any excise, toll, duty, or exclusion, up-
on citizens of other States, or to place them, coming there, upon
a different footing from her own citizens. There is one provis-
ion, then, in the Constitution, by which citizens of one State
may trade in another without hinderance or embarrassment.
There is another provision of the Constitution, by which citi-
zens of one State are entitled to sue citizens of any other State
in the courts of the United States. This is a very plain and
clear right under the Constitution ; but it is not more clear than
the preceding.
Here, then, are two distinct constitutional provisions confer-
ring power upon citizens of Pennsylvania and every other State,
as to what they may do in Alabama or any other State. Citi-
zens of other States may trade in Alabama, in whatsoever is
lawTful to citizens of Alabama ; and if, in the course of their deal-
ings, they have claims on citizens of Alabama, they may sue in
AGAINST WILLIAM D. PRIMROSE. 113
Alabama in the courts of the United States. This is American
constitutional law, independent of all comity whatever.
By the decisions of this court, it has been settled that this
right to sue is a right which may be exercised in the name of a
corporation. Here is one of the rights, then, which may be
exercised in Alabama by citizens of another State in the name
of a corporation. If citizens of Pennsylvania can exercise in
Alabama the right to sue, in the name of a corporation, what
hinders them from exercising in the same manner this other
constitutional right, the right to trade ? If it be the established
right of persons in Pennsylvania to sue in Alabama, in the
name of a corporation, why may they not do any other lawful
act in the name of a corporation ? If no reason to the contrary
can be given, then the law in the one case is the law also in the
other case.
My learned friend says, indeed, that suing and making a con-
tract are different things. True ; but this argument, so far
as it has any force, makes against his cause ; for it is a much
more distinct exercise of corporate power to bring a suit, than
to make a purchase by an agent. What does the law take to
be true, when it says that a corporation of one State may sue in
another ? Why, that the corporation is there, in court, ready to
submit to the court's decree, a party on its record. But in the
case of the purchase of the bill of exchange which is the sub-
ject of this suit, what is assumed ? No more than that George
Poe bought a bill of exchange, and paid the value for it on ac-
count of his employers in Philadelphia. So far from its being a
more natural right for a corporation to be allowed to sue, it is a
more natural right to be allowed to trade, in a State in which
the corporation does not exist. What is the distinction ? Buy-
ing a bill of exchange is said to be an act, and therefore the
corporation could not do it in Alabama. Is not a suit an act ?
Is it not doing ? Does it not, in truth, involve many acts ?
The truth is, that this argument against the power of a cor-
poration to do acts beyond the territorial jurisdiction of the au-
thority by which it is created, is refuted by all history as well as
by plain reason.
What have all the great corporations in England been doing
for centuries back ? The English East India Company, as far
back as the reign of Elizabeth, has been trading all over the
10*
114 THE BANK OF THE UNITED STATES
Eastern world. That company traded in Asia before Great
Britain had established any territorial government there, and in
other parts of the world where England never pretended to any
territorial authority. The Bank of England, established in 1694,
has been always trading and dealing in exchanges and bullion
with Hamburg, Amsterdam, and other marts of Europe. Nu-
merous other corporations have been created in England for the
purpose of exercising power over matters and things in territories
wherein the power of England has never been exerted. The
whole commercial world is full of such corporations, exercising
similar powers beyond the territorial jurisdiction within which
they have legal existence.
I say, then, that the right secured to the people of Pennsylva-
nia, to sue in any other State in the name of a corporation, is
no more clear than this other right of such a corporation to trade
in any other State; nor even so clear. It is a •more violent
legal presumption, or a much greater extent of national courtesy
or comity, to suppose a foreign corporation actually in court, in
its legal existence, with its legal attributes, and acting in its
own name, than it is to allow an ordinary act of trade, done by
its agent, on its own account, to be a valid transaction.
There is an opinion of this court directly bearing on this ques-
tion. It was in the case of the Bank of the United States v.
Deveaux, decided in 1809. The bank here mentioned was the
first Bank of the United States, which had not, like the last,
express authority given in its charter to sue in the courts of
the United States. It sued, therefore, as this plaintiff sues, in
its name as a corporation ; but with an averment, as here, that
its members were citizens of Pennsylvania, the action being
brought against a citizen of Georgia. The only question was,
whether the plaintiffs might not exercise their constitutional
right to sue in the courts of the United States, although they
appeared in the name of their Pennsylvania corporation ; and
the court decided that they might. " Substantially and essen-
tially," said Chief Justice Marshall, " the parties in such a case,
where the members of the corporation are aliens, or citizens of
a different State from the opposite party, come within the spirit
and terms of the jurisdiction conferred by the Constitution on
the national tribunals That corporations composed of cit-
izens are considered by the legislature as citizens, under certain
AGAINST WILLIAM D. PRIMROSE. 115
circumstances, is to be strongly inferred from the registering
acts. It never could be intended that an American registered
vessel, abandoned to an insurance company composed of citi-
zens, should lose her character as an American vessel; and yet
this would be the consequence of declaring that the members
of the corporation were, to every intent and purpose, out of
view, and merged in the corporation."
The argument here is, that citizens of a State may exercise
their rights of suing, as such citizens, in the name of their cor«
poration ; because in such a name the law recognizes them as
competent to engage in transactions, hold property, and enjoy
rights proper for them as citizens.
If the court concur in this language of its own opinion as far
back as the year 1809, it must be admitted that the rights of
the people of Pennsylvania, as citizens of the United States,
are not merged in the act of incorporation by which they are
associated, and under which they are parties to this suit. If
there ever was a human being that did not argue to the obscure
from the more obscure, it was certainly the late Chief Justice of
the United States. And what is his argument to prove that the
citizens of one State may sue in another by a corporate name?
It is, as I have said, that they may sue by a corporate name,
because they can do acts out of court by a corporate name ;
whilst, directly reversing this conclusion, it has been held in this
case, in the court below, that, whilst a corporation of one State
may rightfully sue in another State, it cannot do any other act
therein.
In this view of the case, I see no occasion to call to our aid
the law of comity or international courtesy. Here our case
stands, independently of that law, on American ground, as an
American question.
Now, as to the reason of the case. What possible difference
can it make, if these citizens of Pennsylvania can trade, or buy
and sell bills in Alabama, whether the trading, or buying and
selling, be under one agency or another? That Poe (the agent
of the Bank of the United States at Mobile) could, under a
power of attorney from a citizen of Philadelphia, buy and sell
bills of exchange in Alabama, will not be denied. If, without
an act of incorporation, several citizens of Philadelphia should
form an association to buy and sell bills of exchange, with five
116 THE BANK OF THE UNITED STATES
directors or managers of its concerns, those five directors ma^
send as many agents as they please into other States to buy
bills of exchange, and transact other business of this descrip-
tion. Having thus formed themselves into this associated com-
pany, and appointed agents for the purpose of transacting theii
business, if they should go one step further, and obtain a charter
from Pennsylvania, that their meetings and proceedings may
be more regular, and the acts of the association more methodi-
cal, what would be the difference, in the eye of reason, between
the acts of the members of such a corporation, and the acts of
the same individuals associated for the same purposes without
incorporation, and acting by common agents, correspondents, or
attorneys ? The officers of a bank are but the agents of the
proprietors ; and their purchases and sales are founded upon
their property, and directed by their will, in the same manner
as the acts of agents of unincorporated associations or partner-
ships. The Girard Bank, we all know, was never incorporated
until after Mr. Girard's death; yet its proprietor, during a con-
siderable part of his life, and until his death, acted as a banker.
Could he not, during his life, send an agent into Alabama, and
there purchase bills of exchange? And if his neighbors over
the way chose to ask for an act of incorporation from the State
of Pennsylvania, are they thereby any less entitled to the privi-
leges common to all other citizens than Stephen Girard was?
I agree, certainly, in general, that a State law cannot operate
ex-territorially, as the phrase is. But it is a rule of law, that a
State authority may create an artificial being, giving it legal
existence ; and that that being, thus created, may legally sue in
other States than that by which it is created. It follows, of
course, as a consequence of the right of suit in another State,
that it may obtain judgment there. If it obtain judgment, it
may accept satisfaction of that judgment. If a judgment be
obtained in Alabama by the Bank of the United States, would
not an acknowledgment of satisfaction by an agent of the bank
be a satisfaction of the decree of the court? How is the fruit
of a suit to be gathered, if the bank, by its agent, cannot do
this act ? What benefit can it be to this bank to be allowed to
sue in Alabama, if it cannot take the money sued for? But it
is said by the court below, that it cannot recover money in
Alabama, because it cannot do an act there! Accord' ng to this
AGAINST WILLIAM D. PRIMROSE. 117
argument, although the power to appeal to law and the power
to recover judgment exist, yet the fructus leg-is in all dust and
ashes.
On the commercial branch of this question I shall say but
little. But thus much I will say. The State of Alabama can-
not make any commercial regulation for her own emolument
or benefit such as shall create any difference between her own
citizens and citizens of other States. I do not say that the
State of Alabama may not make corporations, and give to
them privileges which she does not give to her citizens. But I
do say, that she cannot create a monopoly to the prejudice of
citizens of other States, or to the disparagement or prejudice
of any common commercial right. Suppose that a person hav-
ing occasion to purchase bills of exchange should not like the
credit of bills sold by the Bank of Alabama ; or suppose (what
is within the reach of possibility) that the. Bank of Alabama
should fail ; may not a citizen buy bills elsewhere ? Or is it
supposed that the State of Alabama can give such a preference
to any institution of her own in the buying and selling of ex-
change, that no exchange can be bought and sold within her
limits but by that institution ? It would be, doubtless, doing
the State great injustice to suppose that she could entertain
any such purpose.
In conclusion of the argument upon this point, I maintain
that the plaintiffs in this case had a right to purchase this bill,
and to recover judgment upon it. For the same reason that
they had a right to bring this suit, they had the right to do the
act upon which the suit was brought.
But if the rights of the plaintiffs, under this constitutional
view of the case, be doubted, then what has been called the
comity of nations obliges the court to sustain the plaintiffs in
this cause.
The term "comity" is taken from the civil law. Vattel has no
distinct chapter upon that head. But the doctrine is laid down
by other authorities with sufficient distinctness, and in effect
by him. It is, in general terms, that there are, between nations
at peace with one another, rights, both national and individual,
resulting from the comity or courtesy due from one friendly na-
tion to another. Among these is the right to sue in their courts
118 THE BANK OF THE UNITED STATES
respectively ; the right to travel in each other's dominions ; the
right to pursue one's vocation in trade ; the right to do all
things, generally, which belong to the citizens proper of each
country, and which they are not precluded from doing by some
positive law of the state. Among these rights, one of the
clearest is the right of a citizen of one nation to take away his
property from the territory of any other friendly nation, without
molestation or objection. This is what we call the comity of
nations. It is the usage of nations, and has become a positive
obligation on all nations. I know that it is but customary or
voluntary law ; that it is a law existing by the common under-
standing and consent of nations, and not established for the
government of nations by any common superior. For this rea-
son, every nation, to a certain extent, judges for itself of the ex-
tent of the obligation of this law, and puts its own construction
upon it. Every other nation, however, has a right to do the
same ; and if, therefore, any two nations differ irreconcilably in
their construction of this law, there is no resort for settling that
difference but the ultima ratio regum.
The right of a foreigner to sue in the courts of any country
may be regulated by particular laws or ordinances of that coun-
try. He may be required to give security for the costs of suit
in any case, or not to leave the country until the end of the
controversy. He may possibly be required to give security that
he will not carry his property out of the country till his debts
are paid. But if, under pretence of such regulation, any nation
shall impose unreasonable restrictions or penalties on the citi-
zens of any other nation, the power of judging that matter for
itself lies with that other nation. Suppose that the government
of the United States, for example, should say that every for-
eigner should pay into the public treasury ten, twenty, or fifty
per cent, of any amount which he might recover by suit in our
courts of law, would such a regulation be perfectly just and
right? Or would not the practice of such extortion upon the
citizens of other nations be a just ground of complaint ; and, if
unredressed, a ground of war much more reasonable than most
of the causes which put nations in arms against one another ?
What is, in fact, now the question which has assumed so seri-
ous an aspect between the governments of France and Mexico ?
One of the leading causes of difference between the two coun-
AGAINST WILLIAM D. PRIMROSE. Hy
tries, so far as I understand it, is, not that the courts of Mexico
are not open to the citizens or subjects of France, but that the
courts do not do justice between them and the citizens of Mex-
ico ; in other words, that French subjects are not treated in
Mexico according to the comity of the law of nations. I do
not speak of the merits of this quarrel. Into that question I do
not enter; I speak only of things alleged between the parties.
Look into Vattel, and you will find that this very right to carry
away property, the proceeds of trade, from a foreign friendly
country, by exchange, is a well-understood and positive prin-
ciple of the law of nations. Suppose that there existed no
treaties between the United States and France or England
guarantying these rights to each other's citizens, these rights
would yet exist by tacit consent and permission. Suppose this
government, in the absence of treaties, were to shut its courts
against the citizens of either nation, (to do so would be only a
violation of the comity of nations,) and should grant them no
redress upon complaint being made, it would, unquestionably,
be ground of war against the United States by that nation.
There are in London several incorporated insurance compa-
nies. Suppose a ship, insured by one of these companies,
should be wrecked in the Chesapeake Bay. Being abandoned,
she became the property of the corporation by which she was
insured. I demand whether the insurers may not come and
take this property, and bring an action for it, if necessary, in
any court in this country, State or Federal. They may recover
by an action of tort against the wrongdoer. They may replevy
their property, if necessary, or sell it, or refit it, or send it back.
Unquestionably, if any country were to debar the citizens of
another country from the enjoyment of these common rights
within its territorial jurisdiction, it would be cause of war. ]
do not mean that a single act of that sort would or should
bring on a war ; but it would be an act of that nature, so plain
and manifest a violation of our duty, under the law of nations,
as to justify war. According to the judgment of the court be-
low, in the present case, however, these insurance companies
would be deprived of their rightful remedy. You let them sue,
indeed ; but that is all.
I may here refer to a case tried some time ago in the Circuit
Court of the Massachusetts District, in which I was of counsel
120 THE BANK OF THE UNITED STATES
A vessel insured in Boston was wrecked in Nova Scotia,
and was abandoned to the insurers. The insurance office
sent out an agent, who did that which the owner of the ves-
sel said was an acceptance of the abandonment. On the
question whether the agent of the Boston office accepted the
abandonment, the court decided the case. If we had said that
we sent him down, indeed, but that his agency ceased when he
got to the boundary line of the State, and he could do no act
when he got beyond it, and the court had agreed with us, we
might, perhaps, have gained our cause. But it never occurred
to me, nor probably to the court, that the functions of our agent
ended the moment that he passed the limits of the State.
The law of comity is a part of the law of nations ; and it
authorizes a corporation of any State to make contracts beyond
the limits of that State.
How does a State contract ? How many of the States of
this Union have made contracts for loans in England! A State
is sovereign, in a certain sense. But when a State sues, it sues
as a corporation. When it enters into contracts with the citi-
zens of foreign nations, it does so in its corporate character. I
now say, that it is the adjudged and admitted law of the world,
that corporations have the same right to contract and to sue in
foreign countries that individuals have. By the law of nations,
individuals of other countries are allowed in this country to
contract and sue ; and we make no distinction, in the case of
individuals, between the right to sue and the right to contract.
Nor can any such distinction be sustained in law in the case
of corporations. Where, in history, in the books, is any law or
dictum to be found, (except the disputed case from Virginia,)
in which a distinction is drawn between the rights of individuals
and of corporations to contract and sue in foreign countries in
regard to things generally free and open to every body ? In
the whole civilized world, at home and abroad, in England,
Holland, and other countries of Europe, the equal rights of cor-
porations and individuals, in this respect, have been undisputed
until now, and in this case ; and if a distinction is to be set up
between them at this day, it lies with the counsel on the other
side to produce some semblance of authority or show of reason
f >r it.
But it is argued, that, though this law of comity exists as be-
AGAINST WILLIAM D. PRIMROSE. 121
tweeti independent nations, it does not exist between the States
of this Union. That argument appears to have been the foun-
dation of the judgment in the court below.
In respect to this law of comity, it is said, States are not
nations; they have no national sovereignty; a sort of residuum
of sovereignty is all that remains to them. The national sover-
eignty, it is said, is conferred on this government, and part of
the municipal sovereignty. The rest of the municipal sover-
eignty belongs to the States. Notwithstanding the respect
which I entertain for the learned judge who presided in that
court, I cannot follow in the train of his argument. I can
make no diagram, such as this, of the partition of national char-
acter between the State and the general governments. I can-
not map it out, and say, " So far is national, and so far muni-
cipal ; and here is the exact line where the one begins and the
other ends." We have no second Laplace, and we never shall
have, with his Mecanique Politique, able to define and describe
the orbit of each sphere in our political system with such exact
mathematical precision. There is no such thing as arranging
these governments of ours by the laws of gravitation, so that
they will be sure to go on for ever without impinging. These
institutions are practical, admirable, glorious, blessed creations.
Still they were, when created, experimental institutions; and if
the convention which framed the Constitution of the United
States had set down in it certain general definitions of power,
such as have been alleged in the argument of this case, and
stopped there, I verily believe that, in the course of the fifty
years which have since elapsed, this government would have
never gone into operation.
Suppose that this Constitution had said, in terms, after the
language of the court below, " All national sovereignty shall
belong to the United States ; all municipal sovereignty to the
several States." I will say that, however clear, however distinct,
such a definition may appear to those who use it, the employ-
ment of it in the Constitution could only have led to utter con-
fusion and uncertainty. I am not prepared to say that the
States have no national sovereignty. The laws of some of the
States, Maryland and Virginia, for instance, provide punish-
ment for treason. The power thus exercised is certainly not
municipal. Virginia has a law of alienage ; that is, a power ex'
VOL. vi. 11
L22 THE BANK OF THE UNITED STATES
ercised against a foreign nation. Does not the question neces*
sarily arise, when a power is exercised concerning an alien en-
emy, " Enemy to whom ? " The law of escheat, which exists in
many States, is also the exercise of a great sovereign power.
The term " sovereignty " does not occur in the Constitution
at all. The Constitution treats States as States, and the Unit-
ed States as the United States ; and, by a careful enumera-
tion, declares all the powers that are granted to the United
Slates, and all the rest are reserved to the States. If we pursue
to the extreme point the powers granted and the powers re-
served, the powers of the general and State governments will
be found, it is to be feared, impinging and in conflict. Our
hope is, that the prudence and patriotism of the States, and the
wisdom of this government, will prevent that catastrophe. For
myself, I will pursue the advice of the court in Deveaux's case ;
I will avoid nice metaphysical subtilties, and all useless theo-
ries ; I will keep my feet out of the traps of general definition ;
I will keep my feet out of all traps ; I will keep to things as
they are, and go no farther to inquire what they might be, if
they were not what they are. The States of this Union, as
States, are subject to all the voluntary and customary law of
nations.*
If, for the decision of any question, the proper rule is to be
found in the law of nations, that law adheres to the subject. It
follows the subject through, no matter into what place, high or
low. You cannot escape the law of nations in a case where it
is applicable. The air of every judicature is full of it. It per-
vades the courts of law of the highest character, and the court
of pie poudre ; ay, even the constable's court. It is part of the
universal law. It may share the glorious eulogy pronounced
by Hooker upon law itself, that there is nothing so high as to
be beyond the reach of its power, nothing so low as to be be-
neath its care. If any question be within the influence of the
law of nations, the law of nations is there. If the law of com-
ity does not exist between the States of this Union, how can
it exist between a State and the subjects of any foreign sover-
eignty ?
Upon all the consideration that I have given to the case, the
* Vattel, p. 61.
AGAINST WILLIAM D. PRIMROSE. 123
conclusion seems to me inevitable, that, if the law of comity do
not exist between the States of this Union, it cannot exist be-
tween the States individually and foreign powers. It is true, a
State cannot make a treaty ; she cannot be a party to a new
chapter on the law of nations ; but the law which prevails among
nations, the customary rule of judicature recognized by all na-
tions, binds her in all her courts.
I have heard no answer to another argument. If a contract
be made in New York, with the expectation that it is to be
there executed, and suit is brought upon it in Alabama, it is
to be decided by the law of the State in which the contract was
made. In a case now before this court, there has been a decis-
ion by the court of Alabama, in which that court has undertaken
to learn the law of the State of New York, and administer it in
Alabama. Why take notice in Alabama of the law of New
York ? Simply because there are cases in which the courts in
Alabama feel it to be their duty to administer that law, and to
enforce rights accordingly. That is the very point for which
we contend ; namely, the court in Alabama should have given
effect to rights exercised in that State by the plaintiff in the
present cause, under the authority of Pennsylvania, without
prejudice to the State of Alabama.
After all that has been said in argument about corporation?,
they are but forms of special partnership, in some of which the
partners are severally liable. The whole end and aim of most
of them, as with us, is to concentrate the means of small capi-
talists in a form in which they can be used to advantage.
In the Eastern States, manufactures too extensive for individ-
ual capital are carried on in this way. A large quantity of
goods is manufactured and sold to the South, out of cotton
bought in the South, to the amount of many millions in every
year. Upon the principle of the decision in the court be-
low, the manufacturers of the goods and the growers of the
cotton would be equally precluded from recovering their dues.
What will our fellow-citizens of the South say to this ? If, af-
ter we have got their cotton, they cannot get their money for it,
they will be in no great love, I think, with these new doctrines
about the comity of States and nations.
Again, look at the question as it regards the insurance offices,
flow ire all marine insurances, fire insurances, and life insur-
124 THE BANK OF THE UNITED STATES
ances effected in this country, but by the agency of companies
incorporated by the several States ? And the insurances made
by these companies beyond the limits of their particular States,
are they all void? I suppose that the insurances against fire
effected for companies at Hartford, in Connecticut, alone, by
agents all over the Northern Stares, may amount to an aggre-
gate of some millions of dollars. I remember a case occurring
in New Hampshire, of a suit against one of those companies
for the amount of an insurance, in which a recovery was had
against the company, and nothing was said, nor probably
thought, of such a contract of insurance being illegal, on the
ground that a corporation of Connecticut could not do an act or
make a contract in New Hampshire. Are those insurances all
to be held void, upon the principle of the decision from Alabama ?
And as to notes issued by banks ; if one in Alabama hold
the notes of a bank incorporated by Pennsylvania, are they
void? If one be robbed there of such notes, is it no theft? If
one counterfeit those notes there, is it no crime ? Are all such
notes mere nullities, when out of the State where issued ?
Reference has been made to statute-books to show cases
in which the States have forbidden foreign insurance compa-
nies from making insurances within their limits. But no such
prohibition has been shown against insurances by citizens of, or
companies created in, the different States. Is not this an exact
case for the application of the rule, Exceptio probat regulam ?
The fact of such prohibitory legislation shows that citizens of
other States have, and that citizens of foreign powers had, be-
fore they were excluded by law, the right to make insurances in
any and every one of the States.
I will next call the attention of the court to the deposit law,
passed by Congress on the 23d of Jane, 1836. It is one of the
conditions upon which, under that act, any State bank might
become a depository of the public money, that it should enter
into obligations " to render to the government all the duties and
services heretofore required by law to be performed by the late
Bank of the United States, and its several branches or offices " :
that is, to remit money to any part of the United States, trans-
fer it from one State to another, and perform other financial ser-
vices of this kind. But that act required, also, something more ;
AGAINST WILLIAM D. PRIMROSE. 125
and it shows how little versed we in Congress were (and I take
to myself my full share of the shame) in the legal obstacles to
the doing of acts in one State by corporations of other States.
The first section of that act provides, that, " in those States,
Territories, or Districts, in which there are no banks," the Secre-
tary of the Treasury "may make arrangement with a bank or
banks in some other State, Territory, or District, to establish
an agency or agencies in the States, Territories, or Districts so
destitute of banks, as banks of deposit." Here is an express
recognition by Congress of the power of a State bank to create
an agent for the purpose of dealing as a bank in another State
or Territory.
It has been said, that, as there is no obligation of comity, un-
der the law of nations, between the States, it remains for the
legislatures of the several States to adopt, in their conduct to-
wards each other, as much of the principle of comity as they
please. Here, then, there is to be negotiation between the States,
to determine how far they will observe this law of comity.
They are thus required to do precisely what they cannot do.
States cannot make treaties nor compacts. A State canno*
negotiate. It cannot even hold an Indian talk ! And now, 1
would ask how it happens,, at this time of the day, that this
court is called upon to make a decision contrary to the spirit
of the Constitution, and against the whole course of decisions in
this country and in Europe, and the undisputed practice under
this government for fifty years, overturning the law of com-
ity, and leaving it to the States each to establish a comity of
nations for itself
I shall now take leave of the question of the power of a cor-
poration created by one of the States to make contracts in an-
other, and proceed to consider whether there be any thing in
the laws or constitution of the State of Alabama which pre-
vents the agent of the Bank of the United States in that State
from making such a contract as that which is the foundation of
this suit.
It is said that the buying of a bill of exchange by such
agent is contrary to the policy of the State of Alabama ; and
this is inferred from the law establishing the Bank of Alabama;
that bank being authorized to deal in bills of exchange, and the
11*
126 THE BANK OF THE UNITED STATES
constitution of the State authorizing the establishment of no
more than one bank in the State.
This, however, is a violent inference from the premises.
How does the buying or selling bills of exchange in Alabama,
by another purchaser than the Bank of Alabama, infringe her
policy ? Because, it. is said, it diminishes the profits which she
derives from the dealings of the bank. Profit is her policy, it is
argued ; gain, her end. Is it against her policy for Mr. Biddle
to buy bills, because his bank is incorporated ; and not against
her policy for Mr. Girard to buy bills, because his is not incor-
porated ? Or how far does she carry this policy imputed to her?
Is no one to be allowed to buy or sell bills of exchange in Alabama
but a bank of her own, which may or may not be in credit, and
may or may not be solvent ? It would be strange indeed, were
any State in this Union to adopt such a policy as this. But
if the argument founded on this inferred policy of Alabama
amounts to any thing, it proves, not that incorporated citizens
of other States cannot buy or sell bills there, but that it is the
policy of Alabama to prevent other citizens from buying bills at
all in Alabama.
I think that there is no just foundation for the inference of
any such policy on the part of the State of Alabama. By re-
ferring to Aikin's Digest of the laws of that State, it will be
found that she has carried her policy but little further than mere-
ly establishing a bank. Her public officers are authorized to
receive the notes of banks of other States in payment of dues to
her; and she has enacted laws to punish the forgery of notes of
other banks. Now, taking her acts together, considering them
as a whole, the inference which has been drawn from her estab-
lishment of a State bank under her constitution is certainly not
sustained.
To consider this argument, however, more closely. It is
assumed by it, first, that the State meant, by her legislation, to
take to herself all the profits of banking within her territorial
limits ; and secondly, that the act of buying and selling a bill
of exchange belongs to banking.
The profits of banking are derived more from circulation than
from exchange. If the State meant, through her bank policy,
to take all the profits of banking, why has she not taken all
the ptofits of circulation ? Not only she has done no such
AGAINST WILLIAM D. PRIMROSE. 127
thing, but she protects the circulation of the notes of banks of
other States.
I now beg to ask the particular attention of the court to thia
question : What is banking ?
Alabama, in reference to banking, has done nothing but es-
tablish a bank, and give it the usual banking powers. And
when the learned counsel on the other side speak of banking,
what do they mean by it ? A bank deals in exchange, and it
buys or builds houses also; so do individuals. If there be any
thing peculiar in these acts by a bank, it must be, not in the na-
ture of the acts individually, but in the aggregate of the whole.
What constitutes banking must be something peculiar. There
are various acts of legislation by different States in this coun-
try, for granting or preventing the exercise of banking privileges.
But has any law ever been passed to authorize or to prevent the
buying by an individual of a bill of exchange? No one has ev-
er heard of such a thing. The laws to restrain banking have all
been directed to one end ; that is, to repress the unauthorized
circulation of paper money. There are various other functions
performed by banks ; but, in discharging all these, they only do
what unincorporated individuals do.
What is that, then, without which any institution is not a
bank, and with which it is a bank? It is a power to issue
promissory notes with a view to their circulation as money.
Our ideas of banking have been derived principally from the
act constituting the first Bank of the United States, the organ-
ization and powers of which were imitated from the Bank of
England.*
The project of the Bank of England was conceived by Mr.
Paterson, a Scotch gentleman, who had travelled much abroad,
and had seen somewhere (I believe in Lombardy) a small bank
which issued tickets or promises of payment of money. From
this he took the idea of a bank of circulation. That was in
1694. At that time, neither inland bills nor promissory notes were
negotiable or transferable, so as to enable the holder to bring
suit thereon in his own name. There was no negotiable paper,
* To ascertain the character and peculiar functions of the Bank of England,
Mr. Webster here referred, and referred the court, to various authorities ; to Mc-
Culloch's Commercial Dictionary; to Smollett's Continuation of Hume's Eng-
land; to Godfrey's History of the Bank of England, in Lord Somers's Tracts,
Vol. XI. art. 1 ; to Anderson's History of Commerce, and some other authorities
128 THE BANK OF THE UNITED STATES
except foreign bills of exchange. Mr. Paterson's conception
was, that the notes of the Bank of England should be negotia-
ble toties quoties, or transferable from hand to hand, payable at
the bank in specie, either on demand, or at very short sight.
This conception had complete success, because there was then
no other inland paper, either bills or notes, which was nego-
tiable. The whole field was occupied by Bank of England
notes.
In 1698, inland bills were made negotiable by act of Parlia-
ment; and in the fourth year of Queen Anne's reign, promissory
notes were made negotiable. Of course, after this, every body
might issue promissory notes ; and where they had credit
enough, these might circulate as money. There is not much
of novelty in the inventions of mankind. Under this state of
things, that took place in England which we have seen so often
take place among us, and which we have put to the account of
modern contrivance. Large companies were formed, with heavy
amounts of capital, for purposes not professedly banking ; one,
especially, to carry on the mining business on a large scale.
These companies issued promissory notes, payable on demand,
and these notes readily got into circulation as cash, to the preju-
dice of the circulation of the Bank of England. But, Parlia-
ment being at this time in great want of ready money for the
expenditures of the war on the Continent, the bank proposed to
double its capital, and to lend this new half of it to government,
if the government would secure to the bank an exclusive circu-
lation of its notes. The statute of the 6th of Anne, chapter 22,
was accordingly passed ; which recites that other persons and
divers corporations have presumed to borrow money, and to
deal as a bank, contrary to former acts; and thereupon it is en-
acted, that " no corporation, or more than six persons in partner-
ship, shall borrow, owe, or take up any money on their bills and
notes, payable at demand, or at less than six months from the
borrowing." This provision has been often reenacted, and consti-
tutes the banking privilege of the Bank of England. Competition
was not feared from the circulation of individual notes. Hence
individuals, or partnerships of not more than six persons, have
been at liberty to issue small notes, payable on demand; in
other words, notes for circulation. And we know that, in the
counhy, such notes have extensively circulated ; but private
AGAINST WILLIAM D . PRIMROSE. 129
bankers in London, in the neighborhood of the banK, though it
was lawful, have not found it useful to issue their own notes.
The banking privilege of the Bank of England accordingly con-
sisted simply in the privilege of issui ng notes for circulation
while that privilege was forbidden by law to all other corpora
lions and all large partnerships and associations.
This privilege was restrained in 1826, so as not to prohibit
banking companies except within the distance of sixty-five
miles of London ; and, at the same time, notes of the bank
were made a tender in payment of all debts, except by the bank
itself. This provision may be considered as a new privilege;
but it does not belong to the original and essential idea of
banking. Mr. McCulloch remarks, and truly, that all that gov
ernment has properly to do with banks is only so far as they
are banks of issue. Upon the same principle, the banks of
other countries of Europe are incorporated, with the privilege
to issue and circulate notes as their distinctive character.*
Now, how is it in our own country ? When our State legis-
latures have undertaken to restrain banking, the great end in
view has been to prevent the circulation of notes. I may on
this point refer to the statute-books of Massachusetts, Maine,
Rhode Island, and New Hampshire, for restraining unauthor-
ized companies from issuing notes of circulation. Not unlike
is the statute of Ohio, imposing a punishment for unauthorized
banking. Her law defines, in the first place, what constitutes a
bank, namely, the issuing of notes which pass by delivery, and
which are intended for circulation as cash. That is the true
definition of a bank, as we understand it in this country. I
would also refer to the laws of other States, Maryland, New
Jersey, Missouri, Pennsylvania, Delaware, North Carolina,
South Carolina, Virginia, Georgia, all to the same effect.
The law of the State of Alabama herself is much more impor-
tant, in this view of the case, than that of any other State.
The constitution of the State of Alabama was established in
1819 ; the law creating the Bank of Alabama was passed in
1823. The constitution and this law are all the authorities
from which the inference has been drawn as to the policy of
the State of Alabama. Did she suppose that, by this law, she
* Here Mr. Webster explained the character of the tnnks of France, Belgium,
and some other countries.
130 THE BANK OF THE UNITED STATES
was establishing such a monopoly of the purchase of bills of
exchange as has been contended for in this case ? Certainly
not. For, by a law passed afterwards, she restrained the circu-
lation of unauthorized bank-notes ; that is, notes not issued by
some authorized bank. But did she also restrain dealings in
exchange ? She did no such thing. Nor is there any thing
eilher in the constitution or the laws of the State of Alabama
which shows that by banking she ever meant more than the cir-
culation of bills as currency. There is nothing, therefore, in any
law or any policy of Alabama against the purchase of bills of
exchange by others as well as by the Bank of Alabama. She
has prohibited by law other transactions, which are clearly
banking transactions ; but she has not touched this. If even
her banking policy includes as well buying exchange as circu-
lation, and she guards against competition in the one and
leaves the other open, who can say, in the face of such evi-
dence, that it is her policy to guard against what she leaves
free and unrestrained ?
Is there any thing in the constitution, or any ground in the
legislation of Alabama, to sustain the allegation which has
been made of her policy ? If not, is the existence of such a
policy to be established here by construction, and that construc-
tion far-fetched ?
And here I rest my argument on this case, which has been
discussed by others so ably, as not to justify my occupying the
time of the court by going further into it.
The learned counsel on the other side, in the course of his
argument of yesterday, alluded to the newspapers, which, he
said, had treated the decision of the court below scornfully. I
was sorry to hear it; for the learned judge has acted, in his de-
cision, I have no doubt, under a high sense of duty. I have
been told, but I have not seen it, that a press in this city, since
this case has been under consideration in this court, has under-
taken to speak, in a tone somewhat approaching to that of com-
mand, of the decision upon it to be expected from this court.
Such conduct is certainly highly discreditable to the character
of the country, as well as disrespectful and injurious to the
court.
A learned gentleman on the other side said, the other day,
AGAINST WILLIAM D. PRIMROSE. 131
that he thought he might regard himself, in this cause, as hav-
ing the country for his client. He only meant, doubtless, to
express a strong opinion, that the welfare of the country re-
quired the case to be decided in his favor. I agree with the
learned gentleman, and I go, indeed, far beyond him in my es-
timate of the importance of this case to the country. He did
not take pains to show the extent of the evil which would result
from undoing the vast number of contracts which would be
affected by the affirmation here of the judgment rendered in the
court below, because his object did not require that; his object
was to diminish the prospect of mischief, not to enlarge it.
For myself, I see neither limit nor end to the calamitous conse-
quences of such a decision. I do not know where it would not
reach, what interests it would not disturb, or how any part of
the commercial system of the country would be free from its in-
fluences, direct or remote. And for what end is all this to be
done? What practical evil calls for so harsh, not to say so
rash, a remedy ? And why now, when existing systems and
established opinions, when both the law and the public senti-
ment, have concurred in what has been found, practically, so
safe and so useful; why now, and why here, seek to introduce
new and portentous doctrines? If I were called upon to
say what has struck me as most remarkable and wonderful
in this whole case, I would, instead of indulging in expletives,
exaggerations, or exclamations, put it down as the most extra-
ordinary circumstance, that now, within a# short month of the
expiration of the first half-century of our existence under this
Constitution, such a question should be made ; that now, for
the first time, and here, the last place on earth where they
might be expected, such doctrines as have been heard in its
support should be. brought forward. With all the respect
which I really entertain for the court below, and for the argu-
ments which have been delivered here, I must say that, in my
judgment, the decision now under revision by this court is, in
its principle, anti-commercial and anti-social, new and unheard
of in our system, and calculated to break up the harmony
which has so long prevailed among the States and people of
this Union.
It is not, however, for the learned gentlemen "nor for myself
to say here that we speak for the country. We advance our
132 THE UNITED STATES BANK AGAINST PRIMROSE.
sentiments and our arguments, but they are without authority.
It is for you, Messrs. Chief Justice and Judges, on this as on
other occasions of high importance, to speak and decide for the
country. The guardianship of her commercial interests; the
preservation of the harmonious intercourse of all her citizens;
the fulfilling in this respect of the great object of the Constitu-
tion, are in your hands ; and I am not to doubt that the trust
will be so performed as to sustain at once high (rational objects
and the character of this tribunal.
THE CHRISTIAN MINISTRY AND THE HELIG'
IOUS INSTRUCTION OF THE YOUNG.*
INTRODUCTORY NOTE.
The heirs at law of the late Stephen Girard, of Philadelphia, institut-
ed a suit in October, 1836, in the Circuit Court of the Eastern District
of Pennsylvania, sitting as a court of equity, to try the question of the
validity of his will. In April, 1841, the cause came on for hearing in
the Circuit Court, and was decided in favor of the will. The case was
carried by appeal to the Supreme Court of the United States, at Wash-
ington, where it was argued by General Jones and Mr. Webster for the
complainants and appellants, and by Messrs Binney and Sergeant for
the validity of the will.
The following speech was made by Mr. Webster in the course of the
trial at Washington. A deep impression was produced upon the public
mind by those portions of it which enforced the intimate connection of
the Christian ministry with the business of instruction, and the necessity
of founding education on a religious basis.
This impression resulted in the following correspondence : —
" Washington, February 13, 1844.
" Sir : Inclosed is a copy of certain proceedings of a meeting held
in reference to your argument in the Supreme Court of the case arising
out of the late Mr. Girard's will. In communicating to you the request
contained in the second resolution, we take leave to express our earnest
hope that you may find it convenient to comply with that request.
" We. are, Sir, with high consideration, yours, very respectfully,
P. R. FENDALL,
HORACE STRINGFELLOW,
JOSHUA N. DANFORTH,
R R. GURLEY, I Cnmmitlpp
WILLIAM RUGGLES, f ^VUimilltV.
joel s. bacon,
thomas sewall, i
william b. edwards, j
•* Hon. Daniel Webster."
* A Speech delivered in the Supreme Court at Washington, on the 20th of
February, 1844, in the case of Francois Fenelon Vidal, John F. Girard, and oth-
ers, Complainants and Appellants, against The Mayor, Aldermen, and Citizens
of Philadelphia, the Executors of Stephen Girard, and others, Defendants.
VOL. VI. 12
1.34 THE CHRISTIAN MINISTRY
46 At a meeting of a number of citizens, belonging to different relig«
ious denominations, of Washington and its vicinity, convened to consider
the expediency of procuring the publication of so much of Mr. Webster's
argument before the Supreme Court of the United States, in the case of
Francois F. Vidal et al., Appellants, v. The Mayor, Aldermen, and Citi-
zens of Philadelphia, and Stephen Girard's Executors, as relates to that
part of Mr. Girard's will which excludes ministers of religion from any
station or duty in the college directed by the testator to be founded,
and denies to them the right of visiting said college ; the object of the
meeting having been stated by Professor Sewall in a few appropriate re-
marks, the Hon. Henry L. Ellsworth was elected chairman, and the
Rev. Isaac S. Tinsley secretary.
" Whereupon it was, on motion, unanimously resolved,
" 1st. That, in the opinion of this meeting, the powerful and eloquent
argument of Mr. Webster, on the before-mentioned clause of Mr. Gi-
rard's will, demonstrates the vital importance of Christianity to the suc-
cess of our free institutions, and its necessity as the basis of all useful
moral education ; and that the general diffusion of that argument among
the people of the United States is a matter of deep public interest.
" 2d. That a committee of eight persons, of the several Christian de-
nominations represented in this meeting, be appointed to wait on Mr.
Webster, and, in the name and on behalf of this meeting, to request him
to prepare for the press the portion referred to of his argument in the
Girard case; and, should he consent to do so, to cause it to be speedily
published and extensively disseminated.
" The following gentlemen were appointed the committee under the
second resolution : Philip R. Fendall, Esq., Rev. Horace Stringfellow,
Rev. Joshua N. Danforth, Rev. R. Randolph Gurley, Professor William
Ruggles, Rev. President J. S. Bacon, Doctor Thomas Sewall, Rev. Wil-
liam B. Edwards.
" The meeting then adjourned.
" H. L. Ellsworth, Chairman.
"Isaac S. Tinsley, Secretary."
" Washington, February 13, 1844.
" Gentlemen : I have the honor to acknowledge the receipt of your
communication. Gentlemen connected with the public press have, I be-
lieve, reported my speech in the case arising under Mr. Girard's will. I
will look over the report of that part of it to which you refer, so far as
to see that it is free from material errors, but I have not leisure so to re-
vise it as to give it the form of a careful or regular composition.
" I am, Gentlemen, with very true regard, your obedient servant,
" Daniel Webster.
" To Messrs. P. R. Fendall,
Horace Stringfellow,
Joshua N. Danforth,
R. R. Gurley,
William Ruggles,
Joel S. Bacon,
Thomas Sewall,
William B. Edwards.''*
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 135
The following mottoes were prefixed to this speech, in the original
pamphlet edition.
" Socrates. If. then, you wish public measures to be right and noble, virtue must b<}
given by you to the citizens.
" Alcibiades. How could any one deny that ?
" Socrates. Virtue, therefore, is that which is to be first possessed, both by you and by
every other person who would have direction and care, not only for himself and things
dear to himself, but for the state and things dear to the state.
" Alcibiades. You speak truly.
" Socrates. To act justly and wisely (both you and the state), you must act ac-
cording TO THE WILL OF GOD.
" Alcibiades. It is so." Plato.
" Sic igitur hoc a principio persuasum civibus, dominos esse omnium rerum ac
moderatores, deos." — Cicero de Legibus.
" We shall never be such fools as to call in an enemy to the substance of any sys-
tem, to supply its defects, or to perfect its construction."
" If our religious tenets should ever want a further elucidation, we shall not call
on atheism to explain them. We shall not light up our temple from that unhal-
lowed fire."
M We know, and it is our pride to know, that man is, by his constitution, a religious
animal." — Burke.
May it please your Honors :
It is not necessary for me to narrate, in detail, the. numer-
ous provisions of Mr. Girard's will. This has already been re-
peatedly done by other counsel, and I shall content myself
with stating and considering those parts only which are im-
mediately involved in the decision of this cause.
The will is drawn with apparent care and method, and is reg-
ularly divided into clauses. The first nineteen clauses contain
various devises and legacies to relatives, to other private individ-
uals, and to public bodies. By the twentieth clause the whole
residue of his estate, real and personal, is devised and bequeathed
to the " mayor, aldermen, and citizens of Philadelphia," in trust
for the several uses to be after mentioned and declared.
The twenty-first clause contains the devise or bequest to the
college, in these words : —
" And so far as regards the residue of my personal estate in trust, as
to two millions of dollars, part thereof, to apply and expend so much ot
that sum as may be necessary in erecting, as soon as practicably may
be, in the centre of my square of ground, between High and Chestnut
Streets, and Eleventh and Twelfth Streets, in the city of Philadelphia,
136 THE CHRISTIAN MINISTRY
(which square of ground I hereby devote for the purpose hereinafter
stated, and for no other, for ever,) a permanent college, with suitable
out-buildings sufficiently spacious for the residence and accommodation
of at least three hundred scholars, and the requisite teachers and other
persons necessary in such an institution as I direct to be established, and
in supplying the said college and out-buildings with decent and suitable
furniture, as well as books, and all things needful to carry into effect
my general design."
The testator then proceeds to direct that the college shall be
constructed of the most durable materials, avoiding needless
ornament, and attending chiefly to the strength, convenience,
and neatness of the whole ; and gives directions, very much in
detail, respecting the form of the building, and the size and
fashion of the rooms. The whole square, he directs, shall be
inclosed with a solid wall, at least fourteen inches thick and ten
feet high, capped with marble, and guarded with irons on the
top, so as to prevent persons from getting over; and there are to
be two places of entrance into the square, with two gates at
each, one opening inward and the other outward, those opening
inward to be of iron, and those opening outward to be of wood-
work, lined with sheet-iron.
The testator then proceeds to give his directions respecting
the institution, laying down his plan and objects in several arti-
cles. The third article is in these words : —
" 3. As many poor white male orphans, between the ages of six and
ten years, as the said income shall be adequate to maintain, shall be in-
troduced into the college as soon as possible ; and from time to time, as
there may be vacancies, or as increased ability from income may war-
rant, others shall be introduced."
The fifth direction is as follows : —
" 5. No orphan should be admitted until the guardians, or directors of
the poor, or a proper guardian or other competent authority, shall have
given, by indenture, relinquishment, or otherwise, adequate power to the
mayor, aldermen, and citizens of Philadelphia, or to directors or others
by them appointed, to enforce, in relation to each orphan, every proper
restraint, and to prevent relations or others from interfering with or with-
drawing such orphan from the institution."
By the sixth article, or direction, preference is to be given, first,
to orphans born in Philadelphia; second, to those born in other
parts of Pennsylvania; third, to those born in the city of New
York ; and, lastly, to those born in the city of New Orleans.
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 137
By the seventh article, it is declared, that the orphans shall be
lodged, fed, and clothed in the college ; that they shall be instruct-
ed in the various branches of a sound education, comprehending
reading, writing, grammar, arithmetic, geography, navigation,
surveying, practical mathematics, astronomy, natural, chemical,
and experimental philosophy, and the French and Spanish lan-
guages, and such other learning and science as the capacities of
the scholars may merit or want. The Greek and Latin lan-
guages are not forbidden, but are not recommended.
By the ninth article it is declared, that the boys shall remain
in the college till they arrive at between fourteen and eighteen
years of age, when they shall be bound out by the city govern-
ment to suitable occupations, such as agriculture, navigation,
and the mechanical trades.
The testator proceeds to say, that he necessarily leaves many
details to the city government; and then adds, " There are, how-
ever, some restrictions which I consider it my duty to prescribe,
and to be, amongst others, conditions on which my bequest for
said college is made, and to be enjoyed."
The second of these restrictions is in the following words : —
" Secondly. I enjoin and require that no ecclesiastic, missionary, or
minister, of any sect whatever, shall ever hold or exercise any station or
duty whatever in the said college ; nor shall any such person ever be
admitted for any purpose, or as a visitor, within the premises appropri-
ated to the purposes of the said college.
" In making this restriction, I do not mean to cast any reflection upon
any sect or person whatsoever ; but, as there is such a diversity of opin-
ion amongst them, I desire to keep the tender minds of the orphans
who are to derive advantage from this bequest free from the excite-
ment which clashing doctrines and sectarian controversy are so apt to
produce ; my desire is, that all the instructors and teachers in the col-
lege shall take pains to instil into the minds of the scholars the purest
principles of morality, so that on their entrance into active life they
rrmy, from inclination and habit, evince benevolence towards their fel-
low-creatures, and a love of truth, sobriety, and industry, adopting at
the same time such religious tenets as their matured reason may enable
them to prefer."
The testator having, after the date of his will, bought a house
in Penn Township, with forty-five acres of land, he made a codi-
cil, by which he directed the college to be built on this estate,
instead of the square mentioned in the will, and the whole
12*
138 THE CHRISTIAN MINISTRY
establishment to be made thereon, just as if he had in his will
devoted the estate to that purpose. The city government haa
accordingly been advised that the whole forty-five acres must be
inclosed with the same high wall, as was provided in the will
for the square in the city.
I have now stated, I believe, all the provisions of the will
which are material to the discussion of that part of the case
which respects the character of the institution.
The first question is, whether this devise can be sustained,
otherwise than as a charity, and by that special aid and assist-
ance by which courts of equity support gifts to charitable uses
If the devise be a good limitation at law, if it require no ex-
ercise of the favor which is bestowed on privileged testaments,
then there is already an end to the question. But I take it that
this point is conceded. The devise is void, according to the
general rules of law, on account of the uncertainty in the de-
scription of those who are intended to receive its benefits.
" Poor white male orphan children " is so loose a description,
that no one can bring himself within the terms of the bequest,
so as to say that it was made in his favor. No individual can ac-
quire any right or interest ; nobody, therefore, can come forward
as a party, in a court of law, to claim participation in the gift.
The bequest must stand, if it stand at all, on the peculiar rules
which equitable jurisprudence applies to charities. This is clear.
I proceed, therefore, to submit, and most conscientiously to
argue, a question, certainly one of the highest which this court
has ever been called upon to consider, and one of the highest,
and most important, in my opinion, ever likely to come before it.
That question is, whether, in the eye of equitable jurisprudence,
this devise be a charity at all. I deny that it is so. I maintain,
that neither by judicial decisions nor by correct reasoning on
general principles can this devise or bequest be regarded as a
charity. This part of the argument is not affected by the par-
ticular judicial system of Pennsylvania, or the question of the
power of her courts to uphold and administer charitable gifts.
The question which I now propose respects the inherent, essen-
tial, and manifest character of the devise itself. In this respect,
I wish to express myself clearly, and to be correctly and distinctly
understood. What I have said I shall stand by, and endeavor
to maintain; namely, that in the view of a court of equity
AMD THE RELIGIOUS INSTRUCTION OF THE YOUNG. 139
this devise is no charity at all. It is no charity, because the
plan of education proposed by Mr. Girard is derogatory to the
Christian religion ; tends to weaken men's reverence for that
religion, and their conviction of its authority and importance;
and therefore, in its general character, tends to mischievous, and
not to useful ends.
The proposed school is to be founded on plain and clear
principles, and for plain and clear objects, of infidelity. This
cannot well be doubted ; and a gift, or devise, for such objects
is not a charity, and as such entitled to the well-known favor
with which charities are received and upheld by the courts of
Christian countries.
In the next place, the object of this bequest is against the
public policy of the State of Pennsylvania, in which State
Christianity is declared to be the law of the land. For that
reason, therefore, as well as the other, the devise ought not to
be allowed to take effect.
These are the two propositions which it is my purpose to
maintain, on this part of the case.
This scheme of instruction begins by attempting to attach
reproach and odium to the whole clergy of the country. It
places a brand, a stigma, on every individual member of the
profession, without an exception. No minister of the Gospel,
of any denomination, is to be allowed to come within the
grounds belonging to this school, on any occasion, or for any
purpose whatever. They are all rigorously excluded, as if their
mere presence might cause pestilence. We have heard it said
that Mr. Girard, by this will, distributed his charity without dis-
tinction of sect or party. However that may be, Sir, he cer-
tainly has dealt out opprobrium to the whole profession of the.
clergy, without regard to sect or party.
By this will, no minister of the Gospel of any sect or denomi-
nation whatever can be authorized or allowed to hold any office
within the college ;' and not only that, but no minister or clergy-
man of any sect can, for any purpose whatever, enter within
the walls that are to surround this college. If a clergyman has
a sick nephew, or a sick grandson, he cannot, upon any pre-
text, be allowed to visit him within the walls of the college.
The provision of the will is express and decisive. Still less
may a clergyman enter to offer consolation to the sick, or to
unite in prayer with the dying.
140 THE CHRISTIAN MINISTRY
Now, I will not arraign Mr. Girard or his motives for this. I
will not inquire into Mr. Girard's opinions upon religion. But
I feel bound to say, the occasion demands that I should say-
that this is the most opprobrious, the most insulting and un-
merited stigma, that ever was cast, or attempted to be cast,
upon the preachers of Christianity, from north to south, from
east to west, through the length and breadth of the land, in the
history of the country. When have they deserved it ? Where
have they deserved it? How have they deserved it? They
are not to be allowed even the ordinary rights of hospitality ;
not even to be permitted to put their foot over the threshold of
this college !
Sir, I take it upon myself to say, that in no country in the
world, upon either continent, can there be found a body of min-
isters of the Gospel who perform so much service to man, in
such a full spirit of self-denial, under so little encouragement
from government of any kind, and under circumstances almost
always much straitened and often distressed, as the ministers
of the Gospel in the United States, of all denominations. They
form no part of any established order of religion ; they consti-
tute no- hierarchy ; they enjoy no peculiar privileges. In some of
the States they are even shut out from all participation in the
political rights and privileges enjoyed by their fellow-citizens.
They enjoy no tithes, no public provision of any kind. Except
here and there, in large cities, where a wealthy individual occa-
sionally makes a donation for the support of public worship,
what have they to depend upon? They have to depend en-
tirely on the voluntary contributions of those who hear them.
And this body of clergymen has shown, to the honor of their
own country and to the astonishment of the hierarchies of the
Old World, that it is practicable in free governments to raise
and sustain by voluntary contributions alone a body of clergy
men, which, for devotedness to their sacred calling, for purity of
life and character, for learning, intelligence, piety, and that wis-
dom which cometh from above, is inferior to none, and supe-
rior to most others.
1 hope that our learned men have done something for the
honor of our literature abroad. I hope that the courts of justice
and members of the bar of this country have done something
to elevate the character of the profession of the law. I hope
that toe discussions above (in Congress) have done something
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 141
to meliorate the condition of the human race, to secure and ex-
tend the great charter of human rights, and to strengthen and
advance the great principles of human liberty. But I contend
that no literary efforts, no adjudications, no constitutional dis-
cussions, nothing that has been done or said in favor of the
great interests of universal man, has done this country more
credit, at home and abroad, than the establishment of our body
of clergymen, their support by voluntary contributions, and the
general excellence of their character for piety and learning.
The great truth has thus been proclaimed and proved, a truth
which I believe will in time to come shake all the hierarchies
of Europe, that the voluntary support of such a ministry, un-
der free institutions, is a practicable idea.
And yet every one of these, the Christian ministers of the Unit-
ed States, is by this devise denied the privileges which are at
the same time open to the vilest of our race ; every one is shut
out from this, I had almost said, sanctum, but I will not pro-
fane that word by such a use of it.
Did a man ever live that had a respect for the Christian religion,
and yet had no regard for any one of its ministers ? Did that sys-
tem of instruction ever exist, which denounced the whole body of
Christian teachers, and yet called itself a system of Christianity ?
The learned counsel on the other side see the weak points
of this case. They are not blind. They have, with the aid of
their great learning, industry, and research, gone back to the
time of Constantine, they have searched the history of the Ro-
man emperors, the Dark Ages, and the intervening period, down
to the settlement of these colonies ; they have explored every
nook and corner of religious and Christian history, to find out
the various meanings and uses of Christian charity ; and yet,
with all their skill and all their research, they have not been
able to discover any thing which has ever been regarded as a
Christian charity, that sets such an opprobrium upon the fore-
head of all its ministers. If, with all their endeavors, they can
find any one thing which has been so regarded, they may have
their college, and make the most of it. But the thing does not
exist ; it never had a being ; history does not record it, common
sense revolts at it. It certainly is not necessary for me to make
an ecclesiastical argument in favor of this proposition. The
thing is so plain, that it must instantly commend itself to your
honors.
142 THE CHRISTIAN MINISTRY
It has been said that Mr. Girard was charitable. I am not
now going to controvert this. I hope he was. I hope he has
found his reward. It has also been asked, " Cannot Mr. Girard
be allowed to have his own will, to devise his property according
to his own desire ? " Certainly he can, in any legal devise, and
the law will sustain him therein. But it is not for him to over-
turn the law of the land. The law cannot be altered to please
Mr. Girard. He found that out, I believe, in two or three in-
stances in his lifetime. Nor can the law be altered on account
of the magnitude and munificence of the bounty. What is the
value of that bounty, however great or munificent, which touch-
es the very foundations of human society, which touches the
very foundations of Christian charity, which touches the very
foundations of public law, and the Constitution, and the whole
welfare of the state?
And now, let me ask, What is, in contemplation of law, " a
charity"? The word has various significations. In the larger
and broader sense, it means the kindly exercise of the social af-
fections, all the good feelings which man entertains towards
man. Charity is love. This is that charity of which St. Paul
speaks, that charity which covereth the sins of men, " that
suffereth all things, hopeth all things." In a more popular sense,
charity is alms-giving or active benevolence.
But the question for your honors to decide here is, What is a
charity, or a charitable use, in contemplation of law? To answer
this inquiry, we are generally referred to the objects enumerated
in the 43d of Elizabeth. The objects enumerated in that stat-
ute, and others analogous to them, are charities in the sense of
equitable jurisprudence.
There is no doubt that a school of learning is a charity. It is
one of those mentioned in the statutes. Such a school of learn-
ing as was contemplated by the statutes of Elizabeth is a char-
ity ; and all such have borne that name and character to this
day. I mean to confine myself to that description of charity,
the statute charity, and to apply it to this case alone.
The devise before us proposes to establish, as its main object,
a school of learning, a college. There are provisions, of course
for lodging, clothing, and feeding the pupils, but all this is sub-
sidiary. The great object is the instruction of the young ;
although it proposes to give the children better food and clothes
and lodging, and proposes that the system of education shall be
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 143
somewhat better than that which is usually provided for the
poor and destitute in our public institutions generally.
The main object, then, is to establish a school of learning for
children, beginning with them at a very tender age, and retain-
ing them (namely, from six years to eighteen) till they are on the
verge of manhood, when they will have expended more than one
third part of the average duration of human life. For if the col-
lege takes them at six, and keeps them till they are eighteen, a
period of twelve years will be passed within its walls ; more
than a third part of the average of human life. These chil-
dren, then, are to be taken almost before they learn their alpha-
bet, and be discharged about the time that men enter on the
active business of life. At six, many do not know their alpha-
bet. John Wesley did not know a letter till after he was six
years old, and his mother then took him on her lap, and taught
him his alphabet at a single lesson. There are many parents
who think that any attempt to instil the rudiments of education
into the mind of a child at an earlier age, is little better than
labor thrown away.
The great object, then, which Mr. Girard seemed to have in
view, was to take these orphans at this very tender age, and to
keep them within his walls until they were entering manhood.
And this object I pray your honors steadily to bear in mind.
I never, in the whole course of my life, listened to any thing
with more sincere delight, than to the remarks of my learned
friend who opened this cause, on the nature and character of
true charity. I agree with every word he said on that subject.
I almost envy him his power of expressing so happily what his
mind conceives so clearly and correctly. He is right when he
speaks of it as an emanation from the Christian religion. He is
right when he says that it has its origin in the word of God.
He is right when he says that it was unknown throughout all
the world till the first dawn of Christianity. He is right, pre-
eminently right, in all this, as he was preeminently happy in
his power of clothing his thoughts and feelings in appropriate
forms of speech. And I maintain, that, in any institution for
the instruction of youth, where the authority of God is dis-
owned, and the duties of Christianity derided and despised, and
its ministers shut out from all participation in its proceedings,
there can no more be charity, true charity, found to exist, than
evil can spring out of the Bible, error out of truth, or hatred
144 THE CHRISTIAN MINISTRY
and animosity come forth from the bosom of perfect love.
No, Sir! No, Sir! If charity denies its birth and parentage,
if it turns infidel to the great doctrines of the Christian religion,
if it turns unbeliever, it is no longer charity ! There is no
longer charity, either in a Christian sense or in the sense of ju-
risprudence ; for it separates itself from the fountain of its own
creation.
There is nothing in the history of the Christian religion ;
there is nothing in the history of English law, either before or
after the Conquest ; there can be found no such thing as a
school of instruction in a Christian land, from which the Chris-
tian religion has been, of intent and purpose, rigorously and
opprobriously excluded, and yet such school regarded as a char-
itable trust or foundation. This is the first instance on record.
I do not say that there may not be charity schools in which
religious instruction is not provided. I need not go that length,
although I take that to be the rule of the English law. But
what I do say, and repeat, is, that a school for the instruction
of the young, which sedulously and reproachfully excludes Chris-
tian knowledge, is no charity, either on principle or authority,
and is not, therefore, entitled to the character of a charity in a
court of equity. I have considered this proposition, and am
ready to stand by it.
I will not say that there may not be a charity for instruction,
in which there is no positive provision for the Christian religion.
But I do say, and do insist, that there is no such thing in the
history of religion, no such thing in the history of human law,
as a charity, a school of instruction for children, from which the
Christian religion and Christian teachers are excluded, as unsafe
and unworthy intruders. Such a scheme is deprived of that
which enters into the very essence of human benevolence, when
that benevolence contemplates instruction, that is to say, re-
ligious knowledge, connected with human knowledge. It is
this which causes it to be regarded as a charity; and by reason
of this it is entitled to the special favor of the courts of law
This is the vital question which must be decided by this court.
It is vital to the understanding of what the law is, it is vital to
the validity of this devise.
If this be true, if there can be no charity in that plan of edu-
cation which opposes Christianity, then that goes far to decide
this case. I take it that this court, in looking at this subject,
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 145
will see the important bearing of this point upon it The learned
counsel said that the State of Pennsylvania was nut an infidel
State. It is true that she is not an infidel State. She has a
Christian origin, a Christian code of laws, a system of legisla-
tion founded on nothing else, in many of its important bearings
upon human society, than the belief of the people of Pennsylva-
nia, their firm and sincere belief, in the divine authority and
great importance of the truths of the Christian religion. And
she should the more carefully seek to preserve them pure.
Now, let us look at the condition and prospects of these ten-
der children, who are to be submitted to this experiment of
instruction without Christianity. In the first place, they are
orphans, have no parents to guide or instruct them in the way
in which they should go, no father, no religious mother, to lead
them to the pure fount of Christianity ; they are orphans. If
they were only poor, there might be somebody bound by ties of
human affection to look after their spiritual welfare ; to see that
they imbibed no erroneous opinions on the subject of religion ;
that they run into no excessive improprieties of belief as well as
conduct. The child would have its father or mother to teach it
to lisp the name of its Creator in prayer, or hymn His praise.
But in this experimental school of instruction, if the orphans
have any friends or connections able to look after their welfare,
it shuts them out. It is made the duty of the governors of the
institution, on taking the child, so to make out the indentures
of apprenticeship as to keep him from any after interference in
his welfare on the part of guardians or relatives ; to keep them
from withdrawing him from the school, or interfering with his
instruction whilst he is in the school, in any manner whatever.
The school or college is to be surrounded by high walls ; there
are to be two gates in these walls, and no more ; they are to be
of iron within, and iron bound or covered without ; thus answer-
ing more to the description of a castle than a school-house.
The children are to be thus guarded for twelve years in this, I
do not mean to say a prison, nor do I mean to say that this
is exactly close confinement ; but it is much closer confinement
than ordinarily is met with, under the rales of any institution
at present, and has a resemblance to the monastic institutions
of past ages, rather than to any school for instruction at this pe-
riod, at least in this country.
vol. vi. 13
J 16 THE CHRISTIAN MINISTRY
All is to be within one great inclosure ; all that is done for
the bodily or mental welfare of the child is to be done within
this great wall. It has been said that the children could attend
public worship elsewhere. Where is the proof of this ? There
is no such provision in the devise ; there is nothing said about
it in any part of Mr. Girard's will ; and I shall show presently
that any such thing would be just as adverse to Mr. Girard's
whole scheme, as it would be that the doctrines of Christianity
should be preached within the walls of the college.
These children, then, are taken before they know the alphabet.
They are kept till the period of early manhood, and then sent
out into the world to enter upon its business and affairs. By
this time, the character will have been stamped. For if there
is any truth in the Bible, if there is any truth in those oracles
which soar above all human authority, or if any thing be estab-
lished as a general fact, by the experience of mankind, in this
first third of human life the character is formed. And what
sort of a character is likely to be made by this process, this ex-
perimental system of instruction ?
I have read the two provisions of Mr. Girard's will in relation
to this feature of his school. The first excludes the Christian
religion and all its ministers from its walls. The second ex-
plains the whole principles upon which he purposes to conduct
his school. It was to try an experiment in education, never
before known to the Christian world. It had been recommend-
ed often enough among those who did not belong to the Chris-
tian world. But it was never known to exist, never adopted by
any body even professing a connection with Christianity. And
I cannot do better, in order to show the tendency and ohject of
this institution, than to read from a papjr by Bishop White,
which has been referred to by the other side.*
In order to a right understanding of what \% as Mr. Gi»
rard's real intention and original design, we have only ta
read carefullv the words of the clause I have referred to. He
njoins that no ministers of religion, of any sects, shall bk
allowed to enter his college, on any pretence whatever. Now,
it is obvious, that by sects he means Christian sects. Any of
the followers of Voltaire or D'Alembert may have admission
into this school whenever they please, because they are not usu-
* See Appendix, No. {.
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 1 17
ally spoken of as " sects." The doors are to be opened to the
opposers and revilers of Christianity, in every form and shape,
and shut to its supporters. While the voice of the upholders
of Christianity is never to be heard within the walls, the voices
of those who impugn Christianity may be raised high and loud,
till they shake the marble roof of the building. It is no less
derogatory thus to exclude the one, and admit the other, than
it would be to make a positive provision and all the necessary
arrangements for lectures and lessons and teachers, for all the
details of the doctrines of infidelity. It is equally derogatory,
it is the same in principle, thus to shut the door to one party,
and open the door to the other.
We must reason as to the probable results of such a system
according to natural consequences. They say, on the other
side, that infidel teachers will not be admitted in this school.
How do they know that ? What is the inevitable tendency of
^uch an education as is here prescribed ? What is likely to
occur? The court cannot suppose that the trustees will act in
opposition to the directions of the will. If they accept the
trust, they must fulfil it, and carry out the details of Mr. Gi-
rard's plan.
Now, what is likely to be the effect of this system on the
minds of these children, thus left solely to its pernicious influ-
ence, with no one to care for their spiritual we'lare in this world
or the next ? They are to be left entirely to 1 he tender mercies
of those who will try upon them this experin ent of moral phi-
losophy or philosophical morality. Morality without sentiment ;
benevolence towards man, without a sense of responsibility
towards God ; the duties of this life performed, without any
reference to the life which is to come ; this is Mr. Girard's the-
ory of useful education.
Half of these poor children may die before the term of their
education expires. Still, those who survive must be brought
up imbued fully with the inevitable tendencies of the system.
It has been said that there may be lay preachers among them.
Lay preachers ! This is ridiculous enough in a country of Chris-
tianity and religion. [Here some one handed Mr. Webster a
note.] A friend informs me that four of the principal relig-
ious sects in this country, the Episcopalians, Presbyterians,
Methodists, and Baptists, allow no lay preachers ; and these
148 THE CHRISTIAN MINISTRY
four constitute a large majority of the religious and Christian
portion of the people of the United States. And, besides, lay
preaching would be just as adverse to Mr. Girard's original ob-
ject and whole plan as professional preaching, provided it should
be Christianity which should be preached.
It is plain, as plain as language can be made, that he did not
intend to allow the minds of these children to be troubled about
religion of any kind, whilst they were within the college. And
why ? He himself assigns the reason. Because of the difficulty
and trouble, he says, that might arise from the multitude of
sects, and creeds, and teachers, and the various clashing doc-
trines and tenets advanced by the different preachers of Chris-
tianity. Therefore his desire as to these orphans is, that their
minds should be kept free from all bias of any kind in favor of
any description of Christian creed, till they arrived at manhood,
and should have left the walls of his school.
Now, are not laymen equally sectarian in their views with
clergymen ? And would it not be just as easy to prevent sec-
tarian doctrines from being preached by a clergyman as from
being taught by a layman ? It is idle, therefore, to speak of
lay preaching.
Mr. Sergeant here rose, and said that they on their side had not
uttered one word about lay preaching. It was lay teaching they
spoke of.
Well, I would just as soon take it that way as the other,
teaching- as preaching. Is not the teaching of laymen as secta-
rian as the preaching of clergymen ? What is the difference
between unlettered laymen and lettered clergymen in this re-
spect? Every one knows that laymen are as violent contro-
versialists as clergymen, and the less informed the more violent.
So this, while it is a little more ridiculous, is equally obnoxious.
According to my experience, a layman is just as likely to launch
out into sectarian views, and to advance clashing doctrines and
violent, bigoted prejudices, as a professional preacher, and even
more so. Every objection to professional religious instruction
applies with still greater force to lay teaching. As in other
cases, so in this, the greatest degree of candor is usually found
accompanying the greatest degree of knowledge. Nothing is
more apt to be positive and dogmatical than ignorance.
But there is no provision in any part of Mr. Girard's will
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 149
for the introduction of any lay teaching on religious matters
whatever. The children are to get their religion when they
leave his school, and they are to have nothing to do with relig
ion before they do leave it. They are then to choose their relig
ious opinions, and not before.
Mr. Binney. " Choose their tenets " is the expression.
Tenets are opinions, I believe. The mass of one's religion!
tenets makes up one's religion.
Now, it is evident that Mr. Girard meant to found a school
of morals, without any reference to, or connection with, religion.
But, after all, there is nothing original in this plan of his. It
has its origin in a deistical source, but not from the highest
school of infidelity. Not from Bolingbroke, or Shaftesbury, or
Gibbon; not even from Voltaire or D'Alembert. It is from two
persons who were probably known to Mr. Girard in the early
part of his life ; it is from Mr. Thomas Paine and Mr. Volney.
Mr. Thomas Paine, in his Age of Reason, says : ' Let us devise
means to establish schools of instruction, that we may banish
the ignorance that the ancient regime of kings and priests has
spread among the people. Let us propagate morality, unfettered
by superstition."
Mr. Binney. What do you get that from ?
The same place that Mr. Girard got this provision of his will
from, Paine's Age of Reason. The same phraseology in effect
is here. Paine disguised his real meaning, it is true. He said :
" Let us devise means to establish schools to propagate moral-
ity, unfettered by superstition" Mr. Girard, who had no dis-
guise about him, uses plain language to express the same mean-
ing. In Mr. Girard's view, religion is just that thing which Mr.
Paine calls superstition. " Let us establish schools of morality,"
said he, " unfettered by religious tenets. Let us give these chil-
dren a system of pure morals before they adopt any religion."
The ancient regime of which Paine spoke as obnoxious was that
of kings and priests. That was the popular way he had of
making any thing obnoxious that he wished to destroy. Now,
if he had merely wished to get rid of the dogmas which
he says were established by kings and priests, if he had no
desire to abolish the Christian religion itself, he could have
thus expressed himself: "Let us rid ourselves of the errors of
13*
150 THE CHRISTIAN MIMSTRY
kings and priests, and plant morality on the plain text of the
Christian religion, with the simplest forms of religious worship."
I do not intend to leave this part of the cause, however, with-
out a still more distinct statement of the objections to this
scheme of instruction. This is due, I think, to the subject and
to the occasion ; and I trust I shall not be considered presump-
tuous, or as trenching upon the duties which properly belong to
another profession. But I deem it due to the cause of Chris-
tianity to take up the notions of this scheme of Mr. Girard, and
show how mistaken is the idea of calling it a charity. In the
first place, then, I say, this scheme is derogatory to Christian-
ity, because it rejects Christianity from the education of youth,
by rejecting its teachers, by rejecting the ordinary agencies of
instilling the Christian religion into the minds of the young. I
do not say that, in order to make this a charity, there should be
a positive provision for the teaching of Christianity, although,
as I have already observed, I take that to be the rule in an
English court of equity. But I need not, in this case, claim
the whole benefit of that rule. I say it is derogatory, because
there is a positive rejection of Christianity; because it rejects
the ordinary means and agencies of Christianity. He who re-
jects the ordinary means of accomplishing an end, means to
defeat that end itself, or else he has no meaning. And this is
true, although the means originally be means of human appoint-
ment, and not attaching to or resting on any higher authority.
For example, if the New Testament had contained a set of
principles of morality and religion, without reference to the
means by which those principles were to be established, and
if in the course of time a system of means had sprung up,
become identified with the history of the world, become general,
sanctioned by continued use and custom, then he who should
reject those means would design to reject, and would reject,
that morality and religion themselves.
This would be true in a case where the end rested on divine
authority, and human agency devised and used the means.
But if the means themselves be of divine authoritv also, then
the rejection of them is a direct rejection of that authority.
Now, I suppose there is nothing in the New Testament more
clearly established by the Author of Christianity, than the ap-
pointment of a Christian ministry. The world was to be evan*
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 151
gelized, was to be brought out of darkness into light, by the in-
fluenees of the Christian religion, spread and propagated by the
instrumentality of man. A Christian ministry was therefore
appointed by the Author of the Christian religion himself, and
it stands on the same authority as any other part of his relig-
ion. When the lost sheep of the house of Israel were to be
brought to the knowledge of Christianity, the disciples were
commanded to go forth into all the cities, and to preach " that
the kingdom of heaven is at hand." It was added, that who-
soever would not receive them, nor hear their words, it should
be more tolerable for Sodom and Gomorrha than for them.
And after his resurrection, in the appointment of the great mis-
sion to the whole human race, the Author of Christianity com-
manded his disciples that they should " go into all the world,
and preach the Gospel to every creature." This was one of his
last commands ; and one of his last promises was the assur-
ance, " Lo, I am with you alway, even to the end of the
world ! " I say, therefore, there is nothing set forth more au-
thentically in the New Testament than the appointment of a
Christian ministry ; and he who does not believe this does not
and cannot believe the rest.
It is true that Christian ministers, in this age of the world,
are selected in different ways and different modes by different
sects and denominations. But there are, still, ministers of all
sects and denominations. Why should we shut our eyes to the
whole history of Christianity ? Is it not the preaching of minis-
ters of the Gospel that has evangelized the more civilized part
of the world? Why do we at this day enjoy the lights and
benefits of Christianity ourselves ? Do we not owe it to the
instrumentality of the Christian ministry ? The ministers of
Christianity, departing from Asia Minor, traversing Asia, Af-
rica, and Europe, to Iceland, Greenland, and the poles of
the earth, suffering all things, enduring all things, hoping all
things, raising men everywhere from the ignorance of idol wor-
ship to the knowledge of the true God, and everywhere bring-
ing life and immortality to light through the Gospel, have only
been acting in obedience to the Divine instruction ; they were
commanded to go forth, and they have gone forth, and they
still go forth. They have sought, and they still seek, to be able
to preach the Gospel to every creature under the whole heaven.
152 THE CHRISTIAN MINISTRY
And where was Christianity ever received, where were ita
truths ever poured into the human heart, where did its waters,
springing up into everlasting life, ever burst forth, except in the
track of a Christian ministry ? Did we ever hear of an in-
stance, does history record an instance, of any part of the globe
Christianized by lay preachers or " lay teachers " ? And, de-
scending from kingdoms and empires to cities and countries, to
parishes and villages, do we not all know, that wherever Chris-
tianity has been carried, and wherever it has been taught, by
human agency, that agency was the agency of ministers of the
Gospel? It is all idle, and a mockery, to pretend that any man
has respect for the Christian religion who yet derides, re-
proaches, and stigmatizes all its ministers and teachers. It is
all idle, it is a mockery, and an insult to common sense, to
maintain that a school for the instruction of youth, from which
Christian instruction by Christian teachers is sedulously and
rigorously shut out, is not deistical and infidel both in its pur-
pose and in its tendency. I insist, therefore, that this plan of
education is, in this respect, derogatory to Christianity, in oppo-
sition to it, and calculated either to subvert or to supersede it.
In the next place, this scheme of education is derogatory to
Christianity, because it proceeds upon the presumption that the
Christian religion is not the only true foundation, or any ne-
cessary foundation, of morals. The ground taken is, that relig-
ion is not necessary to morality; that benevolence may be in-
sured by habit, and that all the virtues may flourish, and be
safely left to the chance of flourishing, without touching the
waters of the living spring of religious responsibility. With
him who thinks thus, what can be the value of the Christian
revelation ? So the Christian world has not thought ; for by
that Christian world, throughout its broadest extent, it has been,
and is, held as a fundamental truth, that religion is the only
solid basis of morals, and that moral instruction not resting
on this basis is only a building upon sand. And at what age
of the Christian era have those who professed to teach the
Christian religion, or to believe in its authority and importance,
not insisted on the absolute necessity of inculcating its princi-
ples and its precepts upon the minds of the young? In what
age, by wThat sect, where, when, by whom, has religious truth
bam excluded from the education of youth? Nowhere; never
AND THE RELIGIOUS INSTRUCTION OE THE YOUNG. 153
Everywhere, and at all times, it has been, and is, regarded as
essential. It is of the essence, the vitality, of useful instruction.
From all this Mr. Gira.rd dissents. His plan denies the neces-
sity and the propriety of religious instruction as a part of the
education of youth. He dissents, not only from all the senti-
ments of Christian mankind, from all common conviction, and
from the results of all experience, but he dissents also from still
higher authority, the word of God itself. My learned friend has
referred, with propriety, to one of the commands of the Deca-
logue ; but there is another, a first commandment, and that is a
precept of religion, and it is in subordination to this that the
moral precepts of the Decalogue are proclaimed. This first
great commandment teaches man that there is one, and only
one, great First Cause, one, and only one, proper object of hu-
man worship. This is the great, the ever fresh, the overflowing
fountain of all revealed truth. Without it, human life is a des-
ert, of no known termination on any side, but shut in on all
sides by a dark and impenetrable horizon. Without the light
of this truth, man knows nothing of his origin, and nothing of
his end. And when the Decalogue was delivered to the Jews,
with this great announcement and command at its head, what
said the inspired lawgiver ? that it should be kept from children ?
that it should be reserved as a communication fit only for ma-
ture age? Far, far otherwise. "And these words, which I
command thee this day, shall be in thy heart. And thou shalt
teach them diligently unto thy children, and shall talk of them
when thou sittest in thy house, and when thou walkest by the
way, when thou liest down, and when thou risest up."
There is an authority still more imposing and awful. When
little children were brought into the presence of the Son of God,
his disciples" proposed to send them away; but he said, " Suffer
little children to come unto me." Unto me ; he did not send
them first for lessons in morals to the schools of the Pharisees
or to the unbelieving Sadducees, nor to read the precepts and
lessons phylacteried on the garments of the Jewish priesthood ,
he said nothing of different creeds or clashing doctrines ; but he
opened at once to the youthful mind the everlasting fountain
of living waters, the only source of eternal truths : " Suffer
little children to come unto meP And that injunction is of per-
petual obligation. It addresses itself to-day with the same
154 THE CHRISTIAN MINISTRY
earnestness and the same authority which attended its first ut»
terance to the Christian world. It is of force everywhere, and
at all times. It extends to the ends of the earth, it will reach
to the end of time, always and everywhere sounding in the
ears of men, with an emphasis which no repetition can weaken,
and with an authority which nothing can supersede : " Suffer
little children to come unto me."
And not only my heart, and my judgment, my belief, and
my conscience, instruct me that this great precept should be
obeyed, but the idea is so sacred, the solemn thoughts connect-
ed with it so crowd upon me, it is so utterly at variance with
this system of philosophical morality which we have heard ad-
vocated, that I stand and speak here in fear of being influenced
by my feelings to exceed the proper line of my professional du-
ty. Go thy way at this time, is the language of philosophical
morality, and I will send for thee at a more convenient season.
This is the language of Mr. Girard in his will. In this there is
neither religion nor reason.
The earliest and the most urgent intellectual want of human
nature is the knowledge of its origin, its duty, and its destiny.
" Whence am I, what am I, and what is before me ? " This is
the cry of the human soul, so soon as it raises its contempla-
tion above visible, material things.
When an intellectual being finds himself on this earth, as
soon as the faculties of reason operate, one of the first inquiries
of his mind is, " Shall I be here always?" " Shall I live here
for ever ? " And reasoning from what he sees daily occuring to
others, he learns to a certainty that his state of being must one
day be changed. I do not mean to deny, that it may be true
that he is created with this consciousness ; but whether it be
consciousness, or the result of his reasoning faculties, man soon
learns that he must die. And of all sentient beings, he alone,
so far as we can judge, attains to this knowledge. His Maker
has made him capable of learning this. Before he knows his
origin and destiny, he knows that he is to die. Then comes
that most urgent and solemn demand for light that ever pro-
ceeded, or can proceed, from the profound and anxious brood-
in gs of the human soul. It is stated, with wonderful force and
beauty, in that incomparable composition, the book of Job :
" For there is hope of a tree, if it be cut down, that it will sprout
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 155
again, and that the tender branch thereof will not cease; that,
through the scent of water, it will bud, and bring forth boughs
like a plant. But if a man die, shall he live again ? " And
that question nothing but God, and the religion of God, can
solve. Religion does solve it, and teaches every man that he is
to live again, and that the duties of this life have reference to
the life which is to come. And hence, since the introduction of
Christianity, it has been the duty, as it has been the effort, of
the great and the good, to sanctify human knowledge, to bring it
to the fount, and to baptize learning into Christianity ; to gather
up all its productions, its earliest and its latest, its blossoms and
its fruits, and lay them all upon the altar of religion and virtue.
Another important point involved in this question is, What be-
comes of the Christian Sabbath, in a school thus established?
I do not mean to say that this stands exactly on the same au-
thority as the Christian religion, but I mean to say that the ob-
servance of the Sabbath is a part of Christianity in all its forms.
All Christians admit the observance of the Sabbath. All admit
that there is a Lord's day, although there may be a difference in
the belief as to which is the right day to be observed. Now,
I say that in this institution, under Mr. Girard's scheme, the
ordinary observance of the Sabbath could not take place, be-
cause the ordinary means of observing it are excluded. I know
that I shall be told here, also, that lay teachers would come
in again ; and I say again, in reply, that, where the ordinary
means of attaining an end are excluded, the intention is to ex-
clude the end itself. There can be no Sabbath in this college,
there can be no religious observance of the Lord's day ; for
there are no means for attaining that end. It will be said,
that the children would be permitted to go out. There is noth-
ing seen of this permission in Mr. Girard's will. And I say
again, that it would be just as much opposed to Mr. Girard's
whole scheme to allow these children to go out and attend
places of public worship on the Sabbath day, as it would be to
have ministers of religion to preach to them within the walls ;
because, if they go out to hear preaching, they will hear just as
much about religious controversies, and clashing doctrines, and
more, than if appointed preachers officiated in the college. His
object, as he states, was to keep their minds free from all relig-
ious doctrines and sects, and he would just as much defeat his
156 THE CHRISTIAN MINISTRY
ends by sending them out as by having religious instruction
within. Where, then, are these little children to go? Where
can they go to learn the truth, to reverence the Sabbath ? They
are far from their friends, they have no one to accompany them
to any place of worship, no one to show them the right from
the wrong course ; their minds must be kept clear from all bias
on the subject, and they are just as far from the ordinary ob-
servance of the Sabbath as if there were no Sabbath day at all.
And where there is no observance of the Christian Sabbath
there will of course be no public worship of God.
In connection with this subject I will observe, that there has
been recently held a large convention of clergymen and laymen
in Columbus, Ohio, to lead the minds of the Christian public to
the importance of a more particular observance of the Christian
Sabbath ; and I will read, as part of my argument, an extract
from their address, which bears with peculiar force upon this case.
" It is alike obvious that the Sabbath exerts its salutary power by mak-
ing the population acquainted with the being, perfections, and laws of
God ; with our relations to him as his creatures, and our obligations to
him as rational, accountable subjects, and with our character as sinners,
for whom his mercy has provided a Saviour ; under whose government
we live to be restrained from sin and reconciled to God, and fitted by
his word and spirit for the inheritance above.
" It is by the reiterated instruction and impression which the Sabbath
imparts to the population of a nation, by the moral principle which it
forms, by the conscience which it maintains, by the habits of method,
cleanliness, and industry it creates, by the rest and renovated vigor it
bestows on exhausted human nature, by the lengthened life and higher
health it affords, by the holiness it inspires, and cheering hopes of
heaven, and the protection and favor of God, which its observance in-
sures, that the Sabbath is rendered the moral conservator of nations.
" The omnipresent influence the Sabbath exerts, however, by no secret
charm or compendious action, upon masses of unthinking minds; but by
arresting the stream of worldly thoughts, interests, and affections, stop-
ping the din of business, unlading the mind of its cares and responsiDiti-
tfes, and the body of its burdens, while God speaks to men, and they at-
wend, and hear, and fear, and learn to do his will.
" You might as well put out the sun, and think to enlighten the world
with tapers, destroy the attraction of gravity, and think to wield the
universe by human powers, as to extinguish the moral illumination of
the Sabbath, and break this glorious main-spring of the moral govern-
ment of God."
AND THE RELIGIOUS INSTRUCTION OF THE VOUNG. 157
And I would ask, Would any Christian man consider it de-
sirable for his orphan children, after his death, to find refuge
within this asylum, under all the circumstances and influences
which will necessarily surround its inmates? Are there, or will
there be, any Christian parents who would desire that their chil-
dren should be placed in this school, to be for twelve years
exposed to the pernicious influences which must be brought
to bear on their minds ? I very much doubt if there is any
Christian father who hears me this day, and I am quite sure
that there is no Christian mother, who, if called upon to lie
down on the bed of death, although sure to leave her chil-
dren as poor as children can be left, who would not rather trust
them, nevertheless, to the Christian charity of the world, howev-
er uncertain it has been said to be, than place them where their
physical wants and comforts would be abundantly attended to,
but away from the solaces and consolations, the hopes and the
grace, of the Christian religion. She would rather trust them to
the mercy and kindness of that spirit, which, when it has noth-
ing else left, gives a cup of cold water in the name of a disci-
ple; to that spirit which has its origin in the fountain of all
good, and of which we have on record an example the most
beautiful, the most touching, the most intensely affecting, that
+he world's history contains, I mean the offering of the poor
widow, who threw her two mites into the treasury. " And he
looked up, and saw the rich men casting their gifts into the
treasury ; and he saw also a certain poor widow casting in
thither two mites. And he said, Of a truth I say unto you, that
this poor widow hath cast in more than they all; for all these
have, of their abundance, cast in unto the offerings of God : but
she of her penury hath cast in all the living that she had.'*
What more tender, more solemnly affecting, more profoundly
pathetic, than this charity, this offering to God, of a farthing!
We know nothing of her name, her family, or her tribe. We
only know that she was a poor woman, and a widow, of whom
there is nothing left upon record but this sublimely simple story,
that when the rich came to cast their proud offerings into the
treasury, this poor woman came also, and cast in her twTo mites,
which made a farthing! And that example, thus made the
subject of divine commendation, has been read, and told, and
gone abroad everywhere, and sunk deep into a hundred millions
VOL. VI. 14
159 THE CHRISTIAN MINISTRY
of hearts, since the commencement of the Christian era, and
has done more good than could be accomplished by a thousand
marble palaces, because it was charity mingled with true benev-
olence, given in the fear, the love, the service, and honor of God ;
because it was charity, that had its origin in religious feeling;
because it was a gift to the honor of God!
Cases have come before the courts, of bequests, in last wills,
made or given to God, without any more specific direction ;
and these bequests have been regarded as creating charitable
uses. But can that be truly called a charity which flies in the
face of all the laws of God and all the usages of Christian
man ? I arraign no man for mixing up a love of distinction
and notoriety with his charities. I blame not Mr. Girard be-
cause he desired to raise a splendid marble palace in the neigh-
borhood of a beautiful city, that should endure for ages, and
transmit his name and fame to posterity. But his school of
learning is not to be valued, because it has not the chastening
influences of true religion ; because it has no fragrance of the
spirit of Christianity. It is not a charity, for it has not that
which gives to a charity for education its« chief value. It will,
therefore, soothe the heart of no Christian parent, dying in pov-
erty and distress, that those who owe to him their being may
be led, and fed, and clothed by Mr. Girard's bounty, at the ex-
pense of being excluded from all the means of religious instruc-
tion afforded to other children, and shut up through the most
interesting period of their lives in a seminary without religion,
and with moral sentiments as cold as its own marble walls.
I now come to the consideration of the second part of this
clause in the will, that is to say, the reasons assigned by Mr.
Guard for making these restrictions with regard to the minis-
ters of religion ; and I say that these are much more derogatory
to Christianity than the main provision itself, excluding them.
He says that there are such a multitude of sects and such diver-
sity of opinion, that he will exclude all religion and all its min-
isters, in order to keep the minds of the children free from clash-
ing controversies. Now, does not this tend to subvert all belief
in the utility of teaching the Christian religion to youth at all?
Certainly, it is a broad and bold denial of such utility. To say
that the evil resulting to youth from the differences of sects and
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 159
creeds overbalances all the benefits which the best education
can give them, what is this but to say that the branches of the
tree of religious knowledge are so twisted, and twined, and
commingled, and all run so much into and over each other, that
there is therefore no remedy but to lay the axe at the root of
the tree itself? It means that, and nothing less! Now, if
there be any thing more derogatory to the Christian religion
than this, I should like to know what it is. In all this we see
the attack upon religion itself, made on its ministers, its institu-
tions, and its diversities. And that is the objection urged by
all the lower and more vulgar schools of infidelity throughout
the world. In all these schools, called schools of Rationalism
in Germany, Socialism in England, and by various other
names in various countries which they infest, this is the uni-
versal cant. The first step of all these philosophical moral-
ists and regenerators of the human race is to attack the agency
through which religion and Christianity are administered to
man. But in this there is nothing new or original. We find
the same mode of attack and remark in Paine's " Age of Rea-
son." At page 336 he says : " The Bramin, the follower of
Zoroaster, the Jew, the Mahometan, the Church of Rome, the
Greek Church, the Protestant Church, split into several hun-
dred contradictory sectaries, preaching, in some instances, dam-
nation against each other, all cry out, ' Our holy religion ! ' "
We find the same view in Volney's " Ruins of Empires."
Mr. Volney arrays in a sort of semicircle the different and con-
flicting religions of the world. " And first," says he, " sur-
rounded by a group in various fantastic dresses, that confused
mixture of violet, red, white, black, and speckled garments, with
heads shaved, with tonsures, or with short hairs, with red hats,
square bonnets, pointed mitres, or long beards, is the standard
of the Roman Pontiff. On his right you see the Greek Pon
tiff, and on the left are the standards of two recent chiefs (Lu-
ther and Calvin), who, shaking off a yoke that had become ty-
rannical, had raised altar against altar in their reform, and
wrested half of Europe from the Pope. Behind these are the
subaltern sects, subdivided from the principal divisions. The
Nestorians, Eutychians, Jacobites, Iconoclasts, Anabaptists,
Presbyterians, Wickliffltes, Osiandrians, Manicheans, Pietists,
Adamites, the Contemplatives, the Quakers, the Weepers, and
160 THE CHRISTIAN MINISTRY
a hundred others, all of distinct parties, persecuting when
strong, tolerant when weak, hating each other in the name of
the God of peace, forming such an exclusive heaven in a relig-
ion of universal charity, damning each other to pains without
end in a future state, and realizing in this world the imaginary
hell of the other."
Can it be doubted for an instant that sentiments like these
are derogatory to the Christian religion ? And yet on grounds
and reasons exactly these, not like these, but exactly these, Mr.
Girard founds his excuse for excluding Christianity and its
ministers from his school. He is a tame copyist, and has only
raised marble walls to perpetuate and disseminate the princi-
ples of Paine and of Volney. It has been said that Mr. Girard
was in a difficulty; that he was the judge and disposer of his
own property. We have nothing to do with his difficulties. It
has been said that he must have done as he did do, because
there could be no agreement otherwise. Agreement? among
whom? about what? He was at liberty to do what he pleased
with his own. He had to consult no one as to what he should
do in the matter. And if he had wished to establish such
a charity as might obtain the especial favor of the courts of
law, he had only to frame it on principles not hostile to the
religion of the country.
But the learned gentleman went even further than this, and
to an extent that I regretted ; he said that there was as much
dispute about the Bible as about any thing else in the world.
No, thank God, that is not the case !
Mr. Binney. The disputes about the meaning of words and pas-
sages ; you will admit that ?
Well, there is a dispute about the translation of certain
words ; but if this be true, there is just as much dispute about
it out of Mr. Girard's institution as there would be iii it. And
if this plan is to be advocated and sustained, why does not
every man keep his children from attending all places of public
worship until they are over eighteen years of age? He says
that a prudent parent keeps his child from the influence of sec-
tarian doctrines, by which I suppose him to mean those tenets
that are opposed to his own. Well, I do not know but what
that olan is as likely to make bigots as it is to make any thing
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 161
else. I grant that the mind of youth should be kept pliant^
and free from all undue and erroneous influences ; that it
should have as much play as is consistent ^ ith prudence ; but
put it where ii can obtain the elementary principles of religious
truth ; at any rate, those broad and general precepts and prin-
ciples which are admitted by all Christians. But here in this
scheme of Mr. Girard, all sects and all creeds are denounced.
And would not a prudent father rather send his child where he
could get instruction under any form of the Christian religion,
than where he could get none at all? There are many instan-
ces of institutions, professing one leading creed, educating youths
of different sects. The Baptist college in Rhode Island receives
and educates youths of all religious sects and all beliefs. The
colleges all over New England differ in certain minor points of
belief, and yet that is held to be no ground for excluding youth
with other forms of belief, and other religious views and senti-
ments.
But this objection to the multitude and differences of sects is
but the old story, the old infidel argument. It is notorious that
there are certain great religious truths which are admitted and
believed by all Christians. All believe in the existence of a
God. All believe in the immortality of the soul. All believe in
the responsibility, in another world, for our conduct in this. All
believe in the divine authority of the New Testament. Dr. Pa-
ley says that a single word from the New Testament shuts up
the mouth of human questioning, and excludes all human rea-
soning. And cannot all these great truths be taught to children
without their minds being perplexed with clashing doctrines and
sectarian controversies ? Most certainly they can.
And, to compare secular with religious matters, what would
become of the organization of society, what would become of
man as a social being, in connection with the social system, if
we applied this mode of reasoning to him in his social relations?
We have a constitutional government, about the powers, and
limitations, and uses of which there is a vast amount of differ-
ences of belief. Your honors have a body of laws, now before
you, in relation to which differences of opinion, almost innumer-
able, are daily spread before the courts ; in all these we see
clashing doctrines and opinions advanced daily, to as great an
extent as in the religious world.
14*
162 THE CHRISTIAN MINISTRY
Apply the reasoning advanced by Mr. Girard to human insti-
tutions, and you will tear them all up by the root ; as you would
inevitably tear all divine institutions up by the root, if such rea-
soning is to prevail. At the meeting of the first Congress there
was a doubt in the minds of many of the propriety of open-
ing the session with prayer; and the reason assigned was, as
here, the great diversity of opinion and religious belief. At
length Mr. Samuel Adams, with his gray hairs hanging about
his shoulders, and with an impressive venerableness now sel-
dom to be met with (I suppose owing to the difference of hab-
its), rose in that assembly, and, with the air of a perfect Puritan,
said that it did not become men, professing to be Christian
men, who had come together for solemn deliberation in the
hour of their extremity, to say that there was so wide a differ-
ence in their religious belief, that they could not, as one man,
bow the knee in prayer to the Almighty, whose advice and
assistance they hoped to obtain. Independent as he was,
and an enemy to all prelacy as he was known to be, he moved
that the Rev. Mr. Duche, of the Episcopal Church, should ad-
dress the Throne of Grace in prayer. And John Adams, in a
letter to his wife, says that he never saw a more moving specta-
cle. Mr. Duche read the Episcopal service of the Church of
England, and then, as if moved by the occasion, he broke out
into extemporaneous prayer. And those men, who were then
about to resort to force to obtain their rights, were moved to
tears ; and floods of tears, Mr. Adams says, ran down the cheeks
of the pacific Quakers who formed part of that most interest-
ing assembly. Depend upon it, where there is a spirit of Chris-
tianity, there is a spirit which rises above forms, above ceremo-
monies, independent of sect or creed, and the controversies of
clashing doctrines.
The consolations of religion can never be administered to
any of these sick and dying children in this college. It is said,
indeed, that a poor, dying child can be earned out beyond the
walls of the school. He can be carried out to a hostelry, or
hoveL and there receive those rites of the Christian religion which
cannot be performed within those walls, even in his dying hour!
Is not all this shocking ? What a stricture is it upon this whole
scheme ! What an utter condemnation ! A dying youth can-
not receive religious solace within this seminary of learning!
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 163
But, it is asked, what could Mr. Girard have done ? He
could have done, as has been done in Lombardy by the Em-
peror of Austria, as my learned friend has informed us, where,
on a large scale, the principle is established of teaching the ele-
mentary principles of the Christian religion, of enforcing human
duties by divine obligations, and carefully abstaining in all cases
from interfering with sects or the inculcation of sectarian doc-
trines. How have they done in the schools of New England ?
There, as far as I am acquainted with them, the great elements
of Christian truth are taught in every school. The Scriptures
are read, their authority taught and enforced, their evidences ex-
plained, and prayers usually offered.
The truth is, that those who really value Christianity, and
believe in its importance, not only to the spiritual welfare of
man, but to the safety and prosperity of human society, rejoice
that in its revelations and its teachings there is so much which
mounts above controversy, and stands on universal acknowl-
edgment. While many things about it are disputed or are
dark, they still plainly see its foundation, and its main pillars ;
and they behold in it a sacred structure, rising up to the
heavens. They wish its general principles, and all its great
truths, to be spread over the whole earth. But those who do
not value Christianity, nor believe in its importance to society
or individuals, cavil about sects and schisms, and ring monoto-
nous changes upon the shallow and so often refuted objections
founded on alleged variety of discordant creeds and clashing
doctrines.
I shall close this part of my argument by reading extracts
from an English writer, one of the most profound thinkero of
the age, a friend of reformation in the government and laws,
John Foster, the friend and associate of Robert Hall. Looking
forward to the abolition of the present dynasties of the Old
World, and desirous to see how the order and welfare of society
is to be preserved in the absence of present conservative princi-
ples, he says : —
" Undoubtedly the zealous friends of popular education account knowl-
edge valuable absolutely, as being the apprehension of things as they
are ; a prevention of delusions ; and so far a fitness for right volitions,
But they consider religion (besides being itself the primary and in-
finitely the most important part of knowledge) as a principle indispea*
Ifi4 THE CHRISTIAN MINISTRY
sable for securing the full benefit of all the rest. It is desired, and en-
deavored, that the understandings of these opening minds may be taken
possession of by just and solemn ideas of their relation to the Eternal
Almighty Being ; that they may be taught to apprehend it. as an awful
reality, that they are perpetually under his inspection ; and, as a cer-
tainty, that they must at length appear before him in judgment, and
find in another life the consequences of what they are in spirit and con-
duct here. It is to be impressed on them, that his will is the su-
preme law, that his declarations are the most momentous truth known
\n earth, and his favor and condemnation the greatest good and evil.
Under an ascendency of this divine wisdom it is, that their discipline in
any other knowledge is designed to be conducted ; so that nothing in
the mode of their instruction may have a tendency contrary to it, and
every thing be taught in a manner recognizing the relation with it, aa
far as shall consist with a natural, unforced way of keeping the relation
in view. Thus it is sought to be secured, that, as the pupil's mind grows
stronger, and multiplies its resources, and he therefore has necessarily
more power and means for what is wrong, there may be luminously pre-
sented to him, as if celestial eyes visibly beamed upon him, the most
solemn ideas that can enforce what is right.
44 Such is the discipline meditated for preparing the subordinate
classes to pursue their individual welfare, and act their part as members
of the community
44 All this is to be taught, in many instances directly, in others by
reference for confirmation, from the Holy Scriptures, from which author-
ity will also be impressed, all the while, the principles of religion. And
religion, while its grand concern is with the state of the soul towards
God and eternal interests, yet takes every principle and rule of morals
under its peremptory sanction ; making the primary obligation and re-
sponsibility be towards God, of every thing that is a duty with respect
to men. So that, with the subjects of this education, the sense of
propriety shall be conscience ; the consideration of how they ought to be
regulated in their conduct as a part of the community shall be the rec-
ollection that their Master in heaven dictates the laws of that conduct,
and will judicially hold them amenable for every part of it.
44 And is not a discipline thus addressed to the purpose of fixing re-
ligious principles in ascendency, as far as that difficult object is within
the power of discipline, and of infusing a salutary tincture of them into
whatever else is taught, the right way to bring up citizens faithful to all
that deserves fidelity in the social compact ?
44 Lay hold on the myriads of juvenile spirits before they have time
to grow up, through ignorance, into a reckless hosdlity to social order,
train them to sense and good morals ; inculcate the principles of re«
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 165
Hgion, simply and solemnly, as religion, as a thing directly of divine dic-
tation, and not as if its authority were chiefly in virtue of human institu-
tions ; let the higher orders, generally, make it evident to the multitude
that they are desirous to raise them in value, and promote their happi-
ness ; and then, whatever the demands of the people as a body, thus im-
proving in understanding and sense of justice, shall come to be, and
whatever modification their preponderance may ultimately enforce on
the great social arrangements, it will be infallibly certain that there nev-
er can be a love of disorder, an insolent anarchy, a prevailing spirit of
revenge and devastation. Such a conduct of the ascendant ranks would,
in this nation at least, secure that, as long as the world lasts, there never
would be any formidable commotion, or violent sudden changes. Ail
those modifications of the national economy to which an improving peo-
ple would aspire, and would deserve to obtain, would be gradually ac-
complished, in a manner by which no party would be wronged, and all
would be the happier." *
I not only read this for the excellence of its sentiments and
their application to the subject, but because they are the results
of the profound meditations of a man who is dealing with popu-
lar ignorance. Desirous of, and expecting, a great change in the
social system of the Old World, he is anxious to discover that
conservative principle by which society can be kept together
when crowns and mitres shall have no more influence. And he
says that the only conservative principle must be, and is, relig-
ion ! the authority of God ! his revealed will ! and the influence
of the teaching of the ministers of Christianity!
Mr. Webster here stated that he would, on Monday, bring forward
certain references and legal points bearing on this view of the case.
The court then adjourned.
SECOND DAY.
The seven judges all took their seats at eleven o'clock, and the court
was opened.
Mr. Binney observed to the court, that he had omitted to notice, in
his argument, that, in regard to the statutes of Uniformity and Tolera
tion in England, whilst the Jewish Talmuds for the propagation of Juda-
ism alone were not sustained by those statutes, yet the Jewish Talmuda
for the maintenance of the poor were sustained thereby. And the decis-
ons show that, where a gift had for its object the maintenance and edu-
# Foster's Essay on the Evils of Popular Ignorance, Section IV.
166 THE CHRISTIAN MINISTRY
cation of poor Jewish children, the statutes sustained the devise. In
proof of this he quoted 1 Ambler, by Blunt, p. 228, case of De Costa,
&/C. Also, the case of Jacobs v. Gomperte, in the notes. Also, in the
notes, 2 Swanston, p. 487, same case of De Costa, &c. Also, 7 Vesey
p. 423, case of Mo Catto v. Lucardo. Also, Sheppard, p. 107, and
Boyle, p. 43.
Another case was that of a bequest given to an object abroad, and in
the decision the Master of the Rolls considered that religious instruction
was not a necessary part of education. See, also, the case of The
Attorney-General v. The Dean and Canons of Christ Church, Jacobs,
p. 485.
Mr. Binney then quoted from Noah Webster the definition of the
word " tenets," to show that Mr. Webster did not give the right defini-
tion when he said that " tenets " meant " religion."
Mr. Webster then rose and said : —
The arguments of my learned friend, may it please your hon-
ors, in relation to the Jewish laws as tolerated by the statutes,
go to maintain my very proposition ; that is, that no school
for the instruction of youth in any system which is in any way
derogatory to the Christian religion, or for the teaching of doc-
trines that are in any way contrary to the Christian religion, is,
or ever was, regarded as a charity by the courts. It is true that
the statutes of Toleration regarded a devise for the mainte-
nance of poor Jewish children, to give them food and raiment
and lodging, as a charity. But a devise for the teaching of the
Jewish religion to poor children, that should come into the Court
of Chancery, would not be regarded as a charity, or entitled to
any peculiar privileges from the court.
When I stated to your honors, in the course of my argument
on Saturday, that all denominations of Christians had some
mode or provision for the appointment of teachers of Chris-
tianity amongst them, I meant to have said something about
the Quakers. Although we know that the teachers among
them come into their office in a somewhat peculiar manner, yet
there are preachers and teachers of Christianity provided in
that peculiar body, notwithstanding its objection to the mode
of appointing teachers and preachers by other Christian sects.
The place or character of a Quaker preacher is an office and
appointment as well known as that of a preacher among any
other denomination of Christians.
I have heretofore argued to show that the Christian religion,
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 167
its general principles, must ever be regarded among us as the
foundation of civil society ; and I have thus far confined my
remarks to the tendency and effect of the scheme of Mr. Girard
(if carried out) upon the Christian religion. But I will go far-
ther, and say that this school, this scheme or system, in its
tendencies and effects, is opposed to all religions, of every
kind. I will not now enter into a controversy with my learned
friend about the word " tenets," whether it signify opinions or
dogmas, or whatever you please. Religious tenets, I take it,
and I suppose it will be generally conceded, mean religious
opinions ; and if a youth has arrived at the age of eighteen,
and has no religious tenets, it is very plain that he has no relig-
ion. I do not care whether you call them dogmas, tenets, or
opinions. If the youth does not entertain dogmas, tenets, or
opinions, or opinions, tenets, or dogmas, on religious subjects,
then he has no religion at all. And this strikes at a broader prin-
ciple than when you merely look at this school in its effect upon
Christianity alone. We will suppose the case of a youth of
eighteen, who has just left this school, and has gone through an
education of philosophical morality, precisely in accordance
with the views and expressed wishes of the donor. He comes
then into the world to choose his religious tenets. The very
next day, perhaps, after leaving school, he comes into a court
of law to give testimony as a witness. Sir, I protest that by
such a system he would be disfranchised. He is asked, " What
is your religion?" His reply is, " O, I have not yet chosen
any ; I am going to look round, and see which suits me best."
He is asked, " Are you a Christian ? " He replies, " That in-
volves religious tenets, and as yet I have not been allowed to
entertain any." Again, " Do you believe in a future state of
rewards and punishments ? " And he answers, " That involves
sectarian controversies, which have carefully been kept from
me." " Do you believe in the existence of a God ? " He an-
swers, that there are clashing doctrines involved in these things,
which he has been taught to have nothing to do with ; that the
belief in the existence of a God, being one of the first ques-
tions in religion, he is shortly about to think of that proposi-
tion. Why Sir, it is vain to talk about the destructive ten-
dency of such a system ; to argue upon it is to insult the under-
standing of every man ; it is mere, sheer, low, ribald, vulgar
168 THE CHRISTIAN MINISTRY
deism and infidelity ! * It opposes all that is in heaven, and all
on earth that is worth being on earth. It destroys the connect-
ing link between the creature and the Creator ; it opposes that
great system of universal benevolence and goodness that binds
man to his Maker. No religion till he is eighteen ! What
would be the condition of all our families, of all our children,
if religious fathers and religious mothers were to teach their
sons and daughters no religious tenets till they were eighteen?
What would become of their morals, their character, their purity
of heart and life, their hope for time and eternity? What
would become of all those thousand ties of sweetness, benevo-
lence, love, and Christian feeling, that now render our young men
and young maidens like comely plants growing up by a stream-
let's side ; the graces and the grace of opening manhood, of
blossoming womanhood? What would become of all that now
renders the social circle lovely and beloved ? What would be-
come of society itself ? How could it exist? And is that to
be considered a charity which strikes at the root of all this ;
which subverts all the excellence and the charms of social life ;
which tends to destroy the very foundation and framework of
society, both in its practices and in its opinions ; which subverts
the whole decency, the whole morality, as well as the whole
Christianity and government, of society? No, Sir! no, Sir!
And here let me turn to the consideration of the question,
What is an oath ? I do not mean in the variety of definitions
that may be given to it as it existed and was practised in the
time of the Romans, but an oath as it exists at present in our
courts of law ; as it is founded on a degree of consciousness that
there is a Power above us that will reward our virtues and
punish our vices. We all know that the doctrine of the Eng-
lish law is, that in the case of every person who enters court as
a witness, be he Christian or Hindoo, there must be a firm con-
viction on his mind that falsehood or perjury will be punished,
either in this world or the next, or he cannot be admitted as a
witness. If he has not this belief, he is disfranchised. In
proof of this, I refer your honors to the great case of Ormi-
chund against Barker, in Lord Chief Justice Wills's report.
* The effect of this remark was almost electric, and some one in the court-
room broke out in applause.
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 169
There this doctrine is clearly laid down. But in no case is a
man allowed to be a witness that has no belief in future re-
wards and punishments for virtues or vices, nor ought he to be.
We hold life, liberty, and property in this country upon a sys-
tem of oaths ; oaths founded on a religious belief of some sort.
And that system which would strike away the great substra-
tum, destroy the safe possession of life, liberty, and property,
destroy all the institutions of civil society, cannot and will not
be considered as entitled to the protection of a court of equity.
It has been said, on the other side, that there was no teaching
against religion or Christianity in this system. I deny it. The
whole testament is one bold proclamation against Christianity
and religion of every creed. The children are to be brought up
in the principles declared in that testament. They are to learn
to be suspicious of Christianity and religion ; to keep clear of
it, that their youthful heart may not become susceptible of the
influences of Christianity or religion in the slightest degree.
They are to be told and taught that religion is not a matter for
the heart or conscience, but for the decision of the cool judg-
ment of mature years ; that at that period when the whole
Christian world deem it most desirable to instil the chastening
influences of Christianity into the tender and comparatively
pure mind and heart of the child, ere the cares and corruptions
c .' the world have reached and seared it, at that period the
child in this college is to be carefully excluded therefrom, and
to be told that its influence is pernicious and dangerous in the
extreme. Why, the whole system is a constant preaching
against Christianity and against religion, and I insist that there
is no charity, and can be no charity, in that system of instruc-
tion from which Christianity is excluded. I perfectly agree
with what my learned friend says in regard to the monasteries
of the Old World, as seats of learning to which we are all in-
debted at the present day. Much of our learning, almost all
of our early histories, and a vast amount of literary treasure,
were preserved therein and emanated therefrom. But we all
know, that although these were emphatically receptacles fo*
literature of the highest order, yet they were always connected
with Christianity, and were always regarded and conducted as
religious establishments.
Going back as far as the statutes of Henry the Fourth,
VOL. vi. 15
170 THE CHRISTIAN MINISTRY
as early as 1402,* in the act respecting charities, we fii d that
one hundred years before the Reformation, in Catholic times,
in the establishment of every charitable institution, there was
to be proper provision for religious instruction. Again, after
the time of the Reformation, when those monastic institutions
were abolished, in the 1st Edw. VI. ch. 14, we find certain
chantries abolished, and their funds appropriated to the in-
struction of youth in the grammar schools founded in that
reign, which Lord Eldon says extended all over the kingdom.
In aU these we find provision for religious instruction, the
dispensation of the same being by a teacher or preacher. In
2 Swanston, p. 529, the case of the Bedford Charity, Lord
Eldon gives a long opinion, in the course of which he says, that
in these schools care is taken to educate youth in the Christian
religion, and in all of them the New Testament is taught, both
in Latin and Greek. Here, then, we find that the great and
leading provision, both before and after the Reformation, was
to connect the knowledge of Christianity with human letters.
And it will be always found that a school for instruction of
youth, to possess the privileges of a charity, must be provided
with religious instruction.
For the decision, that the essentials of Christianity are part
of the common law of the land, I refer your honors to 1 Ver-
non, p. 293, where Lord Hale, who cannot be suspected of any
bigotry on this subject, says, that to decry religion, and call it a
cheat, tends to destroy all religion ; and he also declares Chris-
tianity to be part of the common law of the land. Mr. N.
Dane, in his Abridgment, ch. 219, recognizes the same principle.
In 2 Strange, p. 834, case of The King v. Wilson, the judges
would not suffer it to be debated that writing against religion
generally is an offence at common law. They laid stress upon
the word " generally," because there might arise differences
of opinion between religious writers on points of doctrine, and
so forth. So in Taylor's case, 3 Merivale, p. 405, by the High
Court of Chancery, these doctrines were recognized and main-
tained. The same doctrine is laid down in 2 Burn's Ecclesias-
tical Law, p. 95, Evans v. The Chamberlain of London ; and in
2 Russell, p. 501, The Attorney- General v. The Earl of Mans*
field.
* 2 Pickering, p. 43S.
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 171
There is a case of recent date, which, if the English law is
to prevail, would seem conclusive as to the character of this
devise. It is the case of The Attorney- General v. Cullum,
1 Younge and Collyer's Reports, p. 411. The case was heard
and decided in 1842, by Sir Knight Bruce, Vice-Chancellor.
The reporter's abstract, or summary, of the decision is this:
" Courts of equity, in this country, will not sanction any
system of education in which religion is not included."
The charity in question in that case was established in the
reign of Edward the Fourth, for the benefit of the community
and poor inhabitants of the town of Bury St. Edmunds. The
objects of the charity were various : for relief of prisoners, edu-
cating and instructing poor people, for food and raiment for the
aged and impotent, and others of the same kind. There were
uses, also, now deemed superstitious, such as praying for the souls
of the dead. In this, and in other respects, the charity required
revision, to suit it to the habits and requirements of modern
times ; and a scheme was accordingly set forth for such revision
by the master, under the direction of the court. By this scheme
there were to be schools, and these schools were to be closed on
Sundays, although the Scriptures were to be read daily on other
days. This was objected to, and it was insisted, on the other
hand, that the masters and mistresses of the schools should be
members of the Church of England; that they should, on every
Lord's day, give instruction in the doctrines of the Church to
those children whose parents might so desire ; but that all the
scholars should be required to attend public worship every Lord's
day in the parish church, or other place of worship, according- to
their respective creeds.
The Vice- Chancellor said, that the term "education" was
properly understood, by all the parties, to comprehend religious
instruction ; that the objection to the scheme proposed by the
master was not that it did not provide for religious instruction
according to the doctrines of the Church of England, but that it
did not provide for religious instruction at all. In the course of
the hearing, the Vice- Chancellor said, that any scheme of edu-
cation, without religion, would be worse than a mockery. The
parties afterwards agreed, that the masters and mistresses should
be members of the Church of England ; that every school day
the master should give religious instruction, during one hour, te
172 THE CHRISTIAN MINISTRY
all .the scholars, such religious instruction to be confined to the
reading- and explanation of the Scriptures; that on every Lord's
day he should give instruction in the liturgy, catechism, and ar-
ticles of the Church of England, and that the scholars should
attend church every Lord's day, unless they were children of per-
sons not in communion with the Church of England. In giving
the sanction of the court to this arrangement, the Vice-Chancel-
lor said, that he wished to have it distinctly understood that the
ground on which he had proceeded was not a preference of one
form of religion to another, but the necessity, if the matter was
left to him judicially, to adopt the course of requiring the teach-
ers to be members of the Church of England.
This case clearly shows, that, at the present day, a school,
founded by a charity, for the instruction of children, cannot be
sanctioned by the courts as a charity, unless the scheme of edu-
cation includes religious instruction. It shows, too, that this
general requisition of the law is independent of a church es-
tablishment, and that it is not religion in any particular form,
but religion, religious and Christian instruction in some form,
which is held to be indispensable. It cannot be doubted how a
charity for the instruction of children would fare in an English
court, the scheme of which should carefully and sedulously
exclude all religious or Christian instruction, and profess to
establish morals on principles no higher than those of enlight-
ened Paganism.
Enough, then, your honors, has been said on this point ; and
I am willing that inquiry should be prosecuted to any extent of
research to controvert this position, that a school of education
for the young, which rejects the Christian religion, cannot be
sustained as a charity, so as to entitle it to come before the
courts of equity for the privileges which they have power to con-
fer on charitable bequests.
Mr. Webster then replied to the remarks of Mr. Binney, in relatior
to the Liverpool Blue Coat School, and read from the report of Mr.
Bache on education in Europe, Mr. Bache having been sent abroad by
the city of Philadelphia to investigate this whole matter of education.
If Mr. Girard had established such a school as that, it would
have been free from all those objections that have been raised
against it This Liverpool Blue Coat School, though too much
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 173
of a religious party character, is strictly a church establishment.
It is a school established on a peculiar foundation, that of the
Madras system of Dr. Bell. It is a monitorial school; those
who are advanced in learning are to teach the others in religion,
as well as secular knowledge. It is strictly a religious school,
and the only objection is, that in its instruction it is too much
confined to a particular sect.
Mr. Binney observed that there was no provision made for clergymen.
That is true, because the scheme of the school is monitorial^
in which the more advanced scholars instruct the others. But
religious instruction is amply and particularly provided for.
Mr. Webster then referred to Shelford, p. 105, and onward, under the
head "Jews," in the fourth paragraph, where, he stated, the whole
matter, and all the cases, as regarded the condition and position of the
Jews respecting various charities, were given in full.
He then referred to the Smithsonian legacy, which had been men-
tioned, and which he said was no charity at all, nor any thing like a
charity. It was a gift to Congress, to be disposed of as Congress saw
fit, for scientific purposes.
He then replied, in a few words, to the arguments of Mr. Binney in re-
lation to the University of Virginia ; and said that, although there was
no provision for religious instruction in that University, yet he supposed it
would not be contended for a moment that the University of Virginia was
a charity, or that it came before the courts claiming of the law of that
State protection as such. It stood on its charter.
I repeat again, before closing this part of my argument, the
proposition, important as I believe it to be, for your honors' con-
sideration, that the proposed school, in its true character, ob-
jects, and tendencies, is derogatory to Christianity and ieligion.
If it be so, then I maintain that it cannot be considered a
charity, and as such entitled to the just protection and support
of a court of equity. I consider this the great question for the
consideration of this court. I may be excused for pressing it
on the1 attention of your honors. It is one which, in its decis-
ion, is to influence the happiness, the temporal and the eternal
welfare, of one hundred millions of human beings, alive and to
be born, in this land. Its decision will give a hue to the appar-
ent character of our institutions ; it will be a comment on their
spirit to the whole Christian world. I again press the question
15*
174 THE CHRISTIAN MINISTRY
to your honors: Is a clear, plain, positive system for the in*
st ruction of children, founded on clear and plain objects of infidel-
ity, a charity in the eye of the law, and as such entitled to the priv-
ileges awarded to charities in a court of equity? And with this,
I leave this part of the case.
THIRD DAY.
I shall now, may it please your honors, proceed to inquire
whether there is, in the State of Pennsylvania, any settled
public policy to which this school, as planned by Mr. Girard in
his will, is in opposition ; for it follows, that, if there be any set-
tled public policy in the laws of Pennsylvania on this subject,
then any school, or scheme, or system, which tends to subvert
this public policy, cannot be entitled to the protection of a court
of equity. It will not be denied that there is a general public
policy in that, as in all States, drawn from its history and its
laws. And it will not be denied that any scheme or school of
education which directly opposes this is not to be favored by
the courts. Pennsylvania is a free and independent State.
She has a popular government, a system of trial by jury, of free
suffrage, of vote by ballot, of alienability of property. All these
form part of the general public policy of Pennsylvania. Any
man who shall go into that State can speak and write as much
as he pleases against a popular form of government, freedom of
suffrage, trial by jury, and against any or all of the institutions
just named; he may decry civil liberty, and assert the divine
right of kings, and still he does nothing criminal ; but if, to give
success to such efforts, special power from a court of justice is
required, it will not be granted to him. There is not one of
these features of the general public policy of Pennsylvania
against which a school might not be established and preachers
and teachers employed to teach. That might in a certain sense
be considered a school of education, but it would not be a
charity. And if Mr. Girard, in his lifetime, had founded schools
and employed teachers to preach and teach in favor of infideli-
ty, »r against popular government, free suffrage, trial by jury, or
the alienability of property, there was nothing to stop him or
prevent him from so doing. But where any one or all of these
come to be provided for a school or system as a charity, and
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 175
come before the courts for favor, then in neither one, nor all, nor
any, can they be favored, because they are opposed to the gen-
eral public policy and public law of the State.
These great principles have always been recognized ; and
they are no more part and parcel of the public law of Penn-
sylvania than is the Christian religion. We have in the char-
ter of Pennsylvania, as prepared by its great founder, William
Penn, we have in his " great law," as it was called, the declara-
tion, that the preservation of Christianity is one of the great
and leading ends of government. This is declared in the char-
ter of th^ State. Then the laws of Pennsylvania, the statutes
against blasphemy, the violation of the Lord's day, and others
to the same effect, proceed on this great, broad principle, that
the preservation of Christianity is one of the main ends of gov-
ernment. This is the general public policy of Pennsylvania.
On this head we have the case of Updegraph v. The Com-
monwealth,* in which a decision in accordance with this
whole doctrine was given by the Supreme Court of Pennsyl-
vania. The solemn opinion pronounced by that tribunal be-
gins by a general declaration that Christianity is, and has always
been, part of the common law of Pennsylvania.!
I have said, your honors, that our system of oaths in all our
courts, by which we hold liberty and property, and all our rights,
is founded on or rests on Christianity and a religious belief. In
like manner the affirmation of Quakers rests on religious scru-
ples drawn from the same source, the same feeling of religious
responsibility.
The courts of Pennsylvania have themselves decided that a
charitable bequest, which counteracts the public policy of the
State, cannot be sustained. This was so ruled in the often
cited case of the Methodist Church v. Remington. There, the
devise was to the Methodist Church generally, extending through
the States and into Canada, and the trust was declared void
on this account alone ; namely, that it was inconsistent with the.
public policy of the State, inconsistent with the general spirit of
the laws of Pennsylvania. But is there any comparison to be
made between that ground on which a devise to a church is
declared void, namely, as inconsistent with the public policy
* 11 Sergeant & Rawle, p. 394. f See Appendix- No II*
176 THE CHRISTIAN MINISTRY
of the State, and the case of a devise which undermines and
opposes the whole Christian religion, and derides all its minis-
ters; the one tending to destroy all religion, and the other be-
ing merely against the spirit of the legislation and laws of the
State, and the general public policy of government, in a very
subordinate matter? Can it be shown that this devise of a
piece of ground to the Methodist Church can be properly set
aside, and declared void on general grounds, and not be shown
that such a devise as that of Mr. Girard, which tends to overturn
as well as oppose the public policy and laws of Pennsylvania,
can also be set aside ?
Sir, there are many other American cases which I could cite
to the court in support of this point of the case. I will now only
refer to 8 Johnson, page 291.
It is the same in Pennsylvania as elsewhere, the general prin-
ciples and public policy are sometimes established by consti-
tutional provisions, sometimes by legislative enactments, some-
times by judicial decisions, and sometimes by general consent.
But however they may be established, there is nothing that we
look for with more certainty than this general principle, that
Christianity is part of the law of the land. This was the case
among the Puritans of New England, the Episcopalians of the
Southern States, the Pennsylvania Quakers, the Baptists, the
mass of the followers of Whitefield and Wesley, and the Pres-
byterians ; all brought and all adopted this great truth, and all
have sustained it. And where there is any religious sentiment
amongst men at all, this sentiment incorporates itself with the
law. Every thing declares it. The massive cathedral of the
Catholic ; the Episcopalian church, with its lofty spire pointing
heavenward ; the plain temple of the Quaker ; the log church
of the hardy pioneer of the wilderness ; the mementoes and me-
morials around and about us ; the consecrated graveyards, their
tombstones and epitaphs, their silent vaults, their mouldering
contents ; all attest it. The dead prove it as well as the liv-
ing. The generation that are gone before speak to it, and pro-
nounce it from the tomb. We feel it. All, all, proclaim that
Christianity, general, tolerant Christianity, Christianity inde-
pendent of sects and parties, that Christianity to which the
sword and the fagot are unknown, general, tolerant Christian-
ity, is the law of the land.
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 177
Mr. Webster, having gone over the other points in the case, which
were of a more technical character, in conclusion, said : —
I now take leave of this cause. I look for no good whatever
from the establishment of this school, this college, this scheme,
this experiment of an education in " practical morality," un-
blessed by the influences of religion. It sometimes happens
to man to attain by accident that which he could not achieve
by long-continued exercise of industry and ability. And it
is said even of the man of genius, that by chance he will
sometimes " snatch a grace beyond the reach of art." And
I believe that men sometimes do mischief, not only beyond
their intent, but beyond the ordinary scope of their talents
and ability. In my opinion, if Mr. Girard had given years to
the study of a mode by which he could dispose of his vast for-
tune so that no good could arise to the general cause of charity,
no good to the general cause of learning, no good to human so-
ciety, and which should be most productive of protracted strug-
gles, troubles, and difficulties in the popular counsels of a great
city, he could not so effectually have attained that result as he
has by this devise now before the court. It is not the result of
good fortunes, but of bad fortunes, which have overridden and
cast down whatever of good might have been accomplished by
a different disposition. I believe that this plan, this scheme, was
unblessed in all its purposes, and in all its original plans. Un-
wise in all its frame and theory, while it lives it will lead an an-
noyed and troubled life, and leave an unblessed memory when it
dies. If I could persuade myself that this court would come to
such a decision as, in my opinion, the public good and the law
require, and if I could believe that any humble efforts of my own
had contributed in the least to lead to such a result, I should
deem it the crowning mercy of my professional life.
J 78 THE CHRISTIAN MINISTRY
APPENDIX
No. I. — Page 146.
Extract from the Writings of Bishop White.
The will goes to the extent of the abandonment of religion, a8 pre-
scribing the rules of human conduct. If a collection of youth may
have their attention exclusively directed to other motives, no reason can
be given why they may not be surrendered to the same through life.
If the instructors are forbidden to call the attention of their pupils to the
Author of all the wonders which open on their senses, and to a state
succeeding that which, as they must soon discover, will be ended by the
grave (and certainly silence on these and on the like subjects is exacted
by the terms of the bequest) ; and if the prescribed rule of life be suf-
ficient until the age of fourteen or fifteen, or even of eighteen, long
before which there will be felt the struggles between inclination and the
sense of duty ; the sufficiency of the same rule for the remainder of
life is an obvious consequence.
The error of Mr. Girard's restrictions is evident in the principle on
which it is founded, the diversity of sentiment on subjects of religion.
Let the principle be tested in application to the relations of domestic
life. No wise head of a family withholds instruction from his children
on the reciprocal duties of parent and child, and of the parties to a mar-
riage contract. Yet how many shades of difference of opinion are there
as to the proper extent of parental power, and as to that of the corre-
spondent obedience of the child ? Similar diversities prevail as to the
other relations. Is sas;e instruction to be delaved on these accounts ?
The like remark may be made on the subject of civil rulers, and of
the allegiance due from the citizen or subject. What a wide fiel^l is
open by the claims of power in the hands of a single person, or in those
of a few, or in an aristocracy, or in a popular assembly, or in some one
of the many mixed forms which have been either adopted or imagined !
According to the reasoning of the will, all determination should be de-
ferred to the ages of fourteen or fifteen, or perhaps eighteen ; yet, in
disregard of such laxity, every good citizen instils into the minds of his
offspring sentiments which sustain the rights of those who govern, and
exact obedience within the limits of the laws..
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG 179
The present writer has a very limited acquaintance with the gentle-
men who compose the respectable bodies of our city councils. He sup-
poses of the most, and thinks it probable of all of them, that they con-
fess the claims of religion, by denominating themselves as belonging,
each of them, to one or to another of the religious societies within the
bounds of the city. He therefore, with great respect, submits to their
understandings how far they can, with clear consciences, undertake the
government of a seminary which discharges its pupils from all regard
to religious obligation, and from all subjection to religious discipline.
They cannot but be aware of the contrariety of so ungodly a regimen
to those Holy Scriptures which they make the foundation of their sev-
2ral creeds. In the Old Testament they read, " Bring up a child in the
way in which he should go." They cannot be ignorant of what the
Jewish lawgiver says concerning the laws of God : " Thou shalt diligently
teach them to thy children, and thou shalt talk of them when thou sit-
test in thy house, and when thou walkest by the way, and when thou
liest down, and when thou risest up." And, if moral . cultivation be a
part of the plan of any literary institution, it cannot be beyond the reach
of the caution, " The fear of the Lord is the beginning of wisdom."
The calls of the New Testament are in unison with those of the Old :
" Ye parents, bring up your children in the nurture and admonition of
the Lord " ; " Children, obey your parents in the Lord " ; and, " I write
unto you, little children, because ye have known the Father." Very
different are these and the like provisions from the delay of even the
mention of such sanctions of duty to young men under the ages of
fourteen or fifteen, or towards eighteen, whatever need there may be
seen of them in the increasing strength of their passions and of their
appetites.
Let there be attention to the operation of the bequest in its occasional
violation of the tenderest feelings of the parental breast. We will sup-
pose four religious men, an Episcopalian, a Presbyterian, a Baptist, and
a Methodist, in circumstances barely competent to the subsistence of
their families. Let them perceive themselves departing this life, with-
out provision for the support and the education of their children ; and
no other guardianship over them to be relied on, besides that of certain
functionaries of the city, wisely provided for the object. These guar-
dians may judge the binding of them to reputable tradesmen to have
less prospect of advantage than the entering of them into the contem-
plated receptacle of orphans. According to the character of the sup
posed dying men, notwithstanding the diversities of their opinions jn
various points, they would be the same in the design, had their lives
been spared, of giving a religious education to their children ; whose
deaths they would deem a less calamity than their being thrown on a
180 THE CHRISTIAN MINISTRY
svorld of temptation at the age of fourteen, or fifteen, or eighteen, with-
out the knowledge of God or of a future state, or of those Scriptures
which, in the parental estimate, are necessary to their being made " wise
unto salvation." A great proportion of the children of the poor are dis-
posed of under a guardianship created by the laws. This will probably
be the principal source of supply to a seminary in which the sound of
the voice of religion is never to reach the ears of the juvenile inmates.
It would be unjust to the memory of Mr. Girard not to notice his re-
marking it as a privilege of his orphans, on their arrival at the age for
the leaving of the seminary, to adopt such tenets as their matured rea-
son may enable them to prefer. It is not to the purpose to inquire how
far this privilege which his proteges will derive from the laws of the
land may be supposed to add to or enforce the moral education which
they may have brought with them from the seminary. Whatever
may have been, or may not have been, the wishes of the testator on
this point, and whatever effect our favorable construing of his views
may have on our estimate of his own character, it is all foreign to
the present argument, which tends to the two positions, that it is irre-
ligious and unchristian to accept of the public responsibility of an insti-
tution, to the pupils of which there shall be denied all instruction in
religion ; and that, if other motives are sufficient for their government
until their arnval at the ages of fourteen and fifteen and eighteen, no
reason can bo given why they may not be sufficient through the remain-
der of life.
Perhaps there may seem an interference of the argument with -a
prejudice not uncommon, that the minds of the secluded orphans would
be sensible of impressions made on them by nature of the being of God,
and of their responsibility to his tribunal. This is the exploded doctrine
of innate ideas. If there be any not yet reached by what has been
written on the subject by John Locke, they may be referred to the ob-
servations lately made on those born deaf and dumb ; who know noth-
ing of the primary truths of religion, until taught through the medium
of the expedients brought into operation for that unfortunate class of
the human family. Whether the design of Mr. Girard can be strictly
executed, may be considered as a problem. Should this be the case,
his orphans will leave the seat of their juvenile residence as void of any
trace of a knowledge of the Deity, as some who might be shown *o him
in an institution which in his will he has properly distingiusned by a
munificent donation.
It is required that for admission the orphan shall be between six and
ten years of age. Doubtless, within those terms, there are sometimes
salutary impressions on infant minds. W7here this has been the case, it
is not probable that a single trace of them will remain through years, in
a sphere so unfavorable to their cultivation.
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 181
It may be anticipated as very unlikely, that for the intended seminary
there will be obtained, even if it should be thought desirable, instructors
who are believers in the Christian religion, and who have its interests at
heart. Were this possible, it is easy to perceive the painful circum-
stances in which such instructors must sometimes find themselves. Let
an instructor be supposed taking a walk with one of the pupils, on some
fine morning during the renewal of the herbage of the year. Let there
arise in the mind of the former some such passage as the address to the
Deity, in Adam1s Morning Hymn, in Milton: "These are thy won-
drous works, Parent of good ! " The instructor, warmed by the theme
and the surrounding scene, might be tempted to break out in such an act
of adoration. But it would be unfaithfulness to his trust, and he must keep
it a secret from his pupil that he believes in the existence of such a be-
ing. The supposition might be diversified by a great variety of cases,
sufficient to show that, under the provisions of the will, there will be an
interdict of Christian instructors, whether designed or not, as well as of
Christian teaching, within the walls.
That there will be a supply of teachers of a very different descrip*
tion, may be counted on; and modern times have multiplied those pests
of society who, under the profession of schoolmasters, lose no opportu-
nities of infusing their poison of infidelity into unsuspicious minds. Such
instructors have no authority, under the will, to go beyond the lessons
of mere morality, so as to teach any doctrine of absolute irreligion,
from the highest point of atheism to the most specious of all the expe-
dients for the misrepresentation of any of the contents of Holy Scrip-
ture. But no one, acquainted with human nature, will believe that such
instructors, in teaching, will find reluctance to the guarding of their
pupils against the religious truths which will be addressed to them on
their entrance into social life, resolving what they will hear into popu-
lar fable and superstition, which it is now high time to lay aside.
From the tenor of the argument, there will have been anticipated the
opinion of what should be expected from city councils. It is, that there
should be a respectful, but determined, rejection of the trust intended to
be instituted by the will of Stephen Girard, Esq., for tne maintaining
and educating of orphans.
It is a great sacrifice, but it cannot be too great, when the acceptance
of it would be an acknowledgment that religion, even in its simplest
forms, is unnecessary to the binding of men to their various duties.
As yet, no such theory has shown its face in the proceedings of any of
the constituted authorities of the United States. If the breaking of this
unholy ground should be a corporate act of our city councils, there will
be apprehended from it the most disastrous consequences, by
A Citizen of Philadelphia.
VOL. VI. 16
182 THE CHRISTIAN MINISTRY
No. II. — p. 175.
Extract from the Judgment of the Supreme Court of Pennsylvania, in
the Case of Updegraph v. The Commonwealth.
Christianity, general Christianity, is, and always has been, a part of
the common law of Pennsylvania ; Christianity, without the spiritual
artillery of European countries ; for this Christianity was one of the
considerations of the royal charter, and the very basis of its great
founder, William Penn ; not Christianity founded on any particular re-
ligious tenets ; not Christianity with an established church, and tithes,
and spiritual courts ; but Christianity with liberty of conscience to all
men. William Penn and Lord Baltimore were the first legislators who
passed laws in favor of liberty of conscience ; for before that period the
principle of liberty of conscience appeared in the laws of no people,
the axiom of no government, the institutes of no society, and scarcely
in the temper of any man. Even the Reformers were as furious against
contumacious errors, as they were loud in asserting the liberty of con-
science. And to the wilds of America, peopled by a stock cut off by
persecution from a Christian society, does Christianity owe true freedom
of religious opinion and religious worship
From the time of Bracton, Christianity has been received as a part of
the common law of England. I will not go back to remote periods,
but state a series of prominent decisions, in which the doctrine is to be
found
In the case of the King v. Woolaston, (2 Stra., 844; Fitzg., 64;
Raymond, 162,) the defendant had been convicted of publishing five
libels, ridiculing the miracles of Jesus Christ, his life and conversation,
and it was moved in arrest of judgment, that this offence was not punish-
able in the temporal courts ; but the court said they would not suffer it to
be debated "whether to write against Christianity generally was not an
offence of temporal cognizance." It was further contended, that it was
merely to show that those miracles were not to be taken in a literal, but
allegorical sense, and therefore the book could not be aimed at Chris-
tianity in general, but merely attacking one proof of the Divine mission.
But the court said the main design of the book, though professing to
establish Christianity upon a true bottom, considers the narrations of
Scripture as explanative and prophetical, yet that these professions could
not be credited, and the rule is, allegatio contra factum non est admit-
tendum. In that case the court laid great stress on the term general,
and did not intend to include disputes between learned men on particu-
lar and controverted points ; and Lord Chief Justice Raymond (Fitzg.,
66) said : " I would have it taken notice of, that we do not meddle with
AND THE RELIGIOUS INSTRUCTION OF THE YOUNG. 183
the difference of opinion, and that we interfere only where the root of
Christianity is struck at."
In the justly admired speech of Lord Mansfield, in a case which made
much noise at the time (Evens v. Chamberlain of London, Furneaux's
Letters to Sir W. Blackstone, App. to Black. Com., and 2 Burn's
Eccles. Law, p. 95), conscience, he observed, is not controllable by
human laws, nor amenable to human tribunals ; persecution, or attempts
to force conscience, will never produce conviction, and are only cal-
culated to make hypocrites or martyrs. There never was a single in-
stance, from the Saxon times down to our own, in which a man was
punished for erroneous opinions. For atheism, blasphemy, and revil-
ing the Christian religion, there have been instances of prosecution at
the common law ; but bare non-conformity is no sin by the common law,
and all pains and penalties for non-conformity to the established rites
and modes are repealed by the acts of toleration, and Dissenters exempt-
ed from ecclesiastical censures. What bloodshed and confusion have
been occasioned, from the reign of Henry the Fourth, when the first
penal statutes were enacted, down to the Revolution, by laws made to
force conscience ! There is certainly nothing more unreasonable, nor
inconsistent with the rights of human nature, more contrary to the spirit
and precepts of the Christian religion, more iniquitous and unjust, more
impolitic, than persecution against natural religion, revealed religion,
and sound policy. The great, and wise, and learned judge observes :
" The true principles of natural religion are pan of the common law ;
the essential principles of revealed religion are part of the common law ;
so that a person vilifying, subverting, or ridiculing them may be prose-
cuted at common law ; but temporal punishments ought not to be inflicted
for mere opinions." Long before this, much suffering, and a mind of
strong and liberal cast, had taught this sound doctrine and this Chris-
tian precept to William Penn. The charter of Charles the Second re-
cites, that " Whereas our trusty and beloved William Penn, out of a
commendable desire to enlarge our English empire, as also to reduce
the savages, by gentle and just measures, to the love of civil society and
the Christian religion, hath humbly besought our leave to translate a
colony," &,c. The first legislative act in the colony was the recogni-
tion of the Christian religion and establishment of liberty of conscience.
Before this, in 1646, Lord Baltimore passed a law in Maryland in favor
of religious freedom ; and it is a memorable fact, that of the first legis-
lators who established religious freedom one was a Roman Catholic
and the other a Friend. It is called the great law, of the body of laws
in the Prevince of Pennsylvania, passed at an assembly at Chester, the
7th of the 12th month, December. After the following preamble and
declaration, viz. : " Whereas the glory of Almighty God and the good
184 THE CHRISTIAN MINISTRY.
of mankind is the reason and end of government, and therefore govern*
ment in itself is a venerable ordinance of God, and forasmuch as it is
principally desired and intended by the proprietary and Governor and
the freemen of the Province of Pennsylvania, and territories thereunto
belonging, to make and establish such laws as shall best preserve true
Christian and civil liberty, in opposition to all unchristian, licentious,
and unjust practices, whereby God may have his due, Csesar his due,
and the people their due, from tyranny and oppression on the one side,
and insolency and licentiousness on the other, so that the best and firm-
est foundation may be laid for the present and future happiness both of
the Governor and people of this Province and territoiies aforesaid, and
their posterity " (Then follow enactments against profanity, blas-
phemy, and violation of the Lord's day.)
Amidst the concurrent testimony of political and philosophical writ-
ers among the Pagans, in the most absolute state of democratic free-
dom, the sentiments of Plutarch on this subject are too remarkable to
be omitted. After reciting that the first and greatest care of the legis-
lators of Rome, Athens, Lacedsemon, and Greece in general, was, by
instituting solemn supplications and forms of oaths, to inspire them with
a sense of the favor or displeasure of Heaven, that learned historian de-
clares, that we have met with towns unfortified, illiterate, and without
the conveniences of habitations, but a people wholly without religion no
traveller hath yet seen ; and a city might as well be erected in the air,
as a state be made to unite where no divine worship is attended. Re-
ligion he terms the cement of civil union and the essential support of
legislation. No free government now exists in the world, unless where
Christianity is acknowledged and is the religion of the country. So fai
from Christianity, as the counsel contends, being part of the machinery
necessary to despotism, the reverse is the fact. Christianity is part of
the common law of this State. It is not proclaimed by the command-
ing voice of any human superior, but expressed in the calm and mild
accents of customary law. Its foundations are broad, and strong, and
deep ; they are laid in the authority, the interest, the affections of the
people. Waiving all questions of hereafter, it is the purest system of
morality, the firmest auxiliary, and only stable support, of all human
laws. It is impossible to administer the laws without taking the religion
which the defendant in error has scoffed at, that Scripture which he has
reviled, as their basis. To lay aside these is at least to weaken the
confidence in human veracity so essential to' the purposes of society,
and without which no question of property could be decided and no
criminal brought to justice ; an oath in the common form on a dis-
credited book would be a most idle ceremony.
THE PROVIDENCE RAILROAD COMPANY
AGAINST THE CITY OF BOSTON.*
This case was a bill in equity filed by the Boston and Providence
Railroad Company against the City of Boston, praying the court to en-
join the city from making sale of a strip of land adjoining the land north-
erly on which the complainants' depot and passenger station, and other
buildings, had been erected. The city officers advertised this strip of
land, with other lots, for sale at public auction. The railroad com-
pany claimed to be entitled to the use of said strip of land, as a public
street or highway, and contended that it had either been laid out as a
street by the proper authorities of the town, in 1794, or was such by
dedication at some period subsequent. The city of Boston denied both
these propositions, and maintained that the land in question was not sub-
ject to the encumbrance claimed to have been impressed on it, and was
free to be sold or disposed of at the pleasure of the city.
The court ruled that the premises had been appropriated to the purposes
of a street, and could not be sold without a violation of the rights of the
complainants. The following argument was delivered by Mr. Webster,
as counsel for the city of Boston.
May it please your Honors :
There are two or three points which, in the multitude of
questions to be considered in this case, I shall leave where
the counsel for the complainants has placed them, without fur-
ther discussion. One of these is that which arises upon the
alleged encroachment of the railroad upon the land in question,
* An Argument before the Supreme Court of Massachusetts, sitting at Bos-
ton as a Court of Equity, on the 3d of April, 1844.
Of the very numerous arguments of Mr. Webster, in the ordinary practice of
the profession, on questions of local interest, not involving political and constitu-
tional principles, few have been reported, nor if reported would it have been ex-
pedient to introduce them into a collection of this kind. It has been deemed
proper to make an exception in the present case, for the sake of presenting a sin-
gle specimen of Mr. Webster's mode of arguing causes of this kind.
16*
1S6 THE PROVIDENCE RAILROAD COMPANY
whether that be a street or land belonging to the city, by
which encroachment it is averred by the city that the northern
line of the railroad property is pushed farther north. This
is a matter of detail, depending upon an examination of evi-
dence, and I leave it to the judgment of the court without dis-
cussion.
Another question is that respecting the averment that the land
in controversy is a part of the Common. This is also to be as-
certained by an examination of evidence, by the original deeds
and plans describing the Common, and by the votes and pro-
ceedings of the town, which have been fully laid before you.
But I take occasion to say, as that is a question which has
caused some interest and excitement, that, in my opinion, this
land is not, and never was, a part of the Common.
If this street, or land, or whatever it may be, has become and
now is a public highway, it must have become so in one of
three ways, and to these points I particularly call your honors'
attention.
1st. It must either have become a highway by having been
regularly laid out according to usage and law ; or
2d. By dedication as such by those having the power to
dedicate it, and acceptance and adoption so far as they are
required ; or
3d. As a highway by long user, without the existence of
proof of any original laying out, or dedication.
It is not pretended by any one that the land in question is a
highway, upon the last of these grounds. I shall therefore
confine myself to the consideration of the other two questions ;
namely, Was there ever a formal and regular laying out of a
street here ? or was there ever a regular and sufficient dedication
and acceptance ?
The general history of this strip of land, so far as this contro-
versy is concerned, is well known, and the facts are all fully
narrated and exhibited in the evidence which has been laid be-
fore you. In the year 1794, there existed in the town of Bos-
ton six ropewalks, all in the central part of the town, on Atkin-
son and Pearl Streets ; but they were all burnt down in July of
that year, much other valuable property being destroyed by the
same fire. It immediately became an object of public interest
to take measures to transfer the site of these ropewalks, and to
AGAINST THE CITY OF BOSTON. 187
come to an understanding with their proprietors that they
should not rebuild upon the old locality. A town-meeting was
accordingly called ; and a committee was raised, with instruc-
tions to confer with the ropewalk proprietors and come to some
agreement with them to place their buildings upon the marshes
" at the bottom of the Common," as it was expressed. This
was considered a very important matter. The committee ap-
pointed consisted of some of the most distinguished inhabit-
ants of the town, among whom I may mention Judge Minot
and the late*Governor Sullivan, names eminent in our history.
The history of this piece of land, from the date of this meet-
ing down to the present day, divides itself into three eras or
periods : the first, from the votes and grants of the town in 1794
till 1824, when all property in these lands was reconveyed to
the city, a period of thirty years ; then from that time until the
location of the track of the Providence Railroad in 1833-4, a
period of ten years ; and then to the laying out of the land into
lots, about a year ago. These three periods cover about fifty
years.
The general question is, whether this land became a public
road or way, either by a formal laying out or by actual dedica-
tion, in either of these periods.
The plaintiffs' bill alleges that there was a public way laid
out, either by the votes of the town in 1794, or by other acts
subsequently accepted by the town. These acts we suppose to
mean the grants made by the selectmen in compliance with the
authority conferred by these votes. The first subject of inquiry,
therefore, is into the true character and effect of the grant of
1794, and the conveyances made in pursuance of it ; and into
the acts of the parties under that grant and conveyance. Do
either or all of these show that a road or way was laid out upon
this land in 1794 or 1795 ?
Now I will first pause for a moment to recall your honors' at-
tention to these proceedings in 1794. At the town-meeting, after
the general object for which it had been called had been stated,
the record says that they proceeded "to the second article of the
warrant," which was, " Whether the town will appropriate the
marsh at the bottom of the Common, or any other of the
town's lands, for ropewalks for the accommodation of the suf-
ferers by the late fire " j and subsequently they appointed a
L88 THE PROVIDENCE RAILROAD COMPANY
committee to confer with the rope walk proprietors, and " cause a
survey to be made of the marsh at the bottom of the Common ;
also, part of the land on Boston Neck, that may be sufficient for
erecting the like number of ropewalks as were owned and con-
sumed."
At a subsequent meeting, on the 1st of September of the
same year (1794), the committee made their report, in the
form of votes, which they recommended the town to adopt.
They were clearly and distinctly drawn up, doubtless by one
of the eminent professional gentlemen who were on the com-
mittee. %
These votes first grant to the owners of the late ropewalks
11 a piece of marsh land and flats at the bottom of the Com-
mon," and then proceed to direct the manner in which it is to
be held, and the restrictions upon its use. Thus it was pro-
vided that the land should be divided into six p irts or lots, one
for each sufferer by the fire ; the whole land was sufficiently and
particularly described ; and there are then several provisions with
regard to the manner of the use. First, it is provided that, in
consideration of this grant, neither of the grantees shall erect
ropewalks on the land in Pearl Street occupied by their late
ropewalks ; secondly, that there shall never be any buildings
but ropewalks, nor more than six of them, erected upon the
granted land ; then that the heads of the ropewalks shall be
placed upon the southerly ends of the respective lots ; then that
the grantees shall erect, within two years, a sufficient sea-wall
along the whole westerly side of these lands.
The votes further provide, that " nothing in the foregoing
grants shall be considered as conveying to the said grantees, or
either of them, any rig-Jit of passage in any direction across the
Common, to or from the said granted lands."
The selectmen are then instructed to execute deeds to the
grantees embodying these conditions, and they are also directed
by the last vote to " lay out a road sixty feet wide, from Pleas-
ant Street along the easterly side of the lands hereby granted,
over the marsh, towards Beacon Street, in order to meet a road
that may be opened from West Boston Bridge."
These votes were all passed, and the grants were all made,
subject to a reservation expressed in the following terms: —
" Reserving, however, sixty feet in width across the southerly
AGAINST THE CITY OF BOSTON. 189
end of said piece of land, for a road from Pleasant Street to
the channel."
The word used in making this reservation is simply " road "
not " way " or " public way." Now I understand these twc
words, "road" and " way," to be synonymous. There may be
a " public way" or a '■ public road" a " private way " or a " pri-
vate road"] and when either word is used without a qualifying
epithet, evidence of the whole transaction must be looked into
to show whether a public or private way was intended. It
may be either; and in every case where either of these words is
used without any qualifying word, it must be judged by the
context, and by other known circumstances, what is its mean-
ing in that particular case.
What, then, was the meaning of these votes? What did
they accomplish ? What was it intended that they should ac-
complish ?
Now, whatever was the meaning and intent of this reserva-
tion, it is clear that by this vote the town could not lay out a
highway. It could not do this at all without the action of the
selectmen. To lay out a street is one of the functions dele-
gated by the statutes to the town officers, who are the select-
men ; a function which must be performed by the legally dele-
gated body. It is sometimes the course for the town to request
the selectmen to lay out the road. The practice shows that it
is not in the power of the town to lay out a road, but in that of
the selectmen. The town accepts the road after it is laid out.
The selectmen may lay out a road without its being accepted ;
or the town may request the selectmen to lay out a road, and
be refused. Neither possesses the power of the other.
Then the question is, In what capacity was the town acting
in passing these votes ? Was it engaged in a municipal capa-
city, performing its public trust, or was it managing its private
affairs, acting just as any other corporation or individual own-
ing property would do when about to transfer that property ?
There was no municipal act at all, except that it was the act
of a municipal corporation. The town was doing only what
every proprietor about to dispose of his soil usually does.
Allow me to say here, that some confusion arises from call-
ing this land belonging to the city "public lands." It is private
land, private property ; just as much as that of the Providence
190 THE PROVIDENCE RAILROAD COMPANY
Railroad Company ; not devoted, to be sure, to private use, but
private property which the city happens to own, and which it
may dispose of at any time as such.
The town, then, was acting as a mere proprietor; selling a
part of its land, and granting an easement over the rest, so that
the purchaser might use the part he had obtained. This is the
obvious character of the transaction. The land lay in the bo-
som of the marsh ; and unless there was access to it given over
the other lands of the grantor, the lands granted would have
been of little or no value. If they had been granted without
provision for any right of way, what would have been the
rights of the parties ? The grantee would have been entitled
to a " way of necessity," as it is called ; the right to pass over
other lands of the grantor in order to get upon his own lands.
And where he has this private way of necessity, then, unless it
be made matter of agreement, the grantee is to select his own
way wherever he chooses. Each of several grantees, also, is
entitled to take the way most convenient to himself, unless a
certain way has been provided for him by agreement.
Now in this case there was done exactly what was most
convenient and proper. It was agreed that the grantees should
have a certain access to their lands over lands of the grantor,
and one that was most convenient to them ; and this arrange-
ment secured the efficacy of the provision that the grantees
should have no right of passage in any direction across the
Common, to or from their lands. This seems distinct, proper,
and in accordance with the rights of the parties.
Now I do not deny that the town, or other grantor, in making
the grant, may provide access over its remaining lands to the
granted lands, by means of a public highway, or land granted
for use as a highway. The town did so at this very time with
regard to Charles Street, and I now proceed to explain the
meaning of the reservation in question by that act, in regard to
Charles Street. Every thing in the warrant calling the town-
meeting whose acts we are considering (with one exception,
unimportant in itself) related to this matter of the ropewalks.
Nobody had petitioned for any way or road, and it is evident
that when they made the private way, and when they made
the public way, Charles Street, they were doing two separate
acts necessary to carry out the project of transferring the site
of the ropewalks.
AGAINST THE CITY OF BOSTON 191
Now, although, in the two cases, the same language is used
in one respect, namely, the word road, it is to be remarked that
they lay out this Charles Street. They do it by the same phra-
seology, by the same term " road," but by what else ? They
say there should be a road sixty feet wide from Pleasant
Street along the eastern edge of the lands, to be joined by a
road expected to be made from West Boston Bridge. And
they direct the selectmen to lay it out. I presume the select-
men did lay it out, and that, when it was laid out, it was ac-
cepted by the town, for it is now upon the list of the streets.
But the proceedings of the town in the two cases were
very different, each being suited to the objects to be obtained.
The one was to be a public street, an open and general thor-
oughfare, a line of passage from the north to the south end
of the town. This they directed the selectmen to lay out;
they did not merely reserve the land. They directed the select-
men to lay out the road, and they did it. But the proceedings
about this strip southeast of the ropewalk lands were wholly
different. It was a road which, as was said by one of the wit-
nesses, " ran overboard." The reservation on paper went down
to the channel ; for it was intended to build the ropewalks over
tide-water ; and they were actually built with their heads stand-
ing on solid land and the rest upon piles, and, until the Mill
dam was constructed, the water flowed in under the rope-
walks at every tide.
I submit, therefore, that nothing but an easement was intend-
ed, coupled, perhaps, from the language used, from the breadth
reserved, and from its being extended down to the channel,
with the idea, and the contemplation, that a road might at
some future time be laid out for the use of the town. I have
already observed, that the town could not lay out a street by its
own authority, but that it was not unusual for the town to re-
quest the selectmen to lay out the street, and for the selectmen
to comply, not to obey, for the action of the town has not the
effect of a command. Now I submit, that if, by this reservation
in the vote of the town, it was intended to lay out the street, it
was not legal. If it was intended as a direction to the select-
men to lay out the street, why was not the proper language
used ? If it was intended to lay out a street by the mere ac-
tion of the town, why did they not say so ? If it was intended
192 THE PROVIDENCE RAILROAD COMPANY
to direct the selectmen to lay it out, why did they not say so ?
For at the very same meeting, in directing the selectmen to lay
out Charles Street, the town knew what language to use, and
used it. If, at the same time, treating upon two similar sub-
jects, in written and deliberate votes, it used dissimilar lan-
guage and a dissimilar form of proceeding, who shall say that
it had not a dissimilar meaning? Who shall thus confound
things, and confuse the meaning, and the results of one of the
most discreet and deliberate proceedings of a public body ?
I have said that nobody at that meeting spoke of making a
public street ; that this way led down into the sea ; that no one
had petitioned for a street in this direction ; but the whole of
this proceeding was the result of an agreement, and a bargain.
The ropewalk proprietors joined in a conference with the com-
mittee of the town, and the result was a bargain, an agreement,
a compact, a series of covenants in relation to these lands.
The town, on its part, entered into covenant; the ropewalk
proprietors entered into covenant; so that the bargain was pre-
pared by previous consultation and conference, and the terms
were reduced to precise and stated form. In this form the con-
tract was agreed to by the town, and in this form it was agreed
to by the proprietors of the ropewalk s.
I cannot imagine any argument to be drawn from the votes
or records of this meeting, to maintain that this was a grant
or dedication for a public road. It is to be considered as xhe
result of the agreement on which it was founded, and which
it was intended to carry into effect. It is worthy of remark,
that access to the ropewalk lands was not provided by passage
and right of passage generally granted merely, but by a speci-
fied, distinct way. It is obvious, also, that the reservation
reaches beyond the ropewalks, and extends down to the sea.
It may have been one object of this to give approach and ac-
cess to the ropewalk lands from the water, because there was a
wharf near.
But further, if this was a laying out of a street, by the se-
lectmen, or any body else, where is the record of it? Although
such an act may be done, it could hardly be done sub silentio,
and without a record.
We have no reason, then, to suppose that the votes of the
town laid out this road for a public street; and this brin
AGAINST THE CITY OF BOSTON. 193
me to the deeds of conveyance made in pursuance of those
votes.
I suppose that these deeds, assuming the rest to be like that
to McNeil, are relied upon to prove that the selectmen did lay
out this road, or that they contain a recital that estops the city
from denying that the road was so laid out. Now is this recital
any proof of the fact that the selectmen did lay out the road ?
Let me call the attention of your honors to what they had been
directed to do in 1794, not in their official capacity as select-
men, but only as agents of a corporation. The vote might as
well have directed the town-clerk, or town-crier, or any other
official, to make these deeds, and the conveyance would have
been as valid and effectual. It is further important to observe,
that this authority, these votes, under which the selectmen
acted when making these conveyances, were all precise, defi-
nite, and full; that their limitations and provisions were as
particularly drawn as those of a power of attorney.
Now let me remark, that early in 1794, before the date of
this conveyance, difficulties had arisen about the location of
these ropewalks, after the grant of the land, and before the ex-
ecution of these deeds. Your honors will please to refer to
the proceedings of the town-meeting in 1795. These proceed-
ings will be found to contain a charge against the ropewalk
proprietors, that they had encroached upon Pleasant Street, by
extending the heads of their ropewalks too far south. These
deeds were not executed until 1796. Before the execution of
this deed to McNeil, a sea-wall had been built. This we know,
because the wall and the building of it are referred to in the pro-
ceedings of the town-meeting in 1795. After the wall was
built, the water came up to it, and even overflowed it at high
tides. The facts that the wall was already built, and that the
ropewalks were built, were both recognized by the proceedings of
the meeting in 1795. The selectmen (it appears that they were
an entirely new set) were about to execute the deeds ; and in
this state of the affair the draughtsman committed a sheer blun-
der, by bounding the land on the south "by a street lately laid
out by our selectmen, leading from Pleasant Street to the salt
water." This is a description, and not a recital ; and but an
imperfect description, for the salt wTater was found at the wharf
and the street, if it were a street, extended to the channel.
VOL. VI. 17
194 THE PROVIDENCE RAILROAD COMPANY
This was all a mistake. There was no street laid out by the
selectmen. For, first, there is no record of it on the books of
the city, nor any reason, from any evidence in the case, to sup-
pose that any such thing took place. If it had taken place, it
would have been the duty of the selectmen to report it to the
town ; but there is no report, nor any action of the town on such
report, in the records of either. Then, many persons are still
living, fully conversant with the events of that day, and in full
memory of all the proceedings in this matter. One of the
ropewalk proprietors is still living, Mr. Howe, who, though
not an original proprietor, soon became one by the death
of his father, working there daily from the time he came to
man's estate. Many other persons, connected with the town
government, and living in the neighborhood, are familiar with
the land there, and its changes ; and yet not one of them knew
any thing about this laying out, or pretends to say that the
selectmen laid out this street. If the selectmen did lay it out,
as they did Charles Street, or as they did a dozen others, why
did they not also record it, and report it ? In point of fact, I
suppose there was no street laid out.
The deed itself purports to be made after the votes of the
town in 1794. It founds itself upon them, and refers to them,
as to another deed, for more particular descriptions. It refers
to no particular powers of the selectmen, and is in this respect
quite remarkable. I will read the deed : —
" Whereas, at a legal town-meeting of us, begun on the 28th of Au-
gust, 1794, and continued by adjournment to the 1st of September next
following, it was voted that there be granted to the owners of the rope
walks in this town lately consumed by fire, a piece of marsh land and
flats at the bottom of the Common in said town, upon certain terms and
conditions in the said votes expressed ; now know ye, that we the
said inhabitants, for and in consideration of the conditions, restrictions,
and limitations hereinafter mentioned, but more particularly mentioned
in our votes before referred to, do hereby give, grant," &c.
Such is the recital of the terms of the grant, and here comes
the description : —
" A certain piece or parcel of land situate at the southerly part of said
town, at the bottom of the Common, there so called, fifty feet in width
and extending from a line drawn parallel to Beacon Street five hundred
AGAIJNST THE CITY OF BOSTON. 195
feet from the same street to a street lately laid out by our selectmen,
sixty feet wide, leading from Pleasant Street to the salt water, bounding
northerly on the said line, easterly on land granted to Samuel Emmons,
southerly on said new street, and westerly on land granted to John
Codman."
The mention of this street is not by way of recital, it will be
seen, but in the description of boundary. By a mistake in
such a description no one is barred. It is simply a description.
My learned friends say that it is a declaration, an averment
by the town of Boston, that there is a public street along the
southern line of the ground described. To cover their ground,
they must not only say that there is a street, but take the whole
statement as an estoppel. They make this to be a statement
that this land is an open public street, laid out by the select-
men ; and this they say is an estoppel that keeps us from hold-
ing that this street was never so laid out.
How can this be ? The selectmen were mere agents, I might
say they were mere instruments to perform what must be per-
formed by some agents. But the limitations and all the acts
of the parties were fully defined and fairly set down and ex-
pressed. They did not act in this matter in their official capaci-
ty, but as mere agents, and if they have transcended the limits
set for them, the town is not bound by it. Their authority was
a public, clear, written, indisputable record, known to every
body, simply to execute grants founded on a transaction pub-
licly understood, and it expressed the terms of a bargain to
which these grantees were themselves parties. No one will say
that the selectmen could extend the meaning of this agreement,
and enter upon a covenant for which it did not provide ; and
further, since in the other covenants of the deed they follow the
provisions of the votes from which their authority was derived,
it is to be presumed that they intended to do so here. Ex-
pressio unius exclusio est alterius.
Agents not only cannot bind themselves by an act transcend-
ing their authority, but such an act is not evidence against their
principal in any case arising out of it. No saying or declara-
tion of such an agent is more evidence against his principals
than that of any other man. This declaration of the deed is
not evidence against the town, because the selectmen had no
oower to enter into a covenant which was to make that land a
196 THE PROVIDENCE RAILROAD COMPANY
street, but were simply to convey certain lands as they were
described in their power of attorney. Nor does it amount to
any thing that the ropewalk proprietors used the same words of
description in after conveyances, because we all know that one
deed is copied from another, that the object often is to make
them cheap and short, and that in this country, in ninety-nine
cases out of a hundred, a man conveying the same thing that
he has previously purchased, copies from the deed he received,
or refers to it for the description in the new deed. If the select-
men had been acting for themselves, as individuals conveying
their own property, there is nothing in this deed which would
estop them from denying the existence of a road laid out upon
the south line of the premises. The words in which such a road
is spoken of are words of description only, and not of recital, and
this makes the distinction of the cases where parties are held to
be estopped by their own deeds and where they are not. I shall
not cite cases to this point, but will refer your honors to the
first volume of Greenleaf ?s Evidence, pp. 30 to 32, where the
cases which are collected show the distinction between terms
of description and terms of averment.
But suppose we are to take it for granted that the selectmen
did lay out a street here, w/jat kind of a way was it ? Was it
a public way? If your honors are to presume they laid out
any thing, it is to be supposed to have been in conformity with
the authority under which they acted ; and if that authority was
for a private way merely, the presumption is that they con-
formed to it, and laid out merely a private way.
There is another point or two with regard to this.
Recitals in deeds, when they estop any body, estop only in
favor of those claiming under the grantee ; they confer no rights
upon strangers. The Providence Railroad Company does not
claim under the ropewalk proprietors. It has no privity with
them, and it cannot therefore avail itself of any estoppel in the
deeds to those proprietors, if such there be.
I know very well that a court of law, looking back at a trans«
action now no recent one, will be glad to find any plausible ex-
planation of any act, fact, or transaction, which does not appear
to agree with the rest of the history. It is glad to make the
whole train of events consistent ; and I think it is not hard to
Buggest at least a probable reason of this discrepancy in this
AGAINST THE CITY OF BOSTON. 197
deed. Let us suppose that something had been done on this
piece of land by these public authorities, between the dates of
the votes in town-meeting and of the execution of the deeds.
To persons not consulted about the matter, it might appear that
this something was the laying out of a road, and they might
have been led into this mistake even by the conduct of the
selectmen whom they saw on the land " reserved for a road,"
doing something apparently in an official capacity. Now it is
in evidence that these selectmen did do something on this land
within this time. It is in evidence that they went upon these
lands, measured the encroachments which had been made, and
gave a marked limit to the ropewalk proprietors ; that in the
interval between the votes in town-meeting and the date of
this deed, the public authorities went down upon this land and
marked out a boundary upon it. Your honors will see that
this proceeding limited itself to a very small line of boundary ;
but it is extremely probable that they went further, and marked
out the whole of the southern boundary of the ropewalks. We
know from the records of the town-meeting that they did estab-
lish the point as far as the ropewalk proprietors were concerned,
and compelled them to retire from the town's land upon which
they had encroached, and marked a stated limit by staking
it out at the time. This was done by authority from the town,
and might have been done, doubtless, by the selectmen without
such authority. But it was just such a proceeding as would
require no record, report, or after proceeding, and this accounts,
and this is the only thing that can account, for there being no
report or record of it. There is nothing more probable than
that the new selectmen or the draughtsman, yes, the draughts-
man of this deed, may have mistaken in his description the
nature of this act of the former selectmen, and that thus this
apparent incongruity may have got into the case.
The ropewalk proprietors reconveyed these lands to the city
in 1824, and this terminated the first period in the history of
the strip in dispute. This reconveyance was entire and abso-
lute; and of course under it, by force of law, this particular
strip of land, unless it had in the mean time become a public
highway, returned to the city, and the easement became extin-
guished by the unity of possession.
We have now seen the origin of the title of the ropewalk
198 THE PROVIDENCE RAILROAD COMPANY
proprietors so far as it was written. It rested in the votes of
the town and the deeds, with their somewhat restricted declara-
tions and covenants. Now if from these we can obtain a clear
and distinct meaning, it is the true and correct one ; but if it is
in any degree doubtful, we can enter upon the evidence of what
was done under these deeds and votes, to elucidate and explain
their meaning. All law-writers recognize, common sense rec-
ognizes, this principle of interpretation, but the doctrine is ex-
pressed so accurately, tersely, and completely by Sir Edward
Sugden, that I will quote his words.
" One of the most settled rules of law for the construction of am
biguities in ancient instruments is, that you may resort to contemporane-
ous usage to ascertain the meaning of the deed ; tell me what you have
done under such a deed, and I will tell you what that deed means." *
I propose now to call the attention of your honors to what
was done under these covenants. What was the conduct of the
respective parties to them during this first epoch of thirty years ?
We are met, succored, relieved here from all doubt or appre-
hension which the greatest ingenuity could suggest, by the fact,
that, during all this period, neither the city nor the town, neither
the ropewalk proprietors, the selectmen, nor any subordinate offi-
cer, not one of them, has ever performed one act which, under
any fair construction, could be considered as recognizing the ex-
istence of any public way over this land. The town never built
the road ; there was at that time no beaten path there ; it was
never entered on the list or in the books of the town ; it was
never reported as needing repairs ; it was never repaired, built,
touched, by the town of Boston, during this whole space of
thirty years, or by any agent or functionary of the town.
Here is the conduct of the grantor; let us look at that of the
other party. Long engaged in a controversy in regard to theii
encroachments, with which the town of Boston was energeti-
cally plying them, did they ever set up the claim that it was the
duty of the town to build this road ? Not in the least ! But
they went on, at great loss and labor and sacrifice, to make
the road themselves. They constructed the long sea-wall along
the western margin of their land, a work of such magnitude,
* Attorney-General v. Drummond, 1 Drury & Warren (Irish Chancerv Re«
ports), 353.
AGAINST THE CITY OF BOSTON. 199
that it was ten years before immense labor and unwearying in-
dustry completed it, and made a practicable road down to the
edge of the sea. In the face of these difficulties, if there had
been any thing in the deeds to compel the town to adopt the
street, how can we account for this acquiescent conduct, so
directly adverse to their interests ? Does any one suppose that,
if the deeds gave them any ground to consider this a public road,
Mr. Howe and the rest of those concerned would have remained
there day after day, and year after year, toiling in the mud to
make the road themselves? Then we have living witnesses,
the town and city officers for many years, none of whom looked
upon this as a street.
But I will state it in the briefest manner. Every body at all
conversant with the matter for those thirty years, from the begin-
ning, knows that the town was doing that, through the whole
of that time, which it could not have done had the land been a
public way ; it omitted all care and attention. On the other
hand, the grantees did what no duty required them to do, but
what every interest and the proper enjoyment of their property
made it necessary for them to do for themselves. And if we go
over the evidence ever so carefully, or ever so slightly, we find
this to be the result, and we see that every body thought that
the town took the land back to itself, just as it parted with it.
I will cite 5 Pickering, 485, the case of Jones v. Percival, to
the point that a private way is to be repaired by the grantee of
the way : and e converso, I suppose, a public way is to be re-
paired by the public.
It is to be remembered that at this time these were all waste
lands. About 1801 or 1804, a carpenter's shop was built, facing
Pleasant Street. Mr. Vose's house was built in 1807. The
carpenter's shop was moved back, and another house built, be-
fore the year 1824. It is not to be doubted that Mr. Vose went,
that the inhabitants of all these houses went to and from them
by this way ; Mr. Vose, indeed, having his own sidewalk on his
own land.
When a man has a right to a practicable way over his neigh-
bor's land, he is not called upon to make the road for his own
use. If the way is not practicable, the grant of it carries with
it the right of building a road, and keeping it in repair. Let us
suppose that here the road was necessarily a built or constructed
200 THE PROVIDENCE RAILROAD COMPANY
road ; how does this affect the city of Boston ? The owner is
undoubtedly obliged to keep a private way in repair for his own
purposes, and it is well settled that the owner of a private way,
finding people breaking up his way, may maintain " case "
against them, although not " trespass." While this road con-
tinued its character of a private way, even if a thousand years
should elapse, and a hundred people should pass over it every
day, no rights against the public could be obtained. In a case
where, under a lease of ninety-nine years, a private way, made
so by the lease, was allowed by the lessee to be used by the
public after the expiration of the lease, the lessor set up that
the land reverted to him ; and this was held to be right, because,
before the expiration of the lease, the public use was of no
injury to his property.* Nobody here asserted a right to the
use of this road ; only the persons interested, Mr. Vose and his
tenants, used it.
Then there are the dealings between Mr. Vose and the select-
men in 1824. The latter proposed that his doorsteps should be
abated, because they encroached upon the public lands. It
would have been equally an encroachment, whether they were
obtruded upon a street, or upon lands which were the property
of the city; but Mr. Williams said that they, the selectmen,
spoke of the encroachment upon the lands of the city. Because
their predecessors had been complained of for neglecting the
public land, he was induced to keep a sharp eye upon the inter-
ests of the town in this respect. He went to look at the alleged
encroachments upon the public lands. He took some of the
other selectmen with him, and they conversed upon the matter
with Mr. Vose. The whole conversation turned upon this fact,
that the steps were an encroachment on the lands of the city.
Mr. Vose replied, that these were all waste lands, that nobody
used them, and asked why, in these circumstances, they should
put him to an expense of one hundred dollars to withdraw his
steps. Mr. Williams says, that upon these grounds they allowed
him some indulgence, and that the matter was to be settled at
a future time. He has no recollection that he called again ; but
if he recollects rightly, ail that was said by the parties to that
conversation was of an encroachment upon the public lands.
* 5 Barnwell & Alderson, 450.
AGAINST THE CITY OF BOSTON. 201
This brings me toward the last period of the history of this
matter.
About 1820, the mill-dam was built, and this shut out the
water from the flats below these lands. The sea-wall was not
removed till 1830, as appears from the depositions of Fuller
and Dexter. Below the wall, Mr. Vose permitted others to erect
some shops ; but there was no access down this way till after
1830, because the wall was still there. I refer your honors to
Mr. Kidder's deposition, cross-examination, first answer; Ful-
ler's cross-examination, question fourth ; and direct examination,
questions seventeenth and eighteenth.
On the other side, what acts are there which show the sense
of the city with regard to these lands, from 1820 forward ? In
the first place, we have the report" of Mr. Apthorp at the time
the reconveyance of these lands was made. In this report, all
these lands are treated as public lands, which might be offered
for sale by the city. This was in 1824. Secondly, there is
another fact ; namely, the building of the new street from Pleas-
ant Street to Charles Street, a street parallel to this supposed
street. This was built in 1824, as a continuation of Boylston
Street. It was built and used for access into Church Street.
There could have been no object in building it, and it would
not have been built, if there had been already a way in exist-
ence convenient and open a little farther south. If the town
had supposed that there was any such way in existence, it
would have availed itself of that, and not have gone to this
further trouble and expense.* Thirdly, I refer your honors, with
emphasis and brevity, to the transactions of 1828; to the votes
of the city in 1828, as they appear in the exhibit of Eliphalet
"Williams.f On the 28th of January, 1828, an order passed by
the mayor and aldermen, upon which, on the following March
3d, a committee reported that there were certain lands, which it
was expedient for the city to sell, marked numerically upon a
plan, and this piece of land at the southerly part of the town,
embracing that now in dispute, was described under this head. J
Now, Mr. Williams § asserts positively that this land, the lot
marked 5, embraced all the land covered by the alleged street*
and the report says : —
* Kidder, cross-examination, first answer. f Kidder, 5.
X See report and plan, land marked " E." § Answers 9th and 10th-
202 THE PROVIDENCE RAILROAD COMPANY
" 5th. A piece of land situated west of Boylston Street and of the
northerly part of Pleasant Street, and southerly of a line drawn parallel
to the Mill-dam, 1350 feet distant therefrom. This piece of land con*
tains 126,000 square feet, and is capable of being laid out into streets
and lots advantageously ; and although after it is thus laid out it may
not be expedient to offer the whole for sale immediately, yet it is expe-
dient, in the opinion of the committee, to lay the same out and com-
mence sales of it under the direction of a committee. It may be proper
here to observe, that the space proposed thus to be put in a state for sale
does not interfere with the Common, but is that portion of the public lands
which have always been deemed proper and within the power of the city
council to sell, as not being within the north and south lines of the Com-
mon extended. Read and accepted, and ordered that the Mayor, Alder-
men Loring, Upham, and Armstrong, with such as the Common Council
may join, be a committee to carry the same into effect. Sent down for
concurrence ; came up concurred, and E. Williams and others joined on
the part of the Common Council."
Mr. Francis Jackson has verified the plan of the land, and has
testified that that plan embraces the land under dispute, and that
the report accompanying it was accepted ; and Kidder testifies,
that, in view of the sale, coarse fences were built, and that they
covered the whole way, as it is called, up to Vose's house. This
was the report and plan which we have here. It was accepted
by the city government ; the rough fences were built to mark
out the land into lots, and these actually covered the supposed
way, and this without complaint. Where was Mr. Vose then ?
Where were his tenants, that he and they made no complaint
that this road was thus shut up, and they shut out from their
own front door? These fences remained there without objec-
tion, till they were gradually carried away for firewood. Did this
look like any admission on the part of the city, that this was an
open and public street? For where ownership has been assert-
ed by the erection of a slight fence, and then the fence has been
taken away by the party claiming adversely, it has been held that
this rebuts the presumption arising from the user of that party
I ask your honors' particular attention to this point.
Let us then proceed to the transactions of May, 1832, for
there were two transactions in 1832. Now what was the first
of these ? It was the application by Purkitt and Vose to ascer-
tain the line of their property. Vose's property was bounded
AGAINST THE CITY OF BOSTON. 203
upon this land, and he chose to call it a " street " in that appli-
cation. The city assented to the proposal to run the line, but
in no way bound itself by this use of the word " street." Mr.
Fuller reported the result of his survey to the city, and stated,
that " it does not appear that a street was ever laid out," but
says, this, and this, and this, is the line between Vose and the
city. This report was accepted and placed on the records ; and
on whose request? On that of these two persons; entirely, I
suppose, on that of Mr. Vose and Mr. Purkitt. Being so record-
ed, this is completely binding. They got up the application.
Tbey desired to have an established line for the boundary of
their land ; and the authentic document describing that line
says that it separates them, not from a street, but from certain
lands belonging to the city of Boston. Did they protest against
this description ? In no degree.*
As an equal proof of the view then taken of these lands, I
may refer your honors to another proceeding in August, 1832.
An application was made by the Worcester Railroad for leave
to take certain lands for the erection of a depot. Let us look at
the nature of that application. Was it a request to the city
to repair or put in order a street ? to build, work, or repair a
highway ? By no means. The Worcester Railroad came as
a purchaser, and wished to purchase that which it was not
doubted was land of the city. The government feeling doubt-
ful whether this was not a part of the Common, a question
raised at the time, referred this question to the people, to be
decided by a vote in Faneuil Hall. The people negatived
the vote, and refused to sell the land at all. Remark that this
was a proposition to purchase, and a refusal to sell. It was a
design of the city government to make manifest in the plainest
way what it was that the Worcester Railroad wished to buy. I
am sure that no man can doubt the railroad wished to buy this
land. Here is a plan, proved by Mr. Jackson to have been made
on this occasion, and put up along the streets, that the citizens
might see upon what they were called to decide. It is worth
while to know that on this plan, the strip in red being what the
railroad wished to buy, the strip between that and Elisha Vose
is marked " Lands of the City of Boston, containing feet."
This matter was made a subject of full discussion at the time;
# Defendant's exhibit, No. 35.
204 THE PROVIDENCE RAILROAD COMPANY
but none of those who talked of it, none of the orators at Faneuil
Hall, nobody noticed, or appeared to think, that this was a street.
Could they have done so, they would have urged it strenuously.
It was a most natural idea to strengthen the notion that this
was a part of the Common, by saying that a part of it had
already devolved to the public as a public highway. If this
had occurred to any body, we may be sure it would have been
stated.
It must be perfectly plain, then, that up to August, 1832, one
.short year before the Providence Railroad, was laid out, the
whole town of Boston and every one of its inhabitants sup-
posed that this was land of the city, and not a street open to
every body. About this time the directors of the Providence
Railroad made their report upon the location of their depot,
and, nothing further occurring, this state of things existed up to
1833. And thus, by all these acts, by its surveys, fencing, rec-
ords, and offers to sell, through all this period, the city was as-
serting its right to this land, and nobody was objecting to it;
and in this we have the best evidence that this was the view
that every body took of this property till 1833, when these
gentlemen located and fixed their depot.
And now we come to the last ground of the complainants,
and that which, if I may judge from the earnestness and abil-
ity with which it was urged, is considered the strongest ground,
of their case. Let us look at the occurrences from 1833 to the
time of the filing of this bill. What acts were done during that
time, or were suffered to be done, by either party to this matter,
on which the plaintiffs can rest their great hypothesis of the
dedication of this land by the city to a public use ?
But before proceeding to these facts, allow me one word
upon the law of dedication.
Certainly it is not for me to controvert any thing that this
court has decided and established. I am perfectly willing to
admit that a dedication of land by the owner of the soil, clearly
and fully proved, and assented to by the county and town au-
thorities, is competent to make a public street. I do not mean
at all, indeed, to controvert the opinion of this court upon this
subject, in the case of Hobbs v. Lowell.* But it would seem
* 19 Pickering's Reports, 405.
AGAINST THE CITY OF BOSTON. 205
to be necessary that there should be a clear dedication, and
an adoption by all the authorities, county and municipal. But
if any assent or adoption, and if any, whose, is necessary, in
case of an opening of a public highway by a town over ite own
land, is not decided. This is an open question, and it is my
purpose to say something upon it.
First, as to the act of dedication. The first element of law
in regard to this is well laid down in the Lowell case. It must
be the act of the owner of the soil himself, done with the intenf
to dedicate the soil.
I do not understand the counsel of the complainants to rely
upon the votes of the town in 1794, or upon any thing that oc-
curred before 1832, as making out a dedication of this land to the
public. This is a wholly different ground from the others, and
no writings are relied upon to support it ; and I have suggested
all that I have to say with regard to those previous transac-
tions. Their argument, as I understand it, is this. For more
than nine years this land has been used as a common way,
every day, by many persons, wholly undisturbed, in full view of
the city government, and of all other persons, and has thus be-
come a public highway, if it is not a way otherwise laid out.
What idea can a lawyer form of a dedication of land ? Can
he form any that is not in some sort a grant? Has he any no-
tion of a proceeding of this sort, not amounting to the passing
of the land from the grantor to somebody else ? If there be
any thing else which will fulfil the idea of a dedication, I
should like to be instructed. It is not a present grant of the
fee, but of the usufruct; it is not a grant of the real property.
This is either given to the present grantee, or in expectation of
the coming of a grantee in whom the fee may vest. It is a
sort of grant by parole, conveying a property like that held by
a livery of seisin, a "grant without fee," as the Supreme
Court have expressed it ; and where a man has made an open
dedication by parole, he is estopped afterwards from saying
that he granted only the use. He is estopped not by deed or
writing, but in pais.
The dedication is of the use, the naked fee remaining to the
dedicator. The Supreme Court of the United States has de*
cided in all cases, or in three most important cases, that the use
passes at present, but that the fee remains in abeyance till a
vol. vi. 18
206 THE PROVIDENCE RAILROAD COMPANY
regular grantee appears. I will presently take an occasion to
review these cases.
The dedication is to be by the owner of the soil. Certainly
the city government was not the owner of the soil in this case.
The city owns the soil. They will say, on the other side, that
the government are the agents of the city, and that the city
must act by agents, and that the land could be dedicated only
by government. I admit that the city councils are agents.
But how ? Are they unlimited and unrestricted agents ?
"What act can they do beyond the charter? They are agents
created by statute law. Although, when they act in an official
character, they are not under the control of the town, and
ought not to be, yet in a general sense, so far as they are
agents, their powers are all set down by statute law. And the
moment they step out of that power, they are no more the
agents of the city than I am.
Every body says there must be an intent to dedicate, in order
to make a dedication, but in these cases who is to entertain
the intent? The selectmen may lay out a road, because the
statute gives them authority so to do, but I deny that the se-
lectmen can dedicate lands of the town to public uses, because
no law gives them that power. There is no recognized mode
of exercising that power, as there is in the other case. It would
be sufficient to say that no such proceeding as a dedication has
ever been made by the town officers of this State. And it is,
I will not say bordering on the ridiculous, but inconsistent and
incredible, to suppose that, where the act depends upon consent
and intent, and where there is so simple a method for them to
carry out that intent in a legal way, they should leave that
to risk it upon this new and cumbrous proceeding that they
never heard of in their lives.
They have no such power. Where would there be any limit
to it, if they had ? Why should the law prescribe the manner
in which the selectmen of towns may lay out highways, if it
was intended that they might thus create roads without its
restrictions ? I deny that they can lay out a road in any way
but that prescribed by the statute. I deny that there is any
authority, under any court in the country, to that effect.
Where an individual, may it please your honors, wishes that
a highway should be established on his own land, there is a
AGAINST THE CITY OF BOSTON. 207
just and rational meaning in his doing it by dedication, and
laying it open to the public. He cannot make a road on his
own land in any other way ; if it is accepted by the proper au-
thorities, county and municipal, it will become a public road.
But what object can there be for the selectmen of a town to
undertake to lay out a road in this manner, when there is a
simple and effective way authorized by law, and daily exer-
cised ?
Your honors will perceive, that the very hypothesis of the
complainants requires that they should show an intention to
give up the land on the part of the city government. If they
had such an intention, they had a regular way to accomplish
it ; why did they not adopt it ? I submit that their neglect to
lay out a road in this regular way is evidence to every reasona-
ble man that they had no such intention. That could only
arise from the public convenience and necessity. And if such
necessity existed, their duty required them to accommodate it
in the common and legal manner ; and we are not to presume
that they adopted any other.
I have already alluded to the absence of any such intent.
How is it attempted to be proved ? Each individual of the
government denies that he had any such intent, but it is im-
posed upon them in the aggregate. It reminds me of the state-
ment of Mr. Justice Blackstone, in his Commentaries, where
he says that he cannot deny that witchcraft has existed, but
that no one can say that it has been proved in any particular
case. The intention imputed to the city government they in-
dividually deny ; how then could there have been an aggregate
intent to part with these lands ?
Nothing is alleged with regard to the city government but
forbearance for nine years ; forbearance to prosecute, forbear-
ance to shut up waste lands which were not wanted for present
use. The inhabitants were indisposed to sell them for the pres-
ent ; they were waste lands, of no use to any body but the
Providence Railroad ; and was not this a just case for forbear-
ance and indulgence ? I refer your honors to a decision of this
court.* A neighbor of mine had been in the habit of pasturing
nis cattle upon waste lands in the town of Marshfield, and, the
* 13 Pickering, 240.
208 THE PROVIDENCE RAILROAD COMPANY
town having inclosed this land, he brought an action, claims
ing 1he right of such use of the land from long user. It was
decided that the property was still in the town ; that his use
had not been inconsistent with the owner's use, with any use
of the property which the town originally had in the land, anc1
that consequently no adverse possession had been obtained;
that his occupancy must be presumed to have been a mere
license. This is just this case. The acts and the use of the
Providence Railroad did not interfere with any use the proprie-
tors wished to put it to. In the case cited, the lands were pub-
lic lands, used by the inhabitants of Marshfield for depasturing
their cattle. Just so here : so long as the city had no use for
these lands not inconsistent with the use made of them by the
Providence Railroad, the occupancy by that company must be
considered the result of mere license. Was it not an act of
friendliness and forbearance, and not to be now set up as a giv-
ing away the land ? It ought to be kept in mind, that through-
out the whole of this time the city officers manifested a desire
to sell the land, and did no act of dedication on the premises
themselves.
In all the cases decided in England upon this subject, there
was some original act of dedication. I know of no exception
to this, save in a case which did not require any such act, be-
cause the road had been in public use for twenty-five years.
There are, however, two cases in which there is so much dis-
crepancy in the decisions upon this point, that they cannot be
reduced to the same principle. One of these is that of the King
v. St. Benedict, 4 B. & A. 447, tried before Lord Chief Jus-
tice Abbott, and Justices Holroyd, Bayley, and Best; the other,
in which the opinions are just the reverse, before Justices Park
and Littledale. The two cases are very different with regard
to the law as to the assent of corporations to assume the charge
of a highway ; and I can only ask your honors to compare the
reasoning in the reported cases, that of Mr. Justice Bayley in
the one and Mr. Justice Littledale in the other, and to see
which commends itself the most to your good judgment.
I wish to present this case under another and different aspect.
Let us suppose that this land had been dedicated to the city for
a street by an individual, and in the most unequivocal and no-
torious manner ; take it to have been as good a dedication as
AGAINST THE CITY OF BOSTON. 209
could be made ; has any thing been done in this case that
proves that such a street has been accepted by the proper au-
thority ? This point, as to who must accept the dedication, is
left undecided in the case of Hobbs v. Lowell, and is one which
must now be decided, and on which I shall therefore make some
remarks. I leave it as settled that the public must give its
assent, and assume the expense of the way ; but what is the pub-
lic? I have said that I look upon a dedication as being a grant,
to which there must be two parties, a grantor and a grantee.
And what is this public, whose concurrence in the dedication
is to make it the second party to this grant, and is to charge the
citizens with making, paving, repairing, and lighting the road?
Is it any indefinite number of men, unorganized and unassociat-
ed, who may happen to be passers over a way that an individual
has laid open through his own land ? I submit that this is not
the public whose voices or whose feet are to settle the question
of acceptance or adoption. I think that it must be an organized
public; the public authorities, those who are the authorized
officials of the citizens, and intrusted with the power and the
duty of providing proper, convenient, and sufficient highways.
I think this is the public, and that none but this is the public
whose assent is necessary. If this be not admitted, all the pro-
visions of the statutes with regard to the laying out of roads
become entirely useless.
This assent and acceptance is properly a matter of political
and municipal authority; it is an exercise of a public power in
a regular manner, for a legitimate purpose, by the authorized
body ; and I deny that the people of any town or city in this
Commonwealth can be charged with the expense of maintain-
ing a public road, without such regular action of the body upon
whom this duty has devolved. I deny that any individual
choosing to throw open his land, or the people passing over
it, how many soever they may be, or however frequently or how-
ever long they may pass over it, can make such a charge upon
the town. This seems to me to be wholly inconsistent with
the principles of the law upon the subject of highways. The
laying out of roads has always been made a matter of judica-
ture ; and a distinct and well-known tribunal passes judgment
upon what roads are necessary or convenient for the public.
Is it not well settled, that, before the selectmen can lay out a
18*
210 THE PROVIDENCE RAILROAD COMPANY
road, it must be adjudged necessary or convenient ? And have
not the proceedings in laying out roads been quashed on certi-
orari, in more than a hundred instances, for want of an aver-
ment that the proposed road was convenient or necessary ?
But no competent tribunal has passed upon the convenience
or necessity of this street. It may be mentioned further, that,
when ways have been laid out by the selectmen according to
the statute, they are to be reported to the town, and so formally
entered among its highways. I therefore submit that there is
no power, by an irregular proceeding, to put upon the city of
Boston the charge of making, paving, and repairing a street
that has not been adjudged by some competent tribunal to be
necessary or convenient. The power of such a tribunal is not
to be transferred to any individual who may choose to open a
way through his land and dedicate it to the public, nor to those
who make use of the way so opened.
I say nothing here, and I mean to say nothing here, to attack
the soundness of the decision in the case of Hobbs v. Lowell.
For I do admit that, where an individual has made a dedication
of land to a town, and the town, even informally, has accepted
that dedication, (and a liberal construction should doubtless be
given to its acts in this respect,) the town will remain charged
with the expense arising from the public use of the land ; but
without a judgment, in some form, from a competent tribunal,
that the way so obtained is necessary, I cannot see that there is
any power so to accept it.
In Jhe old laws, before the revision of the statutes, not essen-
tially changed in this respect, the statute of 1786, ch. 67,* gives
to the Court of Sessions the power to lay out roads between
town and town. The first requisite for the selectmen in laying
out a road is made its common necessity and convenience ; then
it instructs them how to lay it out ; then it gives an appeal
to the Court of Sessions (now to the County Commissioners).
When the selectmen laid out a road, it was as a court of judi-
cature. And could any thing be more proper than this? Have
not the men in the towns interested, the tax-payers, a right to
be heard and considered, before they are charged with such an
expense? Here we have a judicial examination, proceeding
* 1 Laws, 295.
AGAINST THE CITY OF BOSTON. 211
upon hearing, and proof of the necessity of the case ; and is not
this wholly inconsistent with the doctrine of making streets by
dedication, without any hearing, or proof, or pronunciation of
judgment? The Revised Statutes adhere to the same principle
as the former law, and declare that the streets of a city are to
be regarded as public highways.
The practice of the city of Boston is also wholly opposed to
the idea, that any person can impose upon it the charge of main-
taining any land that he chooses to lay out as a public high-
way. By the city ordinance,* and in accordance with an act
of the legislature, passed March 16th, 1833. it is provided, with
regard to sidewalks in the city, that the city surveyor may adopt
them as public property, if they are relinquished to the city, in
writing, by the owner. Now, even if a gentleman builds his
house back six feet from the street, and makes a sidewalk be-
tween it and the street, and every body walks upon it in passing
to and fro; yet, until he makes a written relinquishment of the
land, the city is not charged with its maintenance and repairs.
There must be a written relinquishment. This is the Boston
mode of dedication ; and any amount of expense, ten thousand
people running over it every day, does not make it public prop-
erty, until he has made such written dedication. It would not
make public property of a sidewalk, of a little strip six feet by
twenty ; but what is contended in this case ? Why, that, with-
out any writing at all, the city may not only so dedicate prop-
erty, but may also in silence accept the dedication, and charge
itself with the expense of maintaining a road. If there is any
meaning in this law about a little strip of bricks, it indicates
the principle which ought to govern this whole subject.
By an act passed f in the year 1816, a power was conferred
on the selectmen, now transferred to the city government, to
keep a record of all streets and ways laid out, and in all acts
and proceedings relating thereto it provides that certified copies
of this record shall be evidence. We have a right to call for
the record of this street. No record is produced, and the pre-
sumption is, that there is no street. There is no record, and the
presumption must be, that they made such a record in all cases
without neglect. It was their duty to record any street made
* Ordinances, p. 258. f Ibid., p. 257.
212 THE PROVIDENCE RAILROAD COMPANY
in any way. The law is, that all streets shall be recorded
These are broad directions. I use them in evidence, and argue
directly from them, that, since there is no record, there is no
street. But it is also to be remembered, that an intention to
make a street is necessary to the case of the complainants, and
if the city government had such intention, it must be presumed
that they would have attended to their duty, and recorded it.
What would be the consequence of admitting that any indi-
vidual might throw open his land, and that, by the concurrence
of a few others, a street might be made, and the expense of
maintaining it thrown upon the corporation ? Such an admis-
sion takes away this whole subject from the legitimate tribunal
provided for the protection of the public. When would there ever
be any want of persons to travel over streets, however numerous
they might be ? There is some convenience in having parallel
streets. Suppose that a street should be laid out through the
whole length of the town, parallel to Washington Street, at
thirty feet distance from it ; does any one doubt that it would
be filled? Or another, and another, thirty feet apart? There is
travel enough to fill all. Does any body say that, in that case,
any indefinite number of persons, passing over these new thor-
oughfares, would make them streets or highways, for the sup-
port of which the city would be charged ? I hold that this
would be inconsistent with our whole system of legislation and
jurisprudence on the subject.
I take the clear result of the American cases, with regard to
dedication, to be, that dedications are grants made to the cor-
poration for the use of the public ; that is to say, in this case, if
there were a dedication, it must have been a dedication to the
city of Boston, for the use of the people of Boston. The city
government is then the party whose assent is necessary to make
the dedication good.
There are three cases decided by the Supreme Court of the
United States, which I will allude to, without turning to the
books. They are those of Cincinnati v. Simms, 6 Peters ;
Barclay v. Howell, 6 Peters; United States v. New Orleansj
10 Peters.
These decisions sufficiently establish it, that the American
law upon the subject of dedication makes the property enure
lo the corporation for the use of the public.
AGAINST THE CITY OF BOSTON. 213
I have been speaking of the grantor, and I now recur to the
question, What acts are necessary to prove an acceptance by the
grantee ? And in this case, the grantor and grantee being the
same, the acts are of course to be taken together. But I have
endeavored to show, th£t, if the dedication had been made by
an individual, the city has done nothing which can be construed
into an acceptance, and that, if it has been accepted at all, it
has only been by this indefinite mass of people who have passed
over it. But I may go further. If this was a sufficient act of
acceptance, it would not be sufficient to charge the city. If
they had thus accepted it, they would only take the charge of
maintaining a road and keeping it in repair; but for a dedica-
tion, and a performance of the singular act of dedicating to
themselves, certainly some formal act, some declaration of in-
tention, would be necessary.
Let us inquire then, first, what acts there are that are relied
upon to show a dedication and acceptance by the city ; and,
secondly, what evidence there is of any understanding or opin-
ion of the Providence Railroad Company, touching the exist-
ence of a way.
In the first place, the city has done no act which looks like
acceptance. It has made no record, it has undertaken no re-
pairs, it has not touched it in any way. It has treated it exact-
ly like its own property, like waste lands that it had no occasion
to use, and not at all like a highway that it was bound to sup-
port. It would not be tolerated that I should go over all the
evidence upon this point, but there are a few things to which I
will allude. They say that there was a fence built upon the
north line of this land, and intended to mark it out as a street.
This was a slight circumstance, which was hardly recollected by
Mr. Winslow Lewis, who testified to it, and which was satis-
factorily explained by Mr. Fuller and others. There was an
inelosure of a nuisance, on the lands to the north of this, and
part of the fence came nearly upon this line. Mr. Lee (the
agent of the railroad) is mistaken, surely, with regard to there
having been any fence on the south side. The exhibit shows,
that Mr. Lewis was authorized to see if the plaintiffs' fence was
an encroachment, and on the 10th of October, 1836, he reported
that it was an encroachment on the public lands, not on the
Btreet ; and in December, 1836, we find that the Mayor is au-
214. THE PROVIDENCE RAILROAD COMPANY
thorized to notify the railroad company to remove its encum-
brance from the city lands, — from the city lands. The com-
pany not having done this, an order was passed, in 1838, that
the city marshal should remove this encroachment on the city
lands. Here we find that this encroachment of nineteen feet
on one end of the line, and not so much on the other, was re-
peatedly called and denominated an encroachment on the pub-
lic land. Why did these parties not then remonstrate against
this claim of the city ? I admit that the city might have
removed an encumbrance from the street, but it did not come to
the matter in that way.
In 1838, the possession of the railroad company was inter-
rupted, disturbed, denounced, resisted, and repelled by the entry
upon it of the city marshal, and all this upon the ground, that
the land upon which the fence stood was city property ; and
this they did not deny.
Then there was the drain, built to drain Pleasant Street, con-
structed by the railroad corporation, at its own expense, to
keep the water from this land. If this was a street, why had
not the railroad corporation, so much interested in the matter
in every way, demanded that the city should put it in repair ?
At the time of the extension of Eliot Street in 1839, this is
spoken of as a street laid out. Every witness, Mr. Patrick
T. Jackson and the others, goes back to the supposed original
laying out by the vote of the town in 1794. Whenever they
speak of it as a street laid out, they evidently refer to that oc-
currence. Not a single witness goes on the ground that this is
a street made so by dedication. The whole idea of dedication
had its origin in the chambers of counsel ; we hear nothing of
it out of doors.
There is other testimony to this point, from Messrs. Ellis
and Dunham, that they considered this a part of the salable
lands of the city at the time of the application made by Purkitt
and others, in relation to the extension of Eliot Street.
The complainants put in as a part of their case the receipt
by the city of the plan of the location of the Providence Rail-
road. That plan was only a sort of project, which could bind
nobody. Church Street was laid down upon it, although it
was then not a street. There are, indeed, no names upon the
plan, which was only a project or proposal. It is agreed even
AGAINST THE CITY OF BOSTON. 2L5
by their own evidence, that there was no street there. The ob-
ject of the plan was only to show the course of the Providence
Railroad in entering the city.
Then as to the view taken by the Providence Railroad Com-
pany. The first act is the report of the directors upon the lo-
cation of the road, set forth in the plaintiffs' exhibit. On the
5th of March, 1833, a committee was appointed to purchase
such lands as the company might require, and to fix the loca-
tion of the road in the city. They reported on the 7th of Sep-
tember following, and this location is described as being " along
the southern line of the city lands at the southwest corner of
the Common." They here speak of their boundary as being
the city land. If there were any other evidence to control this
declaration, it might be made out that there was a street be-
tween ; but when so important a matter as the laying out of a
railroad is spoken of, and the street is not mentioned, it is diffi-
cult to believe that they thought it existed.
They filled up, built, and made the road-way themselves.*
They had before called it the " city land" in their report. They
now made the road over it for their own use, built a sidewalk,
and removed a drain that interfered with their use. In short,
every thing, every word and act of all parties, from 1833 down
to the time of filing this bill, is consistent in support of the idea
that the land was city property, used by the Providence Rail-
road Company under a revocable license, to be withdrawn
whenever the great object constantly kept in mind by the city
government (a sale of the land) could be effected. And there
is not a single act which looks as if either party supposed thai
the city was bound to keep a passable way over these lands.
That it was understood that this use of the land by the coi-
poration was matter of license, I refer your honors to the testi-
mony of Messrs. Garney, Hunting, Eliot,f and Armstrong.^
Mr. Gurney testifies that somebody came to speak to him upon
this subject, whom he supposed to represent the railroad com-
pany, and he said that he had no objection to their use of the
land for the present. There is no necessity of proving that this
person came from the railroad company. These gentlemen
* Revere, cross-examination, thirteenth answer.
t Fourth cross-interrogatory.
\ Fifth direct and fourth cross interrogatory.
216 THE PROVIDENCE RAILROAD COMPANY.
thought that he asked for a license, and they gave what they
thought was necessary ; and this is totally inconsistent with the
idea of a dedication of the land. But still more, after the land
was offered for sale, they offered to buy it. Mr. Grennell, the
president of the company, offered to buy it at any fair price, and
this in the presence of Mr. Sturgis and Mr. Dalton. Mr. Gren-
nell admits that he offered to buy it, but says that just before
the bargain was concluded this suggestion arose, that perhaps
the land might be considered as a public street. He said he
wished to buy it if it was to be used for other purposes, but if it
was to remain a street, it would answer their purposes as well
as if it were their own. It might be said that Mr. Grennell
made this proposition from a want of local knowledge; but
how is it with Mr. Sturgis and Mr. Dalton ? Do they know
any thing about Boston ? Does any body know more ? There
was an opinion, probably, that this might be a street ; but when
they considered it as a street they referred to the acts of the
town in 1794, and if your honors should decide to make this
injunction perpetual, on the ground of a dedication, you would
surprise the directors of the railroad company as much as
you would any one. The city government of Boston, and all
the citizens of Boston, would wonder what act or proceeding
of theirs had given this land away ; and the railroad company
would wonder most of all, how, if there was no old street there
laid out in 1794, they had gained their cause ; and that while
floating on a sea of doubt and uncertainty, after, drifting away
from th it anchorage, they should now be picked up and saved
by this doctrine of dedication.
THE RHODE ISLAND GOVERNMENT.*
Thu facts necessary to the understanding of these cases are suffi-
ciently set forth in the commencement of Mr. Webster's argument. The
event out of which the cases arose is known in popular language as the
Dorr Rebellion. The first case came up by writ of error from the
Circuit Court of Rhode Island, in which the jury, under the rulings of
the court (Mr. Justice Story), found a verdict for the defendants ; the
second case came up by a certificate of a division of opinion. The
allegations, evidence, and arguments were the same in both cases.
The first case was argued by Mr. Hallet and Mr. Clifford (Attor-
ney-General) for the plaintiffs in error, and by Mr. Whipple and Mr.
Webster for the defendants in error. Mr. Justice Catron, Mr. Justice
Daniel, and Mr. Justice McKinley were absent from the court, in conse-
quence of ill health. Chief Justice Taney delivered the opinion of the
court, affirming the judgment of the court below in the first case, and
dismissing the second for want of jurisdiction. Mr. Justice Woodbury
dissented, and delivered a very elaborate opinion in support of his view
of the subject.
There is something novel and extraordinary in the case now
before the court. All will admit that it is not such a one as i*
usually presented for judicial consideration.
It is well known, that in the years 1841 and 1842 political
agitation existed in Rhode Island. Some of the citizens of that
State undertook to form a new constitution of government, be-
ginning their proceedings towards that end by meetings of the
people, held without authority of law, and conducting those pro-
* An Argument made in the Supreme Court of the United States, on the '27th
of January, 1848, in the case of Martin Luther against Luther M. Borden and
others. The case of Rachel Luther against the same defendants was before the
court at the same time.
VOL. VI. 19
218 THE RHODE ISLAND GOVERNMENT.
ceedings through such forms as led them, in 1842, to say that
they had established a new constitution and form of govern-
ment, and placed Mr. Thomas W. Dorr at its head. The pre-
viously existing, and then existing, government of Rhode Island
treated these proceedings as nugatory, so far as they went to
establish a new constitution ; and criminal, so far as they pro-
posed to confer authority upon any persons to interfere with the
acts of the existing government, or to exercise powers of legis*
lation, or administration of the laws. All will remember that
the state of things approached, if not actual conflict between
men in arms, at least the " perilous edge of battle." Arms
were resorted to, force was used, and greater force threatened.
In June, 1842, this agitation subsided. The new government,
as it called itself, disappeared from the scene of action. The
former government, the Charter government, as it was some-
times styled, resumed undisputed control, went on in its ordi-
nary course, and the peace of the State was restored.
But the past had been too serious to be forgotten. The legis-
lature of the State had, at an early stage of the troubles, found
it necessary to pass special laws for the punishment of the per-
sons concerned in these proceedings. It defined the crime of
treason, as well as smaller offences, and authorized the declara-
tion of martial law. Governor King, under this authority, pro-
claimed the existence of treason and rebellion in the State, and
declared the State under martial law. This having been done,
and the ephemeral government of Mr. Dorr having disappeared,
the grand juries of the State found indictments against several
persons for having disturbed the peace of the State, and one
against Dorr himself for treason. This indictment came on in
the Supreme Court of Rhode Island in 1844, before a tribunal
admitted on all hands to be the legal judicature of the State.
He was tried by a jury of Rhode Island, above all objection, and
after all challenge. By that jury, under the instructions of the
court, he was convicted of treason, and sentenced to imprison-
ment for life.
Now an action is brought in the courts of the United States,
and before your honors, by appeal, in which it is attempted to
prove that the characters of this drama have been oddly and
wrongly cast ; that there has been a great mistake in the courts
of Rhode Island. It is alleged, that Mr. Dorr, instead of being
THE RHODE ISLAND GOVERNMENT. 219
a traitor or an insurrectionist, was the real governor of the State
at the time; that the force used by him was exercised in de-
fence of the constitution and laws, and not against them ;
that he who opposed the constituted authorities was not Mr.
Dorr, but Governor King; and that it was he who should have
been indicted, and tried, and sentenced. This is rather an
important mistake, to be sure, if it be a mistake. " Change
places," cries poor Lear, " change places, and handy-dandy,
which is the justice and which the thief?" So our learned
opponents say, " Change places, and, handy-dandy, which is the
governor and which the rebel ? " The aspect of the case is,
as I have said, novel. It may perhaps give vivacity and va-
riety to judicial investigations. It may relieve the drudgery of
perusing briefs, demurrers, and pleas in bar, bills in equity and
answers, and introduce topics which give sprightliness, freshness,
and something of an uncommon public interest to proceedings
in courts of law.
However difficult it may be, and I suppose it to be wholly im-
possible, that this court should take judicial cognizance of the
questions which the plaintiff has presented to the court below,
yet I do not think it a matter of regret that the cause has come
hither. It is said, and truly said, that the case involves the con-
sideration and discussion of what are the true principles of gov-
ernment in our American system of public liberty. This is very
right. The case does involve these questions, and harm can nev-
er come from their discussion, especially when such discussion
is addressed to reason and not to passion ; when it is had be-
fore magistrates and lawyers, and not before excited masses out
of doors. I agree entirely that the case does raise considera-
tions, somewhat extensive, of the true character of our American
system of popular liberty ; and although I am constrained to
differ from the learned counsel who opened the cause for the
plaintiff in error, on the principles and character of that Ameri-
can liberty, and upon the true characteristics of that American
system on which changes of the government and constitution, if
they become necessary, are to be made, yet I agree with him
that this case does present them for consideration.
Now, there are certain principles of public liberty, which,
though they do not exist in all forms of government, exist, nev-
ertheless, to some extent in different forms of government. The
220 THE RHODE ISLAND GOVERNMENT.
protection of life and property, the habeas corpus, trial by jury,
the right of open trial, these are principles of public liberty exist-
ing in their best form in the republican institutions of this coun-
try, but, to the extent mentioned, existing also in the constitution
of England. Our American liberty, allow me to say, therefore,
has an ancestry, a pedigree, a history. Our ancestors brought to
this continent all that was valuable, in their judgment in the
political institutions of England, and left behind them all that
was without value, or that was objectionable. During the colo-
nial period they were closely connected of course with the colo-
nial system ; but they were Englishmen, as well as colonists, and
took an interest in whatever concerned the mother country, es-
pecially in all great questions of public liberty in that country.
They accordingly took a deep concern in the revolution of 1688.
The American colonists had suffered from the tyranny of James
the Second. Their charters had been wrested from them by
mockeries of law, and by the corruption of judges in the city of
London ; and in no part of England was there more gratification,
or a more resolute feeling, when James abdicated and William
came over, than in the American colonies. All know that Mas-
sachusetts immediately overthrew what had been done under
the reign of James, and took possession of the colonial fort in
the harbor of Boston in the name of the new king.
When the United States separated from England, by the
Declaration of 1776, they departed from the political maxims
and examples of the mother country, and entered upon a course
more exclusively American. From that day down, our institu-
tions and our history relate to ourselves. Through the period
of the Declaration of Independence, of the Confederation, of the
Convention, and the adoption of the Constitution, all our public
acts are records out of which a knowledge of our system of
American liberty is to be drawn.
From the Declaration of Independence, the governments of
what had been colonies before were adapted to their new con-
dition. They no longer owed allegiance to crowned heads. No
tie bound them to England. The whole system became entirely
popular, and all legislative and constitutional provisions had
regard to this new, peculiar, American character, which they
had assumed. Where the form of government was already
well erough, they let it alone. Where reform was necessary,
THE RHODE ISLAND GOVERNMENT. 221
they reformed it. What was valuable, they retained ; what
was essential, they added ; and no more. Through the whole
proceeding, from 1776 to the latest period, the whole course of
American public acts, the whole progress of this American sys
tern, was marked by a peculiar conservatism. The object was
to do what was necessary, and no more ; and to do that with
the utmost temperance and prudence.
Now, without going into historical details at length, let me
state what I understand the American principles to be, on
which this system rests.
First and chief, no man makes a question, that the people are
the source of all political power. Government is instituted for
their good, and its members are their agents and servants. He
who would argue against this must argue without an adversary.
And who thinks there is any peculiar merit in asserting a doc-
trine like this, in the midst of twenty millions of people, when
nineteen millions nine hundred and ninety-nine thousand nine
hundred and ninety-nine of them hold it, as well as himself7
There is no other doctrine of government here ; and no man
imputes to another, and no man should claim for himself, any
peculiar merit for asserting what every body knows to be true,
and nobody denies. Why, where else can we look but to the
people for political power, in a popular government ? We have
no hereditary executive, no hereditary branch of the legislature,
no inherited masses of property, no system of entails, no long
trusts, no long family settlements, no primogeniture. Every
estate in the country, from the richest to the poorest, is divided
among sons and daughters alike. Alienation is made as easy
as possible ; everywhere the transmissibility of property is per-
fectly free. The whole system is arranged so as to produce, as
far as unequal industry and enterprise render it possible, a uni-
versal equality among men ; an equality of rights absolutely,
and an equality of condition, so far as the different characters
of individuals will allow such equality to be produced. He who
considers that there may be, is, or ever has been, since the Dec-
laration of Independence, any person who looks to any other
source of power in this country than the people, so as to give
peculiar merit to those who clamor loudest in its assertion,
must be out of his mind, even more than Don Quixote. His
imagination was only perverted. He saw things not as they
19*
222 THE RHODE ISLAND GOVERNMENT.
were, though what he saw were things. He saw windmills, and
took them to be giants, knights on horseback. This was bad
enough ; but whoever says, or speaks as if he thought, that
any body looks to any other source of political power in this
country than the people, must have a stronger and wilder imag-
ination, for he sees nothing but the creations of his own fancy.
He stares at phantoms.
Well, then, let all admit, what none deny, that the only source
of political power in this country is the people. Let us admit
that they are sovereign, for they are so ; that is to say, the ag-
gregate community, the collected will of the people, is sovereign.
I confess that I think Chief Justice Jay spoke rather paradoxi-
cally than philosophically, when he said that this country ex-
hibited the extraordinary spectacle of many sovereigns and no
subjects. The people, he said, are all sovereigns ; and the pecu-
liarity of the case is that they have no subjects, except a few
colored persons. This must be rather fanciful. The aggregate
community is sovereign, but that is not the sovereignty which
acts in the daily exercise of sovereign power. The people can-
not act daily as the people. They must establish a government,
and invest it with so much of the sovereign power as the case
requires ; and this sovereign power being delegated and placed
in the hands of the government, that government becomes what
is popularly called the state. I like the old-fashioned way of
stating things as they are ; and this is the true idea of a state.
It is an organized government, representing the collected will
of the people, as far as they see fit to invest that government
with power. And in that respect it is true, that, though this
government possesses sovereign power, it does not possess all
sovereign power ; and so the State governments, though sover-
eign in some respects, are not so in all. Nor could it be shown
that the powers of both, as delegated, embrace the whole range
of what might be called sovereign power. We usually speak
of the States as sovereign States. I do not object to this. But
the Constitution never so styles them, nor does the Constitu-
tion speak of the government here as the general or the federal
government. It calls this government the United States ; and it
calls the State governments State governments. Still the fact
is undeniably so ; legislation is a sovereign power, and is exer-
cised by the United States gov. rnment to a certain extent, and
THE RHODE ISLAND GOVERNMENT. 223
also by the States, according to the forms which they them-
selves have established, and subject to the provisions of the
Constitution of the United States.
Well, then, having agreed that all power is originally from
the people, and that they can confer as much of it as they
please, the next principle is, that, as the exercise of legislative
power and the other powers of government immediately by the
people themselves is impracticable, they must be exercised by
representatives of the people; and what distinguishes Ameri-
can governments as much as any thing else from any govern-
ments of ancient or of modern times, is the marvellous felicity
of their representative system. It has with us, allow me to
say, a somewhat different origin from the representation of the
commons in England, though that has been worked up to some
resemblance of our own. The representative system in Eng-
land had its origin, not in any supposed rights of the people
themselves, but in the necessities and commands of the crown.
At first, knights and burgesses were summoned, often against
their will, to a Parliament called by the king. Many remon-
strances were presented against sending up these representa-
tives ; the charge of paying them was, not unfrequently, felt to
be burdensome by the people. But the king wished their coun-
sel and advice, and perhaps the presence of a popular body, to
enable him to make greater headway against the feudal barons
in the aristocratic and hereditary branch of the legislature. In
process of time these knights and burgesses assumed more and
more a popular character, and became, by degrees, the guardians
of popular rights. The people through them obtained protec-
tion against the encroachments of the crown and the aristoc-
racy, till in our day they are understood to be the representa-
tives of the people, charged with the protection of their eights.
With us it was always just so. Representation has always L?en
of this character. The power is with the people ; but they can-
not exercise it in masses or per capita ; they can only exercise it
by their representatives. The whole system with us has been
popular from the beginning.
Now, the basis of this representation is suffrage. The right
to choose representatives is every man's part in the exercise of
sovereign power; to have a voice in it, if he has the proper
qualifications, is the portion of political power belonging to
224 THE RHODE ISLAND GOVERNMENT.
every elector. That is the beginning. That is the mode in
which power emanates from its source, and gets into the hands
of conventions, legislatures, courts of law, and the chair of the
executive. It begins in suffrage. Suffrage is the delegation of
the power of an individual to some agent.
This being so, then follow two other great principles of the
American system.
1. The first is, that the right of suffrage shall be guarded, pro-
tected, and secured against force and against fraud ; and,
2. The second is, that its exercise shall be prescribed by pre-
vious law ; its qualifications shall be prescribed by previous
law ; the time and place of its exercise shall be prescribed by
previous law ; the manner of its exercise, under whose super-
vision (always sworn officers of the law), is to be prescribed.
And then, again, the results are to be certified to the central
power by some certain rule, by some known public officers, in
some clear and definite form, to the end that two things may
be done: first, that every man entitled to vote may vote; sec-
ond, that his vote may be sent forward and counted, and so he
may exercise. his part of sovereignty, in common with his fellow-
citizens.
In the exercise of political power through representatives
we know nothing, we never have known any thing, but such
an exercise as should take place through the prescribed forms
of law. When we depart from that, we shall wander as widely
from the American track as the pole is from the track of the sun.
I have said that it is one principle of the American system, that
the people limit their governments, National and State. They
do so ; but it is another principle, equally true and certain, and,
according to my judgment of things, equally important, that the
people often limit themselves. They set bounds to their own
power. They have chosen to secure the institutions which they
establish against the sudden impulses of mere majorities. All
our institutions teem with instances of this. It was their great
conservative principle, in constituting forms of government, that
they should secure what they had established against hasty
changes by simple majorities. By the fifth article of the Con-
stitution of the United States, Congress, two thirds of both
houses concurring, may propose amendments of the Constitu-
tion ; or, on the application of the legislatures of two thirds of
THE RHODE ISLAND GOVERNMENT. 225
the States, may call a convention ; and amendments proposed
in either of these forms must be ratified by the legislatures or
conventions of three fourths of the States. The fiith article of
the Constitution, if it was made a topic for those who framed
the " people's constitution " of Rhode Island, could only have
been a matter of reproach. It gives no countenance to any of
their proceedings, or to any thing like them. On the contrary,
it is one remarkable instance of the enactment and application
of that great American principle, that the constitution of gov-
ernment should be cautiously and prudently interfered with, and
that changes should not ordinarily be begun and carried through
by bare majorities.
But the people limit themselves also in other ways. They
limit themselves in the first exercise of their political rights.
They limit themselves, by all their constitutions, in two impor-
tant respects; that is to say, in regard to the qualifications of
electors, and in regard to the qualifications of the elected. In
every State, and in all the States, the people have precluded
themselves from voting for every body they might wish to vote
for; they have limited their own right of choosing. They have
said, We will elect no man who has not such and such qualifica-
tions. We will not vote ourselves, unless we have such and such
qualifications. They have also limited themselves to certain pre-
scribed forms for the conduct of elections. They must vote at
a particular place, at a particular time, and under particular
conditions, or not at all. It is in these modes that we are to
ascertain the will of the American people ; and our Constitution
and laws know no other mode. We are not to take the will
of the people from public meetings, nor from tumultuous assem-
blies, by which the timid are terrified, the prudent are alarmed,
and by which society is disturbed. These are not American
modes of signifying the will of the people, and they never were.
If any thing in the country, not ascertained by a regular vote,
by regular returns, and by regular representation, has been estab-
lished, it is an exception, and not the rule ; it is an anomaly
which, I believe, can scarcely be found.
It is true that at the Revolution, when all government was
immediately dissolved, the people got together, and what did
they do ? Did they exercise sovereign power ? They began
an inceptive organization, the object of which was to bring to-
226 THE RHODE ISLAND GOVERNMENT.
gether representatives of the people, who should form a govern-
ment. This was the mode of proceeding in those States where
their legislatures were dissolved. It was much like that had in
England upon the abdication of James the Second. He ran
away, he abdicated. He threw the great seal into the Thames.
I am not aware that, on the 4th of May, 1842, any great seal
was thrown into Providence River! But James abdicated, and
King William took the government; and how did he proceed?
Why, he at once requested all who had been members of the
old Parliament, of any regular Parliament in the time of Charles
the Second, to assemble. The Peers, being a standing body,
could of course assemble; and all they did was to recommend
the calling of a convention, to be chosen by the same electors,
and composed of the same numbers, as composed a Parliament.
The convention assembled, and, as all know, was turned into
a Parliament. This was a case of necessity, a revolution.
Don't we call it so ? And why ? Not merely because a new
sovereign then ascended the throne of the Stuarts, but because
« there was a change in the organization of the government.
The legal and established succession was broken. The conven-
tion did not assemble under any preceding law. There was a
hiatus, a syncope, in the action of the body politic. This was
revolution, and the Parliaments that assembled afterwards re-
ferred their legal origin to that revolution.
Is it not obvious enough, that men cannot get together and
count themselves, and say they are so many hundreds and so
many thousands, and judge of their own qualifications, and call
themselves the people, and set up a government ? Why, an-
other set of men, forty miles off, on the same day, with the
same propriety, with as good qualifications, and in as large
numbers, may meet and set up another government; one may
meet at Newport and another at "Chepachet, and both may
call themselves the people. What is this but anarchy ? What
liberty is there here but a tumultuary, tempestuous, violent,
stormy liberty, a sort of South American liberty, without power
except in its spasms, a liberty supported by arms to-day,
crushed by arms to-morrow? Is that our liberty?
The regular action of popular power, on the other hand,
places upon public liberty the most beautiful face that evei
adorned that angel form. All is regular and harmonious in ita
THE RHODE ISLAND GOVERNMENT. 227
features, and gentle in its operation. The stream of public au-
thority, under American liberty, running in this channel, has
the strength of the Missouri, while its waters are as transparent
as those of a crystal lake. It is powerful for good. It pro-
duces no tumult, no violence, and no wrong ;
" Though deep, yet clear ; though gentle, yet not dull ;
Strong, without rage ; without o'erflowing, full."
Another American principle growing out of this, and just as
important and well settled as is the truth that the people are
the source of power, is, that, when in the course of events it
becomes necessary to ascertain the will of the people on a new
exigency, or a new state of things or of opinion, the legislative
power provides for that ascertainment by an ordinary act of
legislation. Has not that been our whole history? It would
take me from now* till the sun shall go down to advert to all
the instances of it, and I shall only refer to the most prominent,
and especially to the establishment of the Constitution under
which you sit. The old Congress, upon the suggestion of the
delegates who assembled at Annapolis in May, 1786, recom-
mended to the States that they should send delegates to a con-
vention to be holden at Philadelphia to form a Constitution.
No article of the old Confederation gave them power to do
this ; but they did it, and the States did appoint delegates, who
assembled at Philadelphia, and formed the Constitution. It
was communicated to the old Congress, and that body recom-
mended to the States to make provision for calling the people
together to act upon its adoption. Was not that exactly the
case of passing a law to ascertain the will of the people in a
new exigency ? And this method was adopted without oppo-
sition, nobody suggesting that there could be any other mode
of ascertaining the will of the people.
My learned friend went through the constitutions of several
of the States. It is enough to say, that, of the old thirteen
States, the constitutions, with but one exception, contained no
provision for their own amendment. In New Hampshire there
was a provision for taking the sense of the people once in seven
years. Yet there is hardly one that has not altered its consti-
tution, and it has been done by conventions called by the legis-
lature, as an ordinary exercise of legislative power. Now
whit State ever altered its constitution in any other mode?
228 THE RHODE ISLAND GOVERNMENT.
What alteration has ever been brought in, put in, forced in, or
got in any how, by resolutions of mass meetings, and then by
applying force ? In what State has an assembly, calling itself
the people, convened without law, without authority, without
qualifications, without certain officers, with no oaths, securities,
or sanctions of any kind, met and made a constitution, and
called it the constitution of the State ? There must be some
authentic mode of ascertaining the will of the people, else all is
anarchy. It resolves itself into the law of the strongest, or,
what is the same thing, of the most numerous for the moment,
and all constitutions and all legislative rights are prostrated
and disregarded.
But my learned adversary says, that, if we maintain that the
people (for he speaks in the name and on behalf of the people,
to which I do not object) cannot commence changes in their
government but by some previous act of legislation, and if
the legislature will not grant such an act, we do in fact follow
the example of the Holy Alliance, " the doctors of Laybach,"
where the assembled sovereigns said that all changes of govern-
ment must proceed from sovereigns ; and it is said that we
mark out the same rule for the people of Rhode Island.
Now, will any man, will my adversary here, on a moment's
reflection, undertake to show the least resemblance on earth be-
tween what I have called the American doctrine, and' the doc-
trine of the sovereigns at Laybach? What do I contend for?
I say that the will of the people must prevail, when it is ascer-
tained ; but there must be some legal and authentic mode of
ascertaining that will; and then the people may make what
government they please. Was that the doctrine of Laybach ?
Was not the doctrine there held this, that the sovereigns should
say what changes shall be made ? Changes must proceed from
them ; new constitutions and new laws emanate from them ;
and all the people had to do was to submit. That is what they
maintained. AH changes began with the sovereigns, and end-
ed with the sovereigns. Pray, at about the time that the Con-
gress of Laybach was in session, did the allied powers put it
to the people of Italy to say what sort of change they would
have ? And at a more recent date, did they ask the citizens of
Cracow what change they would have in their constitution ?
Or did they take away their constitution, laws, and liberties, by
THE RHODE ISLAND GOVERNMENT. 229
their own sovereign act ? All that is necessary here is, that the
will of the people should be ascertained, by some regular rule of
proceeding, prescribed by previous law. But when ascertained,
that will is as sovereign as the will of a despotic prince, of the
Czar of Muscovy, or the Emperor of Austria himself, though
not quite so easily made known. A ukase or an edict signifies
at once the will of a despotic prince ; but that will of the peo-
ple, which is here as sovereign as the will of such a prince, is
not so quickly ascertained or known; and thence arises the
necessity for suffrage, which is the mode whereby each man's
power is made to tell upon the constitution of the government,
and in the enactment of laws.
One of the most recent laws for taking the will of the peo-
ple in any State is the law of 1845, of the State of New York.
It begins by recommending to the people to assemble in their
several election districts, and proceed to vote for delegates to a
convention. If you will take the pains to read that act, it will
be seen that New York regarded it as an ordinary exercise of
legislative power. It applies all the penalties for fraudulent
voting, as in other elections. It punishes false oaths, as in
other cases. Certificates of the proper officers were to be held
conclusive, and the will of the people was, in this respect, col-
lected essentially in the same manner, supervised by the same
officers, under the same guards against force and fraud, collu-
sion and misrepresentation, as are usual in voting for State or
United States officers.
We see, therefore, from the commencement of the govern-
ment under which we live, down to this late act of the State of
New York, one uniform current of law, of precedent, and of
practice, all going to establish the point that changes in gov-
ernment are to be brought about by the will of the people,
assembled under such legislative provisions as may be necessa-
ry to ascertain that will, truly and authentically.
In the next place, may it please your honors, it becomes very
important to consider what bearing the Constitution and laws
of the United States have upon this Rhode Island question.
Of course the Constitution of the United States recognizes
the existence of States. One branch of the legislature of the
United States is composed of Senators, appointed by the
\ol. vi. 20
230 THE RHODE ISLAND GOVERNMENT.
States, in their State capacities. The Constitution of the
United States * says that " the United States shall guaranty
to each State a republican form of government, and shall pro-
tect the several States against invasion; and on application of
the legislature, or of the executive, when the legislature cannot
be convened, against domestic violence." Now, I cannot but
think this a very stringent article, drawing after it the most
important consequences, and all of them good consequences.
The Constitution, in the section cited, speaks of States as hav-
ing existing legislatures and existing executives ; and it speaks
of cases in which violence is practised or threatened against
the State, in other words, "domestic violence"; and it says the
State shall be protected. It says, then, does it not? that the
existing government of a State shall be protected. My adver-
sary says, if so, and if the legislature would not call a conven-
tion, and if, when the people rise to make a constitution, the
United States step in and prohibit them, why, the rights and
privileges of the people are checked, controlled. Undoubtedly.
The Constitution does not proceed on the ground of revolution ;
it does not proceed on any right of revolution ; but it does go
on the idea, that, within and under the Constitution, no new
form of government can be established in any State, without
the authority of the existing government.
Admitting the legitimacy of the argument of my learned ad-
versary, it would not authorize the inference he draws from it,
because his own case falls within the same range. He has
proved, he thinks, that there was an existing government, a pa'
per government, at least ; a rightful government, as he alleges.
Suppose it to be rightful, in his sense of right. S appose three
fourths of the people of Rhode Island to have been engaged in
it, and ready to sustain it. What then ? How is it to be
done without the consent of the previous government ? How
is the fact, that three fourths of the people are in favor of the
new government, to be legally ascertained ? And if the exist-
ng government deny that fact, and if that government hold on,
and will not surrender till displaced by force, and if it is threat-
ened by force, then the case of the Constitution arises, and the
United States must aid the government that is in, because an
attempt to displace a government by force is " domestic violence."
* Art. IV. $ 4.
THE RHODE ISLAND GOVERNMENT. 2ol
It is the exigency provided for by the Constitution. If the exist-
ing government maintain its post, though three fourths of the
State have adopted the new constitution, is it not evident enough
that the exigency arises in which the constitutional power here
must go to the aid of the existing government ? Look at the law
of 28th February, 1795.* Its words are, " And in case of an in-
surrection in any State, against the government thereof, it shall be
lawful for the President of the United States, on application of
the legislature of such State, or of the executive (when the legis-
lature cannot be convened), to call forth such number of the
militia of any other State or States, as may be applied for, as he
may judge sufficient to suppress such insurrection." Insurrec-
tion against the existing government is, then, the thing to be
suppressed.
But the law and the Constitution, the whole system of
American institutions, do not contemplate a case in which a
resort will be necessary to proceedings aliunde, or outside of
the law and the Constitution, for the purpose of amending the
frame of government. They go on the idea that the States
are all republican, that they are all representative in their forms,
and that these popular governments in each State, the annually
created creatures of the people, will give all proper facilities
and necessary aids to bring about changes which the people
may judge necessary in their constitutions. They take that
ground and act on no other supposition. They assume that
the popular will in all particulars will be accomplished. And
history has proved that the presumption is well founded.
This, may it please your honors, is the view I take of what
I have called the American system. These are the methods
of bringing about changes in government.
Now, it is proper to look into this record, and see what the
questions are that are presented by it, and consider, —
1. Whether the case is one for judicial investigation at all ;
that is, whether this court can try the matters which the plain-
tiff has offered to prove in the court below ; and
2. In the second place, whether many things which he did
offer to prove, if they could have been and had been proved,
were not acts of criminality, and therefore no justification ; and
3. Whether all that was offered to be proved would show
# Statutes at Large, Vol. I. p. 424.
232 THE RHODE ISLAND GOVERNMENT.
that, in point of fact, there had been established and put in
operation any new constitution, displacing the old charter gov-
ernment of Rhode Island.
The declaration is in trespass. The writ was issued on the
8th of October, 1842, in which Martin Luther complains that
Luther M. Borden and others broke into his house in Warren,
Rhode Island, on the 29th of June, 1842, and disturbed his fam-
ily and committed other illegal acts.
The defendant answers, that large numbers of men were in
arms, in Rhode Island, for the purpose of overthrowing the gov-
ernment of the State, and making war upon it; and that, for
the preservation of the government and people, martial law had
been proclaimed by the Governor, under an act of the legislature,
on the 25th of June, 1842. The plea goes on to aver, that the
plaintiff was aiding and abetting this attempt to overthrow the
government, and that the defendant was under the military au-
thority of John T. Child, and was ordered by him to arrest the
plaintiff; for which purpose he applied at the door of his house,
and being refused entrance he forced the door.
The action is thus for an alleged trespass, and the plea is
justification under the law of Rhode Island. The plea and
replications are as usual in such cases in point of form. The
plea was filed at the November term of 1842, and the case was
tried at the November term of 1843, in the Circuit Court in
Rhode Island. In order to make out a defence, the defendant
offered the charter of Rhode Island, the participation of the
State in the Declaration of Independence, its uniting with the
Confederation in 1778, its admission into the Union in 1790, its
continuance in the Union and its recognition as a State down
to May, 1843, when the constitution now in force was adopted.
Here let it be particularly remarked, that Congress admitted
Rhode Island into the Constitution under this identical old
charter government, thereby giving sanction to it as a republi-
can form of government. The defendant then refers to all the
laws and proceedings of the Assembly, till the adoption of the
present constitution of Rhode Island. To repel the case of the
defendant, the plaintiff read the proceedings of the old legisJa-
ture, and documents to show that the idea of changing the gov-
ernment had been entertained as long ago as 1790. He read
also certain resolutions of the Assembly in 1841, memorials
praying changes in the constitution, and other documents to the
THE RHODE ISLAND GOVERNMENT. 233
same effect. He next offered to prove that suffrage associations
were formed throughout the State in 1840 and 1841, and that
steps were taken by them for holding public meetings ; and to
show the proceedings had at those meetings. In the next place,
he offered to prove that a mass convention was held at New-
port, attended by over four thousand persons, and another at
Providence, at which over six thousand attended, at which res-
olutions were passed in favor of the change. Then he offered
to prove the election of delegates ; the meeting of the conven-
tion in October, 1841, and the draughting of the Dorr constitu-
tion ; the reassembling in 1841, the completion of the draught,
its submission to the people, their voting upon it, its adoption,
and the proclamation on the 13th of January, 1842, that the
constitution so adopted was the law of the land.
That is the substance of what was averred as to the forma-
tion of the Dorr constitution. The plaintiff next offered to prove
that the constitution was adopted by a large majority of the
qualified voters of the State ; that officers were elected under it
in April, 1842; that this new government assembled on the 3d
of May; and he offered a copy of its proceedings. He sets forth
that the court refused to admit testimony upon these subjects,
and to these points ; and ruled that the old government and
laws of the State were in full force and power, and then existing,
when the alleged trespass was made, and that they justified
the acts of the defendants, according to their plea.
I will give a few references to other proceedings of this new
government. The new constitution was proclaimed on the 13th
of January, 1842, by some of the officers of the convention. On
the 13th of April, officers were appointed under it, and Mr. Dorr
was chosen governor. On Tuesday, the 3d of May, the new
legislature met, was organized, and then, it is insisted, the new
constitution became the law of the land. The legislature sat
thtangh that whole day, morning and evening; adjourned; met
the next day, and sat through all that day, morning and even-
ing, and did a great deal of paper business. It went through
the forms of choosing a Supreme Court, and transacting other
business of a similar kind, and on the evening of the 4th of
May it adjourned, to meet again on the first Monday of July,
in Providence,
" And word spake never more."
20*
234 THE RHODE ISLAND GOVERNMENT.
It never reassembled. This government, then, whatever it
was, came into existence on the third day of May, and went
out of existence on the fourth day of May.
I will now give some references concerning the new constitu-
tion authorized by the government, the old government, and
which is now the constitution of Rhode Island. It was framed
in November, 1842. It was voted upon by the people on the
21st, 22d, and 23d days of November, was then by them ac-
cepted, and became by its own provisions the constitution of
Rhode Island on the first Tuesday of May, 1843.
Now, what, in the mean time, had become of Mr. Dorr's gov-
ernment? According to the principle of its friends, they are
forced to admit that it was superseded by the new, that is
to say, the present government, because the people accepted
the new government. But there was no new government till
May, 1843. According to them, then, there was an interregnum
of a whole year. If Mr. Dorr had had a government, what
became of it ? If it ever came in, what put it out of existence ?
Why did it not meet on the day to which it had adjourned ? It
was not displaced by the new constitution, because that had
not been agreed upon in convention till November. It was not
adopted by the people till the last of November, and it did not
go into operation till May. What then had become of Mr.
Dorr's government ?
I think it is important to note that the new constitution,
established according to the prescribed forms, came thus into
operation in May, 1843, and was admitted by all to be the con-
stitution of the State. What then happened in the State of
Rhode Island? I do not mean to go through all the trials that*
were had after this ideal government of Mr. Dorr ceased to
exist ; but I will ask attention to the report of the trial of Dorr
for treason, which took place in 1844, before all the judges of
the Supreme Court of the State. He was indicted in August,
1842, and the trial came on in March, 1844. The indictment
was found while the charter government was in force, and the
trial was had under the new constitution. He was found guilty
of treason. And I turn to the report of the trial now, to call
attention to the language of the court in its charge, as deliv-
ered by Chief Justice Durfeo, I present the following extract
from that charge : —
THE RHODE ISLAND GOVERNMENT. 235
" It may be, Gentlemen, that he really believed himself to be the
governor of the State, and that he acted throughout under this delusion.
However this may go to extenuate the offence, it does not take from it
its legal guilt. It is no defence to an indictment for the violation of any
law for the defendant to come into court and say, ' I thought that I was
but exercising a constitutional right, and I claim an acquittal on the
ground of mistake.' Were it so, there would be an end to all law and
all government. Courts and juries would have nothing to do but to sit
in judgment upon indictments, in order to acquit or excuse. The ac-
cused has only to prove that he has been systematic in committing
crime, and that he thought that he had a right to commit it ; and, accord-
ing to this doctrine, you must acquit. The main ground upon which
the prisoner sought for a justification was, that a constitution had been
adopted by a majority of the male adult population of this State, voting
in their primary or natural capacity or condition, and that he was subse-
quently elected, and did the acts charged, as governor under it. He
offered the votes themselves to prove its adoption, which were also to be
followed by proof of his election. This evidence we have ruled out.
Courts and juries, Gentlemen, do not count votes to determine whether
a constitution has been adopted or a governor elected, or not. Courts
take notice, without proof offered from the bar, what the constitution is
or was, and who is or was the governor of their own State. It belongs
to the legislature to exercise this high duty. It is the legislature which,
in the exercise of its delegated sovereignty, counts the votes and de-
clares whether a constitution be adopted or a governor elected, or not ;
and we cannot revise and reverse their acts in this particular, without
usurping their power. Were the votes on the adoption of our present
constitution now offered here to prove that it was or was not adopted ;
or those given for the governor under it, to prove that he was or was
not elected ; we could not receive the evidence ourselves ; we could not
permit it to pass to the jury- And why not ? Because, if we did so,
we should cease to be a mere judicial, and become a political tribunal,
with the whole sovereignty in our hands. Neither the people nor the
legislature would be sovereign. We should be sovereign, or you would
be sovereign ; and we should deal out to parties litigant, here at our bar,
sovereignty to this or that, according to rules or laws of our own mak-
ing, and heretofore unknown in courts.
" In what condition would this country be, if appeals could be thus
taken to courts and juries ? This jury might decide one way, and that
another, and the sovereignty might be found here to-day, and there to-
morrow. Sovereignty is above courts or juries, and the creature cannot
sit in judgment upon its creator. Were this instrument offered as the
constitution of a foreign state, we might, perhaps, under some circum-
stance!?, require proof of its existence ; but, even in that case, the fact
236 THE RHODE ISLAND GOVERNMENT.
would not be ascertained by counting the votes given at its adoption,
but by the certificate of the secretary of state, under the broad seal of
the state. This instrument is not offered as a foreign constitution, and
this court is bound to know what the constitution of the government is
under which it acts, without any proof even of that high character.
We know nothing of the existence of the so-called ' people's constitu*
tion' as law, and there is no proof before you of its adoption, and of
the election of the prisoner as governor under it; and you can return a
verdict only on the evidence that has passed to you."
Having thus, may it please your honors, attempted to state
the questions as they arise, and having referred to what has
taken place in Rhode Island, I shall present what further I have
to say in three propositions : —
1st. I say, first, that the matters offered to be proved by the
plaintiff in the court below are not of judicial cognizance ; and
proof of them, therefore, was properly rejected by the court.
2d. If all these matters could be, and had been, legally proved,
they would have constituted no defence, because they show
nothing but an illegal attempt to overthrow the government of
Rhode Island.
3d. No proof was offered by the plaintiff to show that, in
fact, another government had gone into operation, by which the
Charter government had become displaced.
And first, these matters are not of judicial cognizance. Does
this need arguing? Are the various matters of fact alleged, the
meetings, the appointment of committees, the qualifications of
voters, is there any one of all these matters of which a court
of law can take cognizance in a case in which it is to decide
on sovereignty ? Are fundamental changes in the frame of a
government to be thus proved ? The thing to be proved is a
change of the sovereign power. Two legislatures existed at the
same time, both claiming power to pass laws. Both could not
have a legal existence. What, then, is the attempt of our ad-
versaries ? To put down one sovereign government, and to put
another up, by facts and proceedings in regard to elections out
of doors, unauthorized by any law whatever. Regular proceed-
ings for a change of government may in some cases, perhaps,
be taken notice of by a court; but this court must look else-
where than out of doors, and to public meetings, irregular and
unauthorized, for the decision of such a question as this. It
naturally looks to that authority under which it sits here, to the
THE &HODE ISLAND GOVERNMENT. 237
provisions of the Constitution which have created this tribunal,
and to the laws by which its proceedings are regulated. It
must look to the acts of the government of the United States,
in its various branches.
This Rhode Island disturbance, as every body knows, was
brought to the knowledge of the President of the United States*
by the public authorities of Rhode Island; and how did he treat
it? The United States have guarantied to each State a repub-
lican form of government. And a law of Congress has directed
the President, in a constitutional case requiring the adoption of
such a proceeding, to call out the militia to put down domestic
violence, and suppress insurrection. Well, then, application
was made to the President of the United States, to the execu-
tive power of the United States. For, according to our system,
it devolves upon the executive to determine, in the first instance,
what are and what are not governments. The President recog-
nizes governments, foreign governments, as they appear from
time to time in the occurrences of this changeful world. And
the Constitution and the laws, if an insurrection exists against
the government of any State, rendering it necessary to appeal
with an armed force, make it his duty to call out the militia
and suppress it.
Two things may here be properly considered. The first is,
that the Constitution declares that the United States shall pro-
tect every State against domestic violence ; and the law of
1795, making provision for carrying this constitutional duty
into effect in all proper cases, declares, that, " in case of an in-
surrection in any State against the government thereof, it shall
be lawful for the President of the United States to call out the
militia of other States to suppress such insurrection." These
constitutional and legal provisions make it the indispensable
duty of the President to decide, in cases of commotion, what is
the rightful government of the State. He cannot avoid such
decision. And in this case he decided, of course, that the ex-
isting government, the charter government, was the rightful
government. He could not possibly have decided otherwise.
In the next place, if events had made it necessary to call out
the militia, and the officers and soldiers of such militia, in protect-
ing the existing government, had done precisely what the defend-
* Mr. Tyler.
238 THE RHODE ISLAND GOVERNMENT.
ants in this case did, could an action have been maintained
against them ? No one would assert so absurd a proposition.
In reply to the requisition of the Governor, the President
stated that he did not think it was yet time for the application
of force ; but he wrote a letter to the Secretary of War, in
which he directed him to confer with the Governor of Rhode Isl-
and ; and, whenever it should appear to them to be necessary,
to call out from Massachusetts and Connecticut a militia force
sufficient to terminate at once this insurrection, by the authority
of the government of the United States. We are at no loss,
therefore, to know how the executive government of the United
States treated this insurrection. It was regarded as fit to be
suppressed. That is manifest from the President's letters to the
Secretary of War and to Governor King.
Now, the eye of this court must be directed to the proceed-
ings of the general government, which had its attention called
to the subject, and which did institute proceedings respecting it.
And the court will learn from the proceedings of the executive
branch of the government, and of the two chambers above us,
how the disturbances in Rhode Island were regarded ; whether
they were looked upon as the establishment of any govern-
ment, or as a mere pure, unauthorized, unqualified insurrection
against the authority of the existing government of the State.
I say, therefore, that, upon that ground, these facts are not
facts which this court can inquire into, or which the court be-
low could try ; because they are facts going to prove (if they
prove any thing) the establishment of a new sovereignty ; and
that is a question to be settled elsewhere and otherwise. From
the very nature of the case, it is not a question to be decided
by judicial inquiry. Take, for example, one of the points
which it involves. My adversary offered to prove that the con-
stitution was adopted by a majority of the people of Rhode
Island; by a large majority, as he alleges. What does this
offer call on your honors to do ? Why, to ascertain, by proof,
what is the number of citizens of Rhode Island, and how
many attended the meetings at which the delegates to the con-
vention were elected ; and then you have to add them all up,
and prove by testimony the qualifications of every one of them
to be an elector. It is enough to state such a proposition to
show its absurdity. As none such ever was sustained in a
court of law, so none can be or ought to be sustained. Ob-
THE RHODE ISLAND GOVERNMENT. 239
Berve that minutes of proceedings can be no proof, for they
were made by no authentic persons ; registers were kept by no
warranted officers ; chairmen and moderators were chosen with-
out authority. In short, there are no official records ; there is
no testimony in the case but parol. Chief Justice Durfee has
stated this so plainly, that I need not dwell upon it.
But, again, I say you cannot look into the facts attempted
1o be proved, because of the certainty of the continuance of the
old government till the new and legal constitution went into
effect on the 3d of May, 1843. To prove that there was an-
other constitution of two days' duration would be ridiculous.
And I say that the decision of Rhode Island herself, by her
legislature, by her executive, by the adjudication of her highest
court of law, on the trial of Dorr, has shut up the whole case.
Do you propose, (I will not put it in that form,) but would it be
proper for this court to reverse that adjudication? That de-
clares that the judges of Rhode Island know nothing of the
" People's Constitution." Is it possible, then, for this court, or
for the court below, to know any thing of it?
It appears to me that, if there were nothing else in the case,
the proceedings of Rhode Island herself must close every body's
mouth, in the court and out of it. Rhode Island is competent
to decide the question herself, and every body else ought to be
bound by her decision. And she has decided it.
And it is but a branch of this to say, according to my second
proposition, —
2. That if every thing offered had been proved, if in the na-
ture of the case these facts and proceedings could have been
received as proof, the court could not have listened to them, be-
cause every one of them is regarded by the State in which they
took place as a criminal act. Who can derive any authority
from acts declared to be criminal ? The very proceedings
which are now set up here show that this pretended constitu-
tion was founded upon acts which the legislature of the State
had provided punishment for, and which che courts of the State
have punished. All, therefore, which the plaintiff has attempt-
ed to prove, are acts which he was not allowed to prove, be-
cause they were criminal in themselves, and have been so treat-
ed and punished, so far as the State government, in its discre-
tion, has thought proper to punish them.
3. Thirdly, and lastly, I say that there is no evidence offered.
240 THE RHODE ISLAND GOVERNMENT.
nor has any distinct allegation been made, that there was an
actual government established and put in operation to displace
the Charter government, even for a single day. That is evident
enough. You find the whole embraced in those two days, the
3d and 4th of May. The French revolution was thought to be
somewhat rapid. That took three days. But this work was
accomplished in two. It is all there, and what is it? Its birth,
its whole life, and its death were accomplished in forty-eight
hours. What does it appear that the members of this govern-
ment did ? Why, they voted that A should be treasurer, and
C, secretary, and Mr. Dorr, governor; and chose officers of the
Supreme Court. But did ever any man under that authority
attempt to exercise a particle of official power ? Did any man
ever bring a suit ? Did ever an officer make an arrest ? Did
any act proceed from any member of this government, or from
any agent of it, to touch a citizen of Rhode Island in his per-
son, his safety, or his property, so as to make the party answer-
able upon an indictment or in a civil suit ? Never. It never
performed one single act of government. It never did a thing
in the world ! All was patriotism, and all was paper ; and with
patriotism and with paper it went out on the 4th of May, ad-
mitting itself to be, as all must regard it, a contemptible sham !
I have now done with the principles involved in this case, and
the questions presented on this record.
In regard to the other case, I have but few words to say.
And, first, I think it is to be regretted that the court below sent
up such a list of points on which it was divided. I shall not
go through them, and shall leave it to the court to say whether,
after they shall have disposed of the first cause, there is any
thing left. I shall only draw attention to the subject of martial
law; and in respect to that, instead of going back to martial
law as it existed in England at the time the charter of Rhode
Island was granted, I shall merely observe that martial law con-
fers power of arrest, of summary trial, and prompt execution ;
and that when it has been proclaimed, the land becomes a
camp, and the law of the camp is the law of the land. Mr.
Justice Story defines martial law to be the law of war, a resort
to military authority in cases where the civil law is not suf-
ficient; and it confers summary power, not to be used arbitra-
rily or for the gratification of personal feelings of hatred or
revenge, but for the preservation of order and of the public
THE RHODE ISLAND GOVERNMENT. 241
peace. The officer clothed with it is to judge of the degree of
force that the necessity of the case may demand ; and there is
no limit to this, except such as is to be found in the nature and
character of the exigency.
I now take leave of this whole case. That it is an interesting
incident in the history of our institutions, I freely admit. That
it has come hither is a subject of no regret to me. I might
have said, that I see nothing to complain of in the proceedings
of what is called the Charter government of Rhode Island, ex-
cept that it might perhaps have discreetly taken measures at an
earlier period for revising the constitution. If in that delay it
erred, it was the error into which prudent and cautious men
would fall. As to the enormity of freehold suffrage, how long
is it since Virginia, the parent of States, gave up her freehold
suffrage ? How long is it since nobody voted for governor in
New York without a freehold qualification ? There are now
States in which no man can vote for members of the upper
branch of the legislature who does not own fifty acres of land.
Every State requires more or less of a property qualification in
its officers and electors ; and it is for discreet legislation, or con-
stitutional provisions, to determine what its amount shall be.
Even the Dorr constitution had a property qualification. Ac-
cording to its provisions, for officers of the State, to be sure,
any body could vote ; but its authors remembered that taxation
and representation go together, and therefore they declared that
no man, in any town, should vote to lay a tax for town pur-
poses who had not the means to pay his portion. It said to
him, You cannot vote in the town of Providence to levy a tax
for repairing the streets of Providence ; but you may vote for
governor, and for thirteen representatives from the town of Prov-
idence, and send them to the legislature, and there they may tax
the people of Rhode Island at their sovereign will and pleasure.
I believe that no harm can come of the Rhode Island agita-
tion in 1841, but rather good. It will purify the political atmos-
phere from some of its noxious mists, and I hope it will clear
men's minds from unfounded notions and dangerous delusions.
I hope it will bring them to look at the regularity, the order, with
which we carry on what, if the word were not so much abused,
I would call our glorious representative system of popular gov-
VOL. VI. 21
242 THE RHODE ISLAND GOVERNMENT.
ernment. Its principles will stand the test of this crisis, as they
have stood the test and torture of others. They are exposed
always, and they always will be exposed, to dangers. There
are dangers from the extremes of too much and of too little
popular liberty; from monarchy, or military despotism, on one
side, and from licentiousness and anarchy on the other. This
always will be the case. The classical navigator had been told
that he must pass a narrow and dangerous strait:
" Dextrum Scylla latus, laevum implacata Charybdis,
Obsidet."
Forewarned, he was alive to his danger, and knew, by signs not
doubtful, where he was, when he approached its scene :
" Et gemitum ingentem pelagi, pulsataque saxa,
Audimus longe, fractasque ad litora voces ;
Exsultantque vada, atque aestu miscentur arenas.
Nimiruin haec ilia Charybdis ! "
The long-seeing sagacity of our fathers enables us to know
equally well where we are, when we hear the voices of tumult-
uary assemblies, and see the turbulence created by numbers
meeting and acting without the restraints of law ; and has most
wisely provided constitutional means of escape and security
When the established authority of government is openly con-
temned ; when no deference is paid to the regular and authentic
declarations of the public will; when assembled masses put
themselves above the law, and, calling themselves the people,
attempt by force to seize on the government; when the social
and political order of the state is thus threatened with over-
throw, and the spray of the waves of violent popular commotion
lashes the stars, our political pilots may well cry out :
" Nimirum haec ilia Charybdis ! "
The prudence of the country, the sober wisdom of the people,
has thus far enabled us to carry this Constitution, and all our
constitutions, through the perils which have surrounded them,
without running upon the rocks on one side, or being swallowed
up in the eddying whirlpools of the other. And I fervently
hope that this signal happiness and good fortune will continue,
and that our children after us will exercise a similar prudence,
and wisdom, and justice ; and that, under the Divine blessing,
our system of free government may continue to go on, with
equal prosperity, to the end of time.
DIPLOMATIC AND OFFICIAL PAPERS.
INTRODUCTORY NOTE.
The greater part of the contents of this division of the work is de-
rived from the separate volume, which appeared in 1848, under the title
of the " Diplomatic and Official Papers " of Mr. Webster. Such official
letters as have been published since Mr. Webster returned to the Depart-
ment of State in 1850 have been added in this collection. Among these
is the letter to the Chevalier Hulsemann,of the 21st of December, 1850.
The volume published in 1848 contained, besides the letters of Mr.
Webster, numerous letters from the American Minister in London, from
the Commissioners of Massachusetts and Maine relative to the northeast-
ern boundary, from the British Minister, and from General Cass. Of
these such only have been retained in the present work as seemed neces-
sary to the full understanding of Mr. Webster's letters, and the subjects
treated in them.
21
THE CASE OF ALEXANDER McLEOD.*
Mr. Fox to Mr. Webster.
Washington, March 12, 1841.
The undersigned, her Britannic Majesty's Envoy Extraordi-
nary and Minister Plenipotentiary, is instructed by his govern-
ment to make the following official communication to the gov-
ernment of the United States.
Her Majesty's government have had under their consideration
the correspondence which took place in Washington in Decem-
ber last, between the United States Secretary of State, Mr.
Forsyth, and the undersigned, comprising two official letters
from Mr. Forsyth to the undersigned, dated the 26th and 30th
of the same month, upon the subject of the arrest and imprison-
ment of Mr. Alexander McLeod, of Upper Canada, by the au-
thorities of the State of New York, upon a pretended charge of
arson and murder, as having been engaged in the capture and
destruction of the steamboat " Caroline," on the 29th of Decem-
ber, 1837.
The undersigned is directed, in the first place, to make known
to the government of the United States that her Majesty's gov-
ernment entirely approve of the course pursued by the under-
signed in that correspondence, and of the language adopted by
him in the official letters above mentioned.
And the undersigned is now instructed again to demand from
the government of the United States, formally, in the name of
the British government, the immediate release of Mr. Alexander
McLeod.
* The history of this case will be found in the fifth volume of this collection,
in Mr. Webster's speech of the 6th and 7th of April, 1846, in vindication of the
treaty of Washington.
248 THE CASE OF ALEXANDER McLEOD.
The grounds upon which the British government make this
demand upon the government of the United States are these:
that the transaction on account of which Mr. McLeod has been
arrested, and is to be put upon his trial, was a transaction of a
public character, planned and executed by persons duly empow-
ered by her Majesty's colonial authorities to take any steps
and to do any acts which might be necessary for the defence of
her Majesty's territories and for the protection of her Majesty's
subjects; and that, consequently, those subjects of her Majesty
who engaged in that transaction were performing an act of
public duty, for which they cannot be made personally and in-
dividually answerable to the laws and tribunals of any foreign
country.
The transaction in question may have been, as her Majesty's
government are of opinion that it was, a justifiable employment
of force for the purpose of defending the British territory from
the unprovoked attack of a band of British rebels and American
pirates, who, having been permitted to arm and organize them-
selves within the territory of the United States, had actually
invaded and occupied a portion of the territory of her Majesty ;
or it may have been, as alleged by Mr. Forsyth, in his note to
the undersigned of the 26th of December, " a most unjustifiable
invasion, in time of peace, of the territory of the United States.''
But this is a question especially of a political and international
kind, which can be discussed and settled only between the two
governments, and which the courts of justice of the State of
New York cannot by possibility have any means of judging or
any right of deciding.
It would be contrary to the universal practice of civilized na-
tions to fix individual responsibility upon persons who, with the
sanction or by the orders of the constituted authorities of a State,
engaged in military or naval enterprises in their country's cause ;
and it is obvious that the introduction of such a principle would
aggravate beyond measure the miseries, and would frightfully
increase the demoralizing effects of war, by mixing up with na-
tional exasperation the ferocity of personal passions, and the
cruelty and bitterness of individual revenge.
Her Majesty's government cannot believe that the govern-
ment of the United States can really intend to set an example
eo fraught with evil to the community of nations, and the direct
THE CASE OF ALEXANDER McLEOD. 249
tendency of which must be to bring back into the practice of
modern war atrocities which civilization and Christianity have
long since banished.
Neither can her Majesty's government admit for a moment
the validity of the doctrine advanced by Mr. Forsyth, that the
Federal government of the United States has no power to inter-
fere in the matter in question, and that the decision thereof must
rest solely and entirely with the State of New York.
With the particulars of the internal compact which may ex-
ist between the several States that compose this Union, foreign
powers have nothing to do ; the relations of foreign powers are
with the aggregate Union ; that Union is to them represented
by the Federal government; and of that Union the Federal
government is to them the only organ. Therefore, when a for-
eign power has redress to demand for a wrong done to it by any
State of the Union, it is to the Federal government, and not to
the separate State, that such power must look for redress for
that wrong. And such foreign power cannot admit the plea
that the separate State is an independent body, over which the
Federal government has no control. It is obvious that such a
doctrine, if admitted, would at once go to a dissolution of the
Union as far as its relations with foreign powers are concerned ;
and that foreign powers in such case, instead of accrediting
diplomatic agents to the Federal government, would send such
agents, not to that government, but to the government of each
separate State, and would make their relations of peace and
war with each State depend upon the result of their separate
intercourse with such State, without reference to the relations
they might have with the rest.
Her Majesty's government apprehend that the above is not
the conclusion at which the government of the United States
intend to arrive ; yet such is the conclusion to which the argu-
ments that have been advanced by Mr. Forsyth necessarily
lead.
But be that as it may, her Majesty's government formally
demand, upon the grounds already stated, the immediate release
of Mr. McLeod ; and her Majesty's government entreat the Pres-
ident of the United States to take into his most deliberate con-
sideration the serious nature of the consequences which must
ensue from a rejection of this demand.
250 THE CASE OF ALEXANDER McLEOD.
The United States government will perceive that, in demand-
ing Mr. McLeod's release, her Majesty's government argue up-
on the assumption that he Was one of the persons engaged in
the capture of the steamboat " Caroline " ; but her Majesty's
government have the strongest reasons for being convinced that
Mr. McLeod was not, in fact, engaged in that transaction ; and
the undersigned is hereupon instructed to say, that, although
the circumstance itself makes no difference in the political and
international question at issue, and although her Majesty's gov-
ernment do not demand Mr. McLeod's release upon the ground
that he was not concerned in the capture of the " Caroline," but
upon the ground that the capture of the "Caroline" was a
transaction of a public character, for which the persons engaged
in it cannot incur private and personal responsibility ; yet the
government of the United States must not disguise from them-
selves that the fact that Mr. McLeod was not engaged in the
transaction must necessarily tend greatly to inflame that na-
tional resentment which any harm that shall be suffered by Mr.
McLeod at the hands of the authorities of the State of New
York will infallibly excite throughout the whole of the British
empire.
The undersigned, in addressing the present official communi-
cation, by order of his government, to Mr. Webster, Secretary
of State of the United States, has the honor to offer him the
assurance of his distinguished consideration.
H. S. Fox.
The Hon. Daniel Webster, Secretary of State.
Mr. Webster to Mr. Fox.
Department of State, Washington, April 24, 1841.
The undersigned, Secretary of State of the United States, has
the honor to inform Mr. Fox, Envoy Extraordinary and Min-
ister Plenipotentiary of her Britannic Majesty, that his note of
the 12th of March was received and laid before the President.
Circumstances well known to Mr. Fox have necessarily de-
layed for some days the consideration of that note.
The undersigned has the honor now to say, that it has been
fully considered, and that he has been directed by the President
to address to Mr. Fox the following reply.
Mr. Fox informs the government of the United States, that
THE CASE OF ALEXANDER McLEOD. 251
he is instructed to make known to it that the government of her
Majesty entirely approve the course pursued by him in his cor-
respondence with Mr. Forsyth in December last, and the lan-
guage adopted by him on that occasion ; and that that govern-
ment have instructed him " again to demand from the govern-
ment of the United States, formally, in the name of the British
government, the immediate release of Mr. Alexander McLeod" ;
that "the grounds upon which the British government make
this demand upon the government of the United States are
these : that the transaction on account of which Mr. McLeod
has been arrested, and is to be put upon his trial, was a transac-
tion of a public character, planned and executed by persons duly
empowered by her Majesty's colonial authorities to take any
steps and to do any acts which might be necessary for the de-
fence of her Majesty's territories, and for the protection of her
Majesty's subjects; and that, consequently, those subjects of
her Majesty who engaged in that transaction were performing
an act of public duty, for which they cannot be made personally
and individually answerable to the laws and tribunals of any
foreign country."
The President is not certain that he understands precisely the
meaning intended by her Majesty's government to be conveyed
by the foregoing instruction.
This doubt has occasioned with the President some hesita-
tion ; but he inclines to take it for granted that the main pur-
pose of the instruction was, to cause it to be signified to the
government of the United States that the attack on the steam-
boat " Caroline " was an act of public force, done by the British
colonial authorities, and fully recognized by the Queen's govern-
ment at home ; and that, consequently, no individual concerned
in that transaction can, according to the just principles of the
laws of nations, be held personally answerable in the ordinary
courts of law, as for a private offence ; and that upon this avowal
of her Majesty's government, Alexander McLeod, now impris-
oned on an indictment for murder alleged to have been com-
mitted in that attack, ought to be released by such proceedings
as are usual and are suitable to the case.
The President adopts the conclusion, that nothing more than
this could have been intended to be expressed, from the consid-
eration that her Majesty's government must be fully aware that
252 THE CASE OF ALEXANDER McLEOD.
in the United States, as in England, persons confined under ju-
dicial process can be released from that confinement only by ju-
dicial process. In neither country, as the undersigned supposes,
can the arm of the executive power interfere, directly or forcibly,
to release or deliver the prisoner. His discharge must be sought
in a manner conformable to the principles of law, and the pro-
ceedings of courts of judicature. If an indictment, like that
which has been found against Alexander McLeod, and under
circumstances like those which belong to his case, were pending
against an individual in one of the courts of England, there is
no doubt that the law officer of the crown might enter a nolle
prosequi; or that the prisoner might cause himself to be brought
up on habeas corpus, and discharged, if his ground of discharge
should be adjudged sufficient ; or that he might prove the same
facts and insist on the same defence or exemption on his trial.
All these are legal modes of proceeding, well known to the
laws and practice of both countries. But the undersigned
does not suppose that, if such a case were to arise in England,
the power of the executive government could be exerted in any
more direct manner. Even in the case of ambassadors, and
other public ministers whose right of exemption from arrest is
personal, requiring no fact to be ascertained but the mere fact
of diplomatic character, and to arrest whom is sometimes made
a highly penal offence, if the, arrest be actually made, it can
only be discharged by application to the courts of law.
It is understood that Alexander McLeod is holden as well on
civil as on criminal process, for acts alleged to have been done
by him in the attack on the " Caroline " ; and his defence, or
ground of acquittal, must be the same in both cases. And this
strongly illustrates, as the undersigned conceives, the propriety
of the foregoing observations ; since it is quite clear that the
executive government cannot interfere to arrest a civil suit be-
tween private parties in any stage of its progress ; but that such
suit must go on to its regular judicial termination. If, there-
fore, any course different from such as have been now men-
tioned was in contemplation of her Majesty's government,
something would seem to have been expected from the govern-
ment of the United States as little conformable to the laws and
usages of the English government as to those of the United
States, and to which this government cannot accede.
THE CASE OF ALEXANDER McLEOD. 253
The government of the United States, therefore, acting upon
the presumption, which it readily adopted, that nothing extra-
ordinary or unusual was expected or requested of it, decided,
on the reception of Mr. Fox's note, to take such measures as
the occasion and its own duty appeared to require.
In his note to Mr. Fox of the 26th of December last, Mr.
Forsyth, the Secretary of State of the United States, observes,
that, " if the destruction of the ' Caroline ' was a public act of
persons in her Majesty's service, obeying the order of their su-
perior authorities, this fact has not been before communicated
to the government of the United States by a person authorized
to make the admission ; and it will be for the court which has
taken cognizance of the offence with which Mr. McLeod is
charged to decide upon its validity when legally established be-
fore it." And he adds : " The President deems this to be a
proper occasion to remind the government of her Britannic Maj-
esty, that the case of the { Caroline ' has been long since brought
to the attention of her Majesty's principal Secretary of State for
Foreign Affairs, who up to this day has not communicated its
decision thereupon. It is hoped that the government of her
Majesty will perceive the importance of no longer leaving the
government of the United States uninformed of its views and
intentions upon a subject which has naturally produced much
exasperation, and which has led to such grave consequences."
The communication of the fact, that the destruction of the
" Caroline" was an act of public force by the British authori-
ties, being formally made to the government of the United
States by Mr. Fox's note, the case assumes a decided aspect.
The government of the United States entertains no doubt,
that, after this avowal of the transaction as a public transac-
tion, authorized and undertaken by the British authorities, in-
dividuals concerned in it ought not, by the principles of public
law and the general usage of civilized states, to be holden per-
sonally responsible in the ordinary tribunals of law for their
participation in it. And the President presumes that it can
hardly be necessary to say that the American people, not dis-
trustful of their ability to redress public wrongs by public
means, cannot desire the punishment of individuals when the
act complained of is declared to have been an act of the gov-
ernment itself.
vol. vi. 22
254 THE CASE OF ALEXANDER McLEOD.
Soon after the date of Mr. Fox's note, an instruction was
given to the Attorney- General of the United States from this
department, by direction of the President, which fully sets forth
the opinions of this government on the subject of McLeod's im-
prisonment, a copy of which instruction the undersigned has
the honor herewith to inclose.
The indictment against McLeod is pending in a State court;
but his rights, whatever they may be, are no less safe, it is to be
presumed, than if he were holden to answer in one of the courts
of this government.
He demands immunity from personal responsibility by virtue
of the law of nations, and that law in civilized states is to be
respected in all courts. None is either so high or so low as to
escape from its authority in cases to which its rules and prin-
ciples apply.
This department has been regularly informed by his Excel-
lency, the Governor of the State of New York, that the Chief
Justice of that State was assigned to preside at the hearing and
trial of McLeod's case, but that, owing to some error or mis-
take in the process of summoning the jury, the hearing was ne-
cessarily deferred. The President regrets this occurrence, as he
has a desire for a speedy disposition of the subject. The coun-
sel for McLeod have requested authentic evidence of the avowal
by the British government of the attack on and the destruction
of the " Caroline," as acts done under its authority, and such
evidence will be furnished to them by this department.
It is understood that the indictment has been removed into
the Supreme Court of the State by the proper proceeding for
that purpose, and that it is now competent for McLeod, by the
ordinary process of habeas corpus, to bring his case for hearing
before that tribunal.
The undersigned hardly needs to assure Mr. Fox, that a tri-
bunal so eminently distinguished for ability and learning as the
Supreme Court of the State of New York may be safely relied
upon for the just and impartial administration of the law in this
as well as in other cases ; and the undersigned repeats the ex-
pression of the desire of this government, that no delay may be
suffered to take place in these proceedings which can be avoid-
ed. Of this desire Mr. Fox will see evidence in the instruc-
tions above referred to.
THE CASE OF ALEXANDER McLEOD. 255
The undersigned has now to signify to Mr. Fox, that the gov-
ernment of the United States has not changed the opinion
which it has heretofore expressed to her Majesty's government
of the character of the act of destroying the " Caroline."
It does not think that that transaction can be justified by any
reasonable application or construction of the right of self-de-
fence under the laws of nations. It is admitted that a just right
of self-defence attaches always to nations as well as to individ-
uals, and is equally necessary for the preservation of both. But
the extent of this right is a question to be judged of by the cir-
cumstances of each particular case; and when its alleged exer-
cise has led to the commission of hostile acts within the terri-
tory of a power at peace, nothing less than a clear and abso-
lute necessity can afford ground of justification. Not having
up to this time been made acquainted with the views and rea-
sons at length which have led her Majesty's government to
think the destruction of the " Caroline " justifiable as an act of
self-defence, the undersigned, earnestly renewing the remon-
strance of this government against the transaction, abstains for
the present from any extended discussion of the question. But
it is deemed proper, nevertheless, not to omit to take some no-
tice of the general grounds of justification stated by her Majes-
ty's government in their instruction to Mr. Fox.
Her Majesty's government have instructed Mr. Fox to say,
that they are of opinion that the transaction which terminated
in the destruction of the " Caroline " was a justifiable employ-
ment of force for the purpose of defending the British territory
from the unprovoked attack of a band of British rebels and
American pirates, who, having been " permitted " to arm and
organize themselves within the territory of the United States,
had actually invaded a portion of the territory of her Majesty.
The President cannot suppose that her Majesty's govern-
ment, by the use of these terms, meant to be understood as in-
timating that those acts, violating the laws of the United States
and disturbing the peace of the British territories, were done
under any degree of countenance from this government, or
were regarded by it with indifference, or that, under the cir-
cumstances of the case, they could have been prevented by the
ordinary course of proceeding. Although he regrets that, by
Using the term " permitted," a possible inference of that kind
256 THE CASE OF ALEXANDER McLEOD.
might be raised ; yet such an inference, the President is willing
to believe, would be quite unjust to the intentions of the British
government.
That on a line of frontier such as separates the United States
from her Britannic Majesty's North American Provinces, a line
long enough to divide the whole of Europe into halves, irregu-
larities, violences, and conflicts should sometimes occur, equal-
ly against the will of both governments, is certainly easily to
be supposed. This may be more possible, perhaps, in regard
to the United States, without any reproach to their government,
since their institutions entirely discourage the keeping up of
large standing armies in time of peace, and their situation hap-
pily exempts them from the necessity of maintaining such ex-
pensive and dangerous establishments. All that can be expect-
ed from either government, in these cases, is good faith, a sincere
desire to preserve peace and do justice, the use of all proper
means of prevention, and that, if offences cannot, nevertheless,
be always prevented, the offenders shall still be justly punished.
In all these respects, this government acknowledges no delin-
quency in the performance of its duties.
Her Majesty's government are pleased, also, to speak of those
American citizens who took part with persons in Canada, en-
gaged in an insurrection against the British government, as
" American pirates." The undersigned does not admit the pro-
priety or justice of this designation. If citizens of the United
States fitted out, or were engaged in fitting out, a military ex-
pedition from the United States, intended to act against the
British government in Canada, they were clearly violating the
laws of their own country, and exposing themselves to the just
consequences which might be inflicted on them, if taken within
the British dominions. But, notwithstanding this, they were
certainly not pirates, nor does the undersigned think that it can
advance the purpose of fair and friendly discussion, or hasten
the accommodation of national difficulties, so to denominate
them. Their offence, whatever it was, had no analogy to
cases of piracy. Supposing all that is alleged against them to
be true, they were taking a part in what they regarded as a civil
war, and they were taking a part on the side of the rebels.
Surely England herself has not regarded persons thus engaged
as deserving the appellation which her Majesty s government
bestows on these citizens of the United States.
THE CASE OF ALEXANDER McLEOD. 257
It is quite notorious, that, for the greater part of the last two
centuries, subjects of the British crown have been permitted to
engage in foreign wars, both national and civil, and in the latter
in every stage of their progress ; and yet it has not been imag-
ined that England has at any time allowed her subjects to turn
pirates. Indeed, in our own times, not only have individual
subjects of that crown gone abroad to engage in civil wars, but
we have seen whole regiments openly recruited, embodied,
armed, and disciplined in England, with the avowed purpose of
aiding a rebellion against a nation with which England was at
peace ; although it is true that, subsequently, an act of Parlia-
ment was passed to prevent transactions so nearly approaching
to public war, without license from the crown.
It may be said that there is a difference between the case of
a civil war arising from a disputed succession, or a protracted
revolt of a colony against the mother country, and the case of
a fresh outbreak, or commencement of a rebellion. The under-
signed does not deny that such distinction may, for certain pur-
poses, be deemed well founded. He admits that a government,
called upon to consider its own rights, interests, and duties,
when civil wars break out in other countries, may decide on all
the circumstances of the particular case upon its own existing
stipulations, on probable results, on what its own security re-
quires, and on many other considerations. It may be already
bound to assist one party, or it may become bound, if it so
chooses, to assist the other, and to meet the consequences of
such assistance.
But whether the revolt be recent or long continued, they who
join those concerned in it, whatever may be their offence against
their own country, or however they may be treated, if taken
with arms in their hands in the territory of the government
against which the standard of revolt is raised, cannot be denom-
inated pirates without departing from all ordinary use of lan-
guage in the definition of offences. A cause which has so foul
an origin as piracy cannot, in its progress or by its success, ob-
tain a claim to any degree of respectability or tolerance among
nations ; and civil wars, therefore, are not understood to have
such a commencement.
It is well known to Mr. Fox, that authorities of the highest
eminence in England, living and dead, have maintained that
22*
£*38 THE CASE OF ALEXANDER McLEOD.
the general law of nations does not forbid the citizens or sub.
jects of one government from taking part in the civil commo-
tions of another. There is some reason, indeed, to think that
such may be the opinion of her Majesty's government at the
present moment.
The undersigned has made these remarks from the conviction
that it is important to regard established distinctions, and to
view the acts and offences of individuals in the exactly proper
light. But it is not to be inferred that there is, on the part of
this government, any purpose of extenuating in the slightest
degree the crimes of those persons, citizens of the United States,
who have joined in military expeditions against the British gov-
ernment in Canada. On the contrary, the President directs the
undersigned to say, that it is his fixed resolution that all such
disturbers of the national peace, and violators of the laws of
their country, shall be brought to exemplary punishment. Nor
will the fact that they are instigated and led on to these
excesses by British subjects, refugees from the Provinces, be
deemed any excuse or palliation ; although it is well worthy of
being remembered that the prime movers of these disturbances
on the borders are subjects of the Queen, who come within the
territories of the United States, seeking to enlist the sympathies
of their citizens by all the motives which they are able to ad-
dress to them on account of grievances, real or imaginary.
There is no reason to believe that the design of any hostile
movement from the United States against Canada has com-
menced with citizens of the United States. The true origin
of such purposes and such enterprises is on the other side of the
line. But the President's resolution to prevent these transgres-
sions of the law is not, on that account, the less strong. It is
taken, not only in conformity to his duty under the provisions
of existing laws, but in full consonance with the established
principles and practice of this government.
The government of the United States has not, from the first,
fallen into the doubts, elsewhere entertained, of the true extent
of the duties of neutrality. It has held, that, however it may
have been in less enlightened ages, the just interpretation of
the modern law of nations is, that neutral states are bound to
be strictly neutral ; and that it is a manifest and gross impro-
priety for individuals to engage in the civil conflicts of other
THE CASE OF ALEXANDER McLEOD. 259
states, and thus to be at war while their government is at peace.
War and peace are high national relations, which can properly
be established or changed only by nations themselves.
The United States have thought, also, that the salutary doc-
trine of non-intervention by one nation in the affairs of others
is liable to be essentially impaired, if, while government refrains
from interference, interference is still allowed to its subjects, in-
dividually or in masses. It may happen, indeed, that persons
choose to leave their country, emigrate to other regions, and
settle themselves on uncultivated lands, in territories belonging
to other states. This cannot be prevented by governments
which allow the emigration of their subjects and citizens ; and
such persons, having voluntarily abandoned their own country,
have no longer claim to its protection, nor is it longer responsi-
ble for their acts. Such cases, therefore, if they occur, show no
abandonment of the duty of neutrality.
The government of the United States has not considered it
as sufficient to confine the duties of neutrality and non-inter-
ference to the case of governments whose territories lie adjacent
to each other. The application of the principle may be more
necessary in such cases, but the principle itself they regard as
being the same, if those territories be divided by half the globe.
The rule is founded in the impropriety and danger of allowing
individuals to make war on their own authority, or, by min-
gling themselves in the belligerent operations of other nations*
to run the hazard of counteracting the policy, or embroiling the
relations, of their own government. And the United States
have been the first among civilized states to enforce the observ-
ance of this just rule of neutrality and peace, by special and ad-
equate legal enactments. In the infancy of this government,
on the breaking out of the European wars which had their ori-
gin in the French Revolution, Congress passed laws, with se-
vere penalties, for preventing the citizens of the United States
from taking part in those hostilities.
By these laws, it prescribed to the citizens of the United
States what it understood to be their duty as neutrals, by the
law of nations, and the duty, also, which they owed to the in-
terest and honor of their own country.
At a subsequent period, when the American colonies of a
European power took up arms against their sovereign, Con-
260 THE CASE OF ALEXANDER McLEOD.
gress, not diverted from the established system of the govern-
ment by any temporary considerations, not swerved from its
sense of justice and of duty by any sympathies which it might
naturally feel for one of the parties, did not hesitate also to
pass acts applicable to the case of colonial insurrection and
civil war. And these provisions of law have been continued,
revised, amended, and are in full force at the present moment.
Nor have they been a dead letter, as it is well known that exem-
plary punishments have been inflicted on those who have trans-
gressed them. It is known, indeed, that heavy penalties have
fallen on individuals (citizens of the United States) engaged
in this very disturbance in Canada with which the destruction
of the " Caroline " was connected. And it is in Mr. Fox's
knowledge, also, that the act of Congress of the 10th of March,
1838, was passed for the precise purpose of more effectually re-
straining military enterprises from the United States into the
British Provinces, by authorizing the use of the most sure and
decisive preventive means. The undersigned may add, that it
stands on the admission of very high British authority, that dur-
ing the recent Canadian troubles, although bodies of adventurers
appeared on the border, making it necessary for the people of
Canada to keep themselves in a state prepared for self-defence,
yet that these adventurers were acting by no means in accord-
ance with the feeling of the great mass of the American people,
or of the government of the United States.
This government, therefore, not only holds itself above re-
proach in every thing respecting the preservation of neutrality,
the observance of the principle of non-intervention, and the
strictest conformity, in these respects, to the rules of interna-
tional law, but it doubts not that the world will do it the justice
to acknowledge that it has set an example not unfit to be fol-
lowed by others ; and that, by its steady legislation on this most
important subject, it has done something to promote peace and
good neighborhood among nations, and to advance the civiliza-
tion of mankind.
The undersigned trusts that, when her Britannic Majesty's
government shall present the grounds at length on which they
justify the local authorities of Canada in attacking and destroy-
ing the " Caroline," they will consider that the laws of the United
States are such as the undersigned has now represented them
THE CASE OF ALEXANDER McLEOD. 261
and that the government of the United States has always mani-
fested a sincere disposition to see those 4aws effectually and im-
partially administered. If there have been cases in which indi-
viduals, justly obnoxious to punishment, have escaped, this is
no more than happens in regard to other laws.
Under these circumstances, and under those immediately
connected with the transaction itself, it will be for her Majesty's
government to show upon what state of facts and what rules
of national law the destruction of the " Caroline " is to be de-
fended. It will be for that government to show a necessity of
self-defence, instant, overwhelming, leaving no choice of means,
and no moment for deliberation. It will be for it to show, also,
that the local authorities of Canada, even supposing the neces-
sity of the moment authorized them to enter the territories of
the United States at all, did nothing unreasonable or excessive ;
since the act, justified by the necessity of self-defence, must be
limited by that necessity, and kept clearly within it. It must
be shown that admonition or remonstrance to the persons on
board the " Caroline " was impracticable, or would have been
unavailing. It must be shown that daylight could not be wait-
ed for ; that there could be no attempt at discrimination be-
tween the innocent and the guilty ; that it would not have been
enough to seize and detain the vessel ; but that there was a
necessity, present and inevitable, for attacking her in the dark-
ness of the night, while moored to the shore, and while un-
armed men were asleep on board, killing some and wounding
others, and then drawing her into the current above the cata-
ract, setting her on fire, and, careless to know whether there
might not be in her the innocent with the guilty, or the living
with the dead, committing her to a fate which fills the imagina-
tion with horror. A necessity for all this the government of the
United States cannot believe to have existed.
All will see that, if such things be allowed to occur, they
must lead to bloody and exasperated war. And when an indi-
vidual comes into the United States from Canada, and to the
very place on which this drama was performed, and there
chooses to make public and vainglorious boast of the part he
acted in it, it is hardly wonderful that great excitement should
be created, and some degree of commotion arise.
This republic does not wish to disturb the tranquillity of the
262 THE CASE OF ALEXANDER McLEOD.
world. Its object is peace, its policy peace. It seeks no ag-
grandizement by foreign conquest, because it knows that no
foreign acquisitions could augment its power and importance so
rapidly as they are already advancing by its own natural growth,
under the propitious circumstances of its situation. But it can-
not admit that its government has not both the will and the
power to preserve its own neutrality, and to enforce the observ-
ance of its own laws upon its own citizens. It is jealous of its
rights, and among others, and most especially, of the right of
the absolute immunity of its territory against aggression from
abroad ; and these rights it is the duty and determination of
this government fully and at all times to maintain, while it will
at the same time as scrupulously refrain from infringing on the
rights of others.
The President instructs the undersigned to say, in conclusion,
that he confidently trusts that this and all other questions of
difference between the two governments will be treated by both
in the full exercise of such a spirit of candor, justice, and mu-
tual respect as shall give assurance of the long continuance of
peace between the two countries.
The undersigned avails himself of this opportunity to assure
Mr. Fox of his high consideration.
Daniel Webster.
Henry S. Fox, Esq., Envoy Extraordinary and Minister Plenipotentiary.
[iNCLOSURE.]
Mr. Webster to the Attorney- General of the United States.
Department of State, Washington, March 15, 1841.
Sir, — Alexander McLeod, a Canadian subject of her Bri-
tannic Majesty, is now imprisoned at Lockport, in the State of
New York, under an indictment for murder alleged to have been
committed by him in the attack on, and the destruction of, the
steamboat " Caroline," at Schlosser, in that State, on the night
of the 29th of December, 1837 ; and his trial is expected to take
place at Lockport on the 22d instant.
You are apprised of the correspondence which took place be-
tween Mr. Forsyth, late Secretary of State, and Mr. Fox, her
Britannic Majesty's minister here, on this subject, in December
last. In his note to Mr. Fox, of the 26th of that month, Mr.
Forsyth says : — -
THE CASE OF ALEXANDER McLEOD. 263
" If the destruction of the ' Caroline' was a public act of per-
sons in her Majesty's service, obeying the order of their supe-
rior authorities, this fact has not been before communicated to
the government of the United States by a person authorized
to make the admission ; and it will be for the court which has
taken cognizance of the offence with which Mr. McLeod is
charged to decide upon its validity when legally established be-
fore it.
" The President deems this to be a proper occasion to remind
the government of her Britannic Majesty that the case of the
* Caroline ' has been long since brought to the attention of her
Majesty's principal Secretary of State for Foreign Affairs, who,
up to this day, has not communicated its decision thereupon.
It is hoped that the government of her Majesty will perceive the
importance of no longer leaving the government of the United
States uninformed of its views and intentions upon a subject
which has naturally produced much exasperation, and which
has led to such grave consequences."
I have now to inform you that Mr. Fox has addressed a note
to this department, under date of the 12th instant, in which,
by the immediate instruction and direction of his government,
he demands, formally and officially, McLeod's immediate re-
lease, on the ground that this transaction, on account of which
he has been arrested and is to be put upon his trial, was of a
public character, planned and executed by persons duly empow-
ered by her Majesty's colonial authorities to take any steps, and
to do any acts, which might be necessary for the defence of her
Majesty's territories, and for the protection of her Majesty's sub-
jects ; and that, consequently, those subjects of her Majesty who
engaged in that transaction were performing an act of public
duty, for which they cannot be made, personally and individu-
ally, answerable to the laws and tribunals of any foreign coun-
try ; and that her Majesty's government has further directed Mr.
Fox to make known to the government of the United States
that her Majesty's government entirely approved of the course
pursued by Mr. Fox, and the language adopted by him in the
correspondence above mentioned.
There is, therefore, now an authentic declaration on the part
of the British government that the attack on the " Caroline " was
ar act of public force, done by military men under the orders
264 THE CASE OF ALEXANDER McLEOD.
of their superiors, and is recognized as such by the Queen's
government. The importance of this declaration is not to be
doubted, and the President is of opinion that it calls upon him
for the performance of a high duty. That an individual, form-
ing part of a public force, and acting under the authority of his
government, is not to be held answerable as a private trespasser
or malefactor, is a principle of public law sanctioned by the
usages of all civilized nations, and which the government of
the United States has no inclination to dispute. This has no
connection whatever with the question, whether, in this case, the
attack on the " Caroline " was, as the British government think
it, a justifiable employment of force for the purpose of defend-
ing the British territory from unprovoked attack, or whether it
was a most unjustifiable invasion, in time of peace, of the ter-
ritory of the United States, as this government has regarded it.
The two questions are essentially distinct and different ; and,
while acknowledging that an individual may claim immunity
from the consequences of acts done by him, by showing that
he acted under national authority, this government is not to be
understood as changing the opinions which it has heretofore
expressed in regard to the real nature of the transaction which
resulted in the destruction of the " Caroline." That subject it is
not necessary for any purpose connected with this communica-
tion now to discuss. The views of this government in relation
to it are known to that of England ; and we are expecting the
answer of that government to the communication which has
been made to it.
All that is intended to be said at present is, that, since the
attack on the " Caroline" is avowed as a national act, which may
justify reprisals, or even general war, if the government of the
United States, in the judgment which it shall form of the trans-
action and of its own duty, should see fit so to decide, yet that
it raises a question entirely public and political, a question be-
tween independent nations ; and that individuals concerned in it
cannot be arrested and tried before the ordinary tribunals, as for
the violation of municipal law. If the attack on the " Caroline "
was unjustifiable, as this government has asserted, the law
which has been violated is the law of nations ; and the redress
which is to be s night is the redress authorized, in such cases, bj
the provisions of that code.
THE CASE OF ALEXANDER McLEOD. 265
You are well aware that the President has no power to arrest
the proceeding in the civil and criminal courts of the State of
New York. If this indictment were pending in one of the
courts of the United States, I am directed to say that the Presi-
dent, upon the receipt of Mr. Fox's last communication, would
have immediately directed a nolle prosequi to be entered.
Whether, in this case, the Governor of New York have that
power, or, if he have, whether he would feel it his duty to exer-
cise it, are points upon which we are not informed.
It is understood that McLeod is holden also on a civil pro-
cess, sued out against him by the owner of the " Caroline."
We suppose it very clear that the executive of the State cannot
interfere with such process ; and, indeed, if such process were
pending in the courts of the United States, the President could
not arrest it. In such and many analogous cases, the party
prosecuted or sued must avail himself of his exemption or de-
fence by judicial proceedings, either in the court into which he
is called, or in some other court. But whether the process be
criminal or civil, the fact of having acted under public authority,
and in obedience to the orders of lawful superiors, must be re-
garded as a valid defence ; otherwise individuals would be hold-
en responsible for injuries resulting from the acts of government,
and even from the operations of public war.
You will be furnished with a copy of this instruction, for the
use of the executive of New York and the Attorney-General of
that State. You will carry with you, also, authentic evidence
of the recognition by the British government of the destruction
of the Caroline as an act of public force, done by national au-
thority.
The President is impressed with the propriety of transferring
the trial from the scene of the principal excitement to some oth-
er and distant county. You will take care that this be suggest-
ed to the prisoner's counsel. The President is gratified to learn
that the Governor of New York has already directed that the
trial take place before the Chief Justice of the State.
Having consulted with the Governor, you will proceed to
Lockport, or wherever else the trial may be holden, and furnish
the prisoner's counsel with the evidence of which you will be in
possession material to his defence. You will see that he have
skilful and eminent counsel, if such be not already retained;
vol. vi. ?.3
266 THE CASE OF ALEXANDER McLEOD.
and although you are not desired to act as counsel yourse f, you
will cause it to be signified to him, and to the gentleman who
may conduct his defence, that it is the wish of this government
that, in case his defence be overruled by the court in which he
shall be tried, proper steps be taken immediately for removing
the cause, by writ of error, to the Supreme Court of the United
States.
The President hopes that you will use such despatch as to
make your arrival at the place of trial sure before the trial comes
on ; and he trusts you will keep him informed of whatever oc-
curs by means of a correspondence through this department.
I have the honor to be, Mr. Attorney- General, your obedient
servant.
Daniel Webster.
Hon. John J. Crittenden. Attorney-Generalofthe United States.
It is known that McLeod was brought before the Supreme Court of
the State of New York by writ of habeas corpus, and his discharge from
imprisonment insisted on, upon the ground that, if he had had any con-
cern in the destruction of the " Caroline," he had acted therein as a sol-
dier, under the order of his superiors, in a military expedition planned
and authorized by the British colonial government of Canada, and after-
ward avowed and sanctioned by the Queen's government in England.
The court on that occasion, however, took a different view of the law
from that which had been expressed by Mr. Webster in his letters to
Mr. Fox and Mr. Crittenden. The case is reported in Wendell's Re-
ports, Vol. XXV., page 483.
This decision does not appear to have given satisfaction either to the
profession or to the public men of the country. It was ably reviewed
in a pamphlet by the late D. B. Talmadge, formerly one of the judges of
the Superior Court of the City of New York. That Review will also be
found in Wendell's Reports, Vol. XXVI., in the Appendix.
Chancellor Kent, Chief Justice Spencer, and other eminent jurists,
have expressed their approbation of Mr. Talmadge's " Review," and
their entire concurrence in his judgment upon the legal question.
It was justly apprehended, that, if the tribunals of individual States
possessed the power of acting on questions of this kind, without revision
or control, dangerous consequences might arise to the peace of the
country. How could the government of the United States be respon-
sible for the fulfilment of its obligations to other governments, their citi-
zens and subjects, if, in cases of so much importance and delicacy an
THE CASE OF ALEXANDER McLEOD. 267
McLeod's, a State court might take final judgment into its own hands ?
An ultimate reference, in some way, to the judicial authorities of the
United States, of questions connected with the foreign relations of the
country, and which may involve its peace, would seem to be quite es-
sential. Under the influence of such a conviction, and with this decis-
ion of the Supreme Court of New York before it, Congress, on the
29th of August, 1842, passed the following act : —
" An Act to provide further remedial Justice in the Courts of ike
United States.
* Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That ei-
ther of the justices of the Supreme Court of the United States,
or judge of any District Court of the United States in which
a prisoner is confined, in addition to the authority already con-
ferred by law, shall have power to grant writs of habeas corpus
in all cases of any prisoner or prisoners in jail or confinement,
where he, she, or they, being subjects or citizens of a foreign
state, and domiciled therein, shall be committed or confined, or
in custody, under or by any authority or law, or process found-
ed thereon, of the United States, or of any one of them, for or
on account of any act done or omitted under any alleged right,
title, authority, privilege, protection, or exemption, set up or
claimed under the commission, or order, or sanction of any for-
eign state or sovereignty, the validity and effect whereof depend
upon the law of nations, or under color thereof. And upon the
return of the said writ, and due proof of the service of notice of
the said proceeding to the Attorney- General, or other officer
prosecuting the pleas of the State under whose authority the
petitioner has been arrested, committed, or is held in custody,
to be prescribed by the said justice or judge at the time of
granting said writ, the said justice or judge shall proceed to
hear the said cause ; and if, upon hearing the same, it shall
appear that the prisoner or prisoners is or are entitled to be dis-
charged from such confinement, commitment, custody, or arrest,
for or by reason of such alleged right, title, authority, privileges,
protection, or exemption so set up and claimed, and the law of
nations applicable thereto, and that the same exists in fact, and
has been duly proved to the said justice or judge, then it shall
be the duty of the said justice or judge forthwith to discharge
26S THE CASE OF ALEXANDER McLEOD.
such prisoner or prisoners accordingly. And if it shall appear
to the said justice or judge that such judgment or discharge
ought not to be rendered, then the said prisoner or prisoners
shall be forthwith remanded : Provided always, That from any
decision of such justice or judge an appeal may be taken to the
Circuit Court of the United States for the district in which the
said cause is heard; and from the judgment of the said Circuit.
Court to the Supreme Court of the United States, on such
terms and under such regulations and orders, as well for the
custody and appearance of the prisoner or prisoners as for send-
ing up to the appellate tribunal a transcript of the petition,
writ of habeas corpus returned thereto, and other proceedings, as
the judge hearing the said cause may prescribe : and pending
such proceedings or appeal, and until final judgment be ren-
dered therein, and after final judgment of discharge in the same,
any proceeding against said prisoner or prisoners in any State
court, or by or under the authority of any State, for any mat-
ter or thing so heard and determined, or in process of being
heard and determined, under and by virtue of such writ of
habeas corpus, shall be deemed null and void."
The authorities of public law would appear to be under no doubt of
McLeod's right to be exempted from personal responsibility for any act
he might have committed as a member of a military* force acting under
the authority of its government.
The following citations may be sufficient to establish this, and to
maintain the principles stated in Mr. Webster's letter to the Attorney-
General.
'- On all occasions susceptible of doubt, the whole nation, the individ-
uals, and especially the military, are to submit their judgment to those
who hold the reins of government, to the sovereign. This they are
bound to do, by the essential principles of political society and of gov-
ernment. What would be the consequence if, at even* step of the sov-
ereign, the subjects were at liberty to weigh the justice of his reasons,
and refuse to march to a war which might to them appear unjust ? It
often happens that prudence will not permit a sovereign to disclose all
bis reasons. It is the duty of subjects to suppose them just and wise,
until clear and absolute evidence tells them the contrary. When, there-
fore, under the impression of such an idea, they have lent their assist-
ance in a war which is afterward found to be unjust, the sovereign alone
is guilty ; he alone is bound to repair the injuries. The subjects, and
THE CASE OF ALEXANDER McLEOD. 269
in particular the military, are innocent ; they have acted only from a
necessary obedience."*
" Indeed, in solemn war, the individual members of a nation which
has declared war are not punishable by the adverse nation for what they
do, because the guilt of their actions is chargeable upon the nation which
directs and authorizes them to act. But even this effect may be pro-
duced, though not in the rsspect of all the members of the nation, yet
in respect of some of them, without a declaration of war. For, in the
less solemn kinds of war, what the members do who act under the par-
ticular direction and authority of their nation is by the law of nations no
peisonal crime in them ; they cannot, therefore, be punished, consist-
ently with this law, for any act in which it considers them only as the
instruments, and the nation as the agent.1' f
" A mere presumption of the will of the sovereign would not be suffi-
cient to excuse a governor or any other officer who should undertake a
war, except in case of necessity, without either a general or particular
order. For it is not sufficient to know what part the sovereign would
probably act, if he were consulted in such a particular posture of affairs ;
but it should rather be considered, in general, what it is probable a
prince would desire should be done, without consulting him, when the
matter will bear no delay and the affair is dubious. Now, certainly,
sovereigns will never consent that their ministers should, whenever they
think proper, undertake without their order a thing of such importance
as an offensive war, which is the proper subject of the present inquiry.
" In these circumstances, whatever part the sovereign would have
thought proper to act if he had been consulted, and whatever success
the war undertaken without his order may have had, it is left to the sov-
ereign whether he will ratify or condemn the act of his ministers. If he
ratify it, this approbation renders the war solemn, by reflecting back,
as it were, an authority upon it ; so that it obliges the whole common-
wealth." |
* Vattel, Book III. Ch. II. & 187.
f Rutherford, Book II. Ch. IX. $ 18.
t Burlamaqui, Part IV. Ch. III. §§ 18, 19.
23
TREATY OP WASHINGTON OF 1842.
THE NORTHEASTERN BOUNDARY.
A leading object sought to be accomplished, and which was accom-
plished, by the treaty of Washington, was the settlement of the con-
troversy between the United States and England relative to the northern
and northeastern boundary of the United States.
The history of this controversy, from the treaty of peace in 1783,
to its final adjustment in 1842, is given in Mr. Webster's speech in the
Senate, of the 6th and 7th of April, 1846.* In the summer of 1841,
Mr. Webster signified to Mr. Fox, the British Minister at Washington,
that, having received the President's authority for so doing, he was then
willing to make an attempt to settle the boundary dispute, by agreeing
on a conventional line, or line by compromise. In September of that
year the ministry of Sir Robert Peel came into power ; and in Decem-
ber following, Lord Aberdeen, Secretary of State for Foreign Affairs,
informed Mr. Edward Everett, at that time Minister of the United
States at the Court of London, that the Queen's government had de-
termined to send Lord Ashburton as a special minister to the United
States, with full powers to settle the boundary and all other questions in
controversy between the two governments. This information v/as im-
mediately communicated by Mr. Everett to Mr. Webster, in a letter
dated the 31st of December, 1841, to which Mr. Webster replied as
follows : —
Mr, Webster to Mr. Everett
[extract.]
Department of State, "Washington, January 29, 1842.
By the " Britannia," arrived at Boston, I have received your
despatch of the 28th of December (No. 4), and your other de-
* Vol. V. p. 78.
THE NORTHEASTERN BOUNDARY. 271
spatch of the 31st of the same month (No. 5), with a postscript
of the 3d of January.
The necessity of returning an early answer to these commu-
nications (as the " Britannia " is expected to leave Boston on
the 1st of February) obliges me to postpone a reply to those
parts of them which are not of considerable and immediate im-
portance.
• • • • »
The President has read Lord Aberdeen's note to you of the
20th of December, in reply to Mr. Stevenson's note to Lord
Palmerston of the 21st of October, and thinks you were quite
right in acknowledging the dispassionate tone of that paper.
It is only by the exercise of calm reason, that truth can be ar-
rived at in questions of a complicated nature ; and between
states, each of which understands and respects the intelligence
and the power of the other, there ought to be no unwillingness
to follow its guidance. At the present day, no state is so high
as that the principles of its intercourse with other nations are
above question, or its conduct above scrutiny. On the con-
trary, the whole civilized world, now vastly better informed on
such subjects than in former ages, and alive and sensible to the
principles adopted, and the purposes avowed, by the leading
states, necessarily constitutes a tribunal august in character
and formidable in its decisions. And it is before this tribunal,
and upon the rules of natural justice, moral propriety, the
usages of modern times, and the prescriptions of public law,
that governments, which respect themselves and respect their
neighbors, must be prepared to discuss with candor and with
dignity any topics which may have caused differences to spring
up between them.
Your despatch of the 31st of December announces the impor-
tant intelligence of an intention of despatching a special min-
ister from England to the United States, with full powers to
settle every matter in dispute between the two governments ;
and the President directs me to say, that he regards this pro-
ceeding as originating in an entirely amicable spirit, and that
it will be met, on his part, with perfectly corresponding senti-
ments. The high character of Lord Ashburton is well known
to this government ; and it is not doubted that he will enter
on the duties assigned to him, not only with the advantages
272 TREATY OF WASHINGTON OF 1842.
of much knowledge and experience in public affairs, but with
a true desire to signalize his mission by assisting to place
the peace of the two countries on a permanent basis. He
will be received with the respect due to his own character,
the character of the government which sends him, and the high
importance to both countries of the subjects intrusted to his
negotiation.
The President approves your conduct in not pursuing in
England the discussion of questions which are now to become
the subjects of negotiation here.
Daniel Webster.
Lord Ashburton arrived in Washington on the 4th of April, 1842;
and shortly after, Mr. Webster addressed the following letter to the Gov-
ernor of the State of Maine : —
Mr. Webster to Governor Fairfield.
Department of State, Washington, April 11, 1842.
Your Excellency is aware that, previous to March, 1841, a
negotiation had been going on for some time between the Sec-
retary of State of the United States, under the direction of the
President, and the British minister accredited to this govern-
ment, having for its object the creation of a joint commission
for settling the controversy respecting the northeastern boun-
dary of the United States, with a provision for an ultimate ref-
erence to arbitrators, to be appointed by some one of the sover-
eigns of Europe, in case an arbitration should become neces-
sary. On the leading features of a convention for this purpose
the two governments had become agreed ; but on several mat-
ters of detail the parties differed, and appear to have been in-
terchanging their respective views and opinions, projects and
counter-projects, without coming to any final arrangement,
down to August, 1840. Various causes, not now necessary
to be explained, arrested the progress of the negotiation at
that time, and no considerable advance has since been made
in it.
It seems to have been understood on both sides, that, one
arbitration having failed, it was the duty of the two parties to
proceed to institute another, according to the spirit of the
treaty of Ghent and other treaties ; and the President has felt
THE NORTHEASTERN BOUNDARi. 273
it to be his duty, unless some new course should be proposed, to
cause the negotiation to be resumed, and pressed to its conclu-
sion. But I have now to inform your Excellency that Lord
Ashburton, a minister plenipotentiary and special, has arrived
at the seat of the government of the United States, charged
with full powers from his sovereign to negotiate and settle the
different matters in discussion between the two governments.
I have further to state to you, that he has officially announced
to this department, that, in regard to the boundary question, he
has authority to treat for a conventional line, or line by agree-
ment, on such terms and conditions, and with such mutual con-
siderations and equivalents, as may be thought just and equi-
table, and that he is ready to enter upon a negotiation for
such conventional line so soon as this government shall say it
is authorized and ready, on its part, to commence such ne-
gotiation.
Under these circumstances, the President has felt it to be his
duty to call the serious attention of the governments of Maine
and Massachusetts to the subject, and to submit to those gov-
ernments the propriety of their cooperation, to a certain extent,
and in a certain form, in an endeavor to terminate a con-
troversy already of so long duration, and which seems very
likely to be still considerably further protracted before the de-
sired end of a final adjustment shall be attained, unless a
shorter course of arriving at that end be adopted than such as
has heretofore been pursued, and as the two governments are
still pursuing.
Yet, without the concurrence of the two States whose rights
are more immediately concerned, both having an interest in the
soil, and one of them in the jurisdiction and government, the
duty of this government will be to adopt no new course, but, in
compliance with treaty stipulations, and in furtherance of what
has already been done, to hasten the pending negotiations as
fast as possible, in the course hitherto adopted.
But the President thinks it a highly desirable object to pre-
vent the delays necessarily incident to any settlement of the
question by these means. Such delays are great and unavoid-
able. It has been found that an exploration and examination
of the several lines constitute a work of three years. The ex-
isting commission for making such exploration, under the au-
274 TREATY OF WASHINGTON OF 1842.
thority of the United States, has been occupied two summers,
and a very considerable portion of the work remains still to be
done. If a joint commission should be appointed, and should
go through the same work, and the commissioners should dis-
agree, as is very possible, and an arbitration on that account
become indispensable, the arbitrators might find it necessary
to make an exploration and survey themselves, or cause the
same to be done by others, of their own appointment. If to
these causes, operating to postpone the final decision, be added
the time necessary to appoint arbitrators, and for their prep-
aration to leave Europe for the service, and the various retard-
ing incidents always attending such operations, seven or eight
years constitute, perhaps, the shortest period within which we
can look for a final result. In the mean time, great expenses
have been incurred, and further expenses cannot be avoided.
It is well known that the controversy has brought heavy charges
upon Maine herself, to the remuneration or proper settlement of
which she cannot be expected to be indifferent. The explora-
tion by the government of the United States has already cost a
hundred thousand dollars, and the charge of another summer's
work is in prospect. These facts may be sufficient to enable us
to form a probable estimate of the whole expense likely to be
incurred before the controversy can be settled by arbitration ;
and our experience admonishes us that even another arbitration
might possibly fail.
The opinion of this government upon the justice and validity
of the American claim has been expressed at so many times,
and in so many forms, that a repetition of that opinion is not
necessary. But the subject is a subject in dispute. The gov-
ernment has agreed to make it matter of reference and arbitra-
tion ; and it must fulfil that agreement, unless another mode for
settling the controversy should be resorted to, with the hope of
producing a speedier decision. The President proposes, then,
that the governments of Maine and Massachusetts should sev-
erally appoint a commissioner or commissioners, empowered to
confer with the authorities of this government upon a conven-
tional line, or line by agreement, with its terms, conditions, con-
siderations, and equivalents ; with an understanding, that no
such line will be agreed upon without the assent of such com-
missioners.
THE NORTHEASTERN BOUNDARY. 275
This mode of proceeding, or some other which shall express
assent beforehand, seems indispensable, if any negotiation for
a conventional line is to be attempted; since, if happily a treaty
should be the result of the negotiation, it can only be submitted
to the Senate of the United States for ratification.
It is a subject of deep and sincere regret to the President, that
the British plenipotentiary did not arrive in the country and
make known his powers in time to have made this communica^
cation before the annual session of the legislatures of the two
States had been brought to a close. He perceives and laments
the inconvenience which may be experienced from reassembling
those legislatures. But the British mission is a special one ; it
does not supersede the resident mission of the British govern-
ment at Washington, and its stay in the United States is not
expected to be long. In addition to these considerations, it is
to be suggested that more than four months of the session of
Congress have already passed, and it is highly desirable, if any
treaty for a conventional line should be agreed on, that it should
be concluded before the session shall terminate, not only because
of the necessity of the ratification of the Senate, but also be-
cause it is not impossible that measures may be thought ad-
visable, or become important, which can only be accomplished
by the authority of both houses.
These considerations, in addition to the importance of the
subject, and a firm conviction in the mind of the President that
the interests of both countries, as well as the interests of the
two States more immediately concerned, require a prompt effort
to bring this dispute to an end, constrain him to express an ear-
nest hope that your Excellency will convene the legislature of
Maine, and submit the subject to its grave and candid delib-
erations.
I am, &c.
Daniel Webster.
His Excellency John Fairfield, Governor of Maine.
In pursuance of this invitation and a similar one addressed to the
Governor of Massachusetts, commissioners on the part of those two
States repaired to Washington, where they arrived in the early part of
June.
After some preliminary correspondence, the following letter was ad-
dressed by Mr. Webster to the Maine commissioners : —
276 TREATY OF WASHINGTON OF 1842.
Mr. Webster to the Maine Commissioners.
Department of State, Washington, July 15, 1842.
Gentlemen, — You have had an opportunity of reading Lord
Ashburton's note to me of the 11th of July. Since that date I
have had full and frequent conferences with him respecting the
eastern boundary, and believe I understand what is practicable
to be done on that subject, so far as he is concerned. In these
conferences he has made no positive or binding proposition,
thinking, perhaps, it would be more desirable, under present cir-
cumstances, that such proposition should proceed from the side
of the United States. I have reason to believe, however, that
he would agree to a line of boundary between the United States
and the British Provinces of Canada and New Brunswick, such
as is described in a paper accompanying this (marked B), and
identified by my signature.
In establishing the line between the monument and the St.
John, it is thought necessary to adhere to that run and marked
by the surveyors of the two governments in 1817 and 1818.
There is no doubt that the line recently run by Major Graham
is more entirely accurate ; but, being an ex parte line, there
would be objections to agreeing to it without examination, and
thus another survey would become necessary. Grants and set-
tlements, also, have been made in conformity with the former
line, and its errors are so inconsiderable that it is not thought
that their correction is a sufficient object to disturb these settle-
ments. Similar considerations have had great weight in adjust-
ing the line in other parts of it.
The territory in dispute between the two countries contains
twelve thousand and twenty-seven square miles, equal to seven
million six hundred ninety-seven thousand two hundred eighty
acres.
By the line prescribed in the accompanying paper, there will
be assigned to the United States seven thousand and fifteen
square miles, equal to four million four hundred eighty-nine
thousand six hundred acres; and to England five thousand and
twelve square miles, equal to three million two hundred seven
thousand six hundred eighty acres.
By the award of the King of the Netherlands, there was as-
signed to the United States seven thousand nine hundred eight
THE NORTHEASTERN BOUNDARY. 277
square miles, or five million sixty-one thousand one hundred
twenty acres ; to England, four thousand one hundred nineteen
square miles, or two million six hundred thirty-six thousand one
hundred sixty acres.
The territory proposed to be relinquished to England south
of the line of the King of the Netherlands is, as you will see,
the mountain range from the upper part of the St. Francis Riv-
er to the meeting of the two contested lines of boundary, at the
Metjarmette Portage, in the highlands, near the source of the
St. John. This mountain tract contains eight hundred ninety-
three square miles, equal to five hundred seventy-one thousand
five hundred twenty acres. It is supposed to be of no value for
cultivation or settlement. On this point you will see herewith
a letter from Captain Talcott, who has been occupied two sum-
mers in exploring the line of the highlands, and is intimately ac-
quainted with the territory. The line leaves to the United
States, between the base of the hills and the left bank of the St.
John, and lying along upon the river, a territory of six hundred
fifty-seven thousand two hundred eighty acres, embracing, with-
out doubt, all the valuable land south of the St. Francis and
west of the St. John. Of the general division of the territory, it
is believed it may be safely said, that, while the portion remain-
ing with the United States is, in quantity, seven twelfths, in
value it is at least four fifths of the whole.
Nor is it supposed that the possession of the mountain region
is of any importance in connection with the defence of the
country, or any military operations. It lies below all the accus-
tomed practicable passages for troops into and out of Lower
Canada; that is to say, the Chaudiere, Lake Champlain and
the Richelieu, and the St. Lawrence. If an army, with its ma-
teriel, could possibly pass into Canada over these mountains,
it would only find itself on the banks of the St. Lawrence be-
low Quebec ; and, on the other hand, it is not conceivable that
an invading enemy from Lower Canada would attempt a pas-
sage in this direction, leaving the Chaudiere on the one hand
and the route by the Madawaska on the other.
If this line should be agreed to on the part of the United
States, I suppose that the British minister would, as an equiv-
alent, stipulate, first, for the use of the River St. John, for the
conveyance of the timber growing on any of its branches, to
vol. vi. 24
278 TREATY OF WASHINGTON OF 1842.
tide-water, free from all discriminating tolls, impositions, or in«
abilities of any kind, the timber enjoying all the privileges of
British colonial timber. All opinions concur that this privilege
of navigation must greatly enhance the value of the territory
and the timber growing thereon, and prove exceedingly useful
to the people of Maine. Second, that Rouse's Point, in Lake
Champlain, and the lands heretofore supposed to be within the
limits of New Hampshire, Vermont, and New York, but which
a correct ascertainment of the forty-fifth parallel of latitude
shows to be in Canada, should be surrendered to the United
States.
It is probable, also, that the disputed line of boundary in
Lake Superior might be so adjusted as to leave a disputed
island within the United States.
These cessions on the part of England would enure partly to
the benefit of the States of New Hampshire, Vermont, and
New York, but principally to the United States. The consid-
eration on the part of England, for making them, would be the
manner agreed upon for adjusting the eastern boundary. The
price of the cession, therefore, whatever it might be, would in
fairness belong to the two States interested in the manner of
that adjustment.
Under the influence of these considerations, I am authorized
to say, that, if the commissioners of the two States assent to
the line as described in the accompanying paper, the United
States will undertake to pay to these States the sum of two
hundred and fifty thousand dollars, to be divided between them
in equal moieties ; and also to undertake for the settlement and
payment of the expenses incurred by those States for the main-
tenance of the civil posse, and also for a survey which it was
found necessary to make.
The line suggested, with the compensations and equivalents
which have been stated, is now submitted for your considera-
tion. That it is all which might have been hoped for, looking to
the strength of the American claim, can hardly be said. But,
as the settlement of a controversy of such duration is a mat-
ter of high importance, as equivalents of undoubted value are
offered, as longer postponement and delay would lead to further
inconvenience, and to the incurring of further expenses, and as
no better occasion, nor, perhaps, any other occasion, for settling
THE NORTHEASTERN BOUNDARY. 279
the boundary by agreement, and on the principle of equivalents,
is ever likely to present itself, the government of the United
States hopes that the commissioners of the two States will find
it to be consistent with their duty to assent to the line pro-
posed, and to the terms and conditions attending the propo-
sition.
The President has felt the deepest anxiety for an amicable
settlement of the question, in a manner honorable to the coun-
try, and such as should preserve the rights and interests of the
States concerned. From the moment of the announcement of
Lord Ashburton's mission, he has sedulously endeavored to pur-
sue a course the most respectful toward the States, and the
most useful to their interests, as well as the most becoming to
the character and dignity of the government. He will be happy
if the result shall be such as shall satisfy Maine and Massachu-
setts, as well as the rest of the country. With these sentiments
on the part of the President, and with the conviction that no
more advantageous arrangement can be made, the subject is
now referred to the grave deliberation of the commissioners.
I have the honor to be, with great respect,
Your obedient servant,
Daniel Webster.
The Hon. the Commissioners of Maine.
Lord Ashburton to Mr. Webster.
Washington, July 16, 1842.
Sir, — There is a further question of disputed boundary be-
tween Great Britain and the United States, called the north-
west boundary, about which we have had some conferences ;
and I now proceed to state the terms which I am ready to agree
to for the settlement of this difference. As the principal object
in dispute is to be given up by Great Britain, I trust, Sir, that
you will here again recognize the spirit of friendly conciliation
which has guided my government in disposing of these ques-
tions.
I have already sufficiently discussed with you the bounda-
ries between her Majesty's Provinces and the United States,
from the monument at the head of the River St. Croix to the
monument on the River St. Lawrence, near the village of St.
Regis.
280 TREATY OF WASHINGTON OF 1842.
The commissioners under the sixth article of the treaty of
Ghent succeeded in continuing this boundary from St. Regis
through the St. Lawrence and the great northern lakes, up
to a point in the channel between Lake Huron and Lake Su-
perior.
A further continuation of this boundary, from this point
through Lake Superior to the Lake of the Woods, was con-
fided to the same commissioners under the seventh article of
the treaty of Ghent, but they were, unfortunately, unable to
agree, and have consequently left this portion of the boundary
undetermined. Its final settlement has been much desired by
both governments, and urgently pressed by communications
from Mr. Secretary Forsyth to Mr. Fox, in 1839 and 1840.
What I have now to propose cannot, I feel assured, be other-
wise than satisfactory for this purpose.
The commissioners who failed in their endeavors to make this
settlement differed on two points : —
First. As to the appropriation of an island called St. George's
Island, lying in the water communication between Lake Huron
and Lake Superior ; and,
Secondly. As to the boundary through the water communi-
cations from Lake Superior to the Lake of the Woods.
The first point I am ready to give up to you, and you are no
doubt aware that it is the only object of any real value in this
controversy. The island of St. George is reported to contain
twenty-five thousand nine hundred and twenty acres of very
fertile land ; but, the other things connected with these bounda-
ries being satisfactorily arranged, a line shall be drawn so as to
throw this island within the limits of the United States.
In considering the second point, it really appears of little im-
portance to either party how the line be determined through
the wild country between Lake Superior and the Lake of the
Woods, but it is important that some line should be fixed and
known.
The American commissioner asked for the line from Lake
Superior up the River Kamanastiguia to the lake called Dog
Lake, which he supposed to be the same as that called Long
Lake in the treaties, thence through Sturgeon Lake to the Lac
la Pluie, to that point where the two lines assumed by the com-
missioners again meet. >
THE NORTHEASTERN BOUNDARY 281
The British commissioner, on the other hand, contended for
a line from the southwestern extremity, at a point called Le
Fond du Lac, to the middle of the mouth of* the estuary, or lake,
of St. Louis River, thence up that river through Vermilion
River to Lac la Pluie.
Attempts were made to compromise these differences, but
they failed, apparently more from neither party being willing to
give up the island of St. George, than from much importance
being attached to any other part of the case.
Upon the line from Lake Superior to the Lake of the Woods,
both commissioners agreed to abandon their respective claims,
and to adopt a middle course, for which the American com-
missioner admitted that there was some ground of preference.
This was from Pigeon River, a point between Kamanastiguia
and Le Fond du Lac ; and although there were differences as
to the precise point near the mouth of Pigeon River where the
line should begin, neither party seemed to have attached much
importance to this part of the subject.
I would propose that the line be taken from a point about six
miles south of Pigeon River, where the Grand Portage com-
mences on the lake, and continued along the line of said port-
age, alternately by land and water, to Lac la Pluie, the existing
route by land and by water remaining common to both parties.
This line has the advantage of being known, and attended with
no doubt or uncertainty in running it.
In making the important concession on this boundary of the
island of St. George, I must attach a condition to it of accom-
modation, which experience has proved to be necessary in the
navigation of the great waters which bound the two countries ;
an accommodation which can, I apprehend, be no possible in-
convenience to either. This was asked by the British commis-
sioner in the course of the attempts of compromise above alluded
to ; but nothing was done, because he was not then prepared, as
I am now, to yield the property and sovereignty of St. George's
Island.
The first of these two cases is at the head of Lake St. Clair,
where the river of that name empties into it from Lake Huron.
It is represented that the channel bordering the United States
coast in this part is not only the best for navigation, but, with
some winds, is the only serviceable passage. I do not know
24*
282 TREATY OF WASHINGTON OF 1842.
that, under such circumstances, the passage of a British vessel
would be refused ; but, on a final settlement of boundaries, it is
desirable to stipulate for what the commissioners would proba-
bly have settled, had the facts been known to them.
The other case, of nearly the same description, occurs on the
St. Lawrence, some miles above the boundary at St. Regis.
In distributing the islands of the river by the commissioners,
Barnhart's Island and the Long Sault Islands were assigned to
America. This part of the river has very formidable rapids,
and the only safe passage is on the southern or American side,
between those islands and the mainland. We want a clause
in our present treaty to say that, for a short distance, namely,
from the upper end of Upper Long Sault Island to the lower
end of Barnhart's Island, the several channels of the river shall
bt used in common by the boatmen of the two countries.
I am not aware that these very reasonable demands are likely
to meet with any objection, especially where the United States
will have surrendered to them all that is essential in the boun-
dary I have now to propose to you.
I beg you will be assured, Sir, of my unfeigned and distin-
guished consideration.
Ashburton
Hon. Daniel Webster, &c, &c, &c.
Mr. Webster to Lord Ashburton.
Department of State, Washington, July 27, 1842.
My Lord, — I have now to propose to your Lordship a line
of division embracing the disputed portions of the boundary
between the United States and the British Provinces of New
Brunswick and the Canadas, with its considerations and equiv-
alents, such as conforms, I believe, in substance, to the result
of the many conferences and discussions which have taken place
between us.
The acknowledged territories of the United States and Eng-
land join upon each other from the Atlantic Ocean to the east-
ern foot of the Rocky Mountains, a distance of more than three
thousand miles. From the ocean to the source of the St. Croix
the line of division has been ascertained and fixed by agree-
ment ; from the source of the St. Croix to a point near St
Regis, on the River St. Lawrence, it may be considered as un»
THE NORTHEASTERN BOUNDARY. 283
settled or controverted ; from this last-mentioned point, along
the St. Lawrence and through the lakes, it is settled, until it
reaches the water communication between Lake Huron and
Lake Superior. At this point the commissioners, under the
seventh article of the treaty of Ghent, found a subject of dis-
agreement which they could not overcome, in deciding up
which branch or channel the line should proceed, till it should
reach a point in the middle of St. Mary's River, about one
mile above St. George's or Sugar Island.
From the middle of the water communication between the
two lakes, at the point last mentioned, the commissioners ex-
tended the line through the remaining part of that water com-
munication, and across Lake Superior, to a point north of He
Royale ; but they could not agree in what direction the line
should run from this last-mentioned point, nor where it should
leave Lake Superior, nor how it should be extended to the
Rainy Lake, or Lac la Pluie. From this last-mentioned lake
they agreed on the line to the northwesternmost point of the
Lake of the Woods, which they found to be in latitude forty-
nine degrees twenty-three minutes fifty-five seconds. The line
extends, according to existing treaties, due south from this point
to the forty-ninth parallel of north latitude, and by that parallel
to the Rocky Mountains.
Not being able to agree upon the whole line, the commission-
ers, under the seventh article, did not make any joint report to
their respective governments. So far as they agreed on any
part of the line, that part has been considered settled ; but it
may be well to give validity to these portions of the line by a
treaty.
To complete the boundary line, therefore, and to remove all
doubts and disputes, it is necessary for the two governments to
come to an agreement on three points : —
1st. What shall be the line on the northeastern and northern
limits of the United States, from the St. Croix to the St. Law-
rence ? This is by far the most important and difficult of the
subjects, and involves the principal questions of equivalents and
compensations.
2d. What shall be the course of the boundary from the point
where the commissioners, under the sixth article of the treaty
of Ghent, terminated their labors, to wit, a point in the Neebish
284 TREATY OF WASHINGTON OF 1842.
Channel, near Muddy Lake, in the water communication be-
tween Lake Huron and Lake Superior, to a point in the middle
of St. Mary's River, one mile above Sugar Island ? This ques-
tion is important, as it involves the ownership of that island.
3d. What shall be the line from the point north of He Royale,
in Lake Superior, to which the commissioners of the two gov-
ernments arrived by agreement, to the Rainy Lake ? And also
to confirm those parts of the line to which the said commission-
ers agreed.
Besides agreeing upon the line of division through which
these controverted portions of the boundary pass, you have sug-
gested also, as the proposed settlement proceeds upon the
ground of compromise and equivalents, that boats belonging to
her Majesty's subjects may pass the falls of the Long Sault, in
the St. Lawrence, on either side of the Long Sault Islands, and
that the passages between the islands lying at or near the junc-
tion of the River St. Clair with the lake of that name shall be
severally free and open to the vessels of both countries. There
appears no reasonable objection to what is requested in these
particulars ; and on the part of the United States it is desirable
that their vessels, in proceeding from Lake Erie into the De-
troit River, should have the privilege of passing between Bois
Blanc, an island belonging to England, and the Canadian shore,
the deeper and better channel being on that side.
The line, then, now proposed to be agreed to may be thus de-
scribed : —
Beginning at the monument at the source of the River St.
Croix, as designated and agreed to by the commissioners under
the fifth article of the treaty of 1794, between the governments
of the United States and Great Britain ; thence north, following
the exploring line run and marked by the surveyors of the two
governments in the years 1817 and 1818, under the fifth article
of the treaty of Ghent, to its intersection with the River St.
John, and to the middle of the channel thereof; thence up the
middle of the main channel of the said River St. John to the
mouth of the River St. Francis ; thence up the middle of the
channel of the said River St. Francis, and of the lakes through
which it flows, to the outlet of the Lake Pohenagamook ; thence
southwesterly, in a straight line, to a point on the northwest
branch of the River St. John, which point shall be ten miles dis-
THE NORTHEASTERN BOUNDARY. 285
tant from the main branch of the St. John, in a straight line*
and in the nearest direction ; but if the said point shall be found
to be less than seven miles from the nearest point of the sum-
mit or crest of the highlands that divide those rivers which
empty themselves into the River St. Lawrence from those which
fall into the River St. John, then the said point shall be made
to recede down the said river to a point seven miles, in a straight
line, from the said summit or crest; thence, in a straight line,
in a course about south eight degrees west, to the point where
the parallel of latitude of forty-six degrees twenty-five minutes
north intersects the southwest branch of the St. John; thence
southerly, by the said branch, to the source thereof in the high-
lands at the Metjarmette Portage; thence down along the said
highlands which divide the waters which empty themselves into
the River St. Lawrence from those which fall into the Atlan-
tic Ocean, to the head of Hall's Stream; thence down the mid-
dle of said stream, till the line thus run intersects the old line
of boundary surveyed and marked by Valentine and Collins,
previously to the year 1774, as the forty-fifth degree of north lat-
itude, and which has been known and understood to be the line
of actual division between the States of New York and Ver-
mont on one side, and the British Province of Canada on the
other ; and from said point of intersection, west, along the said
dividing line, as heretofore known and understood, to the Iro-
quois or St. Lawrence River; and from the place where the
joint commissioners terminated their labors under the sixth arti-
cle of the treaty of Ghent, to wit, at a point in the Neebish
Channel, near Muddy Lake, the line shall run into and along
the ship-channel between St. Joseph's and St. Tammany Islands,
to the division of the channel at or near the head of St. Joseph's
island ; thence, turning eastwardly and northwardly, around the
lower end of St. George's or Sugar Island, and following the
middle of the channel which divides St. George's from St. Jo-
seph's Island; thence up the east Neebish Channel nearest to
St. George's Island, through the middle of Lake George ; thence
west of Jonas Island, into St. Mary's River, to a point in the
middle of that river about one mile above St. George's or Su-
gar Island, so as to appropriate and assign the said island
to the United States ; thence, adopting the line traced on the
maps by the commissioners, through the River St, Mary and
286 TREATY OF WASHINGTON OF 1842.
Lake Superior, to a point north of lie Royale, in said lake, one
hundred yards to the north and east of He Chapeau, which last-
mentioned island lies near the northeastern point of He Royale,
where the line marked by the commissioners terminates ; and
from the last-mentioned point, southwesterly, through the mid-
dle of the sound, between He Royale and the northwestern
mainland, to the mouth of Pigeon River, and up the said river
to and through the North and South Fowl Lakes, to the lakes of
the height of land between Lake Superior and the Lake of the
Woods ; thence along the water communication to Lake Saisa-
ginaga, and through that lake ; thence to and through Cypress
Lake, Lac du Bois Blanc, Lac la Croix, Little Vermilion Lake,
and Lake Namecan, and through the several smaller lakes,
straits, or streams connecting the lakes here mentioned, to that
point in Lac la Pluie, or Rainy Lake, at the Chaudiere Falls,
from which the commissioners traced the line to the most
northwestern point of the Lake of the Woods ; thence along the
said line, to the said most northwestern point, being in latitude
forty-nine degrees twenty-three minutes fifty -five seconds north,
and in longitude ninety-five degrees fourteen minutes thirty-
eight seconds west from the observatory at Greenwich ; thence,
according to existing treaties, the line extends due south to its
intersection with the forty-ninth parallel of north latitude, and
along that parallel to the Rocky Mountains. It being under-
stood that all the water communications, and all the usual
portages, along the line from Lake Superior to the Lake of the
Woods, and also Grand Portage from the shore of Lake Supe-
rior to the Pigeon River, as now actually used, shall be free
and open to the use of the subjects and citizens of both coun-
tries.
It is desirable to follow the description and the exact line of
the original treaty as far as practicable. There is reason to
think that " Long Lake," mentioned in the treaty of 1783,
meant merely the estuary of the Pigeon River, as no lake
called " Long Lake," or any other water strictly conforming
to the idea of a lake, is found in that quarter. This opinion is
strengthened by the fact, that the words of the treaty would
seem to imply that the water intended as " Long Lake " was
immediately joining Lake Superior. In one respect, an exact
compliance with the words of the treaty is not practicable*
THE NORTHEASTERN BOUNDARY. 287
There is no continuous water communication between Lake
Superior and the Lake of the Woods, as the Lake of the
Woods is known to discharge its waters, through the Red River
of the North, into Hudson's Bay. The dividing height or ridge
between the eastern sources of the tributaries of the Lake of
the Woods and the western sources of Pigeon River appears,
by authentic maps, to be distant about forty miles from the
mouth of Pigeon River, on the shore of Lake Superior.
It is not improbable that, in the imperfection of knowledge
which then existed of those remote countries, and perhaps mis-
led by Mitchell's map, the negotiators of the treaty of 1783
supposed the Lake of the Woods to discharge its waters into
Lake Superior. The broken and difficult nature of the water
communication from Lake Superior to the Lake of the Woods
renders numerous portages necessary ; and it is right that these
water communications and these portages should make a com-
mon highway, where necessary, for the use of the subjects and
citizens of both governments.
When the proposed line shall be properly described in the
treaty, the grant by England of the right to use the waters of
the River St. John for the purpose of transporting to the mouth
of that river all the timber and agricultural products raised in
Maine on the waters of the St. John or any of its tributaries,
without subjection to any discriminating toll, duty, or disability,
is to be inserted. Provision should also be made for quieting
and confirming the titles of all persons having claims to lands
on either side of the line, whether such titles be perfect or in-
choate only, and to the same extent in which they would have
been confirmed by their respective governments had no change
taken place. What has been agreed to, also, in respect to the
common use of certain passages in the rivers and lakes, as
already stated, must be made matter of regular stipula-
tion.
Your Lordship is also informed, by the correspondence which
formerly took place between the two governments, that there is
a fund arising from the sale of timber, concerning which fund
an understanding was had some years ago. It will be expe-
dient to provide, by the treaty, that this arrangement shall be
carried, into effect.
A proper article will be necessary to provide for the creation
288 TREATY OF WASHINGTON OF 1842.
of a commission to run and mark some parts of the line be-
tween Maine and the British Provinces.
These several objects appear to me to embrace all respecting
the boundary line, and its equivalents, which the treaty needs
to contain as matters of stipulation between the United States
and England.
I have the honor to be, with high consideration, your Lord-
ship's most obedient servant.
Daniel Webster,
Lord Ashburton, &c, &c, &c.
Lord Ashburton to Mr. Webster.
Washington, July 29, 1842.
Sir, — I have attentively considered the statements con-
tained in the letter you did me the honor of addressing me on
the 27th of this month, of the terms agreed to for the settlement
of boundaries between her Majesty's Provinces and the United
States, being the final result of the many conferences we have
had on this subject. This settlement appears substantially cor-
rect in all its parts, and we may now proceed, without further
delay, to draw up the treaty. Several of the articles for this
purpose are already prepared and agreed, and our most conven-
ient course will be to take and consider them singly. I would
beg leave to recommend, that, as we have excellent charts of
the country through which the boundary which failed of being
settled by the commissioners under the seventh article of the
treaty of Ghent is partially marked, it would be advisable to
make good the delineation on those charts, which would spare
to both parties the unnecessary expense of new commissioners
and a new survey. In this case, the only commission required
would be to run the line on the boundary of Maine.
The stipulations for the greater facility of the navigation of
the River St. Lawrence, and of two passages between the
Upper Lakes, appear evidently desirable for general accommo-
dation ; and I cannot refuse the reciprocal claim made by you
to render common the passage from Lake Erie into the Detroit
River. This must be done by declaring the several passages
in those parts free to both parties.
I should remark, also, that the free use of the navigation of
the Long Sault passage on the St. Lawrence must be extend-
THE NORTHEASTERN BOUNDARY 289
ed to below Barnhart's Island, for the purpose of clearing those
rapids.
I beg leave to repeat to you, Sir, the assurances of my most
distinguished consideration.
ASHBURTON.
Hon. Daniel Webster, &c, &c, &c.
Lord Ashburton to Mr. Webster,
Washington, August 9, 1842.
Sir, — It appears desirable that some explanation between us
should be recorded by correspondence respecting the fifth article
of the treaty signed by us this day for the settlement of boun-
daries between Great Britain and the United States.
By that article of the treaty it is stipulated that certain pay-
ments shall be made by the government of the United States
to the States of Maine and Massachusetts. It has, of course,
been understood that my negotiations have been with the gov-
ernment of the United States, and the introduction of terms
of agreement between the general government and the States
would have been irregular and inadmissible, if it had not been
deemed expedient to bring the whole of these transactions
within the purview of the treaty. There may not be wanting
analogous cases to justify this proceeding; but it seems proper
that I should have confirmed by you that my government incurs
no responsibility for these engagements, of the precise nature
and object of which I am uninformed, nor have I considered it
necessary to make inquiry concerning them.
I beg, Sir, to renew to you the assurances of my high consid-
eration.
Ashburton.
Hon. Daniel Webster, &c, &c, &c.
Mr. Webster to Lord Ashburton.
Department of State, Washington, August 9, 1842.
My Lord, — I have the honor to acknowledge the receipt of
your note of this day, with respect to the object and inten-
tion of the fifth article of the treaty. What you say in re-
gard to that subject is quite correct. It purports to contain no
stipulation on the part of Great Britain, nor is any respon-
vol. vi. 25
290 TREATY OF WASHINGTON OF 1842.
sibility supposed to be incurred by it on the part of your
government.
I renew, my Lord, the assurances of my distinguished con-
sideration.
Daniel Webster,
Lord Ashburton, &c., &c., &c.
SUPPRESSION OF THE SLAVE-TRADE.
Mr. Webster to Captains Bell and Paine.
Department of State, Washington, April 30, 1842.
Gentlemen, — Your experience in the service on the coast of
Africa has probably enabled you to give information to the gov-
ernment on some points connected with the slave-trade on that
coast, in respect to which it is desirable that the most accu-
rate knowledge attainable should be possessed. These particu-
lars are, —
1. The extent of the western coast of Africa along which the
slave-trade is supposed to be carried on, with the rivers, creeks,
inlets, bays, harbors, or parts of the coast to which it is under-
stood slave-ships most frequently resort.
2. The space or belt along the shore within which cruisers
may be usefully employed for the purpose of detecting vessels
engaged in the traffic.
3. The general course of proceeding of a slave-ship after leav-
ing Brazil or the West Indies on a voyage to the coast of Af-
rica for slaves, including her manner of approach to the shore,
her previous bargain or arrangement for the purchase of slaves,
the time of her usual stay on or near the coast, and the means
by which she has communication with persons on land.
4. The nature of the stations, or barracoons, in which slaves
are collected on shore to be sold to the traders, whether usually
in rivers, creeks, or inlets, or on or near the open shore.
5. The usual articles of equipment and preparation, and the
manner of fitting up, by which a vessel is known to be a slaver,
though not caught with slaves on board.
6. The utility of employing vessels of different nations to
SUPPRESSION OF THE SLAVE-TRADE 291
cruise together, so that one or the other might have a right to
visit and search every vessel which might be met with under
suspicious circumstances, either as belonging to the country
of the vessel visiting and searching, or to some other country
which has, by treaty, conceded such right of visitation and
search.
7. To what places slaves from slave-ships could be most con-
veniently taken.
8. Finally, what number of vessels, and of what size and de-
scription, it would be necessary to employ on the western coast
of Africa, in order to put an entire end to the traffic in slaves,
and for what number of years it would probably be necessary to
maintain such force to accomplish that purpose.
You will please to add such observations as the state of your
knowledge may allow relative to the slave-trade on the eastern
coast of Africa.
I have the honor to be, &c,
Daniel Webster.
Captains Bell and Paine, United States Navy.
A detailed answer was returned by Commanders Bell and Paine to
these inquiries, and upon the information which it contained, as to the
nature of the slave-trade on the coast of Africa and the best means
of suppressing it, the eighth article of the treaty of Washington was
drawn up.
CORRESPONDENCE WITH LORD ASHBURTON.
INVIOLABILITY OF NATIONAL TERRITORY,
CASE OF THE " CAROLINE."
Mr, Webster to Lord Ashburton.
Department of State, Washington, July 27, 1842.
My Lord, — In relation to the case of the " Caroline," which
we have heretofore made the subject of conference, I have
thought it right to place in your hands an extract of a letter
from this department to Mr. Fox, of the 24th of April, 1841, and
an extract from the message of the President of the United
States to Congress at the commencement of its present session.
These papers you have, no doubt, already seen ; but they are,
nevertheless, now communicated, as such communication is
considered a ready mode of presenting the view which this gov-
ernment entertains of the destruction of that vessel.
The act of which the government of the United States com-
plains is not to be considered as justifiable or unjustifiable, as
the question of the lawfulness or unlawfulness of the employ-
ment in which the " Caroline" was engaged may be decided
the one way or the other. That act is of itself a wrong, and an
offence to the sovereignty and the dignity of the United States,
being a violation of their soil and territory; a wrong for which,
to this day, no atonement, or even apology, has been made by
her Majesty's government. Your Lordship cannot but be aware
that self-respect, the consciousness of independeiice and nation-
al equality, and a sensitiveness to whatever may touch the
honor of the country, a sensitiveness which this government
will ever feel and ever cultivate, make this a matter of high
INVIOLABILITY OF NATIONAL TERRITORY. 29o
importance, and I must be allowed to ask for it your Lordship's
grave consideration.
I have the honor to be, my Lord, your Lordship's most obe-
dient servant.
Daniel Webster.
Lord Ashburton, &c, &c, &c.
This letter was accompanied with an extract from Mr. Webster s let-
tor to Mr. Fox of the 24th of April, 1841, containing the passage which
will be found on pp. 255-262 of this volume, and commencing, "The
undersigned has now to signify to Mr. Fox." It is deemed unneces-
sary to repeat the passage here.
Extract from the Message of the President to Congress at the
Commencement of the Second Session of the 27th Congress.
I regret that it is not in my power to make known to you an
equally satisfactory conclusion in the case of the " Caroline "
steamer, with the circumstances connected with the destruction
of which, in December, 1837, by an armed force fitted out in
the Province of Upper Canada, you are already made acquaint-
ed. No such atonement as was due for the public wrong done
to the United States by this invasion of her territory, so wholly
irreconcilable with her rights as an independent power, has yet
been made. In the view taken by this government, the inquiry
whether the vessel was in the employment of those who were
prosecuting an unauthorized war against that Province, or was
engaged by the owner in the business of transporting passengers
to and from Navy Island, in hopes of private gain, which was
most probably the case, in no degree alters the real question
at issue between the two governments. This government can
never concede to any foreign government the power, except in
a case of the most urgent and extreme necessity, of invading
its territory, either to arrest the persons or destroy the property
of those who may have violated the municipal laws of such
foreign government, or have disregarded their obligations arising
under the law of nations. The territory of the United States
must be regarded as sacredly secure against all such invasions,
until they shall voluntarily acknowledge inability to acquit
themselves of their duties to others ; and in announcing this
sentiment. I do but affirm a principle which no nation on <*arth
25*
294 CORRESPONDENCE WITH LORD ASHBURTON.
would be more ready to vindicate, at all hazards, than the peo-
ple and government of Great Britain. If, upon a full investi-
gation of all the facts, it shall appear that the owner of the
" Caroline " was governed by a hostile intent, or had made
common cause with those who were in the occupancy of Navy
Island, then, so far as he is concerned, there can be no claim to
indemnity for the destruction of his boat which this government
would feel itself bound to prosecute, since he would have acted
not only in derogation of the rights of Great Britain, but in
clear violation of the laws of the United States. But that is a
question which, however settled, in no manner involves the
higher consideration of the violation of territorial sovereignty
and jurisdiction. To recognize it as an admissible practice,
that each government, in its turn, upon any sudden and un-
authorized outbreak on a frontier the extent of which renders
it impossible for either to have an efficient force on every
mile of it, and w^hich outbreak, therefore, neither may be able
to suppress in a day, may take vengeance into its own hands,
and without even a remonstrance, and in the absence of any
pressing or overruling necessity, may invade the territory of the
other, would inevitably lead to results equally to be deplored
by both. When border collisions come to receive the sanction,
or to be made on the authority, of either government, general
war must be the inevitable result. While it is the ardent de-
sire of the United States to cultivate the relations of peace with
all nations, and to fulfil all the duties of good neighborhood
toward those who possess territories adjoining their own, that
very desire would lead them to deny the right of any foreign
power to invade their boundary with an armed force. The
correspondence between the two governments on this subject
will, at a future day of your session, be submitted to your con-
sideration ; and in the mean time I cannot but indulge the
hope, that the British government will see the propriety of re-
nouncing, as a rule of future action, the precedent which has
been set in the affair at Schlosser.
Lord Ashburton to Mr. Webster.
Washington, July 28, 1842.
Sir, — In the course of our conferences on the several sub-
jects of difference which it was the object of my mission to en-
INVIOLABILITY OF NATIONAL TERRITORY. 295
deavor to settle, the unfortunate case of the " Caroline," with its
attendant consequences, could not escape our attention ; for al-
though it is not of a description to be susceptible of any settle-
ment by a convention or treaty, yet, being connected with the
highest considerations of national honor and dignity, it has
given rise at times to deep excitements, so as more than once
to endanger the maintenance of peace.
The note you did me the honor of addressing me on the 27th
instant reminds me that, however disposed your government
might be to be satisfied with the explanations which it has been
my duty to offer, the natural anxiety of the public mind requires
that these explanations should be more durably recorded in our
correspondence ; and you send me a copy of your note to Mr.
Fox, her Britannic Majesty's minister here, and an extract from
the speech of the President of the United States to Congress at
the opening of the present session, as a ready mode of present-
ing the view entertained on this subject by the government of
the United States.
It is so far satisfactory to perceive that we are perfectly
agreed as to the general principles of international law appli-
cable to this unfortunate case. Respect for the inviolable
character of the territory of independent nations is the most
essential foundation of civilization. It is useless to strengthen
a principle so generally acknowledged by any appeal to author-
ities on international law, and you may be assured, Sir, that
Jier Majesty's government set the highest possible value on this
principle, and are sensible of their duty to support it by their
conduct and example, for the maintenance of peace and order
in the world. If a sense of moral responsibility were not a suf-
ficient security for their observance of this duty toward all
nations, it will be readily believed that the most common dic-
tates of interest and policy would lead to it in the case of a
long conterminous boundary of some thousand miles, with a
country of such great and growing power as the United States
of America, inhabited by a kindred race, gifted wdth all its ac-
tivity, and all its susceptibility on points of national honor.
Every consideration, therefore, leads us to set as highly as
your government can possibly do this paramount obligation of
reciprocal respect for the independent territory of each. But
however strong this duty may be, it is admitted by all writers.
296 CORRESPONDENCE WITH LORD ASHBURTON.
by all jurists, by the occasional practice of all nations, not ex*
cepting your own, that a strong, overpowering necessity may
arise when this great principle may and must be suspended.
It must be so for the shortest possible period, during the contin-
uance of an admitted overruling necessity, and strictly confined
within the narrowest limits imposed by that necessity. Self-
defence is the first law of our nature, and it must be recognized
by every code which professes to regulate the condition and
relations of man. Upon this modification, if I may so call it,
of the great general principle^ we seem also to be agreed ; and
on this part of the subject I have done little more than repeat
the sentiments, though in less forcible language, admitted and
maintained by you in the letter to which you refer me.
Agreeing, therefore, on the general principle, and on the pos-
sible exception to which it is liable, the only question between
us is, whether this occurrence came within the limits fairly to
be assigned to such exception ; whether , to use your words,
there was " that necessity of self-defence, instant, overwhelm-
ing, leaving no choice of means," which preceded the destruc-
tion of the " Caroline " while moored to the shore of the United
States. Give me leave to say, Sir, with all possible admira-
tion of your very ingenious discussion of the general principles
which are supposed to govern the right and practice of interfer-
ence by the people of one country in the wars and quarrels of
others, that this part of your argument is little applicable to
our immediate case. If Great Britain, America, or any other,
country, suffer their people to fit out expeditions to take part in
distant quarrels, such conduct may, according to the circum-
stances of each case, be justly matter of complaint; and per-
haps these transactions have generally been in late times too
much overlooked or connived at. But the case we are consid-
ering is of a wholly different description, and may be best de-
termined by answering the following question : Supposing a
man standing on ground where you have no legal right to fol-
low him has a weapon long enough to reach you, and is strik-
ing you down and endangering your life ; how long are you
bound to wait for the assistance of the authority having the
legal power to relieve you ? Or, to bring the facts more imme-
diately home to the case, if cannon are moving and setting up
in a battery which can reach you, and are actually destroying
INVIOLABILITY OF NATIONAL TERRITORY. 297
life and property by their fire, if you have remonstrated for
some time without effect, and see no prospect of relief, when
begins your right to defend yourself, should you have no other
means of doing so than by seizing your assailant on the verge
of a neutral territory ?
I am unwilling to recall to your recollection the particulars
of this case, but I am obliged very shortly to do so, to show
what was, at the time, the extent of the existing justification;
for upon this entirely depends the question whether a gross in-
sult has or has net been offered to the government and people
of the United States.
After some tumultuous proceedings in Upper Canada, which
were of short duration, and were suppressed by the militia of
the country, the persons criminally concerned in them took
refuge in the neighboring State of New York, and, with a very
large addition to their numbers openly collected, invaded the
Canadian territory, taking possession of Navy Island.
This invasion took place on the 16th of December, 1837 ; a
gradual accession of numbers and of military ammunition con-
tinued openly, and, though under the sanction of no public au-
thority, at least with no public hinderance, until the 29th of the
same month, when several hundred men were collected, and
twelve pieces of ordnance, which could only have been procured
from some public store or arsenal, were actually mounted on
Navy Island, and were used to fire within easy range upon the
unoffending inhabitants of the opposite shore. Remonstrances,
wholly ineffectual, were made; so ineffectual, indeed, that a
militia regiment, stationed on the neighboring American island,
looked on without any attempt at interference, while shots were
fired from the American island itself. This important fact
stands on the best American authority, being stated in a letter
to Mr. Forsyth, of the 6th of February, 1838, of Mr. Benton,
attorney of the United States, the gentleman sent by your gov-
ernment to inquire into the facts of the case, who adds, very
properly, that he makes the statement " with deep regret and
mortification."
This force, formed of all the reckless and mischievous people
8)f the border, formidable from their numbers and from their ar-
mament, had in their pay, and as part of their establishment,
this steamboat " Caroline," the important means and instrument
298 CORRESPONDENCE WITH LORD ASHBURTON.
by which numbers and arms were hourly increasing. I might
safely put it to any candid man acquainted with the existing
state of things, to say whether the military commander in Can-
ada had the remotest reason, on the 29th of December, to ex-
pect to be relieved from this state of suffering by the protective
intervention of any American authority. How long could a
government having the paramount duty of protecting its own
people be reasonably expected to wait for what they had then
no reason to expect ? What would have been the conduct of
American officers ? What has been their conduct under cir-
cumstances much less aggravated ? I would appeal to you, Sir,
to say whether the facts which you say would alone justify this
act, namely, " a necessity of self-defence, instant, overwhelming,
leaving no choice of means and no moment for deliberation,"
were not applicable to this case in as high a degree as they
ever were to any case of a similar description in the history of
nations.
Nearly five years are now past since this occurrence; there
has been time for the public to deliberate upon it calmly, and I
believe I may take it to be the opinion of candid and honorable
men, that the British officers who executed this transaction, and
their government who approved it, intended no slight or disre-
spect to the sovereign authority of the United States. That
they intended no such disrespect I can most solemnly affirm,
and I trust it will be admitted that no inference to the contrary
can fairly be drawn, even by the most susceptible on points of
national honor.
Notwithstanding my wish that the explanation I had to
make might not revive in any degree any feelings of irritation,
I do not see how I could treat this subject without this short
recital of facts, because the proof that no disrespect was in-
tended is mainly to be looked for in the extent of the justifica-
tion.
There remains only a point or two which I should wish to
notice, to remove in some degree the impression which your
rather highly-colored description of this transaction is calculated
to make. The mode of telling a story often tends to distort
facts, and in this case more than in any other it is important to
arrive at plain, unvarnished truth.
It appears from every account, that the expedition was sent to
INVIOLABILITY OF NATIONAL TERRITORY 299
capture the " Caroline" when she was expected to be found on
the British ground of Navy Island, and that it was only owing
to the orders of the rebel leader being disobeyed that she was
not so found. When the British officer came round the point
of the island in the night, he first discovered that the vessel was
moored to the other shore. He was not by this deterred from
making the capture, and his conduct was approved. But you
will perceive that there was here, most decidedly, the case of
justification mentioned in your note, that there should be " no
moment left for deliberation." I mention this circumstance
to show, also, that the expedition was not planned with a pre-
meditated purpose of attacking the enemy within the jurisdic-
tion of the United States, but that the necessity of so doing
arose from altered circumstances at the moment of execution.
I have only further to notice the highly-colored picture drawn
in your note of the facts attending the execution of this service.
Some importance is attached to the attack having been made
in the night, and the vessel having been set on fire and floated
down the falls of the river; and it is insinuated rather than as-
serted, that there was carelessness as to the lives of the persons
on board. The account given by the distinguished officer who
commanded the expedition distinctly refutes, or satisfactorily
explains, these assertions. The time of night was purposely
selected as most likely to insure the execution with the least
loss of life; and it is expressly stated that, the strength of the
current not permitting the vessel to be carried off, and it being
necessary to destroy her by fire, she was drawn into the stream
for the express purpose of preventing injury to persons or prop-
erty of the inhabitants at Schlosser.
I would willingly have abstained from a return to the facts
of this transaction, my duty being to offer those explanations
and assurances which may lead to satisfy the public mind, and
to the cessation of all angry feeling, but it appeared to me
that some explanation of parts of the case, apparently misunder-
stood, might be of service for this purpose.
Although it is believed that a candid and impartial considera-
tion of the whole history of this unfortunate event will lead to
the conclusion that there were grounds of justification as strong
as were ever presented in such cases, and, above all. that no
slight of the authority of the United States was ever intended,
300 CORRESPONDENCE WITH LORD ASHBURTON.
yet it must be admitted that there was. in the hurried execution
of this necessary service, a violation of territory ; and I am in-
structed to assure you that her Majesty's government consider
this as a most serious fact, and that, far from thinking that an
event of this kind should be lightly risked, they would unfeign-
edly deprecate its recurrence. Looking back to what passed at
this distance of time, what is, perhaps, most to be regretted is,
that some explanation and apology for this occurrence was not
immediately made; this, with a frank explanation of the ne-
cessity of the case, might, and probably would, have prevented
much of the exasperation, and of the subsequent complaints
and recriminations to which it gave rise.
There are possible cases in the relations of nations, as of in-
dividuals, where necessity, which controls all other laws, may
be pleaded; but it is neither easy nor safe to attempt to define
the rights or limits properly assignable to such a plea. This
must always be a subject of much delicacy, and should be con-
sidered by friendly nations with great candor and forbearance.
The intentions of the parties must mainly be looked to ; and
can it for a moment be supposed that Great Britain would inten-
tionally and wantonly provoke a great and powerful neighbor?
Her Majesty's government earnestly desire that a reciprocal
respect for the independent jurisdiction and authority of neigh-
boring states may be considered among the first duties of all gov-
ernments ; and I have to repeat the assurance of regret they feel
that the event of which I am treating should have disturbed the
harmony they so anxiously wish to maintain with the American
people and government.
Connected with these transactions there have also been cir-
cumstances, of which, I believe, it is generally admitted that
Great Britain has had just ground to complain. Individu-
als have oeen made personally liable for acts done under the
avowed authority of their government ; and there are now many
brave men exposed to personal consequences for no other cause
than having served their country. That this is contrary to
every principle of international law it is useless for me to insist.
Indeed, it has been admitted by every authority of your govern-
ment; but, owing to a conflict of laws, difficulties have inter-
vened, much to the regret of those authorities, in giving practical
effect to these principles ; and for these difficulties some remedy
INVIOLABILITY OF NATIONAL TERRITORY 301
has been by all desired. It is no business of mine to enter
upon the consideration of them, nor have I sufficient informa-
tion for the purpose ; but I trust you will excuse my addressing
to you the inquiry, whether the government of the United States
is now in a condition to secure, in effect and in practice, the
principle, which has never been denied in argument, that indi-
viduals acting under legitimate authority are not personally
responsible for executing the orders of their government? That
the power, when it exists, will be used on every fit occasion,
I am well assured ; and I am bound to admit that, looking
through the voluminous correspondence concerning these trans-
actions, there appears no indisposition with any of the authori-
ties of the Federal government, under its several administra-
tions, to do justice in this respect in as far as their means and
powers would allow.
I trust, Sir, I may now be permitted to hope that all feelings
of resentment and ill-will resulting from these truly unfortunate
events may be buried in oblivion, and that they may be suc-
ceeded by those of harmony and friendship, which it is certainly
the interest, and, I also believe, the inclination, of all to promote.
I beg, Sir, you will be assured of my high and unfeigned con-
sideration.
Ashburton.
Hon. Daniel Webster, &c, &c, &c.
Mr. Webster to Lord Ashburton.
Department of State, Washington, August 6, 1842.
Your Lordship's note of the 28th of July, in answer to mine
of the 27th, respecting the case of the " Caroline," has been re-
ceived and laid before the President.
The President sees with pleasure that your Lordship fully ad-
mits those great principles of public law, applicable to cases of
this kind, which this government has expressed; and that on
your part, as on ours, respect for the inviolable character of the
territory of independent states is the most essential foundation
of civilization. And while it is admitted on both sides that
there are exceptions to this rule, he is gratified to find that your
Lordship admits that such exceptions must come within the lim-
itations stated and the terms used in a former communication
from this department to the British plenipotentiary here. Ua»
vol. vi. 26
302 CORRESPONDENCE WITH LORD ASHBURTON.
doubtedly it is just, that, while it is admitted that exceptions
growing out of the great law of self-defence do exist, those ex-
ceptions should be confined to cases in which the " necessity
of that self-defence is instant, overwhelming, and leaving no
choice of means, and no moment for deliberation."
Understanding these principles alike, the difference between
the two governments is only whether the facts in the case of
the " Caroline " make out a case of such necessity for the pur-
pose of self-defence. Seeing that the transaction is not recent,
having happened in the time of one of his predecessors, seeing
that your Lordship, in the name of your government, solemnly
declares that no slight or disrespect was intended to the sov-
ereign authority of the United States ; seeing that it is ac-
knowledged that, whether justifiable or not, there was yet a
violation of the territory of the United States, and that you are
instructed to say that your government consider that as a most
serious occurrence ; seeing, finally, that it is now admitted that
an explanation and apology for this violation was due at the
time; the President is content to receive these acknowledgments
and assurances in the conciliatory spirit which marks your Lord-
ship's letter, and will make this subject, as a complaint of vio-
lation of territory, the topic of no further discussion between
the two governments.
As to that part of your Lordship's note which relates to other
occurrences springing out of the case of the " Caroline," with
which occurrences the name of Alexander McLeod has become
connected, I have to say that the government of the United
States entirely adheres to the sentiments and opinions expressed
in the communications from this department to Mr. Fox. This
government has admitted that, for an act committed by the
command of his sovereign, jure belli, an individual cannot be
responsible in the ordinary courts of another state. It woald
regard it as a high indignity if a citizen of its own, acting under
its authority and by its special command, in such cases were
held to answer in a municipal tribunal, and to undergo punish-
ment, as if the behest of his government were no defence or
protection to him.
But your Lordship is aware that, in regular constitutional gov-
ernments, persons arrested on charges of high crimes can only
be discharged by some judicial proceeding. It is so in Eng-
MARITIME RIGHTS. 303
land; it is so in the colonies and provinces of England. The
forms of judicial proceeding differ in different countries, being
more rapid in some and more dilatory in others ; and, it may be
added, generally more dilatory, or at least more cautious, in cases
affecting life, in governments of a strictly limited than in those
of a more unlimited character. It was a subject of regret that
the release of McLeod was so long delayed. A State court,
and that not of the highest jurisdiction, decided that, on sum-
mary application, embarrassed, as it would appear, by technical
difficulties, he could not be released by that court. His dis-
charge shortly afterward by a jury, to whom he preferred to
submit his case, rendered unnecessary the further prosecution
of the legal question. It is for the Congress of the United
States, whose attention has been called to the subject, to say
what further provision ought to be made to expedite proceed-
ings in such cases ; and, in answer to your Lordship's question
toward the close of your note, I have to say that the govern-
ment of the United States holds itself, not only fully disposed,
but fully competent, to carry into practice every principle which
it avows or acknowledges, and to fulfil every duty and obliga-
tion which it owes to foreign governments, their citizens or
subjects.
I have the honor to be, my Lord, with great consideration,
your obedient servant.
Daniel Webster.
Lord Ashburton, &c, &c, &c.
MARITIME RIGHTS.
CASE OF THE "CREOLE."
Mr. Webster to Lord Ashburton.
Department of State, Washington, August 1, 1842.
My Lord, — The President has learned with much regret,
that you are not empowered by your government to enter intr
a formal stipulation for the better security of vessels of the
United States when meeting with disasters in passing between
the United States and the Bahama Islands, and driven by sucii
304 CORRESPONDENCE WITH LORD ASHBLRTON.
disasters into British ports. This is a subject which is deemed
to be of great importance, and which cannot, on the present
occasion, be overlooked.
Your Lordship is aware that several cases have occurred,
within the last few years, which have caused much complaint.
In some of these cases compensation has been made by the
English government for the interference of the local authorities
with American vessels having slaves on board, by which inter-
ference these slaves were set free. In other cases, such com-
pensation has been refused. It appears to the President to be
for the interest of both countries that the recurrence of similar
cases in future should be prevented as far as possible.
Your Lordship has been acquainted with the case of the
* Creole," a vessel carried into the port of Nassau last winter
by persons who had risen upon the lawful authority of the
vessel, and, in the accomplishment of their purpose, had com-
mitted murder on a person on board.
The opinions which that occurrence gave occasion for this
government to express, in regard to the rights and duties of
friendly and civilized maritime states placed by Providence
near to each other, were well considered, and are entertained
with entire confidence. The facts in the particular case of the
" Creole " are controverted ; positive and officious interference
by the colonial authorities to set the slaves free being alleged
on the one side, and denied on the other.
It is not my present purpose to discuss this difference of
opinion as to the evidence in the case, as it at present exists,
because, the rights of individuals having rendered necessary a
more thorough and a judicial investigation of facts and circum-
stances attending the transaction, such investigation is under-
stood to be now in progress, and its result, when known, will
render me more able than at this moment to present to the
British government a full and accurate view of the whole case.
But it is my purpose and my duty to invite your Lordship's
attention to the general subject, and your serious consideration
of some practical means of giving security to the coasting trade
of thf! United States against unlawful annoyance and interrup-
tion along this part of their shore. The Bahama Islands ap-
proach the coast of Florida within a few leagues, and, with the
coast form a long and narrow channel, filled with innumerable
MARITIME RIGHTS. 305
small islands and banks of sand, and the navigation is difficult
and dangerous, not only on these accounts, but from the vio-
lence of the winds and the variable nature of the currents. Ac-
cidents are, of course, frequent, and necessity often compels ves-
sels of the United States, in attempting to double Cape Florida,
to seek shelter in the ports of these islands. Along this passage
the Atlantic States hold intercourse with the States on the
Gulf and the Mississippi, and through it the products of the
valley of that river (a region of vast extent and boundless fertil-
ity) find a main outlet to the sea in their destination to the
markets of the world.
No particular ground of complaint exists as to the treatment
which American vessels usually receive in these ports, unless
they happen to have slaves on board ; but, in cases of that kind,
complaints have been made, as already stated, of officious inter-
ference of the colonial authorities with the vessel, for the pur-
pose of changing the condition in which these persons are, by
the laws of their own country, and of setting them free.
In the Southern States of this Union slavery exists by the
laws of the States and under the guaranty of the Constitution
of the United States ; and it has existed in them from a period
long antecedent to the time when they ceased to be British
colonies. In this state of things, it will happen that slaves will
be often on board coasting vessels, as hands, as servants attend-
ing the families of their owners, or for the purpose of being car-
ried from port to port. For the security of the rights of their
citizens, when vessels having persons of this description on
board are driven by stress of weather, or carried by unlawful
force, into British ports, the United States propose the introduc-
tion of no new principle into the law of nations. They require
only a faithful and exact observance of the injunctions of that
code, as understood and practised in modern times.
Your Lordship observes that I have spoken only of American
vessels driven into British ports by the disasters of the seas, or
carried in by unlawful force. I confine my remarks to these
cases, because they are the common cases, and because they
are the cases which the law of nations most emphatically ex-
empts from interference. The maritime law is full of instances
of the application of that great and practical rule which de-
clares that that which is the clear result of necessity ought to
26*
306 CORRESPONDENCE WITH LORD ASHBURTON.
draw after it no penalty and no hazard. If a ship be driven by
stress of weather into a prohibited port, or into an open port
with prohibited articles on board, in neither case is any forfeit-
ure incurred. And what may be considered a still stronger case,
it has been decided by eminent English authority, and that de-
cision has received general approbation, that, if a vessel be driven
by necessity into a port strictly blockaded, this necessity is a good
defence, and exempts her from penalty.
A vessel on the high seas, beyond the distance of a marine
league from the shore, is regarded as part of the territory of the
nation to which she belongs, and subjected exclusively to the
jurisdiction of that nation. If, against the will of her master or
owner, she be driven or carried nearer to the land, or even into
port, those who have, or who ought to have, control over her
struggling all the while to keep her upon the high seas, and so
within the exclusive jurisdiction of her own government, what
reason or justice is there in creating a distinction between her
rights and immunities in a position thus the result of absolute
necessity, and the same rights and immunities before superior
power had forced her out of her voluntary course ?
But, my Lord, the rule of law, and the comity and practice
of nations, go much further than these cases of necessity, and
allow even to a merchant-vessel, coming into any open port of
another country voluntarily, for the purposes of lawful trade, to
bring with her and keep over her, to a very considerable extent,
the jurisdiction and authority of the laws of her own country,
excluding to this extent, by consequence, the jurisdiction of the
local law. A ship, says the publicists, though at anchor in a
foreign harbor, preserves its jurisdiction and its laws. It is
natural to consider the vessels of a nation as parts of its territo-
ry, though at sea, as the state retains its jurisdiction over them ;
and, according to the commonly received custom, this jurisdic-
tion is preserved over the vessels, even in parts of the sea sub-
ject to a foreign dominion.
This s the doctrine of the law of nations, clearly laid down
by writers of received authority, and entirely conformable, as it is
supposed, with the practice of modern nations.
If a murder be committed on board of an American vessel by
one of the crew upon another or upon a passenger, or by a pas-
senger on one of the crew or another passenger, while such ves-
MARITIME RIGHTS. 307
sel is lying in a port within the jurisdiction of a foreign state
or sovereignty, the offence is cognizable and punishable by the
proper court of the United States, in the same manner as if such
offence had been committed on board the vessel on the high
seas. The law of England is supposed to be the same.
It is true that the jurisdiction of a nation over a vessel be-
longing to it, while lying in the port of another, is not necessa-
rily wholly exclusive. We do not so consider or so assert it.
For any unlawful acts done by her while thus lying in port, and
(or all contracts entered into while there, by her master or own-
ers, she and they must, doubtless, be answerable to the laws of
the place. Nor, if her master or crew, while on board in such
port, break the peace of the community by the commission of
crimes, can exemption be claimed for them. But, nevertheless,
the law of nations, as I have stated it, and the statutes of gov-
ernments founded on that law, as I have referred to them, show
that enlightened nations, in modern times, do clearly hold that
the jurisdiction and laws of a nation accompany her ships not
only over the high seas, but into ports and harbors, or where-
soever else they may be water-borne, for the general purpose of
governing and regulating the rights, duties, and obligations of
those on board thereof, and that, to the extent of the exercise
of this jurisdiction, they are considered as parts of the territory
of the nation herself.
If a vessel be driven by weather into the ports of another
nation, it would hardly be alleged by any one, that, by the mere
force of such arrival within the waters of the state, the law of
that state would so attach to the vessel as to affect existing
rights of property between persons on board, whether arising
from contract or otherwise. The local law would not operate
to make the goods of one man to become the goods of another
man. Nor ought it to affect their personal obligations, or exist-
ing relations between themselves ; nor was it ever supposed to
have such effect, until the delicate and exciting question which
has caused these interferences in the British islands arose. The
local law in these cases dissolves no obligations or relation law-
fully entered into or lawfully existing according to the laws of
the ship's country. If it did, intercourse of civilized men be-
tween nation and nation must cease. Marriages are frequently
celebrated in one country in a manner not lawful or valid in an»
308 CORRESPONDENCE WITH LORD ASHBURTON.
other ; but did any body ever doubt that marriages are valid all
over the civilized world, if valid in the country in which they
took place ? Did any one ever imagine that local law acted
upon such marriages to annihilate their obligation, if the party
should visit a country in which marriages must be celebrated in
another form ?
It may be said, that, in such instances, personal relations are
founded in contract, and therefore to be respected ; but that the
relation of master and slave is not founded in contract, and
therefore is to be respected only by the law of the place which
recognizes it. Whoever so reasons encounters the authority of
the whole body of public law from Grotius down ; because
there are numerous instances in which the law itself presumes
or implies contracts ; and prominent among those instances is
the very relation which we are now considering, and which rela-
tion is holden by law to draw after it mutuality of obligation.
Is not the relation between a father and his minor children
acknowledged when they go abroad ? And on what contract is
this founded, but a contract raised by general principles of law,
from the relation of the parties ?
Your Lordship will please to bear in mind that the proposition
which I am endeavoring to support is, that, by the comity of the
law of nations and the practice of modern times, merchant-ves-
sels entering open ports of other nations, for the purpose of
trade, are presumed to be allowed to bring with them, and to
retain, for their protection and government, the jurisdiction and
laws of their own country. All this, I repeat, is presumed to be
allowed ; because the ports are open, because trade is invited,
and because, under these circumstances, such permission or al-
lowance is according to general usage. It is not denied that all
this may be refused ; and this suggests a distinction, the disre-
gard of which may, perhaps, account for most of the difficulties
arising in cases of this sort; that is to say, the distinction be-
tween what a state may do, if it pleases, and what it is presumed
to do, or not to do, in the absence of any positive declaration
of its will. A state might declare that all foreign marriages
should be regarded as null and void within its territory ; that a
foreign father, arriving with an infant son, should no longer have
authority or control over him ; that, on the arrival of a foreign
vessel in its ports, all shipping articles, and all indentures of
MARITIME RIGHTS. 309
apprenticeship between her crew and her owners or masters,
should cease to be binding. These, and many other things
equally irrational and absurd, a sovereign state has doubtless
the power to do; but they are not to be presumed. It is not to
be taken for granted, ab ante, that it is the will of the sovereign
state thus to withdraw itself from the circle of civilized nations.
It will be time enough to believe this to be its intention when
it formally announces that intention by appropriate enactments,
edicts, or other declarations.
In regard to slavery within the British territories, there is a
well-known and clear promulgation of the will of the sovereign
authority ; that is to say, there is a well-known rule of her law.
As to England herself, that law has long existed ; and recent
acts of Parliament establish the same law for the colonies. The
usual mode of stating the rule of English law is, that no sooner
does a slave reach the shore of England than he is free. This
is true ; but it means no more than that, when a slave comes
within the exclusive jurisdiction of England, he ceases to be a
slave, because the law of England positively and notoriously
prohibits and forbids the existence of such a relation between
man and man. But it does not mean that English authorities,
with this rule of English law in their hands, may enter where
the jurisdiction of another nation is acknowledged to exist, and
there destroy rights, obligations, and interests lawfully existing
under the authority of such other nation. No such construc-
tion, and no such effect, can be rightfully given to the British
law. It is true that it is competent to the British Parliament,
by express statute provision, to declare that no foreign jurisdic-
tion of any kind should exist in or over a vessel after its arrival
voluntarily in her ports. And so she might close all her ports
to the ships of all nations. A state may also declare, in the
absence of treaty stipulations, that foreigners shall not sue in
her courts, nor travel in her territories, nor carry away funds or
goods received for debts. We need not inquire what would be
the condition of a country that should establish such laws, nor
in what relation they would leave her toward the states of the
civilized world. Her power to make such laws is unquestiona-
ble; but, in the absence of direct and positive enactments to
that effect, the presumption is that the opposites of these things
exist. While her ports are open to foreign trade, it is to be pre-
310 CORRESPONDENCE WITH LORD ASHBURTON.
sumed that she expects foreign ships to enter them, bringing
with them the jurisdiction of their own government, and the
protection of its laws, to the same extent that her ships and the
ships of other commercial states carry with them the jurisdiction
of their respective governments into the open ports of the world*
just as it is presumed, while the contrary is not avowed, that
strangers may travel in a civilized country in a time of peace,
sue in its courts, and bring away their property.
A merchant-vessel enters the port of a friendly state, and en-
joys while there the protection of her own laws, and is under
the jurisdiction of her own government, not in derogation of
the sovereignty of the place, but by the presumed allowance or
permission of that sovereignty. This permission or allowance
is founded on the comity of nations, like the other cases which
have been mentioned; and this comity is part, and a most im-
portant and valuable part, of the law of nations, to which all
nations are presumed to assent until they make their dissent
known. In the silence of any positive rule affirming, or deny-
ing, or restraining the operation of foreign laws, their tacit adop-
tion is presumed, to the usual extent. It is upon this ground
that the courts of law expound contracts according to the law
of the place in which they are made ; and instances almost in-
numerable exist in which, by the general practice of civilized
countries, the laws of one will be recognized and often execut-
ed in another. This is the comity of nations ; and it is upon
this, as its solid basis, that the intercourse of civilized states is
maintained.
But while that which has now been said is understood to be
the voluntary and adopted law of nations, in cases of the vol-
untary entry of merchant-vessels into the ports of other coun-
tries, it is nevertheless true that vessels in such ports only
through an overruling necessity may place their claim for ex-
emption from interference on still higher principles ; that is to
say, principles held in more sacred regard by the comity, the
courtesy, or, indeed, the common sense of justice of all civilized
states.
Even in regard to cases of necessity, however, there are
things of an unfriendly and offensive character, which yet it
may not be easy to say that a nation might not do. For ex-
ample, a nation might declare her will to be, and make it che
MARITIME RIGHTS. 311
law of her dominions, that foreign vessels cast away on her
shoies should be lost to their owners, and subject to the ancient
law of wreck. Or a neutral state, while shutting her ports to
the armed vessels of belligerents, as she has a right to do,
might resolve on seizing and confiscating vessels of that de-
scription which should be driven to take shelter in her harbors
by the violence of the storms of the ocean. But laws of this
character, however within the absolute competence of govern-
ments, could only be passed, if passed at all, under willing-
ness to meet the last responsibility to which nations are sub-
jected.
The presumption is stronger, therefore, in regard to vessels
driven into foreign ports by necessity, and seeking only tem-
porary refuge, than in regard to those which enter them vol-
untarily, and for purposes of trade, that they will not be
interfered with ; and that, unless they commit, while in port,
some act against the laws of the place, they will be permit-
ted to receive supplies, to repair damages, and to depart un-
molested.
If, therefore, vessels of the United States, pursuing lawful
voyages from port to port along their own shore, are driven by
stress of weather, or carried by unlawful force, into English
ports, the government of the United States cannot consent
that the local authorities in those ports shall take advantage of
such misfortunes, and enter them for the purpose of interfering
with the condition of persons or things on board, as established
by their own laws. If slaves, the property of citizens of the
United States, escape into the British territories, it is not ex-
pected that they will be restored. In that case, the territorial
jurisdiction of England will have become exclusive over them,
and must decide their condition. But slaves on board of
American vessels lying in British waters are not within the
exclusive jurisdiction of England, or under the exclusive opera-
tion of English law ; and this founds the broad distinction be-
tween the cases. If persons guilty of crimes in the United
States seek an asylum in the British dominions, they will not
be demanded until provision for such cases be made by treaty;
because the giving up of criminals, fugitive from justice, is
agreed and understood to be a matter in which every nation
regulates its conduct according to its own discretion. It is no
breach of comity to refuse such surrender.
312 CORRESPONDENCE WITH LORD ASHBURTON.
On the other hand, vessels of the United States, driven by
necessity into British ports, and staying there no longer than
such necessity exists, violating no law, and having no intent to
violate any law, will claim, and there will be claimed for them,
protection and security, freedom from molestation, and from all
interference with the character or condition of persons or things
on board. In the opinion of the government of the United
States, such vessels, so driven and so detained by necessity in a
friendly port, ought to be regarded as still pursuing their original
voyage, and turned out of their direct course only by disaster,
or by wrongful violence ; that they ought to receive all assist-
ance necessarv to enable them to resume that direct course :
and that interference and molestation by the local authorities,
where the whole voyage is lawful, both in act and intent, is
ground for just and grave complaint.
Your Lordship's discernment and large experience in affairs
cannot fail to suggest to you how important it is to merchants
and navigators engaged in the coasting trade of a country
so large in extent as the United States, that they should feel
secure against all but the ordinary causes of maritime loss.
The possessions of the two governments closely approach
each other. This proximity, which ought to make us friends
and good neighbors, may, without proper care and regulation,
itself prove a ceaseless cause of vexation, irritation, and dis-
quiet.
If your Lordship has no authority to enter into a stipulation
by treaty for the prevention of such occurrences hereafter as
have already happened, occurrences so likely to disturb that
peace between the two countries which it is the object of your
Lordship's mission to establish and confirm, you may still be so
far acquainted with the sentiments of your government as to
be able to engage that instructions shall be given to the local
authorities in the islands, which shall lead them to regulate
their conduct in conformity with the rights of citizens of the
United States, and the just expectations of their government,
and in such manner as shall, in future, take away all reasona-
ble ground of complaint. It would be with the most profound
regret that the President should see that, while it is now hcped
so many other' subjects of difference may be harmoniously ad-
justed, nothing should be done in regard to this dangerous
source of future collisions.
MARITIME RIGHTS. 313
I avail myself of this occasion to renew to your Lordship the
assurances of my distinguished consideration.
Daniel Webster.
Lord Ashburton, &c, &c, &c.
Lord Ashburton to Mr. Webster.
Washington, August 6, 1842.
Sir, — You may well be assured that I am duly sensible of
the great importance of the subject to which you call my at-
tention in the note which you did me the honor of addressing
me the 1st instant, in which you inform me that the President
had been pleased to express his regret that I was not empow-
ered by my government to enter into a formal stipulation for
the better security of vessels of the United States when meet-
ing with disasters in passing between the United States and
the Bahama Islands, and driven by such disasters into British
ports.
It is, I believe, unnecessary that I should tell you that the
case of the " Creole " was known in London a few days only be-
fore my departure. No complaint had at that time been made
by Mr. Everett. The subject was not, therefore, among those
which it was the immediate object of my mission to discuss.
But at the same time I must admit that, from the moment I
was acquainted with the facts of this case, I was sensible of all
its importance, and I should not think myself without power
to consider of some adjustment of, and remedy for, a great ac-
knowledged difficulty, if I could see my way clearly to any sat-
isfactory course, and if I had not arrived at the conclusion, after
very anxious consideration, that, for the reasons which I will
state, this question had better be treated in London, where it
will have a much increased chance of settlement on terms likely
to satisfy the interests of the United States.
The immediate case of the " Creole " would be easily disposed
of, but it involves a class and description of cases which, for the
purpose of affording that security you seek for the trade of
America through the Bahama Channel, brings into considera-
tion questions of law, both national and international, of the
highest importance ; and, to increase the delicacy and difficulty of
the subject, public feeling is sensitively alive to every thing con-
nected with it. These circumstances bring me to the convic-
vol. vi. 27
314 CORRESPONDENCE WITH LORD ASHBURTON.
tion, that, although I really believe that much may be done to
meet the wishes of your government, the means of doing so
would be best considered in London, where immediate refer-
ence may be had to the highest authorities on every point of
delicacy and difficulty that may arise. Whatever I might at-
tempt would be more or less under the disadvantage of being
fettered by apprehensions of responsibility, and I might thereby
be kept within limits which my government at home might
disregard. In other words, I believe you would have a better
chance in this settlement with them than with me. I state
this after some imperfect endeavors, by correspondence, to
come at satisfactory explanations. If I were in this instance
treating of ordinary material interests, I should proceed with
more confidence; but, anxious as I unfeignedly am that all
questions likely to disturb the future understanding between
us should be averted, I strongly recommend this question of
the security of the Bahama Channel being referred for discus-
sion in London.
This opinion is more decidedly confirmed by your very elab-
orate and important argument on the application of the gen-
eral principles of the law of nations to these subjects, an argu-
ment to which your authority necessarily gives great weight,
but in which I would not presume to follow you with my own
imperfect means. Great Britain and the United States, cov-
ering all the seas of the world with their commerce, have the
greatest possible interest in maintaining sound and pure princi-
ples of international law, as well as the practice of reciprocal
aid and good offices in all their harbors and possessions. With
respect to the latter, it is satisfactory to know that the dispo-
sition of the respective governments and people leaves little to
be desired, with the single exception of those very delicate and
perplexing questions which have recently arisen from the state
of slavery, and even these seem confined, and likely to continue
to be confined, to the narrow passage of the Bahama Channel.
At no other part of the British possessions are American ves»
sels with slaves ever likely to touch, nor are they likely to touch
there otherwise than from the pressure of very urgent necessity.
The difficulty, therefore, as well as the desired remedy, is appar-
ently confined within narrow limits.
Upon the great general principles affecting this case we do
MARITIME RIGHTS. 315
not differ. You admit that if slaves, the property of Ameiican
citizens, escape into British territories, it is not expected that
they will be restored ; and you may be well assured that there
is no wish on our part that they should reach our shores, or
that British possessions should be used as decoys for the vio-
lators of the laws of a friendly neighbor.
When these slaves do reach us, by whatever means, there is
no alternative. The present state of British law is in this re-
spect too well known to require repetition ; nor need I remind
you that it is exactly the same with the laws of every part of
the United States where a state of slavery is not recognized ;
and that the slave put on shore at Nassau would be dealt with
exactly as would a foreign slave landed, under any circumstan-
ces whatever, at Boston.
But what constitutes the being within British dominion, from
which these consequences are to follow ? Is a vessel passing
through the Bahama Channel, and forced involuntarily, either
from storm or mutiny, into British waters, to be so considered ?
What power have the authorities of those islands to take cog-
nizance of persons or property in such vessels ? These are
questions which you, Sir, have discussed at great length, and
with evident ability. Although you have advanced some prop-
ositions which rather surprise and startle me, I do not pretend
to judge them ; but what is very clear is, that great principles
are involved in a discussion which it would ill become me light-
ly to enter upon ; and I am confirmed by this consideration in
wishing that the subject be referred to where it will be perfectly
weighed and examined.
It behooves the authorities of our two governments well to
guard themselves against establishing by their diplomatic inter-
course false precedents and principles, and that they do not, for
the purpose of meeting a passing difficulty, set examples which
may hereafter mislead the world.
It is not intended on this occasion to consider in detail the
particular instances which have given rise to these discussions.
They have already been stated and explained. Our object is
rather to look to the means of future prevention of such occur-
rences. That this may be obtained I have little doubt, al-
though we may not be able immediately to agree on the precise
stipulations of a treaty. On the part of Great Britain, there
316 CORRESPONDENCE WITH LORD ASHBURTON.
are certain great principles too deeply rooted in the consciences
and sympathies of the people for any minister to be able to
overlook ; and any engagement I might make in opposition to
them would be instantly disavowed ; but, at the same time that
we maintain our own laws within our own territories, we are
bound to respect those of our neighbors, and to listen to every
possible suggestion of means of averting from them every an-
noyance and injury. I have great confidence that this may be
effectually done in the present instance ; but the case to be met
and remedied is new, and must not be too hastily dealt with.
You may, however, be assured that measures so important for
the preservation of friendly intercourse between the two coun-
tries shall not be neglected.
In the mean time, I can engage that instructions shall be given
to the governors of her Majesty's colonies on the southern bor-
ders of the United States to execute their own laws with care-
ful attention to the wish of their government to maintain good
neighborhood, and that there shall be no officious interference
with American vessels driven by accident or by violence into
those ports. The laws and duties of hospitality shall be exe-
cuted ; and these seem neither to require nor to justify any fur-
ther inquisition into the state of persons or things on board of
vessels so situated than may be indispensable to enforce the ob-
servance of the municipal law of the colony, and the proper
regulation of its harbors and waters.
A strict and careful attention to these rules, applied in good
faith to all transactions as they arise, will, I hope and believe,
without any abandonment of great and general principles, lead
to the avoidance of any excitement or agitation on this very
sensitive subject of slavery, and consequently of those irritat-
ing feelings which may have a tendency to bring into peril all
the great interests connected with the maintenance of peace.
I further trust that friendly sentiments, and a conviction of
the importance of cherishing them, will on all occasions lead
the two countries to consider favorably any further arrange-
ments which may be judged necessary for the reciprocal pro-
tection of their interests.
I hope, Sir, that this explanation on this very important sub-
ject will be satisfactory to the President, and that he will see
in it no diminution of that earnest desire, which you have been
MARITIME RIGHTS. tfl7
pleased to recognize in me, to perform my work of reconcilia-
tion and friendship; but that he will rather perceive in my sug-
gestion, in this particular instance, that it is made with a weil-
founded hope of thereby better obtaining the object we ha'.o
in view.
I beg to renew to you, Sir, the assurances of my high con-
sideration.
Ashburton.
Ho^ Daniel Webster, &c, &c, &c.
Mr. Webster to Lord Ashburton.
Department of State, Washington, August 8, 1842.
My Lord, — I have the honor to acknowledge the receipt of
your Lordship's note of the 6th instant, in answer to mine of the
1st, upon the subject of a stipulation for the better security of
American vessels driven by accident or carried by force into the
British West India ports.
The President would have been gratified if you had felt
yourself at liberty to proceed at once to consider of some proper
arrangement, by formal treaty, for this object; but there may
be weight in the reasons which you urge for referring such mode
of stipulation for consideration in London.
The President places his reliance on those principles of pub-
lic law which were stated in my note to your Lordship, and
which are regarded as equally well founded and important;
and on your Lordship's engagement that instructions shall be
given to the governors of her Majesty's colonies to execute
their own laws with careful attention to the wish of their gov-
ernment to maintain good neighborhood, and that there shall
be no officious interference with American vessels driven by
accident or by violence inio those ports ; that the laws and du-
ties of hospitality shall be executed, and that these seem nei-
ther to require nor to justify any further inquisition into the
state of persons or things on board of vessels so situated than
may be indispensable to enforce the observance of the munici-
pal aw of the colony, and the proper regulation of its harbors
and waters. He indulges the hope, nevertheless, that, actuated
by a just sense of what is due to the mutual interests of the
two countries, and the maintenance of a permanent peace be-
tween them, her Majesty's government will not fail to see the
27*
318 CORRESPONDENCE WITH LORD ASHBURTON.
importance of removing, by such further stipulations, by treaty
or otherwise, as may be found to be necessary, all cause of com-
plaint connected with this subject.
I have the honor to be, with high consideration, your Lord-
ship's obedient servant,
Daniel Webster.
Lord Ashbukton, &c, &c, &c.
IMPRESSMENT.
Mr. Webster to Lord Ashburton.
Department of State, Washington, August 8, 1842.
My Lord, — We have had several conversations on the sub-
ject of impressment, but I do not understand that your Lord-
ship has instructions from your government to negotiate upon
it, nor does the government of the United States see any utility
in opening such negotiation, unless the British government is
prepared to renounce the practice in all future wars.
No cause has produced to so great an extent, and for so long
a period, disturbing and irritating influences on the political
relations of the United States and England, as the impress-
ment of seamen by British cruisers from American merchant-
vessels.
From the commencement of the French Revolution to the
breaking out of the war between the two countries in 1812,
hardly a year elapsed without loud complaint and earnest re-
monstrance. A deep feeling of opposition to the right claimed,
and to the practice exercised under it, and not unfrequently ex-
ercised without the least regard to what justice and humanity
would have dictated, even if the right itself had been admitted,
took possession of the public mind of America, and this feeling,
it is well known, cooperated most powerfully with other causes
4>o produce the state of hostilities which ensued.
At different periods, both before and since the war, negotia-
tions have taken place between the two governments, with the
hope of finding some means of quieting these complaints. At
some times, the effectual abolition of the practice has been re-
IMPRESSMENT. 319
quested and treated of; at other times, its temporaiy suspen-
sion ; and at other times, again, the limitation of its exercise,
and some security against its enormous abuses.
A common destiny has attended these efforts ; they have all
failed. The question stands at this moment where it stood
fifty years ago. The nearest approach to a settlement was a
convention proposed in 1803, and which had come to the point
of signature, when it was broken off in consequence of the Brit-
ish government insisting that the narrow seas should be ex-
pressly excepted out of the sphere over which the contemplated
stipulation against impressment should extend. The American
minister, Mr. King, regarded this exception as quite inadmis-
sible, and chose rather to abandon the negotiation than to ac-
quiesce in the doctrine which it proposed to establish.
England asserts the right of impressing British subjects, in
time of war, out of neutral merchant-vessels, and of deciding
by her visiting officers who, among the crews of such merchant-
vessels, are British subjects. She asserts this as a legal exer-
cise of the prerogative of the crown ; which prerogative is al-
leged to be founded on the English law of the perpetual and
indissoluble allegiance of the subject, and his obligation under
all circumstances, and for his whole life, to render military ser-
vice to the crown whenever required.
This statement, made in the words of eminent British jurists,
shows at once that the English claim is far broader than the
basis or platform on which it is raised. The law relied on is
English law; the obligations insisted on are obligations exist-
ing between the crown of England and its subjects. This law
and these obligations, it is admitted, may be such as England
may choose they shall be. But then they must be confined to
the parties. Impressment of seamen out of and beyond Eng-
lish territory, and from on board the ships of other nations, is
an interference with the rights of other nations ; is further,
therefore, than English prerogative can legally extend ; and is
nothing but an attempt to enforce the peculiar law of England
beyond the dominions and jurisdiction of the crown. The
claim asserts an extra-territorial authority for the law of British
prerogative, and assumes to exercise this extra-territorial au-
thority, to the manifest injury and annoyance of the citizens
and subjects of other states, on board their own vessels, on the
high seas.
320 CORRESPONDENCE WITH LORD ASHBURTON.
Every merchant-vessel on the seas is rightfully considered as
part of the territory of the country to which it belongs. The
entry, therefore, into such vessel, being neutral, by a belligerent,
is an act of force, and is, prima facie, a wrong, a trespass, which
can be justified only when done for some purpose allowed to
form a sufficient justification by the law of nations. But a
British cruiser enters an American merchant-vessel in order to
take therefrom supposed British subjects ; offering no justifica-
tion, therefore, under the law of nations, but claiming the right
under the law of England respecting the king's prerogative.
This cannot be defended. English soil, English territory, Eng-
lish jurisdiction, is the appropriate sphere for the operation of
English law. The ocean is the sphere of the law of nations ;
and any merchant-vessel on the seas is by that law under the
protection of the laws of her own nation, and may claim im-
munity, unless in cases in which that law allows her to be en-
tered or visited.
If this notion of perpetual allegiance, and the consequent
power of the prerogative, was the law of the world ; if it formed
part of the conventional code of nations, and was usually prac-
tised, like the right of visiting neutral ships, for the purpose of
discovering and seizing enemy's property, then impressment
might be defended as a common right, and there would be no
remedy for the evil till the national code should be altered. But
this is by no means the case. There is no such principle incor-
porated into the code of nations. The doctrine stands only as
English law, not as a national law; and English law cannot be
of force beyond English dominion. Whatever duties or rela-
tions that law creates between the sovereign and his subjects
can be enforced and maintained only within the realm, or proper
possessions or territory of the sovereign. There may be quite
as just a prerogative right to the property of subjects as to their
personal services, in an exigency of the state ; but no govern-
ment thinks of controlling by its own laws property of its sub-
jects situated abroad ; much less does any government think of
entering the territory of another power for the purpose of seiz-
ing such property and applying it to its own uses. As laws, the
prerogatives of the crown of England have no obligation on
persons or property domiciled or situated abroad.
" When, therefore," says an authority not unknown or un
IMPRESSMENT. 321
regarded on either side of the Atlantic, "we speak of the
right of a state to bind its own native subjects everywhere, we
speak only of its own claim and exercise of sovereignty over
them when they return within its own territorial jurisdiction,
and not of its right to compel or require obedience to such laws,
on the part of other nations, within their own territorial sover-
eignty. On the contrary, every nation has an exclusive right
to regulate persons and things within its own territory, accord-
ing to its sovereign will and public polity."
The good sense of these principles, their remarkable perti-
nency to the subject now under consideration, and the extraor-
dinary consequences resulting from the British doctrine, are sig-
nally manifested by that which we see taking place every day.
England acknowledges herself overburdened with population
of the poorer classes. Every instance of the emigration of per-
sons of those classes is regarded by her as a benefit. England,
therefore, encourages emigration; means are notoriously sap-
plied to emigrants, to assist their conveyance, from public funds ;
and the New World, and most especially these United States,
receive the many thousands of her subjects thus ejected from the
bosom of their native land by the necessities of their condition.
They come away from poverty and distress in over-crowded cit-
ies, to seek employment, comfort, and new homes in a country
of free institutions, possessed by a kindred race, speaking their
own language, and having laws and usages in many respects
like those to which they have been accustomed; and a country
which, upon the whole, is found to possess more attractions for
persons of their character and condition than any other on the
face of the globe. It is stated that, in the quarter of the year
ending with June last, more than twenty-six thousand emigrants
left the single port of Liverpool for the United States, being four
or five times as many as left the same port within the same pe-
riod for the British colonies and all other parts of the world.
Of these crowds of emigrants, many arrive in our cities in cir-
cumstances of great destitution, and the charities of the country,
both public and private, are severely taxed to relieve their imme-
diate wants. In time they mingle with the new community
in which they find themselves, and seek means of living. Some
find employment in the cities, others go to the frontiers, to cul-
tivate lands reclaimed from the forest; and a greater or less
222 CORRESPONDENCE WITH LORD ASHBURTON.
number of the residue, becoming in time naturalized citizens,
enter into the merchant service under the flag of their adopted
country.
Now, my Lord, if war should break out between England
and a European power, can any thing be more unjust, any
thing more irreconcilable to the general sentiments of mankind,
than that England should seek out these persons, thus encour-
aged by her and compelled by their own condition to leave
their native homes, tear them away from their new employ-
ments, their new political relations, and their domestic connec-
tions, and force them to undergo the dangers and hardships of
military service for a country which has thus ceased to be their
own country ? Certainly, certainly, my Lord, there can be but
one answer to this question. Is it not far more reasonable that
England should either prevent such emigration of her subjects,
or that, if she encourage and promote it, she should leave them,
not to the embroilment of a double and contradictory allegiance,
but to their own voluntary choice, to form such relations, polit-
ical or social, as they see fit in the country where they are to
find their bread, and to the laws and institutions of which they
are to look for defence and protection ?
A question of such serious importance ought now to be put
at rest. If the United States give shelter and protection to
those whom the policy of England annually casts upon their
shores ; if, by the benign influences of their government and
institutions, and by the happy condition of the country, those
emigrants become raised from poverty to comfort, finding it
easy even to become land-holders, and being allowed to partake
in the enjoyment of all civil rights ; if all this may be done,
(and all this is done, under the countenance and encourage-
ment of England herself.) is it not high time that, yielding
that which had its orisrin in feudal ideas as inconsistent with
the present state of society, and especially with the intercourse
and relations subsisting between the Old World and the New,
England should at length formally disclaim all right to the
services of such persons, and renounce all control over their
conduct ?
But impressment is subject to objections of a much wider
range. If it could be justified in its application to those who
are declared to be its only objects, it still remains true that, in
IMPRESSMENT. ^23
its exercise, it touches the political rights of other governments,
and endangers the security of their own native subjects and
citizens. The sovereignty of the state is concerned in main-
taining its exclusive jurisdiction and possession over its mer-
chant-ships on the seas, except so far as the law of nations
justifies intrusion upon that possession for special purposes ;
and all experience has shown, that no member of a crew, wher-
ever born, is safe against impressment when a ship is visited.
The evils and injuries resulting from the actual practice can
hardly be overstated, and have ever proved themselves to be
such as should lead to its relinquishment, even if it were found-
ed in any defensible principle. The difficulty of discriminating
between English subjects and American citizens has always
been found to be great, even when an honest purpose of dis-
crimination has existed. But the lieutenant of a man-of-war,
having necessity for men, is apt to be a summary judge, and
his decisions will be quite as significant of his own wants and
his own power as of the truth and justice of the case. An ex-
tract from a letter of Mr. King, of the 13th of April, 1797, to
the American Secretary of State, shows something of the enor-
mous extent of these wrongful seizures.
" Instead of a few, and these in many instances equivocal
cases, I have," says he, " since the month of July past, made
application for the discharge from British men-of-war of two
hundred and seventy-one seamen, who, stating themselves to
be Americans, have claimed my interference. Of this number,
eighty-six have been ordered by the Admiralty to be discharged,
thirty-seven more have been detained as British subjects or as
American volunteers, or for want of proof that they are Amer-
icans, and to my applications for the discharge of the remain-
ing one hundred and forty-eight I have received no answer;
the ships on board of which these seamen were detained hav-
ing, in many instances, sailed before an examination was made
in consequence of my application.
" It is certain that some of those who have applied to me are
not American citizens, but the exceptions are, in my opinion,
few, and the evidence, exclusive of certificates, has been such
as, in most cases, to satisfy me that the applicants were real
Americans, who have been forced into the British service, and
who, with singular constancy, have generally persevered in re-
324 CORRESPONDENCE WITH LORD ASHBURTON.
fusing pay or bounty, though in some instances they have been
in service more than two years."
But the injuries of impressment are by no means confined to
its immediate subjects, or the individuals on whom it is prac-
tised. Vessels suffer from the weakening of their crews, and
voyages are often delayed, and not unfrequently broken up, by
subtraction from the number of necessary hands by impress-
ment. And what is of still greater and more general moment,
the fear of impressment has been found to create great diffi-
culty in obtaining sailors for the American merchant service in
times of European war. Seafaring men, otherwise inclined to
enter into that service, are, as experience has shown, deterred
by the fear of finding themselves ere long in compulsory mili-
tary service in British ships of war. Many instances have oc-
curred, fully established by proof, in which raw seamen, natives
of the United States, fresh from the fields of agriculture, enter-
ing for the first time on shipboard, have been impressed before
they made the land, placed on the decks of British men-of-war,
and compelled to serve for years before they could obtain their
release, or revisit their country and their homes. Such in-
stances become known, and their effect, in discouraging young
men from engaging in the merchant service of their country
can neither be doubted nor wondered at. More than all, my
Lord, the practice of impressment, whenever it has existed, has
produced, not conciliation and good feeling, but resentment,
exasperation, and animosity between the two great commercial
countries of the world.
In the calm and quiet which have succeeded the late war, a
condition so favorable for dispassionate consideration, England
herself has evidently seen the harshness of impressment, even
when exercised on seamen in her own merchant service, and
she has adopted measures calculated, if not to renounce the
power or to abolish the practice, yet at least to supersede its
necessity by other means of manning the royal navy more com-
patible with justice and the rights of individuals, and far more
conformable to the spirit and sentiments of the age.
Under these circumstances, the government of the United
States has used the occasion of your Lordship's pacific mission
to review this whole subject, and to bring it to your notice and
that of your government. It has reflected on the past, pondered
IMPRESSMENT. S25
the condition of the present, and endeavored to anticipate, so far
as might be in its power, the probable future ; and I am now to
communicate to your Lordship the result of these deliberations.
The American government, then, is prepared to say that he
practice of impressing seamen from American vessels cannot
hereafter be allowed to take place. That practice is founded on
principles which it does not recognize, and is invariably attend-
ed by consequences so unjust, so injurious, and of such formi-
dable magnitude, as cannot be submitted to.
In the early disputes between the two governments on this so
long contested topic, the distinguished person to whose hands
were first intrusted the seals of this department* declared, that
" the simplest rule will be, that the vessel being American shall
be evidence that the seamen on board are such."
Fifty years' experience, the utter failure of many negotiations,
and a careful reconsideration, now had, of the whole subject, at
a moment when the passions are laid, and no present interest
or emergency exists to bias the judgment, have fully convinced
this government that this is not only the simplest and best, but
the only rule, which can be adopted and observed, consistently
with the rights and honor of the United States and the security
of their citizens. That rule announces, therefore, what will
hereafter be the principle maintained by their government. In
every regularly-documented American merchant-vessel the crew
who navigate it will find their protection in the flag which is
over them.
This announcement is not made, my Lord, to revive useless
recollections of the past, nor to stir the embers from fires which
have been, in a great degree, smothered by many years of peace-
Far otherwise. Its purpose is to extinguish those fires effectu-
ally, before new incidents arise to fan them into flame. The
communication is in the spirit of peace, and for the sake of
peace, and springs from a deep and conscientious conviction
that high interests of both nations require this so long contested
and controverted subject now to be finally put to rest. I per-
suade myself that you will do justice to this frank and sincere
avowal of motives, and that you will communicate your senti-
ments in this respect to your government.
* Mr. Jefferson.
vol. v?. 28
326 CORRESPONDENCE WITH LORD ASHBURTON.
This letter closes, my Lord, on my part, our official corre-
spondence ; and I gladly use the occasion to offer you the assur-
ance of my high and sincere regard.
Daniel Webster.
Lord Ashbubtox, &c, &c, &c.
Lord Ashburton to Mr. Webster.
Washington, August 9, 1842.
Sir, — The note you did me the honor of addressing me the
8th instant, on the subject of impressment, shall be transmitted
without delay to my government, and will, you may be assured,
receive from them the deliberate attention which its importance
deserves
The object of my mission was mainly the settlement of exist-
ing subjects of difference ; and no differences have or could have
arisen of late years with respect to impressment, because the
practice has, since the peace, wholly ceased, and cannot, con-
sistently with existing laws and regulations for manning her
Majesty's navy, be, under the present circumstances, renewed.
Desirous, however, of looking far forward into futurity to an-
ticipate even possible causes of disagreement, and sensible of
the anxiety of the American people on this grave subject of
past irritation, I should be sorry in any way to discourage the
attempt at some settlement of it; and, although without au-
thority to enter upon it here during the limited continuance of
my mission, I entertain a confident hope that this task may be
accomplished, when undertaken with the spirit of candor and
conciliation which has marked all our late negotiations.
It not being our intention to endeavor now to come to any
agreement on this subject, I may be permitted to abstain from
noticing at length your very ingenious arguments relating to it,
and from discussing the graver matters of constitutional and
international law growing out of them. These sufficiently show
that the question is one requiring calm consideration ; though I
must, at the same time, admit that they prove a strong neces-
sity of some settlement for the preservation of that good under-
standing which, 1 trust, we may flatter ourselves that our joint
abors have now succeeded in establishing
I am well aware that the laws of our two countries main-
tain opposite principles respecting allegiance to the sovereign.
IMPRESSMENT. 327
America, receiving every year by thousands the emigrants of
Europe, maintains the doctrine suitable to her condition, of the
right of transferring allegiance at will. The laws of Great Brit-
ain have maintained from all time the opposite doctrine. The
duties of allegiance are held to be indefeasible ; and it is believed
that this doctrine, under various modifications, prevails in most,
if not in all, the civilized states of Europe.
Emigration, the modern mode by which the population of
the world peaceably finds its level, is for the benefit of all, and
eminently for the benefit of humanity The fertile deserts of
America are gradually advancing to the highest state of cultiva-
tion and production, while the emigrant acquires comfort which
his own confined home could not afford him.
I f there were any thing in our laws or our practice on either
side tending to impede this march of providential humanity, we
could not be too eager to provide a remedy ; but as this does
not appear to be the case, we may safely leave this part of
the subject without indulging in abstract speculations having
no material practical application to matters in discussion be-
tween us.
But it must be admitted that a serious practical question does
arise, or, rather, has existed, from practices formerly attending
the mode of manning the British navy in times of war. The
principle is, that all subjects of the crown are, in case of neces-
sity, bound to serve their country, and the seafaring man is nat-
urally taken for the naval service. This is not, as is sometimes
supposed, any arbitrary principle of monarchical government,
but one founded on the natural duty of every man to defend the
life of his country; and all the analogy of your laws would
lead to the conclusion, that the same principle would hold good
in the United States if their geographical position did not make
its application unnecessary.
The very anomalous condition of the two countries with rela-
tion to each other here creates a serious difficulty. Our people
are not distinguishable ; and, owing to the peculiar habits of
sailors, our vessels are very generally manned from a common
stock. It is difficult, under these circumstances, to execute laws
which at times have been thought to be essential for the exist-
ence of the country, without risk of injury to others. The ex
tent and importance of those injuries, however, are so formida
328 CORRESPONDENCE WITH LORD ASHBURTON.
ble, that it is admitted that some remedy should, if possible, be
applied ; at all events, it must be fairly and honestly attempted.
It is true, that during the continuance of peace no practical
grievance can arise ; but it is also true, that it is for that reason
the proper season for the calm and deliberate consideration of
an important subject. I have much reason to hope that a sat-
isfactory arrangement respecting it may be made, so as to set
at rest all apprehension and anxiety ; and I will only further re-
peat the assurance of the sincere disposition of my government
favorably to consider all matters having for their object the pro-
moting and maintaining undisturbed kind and friendly feelings
with the United States.
I beg, Sir, on this occasion of closing the correspondence
with you connected with my mission, to express the satisfactic 1
I feel at its successful termination, and to assure you of my high
consideration and personal esteem and regard.
ASHBURTON.
Hon. Daniel Webster, &c., &c, &c.
THE RIGHT OF SEARCH.
Mr. Webster to the President of the United States.
Department of State, Washington, February 26, 1843.
The Secretary of State, to whom has been referred a resolu-
tion of the House of Representatives of the 22d instant, request-
ing that the President of the United States " communicate to
that house, if not in his opinion improper, whatever correspond-
ence or communication may have been received from the Brit-
ish government respecting the President's construction of the
late treaty concluded at Washington, as it concerns an alleged
right to visit American vessels," has the honor to report to the
President that Mr. Fox, her Britannic Majesty's Envoy Extraor-
dinary and Minister Plenipotentiary, came to the Department of
State on the 24th instant, and informed the Secretary that he
had received from Lord Aberdeen, her Majesty's principal Sec-
retary of State for Foreign Affairs, a despatch, under date of the
18th of January, which he was directed to read to the Secretary
of State of the United States.
The substance of the despatch was, that there was a state-
ment in a paragraph of the President's message to Congress,
at the opening of the present session, of serious import, because,
to persons unacquainted with the facts, it would tend to convey
the supposition, not only that the question of the right of search
had been disavowed by the plenipotentiary at Washington, but
that Great Britain had made concessions on that point.
That the President knew that the right of search never
formed the subject of discussion during the late negotiation,
and that neither was any concession required by the United
States government, nor made by Great Britain.
28*
330 THE RIGHT OF SEARCH.
That the engagement entered into by the parties to the treaty
of Washington for suppressing the African slave-trade was un-
conditionally proposed and agreed to.
That the British government saw in it an attempt, on the
part of the government of the United States, to give a practical
effect to their repeated declarations against that trade, and rec-
ognized with satisfaction an advance toward the humane and
enlightened policy of all Christian states, from which they an-
ticipated much good. That Great Britain would scrupulously
fulfil the conditions of this engagement, but that from the prin-
ciples which she has constantly asserted, and which are record-
ed in the correspondence between the ministers of the United
States in England and herself in 1841, England had not reced-
ed, and would not recede. That he had no intention to renew,
at present, the discussion upon the subject. That his last note
was yet unanswered. That the President might be assured
that Great Britain would always respect the just claims of the
United States. That the British government made no preten-
sion to interfere in any manner whatever, either by detention,
visit, or search, with vessels of the United States, known or be-
lieved to be such ; but that it still maintained, and would exer-
cise when necessary, its own right to ascertain the genuineness
of any flag which a suspected vessel might bear ; that if, in the
exercise of this right, either from involuntary error, or in spite
of every precaution, loss or injury should be sustained, a prompt
reparation would be afforded ; but that it should entertain, for a
single instant, the notion of abandoning the right itself, would
be quite impossible.
That these observations had been rendered necessary by the
message to Congress. That the President is undoubtedly at
liberty to address that assembly in any terms which he may
think proper; but if the Queen's servants should not deem it
expedient to advise her Majesty also to advert to these topics
in her speech from the throne, they desired, nevertheless, to hold
themselves perfectly free, when questioned in Parliament, to
give all such explanations as they might feel to be consistent
with their duty and necessary for the elucidation of the truth.
The paper having been read, and its contents understood, Mr.
Fox was told, in reply, that the subject would be taken into con-
sideration, and that a despatch relative to it would be sent at
THE RIGHT OF SEARCH. 33).
an early day to the American minister in London, who would
have instructions to read it to her Majesty's principal Secretary
of State for Foreign Affairs.
Daniel Webster.
To the President.
Mr. Webster to Mr. Everett.
Department of State, Washington, March 28, 1813.
Sir, — I transmit to you with this despatch a message from
the President of the United States to Congress, communicated
on the 27th of February, and accompanied by a report made
from this department to the President, of the substance of a de-
spatch from Lord Aberdeen to Mr. Fox, which was by him read
to me on the 24th ultimo.
Lord Aberdeen's despatch, as you will perceive, was occa-
sioned by a passage in the President's message to Congress at
the opening of its late session. The particular passage is not
stated by his Lordship; but no mistake will be committed, it is
presumed, in considering it to be that which was quoted by Sir
Robert Peel and other gentlemen in the debate in the House
of Commons, on the answer to the Queen's speech, on the 3d
of February.
The President regrets that it should have become necessary
to hold a diplomatic correspondence upon the subject of a com-
munication from the head of the executive government to the
legislature, drawing after it, as in this case, the further necessity
of referring to observations made by persons in high and respon-
sible stations, in debates of public bodies. Such a necessity,
however, seems to be unavoidably incurred in consequence of
Lord Aberdeen's despatch ; for, although the President's recent
message may be regarded as a clear exposition of his opinions
on the subject, yet a just respect for her Majesty's government,
and a disposition to meet all questions with promptness, as well
as with frankness and candor, require that a formal answer
should be made to that despatch.
The words in the message at the opening of the session
which are complained of, it is supposed, are the following:
M Although Lord Aberdeen, in his correspondence with the
American envoys at London, expressly disclaimed all right to
detain an American ship on the high seas, even if found with a
332 THE RIGHT Of SEARCH.
cargo of slaves on board, and restricted the British pretension
to a mere claim to visit and inquire, yet it could not well be
discerned by the executive of the United States how such visit
and inquiry could be made without detention on the voyage,
and consequent interruption to the trade. It was regarded as
the right of search, presented only in a new form and expressed
in different words ; and I therefore felt it to be my duty dis-
tinctly to declare, in my annual message to Congress, that no
such concession could be made, and that the United States had
both the will and the ability to enforce their own laws, and to
protect their flag from being used for purposes wholly forbidden
by those laws, and obnoxious to the moral censure of the
world."
This statement would tend, as Lord Aberdeen thinks, to
convey the supposition, not only that the question of the right
of search had been disavowed by the British plenipotentiary at
"Washington, but that Great Britain had made concessions on
that point.
Lord Aberdeen is entirely correct in saying that the claim of
a right of search was not discussed during the late negotiation,
and that neither was any concession required by this govern-
ment, nor made by that of her Britannic Majesty.
The eighth and ninth articles of the treaty of Washington
constitute a mutual stipulation for concerted efforts to abolish
the African slave-trade. The stipulation, it may be admitted,
has no other effects on the pretensions of either party than this :
Great Britain had claimed as a right that which this govern-
ment could not admit to be a right, and, in the exercise of a
just and proper spirit of amity, a mode was resorted to which
might render unnecessary both the assertion and the denial of
such claim.
There probably are those who think that what Lord Aber-
deen calls a right of visit, and which he attempts to distinguish
from the right of search, ought to have been expressly acknowl-
edged by the government of the. United States. At the same
time, there are those on the other side who think that the for-
mal surrender of such right of visit should have been demanded
by the United States as a precedent condition to the negotia-
tion for treaty stipulations on the subject of the African slave-
trade. But the treaty neither asserts the claim in terms, noi
THE RIGHT OF SEARCH. 333
denies the claim in terms ; it neither formally insists upon it,
nor formally renounces it. Still, the whole proceeding shows
that the object of the stipulation was to avoid such differences
and disputes as had already arisen, and the serious practical
evils and inconveniences which, it cannot be denied, are always
liable to result from the practice which Great Britain had assert-
ed to be lawful. These evils and inconveniences had been ac-
knowledged by both governments. They had been such as to
cause much irritation, and to threaten to disturb the amicable
sentiments which prevailed between them. Both governments
were sincerely desirous of abolishing the slave-trade ; both gov-
ernments were equally desirous of avoiding occasion of com-
plaint by their respective citizens and subjects ; and both govern-
ments regarded the eighth and ninth articles as effectual for their
avowed purpose, and likely, at the same time, to preserve all
friendly relations, and to take away causes of future individual
complaints. The treaty of Washington was intended to fulfil
the obligations entered into by the treaty of Ghent. It stands
by itself; is clear and intelligible. It speaks its own language,
and manifests its own purpose. It needs no interpretation, and
requires no comment. As a fact, as an important occurrence in
national intercourse, it may have important bearings on existing
questions respecting the public law; and individuals, or perhaps
governments, may not agree as to what these bearings really
are. Great Britain has discussions, if not controversies, with
other great European states upon the subject of visit or search.
These states will naturally make their own commentary on the
treaty of Washington, and draw their own inferences from the
fact that such a treaty has been entered into. Its stipulations,
in the mean time, are plain, explicit, and satisfactory to both
parties, and will be fulfilled on the part of the United States,
and, it is not doubted, on the part of Great Britain also, with
the utmost good faith.
Holding this to be the true character of the treaty, I might,
perhaps, excuse myself from entering into the consideration of
the grounds of that claim of a right to visit merchant-ships for
certain purposes, in time of peace, which Lord Aberdeen asserts
for the British government, and declares that it can never sur-
render. But I deem it right, nevertheless, and no more than
justly respectful toward the British government, not to leave the
point without remark.
334 - THE RIGHT OF SEARCH.
In his recent message to Congress, the President, referring to
the language of Lord Aberdeen in his note to Mr. Everett of
the 20th of December, 1841, and in his late despatch to Mr.
Fox, says : " These declarations may well lead us to doubt
whether the apparent difference between the two governments
is not rather one of definition than of principle."
Lord Aberdeen, in his note to you of the 20th of December,
says : " The undersigned again renounces, as he has already
done in the most explicit terms, any right on the part of the
British government to search American vessels in time of peace.
The right of search, except when specially conceded by treaty, is
a pure belligerent right, and can have no existence on the high
seas during peace. The undersigned apprehends, however, that
the right of search is not confined to the verification of the na-
tionality of the vessel, but also extends to the object of the voy-
age and the nature of the cargo. The sole purpose of the British
cruisers is to ascertain whether the vessels they meet with are
really American or not. The right asserted has, in truth, no re-
semblance to the right of search, either in principle or practice.
It is simply a right to satisfy the party who has a legitimate in-
terest in knowing the truth, that the vessel actually is what
her colors announce. This right we concede as freely as we
exercise. The British cruisers are not instructed to detain
American vessels under any circumstances whatever; on the
contrary, they are ordered to abstain from all interference with
them, be they slavers or otherwise. But where reasonable sus-
picion exists that the American flag has been abused for the
purpose of covering the vessel of another nation, it would ap-
pear scarcely credible, had it not been made manifest by the
repeated protestations of their representative, that the govern-
ment of the United States, which has stigmatized and abolished
the trade itself, should object to the adoption of such means
as are indispensably necessary for ascertaining the truth."
And in his recent despatch to Mr. Fox his Lordship further
says : " That the President might be assured that Great Britain
would always respect the just claims of the United States.
That the British government made no pretension to interfere
in any manner whatever, either by detention, visit, or search,
with vessels of the United States, known or believed to be
such but that it still maintained, and would exercise when
THE RIGHT OF SEARCH. 3^5
necessary, its own right to ascertain the genuineness of any
flag which a suspected vessel might bear; that if, in the exer-
cise of this right, either from involuntary error, or in spite of
every precaution, loss or injury should be sustained, a prompt
reparation would be afforded ; but that it should entertain, for
a single instant, the notion of abandoning the right itself, would
be quite impossible."
This, then, is the British claim, as asserted by her Majesty's
government.
In his remarks in the speech already referred to, in the
House of Commons, the first minister of the crown said :
" There is nothing more distinct than the right of visit is from
the right of search. Search is a belligerent right, and not to
be exercised in time of peace, except when it has been conceded
by treaty. The right of search extends not only to the vessel,
but to the cargo also. The right of visit is quite distinct from
this, though the two are often confounded. The right of
search, with respect to American vessels, we entirely and ut-
terly disclaim ; nay, more, if we knew that an American ves-
sel were furnished with all the materials requisite for the slave-
trade, if we knew that the decks were prepared to receive
hundreds of human beings within a space in which life is
almost impossible, still we should be bound to let that Ameri-
can vessel pass on. But the right we claim is to know whether
a vessel pretending to be American, and hoisting the Ameri-
can flag, be bona fide American."
The President's message is regarded as holding opinions in
opposition to these.
The British government, then, supposes that the right of visit
and the right of search are essentially distinct in their nature,
and that this difference is well known and generally acknowl-
edged ; that the difference between them consists in their dif-
ferent objects and purposes: one, the visit, having for its object
nothing but to ascertain the nationality of the vessel ; the
other, the search, by an inquisition, not only into the nation-
ality of the vessel, but the nature and object of her voyage,
and the true ownership of her cargo.
The government of the United States, on the other hand,
maintains that there is no such well-known and acknowledged,
nor, indeed, any broad and generic difference between what has
336 THE RIGHT OF SEARCH.
been usually called visit, and what has been usually called
search ; that the right of visit, to be effectual, must come, in
the end, to include search ; and thus to exercise, in peace, an
authority which the law of nations only allows in times of war.
If such well-known distinction exists, where are the proofs
of it? What writers of authority on public law, what adjudi-
cations in courts of admiralty, what public treaties, recognize
it? No such recognition has presented itself to the govern-
ment of the United States ; but, on the contrary, it understands
that public writers, courts of law, and solemn treaties have, for
two centuries, used the words " visit " and " search " in the
same sense. What Great Britain and the United States
mean by the " right of search," in its broadest sense, is called
by Continental writers and jurists by no other name than the
" right of visit." Visit, therefore, as it has been understood,
implies not only a right to inquire into the national character,
but to detain the vessel, to stop the progress of the voyage, to
examine papers, to decide on their regularity and authenticity,
and to make inquisition on board for enemy's property, and in-
to the business which the vessel is engaged in. In other words,
it describes the entire right of belligerent visitation and search.
Such a right is justly disclaimed by the British government in
time of peace. They, nevertheless, insist on a right which they
denominate a right of visit, and by that word describe the claim
which they assert. It is proper, and due to the importance
and delicacy of the questions involved, to take care that, in dis-
cussing them, both governments understand the terms which
may be used in the same sense. If, indeed, it should be mani-
fest that the difference between the parties is only verbal, it
might be hoped that no harm would be done ; but the govern-
ment of the United States thinks itself not justly chargeable
with excessive jealousy, or with too great scrupulosity in the
use of words, in insisting on its opinion that there is no such
distinction as the British government maintains between visit
and search ; and that there is no right to visit in time of peace*,
except in the execution of revenue laws or other municipal
regulations, in which cases the right is usually exercised near
the coast, or within the marine league, or where the vessel is
justly suspected of violating the law of nations by piratical ag-
gression ; but, wherever exercised, it is a right of search.
THE RIGHT OF SEARCH. 337
Nor can the United States government agree that the term
"right" is justly applied to such exercise of power as the British
government thinks it indispensable to maintain in certain cases.
The right asserted is a right to ascertain whether a merchant-
vessel is justly entitled to the protection of the flag which she
may happen to have hoisted, such vessel being in circumstances
which render her liable to the suspicion, first, that she is not
entitled to the protection of the flag; and secondly, that, if not
entitled to it, she is, either by the law of England, as an English
vessel, or under the provisions of treaties with certain European
powers, subject to the supervision and search of British cruisers.
And yet Lord Aberdeen says, " that if, in the exercise of this
right, either from involuntary error, or in spite of every precau-
tion, loss or injury should be sustained, a prompt reparation
would be afforded."
It is not easy to perceive how these consequences can be ad-
mitted justly to flow from the fair exercise of a clear right. If
injury be produced by the exercise of a right, it would seem
strange that it should be repaired, as if it had been the effect
of a wrongful act. The general rule of law certainly is, that,
in the proper and prudent exercise of his own right, no one is
answerable for undesigned injuries. It may be said that the
right is a qualified right ; that it is a right to do certain acts of
force at the risk of turning out to be wrongdoers, and of being
made answerable for all damages. But such an argument
would prove every trespass to be matter of right, subject only
to just responsibility. If force were allowed to such reasoning
in other cases, it would follow that an individual's right in his
own property was hardly more than a well-founded claim for
compensation if he should be deprived of it. But compensa-
tion is that which is rendered for injury, and is not commuta-
tion, or forced equivalent, for acknowledged rights. It implies,
at least in its general interpretation, the commission of some
wrongful act.
But, without pressing further these inquiries into the accu-
racy and propriety of definitions and the use of words, I pro-
ceed to draw your attention to the thing itself, and to consider
what these acts are which the British government insists its
cruisers have a right to perform, and to what consequences
they naturally and necessarily tend. An eminent member of
vol. vi. 29
338 THE RIGHT OF SEARCH.
the House of Commons * thus states the British claim, and his
statement is acquiesced in and adopted by the first minister of
the crown : —
u The claim of this country is for the right of our cruisers to
ascertain whether a merchant-vessel is justly entitled to the pro-
tection of the flag which she may happen to have hoisted, such
vessel being in circumstances which rendered her liable to the
suspicion, first, that she was not entitled to the protection of
the flag ; and, secondly, if not entitled to it, she was, either
under the law of nations or the provisions of treaties, subject
to the supervision and control of our cruisers."
Now the question is, By what means is this ascertainment to
be effected?
As we understand the general and settled rules of public law,
in respect to ships of war sailing under the authority of their
government, " to arrest pirates and other public offenders," there
is no reason why they may not approach any vessels descried at
sea for the purpose of ascertaining their real characters. Such
a right of approach seems indispensable for the fair and discreet
exercise of their authority ; and the use of it cannot be justly
deemed indicative of any design to insult or injure those they
approach, or to impede them in their lawful commerce. On
the other hand, it is as clear that no ship is, under such circum-
stances, bound to lie by or wait the approach of any other ship.
She is at full liberty to pursue her voyage in her own way, and
to use all necessary precautions to avoid any suspected sinister
enterprise or hostile attack. Her right to the free use of the
ocean is as perfect as that of any other ship. An entire equality
is presumed to exist. She has a right to consult her own safety,
but at the same time she must take care not to violate the rights
of others. She may use any precautions dictated by the pru-
dence or fears of her officers, either as to delay, or the progress
or course of her voyage ; but she is not at liberty to inflict inju-
ries upon other innocent parties simply because of conjectural
dangers.
But if the vessel thus approached attempts to avoid the ves-
sel approaching, or does not comply with her commander's order
to send him her papers for his inspection, nor consent to be via-
i
* Mr. Wood, now Sir Charles Wood, Chancellor of the Exchequer.
THE RIGHT OF SEARCH. 339
ited or detained, what is next to be done ? Is force to be used ?
And if force be used, may that force be lawfully repelled ?
These questions lead at once to the elemental principle, the
essence of the British claim. Suppose the merchant-vessel be
in truth an American vessel engaged in lawful commerce, and
that she does not choose to be detained. Suppose she resists
the visit. What is the consequence? In all cases in which
the belligerent right of visit exists, resistance to the exercise of
that right is regarded as just cause of condemnation, both of
vessel and cargo. Is that penalty, or what other penalty, to be
incurred by resistance to visit in time of peace ? Or suppose
that force be met by force, gun returned for gun, and the com-
mander of the cruiser, or some of his seamen, be killed ; what
description of offence will have been committed? It would be
said, in behalf of the commander of the cruiser, that he mis-
took the vessel for a vessel of England, Brazil, or Portugal ; but
does this mistake of his take away from the American vessel
the right of self-defence ? The writers of authority declare it
to be a principle of natural law, that the privilege of self-de-
fence exists against an assailant who mistakes the object of his
attack for another whom he had a right to assail.
Lord Aberdeen cannot fail to see, therefore, what serious con-
sequences might ensue, if it were to be admitted that this claim
to visit, in time of peace, however limited or defined, should be
permitted to exist as a strict matter of right; for if it exist as a
right, it must be followed by corresponding duties and obliga-
tions, and the failure to fulfil those duties would naturally draw
penal consequences after it, till ere long it would become, in
truth, little less, or little other, than the belligerent right of
search.
If visit or visitation be not accompanied by search, it will be
in most cases merely idle. A sight of papers may be demand-
ed, and papers may be produced. But it is known that slave-
traders carry false papers, and different sets of papers. A search
for other papers, then, must be made where suspicion justifies
it, or else the whole proceeding would be nugatory. In sus-
picious cases, the language and general appearance of the crew
are among the means of ascertaining the national character of
the vessel. The cargo on board, also, often indicates the coun-
try from which she comes. Her log-books, showing the previous
340 THE RIGHT OF SEARCH.
course and events of her voyage, her internal fitting up and
equipment, are all evidences for her, or against her, on her alle-
gation of character. These matters, it is obvious, can only be
ascertained by rigorous search.
It may be asked, If a vessel may not be called on to show
her papers, why does she carry papers ? No doubt she may be
called on to show her papers ; but the question is, Where, when,
and by whom ? Not in time of peace, on the high seas, where
her rights are equal to the rights of any other vessel, and where
none has a right to molest her. The use of her papers is, in
time of war, to prove her neutrality when visited by bellige-
rent cruisers ; and in both peace and war, to show her national
character, and the lawfulness of her voyage, in those ports
of other countries to which she may proceed for purposes of
trade.
It appears to the government of the United States, that the
view of this whole subject which is the most naturally taken is
also the most legal, and most in analogy with other cases. Brit-
ish cruisers have a right to detain British merchantmen for cer-
tain purposes ; and they have a right, acquired by treaty, to
detain merchant-vessels of several other nations for the same
purposes. But they have no right at all to detain an American
rr*erch ant-vessel. This Lord Aberdeen admits in the fullest
manner. Any detention of an American vessel by a British
cruiser is therefore a wrong, a trespass ; although it may be done
under the belief that she was a British vessel, or that she be-
longed to a nation which had conceded the right of such deten-
tion to the British cruisers, and the trespass therefore an invol-
untary trespass. If a ship of war, in thick weather, or in the
darkness of the night, fire upon and sink a neutral vessel, under
the belief that she is an enemy's vessel, this is a trespass, a
mere wrong ; and cannot be said to be an act done under any
right, accompanied by responsibility for damages. So if a civil
officer on land have process against one individual, and through
mistake arrest another, this arrest is wholly tortious ; no one
would Hunk of saying that it was done under any lawful exer-
cise of authority, subject only to responsibility, or that it was
any thing but a mere trespass, though an unintentional trespass.
The municipal law does not undertake to lay down beforehand
any rule for the government of such cases ; and as little, in the
THE RIGHT OF SEARCH. 341
opinion of tne government of the United States, does the pub-
lic law of the world lay down beforehand any rule for the gov-
ernment of cases of involuntary trespasses, detentions, and inju-
ries at sea ; except that in both classes of cases law and reason
make a distinction between injuries committed through mistake
and injuries committed by design; the former being entitled to
fair and just compensation, the latter demanding exemplary
damages, and sometimes personal punishment. The govern-
ment of the United States has frequently made known its opin-
ion, which it now repeats, that the practice of detaining Ameri-
can vessels, though subject to just compensation if such deten-
tion afterward turn out to have been without good cause,
however guarded by instructions, or however cautiously exer-
cised, necessarily leads to serious inconvenience and injury.
The amount of loss cannot be always well ascertained. Com-
pensation, if it be adequate in the amount, may still neces-
sarily be long delayed ; and the pendency of such claims al-
ways proves troublesome to the governments of both countries.
These detentions, too, frequently irritate individuals, cause
warm blood, and produce nothing but ill effects on the amicable
relations existing between the countries. We wish, therefore,
to put an end to them, and to avoid all occasions for their
recurrence.
On the whole, the government of the United States, while it
has not conceded a mutual right of visit or search, as has been
done by the parties to the quintuple treaty of December, 1841,
does not admit that, by the law and practice of nations, there is
any such thing as a right of visit, distinguished by well-known
rules and definitions from the right of search.
It does not admit that visit of American merchant-vessels by
British cruisers is founded on any right, notwithstanding the
cruiser may suppose such vessel to be British, Brazilian, or Por-
tuguese. We cannot but see that the detention and examina-
tion of American vessels by British cruisers has already led to
consequences, and fear that, if continued, it would still lead
to further consequences, highly injurious to the lawful com-
merce of the United States.
At the same time, the government of the United States fully
admits that its flag can give no immunity to pirates, nor to any
other than to regularly documented American vessels. It was
29*
342 THE RIGHT OF SEARCH.
upon this view of the whole case, and with a firm conviction of
the truth of these sentiments, that it cheerfully assumed the
duties contained in the treaty of Washington ; in the hope that
thereby causes of difficulty and difference might be altogether
removed, and that the two powers might be enabled to act con-
currently, cordially, and effectually for the suppression of a traf-
fic which both regard as a reproach upon the civilization of the
age, and at war with every principle of humanity and every
Christian sentiment.
The government of the United States has no interest, nor is
it under the influence of any opinions, which should lead it to
desire any derogation of the just authority and rights of mari-
time power. But in the convictions which it entertains, and in
the measures which it has adopted, it has been governed solely
by a sincere desire to support those principles and those prac-
tices which it believes to be conformable to public law, and fa-
vorable to the peace and harmony of nations.
Both houses of Congress, with a remarkable degree of una-
nimity, have made express provisions for carrying into effect the
eighth article of the treaty. An American squadron will imme-
diately proceed to the coast of Africa. Instructions for its com-
mander are in the course of preparation, and copies will be fur-
nished to the British government ; and the President confidently
believes, that the cordial concurrence of the two governments
in the mode agreed on will be more effectual than any efforts
yet made for the suppression of the slave-trade.
You will read this despatch to Lord Aberdeen, and, if he de-
sire it, give him a copy.
I am, Sir, &c, &c.
Daniel Webster.
Edward Everett, Esq., &c, &c, &c.
As soon as it became known that the treaty of the 20th of December,
1841 (commonly called the quintuple treaty), had been signed by the
five leading European powers, General Cass, at that time United States
Minister in France, addressed a letter to M. Guizot. the French Minister
for Foreign Affairs, which was of the nature of a protest against the said
treaty. A copy of this letter, bearing date the 13th of February, 1842,
was transmitted by General Cass to Mr. Webstei, in a despatch of the
15th of the same month. To this communication the following reply
was returned by Mr. Webster.
THE RIGHT OF SEARCH. 343
Mr. Webster to General Cass.
Department of State, Washington, April 5, 1842.
Sir, — By the arrival of the steam-packet at Boston, on the
27th day of last month, I had the honor to receive your several
despatches down to the 26th of February. That vessel had
been so long delayed on the passage to America, that, after the
receipt here of the communications brought by her, there was
not time to prepare answers in season to reach Boston before
the time fixed for her departure on her return. The most I was
able to do was to write a short note to Mr. Everett, to signify
that the mail from London had come safe to hand.
The President has been closely attentive to recent occurrences
in Europe connected with the treaty of the five powers, of which
we received a copy soon after its signature in December. He
has witnessed with especial interest the sentiments to which
that treaty appears to have given rise in France, as manifested
by the debates in the Chambers and the publications of the
Parisian press; and he is now officially informed of the course
which you felt it to be your duty to take, by the receipt of a
copy of the letter addressed by you to M. Guizot, on the 13th of
February.
When the President entered upon the duties of his present
office in April of last year, a correspondence, as you know, had
been long pending, and was still pending, in London, between
the minister of the United States and her Britannic Majesty's
Secretary of State for Foreign Affairs, respecting certain seiz-
ures and detentions of American vessels on the coast of Africa
by armed British cruisers, and, generally, respecting the visita-
tion and search of American vessels by such cruisers in those
seas. A general approbation of Mr. Stevenson's note to the
British minister in regard to this subject was soon after commu-
nicated to that gentleman, by the President's order, from this
department. The state of things in England in the early part
of last summer did not appear to favor a very active continu-
ance or prosecution of this correspondence ; and, as Mr. Steven-
son had already received permission to return home, no new
instructions were addressed to him.
Circumstances occurred, as you are aware, which delayed
Mr. Everett's arrival at the post assigned to him as Minister to
London ; and, in the mean time, in the latter part of August
344 THE RIGHT OF SEARCH.
the correspondence between Lord Palmerston and Mr. Steven-
son was, somewhat unexpectedly, resumed, not only on the
subject of the African seizures, but on other subjects.
Mr. Everett arrived in London only in the latter part of No-
vember ; and, in fact, was not presented to the Queen until
the 16th day of December. While we were waiting to hear of
his appearance at his post, the session of Congress was fast
approaching; and, under these circumstances, the President felt
it to be his duty to announce, publicly and solemnly, the prin-
ciples by which the government would be conducted in regard
to the visitation and search of ships at sea. As one of the mo<t
considerable, commercial, and maritime states of the world, as
interested in whatever may in any degree endanger or threaten
the common independence of nations upon the seas, it was fit
that this government should avow the sentiments which it has
heretofore always maintained, and from which it cannot under
any circumstances depart. You are quite too well acquainted
with the language of the message, on which your letter is bot-
tomed, to need its recital here. It expresses what we consider
the true American doctrine, and that which will, therefore, gov-
ern us in all future negotiations on the subject.
While instructions for Mr. Everett were in the course of prep-
aration, signifying to him in what manner it might be practica-
ble to preserve the peace of the country consistently with the
principles of the message, and yet so as to enable the govern-
ment to fulfil all its duties, and meet its own wishes, and the
wishes of the people of the United States, in regard to the sup-
pression of the African slave-trade, it was announced that the
English government had, appointed Lord Ashburton as special
minister to this country, fully authorized to treat of and definite-
ly settle all matters in difference between the two countries. Of
course, no instructions were forwarded to Mr. Everett respecting
any of those matters. You perceive, then, that up to the pres-
ent moment we rest upon the sentiments of the message ; be-
yond the fair scope and purport of that document we are not
committed on the one hand or on the other. We reserve to
ourselves the undiminished right to receive or to offer propo-
sitions on the delicate subjects embraced in the treaty of the
five powers, to negotiate thereupon as we may be advised, ne\-
er departing from our principles, but desirous, while we care*
THE RIGHT OF SEARCH. 345
fully maintain all our rights to the fullest extent, of fulfilling
our duties also as one of the maritime states of the world.
The President considers your letter to M. Guizot to have
been founded, as it purports, upon the message delivered by
him at the opening of the present session of Congress ; as in-
tending to give assurance to the French government that the
principles of that message would be adhered to, and that the
government of the United States would regret to see other na-
tions, especially France, an old ally of the United States and
a distinguished champion of the liberty of the seas, agree to
any arrangement between other states which might in its influ-
ences produce effects unfavorable to this country, and to which
arrangement, therefore, this country itself might not be able to
accede.
The President directs me to say, that he approves your letter,
and warmly commends the motives which animated you in
presenting it. The whole subject is now before us here, or will
be shortly, as Lord Ashburton arrived last evening ; and, with-
out intending to intimate at present what modes of settling this
point of difference with England will be proposed, you may re-
ceive two proposition as certain : —
1st. That, in the absence of treaty stipulations, the United
States will maintain the immunity of merchant-vessels on the
seas to the fullest extent which the law of nations authorizes.
2d. That, if the government of the United States, animated
by a sincere desire to put an end to the African slave-trade,
shall be induced to enter into treaty stipulations for that pur-
pose with any foreign power, those stipulations will be such a?
shall be strictly limited to their true and single object, such a?
shall not be embarrassing to innocent commerce, and such, es-
pecially, as shall neither imply any inequality, nor can tend in
any way to establish such inequality, in their practical opera-
tions.
You are requested to communicate these sentiments to M.
(Juizot, at the same time that you signify to him the President's
approbation of your letter ; and are requested to add an expres-
sion of the sincere pleasure which it gives the President to see
the constant sensibility of the French government to the main-
tenance of the great principles of national equality upon the
ocean. Truly sympathizing with that government in abhor
346 THE RIGHT OF SEARCH.
rence of the African slave-trade, he appreciates the high mo-
tives and the comprehensive views of the true, permanent inter-
est of mankind, which induces it to act with great caution in
giving its sanction to a measure susceptible of interpretations,
or of modes of execution, which might be in opposition to the
independence of nations and the freedom of the seas.
I am, &c.
Daniel Webster,
Lewis Cass, Esq., &c, &c, &c.
THE TREATY OF WASHINGTON.
President's Message, transmitting the Treaty of Washington to
the Senate*
To the Senate of the United States :
I have the satisfaction to communicate to the Senate the
results of the negotiations recently had in this city with the
British minister special and extraordinary.
These results comprise, —
1st. A treaty to settle and define the boundaries between the
territories of the United States and the possessions of her Bri-
tannic Majesty in North America, for the suppression of the Af-
rican slave-trade, and the surrender of criminals, fugitive from
justice, in certain cases.
2d. A correspondence on the subject of the interference of
the colonial authorities of the British West Indies with Ameri-
can merchant-vessels driven by stress of weather, or carried by
violence, into the ports of those colonies.
3d. A correspondence upon the subject of the attack and
destruction of the steamboat " Caroline."
4th. A correspondence on the subject of impressment.
If this treaty shall receive the approbation of the Senate, it
will terminate a difference respecting boundary, which has long
subsisted between the two governments, has been the subject
of several ineffectual attempts at settlement, and has some-
times led to great irritation, not without danger of disturbing
the existing peace. Both the United States and the States more
immediately concerned have entertained no doubt of the valid
* This Message was written by Mr. Webster.
348 THE TREATY OF WASHINGTON.
ity of the American title to all the territory which has been in
dispute ; but that title was controverted, and the government
of the United States had agreed to make the dispute a subject
of arbitration. One arbitration had been actually had, but had
failed to settle the controversy ; and it was found, at the com-
mencement of last year, that a correspondence had been in
progress between the two governments for a joint commission,
with an ultimate reference to an umpire or arbitrator, with au-
thority to make a final decision. That correspondence, how-
ever, had been retarded by various occurrences, and had come
to no definite result when the special mission of Lord Ash bur-
ton was announced. This movement on the part of England
afforded, in the judgment of the executive, a favorable oppor-
tunity for making an attempt to settle this long-existing con-
troversy by some agreement or treaty, without further reference
to arbitration. It seemed entirely proper, that, if this purpose
were entertained, consultation should be had with the authori-
ties of the States of Maine and Massachusetts. Letters, there-
fore, of which copies are herewith communicated, were addressed
to the governors of those States, suggesting that commissioners
should be appointed by each of them, respectively, to repair to
this city and confer with the authorities of this government on
a line by agreement or compromise, with its equivalents and
compensations. This suggestion was met by both States in a
spirit of candor and patriotism, and promptly complied with.
Four commissioners on the part of Maine, and three on the part
of Massachusetts, all persons of distinction and high character,
were duly appointed and commissioned, and lost no time in pre-
senting themselves at the seat of the government of the United
States. These commissioners have been in correspondence
with this government, during the period of the discussions ; have
enjoyed its confidence and freest communications ; have aided
the general object with their counsel and advice; and, in the
end, have unanimously signified their assent to the line proposed
in the treaty.
Ordinarily, it would be no easy task to reconcile and bring
together such a variety of interests in a matter in itsel f difficult
and perplexed ; but the efforts of the government, in attempting
to accomplish this desirable object, have been seconded and
sustained by a spirit of accommodation and conciliation on the
THE TREATY OF WASHINGTON. 349
Dart of the States concerned, to which much of the success of
these efforts is to be ascribed.
Connected with the settlement of the line of the northeastern
boundary, so far as it respects the States of Maine and Massa-
chusetts, is the continuation of that line along the Highlands to
the north westernmost head of Connecticut River. Which of
the sources of that stream is entitled to this character has been
matter of controversy, and is of some interest to the Stale of
New Hampshire. The King of the Netherlands decided ihe
main branch to be the north westernmost head of the Connecti-
cut. This did not satisfy the claim of New Hampshire. The
line agreed to in the present treaty follows the Highlands to the
head of Hall's Stieam, and thence down that river, embracing
the whole claim of New Hampshire, and establishing her title
to one hundred thousand acres of territory more than she would
have had by the decision of the King of the Netherlands.
By the treaty of 1783, the line is to proceed down the Con-
necticut River to the forty-fifth degree of north latitude, and
thence west by that parallel till it strikes the St. Lawrence.
Recent examinations havinsr ascertained that the line heretofore
received as the true line of latitude between those points was
erroneous, and that the correction of this error would not only
leave on the British side a considerable tract of territory here-
tofore supposed to belong to the States of Vermont and New
York, but also Rouse's Point, the site of a military work of the
United States, it has been regarded as an object of importance,
not only to establish the rights and jurisdiction of those States
up to the line to which they have been considered to extend,
but also to comprehend Rouse's Point within the territory of the
United States. The relinquishment by the British government
of all the territory south of the line heretofore considered to be
the true line, has been obtained; and the consideration for this
relinquishment is to enure, by the provisions of the treaty, to the
States of Maine and Massachusetts.
The line of boundary, then, from the source of the St. Croix
to the St. Lawrence, as far as Maine and Massachusetts are
concerned, is fixed by their own consent, and for considerations
satisfactory to them ; the chief of these considerations being the
privilege of transporting the lumber and agricultural products
grown and raised in Maine on the waters of the St. John and
VOL. vi. 30
350 THE TREATY OF WASHINGTON.
its tributaries down that river to the ocean, free from imposition
or disability. The importance of this privilege, perpetual in its
terms, to a country covered at present by pine forests of great
value, and much of it capable hereafter of agricultural improve-
ment, is not a matter upon which the opinion of intelligent men
is likely to be divided.
So far as New Hampshire is concerned, the treaty secures all
that she requires ; and New York and Vermont are quieted to
the extent of their claim and occupation. The difference which
would be made in the northern boundary of these two States,
by correcting the parallel of latitude, may be seen on Tanner's
maps (1836), new atlas, maps Nos. 6 and 9.
From the intersection of the forty-fifth degree of north lati-
tude with the St. Lawrence, and along that river and the lakes
to the water communication between Lake Huron and Lake
Superior, the line was definitely agreed on, by the commission-
ers of the two governments, under the sixth article of the treaty
of Ghent. But between this last-mentioned point and the
Lake of the Woods, the commissioners acting under the seventh
article of that treaty found several matters of disagreement, and
therefore made no joint report to their respective governments.
The first of these was Sugar Island, or St. George's Island, lying
in St. Mary's River, or the water communication between Lakes
Huron and Superior. By the present treaty, this island is em-
braced in the territories of the United States. Both from soil
and position, it is regarded as of much value.
Another matter of difference was the manner of extending the
line from the point at which the commissioners arrived, north
of He Royale, in Lake Superior, to the Lake of the Woods.
The British commissioner insisted upon proceeding to Fond du
Lac, at the southwest angle of the lake, and thence by the
River St. Louis to the Rainy Lake. The American commis-
sioner supposed the true course to be, to proceed by way of
the Dog River. Attempts were made to compromise this dif-
ference, but without success. The details of these proceedings
are found at length in the printed separate reports of the com-
missioners.
From the imperfect knowledge of this remote country at the
date of the treaty of peace, some of the descriptions in that
treaty do not harmonize with its natural features, as now a^cer-
THE TREATY OF WASHINGTON. 351
tained. " Long Lake " is nowhere to be found under that name.
There is reason for supposing, however, that the sheet of water
intended by that name is the estuary at the mouth of Pigeon
River. The present treaty, therefore, adopts that estuary and
river, and afterward pursues the usual route across the height
of land, by the various portages and small lakes, till the line
reaches Rainy Lake ; from which the commissioners agreed on
the extension of it to its termination, in the northwest angle of
the Lake of the Woods. The region of country on and near
the shore of the lake, between Pigeon River on the north and
Fond du Lac and the River St. Louis on the south and west,
considered valuable as a mineral region, is thus included within
the Lmited States. It embraces a territory of four millions of
acres, northward of the claim set up by the British commis-
sioner under the treaty of Ghent. From the height of land at
the head of Pigeon River, westerly to the Rainy Lake, the coun-
try is understood to be of little value, being described by sur-
veyors, and marked on the map, as a region of rock and water.
From the northwest angle of the Lake of the Woods, which
is found to be in latitude 45° 23' 55" north, existing treaties
require the line to run due south to its intersection with the
forty-fifth parallel, and thence along that parallel to the Rocky
Mountains.
After sundry informal communications with the British min-
ister upon the subject of the claims of the two countries to ter-
ritory west of the Rocky Mountains, so little probability was
found to exist of coming to any agreement on that subject at
present, that it was not thought expedient to make it one of the
subjects of formal negotiation, to be entered upon between this
government and the British minister, as part of his duties un-
der his special mission.
By the treaty of 1783, the line of division along the rivers and
lakes, from the place where the forty-fifth parallel of north lati-
tude strikes the St. Lawrence, to the outlet of Lake Superior, is
invariably to be drawn through the middle of such waters, and
not through the middle of their main channels. Such a line, if
extended according to the literal terms of the treaty, would, it
is obvious, occasionally intersect islands. The manner in which
the commissioners of the two governments dealt with this diffi-
cult subj act may be seen in their reports. But where the line,
352 THE TREATY OF WASHINGTON.
thus following the middle of the river or watercourse, did not
meet with islands, yet it was liable sometimes to leave the only
practicable navigable channel altogether on one side. The treaty
made no provision for the common use of the waters by the cit-
izens and subjects of both countries.
It has happened, therefore, in a few instances, that the use of
the river in particular places would be greatly diminished to
one party or the other, if, in fact, there was not a choice in the
use of channels and passages. Thus, at the Long Sault in the
St. Lawrence, a dangerous passage, practicable only for boats,
the only safe run is between the Long Sault Islands and Barn-
hart's Island, all which belong to the United States on one
side, and the American shore on the other. On the other hand,
by far the best passage for vessels of any depth of water from
Lake Erie into the Detroit River is between Bois Blanc, a Brit-
ish island, and the Canadian shore. So, again, there are sev-
eral channels or passages, of different degrees of facility and
usefulness, between several islands in the River St. Clair, at or
near its entry into the lake of that name. In these three cases,
the treaty provides that all the several passages and channels
shall be free and open to the use of the citizens and subjects of
both parties.
The treaty obligations subsisting between the two countries
for the suppression of the African slave-trade, and the complaints
made to this government within the last three or four years,
many of them but too well founded, of the visitation, seizure,
and detention of American vessels on that coast by British
cruisers, could not but form a delicate and highly important part
of the negotiations which have now been held.
The early and prominent part which the government of tne
United States has taken for the abolition of this unlawful and
inhuman traffic is well known. By the tenth article of th<;
treaty of Ghent, it is declared that the traffic in slaves is irrec-
oncilable with the principles of humanity and justice, and that
both his Majesty and the United States are desirous of continu-
ing their efforts to promote its entire abolition ; and it is thereby
agreed that both the contracting parties shall use their best en-
deavors to accomplish so desirable an object. The government
of the United States has, by law, declared the African slave-
trade piracy ; and at its suggestion other nations have made
THE TREATY OF WASHINGTON. 353
similar enactments. It has not been wanting in honest and
zealous efforts, made in conformity with the wishes of the whole
country, to accomplish the entire abolition of the traffic in slaves
upon the African coast ; but these efforts, and those of other
countries directed to the same end, have proved, to a considera-
ble degree, unsuccessful. Treaties are known to have been en-
tered into some years ago between England and France, by
which the former power, which usually maintains a large na-
val force on the African station, was authorized to seize, and
bring in for adjudication, vessels found engaged in the slave-
trade under the French flag.
It is known that, in December last, a treaty was signed in
London by the representatives of England, France, Russia,
Prussia, and Austria, having for its professed object a strong
and united effort of the five powers to put an end to the traffic.
This treaty was not officially communicated to the government
of the United States, but its provisions and stipulations are
supposed to be accurately known to the public. It is under-
stood to be not yet ratified on the part of France.
No application or request has been made to this government
to become party to this treaty ; but the course it might take in
regard to it has excited no small degree of attention and dis-
cussion in Europe, as the principle upon which it is founded,
and the stipulations which it contains, have caused warm, ani-
madversions and great political excitement.
In my message at the commencement of the present session
of Congress, I endeavored to state the principles which this
government supports respecting the right of search and the im-
munity of flags. Desirous of maintaining those principles fully,
at the same time that existing obligations should be fulfilled, I
have thought it most consistent with the honor and dignity of
the country, that it should execute its own laws, and perform
its own obligations, by its own means and its own power. The
examination or visitation of the merchant-vessels of one nation
by the cruisers of another, for any purpose except those known
and acknowledged by the law of nations, under whatever re-
straints or regulations it may take place, may lead to danger-
ous results. It is far better, by other means, to supersede any
supposed necessity, or any motive, for such examination or
visit. Interference with a merchant-vessel by an armed cruise-
30*
354 THE TREATS OF WASHINGTON.
is always a delicate proceeding, apt to touch the point of na-
tional honor, as well as to affect the interests of individuals. It
has been thought, therefore, expedient, not only in accordance
with the stipulations of the treaty of Ghent, but at the same
time as removing all pretext on the part of others for violating
the immunities of the American Hag upon the seas, as they ex-
ist and are defined by the law of nations, to enter into the arti-
cles now submitted to the Senate.
The treaty which I now submit to you proposes no altera-
tion, mitigation, or modification of the rules of the law of na-
tions. It provides simply that each of the two governments
shall maintain on the coast of Africa a sufficient squadron to
enforce, separately and respectively, the laws, rights, and obliga-
tions of the two countries for the suppression of the slave-trade.
Another consideration of great importance has recommended
this mode of fulfilling the duties and obligations of the country.
Our commerce along the western coast of Africa is extensive,
and supposed to be increasing. There is reason to think that,
in many cases, those engaged in it have met with interruptions
and annoyances, caused by the jealousy and instigation of ri-
vals engaged in the same trade. Many complaints on this sub-
ject have reached the government. A respectable naval force
on the coast is the natural resort and security against further
occurrences of this kind.
The surrender to justice of persons who, having committed
high crimes, seek an asylum in the territories of a neighboring
nation, would seem to be an act due to the cause of general
justice, and properly belonging to the present state of civiliza-
tion and intercourse. The British Provinces of North America
are separated from the States of the Union by a line of several
thousand miles ; and along portions of this line the amount of
population on either side is quite considerable, while the pas-
sage of the boundary is always easy.
Offenders against the law, on the one side, transfer them-
selves to the other. Sometimes, with great difficulty, they are
brought to justice, but very often they wholly escape. A con-
sciousness of immunity, from the power of avoiding justice in
this way, instigates the unprincipled and reckless to the com-
mission of offences ; and the peace and good neighborhood of
the border are consequently often disturbed.
THE TREATY OF WASHINGTON. ,455
In the case of offenders fleeing from Canada into the United
States, the governors of States are often applied to for their sur-
render; and questions of a very embarrassing nature arise from
these applications. It has been thought highly important,
therefore, to provide for the whole case by a proper treaty stip-
ulation. The article on the subject in the proposed treaty is
carefully confined to such offences as all mankind agree to re-
gard as heinous, and destructive of the security of life and prop-
erty. In this careful and specific enumeration of crimes the
object has been to exclude all political offences, or criminal
charges arising from wars or intestine commotions. Treason,
misprision of treason, libels, desertion from military service, and
other offences of similar character, are excluded.
And, lest some unforeseen inconvenience or unexpected abuse
should arise from the stipulation, rendering its continuance, in
the opinion of one or both of the parties, not longer desirable,
it is left in the power of either to put an end to it at will.
The destruction of the steamboat " Caroline" at Schlosser, four
or five years ago, occasioned no small degree of excitement at
the time, and became the subject of correspondence between the
two governments. That correspondence, having been suspended
for a considerable period, was renewed in the spring of the last
year, but no satisfactory result having been arrived at, it was
thought proper, though the occurrence had ceased to be fresh
and recent, not to omit attention to it on the present occasion.
It has only been so far discussed, in the correspondence now
submitted, as it was accomplished by a violation of the territory
of the United States. The letter of the British minister, while
attempting to justify that violation upon the ground of a press-
ing and overruling necessity, admitting, nevertheless, that, even
if justifiable, an apology was due for it, and accompanying this
acknowledgment with assurances of the sacred regard of his
government for the inviolability of national territory, has seemed
to me sufficient to warrant forbearance from any further remon-
strance against what took place, as an aggression on the soil
and territory of the country.
On the subject of the interference of the British authorities in
the West Indies, a confident hope is entertained that the corre-
spondence which has taken place, showing the grounds taken
by this government, and the engagements entered into by the
356 THE TREATY OF WASHINGTON.
British minister, will be found such as to satisfy the just expec-
tation of the people of the United States.
The impressment of seamen from merchant vessels of this
country by British cruisers, although not practised in time of
peace, and therefore not at present a productive cause of dif-
ference and irritation, has, nevertheless, hitherto been so promi-
nent a topic of controversy, and is so likely to bring on renewed
contentions at the first breaking out of a European war, that
it has been thought the part of wisdom now to take it into
serious and earnest consideration. The letter from the Secre-
tary of State to the British minister explains the grounds which
the government has assumed, and the principles which it means
to uphold. For the defence of these grounds, and the mainte-
nance of these principles, the most perfect reliance is placed on
the intelligence of the American people, and on their firmness
and patriotism, in whatever touches the honor of the country, or
its great and essential interest.
John Tyler.
Washington, August 11, 1842.
BY THE PRESIDENT OE THE UNITED STATES OE AMERICA.
[a proclamation.]
Whereas, a treaty between the United States of America and
her Majesty, the Queen of the United Kingdom of Great
Britain and Ireland, was concluded and signed by their pleni-
potentiaries, at Washington, on the ninth day of August, one
thousand eight hundred and forty-two, which treaty is, word
for word, as follows : —
A Treaty to settle and define the Boundaries betiveen the Territo-
ries of the United States and the Possessions of her Britannic
Majesty in North America ; for the final Suppression of the
African Slave-trade; and for the giving up of Criminals, fugi-
tive from Justice, in certain Cases.
Whereas certain portions of the line of boundary between
the United States of America and the British dominions in
North America, described in the second article of the treaty of
peace of 1783, have not yet been ascertained and determined,
notwithstanding the repeated attempts which have been hereto-
THE TREATY OF WASHINGTON. 357
fore made for that purpose ; and whereas it is now thought to
be for the interest of both parties, that, avoiding further discus-
sion of their respective rights arising in this respect under the
said treaty, they should agree on a conventional line in said
portions of the said boundary, such as may be convenient to
both parties, with such equivalents and compensations as are
deemed just and reasonable ; and whereas, by the treaty con-
cluded at Ghent, on the 24th clay of December, 1814, between
the United States and his Britannic Majesty, an article was
agreed to and inserted, of the following tenor, viz. : " Article
10. Whereas the traffic in slaves is irreconcilable with the prin-
ciples of humanity and justice ; and whereas both his Majesty
and the United States are desirous of continuing their efforts to
promote its entire abolition, it is hereby agreed that both the
contracting parties shall use their best endeavors to accomplish
so desirable an object"; and whereas, notwithstanding the laws
which have at various times been passed by the two govern-
ments, and the efforts made to suppress it, that criminal traffic
is still prosecuted and carried on ; and whereas the United
States of America and her Majesty, the Queen of the United
Kingdom of Great Britain and Ireland, are determined that, so
far as may be in their power, it shall be effectually abolished ;
and whereas it is found expedient for the better administration
of justice and the prevention of crime within the territories and
jurisdiction of the two parties, respectively, that persons com-
mitting the crimes hereinafter enumerated, and being fugitives
from justice, should, under certain circumstances, be reciprocally
delivered up : the United States of America and her Britannic
Majesty, having resolved to treat on these several subjects, have
for tl at- purpose appointed their respective plenipotentiaries to
negotiate and conclude a treaty ; that is to say, the President
of the United States has, on his part, furnished with full powers
Daniel Webster, Secretary of State of the United States, and
her Majesty, the Queen of the United Kingdom of Great Britain
and Ireland, has, on her part, appointed the Right Honorable
Alexander Lord Ashburton, a peer of the said United Kingdom,
a member of her Majesty's most honorable Privy Council, and
her Majesty's Minister Plenipotentiary on a special mission to
the United States, who, after a reciprocal communication of
their respective full powers, have agreed to and signed the fol
lowing articles : —
358 THE TREATY OF WASHINGTON.
Article I.
It is hereby agreed and declared that the line of boundary
shall be as follows : Beginning at the monument at the source
of the River St. Croix, as designated and agreed to by the
commissioners under the fifth article of the treaty of 1794, be-
tween the governments of the United States and Great Britain;
thence north, following the exploring line run and marked by
the surveyors of the two governments in the years 1817 and
1818, under the fifth article of the treaty of Ghent, to its inter-
section with the River St. John, and to the middle of the chan-
nel thereof; thence up the middle of the main channel of the
said River St. John to the mouth of the River St. Francis ;
thence up the middle of the channel of the said River St.
Francis, and of the lakes through which it flows, to the out-
let of the Lake Pohenagamook ; thence, southwesterly, in a
straight line, to a point on the northwest branch of the River
St. John, which point shall be ten miles distant from the main
branch of the St. John, in a straight line, and in the nearest
direction ; but if the said point shall be found to be less than
seven miles from the nearest point of the summit or crest of
the highlands that divide those rivers which empty themselves
into the River St. Lawrence from those which fall into the
River St. John, then the said point shall be made to recede
down the said northwest branch of the River St. John, to a
point seven miles in a straight line from the said summit or
crest; thence, in a straight line, in a course about south eight
degrees west, to the point where the parallel of latitude of forty-
six degrees twenty-five minutes north intersects the southwest
branch of the St. John ; thence, southerly, by the said branch,
to the source thereof in the highlands, at the Metjarmette
Portage ; thence down along the said highlands which divide
the waters which empty themselves into the River St. Law-
rence from those which fall into the Atlantic Ocean, to the
head of Hall's Stream ; thence down the middle of said stream,
till the line thus run intersects the only line of boundary sur-
veyed and marked by Valentine and Collins, previously to the
year 1774, as the forty-fifth degree of north latitude, and which
has been known and understood to be the line of actual divis-
ion between the States of New York and Vermont on one
side, and the British Province of Canada on the other ; and
THE TREATY OF WASHINGTON. 359
from said point of intersection, west, a*ong tne said dividing
line, as heretofore known and understood, to the Iroquois or St.
Lawrence River.
Article II.
It is moreover agreed, that from the place where the joint
commissioners terminated their labors under the sixth article ot
the treaty of Ghent, to wit, at a point in the Neebish Chan-
nel, near Muddy Lake, the line shall run into and along the
ship-channel between St. Joseph's and St. Tammany Islands,
to the division of the channel at or near the head of St. Joseph's
Island; thence, turning eastwardly and northwardly, around the
lower end of St. George's or Sugar Island, and following the
middle of the channel which divides St. George's from St. Jo-
seph's Island ; thence up the east Neebish Channel, nearest to
St. George's Island, through the middle of Lake George ;
thence, west of Jonas's Island, into St. Mary's River, to a
point in the middle of that river, about one mile above St.
George's or Sugar Island, so as to appropriate and assign the
said island to the United States ; thence, adopting the line
traced on the maps by the commissioners, through the River
St. Mary and Lake Superior, to a point north of He Royale,
in said lake, one hundred yards to the north and east of He
Chapeau, which last-mentioned island lies near the northeast-
ern point of He Royale, where the line marked by the commis-
sioners terminates ; and from the last-mentioned point, south-
westerly, through the middle of the sound between He Royale
and the northwestern mainland, to the mouth of Pigeon River,
and up the said river to and through the North and South
Fowl Lakes, to the lakes of the height of land between Lake
Superior and the Lake of the Woods ; thence along the water
communication to Lake Saisaginaga, and through that lake;
thence to and through Cypress Lake, Lac du Bois Blanc, Lac
la Croix, Little Vermilion Lake, and Lake Namecan, and
through the several smaller lakes, straits, or streams connecting
the lakes here mentioned, to that point in Lac la Pluie, or Rainy
Lake, at the Chaudiere Falls, from which the commissioners
traced the line to the most northwestern point of the Lake of
the Woods ; thence along the said line to the said most north-
western point, being in latitude forty-nine degrees twenty-three
360 THE TREATY OF WASHINGTON.
minutes fifty-five seconds nortn, and in longitude ninety-five
degrees fourteen minutes thirty-eight seconds west from the ob-
servatory at Greenwich ; thence, according to existing treaties,
due south, to its intersection with the forty-ninth parallel of
north latitude, and along that parallel to the Rocky Mountains ;
it being understood that all the water communications and all
the usual portages along the line from Lake Superior to the
Lake of the Woods, and also Grand Portage, from the shore of
Lake Superior to the Pigeon River, as now actually used, shall
be free and open to the use of the citizens and subjects of
both countries.
Article III.
In order to promote the interests and encourage the industry
of all the inhabitants of the countries watered by the River St.
John and its tributaries, whether living within the State of
Maine or the Province of New Brunswick, it is agreed that
where, by the provisions of the present treaty, the River St.
John is declared to be the line of boundary, the navigation of
the said river shall be free and open to both parties, and shall
in no way be obstructed by either ; that all the produce of the
forest, in logs, lumber, timber, boards, staves, or shingles, or of
agriculture, not being manufactured, grown on any of those
parts of the State of Maine watered by the River St. John, or
by its tributaries, of which fact reasonable evidence shall, if re-
quired, be produced, shall have free access into and through the
said river, and its said tributaries having their source within the
State of Maine, to and from the seaport at the mouth of the said
River St. John, and to and round the falls of the said river,
either by boats, rafts, or other conveyance ; that when within
the Province of New Brunswick, the said produce shall be dealt
with as if it were the produce of the said Province ; that, in like
manner, the inhabitants of the territory of the Upper St. John,
determined by this treaty to belong to her Britannic Majesty,
shall have free access to and through the river for their produce,
in those parts where the said river runs wholly through the
State of Maine : Provided always, That this agreement shall
give no right to either party to interfere with any regulations
not inconsistent with the terms of this treaty which the govern-
ments, respectively, of Maine or of New Brunswick may make
THE TREATY OF WASHINGTON. > 361
respecting the navigation of the said river, where both banks
thereof shall belong to the same party.
Article IV.
All grants of lands heretofore made by either party, within
the limits of the territory which by this treaty falls within the
dominions of the other party, shall be held valid, ratified, and
confirmed to the persons in possession under such grants, to the
same extent as if such territory had by this treaty fallen within
the dominions of the party by whom such grants were made;
and all equitable possessory claims, arising from a possession
and improvement of any lot or parcel of land by the person ac-
tually in possession, or by those under whom such person
claims, for more than six years before the date of this treaty,
shall, in like manner, be deemed valid, and be confirmed and
quieted by a release to the person entitled thereto of the title to
such lot or parcel of land, so described as best to include the
improvements made thereon ; and in all other respects the two
contracting parties agree to deal upon the most liberal principles
of equity with the settlers actually dwelling upon the territory
falling to them, respectively, which has hitherto been in dispute
between them.
Article V.
Whereas, in the course of the controversy respecting the dis-
puted territory on the northeastern boundary, some moneys
have been received by the authorities of her Britannic Majesty's
Province of New Brunswick, with the intention of preventing
depredations on the forests of the said territory, which moneys
were to be carried to a fund, called the " Disputed Territory
Fund," the proceeds whereof, it was agreed, should be hereafter
paid over to the parties interested, in the proportions to be de-
termined by a final settlement of boundaries : it is hereby
agreed, that a correct account of all receipts and payments on
the said fund shall be delivered to the government of the Unit-
ed States, within six months after the ratification of this treaty;
and the proportion of the amount due thereon to the States of
Maine and Massachusetts, and any bonds or securities apper-
taining thereto, shall be paid and delivered over to the govern-
ment of the United States ; and the government of the United
States agrees to receive for the use of, and pay over to, the
vol. vi. 31
362 THE TREATY OF WASHINGTON,
States of Maine and Massachusetts, their respective portions oi
said fund; and further, to pay and satisfy said States, respec-
tively, for all claims for expenses incurred by them in protecting
the said heretofore disputed territory, and making a survey
thereof in 1838 ; the government of the United States agreeing
with the States of Maine and Massachusetts to pay them the
further sum of three hundred thousand dollars, in equal moie-
ties, on account of their assent to the line of boundary de-
scribed in this treaty, and in consideration of the conditions and
equivalents received therefor from the government of her Bri-
tannic Majesty.
Article VI.
It is furthermore understood and agreed, that for the purpose
of running and tracing those parts of the line between the
source of the St. Croix and the St. Lawrence River which will
require to be run and ascertained, and for marking the residue
of said line by proper monuments on the land, two commis-
sioners shall be appointed, one by the President of the United
States, by and with the advice and consent of the Senate there-
of, and one by her Britannic Majesty; and the said commis-
sioners shall meet at Bangor, in the State of Maine, on the
first day of May next, or as soon thereafter as may be, and shall
proceed to mark the line above described, from the source of
the St. Croix to the River St. John ; and shall trace on proper
maps the dividing line along said river, and along the River
St. Francis, to the outlet of the Lake Pohenagamook ; and
from the outlet of the said lake they shall ascertain, fix, and
mark, by proper and durable monuments on the land, the line
described in the first article of this treaty ; and the said com-
missioners shall make to each of their respective governments
a joint report or declaration, under their hands and seals, desig-
nating such line of boundary, and shall accompany such report
or declaration with maps certified by them to be true maps of
the new boundary.
Article VII.
It is further agreed, that the channels in the River St. Law-
rence, on both sides of the Long Sault Islands, and of Barn-
hart Island ; the channels in the River Detroit, on both sides
of the island Bois Blanc, and between that island and both
THE TREATY OF WASHINGTON. 363
the American and Canadian shores ; and all the several chan*
nels and passages between the various islands lying near the
junction of the River St. Clair with the lake of that name,
stall be equally free and open to the ships, vessels, and boats
of both parties.
Article VIII.
The parties mutually stipulate that each shall prepare, eouip,
and maintain in service, on the coast of Africa, a sufficient and
adequate squadron, or naval force of vessels, of suitable num-
bers and descriptions, to carry in all not less than eighty guns,
to enforce, separately and respectively, the laws, rights, and
obligations of each of the two countries, for the suppression of
the slave-trade ; the said squadrons to be independent of each
other, but the two governments stipulating, nevertheless, to
give such orders to the officers commanding their respective
forces, as shall enable them most effectually to act in concert
and cooperation, upon mutual consultation, as exigencies may
arise, for the attainment of the true object of this article ; copies
of all such orders to be communicated by each government to
the other, respectively.
Article IX.
Whereas, notwithstanding all efforts which may be made on
the coast of Africa for suppressing the slave-trade, the facilities
for carrying on that traffic and avoiding the vigilance of cruisers
by the fraudulent use of flags, and other means, are so great,
and the temptations for pursuing it, while a market can be
found for slaves, so strong, as that the desired result may be
long delayed, unless all markets be shut against the purchase of
African negroes, the parties to this treaty agree that they will
unite in all becoming representations and remonstrances with
any and all powers within whose dominions such markets are
allowed to exist; and that they will urge upon all such powers
the propriety and duty of closing such markets effectually, at
once and for ever.
Article X.
It is agreed that the United States and her Britannic Majes-
ty shall, upon mutual requisitions by them, or their ministers,
officers, or authorities, respectively made, deliver up to justice
364 THE TREATY OF WASHINGTON.
all persons who, being charged with the crime of murder, or
assault with intent to commit murder, or piracy, or arson, or
robbery, or forgery, or the utterance of forged papers, committed
within the jurisdiction of either, shall seek an asylum, or shall
be found, within the territories of the other : provided that this
shall only be done upon such evidence of criminality as, ac-
cording to the laws of the place where the fugitive or person so
charged shall be found, would justify his apprehension and
commitment for trial, if the crime or offence had there been
committed ; and the respective judges and other magistrates of
the two governments shall have power, jurisdiction, and au-
thority, upon complaint made under oath, to issue a .warrant
for the apprehension of the fugitive or person so charged, that
he may be brought before such judges or other magistrates,
respectively, to the end that the evidence of criminality may be
heard and considered ; and if, on such hearing, the evidence be
deemed sufficient to sustain the charge, it shall be the duty of
the examining judge or magistrate to certify the same to the
proper executive authority, that a warrant may issue for the sur-
render of such fugitive. The expense of such apprehension
and delivery shall be borne and defrayed by the party who makes
the requisition and receives the fugitive.
Article XL
The eighth article of this treaty shall be in force for five years
from the date of the exchange of the ratifications, and afterward
until one or the other party shall signify a wish to terminate
it. The tenth art'.cle shall continue in force until one or the
other of the parties shall signify its wish to terminate it, and no
longer.
Article XII.
The present treaty shall be duly ratified, and the mutual ex-
change of ratifications shall take place in London, within six
months from the date hereof, or earlier, if possible.
In faith whereof, we, the respective plenipotentiaries, have
signed this treaty, and have hereunto affixed our seals.
Done, in duplicate, at Washington, the ninth day of August,
anno Domini one thousand eight hundred and forty-two.
Daniel Webster, [seal.]
ashburton. [seal.]
THE TREATY OF WASHINGTON. 365
And whereas the said treaty has been duly ratified on both
parts, and the respective ratifications of the same having oeen
exchanged, to wit, at London, on the thirteenth day of Octo-
ber, one thousand eight hundred and forty-two, by Edward
Everett, Envoy Extraordinary and Minister Plenipotentiary
of the United States, and the Right Honorable the Earl of
Aberdeen, her Britannic Majesty's principal Secretary of State
for Foreign Affairs, on the part of their respective governments :
Now, therefore, be it known, that I, John Tyler, President
of the United States of America, have caused the said treaty
to be made public, to the end that the same, and every clause
and article thereof, may be observed and fulfilled with good
faith by the United States and the citizens thereof. In witness
r , whereof, I have hereunto set my hand, and caused the
[l. s.I ' J '
seal of the United States to be affixed.
Done at the city of Washington, this tenth day of November,
in the year of our Lord one thousand eight hundred and forty-
two, and of the independence of the United States the sixty-
seventh.
John Tyler.
By the President:
Daniel Webster, Secretary of State.
Vote of the Senate on the Final Question of Ratification^ SfC.
The treaty, having been communicated to the Senate by the Presi-
dent of the United States, by message of the 11th of August, 1842, was
referred, on motion of Mr. Rives, to the Committee on Foreign Rela-
tions, of which committee Mr. Rives was chairman ; it was reported
from the committee without amendment on Monday, the 15th of August,
and made the order of the day for Wednesday, the 17th, on which last
day it was called up and discussed, as well as on the 19th and 20th.
Several propositions to amend having been made and rejected, Mr.
Rives, on the day last mentioned, submitted the following resolution : —
" Resolved (two thirds of the Senators present concurring), That the
Senate advise and consent to the ratification of the treaty to settle and
define the boundaries between t<he territories of the United States and
the possessions of her Britannic Majesty in North America ; for the
final suppression of the African slave-trade ; and for the giving up of
criminals, fugitive from justice, in certain cases."
31*
36b THE TREATY OF WASHINGTON.
The Senate, by unanimous consent, proceeded to consider the said
resolution. On the question to agree thereto, it was determined in the
affirmative, yeas 39, nays 9.
Those who voted in the affirmative were Messrs. Archer, Barrow,
Bates, Bayard, Berrien, Calhoun, Choate, Clayton, Crafts, Crittenden,
Cuthbert, Dayton, Evans, • Fulton, Graham, Henderson, Huntington,
Kerr, King, Mangum, Merrick, Miller, Morehead, Phelps, Porter, Pres-
ton, Rives, Sevier, Simmons, Smith of Indiana, Sprague, Tallmadge,
Tappan, Walker, White, Woodbridge, Woodbury, Wright, Young.
Those who voted in the negative were Messrs. Allen, Bagby, Benton,
Buchanan, Conrad, Linn, Smith of Connecticut, Sturgeon, Williams.
So the said resolution was agreed to.
Ordered, That the Secretary lay the said resolution before the Presi-
dent of the United States.
The bill for carrying into effect the treaty of Washington passed the
House of Representatives on the 28th of February, 1843, by a vote of
137 yeas to 40 nays, and the Senate on the 2d of March, without a
division, having been reported from the Committee on Foreign Relations
by Mr. Archer, then chairman of that committee, without amendment.
LETTERS TO GENERAL CASS ON THE
TREATY OF WASHINGTON.*
Mr. Webster to General Cass.
Department of State, Washington, August 29, 1842.
Sir, — You will see by the inclosed the result of the negotia-
tions lately had in this city between this department and Lord
Ashburton. The treaty has been ratified by the President and
Senate.
In communicating to you this treaty, I am directed by the
President to draw your particular attention to those articles
which relate to the suppression of the African slave-trade.
After full and anxious consideration of this very delicate sub-
ject, the government of the United States has come to the con-
clusion which you will see expressed in the President's message
to the Senate accompanying the treaty.
Without intending or desiring to influence the policy of other
governments on this important subject, this government has
reflected on what was due to its own character and position, as
the leading maritime power on the American continent, left free
to make choice of such means for the fulfilment of its duties
as it should deem best suited to its dignity. The result of its
reflections has been, that it does not concur in measures which,
for whatever benevolent purpose they may be adopted, or with
whatever care and moderation they may be exercised, have yet
a tendency to place the police of the seas in the hands of a
single power. It chooses rather to follow its own laws with its
own sanction, and to carry them into execution by its own au-
thority. Disposed to act in the spirit of the most cordial con-
* These letters are subsequent in date to some of those which follow in this
volume, but they are inserted here as pertaining to the treaty of Washington.
368 LETTERS TO GENERAL CASS
currence with other nations for the suppression of the African
slave-trade, that great reproach of our times, it deems it to be
right, nevertheless, that this action, though concurrent, should
be independent; and it believes that from this independence it
will derive a greater degree of efficiency.
You will perceive, however, that, in the opinion of this gov-
ernment, cruising against slave-dealers on the coast of Africa is
not all which is necessary to be done in order to put an end
to the traffic. There are markets for slaves, or the unhappy
natives of Afrca would not be seized, chained, and carried over
the ocean into slavery. These markets ought to be shut. And,
in the treaty now communicated to you, the high contracting
parties have stipulated " that they will unite, in all becoming
representations and remonstrances, with any and all powers
within whose dominions such markets are allowed to exist;
and that they will urge upon all such powers the propriety and
duty of closing such markets effectually, at once and for ever."
You are furnished, then, with the American policy in regard
to this interesting subject. First, independent but cordially
concurrent efforts of maritime states to suppress, as far as pos-
sible, the trade on the coast, by means of competent and well-
appointed squadrons, to watch the shores and scour the neigh-
boring seas. Secondly, concurrent, becoming remonstrance with
all governments who tolerate within their territories markets for
the purchase of African negroes. There is much reason to be-
lieve that, if other states, professing "equal hostility to this nefa-
rious traffic, would give their own powerful concurrence and
cooperation to these remonstrances, the general effect would be
satisfactory, and that the cupidity and crimes of individuals
would at length cease to find both their temptation and their
reward in the bosom of Christian states, and in the permission
of Christian governments.
It will still remain for each government to revise, execute, and
make more effectual its own municipal laws against its subjects
or citizens who shall be concerned in, or in any way give aid or
countenance to others concerned in this traffic.
You are at liberty to make the contents of this despatch
known to the French government.
I have, &c.
Daniel Webster.
Lewis Cass, Esq , &c, &c, &c.
ON THE TREATY OF WASHINGTON. 369
Mr. F. Webster to General Cass,
Department of State, Washington, October 11, 1842.
Sir, — I have to acknowledge the receipt of your despatch
of the 17th of September last, requesting permission to return
home.
I have submitted the despatch to the President, and am by
him directed to say, that although he much regrets that your
own wishes should, at this time, terminate your mission to the
court of France, where for a long period you have rendered
your country distinguished service, in all instances to its honor
and to the satisfaction of the government, and where you oc-
cupy so favorable a position, from the more than ordinary good
intelligence which is understood to subsist between you, per-
sonally, and the members of the French government, and from
the esteem entertained for you by its illustrious head ; yet he
^annot refuse your request to return once more to your home
and your country, so that you can pay that attention to your
personal and private affairs which your long absence and con-
stant employment in the service of your government may now
render most necessary.
I have, Sir, to tender you, on behalf of the President, his
most cordial good wishes, and am, &c.
Fletcher Webster, Acting Secretary of State
Lewis Cass, Esq., &c., &c., &c.
Mr. Webster to General Cass.
Department of State, Washington, November 14, 1842.
Sir, — I have the honor to acknowledge the receipt of you*
despatch of the 3d of October, brought by the " Great West-
ern," which arrived at New York on the 6th instant.
It is probable you will have embarked for the United States
before my communication can now reach you ; but as it is
thought proper that your letter should be answered, and as cir-
cumstances may possibly have occurred to delay your depart-
ure, this will be transmitted to Paris in the ordinary way.
Your letter has caused the President considerable concern.
Entertaining a lively sense of the respectable and useful man-
ner in which you have discharged, for several years, the duties
of an important foreign mission, it occasions him real regret
870 LETTERS TO GENERAL CASS
and pain, that your last official communication should be of
such a character as that he cannot give to it his entire and cor-
dial approbation.
It appears to be intended as a sort of protest, a remon-
strance, in the form of an official despatch, against a transac-
tion of the government to which you were not a party, in which
you had no agency whatever, and for the results of which you
were no way answerable. This would seem an unusual and
extraordinary proceeding. In common with every other citizen
of the republic, you have an unquestionable right to form opin-
ions upon public transactions, and the conduct of public men ;
but it will hardly be thought to be among either the duties or
the privileges of a minister abroad to make formal remonstran-
ces and protests against proceedings of the various branches of
the government at home, upon subjects in relation to which he
himself has not been charged with any duty or partaken any
responsibility.
The negotiation and conclusion of the treaty of Washington
were in the hands of the President and Senate. They had
acted upon this important subject according to their convictions
of duty and of the public interest, and had ratified the treaty.
It was a thing done ; and although your opinion might be at
variance with that of the President and Senate, it is not per-
ceived that you had any cause of complaint, remonstrance, or
protest, more than any other citizen who might entertain the
same opinion.
In your letter of the 17th of September, requesting your re-
call, you observe : " The mail by the steam-packet which left
Boston the 1st instant has just arrived, and has brought intel-
ligence of the ratification of the treaties recently concluded
with Great Britain. All apprehensions, therefore, of any im-
mediate difficulties with that country are at an end, and I do
not see that any public interest demands my further residence
in Europe. I can no longer be useful here, and the state of my
private affairs requires my presence at home. Under these cir-
cumstances, I beg you to submit to the President my wish for
permission to retire from this mission, and to return to the
United States without delay."
As you appeared at that time not to be acquainted with the
provisions of the treaty, it was inferred that your desire to re-
ON THE TREATY OF WASHINGTON. tf7l
turn home proceeded from the conviction that, inasmuch as all
apprehensions of immediate differences with Great Britain ivere
at an end, you would no longer be useful at Paris. Placing
this interpretation on your letter, and believing, as you your-
self allege, that your long absence abroad rendered it desirable
for you to give some attention to your private affairs in this
country, the President lost no time in yielding to your request,
and, in doing so, signified to you the sentiments of approbation
which he entertained for your conduct abroad. You may,
then, well imagine the great astonishment which the declara.
tion contained in your despatch of the 3d of October, that you
could no longer remain in France honorably to yourself or ad-
vantageously to the country, and that the proceedings of this
government had placed you in a false position, from which you
could escape only by returning home, created in his mind.
. The President perceives not the slightest foundation for these
opinions. He cannot see how your usefulness as minister to
France should be terminated by the settlement of difficulties
and disputes between the United States and Great Britain.
You have been charged with no duties connected with the
settlement of these questions, or in any way relating to them,
beyond the communication to the French government of the
President's approbation of your letter of the 13th of February,
written without previous instructions from this department.
This government is not informed of any other act or proceeding
of yours connected with any part of the subject, nor does it know
that your official conduct and character have become in any
other way connected with the question of the right of search ;
and that letter having been approved, and the French govern-
ernment having been so informed, the President is altogether at
a loss to understand how you can regard yourself as placed in a
false position. If the character or conduct of any one was to
be affected, it could only be the character and conduct of the
President himself. The government has done nothing, most
assuredly, to place you in a false position. Representing your
country at a foreign court, you saw a transaction about to take
place between the government to which you were accredited
and another power, which you thought might have a prejudicial
effect on the interest of your own country. Thinking, as it ia
to be presumed, that the case was too pressing to wait for in-
372 LETTERS TO GENERAL CASS
structions, you presented a protest against that transaction, and
our government approved your proceeding. This is your only
official connection with the whole subject. If after this the
President had sanctioned the negotiation of a treaty, and the
Senate had ratified it, containing provisions in the highest de-
gree objectionable, however the government might be discred-
ited, your exemption from all blame and censure would have
been complete. Having delivered your letter of the 13th of
February to the French government, and having received the
President's approbation of that proceeding, it is most manifest
that you could be in no degree responsible for what should be
done afterward, and done by others. The President, therefore,
cannot conceive what particular or personal interest of yours
was affected by the subsequent negotiation here, or how the
treaty, the result of that negotiation, should put an end to
your usefulness as a public minister at the court of France, or
in any way affect your official character or conduct.
It is impossible not to see that such a proceeding as you have
seen fit to adopt might produce much inconvenience, and even
serious prejudice, to the public interests. Your opinion is
against the treaty, a treaty concluded and formally ratified ; and,
to support that opinion, while yet in the service of the govern
ment, you put a construction on its provisions such as your
own government does not put upon them, such as you must be
aware the enlightened public of Europe does not put upon
them, and such as England herself has not put upon them as
yet, so far as we know.
It may become necessary hereafter to publish your letter, in
connection with other correspondence of the mission ; and al-
though it is not to be presumed that you looked to such publi-
cation, because such a presumption would impute to you a
claim to put forth your private opinions upon the conduct of the
President and Senate, in a transaction finished and concluded,
through the imposing form of a public despatch, yet, if published,
it cannot be foreseen how far England might hereafter rely on
your authority for a construction favorable to her own preten-
sions, and inconsistent with the interest and honor of the United
States. It is certain that you would most sedulously desire to
avoid any such attitude. You would be slow to express opin-
ions, in a solemn and official form, favorable to another govern-
ON THE TREATY OF WASHINGTON. 373
ment, and on the authority of which opinions that other gov-
ernment might hereafter found new claims or set up new
pretensions. It is for this reason, as well as others, that the
President feels so much regret at your desire of placing your
construction of the provisions of the treaty, and your objections
to those provisions, according to your construction, upon the
records of the government.
Before examining the several objections suggested by you, it
may be proper to take notice of what you say upon the course
of the negotiation. In regard to this, having observed that the
national dignity of the United States had not been compro-
mised down to the time of the President's message to the last
session of Congress, you proceed to say : " But England then
urged the United States to enter into a conventional arrange-
ment, by which we might be pledged to concur with her in
measures for the suppression of the slave-trade. Till then we
had executed our own laws in our own way. But, yielding to
this application, and departing from our former principle of
avoiding European combinations upon subjects not American,
we stipulated in a solemn treaty, that we would carry into effect
our own laws, and fixed the minimum force we would employ
for that purpose."
The President cannot conceive how you should have been led
to adventure upon such a statement as this. It is but a tissue
of mistakes. England did not urge the United States to enter
into this conventional arrangement. The United States yielded
to no application from England. The proposition for abolishing
the slave-trade, as it stands in the treaty, was an American propo-
sition ; it originated with the executive government of the United
States, which cheerfully assumes all its responsibility. It stands
upon it as its own mode of fulfilling its duties, and accomplishing
its objects. Nor have the United States departed, in this treaty,
in the slightest degree, from their former principles of avoiding
European combinations upon subjects not American, because the
abolition of the African slave-trade is an American subject as
emphatically as it is a European subject; and indeed more so,
inasmuch as the government of the United States took the first
great steps in declaring that trade unlawful, and in attempting
its extinction. The abolition of this traffic is an object of the
highest interest to the American people and the American gov-
VOL. VI. ...J
374 LETTERS TO GENERAL CASS
ernnient; and you seem strangely to have overlooked altogether
the important fact, that nearly thirty years ago, by the treaty of
Ghent, the United States bound themselves, by solemn compact
with England, to continue "their efforts to promote its entire
abolition," both parties pledging themselves by that treaty to
use their best endeavors to accomplish so desirable an object.
Again, you speak of an important concession made to the
renewed application of England. But the treaty, let it be re-
peated, makes no concession to England whatever. It com-
plies with no demand, grants no application, conforms to no
request. All these statements, thus by you made, and which
are so exceedingly erroneous, seem calculated to hold up the
idea, that in this treaty your government has been acting a sub-
ordinate, or even a complying part.
The President is hot a little startled that you should make
such totally groundless assumptions of fact, and then leave a
discreditable inference to be drawn from them. He directs me
not only to repel this inference as it ought to be repelled, but
also to bring to your serious consideration and reflection the
propriety of such an assumed narration of facts as your de-
spatch, in this respect, pats forth.
Having informed the department that a copy of the letter of
the 24th of August, addressed by me to you, had been deliv-
ered to M. Guizot, you proceed to say : " In executing this
duty, I felt too well what was due to my government and coun-
try to intimate my regret to a foreign power that some declara-
tion had not preceded the treaty, or some stipulation accom-
panied it, by which the extraordinary pretension of Great Brit-
ain to search our ships at all times and in all places, first put
forth to the world by Lord Palmerston on the 27th of August,
1841, and on the 13th of October following again peremptorily
claimed as a right by Lord Aberdeen, would have been abro-
gated, as equally incompatible with the laws of nations and
with the independence of the United States. I confined my-
self, therefore, to a simple communication of your letter." It
may be true that the British pretension leads necessarily to con-
sequences as broad and general as your statement. But it is
no more than fair to state that pretension in the words of the
British government itself, and then it becomes matter of con-
sideration and argument how broad and extensive it really is.
ON THE TREATY OF WASHINGTON. 375
The last statement of this pretension, or claim, by the British
government, is contained in Lord Aberdeen's note to Mr. Steven-
son of the 13th of October, 1841. It is in these words : —
" The undersigned readily admits, that to visit and search American
vessels in time of peace, when that right of search is not granted by
treaty, would be an infraction of public law, and a violation of national
dignity and independence. But no such right is asserted. We sincere-
ly desire to respect the vessels of the United States, but we may reason-
ably expect to know what it really is that we respect. Doubtless the
flag is prima facie evidence of the nationality of the vessel ; and, if
this evidence were in its nature conclusive and irrefragable, it ought to
preclude all further inquiry. But it is sufficiently notorious that the flags
of all nations are liable to be assumed by those who have no right or
title to bear them. Mr. Stevenson himself fully admits the extent to
which the American flag has been employed for the purpose of covering
this infamous traffic. The undersigned joins with Mr. Stevenson in
deeply lamenting the evil ; and he agrees with him in thinking that the
United States ought not to be considered responsible for this abuse of
their flag. But if all inquiry be resisted, even when carried no further
than to ascertain the nationality of the vessel, and impunity be claimed
for the most lawless and desperate of mankind in the commission of
this fraud, the undersigned greatly fears that it may be regarded as
something like an assumption of that responsibility which has been dep-
recated by Mr. Stevenson
" The undersigned renounces all pretension on the part of the British
government to visit and search American vessels in time of peace. Nor
is it as American that such vessels are ever visited ; but it has been the
invariable practice of the British navy, and, as the undersigned believes,
of all navies in the world, to ascertain by visit the real nationality of
merchant-vessels met with on the high seas, if there be good reason to
apprehend their illegal character
" The undersigned admits, that, if the British cruiser should possess a
knowledge of the American character of any vessel, his visitation of
such vessel would be entirely unjustifiable. He further admits, that so
much respect and honor are due to the American flag, that no vessel
bearing it ought to be visited by a British cruiser, except under the most
grave suspicions and well-founded doubts of the genuineness of its char-
acter.
"The undersigned, although with pain, must add, that if such visit
should lead to the proof of the American origin of the vessel, and that
she was avowedly engaged in the slave-trade, exhibiting to view the
manacles, fetters, and other usual implements of torture, or had even
376 LETTERS TO GENERAL CASS
a number of these unfortunate beings on board, no British officer could
interfere further. He might give information to the cruisers of the
United States, but it could not be in his own power to arrest or impedo
the prosecution of the voyage and the success of the undertaking.
" It is obvious, therefore, that the utmost caution is necessary in the
exercise of this right claimed by Great Britain. While we have re-
course to the necessary, and, indeed, the only means for detecting im-
posture, the practice will be carefully guarded and limited to cases of
strong suspicion. The undersigned begs to assure Mr. Stevenson that
the most precise and positive instructions have been issued to her Maj-
esty's officers on this subject.
Such are the words of the British claim or pretension ; and
it stood in this form at the delivery of the President's message
to Congress in December last ; a message in which you are
pleased to say that the British pretension was promptly met
and firmly resisted.
I may now proceed to a more particular examination of the
objections which you make to the treaty.
You observe that you think a just self-respect required of the
government of the United States to demand of Lord Ashbur-
ton a distinct renunciation of the British claim to search our
vessels previous to entering into any negotiation. The gov-
ernment has thought otherwise ; and this appears to be your
main objection to the treaty, if, indeed, it be not the only one
which is clearly and distinctly stated. The government of the
United States supposed that, in this respect, it stood in a posi-
tion in which it had no occasion to demand any thing, or ask
for any thing, of England. The British pretension, whatever
it was, or however extensive, was well known to the President
at the date of his message to Congress at the opening of the
last session. And I must be allowed to remind you how the
President treated this subject in that communication..
" However desirous the United States may be," said he, " for the
suppression of the slave-trade, they cannot consent to interpolations into
the maritime code at the mere will and pleasure of other governments.
We deny the right of any such interpolation to any one, or all the na-
tions of the earth, without our consent. We claim to have a voice in
ail amendments or alterations of that code ; and when we are given to
understand, as in this instance, by a foreign government, that its treaties
with other nations cannot be executed without the establishment and
enforcement of new principles of maritime police, to be applied without
ON THE TREATY OF WASHINGTON. 377
our consent, we must employ a language neither of equivocal import
nor susceptible of misconstruction. American citizens prosecuting a
lawful commerce in the African seas, under the flag of their country,
are not responsible for the abuse or unlawful use of that flag by others ;
nor can they rightfully, on account of any such alleged abuses, be in-
terrupted, molested, or detained while on the ocean ; and if thus mo-
lested and detained while pursuing honest voyages in the usual way,
and violating no law themselves, they are unquestionably entitled to in-
demnity. "
This declaration of the President stands : not a syllable of
it has been, or will be, retracted. The principles which it an-
nounces rest on their inherent justice and propriety, on their
conformity to public law, and, so far as we are concerned, on
the determination and ability of the country to maintain them.
To these principles the government is pledged, and that pledge
it will be at all times ready to redeem.
But what is your own language on this point? You say,
" This claim (the British claim), thus asserted and supported,
was promptly met and firmly repelled by the President in his
message at the commencement of the last session of Congress;
and in your letter to me approving the course I had adopted
in relation to the question of the ratification by France of the
quintuple treaty, you consider the principles of that message as
the established policy of the government." And you add, " So
far, our national dignity was uncompromitted." If this be so,
what is there which has since occurred to compromit this dig-
nity ? You shall yourself be judge of this ; because you say,
in a subsequent part of your letter, that " the mutual rights of
the parties are in this respect wholly untouched." If, then,
the British pretension had been promptly met and firmly re-
pelled by the President's message ; if, so far, our national dig-
nity had not been compromitted ; and if, as you further say, our
rights remain wholly untouched by any subsequent act or pro-
ceeding, what ground is there on which to found complaint
against the treaty?
But your sentiments on this point do not concur with the
opinions of your government. That government is of opinion
that the sentiments of the message, which you so highly ap-
prove, are reaffirmed and corroborated by the treaty, and the
correspondence accompanying it. The very object sought to
32*
378 LETTERS TO GENERAL CASS
be obtained, in proposing the mode adopted for abolishing tae
slave-trade, was to take away all pretence whatever for inter-
rupting lawful commerce by the visitation of American vessels.
Allow me to refer you, on this point, to the following passage
in the message of the President to the Senate, accompanying
the treaty : —
" In my message at the commencement of the present session of
Congress, I endeavored to state the principles which this government
supports respecting the right of search and the immunity of flags. De-
sirous of maintaining those principles fully, at the same time that ex-
isting obligations should be fulfilled, 1 have thought it most consistent
with the dignity and honor of the country that it should execute its own
laws and perform its own obligations by its own means and its own pow-
er. The examination or visitation of the merchant-vessels of one nation
by the cruisers of another, for any purposes except those known and ac-
knowledged by the law of nations, under whatever restraints or regula-
tions it may take place, may lead to dangerous results. It is far better
by other means to supersede any supposed necessity, or any motive, for
such examination or visit. Interference with a merchant-vessel by an
armed cruiser is always a delicate proceeding, apt to touch the point of
national honor, as well as to affect the interests of individuals. It has
been thought, therefore, expedient, not only in accordance with the stip-
ulations of the treaty of Ghent, but at the same time as removing all
pretext on the part of others for violating the immunities of the Ameri-
can flag upon the seas, as they exist and are defined by the law of
nations, to enter into the articles now submitted to the Senate.
" The treaty which I now submit to you proposes no alteration, miti-
gation, or modification of the rules of the law of nations. It provides
simply, that each of the two governments shall maintain on the coast of
Africa a sufficient squadron to enforce, separately and respectively, the
laws, rights, and obligations of the two countries for the suppression
of the slave-trade."
In the actual posture of things, the President thought that
the government of the United States, standing on its own rights
and its own solemn declarations, would only weaken its position
by making such a demand as appears to you to have been ex-
pedient. We maintain the public law of the world as we receive
it and understand it to be established. We defend our own
rights and our own honor, meeting all aggression at the boun-
dary. Here we may well stop.
You are pleased to observe, that " under the circumstances
ON THE TREATY OF WASHINGTON. 379
of the assertion of the British claim, in the correspondence of
the British secretaries, and of its denial by the President of the
United States, the eyes of Europe were upon these two great
naval powers ; one of which had advanced a pretension, and
avowed her determination to enforce it, which might at any
moment bring them into collision."
It is certainly true that the attention of Europe has been
very much awakened, of late years, to the general subject, and
quite alive, also, to whatever might take place in regard to it
between the United States and Great Britain. And it is highly
satisfactory to find, that, so far as we can learn, the opinion is
universal that the government of the United States has fully
sustained its rights and its dignity by the treaty which has been
concluded. Europe, we believe, is happy to see that a collision,
which might have disturbed the peace of the whole civilized
world, has been avoided in a manner which reconciles the per-
formance of a high national duty, and the fulfilment of positive
stipulations, with the perfect immunity of flags and the equality
of nations upon the ocean. I must be permitted to add, that,
from every agent of the government abroad who has been heard
from on the subject, with the single exception of your own let-
ter, (an exception most deeply regretted,) as well as from every
part of Europe where maritime rights have advocates and de-
fenders, we have received nothing but congratulation. And at
this moment, if the general sources of information may be
trusted, our example has recommended itself already to the
regard of states the most jealous of British ascendency at sea ;
and the treaty against which you remonstrate may soon come
to be esteemed by them as a fit model for imitation.
Toward the close of your despatch, you are pleased to say:
" By the recent treaty we are to keep a squadron upon the coast
of Africa. We have kept one there for years ; during the
whole term, indeed, of these efforts to put a stop to this most
iniquitous commerce. The effect of the treaty is, therefore, to
render it obligatory upon us, by a convention, to do what we
have long done voluntarily ; to place our municipal laws, in
some measure, beyond the reach of Congress." Should the
effect of the . treaty be to place our municipal laws, in some
measure, beyond the reach of Congress, it is sufficient to say
that all treaties containing obligations necessarily do this. Ail
380 LETTERS TO GENERAL CASS
treaties of commerce do it; and, indeed, there is hardly a treaty
existing, to which the United States are party, which does not,
to some extent, or in some way, restrain the legislative power.
Treaties could not be made without producing this effect.
But your remark would seem to imply, that, in your judg-
ment, there is something derogatory to the character and dig-
nity of the country in thus stipulating with a foreign power
for a concurrent effort to execute the laws of each. It would
be a sufficient refutation of this objection to say, that, if in this
arrangement there be any thing derogatory to the character and
dignity of one party, it must be equally derogatory, since the
stipulation is perfectly mutual, to the character and dignity of
both. But it is derogatory to the character and dignity of
neither. The objection seems to proceed still upon the implied
ground that the abolition of the slave-trade is more a duty of
Great Britain, or a more leading object with her, than it is or
should be with us ; as if, in this great effort of civilized nations
to do away the most cruel traffic that ever scourged or disgraced
the world, we had not as high and honorable, as just and mer-
ciful, a part to act, as any other nation upon the face of the
earth. Let it be for ever remembered, that in this great work of
humanity and justice the United States took the lead them-
selves. This government declared the slave-trade unlawful;
and in this declaration it has been followed by the great powers
of Europe. This government declared the slave-trade to be
piracy ; and in this, too, its example has been followed by other
states. This government, this young government, springing up
in this new world within half a century, founded on the broad-
est principles of civil liberty, and sustained by the moral sense
and intelligence of the people, has gone in advance of all other
nations in summoning the civilized world to a common effort
to put down and destroy a nefarious traffic reproachful to human
nature. It has not deemed, and it does not deem, that it suffers
any derogation from its character or its dignity, if, in seeking to
fulfil this sacred duty, it act, as far as necessary, on fair and
equal terms of concert with other powers having in view the
same praiseworthy object. Such were its sentiments when it
entered into the solemn stipulations of the treaty of Ghent;
such were its sentiments when it requested England to concur
with us in declaring the slave-trade to be piracy ; and such are
ON THE TREVTY OF WASHINGTON 381
the sentiments which it has manifested on all other proper oc«
casions.
In conclusion, I have to repeat the expression of the Presi-
dent's deep regret at the general tone and character of your
letter, and to assure you of the great happiness it would have
afforded him if, concurring with the judgment of the President
and Senate, concurring with what appears to be the general
sense of the country, concurring in all the manifestations of
enlightened public opinion in Europe, you had seen nothing
in the treaty of the 9th of August to which you could not give
your cordial approbation.
I have, &c.
Daniel Webster.
Lewis Cass, Esq., &c, &c, &c.
Mr. Webster to General Cass.
Department of State, Washington, December 20, 1842.
Sir, — Your letter of the 11th instant has been submitted to
the President. He directs me to say, in reply, that he continues
to regard your correspondence, of which this letter is part, as
being quite irregular from the beginning. You had asked leave
to retire from your mission ; the leave was granted by the Presi-
dent, with kind and friendly remarks upon the manner in which
you had discharged its duties. Having asked for this honorable
recall, which was promptly given, you afterward addressed to
this department your letter of the 3d of October, which, however
it may appear to you, the President cannot but consider as a
remonstrance, a protest, against the treaty of the 9th of August;
in other words, an attack upon his administration for the nego-
tiation and conclusion of that treaty. He certainly was not pre-
pared for this. It came upon him with no small surprise, and
he still feels that you must have been, at the moment, under the
influence of temporary impressions, which he cannot but hope
have ere now worn away.
A few remarks upon some of the points of your last letter
must now close the correspondence.
In the first place, you object to my having called your letter
of October 3d a " protest or remonstrance " against a transac-
tion of the government, and observe that you must have been
unhappy in the mode of expressing yourself, if you were liable
to this charge.
382 LETTERS TO GENERAL CASS
What other construction your letter will bear, I cannot per-
ceive. The transaction was finished. No letter or remarks of
yourself, or any one else, could undo it, if desirable. Your
opinions were unsolicited. If given as a citizen, then it was
altogether unusual to address them to this department in an
official despatch ; if as a public functionary, the whole subject-
matter was quite aside from the duties of your particular sta-
tion. In your letter you did not propose any thing to be done,
but objected to what had been done. You did not suggest any
method of remedying what you were pleased to consider a de-
fect, but stated what you thought to be reasons for fearing its
consequences. You declared that there had been, in your opin-
ion, an omission to assert American rights ; to which omission
you gave the department to understand that you would never
have consented.
In all this there is nothing but protest and remonstrance ; and,
though your letter be not formally entitled such, I cannot see
that it can be construed, in effect, as any thing else ; and I must
continue to think, therefore, that the terms used are entirely
applicable and proper.
In the next place, you say : " You give me to understand that
the communications which have passed between us on this sub-
ject are to be published, and submitted to the great tribunal of
public opinion."
It would have been better if you had quoted my remark with
entire correctness. What I said was, not that the communi-
cations which have passed between us are to be published, or
must be published, but that " it may become necessary hereafter
to publish your letter, in connection with other correspondence
of the mission ; and, although it is not to be presumed that you
looked to such publication, because such a presumption would
impute to you a claim to put forth your private opinions upon
the conduct of the President and Senate, in a transaction fin-
ished and concluded, through the imposing form of a public
despatch ; yet, if published, it cannot be foreseen how far Eng-
land might hereafter rely on your authority for a construction
favorable to her own pretensions, and inconsistent with the
interest and honor of the United States."
In another part of your letter you observe : " The publication
of my letter, which is to produce this result, is to be the act of
ON THE TREATY OF WASHINGTON. 383
the government, and not my act. But if the President should
think that the slightest injury to the public interest would en-
sue from the disclosure of my views, the letter may be buried
in the archives of the department, and thus forgotten and ren-
dered harmless."
To this I have to remark, in the first place, that instances have
occurred iri other times, not unknown to you, in which highly
important letters from ministers of the United States, in Eu-
rope, to their own government, have found their way into the
newspapers of Europe, when that government itself held it to
be inconsistent with the interest of the United States to make
such letters public.
But it is hardly worth while to pursue a topic like this.
You are pleased to ask : " Is it the duty of a diplomatic agent
to receive all the communications of his government, and to
carry into effect their instructions sub silentio, whatever may be
his own sentiments in relation to them; or is he not bound, as
a faithful representative, to communicate freely, but respectfully,
his own views, that these may be considered, and receive their
due weight, in that particular case, or in other circumstances
involving similar considerations? It seems to me that the bare
enunciation of the principle is all that is necessary for my justi-
fication. I am speaking now of the propriety of my action, not
of the manner in which it was performed. I may have exe-
cuted the task well or ill. I may have introduced topics unad-
visedly, and urged them indiscreetly. All this I leave without
remark. I am only endeavoring here to free myself from the
serious charge which you bring against me. If I have misap-
prehended the duties of an American diplomatic agent upon
this subject, I am well satisfied to have withdrawn, by a timely
resignation, from a position in which my own self-respect would
not permit me to remain. And I may express the conviction,
that there is no government, certainly none this side of Con-
stantinople, which would not encourage rather than rebuke the
free expression of the views of their representatives in foreign
countries."
I answer, certainly not. In the letter to which you were re-
plying it was fully stated, that, "in common with every other
citizen of the republic, you have an unquestionable right to
form opinions upon public transactions and the conduct of pub*
384 LETTERS TO GENERAL CASS
lie men. But it will hardly be thought to be among either the
duties or the privileges of a minister abroad to make formal re-
monstrances and protests against proceedings of the various
branches of the government at home, upon subjects in relation
to which he himself has not been charged with any duty, or
partaken any responsibility."
You have not been requested to bestow your approbation
upon the treaty, however gratifying it would have been to the
President to see that, in that respect, you united with other
distinguished public agents abroad. Like all citizens of the re-
public, you are quite at liberty to exercise your own judgment
upon that as upon other transactions. But neither your obser-
vations nor this concession cover the case. They do not show,
that, as a public minister abroad, it is a part of your official
functions, in a public despatch, to remonstrate against the con-
duct of the government at home in relation to a transaction in
which you bore no part, and for which you were in no way
answerable. The President and Senate must be permitted to
judge for themselves in a matter solely within their control.
Nor do I know that, in complaining of your protest against their
proceedings in a case of this kind, any thing has been done
to warrant, on your part, an invidious and unjust reference to
Constantinople. If you could show, by the general practice of
diplomatic functionaries in the civilized part of the world, and
more especially, if you could show by any precedent drawn
from the conduct of the many distinguished men who have rep-
resented the government of the United States abroad, that
your letter of the 3d of October was, in its general object, tone,
and character, within the usual limits of diplomatic correspond-
ence, you may be quite assured that the President would not
have recourse to the code of Turkey in order to find precedents
the other way.
You complain that, in the letter from this department of the
14th of November, a statement contained in yours of the 3d of
October is called a tissue of mistakes, and you attempt to show
the impropriety of this appellation. Let the point be distinctly
stated, and what you say in reply be then considered.
In your letter of October 3d you remark, that " England then
urged the United States to enter into a conventional arrange-
ment, by which we might be pledged to concur with her in
ON THE TREATY OF WASHINGTON. 385
measures for the suppression of the slave-trade. Until then,
we had executed our own laws in our own way ; but, yielding
to this application, and departing from our former principle of
avoiding European combinations upon subjects not American,
we stipulated in a solemn treaty that we would carry into effect
our own laws, and fixed the minimum force we would employ
for that purpose."
The letter of this department of the 14th of November, hav-
ing quoted this passage, proceeds to observe, that " the Presi-
dent cannot conceive how you should have been led to adven-
ture upon such a statement as this. It is but a tissue of mis-
takes. England did not urge the United States to enter into
this conventional arrangement. The United States yielded to
no application from England. The proposition for abolishing
the slave-trade, as it stands in the treaty, was an American
proposition ; it originated with the executive government of
the United States, which cheerfully assumes all its responsibil-
ity. It stands upon it as its own mode of fulfilling its duties
and accomplishing its objects. Nor have the United States de-
parted in the slightest degree from their former principles of
avoiding European combinations upon subjects not American ;
because the abolition of the African slave-trade is an American
subject as emphatically as it is a European subject, and, indeed,
more so, inasmuch as the government of the United States
took the first great step in declaring that trade unlawful, and in
attempting its extinction. The abolition of this traffic is an
object of the highest interest to the American people and the
American government ; and you seem strangely to have over-
looked altogether the important fact, that nearly thirty years
ago, by the treaty of Ghent, the United States bound them-
selves, by solemn compact with England, to continue their ef-
forts to promote its entire abolition ; both parties pledging them-
selves by that treaty to use their .best endeavors to accomplish
so desirable an object."
Now, in answer to this, you observe in your last letter: " That
the particular mode in which the governments should act in
concert, as finally arranged in the treaty, was suggested by
yourself, I never doubted. And if this is the construction I am
to give to your denial of my correctness, there is no difficulty
upon the subject. The question between us is untouched. All
vol. vr. 33
3Sb LETTERS TO GENERAL CASS
i said was, that England continued to prosecute the matter;
that she presented it for negotiation, and that we thereupon
consented to its introduction. And if Lord Ashburton did not
come out with instructions from his government to endeavor
to effect some arrangement upon this subject, the world has
strangely misunderstood one of the great objects of his mis-
sion, and I have misunderstood that paragraph in your first
note, where you say that Lord Ashburton comes with full pow-
ers to negotiate and settle all matters in discussion between
England and the United States. But the very fact of his com-
ing here, and of his acceding to any stipulations respecting the
slave-trade, is conclusive proof that his government were de-
sirous to obtain the cooperation of the United States. I had
supposed that our government would scarcely take the initiative
in this matter, and ii*#e it upon that of Great Britain, either in
Washington or in London. If it did so, I can only express my
regret, and confess th?t T have been led inadvertently into an
error."
It would appear from '-*1! this, that that which, in your first
letter, appeared as a direct rtatement of facts, of which you
would naturally be presunn d tr> have had knowledge, smks at
last into inferences and conje^/Hr^es. But, in attempting to es-
cape from s^me of the mistaken <>+ this tissue, you have fallen
into others. " All I said was," yrv observe, " that England con-
tinued to prosecute the matter ; tVt she presented it for nego-
tiation, and that we thereupon cor? *ptpd to its introduction."
Now the English minister no more ove*ented this subject for
negotiation than the government of the United States present
ed it. Nor can it be said that the UniHi States consented t>
its introduction in any other sense than it n?y be said that thr
British minister consented to it. Will you be good enough t(
review the series of your own assertions or +frs subject, ana*
see whether they can possibly be regarded m T^ly as a state
ment of your own inferences ? Your only authe*i+ic fact is a
general one, that the British minister came clothed with fulJ
power to negotiate and settle all matters in discussion, This
you say, is conclusive proof that his government wap desirous
to obtain the cooperation of the United States respect r% the
slave-trade; and then you infer that England continued to pros-
ecute t his matter, and presented it for negotiation, and that +b
ON THE TREATY OF WASHINGTON. 38:
United States consented to its introduction ; and give to this
inference the shape of a direct statement of a fact.
You might have made the same remarks, and with the same
propriety, in relation to the subject of the " Creole," that of
impressment, the extradition of fugitive criminals, or any thing
else embraced in the treaty or in the correspondence, and then
have converted these inferences of your own into so many facts.
And it is upon conjectures like these, it is upon such inferen-
ces of your own, that you make the direct and formal statement
in your letter of the 3d of October, that " England then urged
the United States to enter into a conventional arrangement, by
which we might be pledged to concur with her in measures for
the suppression of the slave-trade. Until then, we had exe-
cuted our own laws in our own way; but, yielding to this ap-
plication, and departing from our former principle of avoiding
European combinations upon subjects not American, we stipu-
lated in a solemn treaty that we would carry into effect our
own laws, and fixed the minimum force we would employ for
that purpose."
The President was well warranted, therefore, in requesting
your serious reconsideration and review of that statement.
Suppose your letter to go before the public unanswered and
uncontradicted ; suppose it to mingle itself with the general
political history of the country, as an official letter among the
archives of the Department of State, would not the general
mass of readers understand you as reciting facts, rather than
as drawing your own conclusions ? as stating history, rather
than as presenting an argument? It is of an incorrect narra-
tive that the President complains. It is that, in your hotel at
Paris, you should undertake to write a history of a very delicate
part of a negotiation carried on at Washington, with which you
had nothing to do, and of the history of which you had no
authentic information ; and» which history, as you narrate it
reflects not a little on the independence, wisdom, and public
spirit of the administration.
As of the history of this part of the negotiation you were not
well informed, the President cannot but think it would have
been more just in you to have refrained from any attempt to
give an account of it.
You observe, further : " I never mentioned in my despatch to
388 LETTERS TO GENERAL CASS
you, nor in any manner whatever, that our government had con*
ceded to that of England the right to search our ships. That
idea, however, pervades your letter, and is very apparent in that
part of it which brings to my observation the possible effect of
my views upon the English government. But in this you do
me, though I am sure unintentionally, great injustice. I re-
peatedly state that the recent treaty leaves the rights of the par-
ties as it found them. My difficulty is not that we have made
a positive concession, but that we have acted unadvisedly in not
making the abandonment of this pretension a previous condition
to any conventional arrangement upon the general subject."
On this part of your letter I must be allowed to make two
remarks.
The first is, inasmuch as the treaty gives no color or pretext
whatever to any right of searching our ships, a declaration
against such a right would have been no more suitable to this
treaty than a declaration against the right of sacking our towns
in time of peace, or any other outrage.
The rights of merchant-vessels of the United States on the
high seas, as understood by this government, have been clearly
and fully asserted. As asserted, they will be maintained ; nor
would a declaration such as you propose have increased either
its resolution or its ability in this respect. The government of
the United States relies on its own power, and on the effective
support of the people, to assert successfully all the rights of all
its citizens, on the sea as well as on the land ; and it asks re-
spect for these rights not as a boon or favor from any nation.
The President's message, most certainly, is a clear declaration
of what the country understands to be its rights, and his deter-
mination to maintain them, not a mere promise to negotiate for
these rights, or to endeavor to bring other powers into an ac-
knowledgment of them, either express or implied. Whereas, if
I understand the meaning of this part of your letter, you would
have advised that something should have been offered to Eng-
land which she might have regarded as a benefit, but coupled
with such a declaration or condition as that, if she received the.
boon, it would have been a recognition by her of a claim which
we make as matter of right. The President's view of the proper
duty of the government has certainly been quite different. Be-
ing convince? that the doctrine asserted by this government is
ON THE TREATY OF WASHINGTON. 389
the true doctrine of the law of nations, and feeling the compe-
tency of the government to uphold and enforce it for itself, he
has not sought, but, on the contrary, has sedulously avoided, to
change this ground, and to place the just rights of the country
upon the assent, express or implied, of any power whatever.
The government thought no skilfully extorted promises ne-
cessary in any such cases. It asks no such pledges of any na-
tion. If its character for ability and readiness to protect and
defend its own rights and dignity is not sufficient to preserve
them from violation, no interpolation of promise to respect
them, ingeniously woven into treaties, would be likely to afford
such protection. And, as our rights and liberties depend for
existence upon our power to maintain them, general and vague
protests are not likely to be more effectual than the Chinese
method of defending their towns, by painting grotesque and
hideous figures on the walls to fright away assailing foes.
My other remark on this portion of your letter is this :
Suppose a declaration to the effect that this treaty should
not be considered as sacrificing any American rights had been
appended, and the treaty, thus fortified, had been sent to Great
Britain, as you propose ; and suppose that that government,
with equal ingenuity, had appended an equivalent written dec-
laration that it should not be considered as sacrificing any Brit-
ish right, how much more defined would have been the rights
of either party, or how much clearer the meaning and interpre-
tation of the treaty, by these reservations on both sides? Or,
in other words, what is the value of a protest on one side, bal-
anced by an exactly equivalent protest on the other ?
No nation is presumed to sacrifice its rights, or give up what
justly belongs to it, unless it expressly stipulates that, for some
good reason or adequate consideration, it does make such relin-
quishment; and an unnecessary asseveration that it does not
intend to sacrifice just rights would seem only calculated to in-
vite aggression. Such proclamations would seem better devised
for concealing weakness and apprehension, than for manifest-
ing conscious strength and self-reliance, or for inspiring respect
in others.
Toward the end of your letter you are pleased to observe :
" The rejection of a treaty, duly negotiated, is a serious ques-
tion, to be avoided whenever it ran be without too great a oacri-
33*
?90 LETTERS TO GENERAL CASS.
fice. Though the national faith is not actually committed, still
it is more or less engaged. And there were peculiar circum-
stances, growing out of long-standing difficulties, which ren-
dered an amicable arrangement of the various matters in dispute
with England a subject of great national interest. But the
negotiation of a treaty is a far different subject. Topics are
omitted or introduced at the discretion of the negotiators, and
they are responsible, to use the language of an eminent and
able Senator, for 'what it contains and what it omits.' This
treaty, in my opinion, omits a most important and necessary
stipulation ; and therefore, as it seems to me, its negotiation, in
this particular, was unfortunate for the country."
The President directs me to say, in reply to this, that in the
treaty of Washington no topics were omitted, and no topics in-
troduced, at the mere discretion of the negotiator; that the
negotiation proceeded from step to step, and from day to day,
under his own immediate supervision and direction ; that he
himself takes the responsibility for what the treaty contains and
what it omits, and cheerfully leaves the merits of the whole to
the judgment of the country.
I now conclude this letter, and close this correspondence, b
repeating once more the expression of the President's reg
that you should have commenced it by your letter of the 3d of
October.
It is painful to him to have with you any cause of difference.
He has a just appreciation of your character and your public
services at home and abroad. He cannot but persuade himself
that you must be aware yourself, by this time, that your letter
of October was written under erroneous impressions, and that
there is no foundation for the opinions respecting the treaty
which it expresses ; and that it would have been far better on
all accounts if no such letter had been written.
I have, &c.
Daniel Webster.
Lewis Cass, Esq., Late Minister of the United States at Paris.
RELATIONS WITH SPAIN.
SCHOONER "AMISTAD."
The Chevalier d'Argaiz to Mr. Webster,
[translation.]
Washington, April 5, 1»41.
The Chevalier d'Argaiz had the honor to receive, with the
Secretary of State's note of the 3d instant, copies of two let-
ters received at his department relative to the slave Antonio.
They contain some inaccuracies, which will not, however, be
indicated, as they are of no importance.
The late Secretary of State, on learning the decision of the
District Court of Connecticut, informed the Chevalier d'Argaiz
that the slave Antonio was at his disposal, and the Chevalier
d'Argaiz, in consequence, determined to bring him to his own
house, until there should be a proper opportunity to send him
to Havana; and when about to carry this determination into
effect, Mr. Forsyth informed him that the District Attorney of
Connecticut had declared that it would be necessary for the
slave Antonio to remain in that State until the cause should
be brought by appeal before the Circuit Court, on account of
the great value of his evidence. To this the Chevalier d'Argaiz
assented, and since that time he has heard nothing of the said
negro.
Circumstances have, however, been entirely altered, by the
decision of the Supreme Court ; and, according to the informa-
tion received by the Chevalier d'Argaiz, it is very probable that
the negro will not reach Havana, if he should take upon him-
eelf the charge of sending him there. For which reason, he
392 RELATIONS WITH SPAIN
conceives that the government of the United States will be
better able to insure his arrival at that island, where the consul
of the Union may deliver him to his master.
The Chevalier d'Argaiz avails himself of this occasion to
repeat to the Secretary of State the assurances of his high con-
sideration.
Hon. Daniel Webster, Secretary of State.
The Chevalier d'Argaiz to Mr. Webster,
[translation.]
Washington, April 11, 1841.
Sir, — Her Majesty's vice-consul at Boston writes to me,
under the date of the 7th instant, as follows : —
" I have just received from the marshal of Connecticut a let-
ter, of which this is a literal translation. Since my last letter
to you, respecting the case of the negro Antonio, my conjectures
have been realized, though in a different manner. At that time
I supposed and feared that the self-styled friends of the Africans
would solicit a writ of habeas corpus for his liberation ; but they
adopted another method. The jailer allowed the boy to go
about the house, and assist in the labors of the kitchen and in
waiting at table. The said friends availed themselves of ev-
ery opportunity to preach to him about liberty, and at length
induced him to go away ; they placed him on board the steam-
boat on Monday morning last, and he went to New York. I
followed him to that city, where Lewis Tappan, the leader of
the Abolitionists, informed me that Antonio was in town, but
that he would not be delivered to me, and that arrangements
had been made for sending him elsewhere. I could not meet
him myself. I regret this occurrence very much, and fear that
he is beyond our reach. If, however, I should succeed in find-
ing him anywhere, you shall receive immediate notice."
By the letters from Mr. Baldwin, of the 21st of March last,
and from Mr. Andrew Judson, of the 26th of the same, which
you were pleased to send me with your note of April 3d, it
appeared that the negro Antonio persisted in desiring to return
to Havana ; from which it may be inferred that, in order to
make him change that determination, seduction or deception
must have been employed, perhaps by persons whom his dec*
SCHOONER "^.rllSTAD. 393
larations might have affected (comprometer) ; and I do not un-
derstand why the marshal of Connecticut, whom Lewis Tappan
informed that the said negro was in the city, did not take any
measures to engage the authorities of that place, either with
the view to recover him or to have him placed on board a vessel
for Havana.
In virtue of what is here stated, I have considered it my duty
tc make this communication to you, Sir, having no doubt that
you would take the necessary measures to have the slave Anto-
nio restored to his owner.
I repeat to you, Sir, the assurances of my distinguished con-
sideration.
P. A. d'Argaiz.
Hon. Daniel Webster, Secretary of State.
Mr. F. Webster to the Chevalier d'Argaiz.
Department of State, Washington, May 3, 1841.
Sir, — In the absence of the Secretary of State, I have the
honor of replying to your note of the 11th of April last, relating
to the negro Antonio. I have laid it before the President, and
am directed by him to say, that he regrets very much the occur-
rence of any event that seems at all likely to defer or delay the
final and satisfactory settlement of the affair of the " Amistad."
Inquiry will be immediately directed to be made by the prop-
er officers in order to discover the slave Antonio ; and I shall
have much pleasure in communicating to you the earliest infor-
mation received at the department of the success of such inves-
tigation.
I avail myself of this occasion to offer you the assurances of
my very high consideration.
Fletcher Webster, Acting Secretary of State.
Th* Chevalier d'ArgaIz.
The Chevalier d'Argaiz to Mr. Webster.
[translation.]
Washington, May 29, 1841
The undersigned, Envoy Extraordinary and Minister Pleni-
potentiary of her Catholic Majesty, has the honor, in compliance
with what was agreed on with the Secretary of State in theii
last conference, to make known to him the conviction of the
394 RELATIONS WITH SPAIN.
undersigned, that the sixth article, as also the eighth, ninth, and
tenth, of the treaty of 1795, have not been properly carried into
execution (or effect) in the affair of the schooner " Amistad," as
he conceives that he has proved in his correspondence. The
subjects of her Catholic Majesty have not received the assist-
ance expressed in those articles, nor have their properties been
respected, as is stipulated in the said articles ; and this must
have been understood by the Attorney- General, Mr. Grundy, aa
appears by the opinion which he gave in November, 1839.
The government of the Union gave to this affair a course
forced, illegal, and contrary to the intention of the contracting
parties.
The undersigned protested against it in due time, making the
government of the United States responsible for consequences.
Aware, however, of the embarrassed situation of the actual ad-
ministration, and that a change of circumstances has rendered
it impossible now to effect the fulfilment of that treaty, the un-
dersigned believes he ought to demand, as he now does, —
1. Indemnification for the vessel called the " Amistad."
2. Indemnification for her cargo, including the negroes found
on board.
3. Indemnification for the losses and injuries suffered by (oi
inflicted on) the Spanish subjects, Don Pedro Montes and Don
Jose Ruiz, during their unjust imprisonment.
4. The assurance that the course given to this affair shall
never serve as a precedent in analogous cases which may occur
The undersigned avails himself of this occasion to repeat to
the Secretary of State the assurances of his high consideration.
P. A. d'Arga'iz.
Hon. Daniel Webster.
Mr. Webster to the Chevalier d'Arg-aiz.
Department of State, Washington, September 1, 1841.
The undersigned has the honor to acknowledge the receipt
of the note of M. d'Arga'iz, Envoy Extraordinary and Minister
Plenipotentiary of her Catholic Majesty, of the 29th of May, in
which he makes known to the undersigned his conviction that
the sixth, eighth, ninth, and tenth articles of the treaty of 1795
between the two countries, have not been properly carried into
execution, in the affair of the " Amistad, ' as he conceives he
SCHOONER "AMISTAD." 395
has proved in his correspondence, and demands, 1st, indemni*
fication for the vessel called the " Amistad " ; 2d, indemnifica-
tion for the cargo, including the negroes found on board ; 3d,
indemnification for the losses and injuries suffered by (or inflict-
ed on) the Spanish subjects, Don Pedro Montes and Dor? Jose*
Ruiz during their unjust imprisonment ; and, 4th, the assurance
that the course given to this affair shall never sorve as a prece-
dent for any analogous cases that may occur.
This note has been laid before the President, and the under"
signed has been by him instructed to reply as follows.
The President had supposed, that, after the decision of the
Supreme Court of the United States upon this question, there
would have been no occasion to renew a correspondence upon
it between the two governments, and that M. d'Argai'z was
aware that the President had no power to review or alter any
of the judgments of that court, it being a tribunal wholly inde-
pendent of the executive, and one whose decisions must be re-
garded as final and conclusive upon all questions brought before
it. He had hoped, too, that its decree would have proved satis-
factory to M. d'Argaiz and the government of Spain, and that
the facts proved, and the arguments offered before it, together
with the able opinions delivered by its members in rendering the
decree, would have prevented all disagreement or dissatisfac-
tion with the result to which they arrived. The court was guid-
ed in its deliberations as well by the treaty between the two
countries as by the laws of nations and of the United States,
and it is not for the executive to question that its decree was in
exact conformity with the obligations imposed upon it by that
treaty and those laws.
No branch of the government of the United States, whether
legislative, executive, or judiciary, can have been influenced by
any other motives than those of a sincere desire to perform all
the duties, and fulfil all the requirements, exacted of either by
the terms of the treaty between this government and Spain, with
respect to her national character and sovereignty, and with a
view of preserving and strengthening the friendly relations
which have so long and so happily subsisted between them
and the undersigned hopes that M. d'Argai'z himself will event-
ually join in approbation of the course adopted, convinced, as
he must be, of the friendly disposition of all branches of this
government toward his own.
390 RELATIONS WITH SPAIN.
The articles to which M. d'Argaiz refers, as containing stipu-
lations which have not been carried into effect in the case of
the " Amistad," relate to the defence and protection of the per-
sons or property of the subjects or citizens of either country
which shall come within the jurisdiction of the other, by sea or
land.
Of those cited, the ninth article, which provides for the safe-
keeping and restoration of ships and merchandise rescued from
the hands of pirates and robbers, which it declares shall be re-
stored to their true proprietor, after due and sufficient proof
shall be made concerning the property thereof, seems the most
applicable to the case under consideration.
The undersigned, after a careful consideration of all the argu-
ments offered by M. d'Argaiz, and an examination of the facts
which have been made known, is unable to see in what parti-
cular this article, or any stipulation contained in it, has been
violated or disregarded, or that the course given to this affair
has been in any manner contrary to the spirit and intention of
any part of the treaty.
Upon the arrival of the schooner " Amistad " near our coast,
it was, with all its cargo, according to the provisions of the
ninth article, taken into the custody of the officers of the near-
est port.
In consequence of a claim preferred for salvage by those who
had s-aved both vessel and cargo, and rescued the subjects of
Spain from death, or perhaps imprisonment enduring for life
among the savage inhabitants of Africa, the subject of the own-
ership of the vessel and cargo was brought before the courts.
Before those courts also, the subjects of Spain submitted their
answer to these claims, and their complaints ; with how much
magnanimity refusing compliance with a just demand for ser-
vicers rendered them at such a time and in such a situation, the
undersigned will not undertake to say. Besides the common
articles of merchandise and traffic, there was found on board a
number of negroes, claimed as the lawful property of Spanish
subjects, and said to form part of the cargo ; and on these also,
as part of the cargo, salvage was claimed by those who had
saved them for their owners, if they had any, and their pre-
tended owners from them.
The whole subject, then, of the ownership of the vessel, and
SCHOONER "AMISTAD." 397
of all the cargo, came properly and legally before the courts,
who proceeded, as was their duty under the treaty, on the pre-
sentment of such a case, to investigate it carefully, deliberately,
and circumspectly.
Thus proceeding, the courts, upon the testimony before them,
decided; awarding the vessel to its lawful owner, and the cargo
to its respective lawful owners, and a certain amount of salvage
to those who had been instrumental in saving both. It was
found by the courts that the negroes were not the lawful prop-
erty of any one, and no part of the cargo, and consequently
subject to no claim for salvage ; but that they were freemen,
captured and sold, and held in bondage, contrary as well to the
laws of Spain as of the United States ; and the courts, in the
just exercise of their power, decided as they were bound to do
under existing laws and treaties, and upon the facts as they ap-
peared. M. d'Argaiz demands indemnification for the vessel
and cargo, including the negroes found on board. Were this
government conscious of having inflicted injury upon any,
whether a private individual or a powerful nation, indemnifica-
tion would be readily granted; but the question of the existence
of any such injury must be determined by the government it-
self. In this case, the undersigned is of opinion that no injury
has been done to any one of the subjects of Spain, but, on the
contrary, that the government has gone quite as far in granting
them protection, and manifesting a favorable disposition toward
them, as the circumstances under which they came within its
notice could demand of it.
What injury has been inflicted on the subjects of Spain,
owners of the vessel and cargo, by saving both from complete
destruction, or from entire loss to them, and returning both to
them when their legal claims were ascertained ? What injury
inflicted on those presenting claims to the negroes as slaves,
by refusing to allow those claims, proved to be unfounded,
and, by all provisions of the code of either country, illegal and
criminal? M. d'Argaiz will recollect, besides, that in his note
of the 26th of November, 1839, he demands these negroes,
not as property, but as criminals, or, in his own language,
"not as slaves, but as assassins." Had they been at any time
slaves, they would have become, by their killing and escape
from lawful bondage, assassins and pirates, whose delivery to
vol. vi. 34
398 RELATIONS WITH SPAIN.
the government of Spain is not provided for in any stipulation
of the treaty of 1795, and which would have been a matter
of comity only, not to be demanded as a right. The one point
involves the other, and a refusal to deliver them, certainly,
is no violation or neglect of any obligation. But the under-
signed does not propose to enter into any argument upon a
subject which has already been discussed at length, both be-
fore the courts and between the two governments. M. d'Ar-
gaiz demands, also, indemnification for injuries suffered by or
inflicted on the subjects of Spain, in the persons of Messrs.
Ruiz and Montes. For any such losses or injuries inflicted on
these persons by any one within the jurisdiction of the United
States, this government offers reparation and indemnification
through its courts, which stand open to hear their complaints,
to ascertain and repair their wrongs, and punish the wrong-
doers.
The undersigned, therefore, is instructed to say, that this
government does not perceive with what justice any such de-
mands as M. d'Argai'z has presented can be made on it, and
confidently expects that all will agree in justifying and approv-
ing the course which it has adopted in regard to the affair.
M. d'Ajgai'z demands, lastly, "the assurance that the course
given to this affair shall never serve as a precedent in any
analogous cases which may occur." While the undersigned
hopes that no misfortune of the kind will ever again take place
upon our coast or elsewhere, and that no circumstances may
ever again give rise to such occurrences as those which mark
the affair of the " Amistad " from the commencement of her
voyage, he assures M. d'Argai'z that the government of the
United States will endeavor to discharge itself of all obligations
imposed upon it with strict justice, honorably to itself, and re-
spectfully toward those nations with whom it maintains ami-
cable relations.
The undersigned avails himself of this occasion to offer to
M. d'Argai'z the assurance of his very high regard and distin-
guished consideration.
Daniel Webster.
The Chevalier d'ArgaTz, &c.
An answer to the foregoing letter was returned by the Spanish rain*
ister on the 24th of September, 1841. It is necessarily omitted in this
SCHOONER "AMISTAD." 399
place, for want of room. Its purport is sufficiently apparent from the
following reply by Mr. Webster.
Mr. Webster to the Chevalier cP Argaiz.
Department of State, Washington, June 21, 1842.
The Secretary of State has to acknowledge the receipt of
the note'of the 24th of September, which M. d' Argaiz did him
the honor to address to him.
Viewing that note as intended mainly for a protest against
the proceedings of this government in the case of the " Amis-
tad," the undersigned did not think a reply was desired, or that
any advantage would ensue from further prolonging the discus-
sion.
Understanding now, from conversation with M. d' Argaiz, that
a reply is expected, the undersigned proceeds to offer some re-
marks on the subject of M. d'Argai'z's note.
The undersigned did certainly suppose that the communica-
tion to M. d' Argaiz of the decision of the Supreme Court would
close the correspondence on that subject. The immediate pre-
decessor of the undersigned, whose remarks, as quoted by M.
d'ArgaVz, the undersigned well remembers, meant, and could
have meant, nothing more, by those remarks, than that the decis-
ion of the Supreme Court would be the decision of the govern
ment. Mr. Forsyth does not use the word executive in this
connection. He says "government." "Whatever be, in the
end, the disposal of the question, it will be in consequence of
a decision emanating from no other source than the govern-
ment of the United States."
The Supreme Court is a part of that government, as Mr.
Forsyth remarks ; and its decision, in matters lawfully within
its jurisdiction, is the final decision of the government of the
United States upon such matters.
M. d' Argaiz seems to think that a treaty stipulation cannot
be subjected to the interpretation of the judicial authority, and
proceeds to remark, that, " if the courts of the Union possess the
right of interpreting, considering, and deciding upon treaties
contracted between nation and nation, and the executive power
cannot inquire whether their decrees are or are not conforma-
ble with justice, it would be as well to declare, that, in order to
give to treaties the force of treaties, or, at least, to render them
400 RELATIONS WITH SPAIN.
obligatory, they should be concluded with the judicial power, or,
in better words, that treaties should be made, for them to be
afterward interpreted as the courts might think proper." But
the undersigned supposes that nothing is more common, in
countries where the judiciary is an independent branch of the
government, than for questions arising under treaties to be sub-
mitted to its decision. Indeed, in all regular governments, ques-
tions of private right, arising under treaty stipulations, are in
their nature judicial questions. With us, a treaty is part of the
supreme law of the land ; as such, it influences and controls the
decisions of all tribunals; and many instances might be quoted
of decisions made in the Supreme Court of the United States,
arising under their several treaties with Spain herself, as well
as under treaties between the United States and other nations.
Similar instances of judicial decisions on points arising under
treaties may be found in the history of France, England, and
other nations ; and, indeed, the undersigned would take the
liberty to remind the Chevalier d'Argaiz, that this very treaty of
1795 has been made the subject of judicial decision by a Span-
ish tribunal.
The undersigned would call to the recollection of the Cheva-
lier d'Argaiz the case of Mr. D. Hareng, in which the Spanish
colonial courts decided according to their sense of the intention
of the treaty of 1795, and the intendant confirmed their decree,
which was, that nothing in that treaty exempted Mr. Hareng
from the payment of certain demands. From this decision this
government was inclined to dissent, but never questioned the
right and duty of a Spanish court to consider the intent and ef-
fect of a treaty.
M. d'Argaiz states: "The enlightened Secretary of State
will agree with the undersigned, that one of the things which
principally constitute the independence of a country is the juris-
diction of its courts, or, in other words, that no nation, nor its
courts, should assume the faculty of pronouncing judicially up-
on acts committed within the jurisdiction of another. On this
principle, the undersigned cannot conceive how the Secretary
of State could for a single moment have supposed that the un-
dersigned would have agreed to, and have seen with satisfac-
tion, the decision of a court of the United States, pronounced
upon acts appertaining to Spanish subjects, committed on board
SCHOONER "AMISTAD." 40j
of a Spanish vessel, and in the waters of a Spanish territory,
within the purview of a treaty and of the law of nations.
" The Secretary of State is also pleased to observe, ' that the
schooner " Amistad," upon her arrival on this coast, was, with
all her cargo, according to the provisions of the ninth article,
taken into the custody of the officers of the nearest port, and
that, in consequence of a claim for salvage, the subject of the
ownership of the vessel and cargo was brought before the
courts.' The undersigned will not stop to remark upon the
magnanimity of a demand for salvage preferred by officers of a
ship of war of the United States. But does the Secretary of
State believe that this can justify the intervention of the courts
of the United States in this case, contrary to the opinion given
by the Attorney-General, Mr. Grundy, and after, moreover, the
officers themselves had renounced their claim to salvage, as
Lieutenant Gedney, the commander of the Washington, him-
self declared to the undersigned ? The Secretary of State also
says, ' that it was found by the courts that the negroes were not
the lawful property of any one.' One violation of necessity
brought on another, not less unjust; for the judges of the United
States, in order to ascertain whether or not the Africans were
the lawful property of Spanish subjects, thought proper to ex-
amine the papers found on board of the vessel, which had been
given by the authorities of her Catholic Majesty in the island
of Cuba. This was a recognition of the right of search, which,
besides its not being authorized by any nation, has been com-
bated by writers on public law, and most particularly, in the
case in question, by the distinguished jurist, Mr. Grundy, At-
torney-General of the Union, at the time when the schooner
1 Amistad ' arrived on the Anglo-American coasts. (See his
opinion on the case.)"
The undersigned will make one more attempt to state the
general occurrences of this transaction so plainly that he can-
not be misunderstood, with a hope of convincing M. d'Argai'z
that nothing has been done by the authorities of the United
States, or any of them, not in strict accordance with the princi-
ples of public law and the practice of nations ; nothing which
can be complained of with justice as an encroachment upon
Spanish territories, or as visiting and searching Spanish vessels.
The succinct history of the case is the most complete justifica-
34*
402 RELATIONS WITH SPAIN.
rion which can be made of all that has been done in regard to
it in the United States.
Lieutenant Gedney, of the United States brig Washington,
on the 27th of June, 1839, discovered the Spanish schooner
" Amistad," then at anchor within half a mile of the shore of
the United States. The vessel was then in possession of cer-
tain blacks, who had risen upon and killed the captain. Lieu-
tenant Gedney took possession of and brought in the ves-
sel to the United States, and for this service claimed salvage
upon the common principles of maritime law. The possession
of the vessel had become already lost to her owners ; and to
save her from entire destruction, and to restore her to those
owners, was esteemed a meritorious service. The Chevalier
d'Arga'iz must certainly understand, that when merchant-vessels
are met with at sea so shattered by storms and tempests, or
other disasters, or so deprived of their crew, as to be unable to
prosecute their voyages, in all such cases other vessels falling in
with them and saving them are entitled to reasonable compen-
sation; and, to ascertain the amount of this compensation, the
vessel is to be brought in, subjected to judicial proceedings, and
justice rendered the claimants and salvors, according to well-
established rules and principles.
Spain herself, in the eariy ages of commerce, was among the
first to establish the principles, and lead in the administration,
of this part of the maritime law, and these principles now prevail
over the whole commercial world ; and the highest judicial au-
thority in the United States, acting under the influence of the
same rules which must have controlled the decisions of an Eng-
lish tribunal, a French tribunal, or a Spanish tribunal, has de-
cided that the case was a case for salvage, and has decreed to
the salvors a just compensation. The undersigned is, therefore,
quite at a loss to conceive how this transaction can be deemed
an encroachment upon the jurisdiction of Spain, or an unlawful
visitation and search of Spanish vessels. At the institution of
proceedings in the court, claims were interposed on behalf of
Spanish subjects for the vessel and cargo, which were allowed,
subject to salvage.
Claims were also interposed for the negroes found on board,
who were claimed as slaves, and the property of Spanish sub-
jects. On the other hand, the negroes denied that they were
SCHOONER "AMISTAD." 403
slaves, and the property of Spanish subjects or any other per-
sons. It was impossible for the courts to avoid the decision
of the questions thus brought before thern ; and, in deciding
them, it was bound to regard the law of nations, the laws of
Spain, the treaty between Spain and the United States, the
laws of the United States, and the evidence produced in the case.
Proceeding upon these grounds, after a very patient investi-
gation, and the hearing of elaborate arguments, the court de-
cided that the negroes found on board the " Amistad," with one
exception, were not slaves, nor the property of any body, but
were free persons, and therefore decreed that they should be set
at liberty. All this appears to the undersigned to be in the
common course of such affairs. The questions in which Span-
ish subjects were interested have been heard and tried before
competent tribunals, and one of them has been decided against
the Spanish subjects ; but this can give no possible ground of
complaint on the part of Spain, unless Spain can show that the
tribunal has acted corruptly, or has decided wrong in a case in
no degree doubtful. Nations are bound to maintain respect-
able tribunals, to which the subjects of states at peace may
have recourse for the redress of injuries and the maintenance of
their rights. If the character of these tribunals be respectable,
impartial, and independent, their decisions are to be regarded as
conclusive.
The United States have carried the principle of acquiescence,
in such cases, as far as any nation upon earth, and in respect
to the decisions of Spanish tribunals quite as frequently, per-
haps, as in respect to trie tribunals of any other nation.
In almost innumerable cases of reclamations sought by citi-
zens of the United States against Spain for alleged captures,
seizures, and other wrongs committed by Spanish subjects, the
answer has been, that the question has been fairly tried before
an impartial Spanish tribunal, having competent jurisdiction,
and decided against the claimant ; and in the sufficiency of thia
answer the government of the United States has acquiesced.
If the tribunal be competent, if it be free from unjust in-
fluence, if it be impartial and independent, and if it have heard
the case fully and fairly, its judgment is to stand as decisive of
the matter before it. This principle governs in regard to the
decisions of courts of common law, courts of equity, and es-
404 RELATIONS WITH SPAIN.
pecially courts of admiralty, where proceedings so often affect
the rights and interests of citizens of foreign states and govern-
ments.
M. d'Argaiz complains that the vessel and cargo were sold,
and that loss thereby happened to the owners. But all this
was inevitable, and no blame attaches on account of it to the
tribunal. In cases of an allowance for salvage, if the owner be
not present and ready to pay the amount, the property must
necessarily be sold, that the proceeds be properly apportioned
between owner and salvor. This is a daily occurrence in every
court of admiralty in the world. Sufficient notice of the in-
tended sale was given in legal form, in order that the claimants
might be present, or might, if they pleased, prevent it, by paying
the amount awarded for salvage, and receive their property.
The Chevalier d'Argaiz complains that Messrs. Montes and
Ruiz suffered an unjust imprisonment in the United States,
The undersigned cannot but think that such an allegation of
injury, put forth in behalf of Messrs. Montes and Ruiz, is not
a little extraordinary. These persons themselves had held in
unjust and cruel confinement certain negroes who, it appeared
on trial, were as free as themselves, and these negroes, finding
themselves within the protection of equal laws, sought redress,
by a regular appeal to those laws, for the injuries which they
had suffered. The pursuit of this redress by the injured parties,
it appears, subjected Messrs. Ruiz and Montes to a temporary
imprisonment. In the judgment of enlightened men, they will
probably be thought to have been very fortunate in escaping
severer consequences.
M. d'Argai'z's note contains a paragraph of the following
tenor : " The undersigned cannot in any way admit the sup-
position advanced by the Secretary of State, that, ' even had
the negroes been at any time slaves, they would have become,
by their killing and escape from lawful bondage, assassins and
pirates, whose delivery to the government of Spain, not having
been provided for in any stipulations of the treaty of 1795,
would have been a matter of comity only, not to be demand-
ed as a right.' The treaty of 1795, unquestionably, does not
provide for the delivery of pirates or assassins, but only be-
cause the contracting parties could never have imagined that
a case like the present could have occasioned doubts of any
SCHOONER "AMISTAD." 405
kind, and because the point was so clear that they did not
think it necessary to take it into consideration. Who can
foresee the horrible consequences which may result, as well in
the islands of Cuba and Porto Rico as in the Southern States
of the Union, should the slaves come to learn, and there will
be no want of persons to inform them, that, on murdering, kill-
ing, and flying from lawful captivity whensoever they may be
in transportation from one point of the islands to another, and
coming to the United States, the delivery of them, on account
of their having murdered, killed, or fled, cannot be demanded
as a right? The undersigned leaves to the characteristic
penetration of the Secretary of State [the task of imagining]
the severe, incalculable evils which may be occasioned by real-
izing this supposition."
The undersigned must beg leave to differ entirely from M.
d'Arga'iz in regard to the rule of law for delivering up crim-
inals and fugitives from justice. Although such extradition
is sometimes made, yet, in the absence of treaty stipulations,
it is always matter of comity or courtesy. No government is
understood to be bound by the positive law of nations to de-
liver up criminals, fugitives from justice, who have sought an
asylum within its limits. The government of the United
States has had occasion to hold intercourse on this question
with England, France, Russia, Denmark, and Sweden ; and
it understands it to be the sentiment of all these governments,
as well as the judgment of standard writers on public law,
that, in the absence of provisions by treaty, the extradition of
fugitive offenders is a matter resting in the option and discre-
tion of every government.
The undersigned has thus once more gone over the cir-
cumstances of this case, and stated the view which the gov-
ernment of the United States has of it. He sincerely and
confidently hopes that the Chevalier d'Arga'iz will perceive
that this government has violated none of its obligations to
Spain, and done no injustice, in any manner whatever, to any
Spanish subject.
The undersigned avails himself of this occasion to renew to
the Chevalier d'Argaiz assurances of his high consideration.
Daniel Webster.
The Coevaties d'Argatz, &c.
SOUND DUES AT ELSINORE, AND THE GER-
MAN ZOLL-VEREIN.
Mr. Webster to the President of the United States.
Department of State, Washington, May 24, 1841.
Sir, — There are two subjects connected with the foreign
commerce of the United States to which the Secretary of State
considers it to be his duty to call the attention of the President
at the earliest opportunity.
The first is, the collection of Sound dues, or the tax payable
at Elsinore, laid by the Danish government upon the cargoes
of vessels passing through the Sound, into and out from the
Baltic Sea.
The right of Denmark to levy these dues is asserted on the
ground of ancient usage, coming down from the period when
that power had possession of both shores of the Belt and Sound.
However questionable the right, or uncertain its origin, it has
been recognized by European governments in several treaties
with Denmark, some of them entered into at as early a period
as the fourteenth century ; and inasmuch as our treaty with that
power contains a clause putting us on the same footing, in this
respect, as other the most favored nations, it has been acqui-
esced in, or, rather, has not been denied, by us.
The treaty of 1645, between Denmark and Holland, to which
a tariff of the principal articles then known in commerce, with
a rule of measurement and a fixed rate of duty, was appended,
together with the subsequent one between the same parties in
1701, amendatory and explanatory of the former, has been gen-
erally considered as the basis of all subsequent treaties, and
among them of our own, concluded in 1826, and limited to con-
tinue ten y^ars from its date, and further until the end of one
SOUND DUES AT ELSINORE; 407
year after notice by either party of an intention to terminate
it, and which is still in force.
Treaties have also been concluded with Denmark by Great
Britain, France, Spain, Portugal, Russia, Prussia, and Brazil,
by which, with one or two exceptions in their favor, they are
placed on the same footing as the United States.
There has recently been a general movement, on the part of
the Northern powers of Europe, with regard to the subject of
these Sound dues, which seems to afford to this government a
favorable opportunity, in conjunction with them, for exert" ng
itself to obtain some such alteration or modification of existing
regulations as shall conduce to the freedom and extension of
our commerce, or, at least, toward relieving it from some of the
burdens now imposed, which, owing to the nature of our trade,
operate, in many instances, very unequally and unjustly on it
in comparison with that of other nations.
The ancient tariff of 1645, by which the payment of these
dues was regulated, has never been revised, and by means of
the various changes which have taken place in commerce since
that period, and of the alteration in price in many articles there-
in included, chiefly in consequence of the settlement of America,
and the introduction of her products into general commerce, it
has become quite inapplicable.
It is presumed to have been the intention of the framers
of that tariff to fix a duty of about one per cent, ad valorem
upon the articles therein enumerated ; but the change in value
of many of those commodities, and the absence of any corre-
sponding change in the duty, has, in many instances, increased
the ad valorem from one per cent, to three, four, and even
seven ; and this generally upon those articles which form the
chief exports of the United States, of South America, and the
West India Islands : such as the articles of cotton, rice, raw
sugar, tobacco, rum, Campeachy wood, &c.
On all articles not enumerated in this ancient tariff it is stip-
ulated, by the treaty of 1701, that the " privileged nations," or
those who have treaties with Denmark, shall pay an ad valorem
of one per cent. ; but the value of these articles being fixed by
some rules known only to the Danish government, or at least
unknown to us, this duty appears uncertain and fluctuating,
and its estimate is very much left to the arbitrary discretion of
the custom-house officers at Elsinore.
408 SOUND DUES AT ELSINORE.
It has been contended b\ some of the public writers ih Den-
mark, that goods of privileged nations, carried in the vessels
of unprivileged nations, should not be entitled to the limitation
of one per cent, ad valorem, but should be taxed one and a
quarter per cent., the amount levied on the goods of unpriv-
ileged nations ; and also, that this limitation should be con-
fined to the direct trade; so that vessels coming from or bound
to the ports of a nation not in treaty with Denmark should pay
on their cargoes the additional quarter per cent.
These questions, although the former is not of so much con-
sequence to us, who are our own carriers, are still, in connection
with each other, of sufficient importance to render a decision
upon them, and a final understanding, extremely desirable.
These Sound dues are, moreover, in addition to the port
charges of light money, pass money, &c, which are quite equal
to the rates charged at other places, and the payment of which,
together with the Sound dues, often causes to vessels consider-
able delay at Elsinore.
The port charges, which are usual among all nations to whose
ports vessels resort, are unobjectionable, except that, in this case,
they are mere consequences of the imposition of the Sound
dues, following necessarily upon the compulsory delay at Elsi-
nore of vessels bound up and down the Sound with cargoes,
with no intention of making any importation into any port of
Denmark, and having no other occasion for delay at Elsinore
than that which arises from the necessity of paying the Sound
dues, and, in so doing, involuntarily subjecting themselves to
these other demands.
These port duties would appear to have some reason in them,
because of the equivalent ; while, in fact, they are made requi-
site, with the exception, perhaps, of the expense of lights, by
the delay necessary for the payment of the Sound dues.
The amount of our commerce with Denmark, direct, is incon-
siderable, compared with that of our transactions with Russia,
Sweden, and the ports of Prussia and the Germanic Associa-
tion on the Baltic ; but the sum annually paid to that govern-
ment in Sound dues, and the consequent port charges, by our
vessels alone, is estimated at something over one hundred thou-
sand dollars.
The greater proportion of this amount is paid by the articles
THE GERMAN ZOLL-VEREIN. 409
of cotton, sugar, tobacco, and rice ; the first and last of these
paying a duty of about three per cent, ad valorem^ reckoning
their value at the places whence they come.
By a list published at Elsinore in 1840, it appears that be-
tween April and November of that year seventy-two American
vessels, comparatively a small number, lowered their topsails
before the Castle of Cronberg. These were all bound up the
Sound to ports on the Baltic, with cargoes composed, in part,
of the above-named products, upon which alone, according to
the tariff', was paid a sum exceeding forty thousand dollars for
these dues.
Having disposed of these cargoes, they returned laden with
the usual productions of the countries on the Baltic, on which,
in like manner, were paid duties on going out through the
Sound, again acknowledging the tribute by an inconvenient
and sometimes hazardous ceremony.
The whole amount thus paid within a period of eight months
on inward and outward bound cargoes, by vessels of the United
States, none of which were bound for, or intended to stop at,
any port in Denmark, except compulsorily at Elsinore, for the
purpose of complying with these exactions, must have exceeded
the large sum above named.
I have, therefore, thought proper to bring this subject before
you at this time, and to go into these general statements in re-
lation to it, which might be carried more into detail, and sub-
stantiated by documents now in the department, to the end
that, if you should deem it expedient, instructions may be given
to the representative of the United States at Denmark, to enter
into friendly negotiations with that government, with a view
of securing to the commerce of the United States a full par-
ticipation in any reduction of these duties, or the benefits re-
sulting from any new arrangements respecting them, which
may be granted to the commerce of other states.
The other subject which, in the opinion 'of the Secretary, de-
mands the early consideration of the government, is the Ger-
manic Association, or Customs Union, established in Germany,
and now in successful operation under the leading auspices of
the government of Prussia. This important association has
for its objects the union of many of the German states into one
vol. vi. 35
410 THE GERMAN ZOLL-VEREIN.
body, for the purpose of establishing uniform regulations of
commerce ; uniform duties of importation, exportation, and
transit; a system of uniform weights and measures, and a uni-
form coinage, throughout all the members of the association ;
objects resembling, as will be perceived, important purposes
contemplated by the establishment of the general government
of the United States.
In all the states of the association the greatest variety and
diversity had previously existed. Each had its own circle of
custom-houses and its. peculiar system of duties, constituting
them in these respects foreign countries to one another. The
effect of these diversities upon trade and manufactures may
easily be supposed to have been highly prejudicial to the gen-
eral commerce of the country.
To Prussia, who had labored for years to bring about this
commercial revolution in Germany, chiefly belongs the credit
of its accomplishment. She has united the members of the
confederation in a treaty which establishes one tariff for all,
the duties to be collected on the frontiers of what now forms
one great commercial league. The net revenues arising from
the duties are divided among the several states in proportion to
their respective amounts of population, every article, salt and
playing-cards excepted, having once paid the duties on the fron-
tier, being permitted to circulate freely among all the states of
the union without any additional impost.
The treaty was concluded in 1834, and was to continue in
force until the 1st of January, 1842 ; and if during that term,
and at latest two years before its expiration, the contrary should
not be declared, for twelve years more ; and afterward, from
twelve years to twelve years. It has recently, under these pro-
visions, been renewed for another term of twelve years. The
effect of this confederation has probably been to give to Prussia
and Germany a new weight in the political balance of Europe ;
but it is principally interesting to the United States in its com-
mercial tendencies, and in the hopes which it encourages of
lurnishing an enlarged consumption of some of the staple arti-
cles of our production, such as cotton, tobacco, and rice.
The German Commercial and Customs Association comprises
an ample territory, abounding in wealth, industry, population,
and resources of every description. The states included in it
are, —
THE GERMAN ZOLL-VEREIN.
411
The kingdom of Prussia, whose population is
The kingdom of Bavaria,
The kingdom of Wurtemberg,
The kingdom of Saxony,
The Grand Duchy of Baden,
The Electorate of Hesse,
The Grand Duchy of Hesse (with Homburg),
The Duchy of Nassau, ....
The Thuringian Union, ....
The free city of Frankfort on the Maine,
Total,
14,271,530
4,315,469
1,649,839
1,652,114
1,277,403
704,700
807,671
386,221
908,478
54,000
26,027,425
an inclination
ich she is now
It is understood that Brunswick has exhibited
to separate from the Northwestern Union, of wh
a member, and to join the association ; and the accession of
the Grand Duchy of Luxemburg is likely soon to swell still
higher the total population of the states thus united, which con-
stitutes already the most industrious, enlightened, and prosper-
ous people of Germany.
Three of the German states have not yet acceded to the
association, but have formed a separate Commercial and Cus-
toms Union, viz. : —
The kingdom of Hanover, whose population is
The Grand Duchy of Oldenburg,
The Duchy of Brunswick, ....
Total, .
1,772,107
266,536
251,000
2,289,643
And a few of the states of Germany have neither acceded
to the association, nor formed any special union among them-
selves ; these are, —
The Duchies of Holstein and Lauenburg (belonging to the
king of Denmark), whose population is ... 471,276
The Grand Duchy of Mecklenburg-Schwerin, . . . 482,925
The Grand Duchy of Mecklenburg-Strelitz, .... 89,528
The Hanseatic cities of Lubeck, Hamburg, and Bremen, . 245,500
Total, 1,289,229
In the accomplishment of her great political object, Prussia
has been compelled to make considerable pecuniary sacrifices,
her -revenues from the customs being less than before the for-
mation of the association ; though this falling off has been grad-
412 THE GERMAN ZOLL-VEREIN.
ually lessening, owing to the increased population and pros-
perity of the kingdom. The attempts made to adjust and com-
pensate this loss have not been successful; but it is believed
that the difficulty will be removed by allowing Prussia to levy,
for her own exclusive benefit, the transit duties on cotton and
other commodities, without any material change in the general
system.
The net revenues of the association have increased from
about twelve million thalers, collected in 1834, the year of its
first establishment, to upward of twenty million, the present
amount, exclusive of the expense of collection, amounting to
twelve and a half per cent. ; a prodigious increase, and mainly
owing to the rapidly increasing prosperity, and consequently
augmented consumption, of the German states associated in the
league.
With Hanover, the United States have recently concluded a
treaty of commerce and navigation, through the agency of Mr.
Wheaton, Minister of the United States at Berlin, which has
been ratified. This treaty differs from our commercial treaties
with Prussia, the Hanseatic towns, and Denmark, by confining
the indirect trade to the productions of the kingdom of Hano-
ver, and of any other country of the confederation, on the one
side ; and, on the other, to the productions of the United States,
and of the North and South American continent and West
India Islands. It gives us the right of carrying to Hanover in
our vessels the productions of the United States, and of the
North and South American continent and islands, in exchange
for their right of bringing in Hanoverian vessels to the United
States the productions of Hanover and the countries compos-
ing the confederation, and may be regarded as favorable to our
navigation.
Several states of the league have manifested a disposition to
form treaties with the United States upon a similar basis ; but
it is not intended, on this occasion, to express any opinion upon
the policy of establishing the principle of entire reciprocity in
commercial treaties with the minor states of Europe.
One of the advantages already acquired by the negotiations
of our minister at Berlin is a considerable reduction of the
duties on rice, which, uader a resolution of the House of Rep-
resentatives of the 11th of June, 1838, he was instructed to en-
THE GERMAN Z0LL-VERE1N. 413
ileavor to procure. This important object has been gained, and
the consequences, as foreseen, were immediately beneficial to
all parties. A great increase in the importation of Carolina
rice, which took place as soon as the reduction of duty on the
article became known, was followed by a correspondent increase
of revenue drawn from its increased consumption in Germany.
The success of this experiment encourages the belief that a like
course in respect to other important staples would be followed
by similar results.
The tobacco duties, however, serving as they do the twofold
purpose of raising revenue and of protecting the culture of the
tobacco of native growth in Germany, still find formidable ob-
stacles in the way of their removal or modification. The state
of the negotiations on this subject, up to the session of 1839 and
1840, is sufficiently explained in the correspondence transmitted
to the House of Representatives with the President's message
of the 14th of April, 1840.
Several of the states of the Germanic Association have no
natural outlet to the sea. Their commerce, therefore, is carried
on through rivers, the mouths of which open to the ocean in the
territories of other powers. This shows the importance of the
union to all the states composing it; but as the union itself is
not a government, commercial stipulations and conventions
must be made with the states of the union in their political ca-
pacities. By a paper annexed, marked A,* it will appear that,
in March last, Great Britain entered into a convention of com-
merce and navigation with Prussia, Bavaria, Saxony, Wiirtem-
berg, Baden, the Electorate of Hesse, the Grand Duchy of
Hesse, the states forming the customs and commercial union of
Thuringia, Nassau, and Frankfort; and similar arrangements
with these states might probably be accomplished by the gov-
ernment of the United States.
Such being the general nature of the association, and such
our commercial intercourse with it, it becomes matter of inter-
est to consider how far our relations with its several members
might be beneficially extended ; and if it be thought advisable
to enter into commercial treaties with them, or any of them, it
* This convention, and the declaration afterwards alluded to, are omitted
as not being necessary to the understanding of Mr. Webster's report to the
President.
35*
414 THE GERMAN ZOLL-VEREIN.
will remain to be determined whether powers for such a purpose
should be conferred upon the Minister of the United States at
Berlin, or some other diplomatic agency adopted ; the general
object being to seek the means of enlarging the consumption of
the staples of the United States in Germany, and of securing
all practicable benefit to their navigation.
There is another part of the subject of our connection with
Germany, which, though of less consequence than those that
have been pointed out, is, nevertheless, one which deeply con-
cerns the numerous German emigrants who are constantly sell-
ing their property to proceed to the United States, as well as
our naturalized citizens, natives of Germany, inheriting prop-
erty in that country. Throughout Germany the droit tPaubaine
and the droit de detraction exist in the shape of a tax, payable
on the withdrawal from the country of personal property which
has been inherited by will or succession, or which forms the
proceeds of real property inherited in the same manner. In the
United States, as all know, no such tax exists.
It is probable that an exemption from this tax might be ob-
tained on the ground of reciprocity. Some of the states have
intimated their willingness to enter into arrangements for that
purpose. If there should be thought to be no other reason for
a formal convention, this particular object might be effected by
a simple official declaration, signed by the Secretary of State,
under the seal of the department, certifying that the subjects
and citizens of Germany enjoy this immunity in the United
States ; upon which there is reason to believe that an alteration
in their own laws would be made by the states, or some of
them, so as to make the right reciprocal. The form of a decla-
ration, such as is stated above, has been adopted by the Eng-
lish government, as may be seen by a paper hereunto annexed,
marked B.
All which is respectfully submitted.
Daniel Webster.
To thb President op the United States.
TREATY WITH PORTUGAL.
CONSTRUCTION OF THE TREATY BETWEEN THE UNIT-
ED STATES AND PORTUGAL RESPECTING THE DUTIES
ON PORTUGUESE WINES.
On the 18th of November, 1841, M. de Figaniere e Morao, Minis-
ter Resident of Portugal in the United States, addressed a note to Mr.
Webster, complaining that, by the provisions of an act of Congress ap-
proved the 11th of September preceding, by which the specific duties
formerly levied on certain wines imported into the United States were
changed to ad valorem duties, a discrimination was introduced unfavora-
ble to the interests of Portugal. To this note Mr. Webster made the
following reply : —
Mr. Webster to M. de Figaniere e Morao.
Department of State, Washington, February 9. 1842.
The undersigned, Secretary of State of the United States
has the honor to acknowledge M. de Figaniere e Morao's note
of the 18th of November, and has given to it the considera-
tion due to its importance, and to the friendly relations happily
subsisting between the two governments.
The undersigned regrets that the government of Portugal
should suppose that it has reason to complain, in any manner,
of a law of the United States as being prejudicial to Portugal,
or at variance with the amity and good-will subsisting between
the two countries, and especially as inconsistent with the treaty
obligations of the United States.
The law complained of was enacted on the 11th day of Sep-
tember, 1841 ; and its main provision was, to lay a duty of
twenty per cent: ad valorem on all such articles as were at that
416 TREATY WITH PORTUGAL.
time free, or on which the duty was less than that rate, witn
certain exceptions. The wines of Portugal not being within
the exceptions, and being subject at that time only to a specific
duty, may fall under an increased charge or duty by the opera-
tion of this law.
The third article of the treaty subsisting between the United
States and Portugal is in these words: —
" No higher or other duties shall be imposed on the importa-
tion into the kingdom and possessions of Portugal of any arti-
cle, the growth, produce, or manufacture of the United States
of America, and no higher or other duties shall be imposed on
the importation into the United States of America of any arti-
cle, the growth, produce, or manufacture of the kingdom and
possessions of Portugal, than such as are or shall be payable on
the like article, being the growth, produce, or manufacture of
any other foreign country.
" Nor shall any prohibition be imposed on the importation
or exportation of any article, the growth, produce, or manufac-
ture of the United States of America, or of the kingdom and
possessions of Portugal, to or from the ports of the said king-
dom and possessions of Portugal, or of the said States, which
shall not equally extend to all other foreign nations.
" Nor shall any higher or other duties or charges be im-
posed, in either of the two countries, on the exportation of any
articles to the United States of America or to the kingdom
of Portugal, respectively, than such as are payable on the ex-
portation of the like articles to any other foreign country.
" Provided, however, that nothing contained in this article
shall be understood or intended to interfere with the stipula-
tion entered into by the United States of America, for a spe-
cial equivalent, in regard to French wines, in the convention
made by the said States and France on the fourth day of
July, in the year of our Lord one thousand eight hundred and
thirty-one, which stipulation will expire and cease to have ef-
fect in the month of February, in the year of our Lord one
thousand eight hundred and forty -two."
M. de Figaniere e Morao thinks that the provision of this ar-
ticle is interfered with by the above-mentioned act of Congress.
He illustrates his own view of the subject by putting a case
in the following form : —
TREATY WITH PORTUGAL. 417
" A pipe of wine from the Mediterranean, or Spain, or any
other country, reaches a port in the United States at a cost (let
it be supposed) of 30 cents the gallon, and a like pipe of wine
from Portugal costing 38 cents per gallon. If the duty be spe-
cific, say 15 cents, they will both be subject to the same, and
neither pay a higher or other duty than the other; for fifteen
cents per gallon, and no more, would be levied on both pipes.
Not so, however, according to the act of the 11th of September
last, which imposes twenty per cent, ad valorem. The Spanish
or other wine will pay only six cents per gallon, while from the
like wine of Portugal will be exacted 7T6^ cents per gallon, which,
de facto, operates as a discriminating duty against the Portu-
guese wine, contrary to the stipulations of the treaty between
the two countries."
Before proceeding to consider the argument and illustration
thus advanced, the undersigned avails himself of the opportunity
of stating to M. de Figaniere e Morao, that the language in
the third article of the treaty between the United States and his
government is of the same import with that used in most other
treaties of the United States with foreign powers, and identical
with that employed in some of them ; and that no complaint
has ever been made to this government, by the governments
with whom such treaties have existed, of any injury, injustice,
or want of strict compliance with treaty stipulations on any
such ground as has been now taken by the Portuguese govern-
ment. It will be at once obvious, therefore, to M. de Figaniere
e Morao, that the government of the United States must take
such a view of the question as it can maintain, not only in re-
gard to Portugal, but many other powers also.
The interdict of the treaty is, —
" No higher or other duties shall be imposed on the impor-
tation into the United States of America of any article, the
growth, produce, or manufacture of the kingdom and posses-
sions of Portugal, than such as are or shall be payable on the
like article, being the growth, produce, or manufacture of any
other foreign country."
The article on which the duty complained of is laid is wine ;
and the duty laid on Portuguese wine is exactly the same, in
terms, as that laid on the like article (except as excepted in the
law) coming from other countries. In other words, all wines
418 TREATY WITH PORTUGAL.
fall under the same duty of twenty per cent, ad valorem. Tn
terms, therefore, the law is clearly within the treaty.
But M. de Figaniere e Morao thinks it not in conformity
with the spirit and intent of the treaty, because, under its op-
eration, a gallon of wine in Portugal may cost more than a
gallon of wine in Spain, and therefore twenty per cent, on the
cost of the gallon of Portuguese wine will be more than twenty
per cent, on that of the Spanish wine ; and consequently a gal-
lon of Portuguese wine will pay a higher duty than a gallon
of Spanish wine. That this may be the result of the operation
of the law, cannot be denied ; and this makes it necessary to
inquire, What is the true interpretation of this third article of
the treaty ?
There may sometimes be difficulty, without doubt, in decid-
ing on the just extent of such a provision, and in applying it, in
the legislation of states bound to regard it ; because, in general,
articles identically the same, or in the language of the treaty
alike, are seldom imported from different countries. Yet the
provision itself is to be observed, and is to receive a reasonable
and just construction. This is the leading rule of interpreta-
tion in regard to all treaties and other important compacts.
Now it is evident, that, if M. de Figaniere e Morao's idea be
correct, the government of the United States could impose no
ad valorem duty whatever, because, as articles bearing the
same general name, and imported from different countries,
would of course be of different degrees of value and cost, the
country producing those of highest value would always have
cause of complaint, if subjected to an ad valorem duty. The
result would be, that the government of the United States
could not exercise its powers at all, in one of the most ordinary
modes of taxation. As this consequence would be unreason-
able, and evidently not within the contemplation of the par-
ties, the reasoning which would conduct us to it must be re-
jected.
We are to consider, then, what is the just meaning of the
terms "other or higher duties," and to inquire by what stand-
ard it is to be known and ascertained whether duties " other
and higher " are laid in a given case. Now, to accomplish this,
resort must be had to some measure of comparison, simple
or mixed; some rule by which the question is to be decided.
TREATY WITH PORTUGAL 419
What is (hat rule? What is the standard of comparison ? Is
some one single consideration to fix that standard, or may ref-
erence be had to various considerations? M. de Figaniere e
Morao's idea is, that the only element of calculation, the only
datum to be taken into view, is the quantity of the article ; that
is to say, he is of opinion, that, if one gallon pays more duty
than another gallon, the duty is, for that reason alone, higher in
the sense of the treaty. But the undersigned thinks, with all
respect, that this may well be questioned; he thinks cost and
value may be regarded as forming parts of the basis of calcula-
tion and comparison, as well as quantity. It is as reasonable,
as it seems to him, to understand the treaty as saying that mer-
chandise from Portugal shall pay no higher duties than similar
merchandise from other countries, according to its value, as it
is to understand it as saying that it shall pay no higher duties
in proportion to its quantity. Cost and value are as reasonable
a basis as mere measure, weight, or quantity, in deciding on the
comparison of duties. Indeed, it appears to the undersigned
that ad valorem duties are likely to be the most unexceptionable
of all forms of imposts, so far as stipulations in treaties, like
that now under consideration, are concerned. When duties are
made specific, they are laid on different classes of the same gen-
eral article at different rates, according to their respective de-
grees of cost or value. Cheap wines are not taxed so high as
dearer wines ; nor can it be considered as any purpose of the
treaty to abolish such distinctions ; so that cost and value ordi-
narily constitute either the whole or part of the ground upon
which rates of duties are fixed. In the case stated by M. de
Figaniere e Morao, the Portuguese wine is assumed as the more
costly article. But we may well suppose an opposite case, and
a case of specific duties of exactly the same nominal amount,
and yet a case in which, as it appears to the undersigned, Por-
tugal might complain with far greater appearance of reason than
she now complains of the law of September. There are wines
of Portugal, of large consumption, which cost much less than
certain wines of France. Let us suppose that a wine of Lisbon
cost fifty cents a gallon, and a wine of Bordeaux one dollar,
and that, each was taxed equally one dollar a gallon in the ports
of the United States. Here would be an apparent equality, just
such as M. de Figaniere e Morao now thinks ought to exist.
420 TREATY WITH PORTUGAL.
But would there be real equality ? Might not the Portuguese
producer say that he did not enjoy substantially the same ad-
vantage as his French competitor, inasmuch as his capital and
labor, producing an article in greater quantity, but of lower
price, were really subjected to a burden twice as great as that
which fell on the labor and capital of the French producer?
Might he not say, Suffer my product, according to its cost and
value, to be received into the country upon the same terms,
and not other or higher, as the products of other countries?
The stipulation contained in the third, article of the treaty be-
tween the United States and Portugal, and in other treaties to
which the United States are parties, is just and liberal, and
ought to be observed to the fullest practicable extent ; but per-
haps it may be found that it is necessarily circumscribed within
certain limHs, and subjected to qualifications. And this results
from the h jt that, in a commercial sense, and according to the
common understanding of men, the generic word " article ,r is
subdivisible, and its subdivisions are as well known, and are
regarded in as independent and substantive a sense, as the ge-
neric term itself.
Wine is an article of commerce; but wine of Oporto, wine
of Bordeaux, wine of Madeira, wine of Sicily, are separate ar-
ticles; so regarded in transactions of commerce, so regarded
in the duty laws of various governments, and especially in th( ^e
of the United States.
It would, therefore, not be considered as any infraction of t^.e
treaty with Portugal, if Oporto wines were subjected to oAe
duty and Sicily wines to another, since they are, in commercHl
understanding, different articles. And it may be added, tint
difference in cost or value may, in many cases, very materiaVy
contribute to settle the question of identity or difference be-
tween two articles ; that is to say, in deciding whether two arti-
cles are the same, or alike, as the phrase of the treaty is, refer-
ence to the cost of each may be very pertinent and important.
For example, the teas of China have heretofore been subject to
different rates of duties in the United States as separate articles,
under separate and specific denominations, as Bohea, Cong-o,
Hyson, &c. Now in a disputed case, whether a particular
article of that general kind belonged to one or the other of these
classes would be an inquiry, in the prosecution of which one
TREATY WITH PORTUGAL. 421
important element of proof and ground of decision would nat-
urally be the cost of the article, the more especially if the classes
bore a considerable resemblance to each other, as is the case
with some of them. So, if articles bearing the same general
name come from different countries, whether they ought to be
regarded as the same article is a question for the solution of
which one may look not only to the name, but to their cost and
value. And this consideration appears to the undersigned to
show, he presumes to say, almost conclusively, that if the duty
in a given case be ad valorem, it is, of all forms of laying duties,
that which is most strictly in accordance with the provisions of
treaties such as that between the United States and Portugal.
The article of the treaty under consideration was designed
as a stipulation that no unfriendly legislation should be resorted
to by one party against the other, nor any preference given to
the products of other countries, with intent to injure or preju-
dice either party to the treaty. The treaty enjoins the spirit
and practice of fair and equal legislation ; but neither party
supposed itself precluded by its stipulations from the ordinary
modes of exercising its own power of making laws for raising
revenue in its accustomed modes ; and if it happen, in any case,
that, from the operation of laws thus laid with fair intent and
for necessary purposes, inconveniences result to either party, that
result must be considered as not intended, but as arising from
the nature of the case itself, and therefore as unavoidable.
These are the general views which have presented themselves
to the undersigned in answer to M. de Figaniere e Morao's
note, and he trusts that the government of Portugal will con-
sider them as satisfactory. Portugal is one of the countries
with which the United States, in taking their place in the circle
of nations, had early friendly commercial and diplomatic inter-
course. Happily, nothing has occurred permanently to disturb
that intercourse. The two countries have no rivalries, no oppo-
sition of interests, no grounds of mutual distrust ; and the un-
dersigned avails himself of this opportunity to express hi?
earnest hope that the harmony now insured by the stipulations
of a fair and equal treaty may long continue, and to signify, at
the same time, the high consideration with which he has the
honor to regard M. de Figaniere e Morao.
Daniel Webster.
vol. vi 36
RELATIONS AVITH MEXICO.
AMERICAN CITIZENS CAPTURED AT SANTA FE.
Mr. Webster to Mr. Ellis.
Department of State, Washington, January 3, 1842.
Sir, — The friends of Mr. Franklin Coombs, son of Genera]
Leslie Coombs, of Kentucky, have applied for the interposition
of this government in behalf of that young gentleman, who ac-
companied the late Texan expedition to Santa Fe, in Mexico,
and is supposed to have been captured, and, if alive, to be held
in bondage in that country, with the other survivors of the ex-
pedition. It has been represented to this department that
young Coombs has never been a citizen of Texas ; that he did
Yiot repair to that country with any intention of relinquishing
nis allegiance to this government, or of remaining in Texas ;
but that he went thither in the autumn of 1840, upon private
business of his father, and for the benefit which he was assured
his feeble health would derive from the milder winter climate of
that region. He was, however, detained there by both causes,
until about the time when the expedition referred to set out.
This he determined to accompany, merely for the object of
confirming his health, and gratifying a curiosity, both liberal
and natural, in regard to the unknown lands through which
the course of the expedition lay.
As there is no reason to doubt the correctness of this infor-
mation, you will, accordingly, forthwith make the necessary
representations to the Mexican government upon the subject,
with a view to avert from young Coombs, if he should be alive,
the dangers to which he may be or may have been exposed.
You will state that, from the respectability of his family and
AMERICAN CITIZENS CAPTURED AT SANTA FE. 423
for other reasons, there can be no ground for the belief that he
would have accompanied the expedition for any other objects
than those mentioned; and that, if he had been aware that the
views of the Texan government in despatching it had been
hostile or predatory, rather than friendly and commercial, as
they were understood to have been at the time, he would not
have gone in its company. If to this it be objected that the ex-
pedition was military in its array, and must, therefore, be pre-
sumed to have had warlike designs against the Mexican au-
thorities, it may be answered that the avowed motive of the
members of the expedition in bearing arms was to ward off the
attacks of hostile Indians, and especially of the Camanche&,
who, it is well known, roam in great force along and across the
track which was to have been pursued. This objection would
apply with much less, if with any, force to young Coombs, as
he was no soldier, and had never been one ; and, if found with
arms, there could in his case be no better ground for the opin-
ion that they were to have been used for purposes of attack,
and not for those of defence, than if he had accompanied one
of the caravans from Missouri to Santa Fe, by means of which,
as is well known, an extensive trade is carried on between this
country and Mexico, to the mutual advantage of the parties.
Although young Coombs is the only American citizen who
accompanied the expedition for whom the interference of this
government has been asked, it is understood that there was an-
other who as little deserves to be subjected to any penal pro-
ceedings on the part of the Mexican government. This is Mr.
George W. Kendall, of New Orleans.
You will press this case with the utmost earnestness on the
Mexican government, as the government of the United States
feels itself bound to interfere, and to signify its confident expec-
tation that the lives of American citizens will not be sacrificed
who have not intentionally done any thing of a hostile charac-
ter against Mexico. Even if the conduct of young Coombs
was indiscreet and ill-judged, yet this government cannot sup-
pose that the government of Mexico would treat him as an
armed combatant found among its enemies.
You will spare no pains to impress the Mexican authorities
with the feelings which would be excited in this country if any
harsh proceeding should be adopted toward this youth.
424 RELATIONS WITH MEXICO.
"You will avail yourself of the opportunity of making to that
government this communication, to suggest that, while this
government is disposed to maintain with strict fidelity amica-
ble relations with the Mexican republic, and will not attempt
to screen from merited punishment any of our citizens who
may be guilty of an infraction of the laws intended to preserve
those relations, yet that summary, sanguinary, or undue pun-
ishment of either Texans or citizens of the United States in
Mexico inevitably tends to excite and foment in this coun-
try an acerbity of feeling against Mexico which will be much
more apt to defeat the supposed objects of those punishments
than if the offenders were to have a fair trial, and, if then con-
victed, were to be punished in some proportion to their offences.
You will, however, make this suggestion in a conciliatory tone,
without allowing it to be supposed that this government has
any intention to dictate the policy to be adopted by that of
the Mexican republic, upon this or any other subject; but,
supposing their disposition toward the United States to be ami-
cable, our wish is merely to point a way by which, it seems
to us, that reciprocal disposition, as well as the integrity of
the Mexican territory, may be more effectually maintained.
Accustomed ourselves to regular judicial proceedings, fair and
full trials, and mild punishments, the opposites of these, if
exercised by other governments, always serve to check the
growth of amity and good-will.
Any reasonable expenses which may be necessary to defray
the charge of a special messenger from the Mexican capital
to the place of captivity of young Coombs and his American
associates, or for any other proper purposes necessary for their
safety and liberation, will be borne by this government, and will
be defrayed by you, and for them you will draw on this de-
partment, specifying in your drafts their purpose, and sending
with them such vouchers as you may be able to procure.
The interest which we feel for Coombs, whose case has
been particularly presented to us, and for Mr. Kendall also, will
lead to the despatching of this communication in the wav
most likely to carry it soon to your hands.
I am, Sir, your obedient servant,
Daniel Webster.
To Powhatan Ellis, Esq., Envoy Extraordinary, <§rc.t Mexico.
AMERICAN CITIZENS CAPTURED AT SANTA FE. 425
P. S. — Since the above was written, application has been
made in behalf of Mr. J. C. Howard, a youth of nineteen years
of age, who was also with the expedition, and who, we are
informed, was not a citizen of Texas. You will likewise in-
quire into his case, and do for him any thing else which you
can do with propriety. D. W.
Mr. Webster to Mr. Ellis.
Department of State, Washington, January 6, 1842.
Sir, — I addressed you on the 3d instant in behalf of
Franklin Coombs and Mr. Kendall, captured by the Mexican
army, with the Texan expedition, near Santa Fe. The object
of this is only to say (what, perhaps, you would not have failed
to understand), that, if it should be found that other American
citizens were made captives under like circumstances, and
with similar claims to immunity and release, you will exert
the same interference in their behalf.
I am, with regard, your obedient servant,
Daniel Webster.
To Powhatan Ellis, Esq., Envoy Extraordinary, $*c, Mexico.
Mr. Webster to Mr. Peyton.
[private.]
Washington, January 6, 1842.
Dear Sir, — Your letter to the President, of the 21st of De-
cember, has been read by him with great interest and anxiety,
although it was not the first communication upon the subject.
Letters had been previously received from General Coombs,
and information communicated from other quarters, upon which
immediate steps were taken. A special messenger has been
despatched from this department, with an instruction to 'our
minister at Mexico, of which I inclose a copy. The President
will interfere for the lite and safety of young Coombs to the
full extent of his duty. You must be aware of the delicacy of
the question, at least as it presents itself to us, without more
knowledge of the facts.
The President wishes the most effectual means taken, con-
sistent with justice and propriety, to secure his safety
On receipt of this, if you should be of opinion that the object
36*
426 RELATIONS WITH MEXICO.
in view would be promoted by sending a private agent from
New Orleans to cooperate with the American minister in Mex-
ico, the President is willing that such agent, to be selected by
you, should be immediately despatched ; and his necessary ex-
penses will be defrayed by this department. He cannot receive
any public character, as we have a minister on the spot ; but
the President's great desire to do all that can be done leads him
to say, that, if you think a private agency might be useful, he
wishes it to be instituted, and that you would select such per-
son as you deem the fittest for such duty. He the more readily
submits this part of the case to your discretion, as, before this
communication shall reach New Orleans, you may very proba-
bly be in possession of much more information than has as yet
reached us ; and there are likely also to be many citizens of
New Orleans who are acquainted at Mexico.
As this agent will have no public character, he can only act
under direction of the American minister, to whom he will re-
port himself on his arrival. And the main advantage to be
expected from such agency is this : that a person of respecta-
bility and address, well acquainted with Mexico, its manners
and language, and perhaps with its present authorities, and ac-
quainted, also, with the character, family, and connections of
Coombs, Kendall, and other American citizens who may be in
like condition, may, by unofficial means and personal efforts,
cooperate usefully with Mr. Ellis. If you think it advisable, on
the whole,. that such agent be employed, you will give him a
copy of this letter as his instructions.
The collector of New Orleans will have instructions to con-
vey Mr. McRae to the fittest port in Mexico, by the revenue
cutter or other the most prompt mode ; and if you should think
it useful that such private agent as is above mentioned should
proceed to Mexico, he may use the same conveyance. You
will see by the inclosed, that, although not applied to by his
friends, Mr. Kendall's case has not been overlooked ; and it is
the President's wish, that, if any other American citizen, inno-
cently in company with the expedition, should have fallen into
the hands of the Mexicans, an equal interference may be made
in his behalf.
I am, &c.
Daniel Websteb.
Bailie Peyton, Esq., United States District Attorney New Orleans.
AMERICAN CITIZENS CAPTURED AT SANTA F&. 42;
Mr. Webster to Mr. Thompson.
Department of State, Washington, April 15, 1842.
Sir, — I have to address you upon the subject of those citi-
zens of the United States who were captured with the Texan
expedition to Santa Fe, and who, as is believed, were not par-
ties to that expedition, so far as it was military and hostile to
Mexico, if, in fact, a hostile invasion of Mexico was among its
purposes, but accompanied it only as traders, tourists, travellers,
men of letters, or in other characters and capacities showing
them to be non-combatants; but who, nevertheless, were taken
and held as prisoners, compelled to undergo incredible hard-
ships in a winter's march of two thousand miles, and at its end
subjected to almost every conceivable degree of indignity and
suffering.
By the law and practice of civilized nations, enemies' subjects
taken in arms may be made prisoners of war ; but every person
found in the train of an army is not to be considered as there-
fore a belligerent or an enemy. In all wars, and in all coun-
tries, multitudes of persons follow the march of armies, for the
purpose of traffic or from motives of curiosity, or the influence
of other causes, who neither expect to be, nor reasonably can be,
considered belligerents. Whoever, in the Texan expedition to
Santa Fe, was commissioned or enrolled for the military ser-
vice of Texas, or, being armed, was in the pay of that govern-
ment, and engaged in an expedition hostile to Mexico, may be
considered as her enemy, and might lawfully, therefore, be de-
tained as prisoner of war. This is not to be doubted ; and, by
the general practice of modern nations, it is true that the fact
of having been found in arms with others admitted to be armed
for belligerent purposes raises a presumption of hostile charac-
ter. In many cases, and especially in regard to European wars
in modern times, it might be difficult to repel the force of this
presumption. It is still, however, but a presumption ; because
it is nevertheless true that a man may be found in arms with
no hostile intentions. He may have assumed arms for other
purposes, and may assert a pacific character, with which the
fact of his being more or less armed would be entirely con-
sistent. In former and less civilized ages, cases of this sort
existed without number in European society. When the peace
^28 RELATIONS WITH MEXICO.
of communities was less firmly established by efficient laws,
and when, therefore, men often travelled armed for their own
defence, or when individuals, being armed according to the
fashion of the age, yet often journeyed under the protection of
military escorts or bodies of soldiers, the possession of arms
was no evidence of hostile character, circumstances of the times
sufficiently explaining such appearances consistently with pa-
cific intentions. And circumstances of the country may repel
the presumption of hostility, as well as circumstances of the
times, or the manners of a particular age. The Texan expe-
dition to Santa Fe, in traversing the vast plains between the
place from which it set out and that point, was to pass through
a region which no one thinks of entering and crossing without
arms, for whatever purpose or with whatever intent he may un-
dertake such enterprise. If he be a hunter, he is armed ; if a
trader, he is armed ; and, usually, traders go in considerable
bodies, that they may be the better able to defend themselves
against the roaming savage tribes so constantly met with in
those extensive plains. It is not uncommon, indeed, that, for
their better defence, companies of traders retain the service of
men at arms, who maintain military order and array along the
line of their march. When such bodies are met with in coun-
tries usually traversed by them, no inference arises, from the
circumstance of their being armed, of any intention on their
part of using such arms for any purpose but that of defence.
If tourists, or persons wearing any other similar but equally
pacific character, set forth on such a journey, they are still
armed ; armed for subsistence as well as for defence. The fact
therefore, of being found in such a country with arms, does no1
prove a belligerent or hostile character, since nobody, however
peaceable, is found there without arms. If, therefore, indi-
viduals armed only according to the custom of the country, but
having no hostile purposes of their own, and free from all mili-
tary authority or employment, fall in with or follow the march
of troops proceeding toward a point of attack, these individuals
are not combatants, and not subject to be taken and treated as
prisoners. These considerations may be applied to those citi-
zens of the United States for whose release from imprisonment
the interposition of this government has been requested. One
of those citizens is George Wilkins Kendall. Mr. Kendall is a
AMERICAN CITIZENS CAPTURED AT SANTA FE. 429
man of letters, a highly respectable citizen of New Orleans,
and was the editor of a literary publication carried on at that
place. He was fond of travel at those seasons of the year when
most persons who are able leave the city; and having, in all
previous tours, made himself acquainted with all parts of his
own country, and learning, early in the spring of 1841, that a
trading' expedition would start from Texas to Santa Fe about
the 1st of May, he resolved on joining it, as a pleasure excur-
sion of a novel and interesting character. His departure and
his intentions were publicly announced in the paper with which
he was concerned at the time of his setting forth. His object
was declared to be to take a personal glance over this broad
expanse of country, and, thus spending the summer, to return
either by Missouri or by the way of Lower Mexico, by the
usual time when citizens return to New Orleans for the fall
business. The expedition, though having a military equipment,
was represented to him as entirely commercial in its character,
its object being, as was asserted, to turn the rich Chihuahua
trade into the Texan channel. Mr. Kendall was no soldier, no
revolutionary adventurer, but a man of respectable connections,
engaged in prosperous business, and fond of the enjoyments of
intellectual and social life. It is hardly possible that such a
gentleman should have left such a condition to form part of a
military expedition, subjecting himself to all its hazards and all
its results, in an attempt to subjugate by force of arms a Mexi-
can province five hundred or a thousand miles from his home
and his connections.
Before leaving New Orleans, he obtained a passport from the
Mexican vice-consul at that city. This fact, although it ap-
pears to have been denied, is proved by the testimony of Mr.
Falconer and Mr. Van Ness. They can hardly be mistaken ;
but further evidence on this point may probably be in your pos-
session before this despatch reaches you. He armed himself
before leaving home, as any other person, of however pacific
character, would arm himself for such a tour. Such was Mr.
Kendall's character, such were his objects, and such the circum-
stances under which he joined the ill-fated expedition.
Several other prisoners appear, from the circumstances, to
have been as little engaged in any hostile design as Mr. Ken-
dall. John Tompkins is represented to be a citizen of the Unit-
430 RELATIONS WITH MEXICO.
ed States, from Greene County, Illinois, where his family, coi
sisting of a wife and five children, still reside. He is a saddlei
by trade, but left the United States with merchandise for Texas
just in time to join the expedition to Santa Fe. His health
was delicate, and his object was to improve it, to dispose of
his merchandise in order to defray his expenses, and to return to
the place of his abode by the way of St. Louis.
David Snively is a man somewhat advanced in life, who be-
longs to the State of Ohio, where he has a wife and several
children. He went with the expedition as a trader, and had a
considerable amount of merchandise with him.
H. R. Buchanan, of Tennessee, went also as a trader, and
took with him property of value, which was taken from him.
He had arrived in Texas only a month before the expedition set
out, and accompanied it with his own pack-mules and a servant.
L. B. Sheldon is a member of the Mississippi bar, who ac-
companied the expedition as a traveller only. He had with him
a small amount in merchandise, from the sale of which he ex-
pected to defray his travelling expenses. He had gone to Texas
in March, 1841, on business which he presumed would not de-
tain him longer than two months , but he subsequently resolved
to join the expedition for the purpose above mentioned.
Two persons by the name of Howard were among the cap-
tives, natives of and residents in this city or its neighborhood.
They are represented as traders, who had with them merchandise
to the amount of eight or ten thousand dollars.
Thomas S. Terry, of Hartford, in Connecticut, is believed
to have gone to Texas in December, 1840, and, being a trader,
joined the expedition for the sake of protection against the
Indians or other freebooters. He did not intend to return to
Texas, but to trade at Santa Fe, and between that place and
St. Louis.
The circumstances of others who have applied for the inter-
position of this government are less precisely known. What-
ever evidence may be in this department, or shall be received
hereafter, respecting them, will be forwarded to you.
A demand for Mr. Kendall's release from confinement, as well
as that of others under equally innocent circumstances, has been
made by the minister of the United States at Mexico, and you
will see the correspondence between that minister and the Mex-
AMERICAN CITIZENS CAPTURED AT SANTA F&. 431
ican Secretary of State. That correspondence, as you will ob-
serve, is principally confined to the case of Mr. Kendall.
The Mexican Secretary objects to his release from confine-
ment, because he was united with the invading enemies of that
country, in whose company he was taken, and under whose
protection he was journeying ; and because the entrance of
foreigners into Mexico by the Texan frontier, being prohibited
by a Mexican law, even when such foreigners might be travel-
ling alone, the prohibition ought to be more strict and severe
in the case of their entering by the side of soldiers coming to
invade the country. Because, also, Mr. Kendall was an agent
of the Texans, or, at least, a member of the expedition to New
Mexico; in proof of which, a oassage, in the following words,
is quoted from the New Orleans Picayune of the 21st of D*>
cember last: " A Captain Lewis was one of the commissioners,
and the other was Mr. Kendall, editor of the Picayune."
The Secretary proceeds to assert, that those who join invad-
ers ought to be involved in their fate in respect to such warlike
measures as it may be necessary to take to repel such invaders:
and that, in affairs of this nature, all the presumptions are
against him who associates himself with an enemy, in whose
company he is made a prisoner, whatever his intentions may
have been. The Secretary states, further, that, if Mr. Kendall
was ignorant of the Mexican law referred to, it is well known
not to be allowable to plead ignorance of any law which had
properly been made public. But, supposing that he was igno-
rant of the law, the circumstances of his case, he argues, were
such that its text could not be literally followed ; for the penalty
mentioned was intended to apply to one or two persons only
and those without hostile accompaniments, who might present
themselves on the frontier; and that tbo law did not deprive the
Mexican government of the right of self-preservation, a right
derived from the law of nature and nations. The Secretary
then alludes to documents in the possession of his government,
which, he says, place Mr. Kendall's conduct in a more serious
light; but those documents are neither produced nor described.
The Secretary denies that the paragraph quoted from the news-
paper was the ground of the proceeding of his government ; but
says that, proceeding as the paragraph did from Mr. Kendall's
partners in business, it might be considered as impartial, and
432 RELATIONS WITH MEXICO.
served to strengthen the presumptions against him. He denies
that it is the duty of his government to allow Mr. Kendall the
benefit of the context of the article from which the paragraph
supposed to inculpate him had been quoted, although the ex-
tract may be used against him. He endeavors to prove himself
correct in calling Mr. Kendall a commissioner of the Texan s,
and proceeds to define what he understands a commissioner to
be. If Mr. Kendall had a passport, that, he admits, would be
prima facie evidence in his favor; and that, if it should be ascer-
tained that he had an unconditional passport, which had been de-
stroyed by an officer of the Mexican army, he should be set at lib-
erty, and that measures had been taken to ascertain these facts.
These reasons appear to be either unfounded in fact, or, if
true, to furnish no sufficient ground for regarding Mr. Kendall
as a belligerent enemy, or for declining to comply with the de-
mand made by this government in his behalf.
In the first place, it is said that he was united with the invad-
ing enemies of the country, in whose company he was taken,
and under whose protection he was journeying. That he trav-
elled with the Texans, is true ; but, as has been already said,
that fact alone does not constitute him a combatant. It may
furnish, in the first instance, a presumption that he was so;
but such a presumption may be repelled, and is fully repelled,
by the circumstances of the case. There would be no mean-
ing in that well-settled principle of the law of nations which
exempts men of letters and other classes of non-combatants
from the liability of being made prisoners of war, if it were
an answer to every claim for such exemption to say that the
person making it was united with a military force, or journey-
ing under its protection.
As to the assertion that it is against the law of Mexico for
foreigners to pass into it across the line of Texas, it is with no
little surprise that the Mexican Secretary of State is found to
assign this reason for making Mr. Kendall a prisoner. The
direction of that law is«only to prohibit the traveller's entrance,
or to send him back if he does enter. It has no penalty of
chains, dungeons, or condemnation to the public works. And
the Mexican Secretary himself sufficiently shows that this law
has no application to the case, because, he says, it was in-
tended only for the case of one, two, or a few individual.*
AMERICAN CITIZENS CAPTURED AT SANTA FE. 433
Having quoted this law, and then finding that, in its just im-
port, it furnished no authority for the treatment which these
citizens of the United States had received, the Mexican Sec-
retary appears to treat the subject as if this law had been set
up to assist their claim for liberation; while, in truth, all that
Mr. Ellis did, in this respect, was to say, that, if that law gov-
erned the case, then no penalty, no punishment, and no treat-
ment of the prisoners could be justified but such as had been
prescribed by that law ; and thereupon the Secretary adroitly
denied that the law applies to the case at all. In this he is no
doubt quite right.
As to the assertion that Mr. Kendall was an agent of the
Texans, or a member, properly speaking, of the expedition, and
the reference, in proof of this assertion, to the article in the
newspaper with which he was connected, all this was founded
in misconstruction, as you will see, of the true import of the
article itself, even if a newspaper paragraph were fit to be re-
garded in such a case. In the article, Mr. Kendall had been
called an " avant-courier," merely to signify that he went for-
ward, in approaching Santa Fe, in advance of the rest of the
party. If others went forward for other purposes, he might still,
in pursuance of his own objects, go with them. But Mr. Ken-
dall not being responsible for this article, or shown to have had
any knowledge of it, it cannot be of the least force against him,
whatever may be its import.
The Secretary says, finally, that being found in company
with an enemy raises a presumption against the party ; but the
Secretary does not say that this presumption may not be re-
butted. Why, indeed, does he call it a presumption, unless he
means that it is a thing calling for explanation, and which may
De explained ? It is explained, fully and completely. Mr. Ken-
dall, as we think, brings himself clearly within the exemption of
the law of nations, as practised in modern times; and to insist
on presumptions, and to give them the force of conclusive
proofs, in defiance of all repelling proofs, is to render that law,
in its application to cases of this kind, null and void. If it be
admitted that, prima jacie^ the presumption is against Mr. Ken-
dall, has he not repelled it? He has made an effort to do so;
but, instead of meeting this effort by argument, and the proofs
which support it by opposite proofs, the Secretary appears to
vol. vi. 37
434 RELATIONS WITH MEXICO.
content himself with stating, that such ;'. the legal presumption;
thus wholly avoiding the true point of the case. This govern-
ment thinks that the facts stated and proved .show Mr. Kendall
to have been no party to the military expedition of Texas ; to
have had no hostile intention against Mexico; to have entered
her territory for no purpose of assisting to make war on her citi-
zens, dismember her provinces, or overturn her government.
It does not very satisfactorily appear, from any correspond-
ence or information now in this department, in what light
Mexico looks upon those persons made prisoners at Santa Fe,
whom she has a right to consider as engaged in the service of
Texas, and therefore as her enemies. We must presume that
she means to regard them as prisoners of war. There is a pos-
sibility, however, that a different mode of considering them may
be adopted, and that they may be thought to be amenable to
the municipal laws of Mexico. Any proceeding founded on
this idea would undoubtedly be attended with the most serious
consequences. It is now several years since the independence
of Texas, as a separate government, has been acknowledged by
the United States, and she has since been recognized in that
character by several of the most considerable powers of Europe.
The war between her and Mexico, which has continued so long,
and with such success, that for a long time there has been no
hostile foot in Texas, is a public war, and as such it has been
and will be regarded by this government. It is not now an out-
break of rebellion, a fresh insurrection, the parties to which may
be treated as rebels. The contest, supposed, indeed, to have
been substantially ended, has at least advanced far beyond that
point. It is a public war, and persons captured in the course
of it, who are to be detained at all, are to be detained as pris-
oners of war, and not otherwise.
It is true that the independence of Texas has not been recog-
nized by Mexico. It is equally true that the independence of
Mexico has only been recently recognized by Spain ; but the
United States having acknowledged both the independence of
Mexico before Spain acknowledged it, and the independence of
Texas although Mexico has not yet acknowledged it, stands in
the same relation toward both those governments, and is as
much bound to protect its citizens in a proper intercourse with
Texas against injuries by the government of Mexico, as it
AMERICAN CITIZENS CAPTURED AT SANTA FE. 435
would have been to protect such citizens in a like intercourse
with Mexico against injuries by Spain. The period which has
elapsed since Texas threw off the authority of Mexico is nearly
as long as the whole duration of the Revolutionary war of the
United States. No effort for the subjugation of Texas has
been made by Mexico, from the time of the battle of San Ja-
cinto, on the 21st day of April, 1836, until the commencement
of the present year, and during all this period Texas has main-
tained an independent government, carried on commerce, and
made treaties with nations in both hemispheres, and kept aloof
all attempts at invading her territory. If, under these circum-
stances, any citizen of the United States, in whose behalf this
government has a right on any account or to any extent to in-
terfere, should, on a charge of having been found with an
armed Texan force acting in hostility to Mexico, be brought to
trial and punished as for a violation of the municipal laws of
Mexico, or as being her subject engaged in rebellion, after his
release has been demanded by this government, consequences
of the most serious character would certainly ensue. You will,
therefore, not fail, should any indication render it necessary, to
point out distinctly to the government of Mexico the dangers,
should the war between her and Texas continue, of considering
it, so far as citizens of the United States may be concerned, in
any other light than that of a public national war, in the events
and progress of which prisoners may be made on both sides,
and to whose condition the law and usages of nations respect-
ing prisoners of war are justly applicable.
And this makes it proper that I should draw your particular
attention to the manner in which the persons taken near Santa
Fe have been treated, as we are informed.
Mr. Kendall, and other persons with him, having been car-
ried to Santa Fe from the place of capture, were there deprived
of their arms. To this there can be no objection, if we consid-
er them as prisoners of war, because prisoners of war may be
lawfully disarmed by the captor; but they were also despoiled,
not only of every article of value about their persons, but of
their clothing also, their coats, their hats, their shoes, things in-
dispensable to the long march before them. If these facts be
not disproved, they constitute an outrage by the local authorities
of Mexico for which there can be no apology. The privationa
436 RELATIONS WITH MEXICO.
and indignities to which they were subjected, during their march
of two thousand miles to the city of Mexico, at the most in-
clement season of the year, were horrible, and, if they were not
well authenticated, it would have been incredible that they
should have been inflicted in this age, and in a country calling
itself Christian and civilized. During many days they had no
food, and on others only two ears of corn were distributed to
each man. To sustain life, therefore, they were compelled to
sell, on the way, the few remnants of clothing which their cap-
tors had left them ; but by seeking thus to appease their hun-
ger, they increased the misery which they already endured from
exposure to the cold. Most dreadful of all, however, several of
them, disabled by sickness and suffering from keeping up with
the others, were deliberately shot, without any provocation.
Those who survived to their journey's end were, many of them,
afflicted with loathsome disease ; and those whose health was
not broken down have been treated, not as the public law re-
quires, but in a manner harsh and vindictive, and with a de-
gree of severity equal, at least, to that usually inflicted by the
municipal codes of most civilized and Christian states upon the
basest felons. Indeed, they appear to have been ranked with
these ; being thrust into the same dungeons with Mexican
malefactors, chained to them in pairs, and, when allowed to see
the light and breathe the air of heaven, required, as a compen-
sation therefor, to labor, beneath the lash of a task-master,
upon roads and public works of that country.
The government of the United States has no inclination to
interfere in the war between Mexico and Texas, for the benefit
or protection of individuals, any further than its clear duties
require. But if citizens of the United States who have not
renounced, nor intended to renounce, their allegiance to their
own government, nor have entered into the military service of
any other government, have nevertheless been found so con-
nected with armed enemies of Mexico as that they may be
lawfully captured and detained as prisoners of war, it is still
the duty of this government to take so far a concern in their
welfare, as to see that, as prisoners of war, they are treated ac-
cording to the usage of modern times and civilized states.
Indeed, although the rights or the safety of none of their own
citizens were concerned, yet, if, in a war waged between two
AMERICAN CITIZENS CAPTURED AT SANTA FE. 43?
neighboring states, the killing, enslaving, or cruelly treating of
prisoners should be indulged, the United States would feel it to
be their duty, as well as their right, to remonstrate and to inter-
fere against such a departure from the principles of humanity
and civilization. These principles are common principles, essen-
tial alike to the welfare of all nations, and in the preservation
of which all nations have, therefore, rights and interests. But
their duty to interfere becomes imperative in cases affecting
their own citizens.
It is therefore that the government of the United States pro-
tests against the hardships and cruelties to which the Santa Fe
prisoners have been subjected. It protests against this treat-
ment in the name of humanity and the law of nations ; in the
name of all Christian states ; in the name of civilization and
ths spirit of the age ; in the name of all republics ; in the name
of Liberty herself, enfeebled and dishonored by all cruelty and
all excess; in the name of, and for the honor of, this whole
.hemisphere. It protests emphatically and earnestly against
practices belonging only to barbarous people in barbarous times
By the well-established rules of national lawT, prisoners o!
war are not to be treated harshly, unless personally guilty to-
ward him who has them in his power; for he should remember
that they are men, and unfortunate.
When an enemy is conquered, and submits, a great soul for-
gets all resentment, and is entirely filled with compassion for
him. This is the humane language of the law of nations ; and
this is the sentiment of high honor among men. The law of
war forbids the wounding, killing, impressment into the troops
of the country, or the enslaving or otherwise maltreating of
prisoners of war, unless they have been guilty of some grave
crime; and from the obligation of this law no civilized state can
discharge itself.
Every nation, on being received, at her own request, into the
circle of civilized governments, must understand that she not
only attains rights of sovereignty and the dignity of national
character, but that she binds herself also to the strict and faith-
ful observance of all those principles, laws, and usages which
have obtained currency among civilized states, and which have
for tneir obiect the mitigation of the miseries of war.
No community can be allowed to enjoy the benefit of na-
qrc*
438 RELATIONS WITH MEXICO.
tional character, in modern times, without submitting to all the
duties which that character imposes. A Christian people, who
exercise sovereign power, who make treaties, maintain diplo*
matic relations with other states, and who should y,et refuse to
conduct their military operations according to the usages uni-
versally observed by such states, would present a character sin-
gularly inconsistent and anomalous.
This government will not hastily suppose that the Mexican
republic will assume such a character.
There is yet another very important element arising out of
the facts of this case.
It is asserted and believed, that the surrender of some of the
persons connected with the expedition was made upon specific
terms, which were immediately violated by the local Mexican
authorities. If there is one rule of the law of war more clear
and peremptory than another, it is that compacts between en-
emies, such as truces and capitulations, shall be faithfully ad-
hered to ; and their non-observance is denounced as being man-
ifestly at variance with the true interest and duty, not only of
the immediate parties, but of all mankind. Consequently, ii
the surrender of the expedition, or any part of it, was conditional,
the benefit of those conditions must be insisted upon in favor of
Mr. Kendall.
According to the statement of Messrs. Falconer and Van
Ness, Mr. Kendall proceeded two hundred miles in advance of
the main body, and was taken with his companions while they
were displaying a flag of truce ; and the persons who took them
gave assurances that they should not be held as prisoners of war.
Here, then, was a special immunity promised, but afterward
notoriously withheld, as we are bound to believe in the present
state of our information upon the subject. If, therefore, this
government were not entitled to demand Mr. Kendall's release
on the grounds of his having been a non-combatant and a neu-
tral, it might require the government of Mexico to take care that
the stipulation of its authorized agents to that effect be scrupu-
.ously fulfilled, and that, on this account, those to whom the
promise was made should be immediately released, according to
that promise.
In conclusion, I am directed by the President of the United
States now to instruct you, that, on the receipt of this despatch;
AMERICAN CITIZENS CAPTURED AT SANTATE. 439
you inquire carefully and minutely into the circumstances of all
those persons who, having been taken near Santa Fe, and hav-
ing claimed the interposition of this government, are still held
as prisoners in Mexico ; and you will demand of the Mexican
government the release of such of them as appear to have
been innocent traders, travellers, invalids, men of letters, or for
any other reason justly esteemed non-combatants, being citi-
zens of the United States. To this end it may be proper to di-
rect the consul to proceed to the places where any of them may
be confined, and to take their statements under oath, as also the
statements of other persons to whom they may respectively re-
fer. If the Mexican government deny facts upon which any of
the parties claim their release, and desire time for further inves-
tigation of their respective cases, or any of them, proper and
suitable time must be allowed ; but if any of the persons de-
scribed in the next preceding paragraph, and for whose release
you will have made a demand, shall still be detained, for the
purpose of further inquiry or otherwise, you will then explicit-
ly demand of the Mexican government that they be treated
henceforward with all the lenity which, in the most favorable
cases, belongs to the rights of prisoners of war; that they be
not confined in loathsome dungeons, with malefactors and per-
sons diseased ; that they be not chained or subjected to igno-
miny, or to any particular rigor in their detention ; that they be
not obliged 4 to labor on the public works, or put to any other
hardship. You will state to the Mexican government that the
government of the United States entertains a conviction that
these persons ought to be set at liberty without delay ; that it
will feel great dissatisfaction if it shall still learn that JV%. Ken-
dall, whose case has already been made the subject of an ex-
press demand, and others of equal claims to liberation, be not
set at liberty at the time when you receive this despatch ; but
that, if the government of Mexico insists upon detaining any
of them for further inquiry, it is due to the government of the
United States, to its desire to preserve peace and harmony
with Mexico, and to justice and humanity, that, while detained,
these persons should enjoy to the fullest extent the rights of
prisoners of war ; and that it expects that a demand so just and
reasonable, a demand respectfully made by one friendly state to
another, will meet with immediate compliance. Having made
440
RELATIONS WITH MEXICO.
this demand, you will wait for an answer; and if within ten
days you shall not receive assurances that all the persons above
mentioned, who may still be detained, will be thenceforward
treated in the same manner which has now been insisted upon,
you will hold no further official intercourse with the government
of Mexico until you shall receive further directions from your
own government. You will thereupon communicate with this
department, detaining for that purpose the messenger who car-
ries this. In your communication you will state, as fully and
as accurately as possible, the circumstances of each man's case,
as they may appear by all the evidence which at that time may
be possessed by the legation. In making your demand for the
better treatment of the prisoners, you will take especial care not
to abandon or weaken the claim for their release, nothing more
Deing intended in that respect than that proper time should be
allowed to the government of Mexico to make such further in-
quiries as may be necessary.
Your predecessor has already been directed, that, if any of
the persons suffer for the want of the common necessaries of
life, he should provide for such wants until otherwise supplied ;
a direction which you will also observe.
I am, Sir, your obedient servant,
Daniel Webster.
Waddt Thompson, Esq., &c, &c, &c.
INDEPENDENCE OF TEXAS.
Message from the President of the United States, transmitting
Copies of Papers upon the Subject of the Relations between the
United States and the Mexican Republic, July 14, 1842.
To the House of Representatives of the United States :
In answer to the resolution of the House of Representatives
of the 12th instant, requesting copies of papers upon the subject
of the relations between the United States and the Mexican
Republic, I transmit a report from the Secretary of State, and
the documents by which it was accompanied.
John Tyler.
Washington, July 14, 1842.
INDEPENDENCE OF TEXAS. 44]
To the President of the United States :
Sir, — The Secretary of State, to whom was referred the
resolution of the House of Representatives of yesterday, re-
questing the President to cause to be communicated to that
House, so far as might be compatible with the public interest,
copies of all the correspondence between the governments of
the United States and of Mexico since the appointment of the
present Envoy Extraordinary and Minister Plenipotentiary of
the United States to Mexico, of the instructions given to that
minister at and since his departure upon his mission, and of his
despatches to this government, and particularly of any complaint
of the government of Mexico alleging the toleration by the gov-
ernment of the United States of hostile interference by their
citizens in the war between Mexico and Texas, and of any an-
swer on the part of this government to such complaint, has the
honor to lay before the President the accompanying papers.
All which is respectfully submitted.
Daniel Webster.
Department of State, Washington, July 13, 1842.
M. Velazquez de Leon to Mr. Webster.
[translation.]
New York, June 24, 1 842.
The undersigned, in addressing the Hon. Daniel Webster,
Secretary of State, has the honor to inform him that, although
he holds in his power the appointment and credentials for pre-
senting himself and acting as Charge d' Affaires of Mexico in the
United States, he has not thought proper to present himself for
that purpose, until he had received the answer to the observa-
tions which he had addressed to his own government on that
subject; but as he has received recently, and during this delay,
the two annexed documents for his Excellency the President
and the Hon. Daniel Webster, he hastens to send them on, in
order that, upon their arriving as soon as possible at their des-
tination, the honorable Secretary of State may give such an-
swer as the government of the United States may judge proper;
which answer the undersigned will transmit to the Mexican
government, according to his instructions to that effect.
The undersigned avails himself of this occasion to renew to
442 RELATIONS WITH MEXICO.
the Hon. Daniel Webster, Secretary of State, the assurances of
his high consideration.
Joaquin Velazquez de Leon,
Hon. Daniel Webster, Secretary of State.
Mr. Webster to M. Velazquez de Leon.
Department of State, Washington, June 29, 1842.
Sir, — Your letter of the 24th of this month, transmitting
one addressed to this department by the Secretary of State and
foreign Relations of the Mexican Republic, was duly received.
The President has long desired to see here a representative
of that government, the residence of such a functionary being
esteemed likely to foster and promote the peace and interests
of the two countries. We are happy to hear that an appoint-
ment has at length been made ; and all just respect will be paid
to your credentials, when it shall be your pleasure to present
them. Until such presentment be made, however, no regular
diplomatic intercourse can be had between this department and
yourself. Whatever answer may be judged proper to the letter
of M. de Bocanegra to this department will be transmitted
through the minister of the United States at Mexico.
I am, Sir, your obedient servant,
Daniel Webster.
Senor Don Joaquin Velazquez de Leon.
M. de Bocanegra to Mr, Webster.
[translation.]
National Palace, Mexico, May 12, 1842.
The undersigned, Secretary of State and Foreign Relations,
enjoys the satisfaction of addressing the honorable Secretary of
State of the United States of America, in the name and by the
express order of his Excellency the President of the Mexican
Republic. The relations of amity and good harmony which
have happily subsisted between this and your great nation
might have been disturbed in a lamentable manner, since the
year 1835, when the revolution of Texas broke out, if the Mexi-
can government had not given so many evidences of its forbear-
ance, and had not made so many and so great sacrifices for the
sake- of peace, in order that the world might not, with pain and
INDEPENDENCE OF TEXAS. 443
amazement, see the two nations which appear to be destined to
establish the policy and the interests of the American continent
divided and ravaged by the evils of war.
But from that truly unfortunate period, the Mexican repub-
lic has received nothing but severe injuries and inflictions from
the citizens of the United States. The Mexican government
speaks only of the citizens of the United States, as it still flat-
ters itself with the belief that it is not the government of that
country which has promoted the insurrection in Texas, which
has favored the usurpation of its territory, and has supplied
the rebels with ammunition, arms, vessels, money, and recruits ;
but that these aggressions have proceeded from private indi-
viduals, who have not respected the solemn engagements which
bind together the two nations, nor the treaties concluded be-
tween them, nor the conduct, ostensibly frank, of the Cabinet
of Washington.
It is, however, notorious, that the insurgent colonists of that
integral part of the territory of the Mexican republic would
have been unable to maintain their prolonged rebellion with-
out the aid and the efficient sympathies of citizens of the Unit-
ed States, who have publicly raised forces in their cities and
towns ; have fitted out vessels in their ports, and laden them
with munitions of war; and have marched to commit hostilities
against a friendly nation, under the eyes and with the knowl-
edge of the authorities to whom are intrusted the fulfilment of
the law.
• The Mexican government entertains so high an opinion of
the force of the government of the United States, and of its
power to restrain those its subjects from violating the religious
faith of treaties, solemnly concluded between it and other na-
tions, and from committing hostilities against such nations in
time of peace, that it cannot easily comprehend how those per-
sons have been able to evade the punishment decreed against
them by the laws of the United States themselves, and to ob-
tain that quiet impunity which incessantly encourages them to
continue their attacks. It is well worthy of remark, that no
sooner does the Mexican government, in the exercise of its
rights, which it cannot and does not desire to renounce, prepare
means to recover a possession usurped from it, than the whole
population of the United States, especially in the Southern
444 RELATIONS WITH MEXICO.
States, is in commotion ; and in the most public manner a
large portion of them is turned upon Texas, in order to prevent
the rebels from being subjected by the Mexican arms, and
brought back to proper obedience.
Could proceedings more hostile, on the part of the United
States, have taken place, had that country been at. war with
the Mexican republic? Could the insurgents-of Texas have
obtained a cooperation more effective or more favorable to their
interests ? Certainly not. The civilized world looks on with
amazement, and the Mexican government is filled with un-
speakable regret, as it did hope, and had a right to hope, that,
living in peace with the United States, your government would
preserve our territory from the invasions of your own subjects.
The vicinity of a friend is an advantage rather than an incon-
venience ; but if one neighbor oversteps the sacred limits im-
posed by treaties, and disturbs and harasses another, it cannot
be maintained that the friendship of the former is real, and that
much confidence should be placed in it.
The government of the Mexican republic, therefore, which
regards the faithful fulfilment of treaties as its highest obliga-
tion, and anxiously desires to preserve and increase its friend-
ly relations with the people and the government of the United
States, finds itself under the necessity of protesting solemnly
against the aggressions which the citizens of those States are
constantly repeating upon the Mexican territory, and of declar-
ing, in a positive manner, that it considers as a violation of the
treaty of amity the toleration of a course of conduct which pro-
duces an incomprehensible state of things, — a state neither of
peace nor war, — but inflicting upon the Mexican republic the
same injuries and inconveniences as if war had been declared
between the two nations, which are called by Providence to
form with each other relations and bonds of extreme and cor-
dial friendship.
And the undersigned, in complying with this order from the
most excellent Provisional President of the Republic of Mexico,
assures you, Sir, of the high consideration with which he
remains your obedient servant.
J. M. DE BoCANEGRA.
Hon. Daniel Webster, Secretary of State of the United States of America.
INDEPENDENCE OF TEXAS. 445
Mr. Webster to Mr. Thompson.
Department of State, Washington, July 8> 1842.
Sir, — On the 29th of last month a communication was re-
ceived at this department from M. de Bocanegra, Secretary
of State and Foreign Relations of the government of Mexico,
having been forwarded through the agency of M. Velazquez
de Leon, at New York, who informed the department, by a
letter accompanying that of M. de Bocanegra, that he had
been appointed Charge d' Affaires of the Mexican republic to
this government, although he had not yet presented his creden-
tials. M. de Bocanegra's letter is addressed to the Secretary
of State of the United States, and bears date the 12th of May.
A copy, together with a copy of the communication from M.
Velazquez de Leon, transmitting it, and of the answer to M.
Velazquez de Leon from this department, you will receive
herewith. Upon the receipt of this despatch, you will imme-
diately address a note to M. de Bocanegra, in which you will
say, that
The Secretary of State of the United States has received a
letter addressed to him by M. de Bocanegra, under date of the
12th of May, and transmitted to the Department of State at
Washington through the agency of M. Velazquez de Leon, at
New York, who informs the government of the United States
that he has been appointed Charge d' Affaires of the Mexi-
can republic, although he has not presented his letter of cre-
dence.
The government of the United States sees with regret the
adoption, on this occasion, of a form of communication quite
unusual in diplomatic intercourse, and for which no necessity is
known. An envoy extraordinary and minister plenipotentiary
of the United States, fully accredited to the government of
Mexico, was at that moment in its capital, in the actual dis-
charge of his functions, and ready to receive on behalf of his
government any communication which it might be the pleasure
of the President of the Mexican republic to make to it. And
it is not improper here to add, that it has been matter of regret
with the government of the United States, that, while, being
animated by a sincere desire at all times to cultivate the most
amicable relations with Mexico, it has not failed to maintain
VOL. vi. 38
446 RELATIONS WITH MEXICO.
near that government a mission of the highest rank known to
its usages, Mexico, for a long time, has had no representative
near the government of the United States.
But the manner of the communication from M. de Boca-
negra, however novel and extraordinary, is less important than
its contents and character, which surprise the government of
the United States by a loud complaint of the violation of its
neutral duties. M. de Bocanegra, speaking, as he says, by the
express order of the President of the Mexican republic, declares
that the amicable relations between the two countries might
have been lamentably disturbed since the year 1835, when the
revolution in Texas broke out, had not Mexico given so many
evidences of its forbearance, and made so many and so great sac-
rifices for the sake of peace, in order that the world might not see,
with pain and amazement, two nations which appear destined
to establish the policy and interests of the American continent
divided and ravaged by the evils of war.
The language implies that such has been the conduct of the
United States towards Mexico, that war must have ensued be-
fore the present time, had not Mexico made great sacrifices to
avoid such a result; a charge which the government of the
United States utterly denies and repels. It is wholly ignorant
of any sacrifices made by Mexico in order to preserve peace, or
of any occasion calling on its government to manifest uncom-
mon forbearance. On the contrary, the government of the
United States cannot but be of opinion, that, if the history of
the, occurrences between the two governments, and the state of
things at this moment existing between them, be regarded, both
the one and the other will demonstrate that it is the conduct of
the government of the United States which has been marked,
in an especial manner, by moderation and forbearance. Injuries
and wrongs have been sustained by citizens of the United
States, not inflicted by individual Mexicans, but by the author-
ity of the government ; for which injuries and wrongs, numer-
ous as they are, and outrageous as is the character of some of
1hem, and acknowledged as they are by Mexico herself, redress
has been sought only by mild and peaceable means, and no
indemnity asked but such as the strictest justice imperatively
demanded. A desire not to disturb the peace and harmony of
the two countries has led the government of the United States
INDEPENDENCE OF TEXAS. 447
to be content with the lowest measure of remuneration. Mex-
ico herself must admit, that, in all these transactions, the con-
duct of the United States toward her has been signalized, not
by the infliction of injuries, but by the manifestation of a
friendly feeling and a conciliatory spirit.
The government of the United States will not be unjust in
its sentiments toward Mexico; it will not impute to its govern-
ment any desire to disturb the peace ; it acquits it of any de-
sign to spread the ravages and horrors of war over the two
countries ; and it leaves it to Mexico herself to avow her own
motives for her pacific policy, if she have any other motive than
those of expediency and justice; provided, however, that such
avowal of her motives carry with it no imputation or reflection
upon the good faith and honor of the United States.
The revolution in Texas, and the events connected with it
and springing out of it, are M. de Bocanegra's principal topic ;
and it is in relation to these that his complaint is founded. His
government, he says, flatters itself that the government of the
United States has not promoted the insurrection in Texas,
favored the usurpation of its territory, or supplied the rebels
with vessels, ammunition, and money. If M. de Bocanegra
intends this as a frank admission of the honest and cautious
neutrality of the government of the United States in the con-
test between Mexico and Texas, he does that government jus-
tice, and no more than justice ; but if the language be intended
to intimate an opposite and a reproachful meaning, that mean-
ing is only the more offensive for being insinuated rather than
distinctly avowed. M. de Bocanegra would seem to represent
that, from 1835 to the present time, citizens of the United
States, if not their government, have been aiding rebels in
Texas in arms against the lawful authority of Mexico. This
is not a little extraordinary. Mexico may have chosen to con-
sider, and may still choose to consider, Texas as having been
at all times, since 1835, and as still continuing, a rebellious prov-
ince ; but the world has been obliged to take a very different
view of the matter. From the time of the battle of San Ja-
cinto, in April, 1836, to the present moment, Texas has exhibited
the same external signs of national independence as Mexico
herself, and with quite as much stability of government. Prac-
tically free and independent, acknowledged as a political sover-
448 RELATIONS WJTH MEXICO.
eignty by the principal powers of the world, no hostile foot
finding rest within her territory for six or seven years, and
Mexico herself refraining, for all that period, from any further
attempt to reestablish her own authority over that territory, it
cannot but be surprising to find M. de Bocanegra complain-
ing, that, for that whole period, citizens of the United States, or
its government, have been favoring the rebels of Texas, and
supplying them with vessels, ammunition, and money, as if
the war for the reduction of the province of Texas had been
constantly prosecuted by Mexico, and her success prevented b\
these influences from abroad!
The general facts appertaining to the settlement of Texas,
and the revolution in its government, cannot but be well known
to M. de Bocanegra. By the treaty of the 22d of February,
1819, between the United States and Spain, the Sabine was
adopted as the line of boundary between the two powers. Up
io that period, no considerable colonization had been effected in
Texas ; but the territory between the Sabine and the Rio
Grande being confirmed to Spain by the treaty, applications
were made to that power for grants of land ; and such grants,
or permissions of settlement, were, in fact, made by the Spanish
authorities in favor of citizens of the United States proposing
to emigrate to Texas in numerous families, before the declara-
tion of independence by Mexico. And these early grants were
confirmed, as is well known, by successive acts of the Mexican
government, after its separation from Spain. In January, 1823,
a national colonization law was passed, holding out strong in-
ducements to all persons who should incline to undertake the
settlement of uncultivated lands ; and although the Mexican
law prohibited for a time citizens of foreign countries from set-
tling, as colonists, in territories immediately adjoining such for-
eign countries, yet even this restriction was afterward repealed
or suspended ; so that, in fact, Mexico, from the commencement
of her political existence, held out the most liberal inducements
to emigrants into her territories, with full knowledge that tiese
inducements were likely to act, and expecting they would act,
with the greatest effect upon citizens of the United States,
especially of the Southern States, whose agricultural pursuits
uaturally rendered the rich lands of Texas, so well suited to
their accustomed occupation, objects of desire to them, The
INDEPENDENCE OF TEXAS. 449
early colonists of the United States, introduced by Moses and
Stephen Austin under these inducements and invitations, were
persons of most respectable character, and their undertaking
was attended with very severe hardships, occasioned in no small
degree by the successive changes in the government of Mexico.
They nevertheless persevered, and accomplished a settlement.
And, under the encouragements and allurements thus held out
by Mexico, other emigrants followed, and many thousand col-
onists from the United States and elsewhere had settled in
Texas, within ten years from the date of Mexican independence.
Having some reason to complain, as they thought, of the gov-
ernment over them, and especially of the aggressions of the
Mexican military stationed in Texas, they sought relief by ap-
plying to the supreme government for the separation of Texas
from Coahuila, and for a local government for Texas itself.
Not having succeeded in this object, in the process of time, and
in the progress of events, they saw fit to attempt an entire sepa-
ration from Mexico, to set up a government of their own, and
to establish a political sovereignty. War ensued ; and the battle
of San Jacinto, fought on the 21st of April, 1836, achieved theii
independence. The war was from that time at an end, and in
March following the independence of Texas was formally ac-
knowledged by the government of the United States.
In the events leading to the actual result of these hostilities
the United States had no agency, and took no part. Its gov-
ernment had, from the first, abstained from giving aid or succor
to either party. It knew its neutral obligations, and fairly en-
deavored to fulfil them all. It acknowledged the indepen-
dence of Texas only when that independence was an apparent
and an ascertained fact ; and its example in this particular has
been followed by several of the most considerable powers of
Europe.
It has been sometimes stated, as if for the purpose of giving
more reason to the complaints of Mexico, that, of the military
force which acted against Mexico with efficiency and success
in 1836, a large portion consisted of volunteers then fresh from
the United States. But this is a great error. It is weii ascer-
tained, that, of those who bore arms in the Texan ranks in th^
battle of San Jacinto, three fourths, at least, were colonists, in-
vited into Texas by the grants and the colonization laws of
38*
150 RELATIONS WITH MEXICO.
Mexico, and called to the field by the exigencies of the times, in
1836, from their farms and other objects of private pursuit.
M. de Bocanegra's complaint is twofold. First, that citizens
of the United States have supplied the rebels in Texas with
ammunition, arms, vessels, money, and recruits; have publicly
raised forces in their cities and fitted out vessels in their ports,
loaded them with munitions of war, and marched to commit
hostilities against a friendly nation,' under the eye and with the
knowledge of the public authorities of the United States. In
all this M. de Bocanegra appears to forget that, while the
United States are at peace with Mexico, they are also at peace
with Texas ; that both stand on the same footing of friendly
nations; that, since 1837, the United States have regarded Tex-
as as an independent sovereignty as much as Mexico ; and
that trade and commerce with citizens of a government at war
with Mexico cannot, on that account, be regarded as an inter-
course by which assistance and succor are given to Mexican
rebels. The whole current of M. de Bocanegra's remarks runs
in the same direction, as if the independence of Texas had not
been acknowledged. It has been acknowledged ; it was ac-
knowledged in 1837, against the remonstrance and protest of
Mexico ; and most of the acts of any importance of which M.
de Bocanegra complains flow necessarily from that recognition.
He speaks of Texas as still being " an integral part of the ter-
ritory of the Mexican republic" ; but he cannot but understand
that the United States do not so regard it. The real complaint
of Mexico, therefore, is, in substance, neither more nor less than
a complaint against the recognition of Texan independence.
It may be thought rather late to repeat that complaint, and not
quite just to confine it to the United States, to the exemption
of England, France, and Belgium, unless the United States,
having been the first to acknowledge the independence of Mex-
ico herself, are to be blamed for setting an example for the recog-
nition of that of Texas. But it is still true that M. de Bo-
canegra's specification of his grounds of complaint and remon-
strance is mainly confined to such transactions and occurrences
as are the natural consequence of the political relations existing
between Texas and the United States. Acknowledging Texas
to be an independent nation, the government of the United
States of course allows and encourages lawful trade and com-
INDEPENDENCE OF TEXAS. 451
meree between the two countries. If articles contraband of war
be found mingled with this commerce, while Mexico and Texas
are belligerent states, Mexico has the right to intercept the tran-
sit of such articles to her enemy. This is the common right of
all belligerents, and belongs to Mexico in the same extent as to
other nations. But M. de Bocanegra is quite well aware that
it is not the practice of nations to undertake to prohibit their
own subjects, by previous laws, from trafficking in articles con-
traband of war. Such trade is carried on at the risk of those
engaged in it, under the liabilities and penalties prescribed by
the law of nations or by particular treaties. If it be true, there-
fore, that citizens of the United States have been engaged in a
commerce by which Texas, an enemy of Mexico, has been sup-
plied with arms and munitions of war, the government of the
United States, nevertheless, was not bound to prevent it, could
not have prevented it without a manifest departure from the
principles of neutrality, and is in no way answerable for the
consequences. The treaty of the 5th of April, 1831, between
the United States and Mexico itself, shows most clearly how
little foundation there is for the complaint of trading with Tex-
as, if Texas is to be regarded as a public enemy of Mexico.
The sixteenth article declares : " It shall likewise be lawful for
the aforesaid citizens, respectively, to sail with their vessels and
merchandise before mentioned, and to trade, with the same lib-
erty and security, from the places, ports, and havens of those
who are enemies of both or either party, without any opposi-
tion or disturbance whatsoever, not only directly from the pla-
ces of the enemy before mentioned to neutral places, but also
from one place belonging to an enemy to another place belong-
ing to an enemy, whether they be under the jurisdiction of the
same government, or under several."
The eighteenth article enumerates those commodities which
shall be regarded as contraband of war ; but neither that article
nor any other imposes on either nation any duty of preventing,
by previous regulation, commerce in such articles. Such com-
merce is left to its ordinary fate, according to the law of na-
tions. It is only, therefore, by insisting, as M. de Bocanegra
does insist, that Texas is still a part of Mexico, that he can
maintain any complaint. Let it be repeated, therefore, that, if
the things against which he remonstrates be wrong, they have
452 RELATIONS WITH MEXICO.
their source in the original wrong of the acknowledging nt of
Texan independence. But that acknowledgment is not likely
to be retracted.
There can be no doubt at all, that, for the last six years, the
trade in articles contraband of war between the United States
and Mexico has been greater than between the United States
and Texas. It is probably greater at the present moment.
Why has not Texas a right to complain of this ? For no rea-
son, certainly, but because the permission to trade, or the actual
trading, by the citizens of a government, in articles contraband
of war, is not a breach of neutrality.
M. de Bocanegra professes himself unable to comprehend
how those persons of whom he complains have been able to
evade the punishment decreed against them by the laws of the
United States ; but he does not appear to have a clear idea
of the principles or provisions of those laws. The duties of
neutral nations, in time of war, are prescribed by the law of
nations, which is imperative and binding upon all governments;
and nations not unfrequently establish municipal regulations
for the better government of the conduct of their subjects or
citizens.
This has been done by the United States, in order to main-
tain with greater certainty a strict and impartial neutrality
pending war between other countries. And wherever a vio-
lation of neutral duties, as they exist by the law of nations,
or any breach of its own laws, has been brought to the notice
of the government, attention has always been paid to it.
At an early period of the Texan revolution, strict orders were
given by the President of the United States to all officers
on the southern and southwestern frontier, to take care that
those laws should be observed ; and the attention of the gov-
ernment of the United States has not been called to any spe-
cific violation of them since the manifestation on the part of
Mexico of an intention to renew hostilities with Texas; and
all officers of the government remain charged with the strict
and faithful execution of these laws.
On a recent occasion, complaint was made by the repre-
sentatives of Texas, that an armament wTas fitted out in the
United States for the service of Mexico against Texas.
Two vessels of war, it was alleged, built or purchased in
INDEPENDENCE OF TEXAS. 453
the United States for the use of the government of Mexico,
and well understood as intended to be employed against Tex-
as, were equipped and ready to sail from the waters of New
York. The case was carefully inquired into, official examina-
tion was made, and legal counsel invoked. It appeared to be a
case of great doubt ; but Mexico was allowed the benefit of
that doubt, and the vessels left the United States, with the
whole or a part of their armament actually on board. The
same administration of even-handed justice, the same impar-
tial execution of the laws toward all parties, will continue to be
observed.
If forces have been raised in the United States, or vessels
fitted out in their ports for Texan service, contrary to law, no
instance of which has yet come to the knowledge of the gov-
ernment, prompt attention will be paid to the first case, and
to all cases which may be made known to it. As to advances,
loans, or donations of money or goods, made by individuals
to the government of Texas or its citizens, M. de Bocanegra
hardly needs to be informed, that there is nothing unlawful in
this, so long as Texas is at peace with the United States, and
that these are things which no government undertakes to re-
strain. Other citizens are equally at liberty, should they be so
inclined, to show their good-will toward Mexico by the same
means. Still less can the government of the United States be
called upon to interfere with opinions uttered in the public as-
semblages of a free people, accustomed to the independent ex-
pression of their sentiments, resulting in no violation of the
laws of their country, or of its duties as a neutral state. To-
ward the United States, Mexico and Texas stand in the same
relation, as independent states at war. Of the character of
that war mankind will form their own opinions ; and in the
United States, at least, the utterance of those opinions cannot
be suppressed.
The second part of M. de Bocanegra's complaint is thus
stated : " No sooner does the Mexican government, in the ex-
ercise of its rights, which it cannot and does not desire £0 re-
nounce, prepare means to recover a possession usurped from it,
than the whole population of the United States, especially in
the Southern States, is in commotion ; and, in the most public
manner, a large portion of them is directed upon Texas."
454 RELATIONS WITH MEXICO.
And how does M. de Bocanegra suppose that the givern*
ment of the United States can prevent, or is bound to under-
take to prevent, the people from thus going to Texas? This
is emigration, — the same emigration, though not under the
same circumstances, which Mexico invited to Texas before the
revolution. These persons, so far as is known to the govern-
ment of the United States, repair to Texas, not as citizens of
the United States, but as ceasing to be such citizens, and as
changing, at the same time, their allegiance and their domicile*
Should they return, after having entered into the service of a
foreign state, still claiming to be citizens of the United States,
it will be for the authorities of the United States government
to determine how far they have violated the municipal laws of
the country, and what penalties they have incurred. The gov-
ernment of the United States does not maintain, and never
has maintained, the doctrine of the perpetuity of natural alle-
giance. And surely Mexico maintains no such doctrine ; be-
cause her actually existing government, like that of the United
States, is founded in the principle that men may throw off the
obligation of that allegiance to which they are born. The gov-
ernment of the United States, from its origin, has maintained
legal provisions for the naturalization of such subjects of for-
eign states as may choose to come hither, make their home in
the country, and, renouncing their former allegiance, and com-
plying with certain stated requisitions, to take upon themselves
the character of citizens of this government. Mexico herself
has laws granting equal facilities to the naturalization of for-
eigners. On the other hand, the United States have not passed
any law restraining their own citizens, native or naturalized,
from leaving the country and forming political relations else-
where. Nor do other governments, in modern times, attempt
any such thing. It is true that there are governments which
assert the principle of perpetual allegiance ; yet, even in cases
where this is not rather a matter of theory than practice, the
duties of this supposed continuing allegiance are left to be de-
manded of the subject himself, when within the reach of the
power of his former government, and as exigencies may arise ;
and are not attempted to be enforced by the imposition of
previous restraint, preventing men from leaving their country.
Upon this subject of the emigration of individuals from neu-
INDEPENDENCE OF TEXAS. 455
fcral to belligerent states, in regard to which M. de Bocanegra
appears so indignant, we must be allowed to bring Mexico into
her own presence, to compare her with herself, and respectfully
invite her to judge the matter by her own principles and her
own conduct. In her great struggle against Spain for her own
independence, did she not open her arms wide to receive all who
would come to her from any part of the world ? And did not
multitudes flock to her new-raised standard of liberty, from the
United States, from England, Ireland, France, and Italy, many
of whom distinguished themselves in her service, both by sea
and land? She does not appear to have supposed that the
governments of these persons, thus coming to unite their fate
with hers, were, by allowing the emigration, even pending a
civil war, furnishing just cause of offence to Spain. Even in
he. military operations against Texas, Mexico employed many
foreign emigrants; and it may be thought remarkable that, in
those very operations, not long before the battle of San Jacinto,
a native citizen of the United States held high command in her
service, and performed feats of no mean significance in Texas.
Of that toleration, therefore, as she calls it, and which she now
so warmly denounces, Mexico in that hour of emergency em-
braced the benefits eagerly, and to the full extent of her power.
May we not ask, then, how she can reconcile her present com-
plaints with her own practice, as well as how she accounts for
so long and unbroken a silence upon a subject on which her re-
monstrance is now so loud ?
Spain chose to regard Mexico only in the light of a rebellious
province for near twenty years after she had asserted her own
independence. Does Mexico now admit, that, for all that pe-
riod, notwithstanding her practical emancipation from Spanish
power, it was unlawful for the subjects and citizens of other
governments to carry on with her the ordinary business of com-
merce, or to accept her tempting offers to emigrants ? Certain-
ly such is not her opinion.
Might it not be asked, then, even if the United States had
not already and long ago acknowledged the independence of
Texas, how they should be expected to wait for the accomplish-
ment of the object, now existing only in purpose and intention,
of the resubjugation of that territory by Mexico ? How long,
let it be asked, in the judgment of Mexico herself, is the fact of
456 RELATIONS WITH MEXICO
actual independence to be held of no avail against an avowed
purpose of future reconquest ?
M. de Bocanegra is pleased to say, that, if war actually ex-
isted between the two countries, proceedings more hostile, on
the part of the United States, could not have taken place, nor
could the insurgents of Texas have obtained more effectual co-
operation than they have obtained.
This opinion, however hazardous to the discernment and just
estimate of things of those who avow it, is yet abstract an
theoretical, and, so far, harmless. The efficiency of American
hostility to Mexico has never been tried ; the government has
no desire to try it. It would not disturb the peace for the sake
of showing how erroneously M. de Bocanegra has reasoned;
while, on the other hand, it trusts that a just hope may be en-
tertained that Mexico will not inconsiderately and needlessly
hasten into an experiment by which the truth or fallacy of his
sentiments may be brought to an actual ascertainment.
M. de Bocanegra declares, in conclusion, that his govern-
ment finds itself under the necessity of protesting solemmy
against the aggressions which the citizens of the United Stages
are reiterating upon the Mexican territory, and of declaring, in
a positive manner, that it will consider as a violation of the
treaty of amity the toleration of that course of conduct, which
he alleges inflicts on the Mexican republic the injuries and in-
conveniences of war. The President exceedingly regrets both
the sentiment and the manner of this declaration. But it can
admit of but one answer. . The Mexican government appears
to require that which could not be granted, in whatever lan-
guage or whatever tone requested. The government of the
United States is a government of law.
The chief executive magistrate, as well as functionaries in
every other department, is restrained and guided by the Consti-
tution and the laws of the land. Neither the Constitution, nor
the laws of the land, nor principles known to the usages of
modern states, authorize him to interdict lawful trade between
the United States and Texas, or to prevent, or attempt to pre-
vent, individuals from leaving the United States for Texas, or
any other foreign country.
If such individuals enter into the service of Texas, or any
other foreign state, the government of the Uniled States no
INDEPENDENCE OF TEXAS. 457
longer holds over them the shield of its protection. They must
stand or fall in their newly assumed character, and according to
the fortunes which may betide it. But the government of the
United States cannot be called upon to prevent their emigra-
tion ; and it must be added, that the Constitution, public trea-
ties, and the laws oblige the President to regard Texas as an
independent state, and its territory as no part of the territory of
Mexico. Every provision of law, every principle of neutral ob-
ligation, will be sedulously enforced in relation to Mexico, as in
relation to other powers, and to the same extent and with the
same integrity of purpose. All this belongs to the constitutional
power and duty of the government, and it will all be fulfilled.
But the continuance of amity with Mexico cannot be purchased
at any higher rate. If the peace of the two countries is to be
disturbed, the responsibility will devolve on Mexico. She must
be answerable for consequences. The United States, let it
be again repeated, desire peace. It would be with infinite pain
that they should find themselves in hostile relations with any
of the new governments on this continent. But their govern-
ment is regulated, limited, full of the spirit of liberty, but sur-
rounded, nevertheless, with just restraints ; and, greatly and
fervently as it desires peace with all states, and especially with
its more immediate neighbors, yet no fear of a different state of
things can be allowed to interrupt its course of equal and exact
justice to all nations, nor to jostle it out of the constitutional
orbit in which it revolves.
I am, Sir, your obedient servant,
Daniel Webster
Waddt Thompson, Esq., &c, &c, &c.
M. de Bocanegra-to Mr. Webster,
[translation.]
National Palace, Mexico, May 31, 1842.
The undersigned, Minister of Foreign Relations and Gov-
ernment of the Mexican republic, had the honor, a few days
since, to address the honorable Secretary of State of the United
States, in order to protest formally against the government of
that republic, in the name of his Excellency the Provisional
President, on account of the continual hostilities and aggres-
sions of citizens of the United States against the Mexican ter«
vol vi. 39
458 RELATIONS WITH MEXICO.
ritory; and, although he might hope for a flattering result in
the change of proceedings, he finds himself, in consequence of
the continuation of those proceedings, under the necessity of
again calling the attention* of the Secretary of State to the un-
deniable toleration which has been and is still afforded to the
enemies of a nation sincerely friendly, and bound by the sol-
emn compacts of a treaty, which unites the two republics.
In that note the undersigned, after setting before the Secre-
tary the prudence with which the government of Mexico has
sought, ever since the commencement of the revolution in Tex-
as, to conduct all its relations with the United States, so as to
avoid a rupture between the two nations, which, from their im-
portance and other serious considerations, seem destined to fix
the policy and the lot of the vast and rich continent of Ameri-
ca, he flattered himself with the idea that the Cabinet of Wash-
ington would not protect, either openly or secretly, or in any
way, the scandalous usurpation of an acknowledged portion
of the national territory. He, however, regrets that he must
judge from facts, open to all the world, that the very cabinet of
the United States, and the subaltern and local authorities, do
observe a conduct openly at variance with the most sacred prin-
ciples of the law of nations and the solemn compacts of amity
existing between the two nations ; sufficient proof being afford-
ed by the consent given to the formation of the most tumultu-
ous public assemblies, in various parts of the United States
themselves, to the equipment of armaments, and the embarka-
tion of volunteers in large bodies, and to the preparation and
disposal of every thing calculated to contribute to aid the Tex-
ans, and to the invasion of a neighboring and friendly republic.
The Mexican government cannot understand such conduct;
and, being itself frank in its proceedings, and animated at the
same time by a sincere desire that the relations now existing
between this republic and the United States should not suffer
the slightest alteration, it considers itself bound in duty to re-
peat, with every formality, its former protest against such tol-
eration ; the continuance of which it will regard as a positive
act of hostility against this republic, which will regulate the
conduct to be observed by it agreeably to the dictates of justice
and to the interests and dignity of the nation.
The undersigned hopes that the Secretary will be pleased to
INDEPENDENCE OF TEXAS. 459
reply with that promptness which the importance of the subject
requires ; and he avails himself, with pleasure, of this opportu-
nity to repeat to that gentleman the assurance of his most dis«
tinguished consideration, with which he remains, &c.
J. M. DE BOCANEGRA.
Hon. Daniel Webster, Secretary of State of the United States of America.
Mr. Webster to Mr. Thompson.
Department of State, Washington, July 13, 1842.
Sir, — After writing to you on the 8th instant, I received,
through the same channel as the former, M. de Bocanegra' s
second letter, and at the same time your despatch of the 6th of
June, and your private letter of the 21st. This last letter of M.
de Bocanegra was written, as you will see, before it was possi-
ble for him to expect an answer to his first, which answer is
now forwarded, and shows the groundless nature of the com-
plaints of Mexico. The letter itself is highly exceptionable and
offensive. It imputes violations of honor and good faith to the
government of the United States, not only in the most unjust,
but in the most indecorous manner. You have not spoken of
it in terms too strong, in your circular to the members of the
diplomatic corps.
On the receipt of this note, you will write a note to M. de
Bocanegra, in which you will say, that the Secretary of State
of the United States, on the 9th of July, received his letter of the
31st of May; that the President of the United States considers
the language and tone of that letter derogatory to the character
of the United States, and highly offensive, as it imputes to their
government a direct breach of faith; and that he directs that no
other answer be given to it, than the declaration, that the con-
duct of the government of the United States, in regard to the
war between Mexico and Texas, having been always hitherto
governed by a strict and impartial regard to its neutral obliga-
tions, will not be changed or altered in any respect or in any
degree. If for this the government of Mexico shall see fit to
change the relations at present existing between the two coun-
tries, the responsibility remains with herself.
I am, Sir, your obedient servant,
Daniel Webster.
Waddy Thompson, Esq., &c., &c., &c.
460 RELATIONS WITH MEXICO.
CAPTURE OF MONTEREY.
Mr. Webster to Mr. Thompson.
Department of State, Washington, January 17, 1843.
Sir, — Your despatches to No. — , inclusive, and your private
ietter of the 15th ultimo, have been received.
Although the department is without official intelligence of the
seizure of Monterey by Commodore Jones, in command of the
United States squadron in the Pacific, it is deemed proper that
no time should be lost in acquainting the Mexican government,
that the transaction was entirely unauthorized. If, therefore,
the account of that event should prove to be authentic, you will
take occasion to inform the Minister for Foreign Affairs, orally,
that Commodore Jones had no warrant from this government
for the proceeding, and that the President exceedingly regrets
its occurrence. I am, Sir, your obedient servant,
Daniel Webster.
Waddt Thompson, Esq., &c., &c., &c.
Mr. Webster to General Almonte.
Department of State, Washington, January 21, 1843.
The undersigned, Secretary of State of the United States,
has the honor to communicate to General Almonte, Envoy Ex-
traordinary and Minister Plenipotentiary of the Mexican repub-
lic, a copy of an instruction which has been addressed by this
department to the minister of the United States at Mexico,
upon the subject of the reported seizure of Monterey, on the
Mexican coast, by Commodore Jones, in command of the Unit-
ed States squadron in the Pacific.
The undersigned avails himself of the occasion to offer Gen-
eral Almonte renewed assurances of his very distinguished con-
sideration.
Daniel Webster.
General Don J. N. Almonte, &c.
To this note an answer was returned by General Almonte on the 24th
of January, expressing his regret that nothing was said by Mr. Webstei
about punishing Commodore Jones, and intimating that compensation
ought to be made by the United States for the losses suffered by citizens
of Mexico in consequence of the capture of Monterey. To this letter
of General Almonte the following reply was returned by Mr. Webster
CAPTURE OF MONTEREY. 461
Mr. Webster to General Almonte.
Department of State, Washington, January 30, 1843.
The undersigned, Secretary of State of the United States,
has had the honor to receive the note of the 24th instant of
General Almonte, Envoy Extraordinary and Minister Plenipo-
tentiary of the Mexican republic.
General Almonte has already been made acquainted with
the instruction addressed from this department, on the 17th in-
stant, to the minister of the United States at Mexico, respect-
ing the transaction at Monterey, in Upper California, in which
Commodore Jones was concerned ; but General Almonte now
expresses his regret that he sees in that instruction no decla-
ration that Commodore Jones will be exemplarily punished for
the extraordinary act of excess committed by him, in violation,
of the faith of treaties, and in abuse of the hospitality with
which the peaceable inhabitants of Monterey were prepared to
receive him.
The undersigned has the honor to inform General Almonte,
that, before the receipt of his note, the President had given direc-
tions for the adoption of such a course of proceeding toward
Commodore Jones as, in his opinion, was due to the circum-
stances of the case, to the preservation of the principle and
practice of absolute and entire abstinence, on the part of mili-
tary power, from all aggression in time of peace, and especially
due to the friendly relations at the present time happily subsist-
ing between the United States and Mexico.
But General Almonte and his government must see that
Commodore Jones intended no indignity to the government of
Mexico, nor any thing unlawful toward her citizens. Unfortu-
nately, he supposed, as he asserts, that a state of war actually
existed, at the time, between the two countries. If this suppo-
sition had been well founded, all that he did would have been
justifiable; so that, whatever of imprudence or impropriety he
may be chargeable with, there is nothing to show that he in-
tended any affront to the honor of the Mexican government, or
to violate the relations of peace.
General Almonte is aware of some of the circumstances in
which this belief of the actual existence of a state of hostilities
probably might have had its origin. It is not deemed necessary
now to advert to those circumstances, nor is it at present known
39*
462 . RELATIONS WITH MEXICO.
to the government of the United States what other causes may
nave existed to strengthen this belief, or to make it general
along the western shore of this continent. In the clearly mani-
fest absence of all illegal and improper intent, some allowance
may be properly extended toward acts of indiscretion in a quar-
ter so very remote, and in which correct information of distant
events is not soon or easily obtained.
If, in this transaction, citizens of Mexico have received any
injury in their persons or property, the government of the
United States will undoubtedly feel itself bound to make ample
reparation ; and the representations of General Almonte on that
subject will receive the most respectful and immediate consid-
eration Happily, no lives were lost ; nor is it understood that
•any considerable injury was suffered by any one.
The undersigned is directed by the President to assure Gen-
eral Almonte and his government, that the government of the
United States will at all times be among the last to authorize
or justify any aggression on the territory of a nation with whom
it is at peace, or any indignity to its government. Sensibly
alive to any indignity, if offered to itself, it is equally resolved
to give no such cause of offence to its neighbors. And the un-
dersigned is directed to assure General Almonte and his gov-
ernment of the pain and the surprise which the President expe-
rienced on receiving information of this transaction. Under
these assurances, the President hopes that it may pass away
without leaving in the mind of the government of Mexico any
other feeling than that in which the government of the United
States entirely partakes ; a feeling of deep regret at what has
happened, and a conviction that no such unfortunate and unau-
thorized occurrence ought in any degree to impair the amicable
relations subsisting between the two countries, so evidently to
the advantage of both.
The undersigned has been made acquainted with the com*
munication addressed by the Mexican Secretary of State to the
minister of the United States at Mexico, and with the answer
of the latter gentleman to that communication.
The undersigned avails himself of this occasion to offer Gen-
eral Almonte renewed assurances of his most distinguished con-
sideration.
Daniel Webster.
General Don J. N. Almonte, &c.
CHINA AND THE SANDWICH ISLANDS.
Message from the President of the United States, on the Subject
of the Trade and Commerce of the United States with the Sand-
wich Islands, and of Diplomatic Intercourse with their Govern-
ment ; also, in Relation to the new Position of Affairs in China,
growing- out of the late War between Great Britain and China,
and recommending Provision for a Diplomatic Agent, Decem-
ber 31, 1842.*
To the House of Representatives of the United States :
I communicate herewith to Congress copies of a correspond-
ence which has recently taken place between certain agents
of the government of the Hawaiian or Sandwich Islands, and
the Secretary of State.
The condition of those islands has excited a good deal of in-
terest, which is increasing by every successive proof that their
inhabitants are making progress in civilization, and becoming
more and more competent to maintain regular and orderly civil
government. They lie in the Pacific Ocean, much nearer to
this continent than the other, and have become an important
place for the refitment and provisioning of American and Euro-
pean vessels.
Owing to their locality, and to the course of the winds which
prevail in this quarter of the world, the Sandwich Islands are
the stopping-place for almost all vessels passing from continent
to continent across the Pacific Ocean. They are especially re-
sorted to by the great numbers of vessels of the United States
which are engaged in the whale-fishery in those seas. The
number of vessels of all sorts, and the amount of property owned
by citizens of the United States, which are found in those isl-
* This Message was written by Mr. Webster.
464 CHINA AND THE SANDWICH ISLANDS.
ands in the course of a year, are stated, probably with sufficient
accuracy, in the letter of the agents.
Just emerging from a state of barbarism, the government
of the islands is as yet feeble ; but its dispositions appear to be
just and pacific, and it seems anxious to improve the condition
of its people by the introduction of knowledge, of religious and
moral institutions, means of education, and the arts of civilized
life.
It cannot but be in conformity with the interest and the
wishes of the government and the people of the United States,
that this community, thus existing in the midst of a vast ex-
panse of ocean, should be respected, and all its rights strictly
and conscientiously regarded. And this must also be the true
interest of all other commercial states. Far remote from the
dominions of European powers, its growth and prosperity as
an independent state may yet be in a high degree useful to all
whose trade is extended to those regions, while its nearer ap-
proach to this continent, and the intercourse which American
vessels have with it, such vessels constituting five sixths of
all which annually visit it, could not but create dissatisfaction
on the part of the United States at any attempt by another
power, should such attempt be threatened or feared, to take
possession of the islands, colonize them, and subvert the native
government. Considering, therefore, that the United States
possess so very large a share of the intercourse with those
islands, it is deemed not unfit to make the declaration, that
their government seeks nevertheless no peculiar advantages, no
exclusive control over the Hawaiian government, but is content
with its independent existence, and anxiously wishes for its
security and prosperity. Its forbearance in this respect, under
the circumstances of the very large intercourse of their citizens
with the islands, would justify this government, should events
hereafter arise to require it, in making a decided remonstrance
against the adoption of an opposite policy by any other power.
Under the circumstances, I recommend to Congress to provide
for a moderate allowance to be made out of the treasury to
the consul residing there, that, in a government so new and a
country so remote, American citizens may have respectable
authority to which to apply for redress in case of injury to
their persons and property, and to whom the government of the
CHINA AND THE SANDWICH ISLANDS 465
country may also make known any acts committed by Ameri-
can citizens, of which it may think it has a right to complain.
Events of considerable importance have recently transpired
in China. The military operations carried on against that em-
pire by the English government have been terminated by a
treaty, according to the terms of which four important ports,
hitherto shut against foreign commerce, are to be open to Brit-
ish merchants, namely, Amoy, Fu-Chow, Ning-po, and Shang-
hai. It cannot but be important to the mercantile interest of
the United States, whose intercourse with China at the single
port of Canton has already become so considerable, to ascertain
whether these other ports, now open to British commerce, are
to remain shut, nevertheless, against the commerce of the
United States. The treaty between the Chinese government
and the British commissioner provides neither for the admission
nor the exclusion of the ships of other nations. It would seem,
therefore, that it remains with every other nation, having com-
mercial intercourse with China, to seek to make proper arrange-
ments for itself with the government of that empire in this respect.
The importations into the United States from China are
Known to be large, having amounted in some years to nine
millions of dollars. The exports, too, from the United States
to China constitute an interesting and growing part of the com-
merce of the country. It appears that in the year 1841, in the
direct trade between the two countries, the value of the exports
from the United States amounted to seven hundred and fifteen
thousand dollars in domestic produce, and four hundred and
eighty-five thousand dollars in foreign merchandise. But the
whole amount of American produce which finally reaches China,
and is there consumed, is not comprised in these sums, which
include only the direct trade. Many vessels with American
products on board sail with a primary destination to other
countries, but ultimately dispose of more or less of their cargoes
in the port of Canton.
The peculiarities of the Chinese government and the Chinese
character are well known. An empire supposed to contain
three hundred millions of subjects, fertile in various rich prod-
ucts of the earth, not without the knowledge of letters and of
many arts, and with large and expensive accommodations for
internal intercourse and traffic, has for ages sought to exclude
466 CHINA AND THE SANDWICH ISLANDS.
the visits of strangers and foreigners from its dominions, and
has assumed for itself a superiority over all other nations.
Events appear likely to break down and soften this spirit of
non-intercourse, and to bring China, ere long, into the relations
which usually subsist between civilized states. She has agreed
in the treaty with England that correspondence between the
agents of the two governments shall be on equal terms ; a con-
cession which it is hardly probable will hereafter be withheld
from other nations.
It is true, that the cheapness of labor among the Chinese,
their ingenuity in its application, and the fixed character of
their habits and pursuits, may discourage the hope of the open-
ing of any great and sudden demand for the fabrics of other
countries ; but experience proves that the productions of West-
ern nations find a market, to some extent, among the Chinese ;
that that market, so far as respects the productions of the Unit-
ed States, although it has considerably varied in successive
seasons, has, on the whole, more than doubled within the last
ten years ; and it can hardly be doubted that the opening of
several new and important ports, connected with parts of the
empire heretofore seldom visited by Europeans or Americans,
would exercise a favorable influence upon the demand for such
productions.
It is not understood that the immediate establishment of cor-
respondent embassies and missions, or the permanent residence
of diplomatic functionaries, with full powers, of each country,
at the court of the other, is contemplated between England and
China; although, as has been already observed, it has been
stipulated that intercourse between the two countries shall
hereafter be on eq«ual terms. An ambassador, or envoy extra-
ordinary and minister plenipotentiary, can only be accredited,
according to the usages of Western nations, to the head or sov-
ereign of the state ; and it may be doubtful whether the court
of Pekin is yet prepared to conform to these usages, so far as
to receive a minister plenipotentiary to reside near it.
Being of opinion, however, that the commercial interests of
the United States connected with China require, at the present
moment, a degree of attention and vigilance such as there is
no agent of this government on the spot to bestow, I recom-
mend to Congress to make appropriation for the compensation
INTERCOURSE WITH CHINA. 467
of a commissioner to reside in China, to exercise a watchful
care over the concerns of American citizens, and for the pro-
tection of their persons and property ; empowered to hold inter-
course with the local authorities, and ready, under instructions
from his government, should such instructions become necessary
and proper hereafter, to address himself to the high functionaries
of the empire, or, through them, to the Emperor himself.
It will not escape the observation of Congress, that, in order
to secure the important objects of any such measure, a citizen
of much intelligence and weight of character should be em-
ployed on such agency ; and that, to secure the services of such
an individual, a compensation should be made corresponding
with the magnitude and importance of the mission.
John Tyler.
Washington, December 30, 1842.
INTERCOURSE WITH CHINA.
Mr. Webster to Mr. Gushing.
Department of State, Washington, May 8, 1843.
Sir, — You have been appointed by the President Commis-
sioner to China, and Envoy Extraordinary and Minister Pleni-
potentiary of the United States to the court of that empire.
The ordinary general or circular letter of instructions will be
placed in your hands, and another letter stating the composition
or organization of the mission, your own allowances, the allow-
ance of the secretary, and other matters connected with the
expenditures about to be incurred under the authority of Con-
gress.
It now remains for this department to say something of the
political objects of the mission, and the manner in which it is
hoped these objects may be accomplished. It is less necessary
than it might otherwise be to enter into a detailed statement
of the considerations which have led to the institution of the
mission, not only as you will be furnished with a copy of the
President's communication to Congress recommending pro-
vision to be made for the measure,~but also as your connection
with Congress has necessarily brought these considerations to
your notice and contemplation.
468 INTERCOURSE WITH CHINA.
Occurrences happening in China within the last two years
have resulted in events which are likely to be of much impor-
tance as well to the United States as to the rest of the civilized
world. Of their still more important consequences to China
herself it is not necessary here to speak. The hostilities which
have been carried on between that empire and England have
resulted, among other consequences, in opening four important
ports to English commerce ; namely, Amoy, Ning-po, Shang-
hai, and Fu-chow.
These ports belong to some of the richest, most productive,
and most populous provinces of the empire, and are likely to
become very important marts of commerce. A leading object
of the mission in which you are now to be engaged is, to secure
the entry of American ships and cargoes into these ports on
terms as favorable as those which are enjoyed by English mer-
chants. It is not necessary to dwell here on the great and well-
known amount of imports of the productions of China into the
United States. These imports, especially in the great article
of tea, are not likely to be diminished. Heretofore they have
been paid for in the precious metals, or, more recently, by bills
drawn on London. At one time, indeed, American paper of
certain descriptions was found to be an available remittance.
Latterly, a considerable trade has sprung up in the export of
certain American manufactures to China. To augment these
exports, by obtaining the most favorable commercial facilities,
and cultivating, to the greatest extent practicable, friendly com-
mercial intercourse with China in all its accessible ports, is mat-
ter of moment to the commercial and manufacturing, as well
as the agricultural and mining interests of the United States.
It cannot be foreseen how rapidly or how slowly a people of
such peculiar habits as the Chinese, and apparently so tena-
ciously attached to those habits, may adopt the sentiments,
ideas, and customs of other nations. But if prejudiced, and
strongly wedded to their own usages, the Chinese are still un-
derstood to be ingenious, acute, and inquisitive. Experience
thus far, if it does not strongly animate and encourage efforts
to introduce some of the arts and the products of other coun-
tries into China, is not, nevertheless, of a character such as
should entirely repress those efforts. You will be furnished
with accounts, as accurate as can be obtained, of the history
INTERCOURSE WITH CHINA. 469
and present state of the export trade of the United States to
China.
As your mission has in view only friendly and commercial
objects, (objects, it is supposed, equally useful to both countries,)
the natural jealousy of the Chinese, and their repulsive feeling
toward foreigners, it is hoped, may be in some degree removed
ui mitigated by prudence and address on your part. Your con-
stant aim must be, to produce a full conviction on the minds of
the government and the people that your mission is entirely
pacific; that you come with no purposes of hostility or annoy-
ance ; that you are a messenger of peace, sent from the greatest
power in America to the greatest empire in Asia, to offer respect
and good-will, and to establish the means of friendly inter-
course. It will be expedient, on all occasions, to cultivate the
friendly dispositions of the government and people, by mani-
festing a proper respect for their institutions and manners, and
avoiding, as far as possible, the giving of offence either to their
pride or their prejudices. You will use the earliest and all suc-
ceeding occasions to signify that the government which sends
you has no disposition to encourage, and will not encourage,
any violation of the commercial regulations of China by citi-
zens of the United States. You will state in the fullest man-
ner the acknowledgment of this government, that the commer-
cial regulations of the empire, having become fairly and fully
known, ought to be respected by all ships and all persons visit-
ing its ports ; and if citizens of the United States, under these
circumstances, are found violating well-known laws of trade,
their government will not interfere to protect them from the
consequences of their own illegal conduct. You will at the
same time assert and maintain, on all occasions, the equality
and independence of your own country. The Chinese are ap+
to speak of persons coming into the empire from other nations
as tribute-bearers to the Emperor. This idea has been fostered,
perhaps, by the costly parade of embassies from England. Al1
ideas of this kind respecting your mission must, should they
arise, be immediately met by a declaration, not made ostenta-
tiously, or in a manner reproachful toward others, that you are
no tribute-bearer; that your government pays tribute to none,
and expects tribute from none ; and that, even as to presents,
your government neither makes nor accepts presents. You will
vol. vi. 40
470 INTERCOURSE WITH CHINA.
signify to all Chinese authorities, and others, that it is deemed
to be quite below the dignity of the Emperor of China and the
President of the United States of America to be concerning
themselves with such unimportant matters as presents from one
to the other; that the intercourse between the heads of two
such governments should be made to embrace only great politi-
cal questions, the tender of mutual regard, and the establish-
ment of useful relations.
It is, of course, desirable that you should be able to reach
Pekin, and the court and person of the Emperor, if practicable.
You will, accordingly, at all times signify this as being your
purpose and the object of your mission ; and perhaps it may be
well to advance as near to the capital as shall be found prac-
ticable, without waiting to announce your arrival in the coun-
try. The purpose of seeing the Emperor in person must be
persisted in as long as may be becoming and proper. You will
inform the officers of the government, that you have a letter of
friendship from the President of the United States to the Em-
peror, signed by the President's own hand, which you cannot
deliver except to the Emperor himself, or some high officer of
the court in his presence. You will say, also, that you have a
commission conferring on you the highest rank among repre-
sentatives of your government ; and that this, also, can only be
exhibited to the Emperor, or his chief officer. You may expect
to encounter, of course, if you get to Pekin, the old question
of the Ko-tou. In regard to the mode of managing this matter,
much must be left to your discretion, as circumstances may
occur. All pains should be taken to avoid the giving of offence,
or the wounding of the national pride ; but, at the same time,
you will be careful to do nothing which may seem, even to the
Chinese themselves, to imply any inferiority on the part of
your government, or any thing less than perfect independence
of all nations. You will say that the government of the United
States is always controlled by a sense of religion and of honor ;
hat nations differ in their religious opinions and observances;
that you cannot do any thing which the religion of your own
country or its sentiments of honor forbid ; that you have the most
profound respect for his Majesty the Emperor; that you are ready
to make to him all manifestations of homage which are consist-
ent with your own sense of propriety, and that you are sure his
INTERCOURSE WITH CHINA. 471
Majesty is too just to desire you to violate your duty; that
you should deem yourself quite unworthy to appear before his
Majesty, as peace-bearer from a great and powerful nation, if
you should do any thing against religion or against honor, as
understood by the government and people of the country you
come from. Taking care thus in no way to allow the govern-
ment or people of China to consider you as tribute- bearer from
your government, or as acknowledging its inferiority, in any re-
spect, to that of China, or any other nation, you will bear in
mind, at the same time, what is due to your own personal dig-
nity and the character which you bear. You will represent to
the Chinese authorities, nevertheless, that you are directed to
pay to his Majesty the Emperor the same marks of respect and
homage as are paid by your government to his Majesty the
Emperor of Russia, or any other of the great powers of the
world.
A letter signed by the President, as above intimated, and ad-
dressed to the Emperor, will be placed in your hands. As has
been already stated, you will say that this letter can only be
delivered to the Emperor, or to some one of the great officers of
state in his presence. Nevertheless, if this cannot be done, and
the Emperor should still manifest a desire to receive the letter,
you may consider the propriety of sending it to him, upon an
assurance that a friendly answer to it shall be sent, signed by
the hand of the Emperor himself.
It will be no part of your duty to enter into controversies
which may exist between China and any European state; nor
will you, in your communications, fail to abstain altogether
from any sentiment or any expression which might give to
other governments just cause of offence. It will be quite proper,
however, that you should, in a proper manner, always keep be-
fore the eyes of the Chinese the high character, importance, and
^ower of the United States. You may speak of the extent of
their territory, their great commerce spread over all seas, their
powerful navy everywhere giving protection to that commerce,
and the numerous schools and institutions established in them
to teach men knowledge and wisdom. It cannot be wrong for
you to make known, where not known, that the United States,
once a country subject to England, threw off that subjection
years ago, asserted their independence, sword in hand, estab-
472 INTERCOURSE WITH CHINA.
lished that independence after a seven years' war, and now
meet England upon equal terms upon the ocean and upon the
land. The remoteness of the United States from China, and
still more, the fact that they have no colonial possessions in her
neighborhood, will naturally lead to the indulgence of a less
suspicious and more friendly feeling than may have been enter-
tained toward England, even before the late war between Eng-
land and China. It cannot be .doubted that the immense power
of England in India must be regarded by the Chinese gov-
ernment with dissatisfaction, if not with some degree of alarm.
You will take care to show strongly how free the Chinese gov-
ernment may well be from all jealousy arising from such causes
toward the United States. Finally, you will signify, in decided
terms and a positive manner, that the government of the United
States would find it impossible to remain on terms of friendship
and regard with the Emperor, if greater privileges or commer-
cial facilities should be allowed to the subjects of any other gov-
ernment than should be granted to citizens of the United States.
It is hoped and trusted that you will succeed in making a
treaty such as has been concluded between England and China ;
and if one containing fuller and more regular stipulations could
be entered into, it would be conducting Chinese intercourse one
step farther toward the principles which regulate the public re-
lations of the European and American states.
I am, Sir, very respectfully, your obedient servant,
Daniel Webster.
Caleb Cushing, Esq.
Mr. Webster to Mr. Gushing.
Department of State, Washington, May 8, 1843.
Sir, — The President having appointed you Commissioner
to China in the place of Mr. Everett, who has declined to ac-
cept that appointment, this department is now to give you
the necessary instructions for your mission.
You will receive herewith two commissions : one as Com-
missioner, under which you will be authorized to treat with
the governors of provinces or cities, or other local authorities
of China ; and one as Envoy Extraordinary and Minister Pleni-
potentiary, to be presented at Pekin, if you should reach the
Emperor's court.
INTERCOURSE WITH CHINA. 473
You will likewise be furnished with, —
1. A full power, authorizing you to sign any treaty whick
may be concluded between you and any person duly author
ized for that purpose by the Emperor of China.
2. A letter of credence to the Emperor, with an office copy
thereof; the original to be communicated or delivered to the
sovereign in such manner as may be most convenient or agree-
able to his Majesty to receive it.
3. A special passport for yourself and suite.
4. A letter of credit on Baring, Brothers, & Co., bankers of
the United States at London, authorizing them to pay your
drafts, from time to time, for an amount not exceeding twen-
ty-five thousand dollars.
5. A printed list of the ministers and other diplomatic and
consular agents of the United States abroad.
6. Laws of the United States, 9 vols., and pamphlet copies
of the Acts of the Twenty-sixth and Twenty-seventh Con-
gresses.
7. Congressional Debates (Gales and Seaton's), 8vo, 31 vols.
8. Gales and Seaton's American State Papers, folio, 21 vols.
9. Waite's State Papers, 12mo, 12 vols.
10. Diplomatic Correspondence (Sparks's), 12mo, 19 vols.
11. Diplomatic Code (Elliott's), 8vo, 2 vols.
12. American Almanac for 1843, 12mo, 1 vol.
13. Blue Book for 1841, 1 vol.
14. Commercial Regulations, 8vo, 3 vols.
15. American Archives (Force's), folio, 3 vols.
16 Secret Journals of Congress, 4 vols.
17. Journal of Federal Convention, 1 vol.
18. Sixth Census of the United States, 4 vols.
19. Congressional Documents of the Second Session of the
Twenty-sixth Congress.
20. Congressional Documents of the First Session of the
Twenty-seventh Congress.
21. Senate Documents of the Second Session of the Twenty-
seventh Congress.
22. Printed Documents connected with the " Northeastern
B Dundary " Negotiation.
All the printed books are for the use of the mission ; and,
at the termination of your service, are to pass to your succes-
40*
474 INTERCOURSE WITH CHINa.
sor, or to be left with the archives in the hands of the chargi
d'affaires, in case one should be named, or of such other per
son as may be designated by this department to take charge
of them.
The act of Congress places at the disposition of the Presi-
dent the sum of forty thousand dollars, as an appropriation for
the special expenses of this mission. But this does not include
such payments oat of the general fund for the contingent ex-
penses of all the missions abroad as are usually made in the
case of other missions. The President directs that you be al-
lowed an outfit of nine thousand dollars, and a salary of nine
thousand dollars. In missions to Europe, the government al-
lows for the expenses of the minister's return a sum equal to
one quarter's salary. Considering the distance from the United
States at which diplomatic services are performed in Asia, it
has been thought reasonable to allow in missions in that quar-
ter of the world the minister's expenses in returning at the rate
of half a year's salary. This has been done in previous cases.
The return allowance is usually made out of* the fund for the
contingent expenses of the missions abroad ; and, in case no
sufficient surplus should remain of the fund specially appropri-
ated by Congress after the necessary expenditures in China,
you are authorized to draw on this department for your re-
turn allowance, as above stated. The secretary of the mis-
sion, Mr. Fletcher Webster, already appointed, will be allowed
a salary at the rate of four thousand five hundred dollars a
year. An advance has been made to him, partly toward his
own compensation, and partly to enable him to make some ne-
cessary preparations for the objects of the mission, as you will
see by his instructions, a copy of which you will herewith re-
ceive.
The necessary travelling expenses of yourself and suite from
place to place while in China, when you cannot be convenient-
ly conveyed by the squadron, will be allowed. Your salary
will commence from the date of your commission, if you pro-
ceed on your mission within ninety days from that time. It is
difficult to give you any rule respecting contingencies in a ser-
vice so new, and in a country so remote. It may be necessary,
or at least highly useful, that a draughtsman should accom-
pany you, and also some young gentleman in the character of
INTERCOURSE WITH CHINA. 475
physician. It is desired that you make such inquiries as may
show whether the services of such persons can be obtained at
small expense.
A number of young gentlemen have applied to be unpaid
attaches to the mission. It will add to its dignity and impor-
tance, if your suite could be made respectable in number, by
accepting such offers of attendance without expense to the gov-
ernment.
Of course, you will need the service of one or more interpret-
ers. These you may engage either in Europe or in China, or
wherever, in your own judgment, you can find persons most
competent. The squadron destined for service in the Asiatic
seas, and which, it is understood, will carry you out to China,
will consist of the frigate Brandy wine, the sloop of war St. Louis,
and the steam-frigate Missouri. These vessels will be ready to
proceed immediately from Norfolk, and will have instructions to
take up the mission at Bombay.
The Secretary of the Navy will give the proper directions
for the accommodation on board the vessels of such gentle-
men attached to the mission as may be ready to go with the
squadron.
The Navy Department will also cause proper instructions to
be given to Commodore Parker, commanding the squadron, for
carrying into effect the objects of government in this important
mission.
In another paper of this date you will receive further instruc-
tions respecting the great political objects of the mission, and
the means supposed to be most likely to accomplish them.
I am, Sir, very respectfully, your obedient servant,
Daniel Webster.
Caleb Cushing, Esq., appointed Commissioner of the United States to China.
The President's Letter to the Emperor.
i, John Tyler, President of the United States of America,
which States are Maine, New Hampshire, Massachusetts,
Rhode Island, Connecticut, Vermont, New York, New Jersey,
Pennsylvania, Delaware, Maryland, Virginia, North Carolina,
South Carolina, Georgia, Kentucky, Tennessee, Ohio, Louisi-
ana, Indiana, Mississippi, Illinois, Alabama, Missouri, Arkansas,
476 INTERCOURSE WITH CHINA.
and Michigan, send you this letter of peace and friendship,
signed by my own hand.
I hope your health is good. China is a great empire, extend-
ing over a great part of the world. The Chinese are numer-
ous. You have millions and millions of subjects. The twenty-
six United States are as large as China, though our people are
not so numerous. The rising sun looks upon the great moun-
tains and great rivers of China. When he sets, he looks upon
rivers and mountains equally large in the United States. Our
territories extend from one great ocean to the other ; and on the
west we are divided from your dominions only by the sea.
Leaving the mouth of one of our great rivers, and going con-
stantly toward the setting sun, we sail to Japan and to the
Yellow Sea.
Now my words are, that the governments of two such great
countries should be at peace. It is proper, and according to
the will of Heaven, that they should respect each other, and
act wisely. I therefore send to your court Caleb Cushing, one
of the wise and learned men of this country. On his first ar-
rival in China, he will inquire for your health. He has then
strict orders to go to your great city of Pekin, and there to de-
liver this letter. He will have with him secretaries and inter-
preters.
The Chinese love to trade with our people, and to sell them
tea and silk, for which our people pay silver, and sometimes
other articles. But if the Chinese and the Americans will trade,
there should be rules, so that they shall not break your laws nor
our laws. Our minister, Caleb Cushing, is authorised to make
a treaty to regulate trade. Let it be just. Let there be no un-
fair advantage on either side. Let the people trade not only at
Canton, but also at Amoy, Ning-po, Shang-hai, Fu-chow, and
all such other places as may offer profitable exchanges both to
China and the United States, provided they do not break your
laws nor our laws. We shall not take the part of evil-doers.
We shall not uphold them that break your laws. Therefore,
we doubt not that you will be pleased that our messenger of
peace, with this letter in his hand, shall come to Pekin, and
there deliver it; and that your great officers will, by your order,
make a treaty with him to regulate affairs of trade, so that noth-
ing may happen to disturb the peace between China and Amer-
INDEPENDENCE OF THE SANDWICH ISLANDS. 47>
ica. Let the treaty be signed by your own imperial hand. It
shall be signed by mine, by the authority of our great council,
the Senate.
And so may your health be good, and may peace reign.
"Written at Washington, this twelfth day of July, in the year
of our Lord one thousand eight hundred and forty-three.
Your good friend,
John Tyler.*
By the President :
A, P. Upshur, Secretary of State.
INDEPENDENCE OF THE SANDWICH ISLANDS.
On the 14th of December, 1842, a letter was addressed to Mr. Web-
ster, by Messrs. Timoteo Haalilio and William Richards, Commission-
ers on behalf of the King of all the Hawaiian Islands, expressing the
wish of their government that its independence should be recognized by
the United States, and a convention entered into for the regulation of
their mutual interests and concerns. To this letter the following an*
swer was returned by Mr. Webster.
The Secretary of State to the Agents of the Sandwich Islands.
Department of State, Washington, December 19, 1842.
Gentlemen, — I have received the letter which you did me
the honor to address to me, under date of the 14th instant,
stating that you had been commissioned to represent, in the
United States, the government of the Hawaiian Islands, invit-
jng the attention of this government to the relations between
the two countries, and intimating a desire for the recognition of
the Hawaiian government by that of the United States.
Your communication has been laid before the President, and
by him considered.
The advantages of your country to navigators in the Pacific,
and in particular to the numerous vessels and vast tonnage of
the United States frequenting that sea, are fully estimated ; and
just acknowledgments are due to the government and inhab-
* This letter, dated July 12th, 1843, and countersigned by Mr. Upshur, wai
written by Mr. Webster before his retirement from the Department.
478 INDEPENDENCE OF THE SANDWICH ISLANDS.
itants of the islands for their numerous acts of hospitality to the
citizens of the United States.
The United States have regarded the existing authorities in
the Sandwich Islands as a government suited to the condition
of the people, and resting on their own choice ; and the Presi-
dent is of opinion that the interests of all commercial nations
require that that government should not be interfered with by
foreign powers. Of the vessels which visit the islands, it is
known that a great majority belong to the United States.
The United States, therefore, are more interested in the fate of
the islands and of their government than any other nation can
be; and this consideration induces the President to be quite
willing to declare, as the sense of the government of the United
States, that the government of the Sandwich Islands ought to
be respected ; that no power ought either to take possession of
the islands as a conquest, or for the purpose of colonization ;
and that no power ought to seek for any undue control over the
existing government, or any exclusive privileges or preferences
with it in matters of commerce.
Entertaining these sentiments, the President does not see any
present necessity for the negotiation of a formal treaty, or the
appointment or reception of diplomatic characters. A consul,
or agent, from this government will continue to reside in the
islands. He will receive particular instructions to pay just and
careful attention to any claims or complaints which may be
brought against the government or people of the islands by citi-
zens of the United States, and he will also be instructed to le-
ceive any complaint which may be made by that government,
for acts of individuals (citizens of the United States), on ac-
count of which the interference of this government may be
requested, and to transmit such complaint to this department.
It is not improbable that this correspondence may be made
the subject of a communication to Congress ; and it will be
officially made known to the governments of the principal com-
mercial powers of Europe.
I have the honor to be, Gentlemen, your obedient servant,
Daniel Webster.
Messrs. Timoteo Haalilio and William Richards, Washington
BOUNDARIES OF TEXAS.
Mr Webste? to his Excellency P. H. Bell, Governor of Texas.
Department of State, "Washington, August 5, 1850.
Sir, — A letter addressed by you to the late President of the
United States, and dated on the 14th of Jane last, has, since
his lamented decease, been transferred to the hands of his suc-
cessor, by whom I am directed to address to you the following
answer.
In that letter you say that, by the authority of the legislature
of Texas, the executive of that State, in February last, de-
spatched a special commissioner, with full power and instruc-
tions to extend the civil jurisdiction of that State over the un-
organized counties of El Paso, Worth, Presidio, and Santa Fe,
situated upon its northwesternlimits ; and that the commission-
er has reported to you, in an official form, that the military offi-
cers employed in the service of the United States, stationed at
Santa Fe, interposed adversely with the inhabitants to the ful-
filment of his object, by employing their influence in favor of
the establishment of a separate State government east of the
Rio Grande, and within the rightful limits of the State of Texas.
You also transmit a copy of the proclamation of Colonel John
Monroe, acting under the orders of the government of the Unit-
ed States, under the designation of Civil and Military Governor
of the Territory of New Mexico, and respectfully request the
President to cause you to be informed whether or not this offi-
cer has acted in this matter under the orders of his government,
and whether his proclamation meets with the approval of the
President of the United States.
In the events which have occurred, the President har<Lv
knows whether your Excellency would naturally expect an an»
480 BOUNDARIES OF TEXAS.
swer to this letter from him. His predecessor in office, to whom
it was addressed, and under whose authority and direction ti'je
proclamation of Colonel Monroe was issued, is no more; and
at this time that proclamation, whatever may be regarded as its
true character, has ceased to have influence or effect. The
meeting of the people of New Mexico, by their representatives,
which it invited, is understood to have taken place, although
this government has as yet received no official information of it.
Partaking, however, in the fullest degree, of that high re-
spect which the executive government of the United States
always entertains towards the governors and governments of
the States, the President thinks it his duty to manifest that
feeling of respect by acknowledging and answering your letter.
And this duty, let me assure your Excellency, has been so long
delayed only by uncontrollable circumstances, and is now per-
formed at the earliest practicable moment after the appointment
of those heads of departments, and their acceptance of office,
with whom it is usual, on important occasions, for the President
of the United States to advise.
In answer, therefore, to your first interrogatory, namely,
whether Colonel Monroe, in issuing the proclamation referred
to, acted under the orders of this government, the President di
rects me to state, that Colonel Monroe's proclamation appears
to have been issued in pursuance or in consequence of an order
or letter of instructions given by the late Secretary of War, un-
der the authority of the late President, to Lieutenant- Colonel
McCall. Of this order, which bears date on the 19th of No-
vember, 1849, your Excellency was undoubtedly informed at
the date of your letter. A full and accurate copy, however, is
attached to this communication. Colonel McCall is therein in-
structed, that if the people of New Mexico, for whom Congress
had provided no government, should manifest a wish to take
any steps to establish a government for themselves, and apply
for admission into the Union, it will be his duty, and the duty
of others with whom he is associated, not to thwart, but to ad-
vance, their wishes. This order does not appear to authorize
any exercise of military authority, or of any official or even per-
sonal interference to control or affect in any way the primary
action of the people in the formation of a government, nor to
permit any such interference by subordinate officers. Colonel
BOUNDARIES OF TEXAS. 481
McCall and his associates were not called upon to take a lead
in any measures, or even to recommend any thing as fit to be
adopted by the people. Their whole duty was confined to
what they might be able to perform, subordinate to the wishes
of the people. In this matter it was evidently contemplated
that they were to act as the agents of the inhabitants, and not
as officers of this government.
It must be recollected that the only government then existing
in the territory was a quasi military government; and as Con-
gress had made no provision for the establishment of any form
of civil government, and as the President doubtless believed
that, under these circumstances, the people had a right to frame
a government for themselves, and submit it to Congress for its
approval, the order was a direction that the then existing mili-
tary government should not stand in the way of the accom-
plishment of the wishes of the people, nor thwart those wishes,
if the people entertained them, for the establishment of a free,
popular, republican, civil government, for their own protection
and benefit. This is evidently the whole purpose and object of
the order. The military officer in command and his associates
were American citizens, acquainted with the forms of civil and
popular proceedings, and it was expected that they would aid
the inhabitants of the territory, by their advice and assistance,
in their proceedings for establishing a government of their own
There is no reason to suppose that Colonel Monroe, an officer
as much distinguished for prudence and discretion as for gal-
lant conduct in arms, meant to act, or did act, otherwise than in
entire subordination and subserviency to the will of the people
among whom he was placed. He was not authorized to do so,
nor does the President understand him as intending to do any
thing whatever in his military character, nor to represent in any
way the wishes of the executive government of the United
States.
To judge intelligently and fairly of these transactions, we
must recall to our recollection the circumstances of the case as
they then existed.
Previously to the war with Mexico, which commenced in May,
1846, and received the sanction of Congress on the 13th of that
month, the territory of New Mexico formed a department oi
state of the Mexican republic, and was governed by her laws,
VOL. vi. 41
482 BOUNDARIES OF TEXAS.
General Kearney, acting under orders from this government,
invaded this department with an armed force ; the Governor
fled at his approach, the troops under his command dispersed,
and General Kearney entered Santa Fe, the capital, on the 18th
of August, 1846, and took possession of the territory in the
name of the United States.
On the 22d of that month he issued a proclamation to the in-
habitants, stating the fact that he had taken possession of Santa
Fe, at the head of his troops, and announcing his intention
to hold the department, with its original boundaries (on both
sides of the Del Norte) and under the name of New Mexico.
By that proclamation he promised to protect the inhabitants
of New Mexico in their persons and property, against their In-
dian enemies and all others ; and assured them that the United
States intended to provide for them a free government, when
the people would be called upon to exercise the rights of free-
men in electing their own representatives to the territorial legis-
lature. On the same day he established a territorial constitu-
tion by an organic law, which provided for executive, legislative,
and judicial departments of the government, defined the right
of suffrage, and provided for trial by jury ; and at the same time
established a code of laws. This constitution declared that
" the country heretofore known as New Mexico shall be known
hereafter and designated as the Territory of New Mexico, in the
United States of America " ; and the members of the lower
house of the legislature were apportioned among the counties
established by the decree of the department of New Mexico, of
June 17, 1844, which counties, it is understood, included all the
territory over which Texas has lately attempted to establish her
own jurisdiction.
On the 23d of December, 1846, a copy of this constitution and
code was transmitted by President Polk to the House of Rep-
resentatives, in pursuance of a call on him by that body. In
the message transmitting the constitution, he says that "por-
tions of it purport to establish and organize a permanent terri-
torial government over the territory, and to impart to its in-
habitants political rights which, under the Constitution of the
United States, can be enjoyed permanently only by citizens of
the United States. These have not been approved and recog-
nized by me. Such organized regulations as have been estab-
BOUNDARIES OF TEXAS. 483
lished in any of the conquered territories for the security of our
conquest, for the preservation of order, for the protection of the
rights of the inhabitants, and for depriving the enemy of the ad-
vantages of these territories while the military possession of
them by the forces of the United States continue, will be recog-
nized and approved."
Nearly four years have now elapsed since the quasi military
government was established by military authority, and received,
with the exceptions mentioned, the approval of President Polk.
In the mean time a treaty of peace has been concluded with
Mexico, by which a boundary line was established that left this
territory within the United States, thereby confirming to the
United States, by treaty, what they had before acquired by con-
quest. The treaty, in perfect accordance with the proclamation
of General Kearney, declared that the Mexicans remaining in
this territory should be incorporated into the Union of the Unit-
ed States, and be admitted at the proper time (to be judged of
by the Congress of the United States) to an enjoyment of all
the rights of citizens of the United States, according to the prin-
ciples of the Constitution ; " and, in the mean time, should be
maintained and protected in the free enjoyment of their liberty
and property, and secured in the free exercise of their religion
without restriction."
Thus it will be perceived that the authority of the United
States over New Mexico was the result of conquest ; and the
possession held of it, in the first place, was of course a milita-
ry possession. The treaty added the title by cession to the al-
ready existing title by successful achievements in arms. With
the peace, there arose a natural expectation, that, as early as
possible, there would come a civil government to supersede the
military. But until some such form of government should come
into existence, it was matter of absolute necessity that the mil-
itary government should continue, as otherwise the country
must fall into absolute anarchy. And this has been the course
generally, in the practice of civilized nations, when colonies
or territories have been acquired by war, and their acquisition
confirmed by treaty.
The military government, therefore, existing in New Mexico
at the date of the order, existed there of inevitable necessity.
It existed as much against the will of the executive government
484 BOUNDARIES OF TEXAS.
of the United States, as against the will of the people. The
late President had adopted the opinion, that it was justifiable
in the people of the territory, under the circumstances, to form
a constitution of government, without any previous authority
conferred by Congress, and thereupon to apply for admission
into the Union. It was under this state of things, and under
the influence of these opinions, that the order of the 19th of No-
vember last was given, and executed in the manner we have
seen. The order indicates no boundary, and defines no territory,
except by the name of New Mexico ; and so far as that indicat-
ed any thing, it referred to a known territory, which had been
organized under military authority, approved by the executive,
and left without remonstrance or alteration by Congress for more
than three years. It appears to the President, that such an order
could not have been intended to invade the rights of Texas.
Secondly, you ask whether the proclamation of Colonel Mon-
roe meets with the approval of the President of the United
States.
To determine this question, it is necessary to look at the
object of the proclamation, and the effect of the proceedings
had under it. If the object was to assume the authority to set-
tle the disputed boundary with Texas, then the President has
no hesitation in saying such object does not meet his approba-
tion, because he does not believe that the executive branch of
this government, or the inhabitants of New Mexico, or both
combined, have any constitutional authority to settle that ques-
tion. That belongs either to the judicial department of the
federal government, or to the concurrent action by agreement
of the legislative departments of the governments of the United
States and Texas. But it has been sufficiently shown that
Colonel Monroe could have had no such object, and that his
intention was merely to act in aid of the people in forming a
State constitution to be submitted to Congress. Assuming,
then, that such a constitution has been formed, what is its ef-
fect upon the disputed boundary? If it compromits the right
of either party to that question, then it does not meet the Pres-
ident's approbation, for he deems it his duty to leave the settle-
ment of that question to the tribunal to which it constitution-
ally belongs. It is sufficient for him, that this boundary is in
dispute ; that the territory east of the Rio del Norte seems to
BOUNDARIES OF TEXAS. 485
be claimed in good faith both by Texas and New Mexico, or
rather by the United States. Whatever might be his judgment
in regard to their respective rights, he has no power to decide
upon them, or even to negotiate in regard to them ; and there-
fore it would be improper for him to express any opinion.
The subject-matter of dispute is between the United States
and Texas, and not between New Mexico and Texas. If those
people should voluntarily consent to come under the jurisdic-
tion of Texas, such consent would not bind the United States
to take away their title to the territory. So, on the other hand,
if they should voluntarily claim the title for the United States,
it would not deprive Texas of her rights, whatever those rights
might be. They can only be affected by her own acts, or a
judicial decision. The State constitution formed by New Mex-
ico can have no legal validity until it is recognized and adopted
by the law-making power of the United States. Until that is
done, it has no sanction, and can have no effect upon the right
of Texas, or of the United States, to the territory in dispute.
And it is not to be presumed that Congress will ever give its
sanction to that constitution, without first providing for the set-
tlement of this boundary. Indeed no government, either Terri-
torial or State, can be formed for New Mexico, without provid-
ing for the settling of this boundary. Hence, the President re-
gards the formation of this State constitution as a mere nullity.
It may be regarded, indeed, as a petition to Congress to be ad-
mitted as a State; but until Congress shall grant the prayer of
such petition, by legal enactments, it affects the rights of neither
party. But as it is the right of all to petition Congress for any
law which it may constitutionally pass, this people were in the
exercise of a common right when they formed their constitution,
with a view of applying to Congress for admission as a State ;
and as he thinks the act can prejudice no one, he feels bound
to approve of the conduct of Colonel Monroe in issuing the
proclamation.
I am directed also to state, that, in the President's opinion, it
would not be just to suppose that the late President desired to
manifest any unfriendly attitude or aspect towards Texas or
the claims of Texas. The boundary between Texas and New
Mexico was known to be disputed ; and it was equally well
known, that the executive government of the United States had
41*
486 BOUNDARIES OF TEXAS.
\io power to settle that dispute. It is believed that the execu-
tive power has not wished, it certainly does not now wish, to
interfere with that question, in any manner whatever, as a ques-
tion of title.
In one of his last communications to Congress, that of the
16th of June last, the late President repeated the declaration,
that he had no power to decide the question of boundary, and
no desire to interfere with it; and that the authority to settle
that question resided elsewhere. The object of the executive
government has been, as I believe, and as I am authorized to
say it certainly now is, to secure the peace of the country ; to
maintain as far as practicable the state of things that existed
at the date of the treaty ; and to uphold and preserve the rights
of the respective parties as they were under the solemn guaran-
ty of the treaty, until the highly interesting question of boun-
dary should be finally settled by competent authority. This
treaty, which is now a supreme law of the land, declares, as be-
fore stated, that the inhabitants shall be maintained and pro-
tected in the free enjoyment of their liberty and property, and
secured in the free exercise of their religion. It will, of course,
be the President's duty to see that this law is sustained, and the
protection which it guaranties made effectual, and this is the
plain and open path of executive duty in which he proposes to
tread.
Other transactions of a very grave character are alluded to,
and recited in your Excellency's letter. To these transactions
I am now directed not more particularly to advert in replying
to the questions propounded by you respecting the authority
under which Colonel Monroe acted, and the approval or disap-
proval of his proclamation. Your Excellency's communication
and answer will be immediately laid before Congress, and the
President will take that occasion to bring to its notice the trans-
actions alluded to above.
It is known to your Excellency, that the questions growing
out of the acquisition of California and New Mexico, and
among them the highly important one of the boundary of
Texas, have steadily engaged the attention of both houses of
Congress for many months, and still engage it, with intense
interest. It is understood that the legislature of Texas will be
shortly in session, and will have the boundary question also
BOUNDARIES OF TEXAS 487
before it. It is a delicate crisis in our public affairs, and not free
certainly from possible dangers ; but let us confidently trust that
justice, moderation, patriotism, and the love of the Union, may
inspire such counsels, both in the government of the United
States and that of Texas, as shall carry the country through
these dangers, and bring it safely out of them all, and with
renewed assurances of the continuance of mutual respect and
harmony in the great family of States.
I have the honor to be, with entire regard, your Excellency's
most obedient servant.
Daniel Webster. Secretary of State,
CORRESPONDENCE WITH THE CHEVALIER
HtiLSEMANN.
Chevalier J. G. Hillsemann to the Secretary of State.
[translation.]
Austrian Legation. Washington, September 30, 1850.
The undersigned, Charge d' Affaires of his Majesty the Em-
peror of Austria, has been instructed to make the following
communication to the Secretary of State.
As soon as the Imperial government became aware of the
fact that a United States agent had been despatched to Vienna,
with orders to watch for a favorable moment to recognize the
Hungarian republic, and to conclude a treaty of commerce with
the same, the undersigned was directed to address some confi-
dential but pressing representations to the Cabinet of Washing-
ton against that proceeding, which is so much at variance with
those principles of international law, so scrupulously adhered to
by Austria, at all times and under all circumstances, towards the
United States. In fact, how is it possible to reconcile such a
mission with the principle of non-intervention, so formally an-
nounced by the United States as the basis of American policy,
and which had just been sanctioned with so much solemnity by
the President, in his inaugural address of March 5, 1849 ? Was
it in return for the friendship and confidence which Austria had
never ceased to manifest towards them, that the United States
became so impatient for the downfall of the Austrian monarchy,
and even sought to accelerate that event by the utterance of
their wishes to that effect? Those who did not hesitate to
assume the responsibility of sending Mr. Dudley Mann on such
an errand, should, independent of considerations of propriety,
have borne in mind that they were exposing their emissary to
be treated as a spy. It is to be regretted that the American
THE HtTLSEMANN CORRESPONDENCE. 489
government was not better informed as to the actual resources
of Austria, and her historical perseverance in defending her just
rights. A knowledge of those resources would have led to the
conclusion that a contest of a few months' duration could nei-
ther have exhausted the energies of that power, nor turned
aside its purpose to put down the insurrection. Austria has
struggled against the French Revolution for twenty-five years ;
the courage and perseverance which she exhibited in that mem-
orable contest have been appreciated by the whole world.
To the urgent representations of the undersigned^ Mr. Clay-
ton answered that Mr. Mann's mission had no other object in
view than to obtain reliable information as to the true state of
affairs in Hungary, by personal observation. This explanation
can hardly be admitted, for it says very little as to the cause
of the. anxiety which was felt to ascertain the chances of the
revolutionists. Unfortunately, the language in which Mr.
Mann's instructions were drawn gives us a very correct idea of
their scope. This language was offensive to the Imperial Cab-
inet, for it designates the Austrian government as an iron rule,
and represents the rebel chief, Kossuth, as an illustrious man ;
while improper expressions are introduced in regard to Russia,
the intimate and faithful ally of Austria. Notwithstanding
these hostile demonstrations, the Imperial Cabinet has deemed
it proper to preserve a conciliatory deportment, making ample
allowance for the ignorance of the Cabinet of Washington on
the subject of Hungarian affairs, and its disposition to give
credence to the mendacious rumors which are propagated by
the American press. This extremely painful incident, therefore,
might have been passed over without any written evidence be-
ing left, on our part, in the archives of the United States, had
not General Taylor thought proper to revive the whole subject
by communicating to the Senate, in his message of the 18th of
last March, the instructions with which Mr. Mann had been
furnished on the occasion of his mission to Vienna. The pub-
licity which has been given to that document has placed the
Imperial government under the necessity of entering a formal
protest, through its official representative, against the proceed-
ings of the American government, lest that government should
construe our silence into approbation, or toleration even, of the
principles which appear to have guided its action and the
means it has adopted
490 THE HULSEMANN CORRESPONDENCE.
In view of all these circumstances, the undersigned has been
instructed to declare that the Imperial government totally disap-
proves, and will always continue to disapprove, of those pro-
ceedings, so offensive to the laws of propriety ; and that it pro-
tests against all interference in the internal affairs of its gov-
ernment. Having thus fulfilled his duty, the undersigned con-
siders it a fortunate circumstance that he has it in his power
to assure the Secretary of State that the Imperial government
is disposed to cultivate relations of friendship and good under-
standing with the' United States, relations which may have
been momentarily weakened, but which could not again be se-
riously disturbed without placing the cardinal interests of the
two countries in jeopardy.
The instructions for addressing this communication to Mr.
Clayton reached Washington at the time of General Taylor's
death. In compliance with the requisitions of propriety, the
undersigned deemed it his duty to defer the task until the new
administration had been completely organized ; a delay which
he now rejoices at, as it has given him the opportunity of as-
certaining from the new President himself, on the occasion of
the reception of the diplomatic corps, that the fundamental
policy of the United States, so frequently proclaimed, would
guide the relations of the American government with the other
powers. Even if the government of the United States were to
think it proper to take an indirect part in the political move-
ments of Europe, American policy would be exposed to acts of
retaliation, and to certain inconveniences, which could not fail
to affect the commerce and the industry of the two hemispheres.
All countries are obliged, at some period or other, to struggle
against internal difficulties; all forms of government are ex-
posed to such disagreeable episodes ; the United States have
had some experience in this very recently. Civil war is a pos-
sible occurrence everywhere, and the encouragement which is
given to the spirit of insurrection and of disorder most frequent-
ly falls back upon those who seek to aid it in its developments,
in spite of justice and wise policy.
The undersigned avails himself of this occasion to renew to
the Secretary of State the assurance of his distinguished con-
sideration.
HULSEMANN.
To the Hon. Daniel Webster, Secretary of State of the United States.
THE HULSEMANN CORRESPONDENCE. 491
The Secretary of State to Mr. Hulsemann.
Department of State, Washington, December 21, 1850.
The undersigned, Secretary of State of the United States,
had the honor to receive, some time ago, the note of Mr. Hulse-
mann, Charge d' Affaires of his Majesty, the Emperor of Austria,
of the 30th of September. Causes, not arising from any want of
personal regard for Mr. Hulsemann, or of proper respect for his
government, have delayed an answer until the present moment.
Having submitted Mr. Hiilsemann's letter to the President, the
undersigned is now directed by him to return the following
reply.
The objects of Mr. Hiilsemann's note are, first, to protest, by
order of his government, against the steps taken by the late
President of the United States to ascertain the progress and
probable result of the revolutionary movements in Hungary;
and, secondly, to complain of some expressions in the instruc-
tions of the late Secretary of State to Mr. A. Dudley Mann, a
confidential agent of the United States, as communicated by
President Taylor to the Senate on the 28th of March last.
The principal ground of protest is founded on the idea, or in
the allegation, that the government of the United States, by
the mission of Mr. Mann and his instructions, has interfered in
the domestic affairs of Austria in a manner unjust or disrespect-
ful toward that power. The President's message was a com-
munication made by him to the Senate, transmitting a corre-
spondence between the executive government and a confidential
agent of its own. This would seem to be itself a domestic
transaction, a mere instance of intercourse between the Presi-
dent and the Senate, in the manner which is usual and indis-
pensable in communications between the different branches of
the government. It was not addressed either to Austria or
Hungary ; nor was it a public manifesto, to which any for-
eign state was called on to reply. It was an account of its
transactions communicated by the executive government to the
Senate, at the request of that body; made public, indeed, but
made public only because such is the common and usual course
of proceeding. It may be regarded as somewhat strange, there-
fore, that the Austrian Cabinet did not perceive that, by the in-
structions given to Mr. Hulsemann, it was itself interfering with
492 THE HULSEMANN CORRESPONDENCE.
the domestic concerns of a foreign state, the very thing which is
the ground of its complaint against the United States.
This department has, on former occasions, informed the min*
isters of foreign powers, that a communication from the Presi-
dent to either house of Congress is regarded as a domestic
communication, of which, ordinarily, no foreign state has cog-
nizance ; and in more recent instances, the great inconvenience
of making such communications the subject of diplomatic corre-
spondence and discussion has been fully shown. If it had been
the pleasure of his Majesty, the Emperor of Austria, during the
struggles in Hungary, to have admonished the provisional gov-
ernment or the people of that country against involving them-
selves in disaster, by following the evil and dangerous example
of the United States of America in making efforts for the estab-
lishment of independent governments, such an admonition
from that sovereign to his Hungarian subjects would not have
originated here a diplomatic correspondence. The President
might, perhaps, on this ground, have declined to direct any par-
ticular reply to Mr. Hiilsemann's note ; but, out of proper re-
spect for the Austrian government, it has been thought better
to answer that note at length ; and the more especially, as the
occasion is not unfavorable for the expression of the general
sentiments of the government of the United States upon the
topics which that note discusses.
A leading subject in Mr. Hiilsemann's note is that of the cor-
respondence between Mr. Hiilsemann and the predecessor of the
undersigned, in which Mr. Clayton, by direction of the Presi-
dent, informed Mr. Hiilsemann "that Mr. Mann's mission had
no other object in view than to obtain reliable information as to
the true state of affairs in Hungary, by personal observation."
Mr. Hiilsemann remarks, that "this explanation can hardly be
admitted, for it says very little as to the cause of the anxiety
which was felt to ascertain the chances of the revolutionists."
As this, however, is the only purpose which can, with any ap-
pearance of truth, be attributed to the agency ; as nothing what-
ever is alleged by Mr. Hiilsemann to have been either done or
said by the agent inconsistent with such an object, the under-
signed conceives that Mr. Clayton's explanation ought to be
deemed, not only admissible, but quite satisfactory.
Mr. Hiilsemann states, in the course of his note, that his in-
THE HULSEMANN CORRESPONDENCE. 493
gtructions to address his present communication to Mr. Clayto/i
reached Washington about the time of the lamented death of the
late President, and that he delayed from a sense of propriety the
execution of his task until the new administration should be
fully organized; "a delay which he now rejoices at, as it has
given him the opportunity of ascertaining from the new Presi-
dent himself, on the occasion of the reception of the diplomatic
corps, that the fundamental policy of the United States, so fre-
quently proclaimed, would guide the relations of the American
government with other powers." Mr. Hiilsemann also observes,
that it is in his power to assure the undersigned " that the Im-
perial government is disposed to cultivate relations of friend-
ship and good understanding with the United States."
The President receives this assurance of the disposition of
the Imperial government with great satisfaction ; and, in con-
sideration of the friendly relations of the two governments thus
mutually recognized, and of the peculiar nature of the incidents
by which their good understanding is supposed by Mr. Hiilse-
mann to have been for a moment disturbed or endangered, the
President regrets that Mr. Hiilsemann did not feel himself at
liberty wholly to forbear from the execution of instructions,
which were of course transmitted from Vienna without any
foresight of the state of things under which they would reach
Washington. If Mr. Hiilsemann saw, in the address of the
President to the diplomatic corps, satisfactory pledges of the
sentiments and the policy of this government in regard to neu-
tral rights and neutral duties, it might, perhaps, have been better
not to bring on a discussion of past transactions. But the un-
dersigned readily admits that this was a question fit only for
the consideration and decision of Mr. Hiilsemann himself; and
although the President does not see that any good purpose can
he answered by reopening the inquiry into the propriety of the
steps taken by President Taylor to ascertain the probable issue
of the late civil war in Hungary, justice to his memory requires
the undersigned briefly to restate the history of those steps,
and to show their consistency with the neutral policy which has
invariably guided the government of the United States in its
foreign relations, as well as with the established and well-settled
principles of national intercourse, and the doctrines of public
law.
vol. vi. 42
404 THE HULSJlMANN CORRESPONDENCE.
The undersigned will first observe, that the President is per-
suaded his Majesty the Emperor of Austria does not think that
the government of the United States ought to view with un-
concern the extraordinary events which have occurred, not only
in his dominions, but in many other parts of Europe, since
February, 1848. The government and people of the United
States, like other intelligent governments and communities, tali
a lively interest in the movements and the events of this remark-
able age, in whatever part of the world ,they may be exhibited.
But the interest taken by the United States in those events has
not proceeded from any disposition to depart from that neutral-
ity toward foreign powers, which is among the deepest princi-
ples and the most cherished traditions of the political history of
the Union. It has been the necessary effect of the unexampled
character of the events themselves, which could not fail to arrest
the attention of the contemporary world, as they will doubtless
fill a memorable page in history.
But the undersigned goes further, and freely admits that, in
proportion as these extraordinary events appeared to have their
origin in those great ideas of responsible and popular govern-
ment, on which the American constitutions themselves are
wholly founded, they could not but command the warm sym-
pathy of the people of this country. Well-known circumstances
in their history, indeed their whole history, have made them the
representatives of purely popular principles of government. In
this light they now stand before the world. They could not,
if they would, conceal their character, their condition, or their
destiny. They could not, if they so desired, shut out from the
view of mankind the causes which have placed them, in so short
a national career, in the station which they now hold among
the civilized states of the world. They could not, if they de-
sired it, suppress either the thoughts or the hopes which arise in
men's minds, in other countries, from contemplating their suc-
cessful example of free government. That very intelligent and
distinguished personage, the Emperor Joseph the Second, was
among the first to discern this necessary consequence of the
American Revolution on the sentiments and opinions of the
people of Europe. In a letter to his minister in the Netherlands
in 1787, he observes, that " it is remarkable that France, by the
assistance which she afforded to the Americans, gave birth to
THE HULSEMANN CORRESPONDENCE. 495
reflections on freedom." This fact, which the sagacity of that
monarch perceived at so early a day, is now known and admit-
ted by intelligent powers all over the world. True, indeed, it is,
that the prevalence on the other continent of sentiments favora-
ble to republican liberty is the result of the reaction of America
upon Europe ; and the source and centre of this reaction has
doubtless been, and now is, in these United States.
The position thus belonging to the United States is a fact as
inseparable from their history, their constitutional organization,
and their character, as the opposite position of the powers com-
posing the European alliance is from the history and constitu-
tional organization of the government of those powers. The
sovereigns who form that alliance have not unfrequently felt it
their right to interfere with the political movements of foreign
states ; and have, in their manifestoes and declarations, de-
nounced the popular ideas of the age in terms so comprehensive
as of necessity to include the United States, and their forms of
government. It is well known that one of the leading princi-
ples announced by the allied sovereigns, after the restoration of
the Bourbons, is, that all popular or constitutional rights are
holden no otherwise than as grants and indulgences from
crowned heads. " Useful and necessary changes in legislation
and administration," says the Laybach Circular of May, 1821,
" ought only to emanate from the free will and intelligent con-
viction of those whom God has rendered responsible for power ;
all that deviates from this line necessarily leads to disorder,
commotions, and evils far more insufferable than those which
they pretend to remedy." And his late Austrian Majesty,
Francis the First, is reported to have declared, in an address to
the Hungarian Diet, in 1820, that " the whole world had be-
come foolish, and, leaving their ancient laws, were in search of
imaginary constitutions." These declarations amount to noth-
ing less than a denial of the lawfulness of the origin of the
government of the United States, since it is certain that that
government was established in consequence of a change which
did not proceed from thrones, or the permission of crowned
heads. But the government of the United States heard these
denunciations of its fundamental principles without remon-
strance, or the disturbance of its equanimity. This was thirty
years ago.
496 THE HULSEMANN CORRESPONDENCE.
The power of this republic, at the present moment, is spread
over a region one of the richest and most fertile on the globe,
and of an extent in comparison with which the possessions of
the house of Hapsburg are but as a patch on the earth's sur-
face. Its population, already twenty-five millions, will exceed
that of the Austrian empire within the period during which it
may be hoped that Mr. Hiilsemann may yet remain in the hon-
orable discharge of his duties to his government. Its navigation
and commerce are hardly exceeded by the oldest and most com-
mercial nations ; its maritime means and its maritime power
may be seen by Austria herself, in all seas where she has ports,
as well as they may be seen, also, in all other quarters of the globe.
Life, liberty, property, and all personal rights, are amply secured
to all citizens, and protected by just and stable laws ; and cred-
it, public and private, is as well established as in any govern-
ment of Continental Europe ; and the country, in all its inter-
ests and concerns, partakes most largely in all the improvements
and progress which distinguish the age. Certainly, the United
States may be pardoned, even by those who profess adherence
to the principles of absolute government, if they entertain an
ardent affection for those popular forms of political organization
which have so rapidly advanced their own prosperity and hap-
piness, and enabled them, in so short a period, to bring their
country, and the hemisphere to which it belongs, to the notice
and respectful regard, not to say the admiration, of the civil-
ized world. Nevertheless, the United States have abstained, at
all times, from acts of interference with the political changes
of Europe. They cannot, however, fail to cherish always a
lively interest in the fortunes of nations struggling for institutions
like their own. But this sympathy, so far from being necessa-
rily a hostile feeling toward any of the parties to these great
national struggles, is quite consistent with amicable relations
with them all. The Hungarian people are three or four times
as numerous as the inhabitants of these United States were
when the American Revolution broke out. They possess, in a
distinct language, and in other respects, important elements of
a separate nationality, which the Anglo-Saxon race in this
country did not possess ; and if the United States wish success
to countries contending for popular constitutions and national
independence, it is only because they regard such constitutions
THE HULSEMANN CORRESPONDENCE. 497
and such national independence, not as imaginary, but as real
blessings. They claim no right, however, to take part in the
struggles of foreign powers in order to promote these ends. It
is only in defence of his own government, and its principles and
character, that the undersigned has now expressed himself on
this subject. But when the people of the United States be-
hold the people of foreign countries, without any such interfer-
ence, spontaneously moving toward the adoption of institutions
like their own, it surely cannot be expected of them to remain
who ly indifferent spectators.
In regard to the recent very important occurrences in the
Austrian empire, the undersigned freely admits the difficulty
which exists in this country, and is alluded to by Mr. Hiilse-
mann, of obtaining accurate information. But this difficulty
is by no means to be ascribed to what Mr. Hiilsemann calls,
with little justice, as it seems to the undersigned, " the men-
dacious rumors propagated by the American press." For infor-
mation on this subject, and others of the same kind, the Amer-
ican press is, of necessity, almost wholly dependent upon that
of Europe ; and if " mendacious rumors " respecting Austrian
and Hungarian affairs have been anywhere propagated, that
propagation of falsehoods has been most prolific on the Euro-
pean continent, and in countries immediately bordering on the
Austrian empire. But, wherever these errors may have origi-
nated, they certainly justified the late President in seeking true
information through authentic channels.
His attention was first particularly drawn to the state of
things in Hungary by the correspondence of Mr. Stiles, Charge
d' Affaires of the United States at Vienna. In the autumn of
1848, an application was made to this gentleman, on behalf
of Mr. Kossuth, formerly Minister of Finance for the Kingdom
of Hungary by Imperial appointment, but, at the time the
application wras made, chief of the revolutionary government.
The object of this application was to obtain the good offices of
Mr. Stiles with the Imperial government, with a view to the sus-
pension of hostilities. This application became the subject of a
confe.'mce between Prince Schwarzenberg, the Imperial Minis-
ter for Foreign Affairs, and Mr. Stiles. The Prince commended
the considerateness and propriety with which Mr. Stiles had act-
ed ; and, so far from disapproving his interference, advised him,
42*
493 THE HtJLSEMANN CORRESPONDENCE.
in case he received a further communication from the revolution-
ary government in Hungary, to have an interview with Prince
Windischgratz, who was charged by the Emperor with the pro-
ceedings determined on in relation to that kingdom. A week
after these occurrences, Mr. Stiles received, through a secret
channel, a communication signed by L. Kossuth, President of the
Committee of Defence, and countersigned by Francis Pulszky,
Secretary of State. On the receipt of this communication,
Mr. Stiles had an interview with Prince Windischgratz, "who
received him with the utmost kindness, and thanked him for his
efforts toward reconciling the existing difficulties." Such were
the incidents which first drew the attention of the government
of the United States particularly to the affairs of Hungary, and
the conduct of Mr Stiles, though acting without instructions in
a matter of much delicacy, having been viewed with satisfaction
by the Imperial government, was approved by that of the Unit-
ed States,
In the course of the year 1848, and in the early part of 1849,
a considerable number of Hungarians came to the United States.
Among them were individuals representing themselves to be in
the confidence of the revolutionary government, and by these
persons the President was strongly urged to recognize the exist-
ence of that government. In these applications, and in the
manner in which they were viewed by the President, there was
nothing unusual ; still less was there any thing unauthorized
by the law of nations. It is the right of every independent
state to enter into friendly relations with every other indepen-
dent state. Of course, questions of prudence naturally arise in
reference to new states, brought by successful revolutions into
the family of nations ; but it is not to be required of neutral
powers that they should await the recognition of the new gov-
ernment by the parent state. No principle of public law has
been more frequently acted upon, within the last thirty years,
by the great powers of the world, than this. Within that pe-
riod, eight or ten new states have established independent gov-
ernments, within the limits of the colonial dominions of Spain,
on this continent ; and in Europe the same thing has been done
by Belgium and Greece. The existence of all these govern-
ments was recognized by some of the leading powers of Europe,
as well as by the United States, before it was acknowledged by
THE HULSEMANN CORRESPONDENCE. 499
the states from which they had separated themselves. If, there-
fore, the United States had gone so far as formally to acknowl-
edge the independence of Hungary, although, as the result has
proved, it would have been a precipitate step, and one from
which no benefit would have resulted to either party ; it would
not, nevertheless, have been an act against the law of nations,
provided they took no part in her contest with Austria. But
the United States did no such thing. Not only did they not
yiell to Hungary any actual countenance or succor, not only
did they not show their ships of war in the Adriatic with any
menacing or hostile aspect, but they studiously abstained from
every thing which had not been done in other cases in times
past, and contented themselves with instituting an inquiry into
the truth and reality of alleged political occurrences. Mr. Hul-
semann incorrectly states, unintentionally certainly, the nature
of the mission of this agent, when he says that "a United
States agent had been despatched to Vienna with orders to
watch for a favorable moment to recognize the Hungarian re-
public, and to conclude a treaty of commerce with the same."
This, indeed, would have been a lawful object, but Mr. Mann's
errand was, in the first instance, purely one of inquiry. He had
no power to act, unless he had first come to the conviction that
a firm and stable Hungarian government existed. " The princi-
pal object the President has in view," according to his instruc-
tions, " is to obtain minute and reliable information in regard
to Hungary, in connection with the affairs of adjoining coun-
tries, the probable issue of the present revolutionary movements,
and the chances we may have of forming commercial arrange-
ments with that power favorable to the United States." Again,
in the same paper, it is said : " The object of the President is to
obtain information in regard to Hungary, and her resources and
prospects, with a view to an early recognition of her indepen-
dence and the formation of commercial relations with her." It
was only in the event that the new government should appear,
in the opinion of the agent, to be firm and stable, that the Pres-
ident proposed to recommend its recognition.
Mr. Hulsemann, in qualifying these steps of President Taylor
with the epithet of " hostile," seems to take for granted that the
inquiry could, in the expectation of the President, have but one
result, and that favorable to Hungary. If this were so, it would
500 THE HtJLSEMANN CORRESPONDENCE.
not change the case. But the American government sought for
nothing but truth ; it desired to learn the facts through a reliable
channel. It so happened, in the chances and vicissitudes of hu-
man affairs, that the result was adverse to the Hungarian revo-
lution. The American agent, as was stated in his instructions
to be not unlikely, found the condition of Hungarian affairs less
prosperous than it had been, or had been believed to be. He
did not enter Hungary, nor hold any direct communication with
her revolutionary leaders. He reported against the recognition
of her independence, because he found she had been unable to
set up a firm and stable government. He carefully forbore, as
his instructions required, to give publicity to his mission, and
the undersigned supposes that the Austrian government first
learned its existence from the communications of the President
to the Senate.
Mr. Hiilsemann will observe from this statement, that Mr.
Mann's mission was wholly unobjectionable, and strictly within
the rule of the law of nations and the duty of the United States
as a neutral power. He will accordingly feel how little founda-
tion there is for his remark, that " those who did not hesitate to
assume the responsibility of sending Mr. Dudley Mann on such
an errand, should, independent of considerations of propriety,
have borne in mind that they were exposing their emissary to
be treated as a spy." A spy is a person sent by one belligerent
to gain secret information of the forces and defences of the
other, to be used for hostile purposes. According to practice,
he may use deception, under the penalty of being lawfully
hanged if detected. To give this odious name and character
to a confidential agent of a neutral power, bearing the commis-
sion of his country, and sent for a purpose fully warranted by
the law of nations, is not only to abuse language, but also to
confound all just ideas, and to announce the wildest and most
extravagant notions, such as certainly were not to have been
expected in a grave diplomatic paper ; and the President directs
the undersigned to say to Mr. Hiilsemann, that the American
government would regard such an imputation upon it by the
Cabinet of Austria as that it employs spies, and that in a quar-
rel none of its own, as distinctly offensive, if it did not presume,
as it is willing to presume, that the word used in the original
German was not of equivalent meaning with "spy" in the
THE HULSEMANN CORRESPONDENCE. 501
English language, or that in some other way the employment
of such an opprobrious term may be explained. Had the Im-
perial government of Austria subjected Mr. Mann to the treat-
ment of a spy, it would have placed itself without the pale of
civilized nations ; and the Cabinet of Vienna may be assured,
that if it had carried, or attempted to carry, any such lawless
purpose into effect, in the case of an authorized agent of this
government, the spirit of the people of this country would have
demanded immediate hostilities to be waged by the utmost
exertion of the power of the republic, military and naval.
Mr. Hiilsemann proceeds to remark, that " this extremely pain-
ful incident, therefore, might have been passed over, without
any written evidence being left on our part in the archives of
the United States, had not General Taylor thought proper to
revive the whole subject by communicating to the Senate, in his
message of the 18th [28th] of last March, the instructions with
which Mr. Mann had been furnished on the occasion of his mis-
sion to Vienna. The publicity which has been given to that
document has placed the Imperial government under the neces-
sity of entering a formal protest, through its official representa-
tive, against the proceedings of the American government, lest
that government should construe our silence into approbation,
or toleration even, of the principles which appear to have guided
its action and the means it has adopted." The undersigned re-
asserts to Mr. Hiilsemann, and to the Cabinet of Vienna, and
in the presence of the world, that the steps taken by President
Taylor, now protested against by the Austrian government,
were warranted by the law of nations and agreeable to the
usages of civilized states. With respect to the communication
of Mr. Mann's instructions to the Senate, and the language in
which they are couched, it has already been said, and Mr. Hiil-
semann must feel the justice of the remark, that these are do-
mestic affairs, in reference to which the government of the
United States cannot admit the slightest responsibility to the
overnment of his Imperial Majesty. No state, deserving the
appellation of independent, can permit the language in which it
may instruct its own officers in the discharge of their duties to
itself to be called in question under any pretext by a foreign
power.
But even if this were not so, Mr. Hiilsemann is in an error
502 THE HULSEMANN CORRESPONDENCE.
in stating that the Austrian government is called an " iron
rule" in Mr. Mann's instructions. That phrase is not found in
the paper; and in respect to the honorary epithet bestowed in
Mr. Mann's instructions on the late chief of the revolutionary
government of Hungary, Mr. Hulsemann will bear in mind that
the government of the United States cannot justly be expected,
in a confidential communication to its own agent, to withhold
from an individual an epithet of distinction of which a great
part of the world thinks him worthy, merely on the ground that
his own government regards him as a rebel. At an early stage
of the American Revolution, while Washington was considered
by the English government as a rebel chief, he was regarded on
the Continent of Europe as an illustrious hero. But the under-
signed will take the liberty of bringing the Cabinet of Vienna
into the presence of its own predecessors, and of citing for its
consideration the conduct of the Imperial government itself. In
the year 1777 the war of the American Revolution was raging
all over these United States. England was prosecuting that war
with a most resolute determination, and by the exertion of all
her military means to the fullest extent. Germany was at that
time at peace with England ; and yet an agent of that Con-
gress, which was looked upon by England in no other light
than that of a body in open rebellion, was not only received
with great respect by the ambassador of the Empress Queen at
Paris, and by the minister of the Grand Duke of Tuscany (who
afterwards mounted the Imperial throne), but resided in Vienna
for a considerable time ; not, indeed, officially acknowledged,
but treated with courtesy and respect ; and the Emperor suffered
himself to be persuaded by that agent to exert himself to pre-
vent the German powers from furnishing troops to England to
enable her to suppress the rebellion in America. Neither Mr.
Hulsemann nor the Cabinet of Vienna, it is presumed, will un-
dertake to say that any thing said or done by this government
in regard to the recent war between Austria and Hungary is
not borne out, and much more than borne out, by this example
of the Imperial Court. It is believed that the Emperor Joseph
the Second habitually spoke in terms of respect and admiration
of the character of Washington, as he is known to have done of
that of Franklin ; and he deemed it no infraction of neutrality
to inform himself of the progress of the revolutionary struggle
THE HtlLSEMANN CORRESPONDENCE. 503
in America, or to express his deep sense of the merits and the
talents of those illustrious men who were then leading their
country to independence and renown. The undersigned may
add, that in 1781 the courts of Russia and Austria proposed
a diplomatic congress of the belligerent powers, to which the
commissioners of the United States snould be admitted.
Mr. Hiilsemann thinks that in Mr. Mann's instructions im
pi oper expressions are introduced in regard to Russia; but the
undersigned has no reason to suppose that Russia herself is of
that opinion. The only observation made in those instructions
about Russia is, that she " has chosen to assume an attitude of
interference, and her immense preparations for invading and
reducing the Hungarians to the rule of Austria, from which they
desire to be released, gave so serious a character to the contest
as to awaken the most painful solicitude in the minds of Ameri-
cans." The undersigned cannot but consider the Austrian
Cabinet as unnecessarily susceptible in looking upon language
like this as a " hostile demonstration." If we remember that it
was addressed by the government to its own agent, and has
received publicity only through a communication from one de-
partment of the American government to another, the language
quoted must be deemed moderate and inoffensive. The comity
of nations would hardly forbid its being addressed to the two
imperial powers themselves. It is scarcely necessary for the
undersigned to say, that the relations of the United States with
Russia have always been of the most friendly kind, and have
never been deemed by either party to require any compromise
of their peculiar views upon subjects of domestic or foreign
polity, or the true origin of governments. At any rate, the fact
that Austria, in her contest with Hungary, had an intimate and
faithful ally in Russia, cannot alter the real nature of the ques-
tion between Austria and Hungary, nor in any way affect the*
neutral rights and duties of the government of the United
States, or the justifiable sympathies of the American people.
It is, indeed, easy to conceive, that favor toward struggling
Hungary would be not diminished, but increased, when it was
seen that the arm of Austria v;as strengthened and upheld by a
powder whose assistance threatened to be, and which in the end
proved to be, overwhelmingly destructive of all her hopes.
Toward the conclusion of his note Mr. Hiilsemann remarks,
504 the hUlsemann correspondence.
that "if the government of the United States were to think it
proper to take an indirect part in the political movements of
Europe, American policy would be exposed to acts of retalia-
tion, and to certain inconveniences which would not fail to
affect the commerce and industry of the two hemispheres." Aa
to this possible fortune, this hypothetical retaliation, the govern-
ment and people of the United States are quite willing to take
their chances and abide their destiny. Taking neither a direct
nor an indirect part in the domestic or intestine movements of
Europe, they have no fear of events of the nature alluded to
by Mr. Hiilsemann. It would be idle now to discuss with Mr.
Hiilsemann those acts of retaliation which he imagines may
possibly take place at some indefinite time hereafter. Those
questions will be discussed when they arise ; and Mr. Hiilse-
mann and the Cabinet at Vienna may rest assured, that, in the
mean time, while performing with strict and exact fidelity all
their neutral duties, nothing will deter either the government or
the people of the United States from exercising, at their own
discretion, the rights belonging to them as an independent na-
tion, and of forming and expressing their own opinions, freely
and at all times, upon the great political events which may
transpire among the civilized nations of the earth. Their own
institutions stand upon the broadest principles of civil liberty ;
and believing those principles and the fundamental laws in
which they are embodied to be eminently favorable to the pros-
perity of states, to be, in fact, the only principles of govern-
ment which meet the demands of the present enlightened age,
the President has perceived, with great satisfaction, that, in the
constitution recently introduced into the Austrian empire, many
of these great principles are recognized and applied, and he
cherishes a sincere wish that they may produce the same happy
effects throughout his Austrian Majesty's extensive dominions
lhat they have done in the United States.
The under&.gned has the honor to repeat to Mr. Hiilsemann
the assurance of his high consideration.
Daniel Webster.
The Chevalier J. G. Hulsemann, Oxargi oV Affaires of Austria, Washington.
THE HtJLSEMANN CORRESPONDENCE. 505
The Chevalier Hulsemann to Mr. Webster.
Austrian Legation at Washington, March 11, 1851.
Mr. Secretary of State, — I have received an answer to
the despatches with which I had sent to Vienna the note that
you did me the honor to address to me on the 21st of December
last; and I hasten to inform you, Mr. Secretary of State, that
the arguments contained in your note have not had power to
change the judgment which the Imperial Cabinet had formed
respecting the mission of Mr. Dudley Mann, as well as respect-
ing the tenor and the terms of the instructions with which he
was furnished. The Imperial government does not cease to
entertain the opinions contained in my note of the 30th of Sep-
tember; and it declines all ulterior discussion of that annoying
incident, unwilling to expose the kind and friendly relations
which it desires to preserve with the government of the United
States to the danger of being seriously disturbed by discussions
which could have no practical result.
President Fillmore declared, in his message of the 2d of De-
cember last, that he was determined to act towards other nations
as the United States desired that other nations should act to-
wards them ; and that he had adopted as a rule for his policy
good-will towards foreign powers, and the abstaining from inter-
ference in their internal affairs. Austria has not demanded, and
will never demand, any thing but the putting into practice of
these principles; and the Imperial government is sincerely dis-
posed to remain in friendly relations with the government of the
United States, so long as the United States shall not deviate
from these principles.
Please to accept, Mr. Secretary of State, the assurances of
my high consideration.
Hulsemann.
The Hon. Daniel Webster, Secretary of State of the United States.
Mr. Webster to the Chevalier Hulsemann,
Denartment of State, Washington, March 15, 1851.
The undersigned has the honor to acknowledge the receipt of
the Chevalier Hiilsemann's note of the 11th of this month, which
has been submitted to the President.
The President regrets that the note of the undersigned, ad-
vol. vi. 43
506 THE HULSEMANN CORRESPONDENCE.
dressed to the Chevalier Hiilsemann on the 21st of Decembe?
last, was not satisfactory to the Imperial government, and that
its opinion remains unchanged respecting the mission of Mr. A.
Dudley Mann, and the instructions with which he was fur-
nished. He is gratified, however, to learn that the Imperial
government desires to continue the friendly relations now so
happily subsisting between the two governments, a desire in
which he cordially concurs.
The President is also gratified to learn that the sentiments
respecting the international relations between the United States
and foreign powers, contained in his last annual message, meet
the approbation of the Imperial government; and he directs the
undersigned to assure the Chevalier Hiilsemann that he intends
to act steadily in accordance with those sentiments.
The government of the United States is as little inclined as
the Cabinet at Vienna to prolong the discussion of the topics
to which the Chevalier Hulsemann's note of the 30th of Septem-
ber of last year gave rise.
In his reply to that note, the undersigned stated the grounds
upon which this government held itself justified in every thing
which it had done connected with the mission of Mr. A. Dud-
ley Mann, and the instructions which were given to him ; and
he took the occasion also of declaring the principles and the pol-
icy which the United States maintain, as appropriate to their
condition, and as being, indeed, fixed and fastened upon them
by their character, their history, and their position among the
nations of the world ; and it may be regarded as certain that
these principles and this policy will not be abandoned or depart-
ed from until some extraordinary change shall take place in the
general current of human affairs.
The undersigned renews to the Chevalier Hiilsemann the ex-
pression of his sentiments of regard.
Daniel Webster.
The Chevalier J. G- Hulsemann, Charge d Affaires of Austria, Washington.
EXCESSES COMMITTED AT NEW ORLEANS.
Mr, Webster to Don A. Calderon de la Barca, Minister of iSpam
to the United States.
Department of State, Washington, November 13, 1851.
The undersigned, Secretary of State of the United States,
has the honor to acknowledge the receipt of the note of Senor
Don A. Calderon de la Barca, Envoy Extraordinary and Minis-
ter Plenipotentiary of her Catholic Majesty, of the 14th of last
month, upon the subject of the excesses committed at New Or-
leans upon the house of the Spanish consul, and also on the
property of certain individuals, subjects of her Catholic Majesty.
Mr. Calderon has written and acted on this occasion, as well
as on others growing out of similar occurrences, with his accus-
tomed zeal, as well as with fidelity to his government ; and he
has met, and will meet, on the part of that of the United States,
an entire readiness to listen most respectfully to his representa-
tions, arid to do all that honor, good faith, and the friendly rela-
tions subsisting between the United States and Spain may ap-
pear to demand.
The first rumor of the outrage at New Orleans induced the
government of the United States to take immediate steps to be-
come acquainted with the particulars. It was regarded as a
case in which the honor of the country was involved ; and, as
Mr. Calderon has already been informed by this department, the
Attorney of the United States for the District of Louisiana was
instructed to cause inquiry to be made into the circumstances
attending the occurrences, and to report the same to this depart-
ment. The report of the District Attorney has been received,
and a copy of it is now communicated to Mr. Calderon for hia
508 EXCESSES AT NEW ORLEANS.
information. It is accompanied, as will be perceived, by a state-
ment of the Mayor of the city of New Orleans, whose duty, as
well as whose inclination, led him to make himself acquainted
with every thing which took place.
From these authentic sources of information, it appears that,
on the morning of the 21st of August, the steamer " Crescent
City" arrived at New Orleans from Havana, with intelligence
of the execution of the fifty persons who were captured near the
coast of Cuba. Mr. Brincio, the secretary of the Spanish con-
sul, was a passenger in the steamer, and was understood to have
been intrusted by the Captain-General with letters written by
the persons who were afterwards executed to their friends in
the United States. Instead of putting these letters into the
post-office at once, on his arrival, he retained them, as was al-
leged. This occasioned an impression that he acted with great
impropriety, and a report became current that the consul had
refused to deliver the letters when requested. Written placards
were accordingly posted up in the city, threatening an attack
on the office of the Spanish newspaper called " La Union "
during the ensuing night. This attack was probably precipi-
tated by an extra sheet, issued from the office of that paper at
half past two o'clock in the afternoon, giving an account of the
execution of the fifty persons at Havana; as the attack wTas
made between three and four o'clock the same afternoon, and
before the public authorities were, or could be, prepared to pre-
vent it. During the attack, however, no personal injury was
offered to any one. Afterwards, attacks were made upon coffee-
houses and cigar-shops kept by Spaniards. Between five and
six o'clock, the same afternoon, Mr. Genois, the Recorder of the
First Municipality, hearing that an assault wras threatened on
the consul's office, situated in that municipality, repaired thith-
er, accompanied by some of the police. He found the streets
filled with people, the doors of the office broken open, and seven
or eight persons in the act of breaking and destroying the furni-
ture. He commanded the rioters to desist, and they withdrew,
after obtaining possession of the consul's sign, which they took
to a public square, and there burnt. After the departure of the
mob, the doors of the consul's office were fastened up by the
officers, and the police retired, not apprehending that the attack
Would be renewed. Within an hour, however, the rioters re-
EXCESSES AT NEW ORLEANS. 509
turned, forced their way into the office, destroyed all the remain-
ing furniture, threw the archives into the street, defaced the
portraits of the Queen of Spain and of the Captain- General of
Cuba, and tore in pieces the flag which they found in the office.
This is believed to be a true account of every thing material
which took place.
The undersigned has now to say, that the executive govern-
ment of the United States regards these outrages not only as
unjustifiable, but as disgraceful acts, and a flagrant breach of
duty and propriety; and that it disapproves them as seriously,
and regrets them as deeply, as either Mr. Calderon or his gov-
ernment can possibly do. The Spanish consul was in this
country discharging official duties, and protected not only by the
principles of public and national law, but also by the express
stipulations of treaties ; and the undersigned is directed to give
to Mr. Calderon, to be communicated to his government, the
President's assurance that these events have caused him great
pain, and that he thinks a proper acknowledgment is due to her
Catholic Majesty's government. But the outrage, nevertheless,
was one perpetrated by a mob, composed of irresponsible per-
sons, the names of none of whom are known to this govern-
ment; nor, so far as the government is informed, to its officers
or agents in New Orleans. And the undersigned is happy to
assure Mr. Calderon, that neither any officer or agent of the gov-
ernment of the United States, high or low, nor any officer of the
State of Louisiana, high or low, or of the municipal government
of the city of New Orleans, took any part in the proceeding, so
far as appears, or gave it any degree of countenance whatever.
On the contrary, all these officers and agents, according to the
authentic accounts of the Mayor and District Attorney, did all
which the suddenness of the occasion would allow to prevent it.
The assembling of mobs happens in all countries ; popular
violences occasionally break out everywhere, setting law at de-
fiance, trampling on the rights of citizens and private men, and
sometimes on those of public officers, and the agents of foreign
governments, especially entitled to protection. In thesf1 cases
the public faith and national honor require, not only tnat such
outrages should be disavowed, but also that the perpetrators of
them should be punished wherever it is possible to bring them
to justice ; and, further, that full satisfaction should be made,
43*
510 EXCESSES AT NEW ORLEANS.
in cases in which a duty to that effect rests with the govern-
ment, according to the general principles of law, public faith,
and the obligation of treaties.
Mr. Calderon thinks that the enormity of this act of popular
violence is heightened by its insult to the flag of Spain. The
government of the United States would earnestly deprecate any
indignity offered in this country, in time of peace, to the flag
of a nation so ancient, so respectable, so renowned, as Spain.
No wonder that Mr. Calderon should be proud, and that all
patriotic Spaniards of this generation should be proud, of that
Castilian ensign, which, in times past, has been reared so high,
and waved so often over fields of acknowledged and distin-
guished valor ; and which has floated also, without stain, on all
seas/ and especially, in early days, on those seas which wash
the shores of all the Indies. Mr. Calderon may be assured that
the government of the United States does not and cannot desire
to witness the desecration or degradation of the national ban-
ner of his country.
It appears, however, that in point of fact no flag was actually
flying, or publicly exhibited, when the outrage took place ; but
this can make no difference in regard to the real nature of the
offence, or its enormity. The persons composing the mob knew
that they were offering insult and injury to an officer of her
Catholic Majesty, residing in the United States under the sanc-
tion of laws and treaties, and therefore their conduct admits of
no justification. Nevertheless, Mr. Calderon and his govern-
ment are aware that recent intelligence had then been received
from Havana, not a little calculated to excite popular feeling in
a great city, and to lead to popular excesses. If this be no
justification, as it certainly is none, it may still be taken into
view and regarded as showing that the outrage, however fla-
grant, was committed in the heat of blood, and not in pursu-
ance of any predetermined plan or purpose of injury or insult
The people of the United States are accustomed, in all cases
of alleged crime, to slow and cautious investigation and deliber-
ate trial before sentence of condemnation is passed, however
apparent or however enormous the imputed offence may be.
No wonder, therefore, that the information of the execution, so
soon after their arrest, of the persons above referred to, most of
whom were known in New Orleans, and who were taken, not
EXCESSES AT NEW ORLEANS. 51 1
in Cuba, but at sea endeavoring to escape from the island,
should have produced a belief, however erroneous, that they had
been executed without any trial whatever, and caused an excite-
ment in the city the outbreak of which the public authorities
were unable for the moment to prevent or control.
Mr. Calderon expresses the opinion, that not only ought in-
demnification to be made to Mr. Laborde, her Catholic Maj-
esty's consul, for injury and loss of property, but that reparation
is due also from the government of the United States to those
Spaniards residing in New Orleans whose property was injured
or destroyed by the mob, and intimates that such reparation
had been verbally promised to him. The undersigned sincerely
regrets that any misapprehension should have grown up out of
any conversation between Mr. Calderon and officers of this gov-
ernment on this unfortunate and unpleasant affair; but, while
this government has manifested a willingness and determina-
tion to perform every duty which one friendly nation has a
right to expect from another in cases of this kind, it supposes
that the rights of the Spanish consul, a public officer residing
here under the protection of the United States government, are
quite different from those of the Spanish subjects who have
come into the country to mingle with our own citizens, and here
to pursue their private business and objects. The former may
claim special indemnity ; the latter are entitled to such protec-
tion as is afforded to our own citizens. While, therefore, the
losses of individuals, private Spanish subjects, are greatly to be
regretted, yet it is understood that many American citizens suf-
fered equal losses from the same cause ; and these private indi-
viduals, subjects of her Catholic Majesty, coming voluntarily to
reside in the United States, have certainly no cause of com-
plaint, if they are protected by the same laws,, and the same
administration of law, as native-born citizens of this country.
They have, in fact, some advantages over citizens of the State
in which they happen to be, inasmuch as they are enabled,
until they become citizens themselves, to prosecute for any in-
juries done to their persons or property in the courts of the
United States, or the State courts, at their election.
The President is of opinion, as already stated, that, for obvi-
ous reasons, the case of the consul is different, and that the gov-
ernment of the United States should provide for Mr. Laborde a
512 EXCESSES AT NEW ORLEANS.
just indemnity; and a recommendation to that effect will be
laid before Congress at an early period of its approaching ses-
sion. This is all which it is in his power to do. The case may
be a new one, but the President, being of opinion that Mr. La-
borde ought to be indemnified, has not thought it necessary to
search for precedents.
In conclusion, the undersigned has to say, that if Mr. Laborde
shall return to his post, or any other consul for New Orleans
shall be appointed by her Catholic Majesty's government, the
officers of this government resident in that city will be in-
structed to receive and treat him with courtesy, and with a
national salute to the flag of his ship, if he shall arrive in a
Spanish vessel, as a demonstration of respect, such as may
signify to him, and to his government, the sense entertained by
the government of the United States of the gross injustice done
to his predecessor by a lawless mob, as well as the indignity
and insult offered by it to a foreign state with which the United
States are, and wish ever to remain, on terms of the most re-
spectful and pacific intercourse.
The undersigned avails himself of this occasion to offer to
Mr. Calderon renewed assurances of his distinguished consider-
ation.
Daniel Webster.
Don A. Calderon de la Barca, Minister of Spain to the United States.
THE LOPEZ EXPEDITION.
Mr. Webster to Mr. Barringer, Minister of the United States to
Spain.
Department of State, Washington, November 26, 1851.
Sir, — Your despatches to No. 64, inclusive, have been re-
ceived. I am happy to inform you that the complaints of her
Catholic Majesty's government, respecting insults to the Spanish
consul and flag by a mob at New Orleans, and other acts of vio-
lence against the property of her subjects in this country, all oc-
casioned by the excitement growing out of the late invasion of
Cuba and its incidents and consequences, have been made the
subject of a correspondence between this Department and Mr.
Calderon, her Majesty's minister here. A copy of this corre-
spondence is herewith transmitted to you, by which you will
perceive that those complaints have been met by the govern-
ment of the United States in a manner satisfactory to the repre-
sentative of Spain. Her Catholic Majesty's government must
be too just to suppose for a moment, either that the government
of the United States has connived at the several invasions of
Cuba by persons proceeding from our ports, or that any thing
within the power of the government has been omitted for pre-
venting those invasions, and for punishing those concerned in
them. It has now been many months that these hostile designs
against Cuba have occupied the attention of the government of
the United States, from week to week and from day to day.
The most zealous efforts have been made to bring to condign
punishment all who have been disposed to violate the laws of
their own country, by making war upon a Spanish possession.
Her Catholic Majesty's government is quite well aware that tne
514 THE LOPEZ EXPEDITION.
principal instigator of this criminal invasion of Cuba, and the
leader of the expedition, was one of her Majesty's subjects, who
came to this country and abused its hospitality by inducing
American citizens, mostly young and ill-informed persons, to
embark in his cause and follow his standard. There is good
reason to believe, that but for this agency, and that of other
Spaniards who had come to the country, no expedition against
Cuba would ever have been set on foot. The policy of the
United States is the policy of peace, until there shall arise just
cause of war. The colonies of Spain are near to our own
shores. Our commerce with them is large and important, and
the records of the diplomatic intercourse between the two coun-
tries will show to her Catholic Majesty's government how sin-
cerely and how steadily the United States have manifested the
hope that no political changes might lead to a transfer of these
colonies from her Majesty's crown. If there is one among the
existing governments of the civilized world which for a long
course of years has diligently sought to maintain amicable re-
lations with Spain, it is the government of the United States.
Not only does the correspondence between the two govern-
ments show this, but the same truth is established by the his-
tory of the legislation of the country, and the general course of
the executive government. In this recent invasion, Lopez and
his fellow-subjects in the United States succeeded in deluding
a few hundred men, by a long-continued and systematic misrep-
resentation of the political condition of the island, and of the
wishes of its inhabitants. And it is not for the purpose of reviv-
ing unpleasant recollections that her Majesty's government is re-
minded, that it is not many years since the commerce of the Unit-
ed States suffered severely from armed boats and vessels which
found refuge and shelter in the ports of the Spanish islands.
These violations of the law, these authors of gross violence to-
wards the citizens of this republic, were finally suppressed, not
by any effort of the Spanish authorities, but by the activity and
vigilance of our navy. This, however, was not accomplished
but by the efforts of several years, nor until many valuable lives,
as well as a vast amount of property, had been lost. Among
others, Lieutenant Allen, a very valuable and distinguished offi-
cer in the naval service of the United States, was killed in an
action with these banditti.
THE LOPEZ EXPEDITION. 515
All this is not said for the purpose of making or renewing
complaints, either of the violation of treaty obligations or of un-
justifiable remissness, against the government of Spain or the
authorities of the islands. But it may be brought to the notice
of the Spanish government as one of the consequences which
may sometimes flow from the conduct of men disposed to carry
on criminal enterprises, and favored, in the execution of such
enterprises, by the contiguity of the possessions of the two gov-
ernments. The Spanish islands lie near the coast of America,
and the use of steam has rendered the passage from one to the
other short; but while this facilitates the accomplishment of the
purposes of wrongdoers, on the other hand it augments the
means of government to pursue, overtake, and disperse them, or
bring them to proper trial and punishment. In truth, steam
has greatly increased the proximity of Cuba to the United
States. We have become much nearer neighbors than for-
merly, and the duty which this new state of things devolves
on both governments is to keep a closer and stricter watch on
their subjects and citizens respectively, in order that no viola-
tion of treaty obligations, and no interruption of the peace and
amity existing between the two governments, may take place.
And this duty will be performed on the part of the United
States diligently and faithfully, in the true spirit of treaties, as
well as in the proper execution of the laws. You are at liberty
to communicate these observations to the government of her
Catholic Majesty.
I have now to call your attention to another subject of much
interest. We have learned that a hundred and sixty-two of the
persons captured on the island of Cuba, as having constituted a
part of Lopez's forces, have been sent to Spain. We have no of-
ficial information respecting their trial or sentence, or of their sub-
sequent destination, but it is generally reported that they have
been or are to be sent to the mines. The government of the
United States has admitted that these violators both of the law of
nations and of the laws of their own country have no legal claim
for its protection. Yet they are men, and most of them igno-
rant or deluded men. It cannot be denied that they are, as such,
objects of compassion ; and I think I may say, that severe pun-
ishment inflicted on so many persons for an attempt which has
ended in a failure so signal, and for an offence which, however
516 THE LOPEZ EXPEDITION.
grave, has already been expiated by the lives of a majority of
those who participated in it, might be regarded as inconsistent
with feelings of humanity and that generosity of sentiment
which may not unreasonably be looked for from the sovereign
of a great nation. This seems to have been the sentiment en-
tertained by the Captain-General of Cuba, under the influence
of which he pardoned several of the captives ; and her Majesty's
government may be assured, that this wise and well-considered
exercise of clemency and mercy has produced the best effects in
this country. He has said, that in the executions ordered by
him he acted under a conviction of the absolute necessity of
setting an example which might deter others from the perform-
ance of acts of similar criminality. That example has been set
by the infliction of a punishment as prompt as it was awful, by
the execution of fifty persons. The knowledge of their miserable
fate has been carried to every man in this country, and spread
all over the world.
Is not this enough? Can example be made more terrific?
Certainly an act of clemency on the part of the Spanish gov-
ernment could not now be thought a symptom of weakness.
May not the sword of justice be now sheathed without danger,
and the voice of Christian humanity be allowed to be heard ?
And even if the Spanish government can entertain no great
feeling of compassion for these deluded and offending men
themselves, is it not highly just and proper to consider that they
have friends and families, distressed fathers and mothers, weep-
ing brothers and sisters, all of them unoffending, and some of
them most respectable persons? Application has been made
for the interposition of the kind offices of this government from
fathers, whose sons (thoughtless young men, seduced by the
efforts of Lopez and his associates) eloped from their own
homes and joined the expedition without the knowledge of their
friends. I am aware, that, in regard to the results of the Cuban
invasion, all cause for sympathy and compassion is not on one
side. I am aware that a general officer in her Majesty's service
was slain, and that many Spanish soldiers and Spanish subjects
lost their lives in defence of their government and of their own
homes. But the President thinks that it is wise to suffer obliv-
ion to cover the past. He is anxious for the removal of every
cause which might tend to keep alive ill-will between the citi-
THE LOPEZ EXPEDITION. 517
zens and subjects of the two countries. So long as these pris-
oners shall continue to be suffering a severe and lingering pun-
ishment in a foreign land, so long will efforts be constantly
made by their friends to procure their release, by appeals to the
good offices of their government. The tendency of these appli-
cations can only be to keep alive a very considerable irritation.
It is in consideration of this, and from a strong wish for the ex-
tinguishment of all feelings of that kind, that, in the judgment
of the President, nothing would be more useful than the grant-
ing of her Majesty's pardon to the residue of these prisoners,
and suffering them to return to their own homes.
Those who were pardoned by the Captain-General of Cuba
appear to have been among the most prominent and well-in-
formed members of the expedition. The friendless are left to
their fate, although less culpable, as being less informed of their
duties and obligations. It seems invidious and unjust to make
distinctions of this kind. You say that the existing belief in
Spain is, that the result of the expedition has strengthened the
hands of the Spanish government, and given new security to
its possession of the island. A similar sentiment prevails, to
some extent, here.
We are not apprised of the disposition which may have been
made of the prisoners, who, as you state in your No. 62, have ar-
rived at Vigo. In answer to your inquiry as to whether, in any
event, and to what extent, assistance in clothing, or other neces-
saries, might be furnished to such as might need and apply for
the same on account of the United States, I have to remark,
that it is expected that none of the needy among the prisoners
will be allowed to suffer for want of the necessaries of life.
You will accordingly take care that their wants are provided for.
An application will be made to Congress for an appropriation
towards defraying any expenses which may thereby be occa-
sioned.
I am, Sir, very respectfully, your obedient servant,
Daniel Webster,
To D. M. Babringeh Esq., &c.
vol. vi. 44
THE CASE OF THRASHER.
Mr. Webster to Mr. Barringer.
Department of State, Washington, December 13, 1851.
Sir, — The object of this despatch is to call your attention
particularly to the case of John S. Thrasher, a native-born
citizen of the United States, but for some years past a resi-
dent in Havana, and there lately tried for high treason or con-
spiracy, convicted, sentenced to eight years' confinement to
hard labor, and sent to Spain in execution of that sentence.
He has respectable friends and connections in the United States
who feel much interest for him, and who have pressed his
case upon the consideration of this department, earnestly in-
voking the interposition of the government in his behalf.
It is much to be regretted that Mr. Thrasher has made no
communication whatever to this department respecting the cir-
cumstances of his case, so as to enable us to see what are the
precise grounds of his complaint.
We have used all the means in our power to learn the par-
ticulars, as you will perceive by copies of two letters addressed
by this department to the American consul at Havana. To
these letters we have received as yet no answer. A despatch
on this subject was prepared for you some days ago, but before
it was delivered to the messenger a communication was re-
ceived from Mr. Calderon, her Majesty's plenipotentiary here,
communicating a copy of a letter of the Governor- General of
Cuba to him, and also an opinion of the Real Audiencia
Pretorial (Royal Court of Judicature) upon the construc-
tion of the seventh article of the treaty between the United
States and Spain. The translation of these documents has
THE CASE OF THRASHER. 519
necessarily caused some delay. You will perceive that the
Spanish authorities of the island represent that Mr. Thrasher
had been long a resident in Havana ; had become domiciled
there, and had taken the oath of allegiance to the Spanish
crown ; and therefore, as they suppose, was answerable to the
ordinary tribunals of the country for any criminal act commit-
ted by him.
This causes it to be the more regretted that he has made no
communication to the government of his own case, as he un-
derstands it. He has indeed, through the press, addressed a
general letter of remonstrance to the government and people of
the United States, and this is all we hear from him personally.
Nevertheless, his case has been thought deserving of attention,
and there is a wish on the part of government to do all which
may be proper in his behalf. If the official account of the
Spanish authorities be correct, Mr. Thrasher appears to have
expatriated himself, and to have become, at least for the time, a
subject of the Crown of Spain. He had chosen a new govern-
ment and a new home; and so long as he chose to remain
under the authority and protection of that government, he
would seem to have little right to set up against it any immu-
nity founded on his original and native character as a citizen of
the United States. There is no doubt that any one who
chooses to reside in a country is bound to conform to its laws,
and is amenable to its tribunals for their violation ; the more
especially if he has promised subjection and obedience to those
laws, and taken an oath of allegiance to the sovereign power.
Mr. Thrasher's friends insist, nevertheless, that on his trial he
was deprived of certain privileges secured to citizens of the
United States by the seventh article of our treaty with Spain
of 1795. But it may be doubtful whether, after having sworn
allegiance to the Spanish government, he can longer claim the
privileges and immunities of an American citizen. In the Unit-
ed States, as v^u know, the oath of allegiance is the consum-
mation of the proceedings by which a foreigner becomes a
citizen of this country, and renounces all allegiance to every
foreign government. It may be doubtful, also, whether, if he
were to be regarded in all respects as an American citizen, the
provisions of the seventh article of the treaty of 1795 have
been violated in his casp
520 THE CASE OF THRASHER.
Probably, under existing circumstances, the most useful course
for the government of the United States to pursue in his behalf,
and in order to obtain his release, is to make the same applica-
tion for him which has been made in favor of the persons con-
nected with the expedition of Lopez, who have, in like manner,
been sent to Spain. His case, however, is certainly less fla-
grant than theirs. They were violent invaders, proceeding to
Cuba with arms in their hands to make war upon the Spanish
government and people. He at most could be only guilty of
some connivance, or secret countenance, of these unlawful pro-
ceedings. You will perceive, therefore, that his case is one
more fit for a lenient consideration than that of those with
whom the project of invasion originated, and who were made
prisoners in attempting its forcible execution. You will present
this point as fully as may be to the consideration of the Queen's
government, and urge it with earnestness.
In the instruction of this department, No. 48, considerations
were presented which it was hoped would prevail on that gov-
ernment to release those persons who had been taken prisoners
in the expedition of Lopez. The expectation that such a re-
lease would be ordered is now a good deal strengthened by in-
formation which the department has received, that those of the
prisoners who were British subjects have already been liberated.
Mr. Thrasher is represented as an amiable and intelligent
man, and, as his friends represent the matter, his conduct was
principally instigated, not so much by sympathy with the invad-
ers in their general objects, as by a desire to minister to their
necessities. We cannot judge of this, because we have neither
any proof nor any statement of the particular acts in which the
alleged treason or conspiracy consisted. But, however this may
be, you will present to her Catholic Majesty's government, in
as strong a manner as may be consistent with propriety, the
expediency of pardoning him with the rest, so that nothing may
remain in the form of lingering punishment of an individual to
keep alive the recollection of occurrences equally lamented by
both governments. The unthinking and imprudent have been
most severely admonished by events ; those who violated the
law have seen that punishment always awaits such violation ;
and we may be allowed to hope that the exercise on the part
of her Majesty's government of forbearance and clemency will
not tend to encourage criminal enterprises in future.
THE CASE OF THRASHER. 521
Her Majesty's government cannot doubt the motives which
have actuated that of the United States in preventing and re-
pressing, to the utmost of its power, these invasions of Spanish
territory. It cannot doubt its full and perfect disposition to
fulfil all its obligations, and to maintain with Spain the most
friendly relations. And the President directs me to say, that he
hopes that her Majesty's government, being thus fully assured
of the entire good faith of that of the United States, will readi-
ly listen to the suggestions which I have been directed to
make in behalf of all the prisoners ; and I repeat, with a still
more strengthened conviction, the sentiment which I expressed
in my despatch No. 48, that the restoration of perfect harmony
and solid and durable peace between the two countries will be
aided and promoted by the release of all these miserable men
from further imprisonment.
With a view to its safety and despatch, this instruction is
sent to you by a special bearer.
I am, Sir, very respectfully, your obedient servant,
Daniel Webster.
To Daniel M. Barringer, Esq., &c, &c, Madrid.
Mr. Webster to the President of the United States.
Department of State, Washington, December 23, 1851.
The Secretary of State, to whom has been referred a reso-
lution of the House of Representatives of the 15th instant, in
the following words : " Resolved, That the President of the
United States be requested, so far as in his judgment may
be compatible with the public interest, to communicate to
this House any information in possession of the executive
respecting the imprisonment, trial, and sentence of John S.
Thrasher, in the island of Cuba, and his right to claim the pro-
tection of the government as a native-born citizen of the United
States " ; has the honor to report to the President, that all the
official information in possession of this department respecting
the imprisonment, trial, and sentence of Mr. John S. Thrasher,
is contained in the despatches of Allen F. Owen, Esquire, late
United States Consul at Havana, together with a correspond-
ence between him and the Governor- General of the island of
Cuba, and in a letter addressed by the Governor-General to
Don A. Calderon de la Barca, her Catholic Majesty's Minister
44*
522 THE CASE OF THRASHER.
in the United States ; copies of all of which are herewith trans*
mitted.
There is no doubt that John S. Thrasher is a citizen of the
United States by birth, nor is there any doubt that he has re-
sided in the island of Cuba for a considerable number of years,
engaged in business transactions, sometimes as a merchant, and
sometimes as the conductor of a newspaper press ; although the
precise period and duration of such residence are not known.
On this point, the department has sought in vain for exact in-
formation. Mr. Thrasher himself has made no communication
to this department, although he has, through the press, ad-
dressed a general letter of remonstrance to the government and
people of the United States.
In the letter from the Governor of Cuba to her Catholic Maj-
esty's Minister in the United States, already mentioned, it is
stated that he has been, not only a resident in Havana for a con-
siderable time, but domiciled there by regular proceedings; and
that he has, in solemn form, sworn allegiance to the Spanish
crown. There is no evidence in the possession of the govern-
ment to show what was his purpose with regard to returning to
his native country, at any fixed or definite time. Other mem-
bers of his family are understood to be, like himself, residents in
Cuba, his father having gone to that island some years ago.
These are all the known general facts respecting the nature
of his residence in Havana, which have come to the knowledgr
of this department.
It appears that soon after the failure and breaking up of the
late expedition of Narcisso Lopez, in the invasion of Cuba by
him and the troops under his command, Mr. Thrasher was ar-
rested and tried for high treason or conspiracy against the
crown of Spain, condemned to eight years' imprisonment to
hard labor, and sent to Spain in execution of that sentence.
There is no evidence in the department to show what were the
particular acts of treason or conspiracy alleged, or proved,
against him. We have only the general statement, although
pains has been taken to ascertain particulars.
The first general question, then, is, as to his right to exemp-
tion from Spanish law and Spanish authority, on the ground of
his being a native-born citizen of the United States.
The general rule of the public law is, that every person of full
THE CASE OF THRASHER. 523
age has a right to change his domicile ; and it follows, that when
he removes to another place, with an intention to make that
place his permanent residence, or his residence for an indefinite
period, it becomes instantly his place of domicile ; and this is so,
notwithstanding he may entertain a floating intention of return-
ing to his original residence or citizenship at some future peri-
od. The Supreme Court of the United States has decided, "that
a person who removes to a foreign country, settles himself there,
and engages in the trade of the country, furnishes by these acts
such evidences of an intention permanently to reside in that
country, as to stamp him with its national character"; and this
undoubtedly is in full accordance with the sentiments of the
most eminent writers, as well as with those of other high judicial
tribunals, on the subject. No government has carried this gen-
eral presumption farther than that of the United States, since it
is well known that hundreds of thousands of persons are now
living in this country who have not been naturalized according
to the provisions of law, nor sworn any allegiance to this gov-
ernment, nor been domiciled amongst us by any regular course
of proceedings. What degree of alarm would it not give to
this vastly numerous class of men, actually living amongst us
as inhabitants of the United States, to learn that, by removing
to this country, they had not transferred their allegiance from
the governments of which they were originally subjects to this
government? And, on the other hand, what would be the con-
dition of this country and its government, if the sovereigns of
Europe, from whose dominions they have emigrated, were sup-
posed to have still a right to interpose to protect such inhabitants
against the penalties which might be justly incurred by them in
consequence of their violation of the laws of the United States ?
In questions on this subject, the chief point to be considered is
the animus manendi, or intention of continued residence ; and
this must be decided by reasonable rules and the general prin-
ciples of evidence. If it sufficiently appear that the intention
of removing was to make a permanent settlement, or a settle-
ment for an indefinite time, the right of domicile is acquired by
a residence even of a few days.
It is undoubtedly true that an American citizen who goes into
a foreign country, although he owes local and temporary alle-
giance to that country, is yet, if he performs no other ac*
524 THE CASE OF THRASHER.
changing his condition, entitled to the protection of his own
government ; and if, without the violation of any municipal
law, he should be treated unjustly, he would have a right to
claim that protection ; and the interposition of the American
government in his favor would be considered as a justifiable
interposition. But his situation is completely changed, when,
by his own act, he has made himself the subject of a foreign
power. And a person found residing in a foreign country is
presumed to be there animo manendi, or with the purpose of
remaining; and to relieve himself of the character which this
presumption fixes upon him, he must show that his residence
was only temporary, and accompanied all the while with a
fixed and definite intention of returning. If in that country he
engages in trade and business, he is considered by the law of
nations as a merchant of that country ; nor is the presumption
rebutted by the residence of his wife and family in the country
from which he came. This is the doctrine as laid down by the
United States courts. And it has been decided that a Spanish
merchant, who came to the United States and continued to
reside here and carry on trade after the breaking out of war
between Spain and Great Britain, is to be considered an Amer-
ican merchant, although the trade could be lawfully carried on
by a Spanish subject only. But the necessity of any presump-
tion in Mr. Thrasher's case is entirely removed, if, in fact, he
actually took out letters of domiciliation, in order to enable him
to transact business such as a Spanish subject or a domiciliated
foreigner can alone transact, and actually swore allegiance to
the Spanish crown. For the purpose of showing the mode by
which foreigners are domiciled in the island of Cuba, and the
duties thereby imposed upon them, and also by what means
they obtain the ultimate right of naturalization, I have thought
it worth while to quote at length a translation of the royal
decree of January 17, 1815, and also the royal colonization
decree of October 21, 1817. It is understood that no change
has been made, by royal decrees, in the requirements of the
Spanish law of domicile and naturalization since the last of
those periods.
* All foreigners belonging to powers and countries that are friendly
to me, who may wish to establish themselves, or who may already be
established, in the island of Cuba, must produce suitable evidence before
THE CASE OF THRASHER. 52s)
.lie government of said island that they profess the Roman Catholic
religion, and without this indispensable qualification they will not be
allowed to become domiciled there ; but my vassals in these dominions,
and those inhabiting the Indies, need not be compelled to certify to this
effect, inasmuch as, in regard to them, there can be no doubt upon this
point.
" Those foreigners who shall be admitted conformably to the provis-
ions of the foregoing article, shall take the oath of allegiance and vas-
salage before the governor, by which they shall promise to obey the
general laws and ordinances of the Indies, to which all Spaniards are
amenable.
u At the expiration of the first five years of residence in the island,
on the part of foreign colonists, and on their contracting then the obli-
gation to remain there perpetually, they shall be allowed all the rights
and privileges of naturalization, equally with such children as they may
have brought with them, or who may have been born to them in the
aforesaid island, in order that the same may consequently be allowed to
hold honorable offices, both civil and military, according to the talents
of each individual."
The same decree also provides that u a foreigner may reside
in Cuba for the period of three months without letters of domi-
cile," but that on his remaining there without such letters beyond
the time specified, " he becomes guilty of disobedience to the
laws, and amenable to such just punishment as, after a close
examination of the cause, may be imposed on him."
Upon the same subject, and in corroboration of the above,
the royal colonization decree of October 21, 1817, says : —
" Letters of domicile shall be issued to any foreign colonist who pro-
fesses the Roman Catholic religion, and takes the oath of allegiance,
by means of which, during five years of residence, it shall be optionaJ
with him either to return to his own country, or to present himself before
the superior magistrate at the expiration of those five years, for the
purpose of obtaining his naturalization papers, which will be granted to
him without any great formality, in order that, on being thus naturalized,
he may enjoy all the rights and privileges appertaining to Spaniards, as
well as his sons and legitimate descendants."
On the 6th of March, 1818, the Govern or- General, in view
of the above-mentioned royal decree of October 21, 1817, issued
a Bando Real, in which it is provided, that,
" In the absence of the requisite qualifications in regard to the pro*
526 THE CASE OF THRASHER.
fession of the Catholic faith, the fact shall be noted down in the letters cf
domicile, which will then be issued on probation for the term of two
years. If, at the expiration of those two years, the applicant cannot
produce satisfactory evidence of his professing our sacred religion, the
letter of domicile shall be taken away from him, and he will then be
considered in the light of merely a transient foreigner, and, as such, be
compelled to leave this island at the expiration of three months, in pur-
suance of the twenty-eighth article of the royal decree."
But, independently of a residence with intention to continue
such residence, independently of any domiciliation, indepen-
dently of the taking of an oath of allegiance or of renouncing
any former allegiance, it is well known that by the public law
an alien, or a stranger born, for so long a time as he continues
within the dominions of a foreign government, owes obedience
to the laws of that government, and may be punished for trea-
son, or other crimes, as a native-born subject might be, unless
his case is varied by some treaty stipulations ; but this duty of
obedience to the laws, arising from local and temporary alle-
giance, ceases, of course, the moment he transfers himself back
to his original country.
An American citizen by birth, owing of course a native alle-
giance to the United States, going abroad and obtaining no
residence under a foreign government, and professing to such
government no allegiance, and who should yet commit acts of
hostility or war against this country, would seem to bring him-
self within the act of Congress which declares that, if any per-
son or persons owing allegiance to the United States of Ameri-
ca shall levy war against them, or shall adhere to their enemies,
giving them aid and comfort, within the United States or else-
where, he or they shall be adjudged guilty of treason. And the
reason is plain, since his allegiance in such a case is original
and native, and has not been transferred, nor lost in any other
local allegiance arising from residence elsewhere, but continues
to be the primitive tie which binds him to his country.
But, as has been already said, every foreigner born, residing
in a country, owes to that country allegiance and obedience to
its laws so long as he remains in it, as a duty imposed upon
him by the mere fact of his residence, and the temporary pro-
tection which he enjoys, and is as much bound to obey its laws
as native subjects or citizens. This is the universal understand*
THE CASE OF THRASHER. 527
ing in all civilized states, and nowhere a more established doc-
trine than in this country.
Mr. Jefferson, when Secretary of State, in his letter to Gou-
verneur Morris of the 16th of August, 1793, speaking of the
right of private citizens to make war upon a country with
which the government of the United States is at peace, says : —
" If one citizen has a right to go to war of his own authority, every
citizen has the same. If every citizen has that right, then the nation
(which is composed of all its citizens) has a right to go to war by the
authority of its individual citizens. But this is not true, either on the
general principles of society, or by our Constitution, which gives that
power to Congress alone, and not to the citizens individually. Then the
first position was not true ; and no citizen has a right to go to war of
his own authority ; and for what he does without right, he ought to be
punished. Indeed, nothing can be more obviously absurd, than to say
that all the citizens may be at war, and yet the nation at peace.
" It has been pretended, indeed, that the engagement of a citizen in
an enterprise of this nature was a divestment of the character of citi-
zen, and a transfer of jurisdiction over him to another sovereign. Our
citizens are certainly free to divest themselves of that character by
emigration, and other acts manifesting their intention, and may then
become the subjects of another power, and free to do whatever the sub-
jects of that power may do. But the laws do not admit that the bare
commission of a crime amounts of itself to a divestment of the char-
acter of citizen, and withdraws the criminal from their coercion. They
would never prescribe an illegal act among the legal modes by which a
citizen might disfranchise himself; nor render treason, for instance,
innocent, by giving it the force of a dissolution of the obligation of the
criminal to his country."
This is in accordance with the opinion of the Circuit Court
of the United States for Pennsylvania, by whom it was stated,
in 1793, that, "if one citizen of the United States may take
part in the present war, ten thousand may. If they may take
part on one side, they may take part on the other; and thus
thousands of our fellow-citizens may associate themselves with
different belligerent powers, destroying not only those with
whom we have no hostility, but destroying each other. In
such a case, can we expect peace among their friends who stay
behind? And will not a civil war, with all its lamentable train
of evils, be the natural effect ? "
Our citizens, who resort to countries where the trial by jury
528 THE CASE OF THRASHER.
is not known, and who may there be charged with crime, fre-
quently imagine, when the laws of those countries are admin-
istered in the forms customary therein, that they are deprived
of rights to which they are entitled, and therefore may expect
the interference of their own government. But it must be
remembered, in all such cases, that they have of their own free
will elected a residence out of their native land, and preferred
to live elsewhere, and under another government, and in a coun-
try in which different laws prevail.
They have chosen to settle themselves in a country where
jury trials are not known ; where representative government
does not exist; where the privilege of the writ of habeas corpus
is unheard of; and where judicial proceedings in criminal cases
are brief and summary. Having made this election, they must
necessarily abide its consequences. No man can carry the
aegis of his national American liberty into a foreign country,
and expect to hold it up for his exemption from the dominion
and authority of the laws and the sovereign power of that coun-
try, unless he be authorized to do so by virtue of treaty stipu-
lations.
The definition of crimes, the denouncement of penalties for
their commission, and the forms of proceeding by which guilt
is to be ascertained, are high prerogatives of sovereignty, and
one nation cannot dictate them to another without being liable
to the same dictation herself.
The friends of Mr. Thrasher interpose in his behalf the sev-
enth article of the treaty of 1795, which declares that, in all
cases of offences committed by any citizen or subject of the
one party within the jurisdiction of the other, the same shall
be prosecuted by order and authority of law only, and accord-
ing to the regular course of proceeding in such cases. They
shall also be allowed to employ such advocates as they may
judge proper before the tribunals of the other party, who shall
have free access to be present at the proceedings in such causes,
and at the taking of all examinations and evidence which may
be exhibited in the said trials.
As the public law, however, does in no case impart to for-
eigners residing in any country privileges which are denied to
Us own citizens or subjects, except, perhaps, that of leaving
the country, it may be thought doubtful whether, by the arti-
THE CASE OF THRASHER. 529
cle of the treaty referred to, the parties could have contemplat-
ed any thing more than to place citizens of the United States
within Spanish jurisdiction on an equality with Spanish subjects,
and Spanish subjects in the United States on an equality with
our own citizens, in criminal proceedings. A citizen of Spain
in this country might complain, perhaps, of a trial by jury here,
because of the supposed partialities and prejudices of juries;
while an American in Spain complains of condemnation, in
summary form, by judges, without the intervention of a jury
to ascertain his guilt. The question arising on the latter clause
of this seventh article of the treaty with Spain may not be
entirely clear or free from difficulty, especially when it is known
that the minister who negotiated this treaty on the part of the
United States appears to have attached considerable impor-
tance to this right of selecting and employing counsel. Mr.
Thomas Pinckney, the American negotiator, says, in a letter
on the subject of the treaty, that the first part of this seventh
article was taken from the sixteenth article of our treaty with
Prussia, and that he added the latter part because he consid-
ered it a good stipulation in all situations, but particularly
in Spain.
We can readily imagine why it should have been stipulated
in the treaty, that the trial of an American citizen in Spain
should be open and public, because we know that, as late as
the year 1795, there existed in Spain an ecclesiastical jurisdic-
tion, having power over life and death, whose proceedings
were always secret. Whether it was intended by the parties
that this right of selecting counsel in the case of the arrest or
the trial of an American citizen, for treason, or other crime
against the civil law, should extend further, or be broader,
than in the case of a Spanish subject prosecuted for a simi-
lar offence, may be matter of doubt and controversy. The
view which the Spanish courts of the highest jurisdiction
take of it, may be seen by the communication of the Royal
Court of Judicature accompanying the letter of the Governor-
General to Mr. Calderon. But, however all this may be, the
general question still returns, whether this right secured by trea-
ty, whatever it is, be not justly limited to such persons as are
at the time in all respects American citizens, having never vol-
vol. vi. 45
530 THE CASE OF THRASHER.
untarily changed their domicile or taken upon themselves a
new allegiance.
In this view of the case, it might therefore be asked wheth-
er, if Mr. Thrasher had been a native-born subject of her Cath-
olic Majesty, his trial and its result would have been different
from what they actually were.
If indeed Mr. Thrasher, in his arrest and trial, did not enjoy
the benefits which native-born Spanish subjects enjoy in like
cases, but was more harshly treated, or more severely punished,
for the reason that he was a native-born citizen of the United
States, it would be a clear case of the violation of treaty obli-
gations, and would demand the interposition of the government.
There exists in this department no proof of any such extraor-
dinary treatment of Mr. Thrasher. It may have taken place.
In the absence of all other information, reference is made on
that point, as well as on all the rest of the case, to the letter
of the Governor- General of Cuba to Mr. Calderon, her Catho-
lic Majesty's Minister Plenipotentiary to this government.
For the further information of the House of Representatives,
I also transmit herewith a copy of the despatch of the 13th
instant, from this department to the Minister of the United
States at Madrid, and of despatches to the acting consul at
Havana of the 12th and 28th of November last.
Daniel Webster.
To the President.
MISCELLANEOUS LETTERS.
MISCELLANEOUS LETTERS.
To the Rev. Louis Dwig-ht, Secretary of the Prison Discipline
Society,
Washington, May 2, 1830.
Sir, — I have received your letter of the 19th of April, ask-
ing my opinion upon several questions, all relative to the sub-
ject of imprisonment for debt. I am quite willing to express
my general opinions on that interesting subject, although they
are not so matured as to be entitled to influence other men's
judgments. The existing laws, I think, call loudly for revision
and amendment. Your first four questions seek to know what
I think of imprisonment for small sums. I am decidedly
against it; I would carry the exemption to debts of thirty or
forty dollars, at least. Individual instances of evil or hardship
might, I am aware, follow from such a change; but I am per-
suaded the general result would be favorable, in a high degree,
to industry, sobriety, and good morals, as well as to personal
liberty.
You ask, in the next place, what I think of imprisonment for
debt in any case, where there is no evidence of fraud. Certainly
I am of opinion that there should be no imprisonment for debt,
where it appears that no fraud has been practised, or intended,
either in contracting the debt or in omitting to pay it. But
then it seems to me, that, when a man does not fulfil a lawful
promise, he ought to show his inability, and to show also that
his own conduct has been fair and honest. He ought not to be
allowed merely to say he cannot pay, and then to call on the
creditor to prove that his inability is pretended or fraudulent
He ought to show why he does not and cannot fulfil his con-
45*
534 IMPRISONMENT FOR DEBT.
tract, and to give reasonable evidence that he has not acted
fraudulently ; and, this being done, his person ought to be held
no longer. In the first place, the creditor is entitled to the oath
of his debtor, and, in the next place, to satisfactory explanation
of any suspicious circumstances.
There are two sorts of fraud, either of which, when proved,
ought to prevent a liberation of the person ; namely, fraud in
contracting the debt, and fraud in concealing, or making way
with, the means of payment. And the usual provisions of the
bankrupt act ought to be added, that no one should be discharged
who is proved to have lost money in any species of gaming;
and I should include in this class all adventurers in lotteries.
Having tendered his own oath, and made just explanation of
any circumstances of suspicion, if there be such, and not hav-
ing lost money by gaming, the debtor ought to be discharged
at once ; which answers another of your questions ; for the de-
tention of thirty days before the oath can be taken appears to
me wholly useless.
You are pleased to ask, whether, in my judgment, Christians
can, with a good conscience, imprison, either other Christians, or
infidels. He would be very little of a Christian, I think, who
should make a difference, in such a case, and be willing to use
a degree of severity towards Jew or Greek which he would not
use towards one of his own faith. Whether conscientious men
can imprison any body for debt, whom they do not believe dis-
honest or fraudulent, is a question which every man, while the
law allows such imprisonment, must decide for himself. In
answer to your inquiry, whether I have found it necessary to
use such coercion in regard to debts of my own, I have to say,
that I never imprisoned any man for my own debt, under any
circumstances ; nor have I, in five-and-twenty years' profes-
sional practice, ever recommended it to others, except in cases
where there was manifest proof, or violent and unexplained sus-
picion, of intentional fraud.
Imprisonment for debt, my dear Sir, as it is now practised, is,
in my judgment, a great evil ; and, it seems to me, an effectual
remedy for the larger part of the evil is obvious. Nineteen
twentieths of the whole of it would be relieved, in my opinion,
if imprisonment for small debts were to be abolished. That ob-
ject I believe to be attainable ; and to its attainment, I think,
IMPRISONMENT FOR DEBT. 535
the main attention of those who take an interest in the subject
should be directed. Small credits are often given, on the confi-
dence of being able to collect the debt by the terrors of the jail ;
great ones, seldom or never.
Three simple provisions would accomplish all, in my opinion,
that may be considered as absolutely required to a just state
of the law respecting imprisonment for debt in Massachu-
setts : —
1. That no imprisonment should be allowed, when the debt,
exclusive of costs, did not amount to thirty dollars.
2. That there should be no necessity of imprisonment for
thirty days, as preliminary to taking the poor debtor's oath ; nor
any longer detention than such as is necessary to give parties
notice, and time to prepare for examination ; and that a conven-
ient number of magistrates in every county should, for the
purpose of administering the oath, be appointed by the gov-
ernment; and that such magistrates should be clothed with
such further powers as might be thought expedient, in order to
enable them to make a thorough investigation of the fairness or
fraud of the debtor's conduct.
3. That, in cases where the debtor had been discharged, if the
creditor would make oath to newly discovered evidence, proving
original fraud, or to his belief that the debtor had subsequently
received property, and concealed or withheld the same from his
creditors, it should be competent to such creditor to have inves-
tigation of such charge, and, if made out, to have execution
against the person, and if not made out, that the creditor should
pay the cost of the prbceeding.
Other provisions might doubtless be useful ; but if these three
alone could be obtained, they would, in a great measure, clear
the jails of debtors, and give general satisfaction, I have no
doubt, to creditors.
I ought to add, that the imprisonment of females in the com-
mon jails, for mere debt, is a barbarism which ought not to be
tolerated. Instances of such imprisonment, though rare, do yet
sometimes occur, under circumstances that shock every humane
mind. In this respect, the law ought, in my judgment, to be
altogether reformed.
(>36 SLAVERY.
To John Bolton, Esq., of Georgia.
New York, May 17, 1833.
My dear Sir, — I have received your letter of last evening,
requesting me to state my opinion of the powers of Congress on
the subject of slaves and slavery ; and of the existence of any
wish or design, on the part of Northern men, to interfere with
the security or regulation of that species of property.
My sentiments on this subject, my dear Sir, have been often
publicly expressed; but I can have no objection to repeat the
declaration of them, if it be thought by you that such a dec-
laration might, in the smallest degree, aid the friends of the
Union and the Constitution, in the South, in dispelling preju-
dices which are so industriously fostered, and in quieting agita-
tions so unnecessarily kept alive.
In my opinion, the domestic slavery of the Southern States
is a subject within the exclusive control of the States them-
selves ; and this, I am sure, is the opinion of the whole North.
Congress has no authority to interfere in the emancipation of
slaves, or in the treatment of them in any of the States. This
was so resolved in the House of Representatives, when Con-
gress sat in this city in 1790, on the report of a committee con-
sisting almost entirely of Northern members ; and I do not
know an instance of the expression of a different opinion, in
either house of Congress, since. I cannot say that particular
individuals might not possibly be found who suppose that
Congress may possess some power over the subject, but I do
not know any such persons, and if there be any, I am sure
they are few. The servitude of so great a portion of the popu-
lation of the South is undoubtedly regarded at the North as a
great evil, moral and political ; and the discussions upon it
which have recently taken place in the legislatures of several of
the slaveholding States have been read with very deep interest.
But it is regarded, nevertheless, as an evil, the remedy for which
lies with those legislatures themselves, to be provided and ap-
plied according to their own sense of policy and duty. The
imputations which you say, and say truly, are constantly made
against the North, are, in my opinion, entirely destitute of any
just foundation. I have endeavored to repel them, so far as has
been in my power, on all proper occasions ; and for a fuller ex-
POWER OF THE STATES TO CONTRACT LOANS. 537
pTession of my own opinions, both on the power of Congres?
and on the groundless charges against Northern men, I beg
leave to refer you to my remarks in the debate on Mr. Foot's
resolutions, in 1830.
I am, my dear Sir, with much true regard, your obedient
servant,
Daniel Webster.
To Messrs. Baring Brothers Sf Co.
London, October 16, 1839.
Gentleman, — I have received your letter, and lose no time in
giving you my opinion on the question which you have submit-
ted for my consideration. The assertion and suggestions to
which you refer, as having appeared in some of the public prints,
had not escaped my notice.
Your first inquiry is, "whether the legislature of one of the
States had legal and constitutional power to contract loans at
home and abroad." To this I answer, that the legislature of
a State has such power ; and how any doubt could have arisen
on this point it is difficult for me to conceive.
Every State is an independent, sovereign, political commu-
nity, except in so far as certain powers, which it might other-
wise have exercised, have been conferred on a general govern-
ment, established under a written constitution, and exercising
its authority over the people of all the States. This general
government is a limited government. Its powers are specific
and enumerated. All powers not conferred on it still remain
with the States or with the people. The State legislatures,
on the other hand, possess all usual and ordinary powers of
government, subject to any limitations which may be imposed
by their own constitutions, and with the exception, as I have
said, of the operation on those powers of the Constitution of
the United States.
The powers conferred on the general government cannot, of
course, be exercised by any individual State ; nor can any State
pass any law whicli is prohibited by the Constitution of the
United States.
f)38 POWER OF THE STATES
Thus no State can by itself make war, or conclude peace, 01
enter into alliances or treaties with foreign nations. In these,
and in other important particulars, the powers which would
have otherwise belonged to the State can now be exercised only
by the general government, or the government of the United
States. Nor can a State pass a law which is prohibited by its
own constitution. But there is no provision in the Constitu-
tion of the United States, nor, so far as T know or have under-
stood, in any State constitution, prohibiting the legislature of a
State from contracting debts, or making loans either at home
or abroad. Every State has the power of levying and collecting
taxes, direct and indirect, of all kinds, except that no State can
impose duties on goods and merchandise imported, that power
belonging exclusively to Congress by the Constitution. That
power of taxation is exercised by every State, habitually and
constantly, according to its own discretion and the exigencies
of its own government.
This is the general theory of that mixed system of govern-
ment which prevails in America. And as the Constitution of
the United States contains no prohibition or restraint on State
legislatures in regard to making loans, and as no State consti-
tution, so far as known to me, contains any such prohibition,
it is clear that, in this respect, those legislatures are left in the
full possession of this power, as an ordinary and usual power of
government. I have seen a suggestion, that State loans must
be regarded as unconstitutional and illegal, inasmuch as the
Constitution of the United States has declared that no State
shall emit bills of credit. It is certain that the Constitution
of the United States does contain this salutary prohibition ; but
what is a bill of credit ? It has no resemblance whatever to a
bond, or other security given for the payment of money bor-
rowed. The term bill of credit is familiar in our political his-
tory, and its meaning is well ascertained and settled, not only
by that history, but by judicial interpretations and decisions
from the highest sources.
For the purpose of this opinion, it may be sufficient to say,
that bills of credit, the subject of the prohibition in the Constitu-
tion of the United States, were essentially paper money. They
were paper issues, intended for circulation and for receipt into
the treasury as cash, and were sometimes made a tender in pay-
TO CONTRACT LOANS. 539
men! for debts. To put an end at once and for ever to evils of
this sort, and to dangers from this source, the Constitution of
the United States has declared, that no State shall emit bills
of credit, nor make any thing but gold and silver a tender in
payment of debts, nor pass any law which shall impair the
obligation of contracts. All this, however, proves, not that
States cannot contract debts, but that, when contracted, they
must pay them in coin, according to their stipulation. The
several States possess the power of borrowing money for their
own internal occasions of expenditure, as fully as Congress
possesses the power to borrow in behalf of the United States,
for the purpose of raising armies, equipping navies, or perform-
ing any other of its constitutional duties. It may be added,
that Congress itself fully recognizes this power in the States,
as it has authorized the investment of large funds, which it
held in trust for very important purposes, in certificates of
State stocks. The security for State loans is the plighted faith
of the State, as a political community. It rests on the same
basis as other contracts with established governments, the same
basis, for example, as loans made by the United States, under
the authority of Congress ; that is to say, the good faith of the
government making the loan, and its ability to fulfil its en-
gagements. The State loans, it is known, have been contracted
principally for the purpose of making railroads and canals ; and
in some cases, although I know not how generally, the income
or revenue expected to be derived from these works is directly
and specifically pledged, and in others very valuable tracts of
land. It cannot be doubted that the general result of these
works of internal improvement has been, and will be, to en-
hance the wealth and ability of the States.
It has been said, that the States cannot be sued on these
bonds. But neither could the United States be sued, nor, as
I suppose, the crown of England, in a like case. Nor would
the power of suing give to the creditors, probably, any substan-
tial additional security. The solemn obligation of a govern-
ment, arising on its own acknowledged bond, would not be
enhanced by a judgment rendered on such bond. If it either
could not or would not make provision for paying the bond, it
is not probable that it could or would make provision for sat-
isfying the judgment.
540 INTERCOURSE WITH ENGLAND.
The States cannot rid themselves of their obligations other-
wise than by the honest payment of the debt. They can pass
no law impairing the obligation of their own contracts. They
can make nothing a tender, in discharge of such contracts, but
gold and silver. They possess all adequate power of providing
for the case, by taxes and internal means of revenue. They
cannot get round their duty, nor evade its force. Any failure
to fulfil its undertakings would be an open violation of public
faith, to be followed by the penalty of dishonor and disgrace ;
a penalty, it may be presumed, which no State of the Ameri-
can Union would be likely to incur.
I hope I may be justified by existing circumstances in closing
this letter with the expression of an opinion of a more general
nature. It is, that I believe the citizens of the United States,
like all honest men, regard debts, whether public or private, and
whether existing at home or abroad, to be of moral as well as
legal obligation ; and I trust I may appeal to their history,
from the moment when those States took their rank among
the nations of the earth to the present time, for proof that this
belief is well founded. If it were possible that any one of the
States should at any time so entirely lose her self-respect, and
forget her duty, as to violate the faith solemnly pledged for her
pecuniary engagements, I believe there is no country upon earth,
not even that of the injured creditor, in which such a pro-
ceeding would meet with less countenance or indulgence than
it would receive from the great mass of the American people.
T have the honor to be, Gentlemen, your obedient servant,
Daniel Webster.
To the Duke of Rutland.
London, November 16, 1839.
My dear Duke, — I am obliged to you for the respectful
manner in which, presiding at the meeting of the Waltham
Agricultural Association, you were pleased to refer to our con-
versation at Belvoir, and I have still higher pleasure in noticing
the just and liberal sentiments expressed by you on that occa-
sion respecting the relations of our respective countries. Such
INTERCOURSE WITH ENGLAND. 541
sentiments, I assure you, will be heartily reciprocated on our
side of the Atlantic. England and the United States are not
only the two most commercial countries in the world, but they
are also those two which have the greatest degree of intercourse
with each other. This will strike any one who shall compare
the small amount of annual trade between EngJand and France
with the great amount of that between England and the United
States, and yet France is within sight of England, with thirty-
three or thirty-four millions of people, and the United States
are three thousand miles off, with half that amount of popu-
lation ; and, notwithstanding the progress which may be ex-
pected in some branches of manufactures in America, there
is no reason to doubt that this intercourse will continue, and
perhaps be increased by the Trapid increase of population in
America. While the United States continue to import British
commodities, it is evidently the interest of England that her
customers should increase both in numbers and in the ability
to buy and consume her products. On the other hand, every
intelligent person in America sees, not only the evils which
would ensue from any interruption of the harmony existing
between the two countries, but the embarrassments, also, which
must be felt in America, whenever any disasters occur sufficient
to derange the general prosperous course of trade and business
in England.
The intimate relations of commerce subsisting between the
two countries, the well-known laws of trade and exchange, and
the important fact that both countries use, to a great extent, a
representative paper currency, necessarily cause any great em-
barrassment which may be felt in one to be extended to the
other. Your Grace was quite right, I think, in your observa-
tions on the subject of corn. America is indebted to England
in various ways, and is likely to remain so, while the interest of
money remains much lower in the latter country than in the
former. We have this year a most abundant wheat crop ; and
if England should have occasion to import corn or flour, both
countries would be benefited by her taking her supply from us.
We should be paying so much of our debt, and she would be
receiving her supply without the necessity of sending abroad
specie ; and it is undoubtedly true that the short crop in Eng-
land last year, leading to so heavy an export of gold and silver
vol. vi. 46
542 LABORERS ON THE PUBLIC WORKS.
to the Continent, most seriously affected commercial business
in the United States, as well as in England.
Let us hope, my dear Duke, that between two Christian na-
tions speaking the same language, having the same origin,
enjoying the same literature, and connected by these mutual
ties of interest, nothing may ever exist but peace and harmony,
and the noble rivalship of accomplishing most for the general
improvement and happiness of mankind.
Allow me to close this letter with an invitation, which, if
given some years ago, would have passed for mere compliment;
and that is, that you will come and see us. You are fond of
excursions by sea. Eighteen or twenty days will take you from
Belvoir Castle to the Falls of Niagara, and you may see much
of America this side of the Alleghanies, and something of what
is beyond, and return to England in a period hardly longer than
an ordinary recess of Parliament. Nature has done much in
America which is worthy to attract your notice. Man, I hope,
has done something ; and at any rate, you and your connections
and friends would be sure of receiving that respectful and hearty
welcome to which your character and your hospitality to others
so well entitle you.
T have the honor to be, my dear Duke, very faithfully yours,
Daniel Webster.
To M. St. Clair Clarke, Wm. S. Murphy, and Hudson M. Garland.
Department of State, March 27, 1841.
Gentlemen, — It is the desire of the President to be fully
acquainted with the state of progress in which the public
works now are, and with the degree of skill, fidelity, and econ-
omy with which these works are carried on. For this pur-
pose he has appointed you a commission of examination and
inquiry, and he wishes you to direct your attention to the fol-
lowing points : —
1st. What is the number of persons employed on the public
buildings now in progress in the city, exclusive of laborers?
This is the more necessary, as many of those persons hold
offices not created by specific provisions of law.
TO HIS POLITICAL FRIENDS IN NEW HAMPSHIRE. 543
2d. What is the respective duty of each of these persons?
3d. What prices are paid to them for their services, and
whether in any case the compensation is unreasonably large.
4th. Whether there has been, or is, any just ground of com-
plaint against those persons, or any of them, either in regard
to their own diligence and skill, or in regard to their treatment
of laborers employed by them.
If you have any reason to suppose that any one has been
guilty of misconduct, you will state the charge to him, and give
him an opportunity to answer itjNand will report no evidence
of which the party shall not have had notice. You will in-
quire into no man's political opinions or preferences ; but if it
be alleged that any person, having the power of employing and
dismissing laborers, has used that power either in employing
or dismissing with any reference to the political opinions of
those who may have been employed or dismissed, or for any
political or party object whatever, or in any other way violated
his duty for party or electioneering purposes, you will inquire
into the truth of such suggestion ; and if you find reason to
think it well founded, in any case, you will state the particulai
facts or circumstances on which your opinion is founded. It
is not intended that this commission shall be of long continu-
ance, nor be attended with any considerable expense. You
will use as much despatch, therefore, as the nature of the case
will allow, and make report to this department.
A reasonable sum will be allowed you for your time and
service, out of the appropriated fund.
By the President's order.
Daniel Webster, Secretary of State,
To Messrs. John Haven and others.
Washington, January 3, 1 844.
Gentlemen, — I have received your letter requesting permis-
sion to present my name to the people as a candidate for the
office of President of the United States, subject to the future
wise, deliberate action of the Whig National Convention of
1844.
»
It would be disingenuous to withhold an expression of the
544 TO HIS POLITICAL FRIENDS IN NEW HAMPSHIRE.
grateful feelings awakened by a letter, containing such a re-
quest, so very numerously signed, and coming from among
those who have known me through life. No one can be insen-
sible to the distinction of being regarded by any respectable
number of his fellow-citizens as among those from whom a
choice of President might be made with honor and safety to
the country. The office of President is an office, the impor-
tance of which cannot be too highly estimated. He who fills it
necessarily exercises a great influence, not only on all the do-
mestic interests of the country, on its foreign relations, and the
support of its honor and character among the nations of the
earth, but on that which is of the very highest import to the
happiness of the people, the maintenance of the Constitution
itself, and the prosperous continuance of the government un-
der it.
Our systems are peculiar; and while capable, as experience
has shown, of producing the most favorable results, under a
wise and cautious administration, they are, nevertheless, ex-
posed to peculiar dangers.
We have six-and-twenty States, each possessing within itself
powers of government, limited only by the Constitution of the
United States ; and we have a general government, to which are
confided high trusts, to be exercised for the benefit of the people
of all the States. It is obvious that this division of poweio,
itself the result of a novel and most delicate political operation,
can be preserved only by the exercise of wisdom and pure
patriotism. The Constitution of the United States stands on
the basis of the people's choice. It must remain on that basis
so long as it remains at all. The veneration and love which
are , entertained for it will be increased by every instance of
wise, prudent, impartial, and parental administration.
On the other hand, they will be diminished by every admin-
istration which shall cherish local divisions, devote itself to local
interests, seek to bend the influence of the government to per-
sonal or partisan purposes, or which shall forget that all patriot-
ism is false and spurious which does not look with equal eye to
the interests of the whole country, and all its parts, present and
to come. I hardly know what an American statesman should
so much deprecate, on his own account, as well as on account
of his country, as that the Constitution of the United States,
TO HIS POLITICAL FRIENDS IN NEW HAMPSHIRE. 545
now the glory of our country and the admiration of the world,
should become weakened in its foundations, perverted in its
principles, or fallen and sunk in a nation's regard and a na-
tion's hopes, by his own follies, errors, or mistakes. The Con-
stitution was made for the good of the country ; this the people
know. Its faithful administration promotes that good; this the
people know. The people will themselves defend it against all
foreign powers, and all open force, and they will rightfully hold
to a just and solemn account those to whom they may com-
mit it, and in whose hands it shall be found to be shorn of a
single beam of its honor, or deprived of a particle of its ca-
pacity for usefulness. It was made for an honest people, and
they expect it to be honestly administered. At the present mo-
ment, it is an object of general respect, confidence, and affec-
tion. Questions have arisen, however, and are likely to arise
again, upon the extent of its powers, or upon the line which
separates the functions of the general government from those
of the State governments ; and these questions will require,
whenever they may occur, not only firmness, but much discre-
tion, prudence, and impartiality, at the hand of the national
executive. Extreme counsels or extreme opinions on either
side would be very likely, if followed or adopted, to break up
the well-adjusted balance of the whole. And he who has the
greatest confidence in his own judgment, or the strongest reli-
ance on his own good fortune, may yet be well diffident of his
ability to discharge the duties of his trust in such a manner as
shall prevent the public prosperity, or advance his own repu-
tation.
But, Gentlemen, while the office of President is quite too
high to be sought by personal solicitation, or for private ends
and objects, it is not to be declined, if proffered by the volun-
tary desire of a free people.
It is now more than thirty years since you and your fellow-
citizens of New Hampshire assigned me a part in political
affairs. My public conduct since that period is known. My
opinions on the great questions now most interesting to the
country are well known. The constitutional principles which
I have endeavored to maintain are also known. If these prin-
ciples and these opinions, now not likely to be materially
changed, should recommend me to further marks of public re-
46*
£46 REPLY TO THE BOSTON ADDRESS.
gard and confidence, I should not withhold myself from com-
pliance with the general will.
But I have no pretensions of my own to bring forward, and
trust that no friends of mine would, at any time, use my name
for the purpose of preventing harmony among those whose gen-
eral political opinions concur, or for any cause whatever but a
conscientious regard to the good of the country. It is obvious,
Gentlemen, that, at the present moment, the tendency of opin-
ion among those to be represented in the convention is gener-
ally and strongly set in another direction. I think it my duty,
therefore, under existing circumstances, to request those who
may feel a preference for me not to indulge in that preference,
nor oppose any obstacle to the leading wishes of political
friends, or to united and cordial efforts for the accomplishment
of those wishes.
The election of the next autumn must involve, in general,
the same principles, and the same questions, that belonged to
that of 1840. The cause I conceive to be the true cause of the
country, its permanent prosperity, and all its great interests ;
the cause of its peace and honor ; the cause of good govern-
ment, true liberty, and the preservation and integrity of the
Constitution ; and none should despair of its success.
I am, Gentlemen, with sentiments of sincere regard, your
obliged and obedient servant,
Daniel Webster.
To the Hon. Thomas H. Perkins and others, Citizens of Boston.
Washington, April 9, 1850.
Gentlemen, — It would be in vain that I should attempt to
express the gratification which I have derived from your letter
of the 25th ultimo. That gratification arises not only from its
manifestation of personal regard and confidence, but especially
from the evidence which it affords that my public conduct, in
regard to important pending questions, is not altogether disap-
proved by the people of Massachusetts. Such a letter, with
such names, assures me that I have not erred in judging of the
causes of existing discontents, or their proper remedy, and en-
courages me to persevere in that course which my deepest con-
REPLY TO THE BOSTON ADDRESS. 547
mictions of duty have led me to adopt. The country needs
pacification ; it needs the restoration of mutual respect and har-
mony between the people in one part of the Union and those
in another. And, in my judgment, there is no sufficient cause
for the continuance of the existing alienation between the North
and the South. If we will look at things justly and calmly,
there are no essential differences, either of interest or opinion,
which are irreconcilable or incapable of adjustment. So far
as the question of slavery or no slavery applies to the newly
acquired territories, there is, in my judgment, no real and prac-
tical point of importance in dispute. There is not, and there
cannot be, slavery, as I firmly believe, either in California, New
Mexico, or Utah. And, if this be so, why continue the con-
troversy on a mere abstraction ?
The other disturbing questions respect the restoration of fugi-
tive slaves, and slavery in the District of Columbia ; and I know
no reason why just and fair measures, all within the undoubted
limits and requisitions of the Constitution, might not be adopt-
ed, which should give, on these subjects, general satisfaction.
At any rate, we should make the attempt, because, so long as
these dissensions continue, they embarrass the government, in-
terrupt the quiet of the people and alarm their fears, and render
it highly improbable that important acts of legislation, affecting
great objects, and in which the whole country is deeply inter-
ested, can be accomplished. Indeed, the ordinary operations,
essential to the existence of the government and its daily ad-
ministration, meet with checks and hinderances hitherto alto-
gether unprecedented. We must return to our old feelings of
conciliation and regard ; we must refresh ourselves at those pure
fountains of mutual esteem, common patriotism, and fraternal
confidence, whose beneficent and healing waters so copiously
overflowed the land through the struggle of the Revolution, and
in the early years of the government. The day has come when
we should open our ears and our hearts to the advice of the
great Father of his Country. " It is of infinite moment," said he,
" that you should properly estimate the immense value of your
national union to your collective and individual happiness ;
that you should cherish a cordial, habitual, and immovable at-
tachment to it ; accustoming yourselves to think and speak of it
as of the palladium of your political safety and prosperity;
548 SLAVERY IN NEW MEXICO.
watching for its preservation with jealous anxiety ; discounte-
nancing whatever may suggest even a suspicion that it can in
any event be abandoned ; and indignantly frowning upon the
first dawning of every attempt to alienate any portion of our
country from the rest, or to enfeeble the sacred ties which now
link together the various parts."
Notwithstanding what may occasionally appear on the sur-
face, the American mind is deeply imbued with the spirit of
this advice. The people, when serious danger threatens, will,
in my opinion, stand fast by their government. They will suf-
fer no impairing of its foundation, no overthrow of its columns,
no disorganization of its structure. The Union and the Con-
stitution are to stand, and what we have to do is so to admin-
ister the government that all men shall be made more and more
sensible of its beneficent operations and its inestimable value.
It is not inappropriate that I should accompany this answer
to your letter by the copy of a recent correspondence between
the Hon. Hugh N. Smith, Delegate from New Mexico, now in
this city, and myself.
I have the honor to be, Gentlemen, with profound regard,
your obliged fellow-citizen, and obedient, humble servant,
Daniel Webster.
To the Hon. Hugh N. Smith, Delegate from New Mexico.
Washington, April 8, 1850.
Dear Sir, — I beg leave to present you with a copy of my
speech delivered in the Senate on the 7th of March last, and to
draw your attention to the remarks made by me on that occa-
sion upon the general character of the country of New Mexico,
and its adaptation to slave labor. You have been a resident in
the country for several years, and, as I have understood you to
say, have traversed it from end to end. You are a native of
one of the slave States of this Union, and of course acquainted
with the usual cost of slave labor, and the modes of cultivation
to which it may be properly applied. You are, therefore, I am
sure, quite competent to express an opinion entitled to respect
on the points that I have suggested.
SLAVERY IN NEW MEXICO. 549
I will be obliged to you also to state what the fact is, at the
present time, respecting the existence of slavery in New Mexico,
and whether the existing laws and constitution of the country
allow it.
I have the honor to be, my dear Sir, your obedient servant,
Daniel Webster.
To the Hon. Daniel Webster.
Washington, April 9, 1850.
Dear Sir, — I have the honor to acknowledge the receipt of
your letter of the 8th instant, and reply to it with great pleasure.
New Mexico is an exceedingly mountainous country, Santa
Fe itself being twice as high as the highest point of the Alle-
ghanies, and nearly all the land capable of cultivation is of
equal height, though some of the valleys have less altitude
above the sea. The country is cold. Its general agricultural
products are wheat and corn, and such vegetables as grow in
the Northern States of this Union. It is entirely unsuited for
slave labor. Labor is exceedingly abundant and cheap. It
may be hired for three or four dollars a month, in quantity quite
sufficient for carrying on all the agriculture of the territory.
There is no cultivation except by irrigation, and there is not a
sufficiency of water to irrigate all the land.
As to the existence at present of slavery in New Mexico, it is
the general understanding that it has been altogether abolished
by the laws of Mexico ; but we have no established tribunals
which have pronounced as yet what the law of the land in this
respect is. It is universally considered, however, that the terri-
tory is altogether a free territory. I know of no persons in the
country who are treated as slaves, except such as may be ser-
vants to gentlemen visiting or passing through the country. I
may add, that the strongest feeling against slavery universally
prevails throughout the whole territory, and I suppose it quite
impossible to convey it there, and maintain it by any means
whatever.
I have the honor to be, with regard, your obedient servant,
Hugh N. Smith.
550 TO A FORMER POLITICAL OPPONENT.
To Hon. Isaac Hill.
Washington, April 20, 1850.
Dear Sir, — I regard such a letter from you as that cf the
17th of this month as an extraordinary and gratifying incident
in my life. For a long course of years, we have belonged to
opposing parties, espoused opposite measures, and supported
for high office men of very different political opinions.
We have not, however, taken different views of duty in re-
spect to the maintenance of the Constitution of the United
States. From your voice, or your pen, any more than from
mine, there never has proceeded a sentiment hostile to "that
Unity of government which constitutes us one people."
And now, when we are no longer young, a state of things
has arisen seriously interrupting the harmony and good-will
which have hitherto existed between different parts of the coun-
try, exciting violent local animosities, impeding the regular and
ordinary progress of the government, and fraught with mischiefs
of every description. And all this has its origin in certain
branches of the Slavery question, which, as it appears to me,
are either quite unimportant in themselves, or clearly settled
and determined by the Constitution.
All this I have seen with that keen regret which you have
experienced yourself, and which cannot but be a common feel-
ing with all reflecting men who are lovers of their country.
To this unhappy state of the public mind I have felt it my
duty to address myself, not in language of irritation, crimina-
tion, or menace, but in words of peace, patriotic sympathy, and
fraternal regard. My effort has been, and will be, to the full
extent of my power, to cause the billows of useless and danger-
ous domestic controversy to sleep, and be still.
I am as fully aware as other men of what is to be expected
from such attempts. In highly excited times it is far easier to
fan and feed the flames of passion and discord, than to subdue
them; and in such times he who counsels moderation is in dan-
ger of being regarded as failing in his duty to party.
These consequences I willingly meet, these dangers I encoun-
ter without hesitation ; being resolved to throw myself, with
whatever weight may belong to me, unreservedly into the scale
of LFnion. Where Washington led, I am willing to follow, at
TO CITIZENS OF NEWBURYPORT, MASS. 551
A vast distance, indeed, and with unequal, but no faltering
steps.
The speech which you commend so much above its merits, I
submit to the political party to which I belong, and to the wise
and patriotic men of all parties, in the generation in which I
live ; and I cheerfully leave it, with the principles and senti-
ments which it avows, to the judgment of posterity, if I may
flatter myself that any thing spoken or written by me will be
remembered long enough to come before that impartial and au-
gust tribunal.
I am, with great regard, your obedient servant,
Daniel Webster.
To Edward S. Rand and others, Citizens of Neivburyport, Mass,
Washington, May 15, 1850.
Gentlemen, — I have the honor to acknowledge the receipt
of your letter of the 8th of April, approving the sentiments of
my speech delivered in the Senate on the 7th of March last.
As considerable differences of opinion prevail, in Massachusetts,
on the subject of that speech, it is grateful to receive, in a letter
so respectably and numerously signed, opinions so decidedly
concurring with my own.
Circumstances have occurred, within the last twenty years,
to create a new degree of feeling, at the North, on the subject of
slavery ; and from being considered, as it was at the adoption
of the Constitution, mainly as a political question, it has come
to be regarded, with unusual warmth, as a question of religion
and humanity.
It is obvious enough, that the government of the United
States has no control over slavery, as it exists in the several
States. Its proper jurisdiction, in this respect, is confined to
its own territories, except so far as it is its duty to see that
that part of the Constitution which respects the surrender of
fugitive slaves be carried fairly and honestly into execution.
The Constitution of the United States, in the second section
«f the fourth article, declares : —
4 A person charged in any State with treason, felony, or other crime,
552 '10 CITIZENS OF NEWBLRYPORT, MASS.
who shall flee from justice, and be found in another State, shall, on de
mand of the executive authority of the State from which he fled, be
delivered up, to be removed to the State having jurisdiction of the
crime.
" No person held to service or labor in one State, under the laws
thereof, escaping into another, shall, in consequence of any law or regu-
lation therein, be discharged from such service or labor, but shall be
delivered up on claim of the party to whom such service or labor may
be due."
This provision of the Constitution seems to have met with
ittle exception or opposition, or none at all, so far as I know,
in Massachusetts. Every body seems to have regarded it as
necessary and proper. The members of the convention of that
State for adopting the Constitution were particularly jealous
of every article and section which might in any degree intrench
on personal liberty. Every page of their debates evinces this
spirit. And yet I do not remember that any one of them found
the least fault with this provision. The opponents and deriders
of the Constitution, of this day, have sharper eyes in discern-
ing dangers to liberty than General Thompson, Holder Slocum,
and Major Nason had, in 1788; to say nothing of John Han-
cock, Samuel Adams, and others, friends of the Constitution,
and among them the very eminent men who were delegates in
that convention from Newburyport: Rufus King, Benjamin
Greenleaf, Theophilus Parsons, and Jonathan Titcomb.
The latter clause, quoted above, it may be worth while to re-
mark, was borrowed, in substance, from the celebrated Ordi-
nance of 1787, which was drawn up by that great man of
your own county, and a contemporary of your fathers, Nathan
Dane. ,
Mr. Dane had very venerable New England authority for the
insertion of this provision in the Ordinance which he prepared.
In the year 1643, there was formed a confederation between
the four New England Colonies, Massachusetts Bay, Plymouth,
Connecticut, and New Haven ; and in the eighth article of that
confederation it is stipulated as follows : " It is also agreed,
if any servant run away from his master into any other of
these confederated jurisdictions, that, in such cases, upon the
certificate of one magistrate in the jurisdiction out of which the
said servant fled, or upon other due proof, the said servant
TO CITIZENS OF NEWBURYPORT, MASS. 553
shall be delivered, either to his master, or any other that pur-
sues, and brings such certificate or proof." And in the " Arti-
cles of Agreement," entered into in 1650, between the New
England Colonies and u the delegates of Peter Stuyvesant,
Governor of New Netherland," it was stipulated that " the
same way and course" concerning fugitives should be observed
between the English Colonies and New Netherland, as had
been established in the " Articles of Confederation " between
the English Colonies themselves.
On the 12th of February, 1793, under the administration of
General Washington, Congress passed an act for carrying into
effect both these clauses of the Constitution. It is entitled,
" An Act respecting fugitives from justice, and persons escaping
from the service of their masters."
The first two sections of this law provide for the case of fugi-
tives from justice ; and they declare, that whenever the executive
authority of any State or Territory shall demand any person, as
a fugitive from justice, of the executive authority of any State or
Territory to which such person shall have fled, and shall produce
the copy of an indictment, or an affidavit made before a magis-
trate, charging the person so demanded with having committed
treason, felony, or other crime, certified as authentic by the
governor or chief magistrate of the State or Territory whence
the person so charged fled, it shall be the duty of the executive
authority of the State or Territory to which such person shall
have fled, to cause him or her to be arrested or secured, and no-
tice of the arrest to be given to the executive authority making
such demand, or to the agent of such authority appointed to
receive the fugitive, and to cause the fugitive to be delivered to
such agent when he shall appear; but if no such agent shall ap-
pear within six months, the prisoner may be discharged ; and
all costs or expenses incurred by arresting, securing, or transmit-
ting the fugitive shall be paid by the State or Territory making
the demand ; and that any agent who shall receive such fugi-
tive into his custody shall be authorized to transport him to the
State or Territory from which he fled ; and any person res-
cuing or setting such person at liberty shall, on conviction, be
fined not exceeding five hundred dollars, and be imprisoned not
exceeding one year.
The last two sections of the act respect persons held to labor
vol. vi. 47
554 TO CITIZENS OF NEWBURYPORT, MASS.
in any of the United States or Territories, escaping into any
other State or Territory ; and are in these words : —
" Sect. 3. And be it further enacted, That when a person held to labor
in any of the United States, or in either of the Territories on the north-
west or south of the River Ohio, under the laws thereof shall escape
into any other of the said States or Territories, the person to whom such
labor or service may be due, his agent or attorney, is hereby empowered
to seize or arrest such fugitive from labor, and to take him or her before
any judge of the Circuit or District Courts of the United States, residing
or being within the State, or before any magistrate of a county, city, or
town corporate, wherein such seizure or arrest shall be made ; and upon
proof, to the satisfaction of such judge or magistrate, either by oral testi-
mony or affidavit taken before and certified by a magistrate of any such
State or Territory, that the person so seized or arrested doth, under the
laws of the State or Territory from which he or she fled, owe service or
labor to the person claiming him or her, it shall be the duty of such
judge or magistrate to give a certificate thereof to such claimant, his
agent or attorney, which shall be sufficient warrant for removing the
said fugitive from labor to the State or Territory from which he or she
fled.
" Sect. 4. And be it further enacted, That any person who shall
knowingly and willingly obstruct or hinder such claimant, his agent or
attorney, in so seizing or arresting such fugitive from labor, or shall
rescue such fugitive from such claimant, his agent or attorney, when so
arrested pursuant to the authority herein given or declared, or shall
harbor or conceal such person, after notice that he or she was a fugitive
from labor, as aforesaid, shall, for either of the said offences, forfeit and
pay the sum of five hundred dollars ; which penalty may be recovered
by and for the benefit of such claimant, by action of debt, in any court
proper to try the same ; saving, moreover, to the person claiming such
labor or service, his right of action for, or on account of, the said in-
juries, or either of them."
It will be observed, that in neither of the two cases does the
law provide for the trial of any question whatever by jury, in
the State in which the arrest is made. The fugitive from jus-
tice is to be delivered, on the production of an indictment, or a
regular affidavit, charging the party with having committed the
crime; and the fugitive from service is to be removed to the
State from which he fled, upon proof, before any authorized
magistrate, in the State where he may be found, either by wit-
nesses or affidavit, that the person primed doth owe service to
TO CITIZENS OF NEWBURYPORT, MASS 555
the party claiming him, under the laws of the State from which
he fled. In both cases, the proceeding is to be preliminary and
summary ; in both cases, the party is to be removed to the
State from which he fled, that his liabilities, and his rights, may
be there regularly tried and adjudged by the tribunals of that
State, according to its laws. In the case of an alleged fugitive
from justice, charged with crime, it is not to be taken for grant-
ed, in the State to which he has fled, that he is guilty ; nor in
that State is he to be tried, or punished. He is only to be re-
mitted for trial to the place from which he came. In the case
of the alleged fugitive from service, the courts of the State in
which he is arrested are not to decide that, in fact or in law, he
does owe service to any body. He, too, is only to be remitted,
for an inquiry into his rights and the proper adjudication of
them, to the State from which he fled ; the tribunals of which
understand its laws, and are in the constant habit of trying the
question of slavery or no slavery, on the application of individ-
uals, as an ordinary act of judicial authority. There is not a
slave State in the Union, in which independent judicial tribu-
nals are not always open to receive and decide upon petitions,
or applications for freedom ; nor do I know, nor have I heard
it alleged, that the decisions of these tribunals are not fair and
upright. Such of them as I have seen evince, certainly, these
qualities in the judges.
This act of Congress of the 12th of February, 1793, appears
to have been well considered, and to have passed with little op-
position. There is no evidence known to me that any body at
the time regarded any of its provisions as repugnant to religion,
liberty, the Constitution, or humanity. The two Senators of
Massachusetts at that time were that distinguished legislator
and patriot of your own county, George Cabot ; and that other
citizen of Massachusetts, among the most eminent of his day
for talent, purity of character, and every virtue, Caleb Strong.
Mr. Cabot, indeed, was one of the committee for preparing the
bill. It appears to have passed the Senate without a division.
In the House of Representatives it was supported by Mr. Good-
hue, Mr. Gerry, both then, I believe, of your county of Essex,
(Mr. Goodhue afterwards a Senator of the United States, and
Mr. Gerry afterwards Vice-President of the United States,) Mr.
Ames, Mr. Bourne, Mr. Leonard, and Mr. Sedgwick, members
556 TO CITIZENS OF NEWBURYPORT, MASS.
from Massachusetts, and was passed by a vote of forty-eight
to seven; of these seven, one being from Virginia, one from
Maryland, one from New York, and four from the New Eng-
land States ; and of these four, one, Mr. Thatcher, from Mas-
sachusetts.
I am not aware that there exists any published account of the
debates on the passage of this act. I have been able to find
none. I have searched the original files, however, and I find
among the papers several propositions for modifications and
amendments, of various kinds; but none suggesting the propri-
ety of any jury trial in the State where the party should be ar-
rested.
For many years, little or no complaint was made against this
law, nor was it supposed to be guilty of the offences and enor-
mities which have since been charged upon it. It was passed
for the purpose of complying with a direct and solemn injunc-
tion of the Constitution ; it did no more than was believed to be
necessary to accomplish that single purpose ; and it did that in
a cautious, mild manner, to be everywhere conducted according
to judicial proceedings.
I confess I see no more objection to the provisions of this
law than was seen by Mr. Cabot and Mr. Strong, Mr. Good-
hue and Mr. Gerry; and such provisions appear to me, as
they appeared to them, to be absolutely necessary, if we mean
to fulfil the duties positively and peremptorily enjoined upon us
by the Constitution of the country. But since the agitation
caused by Abolition societies and Abolition presses has to such
an extent excited the public mind, these provisions have been ren-
dered obnoxious and odious. Unwearied endeavors have been
made, and but too successfully, to rouse the passions of the
people against them ; and under the cry of universal freedom,
and under that other cry, that there is a rule for the government
of public men and private men which is of superior obligation
to the Constitution of the country, several of the States have
enacted laws to hinder, obstruct, and defeat the enactments in
this act of Congress, to the utmost of their power. The Su-
preme Court of the United States has solemnly decided, that it
is lawful for State officers and State magistrates to fulfil the
duties enjoined upon them by the act of Congress of 1793, un-
less prohibited by State laws ; and thereupon prohibitory State
TO CITIZENS OF NEWBURYPORT, MASS. 557
laws have been immediately passed, inflicting fine and imprison-
ment on all Slate officers and magistrates who shall presume
to conform to these requisitions of the act of Congress. And
these prohibitory and penal laws of the States have rendered it
imperative on Congress to make further and other provisions for
carrying into effect the substantial 'intention of the act of 1793.
This is the cause of the introduction into the Senate of a bill
on the subject, recently, by the Committee on the Judiciary.
Notwithstanding all that may be said by shallow men, ignorant
men, and factious men, men whose only hope of making or of
keeping Ihemselves conspicuous is by incessant agitation and
the most reckless efforts to alarm and misguide the people, I
know of no persons, in or out of Congress, who wish any thing
more to be done on the subject of fugitives from service, than
what is essentially necessary in order to meet the requirements
of the Constitution, and accomplish the objects of the act of
Congress of 1793. Whatever enactments may be deemed essen-
tia to this purpose, I, for one, shall certainly support, as I feel
bound to do by my oath of office, and by every consideration
of duty and propriety.
As I have already said, the act of Congress of 1793 made no
provision for any trial by jury in the State where the arrest ot
a fugitive is made. I have considered the subject with a con-
scientious desire to provide for such jury trial, if possible, in
order to allay excitement and remove objections. There are
many difficulties, however, attending any such provision ; and
a main one, and perhaps the only insuperable one, has been
created by the States themselves, by making it a penal offence in
their own officers to render any aid in apprehending or securing
such fugitives, and absolutely refusing the use of their jails for
keeping them in custody till a jury could be called together,
witnesses summoned, and a regular trial had. It is not too
much to say, that to these State laws is to be attributed the ac-
tual and practical denial of trial by jury in these cases. These
ill-considered State laws it is which have absolutely deprived
the alleged fugitive, as the case now stands, of any trial by jury,
by refusing those aids and facilities without which a jury trial
is impossible.
But at the same time, nothing is more false than that such
jury trial is demanded in cases of this kind by the Constitution,
47*
558 TO CITIZENS OF NEWBURYPORT, MASS.
either in its letter or in its spirit. The Constitution declares,
that in all criminal prosecutions there shall be a trial by jury ;
the reclaiming of a fugitive slave is not a criminal prosecution.
The Constitution also declares, that in suits at common law
the trial by jury shall be preserved; the reclaiming of a fugitive
slave is not a suit at the common law. And there is no other
clause or sentence in the Constitution having the least bearing
on the subject.
I have seen a publication by Mr. Horace Mann, a member
of Congress from Massachusetts, in which I find this sentence.
Speaking of the bill before the Senate, he says : " This bill de-
rides the trial by jury secured by the Constitution. A man
may not lose his horse without a right to this trial, but he may
his freedom. Mr. Webster speaks for the South and for slavery,
not for the North and for freedom, when he abandons this right."
This personal vituperation does not annoy me, but I lament to
see a public man of Massachusetts so crude and confused in
his legal apprehensions, and so little acquainted with the Con-
stitution of his country, as these opinions evince Mr. Mann to
be. His citation of a supposed case, as in point, if it have any
analogy to the matter, would prove, that, if Mr. Mann's horse
stray into his neighbor's field, he cannot lead him back without a
previous trial by jury to ascertain the right. Truly, if what Mr.
Mann says of the provisions of the Constitution, in this publi-
cation, be a test of his accuracy in the understanding of that
instrument, he would do well not to seek to protect his peculiar
notions under its sanction, but to appeal at once, as others. do,
to that higher authority which sits enthroned above the Consti-
tution and above the law.*
* I may be permitted to add, in a note, an extract from a private letter from
one of the most distinguished men in England, dated as late as the 29th of Jan-
uary : " Religion is an excellent thing in every matter except in politics.
There, it seems to make men mad ; and I do not know of any people more mad
than the antislavery people, on your side of the water and on ours. Up to the
present time, I have no doubt they have aggravated every evil they have endeav-
ored to mitigate or prevent. If you tell one of them what has been the result
of his officiousness, he answers, ' Libsravi animam meam. I may have done
wrong, but I shall go to heaven for it.' So I believe that your Abolitionists have
made the state of the slave, and still more that of the free black, much worse
than it would have been; and probably in many States, that of Virginia, for in-
stance, have retarded his enfranchisement. But they care little, if they save
their own souls. On the other hand, the Southerners seem as unreasonable.
To require California to accept slavery seems both wicked and unjust."
In these sentences my friend means undoubtedly, to ascribe the evils which
TO CITIZENS OF NEWBURYPORT, MASS. 559
Gentlemen, I am extending these remarks, I fear, to quite too
great a length ; but there is still one characteristic of this " agi-
tation" too remarkable to be omitted.
A member of Congress from Illinois, of talent and rapidly
increasing distinction,* in a speech delivered in the House of
Representatives on the 21st day of February, made these very
true and pertinent remarks : —
" I am not so unmindful of truth as to deny that, in respect to the
subject now under consideration, some of our Southern friends have
good cause to complain. But it must have been remarked by all of us,
that the Representatives from those States which have really been ag-
grieved in this respect are not those who have threatened us with dis-
union. These threats have come from the Representatives of States,
from which, I venture to say, on an average not one slave escapes in
five years. Who ever heard of a slave escaping from Mississippi or
Alabama ? Where does he go to ? Who helps him away ? Certainly
not the people of the North. Kentucky, Virginia, Maryland, and Mis-
souri, the only States that are really sufferers by the escape of slaves,
do not seem to have dreamed of dissolution as a remedy ; while the
Representatives from a few of the extreme Southern States, whence
slaves could no more escape than from the island of Cuba, see ample
cause and imperious necessity for dissolving the Union, and establishing
a ' Southern Confederacy,' in the alleged fact that their slaves are en-
ticed away by the citizens of the North."
Now, the counterpart of the " agitation " presents an equally
singular and striking aspect, in the fact, that the greatest clamor
and outcry have been raised against the cruelty and enormity
of the reclamation of slaves in quarters where no such recla-
mation has ever been made, or if ever made, where the in-
stances are so exceedingly few and far between as to have
escaped general knowledge. What, and how many, are the
instances of the seizure of fugitive slaves which have hap-
pened in New England? And what have been the circum-
stances of injustice, cruelty, and atrocity attending them ? To
ascertain the truth in this respect, I have made diligent in-
he so truly states not to true and genuine religion, not to the religion of me
Gospel, but to that fanatical notion of religion which sometimes possesses
men's imaginations. The religion of the New Testament, that religion which
is founded on the teachings of Jesus Christ and his Apostles, is as sure a guide
to duty in politics as in any other concern of life.
* Mr. Bissell.
560 TO CITIZENS OF MEWBURYPORT, MASS.
quiry of members of Congress from the six New England
States. On a subject so general, I cannot be sure, of course,
that the information received is entirely accurate ; and there-
fore I do not say that the statement which I am about to pre-
sent may be relied on as altogether correct; but I suppose it
cannot be materially erroneous. The result, then, of all I can
learn is this. No seizure of an alleged fugitive slave has ever
been made in Maine. No seizure of an alleged fugitive slave has
ever been made in New Hampshire. No seizure of an alleged
fugitive slave has ever been made in Vermont. No seizure of
an alleged fugitive slave has been made in Rhode Island within
the last thirty years. No seizure of an alleged fugitive slave is
known to have been made in Connecticut, except one, about
twenty-five years ago ; and in that case the negro was imme-
diately discharged for want of proof of identity. Some instan-
ces of the seizure of alleged fugitive slaves are known to have
occurred, in this generation, in Massachusetts; but, except one,
their number and their history are uncertain. That one took place
in Boston twelve or fifteen years ago ; and in that case some
charitably disposed persons offered the owner a sum of money
which he regarded as less than half the value of the slave, but
which he agreed to accept, and the negro was discharged. A
few cases, I suppose, may have occurred in New Bedford, but
mey attracted little notice, and, so far as I can learn, caused
no complaint. Indeed, I do not know that there ever was more
than a single case or two arising in that place. Be it remem-
bered, that I am speaking of reclamations of slaves made by
their masters under the law of Congress. I am not speaking of
instances of violent abduction, and kidnapping, made by persons
not professing to be reclaiming their own slaves.
If this be a true account of all that has happened in New
England within the last thirty years, respecting the arrest of
fugitive slaves, and I believe it substantially is so, what is there
to justify the passionate appeals, the vehement and empty dec-
lamations, the wild and fanatical conduct, of both men and
women, which have so long disturbed, and so much disgraced,
the commonwealth and the country ? What is there, especially,
that should induce public men to break loose from all just re-
straint, fall themselves into the merest vagaries, and fan, with
what they call eloquence, the fires, ever ready to kindle, of pop-
TO CITIZENS OF NEWBURYPORT, MASS. 561
ular prejudice and popular excitement? I suspect all this to be
the effect of that wandering and vagrant philanthropy which
disturbs and annoys all that is present, in time or place, by
heating the imagination on subjects distant, remote, and un-
certain.
It is admitted on all hands, that the necessity for any legal
provision for the reclaiming of fugitive slaves is a misfortune
and an evil; as it is admitted by nearly all, that slavery itself is
a misfortune and an evil. And there are States in which the
evil attending these reclamations is practically felt. But where
the evil really exists, there is comparatively little complaint, and
no excitement. Maryland and Pennsylvania, for example, lie,
the one on the slave side of the line, the other on the free side.
Slaves escape from Maryland, flee into Pennsylvania, and are
there arrested. These instances are not unfrequent, and usually
create no disturbance and excite no exasperated feeling. In one
instance, indeed, a mob assembled to rescue the fugitive, vio-
lence ensued, and a life was lost. This of course created popu-
lar resentment, and for a considerable time agitated the neigh-
borhood. But in general the people of Pennsylvania understand
their neighbors' rights, and are willing that they should be se-
cured and enjoyed. Massachusetts grows fervid on Pennsylva-
nia wrongs; while Pennsylvania herself is not excited by any
sense of such wrongs, and complains of no injustice. The
Abolitionists of Massachusetts, both the out-and-out and the
quasi, rend the welkin with sympathies for Pennsylvania, while
Pennsylvania would quite as willingly be left to her own care
of herself. Massachusetts tears fall abundantly for Pennsylva-
nia sufferings, of which sufferings Pennsylvania herself knows
little or nothing. No people are more opposed to slavery
than the people of Pennsylvania. We know, especially, that
that great and respectable part of her population, the Friends,
have borne their testimony against it from the first. Yet they
create no excitement; they seek not to overthrow or undermine
the Constitution of their country. They know that firmness,
steadiness of principle, a just moderation, and unconquerable
perseverance, are the virtues the practice of which is most likely
to correct whatever is wrong in the constitution of the social
system. No doubt there are sometimes to be found Friends
subject to the frailty of desiring to become conspicuous, or to
562 TO CITIZENS OF NEWBURYPORT, MASS.
the influence of a false sentimentality, or borne away, by the
puffs of a transcendental philosophy, into an atmosphere flick-
ering between light and darkness. But that is not a malady of
the great body. They remain of sound and disposing minds
and memories. I am misled by authority which ought not to
mislead, if it be not true that that great body approves the
sentiments to which I have given utterance on the floor of the
Senate.
Between Kentucky and Ohio complaints have arisen, occa-
sionally, on the subject of fugitive slaves ; but by no means to
the extent which has been represented by the Abolition societies.
Slaveholders in Kentucky complain of the difficulties which
they encounter in reclaiming fugitives; and the people of Ohio
complain, not of the execution of the act of Congress, and
reclamations under it, but of the conduct of slaveholders, in
coming into the State and taking and carrying back their slaves
by force, and without legal process. The State of Ohio has had
the discretion not to prohibit her officers and magistrates from
performing the duties enjoined on them by the act of Congress.
Such duties they perform when occasion requires ; yet as they
may be prohibited by the legislature, and as the Supreme Court
has decided that it is in the power of Congress to make com-
plete provision, by law, for the whole subject, and to give the
power of executing such law to officers of the United States;
and as the prohibitory acts of some of the States make an ap-
propriate and suitable law of the United States indispensable,
such law, if passed, would of course be general, and would
comprehend Ohio with other States.
The act of 1793 gives a right of action -to the owner of a
fugitive slave against any person who shall harbor or conceal
him. Such actions have been brought in Ohio, and 1 have
heard an eminent judicial authority say, that he has found no
more obstruction to the course of judicial proceedings in these
cases than in others. Ohio juries try them with as much im-
partiality and calmness as they try other causes.
Gentlemen, from what I know of the subject, and of the
public men and the people of those two States, I fully believe,
that, if left entirely to them, a law might be passed perfectly
satisfactory to every body except those whose business is agi-
tation, and whose objects are any thing but the promotion of
TO CITIZENS OF MEDFORD, MASS. t5f>3
peace, harmony, patriotic good-will, and the love of union
among the people of the United States.
And now, Gentlemen, does not every sober-minded and pa-
triotic man see the necessity, and feel the duty, of rebuking
that spirit of faction and disunion, that spirit of discord and of
crimination and recrimination, that spirit that loves angry con-
troversy, and loves it, most especially, when evils are imaginary
and dangers unreal, which has been so actively employed in
doing mischief, and which, it is to be lamented, has received
countenance and encouragement in quarters whence better
things were looked for ?
We are now near the close of the sixth month of the session
of Congress. What important measure has been adopted for
the advancement of the great interests of the country? Fo%
one, I hardly dare expect any progress in useful legislation,
until a spirit shall prevail, both in Congress and the coun
try, which shall look more to things important and real, and
less to things ideal and abstract. That there are serious diffi-
culties in our present condition, growing out of the acquisition
of new territories, is certainly true. These difficulties were fore-
seen and foretold. An honest and earnest effort was made to
avoid and avert them. They are now upon us. But we can
overcome them, and still remain a prosperous, happy, and
united people, if prudence and conciliation shall animate our
public counsels, and a spirit of forbearance, moderation, and
harmony spread over the land.
I am, Gentlemen, with entire regard, your obliged fellow-
citizen, and obedient servant,
Daniel Webster.
To Dudley C. Hall, Esq., and others, Citizens of Medford, Mass.
Washington, June 3, 1850.
Gentlemen, — I thank you for your letter of the 3d of May
last, expressing satisfaction with the sentiments of my speech
in the Senate on the great question which now divides the na-
tion, and tendering your thanks for my services in strengthen
ing and preserving our glorious Union.
Gentlemen, we have a country which we love, and of which
564 TO CITIZENS OF MEDFORD, MASS.
we are proud. We have a government under which that coun-
try has prospered, for sixty years, in a degree surpassing every
thing which has been known in the history of mankind. And
this government is founded on the union of the States; which
union is established, defined, and sanctioned by the Constitu-
tion of the United States. And, Gentlemen, I can conceive no
rashness or folly greater than that which would either seek to
overturn this Constitution, or, by unprincipled agitation, by
heated local controversies, or angry mutual criminations and re*
criminations between different parts of the country, would effec-
tually weaken the bonds which hold the Union together. It
has been, it is, and it will be, my great object to preserve and
strengthen the Union, to establish it deeper and stronger in the
regard and affections of the people. I wish to see all the pow-
ers vested in the government by the Constitution administered
with so much prudence, impartiality, and patriotism, that every
State, and all the people of every State, should feel profoundly
that the union of the States, as now existing, is honorable, use-
ful, and indispensable to the prosperity of every part of the
country. And with this purpose always uppermost in my
mind and always filling my heart, I studiously avoid useless
local controversies, useless abstract questions, and every thing
else which unnecessarily exasperates, embitters, or wounds the
feelings of any portion of the United States. I have no doubt,
Gentlemen, that you and the great body of your fellow-citi-
zens of Massachusetts approve these sentiments and opin
ions, and will sustain those who honestly act upon them. I
have no fear that that great State, which has been among the
first and foremost for Union, from early Colonial times down to
the present moment; I have no fear that that great State,
which poured out her blood and her treasure like water in the
Revolutionary struggle, and afterwards strained every nerve and
every muscle for the establishment of the present Constitution ;
that State, which has enjoyed so fully and felt so sensibly the
benefits derived from this united government; I have no fear,
not the least, not a particle, that the Commonwealth of Massa-
chusetts will ever expect from those with whom she has in-
trusted her interests in Congress any thing but uprightness and
fairness, impartiality and justice, and a spirit that seeks rather
to reconcile opposing interests and allay irritated feelings, than
CELEBRATION OF THE SEVENTEENTH OF JUNE. 565
to foment discord, or to sow or to cultivate the seeds of 'eal-
ousy and disunion.
I am, Gentlemen, with entire regard, your obliged fellow-
citizen and obedient servant,
Daniel Webster.
To G. W. Warren^ Esq., Chairman of the Bunker Hill Committee.
Washington, June 13, 1850
Gentlemen, — You cannot doubt that it would afford me the
utmost pleasure to be at Charlestown on the 17th instant, to
celebrate the seventy-fifth anniversary of the battle of Bunker
Hill.
In addition to the great interest which the occasion itself
must naturally excite, I confess I should be glad to have an
opportunity of saying some words to so great an assembly of
Massachusetts men as will undoubtedly meet together on that
day at the foot of the monument. Those words would be few ;
but they would express what I think to be the duty of every
Massachusetts man, and every true American, in the present
crisis of the country ; and they would proceed from a heart full
of anxiety for the future, not the far distant future, but the im-
mediate future, and from a spirit resolved, in the face of all
perils, and careless of personal consequences, to make every
practicable effort to uphold the Constitution, as it is, and the
Union, as it is ; to defend them against all assault, open or
covert; and to exert every faculty to persuade all honest and
patriotic men, North and South, to stand between the assaults
of extreme factions and the Constitution of their country, and
stay the plague. But, Gentlemen, my public duties leave me
no option. I must remain here.
I thank you, Gentlemen, for your civility and kindness, and
remain, with true regard, your obedient servant,
Daniel Webster.
Bunker Hill Monument : May it crumble to the dust, before it shaft
look down upon a country dishonored, disgraced, and ruined by the
breaking up, by sacrilegious hands, of that Union which has secured
its liberty, fostered its prosperity, and spread its glory and renown
throughout the world.
vol. vi. 48
566 TO CITIZENS ON THE KENNEBEC RIVER.
To R. H. Gardiner, Esq., and others, Inhabitants of the Cities and
Towns on the Kennebec River.
Washington, June 17, 1S50.
Gentlemen, — Your friendly and acceptable letter has been
duly received.
It is true, Gentlemen, that I have made an effort in the Sen-
ate " to allay the spirit of sectional strife, which has threatened
the destruction of our Union " ; and such efforts I shall continue
to make, earnestly, and with whatever ability I possess, under
a deep conviction that that u spirit of sectional strife," if not
checked, will ere long drive the country into a lamentable and
disastrous condition. It is exceedingly to be regretted, that
any part of the public press in the State in which you reside, or
elsewhere, should discourage, and, as it often does, denounce, all
attempts at reconciliation and peace ; and should contribute, by
its daily effusions, to promote ill-will, resentment, and angry
contests between the North and South. That all this is done
by a portion of the press, both North and South, is but too true.
The conductors of these presses would seem to have lost all
sense of a common country, all sentiments of patriotism, unless
there may be patriotism in those local feelings in which the
great Father of his Country so affectionately admonished us
never to indulge. That the conductors of these presses mistake
the opinions of the people, to a very considerable extent, I doubt
not ; but while they are so active and so zealous, who can tell
how far, or how fast, their sentiments may spread?
It is no longer to be doubted, that there are persons, both in
the North and in the South, who are opposed to the existence
of the present Constitution of the United States, and would
gladly see it brought to an end. Some in both extremes open-
ly avow this wish, and others conceal it under very thin dis-
guises. Nevertheless, the great body of the people, North and
South, are firmly attached to the Union ; their hearts are for it,
and with it, and they will defend it against all open attempts
f )r its overthrow. This is my decided opinion. The Union,
therefore, we may hope, will not be rudely broken up ; but this
spirit of sectional strife, if it be not effectually rebuked, will
produce infinite mischiefs, by embarrassing the government,
thwarting and defeating useful legislation, and giving increased
TO CITIZENS ON THE KENNEBEC RIVER. 567
strength to feelings of unkindness and alienation. Who does not
see, already, the alarming consequences provoked and produced
by these dissensions ? We are now in the seventh month of
the session of Congress, and what has been done ? Even the
ordinary annual appropriation bills have not been brought for-
ward, or advanced a single stage. They are at least four
months behind the proper time. It has at last become indis-
pensably necessary, it seems to me, that men of sense and in-
telligence, who are really lovers of their country and its union,
should open their eyes to the state of things. There will be,
there must be, it is in the nature of things that there should be,
some shock, some cessation in the movement of the govern-
ment, some disreputable irregularity, now not far ahead, unless
the good men of the country, in all its parts, will rouse them-
selves to the performance of the duties which the exigency de-
mands.
While so many persons and so many presses in the North
send forth such loud and bitter complaints against the South,
and while so many persons and so many presses in the South
utter complaints equally loud and bitter against the North, nei-
ther the North nor the South states, definitely and precisely,
any actual grievance, such as could justify, in any reasonable
man's opinion, the most distant idea of disunion. For the most
part, these mutual complaints are general, indeterminate, ut-
tered in angry terms, but placed on no specific ground. In the
speech to which your letter refers, I have mentioned what I
think to be the real ground of mutual or reciprocal complaint;
but, beyond all these, there is kept up a general cry of one party
against the other, that its rights are invaded, its honor insulted,
its character assailed, and its just participation in political pow-
er denied. Sagacious men cannot but suspect, from all this,
that more is intended than is avowed; and that there lies at
the bottom a purpose of the separation of the States, for reasons
avowed or disavowed, or for grievances redressed or unredressed.
This purpose, be it remembered, I do not consider as pervading
large masses, but of its existence among the extremists, on both
sides, I cannot entertain a question.
In the speech to which you refer, it was my purpose^ among
other things, to show that a peaceable secession of some States
from the rest, or a peaceable separation of them all, was among
5f)8 TO CITIZENS ON THE KENNEBEC RIVER.
the most improbable of imaginable events; that nature, the
seas, the gulfs, the lakes, and the rivers, bound us together by
ties nearly impossible to be broken; that no man could make
any plan of secession or separation satisfactory to others; and,
more than all, that no man could discern any thing likely to
aribe to any State, from secession or separation, not fraught
with political evil of every description and every degree. And
notwithstanding the influence and the opinions of which I have
spoken, I believe that the sentiments of the great mass of South-
ern men concur with my own. Many have contemplated sepa-
ration as a probable result; some certainly have desired, and do
desire it ; but, so far as I have observed, when the question is
put directly home to the people, notwithstanding whatever cei
tain presses and certain politicians say to the contrary, the peo-
ple of the South are still for the Union by immense majorities.
Wherever there is a truly American heart, the love of the Un-
ion is intwined with its inmost fibres. It is our duty to encour-
age and applaud this popular feeling ; to respect it ourselves,
and to take care that, by no denial of justice, by no unneces-
sary discussion of exciting but abstract questions, by no threat
or menace to interfere with what does not belong to us, we
weaken that attachment to the Union which is so indispensa-
ble to the happiness of all. And what is the duty of the North,
in this respect, is equally the duty of the South. All sides are
called on to exercise a far greater degree of forbearance and
moderation, if we mean to transmit to the next generation the
blessings enjoyed by this.
I shall do all I can to warn the country against the dangers
of this intestine strife ; to call both the South and the North
back to a sense of their true duties and their true interests. And
if I cannot allay the evil, I shall at least do nothing to promote
it. I shall do nothing to cause jealousy, heart-burning, and ani-
mosity, among those whose country is one, whose interests are
one, and whose destiny, whatever any of them may think of it,
is, in my opinion, one ; one now, and one hereafter.
Gentlemen, one of the exciting questions of the present mo-
ment respects the necessity of excluding slavery, by law, from
the territories lately acquired from Mexico. If I believed in
any such necessity, I should, of course, support such a law. I
could not d) otherwise, consistently with opinions very many
TO CITIZENS ON THE KENNEBEC RIVER. 569
times expressed, and which opinions I have no inclination to
change, and shall not change. But I do not believe in any such
necessity. I have studied the geography of New Mexico dili-
gently, having read all that I could find in print on the subject,
and inquired of many intelligent persons who have been in the
country, traversed it, and become familiar with it.
New Mexico may be considered as divided into two parts ;
one lying on the east side of the Rio Grande, belowT the Paso del
Norte, which is claimed by Texas ; the other extending along
the river, on both sides, from Paso del Norte to the forty-second
degree of north latitude, or the boundary of Oregon. Of this
part, also, that which lies on the eastern side of the river is
claimed by Texas. The whole extent of both parts can hardly
be less than one thousand miles, and by the windings of the
river much more. The southern part is far less mountainous
than the northern ; it has, nevertheless, mountain peaks and
mountain ridges. From San Antonio de Bexar, which is a
hundred miles north of the Gulf of Mexico, and near the west-
ern line of the actual settlements in Texas, it is five hundred
and seventy miles to Paso del Norte, by a track or road recently
explored, keeping east of the Rio del Norte, and south of the
Guadalupe Mountains, the general direction of which road is
west by north. This whole country is of very little value. The
mountains are barren, and a great portion of the more level
country is a mere desert of rocks and sand. Sometimes prairies
are met with, producing grass in more or less abundance ; but
the decisive and fatal characteristic of the country is the want
of water. In traversing this region, travellers not unfrequently
find themselves without water for twenty or thirty miles, and
sometimes even for longer distances. I think an exploring ex-
pedition, which within the last year passed along this route,
found no water for seventy miles. It may be truly said, that
here is a country of six hundred miles in extent, which, in its
general character, must be described as a barren desert. I agree
that, in a considerable part of this desert, African slave labor is
not necessarily excluded by the law of climate ; the climate is
mild enough ; but then all labor, free or slave, all cultivation
whatever, is excluded, for all time, by the sterility of the soil,
throughout this vast arid region. There may be trifling excep-
tions here and there, on the hanks of some of the streams ; but
48*
570 TO CITIZENS ON THE KENNEBEC RIVER.
the general character, without doubt or question, is such as 1
have represented it. Major Gaines, a very intelligent gentle-
man, lately a member of Congress, and now governor of Ore-
gon, traversed a part of this country during the Mexican war,
and this is his description of it: —
" The country from the Nueces to the valley of the Rio Grande is
poor, sterile, sandy, and barren, with not a single tree of any size or
value on our whole route. The only tree which we saw was the mus-
quit-tree, and very few of these. The musquit is a small tree, resem-
bling an old and decayed peach-tree. The whole country may be truly
called a perfect waste, uninhabited and uninhabitable. There is not a
drop of running water between the two rivers, except in the two small
streams of San Salvador and Santa Gertrudis, and these only contain
water in the rainy season. Neither of them had running water when
we passed them. The chaparral commences within forty or fifty miles
of the Rio Grande. This is poor, rocky, and sandy ; covered with
prickly pear, thistles, and almost every- sticking thing, constituting a
thick and perfectly impenetrable undergrowth. For any useful or agri-
cultural purpose the country is not worth a sous.
" So far as we were able to form any opinion of this desert upon the
other routes which had been travelled, its character, everywhere be-
tween the two rivers, is pretty much the same. We learned that the
route pursued by General Taylor, south of ours, was through a coun-
try similar to that through which we passed ; as also was that travelled
by General Wool from San Antonio to Presidio, on the Rio Grande.
From what we both saw and heard, the whole command came to the
conclusion which I have already expressed, that it was worth nothing.
I have no hesitation in saying, that I would not hazard the life of one
valuable and useful man for every foot of land between San Patricio
and the valley of the Rio Grande. The country is not now, and can
never be, of the slightest value."
That most lamented and distinguished gentleman and officer,
the late Colonel Hardin, of Illinois, entirely concurs with Major
Gaines. Here is his account : —
" The whole country is miserably watered. Large districts have m
water at all. The streams are small, and at great distances apart. One
day we marched, on the road from Monclova to Parras, thirty -five miles
without water ; a pretty severe day's march for infantry.
" Grass is very scarce, and, indeed, there is none at all in many re-
gions for miles square. Its place is supplied with prickly pear and
thorny bushes. There is not one acre in two hundred, more probabl)
TO CITIZENS ON THE KENNEBEC RIVER. 571
not one in five hundred, of all the land we have seen it Mexico,
which can ever be cultivated ; the greater part of it is the most desolate
region I could ever have imagined. The pure granite hills of New
England are a paradise to it, for they are without the thorny briers and
venomous reptiles which infest the barbed barrenness of Mexico. The
good land and cultivated spots in Mexico are but dots on the map.
Were it not that it takes so very little to support a Mexican, and that
the land whicl is cultivated yields its produce with little labor, it would
be surprising how its sparse population is sustained. All the towns we
have visited, with, perhaps, the exception of Parras, are depopulating,
as is also the whole country."
The country higher up, that is, along the Rio del Norte, from
Paso del Norte to Santa Fe and Taos, is different in this re-
spect. Through this part of New Mexico the river runs be-
tween immense mountains, with strips or ribands of land along
its banks, not always continuous, which are cultivated with
grains, but only by means of irrigation.
The statements of Mr. Smith, the Delegate from New Mex-
ico, are to the same effect.
My speech was delivered on the 7th of March. Speaking of
what I thought the impossibility of the existence of African
slavery in New Mexico, I said, " I would not take pains useless-
ly to reaffirm an ordinance of nature, or to reenact the will of
God." Every body knew that, by the " will of God," I meant
that expression of the Divine purpose in the work of creation
which had given such a physical formation to the earth, in this
region, as necessarily to exclude African slavery from it for ever.
Every body knew I meant this, and meant nothing else. To
represent me as speaking in any. other sense was gross injustice.
Yet a pamphlet has been put into circulation, in which it is
said that my remark is " undertaking to settle by mountains and
rivers, and not by the Ten Commandments, the question of
human duty." " Cease to transcribe," it adds, " upon the stat-
ute-book what our wisest and best men believed to be the will
of God, in regard to our worldly affairs, and the passions which
we think appropriate to devils will soon take possession of soci-
ety." One hardly knows which most to contemn, the nonsense
or the dishonesty of such commentaries on another's words. I
know no passion more appropriate to devils than the passion
for gross misrepresentation and libel. Others, from whom more
572 TO CITIZENS ON THE KENNEBEC RIVER
fairness might have been expected, have not failed to represent
me as arguing, or affording ground of argument, against human
laws to enforce the moral laws of the Deity. Such persons
knew my meaning very well. They chose to pervert and mis-
represent it. That is all.
In classical times, there was a set of small, but rapacious crit-
ics, denominated captatores verborum, who snatched and caught
at particular expressions ; expended their strength on the dis-
jecta membra of language ; birds of rapine, who preyed on words
and syllables, and gorged themselves with feeding on the gar-
bage of phrases chopped, dislocated, and torn asunder, by them-
selves, as flesh and limbs are by the* claws of unclean birds.
Such critics are rarely more distinguished for ability in discus-
sion, than for that manly moral feeling which disdains to state
an adversary's argument otherwise than fairly and truly, and
as he meant to be understood.
But other gentlemen, of much more acquaintance with New
Mexico than I can pretend to, have expressed the same opinion
as I have done, in respect to the natural causes which must for
ever exclude slavery from that country ; and it has been thought
remarkable that an intelligent field-officer in the American army,
in writing a private letter to a friend here, dated at Santa Fe,
the capital of New Mexico, two days before my speech was
delivered, that is, on the 5th of March, should have used this
language : —
" We have no papers later than the President's message. 1 fancy
Congress is debating about slavery in New Mexico, where slavery is
'prohibited by a stronger than all human laws, the law of climate,
and production, and self-interest. Not more than a hundredth part of
New Mexico could ever be cultivated, if water were ever so plenty, such
is the soil, topography, and rock of this land. But in the centre of a
vast area, without large bodies of water, the rocky surface sending what
little water falls upon it rapidly down to the ocean, under an atmos-
phere ever thirsty, into which evaporation is marvellously raoid, not
more than one part in two hundred and fifty can ever be improved.1'
And now, Gentlemen, I have one other consideration to bring
to your minds; and that is, that the slavery ">f the African race
does not exist in New Mexico; that it is altogether abolished;
that there is not a single African slave to be found among any
of its mountains, or in any part of its vast plains. The people
TO CITIZENS ON THE KENNEBEC RIVER. 573
of New Mexico, to a man, are opposed to slavery; their state
of society rejects it; the use of cheaper labor rejects it; the
opinions, the sentiments, and feelings of the people all reject
it, as warmly and decidedly as it is rejected by the people of
Maine. And it appears to me just about as probable that
African slavery will be introduced into New Mexico, and there
established, as it is that it will be established on Mars' Hill, or
the side of the White Mountains.
Among the maxims left us by Lord Bacon, one is, that, when
seditions or discontents arise in the state, the part of wisdom
is to remove, by all means possible, the causes. The surest
way to prevent discontents, if the times will bear it, he says, is
to take away the matter of them ; for if there be fuel prepared,
it is hard to tell whence the spark shall come that shall set it
on fire. So counsels Lord Bacon ; but with us there are other
advisers. Although the dispute be obviously altogether unim-
portant, and although the times will well bear the taking away
of the matter of it, their patriotic ardor still admonishes us to
continue the contest, to fight it out; if the oyster be gone, still
to make fierce battle for the shell ; nor give up the warfare till
we obtain a joyful victory, or nobly fall.
Gentlemen, I will conclude this letter by a short reference to
one other topic. A good deal of complaint has been manifested,
as you know, on account of the opinions expressed in my
speech respecting Texas, and the legal construction and effect
of the resolutions by which she became annexed to the United
States. Surprise and astonishment, and all the eloquence of
capital letters and notes of admiration, have been summoned
to mark the utterance of such new and startling sentiments.
The truth is, however, that there is nothing new in the whole
matter. The same view, substantially, of the resolutions of
annexation had been taken, again and again, by myself and
others.
Gentlemen, I voted against the treaty by which these terri-
tories were ceded by Mexico to the United States ; and in open
Senate, in a speech made on the 23d of March, 1848, I referred
to Texas and to the resolutions of annexation. The speech
was published in the newspapers, and circulated in pamphlet
form, and read by every body who chose to read it. In that
speech you will find these words: —
574 TO CITIZENS ON THE KENNEBEC RIVER.
"Now, Sir, I do not depend on theory. I ask you, and I ask the
Senate and the country, to look at facts, to see where we were when we
made the departure three years ago, and where we now are, and I
shall leave it to imagination to conjecture where we shall be.
" We admitted Texas as one State for the present. But if you will
refer to the resolutions providing for the annexation of Texas, you will
find a provision that it shall be in the power of Congress hereafter to
make four other new States out of Texan territory. Present and pros-
pectively, therefore, five new States, sending ten Senators, may come
into the Union out of Texas. Three years ago we did that. Now we
propose to make two States ; for, undoubtedly, if we take what the
President recommends, New Mexico and California each will make a
State ; so that there will be four Senators. We shall have, then, in this
new territory, seven States, sending fourteen Senators to this chamber.
Now, what will be the relation between the Senate and the people, or
the States from which they come ? "
You will see that here is the same opinion of the meaning of
the resolutions of annexation, expressed nearly in the same
words, as are contained in my speech of the 7th of March last.
And this only two years ago. But nobody then expressed
either surprise or astonishment. There was no call to arms, no
invocation of the genius of Liberty, to resist a false construc-
tion of an act of Congress ; there were no stirring and rousing
paragraphs in the newspapers, no patriotic appeals to the peo-
ple, and no insane declarations, such as we now hear, that the
Texan resolutions are utterly void.
But, Gentlemen, I will pursue no further a topic of some little
interest to myself, but of no great importance to you, or the
country. I leave it with the single remark, that what was true
in respect to the construction of an act of Congress in 1848,
must be true in the same case in 1850 ; and if an individual,
on his own authority, may declare one act of Congress void,
he may with equal propriety absolve himself from the obliga-
tions imposed on him by all other acts ; and his oath binds him
only to the observance of such laws as he himself approves.
How far such a sentiment is fit to be acted upon by men, or to
be instilled into the minds of youth, the country must judge.
But you, and the whole country, Gentlemen, are interested
nost deeply in knowing what is the prospect of a settlement
af existing difficulties. On this point, I am happy to say that
TO HIS NEW HAMPSHIRE NEIGHBORS 575
f can speak with hope, if not with confidence. I thinh I see
indications that the public judgment will, ere long, be broug t
to bear upon these troublesome and exciting questions, and at
the voice of a majority of the people will hush other discordant
voices. How soon this will happen I cannot say; but I fully
believe that the floods will yet subside, that the troubled wa-
ters will return within their banks, and the current of public
affairs resume its accustomed and beneficial course.
I am, Gentlemen, your obliged fellow-citizen and obedient
servant,
Daniei* Webster.
To the Rev. Ebenezer Price and others, Neighbors of Mr.
Webster in New Hampshire
Washington, September 21, 1850.
Gentlemen, — I have received your letter of last month, ex-
pressing your approbation of my public political conduct, and
especially of my efforts in Congress to settle questions which
have long agitated the country and disturbed its peace. Hap-
pily, Gentlemen, those questions are now, I trust, disposed of.
and better prospects open upon the country.
The thirty-one American States stretch over a vast extent of
country running through several degrees of latitude and longi-
tude, and embracing many varieties of soil, climate, institutions,
habits, and pursuits ; yet over all the Union and the Consti-
tution still stand, everywhere giving protection and security,
and everywhere cherished at the present moment with general
and warm patriotic regard. The interests of the different parts
of the country, though various, are not opposite ; flowing, in-
deed, in diverse channels, but all contributing to swell the great
tide of national prosperity. Under the operation of the Consti-
tution, we have now been for sixty years free and happy ; civil
and religious liberty have stood firm and unshaken ; popular
education has received a new impulse and a wider spread, and
moral and religious instruction has become characteristic of our
age ; agriculture, commerce, and manufactures have been stead-
ily encouraged and sustained ; and, under the blessing of Provi-
dence, general competency and satisfactory means of living
576 TO HIS NEW HAMPSHIRE NEIGHBORS.
have everywhere rewarded the efforts of labor and industry.
And in the mean time, Gentlemen, the country has attained to
such a degree of honor and renown, that every patriotic man, in
addition to his own individual means of enjoyment, derives a
positive pleasure from participating in the reputation of his coun-
try. Of what other country upon earth can this be said with
so much truth ?
Who, then, would undermine this Union? Who would
raise his hand against this Constitution? Who would scoff
at those political and social blessings which Providence has
never before seen fit to vouchsafe, in such abundance, to any
community of men? Self-love, our hopes for the future, na-
tional pride, and gratitude to God, all conspire to prompt us
to embrace these institutions of our native land with all the af-
fections of our hearts, and to defend them with all the strength
of our hands. In a critical hour, and not without some personal
hazard, I have discharged my duty, and freed my conscience,
to its very depth, in public efforts to maintain them, limited
only by the measure of my ability. And since these efforts are
regarded as having contributed something to the adjustment of
dangerous controversies, and to the establishment of peace and
harmony among fellow-citizens and brothers, I desire no reward
but the cheering voices of good men and the approbation of my
own conscience.
And now, friends and neighbors, I could pour out my heart
in tenderness of feeling for the affectionate letter which comes
from you. Approving voices have been heard from other quar-
ters; other commendations have reached me, high enough and
warm enough to demand, as they have received, my most
grateful acknowledgment and regard. But yours comes from
home ; it comes from those whom I have known, and who have
known me, from my birth. It is like the love of a family cir-
cle; its influences fall upon my heart as the dew of Hermon
Those of you who are most advanced in age have known my
father and my family, and especially that member of it whose
premature death inflicted a wound in my breast which is yet
fresh and bleeding. Some of you were my companions in the
country schools ; with others I have partaken in the sports of
youth, the cheerful labor of the field of agriculture, and in the
associations and exercises of early manhood. I see on the list
UNION MEETING AT CASTLE GARDEN. f>77
learned, and now aged and venerable clergymen ; professional
gentlemen and magistrates, of my own age, whom I have long
honored and esteemed; and others of all classes and all pur-
suits in life. There are on the list, also, not a few who bear
mv name and partake my blood. What I was in early life you
all know ; towards what I may have done, at subsequent pe-
riods, lor the good of the country, you have ever manifest-
ed sufficiently favorable and partial regard ; and now, after I
nave been called upon to act a part in a more important cri-
sis, perhaps, than any other of my life, your kind regard, your
neighborly recognition of former days and former friendships,
and the affectionate terms in which you express yourselves,
make your letter a treasure, precious in my esteem, which I
shall keep near me always while I live, and leave for the grati-
fication of those who may come after me.
Your obliged friend and neighbor,
Daniel Webster.
To Messrs. F. S. Lathrop and others, New York.
Franklin, N. H., October 28, 1850.
Gentlemen, — Nothing in the world but regard for the state
of my health prevents me from accepting at once your invitation,
and assuring you of my presence at the " Union Meeting" at
Castle Garden, on Wednesday evening next. I rejoice to know
that such a meeting is called ; I rejoice to know that it will be
attended by thousands of intelligent men, lovers of their coun-
try, party men, doubtless, but abject slaves to no party, and
who will not suffer either party clamor or party discipline to dry
up within them all the fountains of love and attachment to the
Constitution of their country. The voice of such a meeting will
be heard and respected. It will rebuke disobedience to the laws,
actual or threatened : it will tend to check the progress of mad
fanaticism ; it will call men who are honest, but who have been
strangely misled, back to their duty ; and it will give counte-
nance and courage to the faithful friends of the Union throughout
the land. When the commercial interests of the great metropo-
lis of the country speak, with united hearts and voices express-
vol. vi. 49
578 UNION MEETING AT CASTLE GARDEN..
ing their conviction of the presence of the great danger, and a
determined purpose to meet that danger, to combat with it, and
overcome it, the example is likely to rouse good men every-
where; and when the country shall be roused, the country will
be safe. I concur, Gentlemen, in all the political principles con-
tained in the resolutions, a copy of which has been sent to me ,
and I stand pledged to support those principles publicly and
privately, now and always, to the extent of my influence, and
by the exertion of every faculty which I possess. The eminent
men whom you mention, and with whose names you have
done me the honor to associate mine, are well worthy of the
praise which you bestow on them. I shall never forget, and I
trust the country will never forget, the patriotism, the manliness,
the courage, manifested by them in an hour of difficulty and of
peril.
The peace measures of the last session are the Texan boun-
dary act, the act for establishing the two territorial governments
of New Mexico and Utah, the act for the abolition of the slave-
trade in the District of Columbia, and the Fugitive Slave Law.
This last measure, Gentlemen, is not such a measure as I had
prepared before I left the Senate, and which, of course, I should
have supported if I had remained in the Senate. But it re-
ceived the proper sanction of the two houses of Congress and
of the President of the United States. It is the law of the
land, and as such is to be respected and obeyed by all good
citizens. I have heard no man whose opinion is worth regard-
ing deny its constitutionality, and those who counsel violent
resistance to it counsel that which, if it takes place, is sure to
lead to bloodshed and to the commission of capital offences.
It remains to be seen how far the deluded and deluders will go
on in this career of faction, folly, and crime. There were hon-
est and well-meaning members of Congress who did not see
their way clear to support these great and leading measures of
the last session. You are quite right in saying that the motives
of these gentlemen ought not to be impeached. But the meas-
ures have been adopted; they have become laws, constitution-
ally and legally binding upon us all, and no man is at liberty to
oppose them.
No man is at liberty to set up, or affect to set up, his own
conscience as above the law, in a matter which respects the
TO CITIZENS OF STAUNTON, VIRGINIA. 579
rights of others, and the obligations, civil, social, and political,
due to others from him. Such a pretence saps the foundation
of all government, and is of itself a perfect absurdity ; and while
all are bound to yield obedience to the laws, wise and well-
disposed citizens will forbear from renewing past agitation, and
rekindling the flames of useless and dangerous controversy.
If we would continue one 'people, we must acquiesce in the
will of the majority, constitutionally expressed, and he who
does not mean to do that means to disturb the public peace,
and do what he can to overturn the government.
Gentlemen, I am led to the adoption of your last resolution,
in an especial and emphatic manner, by every dictate of my
understanding, and I embrace it with full purpose of heart and
hand. Its sentiment is my sentiment. With you, I declare
that I " range myself under the banners of that party whose
principles and practice are most calculated to uphold the Con-
stitution and to perpetuate our glorious Union."
Gentlemen, I am here to recruit my health, enfeebled as it
has been by ten months' excessive labor and indescribable anxi-
ety. The air of these my native hills renews my strength and
my spirits. I feel its invigorating influences while I am writing
these few lines ; and I shall return shortly to my post, to dis-
charge its duties as well as I can, and resolved, in all events,
that, so far as depends on me, our Union shall pass through this
fiery trial without the smell of smoke upon its garments.
I am, Gentlemen, with very sincere regard, your obliged
fellow-citizen and obedient servant,
Daniel Webster.
To Messrs. William Kinney and others, of Staunton, Virginia.
Washington, November 23, 1850.
Gentlemen, — On my arrival in this city last evening, I had
the pleasure of receiving your communication of the 7th instant.
It is a refreshing, an encouraging, and a patriotic letter. You
speak the sentiments which become the people of the great and
ancient Commonwealth of Virginia. You speak as Wythe and
Pendleton, Jefferson, Marshall, and Madison would speak wer*»
580 TO CITIZENS OF STAUNTON, VIRGINIA.
they yet among us. Yon speak of the union of these States;
and what idea can suggest more lively emotion in the minds of
the American people, of present prosperity, past renown, and
future hopes? Gladly would I be with you, Gentlemen, on the
proposed occasion, and, as one of your countrymen and fellow-
citizens, assure you of my hearty sympathy with you in the
opinions which you express, and my unchangeable purpose to
cooperate with you and other good men in upholding the honor
of the States and the Constitution of the government. How
happy should I be to present myself in Virginia, west of the
Blue Ridge, and there to pledge mutual faith with the men of
Augusta and Rockbridge, Bath, Alleghany, and Pocahontas,
Highland, Pendleton, and Rockingham, that, while we live, the
institutions of our wise and patriotic sires shall not want sup-
porters, and that, so far as may depend on us, the civilized world
shall never be shocked by beholding such a prodigy as the vol-
untary dismemberment of this glorious republic. No, Gentle-
men, never, never! If it shall come to that, political martyrdom
is preferable to such a sight. It is better to die while the honor
of the country is untarnished, and the flag of the Union still
flying over our heads, than to live to behold that honor gone
for ever, and that flag prostrate in the dust. Gentlemen, I speak
warmly, because I feel warmly, and because I know that I speak
to men whose hearts are as warm as my own, in support of the
country and the Union.
I am lately from the North, where I have mixed extensively
with men of all classes and all parties, and I assure you, Gen-
tlemen, through the masses of the Northern people the general
feeling and the great cry is for the Union, and for its preservation.
There are, it is true, men to be found, some of perverse pur-
poses, and some of bewildered imaginations, who affect to sup-
pose that some possible, but undefined good would arise from a
dissolution of the ties which bind these United States together.
But be assured the number of these men is small ; the eminent
leaders of all parties rebuke them, and while there prevails a
general purpose to maintain the Union as it is, that purpose
embraces, as its just and necessary means, a firm resolution of
supporting the rights of all the States precisely as they stand
guarantied and secured by the Constitution. And you may
depend upon it, that every provision in that instrument in favor
TO CITIZENS OF STAUNTON, VIRGINIA 581
of the rights of Virginia, and the other Southern States, and
every constitutional act of Congress passed to uphold and en-
force those rights, will be upheld and maintained, not only by
the power of the law, but also by the prevailing influence of pub-
lic opinion.
Accidents may occur to defeat the execution of a law in a
particular instance ; misguided men may, it is possible, some-
times enable others to elude the claims of justice and the rights
founded in solemn constitutional compact; but on the whole,
and in the etid, the law will be executed and obeyed. The South
will see that there is principle and patriotism, good sense and
honesty, in the general mind of the North, and that, among the
great mass of intelligent citizens in that quarter, the prevailing
disposition to ask for justice is not stronger than the disposition
to grant it to others.
Gentlemen, we are brethren ; we are descendants of those
who labored together with intense anxiety for the establishment
of the present Federal Constitution. Let me ask you to teach
your young men, into whose hands the power of the country
must soon fall, to go back to the close of the Revolutionary
war; to contemplate the feebleness and incompetency of the
confederation of States then existing ; and to trace the steps by
which the intelligence and patriotism of the great men of that
day led the country to the adoption of the existing Constitution.
Teach them to study the proceedings, votes, and reports of
committees in the old Congress. Especially draw their atten-
tion to the leading part taken by the Assembly of Virginia
from 1783 onward. Direct their minds to the convention at
Annapolis in 1786 ; and by the contemplation and study of
these events and these efforts, let them see what a mighty thing
it was to establish the government under which we have now
lived so prosperously and so gloriously for sixty years. But
pardon me ; I must not write an essay or make a speech.
Virginia! true-hearted Virginia! stand by your country, stand
by the work of your fathers, stand by the union of the States,
and may Almighty God prosper all our efforts in the cause of
liberty, and in the cause of that united government which ren-
ders- this people the happiest people on whom the sun ever shone !
I am, Gentlemen, yours truly and faithfully,
Daniel Webster.
49*
582 TO CITIZENS OF WESTCHESTER, NEW YORK
2b J. A. Hamilton Esq., and others, Westchester, New York.
Washington, January 27, 1851.
Gentlemen, — I have to acknowledge the receipt of your
letter of the 16th of this month, inviting me to attend a meeting
proposed to be holden at Tarrytown on the 30th instant, by the
people of Westchester County, without any distinction of party,
who approve of the compromise measures of the last session of
Congress. My public duties do not allow me to accept this
invitation ; but you need not doubt that I cordially approve the
objects and purposes for which the people of Westchester pro-
pose to assemble.
I hope the spirit of disunion may be considered as now, in
some degree, checked; but that it has existed, both at the
North and the South, and does still exist to a dangerous ex-
tent, cannot, as it seems to me, be denied by any honest man.
In the South, the separation of the States is openly proposed,
discussed, and recommended, absolutely or conditionally, in leg-
islative halls, and in conventions called together by the author-
ity of law.
In the North, the State governments have not run into such
excess, and the purpose of overturning the government shows it-
self more clearly in resolutions agreed to in voluntary assem-
blies of individuals, denouncing the laws of the land, and de-
claring a fixed intent to disobey them.
I notice that in one of these meetings, holden lately in the
very heart of New England, and said to have been very numer-
ously attended, the members unanimously resolved, "that, as
God is our helper, we will not suffer any person charged with
oeing a fugitive from labor to be taken from among us, and to
this resolve we pledge our lives, our fortunes, and our sacred
honor."
These persons do not seem to have been aware that the pur-
pose thus avowed by them is distinctly treasonable. If any
law of the land be resisted, by force of arms or force of numbers,
with a declared intent to resist the application of that law, in all
cases, this is levying war against the government, within the
meaning of the Constitution, and is an act of treason, drawing
after it all the consequences of that offence. This is the precise
case in which convictions for treason took place in Pennsylva-
%
TO CITIZENS OF WESTCHESTER, NEW YORK. 533
I
nia during the elder Mr. Adams's administration. And not
only does such a spirit as this manifest itself in heated and vio-
lent public assemblies, but it is also defended, encouraged, and
commended by a considerable portion of the public press; and,
what is still worse, the pulpit has, in too many instances, ut-
tered these tones of opposition to the law, instead of the voice
of Christian meekness, repentance, and the fear of God. In-
deed, occasions have happened in which men and women have
engaged in a sort of rivalry or contest to see whether the laws
of society, or the institution of religion and the authority of the
Divine Revelation, could be treated with the more contempt.
It is evident that, if this spirit be not checked, it will endanger
the government; if it spread far and wide, it will overthrow the
government.
There are ample pledges, Gentlemen, that with you and your
fellow-citizens of Westchester no other feeling will be enter-
tained than that of zealous attachment to the Union and the
Constitution, and a determination to support both to the last
extremity. Among your committee I see the son of a great
and an illustrious man, equally distinguished in the revolution-
ary and the constitutional history of his country. Alexander
Hamilton was one of the twelve commissioners who met at
Annapolis in September, 1786, and recommended to the country
the establishment of a constitution of government " adequate
to the exigencies of the Union." Here was the cradle of that
form of government which has so long bound us all together, and
made us so prosperous at home and so much respected abroad.
Where the blood of Alexander Hamilton fills the veins, or his
example and patriotic services are remembered, the language
of separation, secession, and disunion will find no utterance,
and purposes of violent resistance to the laws no approbation
or tolerance.
Gentlemen, the mortal remains of another great man, vener-
ated and loved through the whole course of a long life, repose
in the county of Westchester; of course, I mean John Jay
The public life of this illustrious man was almost entirely de-
voted to the preservation of the union of the States, the estab-
lishment of the Constitution, and the administration of the
powers conferred by it. No man saw more clearly, or felt more
deeply, the evils arising from the existence of States with entire
584 TO CITIZENS OF WESTCHESTER, NEW YORK.
and distinct sovereignties. No man appealed to his country-
men against such a state of things with more earnestness, elo-
quence, or power. He saw the beginning of a spirit very much
like that which exists now; he foretold its dangers, and did as
much as any man to rescue the public opinion from its perni-
cious grasp.
In 1785 he wrote to a friend : " It is my first wish to see the
United States assume and merit the character of one great na-
tion, whose territory is divided into different States merely for
more convenient government."
In 1787 he said : " It has until lately been a received and
uncontradicted opinion, that the prosperity of the people of
America depended on their continuing firmly united ; and the
wishes, prayers, and efforts of our best and wisest citizens have
been constantly directed to that object. But politicians now
appear, who insist that this opinion is erroneous, and that, in-
stead of looking for safety and happiness in union, we ought to
seek it in a division of the States into distinct confederacies
or sovereignties This country and this people seem to
have been made for each other, and it appears as if it was the
design of Providence that an inheritance so proper and con-
venient for a band of brethren united to each other by the
strongest ties should never be split into a number of unsocial.
jealous, and alien sovereignties They who promote the
idea of substituting a number of distinct confederacies, in the
room of the plan of the convention, seem clearly to foresee that
the rejection of it would put the continuance of the Union in
the utmost jeopardy. That certainly would be the case ; and
I sincerely wish that it may be as clearly foreseen by every
good citizen, that, whenever the dissolution of the Union ar-
rives, America will have reason to exclaim, in the words of
the poet, i Farewell! a long farewell to all my greatness.'"
When I am speaking of the ardent attachment of John Jay
to the union of the American States, I cannot forbear, even at
the risk of extending this answer beyond its proper limits, from
introducing another extract from his admirable writings, as ex-
hibiting remarkable sagacity and power of illustration. " We
have heard much," said he, "of the fleets of Britain; ard, if
we are wise, the time may come when the fleets of Amer-
ica may engage attention. But if one national government
TO CITIZENS OF WESTCHESTER, NEW YORK. 585
had not so regulated the navigation of Britain as to make
it a nursery for seamen, if one national government had not
called forth all the national means and materials for forming
fleets, their prowess and their thunder would never have been
celebrated. Let England have its navigation and fleet, let
Scotland have its navigation and fleet, let Wales have its fleet,
let Ireland have its navigation and fleet, let these four of the
constituent parts of British empire be under four independent
governments, and it is easy to perceive how soon they would
each dwindle into comparative insignificance."
When John Jay filled the seat at the head of the supreme
judicature, how would one appear, who, being charged with
crime, should stand jip before his face, beaming equally with in-
telligence and benignity, and insist that he had disobeyed the
lawT only from the impulse of his own individual conscience ;
that he had disregarded plighted faith, violated the most impor-
tant obligations, and contemned the sanctity of oaths, only up-
on his reliance on the superiority of his own intelligence over
that of the community, and the right of every individual to
judge of constitution, laws, and compacts for himself?
Gentlemen, I am sure that you and your friends will do
your whole duty, as intelligent and patriotic citizens, in up-
holding the institutions of your country. I purpose to do mine,
and should not consent to act with any body who might be
found to waver or to hesitate on this all-important question.
The President's message at the opening of the present session
of Congress expresses fully and plainly his own opinion, and
the unanimous opinion of all those associated with him in the
executive administration of the government, in regard to what
are called the adjustment or compromise measures of last ses-
sion That opinion is, that those measures should be regarded
in principle as a final settlement of the dangerous and exciting
subjects which they embrace ; that, though they were not free
from imperfections, yet in their mutual dependence and connec-
tion they formed a system of compromise the most conciliatory
and best for the entire country that could be obtained from con-
flicting sectional interests and opinions; and that therefore
they should be adhered to until time and experience should
demonstrate the necessity of further legislation to guard against
evasion or abuse. That opinion, so far as I know, remains en-
588 THE BIRTHDAY OF WASHINGTON.
tirely unchanged, and will be acted upon steadily and decisive-
ly. The peace of the country requires this ; the security of the
Constitution requires this ; consistency requires this ; and every
consideration of the public good demands this. If the admin-
istration cannot stand upon the principles of the message, it
does not expect to stand at all.
Citizens of Westchester! Citizens of the State of New York!
The voices of your own illustrious dead cry to you from the
ground. They who are in their graves beseech you, as you
respect their names and memories, as you love liberty, as you
value your own happiness, as you regard' the hopes of your
children, to hold on with unflinching firmness to the Constitu-
tion and to the union of* the States; and,#as if with lips still
living, they conjure you, in tones of indignation, to reject all
such ideas as that disobedience to the laws is the path of pa-
triotism, or treason to your country duty to God.
For myself, I confess that, if I were to witness the breaking
up of the Union and the Constitution of the United States, I
should bow myself to the earth in confusion of face; I should
wish to hide myself from the observance of mankind, unless I
could stand up and declare truly, before God and man, that by
the utmost exertion of every faculty with which my Creator had
endowed me I had labored to avert the catastrophe.
I am, Gentlemen, with entire regard and all good wishes,
your obliged friend and fellow-citizen,
Daniel Webster
To the New York Committee for the Celebration of the Birth'
day of Washington.
Washington, February 20, 1851.
GentlemEx\, — It is a source of deep regret to me, that my
public duties absolutely prohibit me from having the pleasure
of accepting your invitation, in behalf of the Union Safety
Committee, to attend a public dinner on the Twenty-second,
in honor of that auspicious day. Auspicious indeed ! All
good influences, all omens of independence, liberty, free gov-
ernment, the creation of a nation, its prosperity, happiness, and
THE B1R1HDAY OF WASHINGTON. 587
glory, hung over the hour when the eyes of Washington first
opened to the light.
You say truly, Gentlemen, that the present moment admon
ishes us to rally in support of his principles, to express anew
our admiration of his character, and our gratitude for his part-
ing lessons of patriotism and wisdom.
You say truly, Gentlemen, that the great duty devolving on
us is that of regarding the Union as the foundation of our
peace and happiness, and the Constitution as the cement of
that Union. So Washington regarded them ; so he conjured
his fellow-citizens, in all generations, to regard them ; and
whenever his Farewell Address to his country shall be forgot-
ten, and its admonitions rejected by the people of America,
from that time it will become a farewell address to all the bright
hopes of human liberty on earth.
Gentlemen, the character of Washington is among the most
cherished contemplations of my life. It is a fixed star in the
firmament of great names, shining without twinkling or obscu-
ration, with clear, steady, beneficent light. It is associated and
blended with all our reflections on those things which are near
and dear to us. If we think of the independence of our coun-
try, we think of him whose efforts were so prominent in achiev-
ing it ; if we think of the Constitution which is over us, we
think of him who did so much to establish it, and whose ad-
ministration of its powers is acknowledged to be a model for
his successors. If we think of glory in the field, of wisdom in
the cabinet, of the purest patriotism, of the highest integrity,
public and private, of morals without a stain, of religious feel-
ings without intolerance and without extravagance, the august
figure of Washington presents itself as the personation of all
these ideas.
You do well, Gentlemen, at this interesting hour, to invoke
his example, to spread over all the land a knowledge of his
principles among the rising generation, and fervently to pray
Heaven that the spirit which wTas in him may also be in us.
When Washington, in behalf of the convention, presented
to the old Congress and to the country that Constitution which
was the production of their patriotic and assiduous labors, he
made this most important declaration : " In all our deliberations
upon this subject, we kept steadily in our view, that which ap-
588 THE BIRTHDAY OF WASHINGTON.
pears to us the greatest interest of every true American the
consolidation of our Union, in which is involved our prosperity,
felicity, safety, perhaps our national- existence. This important
consideration, seriously and deeply impressed on our minds, led
each State in the convention to be less rigid on points of infe-
rior magnitude than might have been otherwise expected ; and
thus the Constitution which we now present is the result of a
spirit of amity, and of that mutual deference and concession
which the peculiarity of our political situation rendered indis-
pensable."
And when his public career was drawing to a close, he left to
his country, as his last, best gift, his most earnest and affection-
ate exhortation, to uphold that Union as the main pillar of in-
dependence, and to frown indignantly upon the first dawning
of any attempt to dissolve it.
The advice is heeded now, and will be heeded hereafter.
But, nevertheless, there are some among us on whom it is no
injustice that those frowns of indignation should fall. There
are those who are altogether for abandoning the Union, and
alienating one portion of the country from the rest. They
avow their wishes, they disclose their purposes. They open
their hearts, and in those hearts there is found no pulsation for
that Union which makes all Americans one people. All is but
the ebbing and the flowing of the dark, unwholesome, troubled
current of secession, schism, and separation.
We have seen propositions for secession formally brought for-
ward, and solemnly discussed in the legislatures and conven-
tions of several of the States. Other conventions are soon to
be holden, under regular legislative provisions, to consider the
same subject. In one important State, recent elections show
that there prevails among the people almost an entire unanimity
of sentiment in favor of breaking up the Union ; and this dis-
solution of the Union, it is supposed, may not take place with-
out conflict in arms. Munitions of war are therefore provided,
schools of instruction in military tactics established, and an
armed air and attitude assumed. These apprehensions of con-
flict, in case secession be attempted, are not only well founded,
but, in my judgment, certain to be realized. Secession cannot
be accomplished but by war. I do not believe those who favor
it expect any other result. Their hope is, that their cause and
THE BIRTHDAY OF WASHINGTON. 589
its objects may spread; and that other States, by local sym-
pathies, or a supposed common interest, may be led to espouse
it; so that the whole country may come to be divided into two
great local parties, and as such to content ro • the mastery.
But Providence has not forsaken us. This object, I believe,
has been defeated by the measures of adjustment adopted by
Congress at the last session, and by the spirit, ability, and suc-
cess with which the friends of the Union have resisted it in
the South. Nor have the efforts of your association, Gentlemen,
been either unimportant or unavailing. Your voices have been
heard throughout the whole land, and no man can doubt how
the great commercial metropolis of the country feels and acts,
or hereafter will feel and act, on questions involving public in-
terests of such indescribable magnitude.
We have recently been informed, Gentlemen, of an open act
of resistance to law, in the city of Boston ; and if the accounts
be correct of the circumstances of this occurrence, it is, strictly
speaking, a case of treason. If men combine and confederate
together, and by force of arms or force of numbers effectually
resist the operation of an act of Congress, in its application to
a particular individual, with the avowed purpose of making the
same resistance to the same act in its application to all other
individuals, this is levying war against the United States, and
is nothing less than treason. Now, I understand that the per-
sons concerned in this outrage in Boston avow openly their
full purpose of preventing, by arms, or by the power of the mul-
titude, the execution of process for the arrest of an alleged
fugitive slave in any and all cases whatever. I am sure, Gen-
tlemen, that shame will burn the cheeks, and indignation fill the
hearts, of nineteen twentieths of the people of Boston, at the
avowal of principles and the commission of outrages so abom-
inable. Depend upon it, that, if the people of that city had
been informed of any such purpose or design as was carried
into effect in the court-house in Boston, on Saturday last,
they would have rushed to the spot, and crushed such a nefari-
ous project into the dust. The vast majority of the people of
Boston must necessarily suffer in their feelings, but ought not
to suffer at all in their character or reputation for loyalty to
the Constitution, from the acts of such persons as composed
the mob. I venture to say, that when you hear of them next.
VOL. vi. 50
590 THE BIRTHDAY OF WASHINGTON.
you will learn that, personally and collectively, as individuals,
and also as represented in the city councils, they will give full
evidence of their fixed purpose to wipe away, and obliterate to
the full extent of their power, this foul blot on the good name of
their city.
And now, Gentlemen, when projects of dissolution have taken
so much of form and pressure in public bodies in the South,
when lawless violence, trampling on the public authorities, stalks
forth so boldly in the North, you will see that your work, highly
prosperous thus far, is nevertheless not yet concluded. It is wise
and patriotic, therefore, that you commemorate your love of
country, strengthen your resolution to maintain the Constitution,
the Union, and the laws, by uniting to celebrate the anniversary
of the birth of the great Father of his Country. You do well to
call to memory his services, to revive in your own bosoms his love
of liberty and order, and to draw in patriotic inspirations from
his principles and his example. For these principles and this
example, there will be found respect and admiration everywhere,
where there is a true love for the institutions of the country.
And every American ma" well doubt the patriotism of his own
heart, when he finds that in that heart veneration for Washing-
ton begins to be languishing and dying away.
Gentlemen, the path of duty before you, and before me, is
plain and broad ; it is to do our duty and our whole duty, thor-
oughly and fearlessly ; it is to embrace the free institutions of
our country ; and to hold them up, with all our might, as if it
were our last struggle upon earth. And then, if the blood of
civj. war shall flow, it will not stain our garments. If disgrace-
ful outrages, gaining strength by indulgence and temporary suc-
cess, shall proceed from stage to stage, till they destroy the lives
of men, women, and children, pull down and demolish the tem-
ples of justice, and even wrap cities in flames, you and I, and
our character and memory, both now and with posterity, will at
least escape the consuming conflagration of reproach.
I am, Gentlemen, your much obliged servant,
Daniel Webster.
RELEASE OF THE HUNGARIAN REFUGEES. 591
t
To George P. Marsh, Esq., 8fc., 8fc, Constantinople*
Washington, February 28, 1851.
Sir, — I am directed by the President to address you on the
subject of the Hungarian refugees who are now in the Turkish
dominions.
It is understood by this government that Mr. Kossuth and
forty or fifty others, his companions, are in confinement in Ku-
tayieh, in Asia Minor, where they have been for a year or more,
and that they continue to feel an earnest desire to come to the
United States.
By a despatch of my predecessor you were instructed to offer
to the Sublime Porte to receive Mr. Kossuth and his compan-
ions on board of one of the national ships of the United States
to convey them to this country.
It would have been extremely gratifying to the government
and people of the United States if this proposition could have
been at that time accepted ; but it is understood that its not
having been complied with by the Sublime Porte did not arise
from a wish on his Imperial Majesty's part to detain them, or
from any unwillingness that they should proceed to the United
States, but was in consequence of the Sultan's offer to Austria
to detain these persons for one year ; at the expiration of which
time, unless further conventions should be entered into to pro-
long their detention, they should be at liberty to depart.
If this be so, the time is near at hand when their release may
be expected, and when they may be permitted to seek an asy-
lum in any part of the world to which they shall be able to pro-
cure the means of transportation.
It is confidently hoped that the Sublime Porte has not made,
and will not make, any new stipulation with any power for
their further detention ; and you are directed to address your-
self urgently, though respectfully, to the Sublime Porte on this
question.
You will cause it to be strongly represented, that, while this
government has no desire or intention to interfere in any man-
ner with questions of public policy or international or municipal
relations of other governments, not affecting the rights of its
* This letter should have been inserted among the Diplomatic Papers, in the
preceding division of the work.
592 RELEASE OF THE HUNGARIAN REFUGEES.
own citizens, and while it has entire confidence in the justice
and magnanimity and dignity of the Sublime Porte, yet, in a
matter of such universal interest, it hopes that any suggestions
proceeding from no other motives than those of friendship and
respect for the Porte, a desire for the continuance and perpetuity
of its independence and dignified position among the nations of
the earth, and a sentiment of commiseration for the Hungarian
exiles, may be received by the Porte in the same friendly spirit
in which they are offered, and that the growing good feeling
and increasing intercourse between the two governments may
be still further fostered and extended by a happy concurrence
of opinion and reciprocity of confidence upon this as upon all
other subjects. Compliance with the wishes of the government
and people of the United States in this respect will be regarded
as a friendly recognition of their intercession, and as a proof of
national good-will and regard.
The course which the Sublime Porte pursued, in refusing to
allow the Hungarian exiles to be seized upon its soil by the
forces of a foreign state, or to arrest and deliver them up itself
to their pursuers, was hailed with universal approbation, it might
be said with gratitude, everywhere throughout the United States.
And this sentiment was not the less strong because the demand
upon the Sublime Porte was made by governments confident
in their great military power, with armies in the field of vast
strength, flushed with recent victory, and whose purposes were
not to be thwarted, nor their pursuit stayed, by any obstacle less
than the interposition of an empire prepared to maintain the
inviolability of its territories, and its absolute sovereignty over
its own soil.
This government, jealous of its own territorial rights, regarded
with great respect and hearty approbation the firm and lofty
position assumed by his Imperial Majesty at that time, and so
proudly maintained under circumstances well calculated to in-
spire doubt, and against demands urged with such gravity, and
supported by so formidable an array. His Imperial Majesty
felt that he should be no longer an independent prince if he
consented to be less than the sovereign of his own dominions.
While thus regarding the political position and conduct of
the Sublime Porte, in reference to other powers, his Imperial
Majesty's generosity in providing for the wants of the fugitives
RELEASE OF THE HUNGARIAN REFUGEES. 593
tius unexpectedly, and in so great numbers, throwing themselves
upon his protection, is considered equally worthy of admiration.
On the other hand, it is not difficult to conceive what may
have been the considerations which led the Sublime Porte to
consent to remove these persons from its frontiers, require them
to repair to the interior, and there to remain for a limited time.
A great attempt at revolution against the established author-
ities of a neighboring state, with which the Sublime Porte was
at peace, and with which it desired to preserve friendly relations,
had only then been suppressed. The chief actors in that at-
tempt had escaped into the dominions of the Porte. To per-
mit them to remain upon its frontiers, where they might project
new undertakings against that state, and into which, if circum-
stances favored, they could enter in arms at any time, might
well have been considered dangerous to both governments ; and
the Sublime Porte, while protecting them, might certainly also
prevent their occupying any such position in its own dominions
as should give just cause of alarm to neighboring and friendly
powers. Their removal to certain localities might also be ren-
dered desirable by considerations of convenience to the Sublime
Porte itself, upon whose charity and generosity such numbers
had so suddenly become dependent.
The detention of these persons for a short period of time, in
order that they might not at once repair to other parts of Eu-
rope to renew their operations, was a request that it was not
unnatural to make, and which it was certainly in the discretion
of the Sublime Porte to grant, without any sacrifice of its dig-
nity or any want of kindness towards the refugees.
But at this time all possible apprehension of danger or dis-
turbance, to result from their liberation, has ceased. It is now
more than a year since the last Hungarian army surrendered,
and the attempt at revolution and the establishment of an in-
dependent government, in which they were engaged, was most
sternly crushed by the united forces of two of the greatest pow-
ers of Europe. Their chief associates are, like themselves, in
exile, or have perished on the field, or on the scaffold, or by
military execution. Their estates are confiscated, their families
dispersed, and every castle, fortress, and city of Hungary is in
the possession of the forces of Austria.
They themselves, by their desire to remove so far from the
50*
594 RELEASE OF THE HUNGARIAN REFUGEES.
scene of their late conflict, declare that they entertain no hope
or thought of other similar attempts, and wish only to be per-
mitted to withdraw themselves altogether from all European
association, and seek new homes in the vast regions of the
United States. For their attempt at independence they have
most dearly paid ; and now, broken in fortune and in heart,
without home or country, — a band of exiles, whose only future
is a tearful remembrance of the past, whose only request is to
spend their remaining days in obscure industry, — they wait the
permission of his Imperial Majesty to remove themselves, and
all that may remain to them, across the ocean, to the unculti-
vated regions of America, and leave for ever a continent which
to them has become more gloomy than the wilderness, more
lone and dreary than the desert.
The people of the United States expect from the generosity
of the Turkish monarch, that this permission will be given ;
they wait to receive those exiles on their shores, where, without
giving just cause of uneasiness to any government, they may
enjoy whatever of consolation can be afforded by sympathy for
their sufferings, and that assistance in their necessities which
this people have never been late in offering to any, and which
they are not now for the first time called upon to render. Ac-
customed themselves to high ideas of national independence,
the people of the United States would regret to see the govern-
ment of the vast empire of Turkey constrained by the force of
circumstances to exercise the duty of keeping prisoners for other
powers. You will further say to the Sublime Porte, that if, as
this government hopes and believes, Mr. Kossuth and his com-
panions are allowed to depart from the dominions of his Impe-
rial Majesty at the expiration of the year commencing in May,
1850, they will find conveyance to the United States in some
of its national ships, now in the Mediterranean Sea, which can
be spared for that purpose ; and you will, on receiving assur-
ances that these persons will be permitted to embark, ascertain
precisely their number, and immediately give notice to the com-
mander of the United States squadron on that station, who will
receive orders from the proper authorities to be present with
such of the ships as may be necessary, or can leave the station,
to furnish conveyance for Kossuth and his companions to the
United States.
Daniel Webster.
INVITATIOJN TO NEW YORK. 595
To George Griswold, Esq., and others, in Reply to a Letter
transmitting an Invitation signed by more than five thousand
Citizens of New York, " Friends of the Union, without Dis-
tinction of Party"
Washing-ton, May 9, 1851.
Gentlemen, — I have received your communication by the
hands of Mr. Williams, and I acknowledge myself overwhelmed
by this new proof of regard from the city of New York. An
invitation to visit that city, from so many thousands of " friends
of the Union, without distinction of party," as much surpasses
my merit as it exceeds my expectation. I have read the names.,
and, as you suggest may be probable, many of them are known
to me, and I know them to be men of high honor and character,
of business and industry, possessing a great stake in the coun-
try, and active supporters and props of all the institutions of
benevolence and charity, morality and religion, literature and
science, which adorn the great commercial metropolis of the
United States.
Gentlemen, I have no wish to appear in public for purposes
of ceremony or entertainment ; nor can I say that I feel the
necessity of any occasion at present to express my sentiments
in regard to public affairs. All that I think, and all that I feel.
on the great topics of the hour, is concealed from nobody. But,
notwithstanding all this, and notwithstanding that my public
duties are likely to demand my attention rather imperatively
for some weeks to come, I yet cannot persuade myself to say
that I may not, at no distant time, make an effort to meet my
friends in New York,
One thing, Gentlemen, is certain, that, if I address you at
any time, you will hear no change of sentiment, nor any fal-
tering of voice, in support of that cause which is so dear to
your hearts and to mine.
With grateful and profound regard, I remain, Gentlemen,
your friend and obliged, humble servant,
Daniel Webster*
0% TO HIS CAPE COD FRIENDS.
To a Number of Friends at West Dennis, Mass,
Washington, July 14, 1851.
Gentlemen, — I have received your friendly letter of the 4th
of this month, and am highly gratified with the patriotic senti-
ments expressed therein. Indeed, I should have expected nothing
else, because such sentiments are worthy of those Pilgrim Fathers
from whom you are descended, as well as of the general char-
acter of your community.
It will give me much satisfaction, if circumstances should
allow, to accept your invitation to pass a day among you. In
the mean time, I shall be most happy to send to each of you
such productions of mine as may fully explain my sentiments
in respect to the great questions of the present time.
With some of you, I have the pleasure of being personally
acquainted, as I have often been in your good town of Dennis,
as well as in all the other towns on the Cape. I see also at-
tached to your letter many names not personally known to me,
but belonging to families with which I have had acquaintance
in former times. I have always found the air of y6ur county
delightful in summer, and there are many sea views remarkably
fine ; and I suppose I ought to confess, also, that in these my
pleasant visits I did not entirely neglect the streams, so highly
estimated by the anglers who have thrown the fly in them.
Gentlemen, the nature of your population is somewhat pe-
culiar. I have often been - struck by the very great number of
sea-captains, as well as other mariners, which the county of
Barnstable and the neighboring islands furnish. On the Cape
and on the islands, I have frequently conversed with persons
who seem ^d as well acquainted with the Gallipagos Islands, the
Sandwich Islands, and some parts of New Holland, as with our
counties of Hampshire and Berkshire.
I was once engaged in the trial of a cause, in your district,
in which a question arose respecting the entrance into the har-
bor of Owhyee, between the reefs of coral rock guarding it on
either side. The counsel for the opposite party proposed to call
witnesses to give information to the jury concerning this en-
trance. I at once saw a smile, which I thought I understood ;
and suggested to the judge, that very probably some of the
jurors had seen the entrance themselves ; upon which seven out
TO HIS CAPE COD FRIENDS. 597
of the twelve jurors rose, and said that they were quite familiarly
acquainted with it, having seen it often.
The occurrence, I dare say, is remembered by that most wor-
thy man and eminent judge, now living, as I am happy to know,
and enjoying in advanced life the affection of friends, and the
respect of all who know him ; I mean Judge Putnam. This
incident shows the nature of the employments pursued by your
neighbors and yourselves.
With the more elderly gentlemen of your county I have had
the pleasure of frequent conversations concerning early Revolu-
tionary times, and especially respecting that extraordinary man,
James Otis. I have been where he lived, and examined such
of his papers as I could find ; but in the latter part of his life
he destroyed most of his correspondence. Mr. Tudor has writ-
ten a very good history of his life, and you all know the em-
phatic eulogy pronounced on him by the elder Adams, namely,
that it was James Otis who set the ball of the Revolution iir
motion. Warm, eloquent, and highly impassioned in the cause
of liberty, his brilliant life was terminated by a stroke of light-
ning.
None were earlier to begin, none more cordially embraced,
or more zealously struggled to maintain, the cause of the Rev-
olution, than the people of the Cape. All the region aboul
the birthplace of James Otis, and the Thomas's, and the other
true-hearted patriots of those times, is to me a sort of classic
ground; remote from large cities, scattered along an extensive
coast, there was yet, I think, in no part of the country, a more
fervent devotion to the patriotic cause than was manifested by
your ancestors.
Gentlemen, I am sure you ascribe quite too much merit to
my efforts in behalf of the Union and of the Constitution. ]
can only say, I have done what I could, and all that I could ;
and that I shall not slacken my hand. Perhaps it is natural
that you should be attached to free and regular constitutions
of government, since all know that the first written constitution
in the country was composed and signed on board of the May-
flower, while she was riding at anchor in one of the harbors ol
the Cape. Your own prosperity, Gentlemen, the success of all
your leading pursuits, the prosperity of your county, and of
the whole State of Massachusetts, are at this moment living
598 TO HIS CAPE COD FRIENDS.
monuments of the benefits conferred by the Constitution of the
United States, and the administration of government under it.
Your soil has always been a free soil; as such, you and your
ancestors have cultivated it for centuries ; it needs no new chris-
tening. But what the people of Massachusetts wanted, and
your country among the rest, before the adoption of the present
Constitution, was Free Seas ; free seas, on which their industry
could be displayed, and their national rights protected. By the
blessing of Providence they have enjoyed this freedom and this
protection for a long course of years, and have flourished and
prospered under them beyond all former example.
What if your soil be not of the richest quality ? What if
it be not fertile, like Western New York and the Western
States ? I still hardly know a part of the country in which the
people enjoy more substantial comfort. I have traversed the
whole, from the " outside " in Provincetown to the line of Ply-
mouth, without seeing an instance of ragged poverty or of ab-
solute want. Your labors are on the sea. In a more emphatic
sense than can be said of any other people, your home is on the
deep. Nevertheless, the home of your families, the home of
your affections, the home to which you return with so much
gladness of heart, is in the various towns on the Cape, " where
all your treasures be."
I trust that there is not a man among you who does not feel
and see that the prosperity of his labor is mainly connected
with the administration of the government of the United States ;
and therefore I trust that the political air of the Cape will
always remain as healthy as its natural atmosphere, and that it
will be as free from faction and fanaticism as that is from fogs
and vapors.
If your hardy and enterprising young men go eastward, pur-
suing their employment, to the Bay of Chaleur, the Straits, or
the Grand Bank, do they not receive a positive protection and
encouragement from the laws of the United States? If they
take a wider range, and, in pursuit of larger objects, coast along
Brazil, double the Cape, and thence steer west, or south, or
north, in the vast Pacific, do they not find that they are safely
covered by the shelter of their flag, which no power on earth
ventures to treat with disrespect ?
My friends of West Dennis, discourage fanciful ideas, ab*
INVITATION TO GEORGIA. 599
stract notions, and all inconsiderate attempts to reach ends,
which, however desirable in themselves, are not placed within
the compass of your abilities or duties. Hold on, my friends,
to the Constitution of your country, and the government estab-
lished under it. Leave evils which exist in some parts of the
country, but which are beyond your control, to the all-wise
direction of an overruling Providence. Perform those duties
which are present, plain, and positive. Respect the laws of your
country, uphold our American institutions as far as you are
able, consult the chart and the compass, keep an eye on the sun
by day, and on the constellations, both of the South and the
North, by night; and, always feeling and acting as if our united
constitutional American liberty were in some degree committed
to your charge, keep her, so far as it depends on you, clear of the
breakers. Whatever latitudes you traverse, on whatever distant
billows you are tossed, let your country retain her hold on youi
affections. Keep her in your hearts, and let your carol to her
ever be, —
" Lashed to the helm,
Should seas o'erwhelm,
I'll think on thee."
I am, my friends, with sincere regard, your obliged fellow-
citizen, and obedient servant,
Daniel Webster.
To Mark A. Cooper, Esq., Macon, Georgia.
Marshfield, October 6, 1851.
My dear Sir, — I have received the friendly invitation ad-
dressed to me by you as the organ of the Southern Central
Agricultural Association, to meet its members at their Agricul-
tural Fair in Macon. I thank you for your kindness in thus
remembering me at the approach of an anniversary so interest-
ing to all engaged in agriculture.
I am a farmer, on a small scale, on the sea-coast of New
England ; a very different occupation from that of him who
possesses a rich cotton or rice plantation in Georgia. Atten-
tion to agriculture has been one of my ruling propeasities from
600 INVITATION TO GEORGIA.
my earliest years ; and I like to see it, and to study it, in what-
soever form it is prosecuted. Your rice-meadows and cotton-
fields it has afforded me great pleasure to visit ; and I am
aware that in other parts of Georgia the great staple of wheat
is produced in an abundance that we do not witness in New
England. For these reasons, my dear Sir, it would give me
much gratification to accept your invitation to attend the fair.
But there is another reason. Men are more important than
things. Those who own the soil, and cultivate it, are mor
interesting than the soil itself. My chief pleasure, therefore, in
such a meeting would be, to see an assembly of the people of
Georgia ; to exchange with them the congratulations of country-
men ; to assure them that I rejoice in their prosperity, and feel
towards them the proper sympathies of a fellow-citizen.
Let me take the occasion to add, my dear Sir, that, as the
forms and products of your agriculture are quite different from
ours, as your soil and climate are different, and as your social
and domestic institutions are also different, it was never intend-
ed by the Constitution under which we live, that so foolish and
impracticable a thing as amalgamation, in these respects, or any
of them, should be attempted between Northern and Southern
States. The States are united, confederated ; —
" Not, chaos-like, together crushed and bruised,
But, like the world, harmoniously confused;
Where order in variety we see,
And where, though all things differ, all agree."
My prayer to Heaven is, that, in the midst of all this " va-
riety " pervading the several States, u order " may still be pre-
served among them all ; and that the Constitution of this coun-
try, the main foundation on which this "order" rests, may be
always loved and venerated by all, and continue for ever, as the
greatest civil blessing for us and our posterity. And since my
public duties will not allow me to be present at the fair in
Macon, I pray you, my dear Sir, to present, not only to the
committee, but to all who may be assembled, my cordial re-
gards and good wishes.
I am, Sir, your obliged fellow-citizen and obedient servant,
Daniel Webster.
MONUMENT TO ISAAC DAVIS. 601
To Mr. J. T. Woodbury, Chairman of the Committee of Arrange'
ments for the Celebration at Acton, Mass.
Marshfield, October 15, 1851
My dear Sir, — If my public duties would permit, there is
no occasion of the kind which I would attend with more pleas-
ure than the erection of a monument to the memory of Isaac
Davis. His brief public history and untimely grave not only
called forth my admiration, but enkindled my enthusiasm, in
youth ; and in later years, when I have conversed respecting
him with those who saw him on the morning of that eventful
19th of April, marked the undaunted courage with which he
marched up and met the fire of the foe, the manner in which he
received the fatal shot, and the complacency and beauty of his
manly countenance as he lay a corpse, with wounds still fresh
and bleeding, my heart has melted within me, and my eyes
gushed out with tears.
I have read all that I could find, and gathered up all that I
could learn, of his high and noble character. He fell in his
early manhood, one of the very first martyrs in the cause of lib-
erty, and, if I mistake not, the first American officer who sealed
his devotion to the cause with his own blood. In the scene at
Concord Bridge, he seems to stand out in marked, prominent,
and bold relief. I have had the pleasure of speaking of his
character as I thought of it in the Senate of the United States ;
and most happy should I be in passing a day with those wh(
are the children of fathers who were his neighbors, and perhaps
with some who may remember to have seen him.
Let me ask you to present, in my name, the following senti-
ment to the company : —
Isa\c Davis: An early grave in the cause of liberty has secured to
him the long and grateful remembrance of his country.
I am, my dear Sir, with high regard, your obedient servant,
Daniel Webster.
vol. vi. 51
INDEX.
INDEX.
A.
Aberdeen, Lord, on the right of search,
VI. 375.
"Accede," a word not found in the Con-
stitution, III 453
Act respecting coasting trade explained,
VI. 21.
Act respecting fugitives from labor (1793),
VI. 552.
Adams and Jefferson, coincidences in
the death and lives of, I. 114; members
of the committee to prepare the Decla-
ration of Independence, 126; their re-
spective administrations 144.
Adams, John, eulogized, I. 31, 32; birth
and education, 118; admitted to the
bar, 119; defends British officers and
soldiers, 119; a remarkable letter of,
120; Delegate to Congress, 123; im-
portant resolution reported by, 125;
power in debate, 129; knowledge of
Colonial history, 131; supposed speech
in favor of independence, 133 ; Min-
ister abroad, 137 ; Delegate to Conven-
tion, and presiding officer, 137, 138; De-
fence of American Constitutions, 138 ;
Vice-President and President of the
United States, 138; his description of
the first prayer in Congress, VI 162.
Adams, J. Q., I. 88 ; liberality of his in-
augural address, 157 ; his nominations
to offices postponed by the Senate, 259,
359 ; opposition to his administration,
363, II. 10, 11 ; message relating to the
Northeastern Boundary, V. 84.
Adams, Samuel, Delegate to Congress, I.
123; anecdote of, VI. 162.
Addition to the Capitol, address at the
laying of the corner-stone of the, II. 595.
Adjustment Measures, necessity of, II.
557, 571.
Admission of Texas, speech on, V. 55.
Ad valorem Duties, objections to, IV. 259 ;
not the policy of this government, V.
170; an unsafe principle of finance, 157.
African Slave-trade, part taken by the
United States respecting, VI. 352*.
51*
African Squadron, provided for in treaty
of Washington, V. 143, VI. 354.
Agriculture, regarded by Washington, I.
228; its importance, 436, 457: of Eng-
land, 441 ; remarks on, at Boston, 443 j
of England and the United States, II.
177 ; its interests aided by protecting
manufactures, 243 ; advantages of home
over foreign market, V 232.
Aguesseau, D', extract from, II. 301.
" Aiding and abetting," defined, VI. 74, 77.
Airs, the Martial, of England, IV. 110.
Aix la Chapelle, stipulation in regard to
slaves in the treaty of, II. 573 ; con-
gress of sovereigns at, influenced by
English and American policy, III 195.
Alabama, policy in respect to exchange
and banking, VI. 125.
Albany, N. Y., speech of Mr. Webster at
a mass meeting at, 27th August, 1844,
II. 219; speech delivered to the young
men of, 28th May, 1851, 569; memo-
rial from, IV. 13 ; commercial character
of, 15.
Aldham, Mr., referred to by Mr. Webster ;
his reply, II. 215.
Allegiance, doctrine of perpetual, VI. 320;
doctrine of the United States in respect
to, 454 ; duties of persons residing tem-
porarily in a country in respect to, 526.
Allen, Lieut., killed by pirates. VI. 514.
Allied Sovereigns, claims of, III. 66 ; effect
of their meeting at Laybach on the peo-
ple, 72; their course toward Greece, 81.
America, her contributions to Europe, I.
104; duty of, in regard to religious be-
lief, II. 521 ; familiarity with republican
principles at the comencement of the
Revolution, III. 89 ; and Europe com-
pared, 192.
American Government, elements of, I.
103 ; principles of, in respect to suf-
frage, VI. 223; general theory of, 537.
American Labor, to be protected. I. 283,
353 ; contrasted with European, II. 24,
175, 467 ; as affected by the tariff of
1846, V. 205.
American Legislation conservative,VI.221.
606
INDEX.
American People, prepared for popular
government, I. 73 ; their duty in respect
to republican principles, III. 76 ; re-
straints imposed on themselves, VI. 224.
American Policy, its true object, III. 96.
American Political Principles, summary
of, II. 601.
American Power, foundation of, III. 134.
American Republicanism, remark of Jef-
ferson concerning, II. 91.
American Revolution, its purpose, III. 16 ;
effect of, 460 ; organization of govern-
ment in the time of, VI. 225.
Ames, Fisher, his speech on the British
treaty, II. 484 ; quoted, 501 ; favors the
establishment of a bank, IV. 342.
Amiens, treaty of, remark of Mr. Wind-
ham respecting, V. 363.
Amistad, case of, letter respecting, VI. 391.
Ancestry, respect for, I. 6.
Andover, Convention at, 9th November,
1843, speech of Mr. Webster, II. 159.
Anglo-American race, extent of its power,
II. 214.
Animus manendi, chief point to be consid-
ered in determining allegiance, VI. 523.
Annapolis, meeting at, in 1786, IV. 335;
object of delegates assembled at, VI.
10; recommendation of the Convention
at (1786), 227.
Antimasons, character of, IV. 42.
Antislavery Conventions, proceedings of,
II. 559.
Anville, D', map of, II. 143.
Appleton, Nathan, speech of, commended,
II. 176.
Appointing and Removing Power, speech
on, IV. 179.
Apportionment of Representation, re-
marks on, III. 370.
Apprentices, fugitive, restored, V. 435.
Appropriations by Congress, required to
be specific, II. 96, IV. 224; duties of
the House of Representatives in respect
to, III. 186.
Arbitration, opinion of Mr. Polk respect-
ing, II. 324 ; of the King of the Nether-
lands, between United States and Great
Britain, V. 84.
Architecture, improvement in, I. 187;
Gothic, 189.
Army of the Revolution, its services, pa-
triotism, and claims, III. 226.
Army of United States, wisdom of its or-
ganization, II. 613.
Ashburton. Lord, character of, II. 122, 134 ;
his correspondence on impressment, 540 ;
his negotiation with Mr. Webster. 586 ;
mission of, V. 98, VI. 271-273; ac-
cepts the proposed boundary line, 288 ;
letters of, respecting payments to Maine
and Massachusetts, 289 ; the Caroline,
295; maritime rights, 313 ; impressment,
326 ; results of his special mission, 348.
Asiento, stipulation respecting slaves in
the treaty of, II. 573.
Attainder, provisions regarding, V. 493.
Auction sales of public lands, objections
to, IV. 396. See Public Lands.
Austria, financial experiment in 1809, III.
46 ; agent of the United States respect-
fully received by, VI. 502.
Austria and Russia, feelings of, towards
the United States in 1781, VI. 503.
Austins, the early settlers of Texas, VI.
449.
B.
Babylon, astronomers of, I. 221.
Bache, A. D., his Report on Education
quoted, VI. 172.
Bacon, Lord, I. 115; maxim of, VI.
573.
Badger, G. E., motion of, against ceding
New Mexico and California, II. 444.
Bahamas, treatment of American vessels
at, VI. 305.
Balance of trade explained, III. 118;
of power, necessity of, in a mixed gov-
ernment, IV. 109.
Baltimore Convention, resolution relative
to Oregon, II. 321 ; to American indus-
try, 464.
Bangor, reception of Mr. Webster at, I.
309; its position, 309 ; its growth, 310.
Banking, new principles of, IV. 37 ; al-
leged dangers of, 362 ; effect of, upon
the industry of the people, 364 ; system
of the United States and England com-
pared. IV. 442; explained, VI. 127.
Bank-notes, convertibility into specie an
indispensable requisite, IV. 89 ; irre-
deemable, impolicy of issuing, 412 ;
mode of determining the excess of cir-
culation of, 445 ; evils of a diminished
circulation of, 447; power of Congress
to authorize use of, in government
transactions, 485 ; Mr. Calhoun's course
in respect to, 489.
Bank of Amsterdam, IV. 360.
Bank of England, error of, II. 60 ; effect
of its suspension in 1697, III. 41 ; re-
sumes specie payments, 101 ; chartered
for limited periods, 549 ; established by
William the Deliverer, IV. 91 ; increases
its capital, 360 ; its foi'eign operations,
VI. 114; origin and nature of, 127.
Bank of the United States, Gen. Jackson's
opinion of, I. 245 ; classes affected by
its discontinuance, 247 ; bill for its re-
charter, 268 ; branch of, in New Hamp-
shire, 366 ; suspends specie payments,
389 ; expiration of its charter, 393 ;
bill for its recharter passed by Con-
gress, 1832, 367; administration of, II.
67; speech on, Jan. 2, 1815, III. 35;
instructions in respect to, moved by Mr
INDEX.
607
Webster, 35 ; object of I. 408, III. 101 ,
427, IV. 341, 346, 460 ; speech on the
bill to recharter (1832), III. 391 ; char-
ter vetoed, 418; time for renewal of
charter, 421 ; comments on veto of
charter, 424 ; advantages of, in war,
429 ; its constitutionality settled, 435 ;
proposition for establishing (1833), 513 ;
its credit, 515 ; modification of char-
ter, 515 ; executive opinions respecting,
547; violation of its rights, IV. 11; ob-
ject of its recharter (1834), 31 ; opin-
ion of Congress respecting, 37, III.
431 ; act incorporating is a contract,
IV. 50 ; its right to the deposits, 52 ;
remedies for mal-administration, 59 ;
alleged misconduct of, 67 ; speech on
continuance of charter, 82 ; prejudice
against, 95 ; by what States advocated,
97 ; explanations of bill to continue
(1834), 99; advantages of, 201 ; when
created, 325 ; duties performed by, 327 ;
opinions of Madison and Ames respect-
ing, 342, 461 ; of Washington's cabinet,
343, 461 ; facilities for exchange pro-
vided by, 334 ; preamble of the bill to
establish the first bank, 344 ; extract
from report of Secretary of the Treas-
ury respecting, 348 ; popular opinion of,
419 ; consequence of removal of depos-
its from, 443 ; course of Messrs. Web-
ster and Calhoun in relation to (1815),
504 ; against W. D. Primrose, argu-
ment in the case of, VI. 106 ; against
Deveaux, comments on case of, ib.
Bank Paper, effect of discrediting, II. 77 ;
credit destroyed by over-issue, III 45.
Bankruptcy, power of Congress respect-
ing, IV. 320, V. 5 ; on a uniform sys-
tem of, 3 ; acceptation of the term. 6 ;
voluntary and compulsory, provision
to be made for, 18 ; State laws concern-
ing, ineffectual, 19.
Bankrupt law, appeal for the passage of.
II. 24 ; object of, V. 8; nature of, 10;
benefits of, not to be confined to traders,
11 ; of New York considered, VI. 25.
Bankrupt laws to be established only by
the national authority, VI. 25, 37.
Banks, suspension of, I. 375, 385 ; effect
of suspending specie payments, 406, IV.
361 ; security of the public against ex-
cessive issues by, II. 60 ; to what ex-
tent useful, III. 37 ; their issues should
be redeemable in gold and silver, 41 ;
depreciated currency of (1816), 51,411 ;
issuing of small notes by, to be discour-
aged, 400, 538; power of a State to
create, questioned, 414; their history
belongs to that of commerce and liberty,
IV. 91 ; for whom made, 94 ; efforts
of, to resume specie payments, 420 ;
instruments of the credit system, 433 ;
encouraged to discount liberally in 1833,
443 ; proper rule for regulating, 448 ;
impolicy of the issue of small bills by,
457 ; alleged evils of a connection be-
tween, and government, 469.
Barings, Messrs., letter to, on power of the
States to contract loans, VI. 537.
Barre, Col., quotation from his speech re-
specting American Colonists, III 287.
Bartlett, Josiah, character of, II. 506.
Bell, Gov. P. H., letter to, respecting the
boundaries of Texas, VI. 479.
Benson, Judge, Commissioner at Annap-
olis, I. 199.
Benton, Thomas H., on the Oregon ques-
tion, II. 322 ; on Foot's resolution, III.
248, 270 ; commendation of Hayne's
speech alluded to, 273.
Berkeley, Bishop, I. 221, II. 510, 595.
Berkeley, Gov., letter to Gov. Winthrop
on the restoration of slaves, V. 434.
Berrien, J. M., remarks upon proposition
of, V. 257.
Biddle, Com., anecdote of, V. 322.
Bill of exchange on French government,
protested, IV. 72.
Bills of credit, nature of, IV. 336, VI. 538 ;
States prohibited from issuing, IV. 337.
Bissell, Col., remarks of, VI. 559.
Blacks from Northern States, oppressive
treatment of, by South, V. 360, 432.
Blane, Sir G., quoted, III. 139.
Boeanegra, his mistaken idea of the power
of the United States in war, VI. 456 ;
complaints of, answered, 446.
Border disturbances, suppressed by treaty
of 1842, V. 140.
Borland, agent of Massachusetts, II. 147.
Boston, its port closed, I. 67 ; feeling in
honor of, 174; Mecbanics' Institution
of, 175 ; citizens of, present a vase to
Mr. Webster, 319; patriotism of her
merchants, 429 ; reception of Mr. Web-
ster at, 30 Sept., 1842, II. 109; and
New York, 416; resolutions of, in 1820,
commented on, IV. 509 ; violation of
law in, VI. 589.
Boston Protest, character of its signers,
IV 10.
Boundary, Northeastern, advantages of its
final settlement, V. 101 ; proposed con-
ventional line of, VI. 276 ; proposal by
Mr. Webster, 283 ; explanation of, 347.
Bounties, fishing, alleged payment of, in
irredeemable bills, IV. 377.
Bowdoin, James, delegate to Congress, I.
123.
Breck, Hon. Samuel, II. 307.
Brimstone, manufacture of, destroyed by
tariff of 1846, V. 199.
British Constitution, in respect to the ju-
diciary, III. 27 ; not analogous to the
American, IV. 141.
British Parliament, its power over charters
V. 469.
608
INDEX.
British special mission, results of, VI. 347.
See Ashburton ; Boundary ; Northeastern
Boundary; Treaty of Washington.
Brooks, A. S., falls in Florida, II. 505.
Brooks, Governor John, first president of
Bunker Hill Monument Association,
I. 65 ; beloved and distinguished, II.
505.
Brougham, his approval of the Monroe
declaration, III. 204.
Buchanan, James, his measures on the
Oregon question, II. 321, et seq.; ex-
tract from his letter to Mr. Slidell, 331 :
remark of, respecting Gen Taylor, 450 ;
on the sub-treasury and tariff, 454 ; his
speech respecting ad valorem duties, V.
171.
Buena Vista, Gen. Taylor at, V. 285.
Buffalo, Mr. Webster at, I. 279, 281 ; its
rapid growth, 281, II. 534 ; its trade, I.
282 ; present from the mechanics of, to
Mr. Webster, II. 534 ; public dinner
at, 21st May, 1851, and speech of Mr.
Webster on the occasion, 533 ; recep-
tion of Mr Webster at, 22d May, 1851,
and speech delivered on the occasion,
544.
Bunker Hill Battle, address to the sur-
vivors of, I. 65 ; its effect, 69 ; survivors
of, present at the completion of the
Monument, 85 ; described, 90 ; militia
at, II. 335.
Bunker Hill Monument, I. 55 ; laying of
the corner-stone described, 58 ; de-
scribed, 108; associations with, 220;
toast on, VI. 565-
Burk, of S C., an advocate of protective
duties, III. 501.
Burke, Edmund, remark of, quoted, I.
414 ; opposes the issue of small notes,
III. 399 ; provisions of his bill relating
to economical reform, IV. 520 ; quota-
tion from, V. 412.
C.
Cabot, George, notice of, II. 205.
Calderon, Don A., his course commended.
VI. 507.
Calhoun, J. C. (Vice-President), report of
the Memphis Convention prepared by,
II. 344 ; extract from his speech in fa-
vor of protection, III. 348; extract
from his report on roads and canals,
351 ; his course in respect to a national
bank commended, 392, IV. 487 ; reso-
lutions of, respecting State sovereignty,
III. 448 ; his course in favor of the tariff
of 1816 commented on, 503, IV. 512;
an honest nullifier, 328 ; at the head of
a committee to provide a national cur-
rency, 348 ; an alleged advocate of Con
tinental money, 359 ; resolution of, re-
lating to slavery in the District of Co-
lumbia, 371 ; argument of, in support of
a national bank, 461 ; bill introduced by,
respecting the collection of the public
revenue, 462 ; opinions of, upon national
bank, 461, 469 ; public and personal re-
lations with Mr.Webster, 467 ; advocacy
by, of State rights, 475, 478, 482 ; ex-
tract from remarks of, upon tariff of
1824, 475 ; course of, in regard to elec-
tion of General Jackson, 475 ; sudden
change of views upon sub-treasury
system, 481 ; a supporter of Mr. Van
Buren, 483 ; speech upon power of
Congress as to the public revenue,
484; view of, as to powers granted
by Constitution, 490 ; his denounce-
ment of the measures of government,
498 ; attack upon Mr. Webster, 500 ;
alleged adherence of, to State-rights
party, 51 1 ; bill for internal improve-
ments prepared by, 514; comments on
his speech of Feb. 5, 1840, 528; his re-
marks in regard to annexation of Tex-
as, V 344 ; commendation of his re-
marks on Mexican war, 263, 264 ; obit-
uary tribute to, 368.
California, establishment of a local gov-
ernment in, V. 328 ; formation of States
from, 291 ; its declaration of indepen-
dence, and discovery of gold in, 326 ;
slavery excluded from, by nature, 350;
expediency of early admission into the
Union, 386, 405, 415 ; probable result
of refusing admission to, 388 public
lands and boundaries, 386, 388, 396,
401 ; nature of the country, ib. ; irregu-
lar proceedings in forming constitution
of, 414.
Canada, effect of its cession on New
England Colonies, I. 33 ; its military
roads, V. 108; invasion of, 112; rebel-
lion in 1837, 117 ; supposed annex-
ation of, 353 ; hostile movements in,
VI. 258.
Canals, II. 410 ; transportation on, as
affected by the " experiment," IV. 19.
Canning, his opinion of European and
American governments, III. 192; his
policy in respect to Spain and her colo-
nies, 202 ; his approval of the Monroe
declaration, 264 ; remark of, on the
trade of the United States with the
West Indies, 361.
Capital, distribution of, in United States,
IV. 428 ; relation between, and labor,
428; investments of, difference between
United States and England in regard
to. 430.
Capitol, extension of, II. 603 ; foundation
laid by Washington, 616.
Caroline (steamer), destruction of, 1837,
V. 116, 128; VI. 355; capture of, a
public transaction, 250, 253, 263.
INDEX.
609
Carrol, Charles, last survivor of signers
of Declaration, I. 147.
Cass, Lewis, political opinions and ser-
vices of, II. 440 ; character as a states-
man, 440 ; resolutions of, respecting
Oregon, disapproved, V. 61 ; Mexican
speech of, 276 ; his letter to M. Guizot
approved, VI. 345 ; his construction of
the treaty of Washington referred to,
372, 374 ; his ohjection to the stipula-
tion respecting the African squadron
answered, 380.
Catharine the Second, of Russia, policy
in respect to Greece, III. 82.
Channing, W E., letter of, on subject of
slavery, May 14, 1828 V. 366.
Chapman, Jonathan, Mayor of Boston,
his address to Mr Webster, II 113.
Charities, legal definition of, V. 272, VI.
142 ; colleges included under, ib. ', grant-
ing charters, in cases of, ib.
Charles the Second, I. 27, II. 443; his
mode of destroying chartered rights,
III. 28
Charleston, S. C, arrival of Mr. Webster
at, 7th May, 1847, II. 373.
Charters, to alter or vacate not legislative
acts, V. 469 ; power claimed by British
Parliament over, 469 ; effect of, upon
the property of the corporation, 482 ; of
the nature of a contract. 495.
Chateaubriand, quotation from his speech
respecting the Holy Alliance, III. 73.
Chatham, Lord, his colonial policy, I. 33 ;
his opinion of the first Congress, I. 123,
200.
Chicago Road, President's opinion in re-
spect to appropriation for, 1. 269.
China and the Sandwich Islands, VI.
463 ; letter to the Emperor of China,
July 12, 1843, 475.
Choate, Hon Rufus, II. 203.
Christian Charity defined, VI. 141 ; spirit
of. 157
Christianity, expediency of a declaration
of belief in, as a qualification for office,
III 4, 6 ; and civilization, their recipro-
cal influence, 75 ; importance of teach-
ing children the elements of, VI. 161 ;
a part of the public law of Pennsylva-
nia, 175.
Christian Ministry established by Christ,
VI. 150: work of the, 151.
Christian Ministry and Religious Instruc-
tion of the Young, speech on, in the
Supreme Court, VI. 133.
Church, grants to, cannot be rescinded, V.
483.
Circuit Courts of United States, as origi-
nally constituted, III. 153.
Circulation, paper, effects of a contraction
of, IV. 447. See Banks, Currency.
Civil Law, maxim of, in regard to slavery,
V. 309.
Claims for French Spoliations, justice of,
admitted, IV. 162 ; relinquishment of, 169
Clay, Henry, author of the American sys
tern. I. 244 ; remarks respecting, 157
his land bill, 1832, 251 ; his character
and political services, II. 280; defence
of his course respecting the South
American states, 214; report of", on
the French claims, quoted, IV. 156;
resolution of, relating to slavery in the
District of Columbia, 371 ; opposition
to preemption rights, 396.
Clayton, J. M., resolution of, on the tariff
bill of 1846, V. 236; his explanation
of Mr. Mann's mission, VI. 492.
Clergy, eulogium on, VI. 140.
Clinton, the New York and Erie Canal
his monument, IV. 18.
Coal, abundance of. in Pennsylvania, II.
259 ; remarks on the reduction of duty
on, and expediency of a duty on for-
eign, IV. 304, 307 ; cost of foreign, V.
210 ; value given to it by labor, 211.
Coasting Trade of the South secured from
violation, V. 146.
Coin, banished by paper issues, III. 399.
Coinage, power of Congress over, and con-
sequent power to regulate currency, IV.
460. See Banks, Currency.
College Livings, sacred character of, V. 489.
Colleges, eleemosynary corporations, V.
471, 477.
Colonial System of England made more
liberal, III. 115.
Colonies, establishment of Greek, I. 15;
of Roman, 18; New England, 19 ; West
India, 19, 20; American, aim at inde-
pendence, 26 ; New England, retarded,
27 ; English and Spanish, compared,
97 ; relations of the individual inhabi-
tants of, with each other, VI. 111.
Colonists, English, character of, I. 101 ;
required charters, 102 ; their allegiance
to the king, 127.
Columbia, S. C, reception of Mr. Webster
at, May, 1847, II. 395.
Columbia, Pa., described, and memorial
from, presented, IV. 30.
Columbia River, use of, by England, V
73, 76.
Columbus, portrayed, I. 60, 96.
Comity, nature of, defined, VI. 117 ; illus-
trations of, 119; law of, its existence
between the several States, 121 ; of na-
tions, not to be established by each
state for itself, 125.
Commerce, during the existence of the
Confederation, II. 173; committed to
the care of the general government, 163,
205. IV. 368, 462, 464, VI. 18; its na-
tional character, II 206, III. 120 ; diver-
sity of opinion relative to the regulation
of, II. 231 ; extent of power of Congress
to regulate, between the States, IV. 339,
610
INDEX.
425 , centralization of, 470 ; unity of,
492, 495 ; recommendations of Old
Congress, and resolution of House of
Delegates of Virginia, in regard to,
493 ; as affected by danger of war, V.
61 ; with East Indies, as affected by
tariff of 1846, 194. See Congress.
Commercial Credit, a modern creation,
IV. 88 ; influence on liberty, 91.
Common Schools in New England, I. 403.
Commonwealth Bank, Boston, remarks
on, IV. 377 ; deposits of the United
States in, 384.
Compact and government as distin-
guished from each other, III. 467.
Compromise Bill, remarks on, 17th June,
1850, V. 381.
Compromise Measures, speech on, 17th
July, 1850, V. 412 ; advantages from
the passage of, 420.
Confederation, object of, II. 548 ; a com-
pact, III. 346 ; historical notice of, 454;
condition of the country under, 462, VI.
34, 101 ; styled a league, III. 466.
Confessions, how to be regarded, VI. 96.
Confidence, nature of official, III. 187.
Congress of Delegates at Philadelphia,
1774, 1. 123 ; sat with closed doors, 130
Congress of the United States, has no
power over slavery in the States, I. 356,
II. 94, III. 281 ; duties in respect to
currency, I. 420, 425, II. 161, III. 56,
IV. 22, 459 ; object of the first petition
to, after the formation of the Constitu-
tion, an imposition of duties, II. 232,
286 ; power of declaring war vested
in, 334; its recommendation in respect
to public lands, III. 254 ; its power
always continuous, 443 ; extent of its
powers, 482, VI. 19 ; proceedings of the
first, in respect to protective duties,
499 ; duties of both branches of,- IV.
118 ; power of, in respect to the pub-
he moneys, 129, 485 ; medium in which
public dues are to be paid regulated
by, 272 ; power of, in respect to bank-
ruptcy, V. 4 ; its power in regard to
increase of States, 310 ; members of,
instructed by State legislatures, 356,
423 ; its power to regulate commerce,
VI. 8, 11, 15; and the States, argument
respecting concurrent power of, 14 ;
paramount authority of its laws, 19.
Congress of Verona denounces the Greek
struggle, III 83.
Connecticut, tenure of its judiciary, III
29 ; cedes her public lands to the United
States, 255 ; law of, respecting steam
navigation, VI. 7.
Connecticut River, beauty of the vallev of,
II 417.
Conso'idation disclaimed, I. 295 ; defined,
III. 256, 303 ; Washington's idea of,
257
Constitution of the United States, character
of its founders, I. 203 ; Madison's opin-
ion of, 204 ; executive view of, 271 ; de-
signed to protect American labor, 284 ;
meeting in Boston, in favor of adopting,
303 ; peculiarities of, 329 ; founded on
compromise, 331 ; mode of settling its
meaning, II. 164; the powers which it
assigns to the general government, 225 ;
to be maintained as a whole, 580 ; effect
of, 582, VI. 575 ; provision of, in regard
to fugitive slaves and apprentices, II.
549, 550, 574 ; beyond the power of, to
bring more slave territory into the Unit-
ted States, 551 ; importance of a writ-
ten, III. 29 ; violated by collecting the
revenues in a depreciated currency, 51 ,
to be interpreted by the judicial power,
335, 479 ; not a compact between sov-
ereign States, 448 ; what it says of it-
self, 465 ; maintenance of, not a State,
but an individual duty, 469 ; preamble
of, 477 ; objections of Mr. Martin, 499 ;
its provisions in respect to appoint-
ments and removals, 1. 258, IV. 189, 192 ;
powers conferred by, not always express-
ly granted, 490 ; originated in the neces-
sity of uniformity in commercial regula-
tions, II. 174, IV. 492, 494; first step
towards establishment of, taken by Vir-
ginia. 494 ; balance of, deranged by ad-
mission of new slave States, V. 58 ; im-
paired by addition of territory, 292, 300 ;
recognizes existence of slavery, 305 ; pro-
vides a medium for the payment of
debts, and a uniform mode of discharg-
ing them, VI. 36 ; rights of citizens of
different States under, 112; in reference
to the States and the United States,
122 ; does not use the term Federal
government, nor Sovereign States, 222 ;
in respect to domestic insurrection, 237.
Constitution and the Union, speech for,
7th March, 1850, V. 324.
Constitutions of the States, mode of
amendment, VI. 227.
Constructive presence defined, VI. 80.
Consul at the Sandwich Islands, salary
recommended for, VI. 469.
Contraband of War, traffic in articles of,
VI 451.
Contract, nature of, includes grants,V. 493.
Contracts, obligation of, defined, VI. 26,
28 ; the law not a part of, 29 ; object of
the constitutional provision respecting,
34 ; to be construed by the law of the
place of contract, 123.
Convention, at Andover, 9th Nov, 1843,
II 159; at Valley Forge, 275; of Mas-
sachusetts, speeches in, 1820, III. 1 ;
of 1787. remarks on the proceedings of,
473, 498 ; Harrisburg, character of, IV
42 ; at Annapolis, in 1786, 494.
Convention, negotiated in London, 17744
INDEX.
611
IV. 82; between France and England,
articles of, relative to slave-trade, 149;
ratification of, between France and tbe
United S'.ates, 175.
Cooper, Mark A., Macon, Georgia, letter
to, October 7th, 1851, VI. 598.
Copper Manufacture, injured bv tariff of
1846, V. 194.
Corporations, system of, explained, II.
353 ; power to create, dependent on State
legislature, V. 469 ; royal prerogative
in regard to, ib. ; power of, over funds
possessed by them, 471 ; divers sorts of,
ib. ; eleemosynary, nature of, disposal
of funds of, 471, 473, 478 ; private, right
of visitation in, 472, 473, 475 ; fran-
chises of, 479 ; property of, private
property, 482 ; statutes creating private,
cannot be repealed by legislature, 495 ;
their charters to be considered con-
tracts, ib. ; supposed dangers arising
from the independence of, 498 ; powers
of, beyond territorial jurisdiction of the
authority by which created, VI. 113;
aim of, 123.
Corsica, wages in, II. 26 ; clothing, ib.
Cotton Manufactures, importance of, III.
136 ; of England and the United States,
138 ; extract from Calhoun's speech in
favor of, 349 ; advantages for, in the
South, V 233.
Cotton, remarks of Mr. Moore respecting,
in South Carolina, II 237 ; influence
of its production upon the South and
upon slavery, V. 338.
Courts, opinions of, in respect, to the fugi-
tive slave law, II. 577 ; fixed terms for
holding, V. 520.
Court of Errors of New York, practice of,
III. 168.
Court of King's Bench, judgments of, how
reversed, III. 168.
Crawford, W. H., IV. 422; circular of, re-
specting ad valorem duties, V. 175.
Credit, nature of, IV. 89; alleged dan-
gers of, to liberty, 362 ; essential to
Southern interests, 433.
Credit and Confidence, IV 407.
Credit System, character of, in the United
States, IV. 427, 432 : its excess, V. 28.
Creole, case of, VI 303
Crews of United States merchant- vessels,
rule respecting, V. 146.
Crittenden, J. J., instructions to, in refer-
ence to the McLeod case, V. 130.
Cuba, declaration respecting, III. 207 ;
invaders of, pardoned by Captain-Gen-
eral, VI 516; domiciliation in, 524.
Cube, duplication of, I. 182.
Cumberland Road Bill, approval of, IV.
219; advocated by Mr. Calhoun, 514.
Currency, defined, IV. 270; interference
with, I. 362, IV. 404 ; its derange-
ment, I. 373, 377, II. 15, IV. 20, 238,
soundness of, I. 374 : duty of govern-
ment in respect to. 391, 425, IV 314,
324, 331, 345, 366, 378 ; under the Con-
federation, I. 407 ; constitutional power
respecting, not to be surrendered, 425 ;
condition of, at the close of the war of
1812. II. 10 ; its restoration an ob-
ject of the revolution of 1840, 132;
the power of Congress over, 161, 237,
IV. 22 ; the opinion of Washington and
Madison, II. 237 ; evils arising from its
depreciation, III. 51 ; prediction re-
specting. 542 ; specie basis of, how to
be increased, IV. 100; important ques-
tion respecting, 328 ; cannot be main-
tained by the States of uniform value,
340 ; power of Congress to regulate,
extracts from Mr. ■ Madison's message
in regard to, 370, 426, 459, 461, 462;
state of, in 1838, 441, 445; of the
United States and England compared,
441, 445 ; impracticability of an exclu-
sively metallic, 450, 451 ; alleged ex-
pansion of, in consequence of protective
duties, 529.
Cushing, Thomas, delegate to Congress,
I. 123.
Cushing, Caleb, appointed minister to
China, VI. 467 ; instructions to, respect-
ing his mission, 469.
D.
Dallas, George M., his casting vote on the
tariff bill, II. 468 ; opinion of, respect-
ing the power to coin money, IV. 336.
Dane, Nathan, drafted the Ordinance of
1787,111. 264, 277, VI. 552; apostro-
phe to, V. 425.
Danemora, iron from mines of, III. 142.
Dartmouth College, argument in the case
of, V. 462; merits of its original char
ter, 499.
Davis, Isaac, eulogium on, VI. 601.
Davis, John, referred to, 1. 418.
Davis, J. P., letter of, on the manufac-
ture of hemp and cordage, V. 189.
Davy, Sir'H., his analysis of soils, I. 445.
Dean, Prof. J., on apportionment of rep-
resentation. III. 384, 389.
Dearborn, Gen., resolution respecting elec-
tion of Senators, III. 8.
Debt, public, in 1840, IV. 546; responsi-
bility of administration for, ib. ; abo-
• lition of imprisonment for, V. 23, VI.
533 ; danger of incurring, in conse-
quence of Mexican war, V. 155.
Declaration of Independence, I. 125 ;
authorship of speeches in support of, and
in opposition to, 149 ; foundation of the
political rights of the U. States, II. 146 '
its celebration in Philadelphia, July 4,
1788, 353 ; anniversary of, 599.
612
INDEX.
Dedication, law of, VI. 204 ; English cases
of, 208 ; Boston mode of, 211.
Defender of the Constitution, to whom
belongs the title, I. 326.
Delaware, breakwater in, I. 162
Democracy, questions on the true princi-
ples of, II. 35 ; abuse of the term, 92 ;
policy of Northern, V. 343, 345.
Deposit Banks, remarks on, IV. 235 ;
financial statements of, ib. ; regulations
of, 254 ; insufficient for the regulation
of exchanges, 288.
Deposits, removal of, I. 368, IV. 106,
443 ; effect of, I. 421 ; remarks on, III.
506, IV. 3, 63 ; generally disapproved,
III. 521 ; object of, 544 ; report on, IV.
50.
Deposits of public moneys, law regulat-
ing, I. 369 ; where to be made, IV. 51 ;
power of the Secretary of the Treas-
ury over, 51, V. 48 ; speech on the reg-
ulation of, IV 200 ; requisitions of the
deposit law, VI. 124.
Dexter, Samuel, character of, III. 329.
Dickinson, D S., reply to, V. 109.
Diplomacy of the United States, I 141.
Direct tax, declaration respecting, II. 32.
Disbursing officers, tenure of their office,
IV. 182.
Discrimination in laying duties denied by
South Carolina, III. 497.
Dissolution of the Union, evils of, I. 231 5
sentiments of the South on, V. 429.
Distress, occasioned by the removal of the
deposits, III. 508 ; caused by political
measures, remedy for, IV. 26.
Distribution of the surplus revenue, speech
on, IV. 252.
District of Columbia, power of Congress
in, III. 443, IV. 372; House of Repre-
sentatives resolution respecting slavery
in, 232; remarks on slavery in, 371'.
Diversity in the races of men, II. 211.
Divine Right, a doctrine of the Holy Alli-
ance, III. 70.
Dix, J. A., his vote for the admission of
Texas, V. 343, 345 ; reply to remarks
of, 104.
Domestic Industry, not limited to manu-
factures, III. 129.
Domicile, a right to change, VI 523 : de-
cision of the Supreme Court in respect
to, 523.
Domiciliation in Cuba, provisions relating
to, VI. 524.
Dorr, Thomas W., at the head of the
revolutionary party in Rhode Island,
VI. 218 ; convicted of treason, 234.
Downs, Mr., resolutions offered by, on the
death of Gen. Taylor, V. 407.
Drainage, in England, I. 450.
Duane, W. J., his removal disapproved,
IV. 105.
Duche, Rev. Mr., anecdote of, VI. 162.
Duke of fork, coal mine of, 305
Durfee, Chief Justice, extract from charge
of, VI. 235.
Dutch Loan, approved bv the executive,
IV. 94.
Duty upon imports, the object of the
first petitions presented to Congress,
II. 232, et seq. ; on tea and coffee, to
supply revenue for Mexican war, V.
153.
E.
Eastern States not opposed to the "West,
III. 261.
East India Company, extent of its trad-
ing operations, VI. 113.
Education, effect of its diffusion, I. 41, 306,
403 ; its true aims and purposes, II. 107,
108; in the new States to be encoar
aged by the government, III. 292 ; ten-
dency of the system in Girard College,
VI. 147.
Eldon, Lord, opinion of, in the case of
Bedford charity, VI 170.
Elections, freedom of, I. 263.
Eleemosvnary Corporations, nature of, V.
471, 478.
Electors and the elected, restraints on,
VI 225.
Ellsworth, Oliver, speech on adopting the
Constitution of the United States, III.
475; on the Constitution, 485
Elmore, F. H., resolution of, supporting
Mr. Polk, II. 261 ; his address to Mr.
Webster, 373; tribute to, V. 371.
Embargo, I. 145 ; Mr. Hillhouse's opinion
of, III. 326 ; opposed by Massachusetts
327 ; its constitutionality denied by Mr
Dexter, 329.
Emigration, a common incident, I. 14:
Grecian, 17 ; the extent of, to this coun-
try, II. 538 ; of artisans, English opinion
in respect to, III. 117; England bene-
fited by, VI. 321 ; to Texas, 454.
Employment, the source of a people's
prosperity, V. 227, 231.
England, its ties to the United States,
I. 438 ; agriculture of, 446 ; unsettled
questions with, II. 139 ; increase of its
power, 212 ; exercise of the veto power
in, 336 ; tenacious of protective princi-
ples, 350, III. 107 ; paper system of. and
its effect on prices, 101 ; policy in re-
spect to paper currency, .109 ; warehouse
system of, 116; policy of. in regard to
shipping interests. 147 ; provisions of
register acts of, 148; claim respecting
her colonial trade, 363 ; power of, IV.
110 ; maritime power of, in the late war.
505 ; supposed reference to bankrupt
laws of, by framers of Constitution, V.
7 ; responsibility of the destruction of
the Caroline assumed by, 12S ; com-
INDEX.
6ia
mercial arrangements wit*, egulated,
x36 ; opposed to ad valorem duties,
178 ; representative system of, VI. 223 ;
subjects of, permitted to engage in for-
eign wars, 257 ; law of, respecting slav-
ery, 309.
English Corn Laws, effect of the repeal
of, V. 240.
English Language, its correct use in Unit-
ed States, I. 102.
English Race, its extension, II. 211.
English Revolution of 1688, how effected,
III. 16; organization of government in
the time of, VI. 226.
Evans, Geo., V. 164.
Euclid, geometry of, I. 183.
Europe in the nineteenth century, I 63 ;
her power annihilated in America, ib. ;
effect of the pacification of, in the Unit-
ed States, III. 265 ; distinction in, be-
tween capital and labor, IV. 428.
European Colonization, declaration re-
specting. III. 206.
Everett, Edward, Governor of Massachu-
setts, remarks of, at a public dinner
given to Mr. Webster in Faneuil Hall,
24th July, 1838, I 413; his mission to
England, II. 127; his letter respecting
the northeastern boundary, V. 98.
Ewing, Thomas, moves a resolution to re-
scind Treasury Circular, I. 371, IV. 265;
his plan for a national bank. II. 132.
Exchange, necessity for providing for, II.
135 ; cause of difference in, III. 43, IV.
332 ; rate of, 127 ; influence of Bank of
United States on, 403 ; derangement of,
510, IV. 283, 408.
Exchequer Plan, presented to Congress,
session of 1842, II. 134 ; opinion of Mr.
Webster of, 135.
Executive of United States, extension of
its power, I. 257, 357, IV. 13; its power
over the press, I. 266 ; refuses to exe-
cute a law of Congress, 269 ; change in
the fiscal system effected by, 368 ; diffi-
culty in regulating the power of, II. 87 ;
responsibility of, in respect to foreign
missions, III. 182; money borrowed by,
by, 116; instructions of, in respect to
France, 167; doctrines of the Protest
respecting, 136; power defined, 186, V.
283 ; cannot interfere directly with ju-
dicial proceedings, VI. 252 ; communi-
cations to Congress by, not the subject
of diplomatic correspondence, 492.
* Experiment" with the currency, its oper-
ation, I. 389 ; result of, III. 537, 545,
IV. 326, 413; universality of distress
occasioned by, IV. 17 ; failure of. 35.
Exportation, as affected by protection,
IV. 537.
Exports from the United States, III. 98.
Ex post facto laws, provision of the Con-
stitution regarding, V. 493.
vol. vi 52
Expunging Resolution, Constitution vio-
lated by, IV. 295.
Extradition of Criminals, provisions in
treaty of Washington respecting, V.
140; imitated by foreign governments,
142; provided for, VI. 354; in the ab-
sence of treaty stipulations, a matter of
comity, 405.
Eyre, Lord Commissioner, opinion of, re-
specting chartered charities, V. 476.
F.
Faneuil Hall, dinner at, I. 163; proceed
ings of public dinner at, 413; speech
delivered in, 24th October, 1848, previ-
ous to the Presidential election. II. 449.
Farrow, Mr., his address to Mr. Webster,
on behalf of the students of South Car-
olina College, May, 1847, II. 395.
Featherstonhaugh, Mr., retains the Mitch-
ell map, II. 144 ; publications of, 152.
Featherstonhaugh and Mudge, report of,
V. 91, 108.
Federalist, authors of, I. 199 ; the indepen-
dence of the judiciary, III. 31.
Festival of the Sons of New Hampshire,
7th Nov., 1849, II. 497.
"Fifth Monarchy Men" of Cromwell's
time, II. 582.
Fillmore, President, address to, II. 620;
communication from, announcing death
of General Taylor, 10th July, 1850, V
407.
Finances, state of, during Mr. Polk's ad-
ministration, II. 355 ; deplorable condi-
tion of, III. 49 ; source of the difficulties
in, IV. 238 ; speech on the state of the,
in 1841, V. 40.
Financial Policy, propositions respecting,
III. 512; of General Jackson, 517.
Fire at New York, duties on goods de-
stroyed by, to be refunded, I. 379.
First Commandment of the Decalogue
the fountain of all revealed truth, VI. 153.
Fisheries, effects of the tariff of 1846
upon, II. 467.
Fishing Bounties, paid in irredeemable
bills, IV. 378.
Fitch, John, exclusive right of steam navi
gation granted to, VI. 5, 16.
Fitzsimmons, Mr., an advocate for protec-
tive duties, III. 499
Flagg, George, his painting of the Land-
ing of the Pilgrims, I. 51.
Flax, production and manufacture of, air
affected by tariff of 1846, V. 192.
Florida, acquisition of, I. 355, II. 551, V
339; admission of, into Union, V. 285.
Foot's Resolution, Mr. Webster's first
speech on, III. 248 ; second speech on,
270; last remarks on, 343.
Foreign Capital, effect of, IV. 261.
ei4
INDEX.
Foreign Labor, preference given .0, by the
tariff of 1846, V. 18b, 202.
Forsyth, John, moves to reduce duty on
cotton, III. 298 ; his explanation of the
" experiment," 536 ; correspondence with
Mr. Fox respecting the northeastern
boundary, V. 87, 89.
Fortification Bill, speech on the loss of,
IV 205.
Fortifications of United States, II. 613
Forty-bale Theory, result of the discussion
of, IV. 529.
Foster, John, extract from his Essay on
the Evils of Popular Ignorance, VI. 163.
Fox, H. S., correspondence of, with Mr.
Forsyth respecting the northeastern
boundary, V. 87, 89 ; his letter respect-
ing Alexander McLeod, VI. 24.
France, subdivision of landed property, I.
36, 52 ; remarkable prediction respect-
ing its government, 37 ; patronage of the
press in, by the government, II. 90 ;
popular instruction in, 108 ; invasion
of Spain by, III. 78 ; entrance of the
allies into, its effect on prices, 100;
conference of the Minister of, with Con-
tinental Congress, 197; alliance with,
declared void, 458; her complaints
against the United States, IV. 170;
letters of marque and reprisal recom-
mended, 228 ; articles of convention of,
with England, relative to African slave-
trade, V. 149.
M Franchises," definition of term synony-
mous with "liberties,'1 V. 479.
Francis the First, remark of, to the Hun-
garian Diet, VI. 495.
Franklin, Benjamin, I 27, 126 ; his letters
to the Count de Vergennes, II. 143 ;
meeting at the house of, 167; on pro-
tection, IV. 510.
franklin, State of, constitution of, and its
provisions in relation to currency, IV.
520.
Frauds on the Revenue, V. 185.
Free Blacks from the North, treatment of,
by South Carolina, V. 360, 432.
Freehold Suffrage, examples of, VI. 241.
Free Institutions, the work of time, II. 392.
Free Press, its importance, I. 264.
Free Soil Party, platform of, II. 433.
Free States, remonstrances of, against the
Mexican War, V. 254.
Free Trade, its consequences, Ireland an
example, II. 351 ; opinion of English
Parliament in respect to, III. 111.
Freight, rates of, III. 105, 147; of iron
from Sweden, 144; on articles manufac-
tured and unmanufactured, V. 217, 223.
French Chambers, occurrence in, I. 223;
a member rejected from, for giving
pledges to constituents, V. 424.
French Government, bill of exchange on,
protested, IV. 72.
French and Indians, New Hampshire set
dements attacked by, II. 501.
French Spoliations, the history of, II 347,
IV. 160; bill for the indemnification of
the sufferers under, vetoed by Mr. Polk,
II. 348 ; speech on, IV. 152.
Friends, Society of, political preferences of,
II. 475 ; character of, IV. 44 ; their
moderation commended, VI. 561.
Frothingham, Richard, his History of the
Siege of Boston, I. 58, 81.
Fugitive Slave Bill, remarks on present-
ing, V. 373.
Fugitive Slave Law of 1850, II. 558; the
two objects of, 576; more favorable to
the fugitive than the law of 1793, ib. ;
treasonable proceedings in reference to,
577.
Fugitive Slaves, rights of the South, and
duties of the North, in regard to, V.
354 ; few cases of reclamation of, 433,
VI. 560; early admission of the justice
of restoring, 434 ; provision for the sur-
render of, VI 552.
Fugitives from justice, provisions in re-
gard to, in treaty of Washington, V.
139, 142.
Fugitives from labor to be surrendered,
II. 550.
Fulton, Robert, his right to navigate the
North River and Sound, IV. 464.
Fulton and Livingston, right of steam
navigation granted to, VI. 6.
Fur Trade of Hudson's Bay Company,
value of, V. 103.
G.
Gage. Gov , his rejection of John Adams,
I. 122.
Gaines, Major, his account of New Mexi
co, V. 295, VI. 570.
Gallagher, W. D., his account of the
growth of Western trade, II. 606.
Gallatin, his course respecting the removal
of deposits, IV 66.
Gardner, George, letter of, respecting duty
on sulphuric acid, V. 200
Gardiner, R. H , and others, letter to. VI.
566.
Gedney, Lieut., Amistad taken by, VI.
402.
General Government, should not inteifere
with the distinct duties of the State
governments, II. 94; the only authority
that can furnish a uniform currency,
163 ; prohibited from all interference
with slavery in the States, V. 311 ;
powers of, 387.
Georgia, her patriotism, II. 403 ; the abun
dance of her resources, 404.
German Emigrants, taxes on, VI. 414.
German ZoU-Verein, object of, VI. 4u9
INDEX.
6 15
Ghent, commissioners of, by whom in-
structed, III. 191 ; treaty of (1814), in
regard to northeastern boundary, V. 84.
Gibbons, Thomas, anecdote of, II. 399.
Gibbons v. Ogden, the case of, II. 402 ;
remark of Judge Wayne respecting,
399 ; argument in the case of, VI. 3.
Oilman, Nicholas, II. 507
Girard, Stephen, suit of his heirs, VI.
133.
Girard College, provision of Girard's will
respecting, VI. 135 ; scheme of, pre-
sumes that Christianity is not necessary
to morality, 152; no Sabbath in, 155.
Glass, policy of duty on. III. 136.
Goodhue, Jonathan, II. 205
Goodridge, improbability of the robbery
of, V. 446, 456.
Gorham, Benjamin, I. 166
Government, its nature and constitution,
I. 35; difficulty of establishing, 73 ; its
permanency, 77, 205; its objects, 190,
283, III. 13, IV. 314, 330 ; its influ-
ence on the moral and religious feelings
of a people, II. 106 ; connection with
property. III. 15; absolute or regulated,
the question of the age, 65 ; sovereignty
of, a European idea, 469 ; immunity of
individuals acting under the orders of,
VI. 264.
Government, American, its origin and
character, I. 35, 203, III. 321 ; its pro-
tection to persons and property, 206 ;
conflict between general and State, 209 ;
its organization by Washington, 228 ;
in respect to education, 305 ; its duties,
346, IV. 518 ; its power over State
banks, III. 53 ; protection afforded by,
to tHe West, 251 ; powers of, in re-
spect to internal improvement, 291 ;
its relations to individuals not to be
dissolved by State authority, 477 ; its
judicial coextensive with its legislative
power, 483; its effect on credit, IV. 90 ;
its duty respecting the currency, 331 ;
systems of, mode of changing, VI. 224;
national and State limited, 224.
Government Press, its power, II. 90
Grafton, N. H , speech on the opening of
the Northern Railroad to, II. 409
Graham, Major, report on communication
between Maine and Canada, V. 109.
Grain, demand for. in England, V. 231 ;
consumption of, in Massachusetts, 232.
Granite, its use in architecture, I. 189.
Grants, included under contracts, V. 493 ;
of lands by legislature, for religious pur-
poses, cannot be rescinded, 483.
Greece, its interesting condition, I. 75 ;
liberty of, II. 600 ; our obligations to,
III. 61; condition of, 78; insurrection
in, 85 ; congress of, its authority, 86 ;
has accomplished much, 89; propriety
of the appointment of agents to, 90.
Greeks, limited political knowledge of, I.
15 ; sympathy for, III. 90.
Green Dragon Tavern, resolutions at, II.
169.
Griswold, George, toast proposed by, in
honor of Mr. Webster, II. 203.
Grotius, his opinion of the object of gov-
ernment, III. 14.
Guizot, speech on the doctrine of instruc
tion, V. 423.
H.
Hall's Stream, secured to N. Hampshire,
V. 113.
Hall, Dudley C, and others, letter to, on
the Union, VI. 563.
Hamilton, Alexander, his services, L
198.
Hamilton, Gen. James, speech of, at a din-
ner given to Mr. Webster, II. 384
Hamilton, J. A., and others, letter to, VI.
582.
Hancock, J., recommends association for
protecting navigation, I. 301; presides
over Congress, 132 ; signature to the
Declaration, 137; notice of, II. 204.
Hanover, treaty with, VI. 412.
Hapsburg, House of, its possessions, VI.
496.
Harbor Bill, opinion of the executive re-
specting, I. 270 | object of, II. 338 ; ve-
toed by President Polk, 337 ; his rea-
sons, as expressed in his messages, 340 ;
copy of the bill, with its several ob-
jects, 359.
Harbors, the power of making, II. 344.
Hardin, Col., his account of Mexican ter-
ritory, V. 298, VI. 570.
Harrington, quoted, I. 37 ; object of his
Oceana, III. 14.
Harrisburg Convention, nomination by,
II. 73 ; memorial from, IV. 40.
Harrison, Wm. Henry, confidence in, II.
52; popularity of, 101 ; opinion of, re-
specting the Caroline and the impris-
onment of McLeod, V 123, 133.
Hartford Convention, design of, III. 314.
Harvard College, I. 29 ; object of its foun-
dation, 43.
Havana, execution of Americans at the,
VI. 508, 510.
Haven, Messrs. John, and others, letter to,
VI. 543.
Hayne, Robert Y., eulogium on, II. 387 ■
speaks on Foot's resolution, III. 248,
270 ; rejoinder to, 343 ; his votes on
internal improvement, 301
Haywood, of N Carolina, V. 212.
Heber, Bishop, extract from, II. 394.
Hemp, growth of, to be encouraged, III
145 ; effect of increased duties on, 146 ;
objections to increased duty on, 24JA ;
616
INDEX.
effect of the proposed tariff" of 1840
on the manufacture of, V. 189.
Hendricks, W., upon the claims of Indi-
ana to public lands, V. 390.
Henry the Seventh, colonies planted in the
reign of, I. 93 ; his internal policy, 93.
Henry, Patrick, II. 85.
Hermitage, supposed visit of its occupant
to the Senate Chamber, IV. 483.
Highway, modes in which land becomes
public, VI. 186.
Hillard, Mr., his remarks in Massachu-
setts Senate commended, V. 356.
Hillhouse, Mr., his opinion respecting the
embargo. III. 326
History, God's providence in human af-
fairs, II 399.
Hoar, Samuel, V. 432.
Holland, arbitration of the king of, II.
150 ; its commerce with the United
States, III. 121.
Holmes, Oliver VV , quoted, II. 616.
Holt, Lord, extract from, respecting the
power of visitors, V. 473.
Holy Alliance, its origin, III. 67 ; princi-
ples of, 69, 74, 84, VI. 228.
Home Market, effect of manufactures on,
III. 106
Home Valuation, compared with foreign,
V. 171.
Homestead, attachment to, IV. 432
Hooker, his eulogy on Law, VI. 122.
Horner, II. 134.
House of Representatives, its duty respect-
ing foreign missions, III. 184; first ap-
portionment of, 384.
Hudson's Bay Company, value of its fur
trade, V. 103.
Halsemann. J. G., letter of, to Mr. Web-
ster, Sept. 30, 1850, respecting Mr
Mann's mission, VI. 488.
Hume, his remark on the administration
of justice, I. 208.
Hungarians, arrival of, in the United
States, VI. 498.
Hungary, her efforts for freedom, II. 514.
Hunt, B. F.. speech of. at a dinner of the
New England Society, II 378.
Huskisson, II. 134 ; in respect to the na-
ture of commerce, III. 121.
Immigration, American system in respect
to, II. 539 ; encouraged by Mexico in
her wars, VI. 455
Immortality, yearning of the soul for, VI.
155.
Impeachment, power of, vested in the
Senate, from analogy of English Con-
stitution, V. 505 ; law governing, 512 ;
in cases of, there must be a breach of
a known law, 515 ; definition of the
term. 513 ; nature of proceedings in,
ib
Importations, letter addressed to the
tradesmen and manufacturers of Massa
chusetts, by the mechanics of Boston,
relative to, II 193, 194; by whom
made, 459 ; extravagant desire for, IV
555 ; increase of, by change of tariff,
V. 162 ; means of paying for, 165.
Imports, excess of, over exports explained,
III. 119; duties on, alleged to fall on
exports, IV. 528; classes of, V. 218;
tables of, 219.
Impressment, correspondence with Lord
Ashburton in respect to, II. 541 ; how
affected by the correspondence connect-
ed with the treaty of Washington, V.
145; rule of the United States respect-
ing, VI. 325 ; letter of Mr. Webster to
Lord Ashburton respecting, 318 ; letter
of the Secretary of State, 356.
Imprisonment for Debt, views respecting,
V. 22 ; letter respecting, VI. 533.
Imprisonment of free blacks at the South,
V. 432
Inauguration of Washington, I. 201.
Independent Treasury, II. 77.
India Cottons, largely imported, VI. 512.
Indian Treaties, I. 240, V. 44, 50.
Indian Wars, nature of the service, V.410.
Indiana, its growth, I. 401 ; internal im-
provements of, 402; claims a right to the
public lands within the State, V. 390.
Indians and French, dangers from, 11.501.
Indictments, precision in, V. 514.
Indorsement, practice of, checked by bank-
rupt bill, V. 29.
Indorsers, not to be preferred, V. 29.
Ingersoll, C J , reply to speech of, V. 133.
Ingham, Mr., resolution of, respecting ad
valorem duties, V. 175.
Insolvents, unfortunate position of, V. 20.
Insurance, rates of, III. 105.
Insurance Companies, VI 124.
Insurrection in the States, duties of the
general government in respect to, VI.
231.
Interference, by force, a violation of inter-
national law, III. 74 ; right of, claimed
at Laybach, 71 ; not to be inferred from
the expression of opinion, 91 ; absti-
nence from, by the United States, VI.
496.
Internal Improvements, in New England,
I. 34 ; in United States, 167 ; appropri-
ations for, constitutional. 169, 347 ; con-
stitutionality of, denied by Gen. Jack-
son, 256; influence of, 310; principles
to be regarded in appropriations for,
405; power of Congress over. II. 238;
objections of Mr. Polk to, 340 ; prog-
ress of, III. 99 ; when attention was
directed to, 296, IV. 513; general ad-
vantage of, III. 289 ; at the West, op
INDEX.
617
position of the South to, 293 ; a doc-
trine of South Carolina, 297 ; Mr. Cal-
houn's question respecting, 302 ; neces-
sity of appropriations for, IV. 249, 506,
552; effect of, IV. 261.
Internal Trade, one of the most impor-
tant interests, II. 7 ; its movements, 8.
Invoices, fraudulent, V. 176 ; remarkable
provision respecting, 181 ; statutes re-
specting, 183
Ireland, an example of the impolicy of
free trade, II. 351 ; cause of her misfor-
tunes, I. 299, V. 227.
Irish, emigration of to America. II. 538.
Iron, a product of Pennsylvania, needs
protection, II. 261 ; effects of the tariff
of 1846 on the manufacture of, in Penn-
sylvania, 469, III. 137; effect of in-
creased duties on, 146 ; trade in, as af-
fected by ad valorem duties, V. 203 ;
labor employed in manufacturing, 207.
Irrigation, in England, I. 452.
J.
Jackson, Gen., letter of, to Mr Monroe,
I. 153; opinions respecting tariff, 242;
refuses to approve bill for the payment
of claim of Massachusetts for militia
expenses, 254 ; his exercise of the veto
power, 267 ; his course relative to nul-
lification, 292; intercourse with, 345;
called a representative of the whole
American people, 360 ; policy in regard
to the Bank of the United States, 364 ;
inconsistent in his opinions respecting
currency, 421 ; sole opponent of Mr.
Adams, not elected to overthrow the
currency, his opinion of the constitution-
ality of the United States Bank, II. 11;
cause of his change of views, 12; in-
volved in a controversy with the United
States Bank, 43, 452*, IV 12; his re-
election, II. 62 ; character and policy of,
315 ; and James K. Polk, the difference
of their policy on the subject of pro-
tection, 316; on duties on imports,
317- Mr Webster's support of the ad-
ministration of, in the case of South
Carolina nullification, 585 ; vetoes the
Bank bill, III. 416 ; protest of, IV. 103 ;
admits the duty of the government to
provide a national currency, 351 ; in
favor of a judicious tariff, 477 ; his ef-
forts to settle the northeastern boun-
dary, V. 84.
James the First, signal instance of his ty-
ranny, IV. 120.
James the Second, resisted in New Eng-
land, I. 28.
Jay, Chief Justice, his treaty with England,
V. 338 ; remark of, Vl/222 ; eulogium
on, 583 ; extract from his writings, 584.
52*
Jefferson, Thomas, his death, I. Ill;
birth and education, 124; elected a
member of the First Congress, 125, 140 ;
Governor of Virginia, 139 ; Notes on
Virginia, ib. ; minister abroad, 140 ;
Secretary of State, ib. ; Vice-President,
141 ; President, ib. ; Manual, ib ; his
old age, ib. ; founds University of Vir-
ginia, ib, ; opinion respecting removals
from office, 259 ; his correspondence re-
specting the Confederation, III. 473 ;
rule of. respecting citizenship, VI 325.
Jewish Talmuds, VI. 165
Johnson, Mr. Justice, his opinion in the
Fulton case, IV. 465.
Johnson, Hon. R. M., his efforts for the
abolition of imprisonment for debt, V. 23.
Johnston, Samuel, III. 474.
Jones, Sir William, extract from, II. 602.
Joseph the Second, VI. 494.
Judge, the elevated character of an up-
right, II. 391.
Judges, should be constantly employed,
III. 160, 173.
Judicial decisions, protest against disre-
gard of, II. 49.
Judiciary of United States, its functions,
I 208; vacancies in, how filled, 212;
independence of, 214; Washington's
regard for, 228 ; anticipated change in
276 ; its mode of action, III 7 ; inde
pendence of, 26, 31 ; remarks on the
1826, 150; history of the, 151, 156
plans for improving, 158 ; main suppoi
of the government, 163; extent of its
powers, 482, V. 130 ; Madison's opinion
respecting, III. 483 ; Pinckney's opinion
of the, 484 ; bill for its organization in-
troduced by Ellsworth, 486
Juries, mode of addressing. II. 393.
Jury, trial by, not provided for in fugitive
act of 1793, VI 557.
Justice, the great interest of man on
earth, II 300; administration of, the
great end of human society, 391.
K.
Kearney, Gen., takes possession of New
Mexico, VI. 482.
Kendall, G. W., case of, VI. 423, 429.
Kennistons, defence of, V. 441 ; historical
note on the trial of, ib.
Kent, Chancellor, remarks at a dinner m
New York, I. 193 ; eulogized, 214.
Kentucky, accumulation of business in
the United States courts in, III. 157;
complaints of slaveholders in, VI. 562.
King, Gov., proclamation of, referred to,
VI 218
King, Rufus, resolution of, in 1785, re
garding slavery, III. 283; on impress
ment. VI. 218^323.
618
INDEX.
Kinney, Messrs. William, and others, of
Staunton, Virginia, letter to, VI 573.
Kossuth, Louis, demanded of Turkey by
the Emperor of Austria, II. 614; his
communication to the American charge
d'affaires, VI. 498; application for the
release of, 591.
Ko-tou, instruetions respecting, VI. 470.
Knapp, J. F., argument on the trial of,
VI. 41.
Knowledge, diffusion of, in United States,
II. 614; progress of, during the cen-
tury, IV. 437.
Labor, respectability of American, II. 175,
V. 226 ; the source of wealth, II. 259 ;
how to be protected, III. 103 ; different
prices of, 141 ; the great interest of the
country, 534; diminished price of, IV.
19; relation between, and capital, in the
United States, 428 ; its ramifications,
434 ; necessity of employment of, 536 ;
advantages of high wages of, 537 ;
gives value to manufactured articles,
V. 211.
Laborers, character of Northern, V. 360 ;
on the public works, VI. 542.
Lafayette, at Bunker Hill, I. 58, 69 ; no-
ticed, 85.
Land, its subdivision favorable to liberty,
I. 37 ; price of, in England and Mas-
sachusetts, 445.
Landing at Plymouth, II. 201.
Land Titles, judicial decisions respecting,
III. 171
Lands , Public, appropriated in aid of in-
ternal improvements, I. 169 ; distribu-
tion of proceeds of, 363 ; inconsistent
legislation respecting, II. 178; disposi-
tion to be made of, 541, 542, III. 250 ;
whence obtained, I. 350, III. 253 ; the
crown, 254 ; Northern and Southern
mode of disposing of, 263 ; policy in
respect to sales of, I 352, 353 ; doctrine
of appropriations from, for local im-
provement, III 291 ; reduction of price
favored by New England, 294 ; aug-
mented sales of, IV. 261 ; large settle
ments on, 393 ; objection to auction
sales of, without preemption rights, 396 ;
right of preemption to actual settlers
on, 391 ; remarks on the graduation of
the price of, 523, 526; estimated in-
crease of sale resulting from reduc-
tion in price, V. 155; proceeds of, to be
devoted to the colonization of the free
blacks, 364 ; control of a nation over,
389, 393 ; decision of Supreme Court,
upon authority of United States over,
395, 402; taxation of, by States, 405.
Langdon, John, descendants of, II. 507.
Lathrop, Messrs. F. S , and others, New
York, letter to, VI. 577.
Law, the profession of, II. 390 ; the basis
of public liberty, 392 ; Mr. Webster's
acknowledged indebtedness to the pro-
fession of, 394; defined, VI. 38
Law of Nations, its universality, VI. 122.
Law of the Land, defined, V. 487.
Laws, executive opinions in respect to, I.
269 ; resistance to, recommended by
South Carolina, III 324 ; validity of,
not to be determined by the motives foi
their passage, 496.
Laybach, circular of sovereigns at. Ill
69, 202, VI. 228, 495.
Lay preaching and lay teaching, VI. 148.
League, defined, III 457.
Lebanon, N. H., opening of the Northern
Railroad to, 17th Nov., 1847, speech ol
Mr. Webster on the occasion, II, 414
Lee, Richard Henry, resolution of the 7th
of June, 1776, I. 125.
Legal Currency, speech on, III. 48.
Legislation, state of society to be regarded
in, III 138; necessary to give effect
to the Constitution, 175 ; for conquered
country, not in the power of the execu-
tive, V. 263, 268 ; will of the people to
be ascertained by, VI. 227.
Legislative day, duration of, IV. 218.
Legislature, tendency of, to encroachment,
III. 11, 29 ; its two branches to be
checks on each other, 10, 12; cannot
rescind grants, V. 483.
Legislatures, restrictions on, V. 500.
Lexington, I. 68.
Liberties, defined, V. 479.
Liberty, love of religious, I. 1 1 ; the crea-
ture of law, II. 393 ; exists in propor-
tion to wholesome restraint, 393 ; n-
fluenoe of commerce on, IV. 91 ; char-
acteristics of, 122 ; contests for, 133.
Lighthouses, Washington's opinion re-
specting, II. 239.
Lincolnshire, Pilgrims in, I. 13.
Linseed Oil, manufacture of, statistics re-
specting, V. 191.
Literature, its influence, I. 49 ; advantages
of a love for, 143 ; advance of the Unit-
ed Srates in, II. 611.
Livermore, Samuel, II. 507.
Liverpool, Lord, II. 134.
Livingston, Chancellor, his services, 1. 126,
201, VI 6.
Loans, power of States to contract, VI. 537.
Local association, its power, II. 277 ; dif-
ferences, the bane of the country, 93 ;
institutions for local purposes, and gen-
eral institutions for general purposes,
207 ; partialities, denouncement of, IV.
' 498.
Localisms, cannot destroy our system oi
government, II. 526.
Log Cabin, origin of the term, II. 29
INDEX.
619
Lombardy, elements of Christian religion
taught in, VI. 163.
Lopez, instigates the invasion of Cuba,
VI. 513 ; .intercession for survivors of
his expedition, 515.
Louisiana, acquisition of, I 145, 355, V.
137, 339 ; Jefferson's opinion in respect
to, II. 551 ; convention with France
respecting, IV. 177 ; admission of, into
the Union, V. 285.
Louisville Canal, remarks on the purchase
of the stock in, IV. 2-17.
Lowndes, Mr., character of, IV. 422.
Lumber, trade in, at Albany, IV. 18.
Lunt, Henry, letter of, on tbe laying of the
corner-stone of the Capitol by Wash-
ington, II 621.
Luther v. Borden, questions presented by
the case of, VI. 231.
Luther's Reformation, I. 94.
Luxuries, duties on, diminished by tariff
of 1846, V. 237.
M.
MacDuffie, his opposition to Western
settlements, III. 267 ; speech on inter-
nal improvements referred to, 299.
Machinery, not labor-saving but labor-
doing, IV. 439.
Madison, James, I. 199 ; his public ser-
vices, 202 ; knowledge of the Consti-
tution, 204, III. 305, 319, IV. 301 ; on
nullification, I. 205 ; respecting removal
from office, 258, II. 89 ; on impeach-
ment, I. 359; on a national bank, 391,
IV. 342, 483, II. 17 ; the duty of Con-
gress respecting the currency, I. 420, II.
63 ; messages of 1814 and 1815, on the
currency, 10, 17, III 529, IV. 370;
on coining of money, II. 153; duties
on imports, 236, III 500; on the ju-
diciary, III. 483 ; instructions of, to Mr.
Pinkney, IV. 175 ; wisdom of, 421 ; ad-
mission of new States. V. 285 ; on slav-
ery, 334.
Maine, tenure of its judiciary, III. 29 ; on
French claims, IV. 154 ; border diffi-
culties in 1839, V 93; agreement with
Gen. Jackson's administration, in 1832,
97 ; patriotism of. in settlement of the
northeastern boundary, 101, VI. 273;
advantages gained by the settlement of
the northeastern boundary, V. 102 ; in-
terests of navigation in, 224 ; legisla-
• ture of, convened, VI. 275.
Maine Commissioners, Mr. Webster's let-
ter to, VI. 279.
" Majority must govern," a republican
principle, III. 486.
Mann, A. D., instructions to, VI, 499.
Mansfield, Lord, opimon of, on colleges,
V. 47 ; on chartered rights, 470.
Manufactures, Washington's regard tor, I.
228; act of 1824 respecting, 297,111.
131 ; in Virginia, II. 195 , first law for
protection of, III. 503.
Manufacturing Interests, not local, II.
178.
Map of Graham, Talcot, and Renwick, V.
108.
Maps, singular discovery of, II. 144 ; con-
troversy upon, 149.
Marathon, battle of, I 7.
Marcv, Gov., in relation to Texan boun
dary, II. 327.
Maritime Rights, letter to Lord Ashburton
respecting, VI 303.
Market, comparative advantages of for-
eign and home, IV. 535, V. 232.
Marriages, validity of, VI. 307.
Marsh, Geo. P., letter to, respecting Kos-
suth, VI. 591.
Marshall, Chief Justice, anecdote of, II.
334 ; opinion of, in the case of the Unit-
ed States Bank v. Deveaux, VI. 114.
Marshall, J. G., address of, I. 400.
Marshfield, speech at, Sept. 1, 1848, II.
425 ; case of non-user in, VI. 208
Marston, Stephen W , account of the
Kenniston case furnished by, V. 441
Martial Airs of England. IV. 1 '0.
Martial Law, nature of, Vi
Martin, Mr , opinion of, r - „eting the
judiciary, III. 483 ; his objections to the
Constitution, 499.
Maryland, its settlement, I. 60.
Mason, Jeremiah, obituary remarks of Mr
Webster, II. 479.
Mason, J. M ., commendation of, V. 337.
Massachusetts, her participation in the
English Revolution, I. 28 ; commerce
of, 29 ; claim on general government
for militia expenses, 253 ; her duty,
277 ; soil, 445 ; agricultural capacity,
458 ; boundary between, and Nova Sco-
tia, II. 146 ; products of other States
consumed by, 245 ; natural productions
of, 404 ; character of legislation in re-
spect to property, III. 19 ; cedes her
public lands to the United States, 255 ,
policy respecting the tariff, 305 ; eulogi-
um on, 317, IV 295, V. 435; opposes
the embargo, III. 327 ; form of its rati-
fication of the Constitution, 476 ; bread-
stuffs produced by, 536, V. 232 ; prod-
ucts of, in 1837, IV. 435 ; silver plate
in, 437 ; general prosperity of, 439 ; cor-
respondence with, respecting the settle-
ment of northeastern boundary, V. 99 ;
commissioners appointed by, 101 ; as
affected by treaty of Washington, 113,
137 ; resolutions of, on Mexican war,
255 ; opposed to acquisition of terri-
tory, 256 ; her interest in the settlement
of the slavery question, '426 ; attach-
ment of, to the Union, 435.
620
INDEX.
Massachusetts Charitable Mechanic Asso-
ciation, I. 81, 83.
Mass Meeting at Saratoga, 19 Aug., 1840,
speech at, II. 5 ; at Albany, 27 Aug.,
1844, speech at, 219.
Mathematics, its objects, I. 180.
Mayflower, compact signed in her cabin,
I. 22 ; object of her voyage, 84 ; im-
portance of the voyage of, to human
society, II. 525.
McCall, Lieut.-Col., instructions to, VI
480.
McCleary, I. 70 ; fell at Charlestown, II.
505.
McCulloeh, Mr., on the importance of
high wages, II. 176 ; opinion of, respect-
ing Ireland, V. 229.
McDowell. Gov James, V. 358.
McKinley, opinions of, concerning public
lands, V. 392.
McLane, Louis, his amendment to the
resolution respecting the Panama mis-
sion, III. 178 ; instructions to, in re-
spect to colonial trade, II. 435, III. 357.
McLeod, Alexander, the case of, II. 119,
120, VI 247; arrest of, in New York,
V. 116, 120, 133; letter of Mr. Web-
ster respecting, 125 ; proceedings in re-
spect to, VI. 254, 266.
Maysville Road, bill for, vetoed, I. 267.
Mechanical Philosophy, defined, I. 178;
its history, 181.
Mechanics Institution of Boston, lecture
before, I. 177.
Melville, Major, removal of, from office, I.
260.
Members of Congress, appointment of to
office, I. 263.
Memphis Convention, resolutions and re-
port of, II. 343.
Mercantile Classes. II. 205.
Mercantile Profession, its distinguished
representatives, II. 204.
Merchants' Meeting in Wall Street, New
York, 28th September, 1840, speech de-
livered at, on the currency and State
banks, II 55.
Merchants of Boston, benevolence of, 1.431.
Merchant Vessels, national territory, VI.
320
Merrill, Benj., his introductory note to the
argument on the trial of J. P. Knapp,
VI. 41.
Merrimack River, valley of, II 417.
Message of Gen. Jackson, 1829, his views
of banking, I. 365 ; of J. Q. Adams,
respecting northeastern boundary, V.
84 ; of Millard Fillmore, announcing
the death of Gen. Taylor, V. 407 ; re-
specting the Caroline, VI 293 ; trans-
mitting the treaty of Washington, 347 ;
respecting the right of search, 376, 378 ;
relating to China and the Sandwich
islands, 463.
Metallic Currency, inconsistency of the
administration respecting, IV. 450.
Methodist Church v. Remington, decision
in the case of, VI. 175.
Methodist Episcopal Church, division of,
V. 331.
Mexican War. territory acquired by, un
fit for slavery, 11. 555 ; its declaration
by Congress anticipated by the Presi
dent, 329 ; expense of, V. 155; objects
of, 157, 254, 271,273,280,328; remarks
on, March 1st, 1847, 253 ; worthlessness
of territory acquired by, 294.
Mexico, cause of war with, II. 319; war
with, 326; government of, 327; condi-
tion of, 327 ; explanation of vote on the
treaty with, 443, 554 ; necessity of
granting supplies for prosecuting war
with, V. 152; embassy to, recommend-
ed, 157, 159 ; unreasonable conduct of,
158; warlike efforts of, 213 ; legislation
for, by the executive, 263, 268 ; appro-
priations of treasures of, 264, 268 ; peace
with, on what conditions to be obtained,
266, 280 ; treaty with, 265 ; forced to
cede territory, 273, 281 ; character of
country and people, 298 ; relations with,
VI. 422 ; conciliatory policy recom-
mended to, 424 ; objections to the re-
lease of Kendall by, 431 ; conquest of
Texas by, hopeless, 434 ; treatment of
Americans, 435 ; American captives in,
439 ; her encouragement of foreign im-
migration, and her wars with Spain and
Texas, 455 ; American hostility to its
power, 456 ; responsibility of, for the
war, 457.
Middlesex Canal, by whom planned, II.
410.
Miles, W., letter of, on tariff of 1846, July
20th, 1846, V. 224.
Military Academy, remarks on the appro-
priation for, IV. 207.
Military Achievements, their influence in
republics, II. 429.
Military Road in Maine, misconceptions
respecting, V. 107.
Militia, plan of the Van Buren adminis-
tration respecting the training of, II. 48;
of the States, power of Congress over,
95 ; its adaptation to the defence of the
country, 613.
Mill, description of, for sawing, I. 184.
Mineral Lands, sale of, IV. 526.
Mines, right of government to, V. 404.
Minimum Principle in the tariff of 184€
opposed by Massachusetts, V. 240.
Minimum Duties, opposition to, IV. 259.
Mirabeau, remark of, II. 92 ; respecting
words, III. 453.
Miscellaneous Letters. VI. 533.
Misrepresentations of the South and North
V. 428, 435.
Missionaries in Georgia, I. 269.
INDEX.
62]
Mississippi, navigation of the River, II.
339 ; secession in the State of, 609 ;
valley of, future centre of the country,
impossibility of dividing the river in
case of dissolution of Union, V. 362.
Mitchell's Map, used by Mr. Oswald, II.
143 ; copy found among the papers of
Mr. Jay, 144
Mixed Currency, most useful and conven-
ient, II. 56 ; danger of, 56.
Mobile Bar, II. 239.
Mobs, assembling of, universal," VI. 509.
Modern Civilization, slavery referred to
tribunal of, V.304.
Molasses, effect of tax on. III. 236 ; tax,
how to be appropriated, 239.
Monastic Institutions abolished, VI. 170.
Money, scarcity of, II. 451 ; a universal
representative, IV. 87 ; design of, 455 ;
executive use of, without appropriations
by Congress, V. 264.
Monmouth, associations connected with,
I. 220.
Monroe, Colonel, proclamation of, referred
to, VI. 480.
Monroe, James, his administration, I.
157 ; quotation from message respecting
Greece, III. 63 ; respecting foreign in-
terference, 201, 202.
Monterey, militia at, II. 335.
Montesquieu, on separating the depart-
ments of government, III. 11 ; opinions
on government, 14-
Montgomery Road, bill for, vetoed, I.
267.
Moore, amendment to the Bank Bill, III.
407.
Mothers, vocation of, II. 107.
Morris, Robert, II. 204.
Morris, Commodore, V. 117.
Morse, Professor, II. 419.
Morton, Perez, eulogy on Gen. Warren,
1.57.
Motion, its universality, I. 178.
Mousseline de Laine Manufacture, as af-
fected by tariff of 1846, V. 198.
Mudge and Featherstonhaugh, report of,
V. 91 ; value of survey of, 107.
Municipal sovereignty, Vl 121.
Murder, two classes of, VI 75.
Murphy, correspondence in respect to
Texas referred to, V. 345.
N.
Napoleon, domestic policy of, III. 132.
Nashville Convention, V. 363 ; character
of the address of, 429.
Naval Architecture, improvement in, I.
187.
Navigation, proceedings in Boston re-
specting, I. 301 ; condition of that of
the United States, 104, 111, 133 ; regu-
lation of, included under that of com-
merce, IV. 464 ; of Hudson River and
Long Island Sound, exclusive claim of
Pulton to, by steam, 464 ; interests of,
in connection with domestic manufac-
tures, V. 217. See Commerce.
Navy, United States, admirable elements
of, II 612 ; Mr. Webster's early support
and defence of, in the war of 1812, IV.
605.
Navy Island, invasion of, VI. 297.
Neapolitan Indemnity, payment of, antici-
pated, I 379.
Netherlands, King of, arbitration between
United States and Great Britain, V. 84.
Neutrality, adherence of the government
to, II 201, VI. 449 ; no breach of, to
send minister to Congress of Panama,
III. 197 . duties of, VI. 258 ; course of
the United States in respect to, 259 ;
observed by the United States, 449 ;
municipal regulations of the United
States in respect to, 451
Neutral Nations, duties of, prescribed by
the law of nations, VI. 451.
Newark, prosperity of, injured, IV. 333.
Newburvport, character of its citizens, V.
445.
New England, first settlement of, I. 5, 9,
II, 210; population of, in 1720 and
1820, 30 ; American Revolution com-
menced in, 33 ; union of Colonies in,
64; its support of Washington, 172,
III. 308; obedient to the laws, I. 173;
its early attention to manufactures, 187;
common schools of, 403 ; example of
a mechanic of, II. 23 ; its gifts to Ameri-
ca, 207 ; estimated imports from other
States of the Union, 289 ; contrasted
with South Carolina, 325 ; interest in
Western improvements, 340; the part
performed by, in the Revolution, 503,
III. 229 ; in the French War, II. 503 ;
symbolized by the Mayflower, 525 ;
condition of, in 1824, III. 97; early
opposition to a protective policy, 229,
262, IV. 509, V. 187 ; forced into man-
ufactures, III. 230; and Western settle-
ments compared, 251 ; liberal policy
towards the West, 265 ; Hayne's attack
on, 286, 308 ; when, how, and why, in
favor of measures favorable to the
West, 293 ; opposition of, to the em-
bargo, 327 ; change in the policy of,
V. 240 ; youths of all denominations
educated at colleges of, VI. 161.
New Granada, treaty with, in regard to
Isthmus of Panama, V. 317.
New Hampshire, the home of Mr Web-
ster in, II. 30 ; the social condition of,
418 ; festival of the sons of, 7 Nov.,
1849, 497; form of its ratification of
the Constitution, III. 477 ; advantages
gained by, in the treaty of Washington,
622
INDEX.
V. 113 ; acts of the legislature of, in
regard to Dartmouth College, V. 460,
4G8, 470, 484, 493 ; claim of, VI. 349.
New Jersey, conduct of the House of Rep-
resentatives in the case of, II. 47, 100 ;
its declaration respecting the puhlic
lands, III. 255 ; sagacity of, in enlarg-
ing the powers of the Commissioners,
in 1786, IV. 495 ; act of, in respect to
steam navigation, VI. 7
Newmarket, stoppage of manufactures at,
IV. 87.
New Mexico, unfitted for slavery, II. 555 ;
formation of States from, V. 291 ; na-
ture of the country, V. 296, 379, VI.
569 ; character of its people, V. 296,
299, 382 ; slavery excluded from, by
nature, 350, 352, 421 ; necessity of de-
fining boundaries of, 376, 379, 417 ;
portions of territory claimed by Texas,
377 ; necessity of a government for,
378.
New Orleans, account of excesses in, VI
508.
New States, agriculture in, I. 207 ; duty
of government towards, 208, III. 251 ;
public lands claimed by, I. 350 ; admis-
sion of, 356.
New York, dinner at, I. 191 ; reception of
Mr. Webster at, in 1837, I. 337; the
natural features of the State, II. 535 ;
its vote necessary to the admission of
Texas, 553 ; opinion of, in respect to
a national bank, IV. 23 ; remarks on
presenting a petition from the mer-
chants of, 298 ; its opinion of the
sub-treasury system, 415, 417; conse-
quences of the great fire in, V. 31 ; ad-
vantages gained by the treaty of Wash-
ington, 110, 112 ; border difficulties
of, in 1842, 140 ; ownership of lands
in, 395 ; laws of, in regard to steam
navigation, VI. 7 ; its grant to John
Fitch, 16; law of 1845 respecting con-
vention referred to, 229.
New York Committee, letter to, on the
character of Washington, Feb. 20, 1851,
VI. 586.
Niles, J. M., his amendment respecting
the duty on coal, IV. 304 ; votes for
the admission of Texas, V. 343, 345.
Non-combatants, presumption respecting,
VI. 427.
Non-intercourse Acts, explanation of, IV.
166 ; doctrine of, how impaired, VI.
259.
North, complaints of, against the South,
V. 353, 359 ; sentiments of, ib. ; inter-
est of, in regard to territory acquired
from Mexico, 420, 426 ; prejudices of,
on subject of slavery, 432,
North Carolina, effect of molasses tax on,
III. 238.
Northeastern Boundary, remarks on,
made at a meeting of the New York
Historical Society, 15 April, 1843, II.
145, 153; history of the question, V.
81 ; proposal to settle, 97 ; delay in the
settlement of, VI. 274 ; advantages of
the proposal, 278, 350. See Ashburton;
Treaty of Washington.
Northern Democracy, policy of, V. 256.
Northern Men, unjust slanders against, II.
93, III. 281.
Northern IJailroad, importance of, II. 415.
Nova Scotia, boundary between, and Mas-
sachusetts, II. 146 ; coal trade of, V.
210.
Nullification, Madison's letter on, 1, 205 ;
how supported, 210; dangerous tenden-
cy of, 272 ; not to be suppressed by
illegal means, 275 ; the principle of,
295 ; right of, denied, III. 320 ; never
proposed in New England, 332 ; prac-
tical operations of, 337,459,461, 491,
504 ; modes of, 493 ; reasons for, in
South Carolina, 495 ; consequences of
its success, 504 ; exposition of, IV. 478.
O.
Oath, nature of an, VI. 168.
Obscure Origin, not a matter of reproach,
II. 29, 30
Odor of nationality, application of tho
term, II. 59.
Office, removals from, I. 258, 333 ; nomi-
nations to, rejected, 262 ; conductors of
the press appointed to, 265 ; no man
possesses a right to, III. 4 ; creation of,
without authority of law, IV. Ill ;
power of Congress respecting the tenure
of, 196.
Offices are public trusts, I. 335, IV. 183.
Ogden, A., his exclusive right to naviga-
tion by steam in New York, VI. 6.
Ogden, D. B., letter to Mr. Webster, I.
340; remarks at New York, 342.
Oirden and Saunders, case of, VI. 24.
Ohio, suits pending in United States
courts. III 158; astonishing increase
of, 552 ; in respect to the fugitive slave
law, VI. 562.
Ohio River, 1. 169 ; obstructions in, IV. 248.
Old Colony Club, I. 3.
Old Thirteen, their public lands, I 350 ;
appeal to, II. 609.
Ontario County, description of, IV. 17;
its rapid growth, 27 ; memorial from, 27.
Opening of the Northern Railroad from
Franklin to Grafton, N. H., 28th Aug.,
1847, speech of Mr. Webster on the oc-
casion, II. 409 ; opening to Lebanon,
N. H., 17th Nov., 1847, speech of Mr.
Webster on the occasion, 414.
Ordinance of 1787, benefits of, III. 263,
278 ; drawn by Nathan Dane, 277 ; iti
INDEX.
623
lofty spirit, 282 ; organizing Northwest
territory, V. 335 ; unanimity of opinion
upon, in regard to slavery, 336, VI. 552.
Oregon, controversy respecting, II. 320 ;
resolution passed by the Baltimore
Convention relative to, 321 : remark-
able characteristic of the settlement of
the boundary of, 322 ; vote on the es-
tablishment of the Territory of, 445 ;
remarks on, V. 60, 63, 70 ; probable
result of negotiations concerning, 67 ;
claim to, put forward by President Polk,
71 ; necessity of settling boundary of,
72; forty-ninth parallel recommended
as the northern boundary of, 73. 76.
Ormichund v. Barker, case of, VI. 168.
Orphans, education of, in Girard College.
VI. 136
Oswald, Mr., map used by, II. 143.
Otis, James, his speech on writs of assist-
ance noticed, I 121 ; eulogium on, VI.
596.
Outrages at New Orleans disapproved of,
VI. 509.
Over-production, remarks on, V. 165.
Oxford, meeting of Agricultural Society
at. I. 435.
Pacific Ocean, progress of the people to-
wards the, II. 212 ; importance of a
connection between the Atlantic and,
V. 313, 316, 322
Pacific Republic, prediction concerning,
V. 387.
Paine, Robert Treat, delegate to Con-
gress, I. 123, 137.
Paine, Thomas, attack on Christianity,
VI. 159.
Pakenham, Mr., letter to Mr. Buchanan
on the adjustment of the Oregon ques-
tion, II. 323.
Palmerston. Lord, remark of, on the
treaty of Washington, V. 105 ; on the
Caroline, 128.
Panama, history of Congress at, III. 195;
ministers to the Congress of, not to be
instructed by the House of Represent-
atives, 189.
P;mama, Isthmus of, its neutrality guar-
antied, V. 317.
Panama Mission, speech on, III. 178.
Panama Railroad, remarks on, V 313 ; ad-
vantages of, 318 ; estimated cost of, 319.
Paper Currency, remarks on, II. 162;
evils attending irredeemable, III. 53,
397 ; power of a State to issue, doubt-
ed, 413; liability to depreciation, IV.
89 ; distinctions of, 269.
Parable of the prodigal son, its simplicity
and power, II. 609 ; of the poor widow
referred to, VI. 157.
Parliament, power of, over the Colonies,
I. 128 ; not named in the Declaration
of Independence, II. 512.
Parmenter, Mr., votes for the tariff of
1842, II. 130.
Parthenon, mournful immortality of, I.
231
Parties, origin of, III. 309, IV. 181 ; vio-
lence of, III. 311.
Party Spirit, Washington's exhortation
against, I. 229 ; its tendency, II. 42 ;
dangerous to a free government, 281.
Paterson, N. J., condition of, IV. 86.
Patronage, dangers from executive, IV.
179; effect of, 180, I. 333.
Patterson, W., propositions of, in con-
vention. III. 473.
Payments, public, not to be made in notes
not equivalent to specie, IV. 379, 383;
extract from appropriation bill of 1836
in regard to, 379 ; necessity of uniform-
ity in. 381.
Peace, the policy of the United States, II
382.
Pecuniary pressure (1824), causes of, III.
100.
Peel, Sir Robert, extract from his speech
relating to the settlement of northeast-
ern boundary, V. 95.
Pekin, desirable for the United States
mission to reach, VI. 470.
Penn, William, "great law" of, VI. 175.
Pennsylvania, its loyalty to the Constitu-
tion, I. 212; its need of a protective
tariff, II. 257, et seq. ; its debt, 261 ;
natural advantages of, 310 ; political
contest in 1800, 313; tenure of its ju-
diciary, III. 29 ; proposes to amend
the Constitution, 353 ; in favor of the
renewal of the Bank charter, 421 ; her
part in establishing the Constitution,
IV. 47 ; interest in manufactures, ib ;
coal mines of, 306 ; position in regard
to the tariff of 1846, V. 204; iron and
coal trade of, as affected by ad valorem
duties, 203-210; of Christian origin,
VI. 145; public policy of, 174; course
in regard to slavery, 561.
Pensions, act concerning (1828), I. 166;
payment of, in specie, IV. 379, 383, 385 ;
illegal payment of, 384 ; compensation
received by agents for paying, 386
389.
Peonism, existence ol, in New Mexico,
V. 341.
People, source of power, III. 321, 323,
VI. 221 ; right of, to free discussion,
IV. 120; in what respect sovereigns,
VI. 22 ; their will to be ascertained by
legislation, 227.
Perkins, Thomas H., eulogized, I. 85
Petition, object of the first, to Congress,
II. 232.
Philadelphia, Whig Convention at, 1st
624
IJSDKX.
October, 1344,11. 249; position of, 310;
proceedings of citizens of, IV. 3.
Pickering, Timothy, amendments of, to
Mr. Calhoun's bill for internal improve-
ments, IV. 514.
Pilgrim Fathers, I. 7, et seq. ; hardships
of, II. 520 ; progress of their descend-
ants, 525.
Pilgrim Festival in New York in 1850,
speech of Mr. Webster at, II. 519.
Pinckney, H. L., letter of, on the tariff, II.
267.
Pinckney, Thomas, opinion of judicial
power, III. 484 ; negotiations of, with
Spain, IV. 175 ; remarks on the seventh
article of the treaty with Spain, VI.
529
Pirates, improper application of the term,
VI. 256.
Pitt, proposes the issue of one-pound
notes, III. 399.
Pittsburg, Mr. Webster's reception at, I.
285 ; letter of citizens of, 287 ; address
of Mayor of, 288 ; interest in manufac-
tures, 297 ; visit to, mentioned, IV. 45.
Pledges of candidates for office, V. 424.
Plymouth, oration in commemoration of
the landing of the Pilgrims at, 22d Dec,
1820, I. 3 ; 22d Dec, 1843, II. 203.
Poinsett, Mr., his conference with the Mex-
ican minister, III. 205.
Political Inconsistency, IV. 480, V. 186.
Political Power, importance of defining
its extent, I. 313.
Political Parties, dissolution of old, I.
153 ; union ticket supported by, ib. ; cir-
cumstances affecting, 156 ; defined, ib.
Political sentimentalitv, illustration of, IV.
481.
Polk, James K , on the tariff, II. 240 ; ef-
fect of his election on the tariff. 269 ;
on the annexation of Texas, 285 ; on
duties on imports, 316; difference be-
tween, and Andrew Jackson, 316, 319 ;
the Mexican War, the result of the ad-
ministration of, 319; course of, on the
Oregon question. 321. et seq., V. 71 ;
veto of the harbor bill, 337 ; French
spoliation bill vetoed by, 348 : avowal
in respect to acquisition of territory,
328 ; message respecting New Mexico,
VI. 482.
Poor, the, and the Rich, III. 532.
Popular Government, foundation of, III.
489.
Popular Knowledge, progress of, IV. 438.
Popular Opinion, power of, IV. 102.
Popular Power, beauty of its regular ac-
tion, VI. 226.
Portugal, progress retarded by bad gov-
ernment, IV. 90.
Post-Office Department, money borrowed
by, IV. 116, 149; remarks on affairs
of, 148 ; alleged change in contracts by.
149 ; extra allowances by, 150 ; removal
of postmasters by, ib.
Preemption rights, bill U grant, IV. 391;
advocated, 302 ; not to be limited to
native-born citizens of the United
States, 394. See Lands, Public.
Prescott, Judge James, defence of, V. 502.
Prescott, William, I. 33. 65, 70, 85.
President, duties of, II. 426 ; answers of
Congress to the, III. 64 ; cannot de-
cide the constitutionality of laws, 433 ;
oath of, IV. 131 ; responsibility of,
143 ; custom of, on the last duy of a
session of Congress, 217; not the sole
representative of the people, 144, 245;
former practice of, to address Congress
in person, 115 ; duty of, respecting offi-
cial communications, 222 ; consequences
of unlimited confidence in, 228; reasons
for calling an extra session, 354; in
respect to the public debt (1841), V.
41, 46, 52 ; duty of, in respect to New
Mexico, VI. 486.
Presidential Protest, speech on, IV. 103.
Press, influence and position of conduc-
tors of, I. 264 ; the government of the
country should be separated from, II.
90 ; violence of the Northern and South-
ern, V. 358 ; freedom of, essential to
free government, ib. ; rebuke of Mr.
Huisemann's charge against, VI. 497.
Preston, Hon. W. C., President of South
Carolina College, II. 395.
Prices, reduction of, III. 102.
Prince of Orange, III. 71.
Prisoners, treatment of. VI. 437.
Privateering, interests of United States
opposed to, III. 212.
Probate, duties of Judge of, in early
times, V. 505.
Proclamation of Gen. Jackson commend-
ed, I. 293
Proscription, exercised by Gen. Jackson,
I. 260.
Protection, incidental, II. 256 ; an object
of the formation of the Constitution,
232; to be limited. III. 116; inexpe-
diency of immoderate, 130 ; first advo-
cates of, IV. 309 ; competition pro-
duced by, 534; effect of, on Southern
interests, 538.
Protective Policy, denounced by General
Jackson, I. 241 ; upon what founded, II.
287 ; constitutionality of, when first
. questioned, III. 503 ; interests guarded
by, V. 186.
Protest, against disregard of judicial de-
cisions, II. 49 ; of Gen. Jackson re-
ferred to, IV. 47 ; doctrines of, 129, 131,
145; character of, IV. 126.
Providence Railroad Company, argument
in the case of, VI. 185.
Prussia, its lead in the Customs Union,
VI. 410.
INDEX.
625
Public, definition of the term, VI. 209
Public Debt, lauds pledged for payment
of, III. 259.
Public Opinion, its power, I. 75, III. 77.
Public Policy, how established, VI. 176.
Puffendorf, III 68.
Pulszky, Francis, Secretary of State of
Hungary, VI. 498.
Punishment, object of, VI. 59.
Putnam, General, I. 33, 65.
R.
Railroad, first in America, I. 63.
Railroads equalize the condition of men,
II. 411 ; idle prejudices against, ib.; di-
rectors and projectors of, not enthusias-
tic lovers of landscape beauty, 412;
their dependence on way travel and
transportation, V. 321.
Raleigh, Sir W-, referred to, I. 94.
Rand, Edward S., and others, citizens
of Newburyport, Mass., letter to, 15th
May, 1850, VI. 551.
Randolph, Gov., on domestic slavery, III.
279.
Randolph, Jefferson, proposition of, re-
specting slavery, V. 357.
Randolph, John, motion of, on slavery in
the District of Columbia, IV. 232.
Ratio of representation, III. 382.
Reception of Mr. Webster at Wheeling,
I. 381 ; at Madison, Indiana, 395, 397 ;
at Boston, 30th Sept., 1842, II. 109;
at Columbia, S. C, May, 1847, 395 ; at
Savannah, 26th May, 1847, 398; at
Buffalo, N. Y., 22d May, 1851, speech
delivered on the occasion, 544.
Red-line map, II. 143, 153.
Regiments, object of raising additional,
V. 278.
Register, attendance of, on probate courts,
V. 523.
Register Acts, provisions of English, III.
148.
Regulate, meaning of the word as used in
the Constitution, II. 342.
Regulations of trade, II. 166.
Religion, an indispensable element in any
great human character, II. 490 ; a com-
munication and a tie between man and
his Maker, 522 ; necessity of, to man,
615; the only conservative principle,
VI. 165.
Religious Instruction, supported by prop
erty, III. 18.
Religious Disputes, warmth of, V. 331.
Removal of deposits, predicted effect of,
I. 389; a cause of embarrassment, III.
509 ; object of, 544 ; remarks on, IV.
3; consequences of, 12, 110; tendency
to increase executive power, 13 ; rea-
sons for, considered, 63 ; its effect on the
vol. vi. 53
Bank, 79 ; on internal trade, 86 ; respon-
sibility of, assumed by the President,
106 ; agreement of Mr. Calhoun and
Mr. Webster respecting, 467.
Removal from office, power of, I. 258 ;
decision of Congress respecting, 259 ;
to whom the power belongs, 335 ; power
in the Constitution in regard to, II. 89 ;
argument for, from precedent, III. 432 ;
act of Congress in 1789 respecting,
IV. 185, 190, 193, 196, 198: mode of,
189 ; incident to the power of appoint-
ment, 190, 192, 198; effect of a nomi-
nation on, 191 ; not often necessarily
sudden, 194; expediency of assigning
reasons for, 196.
Representation, American system of, I.
40 ; in connection with government,
222, VI. 223 ; popular governments in
the United States established on the
basis of, II. 601 ; by towns, peculiar to
New England, III. 20 ; to be fixed by
mutual concession, 24 ; advantage in re-
spect to, enjoyed by the Slave States,
281 ; report on apportionment of, 369 ;
and taxation considered, 374 ; not sus-
ceptible of perfect equality, 375 ; Prof.
Dean's letter and table respecting ap-
portionment of, 389 ; its basis, suffrage,
VI. 223.
Representative Government, a new ex-
periment, I. 223 ; in Europe, II. 512.
Representative Svstem of England, origin
of, VI. 223.
Representatives, commencement and ter-
mination of term of office of, IV. 217 ;
duty of, 121.
Representatives, House of, their resolution
on war with Mexico, V. 274.
Republican Government, capable of ex-
isting over a great country, II. 220;
salutary tendency of, 221.
Repudiation, condemned, II. 138.
Resolutions, adopted in New York, I.
339 ; adopted at the Andover Whig
Convention, 9th Nov., 1843, II. 157 ; of
the town of Boston, 169; passed in
Massachusetts, relative to the tariff of
1846, 365 ; adopted at Buffalo, respect-
ing revenue, protection, and customs,
463 ; of the Baltimore Convention, rel-
ative to American industry, 464 ;
adopted by the Suffolk Bar on the
death of Mr. Mason, 480 ; in respect to
public lands, referred to, 542 ; for the
appointment of an agent to Greece, III.
60 ; respecting Panama mission, 178 ; of
Mr. Foot, in regard to public lands, 248,
270; respecting slavery, adopted by First
Congress, 280 ; of Mr. Calhoun, 448 ;
adopted at Columbia, IV. 31 ; of Sen
ate, of 28th March, 1834, quoted, 47
relating to money borrowed by the Post-
Office Department, 151 ; of 1816, exphv
626
1ISDEX.
nation of, 244 ; respecting specie circu-
lar, 265 ; of 1816, provisions of, respect-
ing payment of public dues, 274 ; of
Mr. Webster, relating to tbe Common-
wealth Bank of Boston, 377 ; respect-
ing the collection of the revenue. 488 ;
of the House of Delegates of Virginia
in 1786, in respect to uniform regulations
of commerce, 493; of city of Boston
commented on, 509 ; of Mr. Ingham,
respecting ad valorem duties, V. 175 ;
respecting slavery, from State legisla-
tures, 355 ; of Indiana, in respect to the
public lands, 390 ; of Mr. Webster, on
the announcement of the death of Gen.
Taylor, 407 : offered by Senator Downs
on the death of Gen. Taylor, ib. ; of
citizens of Washington, respecting Mr.
Webster's speech on the Girard will
case, VI. 134; of the House of Repre-
sentatives respecting Mr Thrasher, 521.
Retaliation, acts of, suggested by Mr.
Hulsemann. and reply thereto, VI. 504.
Retrospective laws, character of, V. 484 ;
prohibited, 485 ; extract from Chief
Justice Kent, in regard to, ib.
Revenue, views respecting, I. 353 ; di-
minished by receiving irredeemable pa-
per. III. 45 ; ought not to be collected
in irredeemable paper money, 57; di-
minished receipts of, in 1834, IV. 85;
collection of, through banks, 469 ; pub-
lic, power of Congress to deposit in
banks, 484 ; to be increased by duties
on luxuries, 553; from public lands
very fluctuating, 555 ; reductions of. V.
49 ; new sources of, to be provided for
prosecuting war with Mexico, 152.
Revere, Col., his character, I. 303 ; remark
of, 430, II. 173.
Revolution, right of, III. 320; defined,
456,459.
Revolution, American, its causes, 24 ;
commenced in New England, 33 ; com-
memorated by Bunker Hill Monument,
61 ; survivors of, addressed, 66 ; char-
acter of the state papers of, 69 ; peculiar
principle of, 9? ; officers and soldiers of.
pensioned, 161 , state of the country at
the conclusion of the war of the, II 223 ;
originated in a question of principle,
IV. 109.
Revolution, English, its effect on the Col-
onies, I. 28 ; commenced in Boston, ib. ;
gave independence to the judiciarv, III.
28.
Revolution in Greece, speech on, III. 60.
Revolution of 1840, its objects. II. 129.
Revolutionary Officers, speech on the bill
for relief of, III. 218; defence of, 219;
arguments for the relief of. 222.
Rhode Island, her interest in the settle-
ment of the slavery question, V. 426 ;
argument respecting government of,
VI. 217 ; proceedings of the Dorr gcr-
ernment. 233 ; new constitution of, 234 ;
benefits arising from agitation in, 240 ;
error of charter government of, 241.
Ricardo, quoted, III. 529.
Rich, who are the, in this country, II. 22 ;
and poor, III. 532.
Richmond, Va., speech of Mr. Webster
at, II. 83; remarks to the ladies of. 5th
Oct., 1840, 105.
Riflemen, mounted, comparative expense
of, V. 155.
Right of search, VI. 329 ; statement of the
British claim to. 335 ; not distinct from
the right of visit, ib. ; by what means
effected, 338.
Rights, legal, not confined to matters of
pecuniary profit, V. 481.
Rio Grande, maintained by the United
States to be the western boundary of
Texas, II. 329, 330 ; effect of ordering
the United States army to, 333 ; worth-
lessness of the valley of the, V. 295.
Ritner, Gov., letter of, alluded to, II. 292.
Rivers of the United States, character of,
IV. 248.
Rives, W. C, his amendment respecting
the Panama mission. III. 178; consti-
tutional opinions of. 467.
Road, either public or private, VI. 189
Roads and Canals, extract from Calhoun's
report on, III. 351.
Robbins, Rev. Chandler, suggests the cel-
ebration of the anniversary of the land-
ing of the Pilgrims, I. 3.
Robbins, Senator, eulogium of Washing-
ton, I. 232.
Roberts, Hon. Jonathan, II. 277.
Robinson, Rev. John, I. 12, 14.
Robinson, Mr., speech of, in English Par-
liament, referred to, III. 149.
Roman or civil law, II. 394.
Rome, policy of, I. 17; colonies of, ib. ;
fall of, 18;* her government, 40; liberty
of, II. 600 ; classification of its people,
III. 14; power in, unconnected with
property, 15.
Ropewalks in the city of Boston, VI. 186.
Rotation of crops in England. I. 446.
Rouse's Point, secured to United States
by treaty of Washington, its importance
as a military post, V. 110, 115; ascer-
tained to be in Canada, VI. 278; re-
linquishment of, by Great Britain, 349.
Ruiz and Montes, imprisonment of, VI.
404.
Russia, responsibility of emperor of, to
the tribunal of the world, II. 514; in-
stigated the Greeks to rebellion, III. 81 ;
American trade with, 122; price of la-
bor in, 142 ; addressed by the United
States respecting the war of Spain
with her colonies, 210.
Rutland, the Duke of, letter to, VI. 540.
INDEX.
627
s.
Sabbath, observance of, a part of Chris-
tianity, VI. 155.
Safety Fund System referred to, IV. 94.
St. Asaph, Bishop of, II. 596.
St. John, free navigation of, V. 102, VI.
278, 349.
Salem, magnanimity of its citizens, I. 67.
Salvage, principles of, early established by
Spain, VI. 402.
Sandwich Islands, interesting condition
and locality of, VI. 463 ; letter respect-
ing the independence of, 477.
San Jacinto, battle of, VI. 449.
Santa Fe, letters respecting American cit-
izens captured at, VI. 422.
Sargent, Henry, his painting of the Land-
ing of the Pilgrims, I. 51.
Savannah, reception of Mr. "Webster at,
26 May, 1847, II. 398.
Scammel, Col., falls at Yorktown, II.
505 ; monument to the memory of, 506.
Schools of New England, I. 41.
Science, application of, to art, during pres-
ent century, II. 810, IV. 438.
Scio, massacre at, III. 84.
Scotland, farming in, I. 450; suffers from
a dependent judiciary, III. 28 ; its com-
merce and agriculture as compared with
Ireland, V. 230.
Scott, Gen., eulogium on, V. 277.
Search, alleged right of, as affected by
correspondence accompanying the treaty
of Washington, V. 143 ; identical with
right of visit, VI. 336.
Secession, of individual States an absurd
ity, II. 591 ; of Virginia, improbability
of, 608 ; defined, III. 454 ; impossibility
of a peaceable, V. 361, VI. 568 ; propo-
sitions for, 588.
Selectmen, duty of, respecting highways,
VI. 189.
Senate, of Massachusetts, remarks on
basis of, III. 8.
Senate of the United States, a body of
equals, III. 274; its opposition to Gen.
Jackson, IV. 103, 229 ; constitutional
provisions respecting its journal, 293.
Sewall, Jonathan, I. 149.
Seward, Gov., course of, in the McLeod
case, V. 133, 138.
Seybert, Dr., his opinions respecting dis-
criminating duties, III. 246.
Sheep, immense number in England, I.
449.
Sherwood Forest described, I. 452.
Shipping Interest, prosperity of, II. 23;
erroneous views in regard to, III. 246.
Silk, manufacture of, in England, III.
113.
Silks, importance of duty on, IV. 553 ;
and wines, duty on, V. 50, 53.
Silsbee. Nathaniel I. 165.
Slaveholding States, advantages of, in
respect to representation, III. 281, V.
57 ; rights of, in regard to new territo-
ries, 308, 310.
Slave Labor, its relation to free, V. 309 ,
increase of, 316.
Slavery, its character, I. 356, III. 279 ;
recognized by the Constitution, I. 356,
II. 549 ; interference of Congress with,
294 ; abolition of, in Pennsylvania, 271 ;
not introduced by the generation that
achieved American independence, 573 ;
petitions for abolishing, presented to
First Congress, III. 279 ; in District of
Columbia, remarks on, IV. 230, 371 ;
unanimous opinion of the North, re-
specting, 232 ; peculiarity of American,
V. 304 ; exists by local laws, 309 ; dis-
cussion of, in regard to California and
New Mexico, 328 ; sentiments of Mr.
Madison on, 334 ; changes of opinion
in respect to, 337 ; character of all the
territory of the United States fixed be-
yond control by government, 340, 381,
VI. 536 ; excluded from California and
New Mexico by nature, V. 350, VI. 569 ;
effect of Abolition societies at the North,
V. 357 ; mode of extinguishing, 364 ;
consistency of Mr. Webster's course in
regard to, 384 ; adjustment of the ques-
tion by compromise, 420 ; English law
respecting, VI. 309.
Slaves, emancipation of, in District of
Columbia, IV. 375.
Slave Territory, acquisition of, how to be
regarded, V. 259.
Slave Trade, its character, I. 45; proceed-
ings of the House of Representatives
respecting, III. 184 ; convention of
1845, between France and England, re-
specting, 144 ; correspondence relating
to, VI. 290; American policy respect-
ing, 368, 374.
Smith, Gen., his vote on the bank question,
III. 430.
Smith, Mr., of South Carolina, advocates
protective duties, III. 501.
Smith, Hon. Truman, speech of, V. 297, 423.
Smith, Hon. Hugh N., letter of, respecting
New Mexico, VI. 548.
Smithsonian Institution, establishment of,
H. 617 ; not a charity, VI. 173.
Soule, P., reply to, in respect to public
lands and the boundaries of California,
V. 388.
Sound Dues at Elsinore, VI. 406.
South, rights of the, to be maintained,
II. 547, III. 354; preponderating influ-
ence of, V. 339 ; complaints of, against
the North, 353.
South America, its revolutions, I. 75 ,
early Spanish colonies in, 76 ; combi-
nation of European sovereigns against,
III. 76
628
INDEX.
South American Republics, effect of their
establishment, III. 192; trade with, V.
220.
South California, nature of the country
V. 398 ', its opposition to slavery, 400.
South Carolina, nullification threatened
in, I. 239 ; protective duties on hemp
advocated by, II. 237 ; ancient union
of Massachusetts with, 376, 379 ; in re-
spect to internal improvements, III. 297,
304 ; attack on, disclaimed, 313 ; eulo-
giumon, 316; in 1775 and 1828, 325;
convention in, recommends resistance
to the laws, 325 ; claim of, to decide an
alleged violation of the Constitution,
474 ; rights of minorities in, 488 ; ad-
vocates protective duties, in the First
Congress, 501 ; the tariff of 1816, IV.
502.
Southern Confederacy, impossibility of,
V. 562.
Southern Democracy, policy of, V. 257.
Southern Slavery, a domestic policy, III.
279.
Southern Union Men, character of, V. 430.
Sovereignty, nature of, as applied to
States, V. 389.
Spain, French invasion of, III. 78 ; effect
of her internal policy, 132 ; her wars
with the South American States, 194 ;
asks the cooperation of the Holy Alli-
ance, 202 ; its progress retarded by bad
government, IV. 90 ; relations with the
United States, 391, VI. 514; decisions
of her tribunals acquiesced in by the
United States, 403 ; consul of, at New
Orleans, under the protection of treaty
stipulations, 509 ; rights of subjects of,
in the United States, 511 ; royal decree
of, respecting domiciliation, 524.
Specie, its use, I. 375 ; unusual call for,
III. 101, 125 ; inability of the govern-
ment to pay its dues in, IV. 383 ; prin-
ciples which govern the import t f, 532.
Specie Circular, I. 370 ; reasons for issu-
ing, 371, IV. 263 ; operation of, I. 387 ;
speech on, IV. 265.
Specie Payment, suspension of, by the
banks, IV. 324. See Banks.
Spence's Anecdotes, quotation from, III.
14.
Stael, Madame de, remarks of, II. 504 ;
her reply to Bonaparte, 107.
Standish, Miles, I. 8.
Stark, Gen. John, I. 65 ; reminiscences
respecting, II. 502.
State, American idea of, VI. 222.
State Banks, issues of, II. 58 ; their num-
bers, 67; local character of, 162, III.
396, 524, IV. 255 ; objects of, III. 47 ;
distrust of, 530 ; alarming increase of,
IV. 22 ; scheme respecting, 44 ; in-
capacity to furnish a general currency,
203.
State Credit, national credit affected by,
II. 179.
State Debts, assumption of, by general
government, II. 10, 69, 71; aggregate
amount of, 68.
State Executives, power of, reduced, III.
10.
State Interposition, destructive of the
powers of Congress, III 481.
State Law. ex-territorial power of, VI. 116.
State Laws, revision of, by Congress, III.
484.
State Legislatures, instructions from, to
be discouraged, V. 356.
State Loans, constitutionality of, VI.
537 ; security of, 539.
State Rights Party, declaration of Mr.
Calhoun respecting, IV. 469 ; policy of,
483.
State Sovereignty, limits of, III. 322.
State Securities, attack of the administra-
tion on, II. 95.
States, power to issue a paper currency
questioned, III. 413; taxing power of,
limited, 445 ; alleged concurrent powers
of, VI 12 ; sovereign powers exercised
by, 121.
Steam, its use, I. 186.
Steamboats, general use of, VI. 4.
Steam-power, as an engine of improve-
ment, II. 404, 405, 411.
Stiles, Mr., correspondence of, relating to
Hungary, VI. 497.
Stillingfleet, argument of, respecting vis-
itors, V. 475.
Story, Mr. Justice, eulogium on, by Mr.
Webster, before the Boston bar, II. 297 ;
obligations of English lawyers to, 299 ;
universal sentiment of grief for, ib. ',
martial law defined by, VI. 240.
Strogonoff, declaration of, to the Porte,
III. 84.
Stuart, Prof. Moses, speech of Mr. "Web-
ster at Andover dedicated to, II. 158.
Sturges v. Crowninshield, decision in the
case of, VI. 26.
Sublime Porte, application to, for the re
lief of Kossuth, VI. 592.
Sub-treasury, remarks on the provisions
of, II. 18, IV. 410; operation of, II
456, IV. 458 ; speech on, Jan. 31, 1838.
IV. 402 ; opinion of, in New York,
415, 417; second speech on, 424; in-
consistent with the issue of treasury
notes, V. 156; remarks on, 244.
Suffrage, the basis of representation, VI
223.
Sugden, Sir Edward, on ambiguities, VI.
198.
Sullivan, William, eulogized, I. 84.
Sultan, proclamation of, III. 86.
Supreme Court of the United States, its
decision nullified in Georgia, I. 239,
269 ; its functions, II. 402, III. 161, 163;
INDEX.
629
number of its judges an advantage, 163,
175 ; its decision on the constitutionality
of a bank, 435 ; its decision in the case
of Fulton, IV. 464 ; on public lands
within the States, V. 395, 402 ; on dedi-
cations, VI. 212; on the duties of State
officers, 556
Surplus Revenue, proposed distribution
of, II. 69 ; distribution of, as a settled
practice, dangerous, IV. 256.
Talcott, Capt, report of, respecting the
disputed territory, V. 102, VI. 277.
Tallmadge, Judge D. B , reviews the case
of McLeod, V. 129, VI. 266.
Taney, Secretary of the Treasury, 1833,
deposits removed to State banks by, II.
21.
Tariff, of 1824, how passed, I. 298; of
1828, 164; of 1832, 240; Jackson's
opinion of, 242; supported by (1824),
244 ; opinions respecting, 166, III. 323 ;
favors every interest of the country, II.
174, 177 ; policy of, 287 ; necessary for
defence against foreign competition,
351; of 1846, resolutions passed in
Massachusetts relative to, 365, 368 ; ef-
fect on South Carolina, 460 et seq. ;
of 1828, defects of, III. 235, 240; ad-
vantage of, to the wool-grower and
wool-manufacturer, 241 ; of 1816, sup-
ported by South Carolina, 297, 502, IV.
512; bills of 1842, and 1846, extract
from, in regard to undervaluation, 181,
183 ; of 1824, opposed by Massachu-
setts, 241 ; protective, alleged to have
been overthrown in 1833, by State in-
terposition, 475, 478; judicious, Gen.
Jackson in favor of, 477 ; Mr. Webster's
course in relation to, 508 ; speeches on,
V. 161, 236; of 1846, conduct of the
friends of, VI. 1 69.
Tax on Tea and Coffee, suggested by the
executive, V. 153.
Taxes, levving of, in Mexico, not a right
of war, V. 268.
Tax-payers and tax-consumers, distinc-
tion between, IV. 491.
Taylor, Gen. Zachary, character of his
public services, II. 426 et seq. ; instruc-
tions to, in regard to the Rio Grande,
330, 333 ; remarks on the illness and
death of, V. 406 ; his military rencwn,
408 ; integrity, firmness, and mildness,
409.
Tea, increase of its consumption, III. 94 ;
no duty should be laid on, V. 554 ; tax
on, suggested by the executive, V. 153.
Tenets, defined, VI. 149, 166, 167.
Tennessee, business of the United States
Courts, III. 158.
53*
Ten Regiment Bill, remarks on, V. 262.
Territory, desire for the acquisition of, not
easily satisfied, V. 294 ; acquisition of,
by Mexican War, by whom advocated,
258, 265, 273 ; northwest, cession of, by
Virginia, 335.
Texas, its history, I. 354, V. 288, 299;
annexation of, to the United States, I.
355, II. 327, 552, V. 55, 289 ; by whom
promoted, II. 437, V. 259 ; extract from
speech of Mr. Webster respecting, II.
552 ; constitution of, in respect to slav-
ery, V. 58 ; mode of annexing, 293,
340 ; course of Mr. Webster in relation
to annexation of, 346, 348 ; its boun-
daries, 375, 383, 418; independence of,
acknowledged by the United States, VI.
434 ; and other powers, 450 ; its dispute
with the United States, and not with
New Mexico, 485; boundaries of, 479.
Thornton, Dr. M., a signer of the Decla-
ration, II. 506.
Thrasher, J. S., case of, VI. 518.
Three Million Bill, speech upon, V. 253.
Timber, respecting English duties on, III
114.
Time is identical, VI. 82.
Toleration, justice of religious, I. 12; du
ty of America in respect to, II. 521.
Tonnage, no State can lay duties on, II
22 ; duty on, a direct tax, III. 244.
Tooke's view of the Russian Empire, III.
142.
Totten, Colonel, V. 116.
Town Representation, a measure of expe
diency, not one of right, III. 21.
Trade, direct and indirect, III. 126; affect-
ed by increase of manufactures, V. 219;
of the United States with North of Eu-
rope, 222.
Traders, bankrupt law in reference to, V.
8,9.
Treason, defined, II. 577, III. 339; na-
ture of, VI. 582; doctrine respecting,
526.
Treasury, state of the, in 1 834, IV. 84 ; in
1840, 541, 546 ; has no control over de-
posits with the States, V. 48.
Treasury Circular, should be repealed, I.
379.
Treasury Department, defined, IV. 410.
Treasury Note Bill, speech on, IV. 540.
Treasury Notes, a revival of the old Con-
tinental currency, IV. 318 ; tendency to
an excessive issue of, 474 : objections
to issue of, 543, 546 ; issue of, for prose-
cuting Mexican war, V. 153, 156.
Treasury, Secretary of, evils caused by the
measures of, IV. 8 ; his control of the
public deposits, not absolute, 53 ; his
rights and duties, connected with the
Bank of the United States, 56 ; his rea-
sons for the removal of the deposits
considered, 63 ; extract from report of,
630
INDEX.
respecting a national bank, 348 ; advice
of, to the deposit banks, 357.
Tripoli and Tunis, hard money in, indis-
pensable, II. 90.
Tudor, William, urges the erection of
Bunker Hill Monument, I. 58 ; eulo-
gized, 84.
Turkey, its oppression of Greece, III. 79.
Turkish Government, its internal admin-
istration, III. 80.
Turnips, culture of, I. 447.
Tyler, John, at Bunker Hill, I. 88 ; ex-
pression of his confidence in Mr. Web-
ster, II. 120 ; annexation of Texas a
measure of his administration, V. 256 ;
his course in respect to the Rhode Island
difficulties, VI. 237.
U.
Undervaluation, fraudulent, necessary re-
sult of ad valorem duties, instances of,
V. 175; penalties imposed on, 180.
Unit of commerce, how established, II. 582.
Uniform Currency, its importance, II. 8 ;
chief object of the Constitution, 9.
Union of the States, importance of, I. 83,
229; necessity of, 95, 193; one of the
objects in the formation of the Consti-
tution, 312 ; dangers to, 292, 314 ; dec-
laration of the Constitution respecting,
II. 224 ; military power resulting from,
335 ; different views respecting, III.
258 ; not a league, 457 ; not a tempo-
rary partnership, 479 ; variety of pro-
ductions and wants of the States a bond
of, IV. 434; unity of commercial inter-
ests resulting from, IV. 496; speech for
the preservation of, V. 325; impossibil-
ity of drawing line of separation in the
event of the dissolution of, 362 ; fidelity
of the South to, 430; relations of foreign
powers with, VI. 240.
United States, their rapid growth, I. 63 ;
duties of citizens of, 147 ; principles es-
tablished by, 159, 213 ; diverse interests
of, 160; condition of, during European
wars, 167 ; public lands of the, 249 ; anx-
iously regarded by European nations,
277 ; condition at the close of the war
of 1812, 311 ; not exposed to danger
from without, 330; ties of, with Eng-
land, 438 ; trade between, and the Eng-
lish possessions, II. 122 ; foundation of
the rights of, 146 ; consequences of
the proximity to Europe, 509 ; the safe-
ty of the government of, 511 ; universal
toleration in, 521 ; consequences of the
disunion of, 527 ; progress of, in arts
and science, 610 ; military resources of,
612; peaceful policy of, III. 64; neu-
tral policy of, 187, 198, 199; policy in
respect to Cuba, 207 ; influence on the
South American states, 217 , ad van
tages resulting from the credit system,
IV. 91 ; dangers to the government of,
123; policy of, in 1798, 163 ; reciprocal
claims with France, 170; decision of
Supreme Court of, on authority of
government over public lands within
States, V. 395, 402; course of, in
respect to non-intervention and neu-
trality, VI. 259 ; right of search not
admitted by, 341 ; course of, respecting
the slave-trade, 380 ; duties of, in re-
spect to Americans in the war between
Texas and Mexico, 436 ; protest of,
against the treatment of captives in
Mexico, 437; trade with China, 465;
their interest in the diffusion of popu-
lar principles, 494; their position in re-
spect to the Holy Alliance, 495 ; public
faith of the several States, 540.
United States Bank, official documents
relative to it ; objects of its incorpora-
tion ; opinion of Washington. II. 9 r
its reincorporation in 1816 ; branch of,
at Portsmouth, New Hampshire; move-
ments for effecting a change in officers,
1 2 ; the result of the executive veto on,
63.
University of Virginia not a charity, VI.
173.
Utrecht, treaty of, III. 196.
Updegraph v. Commonwealth, extract
from the opinion of the court, VI. 182.
Upshur, in respect to the annexation of
Texas, V. 345.
Utah, no occasion to make a provision
against slavery in, I. 382 ; unfitted for
slavery, II. 555.
V.
Valley Forge, associations connected with,
II. 278; convention of Whigs at, 3 Oct.,
1844, 278.
Van Buren, Mr., opinions of, respecting
the currency, I. 424, II. 62 ; condition
of the country aft^r his inauguration,
15 ; policy of his administration, 31 et
seq. ; respecting the training and dis-
ciplining of the militia, 48; his treat-
ment of the States, 66 ; increase of
executive power during his adminis-
tration, 86; his instructions to Mr.
McLane, 435 ; nomination for the
presidency by the Free Soil party, 435 ■
views of, relative to slavery in the Dis-
trict of Columbia, 436 ; the sub-treasury
scheme of, 453, 455 ; letter of Feb 28,
1843, 463 ; remarks on the nomination
of, as minister to England, III. 357 ;
his views respecting the public moneys,
IV. 355 ; policy of his administration,
483; message of, on subject :f north
INDEX.
631
eastern boundary, V. 86, 88, 89, 92 ; ar-
bitration proposed by, 114; extract from
message of, on subject of Canadian dif-
ficulties of 1837, 117.
Vansittart, Mr., II. 134.
Vase, presentation of, to Mr. Webster, I.
317.
Vattel, on the power of nation over pub-
lic lands, V. 392; referred to, VI. 122,
269.
Vermont, advantages gained to, by treaty
of Washington, V. 113.
Verona, Congress at, 1822, III. 83, 201.
Vessels, object of licensing and enrolling,
VI. 20 ; national jurisdiction over, 306 ;
entry of, into foreign ports, 306.
Veto, by Gen. Jackson, I. 240 ; its abuse,
267 ; its exercise by different presidents,
267 ; of the United States Bank bill,
111.416,419.
Veto Message, consequences resulting
from its principles, III. 446.
Veto Power, II 137 ; its origin, 336.
Vienna, Congress of, III. 198.
Virginia, the political character of her
people, II. 84; statement of manufac-
tures in, 195, 198 ; improbability of the
secession of, 608 ; resolutions of 1798,
III. 319, 383 ; cedes her public lands
to the United States, 255, V. 335 ; pro-
ceedings of the legislature of, respect-
ing the judiciary of the United States,
III. 352 ; ratification of Constitution
by, 476; resolution of House of Dele-
gates of, in 1786, recommending consid-
eration of commercial regulations, II.
9, IV. 493, VI. 10 ; encomium on, IV.
494 ; early feeling of, in regard to slav-
ery, V. 357.
Visit and Search, identical, VI. 336.
Visitation, the power of, V. 472 ; extract
from Exeter College case, in regard to,
473.
Volney's Ruins, quoted, VI. 159.
Voltaire, followers of, not excluded from
the Girard College, VI. 146.
Voluntary bankruptcy, V. 18.
Volunteer Force, speech on the organiza-
tion of, V. 151.
Volunteers, eulogium on, II. 335 ; patri-
otism of, V. 156 ; difficulty of enlisting,
278.
W.
Wages, high rate of, in the United States,
II. 176 ; advantages of high, IV. 537.
Walker, R. J., statement of public and
private payments and receipts, IV. 329.
Wat, duties imposed by, II. 335 ; of 1812,
its effect on prices, III. 100 ; Mr. Web-
ster's defence of his course in, IV. 501 ;
effect of rumors of, upon commerce
and trade, V. 61
Warehouse Bill, V. 154.
Warehouse System of England and Uie
United States, III. 116.
Warren, Gen Joseph, I. 38, 70 ; honor to,
57 ; apostrophe to, 65.
Warren, G. W , letter to, on the Consti
tution and the Union, VI. 565.
Washington, Gen. George, I. 70, 159; his
remark respecting the battle of Bunker
Hill, 92; his death, 111 ; resolutions of
John Adams respecting, 134 ; inaugu-
ration at New York, 201 ; eulogized,
210 ; difficulties in administering gov-
ernment, 208 ; centennial celebration of,
219 ; head of first representative govern-
ment, 222 ; basis of his character, 225 ;
Fisher Ames's remark respecting, ib. ;
foreign policy, 226 ; domestic policy,
227 ; exhortation of, against party spir-
it, 229 ; sanctions the establishment
of a bank, 391, II. 163 ; an advocate of
a uniform currency, 9, 10 ; the com-
mencement of his administration under
the present Constitution of the United
States, 228 ; his first speech to the two
houses, 229, 230 ; at Valley Forge, 273 ;
the embodiment of the idea of a patriot
President, 583 ; lays the foundation of
the first Capitol, 616; monument to,
617; his farewell address comment-
ed on, III. 213; administration of, by
whom supported, 310 ; his objections
to an apportionment bill, 385 ; com-
ments on his measures by Congress,
IV. 115; first speech of, to Congress,
341 ; regarded by the continent of Eu-
rope as an illustrious hero, 502.
Washington, Treaty of, Aug. 9, 1842, VI.
356.
Washington City, its favorable situation,
II 617.
Way, whether public or private, VI. 189.
Wavne, Gen., effect of his victory in 1794,
III. 252.
Wayne, Mr. Justice, high tribute of, to
Mr. Webster, II. 399.
Webster, Daniel, President of the Bunker
Hill Monument Association, I. 61 ; in-
vited to deliver the address at comple-
tion of Bunker Hill Monument, 81 ; last
interview with John Adams, 139 ; letter
of, respecting the supposed speech of
John Adams, 149 ; dinner at Faneuil
Hall in honor cf, 163 ; invited to a
public dinner at New York, 193; de-
fence of the Constitution, 211 ; the cir-
cumstances of his birth, 214; respect of,
for the New York judicature, 215 ; visits
Buffalo, 281 ; address to the citizens of
Buffalo, 281 ; to the mechanics and man-
ufacturers, 283 ; letter to citizens of
Pittsburg, 288 ; address to, 291 ; in fa-
vor of protecting American labor, 298 ;
address to citizens of Bangor, 309 ; yas«
632
INDEX.
presented to, by the citizens of Boston,
319 ; public reception of, at New York,
339 ; letter of, to D. B. Ogden, 340 ;
his intended resignation, 345 ; reception
of, at Wheeling, 383 ; reception of. at
Madison, 397 ; letter to citizens of
Louisville, 398 ; invitation to a public
dinner in Faneuil Hall, 413 ; speech at
Faneuil Hall, 417; visit and speech at
Oxford, England, 435 ; addresses a
meeting in Boston on the agriculture of
England, 443 ; visit of, to Saratoga, II.
3 ; his early home, 30 ; remarks of, at a
convention at Bunker Hill, 40: his
course in England in respect to State
debts, 71; visit of, to Richmond, 105;
public reception at Boston, 1842,111;
letter to the citizens of Boston, 112 ; of-
fered by President Harrison the Secre-
taryship of the Treasury, 119 ; delicacy
of his position in 1842, 124; opposi-
tion to his remaining in the Cabinet,
Sept., 1841, 125 ; addresses the New
York Historical Society on the north-
eastern boundary, 1843, 143; addresses
a convention at Andover, 158 ; letter
of, to Prof. Stuart, ib. ; personal remarks
made by, 178; a native of New Eng-
land, but a son of the United States,
204 ; speech of, at a mass meeting at
Albany, 214; at Whig Convention at
Philadelphia, 251 ; at Valley Forge,
277 ; invited to a public dinner at Phil-
adelphia, 305 ; letter to citizens of
Philadelphia, 306; visits Charleston,
S. C, 371 ; at the dinner of the New
England Society at Charleston, S. C,
378 ; toasts at Charleston, 383, 384,
388 ; at the dinner of the Charleston
Bar, 389 ; reception of, at Columbia,
395 ; at Savannah, 398 ; first speech
in* favor of internal improvements,
409 ; addresses the citizens of Marsh-
field, 423 ; letter of, to the citizens of
Marshfield, 424 ; at the Festival of the
Sons of New' Hampshire, 498; at the
Pilgrim Festival of New York, 1850,
519 ; at Buffalo, 1851,531 ; addresses the
young men of Albany, 567 ; important
services of, detailed by Mr. Spencer,
585 ; his account of the laying of the
corner-stone of the Capitol, 605 ; in-
structions moved by, in respect to the
Bank of the United States, III. 35 ; in-
troduces a resolution for the appoint-
ment of an agent to Greece, 60 ; chair-
man of the Judiciary Committee of the
House of Representatives, 1826, 164;
refers to his prediction respecting a pro-
tective policy, 229 ; unfounded charges
against, IV. 386, 502, et seq. ; his
respect for Mr. Calhoun, 467 ; his ser-
vices and devotion to the United States,
499 ; defence of his course in the war of
1812, 502; in his first speech in Con
gress urged the importance of greatel
attention to the naval service, 505 ;
charges against, in regard to slavery,
507 ; to the tariff, 508 ; to the currency,
517; a hard-money man, 518; extract
from the letter of, respecting McLeod,
V. 125 ; purpose of his public life,
300 ; letter of, to Mr. Fox, respecting
the release of Alexander McLeod, VI.
2 ; letter from, to citizens of Wash-
ington, relative to his argument on
Girard's will, 134 ; to Gov. Fairfield,
272 ; to the Commissioners of Maine
and Massachusetts, 276 ; to Lord Ash-
burton, proposing a boundary line, 283 ;
to Lord Ashburton, respecting pay-
ment to Maine and Massachusetts, 289
letter of, to Captains Bell and Paine
respecting the slave-trade, 290 ; to Lord
Ashburton, respecting the Caroline, 292,
302.
Webster, Hon. Ezekiel, lamented death
of, VI. 576.
Webster, Fletcher, appointed Secretary of
the mission to China, VI. 474 ; letter
of, as Acting Secretary of State, to the
Chevalier d'Argalz, 393
Weir, Robert N., his painting of the Em-
barkation of the Pilgrims, I. 51.
Wesley, John, anecdote of, VI. 143.
West Chester, appeal to the citizens of,
VI. 586 ; pledges of its attachment to
the Union, 583.
West Dennis, letter to citizens of, VI. 595.
Western Emigration not opposed by New
England, III. 266.
Western Interests, supported by New
England, III. 265.
Western and New England settlements
compared, III. 251.
Western New York, character of its inhab-
itants, II. 545.
Western States, interested in internal im-
provements, I. 305 ; accumulation of
business in the United States courts,
III. 157 ; effect on, of vetoing the Bank
of the United States, 419.
West India Colonies, I. 19; no recipro-
city with English, III. 358.
West Indies, trade between, and the Unit-
ed States, II 122. III. 237, 364; policy
of the United States respecting it, 365.
Westphalia, treaty of, III. 196.
Wheat, average crop of, in England, I.
449 ; decrease in its price, IV. 19.
Wheaton, H., opinion of, respecting the
slave trade, V. 143 ; treaty negotiated
by, VI. 412.
Wheelock, Rev. E., founder of Dartmouth
College, V. 463.
Whigs, declaration of principles and pur-
poses of, II. 41 ; convention of, at Rich
mond, Va., 83; in Boston, 125; at
INDEX.
633
Philadelphia, 253 ; at Valley Forge,
277 ; doctrines of, in respect to protec-
tion, 254; Gen. Taylor nominated by,
429.
White, Bishop, extract from his writings,
VI. 178.
White, Capt. Joseph, Mr. Merrill's account
of his murder, VI. 41 ; speech to the jury
in the case of his murder, 51.
White-lead, manufacture of, injured by
tariff of 1846, V. 197.
Whipple, William, a signer of the Decla-
ration of Independence, II. 506.
Wilkins, Mr., tariff bill introduced by, III.
448.
Wilmot Proviso, friends of, advocates for
the admission of Texas, V. 343 ; re-
marks respecting, in a speech of Mr.
Webster at the Springfield Convention,
1847, V. 349; inutility of, in regard to
certain Territories, 352, 382, 421 ; not
to be urged merely as a reproach to
Southern States, 352.
Windham, Mr., remark of, V. 363.
Wine, importance of duty on, IV. 554.
Wines of Portugal, letter respecting du-
ties on, VI. 415.
Winslow House, a part of Mr. Webster's
estate, II. 424.
Witherspoon, Mr. motion of, in Congress,
VI. 10.
Witchcraft, Blackstone's remark respect-
ing, 207.
Wolf, Gov., effect of opinion of, IV. 7.
Woman, how she performs her part in
free government, II. 107.
Wood, Sir Charles, on the British claim
to the right of search, VI. 338.
Woodbridge, Gov., remarks of, on border
disturbances of Canada and Michigan,
V. 140.
Woodbury, Levi, his letter to Mr. Ingham
relative to the President of the Branch
Bank at Portsmouth, N. H., II. 12;
extracts from treasury report relative to
unproductive labor, 25 ; report of, re-
ferred to, IV. 352.
Woodbury, J. T., letter to, 15th October,
1851, on the Acton celebration, VI.
601.
Wool, English opinion respecting duties
on, III. 117 ; policy of duty on. 135.
Wool, Gen., report of, on military com-
munication in Maine, V. 108, 115.
Woollen Manufactures, whence imported,
II. 466 ; of England and the United
States, III. 137; not benefited by the
act of 1824, 231.
Worcester, convention at, I. 237.
Wright, Silas, on the Van Buren adminis
tration, in respect to the banks and cur-
rency, II. 64 ; on the distribution of the
surplus revenue, 69 ; votes in favor of
the tariff, 130 ; opinions of, respecting
the bank, III. 616; remark of, respeft-
ing popular opinion, 531.
Y.
Young Men, appeal to, II. 562, 592.
Ypsilanti, Alexander, heads the populai
outbreak in Moldavia, III. 85.
Z.
Zoll-Verein, states included in it, VI. 411
GENERAL DIVISION.
Biographical Memoir, by Edward Everett. — Vol. I. pp. xi.-clx.
Speeches delivered on Various Public Occasions. — Vols. I. and II.
Speeches in the Convention to amend the Constitution of
Massachusetts. — Vol. III. pp. 1 - 32.
Speeches in Congress. — From Vol. III. p. 33 to Vol. V. p. 438.
Legal Arguments and Speeches to the Jury. — From Vol. V. p. 439
to Vol. VI. p. 242.
Diplomatic and Official Papers. — Vol. VI. pp. 243-530.
Miscellaneous Letters. — Vol. VI. pp. 531-601.
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