Cornell University Law Library 
 
 The Moak Collection 
 PURCHASED FOR , 
 
 The School of Law of Corn(?ll University 
 
 And Presented February 14, 1893 
 
 IN nenoRY of 
 
 JUDQE DOUGLASS BOARDMA^f 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daugliter 
 A. M. BOARDMAX and ELLEN D. WILLIAMS 
 
Cornell University Library 
 KF 210.S671 
 
 Great speeches by greal lawyer^ 
 
 3 1924 022 845 345 
 
 (jJnrnpU ICam ^rl|nnl Hibraty 
 
\1 
 
 Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022845345 
 
(Bttai 0peecl)C0 b^ (Sreat Cawgcrs. 
 
 A COLLECTION 
 
 OF 
 
 ARGUMENTS AND SPEECHES 
 
 BEFORE COURTS AND JURIES. 
 
 BY EMINENT LAWYERS. 
 
 INTRODUCTORY NOTES, ANALYSES, ETC. 
 
 BY 
 
 WILLIAM L. SNYDER, 
 
 OF THE NEW YORK BAR. 
 
 NEW YOKE: 
 
 BAKER, VOORHIS & CO., PUBLISHERS, 
 
 66 NASSAU STREET. 
 
 1881. 
 
Copyright, i88i. 
 By baker, VOORHIS & CO. 
 
PREFACE. 
 
 The object and design of this work is to preserve some of the 
 best efforts of eminent lawyers, selecting those which have justly 
 been regarded as models of legal reasoning and forensic power. 
 The task is an exceedingly difficult one, in view of the fact that 
 some of the most distinguished advocates have left but few traces 
 of their intellectual labor. Their fame is often traditional; the 
 recollections of their great efforts and high achievements fade 
 in the near generations. The memory of the eloquence of 
 O.gden Hoffman and David Graham lingers in the minds of a 
 fqw living men, aijd m another decade will have been forgotten. 
 What remains of the forensic utterances of Dexter and Otis; of 
 John Adams, Joseph Hopkinson, Jared Ingersoll, Sargeant S. 
 Prentiss, Robert Goodale Harper, Luther Martin, Edward D. 
 Baker, Rufus Choate even, and a hundred others, whose names 
 are familiar, who have graced the profession with their genius and 
 learning ? Whatever remains — in memoirs, in fugitive pamphlets, 
 in reports of trials, or wherever found — it is our purpose to 
 gather and preserve. 
 
 With this view, and believing that a collection of legal speeches 
 and arguments, embracing topics upon various branches of the law, 
 would be instructive and valuable, especially to the younger mem- 
 bers of the profession, the publishers began many years ago to 
 collect materials for this work. The original intention was to 
 divide it into subjects corresponding with the main divisions of 
 jurisprudence, and to illustrate each by the arguments and opinions 
 of distinguished advocates and jurists. It was, however, found 
 impracticable to pursue this plan, and it was finally determined 
 to select the best efforts of eminent lawyers in this country and 
 Great Britain and arrange them conveniently, with an analysis of 
 each, and a full index to indicate the points of chief importance 
 to the practitioner and student. 
 
IV PREFACE.- 
 
 Much valuable information can be acquired from arguments 
 upon which learned counsel have spent weeks and months of thought 
 and labor, revealing, in some instances, the results of a lifetime of 
 study and research — information of incalculable practical value to 
 lawyers in the active practice of their profession. Great profit will 
 also be derived from studying the plan which successful advocates 
 have pursued in presenting a cause to the court or jury ; and the 
 manner in which they have arranged and woven their materials, so 
 as to persuade the will, excite the sympathies, or convince the 
 judgment. 
 
 Care has been taken to give the speeches or arguments in full, 
 omitting only detailed statements of evidence of no general inter- 
 est, whenever such omission could be made without disturbing the 
 plan and harmony of the argument. 
 
 The original purpose of the publishers was to make the work 
 so full and complete, that they might with propriety call it a 
 " Cyclopedia of Legal Eloquence, Argument, and Opinion." But 
 whether they will be able to succeed in so ambitious an under- 
 taking must depend upon the favor with which this volume is 
 received. If it meets with the approval and support of the pro- 
 fession and the public, two additional volumes will be produced, 
 which it is believed will be sufficient to properly present the design 
 of the work. It is hoped that the book may be useful as a work 
 of reference as well as a standard collection of legal eloquence. 
 
 On behalf of the publishers and myself, I cordially thank those 
 gentlemen who have given access to their libraries and manuscripts 
 during the preparation of this work, and for the kindly interest they 
 have manifested in its success. 
 
 WILLIAM L. SNYDER. 
 New York, March, 1881. 
 
CONTENTS. 
 
 AEGUMENT OF PATEIOK HENEY, 
 
 PAGE 
 
 On the Right of a State, During the Revolution, 
 
 TO Confiscate British Debts . . . . i 
 
 AEGUMENT OF WILLIAM PINKKEY, 
 
 On the Law of Constructive Treason, in the De- 
 fense OF John Hodges ..... 35 
 
 AEGUMEKT OF WILLIAM WIET, 
 
 In the Case of Gibbons v. Ogden . . . -47 
 
 AEGUMENT OF DAKIEL WEBSTEE, 
 
 In the Case of Ogden v. Saunders . . . .67 
 
 SPEECH OF SEEGBANT S. PEENTISS, 
 
 In Defense of Hon. Edward C. Wilkinson, of Mississippi, 
 
 AND Others, Indicted for Murder . . -85 
 
 SPEECH OF DAVID PAUL BEOWN", 
 
 In Defense of Alexander William Holmes, Indicted 
 
 fob Manslaughter on the High Seas . . .125 
 
 SPEECH OF WILLIAM H. SBWAED, 
 
 In Defense of the Negro, William Freeman, Indicted 
 
 for the Murder of John G. Van Nest . . 149 
 
 AEGUMENT OF CHAELES O'OONOE, 
 
 For the Claimants, in the Case of the Brig-of-War 
 
 General Armstrong . . . • •19' 
 
vi CONTENTS. 
 
 SPEECH OF EUFUS OHOATE, 
 
 PAOB 
 
 On Behalf of Helen Maria Dalton, in the Dalton 
 
 Divorce Case ....... 247 
 
 AEGUMENT OF EDWIN M. STANTON, 
 
 In Defense of Hon. Daniel E. Sickles, Indicted for the 
 
 Murder of Philip Barton Key . . . .325 
 
 SPEECH OF JAMBS T. BEADY, 
 
 In Defense of the " Savannah Privateers," Indicted for 
 
 Piracy ........ 343 
 
 SPEECH OF WILLIAM M. EVAETS, 
 
 For the Prosecution in the Case of the "Savannah 
 
 Privateers," Indicted for Piracy . . . 374 
 
 AEGUMENT OF JOHN K. POETEE, 
 
 On the Constitutionality of Legal Tender Acts. — 
 
 Metropolitan Bank v. Van Dyck . . .421 
 
 AEGUMENT OF WILLIAM A. BEACH, 
 
 In Defense of Samuel North and Others, Charged with 
 
 Tampering with Soldiers' Votes . . . 449 
 
 AEGUMENT OF JEEEMIAH S. BLACK, 
 
 In Defense of the Right to Trial by Jury . . 481 
 
 AEGUMENT OF DAVID DUDLEY FIELD, 
 
 On the Constitutionality of the " Enforcement Act " . 517 
 
 SPEECH OF THOMAS EESKINE, 
 
 For the Prosecution, in the Proceedings against Thomas 
 
 Williams, for Publishing Paine's " Age of Reason " . 551 
 
 SPEECH OF SIE JAMES MACKINTOSH, 
 
 In Behalf of Jean Peltier, Indicted for a Libel against 
 
 Napoleon Bonaparte . . . . .567 
 
CONTENTa vii 
 
 SPEECH OF WILLIAM 0. PLUNKET, 
 
 Opening for the Crown in Rex v. Forbes and Others. — 
 
 Conspiracy and Riot ..... 613 
 
 SPEECH OF JOHlSr HENEY N^OETH, 
 
 Opening for the Defense in Rex v. Forbes and Others. — 
 
 Conspiracy and Riot . ... 641 
 
 SPEECH OF BAETHOLOMEW HOAE, 
 
 Opening for Plaintiff in Massy v. The Marquis of Head- 
 fort. — Damages for Criminal Conversation . . 667 
 
 SPEECH OF THOMAS QUIN. 
 
 Opening for Defendant in Massy v. The Marquis of 
 
 Headfort. — Damages for Criminal Conversation . 677 
 
 SPEECH OF Et. Hon. GEOEGE POl^SONBY, 
 
 Closing for Defendant in Massy v. The Marquis of 
 
 Headfort. — Damages for Criminal Conversation . 683 
 
 SPEECH OF JOHN PHILPOT CUEEAN, 
 
 Closing for Plaintiff in Massy v. The Marquis of Head- 
 fort. — Damages for Criminal Conversation . . 691 
 
 Barok SMITH'S CHAEGE TO THE JUET, 
 
 In the Case of Massy v. The Marquis of Headfort. — 
 
 Damages for Criminal Conversation . . .708 
 
 Public Opinion invariably against the Prisoner — ^James T. Brady 34 
 
 Uncertainty of Law — William Paley . . . .84 
 
 Importance of the Doctrine of Stare Decisis— LUTHER Bradish 124 
 
 The Growth of Principles— Hon. Joseph Neilson . . 246 
 
 Without Law there is no Security— Jeremy Bentham . 480 
 
 Declaration to the Mob, in the Court of King's Bench— Lord 
 
 Mansfield . . . . . • • 55° 
 
VlU CONTENTS. 
 
 APPENDIX. 
 
 PACK 
 
 Dr. Spencer's Chart, referred to in Mr. Seward's Speech . 717 
 
 Requests to Charge and Rulings in the Sickles Case . . 718 
 
 Letter of Marque to "Savannah Privateers," issued by Jefferson 
 
 Davis ........ .722 
 
 Garibaldi's Letter, referred to by Mr. Brady and Mr. Evarts . 723 
 
 Extracts from Vattel's Law of Nature and Nations . . 723 
 
 Abstract of Documentary Evidence in the Case of the " Savannah 
 
 Privateers" ....... 725 
 
 Extracts from De Hart and O'Brien on Military Law . . 726 
 
 War Amendments to the U. S. Constitution . . . 728 
 
 Ode and Verses from Peltier's Indictment . . . 730 
 
INTRODUCTION. 
 
 The history of human experience has shown that the individuals 
 who have exerted the most potent influences in the world were those 
 who possessed, in the most eminent degree, the supreme power 
 of eloquence. The men who could persuade others have held, 
 among civilized nations the highest places in the State, and gath- 
 ered the honors and rewards which belong to an exalted station. 
 The power which an orator possesses, touches the feelings and 
 passions of the human heart, controls the will, and convinces 
 the judgment. The proper solution, therefore, of the most im- 
 portant issues which have arisen, with respect to the fortunes of 
 nations and of individuals, are the result of its exercise. Accord- 
 ing to the magnitude and consequence of the cause which he advo- 
 cates, so will be the scope and extent of the advocate's power. 
 This truth is embodied in the trite saying that " the pen is mightier 
 than the sword." The pen indicates the powers of reason, the re- 
 sources of the mind and intellect ; the sword signifies physical 
 force, and military authority. The former represents the object to 
 be accomplished ; the latter, the means of accomplishing that ob- 
 ject and conducting it to a successful consummation. 
 
 Wars and revolutions are the agencies by which popular rights 
 are established. Every great war, since time began, has con- 
 tributed to some extent, either directly or indirectly, to the ad- 
 vancenient and welfare of the commonwealth of man. The 
 sword is the instrument by which revolution is accomplished ; it is 
 the means to an end. But it is the voice of the orator echoing the 
 protest of the masses against vice and oppression, against bad gov- 
 ernment and bad laws, which arouses popular sentiment, puts 
 armies in motion, and makes revolution possible. As men advance 
 from the shadows of barbarism into the light of civilization ; as 
 savages become citizens, and, in the highest sense, reasonable crea- 
 tures, they are influenced by reason and appeals to judgment, 
 rather than by passion and a challenge to arms. Consequently, as 
 the world grows older, it grows better, for the ballot is gradually 
 usurping the functions of the bayonet, and what was at one time 
 
X INTRODUCTION. 
 
 accomplished by the sword, is now more perfectly accomplished by 
 the exercise of the suffrage. But the power behind the ballot is 
 identical with the power behind the bayonet. The force of elo- 
 quence which incites men to fight, is the same force which influ- 
 ences them to vote. 
 
 Hence, it follows that the most distinguished names in history 
 are those of the world's orators, rather than its generals. Many 
 of the latter are associated with memories of splendid empire, arbi- 
 trary power, military despotism; the former with whatever charters, 
 whatever laws, whatever institutions or customs exist to-day, by 
 which the greatest measure of liberty is secured to the citizen, and 
 the dearest and commonest rights, guaranteed to the subject. The 
 two most famous orators of antiquity were the greatest of advocates, 
 and both were martyrs in the cause of popular government and 
 universal citizenship. Their names will endure to the end of time; 
 their influence will be felt to the remotest generation. 
 
 The truth of these general observations as to the influence of 
 eloquence, none will deny. It will not be necessary, therefore, 
 to pursue this branch of the subject further, by any attempt to 
 illustrate it with examples from history. It will, doubtless, be 
 conceded, that, in its most comprehensive sense, eloquence is the 
 greatest power which it is possible to exercise upon the affairs of 
 men. 
 
 The two important inquiries, then, which naturally suggest 
 themselves in considering this topic are, can this power be ac- 
 quired ? and, if so, how can it be acquired ? The lives of the 
 great orators — some of the most distinguished of whom have been 
 men of untiring .energy and application — demonstrate that a man 
 of fair talent and ability may, by dint of perseverance and study, 
 become an accomplished speaker and successful advocate. 
 
 It is true he cannot expect to command that superb eloquence 
 which springs from a mind originally endowed with the attributes 
 of genius — wit, humor, poetic fancy, a dramatic emotional na- 
 ture. There is, indeed, a kind of ideal eloquence, a superior dis- 
 play of intellectual jpower, accompanied by a sort of magnetism 
 which thrills and excites, or.charms and entrances — called forth sud- 
 denly, when affairs of public (or Individual concern have reached a 
 climax — which is born of genius^ and is the fruit of inspiration. It 
 is defined perfectly by Mr. Webster, when he says: " True eloquence, 
 indeed, does not consist in speech. It cannot be brought from 
 far. Labor and learning may toil for it, but they will toil in vain. 
 
INTEODUCTION. xi 
 
 Words and phrases may be marshalled in every way, but they can- 
 not compass it. It must exist in the man, in the subject, and in 
 the occasion. Affected passion, intense expression, the pomp of 
 declamation, all may aspire to it ; they cannot reach it. It comes, 
 if it comes at all, like the outbreaking of a fountain from the earth, 
 or the bursting forth of volcanic fires, with spontaneous, original, 
 native force. The graces taught in the schools, the costly orna- 
 ments and studied contrivances of speech, shock and disgust men, 
 when their own lives, and the fate of their wives, their children, 
 and their country, hang on the decision of the hour. Then words 
 have lost their power, rhetoric is vain, and all elaborate oratory 
 contemptible. Even genius itself then feels rebuked and subdued, 
 as in the presence of higher qualities. Then patriotism is elo- 
 quent ; then self-devotion is eloquent. The clear conception, out- 
 running the deductions of logic ; the high purpose, the firm re- 
 solve, the dauntless spirit, speaking on the tongue, beaming from 
 the eye, informing every feature, and urging the whole man on- 
 ward — right onward to his object — this, this is eloquence ; or, 
 rather, it is greater and higher than all eloquence — it is action, 
 noble, sublime, godlike action ! " 
 
 It is true, that, to be an ideal orator, one must possess the best 
 faculties and rarest gifts which it is possible for nature to bestow ; 
 elements not taught in books, and which cannot be acquired. The 
 profession of the advocate embraces a science, universal in its ap- 
 plication, " which," in the elegant language of Sir William Black- 
 stone, " distinguishes the criterions of right and wrong ; which 
 teaches to establish the one, and prevent, punish, and redress the 
 other ; which employs in its theory the noblest faculties of the 
 soul, and exerts in its practice the cardinal virtues of the heart ; a 
 science which is universal in its extent, accommodated to each in- 
 dividual, yet comprehending the whole community." In the exer- 
 cise of his powers, therefore, the orator and advocate will be called 
 upon to touch the feelings, passions, and sympathies, and appeal 
 to every impulse within the circle of human experience. To 
 reach the ideal standard, an orator must be many-sided, and 
 combine within himself every great mental quality— a vigorous 
 understanding and tenacious memory, wit, judgment, imagination, 
 a knowledge of human nature, enthusiasm, self-possession, dramatic 
 power, moral courage, a strong will, and native energy. He should 
 possess, also, certain physical gifts — a clear voice, and sturdy 
 frame. To become a great jury lawyer, many of the characteristics 
 
Xll • INTBODUCTIOIT. 
 
 named are essential, especially the power to read human nature. 
 But it is indeed seldom that all these rare qualifications are be- 
 stowed upon a single individual. In a majority of instances, men 
 who have possessed but few of these gifts, have risen to .the 
 highest walks of the profession. A man of genius, who possesses 
 industry, and the will, never fails to be great, in accordance with 
 the measure of his opportunities. Genius and industry, united, 
 accomplish all things ; genius divorced from industry, seldom ac- 
 complishes anything. 
 
 Yet it is possible for a man of vigorous mind and strong will to 
 become an impressive and convincing speaker, and even to achieve 
 distinction and acquire fame as an advocate, without being an 
 ideal orator; for, at the forum, knowledge is a commanding and con- 
 trolling power, and in its most practical sense, knowledge is not a 
 gift; it comes not by inspiration or intuition — it must be acquired. 
 In this view of the subject, eloquence may safely be said to be an art 
 which may be attained by any person possessing fair talent and 
 ability, who may choose to devote sufficient time and labor for its 
 acquisition. 
 
 The first requisite in order to become an advocate, is to get a 
 practical, thorough knowledge of the subjects which he will be 
 called upon to discuss. To a certain point, there is no difiference 
 in the line of preparation and study to be pursued, whether the 
 orator is training for the senate or the forum ; whether it is desired 
 to excel in parliamentary or forensic eloquence ; as an advocate or 
 a statesman. Both must possess in the main the same kind of 
 knowledge, since it is the purpose of both — and the object of elo- 
 quence always is— to persuade and convince. The uses, also, to 
 which this common knowledge is put are often analogous; and the 
 questions which each are called upon to discuss in their several 
 departments, frequently grow out of the same general principles of 
 equity and public policy. The popular representative has his country 
 and his constituents for his clients, while the advocate has confided to 
 his trust the interests of an individual. The duty of the former is 
 to frame laws ; the duty of the latter to maintain them, punish 
 infractions and violations thereof, secure to the citizen their benefit 
 and protection, and prevent deprivation of life, liberty or property 
 without due process of law. 
 
 Certain kinds of information and particular branches of study, 
 relating mainly to constitutional and philosophical history, are essen- 
 tial, whether the field of labor is the senate or the forum. But the 
 
INTRODUCTION. xiii 
 
 advocate, in order to excel in his profession, must master, in addi- 
 tion, the elementary and fundamental principles upon which the 
 great body of the common law rests ; and these, though compara- 
 tively few, require years of application to thoroughly acquire, since 
 they constitute the groundwork and foundation of all legal science. 
 This technical knowledge may, for convenience, be classified as fol- 
 lows : (i) the law of crimes, or criminal jurisprudence ; (2) the 
 system of equity jurisprudence, akin to, and founded upon the law 
 of ethics and moral philosophy ; (3) the principles regulating the 
 law of contracts; (4) the philosophy of the law as to liability and 
 damages for injuries, independent of contracts, growing out of the 
 negligence and carelessness of individuals — willful and malicious 
 acts whereby another is injured in his good name, health, reputa- 
 tion, or property rights — designated as the law of torts; (5) the 
 principles and history of the law of real property. In addition to 
 these, a thorough acquaintance with the law of evidence is abso- 
 lutely essential. The advocate must be able to bring out all the 
 facts which are to be woven into his appeal to the jury. The tes- 
 timony must be elicited in a skillful manner, and frequently the 
 truth must be developed from the lips of hostile and unwilling 
 witnesses. 
 
 He should, in addition, possess information upon general sub- 
 jects. The fine arts, polite literature, poetry, music, painting, and 
 sculpture, should be studied and made to contribute to the common 
 stock of knowledge. An advocate will find occasion to use all he 
 knows in a variety of ways. The minds of men are as varied as 
 the tints in the clouds, and if the advocate is familiar with the 
 subject, a fair knowledge of human nature will indicate what to 
 say upon a particular branch of the discussion, in order to remove 
 prejudices and inspire confidence. From a mind filled with classic 
 imagery and poetic pictures, drop, almost unconsciously, tropes and 
 metaphors which fix the thought, rivet the attention, and lend a 
 pleasing charm to the speaker's style. Examples of the modest and 
 effective use of metaphor will be found in many of the arguments 
 and speeches in this volume. In this respect the style of Mr. 
 Prentiss may be studied with profit. 
 
 In order, then, to become a great advocate, industry and perse- 
 verance are essential. No one about entering upon the duties of 
 his profession should fall into the error that he can depend upon 
 genius alone and succeed. The lawyer that leans only upon genius, 
 in this day and age, leans upon a slender reed ; for without appli- 
 
XIV INTRODUCTION. 
 
 cation and industry it is impossible even for one possessing a 
 delicate fancy, a fervid imagination, and fluency of speech, to 
 excel as an orator and an advocate. As well might he attempt 
 to pierce its disc by shooting feathers at the sun. His very 
 fluency might lead him into blunders which would render his 
 position ridiculous. He must acquire knowledge, and a perusal of 
 these pages will show how much it is necessary for him to acquire. 
 
 There are many instances in which a rich vocabulary, in 
 itself extraordinary, has been improved by cultivation, and de- 
 veloped to a very remarkable degree. But after all " knowledge 
 is power." Back of the vocabulary there must be knowledge. 
 Genius must have materials to work upon ; and knowledge can 
 only be acquired by laborious study and close application. The 
 old maxim holds good in this respect, that there is no excellence 
 without great labor. The degree and excellence of professional 
 success are commensurate with the industry and diligence of the 
 individual. The triumphs of the forum are the reward and result 
 of unceasing application. Contemplation of the difficulties mas- 
 tered and overcome by those who figure in history as men of 
 genius, inspires wonder and admiration. 
 
 The Athenian, universally regarded as the first and greatest 
 advocate and orator who has lived, had to overcome an impedi- 
 ment in his speech, an obstacle which lay at the threshold of his 
 ambition ; one which would have discouraged and disheartened 
 ordinary men, since it was an infirmity which forbade the very use 
 of language and the power of articulation. He was laughed down ; 
 in his first attempts he stammered, hesitated, and failed. But he 
 persevered until he attained the summit of human excellence. The 
 secret of the power of the Roman orator was arduous devotion to 
 study, and Middleton says that " his industry was incredible, be- 
 yond the example or even conception of our days." Sheridan 
 failed in his maiden speech in Parliament, and was advised by 
 Woodf all to keep to his line as a dramatist ; but the advice was 
 met with the vehement declaration, " It is in me, and it shall come 
 out of me." But Sheridan, bright and gifted as he was, only suc- 
 ceeded by careful and elaborate preparation and study. Fox, 
 " the most brilliant and accomplished debater the world ever knew," 
 only became such by degrees, through toil and difficulty. Lord 
 Mansfield studied eloquence all his life, and often practiced his 
 manner and gestures before a glass. Lord Sommers went to the 
 front in a five-minute speech at the trial of the Seven Bishops, 
 
INTRODUCTION. XT 
 
 but in that successful effort was condensed all the learning on the 
 subject — ^the fruits of a lifetime of professional study. Curran, who 
 stood next to Erskine as a jury lawyer, was known at school as 
 "Stuttering Jack." When Disraeli was laughed down, and his 
 scream of disappointment, " the time will come when you shall hear 
 me," could scarcely be heard above the derisive laughter his failure 
 had provoked, who dreamed that his talent, energy, and perseverance 
 would one day make him Prime Minister of the British Empire, wear- 
 ing the title of Earl of Beaconsfield. William Pinkney let out the 
 secret in open court once, when he told the judges that his opinion 
 on the question in controversy had not been hastily formed since 
 the commencement of the trial; "it is," he said, "the result of a 
 deliberate examination of all the authorities, of a thorough inves- 
 tigation of the law in all its forms, made at leisure, and under a 
 deep sense of a fearful responsibility to my client." Yet no man 
 ever sought, with more care and ingenuity, to convey the impres- 
 sion that he never studied, than William Pinkney. Rufus Choate 
 was a great worker. He labored incessantly, and, like Henry Clay, 
 practiced elocution daily, it is said, for a period of more than forty 
 years. 
 
 Other examples, almost without number, could be given. We 
 might enumerate the names of famous men who have attracted the 
 world's attention at the forum and in the senate, and the stories of 
 their lives would be all alike in this, that toil and application are 
 the price of success ; and that eloquence, after all, in its practical 
 sense, is an art, which may be acquired by any person possessing 
 fair talent and ability who may choose to devote sufficient time and 
 labor for its acquisition. 
 
 If there are any exceptions to this rule they are rare indeed. 
 Where is there an example of an advocate or an orator who was 
 carried to the summit of earthly ambition through the sheer force 
 of his genius ? There is one great name, which is perhaps re- 
 garded as within the exception — the famous orator of Virginia, 
 and powerful advocate of the American Revolution — Patrick 
 Henry. A perusal of his argument, however, in Jones v. Walker, 
 given in this work, will go far to prove that even this wonderful 
 man is within the rule, not the exception. If we can trust his biog- 
 rapher, he was good for nothing but an orator. The idea of 
 ever making a successful merchant of him provokes a smile, while 
 to the acquaintances of his early manhood the mere proposition 
 that he might perhaps become an advocate and an orator would 
 
xvi INTRODUCTION. 
 
 have occasioned even greater surprise. He was indeed a child of 
 Nature. He despised the school room, and, when opportunity- 
 offered, would wander off, with rod and gun, among the woods 
 and hills. He loved Nature — the clouds, the forest, all that makes 
 the landscape. The supposition that he would ever become a distin- 
 guished advocate, and the greatest orator of his age, exerting an 
 influence against the British king equal to that of John Adams, 
 would have been regarded by his friends as an extravagant chi- 
 mera. He did not commence the study of law until after he was 
 married and settled, and had thrice failed in mercantile and agri- 
 cultural pursuits. But the fact remains that his mind was stored 
 with knowledge which could be acquired only by study and appli- 
 cation; and his argument upon the right to confiscate "British 
 debts," is entirely inconsistent with the theory that he was indiffer- 
 ent as to professional learning and acquirements. 
 
 The secret, then, of this wonderful art, which has exerted such 
 an influence, and is so universally desired, consists in two simple 
 propositions — knowing what to say, and how to say it. Knowledge 
 of the subjects to be discussed is the first requisite ; an acquaint- 
 ance with practical rules of rhetoric, is the second. The latter 
 study is necessary, and its importance should not be underrated ; 
 but the student might read all the works that have been written 
 upon it from Aristotle to Whately, and from Whately to the 
 present time, and yet fail in his purpose. Hume comes nearest the 
 truth when he says that eloquence can only be taught by examples. 
 These are spread before the reader in the following pages, and 
 among them will be found some of the best models in the range of 
 legal eloquence. A study of them will show, in every instance, 
 that clear statement is an essential feature, accompanied by an ex- 
 position of elementary principles applied to the facts — the whole 
 modestly and gracefully adorned with the beauties of rhetoric. 
 
 W. L. S. 
 
Arguments and Speeches 
 
 BEFOEE OOUETS AND JUEIES. 
 
ARGUMENT OF PATRICK HENRY, 
 
 On the Right of a State, during the Revolution, to 
 Confiscate British Debts. 
 
 [Jones V. Walker, 2 Paine.] 
 
 AT A CIRCUIT COURT OF THE UNITED STATES, HELD AT 
 RICHMOND, VA., NOVEMBER TERM, 1791. 
 
 Aj!Taltsis of Me. Henet's Akgument. 
 
 I. Debts a subject of forfeiture in common 
 
 war, 
 ^. Hostile nations have the right to remit 
 
 to its citizens debts due the enemy. 
 
 3. Extent to which a sovereign, in time of 
 
 war, is justified in confiscating debts. 
 
 4. Grotius and Vattel on the subject of 
 
 confiscation. 
 5 Effect of the revolution on British debts. 
 Greatness of America. 
 
 6. The law of custom only binding on na- 
 
 tions adopting it. 
 
 7. The law of custom prevailing in Europe 
 
 not binding in America. 
 
 8. America an independent na'ion long 
 
 prior to 1783. 
 
 9. The acts of confiscation warranted by 
 
 necessity. 
 
 10. Distinction betwe^ common war and 
 
 revolution. 
 
 11. Picture of the horrors of the American 
 
 revolution. 
 
 12. England, by withdrawing her protec- 
 
 tion, destroyed title in all property. 
 
 13. The issuing of paper money by the col- 
 
 onies compelled by necessity. 
 
 14. Contracts dissolved without the consent 
 
 of the king of Great Britain. 
 
 15. Consequences which would have result- 
 
 ed had England conquered America. 
 
 16. In a state of nature, municipal rights 
 
 and obligations are dissolved. 
 
 17. Debts, like other property, subject to 
 
 forfeiture. 
 
 18. Effect of the payment of paper currency 
 
 to the loan office. 
 
 19. Application of the law of salvage. 
 
 so. Defendant's debt did not exist when the 
 treaty of peace was signed. 
 
 21. Plaintiff must show full compliance with 
 
 the treaty. 
 
 22. Power of interpretation of treaties in the 
 
 courts. 
 
 23. A chose in action a subject of forfeiture. 
 
 The argument of Mr. Henry in the great case of " The British Debts," is 
 regarded by his biographer as presenting the most distinguished display of the 
 professional talents of the famous Virginia orator and patriot. The controversy 
 involved the honor of his native commonwealth, and the question as to limitations 
 of her sovereign power was brought before the court for review. When Virginia 
 became an independent State, owing no longer allegiance to the mother country, 
 could she exercise the absolute power which inheres in every sovereignty, and 
 confiscate the debts of her enemies, or was the treaty made between the United 
 States and Great Britain, at the close of the revolution, declaring that there 
 should not be any lawful impediment in the collection of British debts, the su- 
 preme law ? The case arose upon the following facts: 
 
 Dr. Thomas Walker, in the countv of Albemarie, in the colony of Virginia, 
 
 1 ' ri] 
 
a ARGUMENT OF PATRICK HEHRT 
 
 prior to the American revolution, on the nth day of May, 1772, executed, under 
 his hand and seal, a bond to the mercantile house of Farrell & Jones, British 
 subjects, for ;^2,g03, 15^. 8(/. sterling. After the close of the revolution, in 
 1791, William Jones, as surviving partner of the firm of Farrell & Jones, brought 
 suit in the United States Circuit Court, at Richmond, Va., to recover the amount 
 due on the bond. A brief synopsis of the pleadings will enable the reader to 
 thoroughly comprehend the questions discussed. 
 
 There were five pleas interposed to the declaration, as follows : (i) First, 
 payment, upon which issue was joined. (2) Second, that an act of the legisla- 
 ture passed during the revolution, October 20, 1777, made it lawful for a citizen 
 of the commonwealth, owing money to a subject of Great Britain, to pay the 
 same, or any part thereof, from time to time, into the loan office of the State, and 
 take a certificate for the same in the name of the creditor, which receipt should 
 discharge him from so much of the debt; and exhibiting a certificate for $7,173 
 {£2,1^1, i8j.) in bar of so much of plaintiff's demand. (3) Third, that the 
 debt had escheated to the State, under an act of Assembly, passed May 3d, 1779, 
 declaring " that all the property, real and personal, within the commonwealth, 
 belonging at that time to any British subject, should be deemed to be vested in 
 the commonwealth;" and further, that a demand for its recovery was barred by 
 the act of May 6th, 1782, declaring " that no demand whatsoever, originally due 
 to a subject of Great Britain, should be recoverable in any court of this common- 
 wealth." (4) Fourth, that the king of Great Britain and his subjects were still alien 
 enemies, and that the state of war still continued, on the ground of the several 
 direct violations of the definite treaty of peace, which follows: i. In continuing 
 to carry off the negroes in his possession, the property of American citizens, and 
 refusing to deliver them, or permit the owners to take them, according to the ex- 
 press stipulations of that treaty; 2. In the forcible retention of the forts Niagara 
 and Detroit, and the adjacent territory; 3. In supplying the Indians, who were 
 at war with the United States, with arms and ammunition, furnished within the 
 territories of the United States, to wit, at the forts Detroit and Niagara, and at 
 other forts and stations forcibly held by the troops and armies of the king with- 
 in the United States; and in purchasing from the Indians, ifrithin the territories 
 aforesaid, the plunder taken by them in war from the United States, and the 
 persons of American citizens made prisoners; which several infractions, the plea 
 contends, had abolished the treaty of peace and placed Great Britain and the 
 United States in a state of war' ; and that hence the plaintiff, being an alien ene- 
 my, had no right to sue in the courts of the United States. (5) Fifth, that the 
 debt was extinguished and annulled by a dissolution of the British government in 
 this country, on the 4th of July, 1776. 
 
 The plaintiff replied to the second plea, insisting on the treaty of peace of 
 1783, whereby it was stipulated that creditors on either side should meet with no 
 lawful impediment to the recovery of bona fide debts theretofore contracted, and 
 also the Constitution of the United States declaring treaties then made, or which 
 should thereafter be made, to be the supreme law of the land, anything in the 
 Constitution or laws of any State to the contrary notwithstanding. The defend- 
 ant rejoined, that the treaty had been annulled by violations of it on the part of 
 Great Britain; and, further, that the debt was not within the treaty, inasmuch as 
 it had been discharged (or at least £1,1^1, 8j. of it) by payment to the loan office 
 
ON THE RIGHT TO CONFISCATE BRITISH DEBTS. 3 
 
 of the State of Virginia. Plaintiff demurred to the rejoinder, and to the third, 
 fourth and fifth pleas, which brought the following questions squarely before the 
 court. First. — Was the debt annulled by the dissolution of the government 
 which existed when the debt was contracted ? Second. — When Virginia became 
 a sovereign State, on the 4th of July, 1776, had she the power and authority to 
 confiscate British debts and sequestrate British property ? Third. — Was the debt 
 revived by the treaty of peace of 1783 between the United States and Great 
 Britain, whereby it was stipulat«;d that creditors on either side should meet with 
 no lawful impediment in the recovery of a\\ bona fide Aehti previously contracted? 
 Fourth. — Could a British subject derive benefit under a treaty which had been 
 violated on several distinct occasions by the British king ? 
 
 Mr. Henry discussed these issues with eminent learning, skill and inge- 
 nuity, and in a manner so eloquent as to give it rank among the great legal argu- 
 ments, and one which, in some respects, has not been surpassed at the judicial 
 forum. He established first the proposition, that since debts were property sub- 
 ject to confiscation in common wars, arising upon the slightest imaginary pre- 
 texts, or invoked through selfishness solely for conquest and empire, a fortiori 
 were they subject to forfeiture in a revolution " commenced in attainder, perfidy 
 and confiscation.'' That when Virginia became an independent State by virtue 
 of Jefferson's immortal declaration, she was immediately clothed with power to 
 exercise the right of eminent domain, and to take to herself the debts of her 
 enemies; and having exercised this right, the debt was discharged and extin- 
 guished, and beyond the purview of the treaty of peace, and could not, there- 
 fore, be revived thereby. That, even if the treaty could operate upon the debt, 
 no British subject could take advantage of it, because the British government 
 had violated its terms, and thereby annulled its provisions. It was a great ar- 
 gument, and attracted wide-spread attention. Mr. Henry occupied three days 
 in its delivery, and Mr. Wirt says, that during that time the court-room was 
 crowded to its utmost capacity, and that there could not be got together a quorum 
 of the legislature then in session at Richmond. Legislators, Senators, ladies of 
 fashion, everybody crowded to the court-room to listen to the stirring eloquence 
 of one of the greatest of living orators. 
 
 The case was argued twice: in 1791 before Judges Johnson and Blair of the 
 Supreme Court, and Griffin, judge of the district, and again, in 1793, before 
 Judges Jay, Iredell, and the same district judge. The case was decided against 
 Mr. Henry, in favor of the English creditor. (2 Paine's C. Ct. Rep. p. 688.) 
 The argument given here was made upon the first hearing, and is taken from 
 Mr. Wirt's life of Patrick Henry. That gentleman tells us that it is from Mr. 
 Robertson's stenographic notes, from which an imperfect analysis was made, 
 though the report, he says, may unquestionably be relied on, so far as it professes 
 to state the principles of law and the substance of the argument; but, as a sample 
 of eloquence it is subject to all the objections urged to the printed debates of the 
 Virginia Convention. 
 
 The following eminent gentlemen took part in the argument : for the 
 plaintiff, Mr. Ronald, Mr. Baker, Mr. Wickham, and Mr. Starke ; for the de- 
 fendant, Mr. Henry, Mr. Marshall (afterwards Chief Justice of the United 
 States), Mr. Alexander Campbell, and Mr. Innis, the attorney-general of Vir- 
 ginia. Mr. Henry said : 
 
4 ARGUMENT OF PATEICK HENKY 
 
 May it please your Honors: — I stand here to support, ac- 
 cording to my power, that side of the question which respects the 
 American debtor. I beg leave to beseech the patience of this hon- 
 orable court, because the subject is very great and important, and 
 because I have not only the greatness of the subject to consider, 
 but those numerous observations which have come from the op- 
 posing counsel to answer. Thus, therefore, the matter proper for 
 my discussion is unavoidably accumulated. Sir, there is a circum- 
 stance in this case that is more to be deplored than that which I 
 have just mentioned, and that is this: those animosities which the 
 injustice of the British nation hath produced, and which I had 
 well hoped would never again be the subject of discussion, are 
 necessarily brought forth. The conduct of that nation which bore 
 so hard upon us in the late contest, becomes once more the subject 
 of investigation. I know, sir, how well it becomes a liberal man 
 and a Christian to forget and to forgive. As individuals professing 
 a holy religion, it is our bounden duty to forgive injuries done us 
 as individuals. But when to the character of Christian you add 
 the character of a patriot, you are in a different situation. Our 
 mild and holy system of religion inculcates an admirable maxim 
 of forbearance. If your enemy smite one cheek, turn the other to 
 him. But you must stop there. You cannot apply this to your 
 country. As members of a social community, this maxim does not 
 apply to you. When you consider injuries done to your country, 
 your political duty tells you of vengeance. Forgive as a private 
 man, but never forgive public injuries. Observations of this nature 
 are exceedingly unpleasant, but it is my duty to use them. 
 
 I. Debts a subject of forfeiture in common war. 
 
 The first point which I shall endeavor to establish will be, that 
 debts in common wars become subject to forfeiture; and if for- 
 feited in common wars, much more must they be so in a revolution 
 war, as the late contest was. In considering this subject, it will be 
 necessary to define what a debt is. I mean by it an engagement or 
 promise by one man to pay another for a valuable consideration 
 an adequate price. By a contract thus made for a valuable con- 
 sideration, there arises what, in the law phrase, is called a lien on 
 the body and goods of the promisor or debtor. This interest 
 which the creditor becomes entitled to in the goods and body ov 
 his debtor, is such as may be taken from the creditor, if he be 
 
ON TQE RIGHT TO CONFISCATE BRITISH DEBTS. 5 
 
 found the subject of a hostile country. This position is supported 
 by the following authorities: 
 
 Here Mr. Henry cited copious extracts from Grotius and Vattel, wliicli seemed 
 to support his position. He then proceeded : 
 
 This authority decides, in a most clear and satisfactory manner, 
 that, as a nation, we had powers as extensive and unlimited as any 
 nation on earth. This great writer, after stating the equality and 
 independence of nations, and who are and who are not enemies, 
 does away the distinction between corporeal and incorporeal rights, 
 and declares that war gives the same right over the debts as over 
 the other goods of an enemy. He illustrates his doctrine by the 
 instance of Alexander's remitting to the Thessalians a debt due by 
 them to the Theban commonwealth. This is a case in point; for 
 supposing the subjects of Alexander had been indebted to the 
 Thebans, might he not have remitted the debts due by them to that 
 people, as well as the debts due them by his allies, the Thessalians ? 
 Let me not be told that he was entitled to the goods of the Thebans 
 because he had conquered them. If he could remit a debt due 
 by those whose claim of friendship was so inferior, those who were 
 only attached to him by the feeble ties of contingent and temporary 
 alliance; if his Macedoiiians, his immediate and natural subjects, 
 were indebted to the Thebans, could he not have remitted their 
 debts ? 
 
 2. Hostile nations havk the right to remit to its citizens 
 debts due the enemy. 
 
 This author states, in clear, unequivocal terms, by fair inference 
 and unavoidable deduction, that when two nations are at war, 
 either nation has a right, according to the laws of nature and na- 
 tions, to remit to its own citizens debts which they may owe to the 
 enemy. If this point wanted further elucidation, it is pointedly 
 proved by the authority which I first quoted from Grotius, that it 
 is an inseparable concomitant of sovereign power, that debts and 
 contracts similar to those which existed in America at the time the 
 war with Great Britain broke out, may, in virtue of the eminent 
 domain or right, be cancelled and destroyed. "A king has a greater 
 right in the goods of his subjects for the public advantage than the 
 proprietors themselves. And when the exigency of the State re- 
 quires a supply, every man is more obliged to contribute toward it 
 than to satisfy his creditors. The sovereign may discharge a debtor 
 
C ARGUMENT OF PATRICK HENKT 
 
 from the obligation of paying, either for a certain time or forever.''' 
 What language can be more expressive than this ? Can the mind 
 of man conceive anything more comprehensive ? Rights are of 
 two sorts: private and inferior, or eminent and superior, such as the 
 community hold over the persons and estates of its members for 
 the common benefit. The latter is paramount to the former. A 
 king or chief of a nation has a greater right, than the owner him- 
 self, over any property in the nation. The individual who owns 
 private property cannot dispose of it, contrary to the will of his sov- 
 ereign, to injure the public. This author is known to be no advo- 
 cate for tyranny, yet he mentions that a king has a superior power 
 over the property in his nation, and that, by virtue thereof, he may 
 discharge his. subjects, forever from debts which they owe to an 
 enemy. 
 
 3. Extent to which a sovereign, in time of war, is justi- 
 fied IN CONFISCATING DEBTS. 
 
 The instance which our author derives from the Roman history 
 affords a striking instance of the length to which the necessities 
 and exigencies of a nation will warrant it to go. It was a juncture 
 critical to the Roman affairs. But their situation was not more 
 critical or dangerous than ours at the time these debts were con- 
 fiscated. It was after the total defeat and dreadful slaughter at 
 Cannse, when the State was in the most imminent danger.' Our 
 situation in the late war was equally perilous. Every consideration 
 must give way to the public safety. That admirable Roman maxim, 
 salus populi suprema lex, governed that people in every emergency. 
 It is a maxim that ought to govern every community. It was not 
 peculiar to the Roman people. The impression came from the 
 same source from which we derive our existence. Self-preserva- 
 tion, that great dictate implanted in us by nature, must regulate 
 our conduct; we must have a power to act according to our neces- 
 sities, and it remains for human judgment to decide what are the 
 proper occasions for the exercise of this power. Call to your re- 
 collection our situation during the late arduous contest. Was it 
 not necessary in our day of trial to go to the last iota of human 
 right ? The Romans fought for their altars and household gods. 
 By these terms they meant everything dear and valuable to men. 
 Was not our stake as important as theirs ? But many other nations 
 engage in the most bloody wars for the most trivial and frivolous 
 
ON THE EIGHT TO CONFISCATE BRITISH DEBTS. 7 
 
 causes. If other nations who carried on wars for the mere point 
 of honor, or a punctilio of gallantry, were warranted in the exer- 
 cise of this power, were not we who fought for everything most in- 
 estimable and valuable to mankind, justified in using it ? Our 
 finances were in a more distressing situation than theirs at this aw-, 
 ful period of our existence. Our war was in opposition to the 
 most grievous oppression; we resisted, and our resistance was ap- 
 proved and blessed by heaven. The most illustrious men who 
 have considered human affairs, when they have revolved human 
 rights and considered how far a nation is warranted to act in cases 
 of emergency, declare that the only ingredient essential to the 
 rectitude and validity of its measures is, that they be for the public 
 good. I need hardly observe that the confiscation of these debts 
 was for the public good. 
 
 4. Grotius and Vattel on the subject of confiscation. 
 
 Those who decided it were constitutionally enabled to deter- 
 mine it. Grotius shows that you have not only power over the 
 goods of your enemies, but, according to the exigency of affairs, 
 you may seize the property of your citizens. 
 
 After reading a passage from Grotius to sustain this proposition, he continued: 
 
 I read these authorities to prove that the property of an enemy 
 is liable to forfeiture, and that debts are as much the subject of 
 hostile contests as tangible property. And Vattel, p. 484, as before 
 mentioned, pointedly enumerates rights and debts among such 
 property of the enemy as is liable to confiscation. To this last 
 author I must frequently resort in the course of my argument. I 
 put great confidence in him from the weight of his authority, for 
 he is universally respected by all the wise and enlightened of man- 
 kind, being no less celebrated for his great judgment and knowl- 
 edge than for his universal philanthropy. One of his first prin- 
 ciples of the law of nations is, a perfect equality of rights among 
 nations; that each nation ought to be left in the peaceable enjoy- 
 ment of that liberty it has derived from nature. I refer your honors 
 to his preliminary discourse from 6th to the 12th page; and as it 
 will greatly elucidate the subject and tend to prove the position I 
 have attempted to support, I will read sections 17, 18, 19 and 20 
 of this discourse. 
 
 Here Mr. Henry read the sections referred to. He then continued : 
 
8 ARGUMENT OF PATRICK HENRY 
 
 5. Effect of the revolution on British debts. — Greatness 
 
 OF America. 
 
 When the war commenced, these things, called British debts, 
 lost their quality of external obligation and became matters of in- 
 ternal obligation, because the creditors had no right of constraint 
 over the debtors. They were before the war matters of perfect 
 external obligation, accompanied by a right of constraint; but the 
 war having taken away this right of constraint over the debtors, 
 they were changed into an internal obligation binding the con- 
 science only. For it will not surely be denied that the creditor lost 
 the right of constraint over his debtor. 
 
 From the authority of this respectable author, therefore, from 
 the clearest principles of the laws of nature and nations, these 
 debts became subject to forfeiture or remission. Those authors 
 state, in language as emphatic and nervous as the human mind can 
 conceive or the human tongue can utter, that independent nations 
 have the power of confiscating the property of their enemies; and 
 so had this gallant nation. America, being a sovereign and com- 
 plete nation in all its forms and departments, possessed all the 
 rights of the most powerful and ancient nations. Respecting the 
 power of legislation, it was a nation complete and without human 
 control. Respecting public justice, it was a nation blessed by 
 heaven, with the experience of past times; not like those nations 
 whose crude systems of jurisprudence originated in the ages of 
 barbarity and ignorance of human rights. America was a sovereign 
 nation when her sons stepped forth to resist the unjust hand of op- 
 pression and declared themselves independent. The consent of 
 Great Britain was not necessary (as the gentlemen on the other 
 side urge) to create us a nation. Yes, sir, we were a nation long 
 before the monarch of that little island in the Atlantic ocean gave 
 his puny assent to it. America was long before that time a great 
 and gallant nation. In the estimation of other nations we were so ; 
 the beneficent hand of heaven enabled her to triumph and secured 
 to her the most sacred rights mortals can enjoy. When these il- 
 lustrious authors, these friends to human nature, these kind in- 
 structors of human errors and frailties ' contemplate the obligations 
 and corresponding rights of nations, and define the internal right 
 which is without constraint and not binding, do they not under- 
 stand such rights as these which the British creditors now claim ? 
 
 ' In the second argument, he eulogized the writers on the laws of nations, 
 as "benevolent spirits who held up the torch of science to a beniglited world." 
 
ON THE EIGHT TO CONFISCATE BRITISri DEBTS. 9 
 
 Here this man tells us what conscience says ought to be done, and 
 what is compulsory. These British debts must come within the 
 grasp of human power, like all other human things. They ceased 
 to have that external quality, and fell into that mass of power which 
 belonged to our legislature by the law of nations. 
 
 6. The law of custom only binding on nations adopting it. 
 
 But we are told that, admitting this to be true in the fullest 
 latitude, yet the customary law of Europe is against the exercise of 
 this power of confiscation of debts, in support of which position 
 they rely on what is added by Vattel, p. 484. Let us examine what 
 he says: "The sovereign has naturally the same right over what 
 his subjects may be indebted to enemies; therefore he may confis- 
 cate debts of this nature if the term of payment happen in the time 
 of war, or at least he may prohibit his subjects from paying while 
 the war lasts. But at present, in regard to the advantage and 
 safety of commerce, all the sovereigns of Europe have departed 
 from this rigor. And as this custom has generally been received, 
 he who should act contrary to it would injure the public faith; for 
 strangers trusted his subjects only from a firm persuasion that the 
 general custom would be observed." Excellent man! and excel- 
 lent sentiments! The principle cannot be denied to be good; but 
 when you apply it to the case before the court, does it warrant their 
 conclusions ? The author says, that although a nation has a right 
 to confiscate debts due by its people to an enemy, yet at present 
 the custom of Europe is contrary. It is not enough for this author 
 to tell us, that this custom is contrary to the right. He admits the 
 right. Let us see whether this custom has existence here. Vattel, 
 having spoken of the necessary law of nations, which is immutable, 
 and the obligations whereof are indispensable, thus proceeds to dis- 
 tinguish the several other kinds of natural law in the same pre- 
 liminary discourse: 
 
 " Certain maxims and customs consecrated by long use, and ob- 
 served by nations between each other as a kind of law, form this 
 customary law of nations, or the custom of nations. This law is 
 founded on a tacit consent, or, if you will, on a tacit convention of 
 the nations that observe it, with respect to each other. Whence it 
 appears that it is only binding to those nations that have adopted 
 it, and that is not universal, any more than conventional laws. It 
 must be here also observed of this customary law, that the partic- 
 ulars relating to it do not belong to a systematic treatise on the law 
 of nations, but that we ought to confine ourselves to the giving a 
 general theory of it, that is, to the rules which here ought to be 
 
10 ARGUMENT OF PATRICK HENRY 
 
 observed, as well with respect to its effects as in relation to the 
 matter itself; and in this last respect these rules will serve to dis- 
 tinguish the lawful and innocent customs from those that are un- 
 just and illegal ! 
 
 " When a custom is generally established, either between all the 
 polite nations in the world, or only between those of a certain con- 
 tinent, as of Europe for example, or those who have a more fre- 
 quent correspondence; if that custom is in its own nature indiffer- 
 ent, and, much more, if it be a wise and useful one, it ought to be 
 obligatory on all those nations who are considered as having given 
 their consent to it. And they are bound to observe it, with respect 
 to each other, while they have not expressly declared that they will 
 not adhere to it. But if that custom contains anything unjust or 
 illegal, it is of no force, and every nation is under an obligation to 
 abandon it, nothing being able to oblige or permit a nation to vio- 
 late a natural law. 
 
 "These three kinds of the law of nations, voluntary, conven- 
 tional and customary, together, compose the positive law of nations; 
 for they all proceed from the volition of nations: the voluntary 
 law from their presumed consent, the conventional law from an 
 express consent, and the customary law from a tacit consent; and 
 as there can be no other manner of deducing any law from the will 
 of nations, there are only these three kinds of the positive law of 
 nations." ' 
 
 This excellent author, after having stated the voluntary law of 
 nations to be the result of the equality of nations, and the conven- 
 tional law to be particular compacts or treaties, binding only on 
 the contracting parties, declares that the customary law of nations 
 is only binding to those nations that have adopted it; that it is a 
 particular and not a universal law; that it applies only to distinct 
 nations. The case of Alexander and the Thebans is founded on 
 the general law of nations, applicable to nations at war. It is 
 enough for me, then, to show that America, being at war, was en- 
 titled to the privilege of national law. 
 
 7. The law of custom prevailing in Europe not binding 
 
 IN America. 
 
 But, says Vattel, the present state of European refinement con- 
 trols the general law, of which he had been before speaking. We 
 know that the customary law of nations can only bind those who 
 are parties to the custom. In the year 1776, when America an- 
 nounced her will to be free, or in the year 1777, when the law con- 
 cerning British debts passed, was there a customary law of America 
 
 ' Vattel, pp. II and 12. 
 
' 0:S THE EIGHT TO CONFISC/LTE BRITISH DEBTS. 11 
 
 to this effect ? Or were the customary laws of Europe binding on 
 America ? Were we a party to any such customary law ? Was 
 there anything in our Constitution or laws which tied up our hands ? 
 No, sir. To make this customary law obligatory, the assent of all 
 the parties to be bound by it is necessary. There must be an inter- 
 change of it. It is not for one nation or community to say to an- 
 other, you are bound by this law, because our kingdom approves of 
 it. It must not only be reciprocal in its advantages and principles, 
 but it must have been reciprocal in its exercise. Virginia could 
 not, therefore, be bound by it. Let us see whether it could be a 
 hard case on the British creditors that this customary law of na- 
 tions did not apply in their favor. Were these debts contracted 
 from a persuasion of its observance ? Did the creditors trust to 
 this customary law of nations ? No, sir; they trusted to what they 
 thought as firm, the statute and common law of England. Victori- 
 ous and successful as their nation had lately been, when they, in 
 their pride and inconsiderate self-confidence, stretched out the 
 hand of oppression, their subjects placed no reliance on the cus- 
 toms of particular nations. They put confidence in those barriers 
 of right which were derived from their own nation. Their reli- 
 ance was, that the tribunals established in this country, under the 
 same royal authority as in England, would do them justice. If we 
 were not willing, they possessed the power of compelling us to do 
 them justice. 
 
 These debts having, therefore, not been contracted from any 
 reliance on the customary law of nations, were they contracted 
 from a regard "to the rights of commerce?" from a view of 
 promoting the commerce of those little things called colonies? 
 This regard could not have been the ground they were contracted 
 on, for their conduct evinced that they wished to take the right of 
 commerce from us. What other ingredient remains to show the 
 operation of this custom in their favor ? The book speaks of 
 strangers trusting subjects of a different nation, from a reliance on 
 the observance of the customary law. The fact here was, that 
 fellow subjects trusted us on the footing just stated; trusting to the 
 existing compulsory process of law, not relying on a passive inert 
 custom. A fearful, plodding, sagacious trader would not rely on 
 so flimsy, so uncertain a dependence. Something similar to what 
 he thought positive satisfaction he relied on. Were we not sub- 
 ject to the same king ? The cases are then at variance. He states 
 the custom to exist for the advantage of commerce, and that a de- 
 
12 ARGUMENT OF PATEICK HENRY 
 
 parture from it would injure the public faith. Public faith is in 
 this case out of the question. The public faith was not pledged; 
 it could not, therefore, be injured. I have already read to your 
 honors from the nth page of the preliminary discourse of Vattel, 
 " that the customary law of nations is only binding on those who 
 have adopted it, and that it is not universal any more than conven- 
 tional law." It is evident, we could not be bound by any conven- 
 tion or treaty to which we, ourselves, were not a party; and from 
 this authority it is equally obvious that we could not be bound by 
 any customary law to which we were not parties. 
 
 8. America an independent nation long prior to 17S3. 
 
 I think, therefore, with great submission to the court, that the 
 right for which I contended, that is, that in common wars between 
 independent nations either of the contending parties has a right to 
 confiscate or remit debts due by its people to the enemy, is not 
 shaken by the customary law of nations, as far as it regards us, 
 because the custom could not affect us. But, gentlemen, say we 
 were not completely independent till the year 1783! To take them 
 on their own ground, their arguments will fail them. There is a 
 customary law which will operate pretty strongly on our side of the 
 question. What were the inducements of the debtor ? On what 
 did the American debtor rely ? Sir, he relied for protection on 
 that system of common and statute law on which the creditors de- 
 pended. Was he deceived in that reliance ? That he was most 
 miserably deceived, I believe will not admit of a doubt. The cus- 
 tomary law of nations will only apply to distinct nations mutually 
 consenting thereto. When tyranny attempted to rivet her chains 
 upon us, and we boldly broke them asunder, we were remitted to 
 that amplitude of freedom which the beneficent hand of nature 
 gave us. We were not bound by fetters which are of benefit to 
 one party, while they are destructive to the other. Would it be 
 proper that we should be bound and they unrestrained ? Vattel, 
 book the 3d, ch. 8, sec. 137, says, that " the lawful end gives a true 
 right only to those means which are necessary for obtaining such 
 end. Whatever exceeds this is censured by the laws of nature as 
 faulty, and will be condemned at the tribunal of conscience. 
 Hence it is that the right to such or such acts of hostihty varies 
 according to their circumstances. What is just and perfectly inno- 
 cent in a war, in one particular situation, is not always so in an- 
 other. Right goes hand in hand with necessity and the exigency 
 
ON THE RIGHT TO CONFISCATE BRITISH DEBTS. 13 
 
 of the case, but never exceeds it." This, sir, is the first dictate of 
 nature and the practice of nations; and if your misfortunes and 
 distresses should be sad and dreadful, you are let loose from those 
 common restraints which may be proper on common occasions, in 
 order to preserve the great rights of human nature. 
 
 9. The acts of confiscation warranted by necessity. 
 
 This is laid down by that great writer in clear and unequivocal 
 terms. If, then, sir, it be certain, from a recurrence to facts, that 
 it was necessary for America to seize on British property, this book 
 warrants the legislature of this State in passing those confiscating 
 and prohibitory laws. I need only refer to your recollection for 
 our pressing situation during the late contest, and happy am I that 
 this all-important question comes on before the heads of those who 
 were actors in the great scene are laid in the dust. An uninformed 
 posterity would be unacquainted with the awful necessity which 
 impelled us on. If the means were within reach, we were war- 
 ranted by the laws of nature and nations to use them. The fact 
 was, that we were attacked by one of the most formidable nations 
 under heaven; a nation that carried terror and dread with its 
 thunder to both hemispheres. Our united property enabled us to 
 look in the face that mighty people. Dared we to have gone in 
 opposition to them bound hand and foot ? Would we have dared 
 to resist them fettered ? for we should have been fettered if we had 
 been deprived of so considerable a part of our little stock of na- 
 tional resources. In that most critical and dangerous emergency, 
 our all was but a little thing. Had we a treasury, an exchequer ? 
 Had we commerce ? Had we any revenue ? Had we anything 
 from which a nation could draw wealth ? No, sir. Our credit be- 
 came the scorn of our foes. However, the efforts of certain patri- 
 otic characters (there were not a few of them, thank heaven,) gave 
 us credit among our own people. But we had not a farthing to 
 spare. We were obliged to go on a most grievous anticipation, the 
 weight of which we feel at this day. Recur to our actual situation 
 and the means we had of defending ourselves. The actual situation 
 of America is described here, where this author says, " that right 
 goes hand in hand with necessity." The necessity being great and 
 dreadful, you are warranted to lay hold of every atom of money 
 within your reach, especially if it be the money of your enemies. 
 It is prudent and necessary to strengthen yourselves and weaken 
 your enemies. Vattel, book 3d, ch. 8, sec. 138, says: "The busi- 
 
14 ARGUMENT OF PATRICK HENRY 
 
 ness of a just war being to suppress violence and injustice, it gives 
 a right to compel, by force, him who is deaf to the voice of justice. 
 It gives a right of doing against the enemy whatever is necessary 
 for weakening him, for disabling him from making any further re- 
 sistance in support of his injustice; and the most effectual, the 
 most proper methods may be chosen, provided they have nothing 
 odious, be not unlawful in themselves, or exploded by the law of 
 nature." Here let me pause for a moment, and ask whether it be 
 odious in itself, or exploded by the law of nature, to seize those 
 debts ? 
 
 No, because the money was taken from the very offenders. We 
 fought for the great, unalienable, hereditary rights of human na- 
 ture. An unwarrantable attack was made upon us; an attack, not 
 only not congenial with motherly or parental tenderness, but in- 
 compatible with the principles of humanity or civilization. Our 
 defense, then, was a necessary one. What says Vattel, book 3d, 
 ch. 8, sec. 136: " The end of a just war is to revenge or prevent 
 injury; that is, to procure by force the justice which cannot other- 
 wise be obtained; to compel an unjust person to repair an injury 
 already done, or to give securities against any wrong threatened by 
 him. On a declaration of war, therefore, this nation has a right of 
 doing against the enemy whatever is necessary to this justifiable 
 end of bringing him to reason and obtaining justice and security 
 from him." We have taken nothing in this necessary defense, but 
 from the very offenders — those who unjustly attacked us; for we 
 had a right of considering every individual of the British nation as 
 an enemy. This I prove by the same great writer, p. 519, sec. 139, 
 of the same book: "An enemy attacking me unjustly gives an un- 
 doubted right of repelling his violence; and he who opposes me in 
 arms, when I demand only my right, becomes himself the real 
 aggressor by his unjust resistance. He is the first author of the 
 violence, and obliges me to make use of force for securing myself 
 against the wrongs intended me either in my person or possessions; 
 for if the effects of this force proceed so far as to take away his 
 life, he owes the misfortune to himself, for if, by sparing him, I 
 should submit to the injury, the good would soon become the prey 
 of the wicked. Hence the right of killing enemies in a just war is 
 derived; when their resistance cannot be suppressed, when they are 
 not to be reduced by milder methods, there is a right of taking 
 away their life. Under the name of enemies, as we have already 
 shown, are comprehended not only the first author of the war, but 
 
ON THE RIGHT TO CONFISCATE BRITISH DEBTS. 15 
 
 likewise all who join him and fight for .his cause." Thus I think 
 the first part of my position confirmed and unshaken: that, in com- 
 mon wars, a nation not restrained by the customary law of nations, 
 has a right to confiscate debts. 
 
 lo. Distinction between common war and revolution. 
 
 From this I will go on to the other branch of my position: that 
 if, in common wars, debts be liable to forfeiture, a fortiori, must 
 they be so in a revolution war. Let me contrast the late war with 
 wars in common. According to those people called kings, wars in 
 common are systematic and produced for trifles, for not conform- 
 ing to imaginary honors, because you have not lowered your flag 
 before him at sea; or for a supposed affront to the person of an 
 ambassador. Nations are set by the ears, and the most horrid de- 
 vastations are brought on mankind for the most frivolous causes. 
 If then, when small matters are in contest, debts be forfeitable, 
 what must have accrued to us as engaged in the late revolution 
 war — a war commenced in attainder, perfidy and confiscation ? If 
 we take with us this great principle of Vattel, that right goes in 
 hand with necessity, and consider the peculiar situation of the 
 American people, we will find reason more than sufficient to give 
 us a right of confiscating those debts. 
 
 The most striking peculiarity attended the American war. In 
 the first of it we were stripped of every municipal right. Rights 
 and obligations are correspondent, co-extensive and inseparable; 
 they must exist together or not at all. We were, therefore, when 
 stripped of all our municipal rights, clear of every municipal obli- 
 gation, burden, and onerous engagement. If, then, the obligation 
 be gone, what is become of the correspondent right ? They are 
 mutually gone. The case of sovereign and independent nations at 
 war is far different, because there private right is respected and 
 domestic asylum held sacred. Was it the case in our war ? No, 
 sir; daggers were planted in your chambers, and mischief, death 
 and destruction might meet you at your fireside. 
 
 II. Picture of the horrors of the American revolution. 
 
 There is an essential variance between the late war and common 
 wars. In common wars children are not obliged to fight against 
 their fathers, nor brothers against brothers, nor kindred against 
 kindred. Our men were compelled, contrary to the most sacred 
 ties of humanity, to shed the blood of their dearest connexions. 
 
16 ARGUMENT OF PATRICK HENRY 
 
 In common wars, contending parties respect municipal rights, and 
 leave, even to those they invade, the means of paying debts and 
 complying with obligations; they touch not private property. For 
 example, when a British army lands in France, they plunder 
 nothing; they pay for what they have, and respect the tribunals of 
 justice, unless they have a mind to be called a savage nation. 
 Were we thus treated ? Were we permitted to exercise industry 
 and to collect debts by which we might be enabled to pay British 
 creditors ? Had we a power to pursue commerce ? No, sir. What 
 became of our agriculture ? Our inhabitants were mercilessly and 
 brutally plundered, and our enemies professed to maintain their 
 army by those means only. Our slaves carried away, our crops 
 burnt, a cruel war carried on against our agriculture — disability to 
 pay debts produced by pillage and devastation, contrary to every 
 principle of national law. From that series of plenty in which we 
 had been accustomed to live and to revel, we were plunged into 
 every species of human calamity : our lives attacked, charge of 
 rebels fixed upon us, confiscation and attainder denounced against 
 the whole continent, and he that was called king of England sat 
 judge upon our case. He pronounced his judgment; not like those 
 to whom poetic fancy has given existence; not like him who sits in 
 the infernal regions and dooms to the Stygian lake those spirits 
 who deserve it, because he spares the innocent and sends some to 
 the fields of Elysium; not like him who sat in ancient imperial 
 Rome and wished the people had but one neck, that he might at 
 one blow strike off their heads and spare himself the trouble of 
 carnage and massacre, because one city would have satisfied his 
 vengeance; not like any of his fellow-men! — for nothing would sati- 
 ate his sanguinary ferocity but the indiscriminate destruction of the 
 whole continent, involving the innocent with the guilty. Yes; he 
 sat in judgment with his coadjutors, and pronounced proscription, 
 attainder and forfeiture against men, women, and even children at 
 the breast! Is not this description pointedly true in all its parts? 
 And who were his coadjutors and executioners in this strange court 
 of judicature ? Like the fiends of poetic imagination — Hessians, 
 Indians and Negroes were his coadjutors and executioners. Is 
 there anything in this sad detail of offenses which is unfounded ? 
 anything not enforced by the act of parliament against America! 
 We were thereby driven out of their protection and branded by the 
 epithet "rebels!" The term rebel may not now appear in all its 
 train of horrid consequences. We know that when a person is 
 
ON THE RIGHT TO CONFISCATE BRITISH DEBTS. 17 
 
 called rebel by that government, his goods and life are forfeited, 
 and his very blood pronounced to be corrupted, and the severity 
 of the punishment entailed on his posterity. To whom may we 
 apply for the verity of this ? The jurisprudence and history of that 
 nation prove that, when they speak of rebels, nothing but blood 
 will satisfy them. Is there nothing hideous in this part of the por- 
 trait ? It is unparalleled in the annals of mankind. Though I 
 have respect for individuals of that nation, my duty constrains me 
 to speak thus. 
 
 When we contemplate this mode of warfare, and the sentiments 
 of the writers on natural law on this subject, we are justified in 
 saying that, in this revolution war, we had a right to consider Brit- 
 ish debts as subject to confiscation, and to seize the property of 
 those who originated that war. As to the injuries done to agricul- 
 ture, they appear in a diminutive view when compared to the in- 
 juries and indignities offered to persons and mansions of abode. 
 Sir, from your seat you might have seen instances of the most 
 grievous hostility: not only private property wantonly pillaged, but 
 men, women and children dragged publicly from their habitations, 
 and indiscriminately devoted to destruction. The rights of human- 
 ity were sacrificed! We were then deprived not only of the benefits 
 of municipal, but natural law. If there shall grow out oi these 
 considerations a palpable disability to pay those debts, I ask if the 
 claim be just ? For that disability was produced by those excesses, 
 by those very men who come on us now for payment. Here give 
 me leave to say that they sold us a bad title in whatever they sold 
 us, in real as well as in personal property. 
 
 12. England, by withdrawing her protection, destroyed 
 title in all property. 
 
 Describe the nature of a debt: it is an engagement or promise 
 to pay, but it must be for a valuable consideration. If this be 
 clear, was not the title to whatever property they sold us, bad in 
 every sense of the word when the war followed ? What can add 
 value to property ? Force. Notwithstanding the equity and fair- 
 ness of the debt when incurred, if the security of the property re- 
 ceived was afterward destroyed, the title has proved defective. 
 Suppose millions were contracted for and received, those millions 
 give you no advantage without force to protect them. This neces- 
 sary protection is withdrawn by the very men who were bound to 
 afford it, and who now demand payment. Neither lands, slaves, 
 2 
 
18 ARGUMENT OF PATRICK HENRY 
 
 nor other property, are worth a shilling without protecting force. 
 This title was destroyed, when the act of parliament, putting us out 
 of their protection, passed against America. I say, sir, the title 
 was destroyed by the very offenders who come here now and de- 
 mand payment. Justice and equity cancel the obligation as to the 
 price that was to be given for it, because the tenure is destroyed 
 and the effects purchased have no value. Such a claim is unsup- 
 ported by the plainest notions of right and wrong. For this long 
 catalogue of offenses committed against the citizens of America, 
 every individual of the British nation is accountable. How are 
 you to be compensated for those depredations on persons and 
 property ? Are you to go to the kingdom of England to find the 
 very individual who did you the outrage, and demand satisfaction 
 of him ? To tell you of such a remedy as this, is adding insult to 
 injury. Every individual is chargeable with national offenses. 
 
 Mr. Henry cited Vattel to maintain this proposition. He then proceeded : 
 
 These observations of Vattel amount to this: that a king or 
 conductor of a nation is considered as a moral person, by means 
 of whom the nation acquires or loses its rights, and subjects itself 
 to penalties. The individuals, and the nation which they compose, 
 are one. I will, therefore, take it for granted, that whatever vio- 
 lences and excesses were committed on this continent, are charge- 
 able to the plaintiff in this very action. Recollect our distressed 
 situation. We had no exchequer, no finances, no army, no navy, 
 no common means of defense. Our necessity — dire necessity — 
 compelled us to throw aside those rules which respect private prop- 
 erty, and to make impresses on our own citizens to support the 
 war. Right and necessity being co-extensive, we were compelled 
 to exert a right the most eminent over the whole community. The 
 salus fopuli demanded what we did. If we had a right to disre- 
 gard the legal fences drawn round the property of our citizens, had 
 we not a greater right to take British property ? 
 
 13. The issuing of paper money by the colonies compelled 
 
 BY necessity. 
 
 Another peculiarity contributes to aid our defense. The want 
 of an exchequer obliged us to emit paper money, and compel our 
 citizens to receive it for gold. In the ears of some men this sounds 
 harshly. But they are young men, who do not know and feel the 
 irresistible necessity that urged us. Would your armies have been 
 
ON THE BIGHT TO CONFISCATE BRITISH DEBTS. 19 
 
 raised, clothed, maintained or kept together without paper money ? 
 Without it, the war would have stood still, resistance to tyranny- 
 would have stopped, and despotism, with all its horrid train of ap- 
 purtenances, must have depressed your country. We compelled 
 the people to receive it in payment of all debts; we induced and 
 invited them (if we did not compel them) to put it into the treasury 
 as a complete discharge from their debts. Sir, I trust I shall not 
 live to see the day when the public councils of America will give 
 ground to say that this was a State trick, contrived to delude and 
 defraud the citizens. What must it be ostensibly, when, by the 
 compact of your nation, they had publicly bound and pledged 
 themselves that it was and should be money, if afterward, in the 
 course of human events, when temptations present themselves, they 
 shall declare that it is not money ? Sir, the honest planter is un- 
 skilled in political tricks and deceptions. His interest ought never 
 to be sacrificed. The law is his guide; the law compelled him to 
 receive it, and his countrymen would have branded him with the 
 name of enemy if he had refused it. The laws of the country are 
 as sacred as the imaginary sanctity of British debts. Sir, national 
 engagements ought to be held sacred; the public violation of this 
 solemn engagement will destroy all confidence in the government 
 If you depart from the national compact one iota, you give a 
 dangerous precedent which may imperceptibly and gradually intro- 
 duce the most destructive encroachment on human rights. 
 
 I will beg leave here to dissent from the position of the gentle- 
 men on the other side, which denied that we were a people till our 
 enemies were pleased to say we were so. That we were a people, 
 and had a right to do everything which a great and a royal, nay 
 an imperial people could do, is clear and indisputable. Though 
 under the humble appearance of republicanism, our government 
 and national existence, when examined, are as solid as a rock, not 
 resting on the mere fraud and oppression of rulers, nor the credul- 
 ity nor barbarous ignorance of the people, but founded on the 
 consent and conviction of enlightened human nature. That we 
 had every right that completely independent nations can have, will 
 be satisfactorily proved to your honors by again referring to Vattel. 
 
 Here Mr. Henry read a passage from Vattel, the effect of which is, that 
 during a civil war the parties acknowledging no common judge on earth are to 
 be considered as two distinct people, and to govern themselves in the conduct of 
 the war by the general laws of nations. He then proceeded : 
 
20 ARGUMENT OF PATRICK HENRY 
 
 Here then, sir, is proof abundant, that, before the acknowledg- 
 ment of American independence by Great Britain, we had a right 
 to be considered as a nation, because on earth we had no common 
 superior to give a decision of the dispute between us and our sov- 
 ereign. After declaring ourselves a sovereign people, we had every 
 right a nation can claim as an independent community. But the 
 gentlemen on the other side greatly rely upon this principle, that a 
 contract cannot be dissolved without the consent of all the contract- 
 ing parties; the inference is, that the consent of the king of Great 
 Britain was necessary to the dissolution of the government. 
 Tyranny has too often and too successfully riveted his chains to 
 warrant a belief that a tyrant will ever voluntarily release his sub- 
 jects from the governmental compact. Rather might it be expected 
 that the last iota of human misery would be borne, and the oppres- 
 sion would descend from father to son, to the latest period of 
 earthly existence. The despotism of our sovereign ought to be 
 considered as an implied consent, on his part, to dissolve the com- 
 pact between us; and he and his subjects must be considered as 
 one — there can be no distinction; for, in any other view, his con- 
 sent could not have been obtained without force. There is such a 
 thing, indeed, as tyranny from free choice. Sweden, not long ago, 
 surrendered its liberties in one day, as Denmark had done former- 
 ly; so that this branch of the human family is cut off from every 
 possible enjoyment of human rights. But the right to resist op- 
 pression is not denied. The gentleman's doctrine cannot, there- 
 fore, apply to national communities. 
 
 14. Contracts dissolved without the consent of the 
 KING OF Great Britain. 
 
 If any additional force was wanting to confirm what I advance, 
 it would be derived from the treaty of peace, which further proves 
 that we were entitled to all the privileges of independent nations. 
 The consent of all the people of Europe said we were free. Our 
 former master withheld his consent till a few unlucky events com- 
 pelled him. And when he gave his^a/, it gave us, by relation back 
 to the time of the declaration of independence, all the rights and 
 privileges of a completely sovereign nation; our independence was 
 acknowledged by him previous to the completion of the treaty of 
 peace. It was not a condition of the treaty, but was acknowl- 
 edged, by his own overture, preparatory to it. View the conse- 
 quences of their fatal doctrine. There would not only have been 
 
OS THE RIGHT TO CONFISCATE BRITISH DEBTS. 21 
 
 long arrears of debts to pay, but a long catalogue of crimes to be 
 punished. If the ultimate acknowledgment of our independence 
 by Great Britain had not relation back to the time of the declara- 
 tion of independence, all the intermediate acts of legislation would 
 be void, and every decision and act, consequent thereon, would be 
 null. But, sir, we were a complete nation on every principle, ac- 
 cording to the authorities I have already read, in addition to which 
 I will refer your honors to Vattel, book 4th, ch. 7, sec. 88, to show 
 we were entitled to the benefits of national law, and to use all the 
 resources of the community: " From the equality of all nations 
 really sovereign and independent, it is a principle of the voluntary 
 law of nations, that no nation can control another in its internal 
 municipal legislation." If we consider the business of confiscation 
 according to the immemorial usages of Great Britain, we will find 
 that the law and practice of that country support my position. In 
 the wars which respect revolutions, which have taken place in that 
 island — life, fortune, goods, debts, and everything else were confis- 
 cated. The crimen Icesa majestatis, as it is called, involved every- 
 thing. Every possible punishment has been inflicted on suffering 
 humanity that it could endure, by the party which had the superi- 
 ority in those wars, over the defeated party which was charged with 
 rebellion. 
 
 15. Consequences which would have resulted had England 
 conquered america. 
 
 What would have been the consequences, sir, if we had been 
 conquered ? Were we not fighting against that majesty ? Would 
 the justice of our opposition have been considered? The most 
 horrid forfeitures, confiscations and attainders would have been 
 pronounced against us. Consider their history, from the time of 
 William the First till this day. Were not his Normans gratified 
 with the confiscation of the richest estates in England ? Read the 
 excessive cruelties, attainders and confiscations of that reign. En- 
 gland depopulated, its inhabitants stripped of the dearest privileges 
 of humanity, degraded with the most ignominious badges of bond- 
 age, and totally deprived of the power of resistance to usurpation 
 and tyranny. This inability continued to the time of Henry the 
 Eighth. In his reign, the business of confiscation and attainder 
 made considerable havoc. After his reign, some stop was put to 
 that effusion of blood which preceded and happened under it. 
 Recollect the sad and lamentable effects of the York and Lan- 
 
22 
 
 ARGUMENT OF PATRICK HENRY 
 
 castrian wars. Remember the rancorous hatred and inveterate de- 
 testations of contending factions, the distinction of white and red 
 roses. To come a little lower: what happened in that island in the 
 rebellions of 17 15 and 1745 ? If we had been conquered, would 
 not our men have shared the fate of the people of Ireland ? A 
 great part of that island was confiscated, though the Irish people 
 thought themselves engaged in a laudable cause. What confisca- 
 tion and punishments were inflicted in Scotland ? The plains of 
 CuUoden, and the neighboring gibbets, will show you. I thank 
 heaven that the spirit of liberty, under the protection of the Al- 
 mighty, saved us from experiencing so hard a destiny. But had we 
 been subdued, would hot every right have been wrested from us ? 
 What right would have been saved ? Would debts have been 
 saved ? Would it not be absurd to save debts while they should 
 burn, hang and destroy ? 
 
 Before we can decide with precision, we are to consider the 
 dangers we should have been exposed to had we been subdued. 
 After presenting to your view this true picture of what would have 
 been our situation, had we been subjugated; surely a correspondent 
 right will be found, growing out of the law of nations, in our favor. 
 Had our subjugation been effected, and we pleaded for pardon — 
 represented that we defended the most valuable rights of human 
 nature, and thought they were wrong — would our petition have 
 availed ? I feel myself impelled, from what has passed, to ask 
 this question. I would not wish to have lived to see the sad scenes 
 we should have experienced. Needy avarice and savage cruelty 
 would have had full scope. Hungry Germans, blood-thirsty Indi- 
 ans, and nations of another color would have been let loose upon 
 us. The sad effects of such warfare have had their full influence 
 on a number of our fellow-citizens. Sir, if you had seen the sad 
 scenes which I have known; if you had seen the simple but tranquil 
 felicity of helpless and unoffending women and children, in little 
 log-huts on the frontiers, disturbed and destroyed by the sad effects 
 of British warfare and Indian butchery, your soul would have been 
 struck with horror! Even those helpless women and children were 
 the objects of the most shocking barbarity. 
 
 Give me leave again to recur to Vattel, p. 9: "Nations being 
 free, independent and equal, and having a right to judge according 
 to the dictates of conscience, of what is to be done in order to ful- 
 fill its duties; the effect of all this is the producing, at least ex- 
 ternally and among men, a perfect equality of rights between na- 
 
ON THE RIGHT TO CONFISCATE BRITISH DEBTS. 23 
 
 tions in the administration of their affairs, and the pursuit of their 
 pretensions, without regard to the intrinsic justice of their conduct, 
 of which others have no right to form a definite judgment, so that, 
 what is permitted in one, is also permitted in the other; and they 
 ought to be considered in human society as having an equal right." 
 If it be allowed to the British nation to put to death, to forfeit and 
 confiscate debts and everything else, may we not (having an equal 
 right) confiscate — not life, for we never desire it — but that which is 
 the common object of confiscation: property, goods, and debts, 
 which strengthen ourselves and weaken our enemies ? I trust that 
 this short recapitulation of events shows that, if there ever was in 
 the history of man a case requiring the full use of all human means, 
 it was our case in the late contest; and we were, therefore, war- 
 ranted to confiscate the British debts. 
 
 i6. In a state of nature, municipal rights and obliga- 
 tions ARE dissolved. 
 
 I beg leave to add that these debts are lost on another prin- 
 ciple. By the dissolution of the British government, America went 
 into a state of nature; on the dissolution of that of which we had 
 been members, there being no government antecedent, we went ' 
 necessarily into a state of nature. To prove this, I need only refer 
 to the declaration of independence, pronounced on the fourth day 
 of July, 1776, and our State Constitution. It recites many in- 
 stances of misrule by the king of England; it asserts the right and 
 expediency of dissolving the British government and going into a 
 state of nature, or, in other words, to establish a new government. 
 The right of dissolving it and forming a new system, had preceded 
 the fourth day of July, 1776. A recapitulation of the events of the 
 tyrannical acts of government would demonstrate a right to dis- 
 solve it. But I may go farther and even say, that the act of parlia- 
 ment which declared us out of the king's protection dissolved it. 
 For what is government ? It is an express or implied compact be- 
 tween the rulers and ruled, stipulating reciprocal protection and 
 obedience. That protection was withdrawn, solemnly withdrawn 
 from us. Of consequence, obedience ceased to be due. Our mu- 
 nicipal rights were taken away by one blow. Municipal obligations 
 and government were also taken away by the same blow. Well, 
 then, there being no antecedent government, we returned into a 
 state of nature. Unless we did so, our new compact of govern- 
 ment could only be a usurpation. In a state of nature, there is no 
 
24 ARGUMENT OF PATRICK HENRY 
 
 legal lien in the person or property of any one. If you are not 
 clear of every antecedent engagement, what is the legality or 
 strength of the present Constitution of government ? If any ante- 
 cedent engagements are to bind, how far are they to reach ? You 
 had no right to form a new government, if the old system existed; 
 and if it did not exist, you were necessarily and inevitably in a 
 state of nature. In my humble opinion, by giving validity to such 
 claims, you destroy the very idea of the right to form a new gov- 
 ernment. Vattel calls government the totality of persons, estates, 
 and effects, formed by every individual of the new society, and that 
 totality represented by the governing power. How can the totality 
 exist while an antecedent right exists elsewhere ? See Grotius, p. 4, 
 which I have already read, and note 29; because the design and 
 good of .civil society necessarily require that the natural and ac- 
 quired rights of each member should admit of limitations several 
 ways, and, to a certain degree, by the authority of him or them in 
 whose hands the sovereign authority is lodged. When we formed 
 a new government, did there exist any authority that limited our 
 rights ? How can the totality exist, if any other person or persons 
 have an existing claim upon you ? It appears to me that that equal- 
 ity which is involved in a state of nature cannot exist while such 
 claim exists. The court will recollect what I have already read 
 out of Vattel, in the sections 15 and 18. The equality here ascribed 
 to independent nations is equally ascribed to men in a state of na- 
 ture. A moral society of persons cannot exist without this abso- 
 lute equality. The existence of individuals in a state of nature de- 
 pends in like manner upon, and is inseparable from such equality. 
 Rights, as before mentioned, Vattel, pp. 8 and 9, are divided 
 into internal and external; of external rights he makes the distinc- 
 tion of perfect and imperfect. I beseech your honors to fix this 
 distinction in your minds. The perfect external right only is ac- 
 companied with the right of constraint. The imperfect right loses 
 that quality and leaves it to the party to comply or not to comply 
 with it. When the former government was dissolved, the American 
 people became indebted to nobody. You either owe everything or 
 nothing; and every contract and engagement must be done away, 
 if any. In a state of nature you are free and equal. But how are 
 you free, if another have a lien on your body ? Where is your 
 freedom or your equality with that person who has the right of 
 constraining you ? This right of constraint implies a complete au- 
 thority over you, but not, however, to enslave you. This constraint 
 
ON THE RIGHT TO CONFISCATE BRITISH DEBTS. 23 
 
 is always adequate to the right or obligation. Where can you find 
 the possibility of this equality which nature gives her sons, if we 
 admit an existing right of constraint ? If it be a fact that on the 
 dissolution of the government we did enter into a state of nature 
 (and that we did, I humbly judge cannot be denied, as at that time 
 no government existed at all), it destroys all claim to one farthing. 
 This will be found to be true, as well upon the ground of equity 
 and good conscience as in law, when it is considered, that when we 
 went into a state of nature, the means of paying debts were taken 
 away from us by them ; because, so far as they had power over us, 
 they prevented us from getting money to pay debts. They inter- 
 dicted us from the pursuit of profitable commerce; from getting 
 gold and silver, the only things they would take; they unjustly 
 drove us to this extremity. By the concession of the worthy gen- 
 tleman, their attack upon us was unjust. 
 
 17. Debts, like other property, subject to forfeiture. 
 
 But, then, debts are not subject to confiscation, say gentlemen, 
 because there were no inquests, no office found for the common- 
 wealth. Has a debt an ear-mark ? Is it tangible or visible ? Has 
 it any discriminating quality ? Unless tangible or visible, how is it 
 to be ascertained or distinguished ? What does an inquest mean ? 
 A solemn inquiry by a jury, by ocular examination, with other 
 proofs. If an inquest of office were to he had of land, a jury could 
 tell the lines and boundaries of it, because they may be distin- 
 guished from others, and its identity may thereby be ascertained. 
 If a horse be the object of inquiry, he can be easily distinguished 
 from any other horse. In like manner every other article of visible 
 property may be subject to inquests; but such a thing as an inquest 
 of a debt never existed, as far as my legal knowledge extends. 
 What are to be the consequences if this proceeding be requisite ? 
 You must set up a court of inquisition, summon the whole nation, 
 and ask every man how much do you owe ? This would be pro- 
 ductive of endless confusion, perplexity and expense, without the 
 desired effect. The laws of war and of nations require no more 
 than that the sovereign power should openly signify its will that 
 the debts be forfeited. There is no particular forensic form neces- 
 sary. The question here is not whether this confiscation be tra- 
 versed in all the forms of municipal regulations. There is a ques- 
 tion between Great Britain and America similar to that between 
 Alexander and the Thebans. Has the sovereign signified his pleas- 
 
26 ARGUMENT OP PATRICK HEXRY 
 
 ure that debts be remitted? A sign is . completely sufficient, if it 
 be understood by the people. There is a necessity of thus speak- 
 ing the legislative will, that the other party may know it and retali- 
 ate; for what is allowed to one, is to both parties. This was differ- 
 ent from the nature of a solemn war. War is lawful or unlawful, 
 according to the manner of conducting it. In the prosecution of a 
 lawful solemn war, it is necessary that you do not depart from cer- 
 tain rules of moderation, honor and humanity, but act according 
 to the usual practice of belligerent powers. Did the mother- 
 country conduct the war against us in this manner ? We did 
 openly say, we mean to confiscate your debts, and modify them, 
 because they have lost their perfect external quality; they are im- 
 perfect ; we claim that right, as a sovereign people, over that 
 species of your property. Sir, it was not done in a comer. It 
 was understood by our enemies. They had a right to retaliate on 
 any species of our property they could find. The right of retalia- 
 tion, or just retortion, for equivalent damage on any part of an 
 enemy's property, is permitted to every nation. What right has 
 the British nation (for if the nation have not the right, none of its 
 people have) to demand a breach of faith in the American govern- 
 ment to its citizens ? 
 
 1 8. Effect of the payment of paper currency to the 
 LOAN office. 
 
 I have already mentioned the engagement of the government 
 with its citizens respecting the paper money. If you take it, 
 it shall be money. Shall it be judged now not to be money? 
 Shall this compact be broken for the sake of the British 
 nation ? No, sir; the language of national law is otherwise. Sir, 
 the laws of confiscation and paper money made together one sys- 
 tem, connected and sanctioned by the legislature, on which de- 
 pended once the fate of our country, and on which depend now 
 the happiness, the ease and comfort of thousands of your fellow- 
 citizens. Will it not be a breach of the compact with your people, 
 to say that the money is not to keep up its original standard in the 
 quality given it by law ? What were the effects of this system ? 
 What would have been the effects, had your citizens been apprised 
 that British debts must be paid ? Would they have taken the 
 money ? Would they have deposited the money in the loan office, 
 if they had been warned by law that they must deposit it subject 
 to the future regulations of peace; that it should not release them 
 
ON THE RIGHT TO CONFISCATE BRITISH DEBTS. 27 
 
 from their creditors ? However right it may appear now to decry 
 the paper money, it would have been fatal then; for America might 
 have perished without the aid and effect of that medium. Your 
 citizens, trusting to this compact, submitted to a number of things 
 almost intolerable — impressments and violences on their property; 
 it encouraged them to exert themselves in defense of their property 
 against, the enemy during the war. If the debt in the declaration 
 mentioned be recovered, the compact is subverted as respecting the 
 paper money. And this subversion is to take effect for the interest 
 of those men whom, by all laws human and divine, we were 
 obliged to consider as enemies ; men who were obliged to comply 
 with the regulations and requisitions of their king; and our people 
 will have been laboring, not for themselves, but for the benefit of 
 the British subject. 
 
 19. Application of the law of salvage. 
 
 When a vessel is in danger in a storm, those who abide on board 
 of her, and encounter the dangers of the sea to save her, are al- 
 lowed some little compensation for salvage, for their fidelity and 
 gallantry in endeavoring to prevent her loss; while those who aban- 
 don her are entitled to nothing. But, in opposition to this wise 
 and politic principle, we who have withstood the storms and 
 dangers, receive no compensation; but those who left the political 
 ship and joined those on the other side of the water who wished 
 to sink her, and who caused her to fight eight long years for her 
 preservation, shall come in at last and get their full share of this 
 vessel, and yet will have been exonerated fiom every charge. For 
 whom, then, were the people of America engaged in war ? Not for 
 themselves, I am sure; the property that they saved will not be for 
 themselves, but for those whom they had a right to call enemies. I 
 am not willing to ascribe to the meanest American the love of 
 money, or desire of eluding the payment of his debts, as the motive 
 of engaging in the war. No, sir; he had nobler and better views. 
 But he thinks himself well entitled to those debts, from the laws 
 and usages of nations, as a compensation for the injuries he has 
 sustained. There is a sad drawback on this property saved. A 
 national debt for seventeen years, considerable taxes which were 
 profusely laid during the war on lands and slaves; and, since the 
 peace, we have been loaded with a heavy taxation. I know that I 
 advocate this cause on a very advantageous ground when I speak 
 of the right of salvage. The cargo on board the wrecked vessel 
 
28 ARGUMENT OF PATRICK HENRY 
 
 belongs to the British, it will have been saved for them; but the 
 salvage is due to us only. If you take it on the ground of interest, 
 you may hold as a pledge, you may retain for salvage. If you take 
 it on the scale of the common law, or of national law, you may op- 
 pose damages to debts, retain the debts, to retribute and compen- 
 sate for the injuries they have done you. I have not got over and 
 I trust established the first point; that is, that debts in common 
 wars are subject to forfeiture, and much more so in a revolution 
 war like the American was. 
 
 Here Mr. Henry proceeded to argue that a debt once forfeited is gone for 
 ever, unless revived by treaty. He discussed the rules by which treaties are to 
 be construed, and contended that they could confer no benefit unless mutually 
 observed in good faith; that the stipulations of a treaty are in the nature of a 
 condition precedent, and that a breach on either side dissolves the covenant. 
 He then showed in what respects the treaty had been violated by England, and 
 that these violations were admitted by the demurrer. Next he argued that a 
 British subject could claim no advantage from a treaty annulled by the sovereign, 
 because the individual was bound by the acts of the sovereign. He continued: 
 
 Here are two moral persons, Great Britain and America, making 
 a contract. The plaintiff claims and the defendant defends under 
 and through them; and if either nation or moral person has no 
 right to benefits from such a contract, individuals claiming under 
 them can have none. The plaintiff then claims under his nation, 
 but if that nation have committed perfidy respecting the observ- 
 ance of the compact, no right can be carried therefrom to the 
 plaintiff. It puts him back in the same situation he was in before 
 the treaty. 
 
 Here Mr. Henry cited Vattel to sustain his position. To consider a treaty 
 void as to all the individuals of a nation collectively, while each individual of 
 that nation might separately enforce it, was a paradoxical absurdity. He then 
 claimed that the treaty, even if in force, could not operate on plaintiff's claim 
 since it was discharged by payment into the loan office, before the treaty was 
 made. He continued: 
 
 20. Defendant's debt did not exist when the treaty of 
 
 PEACE WAS signed. 
 
 To derive a benefit from the treaty, the plaintiff must demand a 
 bona fide debt; that is, a debt bona fide due. The word debt im- 
 plies that the thing is due; for if it be not due, how can it be a 
 debt ? To give to these words, " all debts heretofore contracted," 
 a strictly literal sense, would be to authorize a renewed demand 
 for debts which had been actually paid off to the creditor; for 
 
ON THE RIGHT TO CONFISCATE BRITISH DEBTS. 29 
 
 these were certainly within the words of the treaty, being debts 
 heretofore contracted. To avoid this absurd and dishonest conse- 
 quence, you must look at the intention of the thing; and the inten- 
 tion certainly was to embrace those cases where there had not 
 been a legal payment. I ask why a payment made in gold and 
 silver is a legal payment ? Because the coin of those metals is made 
 current by the laws of this country. If paper be made current by 
 the same authority, why should not a payment in it be equally 
 valid ? The British subject cannot demand payment, because I 
 confront his demand with a receipt. Why will a receipt discharge 
 in any instance ? Because it is founded on the laws of the country. 
 A receipt given in consequence of a payment in coin, is a legal 
 discharge, only because the laws of the country make it so. I ask, 
 then, why a receipt given in consequence of a payment into the 
 treasury be not of equal validity, since it has precisely the same 
 foundation ? It is expressly constituted a discharge by a legisla- 
 ture having competent authority. This debt, therefore, having 
 been legally paid by the contractor, was not due from him at the 
 time of making the treaty, and therefore is not within the intention 
 of that instrument. But, say the gentlemen on the other side, the 
 one payment has the consent of the creditor, and the other has 
 not; he who paid coin has the creditor's consent to the discharge, 
 but he who paid money into the treasury wants it. Have we not 
 satisfied this honorable court that the governing power had a right 
 to put itself in the place of the British subjects ? Having had an 
 unquestionable right to confiscate, sequester or modify those debts 
 as they pleased, they had an equally indubitable right to substitute 
 themselves in the stead of the plaintiff, otherwise those authorities 
 have been quoted in vain. 
 
 Here Mr. Henry argued that the contract was governed by the lex loci contractus, 
 and having been discharged under a valid law of the place where it vifas made, 
 there was no subsisting debt when the treaty was made. He then discussed the 
 right of the court to take cognizance of the violation of the treaty, on the ground 
 that the facts being admitted by the pleadings, it must declare the law arising on 
 the facts. He continued : 
 
 21. Plaintiff must show full compliance with the 
 
 TREATY. 
 
 The existence or non-existence of the treaty was a legal infer- 
 ence from the facts agreed, which the court alone were competent 
 to decide. The plaintiff himself had forced this question on the 
 
30 AKGUMENT OP PATKICK HENRY 
 
 court, by relying in his replication on the treaty, as restoring his 
 right to recover this debt. He sets up his right under this instru- 
 ment expressly, and then questions the jurisdiction of the court to 
 decide upon the instrument! The treaty, qtioad hoc, is the covenant 
 of the parties in this suit; the question presented by the pleadings 
 is, whether the plaintiff who, by that covenant, has taken upon 
 himself the performance of a precedent condition, can claim any 
 benefit under it, until he shall show that this precedent condition 
 has been performed. On this question the gentleman's argument 
 is, that the court have no power to decide on the construction of 
 the covenant, which he himself has brought before them; that they 
 have nothing to do with the dependence or independence of the 
 stipulations, or the reciprocal rights of the parties, to claim under 
 the covenant without showing a previous performance on their re- 
 spective parts! On the contrary, I insist that, under the Constitu- 
 tion of the United States, the question belongs peculiarly and ex- 
 clusively to the judicial department; that by the Constitution it 
 was expressly provided that the judicial power should extend to 
 all cases arising under treaties; that the law of treaties embraces 
 the whole extent of natural and national law; that the Constitution, 
 therefore, by referring all cases arising under treaties to the judici- 
 ary, has of necessity invested them with the power of appealing to 
 that code of laws by which alone the construction, the operation, 
 the efficacy, the legal existence or non-existence of treaties must 
 be tested; and by this code we are told, in the most emphatic 
 terms, that he who violates one article of a treaty releases the 
 other party from the performance of any part of it; that the refer- 
 ence of all cases arising under treaties to the judicial department, 
 carries with it every power near or remote, direct or collateral, 
 which is essential to a fair and just decision of those cases; that 
 in every such case the very first question is, is there a treaty or 
 not ? — not whether there has been a treaty, but whether there is an 
 existing, obligatory, operative treaty. To decide this question, the 
 court must bring the facts to the standard of the laws of nations; 
 and by this standard it had been shown that, in the case at bar, 
 there existed no treaty from which a British subject could claim 
 any benefit. If the judicial department has not the power of de- 
 ciding this question, there was no department in the American 
 government which possesses it. The State governments have 
 nothing to do with it; Congress cannot touch the subject; they 
 may, indeed, declare war for a violation; but a nation is not to be 
 
OIT THE RIGHT TO CONFISCATE BRITISH DEBTS. 31 
 
 forced to this extremity on every occasion. There are other modes 
 of redress, short of a declaration of war, to which nations have a 
 right to resort; and one of them, as I have shown, was the power 
 of withholding from the perfidious violator of a treaty those bene- 
 fits which he claimed under it. Now, Congress cannot by a law 
 declare a treaty void; it is not among those grants of power which 
 the Constitution makes to them; they cannot, therefore, meddle 
 with the subject in any other way than by a declaration of war; 
 neither can the President and Senate touch it. They can make 
 treaties; but the Constitution gives them no power to expound a 
 treaty, much less to declare it void; they can only unite with the 
 House of Representatives in punishing an infraction by a declara- 
 tion of war. To the judiciary alone, then, belongs this pacific 
 power of withholding legal benefits claimed under a treaty, because 
 of the mala fides of the party claiming them. 
 
 22. Power of interpretation of treaties in the courts. 
 
 Now, what will be the situation of this country, compared with 
 that of Great Britain, if you deny this power to the judiciary ? If 
 you have not observed the treaty with good faith, and go to En- 
 gland, claiming any benefit under the treaty, there is a power there, 
 called royal prerogative, which will tell you: No; go home and act 
 honestly, and you shall have your rights under the treaty. Your 
 breach of faith will not drive them to a declaration of war; there 
 is a power there which obtains redress by withholding your rights, 
 until you act with good faith; but where is the reciprocal and cor- 
 responding power in our government, if it be not in the judiciary ? 
 It is nowhere; we have no redress short of a declaration of war. 
 Is this one of the precious fruits of the adoption of the federal 
 Constitution, to bind us hand and foot with the fetters of techni- 
 cality, and leave us no way of bursting them asunder, but by a de- 
 claration of war and the effusion of human blood! It was never 
 intended. The wisdom and virtue which framed the Constitution 
 could never have intended to place the country in this humiliating 
 and awful predicament. Give to this power of deciding on treaties, 
 which is delegated to the federal judiciary, a liberal construction; 
 give them all the incidental powers necessary to carry it into effect; 
 open to them the whole region of natural and national law, which 
 furnishes the only rule of expounding those national compacts 
 called treaties, and your government is unmutilated, its measure of 
 power is full up to the exigencies of the nation, and you treat on 
 
32 ARGUMENT OF PATRICK HENRY 
 
 equal terms. But upon the opposite construction, much better would 
 it be that America should have no treaties at all, than that, having 
 them, she should want those means of enforcement and redress 
 which all other nations possess. 
 
 Mr. Henry then ridiculed the argument of the plaintiff, that under the law 
 of nations only estates of an alien enemy were liable to confiscation, and that 
 mere chases in action, owing to their incorporeal and intangible nature, could 
 not be confiscated. He continued: 
 
 23. A CHOSE IN ACTION A SUBJECT OF FORFEITURE. 
 
 But a chose in action is not liable to forfeiture. Why? Because 
 it is too terrible to be done. There is such a thing as straining at 
 a gnat and swallowing a camel. Things much more terrible have 
 been done; things from which our nature, where it has any pre- 
 tensions to be pure and correct, must recoil with horror. Show me 
 those laws which forfeit your life, attaint your blood, and beggar 
 your wife and children. Those sanguinary and inhuman laws, to 
 which everything valuable must yield, are to be found in the code 
 of that people under whom the plaintiff now claims. Is it so ter- 
 rible to confiscate debts, when they forfeit life and corrupt the very 
 source of your blood ? Though every other thing dear to human- 
 ity is forfeitable, yet debts, it seems, must be spared! Debts are 
 too sacred to be touched! It is a mercantile idea that worships 
 mammon instead of God. A chose in action shall pass; it is with- 
 out your reach. What authority can they adduce in support of 
 such conclusive pre-eminence for debts ? No political or human 
 institutioh has placed them above other things. If debt be the most 
 sacred of earthly obligations, I am uninformed from whence it has 
 derived that eminence. The principle is to be found in the day- 
 books, journals and ledgers of merchants, not in the writings or* 
 reasonings of the wise and well-informed — the enlightened instruc- 
 tors of mankind. Can any gentleman show me any instance where 
 the life or property of a gentleman or plebeian in England is" for- 
 feited, and yet his debts spared ? The State can claim debts due 
 to one guilty of high treason. Are they not subject to confisca- 
 tion ? I concur in that sound principle, that good faith is essential 
 to the happiness of mankind; that its want stops all human inter- 
 course and renders us miserable. This principle is permanent and 
 universal. Look to what point of the compass you will, you will 
 find it pervading all nations. Who does not set down its sacred 
 influence as the only thing that comforts human life ? Does the 
 
ON THE EIGHT TO CONFISCATE BRITISH DEBTS. 33 
 
 plaintiff claim through good faith ? How does he derive his claim ? 
 Through perfidy; through a polluted channel. Everything of that 
 kind would have come better from our side of the question than 
 from theirs. 
 
 But the gentleman ' has observed, that neither the declaration 
 of the legislature, by the act of 1779, that the British subjects had 
 become aliens, and their property vested in the commonwealth, nor 
 any other act passed on the subject, could divest the debts out of 
 the British creditors. It cannot be done without the solemnity of 
 an inquiry by a jury. The debt of A. or B. cannot be given to C, 
 without this solemnity. Is the little legality of forms which are 
 necessary when you speak of estates and titles, requisite on such 
 mighty occasions as these ? When the fate of a nation is con- 
 cerned, you are to speak the language of nature. When your very 
 existence is at stake, are you to speak the technical language of 
 books, and to be confined to the limited rules of technical criti- 
 cism ? to those tricks and quirks, those little twists and twirls of 
 low chicanery and sophistry, which are so beneficial to professional 
 men ? Alexander said, in the style of that mighty man, to the 
 Thessalian: "You are free from the Thebans," and the debts they 
 owed them were thereby remitted. Every other sovereign has the 
 same right to use the same natural, manly and laconic language; 
 not when he is victorious only, but in every situation, if he be in a 
 state of hostility with other nations. The acts use not the language 
 of technicality, they speak not of releases, discharges and acquit- 
 tances; but they speak the legislative will, in simple speech, to the 
 human understanding — a style better suited to the purpose than the 
 turgid and pompous phraseology of many great writers. 
 
 ' Mr. Ronald. 
 
PUBLIC OPINION INVARIABLY AGAINST THE PRISONER. 
 
 JAMES T. BRADY. 
 
 My learned friend, the District Attorney/ and myself, do not exactly 
 agree in our notions about men and human nature. He said that I 
 " spolie rather lilce a cynic than a philosopher,'' when I declared that man 
 would much more readily believe evil of his neighbor than good. I retain 
 my opinion. There is an instinct in every human being that relates to the 
 purpose for which the Almighty seems to have designed him, — a roving 
 hunter, — "to live as the hunter liveth, and to die as the hunter dieth." 
 No race of mankind is ever satisfied with the place in which it first achieved 
 prosperity. However large, rich and fertile the domain possessed, we are 
 ever eager to push out, even in the midst of our luxuries and enjoyments, 
 and seek new theatres for physical and intellectual effort. When we look 
 back upon history, we find that civilization has forced its path over the 
 ruins of empires ; and there is not a single fallen column, there is not a 
 smouldering cornice, nor a piece of stone round which the weeds cluster in 
 desolate places where at one period luxury, refinement, and art may have 
 existed, which was not in its overthrow a necessary foothold for that prog- 
 ress which, we think, has advanced us to a position so enviable in these 
 latter days. We are a restless, roving race of hunters ; and the very mo- 
 ment you give the common multitude an object to pursue, the instinct of 
 the chase naturally tends to superiority over judgment and humanity. 
 When any thing flieth from mankind they all pursue ; let it turn with the 
 courage of a rat, and the multitude are likely to fall back. The instinct of 
 our race is developed in the administration of the law. When a man is 
 charged with what is termed a " great crime," did you ever know the news- 
 papers to suggest that he might possibly be innocent ? Is that because 
 editors are destitute of humanity ? No, but entirely because of this in- 
 stinct If you go into a court of justice you will find that in almost every 
 extraordinary case, the instincts of the multitude are with the State. When 
 the prosecution are in want of testimony, any man who, far off in Texas, 
 knows a fact that can assist the People, will communicate it to the district 
 attorney, but if you were charged with crime, accused, though innocent — 
 arrested, and brought to trial, men who were present, and saw the deed 
 committed by another, would often rather suffer you to die guiltless on the 
 scaffold, than come forward and confess that they were at the scene of the 
 occurrence, if that might expose them to shame or even to trouble. — 
 [From his argument ia defense of Huntington, charged with forgery, December 29, 1856.] 
 
 ' Mr. A. Oakey HaU. 
 [34] 
 
ARGUMENT OF WILLIAM PINKNEY. 
 
 On the Law of Constructive Treason, in the Defense 
 OF John Hodges. 
 
 [U. S. V. Hodges, 2 Wheeler's Cr. Cas. 477.] 
 
 AT A CIRCUIT COURT OF THE UNITED STATES, HELD 
 AT BALTIMORE, MD., MAY TERM, 181 5. 
 
 Analysis of Mb. Pinknet^s Argument. 
 
 ADDRESS TO THE COURT. 
 
 I. The jury, judges of both the law and the 
 facts. 
 
 :*. Criminal intent the essence of every of- 
 fense. 
 
 3. Illustrations of the rule. 
 
 4. Adhering to the enemy and levying war. 
 
 5. The unmistakable intention of the pris- 
 
 oner. 
 
 6. Crime proceeds always from a wicked 
 
 heart 
 
 7. The circumstances of the surrender. 
 
 ADDRESS TO THE JURY. 
 
 8. Conduct of^the court and the prosecu- 
 
 tion. 
 
 9. Law of treason defined. — Opinion of the 
 
 court not law. 
 
 zo. Motives of the prisoner laudable, not 
 criminal. 
 
 XI. Arraignment of the doctrine of con- 
 structive treason. 
 
 12. Practical results of doctrine announced 
 by the court. 
 
 The dual argument of Mr. Pinkney to the court and jury, forms part of an 
 episode in juridical history, which has no parallel since Thomas Erskine, at the 
 trial of the Dean of St. Asaph, withstood with respect and firmness what he re- 
 garded, on the part of the court, as an encroachment upon the province of the 
 jury and the constitutional and legal rights of his client. The conduct of the 
 latter resulted in the passage of Lord Camden's Act, which practically secured 
 the liberty of the press and the freedom of speech; the conduct of the former 
 abolished forever the idea that such an offense as " constructive treason " could 
 possibly exist under our system. The history and circumstances surrounding the 
 accusation and arrest of John Hodges were part of the res gesta of the unfortu- 
 nate engagement at Bladensburg and the burning of the city of Washington, 
 by the British, under General Ross, in the summer of 1814, in all of which Mr. 
 Pinkney bore a conspicuous part in defending his home and country. On their 
 way to Washington, the English sailed up the Chesapeake into the Patuxent river, 
 and landed at Benedict. Thence they passed through Upper Marlborough to 
 Bladensburg, where a battle was fought with the Americans, in which Mr. Pink- 
 ney, at the head of his gallant brigade of Baltimore riflemen, received a serious 
 wound. Four British stragglers, who had fallen behind the main army, were 
 taken prisoners by some of the inhabitants of Marlborough. When General 
 
 [35] 
 
36 ARGUMENT OF "WILLIAM PINKNEY 
 
 Ross discovered the fact, he demanded the return of the men from the Marlbor- 
 ough authorities, and accompanied his demand with a threat, that if they were 
 not surrendered before 12 o'cloclc that night, he would lay the town in ashes, 
 and hold as hostages the wives and children of the inhabitants. It seems that 
 the prisoners had been sent to the American camp some miles distant, and to 
 save the town John Hodges and his brother hastened thither, and besought Gen- 
 eral Bowie, who had charge of the captives, to deliver them, that they might be 
 restored to the enemy, at the same time informing him that the safety of the 
 town depended upon their immediate return. The General, aware of the dan- 
 ger which would result from a longer detention, and being himself powerless to 
 avert the threatened destruction, reluctantly gave the prisoners to Hodges, who 
 surrendered them to the enemy. For this act he was indicted for treason, and 
 tried before Hon. Justices Duvall, Bland and Houston, in the United States Cir- 
 cuit Court held at Baltimore, in May, 1815. Elias Glenn, Esq., appeared for 
 the government; U. S. Heath, J. E. Hall, and William Pinkney appeared for the 
 prisoner. 
 
 The crime of treason is thus defined by the Constitution: " Treason against 
 the United States shall consist only in levying war against them, or in adhering 
 to their enemies, giving them aid and comfort." ' By an act of Congress, ap- 
 proved April 30, 1790, it is declared, that "if any person or persons owing alle- 
 giance to the United States of America, shall levy war against them, or shall ad- 
 here to their enemies, giving them aid and comfort, within the United States or 
 elsewhere, and shall be thereof convicted on confession in open court, or on the 
 testimony of two witnesses to the same overt act of treason, whereof he or they 
 shall stand indicted, such person or persons shall be adjudged guilty of treason 
 against the United States, and shall suffer death." Under this act it was claimed 
 that the delivery of the prisoners by Hodges to the enemy was adhering to them, 
 and giving them aid and comfort, and was treason against the United Slates. 
 
 Such an attempt to deprive a good citizen of his life under the forms of law, 
 perhaps cannot be found in the history of American jurisprudence, and it would 
 seem almost incredible that in the tribunals of a popular government, an effort 
 should be made to revive judicial murder under the guise of constructive treason. 
 To claim that the delivery to the enemy of four prisoners, compelled by a bar- 
 barous and inhuman threat, involving the ruin of an entire community, was de- 
 liberate treason, and that such surrender, under such circumstances, could be 
 construed into a m///«/ intention to furnish "aid and comfort" to the enemy, 
 seems absurd. Nevertheless, such a claim was not only made by counsel for the 
 government, but was sustained by the court. 
 
 When the trial came on it was proven by the prosecution, that the prisoner 
 had intentionally surrendered the captives to the British. Mr. Pinkney then, on 
 behalf of the accused, read an address from the grand jury to the President of 
 the United States, in which the jurors expressed their respect for the motives of 
 Hodges, and prayed that a nolle prosequi should be entered. At this stage of the 
 trial counsel for the government asked the court to direct the juiy, that the crime 
 of treason had been established. That the case presented but two inquiries : (i) 
 Did the accused deliver the prisoners ? (2) Did he intend to do so ? These acts 
 
 > Const. Art. 3, § 5. 
 
O'S THE LAW OF CONSTRUCTIVE TREASON. 37 
 
 having been proven, it was claimed they involved the intention, and that the 
 crime of treason had been made out. Having prayed for the instruction of the 
 court, the judges said they would hear counsel. Mr. Pinltney then addressed 
 the court as follows: 
 
 May it please your Honors: — There is no law in this prayer, 
 for it excludes that which is the essence of the offense — intention; 
 and if it was otherwise, the court has no right to instruct the jury 
 as if this were a civil case. No instance has occurred in modern 
 times of an attempt to bind the jury in such a case by the opinion 
 of the court. What remedy is there for the party if you err ? We 
 may appeal to a higher tribunal, it is true ; but what is the conse- 
 quence ? The man is hanged and your judgment is reversed. 
 
 I. The jury, judges of both the law and the facts. 
 
 In England, did their courts interfere in this mode in the cele- 
 brated cases of Hardy, and Home Tooke and others ? No, it would 
 not have been endured. The best security for the rights of indi- 
 viduals is to be found in the trial by jury. But the excellence of 
 this institution consists in its exclusive power. The jury are here 
 judges of law and fact,' and are responsible only to God, to the pris- 
 oner, and to their own consciences. After the case is closed you 
 may indeed advise the jury, if they ask it, or if you think proper to 
 do so without being asked by them. But to interrupt the progress 
 of the trial in the way proposed would be monstrous. Suppose the 
 court to give the direction, I shall not submit to it as the prisoner's 
 counsel. I will, on the contrary, tell the jury that it is not law. It 
 is my right to do so, and in a case of blood I dare not forego the 
 exercise of it. I trust I shall not be placed in a predicament which 
 will thus set my duty to a man whose life is in my charge against 
 my respect for this tribunal. I pray your honors to suffer this 
 cause to go on in the customary and legal manner. 
 
 In reply to Mr. Pinkney the court said, they were bound to declare the law 
 whenever they were called upon in civil and criminal cases, and requested to hear 
 from counsel for the prosecution. Mr. Glenn commented upon the authorities to 
 
 ' Hon. Benj. R. Curtis, in U. S. v. Morris (i Curtis' C. Ct. R. 23), held 
 that under the Constitution and laws of the United States the jury are not the 
 judges of the law in a trial. They are to take the law from the court, and apply 
 it to the facts in evidence, and then frame their general verdict of guilty or not 
 guilty. In Morris' case, the questions of law related to the constitutionality of 
 an act of Congress. To the general rule laid down by Judge Curtis, however, 
 there seem to be two exceptions, namely, in trials for treason and libel. 
 
38 ARGUMENT OF WILLIAM PINKNET 
 
 support his position, and cited i East's C. L. p. 70; Vigol's Case, 2 Dall. p. 346; 
 Cranbourne's Case, Salk. p. 633. 
 
 MR. PINKNEY.— Nothing but an utter confusion of ideas could 
 have introduced a doubt upon the subject. The gentleman's prayer 
 excluded all idea of criminal intention; or it relied upon the influ- 
 ence of criminal motive, as a necessary corollary from the naked 
 facts charged, as the overt acts in the indictment. 
 
 2. Criminal intent the essence of every offense. 
 
 It may be afl&rmed as an universal proposition, that criminal in- 
 tention is the essence of every species of crime. All indictments 
 commence with an assertion of corrupt motives; and in indictments 
 for treason, the overt acts laid a,re to show the manner in which the 
 wicked intention is carried into execution. In the speeches of Lord 
 Erskine, to whom the world is so largely indebted for a correct 
 knowledge of the principles of civil liberty and the law of treason, 
 you will find him perpetually contending, and contending with 
 effect, that although the crown had proved the facts charged, it had 
 not shown the evil design, the corrupt purpose, without which the 
 facts are nothing. 
 
 Here Mr. Pinkney referred to and read part of Mr. Erskine's remarks in the 
 case of Lord George Gordon. In that case it was proved that the prisoner in- 
 cited the acts which produced the consequences complained of, yet he was ac- 
 quitted, because he was not the enemy of the king, nor the friend of any man 
 who was his enemy. He then continued: 
 
 3. Illustrations of the rule. 
 
 Take the case of a man who, in time of war, is charged with the 
 defense of an important fortress or castle, which he surrenders to 
 an incompetent force. What more effectual means could he have 
 adopted to aid the enemy than the delivery of this fortress ? The 
 books will tell you, that if he was bribed to this desertion of his 
 duty; if he did it with a view to benefit the enemy; he is guilty of 
 treason. But if pusillanimity was the cause, or if it arose from a 
 false calculation of his own means, or the force of the enemy, he is 
 not a traitor. You may banish him with ignomy from the ranks 
 which he has disgraced, or try him by martial law as a coward or a 
 fool; but he has committed no treason. 
 
 Suppose a powerful force to invade the country, to which resist- 
 ance is hopeless. They levy contributions; they do not proclaim 
 that they will hang me if I neglect to comply with this order; but 
 
ON THE LAW OP CONSTRUCTIVE TREASON. 39 
 
 they threaten plunder and desolation. I know they have the power 
 to execute that threat, and I comply accordingly. Now the paying 
 of money, or the furnishing of provisions, is an assistance; it is 
 " giving aid and comfort " much more effectually than the delivery 
 of a few prisoners or a deserter. Yet no man will call this treason, 
 because there is no evidence of hostility to the interests of the 
 country. The authorities say it is not treason. 
 
 In Stone's case,' the indictment charged as an overt act of ad- 
 herence to the enemy, that the prisoner conspired, with others, to 
 collect intelligence, within England and Ireland, of the disposition 
 of the king's subjects, in case of an invasion of either country, and 
 to communicate such intelligence to the enemy. The tendency of 
 parts of the correspondence, which was given in evidence, was to 
 advise the enemy against an invasion of England, by representing 
 the improbability of its being attended with any success, from the 
 general disposition of the people. 
 
 Now it was scarcely possible that such a correspondence could 
 have been opened and maintained with other than corrupt motives. 
 Yet the counsel were allowed to argue that the letters were trans- 
 mitted with a good intent, in order to avert the danger of so great 
 a calamity as an invasion, and the court said, the jury were to judge 
 from all the circumstances, whether the intelligence had been sent 
 with that view. 
 
 4. Adhering to the enemy and levying war. 
 
 My client is charged, as Stone was charged, with being an ad- 
 herent; and like him is entitled to be sheltered by his motives from 
 the imputation of treason. The district attorney confounds the in- 
 dictment which you are now trying with an indictment for levying 
 war. I admit that it has been decided, that if a man becomes an 
 integral part of the enemy's force, and acts with it, he necessarily 
 levies war and is guilty of treason, unless it appears that he did so 
 pro terrore mortis. The law will suffer no other exculpation of such 
 conduct; it will excuse it upon no other motive. But will the gen- 
 tlemen refer us to some authority which declares, that if a man, 
 without joining the enemy so as to levy war, does, upon virtuous or 
 even pardonable inducements (having no reference to the promotion 
 of the enemy's views), that which happens or is calculated to be 
 advantageous to the enemy, he is therefore a traitor ? What is an 
 
 ' I East's C. L. p. 79. 
 
40 ARGUMENT OP WILLIAM PINKNEY 
 
 adherent ? Can he be anything less than a willing partisan, a cor- 
 rupt auxiliary of the enemy ? Such, at least, is the natural and 
 ordinary import of the word; and you cannot strain it beyond that 
 import by the refinements of construction, to the prejudice of the 
 accused, without reviving the ferocious and appalling doctrine of 
 constructive treason, which once made England bleed at every pore, 
 and stained the palace and the cottage with judicial murder. The 
 protecting spirit of the Constitution, and of the statute which acts 
 upon it, as well as humanity and justice, would be outraged by such 
 a course, 
 
 5. The unmistakable intention of the prisoner. 
 
 Unlike the conduct of Stone, the conduct of Hodges presents 
 nothing ambiguous to the most zealous scrutiny. His honorable 
 feelings and intentions are acknowledged by all; he was urged by 
 the solicitation of those whom he respected; he was led by a gen- 
 erous sympathy for the situation of one who is deservedly dear to 
 all who know him ; he was actuated by an apprehension, by no 
 means unreasonable, , for the quiet and safety of the affrighted 
 women and helpless children of the neighborhood, and for the se- 
 curity of the persons and property of the whole district. The 
 treason of adherence cannot be committed by one whose heart is 
 warm with all the honorable feelings of the man and the patriot. 
 " Overt acts undoubtedly do discover the man's intentions; but I 
 conceive they are not to be considered merely as evidence, but as 
 the means made use of to effect the purposes of the heart." ' 
 
 6. Crime proceeds always from a wicked heart. 
 
 This is the master key which lets you into the whole secret of 
 this title of the criminal law. Sir Walter Tyrrel, who, in shooting 
 at a deer killed the king, could not be convicted of treason. The 
 killing was 'per infortunium. So, where a person non compos slays 
 another designedly, still he is innocent, because there is no malig- 
 nity in his heart. So in every homicide, it is felonious, justifiable or 
 excusable, according to the purpose with which the act was perpe- 
 trated. It is murder where it is done through malice; manslaughter, 
 if without malice; where it is done through misfortune, or in self 
 defense, it is excusable, and it is justifiable when done in advance- 
 ment of public justice, in obedience to the laws. If the heart be 
 
 ' Foster, p. 203. 
 
ON THE LAW OF CONSTRUCTIVE TREASON. 41 
 
 uncontaminated by corrupt intentions, the man is innocent, for it is 
 motive that qualifies actions. As it will be with God so it is with 
 the man : the latent intention of the heart must be searched. 
 
 7. The circumstances of the surrender. 
 
 Look at the locus in quo — the scene where the plot of this treason 
 is laid. A hostile force, but the day before, had traversed the coun- 
 try in all the pride of victory. The jus belli was lord of the as- 
 cendant. The army, if such a force may deserve the name, which 
 had been relied upon for the defense of the capitol, had been broken 
 up and dissipated to every quarter of the compass. The country 
 was menaced by an enemy with whom, to adopt the language of 
 Csesar, it was easier to do than to say. If I were addressing the 
 jury I might appeal to their love of country. I might remind them 
 that they are administering law for posterity as well as for us. But 
 I am addressing a tribunal where these considerations have their 
 full weight, and I expect with confidence that the court will vindi- 
 cate the doctrines which I have had the honor to advance. 
 
 DUVALL, C. J. — The court would have been better satisfied if 
 the whole case had been gone through in the usual way; but as the 
 district attorney had prayed an opinion on the law, the court will 
 give their opinion. 
 
 Here the court made the following decision: ist. Hodges is accused of ad- 
 hering to the enemy, and the overt act laid consists in the delivery of certain 
 prisoners; and I am of opinion that the overt act laid in the indictment and 
 piBved by the witnesses, is high treason against the United States. 2d. When 
 the act itself amounts to treason, it involves the intention, and such was the 
 character of this act. No threat of destruction of property will excuse or justify 
 such an act: nothing but a threat of life, and that likely to be put into execution. 
 3d. The jury are not bound to conform to this opinion, because they have a 
 right, in all criminal cases, to decide on the law and the facts. 
 
 HOUSTON, J. — I do not entirely agree with the chief justice 
 in any except the last remark. 
 
 MR. PINKNEY (rising and addressing the jury). — The opinion 
 which the chief justice has just delivered is not, and I thank God 
 for it, the law of the land. If you have the slightest doubt on the 
 subject, I will undertake to remove it, to show you that the cases 
 have been misconceived, and that the conclusions drawn from them 
 are erroneous. 
 
42 ARGUMENT OF WILLIAM PINKNET. 
 
 8. Conduct of the court and the prosecution. 
 
 No man can feel for the le«irned judge who has just -given you 
 his instruction, a reverence and affection more sincere than I do. 
 But reverence and affection for him shall not stand in the way of 
 the great duty which I owe to a fellow citizen who relies on me to 
 shield his innocence from the charge of guilt, and his life from an 
 attainder for treason. I had hoped that, since his motives were 
 admitted on all hands to be entitled to praise, since the grand jury 
 had associated with their indictment a certificate of the purity of 
 his views, and a solemn recommendation that the prosecution should 
 be abandoned, he would at least have been left by the district at- 
 torney, and the court, to obtain from you, as he could, a deliverance 
 from the danger that encompassed him. In that hope I have been 
 disappointed. As if the salvation of the State depended upon the 
 conviction of this unfortunate man, whose situation, one would 
 think, an inquisitor might deplore, the district attorney has gone 
 out of his way to bring down vengeance upon him; and one of the 
 court has told you that he is a traitor, and that you ought to find 
 him so. 
 
 In a case where justice might be expected to be softened into 
 clemency, and even to connive at acquittal, where every generous 
 sentiment must take part with the accused, and law might be thought 
 to fear the reproach of tyranny, if it should succeed in crushing 
 him; in such a case the established order of trial is deserted, a per- 
 nicious novelty is introduced, the court is called upon to mix itself 
 in your deliberations, to mutilate the defense of the prisoner's coun- 
 sel, to harden your consciences against the solicitations of an en- 
 lightened mercy, and to sacrifice the prisoner to gloomy and exter- 
 minating principles, which would render the noble and beneficent 
 system of law, for which we are distinguished, a hideous spectacle 
 of cruelty and oppression. For the sake of the country to which I 
 belong, as well as of my client, I will not only protest before you 
 against these principles, but will examine and speak of them with 
 freedom, restrained only by the decorum which this place re- 
 quires. 
 
 9. Law of treason defined. — Opinion of the court not 
 
 LAW. 
 
 In- my argument to the court, I showed that if it be done treach- 
 erously it is treason; but that if the commander act from any mo- 
 
ON THE LAW OF CONSTRUCTIVE TREASON. 43 
 
 tive not corrupt, no indictment can touch him. If the fort be as 
 impregnable as Gibraltar, and be garrisoned with 50,000 men, and 
 it is surrendered to a force of half that number, from motives of 
 fear, the commander cannot be punished as a traitor. What can 
 be more strong to show that upon an indictment for adherence, the 
 law looks into the heart, and adapts its penalties accordingly ? Has 
 that authority been answered ? 
 
 In the case of Stone, which was parallel with the point, the 
 court said expressly, if the heart be pure it matters not how incor- 
 rect the conduct. So the counsel argued, and Stone was acquitted. 
 Has any answer been given to that authority ? Has any been even 
 attempted ? 
 
 This indictment charges Hodges with having done certain 
 things wickedly, maliciously, and traitorously. Must not the 
 United States prove what they allege ? When the law allows 
 even words to be given in evidence as explanatory of intention 
 to exculpate, it admits that exculpation may be made out by 
 proof of innocent motives; that overt acts alone do not furnish 
 a criterion; that concomitant facts, illustrative of the state of the 
 heart, must not be neglected. 
 
 A military force levies contributions. If you pay them for the 
 purpose of saving the country from farther mischief, although there 
 be no fear or danger of death, the law says this is not treason. By 
 the doctrine of the chief justice, however, it is treason, and conse- 
 quently his doctrine is unsound. 
 
 10. Motives of the prisoner laudable, not criminal. 
 
 On this occasion, the enemy were in complete power in the dis- 
 trict where the transactions occurred which are complained of in 
 the indictment. They were unawed by the thing which we called 
 an army, for it had fled in every direction. They were omnipotent. 
 The law of war prevailed, and every other law was silent. The 
 domestic code was suspended. They menaced pillage and confla- 
 gration; and, after they had wantonly destroyed edifices which all 
 civilized warfare had hitherto respected, was it to be believed that 
 they would spare a petty village which had renewed hostilities 
 before the seal of its capitulation was dry? There was menace — 
 power to execute — probability — nay, certainty, that it would be 
 executed. 
 
 How, then, can you find a wicked and traitorous motive in the 
 breast of my client ? There is not only the absence of any wicked 
 
44 ARGtJMEXT OF WILLIAM PINKNEY 
 
 motive, but there is the visible presence of those which are lauda- 
 ble : an attachment to Dr. Beanes, anxiety for the . defenseless 
 people about him, a desire to preserve the country from the afflic- 
 tions which hung over it. In conduct so characterized, so pro- 
 duced, we discover the operations of an excellent heart upon a 
 mind which virtuous inducements could betray into error, but what 
 way we can distort it into treason I have not yet been able distinct- 
 ly to learn. 
 
 II. Arraignment of the doctrine of constructive treason. 
 
 The conduct is in itself treasonable, says the chief justice. It 
 necessarily imports the wicked intention charged by the indict- 
 ment. The construction makes it treason, because it aids and com- 
 forts the enemy. 
 
 These are strong and comprehensive positions; but they have 
 not been proved; and they cannot be proved until we relapse into 
 the gulf of constructive treason, from which our ancestors in an- 
 other country have long since escaped. 
 
 Gracious God ! In the nineteenth century to talk of construct- 
 ive treason ! Is it possible that in this favored land — this last 
 asylum of liberty — blest with all that can render a nation happy at 
 home and respected abroad — this should be law ? No. I stand up 
 as a man to rescue my country from this reproach. I say there is 
 no color for this slander upon our jurisprudence. Had I thought 
 otherwise I should have asked for mercy, not for law. I would 
 have sent my client to the feet of the president, not have brought 
 him, with bold defiance, to confront his accusers, and demand your 
 verdict. He could have had a nolle prosequi. I confirmed him in 
 his resolution not to ask it, by telling him that he was safe without 
 it. Under these circumstances I may claim some respect for my 
 opinion. My opportunities for forming a judgment upon this sub- 
 ject, I am compelled to say, by the strange turn which this cause 
 has taken, are superior to those of the chief justice. I say nothing 
 of the knowledge which long study and extensive practice enabled 
 me to bring to the consideration of the case. I rely upon this; my 
 opinion has not been hastily formed since the commencement of 
 the trial. It is the result of a deliberate examination of all the au- 
 thorities, of a thorough investigation of the law of treason in all its 
 forms, made at leisure and under a deep sense of a fearful responsi- 
 bility of my client. It depends upon me whether he should submit 
 himself to your justice, or use with the chief magistrate the inter- 
 
ON THE LAW OF CONSTRUCTIVE TREASON. 45 
 
 cession of the grand jury, which could not have failed to have been 
 successful. You are charged with his life and honor, because I 
 assured him 'that the law was a pledge for the security of both. I 
 declared to him that I would stake my own life upon the safety of 
 his ; and I declare to you now, that you have as much power to 
 shed the blood of the advocate as to harm the client whom he 
 defends. 
 
 If the mere naked fact of delivery constitute the crime of trea- 
 son, why not hang the man who goes under a flag of truce to return 
 or exchange prisoners ? According to the doctrine of the chief 
 justice, this man is equally guilty with him who stands at the bar, 
 if you are forbidden to examine his mind, but are commanded by 
 the law to look only to his acts. I ask you to consider this in the 
 spirit of Stone's case. That doctrine, I pledge myself, goes through 
 every nerve and artery of the law. 
 
 12. Practical results of doctrine announced by the 
 
 COURT. 
 
 If the doctrine of the chief justice be the law of the land, every 
 man concerned in the deeds of blood that were acted during our 
 recent war, was a murderer. 
 
 Our gallant soldiers who had repulsed the hostile step whenever 
 it trod upon our shores; our gallant tars who unfurled our flag, ac- 
 quired for us a name and rank upon the ocean which will not soon 
 be obliterated — these are all liable to be arraigned at this bar. 
 These men have carried dismay and death into the ranks of the 
 foe; blood calls for blood. You dare not inquire into the causes 
 which produced the circumstances ; which attended the motives ; 
 which prompted the deeds of carnage. The act you are told by 
 the chief justice, and such is the reasoning of the attorney general, 
 involves the intent. 
 
 Gentlemen ! this desolating doctrine would sweep us from the 
 face of the earth. Even when we deserved to be crowned with 
 laurels we should be stretched on a gibbet. I tremble for my 
 children, for my country, when I reflect upon the consequences of 
 these detestable tenets which reduces indiscretion and wickedness 
 to the same level. Which of you is there that in some unguarded 
 moment may not, with honest motives, be imprudent ? Which of 
 you can hope to pass through life without the imputation of crime, 
 if your motives may be separated from your conduct, and guilt 
 
46 ARGUMENT OF WILLIAM PINKNEY. 
 
 may be fastened upon your actions, although the heart be inno- 
 cent? 
 
 Gentlemen ! so solemnly, so deeply, so religiously do I feel im- 
 pressed with this principle, that I know not how to leave the case 
 with you, although at the present moment it strikes my mind in so 
 clear a light that I know not how to make it more clear. 
 
 If this damnable prosecution should prevail, it would be the 
 duty of the district attorney instantly to arraign Gen. Bowie, one 
 of the witnesses in this case, than whom a purer patriot never 
 lived. Nay, half Prince George's county would come within its 
 baleful influence. 
 
 Yet such is the law the chief justice recommends to you. His 
 associate does not concur with him. In this conflict of opinion I 
 should be entitled to your verdict, but I rest the case upon more 
 exalted grounds, I call upon yoU as honorable men, as you are 
 just, as you value your liberties, as you prize your Constitution, to 
 say — and to say it promptly — that my client is not guilty. 
 
 The jury, without hesitating a moment, rendered a verdict of not guilty^ 
 
ARGUMENT OF WILLIAM WIRT, 
 
 In the Case of Gibbons v. Ogden. 
 
 [9 Wheat. I.] 
 
 IN THE SUPREME COURT OF THE UNITED STATES, 
 FEBRUARY TERM, 1824. 
 
 Constitutional Law. — The power to regulate commerce is vested 
 exclusively in Congress, and embraces navigation within the limits of 
 every State. This power, when exercised, is supreme, and State laws 
 repugnant thereto are void. 
 
 Analysis of Me. Webt's Aegument, 
 
 . Of the powers vested ia Congress, and 
 the rules of construction applicable 
 thereto. 
 
 . Kzclusive and concurrent powers tested 
 and distinguished. 
 
 , The power of a State may be taken away 
 by implication, — Repugnancy and oc- 
 casional interference distinguished. 
 
 . Why the power to promote the progress 
 of science was vested exclusively in 
 Congress. 
 
 . The grant from its nature exclusive, not 
 concurrent. 
 
 6. The power, even if concurrent, is repug- 
 
 nant to the laws of Congress. 
 
 7. The term "possessors," as used in the 
 
 State statute, an evasion. 
 
 8. Nature and character of the patent laws. 
 
 9. The laws of New York conflict with 
 
 the power of Congress to regulate 
 
 commerce, 
 zo. Distinction as to quarantine and police 
 
 regulations, 
 xz. The coasting trade protected by the 
 
 laws of Congress. 
 12. Peroration.— Reply to Mr. Emmett. 
 
 " The Steamboat Case from New York," as it was familiarly termed while 
 pending in the courts, involves one of the most interesting and important discus- 
 sions to be met with in the annals of American jurisprudence. It is interesting, 
 because it is associated with the greatest, certainly the most useful invention in 
 the history of civilization^-an achievement of scientific skill which will secure 
 the fame of Robert Fulton throughout all coming time. It is important, because 
 its effect was to nullify and sweep out of existence the laws of a sovereign State, 
 which secured to its citizens privileges of the most vital importance and of incal- 
 culable value, after those statutes had been declared valid by the highest judicial 
 authority in the State — a tribunal composed of some of the most learned and dis- 
 tinguished jurists of the age. The magnitude of the questions presented will ap- 
 pear upon a recital of the facts. 
 
 [47] 
 
48 AEGUMENT OF WILLIAM WIKT 
 
 Thomas Gibbons, a citizen of Elizabethtown, in the State of New Jersey, 
 was the owner of two boats named, respectively, the " Stoudinger " and the 
 " Bellona," which were propelled by steam and used to transport passengers be- 
 tween the city of New York and Elizabethtown. These vessels were diAy en- 
 rolled and licensed under an act of Congress passed February i8th, 1793 (L. U. S. 
 vol. I, p. 332, chap. 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." Aaron Ogden filed his bill in Chancery and obtained an injunction re- 
 straining Gibbons from running or navigating his boats, upon the ground that 
 the Legislature of the State of New York had granted to Robert R. Livingston 
 and Robert Fulton, the original inventors of the use of steam as » motive 
 power, the exclusive right and privilege to navigate the waters of New York 
 State with boats moved by steam or fire, and that Livingston and Fulton 
 had granted and assigned to him (Ogden) these rights and privileges. Gibbons 
 filed his answer and asked that the injunction be dissolved, among other 
 reasons, because the law of New York purporting to create and establish an 
 exclusive right to navigate the waters of the State were repugnant to the Consti- 
 tution of the United States, which conferred upon Congress alone the power to 
 regulate commerce, and to promote the progress of science and the useful arts. 
 That, by virtue of the license obtained by him, pursuant to the act of Congress 
 passed February iSth, 1793, he acquired the right to employ his boats in the 
 coasting trade, to navigate between parts of the same State, or of different States, 
 and this right, he claimed, could not be interfered with or restricted by the law 
 of any particular State. After an elaborate argument and upon due deliberation, 
 the Chancellor denied the motion and made the injunction perpetual. From this 
 decision an appeal was taken to the highest tribunal in the State, where the judg- 
 ment of the lower court was affinned. The appeal was carried to the Supreme 
 Court of the United States, where it was argued by Mr. Webster and Attorney- 
 General Wirt on the part of the appellant, and by Mr. Oakley and Mr. Thomas 
 Addis Emmett for the respondent, and resulted in a reversal of the judgment and 
 a dissolution of the injunction. The controversy has been regarded as one of the 
 ablest and most brilliant intellectual contests which had taken place before the 
 Supreme Court up to that time. 
 
 The effect of the laws here sought to be annulled was felt throughout 
 the Union, in every State bordering upon the ocean or navigable waters, and, 
 while the litigation was pending, was productive of hostile legislation which 
 brought the neighboring States of Connecticut and New Jersey upon the 
 verge of civil war with their sister commonwealth, the great Empire State. 
 By the laws of New York no person could navigate the waters within its juris- 
 diction without a license from Livingston and Fulton, upon penalty of for- 
 feiture of the vessel. By the laws of Connecticut no one having such a license 
 was allowed to enter her waters; while in New Jersey it was enacted, that if any 
 of her citizens should be restrained or hindered from using steam vessels plying 
 between her ports and those of New York, such person might bring an action for 
 damages in New Jersey, and recover treble costs against the party who had thus 
 interfered under the laws of New York. Upon the theory that each State was 
 an independent sovereignty, these acts of retortion and reprisal must eventually 
 have resulted in civil war. The importance of the litigation, therefore, cannot 
 
IN THE CASE OF GIBBONS t. OGDEN. 49 
 
 be overestimated. A tribunal clothed with the power to pass upon such moment- 
 ous questions as were here presented, has never before existed in the world. No 
 wonder that Edward Everett was most profoundly impressed when he entered the 
 portals of the Supreme Court and contemplated the moral grandeur of such a body. 
 " From it," he said, in his elegant way, "from it the voice of equity and justice 
 has gone forth to the most powerful States of the Union, administering the law 
 between citizens of independent States, settling dangerous controversies, adjust- 
 ing disputed boundaries, annulling unconstitutional laws, reversing erroneous 
 decisions, and, with a few mild words of judicial wisdom, disposing of questions 
 a hundredfold more important than those which, within the past year, from the 
 plains of Holstein, have shaken the pillars of Continental Europe and all but 
 brought a million of men into deadly conflict with each other." 
 
 No person, however, appreciated more keenly than Mr. Wirt himself, the sig- 
 nificance of the occasion and the great intellectual display about to take place. 
 Shortly before the argument he wrote to his friend, Judge Carr, urging him 
 to be present on the occasion. " Emmett and Oakley," he writes, "on one 
 side, Webster and myself on the other. Come down and hear it. Emmett's 
 whole soul is in the cause, and he will stretch all his powers. Oakley is said to 
 be one of the first logicians of the age; as much a Phocion as Emmett is a 
 Themistocles, and Webster is as ambitious as Caesar. He will not be outdone 
 by any man, if it is within the compass of his power to avoid it. It will be a 
 combat worth witnessing. I have the last speech, and have yet to study the 
 cause; but I know the facts, and have only to weave the argument. Now, if you 
 will come down, you will kill two birds with one stone. We will first feast you, 
 and then cure you and send you home a well man. Don't make light of this 
 proposition, and put me off with ' I wish it was in my power.' It is in your 
 power. You have only to will it, and it is done; and that you ought to will it, 
 heaven and earth know. If you do not, you will be quite as much to blame as 
 the man who kills himself with strong drink. In point of morality there will be 
 no difference between you. You cannot make a sound distinction between the 
 two cases to save your life. So do the thing that is right, and give us none of 
 your ■ dish maclaver,' as Burns says.'' 
 
 It has been too often said of the great American orator, that he was a mere 
 declaimer, but possessed no great merits as a lawyer. This assertion is not borne 
 out by the facts. His argument in the present case is an example of clear, well 
 • constructed reasoning, and conclusive as an argument. The peroration in reply 
 to Mr. Emmett is a fine specimen of the finished style. of this charming and ac- 
 complished rhetorician, and has often been quoted as a model of graceful decla- 
 mation. In closing the argument on the part of the appellant, Mr. Wirt said ; 
 
 May it please your Honors: — On the part of the appellant, 
 I trust I shall be able to demonstrate that the laws of the State of 
 New York are unconstitutional and void: (ist.) Because they are 
 in conflict with powers exclusively vested in Congress, which powers 
 Congress has fully exercised by laws now subsisting and in full 
 force. (2d.) Because, if the powers be concurrent, the legislation 
 of the State is in conflict with that of Congress, and is, therefore, 
 void. 
 
50 ARGUMENT OF 'WILLIAM WIRT 
 
 The powers with which the laws of New York conflict, are the 
 power " to promote the progress of science and the useful arts by 
 securing, for a limited time, to authors and inventors the exclusive 
 right to their respective writings and inventions," and tlie power 
 " to regulate commerce with foreign nations and among the several 
 States." If these powers were exclusive in Congress, and it had 
 exercised them by subsisting laws; and if the laws of New York 
 interfere with the laws of Congress, by obstructing, impeding, re- 
 tarding, burdening, or in any other manner controlling their opera- 
 tion, the laws of New York are void, and the judgment of the State 
 court, founded on the assumption of their validity, must be re- 
 versed. 
 
 I. Of the powers vested in Congress, and the rules of 
 
 CONSTRUCTION APPLICABLE THERETO. 
 
 In discussing this question, the general principles assumed as 
 postulates on the other side may be, for the most part, admitted. 
 Thus it may be admitted, that by force of the declaration of inde- 
 pendence each State became sovereign; that they were, then, inde- 
 pendent of each other, and foreign to each other; that, by virtue 
 of their separate sovereignty, they had, each, full power to levy 
 war, to make peace, to establish and regulate commerce, to en- 
 courage the arts, and generally to perform all other acts of sover- 
 eignty. I shall also concede that the government of the United 
 States is one of delegated powers, and that it is one of enumerated 
 powers, as contended for by the counsel for the respondent. Yet 
 they admitted that there were implied powers, and have given a 
 different rule for the construction of the two classes of powers, 
 which was, that " the express powers are to be construed strictly, 
 the implied powers liberally." The implied powers, I presume, 
 however, are only those which are necessary and proper to carry 
 the powers expressly given into effect. They are the means to an 
 end. This clause had not been generally regarded as in fact giv- 
 ing any new powers. Congress would have had them without the 
 express declaration. The clause was inserted only ex abundanti 
 cautela. With this explanation I shall concede that the Constitu- 
 tion of the United States is one of delegated and enumerated 
 powers; and that all powers not delegated by the Constitution to 
 the national government, nor proliibited by it to the States, are re- 
 served to the States respectively, or to the people. 
 
 The peculiar rule of construction demanded for those powers 
 
IN THE CASE OF GIBBONS v. OGDEN. 51 
 
 may also be conceded. But the express powers are to be strictly- 
 construed; the implied powers are to be construed liberally. By 
 this it is understood to be meant, that Congress can do no more 
 than they are expressly authorized to do; though the means of doing 
 it are left to their discretion, under no other limit than that they 
 shall be necessary and proper to the end. 
 
 On the other hand, the counsel for the respondent themselves 
 admitted that Congress, nevertheless, has some exclusive powers; 
 and, in conformity with the decisions of the court, they admit that 
 those exclusive powers exist under three heads: (i.) When the 
 power is given to Congress in express terms of exclusion. (2.) When 
 a power is given to Congress, and a like power is expressly prohib- 
 ited to the States. (3.) Where a power given to Congress is of 
 such a nature that the exercise of the same power by the States 
 would be repugnant. 
 
 With regard to the degree of repugnancy, it was insisted that 
 the repugnancy must be manifest, necessary, unavoidable, total and 
 direct. Certainly, if the powers be repugnant at all, they must be 
 so with all these qualifications. If Congress, in the lawful exercise 
 of its power, says that a thing shall be done, and the State says it 
 shall not; or, which is the same thing, if Congress says that a thing 
 shall be done on certain terms, and the State says it shall not be 
 done except on certain other terms, the repugnancy has all the 
 epithets which can be lavished upon it, and the State law must be 
 void for this repugnancy. 
 
 2. EXCLUSIVK AND CONCURRENT POWERS TESTED AND DIS- 
 TINGUISHED. 
 
 A new test for the application of this third head of exclusive 
 power has been proposed. The respondent has said that " no power 
 can be exclusive from its own nature, except where it formed no 
 part of State authority previous to the Constitution, but was first 
 created by the Constitution itself." But why were these national 
 powers thus created by the Constitution ? Because they look to 
 the whole United States as their theatre of action. And are not 
 all the powers given to Congress of the same character ? Under 
 the power to regulate commerce, the commerce to be regulated is 
 that of the United States with foreign nations, among the several 
 States, and with the Indian tribes. No State had any previous 
 power of regulating these. The same thing might be affirmed of 
 
52 AEGUMENT OF "WILLIAM WIRT 
 
 all the other powers enumerated in the Constitution. They were 
 all created by the Constitution, because they are to be wielded by 
 the whole Union over the whole Union, which no State could pre- 
 viously do. If any one power, created by the Constitution, may be 
 exclusive for that reason, then all may be exclusive, because all are 
 originally created. If, on the other hand, we are to consider the 
 powers enumerated in the Constitution, not with reference to the 
 greater arm that wields them and the more extended territory over 
 which they operate, but merely in reference to the nature of the 
 particular power in itself considered, then, according to this new 
 test, all the powers given to Congress are concurrent, because there 
 is no one power given to it which, considered in this light, might 
 not have been previously exercised by the States within their re- 
 spective sovereignties. 
 
 But this argument proves too much; for it has been conceded 
 that some of the powers are exclusive from their nature; whereas, 
 if the argument were true, none of them could be exclusive. On 
 this argument the entire class or head of exclusive powers, arising 
 from the nature of the power, must be abolished. But this court 
 has repeatedly determined that there is such a class of exclusive 
 powers. The power of establishing a uniform rule of naturalization 
 is one of the instances. Its exclusive character is rested on the 
 constitutional requisition that the rule established under it should 
 be uniform.' 
 
 But the objection is urged that this would have been a concur- 
 rent power, but for the auxiliary provision in the Constitution that a 
 citizen of one State shall be entitled to all the privileges of a citizen 
 in every other State. We answer, that it is not so determined by 
 the court in the case cited, and that the commentators on the Con- 
 stitution place it exclusively on the nature of the power as described 
 in the grant." 
 
 So, also, the power of establishing uniform laws on the subject 
 of bankruptcies, is clearly an exclusive power from its nature. The 
 court has, indeed, determined, that until Congress thought fit to 
 exercise the power, the States might pass local bankrupt laws, pro- 
 vided they did not impair the obligation of contracts; but that, as 
 soon as Congress legislate on the subject, the power of the States is 
 at an end." 
 
 ' Chirac v. Chirac, 2 Wheat. R. 269. 
 
 » The Federalist, No. 42. 
 
 ' Sturges V, Crowninsliield, 4 Wheat. R. 122. 
 
IN THE CASE OF GIBBONS v. OGDEN. 53 
 
 3. The power of a State may be taken away by implica- 
 tion. — Repugnancy and occasional inter- 
 ference DISTINGUISHED. 
 
 But it has been said that this doctrine takes away State power 
 by implication, which is contrary to the principles of interpretation 
 laid down by the commentators on the Constitution. It was not 
 the opinion of the authors of the Federalist, that a State power 
 could not be alienated by implication. Their doctrine was, that it 
 might be alienated by implication, provided the implication be in- 
 evitable; and that it is inevitable wherever a direct and palpable 
 repugnancy exists. The distinction between repugnancy and occa- 
 sional interference is manifest. The occasional interference alluded 
 to in the Federalist, and admitted by this court in its adjudications, 
 is not a repugnancy between the powers themselves; it is a mere 
 incidental interference in the operation of powers harmonious in 
 themselves. The case put was of a tax laid by Congress and a tax 
 laid by the State upon the same subject, e. g., on a tract of land, 
 Tihe taxes operate upon, and are to be satisfied out of the same 
 subject. It might be inconvenient to the proprietor to pay both 
 taxes. In an extreme case, the subject might be inadequate to 
 the satisfaction of both. Then the tax laid by the paramount au- 
 thority must be first satisfied. Still this incidental interference in 
 their operation is not an inherent repugnance in the nature of the 
 powers themselves. 
 
 It has also been said, that to constitute the power an exclusive 
 one in Congress, the repugnancy must be such that the State can 
 pass no law on the subject which will . not be repugnant to the 
 power given to Congress. 
 
 This requires qualification before it can be admitted. Some 
 subjects are, in their nature, extremely multifarious and complex. 
 The same subject may consist of a great variety of branches, each 
 extending itself into remote, minute and infinite ramifications. One 
 branch alone of such a subject might be given exclusively to Con- 
 gress (and the power is exclusive only so far as it is granted), yet 
 on other branches of the same subject the States may act, without 
 interfering with the power exclusively granted to Congress. Com- 
 merce is such a subject. It is so complex, multifarious and in- 
 definite, that it would be extremely difficult, if not impracticable, 
 to make a digest of all the operations which belong to it. One or 
 more branches of this subject might be given exclusively to Con- 
 
54 ARGUMENT OF "WILLIAM "WIRT 
 
 gress; the others may be left open to the States. They may, there- 
 fore, legislate on commerce, though they cannot touch that branch 
 which is given exclusively to Congress. 
 
 So Congress has the power to promote the progress of science 
 and the useful arts, but only in one mode, viz., by securing, for a 
 limited time, to authors and inventors the exclusive right to their 
 respective writings and discoveries. This might be an exclusive 
 power, and was contended to be so. Yet there are a thousand other 
 modes in which the progress of science and the useful arts may be 
 promoted, as by establishing and endowing literary and philosophi- 
 cal societies, and many others which might be mentioned. Hence, 
 notwithstanding this particular exclusive grant to Congress of one 
 mode of promoting the progress of science and the useful arts, the 
 States may rightfully make many enactments on the general sub- 
 ject, without any repugnance with the peculiar grant to Congress. 
 
 4. "Why the po^er to promote the progress of science was 
 
 VESTED exclusively IN CONGRESS. 
 
 But, to come now to the question whether these State laws be re- 
 pugnant to this grant of power, we must first inquire why it was 
 conferred on Congress. "Why was it thought a matter of sufficient 
 importance to confer this power upon the national government ? 
 The answer to this question will be found in the history of the 
 country, in the nature of our institutions, and the great national 
 objects which the Constitution had in view. The country was in 
 its infancy; its population was small, its territory immense; it had 
 recently thrown off its bondage by the war of the revolution, and 
 was left exhausted and poor — poor in everything but virtue and the 
 love of country. It was still dependent on the arts of Europe for 
 all the comforts and almost all the necessaries of life. "We had 
 hardly any manufactures, science or literature of our own. Our 
 statesmen saw the great destiny which was before the nation, but 
 they saw also the necessity of exciting the energies of the people, 
 of invoking the genius of invention, and of creating and diffusing 
 the lights of science. These were objects in which the whole na- 
 tion was concerned, and were, therefore, naturally and properly 
 cpnfided to the national government. The States, indeed, might 
 have exercised their inherent power of legislating on this subject; 
 but their sphere of action' was comparatively small; their regula- 
 tions would naturally have been various and conflicting. Dis- 
 couragement and discontent would have arisen in some States from 
 
IN THE CASE OF GIBBONS v. OGDEN. 55 
 
 the superior privileges conferred on the works of genius in others; 
 contests would have ensued among them on the point of the origi- 
 nality of invention; and laws of retortion and reprisal would have fol- 
 lowed. All these difficulties would be avoided by giving the power 
 to Congress, and giving it exclusively of the States. If it were 
 wisely exerted by Congress, there could be no necessity for a con- 
 current exercise of the power by the States. 
 
 S. The grant from its natIjre exclusive, not concurrent. 
 
 The terms of the grant are: " Congress shall have power to pro- 
 mote the progress of science and the useful arts, by securing, for a 
 limited time, to authors and inventors the exclusive right to their 
 respective writings and discoveries." This exclusive right is to be 
 co-extensive with the territory of the Union. The laws to be made 
 for securing it must be uniform, and must extend throughout the 
 country. The exclusive nature of every power is to be tested by 
 the character of the acts which Congress is to pass. This is the 
 case with the naturalization laws. The exclusiveness of the power 
 to establish them resulted from their character of uniformity. So 
 here, the exclusiveness results from the character of the right which 
 they are to confer. It is to be exclusive. It is not, indeed, said 
 that Congress shall have the exclusive power, but it is said that 
 they shall have power to do a certain act, which, when done, shall 
 be exclusive in its operation. The power to do such an act must 
 be an exclusive power. It can, in the nature of things, be per- 
 formed only by a single hand. Is not the power of one sovereign 
 to confer exclusive rights on a given subject, within a certain terri- 
 tory, inconsistent with a power in another independent sovereign, 
 to confer exclusive rights on the same subject, in the same terri- 
 tory ? Do not the powers clash ? The right to be conferred by 
 Congress is to exclude all other rights on the subject in the United 
 States; New York being one of those States. The right to be con- 
 ferred by New York is to exclude all other rights on the subject 
 within the State of New York. That one right may exclude an- 
 other is perfectly intelligible; but that two rights should recipro- 
 cally exclude each other, and yet both continue to subsist in perfect 
 harmony, is inconceivable. Can a concurrent power exist, if, 
 from the very nature of its action, it must take away, or render 
 nugatory, the power given to Congress ? Supposing the power to 
 be concurrent, Congress may secure the right for one period of 
 
56 ARGUMENT OF WILLIAM WIRT 
 
 time, and the respective States for another. Congress may secure 
 it for the whole Union, and each State may secure it to a different 
 claimant for its own territory. Congress possesses the power of 
 granting an exclusive right to authors and inventors within the 
 United States. New York claims the power to grant such exclu- 
 sive right within that State. An author or inventor in that State 
 may take a grant for a period of time far longer than that allowed 
 by the act of Congress. He may take a similar grant from every 
 other State in the Union; and thus this pretended concurrent 
 power supersedes, abrogates and annuls the power of Congress. 
 What would become of the power of Congress after the whole 
 sphere of its action was taken away by this concurrent power of 
 the States ? Who would apply to the power of Congress for a patent 
 or a copyright, while the States held up higher privileges ? This 
 concurrent legislation would degenerate into advertisements for 
 custom. These powers would be in the market, and the highest 
 bidder would take all. Are not powers repugnant, when one may 
 take from the other the whole territory on which alone it can act ? 
 Is not the repugnance such as to annihilate the power of Congress 
 as completely as if the whole Union was itself annihilated ? 
 
 Something has been said of Congress repealing the laws of the 
 State, wherever they should conflict with, those of the Union. But 
 where is this power of repeal ? There is no such head of power in 
 the Constitution. Congress can act only by positive legislation on 
 any subject, and this it has done in the present instance. But this 
 action would be in vain, if another authority can act on the same 
 subject. If this concurrent power would defeat the power of Con- 
 gress, by withdrawing from it the whole territory on which it is to 
 act, it would also defeat it by giving a monopoly of all the elements 
 with which invention is to work. This has been done by these 
 laws as to fire and steam. Why should it not be done equally with 
 all the other elements, such as gravitation, magnetism, galvanism, 
 electricity, and others? What is to consecrate these agents of 
 nature, and secure them from State monopoly, more than fire or 
 steam ? If not, then is the power of Congress subject to be de- 
 feated by this concurrent power, first by a monopoly of all the ter- 
 ritory on which it can act, and then by a monopoly of all the ele- 
 ments and natural agents on which invention can be exerted. Still, 
 it will be said that there is no direct repugnance between these 
 powers, and that the power of Congress may still act. But on what 
 can it act ? The territory is gone, and all the powers of invention 
 
1^ TflE CASE OF GIBBONS v. OGDEN. 57 
 
 are appropriated. There is no difference whatever between a direct 
 enactment that the law of Congress shall have no operation in New 
 York, and enactments which render that operation impossible. If, 
 then, this process of reasoning be correct, the inevitable conclusion 
 from it is, that a power in the States to grant exclusive patents is 
 utterly inconsistent with the power given to the national govern- 
 ment to grant such exclusive patents; and hence, that the power 
 given to Congress is one which is exclusive from its nature. 
 
 6. The power, even if concurrent, is repugnant to the 
 LAWS OF Congress. 
 
 But suppose, for the sake of the argument, that the States have 
 this concurrent power, yet it cannot be denied, that if the legisla- 
 tion of the State be repugnant to the laws of Congress, that of the 
 State is void, so far as the repugnance exists. In the present case 
 the repugnance is manifest. The law of Congress declares, that all 
 inventors of useful improvements throughout the United States, 
 shall be entitled to the exclusive right in their discoveries for four- 
 teen years only. The law of New York declares, that this inventor 
 shall be entitled to the exclusive use of his discovery for thirty 
 years, and as much longer as the State shall permit. The law of 
 Congress, by limiting the exclusive right to fourteen years, in effect 
 declares, that after the expiration of that time the discovery shall 
 be the common right of the whole people of the United States. 
 The law of New York declares that it shall not, after fourteen 
 years, be the exclusive right of the people of the United States, 
 but that it shall be the exclusive right of this inventor for thirty 
 years, and for so much longer as she, in her sovereign will and 
 pleasure, may permit. If this be not repugnance, direct and palpa- 
 ble, we must have a new vocabulary for the definition of the word. 
 
 But it was said, that the appellant had no patent under the 
 United States, and, therefore, could not raise the question. To 
 this I answer, it was not necessary that he should have a patent. 
 The question as to the validity of the law of New York is raised 
 whenever a right is asserted under that law and is resisted by the 
 party against whom it is asserted; and that validity is to be tested, 
 not by comparing the law of New York with a patent, but by com- 
 paring it with the Constitution and laws of the United States. 
 
 It was also said, that there could be no repugnance, because it 
 was admitted that wherever a patent from the United States ap- 
 pears, the patent obtained under the State law must yield to it; that 
 the patent under the State is valid only until the patent from 
 
58 ARGUMENT OF WILLIAM WIET 
 
 the paramount power appears; and that the rights derived from 
 the different sovereigns must be found practically to clash before 
 the law of New York was to give way for repugnancy. This is an 
 insidious argument, and fraught with all the dangers which have 
 been enunierated. For if the New York patentee be the inventor, 
 the law of New York is absolute, and however unconstitutional it 
 may be, there is no power of resistance. Besides, the argument is 
 incorrect. To illustrate this, suppose a grant from Virginia, with- 
 in the military reservation of Ohio, after she had ceded the whole 
 territory to the United States; would the party in possession, even 
 if a mere intruder, be bound to show a grant from the United 
 States before he could resist the unlawful grant of Virginia ? But 
 there the plaintiff would be claiming under a State which had pre- 
 viously ceded away the power to make such grants, which is pre- 
 cisely the case here, so that there need be no repugnance arising 
 from patents. If a repugnance exist between the laws of New 
 York and the Constitution and laws of the United States, any citi- 
 zen of the United States has a right to act as if the law of New 
 York were a nullity; and the question of its nullity and validity 
 arises wherever an attempt is made to enforce it. 
 
 7. The term "possessors," as used in the State statute, 
 an evasion. 
 
 But it was argued that the power of Congress is limited to in- 
 ventors, and that the power to encourage by patents the introduc- 
 tion of foreign discoveries, stands clear of this constitutional grant. 
 If it were necessary, this doctrine might be questioned. The stat- 
 ute of the 2 1 St James I, c. 3, uses the same word with the Constitu- 
 tion, "inventors;" and the decisions upon the construction of this 
 statute might be referred to, in order to show that it has been con- 
 sidered as embracing discoveries imported from abroad.' But, even 
 acceding to this doctrine, I may ask whether the question now be- 
 fore the court has anything to do with an art, machine or improve- 
 ment imported from abroad ? The privilege here granted by the 
 State is to an American citizen who claims to be the inventor. 
 The privilege is the: reward of invention, not of importation, and 
 this it is which brings it in conflict with the act of Congress. It is 
 true, the law does not call him the inventor; it calls him merely the 
 "possessor." But can the Constitution and laws of the United 
 States be evaded in this manner ? If he was not the inventor, why 
 
 ' 17 Vin. 211. 
 
m THE CASE OF GIBBONS v. OGDEN. 59 
 
 this unjust tax which has been levied upon our admiration and 
 gratitude ? When the vaHdity of a law is challenged for a fraudu- 
 lent evasion of the rights of others, you are not bound by its own 
 averments, but may resort to proof aliunde to establish the facts. 
 The word possessor is a new and unusual word to apply to such a 
 case, and marks a studious effort to conceal the truth. He was, of 
 necessity, either the inventor or the importer. If he was the im- 
 porter, there is no conceivable reason why he should be called by 
 any other than that name. The Legislature of New York, in its 
 act in behalf of Fitch, passed before the adoption of the Constitu- 
 tion, had no difficulty in applying the natural and appropriate name 
 to him. But when the final law was passed in favor of Livingston 
 and Fulton, in 1798, the Constitution of the United States, which 
 cedes this power to Congress, had been adopted, and the laws by 
 which that power is executed had been passed. This Constitution 
 and these laws used the term inventors. But the privilege was too 
 short. The State of New York offered better terms. The only 
 difficulty was to give them effect without encroaching upon that 
 power which had been constitutionally exercised by Congress. It 
 would not do to call them inventors, and the device was adopted of 
 calling him merely the possessor, which was a manifest evasion of 
 the law of Congress. 
 
 8. Nature and character of the patent laws. 
 
 But it was contended that the patent laws of the United States 
 give no right; they only secure a pre-existing right at common law. 
 What, then, do these statutes accomplish ? If they do nothing 
 more than give the inventor a chattel interest in his invention, and 
 a remedy for its violation, he had these at common law. And if 
 they only give him a mere right to use his invention in the States, 
 with their permission, he had that before. The case of Millar v. 
 Taylor proves the right to have been perfect at common law. The 
 time of enjoyment was far greater. Thompson's Seasons had been 
 published forty years when that action was brought. If the patent 
 and copyright laws were merely intended to secure an exclusive 
 right throughout the United States, and are, in fact, a limitation on 
 the common law right (as was contended by the respondent's coun- 
 sel), when this right has been thus secured throughout the United 
 States, and a limitation constitutionally put upon it by Congress, 
 can a State interfere with this regulation ? The limitation is not 
 for the advantages of the inventor, but of society at large, which is 
 
60 ARGUMENT OF -WILLIAM WIKT 
 
 to take the benefit of the invention after the period of limitation 
 has expired. The patentee pays a duty on his patent, which is an 
 effective source of revenue to the United States. It is virtually a 
 contract between each patentee and the people of the United 
 States, by which the time of exclusive and secure enjoyment is lim- 
 ited, and then the benefit of the discovery results to the public. A 
 State cannot, by its local laws, defeat this resulting interest of the 
 whole Union. 
 
 But it was said, that a State might prohibit the use of a patented 
 machine if it be noxious to the health of its citizens, or of an im- 
 moral or impious book, the copyright of which had been secured. 
 The answer to all such arguments was, that it will be time enough 
 to consider such questions when they arise. The constitutional power 
 of Congress is to patent useful discoveries. The patent authorizes 
 the patentee to use his invention, and it is the use which is secured. 
 When a discovery is deemed useful by the national government, 
 and a patent shall issue authorizing the patentee to use it through- 
 out the United States, and the patentee shall be obstructed by a 
 State in the exercise of this right, on the ground that the discovery 
 is useless and dangerous, it will be time enough to consider the 
 power of the States to defeat the exercise of the right on this 
 ground. But this is not the question before the court. It might 
 be admitted that a State has authority to prohibit the use of a pat- 
 ented machine on that ground, or of a book, the copyright of which 
 had been secured, on the ground of its impiety or immorality. But 
 the laws which are now in judgment were not passed upon any 
 such ground. The question raised by them is, can the States ob- 
 struct the operation of an act of Congress by taking the power 
 from the national legislature into their own hands ? Can they pro- 
 hibit the publication of an immoral book, licensed by Congress, on 
 the pretext of its immorality, and then give an exclusive right to 
 publish the same book themselves ? Can they prohibit the use of 
 an invention on the ground of its noxiousness, and then authorize 
 the exclusive use of the same invention by their own law ? 
 
 But there is no pretext of noxiousness here. The authority to 
 enact these laws is taken up under a totally distinct head of State 
 power. It is the sovereign power to grant exclusive privileges and 
 create monopolies, the Constitution and laws of the United States 
 to the contrary notwithstanding. This is the real power under 
 which these laws are defended; and it may perplex, although it 
 cannot enlighten the discussion, to confound it with another and a 
 
IN THE CASE OF GIBBOlSrS v. OGDEU". 61 
 
 distinct head of State power. If then the power of securing to 
 authors and inventors the use of their writings and discoveries be 
 exclusively vested in Congress, the acts of New York are void, be- 
 cause they are founded on the exercise of the same power by the 
 State. And if the power be concurrent, these acts are still void, 
 because they interfere with the legislation of Congress on the same 
 subject. 
 
 9. The laws of New York conflict with the power of 
 Congress to regulate commerce. 
 
 These laws were also void, because they interfere with the power 
 given to Congress, to regulate commerce with foreign nations and 
 among the several States. This nullity of the State laws will be 
 supported, first, upon the ground of the power being exclusive in 
 Congress; and, secondly, that, if concurrent, these laws directly in- 
 terfered with those of Congress on the same subject. 
 
 That this power is exclusive is manifest from the fact that the 
 commerce to be regulated is that of the United States; the govern- 
 ment by which it is to be regulated is also that of the United 
 States; and the subject itself is one undivided subject. It is an 
 entire, regular and uniform system which is to be carried into effect, 
 and will not admit of the participation and interference of another 
 hand. Does not regulation, ex vi termini, imply harmony and uni- 
 formity of action ? If this must be admitted to be the natural and 
 proper force of the term, let us suppose that the additional term, 
 uniform, had been introduced into the Constitution, so as to pro- 
 vide that Congress should have power to make uniform regulations 
 of commerce throughout the United States. Then, according to 
 the adjudications on the power of establishing a uniform rule of 
 naturalization, and uniform laws of bankruptcy, throughout the 
 United States, this power would unquestionably have been exclu- 
 sive in Congress. But regulation of that commerce which pervades 
 the Union, necessarily implies uniformity, and the same result, 
 therefore, follows as if the word had been inserted. 
 
 10. Distinction as to quarantine and police regulations. 
 
 With regard to the quarantine laws, and other regulations of 
 police respecting the public health in the several States, they do 
 not partake of the character of regulations of the commerce of the 
 United States. It has been said that these local regulations were 
 recognized by Congress, which had made them a part of its own 
 
63 AEGtTMENT OF WILLIAM WIRT 
 
 system of commerce. But this recognition would have been super- 
 fluous, if they could have stood without it on the basis of State 
 sovereignty; and so far as their adoption by Congress can be con- 
 sidered as affecting the question, the manner and purpose of the 
 recognition operates the other way. It will be found that, by 
 the commercial regulations which Congress has made, a general 
 system is adopted, which, if executed in every instance, shall carry 
 ships and vessels into all the ports of the several States, their local 
 quarantine laws to the contrary notwithstanding. An express reg- 
 ulation is, therefore, introduced, requiring the collectors of the cus- 
 toms to conform the execution of their ofiScial duties, under the 
 navigation and revenue lawSj with the quarantine laws of the re- 
 spective States. Without such a provision, the local health laws 
 must give way to the supremacy of the navigation and revenue laws 
 of the Union. 
 
 A serious objection to the exclusive nature of this power of 
 regulating commerce is supposed to arise from the express prohibi- 
 tions on the States, contained in the loth section of the ist article 
 of the Constitution. It has been considered that these prohibitions 
 imply that, as to everything not prohibited, the power of the State 
 was meant to be reserved, and the authority of the authors of the 
 Federalist was cited in support of this interpretation. But another 
 commentator of hardly less imposing authority, and writing, not as 
 a polemic for the purpose of vindicating the Constitution against 
 popular objections, but for the mere purpose of didactic instruc- 
 tion as a professor, with this section before him, and with a strong 
 leaning towards State pretensions, considers the power to regulate 
 commerce as an exclusive power.' But the difference between them 
 is rather in appearance than in reality. It does not appear that 
 the author of that number of the Federalist did himself consider 
 these police regulations as, properly speaking, regulations of the 
 commerce of the Union. But the objectors to the Constitution 
 had presented them as such, and his argument in substance is, that 
 if they are, the Constitution does not affect them. The other 
 commentator did not consider them as regulations of the commerce 
 of the United States; for if he did, he could not admit them, as he 
 did, to be left in the States, and yet hold the opinion that the 
 power to regulate commerce was exclusively vested in Congress. . 
 But may not a reason for these prohibitions be found, in the recent 
 experience of the country, very different from that which has here- 
 ' Tucker's Elackstone, Pt. I, Appx. i8o. 
 
m THE CASE OF GIBBONS T. OGDEW. 63 
 
 tofore been assigned for them. The acts prohibited were precisely 
 those which the States had been passing, and which mainly led to 
 the adoption of the Constitution. The section might have been 
 inserted ex abundanti cautela. Or the convention might have 
 regarded the previous clause, which grants the power to regulate 
 commerce as exclusive throughout the whole subject; and this sec- 
 tion might have been inserted to qualify its exclusive character, so 
 far as to permit the States to do the things mentioned, under the 
 superintendence and with the consent of Congress. If either or 
 both of these motives combined for inserting the clause, the in- 
 ference which had been drawn from it against the exclusive power 
 of Congress to regulate commerce, would appear to be wholly un- 
 warranted. 
 
 But if these police regulations of the States are to be consid- 
 ered as a part of the immense mass of commercial powers, is not 
 the subject susceptible of division, and may not some portions of 
 it be exclusively vested in Congress ? It was viewing the subject 
 in this light that induced my learned associate ' to assume the posi- 
 tion which has been misconceived on the other side. This propo- 
 sition was, not that all the commercial powers are exclusive, but 
 that, those powers being separated, there are some which are ex- 
 clusive in their nature; and among them is that power which con- 
 cerns navigation, and which prescribes the vehicles in which com- 
 merce shall be carried on. 
 
 It is, however, immaterial, so far as this case was concerned, 
 whether the power of Congress to regulate commerce be exclusive 
 or concurrent. Supposing it to be concurrent, it could not be 
 denied that where Congress has legislated concerning a subject on 
 which it is authorized to act, all State legislation which interferes 
 with it is absolutely void. 
 
 II. The coasting trade protected by the laws of 
 Congress. 
 
 It is not denied that Congress has power to regulate the coast- 
 ing trade. It is not denied that Congress has regulated it. If the 
 vessel now in question was sailing under the authority of these 
 regulations, and has been arrested by a law of New York forbidding 
 her sailing, the State law must, of necessity, be void. The coast- 
 ing trade did, indeed, exist before the Constitution was adopted; I 
 might safely admit that it existed by the jus commu7ie of nations; 
 
 ' Mr. Webster. 
 
64 ARGUMENT OF WILLIAM WIRT 
 
 that it existed by an imperfect right; and that the States might 
 prohibit or permit it at their pleasure, imposing upon it any regula- 
 tions they thought fit, within the limits of their respective territorial 
 jurisdictions. But those regulations were as various as the States, 
 continually conflicting, and the source of perpetual discord and 
 confusion. In this condition the Constitution found the coasting 
 trade. It was not a thing which required to be created, for it al- 
 ready existed. But it was a thing which demanded regulation, and 
 the power of regulating it was given to Congress. They acted 
 upon it as an existing subject, and regulated it in an uniform manner 
 throughout the Union. After this regulation it was no longer an 
 imperfect right, subject to the future control of the States. It be- 
 came a perfect right, protected by the laws of Congress, with 
 which the States had no authority to interfere. It was for the very 
 purpose of putting an end to this interference, that the power was 
 given to Congress; and if they still have a right to act upon the 
 subject, the power was given in vain. To say that Congress shall 
 regulate it, and yet to say that the States shall alter these regula- 
 tions at pleasure, or disregard them altogether, would be to say, in 
 the same breath, that Congress shall regulate it and shall not regu- 
 late it; to give the power with one hand, and to take it back with 
 the other. By the acts for regulating the coasting trade. Congress 
 has defined what shall be required to authorize a vessel to trade 
 from port to port; and in this definition not one word is said as to 
 whether it is to be moved by sails or by fire; whether it carries 
 passengers or merchandise. The license gives the authority to sail, 
 without any of those qualifications. 
 
 That the regulation of commerce and navigation includes the 
 authority of regulating passenger vessels as well as others, would 
 appear from the most approved definitions of the term commerce. 
 It always implies intercommunication and intercourse. This is the 
 sense in which the Constitution uses it; and the great national ob- 
 ject was to regulate the terms on which intercourse between foreign- 
 ers and this country, and between the different States of the Union, 
 should be carried on. If freight be the test of commerce, this ves- 
 sel was earning freight; for what is freight but the compensation 
 paid for the use of a ship ? The compensation for the carrying of 
 passengers may be insured as freight. The whole subject is regu- 
 lated by the general commercial law; and Congress has superadded 
 special regulations applicable to vessels employed in transporting 
 passengers from Europe. In none of the acts regulating the navi- 
 
m THE CASE OF GIBBONS v. OGDEN. 65 
 
 gation of the country, whether employed in the foreign or coasting 
 trade, has any allusion been made to the kind of vehicles employed, 
 further than the general description of ships or vessels, nor to the 
 means or agents by which they were propelled. 
 
 12. Peroration.— Reply to Mr. Emmett. 
 
 In conclusion, I observe that my learned friend (Mr. Emmett) 
 has eloquently personified the State of New Yolrk, casting her eyes 
 over the ocean, witnessing everywhere this triumph of her genius, 
 and exclaiming, in the language of .(Eneas: 
 
 ' ' QuEe regio in terris, nostri non plena laboris ? " 
 
 Sir, it was not in the moment of triumph, nor with feelings of 
 triumph, that .iEneas uttered that exclamation.' It was when, with 
 his faithful Achates by his side, he was surveying the works of art 
 with which the palace of Carthage was adorned, and his attention 
 had been caught by a representation of the battles of Troy. There 
 he saw the sons of Atreus and Priam, and the fierce Achilles. The 
 whole extent of his misfortunes — the loss and desolation of his 
 friends, the fall of his beloved country — rush upon his recollection. 
 
 " Constitit, et lachrymans ; Quis jam locus, inquit. Achate, 
 Quae regio in terris, nostri non plena laboris ? " 
 
 Sir, the passage may, hereafter, have a closer application to the 
 cause than my eloquent and classical friend intended. For, if the 
 state of things which has already commenced, is to go on; if the 
 spirit of hostility which already exists in three of our States, is to 
 catch by contagion and spread among the rest, as, from the pro- 
 gress of the human passions and the unavoidable conflict of inter- 
 est, it will too surely do, what are we to expect ? Civil wars have 
 often arisen from far inferior causes, and have desolated some of 
 the fairest provinces of the earth. History is full of the afflicting 
 narratives of such wars, from causes far inferior; and it will con- 
 tinue to be her mournful office to record them till time shall be no 
 more. It is a momentous decision which this court is called on to 
 
 ' To those who are familiar with the speech of Mr. Emmett, as reported in 
 Wheaton, this explanation is due. It was corrected after the argument, and the 
 portion of it to which Mr. Wirt's reply refers, now reads : " And conscious of 
 the value of her own good works, she may turn the mournful exclamation of 
 ^neas into an expression of triumph, and exultingly ask 'Quje regio in terris,' " 
 &c. The words in italics were interpolated after the speech was made, and their 
 introduction takes away the chief point of the reply. 
 6 
 
66 ARGUMENT OF MR. WIRT IN GIBBONS v. OGDEN. 
 
 make. Here are three States almost on the eve of war. It is the 
 high province of this court to interpose its benign and mediatorial 
 influence. The framers of our admirable Constitution would have 
 deserved the wreath of immortality which they have acquired, had 
 they done nothing else than to establish this guardian tribunal to 
 harmonize the jarring elements in our system. But, sir, if you do 
 not interpose your friendly hand and extirpate the seeds of anarchy 
 which New York has sown, you will have civil war. The war of 
 legislation, which has already commenced, will, according to its 
 usual course, become a war of blows. Your country will be shaken 
 with civil strife. Your republican institutions will perish in the 
 conflict. Your Constitution will fall. The last hope of nations 
 will be gone. And what will be the effect upon the rest of the 
 world ? Look abroad at the scenes which are now passing on our 
 globe, and judge of that effect. The friends of free government 
 throughout the earth, who have been heretofore animated by our 
 example, and have held it up before them as their polar star, to 
 guide them through the stormy seas of revolution, will witness our 
 fall with dismay and despair. The arm that is everywhere lifted in 
 the cause of liberty, will drop, unnerved, by the warrior's side. 
 Despotism will have its day of triumph, and will accomplish the 
 purpose at which it too certainly aims. It will cover the earth with 
 the mantle of mourning. Then, sir, when New York shall look 
 upon this scene of ruin, if she have the generous feelings which I 
 believe her to have, it will not be with her head aloft, in the pride 
 of conscious triumph — "her rapt soul sitting in her eyes;" no, sir, 
 no ; dejected, with shame and confusion — drooping under the 
 weight of her sorrow, with a voice suffocated with despair, well 
 may she then exclaim : 
 
 " Quis jam locus, 
 Quae regio in terris, nostri non plena laboris ! " 
 
ARGUMENT OF DANIEL WEBSTER 
 
 In the Case of Ogden v. Saunders. 
 
 [i2 Wheat. 213.] 
 
 IN THE SUPREME COURT OF THE UNITED STATES, 
 JANUARY TERM, 1827. 
 
 Constitutional Law. — A certificate of discharge under a State 
 insolvent law is no bar to an action brought by a citizen of another State, 
 in the Courts of the United States, or of any other State than that where 
 the discharge was obtained. 
 
 Analysis of Me. Websteb's Argument. 
 
 1. Bankrupt laws can be established only 
 
 by national authority. 
 
 2. Obligatloa of contracts considered. 
 
 3. The duty of performing a contract rests 
 
 upon universal law. — Illustration of 
 the principle. 
 
 4. A statute which diminishes or lessens an 
 
 obligation, impaiis it. 
 
 5. The law acts upon a contract only when 
 
 it is brolcen, but forms no part of the 
 contract itself. 
 
 6. Object and purpose of the constitutional 
 
 prohibition. 
 
 7. Grants of powers to Congress and prohi- 
 
 bitions to the States considered. 
 
 The argument of Mr. Webster in the case of Ogden i/. Saunders — though 
 not so famous as his splendid effort in behalf of his alma mater {4 Wheat. 518), 
 which made his reputation as the foremost constitutional lawyer in America ; nor 
 so well known as bis exhaustive and learned exposition of the law of charitable 
 uses in the Girard Will Case (2 How. 127), nor so elaborate as the speech deliv- 
 ered on the trial of John Francis Knapp, charged with aiding and abetting in 
 the murder of Joseph White, which was pronounced by so competent an author, 
 ity as Rufus Choate, as a more difficult and higher effort of mind than that 
 more famous "Oration for the Crown, " — is, perhaps, equal to any of his great 
 discussions as a specimen of perfect reasoning and clear statement. The ques- 
 tions presented are of the utmost importance to the commercial world, and the 
 manner in which they are discussed indicate the power and force of his under- 
 standing — not inferior to that possessed by any man who has ever worn the robes 
 of his noble and honorable profession — and worthy of the first lawyer and the 
 first statesman of his age. The propositions advanced are demonstrated with 
 mathematical accuracy, by a chain of argument leading inevitably to the con- 
 clusions reached. The facts upon which the case arose are as follows : 
 
 Ogden had been discharged from his debts, under an insolvent law of the 
 State of New York, known as the Three-Fourths Act, and was afterwards sued 
 by Saunders, a citizen of Kentucky, in the United States Court for the District 
 
 [67] 
 
68 ARGUMENT OF DANIEL WEBSTER 
 
 of Louisiana, on a bill of exchange drawn by Jordan, at Lexington, Kentucky, 
 which ,had been accepted by Ogden prior to his insolvency, and protested for 
 non-payment. The debtor, among other defenses, pleaded his discharge under 
 the New York Statute as a bar to the action. Judgment was rendered in favor 
 of the plaintiff, upon a special verdict. An appeal was taken to the Supreme 
 Court of the United States, which was finally argued at the January Term, 1827, 
 by Mr. Webster and Mr. Wheaton for the creditor (the respondent and defend- 
 ant in error); and the Attorney-General, Mr. Livingston, Mr. D. B. Ogden, Mr. 
 Jones, and Mr. Sampson, for the debtor (the appellant and plaintiff in error). 
 
 On behalf of the creditor it was claimed, that the statute of a State, dis- 
 charging a debtor without full payment, was a law impairing the obligation of a 
 contract, and in violation of the Constitution of the United States, being within 
 the prohibition declaring that no State shall, pass any law impairing the obliga- 
 tion of contracts; and the act being void, Ogden's discharge under it was no bar 
 to plaintiff's action. The debtor, on the other hand, contended that the con- 
 tract sued upon derived its obligation from the law under which it was made. 
 That since the obligation was created by the law in force at its date, it could be 
 modified and determined by it; and hence that such law could not impair the 
 obligation, since no obligation could arise under the law, which was inconsistent 
 with the law itself. That, accordingly, a contract made in a State of which the 
 parties were citizens, was subject to a State bankrupt law existing at the date of 
 the contract. The propositions advanced by the debtor were attacked by Mr. 
 Webster on two grounds: (i) He denied that a contract, ordinarily, derives 
 binding force from the particular laws of a State ; (2) That an insolvent law im- 
 paired the obligation of a contract, and the power to pass such a law was denied 
 to the State by the federal Constitution, by which the power to pass bankrupt 
 laws was vested exclusively in Congress, and such power could be exercised only 
 by national authority. 
 
 Under the first proposition he asserted that all human obligations sprang 
 from the universal law which recognizes everywhere a moral duty on the part of 
 every individual to perform what he undertakes. That the laws of a State simply 
 provide a remedy for enforcing an obligation already existing, and can operate 
 upon the contract only when it is broken. He illustrated this by showing that 
 a contract "made in an uncivilized country or remote territory, where no civil 
 government or formal statutory provisions existed, could be enforced in any 
 tribunal here having jurisdiction of the parties; which could not be, if it were 
 true that the contract depended for its existence upon some positive law pre- 
 vailing in the place where the contract was made. Under his second proposition 
 he showed that a bankrupt law deprived the creditor of a remedy, but did not ex- 
 tinguish the debt; that so long as the remedy was not denied by Congress, the 
 creditor could enforce his claim in the federal courts; and the plea that the rem- 
 edy had been denied in the State court, contrary to the organic law of the land, 
 was no bar, and no answer, in the federal tribunal, which would recognize only 
 a discharge under a national bankrupt law. 
 
 This selection, it is true, presents no room for rhetorical display, but the ar- 
 gument itself is great. When all the counsel had addressed the court, Mr. 
 Webster Closed the case for the creditor (the respondent and defendant in error) 
 as follows : 
 
IN THE CASE OF OGDEN v. SAUNDERS. 69 
 
 May it please the Court: — The question arising in this case 
 is not more important, nor so important even, in its bearing on in- 
 dividual cases of private right, as in its character of a public polit- 
 ical question. The Constitution was intended to accomplish a 
 great political object. Its design was not so much to prevent in- 
 justice 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 concern 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 in- 
 tention, as we think, plainly manifested in several of its provisions. 
 
 I. Bankrupt laws can be established only by national 
 authority. 
 
 The act of New York, under which this question arises, provides 
 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 sa'me manner. In the case, then, of a debt 
 already existing, it is admitted that the act does impair the obliga- 
 tion 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 inprasenti. Now, it is not contended that such laws are un- 
 just, 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 future debts. While 
 all agree that special acjts, made for individual cases, are unjust, all 
 admit that a general law, made for all cases, may be both just and 
 
 ' Sturges V. Crowninshield, 4 Wheat. Rep. 122. 
 
TO ARGUMENT OF DANIEL WEBSTEE 
 
 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 deny- 
 ing the power of making such systems applicable to existing debts ? 
 
 The argument used in Sturges v. Crowninshield was, at least, a 
 plausible and consistent argument. It maintained that the pro- 
 hibition 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 decided 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 conditions, was of no more validity than an 
 act providing that a particular debtor, A., should be discharged on 
 the same conditions from his particular creditor, B. 
 
 It being thus decided that general laws are within the prohibition 
 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 future 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 ad- 
 mitted; and the only ground taken for the distinction to stand on 
 is, that, when the law was in existence at the time of the making of 
 the contract, the parties must be supposed to have reference 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 obligation of contracts of which 
 the Constitution speaks, and whence it is derived. 
 
 2. Obligation of contracts considered. 
 
 The definition given by the court in Sturges v. Crowninshield is 
 sufficient for our present purpose. "A constract," say the court, 
 " is an agreement to do some particular thing ; the law binds the 
 party to perform this agreement, and this is the obligation of the 
 contract." 
 
 It is, indeed, probable that the Constitution used the words in a 
 somewhat more popular sense. We speak, for exaniple, familiarly 
 
m THE CASE OF OGDEX v. SAUNDERS. Tl 
 
 of a usurious contract, and yet we say, speaking technically, 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 con- 
 trovert. 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 contract, 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. 
 
 3. The duty of performing a contract rests upon universal 
 LAW. — Illustration of the principle. 
 
 The duty of performing promises is thus shown to rest on uni- 
 versal law; and if, departing from this well established principle, we 
 now follow the teachers who instruct us that the obligation of a con- 
 tract has its origin in the law of a particular State, an,d is in all 
 cases what that law makes it, and no more, and no less, we shall 
 probably find ourselves involved in inextricable difficulties. A man 
 promises, for a valuable consideration, 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 obliga- 
 tion is in the contract itself, in the assent of the parties, and in the 
 sanction of universal law. This is the doctrine of Grotius, Vattel, 
 Burlamaqui, Pothier, and Rutherforth. The contract, doubtless, is 
 necessarily to be enforced by the municipal 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 
 
T2 ARGUMENT OF DANIEL "WEBSTER 
 
 violation. But this is a very different thing from the same law 
 being the origin or fountain of the contract. 
 
 Let us illustrate this matter by an example. Two persons con- 
 tract 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 Maryland, 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 soci- 
 ety. But suppose the same parties to go together to a savage wilder- 
 ness, 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 promised him. 
 The right is as perfect here as it was in Pennsylvania, or even in New 
 York; but this could not be so if the obligation were created by the 
 laws of New York, or were dependent on that law for its existence, 
 because the laws of that State can have no operation beyond its ter- 
 ritory. 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 ? 
 
 4. A STATUTE WHICH DIMINISHES OR LESSENS AN OBLIGATION 
 IMPAIRS IT. 
 
 If these considerations show us that the obligation of a lawful 
 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 con- 
 tend, that any statute which diminishes or lessens its obligation does 
 impair it, whether it precedes or succeeds the contract in date. 
 The contract having an independent 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 par- 
 ticular law of New York; it did not depend on that law, but could 
 
IN THE CASE OF OGDEN v. SAUNDEKS. 73 
 
 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 en- 
 forced 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 tri- 
 bunals according to its terms. An act, then, purporting to dis- 
 charge it without payment is, as we contend, an act impairing its 
 obligation. 
 
 Here, however, we meet the opposite argument, stated on differ- 
 ent 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 construction to the 
 terms of the contract, or that it makes the promise, or the consider- 
 ation, 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 understanding 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 nothing 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: ist. That, if the proposition 
 were true, the consequence would not follow. 2d. That the propo- 
 sition itself cannot be maintained. 
 
 5. The law acts upon a contract only when it is broken, 
 but forms no part of the contract itself. 
 
 I. 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 con- 
 stitutional provision existing at the time which affects the contract, 
 or which is capable of affecting it; and especially this very article 
 of the Constitution of the United States is part of the contract. 
 The plaintiff in error argues in a complete circle. He supposes the 
 parties to have had reference to it because it was a binding law, and 
 
T4 ARGUMENT OP DANIEL WEBSTER 
 
 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 oppos- 
 ing to us the law itself. Is this logical ? Is it not precisely objectio 
 ejus, cujus dissolutio petitur 7 If one bring a bill to set aside a judg- 
 ment, is that judgment itself a good plea in bar to the bill ? We 
 propose 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 remains 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 con- 
 templated 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 aggre- 
 gate 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 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 defendant pleads his dis- 
 charge 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 
 st|Jute-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 contract "; 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 
 
IN THE CASE OF OGDEN v. SAUNDERS. 15 
 
 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 comparing the law with the Constitution, and of decid- 
 ing by such comparison whether it be valid or invalid. If the law 
 be unconstitutional, it is void, and no party can be supposed to 
 have had reference to a void law. If it be constitutional, no refer- 
 ence 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 con- 
 sideration ? 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 per- 
 son 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 ^eri facias, 
 or that he himself goes to jail, in pursuance of his contract. These 
 are the penalties which the law inflicts for the breach of his contract. 
 Doubtless, parties, when they enter into contracts, may well consid- 
 er 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, (i.) 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 obliga- 
 tion 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 wou^ld be void. In short, nothing which is part of the contract 
 can be varied but by consent of the parties; therefcute, the argument 
 
Y6 ARGUMENT OF DANIEL WEBSTER 
 
 runs in absurdum; for it proves that no laws for enforcing the con- 
 tract, 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 until they agree to terminate its operation. 
 (2.) If the party be bound by an implied assent to the law, as there- 
 by 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 the promisor would pay at all events, and not take advantage 
 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, to remove to 
 another State, do they carry the law with them as part of their con- 
 tract? We all know they do not. Or, take a common case. Some States 
 have laws abolishing imprisonment 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 the contract ? (4.) The argument proves too much, inas- 
 much as it applies as strongly to prior as to subsequent contracts. 
 It is founded on a supposed assent to the exercise of legislative 
 authority, without considering whether that exercise be legal or 
 illegal. But it is equally fair to found the argument on an implied 
 assent to the potential exercise of that authority. The implied 
 reference to the control of legislative power is as reasonable 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 ex- 
 isted; you knew it, and took your chance." There is as clear an 
 assent in one instance as in the other. Indeed, it is more reason- 
 able and more sensible to imply a general 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 sub- 
 mit to air 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 
 
Ilf THE CASE OF OGDEN v. SAUNDERS. 77 
 
 this argument is, that it would render the whole constitutional pro- 
 vision 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 
 cannot, 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 impair- 
 ing 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 vaHd, 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 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, accord- 
 ing 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 contract. 
 We think it is shown to be not so; and if it were, the expected con- 
 sequence would not follow. 
 
 6. Object and purpose of the constitutional prohibition. 
 
 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 adversaries on gen- 
 eral principles. We differ as to the main scope and end of this 
 constitutional provision. They think it entirely remedial; we re- 
 gard it as preventive. They think it adopted to secure redress 
 for violated private rights; to us it seems intended to guard against 
 great public mischiefs. They argue it as if it were designed as an in- 
 demnity or protection for injured private rights in individual cases of 
 meum and tuumj we look upon it as a great political provision, favor- 
 
78 ARGUMENT OF DANIEL WEBSTEK 
 
 able 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 confidence 
 were the principal things which did not exist under the old Con- 
 federation, and which it was a main object of the present Constitu- 
 tion to create and establish. A vicious system of legislation, a sys- 
 tem of paper money and tender laws, had completely paralyzed 
 industry, threatened to beggar every man of property, and, ulti- 
 mately, to ruin the country. The relation between debtor and 
 creditor, always delicate, and always dangerous 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 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 salutary laws, to be enforced by the power of the whole com- 
 munity. The Revolutionary War was over; the country had peace, 
 but little domestic tranquillity; it had Hberty, but few of its enjoy- 
 ments, and none of its security. The States had struggled together, 
 but their union was imperfect. They had freedom, but not an es- 
 tablished course of justice. The Constitution was, therefore, framed, 
 as it professes, " to form a more perfect union, to establish justice, 
 to s.ecure the blessings of liberty, and to insure domestic tran- 
 quillity." 
 
 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 consideration, are 
 obvious and prominent. The Objects were commerce, credit, and 
 mutual confidence in matters of property; and these required, 
 among other things, a uniform standard of value or medium of pay- 
 ments. 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 
 
IN THE CASE OF OGDEN v. SAUNDERS. 79 
 
 credit, or to make anything but gold and silver a tender in the pay- 
 ment 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 
 iixing 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 payment 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 un- 
 finished. We contend that, taking its provisions together, it is ap- 
 parent it was intended to provide for two things, intimately con- 
 nected with each other. These are, — i. A medium for the payment 
 of debts ; and, 2. A uniform manner of discharging debts, when 
 they are to be discharged without payment. 
 
 7. Grants of power to Congress and prohibitions to the 
 States considered. 
 
 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 cer- 
 tainly to be construed together, are not contained in the same 
 clauses. The powers granted to Congress are enumerated one after 
 another in the eighth section; the principal limitations on those 
 powers, in the ninth section; and the prohibitions to the States, in 
 the tenth section. Now, in order to understand whether any par- 
 ticular power be exclusively vested in Congress, it is necessary to 
 read the terms of the grant, together with the terms of the pro- 
 hibition. Take an example from that power of which we have been 
 speaking, the coinage power. Here the grant to Congress is, " To 
 coin money, regulate the value thereof, and of foreign coins." Now, 
 the correlative 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 : " Con- 
 gress 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 anything but gold and silver coin a tender in pay- 
 ment of debts." 
 
80 ARGUMENT OF DANIEL 'WEBSTER 
 
 These provisions respect the medium of payment, or standard of 
 value, and, thus collated, their joint result is clear and decisive. 
 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 throughout the United States; 
 but no State shall pass any law impairing the obligation of con- 
 tracts." 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 determined, in Sturges v. Crowninshield, that this pro- 
 hibition on the States did apply to systems of bankruptcy. It must 
 be now taken, therefore, that State bankrupt laws were in the mind 
 of the Convention when the prohibition was adopted, and, therefore, 
 the grant to Congress on the subject of bankrupt laws, and the pro- 
 hibition 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 enacted 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 pre- 
 ceded the grants of power to Congress, the two powers, when col- 
 lated, would then have read thus: " No State shall pass any law im- 
 pairing the obligation of contracts; but Congress may establish 
 uniform laws on the subject of bankruptcies." 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 uniform bankrupt acts ? And yet this in- 
 version 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 of that, in Sturges v. 
 Crowninshield, the court decided that such an exclusive power 
 could not be inferred 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 
 
IN THE CASE OF OGDEN v. SAUNDERS 81 
 
 of the Constitution in the connection which we have suggested, and 
 which is beheved 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 future 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 impair- 
 ing contracts; that is, any contract. In the nature of things a law 
 may impair a future contract, and, tKerefore, such contract is within 
 the protection of the Constitution. The words being general, it is 
 for the other side to show a limitation; and this, it is submitted, 
 they have wholly failed to do, unless they shall have established the 
 doctrine that the law itself is part of the contract. It may be added 
 that the particular expression of the Constitution is worth Tegard- 
 ing. The thing prohibited is called a law, not an act. A law, in 
 its general 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 property, 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 necessary as against other mischiefs. 
 
 2. The most conclusive argument, perhaps, arises from the con- 
 nection in which the clause stands. The words of the prohibition, 
 so far as it applies to civil rights, or rights of property, are, that " no 
 State shall coin money, emit bills of credit, make anything but gold 
 and silver coin a tender in the payment of debts, or pass any law 
 impairing the obligation of contracts." The prohibition of attain- 
 ders, and ex post facto laws, refers- entirely to criminal proceedings, 
 and, therefore, should be considered as standing by itself; but the 
 other parts of the prohibition are connected by the subject-matter, 
 and ought, therefore, to be construed together. Taking the words 
 thus together, according to their natural connection, how is it pos- 
 sible to give a more limited construction to the term " contracts," 
 in the last branch of the sentence, tha^i to the word " debts," in that 
 immediately preceding ? Can a State make anything 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 
 anything but gold and silver a tender in the payment of debts, nor 
 pass any law impairing the obligation of contracts. Now, by what 
 
82 ARGUMENT OF DAJSIEL WEnS':5;ER 
 
 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 subsist- 
 ing 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 same then that it now is; but the identity of terms would 
 have made the nature of the distinction now contended for some- 
 what more obvious. Thus altered, the clause would read that no 
 State sliould make anything but.gold and silver a tender in discharge 
 of contracts, nor pass any law impairing the obligation 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. Jt is certain that the substitution of the word contracts for 
 debts would not alter the sense ; and an argument that could not 
 be sustained, if such substitution 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 con- 
 tracts. 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 discharged became part of the con- 
 tract, and that the whole debt, or whole obligation, was thus quali- 
 fied by the pre-existing law, and was no more than a contract to de- 
 liver so much paper 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 favot 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 introduced for 
 the same object; they are expressed in words of similar 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 impor- 
 tant 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 con- 
 struction were allowed to prevail. As an object of political regula- 
 
IN THE CASE OF OGDEN v. SAUNDEKS. 83 
 
 tion, it was not important to prevent the States from passing bank- 
 rupt 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 tender 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 ten- 
 der of anything 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, having in 
 terms prohibited all tender laws, and taken so much pains to estab- 
 lish a uniform medium of payment, it has yet left the States the 
 power of discharging debts, as they may see fit, without any pay- 
 ment 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 endeav- 
 ored to provide for one uniform mode of discharging debts, when 
 they are to be discharged without payment. Third, that these ob- 
 jects are connected, and that the first loses much of its impor- 
 tance, 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, exist- 
 ing or future, in the same way that the other prohibition, in the 
 same section, extends to all debts, existing or future. Sixthly, that, 
 upon anyK)ther construction, one great political object of the Con- 
 stitution will fail of its accomplishment 
 
UNCERTAINTY OF LAW, 
 
 WILLIAM PALEY. 
 
 To a mind revolving thie subject of liuman jurisprudence, there fre- 
 quently occurs this question : Why, since the maxims of natural justice are 
 few and evident, do there arise so many doubts and controversies in their 
 application ? Or, in other words, how comes it to pass, that although the 
 principles of the law of nature be simple, and for the most part sufficiently 
 obvious, there should exist, nevertheless, in every system of municipal 
 laws, and in the actual administration of relative justice, numerous uncer- 
 tainties, and acknowledged difficulty ? Whence, it may be asked, so much 
 room for litigation, and so many subsisting disputes, if the rules of human 
 duty be neither obscure nor dubious ? If a system of morality, containing 
 both the precepts of revelation and the deductions of reason, may be com- 
 prised within the compass of one moderate volume ; and the moralist be 
 able, as he pretends, to describe the rights and obligations of mankind, in 
 all the different relations they may hold to one another ; what need of 
 those codes of positive and particular institutions, of those tomes of stat- 
 utes and reports, which require the employment of a long life even to 
 peruse ? 
 
 Now, to account for the existence of so many sources of litigation, not- 
 withstanding the clearness and perfection of natural justice, it should be 
 observed, in the first place, that treatises of morality always suppose facts 
 to be ascertained ; and not only so, but the intention likewise of the par- 
 ties to be known, and laid bare. For example, when we pronounce that 
 promises ought to be fulfilled in that sense in which the promiser appre- 
 hended, at the time of making the promise, the other party received and un- 
 derstood it ; the apprehension of one side, and the expectation of the other, 
 must be discovered, before this rule can be reduced to practice, or applied 
 to the determination of any actual dispute. Wherefore, the discussion of 
 facts which the moralist supposes to be settled, the discovery of intentions 
 which he presumes to be known, still remain to exercise the inquiry of 
 courts of justice. And as these facts and intentions are often to be in- 
 ferred, or rather conjectured, from obscure indications, from suspicious tes- 
 timony or from a comparison of opposite and contending probabilities, they 
 afford a never failing supply of doubt and litigation. For which reason, 
 the science of morality is to be considered rather as a direction to the par- 
 ties who are conscious of their own thoughts and motives and designs, to 
 which consciousness the teacher of morality constantly appeals, than as a 
 guide to the judge, or to any third person, whose arbitration must proceed 
 upon rules of evidence, and maxims of credibility, with which the moralist 
 has no COncern,_[Moral and Political Philosophy. Book VI, ch. 8.] 
 
 [84] 
 
SPEECH OF SEARGENT S. PRENTISS, 
 
 In Defense of Hon. Edward C. Wilkinson, of Mississippi, 
 AND Others, Indicted for Murder. 
 
 AT THE MERCER COUNTY OYER AND TERMINER, HELD 
 AT HARRODSBURG, KY., MARCH TERM. 1839. 
 
 Analysis of Mii. Prentiss' Speech. 
 
 X. Reasons for changing- the place of trial 
 from V.'.e county where the crime was 
 committed. 
 
 a. Private means employed to push the pros- 
 ecution. — Mississippians and Ken- 
 tuckians.— Duty of the jury. 
 
 3. Statement of the defense, and the law ap- 
 
 plicable to the case. 
 
 4. The facts showinf^ a motive for a conspi- 
 
 racy to visit violence en the accused. 
 
 5. Evidence, direct and circumstantial, dis- 
 
 closing a conspiracy to destroy the 
 defendants.— The direct proof. 
 
 6. The circumstantial evidence showing a 
 
 conspiracy. 
 
 7. Arraignment of Henry Oldham, a witness 
 
 for the commonw^ealth. 
 
 8. The defendants, from their situation, not 
 
 likely to provoke a quarrel.— Char- 
 acter of the participants compared. 
 9. The defendants believed a conspiracy 
 existed, whether in fact it did or did 
 not. 
 
 10. The part taken in the aifray by the re- 
 
 spective delendants. 
 
 11. The law of self-defense.— Circumstances 
 
 which justify the taking of life. 
 
 12. The propositions advanced by the pro:i- 
 
 ecution answered. — Illustrations of 
 
 the law of sel.'-defense. 
 Defendants' conduct eulogized. — They 
 
 took li.e from necessity, not from 
 
 malice. 
 Scathing review of the character and 
 
 conduct of the principal witnesses for 
 
 the prosecution. 
 
 13- 
 
 14 
 
 In December, 1838, Hon. Edward C. Wilkinson, his brother Benjamin R. 
 Wilkinson, M.D., and Mr. John Murdaugh, all residents of Mississippi, visited 
 Louisville, Kentucky, for the purpose of making preparations for the mar- 
 riage of the first-named gentleman, which was about to be celebrated with 
 appropriate ceremonies. The party stopped at the Gait House, In the mean- 
 time Doctor Wilkinson ordered a suit of clothes in which to appear at his 
 brother's wedding, from a Mr. Redding, a fashionable Louisville tailor. Two 
 days prior to the time fixed for the nuptials, the three Mississippi gentlemen 
 visited Mr. Redding's establishment for the purpose of obtaining the garments. 
 The coat was a misfit, and not being satisfactory, the tailor promised to alter it. 
 The Doctor was about to pay for the trousers, which had been sent to the hotel, 
 when his brother remarked, that he had better try them on first, as they might 
 be found to fit no better than the coat. Redding remarked that too much had 
 
 [85J 
 
86 SPEECH OF SEARGENT S. PRENTISS 
 
 been said about that already. The Judge retorted that he did not come there to 
 be insulted, and seizing a poker struck Redding a violent blow. An alterca- 
 tion ensued. No blood was spilt, however, and the parties separated. Redding, 
 nettled at what had occurred, concluded to take out warrants against the offend- 
 ers, but was obliged to go to the Gait House to get their names. On his way 
 thither, he related the circumstances to his friends, who became excited over the 
 affair, and that evening armed themselves and proceeded in a body to the Gait 
 House, in company with Redding. Whatever may have been their original in- 
 tention, the result was a terrible and bloody tragedy. The Mississippians were 
 attacked, knives and pistols were freely used, and two of Redding's companions 
 were killed in the affray. The most intense excitement prevailed, and the Judge 
 and his friends found the jail their only place of safety. Indictments for murder 
 were promptly returned ; but such was the state of public feeling, that an appli- 
 cation was made to the Legislature to change the place of trial to Mercer County, 
 and it accordingly took place at Harrodsburg the following March. 
 
 The defense was conducted by Seargent S. Prentiss, an old friend of Judge 
 Wilkinson, with whom were associated some of the ablest talent at the Kentucky 
 bar. Mr. Prentiss was at this time but thirty years of age, but his learning and 
 ability had already made for him a national reputation. He had just delivered 
 an argument in Congress, to establish his right to a seat in that body, which 
 Millard Filmore pronounced the most brilliant speech to which he had ever 
 listened. . " It elevated him at once," he said, " to the first ranlc of Congressional 
 orators." Daniel Webster heard it with profound attention during the three days 
 occupied in its delivery, and remarked with characteristic brevity, on leaving the, 
 Capitol: " No one can equal it." The peroration of this great speech has become 
 familiar. It was short, but its effect upon the audience was said to have been 
 wonderful. " When you decide, " he said, " that she [the State of Mississippi] can- 
 notchoQse her own representation, at the self-same moment blot from the spangled 
 banner of this Union the bright star that glitters to the name of Mississippi, but 
 leave the stripe behind, a fit emblem of her degradation." Judge BuUard re- 
 marked of this gifted child of genius, that he could speak the thoughts of poetry 
 with the inspiration of oratory, and in the tones of music. " The fluency of his 
 speech," says Mr. Baldwin, " was vmbroken — no syllable unpronounced — not a 
 ripple on the smooth and brilliant tide. Probably he never hesitated for a word 
 in his life. His diction adapted itself without effort to the thought ; now easy 
 and familiar, now stately and dignified, now beautiful and various as the hues of 
 the rainbow, again compact, even rugged in sinewy strength, or lofty and grand 
 in eloquent declamation." ' In seeking for comparisons and illustrations, to 
 adorn and beautify his rhetoric, Mr. Prentiss did not confine himself to places 
 and incidents made famous by the poets of antiquity. From the jungles of India 
 and the valley of the Nile ; from the plains of Tartary and tropical isles in 
 summer seas, he drew pictures and images which fascinated and delighted his 
 hearers. Vet his speeches are not burdened with a wearisome display of trope 
 and metaphor. He was not, however, content to adopt a style uniformly severe, 
 or to dress his images in solemn black. He arrayed them in gorgeous trappings, 
 in gold and spangles, or in sombre garb, as fitness required, since incongniity 
 was not one of his faults. He never sacrificed an argument for the sake of 
 
 ' Baldwin's Flush Times in Alabama and Mississippi. 
 
IN DEFENSE OF EDWAED C. WILKINSON. 87 
 
 adornment. His facts were always plainly and tersely stated, and were woven 
 into the text of his address with that consummate skill which indicates powers of 
 analysis of the highest order. Like a meteor blazing across the sky, his genius 
 shone with splendid lustre, dazzling the eyes of men ; and like a meteor he sud- 
 denly disappeared forever, the victim of disease and melancholy. 
 
 Judge Rowan, who was associated with Mr. Prentiss in the defense of Wil- 
 kinson, took occasion in his speech to the jury to pay his colleague the following 
 compliment. In reply to the charge which had been made against Mississippians, 
 that they were " a lordly people, who look down with contempt upon mechanics 
 and the laboring classes of mankind," he remarked : " They looked down upon 
 Mr. Prentiss, who traveled from the far east, and was engaged in teaching school 
 among them — an obscure pedagogue. No ; I cannot say he was obscure. He 
 could not be obscure anywhere ; the eruptive flashes of his great mind, like those 
 of .lEtna, threw a, blaze of light around him, which attracted, or rather exacted, 
 their gaze and admiration. They sent him as their representative to the Congress 
 of the United States. Mr. Prentiss must pardon me for thus going into his private 
 history. I was myself an humble pedagogue. The difference in our condition is, 
 that in my case the people of Kentucky honored mey in his the people of Mis- 
 sissippi honored themselves.'' 
 
 The trial excited the keenest interest. The Court House was crowded, and 
 it is said that nearly two hundred ladies graced the occasion with their presence, 
 attracted by the name and fame of Mr. Prentiss. The famous Ben. Hardin 
 assisted Mr. Bullock, the prosecuting attorney. The defense was a conspiracy on 
 the part of the tailor and his friends to kill or degrade the Mississippians, and that 
 the latter were justified in defending themselves to the last extremity. Mr. 
 Prentiss spoke as follows : 
 
 May it please your Honor, and you, Gentlemen of the 
 Jury : — I rise to address you with mingled feelings of regret and 
 pleasure. I ' regret the occasion which has caused me thus acci- 
 dentally and unexpectedly to appear before you, and has compelled 
 you to abandon, for a time, the peaceful and quiet avocations of 
 private life, for the purpose of performing the most important and 
 solemn duty which, in the relations of civilized society, devolves 
 upon the citizen. I regret to behold a valued and cherished friend 
 passing through one of the most terrible ordeals ever invented to 
 try the human feelings, or test the human character ; an ordeal 
 through which, I do not doubt, he will pass triumphantly and 
 honorably, without leaving one blot or stain upon the fair fame that 
 has been so long his rightful portion; but through which he cannot 
 pass unscathed in his sensibilities and feelings. The lightning scar 
 will remain upon his heart; and public justice herself cannot, even 
 though by acclamation through your mouths she proclaims his in- 
 nocence, ever heal the wounds inflicted by this fierce and unrelent- 
 ing prosecution, urged on, as it has been, by the demons of revenge 
 
o» SPEECH OF SEARGENT S. PRENTISS 
 
 and avarice. Most of all do I regret the public excitement which 
 has prevailed in relation to these defendants; the uncharitable pre- 
 judgment which has forestalled the action of law; the inhospitable 
 prejudice aroused against them because they are strangers, and 
 the attempt which has been, and is still making, to mingle with the 
 pure stream of justice the foul, bitter and turbid torrent of private 
 vengeance. 
 
 But I am also gratified; gratified that the prosecution under 
 which my friends have labored, is about to cease; that their char- 
 acters, as well as the cause of public justice, will soon be vindi- 
 cated; that the murky cloud which has enveloped them will be dis- 
 sipated, and the voice of slander and prejudice sink into silence 
 before the clear, stern, truthful response of this solemn tribunal. 
 The defendants are particularly fortunate in being tried before 
 such a tribunal. The bearing and character of his Honor who 
 presides with so much dignity, give ample assurance that the law 
 will be correctly and impartially laid down; and I trust I may be 
 permitted to remark, that I have never seen a jury in whose hands 
 I would sooner intrust the cause of my clients, while, at the same 
 time, I am satisfied you will do full justice to the commonwealth. 
 
 I came before you an utter stranger, and yet I feel not as a 
 stranger towards you; I have watched during the course of the 
 examination the various emotions which the evidence was so well 
 calculated to arouse in your bosoms, both as men and as Ken- 
 tuckians; and when I beheld the flush of honorable shame upon 
 your cheeks, the sparkle of indignation in your eyes, or the curl of 
 scorn upon your lips, as the foul conspiracy was developed, I felt 
 that years could not make us better acquainted. I saw upon your 
 faces the mystic sign which constitutes the bond of union among 
 honest and honorable men; and I knew that I was about to address 
 those whose feelings would respond to my own. I rejoiced that my 
 clients were, in the fullest sense of the term, to be tried by a jury 
 of their peers. 
 
 I. Reasons for changing the place of trial from the 
 
 COUNTY WHERE THE CRIME WAS COMMITTED. 
 
 Gentlemen of the jury, this is a case of no ordinary character, 
 and possesses no ordinary interest. Three of the most respectable 
 citizens of the State of Mississippi stand before you, indicted for 
 the crime of murder, the highest offense known to the laws of the 
 land. The crime is charged to have been committed not in your 
 
IN DEFENSE OF EDWARD C. "WILKINSON. 80 
 
 own county, but in the city of Louisville, and there the indictment 
 was found. The defendants, during the past winter, applied to the 
 Legislature for a change of venue, and elected your county as the 
 place at which they would prefer to have the question of their in- 
 nocence or guilt investigated. 
 
 This course, at first blush, may be calculated to raise in your 
 minds some unfavorable impressions. You may naturally inquire 
 why it was taken; why they did not await their trial in the county 
 in which the offense was charged to have been committed; in fine, 
 why they came here ? I feel it my duty, before entering into the 
 merits of this case, to answer these questions, and to obviate such 
 impressions as I have alluded to, which, without explanation, might 
 very naturally exist. In doing so, it will be necessary to advert 
 briefly to the history of the case. My clients have come before 
 you for justice. They have fled to you, even as to the horns of the 
 altar, for protection. It is not unknown to you, that upon the oc- 
 currence of the events, the character of which you are about to try, 
 great tumult and excitement prevailed in the city of Louisville. 
 Passion and prejudice poured poison into the public ear. Popular 
 feeling was roused into madness. It was with the utmost difficulty 
 that the strong arm of the constituted authorities wrenched the 
 victims from the hands of an infuriated mob. Even the thick walls 
 of the prison hardly afforded protection to the accused. Crouched 
 and shivering upon the cold floor of their gloomy dungeon, they 
 listened to the footsteps of the gathering crowds; and ever and 
 anon, the winter wind that played melancholy music through the 
 rusty gates, was drowned by the fierce howling of the human 
 wolves, who prowled and bayed around their place of refuge, 
 thirsting for blood. 
 
 Every breeze that swept over the city bore away slander and 
 falsehood upon its wings. Even the public press, though I doubt 
 not unwittingly, joined in the work of injustice. The misrepre- 
 sentations of the prosecutor and his friends became the public 
 history of the transaction; and from one end of the Union to the 
 other, these defendants were held up to public gaze and public 
 execration as foul, unmanly murderers, and that, too, before any 
 judicial investigation whatever had occurred, or any opportunity 
 been afforded them for saying a single word in their own defense. 
 
 I recollect well when I received the first information of the 
 affair. It was in some respectable newspaper, which professed to 
 give a full account of the transaction, and set forth with horrible 
 
90 SPEECH OF SEARGENT S. PRENTISS 
 
 minuteness a column of disgusting particulars. Instantly, openly, 
 and unhesitatingly, I pronounced the paragraph false, and trampled 
 it under my heels; when rumor seemed to indorse and sustain the 
 assertions of the public prints, I laughed her to scorn. I had 
 known Judge Wilkinson long and well. I knew him to be incapa- 
 ble of the acts attributed to him, or of the crime with which he was 
 charged. Not an instant did I falter or waver in my belief. I 
 hurled back the charge as readily as if it had been made against 
 myself. What! a man whom I had known for years as the very 
 soul of honor and integrity, to be guilty, suddenly and without prov- 
 ocation, of a base and cowardly assassination ! One whose whole 
 courseiof life had been governed and shaped by the highest moral 
 principle; whose feelings were familiar to me; whose breast ever 
 had a window in it for my inspection, and yet had never exhibited 
 a cowardly thought or dishonorable sentiment; that such a one, 
 and at such an era in his life too, should leap at a single bound the 
 wide gulf which separates vice from virtue, and plunge at once into 
 the depths of crime and infamy ! Why it was too monstrous for 
 credence. It was too gross for credulityitself. Had I beUeved it, 
 I should have lost all confidence in my kind. I would no longer 
 have trusted myself in society where so slender a barrier divided 
 good from evil. I should have become a man-hater, and, Timon- 
 like, gone forth into the desert, that I might rail with freedom 
 against my race. You may judge of my gratification in finding the 
 real state of facts in the case so responsive to my own opinion. 
 
 I am told, gentlemen, that during this popular excitement, there 
 were some whose standing and character might have authorized the 
 expectation of a different course of conduct, who seemed to think 
 it not amiss to exert their talents and influence in aggravating in- 
 stead of assuaging the violent passions of the multitude. I am told 
 that when the examination took place before the magistrates, every 
 bad passion, every ungenerous prejudice was appealed to. The ar- 
 gument was addressed, not to the court, but to the populace. 
 
 It was said that the unfortunate individuals who fell in the 
 affray were mechanics; while the defendants were Mississippians, 
 aristocratic slaveholders, who looked upon a poor man as no better 
 than a negro. They were called gentlemen, in derision and con- 
 tempt. Every instance of violence which has occurred in Missis- 
 sippi for years past was brought up and arrayed with malignant 
 pleasure, and these defendants- made answerable for all the crimes 
 which, however much to be regretted, are so common in a new and 
 
IN DEFENSE OP EDWAED C. WILKINSON. 91 
 
 rapidly populating country. It was this course of conduct and this 
 state of feeling which induced the change of venue. 
 
 2. Private means employed to push the prosecution. — 
 
 MiSSISSIPPIANS AND KeNTUCKIANS. DuTY OF 
 
 THE JURY. 
 
 I have made these remarks, because I fear that a similar spirit 
 still actuates that portion of this prosecution, which is conducted, 
 not by the State, but by private individuals. 
 
 I am not aware that the commoilwealth of Kentucky is incapa- 
 ble of vindicating her violated laws, or unwilling to prosecute and 
 punish the perpetrators of crime. The district attorney has given 
 ample proof that she is provided with officers fully capable for as- 
 serting her rights and protecting her citizens; and with the excep- 
 tion of one or two remarks, which ffell from him inadvertently, I 
 accord to his observations my most unqualified approbation : he 
 has done equal justice to the State and the defendants; he has ac- 
 quitted himself ably, honorably, and impartially. But, gentlemen, 
 though the State is satisfied, the prosecutor is not. Your laws have 
 spoken through their constituted agent; now private vengeance and 
 vindictive malice will claim to be heard. One of the ablest lawyers 
 of your country, or of any country, has been employed to conduct 
 the private pari of this prosecution; employed, not by the common- 
 wealth, but by the real murderer; him whose forehead I intend, 
 before I am done, to brand with the mark of Cain — that in after 
 life all may know and all may shun him. The money of the pros- 
 ecutor has purchased the talent of the advocate; and the contract 
 is, that blood shall be exchanged for gold. The learned and dis- 
 tinguished gentleman to whom I allude, and who sits before me, 
 may well excite the apprehension of the most innocent. If rumor 
 speak truth, he has character sufficient, even though without ability, 
 and ability sufficient, even without character, to crush the victims 
 of his purchased wrath. 
 
 I said that, with the exception of one or two remarks, I was 
 pleased with the manly and honorable course of the common- 
 wealth's attorney. Those remarks seemed to be more in the spirit 
 of his colleague than in accordance with his own feelings. I was 
 sorry to hear him mention so pointedly, and dwell so long upon 
 the fact that the defendants were Mississippians, as if that con- 
 stituted an ingredient in their crime or furnished a proof of 
 
92 SPEECH OF SEARGENr S. PRENTISS 
 
 their guilt. If to be a Mississippian is an offense in my clients, I 
 cannot defend them; I am myself particeps criminis. We are all 
 guilty; with a malice aforethought, we have left our own beautiful 
 homes, and sought that land, the name of which seems to arouse in 
 the minds of the opposing counsel only images of horror. Truly 
 the learned gentlemen are mistaken in us; we are no cannibals, nor 
 savages. I would that they would visit us, and disabuse their 
 minds of these unkind prejudices. They would find in that far 
 country thousands of their own Kentuckians, who have cast their 
 lot by the monarch stream, in the enjoyment of whose rich gifts, 
 though they forget not, they hardly regret the bright river upon 
 whose banks they strayed in childhood. No State has contributed 
 more of her sons to Mississippi than Kentucky; nor do they suffer 
 by being transplanted to that genial soil. Their native State may 
 well be proud of them, as they ever are of her. 
 
 But I do injustice to you and to myself by dwelling upon this 
 matter. Here, in the heart of Kentucky, my clients have sought 
 and obtained an unprejudiced, impartial jury. You hold in your 
 hands the balance of justice; and I ask and expect that you will 
 not permit the prosecution to cast extraneous and improper weights 
 into the scale against the lives of the defendants. You constitute 
 the mirror whose office it is to reflect, in your verdict, the law and 
 the evidence which have been submitted to you. Let no foul 
 breath dim its pure surface, and cause it to render back a broken 
 and distorted image. Through you now flows the stream of public 
 justice; let it not become turbid by the trampling of unholy feet. 
 Let not the learned counsel, who conducts the private part of this 
 prosecution, act the necromancer with you, as he did with the 
 populace in the city of Louisville, when he raised a tempest which 
 even his own wizard hand could not have controlled. 
 
 Well may he exclaim, in reference to that act, like the foul 
 spirit in Manfred: 
 
 I am the rider of the wind, 
 
 The stirrer of the storm; 
 The hurricane I left behind 
 
 Is yet with lightning warm. 
 
 .Aye, so it is still "with lightning warm." But you, gentlemen, 
 will perform the humane office of a conductor, and convey this 
 electric fluid safely to the earth. 
 
 You will excuse these prefatory observations: they are instigated, 
 by no doubt of you, but by a sense of duty to the defendants. I 
 
IN DEFENSE OF EDWARD C. "WILKINSON. 93 
 
 wish to obviate, in advance, the attempts which I know will be 
 made to excite against them improper and ungenerous prejudices. 
 You have seen, in the examination of one of the witnesses, Mr. 
 Graham, this very day, a specimen of the kind of feeling which has 
 existed elsewhere, and which I so earnestly deprecate. So enraged 
 was he, because the defendants had obtained an impartial jury, that 
 he wished the whole Legislature in that place not to be mentioned 
 to ears polite, and that he might be the fireman; and all on account 
 of the passage of the law changing the venue. Now, though I 
 doubt much whether this worthy gentleman will be gratified in his 
 benevolent wishes, in relation to the final destiny of the Senate and 
 House of Representatives of this good commonwealth, yet I cannot 
 but believe that his desires in regard to himself will be accom- 
 plished, and his ambitious aspirations fully realized in the ultimate 
 enjoyment of that singular office which he so warmly covets. 
 
 3. Statement of the defense, and the law applicable to 
 
 THE CASE. 
 
 Gentlemen of the jury — I ask for these defendants no sympathy, 
 nor do they wish it. I ask for them only justice — such justice alone 
 as you would demand if you occupied their situation and they 
 yours. They scorn to solicit that from your pity which they chal- 
 lenge from your sense of right. I should ill perform towards them 
 the double duty which I have assumed, both of friend and advo- 
 cate, did I treat their participation in this unfortunate transaction 
 otherwise than candidly and frankly; did I attempt to avoid re- 
 sponsibility by exciting commiseration. I know that sooner than 
 permit deception and concealment in relation to their conduct, 
 they would bare their necks to the loathsome fingers of the hang- 
 man; for to them the infamous cord has less of terror than false- 
 hooJ and self-degradation. 
 
 That these defendants took away the lives of the two individu- 
 als whose deaths are charged in the indictment, they do not deny. 
 But they assert that they did not so voluntarily or mahciously; that 
 they committed the act from stern and imperative necessity; from 
 the promptings of the common instincts of nature ; by virtue of 
 the broad and universal law of self-defense; and they deny that 
 they have violated thereby the ordinances either of God or man. 
 They admit the act, and justify it. 
 
 The ground of their defense is simple, and I will state it, so 
 that it cannot be misapprehended. They assert, and I shall at- 
 
94 SPEECH OF SEARGENT S. PRENTISS 
 
 tempt, from the evidence submitted, to convince you that a con- 
 spiracy was formed by the prosecutor and various other persons, 
 among ■whom were the deceased, to inflict personal violence upon 
 them; that the conspirators, by preconcerted agreement, assembled 
 at the Gait House, in the city of Louisville, and attempted to ac- 
 complish their object; and that, in the necessary, proper and legal 
 defense of their lives and persons from such attempt, the defend- 
 ants caused the deaths of two of the conspirators. After discussing 
 this proposition, I shall submit another, which is, that even though 
 a conspiracy on the part of the deceased and their companions, to 
 inflict personal violence and bodily injury upon the defendants, did 
 not exist, yet the defendants had reasonable ground to suppose the 
 existence of such a conspiracy, and to apprehend great bodily harm 
 therefrom; and that upon such reasonable apprehension they were 
 justified in their action, upon the principle of self-defense, equally 
 as if such conspiracy had, in point of fact, existed. 
 
 The law applicable to these two propositions is simple, being in 
 fact nothing more than a transcript from the law of nature. The 
 principles governing and regulating the right of self-defense are 
 substantially the same in the jurisprudence of all countries — at 
 least all civilized ones. These principles have been read to you 
 from the books by my learned and excellent friend. Col. Robertson, 
 and require no repetition. 
 
 That a man has a right to defend himself from great bodily harm, 
 and to resist a conspiracy to inflict upon him personal violence, if 
 there is reasonable danger, even to the death of the assailant, will 
 not, I presume, be disputed. That reasoftable, well-grounded appre- 
 hension, arising from the actions of others,- of immediate violence 
 and injury, is a good and legal excuse for defensive action, propor- 
 tionate to the apparent impending violence, and sufficient to pre- 
 vent it, I take to be equally indisputable. 
 
 4. The facts showing a motive for a conspiracy to visit 
 
 VIOLENCE ON the ACCUSED. 
 
 By these plain rules, and upon these simple principles, let us 
 proceed to test the guilt or innocence of the defendants. First, 
 then, as to the existence of the conspiracy. Before examining the 
 direct evidence to this point, you will naturally inquire, was there 
 any cause for this alleged conspiracy ? Motive always precedes 
 action. Was there any motive for it ? If we establish the existence 
 of the seed, we shall feel less hesitation in being convinced of the 
 
IN DEFENSE OF EDWARD C. WILKINSON. 95 
 
 production of the plant. Was there, then, any motive on the part 
 of Mr. Redding and his friends for forming a combination to inflict 
 personal violence upon the defendants ? In answering this ques- 
 tion, it will be necessary to take notice of the evidence which has 
 been given in relation to events that transpired at the shop of Mr. 
 Redding at a period anterior to the transaction at the Gait House, 
 and which, except for the clue they afford to the motive, and con- 
 sequently to the subsequent action of the parties, would have no 
 bearing upon the case before you. You will take heed to remem- 
 ber, that whatever of impropriety you may consider as attaching to 
 the conduct of Judge Wilkinson and his friends during this part of 
 the affair, must not be permitted to weigh in your verdict, inasmuch 
 as that conduct is the subject of another indictment which is still 
 pending in this court. 
 
 Judge Wilkinson visited Louisville for the purpose of making 
 the preparations necessary for the celebration of his nuptials. The 
 other two defendants had also their preparations to make, inasmuch 
 as they were to act as the friends upon this interesting occasion. 
 Dr. Wilkinson, a brother of the Judge, had ordered a suit of clothes 
 of Mr. Redding, who follows the very respectable occupation of 
 tailor, occasionally relieved and interspersed by the more agreeable 
 pursuits of a coffee-house keeper. On the day but one preceding 
 that fixed for the marriage ceremonies, the Doctor, in company 
 with his brother and friend, Murdaugh, proceeded to the shop of 
 Mr. Redding for the purpose of obtaining the wedding garments. 
 Upon trying on the coat, it was found ill made and of a most un- 
 graceful fit. It hung loosely about his shoulders, and excited by 
 its awkward construction the criticism and animadversion of his 
 friends. Even the artificer did not presume to defend the work of 
 his own hands, but simply contended that he could reorganize the 
 garment, and compel it, by his amending skill, into fair and just 
 proportions. From the evidence, I presume, no one will doubt that 
 it was a shocking bad coat. Now, though under ordinary circum- 
 stances the aptitude of a garment is not a matter of very vital im- 
 portance in the economy of life, and ought not to become the sub- 
 ject of controversy, yet all will admit that there are occasions upon 
 which a gentleman may pardonably indulge a somewhat fastidious 
 taste in relation to this matter. Doctor Wilkinson will certainly be 
 excused, considering the attitude in which he stood, for desiring a 
 well-made and fashionable coat. 
 
 I confess I am not a very good judge in concerns of this sort. 
 
96 SPEECH OF SEARGENT S. PRENTISS 
 
 I have had no experience on the subject, and my investigations in 
 relation to it have been exceedingly limited. Under favor, how- 
 ever, and with due deference to the better judgment of the learned 
 counsel on the other side, I give it as my decided opinion, that a 
 gentleman who is about to participate in a marriage ceremony is 
 justified in refusing to wear a coat which, by its loose construction 
 and superabundant material, indicates, as in the case before us, a 
 manifest want of good husbandry. 
 
 Suffice it to say. Doctor Wilkinson and his friends did object to 
 the garment, and Mr. Redding, after some altercation, consented to 
 retain it. The pantaloons, which constituted a part of the suit, 
 had been sent to the hotel, and the Doctor was in the act of paying 
 for them out of a $ioo bill, which he had previously deposited with 
 Mr. Redding, when the Judge remarked that he had better not pay 
 for the pantaloons until he had first tried them on, as they might 
 be found to fit no better than the coat. Mr. Redding, according 
 to his own evidence, responded, that " they had said too much al- 
 ready about the matter;" to which the Judge, he says, replied, that 
 he did not come there to be insulted, and immediately seized the 
 poker and struck him; upon which the Doctor and Mr. Murdaugh 
 also fell on him, with their knives drawn. Redding then seized his 
 shears, but did not succeed in cabbaging therewith any part of his 
 assailants. He was successful, however, in dragging the Judge into 
 the street, where, after a slight scuffle which resulted in no personal 
 injury to any of the parties, they were separated. After the separa- 
 tion, Redding offered, if they would lay down their knives, to fight 
 them all. This kind proposition the defendants declined; but the 
 Doctor returned into the shop, obtained his $ioo note, and then 
 the defendants retired from the place. 
 
 Such, in substance, is Mr. Redding's own account of the trans- 
 action at his shop. The witness Weaver also proves the altercation 
 which occurred in relation to the fit of the coat and the scuffle 
 which ensued in consequence. He. however, avers that Redding, 
 in a very insulting manner, told the Judge that he " was more 
 meddlesome than the other," and that he " was too d — d meddle- 
 some," or words to that effect; which insulting language so excited 
 the Judge that he seized the poker and commenced the assault. 
 
 The other witness, Craig, Redding's journeyman, testifies in sub- 
 stance the same as Redding, as to what passed in the shop; corrob- 
 orates his account of the altercation about the coat; and says that 
 he considered Doctor Wilkinson not as assisting in the affray, but 
 
IN DEFENSE OF EDWARD C. WILKINSON. 97 
 
 as attempting to separate the parties. Some of the witnesses think 
 that the Doctor attempted, in the street, to stab Redding, as he was 
 getting the advantage of his brother. The evidence on this point, 
 as well as in regard to the conduct of Murdaugh, is somewhat con- 
 tradictory. In the view, however, which I have taken of the case, 
 the discrepancy is of little importance. 
 
 It is clearly proven, take the evidence in any way, that Mr. 
 Redding used insulting language towards Judge Wilkinson, on ac- 
 count of the Judge's expression of an opinion in relation to the fit 
 of his brother's coat. What was the exact language used it is 
 difficult to ascertain. 
 
 There were six persons in the room when the quarrel ensued — 
 on the one side, the prosecutor (Redding), his foreman (Craig), and 
 the boy (Weaver); on the other, the three defendants. 
 
 All the evidence on this point has been derived from the first 
 party, and ought, consequently, to be taken with many grains of al- 
 lowance. The prosecutor has given you his version of the affair, 
 but his cunning has prevented the defendants from giving you 
 theirs. Doctor Wilkinson, who was discharged by the examin- 
 ing magistrate, has been included in the indictment, one would 
 judge, for the very purpose of precluding his testimony. No one 
 can doubt that the conduct of Judge Wilkinson, however repre- 
 hensible, resulted from the abusive language and insulting demeanor 
 of Mr. Redding. The happy facility with which he indulged, on a 
 subsequent occasion, in the use of opprobrious epithets, gives good 
 reason to suppose that his remarks on the present were not very 
 guarded. The expression deposed to by Weaver is, I presume, but 
 a sample. " You are too d — d meddlesome," was the observation, 
 accompanied, no doubt, by the overbearing and bullying manner 
 which illustrated his conduct afterwards, and which smacked more 
 of his spiritual pursuit as the Ganymede of a coffee-house, than of 
 his gentle calling as a knight of the shears and thimble. He cer- 
 tainly did on this occasion " sink the tailor;" for tailors are pro- 
 verbially polite and gentlemanly in their deportment. 
 
 I do not wish to be considered as justifying Judge Wilkinson or 
 his friends, in taking notice of the petulant and insolent conduct of 
 Redding. I think they would have better consulted their character 
 and feelings by treating him with contempt. I will go further and 
 candidly admit that I consider their course reprehensible, although 
 it resulted from passion and sudden excitement, and not from de- 
 liberate determination. They were themselves convinced of this in 
 
98 SPEECH OF SE ARGENT S. PRENTISS 
 
 a moment, and left the ground, ashamed, as they still are, of their 
 participation in the matter — Judge Wilkinson rebuking and leading 
 away his young and more ardent friend Murdaugh, who seemed to 
 indicate more disposition to accept the boastful challenge of Mr. 
 Redding, " that he could, if they would lay down their knives, whip 
 them all three." From all the evidence it is perfectly clear that, in 
 the altercation, no personal injury resulted to any of the parties; 
 that the defendants retired voluntarily from the quarrel; while Mr. 
 Redding retained the field, and with boastful taunts and insulting 
 outcries invited a renewal of the fight. The Mississippians were 
 manifestly satisfied. Not so Mr. Redding; he was " full of wrath 
 and cabbage," boiling over with violence, and breathing defiance 
 and vengeance against the retreating foe. He, doubtless, retired to 
 his coffee-house, and attempted to soothe his wounded feelings with 
 some of the delightful beverages which it was occasionally his 
 profitable province to dispense to others. Here his friends gathered 
 around him; he recounted to them his manifold grievances; he 
 grew warm in the recital; the two white-handled pocket-knives, 
 which had been drawn but not used in the affray, danced before 
 his distempered imagination in the shape of trenchant and death- 
 dealing blades. These little instruments of ordinary and general 
 use became 3t once bowie-knives, " in buckram." He believed, no 
 doubt, and mad§ his friends believe, that he was an injured man, 
 and that some satisfaction was due to his insulted honor. I have 
 presented this part of the case to you simply for the purpose of 
 enabling you to judge of the subsequent action of the parties, and 
 to indicate on which side a desire for vengeance, and a combina- 
 tion to obtain it, were most likely to originate. Upon the conclu- 
 sion of the first affray, which party would you have suspected of a 
 disposition to renew it ? Where £0ul(J lie the motive on the part of 
 Judge Wilkinson and his friends for additional violence ? But who 
 that is acquainted with the workings of human nature, or the indi- 
 cations of human feeling, will hesitate a moment in believing that 
 revenge lurked in the bosom of Redding, and sought only a safe 
 opportunity for development ? His conduct indicated a state of 
 mind precisely fitted for the formation of a conspiracy. 
 
 5. Evidence, direct and circumstantial, disclosing a con- 
 spiracy TO destroy the defendants. — The 
 
 DIRECT PROOF. 
 
 Having laid the foundation, I will now proceed to the erection 
 
m DEFENSE OP EDWARD C. WILKINSON. 99 
 
 of the superstructure. I will show, first by the direct, and then by 
 the circumstantial proofs, the existence of this foul and cowardly 
 conspiracy. I will, however,- here remark, that I doubt not the 
 misrepresentations and falsehoods of Mr. Redding, in relation to 
 the transaction, induced several of the persons implicated to join 
 the combination, who, with a correct knowledge of the facts, would 
 never have participated in the affair. 
 
 First, then, as to the direct and positive evidence. Mr. Jackson 
 says, that immediately after the first affray he was passing Mr. Red- 
 ding's, when his attention was attracted by loud talking in the 
 store, which induced him to enter, where he found Redding, John- 
 son and Meeks. Johnson was expressing his opinion as to the 
 course which should be pursued towards the Mississippians for their 
 conduct, and said they " ought to go to the Gait House and flog 
 them." "Jack," said he to Mr.Redding, "just say the words, and 
 I'll go for Bill Holmes, and we'll give them h — 1;" at the same time 
 boasting, in his own peculiar phraseology, " that he was as much 
 manhood as was ever wrapped up in so much hide." Upon some 
 hesitation being evinced at this proposition, Meeks said: " Let's go 
 anyhow, and we'll have a spree." 
 
 Mr. Jackson further deposes, that some time after he was 
 stopped by Johnson, on the street, who told him he was going after 
 Holmes; that Jack Redding was a good man, and that he, Jackson, 
 ought to go with them to the Gait House and see him righted. 
 Jackson declined, alleging as an excuse his religious character, and 
 his desire to abstain from fighting; whereupon Johnson exclaimed, 
 in his ardent zeal for enlisting recruits, that "church, hell or 
 he9.ven ought to be laid aside to right a friend." Jackson says he 
 understood it distinctly, that it was a fight to which he was invited. 
 
 Mr. Jackson's testimony is entitled to credit. He did not par- 
 ticipate in the affair, and he can. have no inducement to speak 
 falsely, for all his prejudices must naturally be enlisted on the side 
 of the prosecution. His character is sustained by unexceptionable 
 testimony, and has been impugned by no one except the salaman- 
 der gentleman, whose ambition seems to be to pursue in the next 
 world that occupation which in this is principally monopolized by 
 the descendants of Ham. 
 
 The next direct evidence of the conspiracy is from Mr. Deering, 
 whose character and testimony are both unimpeachable. He says 
 he was passing down Market street, on the evening of the affray, 
 when he saw, near the Market-house, Johnson in company with 
 
100 SPEECH OF.SEARGENT S. PRENTISS 
 
 Holmes and others, and that they were discussing the subject of 
 the quarrel between the Mississippians and Redding. This proves 
 that Johnson was carrying into effect his proposition at Redding's 
 store, viz., "to go and get Bill Holmes, and give them h — 1." He 
 had already found Bill Holmes, and, we shall presently see, made 
 all his arrangements for "giving them h — 1." 
 
 Mr. Deering says, that soon after he met Mr. Johnson again, 
 who inquired for Mr. Turner, the City Marshal. Mr. Deering told 
 him he would be too late with his officers, for the Mississippians 
 would be gone; to which Mr. Johnson responded, "there were 
 enough gone there — that if they came down their hides would not hold 
 shucks." What did this mean, if it did not indicate that the con- 
 spiracy had already been formed, and a portion of the conspirators 
 assembled at the Gait House for the purpose of preventing the 
 game from escaping, and holding it at bay until the arrival of the 
 rest of the hunters. They had gone, it seems, too, in sufficient 
 numbers to authorize the classical boast of Mr. Johnson, " that if 
 they (meaning the Mississippians) came down their hides wouldn't 
 hold shucks." 
 
 There is one more witness whose testimony is positive to the 
 point. It is Mr. Harris. He swears, clearly and unequivocally, 
 that Johnson met him on the evening of the affray, told him that 
 the Mississippians had insulted Mr. Redding, and directly solicited 
 him to go with Redding's friends to the Gait House and see him 
 righted. Mr. Harris says he refused to go, whereupon Johnson ex- 
 claimed: " Are you a friend of Redding's ? " thereby shov/ing how 
 strong was the feeling where even a mere refusal to participate in 
 the violence was considered as proof that the man refusing was no 
 friend of Redding. 
 
 Such, gentlemen, is the positive proof of the conspiracy. It 
 consists of the evidence of three disinterested and honest wit- 
 nesses, two of whom were directly and strongly solicited to partici- 
 pate in the matter. The testimony of each of these witnesses cor- 
 roborates that of the other two. The facts sworn to have a natural 
 order and connection. There is verisimilitude about the whole 
 story, which would not belong to either portion by itself. The tes- 
 timony is entitled to much more weight than if it had been the re- 
 cital of a single witness; for if you believe one of the witnesses, 
 you must give credit to all. One of them swears that he heard 
 Johnson, in Redding's shop, propose to Redding and his friends 
 that he should get " Bill Holmes " and " give them h — 1." The 
 
IN DEFENSE 0* EDWARD C. -WILKINSON. 101 
 
 next witness saw Johnson in the street immediately after, in com- 
 pany with " Bill Holmes," who seems to have been the Achilles of 
 these Myrmidons, explaining to him his dear Patroclus, Redding, 
 had been insulted by the hectoring Mississippians, and urging him 
 to vengeance. Again the same witness met Johnson, and was in- 
 formed by him that a portion of his banditti had already taken 
 possession of the passes of the Gait House, and that, if the Missis- 
 sippians appeared, "their hides wouldn't hold shucks." The third 
 witness swears to a positive solicitation from Johnson, that he 
 should join in the affray, and to the expression of strong indigna- 
 tion by this slayer of cattle upon his refusal to do so. 
 
 Johnson was the " Malise " of the party, the " messenger of 
 blood and brand " sent forth to summon the clansmen true. Too , 
 well did he perform his duty. He collected his friends, and coh- 
 ducted them like beasts to the slaughter, while he himself found the 
 ''manhood," which, according to his boast, distended his hide, 
 rapidly descending to his heels. But enough, for the present, of 
 this vaporing worthy; I shall pay my respects to him hereafter. 
 
 6. The circumstantial evidence showing a conspiracy. 
 
 I will now proceed, in pursuance of the plan I had prescribed, 
 to show the existence of the conspiracy by the circumstantial evi- 
 dence, which is, if possible, more irrefragable than the direct testi- 
 mony, but yet most beautifully illustrates and confirms it. I will 
 exhibit to you a chain of facts, linked together by a natural and 
 necessary connection, which I defy even the strong arm of the op- 
 posing counsel to break. I will weave a cable upon whose unyield- 
 ing strength the defense may safely rely to ride out the storm of 
 this furious prosecution. 
 
 Mr. Redding went to the Gait House after the affair at his shop, 
 for the purpose, as he avows, of obtaining the names of the Missis- 
 sippians, that he might procure process against them from the civil 
 authorities. On his way, as he confesses, he armed himself with a 
 deadly weapon, which, however, I am bound in justice to say, he 
 never had the courage to use. A number of individuals accom- 
 panied and followed him, whose manner and strange appearance 
 excited universal attention, 6ven in the bar-room of the most fre- 
 quented hotel in the western country. Their strange faces and 
 strange action excited general aipprehension. Nearly every witness 
 to the unfortunate catastrophe has deposed that he was struck with 
 
102 SPEECH OF SEAEGENT S. PREHTISS 
 
 the "strange faces" congregated in the bar-room. The learned 
 counsel on the other side has attempted to prove in the examina- 
 tion, and will, no doubt, insist in the argument, that that room is 
 daily crowded with strangers from every part of the country; that 
 the excellence of the fare and the urbanity of its proprietors invite 
 to the Gait House a large portion of the traveling public; and that, 
 consequently, it is nowise remarkable that strange faces should be 
 observed in the bar-room^ Though I admit the gentleman's prem- 
 ises, I deny his conclusion. That strangers should frequent the 
 Gait House is not wonderful; they do it every day; and for that 
 very reason strange faces, under ordinary circumstances, arouse 
 neither remark nor attention. That the " strange faces " of Mr. 
 Redding's friends should have excited remark and scrutiny, not 
 only from the inmates of the house, but from strangers themselves, 
 is truly wonderful, and can be accounted for only by admitting that 
 there was something very peculiar in their conduct and appearance. 
 
 They went there prepared for preconcerted action. Having a 
 common object, and a well arranged plan, a glance, or a motion, 
 sufficed to convey in/telligence from one to the other. Tell-tale 
 consciences spoke from each countenance. Their looks, unlike the 
 mystic sign of the mysterious brotherhood, gave up to the observer 
 the very secret they wished thereby to conceal. There is a strange 
 and subtle influence, a kind of mental sense, by which we acquire 
 intimation of men's intentions, even before they have ripened into 
 word or action. It seems, on such occasions, as if information was 
 conveyed to the mind by a sort of natural animal-magnetism, with- 
 out the intervention of the senses. 
 
 Thus, in this case, all the bystanders were impressed at once 
 with the conviction that violence was intended by the strange men 
 who had attracted their attention. These men, it is proven, were 
 the friends and intimate companions of Redding. Most of them, 
 though living in the city of Louisville, were not in the habit of going 
 to the Gait House, and yet, by singular coincidence, had all assem- 
 bled there on this occasion. 
 
 They were remarkably stout men, constituting the very elite of 
 the thews and muscle of Louisville, and many of them noted for 
 their prowess in the vulgar broils of the city. Why had they thus 
 congregated on this occasion ? Why their strange and suspicious 
 demeanor ? I will show you why. It will not be necessary to 
 await the actual fight to become fully conversant with their pur- 
 pose. It found vent in various shapes, but chiefly bubbled out in 
 
IN DEFENSE OP EDWARD C. WILKINSON. 103 
 
 the unguarded remarks and' almost involuntary expressions of the 
 more garrulous of the party. 
 
 I shall be compelled, even at the risk of being tedious, to 
 glance at the evidence of a number of the witnesses in showing 
 you the circumstances at the Gait House, which conclusively indi- 
 cate the existence of the conspiracy. 
 
 Mr. Everett, one of the proprietors of the Gait House, says he 
 was admonished by his bar-keeper that a difficulty was about to 
 arise, and he had better persuade Judge Wilkinson out of the bar- 
 room. Accordingly, he went in and took the Judge away, and gives, 
 as a reason, that he was alarmed at the strange faces in the bar- 
 room, and apprehended difficulty; alarmed, not because the faces 
 were those v>i strangers, but because of something in their appear- 
 ance which indicated concert and threatened violence. 
 
 Mr. Trabue was waiting in the room for supper, and says he 
 heard some one remark, " if the Mississippians had not gone up- 
 stairs, they would have been badly treated;" in connection with 
 which remark Redding was pointed out to him. This, it seems, 
 was after the Judge had retired at the solicitation of Mr. Everett. 
 Now, who were to have treated the Mississippians badly, except 
 Mr. Redding and his friends ? Who else had any pretense for so 
 doing ? ' Can you doubt for a moment that the remark had refer- 
 ence to Mr. Redding's party ? It was probably made by one of 
 them; but whether by one of them or a stranger, it equally indi- 
 cated their violent determination. Mr. Trabue also proves, that 
 after Judge Wilkinson retired Mr. Redding also retired; and when 
 the Judge returned into the bar-room Redding presently entered, 
 followed, to use the language of Mr. Trabue, " by a right smart 
 crowd " of his friends. Now, why did Redding thus go out and 
 return with his gang at his heels ? Why were his movements thus 
 regulated by the motions of the Judge? Wherefore was it that 
 every one expected a difficulty ? 
 
 Mr. Redding, according to his own story, went to the Gait 
 House simply for the purpose of obtaining the names of the gentle- 
 men who had insulted him. 
 
 He had accomplished his ostensible object. He had obtained 
 the names, and more than that, he had gratified his base appetite 
 by abusing one of the gentlemen in the most indecent and disgust- 
 ing manner. No rowdy who ever visited his coffee-house could 
 have excelled him in this, to the vulgar mind, sweet mode of venge- 
 ance. He had even driven the Judge from the room by the over- 
 
104 SPEECH OF SEARGENT S. PRENTISS 
 
 whelming torrent of his billingsgate epithets. To use an expres- 
 sion suited to his comprehension and feelings, he remained "cock 
 of the walk." Yet he was not satisfied. He retired and watched - 
 the return of the Judge, and then, emboldened by his previous im- 
 punity, followed with his cut-throat band to complete the work of 
 vengeance. 
 
 But to proceed with the circumstantial evidence. Mr. Mont- 
 gomery states that he was with Mr. Trabue at the Gait House when 
 Redding came in after the names, and also when he came back just 
 before the conflict; heard him use very rough language, and also 
 heard Halbert remark that there would be " rough work with the 
 Mississippians." Now this fully corroborates the testimony of Mr. 
 Trabue on the same point, who heard the remark, but did not rec- 
 ollect who made it. This Marshall Halbert is the man who 
 boasted, after the affair was over, that he had knocked down one of 
 the Mississippians with a chair, while his back was towards him, 
 and recounted many other feats of daring to the astonishment of 
 the listeners. ' 
 
 I should judge him to be of the blood of honest Jack Falstaflf, 
 whose killing, as everybody knows, was always by word of mouth, 
 and whose deeds of desperate valor were so unfortunate as to find 
 neither historian nor believer, except himself. At all events Hal- 
 bert, according to his own confession, was one of the conspirators, 
 and, I have no doubt, performed his part in the affray as well as 
 he knew how, and with much greater humanity than he pretends. 
 In addition to the above remark of Halbert's, Mr. Montgomery 
 states that he heard several persons say, at a time when the defend- 
 ants were not in the room, that they would beat the Mississippians 
 well. 
 
 General Chambers, who lives opposite the Gait House, and is 
 in the daily habit of visiting it, says he went into the bar-room just 
 before the affray, that he observed persons whom he was not in the 
 habit of seeing, there, and that, from their appearance and de- 
 meanor, his suspicions were immediately aroused. 
 
 I attach great weight to the testimony of General Chambers. 
 His character for intelligence and observation needs no comment 
 from me, and the fact that his sus'picions were aroused must con- 
 vince every one that cause for alarm existed. 
 
 The next testimony to which I shall refer, is that of Mr. Oliver. 
 He says that he was acquainted with Mr. Meeks, and was taking a 
 social glass with him on the evening of the affray, when Meeks 
 
IS DEFENSE OF ED\rARD C. WILKINSON. 105 
 
 started off, saying he must go to the Gait House (which was on the 
 opposite side of the street), that he was bound to have a fight that 
 night, and, "by G — d, he would have one." You will recollect 
 that Meeks was one of the persons who collected around Redding 
 immediately after the affair at the shop; and seconded Johnson's 
 proposition to get Bill Holmes and " give them h — 1," by saying, 
 "they would go anyhow, and have a spree." Can you doubt, for a 
 moment, that the observation made by this unfortunate man to Mr. 
 Oliver, as just recited, had relation to the previous arrangement 
 with Johnson and others, at Redding's shop ? The remark of 
 Meeks, seems to me, taken in connection with his previous and sub- 
 sequent conduct, is almost conclusive of itself as to the existence of 
 a conspiracy. I had almost forgotten to observe Mr. Oliver's state- 
 ment that Meeks, before he started, tied a knot in the small end of 
 a cowhide which he carried, manifestly to prevent it from slipping 
 out of his hand in the conflict which he so eagerly courted. His 
 knife, by a sort of pious fraud, had been taken from him by Mr. 
 Oliver, otherwise the result might have been very different. The 
 prudent caution of Mr. Oliver in disarming him of his weapon 
 proves how strong must have been the indications of his violent dis- 
 position. 
 
 Mr. Reaugh says, he was at the Gait House on the evening of 
 the affray, and saw Redding in conversation with Rothwell and 
 Halbert; he also saw Holmes and Johnson. Something in the de- 
 meanor of the party induced him to ask Johnson what was the 
 matter. Johnson replied by relating the affair of the shop. Upon 
 which Reaugh observed, " if the Mississippians fall into the hands 
 of these men, they will fare rather rough." "Yes," replied the 
 worthy butcher, " they would skin them quicker than I could skin 
 a sheep." Mr. Reaugh states that he made the remark to Johnson, 
 because of the remarkable size and strength of the men to whom he 
 alluded, the strange manner in which they had assembled, and the 
 fact that he knew them to be friends of Redding, and that Redding 
 had been in a quarrel with the Mississippians. 
 
 Mr. Miller states, that being a member of the grand jury, and 
 having heard of the affray at Redding's, he went into a tin-shop to 
 inquire about the matter, when Mr. Halbert came in and boasted 
 much of what he intended to do. Witness then went to the Gait 
 House for supper, when he heard Redding abusing Judge Wilkin. 
 son, and challenging him for a fight. Witness advised Halbert to 
 take Redding away, observing that he, witness, was on the grand 
 
106 SPEECH OF SEARGENT S. PRENTISS 
 
 jury, had the names, and would have all the matter attended to. 
 Some one, he thinks Johnson, then remarked, that " if he didn't 
 leave the room, he'd see the finest sort of beefsteaks served up." 
 Presently he heard the exclamation, near the counter, " there they 
 are, all three of them! " and the crowd immediately closed in upon 
 the persons so indicated. 
 
 Mr. Waggry, also heard the remark about the " steaks," and 
 then heard some one exclaim, " We'll have a h — 1 of a fight here 
 just now." He also heard Mr. Miller advise Halbert to take Red-^ 
 ding away. 
 
 Mr. Brown swears that he heard Mr. Miller tell Mr. Redding 
 he was not taking the proper course; he should have the matter 
 before the grand jury; whereupon some one said, " Hush you, Bill 
 Miller, if it comes to handy-cuffs the boys will settle it." The wit- 
 ness then became so apprehensive of a fight that he left the room. 
 
 Now, though Miller is not positive as to the person who made 
 use of the expression about " serving up beefsteaks," yet no one, 
 I take it, will hesitate as to his identity. Who but Johnson could 
 speak in such rich and technical language? Who but Johnson 
 could boast of " having as much manhood as was ever wrapped in 
 the same extent of hide ? " While, at the same time, he had so ar- 
 ranged it that the "hides" of the Mississippians "would not hold 
 shucks.'' Who but this unmitigated savage would talk of " skin- 
 ning " a gentleman " quicker than I could skin a sheep ? " Why, he 
 rubs his hands, licks his lips, and -talks of serving up Christians in 
 the shape of "steaks," with as little compunction as you or I would 
 exhibit in eating a radish. The cannibal.' He should go at once 
 to New Zealaiad and open his shambles there. His character 
 would suit that country; and I doubt not, he would obtain great 
 custom and find ample demand for his human " steaks." Why, gen- 
 tlemen, I should be afraid to buy meat out of his stall. He talks as 
 if he supplied it by burking. I should expect some day to swallow 
 an unbaptized infant in the disguise of a reeking pig, or to eat a 
 fellow-citizen, incog, in a "steak." Such a fellow should be looked 
 to. But, again, what meaflt the expression deposed to by Reaugh, 
 " There they are, all three of them, now ? " It was the signal for 
 the conspirators to close in. It clearly proves a preconcerted plan; 
 no names were mentioned, and without a previous understanding 
 the expression would have been nonsense. Most of the party did 
 not know the Mississippians; hence it was necessary that some one 
 should give intimation when they entered the room. The expres- 
 
IN DEFENSE OF EDWAED C. WILKINSON. 107 
 
 slon, "There they are," was the signal for the onset.; What meant 
 the expression sworn to by Waggry, " We'll have a h — 1 of a fight 
 just now ? " 
 
 What conclusion do you draw from the response made to Miller, 
 when he advised Redding to bring the matter before the grand 
 jury: " Hush you, Billy Miller, and if it comes to handy-cuffs the 
 boys will settle it ? " If what comes to handy-cuffs ? And who 
 were the boys ? Why, if the quarrel with the Mississippians comes 
 to handy-cuffs, and as for the " boys," there was not a man present 
 who did not know who they were. 
 
 Redding was one of the "boys," and a very bad boy, too. Billy 
 Holmes was another; Marshall Halbert was a "perfect broth of a 
 boy," and, if his own story is entitled to credit, he must have been 
 twins, for he acted the part of at least two in the fight. Bill John- 
 son was as much of a boy as ever was " wrapped up in the same 
 amount of hide," though his extraordinary modesty has induced 
 him to deny the soft impeachment. The unfortunate Meeks and 
 Rothwell were two of the " boys;'' and last, though not least, comes 
 Harry Oldham, the " Jack Homer " of the party. He " sat in the 
 corner '' till the fight was nearly over, when he " put in his thumb " 
 and "pulled out," not "a plum," but a pistol; and ever since has 
 been exclaiming: " What a brave ' boy ' am I." 
 
 Yes, gentlemen of the jury, these were the " boys " whose strange 
 appearance aroused the suspicions and excited the apprehensions 
 of all. 
 
 Permit me, now, to call your attention to the testimony of Mr. 
 Donahue. It is clear and conclusive. He swears, that on the 
 evening of the affray, and just before it occurred, being in the bar- 
 room of the Gait House, he heard Rothwell ask Redding " if they 
 were there ? " — upon being answered in the negative, he exclaimed, 
 " Come, let us go up-stairs and bring them down, and give them 
 h — ^1." Rothwell was the brother-in-law of Redding, had been in- 
 formed by Redding of his grievances, and had accompanied him to 
 the Gait House. Whom did he mean when he asked if " they were 
 there?" The Mississippians, undoubtedly. Whom did he pro- 
 pose to drag from their rooms, and chastise ? Of course the same 
 persons for whom he had just inquired. Rothwell asked if " they 
 were there ? " When the defendants came in, some one cried out, 
 "There they are, all three of them! " These two expressions mani- 
 festly emanated from persons who understood each other, and were 
 engaged in pursuit of a common object. 
 
108 SPEECH OF SEARGENT S. PRENTISS 
 
 If these remarks had not relation to some previously concerted 
 plan of action, they would be unmeaning and foolish; but granting 
 the existence of the conspiracy I have supposed, and every word is 
 pregnant with meaning, full of force, weight and effect. 
 
 Mr. Rally deposes to the caution given by Miller to Redding; 
 also to the fact that Redding left the room when Judge Wilkinson 
 had retired, and came back again immediately after the Judge had 
 returned. He also saw Oldham after the affair was over, putting a 
 pistol into his pocket, and wiping, with his handkerchief, the blood 
 from a double-edged dirk. 
 
 Mr. Pearson says he went to the Gait House just before supper, 
 on the evening of the affray. As he stood behind the bar, one 
 Capt. Rogers observed that there would be a fight. Presently, wit- 
 ness met Marshall Halbert, and told him he ought to stop it, mean- 
 ing the fight. Halbert said, "no, let it go on." This was before 
 Redding had commenced abusing Judge Wilkinson, and proves 
 that the idea of a fight did not originate from that circumstance. 
 The Judge came, and Redding abused him. He went out, and 
 Redding followed. He returned, and presently so did Redding 
 with a crowd at his heels. Seeing the crowd, and apprehending vio- 
 lence, Mr. Pearson was in the act of leading the Judge out of the 
 room, when the crowd rushed upon Murdaugh; the affray com- 
 menced, and the Judge stopped, refusing to leave the room until 
 he saw his friends out of the difficulty. Need I ask you whether 
 he was right in so doing ? 
 
 Mr. Banks says he saw Redding just after the first affray, and 
 asked him if he was hurt. He says, no, but that " he would have 
 satisfaction," and that "he could whip them, all three." 
 
 Dr. Graham says, that after Judge Wilkinson had left the bar- 
 room the first time, he heard some one observe, " the d — d coward 
 has run." 
 
 Does not Mr. Oldham's testimony prove the conspiracy ? I do 
 not mean directly, but circumstantially. He says he was not pres- 
 ent at the fight in the bar-room, and knew nothing of the affair, 
 nor of the defendants. He says he was standing in the passage 
 when the door opened, and he received a cut from Dr. Wilkinson, 
 whom he knocked down for his pains. 
 
 After fighting in the crowd awhile, he saw Murdaugh retreating 
 up-stairs, and heard him asking for a pistol, whereupon he was re- 
 minded of his own pistol, which he immediately drew and dis- 
 charged at the young gentleman, giving him, not the weapon, bat its 
 
m DEFENSE OF EDWARD C. WILKINSON. • 109 
 
 contents, to wit, a bullet split in three pieces. This worthy gentle- 
 man, who is certainly 
 
 " as mild a mannered man 
 As ever scuttled ship, or cut a throat," 
 
 swears positively that he did not know either of the defendants; 
 that he belonged to neither party in the affray; and that he fought, 
 to use his own descriptive and unrivaled phraseology, entirely 
 " upon his own hook." 
 
 7. Arraignment "of Henry Oldham, a witness for the 
 commonwealth. 
 
 Surely, Mr. Henry Oldham must be the knight errant of the age; 
 the Don Quixote of the West; the paragon of modern chivalry. 
 He fights, not from base desire of vengeance, nor from sordid love 
 of gold; not even from patriotism or friendship; but from a higher 
 and a loftier sentiment: from his pure, ardent, disinterested, unso- 
 phisticated love of glorious strife. Like Job's war-horse, he 
 " smelleth the battle afar off," and to the sound of the trumpet he 
 saith, ha! ha! To him 
 
 " There is something of pride in the perilous hour, 
 Whate'er be the shape in which death may lower, 
 For fame is there, to tell who bleeds, 
 And honor's eye on daring deeds. '' 
 
 You have heard, gentlemen, of the bright, warm isles which gem 
 the oriental seas, and are kissed by the fiery sun of the tropics; 
 where the clove, the cinnamon, and the nutmeg grow; where the 
 torrid atmosphere is oppressed with a delicious, but fierce and in- 
 to.xicating influence. There the spirit of man partakes of the same 
 spicy quaHties which distinguish the productions of the soil. Even 
 as the rinds of their fruits split open with nature's rich excess, so 
 do the human passions burst forth with an overwhelming violence 
 and prodigality unknown, till now, in our cold, ungentle clime. 
 There, in the islands of Java, Sumatra, the Malaccas, and others of 
 the same latitude, cases similar to that of Mr. Henry Oldham are 
 of frequent occurrence. In those countries it is called " running a 
 muck." An individual becomes so full of fight that he. can no 
 longer contain it; accordingly, he arms himself with a species of 
 dagger, very similar to that from which Mr. Oldham wiped the 
 blood with his pocket handkerchief, and rushing into the public 
 
110 SPEECH OF SEAEGEKT S. PRENTISS 
 
 Streets, wounds and slays indiscriminately among the crowd. It is 
 true that this gallant exploit always results in the death of the per- 
 son performing it, the people of the country entertaining a foolish 
 notion that it is too dangerous and expensive a mode of cultivating 
 national bravery. But, in the present instance, I trust this rule 
 will be relaxed. Mr. Oldham is the only specimen we possess of this 
 peculiar habit of the spice islands, and he should be preserved as a 
 curiosity. 
 
 But, alas! the age of chivalry has gone by; and, in the perform- 
 ance of my duty, I fear I shall have to exhibit some little defects 
 in the character of Mr. Oldham,' calculated in this censorious day 
 to detract from his general merits. It is with great pain, I feel 
 constrained to say (for he is a sort of favorite of mine), that telling 
 the truth is not one of his knightly accomplishments, and that his 
 heroic conduct in the affray at the Gait House was nothing more 
 nor less, according to his own story, than a downright cowardly 
 attempt at assassination. 
 
 First, as to his veracity. He says that he was cut in the pas- 
 sage by Doctor Wilkinson, to whose identity he swears positively; 
 yet it is proven, by half a dozen unimpeachable witnesses, that the 
 Doctor was at this time hors de combat, beaten to a mummy — al- 
 most lifeless, and perfectly limber — while his knife had fallen from 
 his relaxed and nerveless grasp upon the floor of the bar-room, 
 where it was afterwards picked up. 
 
 Yet Oldham swears, manfully, that it was the Doctor who cut 
 him; though when asked if his face was not bloody, he replied that 
 the passage was too dark to enable him to distinguish faces. If he 
 could not see whether the face of the person who cut him was 
 bruised or bloody, how dares he swear that it was Doctor Wilkin- 
 son, whom he admits he had never seen before ? 
 
 Yet, though his vision was so dull in regard to this matter, it 
 was almost supernaturally keen upon another. He swears that he 
 was cut by a dirk-knife with a " white handle." Now, in this dusky 
 passage, where he could not see the assailant's face, how could he 
 distinguish so accurately the character of the weapon, and, more 
 especially, of the handle ? The handle of such a knife as either of 
 those exhibited, would be entirely concealed in the grasp of the 
 holder. But Mr. Oldham could see through the hand, and swear 
 to the color of the handle, even when he could not distinguish the 
 color of the assailant's face. 
 
 The prosecution seems to be afflicted with a monomania on the ■ 
 
IN DEFENSE OF EDWARD C. 'WILKINSON. Ill 
 
 « 
 subject of white-handled knives. The white handles caused them 
 greater terror and excite more of their observation than the blades. 
 One would almost be led to suppose, from the evidence, that the 
 defendants held by the blades and fought with the handles. These 
 white handles flash before their eyes like the bright inscription upon 
 the dim steel of a Turkish cimeter. I hope, though with many mis- 
 givings, that none of them will ever die of a " white handle." 
 
 But, to return to my subject, why, in the name of all that is 
 human or humane, did Oldham shoot at Murdaugh, whom, he 
 acknowledges, he did not know; of whose connection with Doctor 
 Wilkinson he was unacquainted; and who had not attempted to do 
 him the slightest injury ? According to his own account of the 
 matter, he acted the part of a base and cowardly assassin. If he . 
 tells the truth, he is an assassinating villain; if he does not, he is a 
 perjured villain. I leave him choice of these two horns of the di- 
 lemma, though I doubt not the latter is the one upon which he is 
 destined to hang. I cannot believe in the existence of such a 
 monster as he would make himself out to be, and have offered his 
 conduct to you as evidence of the existence of a conspiracy, and of 
 his participation in it. It is better that he should have the excuse 
 of having fought in Redding's quarrel, than no excuse at all. 
 
 Gentlemen of the Jury — I have now performed that portion of 
 my task which embraced the circumstantial evidence. Out of the 
 mouths of fifteen different witnesses, most of them gentlemen of 
 high character and undoubted veracity, I have exhibited to you an 
 almost countless variety of circumstances, the occurrence of which, 
 or of any great portion of them, is absolutely incompatible with any 
 other hypothesis than that of the existence of the conspiracy, which 
 I proposed at the outset to prove. Upon that hypothesis, all these 
 circumstances are easily explicable, and in perfect accordance with 
 the ordinary principles of human action. 
 
 I have combined the scattered strands of evidence; I have fin- 
 ished the cable which I promised; and now challenge the opposing 
 counsel to try their strength upon it. They may pick it into 
 oakiim; but I defy them to break it. 
 
 8. The defendants, from their situation, not likely to 
 
 provoke a quarrel. character of the 
 
 participants compared. 
 
 There is one other argument in favor of the view that I have 
 taken of the origin of this unfortunate affray, which may be prop- 
 
112 SPEECH OF SEARGENT S. PRENTISS 
 
 erly introduced at this time, and with which I shall close this 
 branch of the subject. 
 
 It arises out of the respective characters and positions in life of 
 the two parties, and is, in my opinion, entitled to great weight. 
 Who, in view of his character and situation, was most likely to have 
 sought and provoked the unfortunate conflict — Judge Wilkinson or 
 Mr. Redding ? The conduct of the Judge, under the opprobrious 
 epithets heaped upon him by Redding, in the bar-room, sufficiently 
 indicates that, though he had previously given way to sudden pas- 
 sion, he was now cool, collected and forbearing. His mind had 
 recovered its balance, and he behaved on this occasion, as well as 
 subsequently, with philosophical calmness. I doubt, gentlemen, 
 whether any of you would have permitted Mr. Redding to indulge, 
 with impunity, in such unmeasured abuse. But the situation of the 
 Judge was peculiar, and every inducement which could operate 
 upon a gentleman warned him against participation in broils and 
 battles. With buoyant feelings and pulse-quickening anticipations, 
 he had come more than a thousand miles, upon a pilgrimage to the 
 shrine of beauty, and not of blood; upon an errand of love, and not 
 of strife. He came to transplant one of Kentucky's fairest flowers 
 to the warm gardens of the sunny South. The marriage feast was 
 spread; the bridal wreath was woven; and many bounding hearts 
 and sparkling eyes chided the lagging hours. The thoughts of the 
 bridegroom dwelt not upon the ignoble controversy, which, for an 
 unguarded moment, had occupied his attention, but upon the bright 
 and glorious future, whose rapturous visions were about to become 
 enchanting realities. 
 
 Under such circumstances Judge Wilkinson could not have de- 
 sired the conflict. Had the fires of hell blazed in his bosom, they 
 must have been quenched for a while. The very fiend of discord 
 would have been ashamed, fresh from a voluntary, vulgar, bloody 
 quarrel, and reeking with its unsightly memorials, to have sought 
 the gay wedding banquet. 
 
 You cannot believe he coveted or courted the unfortunate affray, 
 without, at the same time, considering him destitute, not only of all 
 sentiment of delicacy and refinement, but of every characteristic of 
 a man. Does his previous character warrant such a conclusion ? He 
 has, as has been shown to you in evidence, ever maintained the 
 character of an honorable and upright gentleman. I see, by the 
 sneer upon the lip of the adverse counsel, that the term grates 
 harshly upon his sensibilities. But, I repeat it, Judge Wilkinson 
 
IN DEFENSE OF EDWARD C. "WILKINSON. 113 
 
 has ever maintained the character of a gentleman; a character di- 
 rectly at war with the supposition that his conduct on this occasion 
 resulted otherwise than from necessity. I mean, by a "gentleman," 
 not the broadcloth, but the man; one who is above doing a mean, 
 a cowardly or a dishonest action, whatever may be the temptation; 
 one who forms his own standard of right and will not swerve from 
 it; who regards the opinions of the world much, but his own self- 
 respect more. Such men are confined to no particular class of so- 
 ciety, though, I fear, they do not abound in any. I will save the 
 learned counsel the trouble of translating his sneer into language, 
 by admitting that they are to be found as readily among mechanics 
 as elsewhere. 
 
 Such a man I believe Judge Wilkinson to be. Such has ever 
 been his character, and he is entitled to the benefit of it on this oc- 
 casion. It ought to have, and I know will have, very great weight 
 with )'ou. Good character always has been, and ever should be, a 
 wall of strength around its possessor, a sevenfold shield to him 
 who bears it. 
 
 This is one of the advantages which virtue has over vice — honor- 
 able over dishonorable conduct — an advantage which it is the very 
 highest interest of society to cherish and enforce. In proportion 
 to the excellence of a man's character is, and ever ought to be, the 
 violence of the presumption that he has been guilty of crime. I 
 appeal, then, to Judge Wilkinson's character, to prove that he could 
 not have desired this unfortunate controversy; that it is impossible 
 he should have been guilty, under the circumstances which then 
 surrounded him, of the crime of willful and malicious 'murder. 
 What, on the other hand, was the condition of the conspirators ? 
 Redding had been going about from street to street, like Peter the 
 Hermit, preaching up a crusade against the Mississippians. John- 
 son, like Tecumseh — but no, I will not assimilate him to that noble 
 warrior — like an Indian runner, was threading each path in the 
 city, inciting his tribe to dig up the tomahawk and drive it, not into 
 the scalps, but the " steaks " of the foe. But I will not pursue this 
 point at greater length. 
 
 9. The defendants believed a conspiracy existed, whether 
 IN fact it did or did not. 
 
 I proposed, after arguing the position, that there actually was a 
 conspiracy to chastise the defendants, and inflict upon them great 
 bodily harm, to show, in the next place, that the defendants had 
 8 
 
114 SPEECH OF SEARGENT S. PRENTISS 
 
 good reason to believe such a conspiracy existed, whether in point 
 of fact it did or not. Most of the arguments bearing upon this 
 proposition have been already advanced in support of the other. 
 These I will not repeat. There are one or two others worthy of notice. 
 What could Judge Wilkinson have supposed from the conduct of 
 Redding, but that he sought and provoked a difiSculty ? What else 
 could he conclude from the unmitigated abuse which was heaped 
 upon him from the opening of the very sluices of vulgarity ? That 
 the Judge apprehended violence is evident from the warning which 
 he gave. He told Redding that he might say what he pleased, but 
 not to lay his hands upon him; if he did, he would kill him. He 
 could not be supposed to know that Redding came only for the 
 names. When Meeks stepped up to Murdaugh and struck him 
 with his clubbed whip, while the crowd closed in around, what 
 could Murdaugh reasonably expect but violence and bodily harm, 
 resulting from preconcerted arrangement ? Without going at length 
 into an argument on this point, I take it for granted, no one will 
 deny that the defendants had ample grounds for apprehending the 
 existence, on the part of Mr. Redding and his friends, of a con- 
 spiracy to commit upon them personal violence. 
 
 Let us now look a moment at the conduct of the defendants, at 
 the Gait House, and see whether it transcended the bounds of right, 
 reason or prudence. When Murdaugh and the Doctor entered the 
 room, the exclamation was made by some one loud enough for all 
 to hear: "There they are, all three of them, now;'' upon which, 
 according to nearly all the witnesses, Mr. Redding made the remark 
 to Murdaugh: " You are the man that drew the bowie-knife on me." 
 You will recollect. Redding had just crossed Judge Wilkinson's 
 path, and placed himself with his back against the counter, mani- 
 festly with the object of bringing on the fight. Murdaugh, indig- 
 nant at being publicly charged with having drawn a bowie-knife 
 upon an unarmed man, replied, " that any one who said he had 
 drawn a bowie-knife told a d — d lie;'-' whereupon instantly steps up 
 Meeks, with his knotted cowhide, exclaiming: " You are the d — d 
 little rascal that did it " — at the same time inflicting upon him a 
 very severe blow. By-the-by, this assertion of Meeks proves that 
 he had been at Reddihg's after the first affray, and heard a full ac- 
 count of it. It is urged against the Judge, that when Mr. Everett 
 led him to his room, he asked for pistols. I think an argument in 
 his favor may be drawn from this circumstance. His requisition 
 for arms proves that he considered himself and his friends in great 
 
IN DEFENSE OF EDWARD C. WILKINSON. 115 
 
 personal danger. He manifestly required them not for offense, 
 but for defense., Had he intended an attack, he would not have 
 gone down to the bar-room without first obtaining the weapons he 
 desired. Men do not voluntarily attempt the lives of others with- 
 out being well prepared. It is evident that Judge Wilkinson and 
 his friends thought only of the protection of their own persons, for . 
 they went down-stairs provided only with the ordinary weapons 
 which they were accustomed to bear. Murdaugh and the Doctor 
 had a pocket-knife each; the same they had previously carried. 
 They had added nothing to their armor, either offensive or de- 
 fensive. The Judge, apprehensive of difficulty, had taken his 
 bowie-knife, which, probably, he had not previously worn. When, 
 at the solicitation of Mr. Everett, he retired, he doubtless informed 
 his friends of what had just transpired in the bar-room, and ex- 
 pressed his fears of violence. This accounts for the readiness with 
 which Murdaugh met the assault of the two powerful men who 
 simultaneously rushed upon him. 
 
 lo. The part taken in the affray by the respective 
 
 DEFENDANTS. 
 
 The evidence is conclusive that Meeks commenced the attack 
 upon Murdaugh, by two rapid, violent blows of a cowhide, accom- 
 panied by a heavy blow from a stick or cane in the hands of Roth- 
 well. At the same time he seized the hand of Murdaugh, in which, 
 prepared for defense, was an open knife; but Murdaugh, with cool- 
 ness and celerity, changed the weapon to his left hand, and used it 
 according to the dictates both of law and common sense. The 
 very first blow had driven him to the wall. The crowd closed 
 around him; he could not retreat, and was justified, according to 
 the strictest and most technical principles of even English juris- 
 prudence, to take the life of the assailant. No man but a fool or 
 a coward could have acted otherwise than he did. Was he not, 
 according to the rule read by the District Attorney, in imminent 
 danger of his life or of great bodily harm? Let the unhealed 
 wound upon his head resf)ond. Let his hat, which has been exhib- 
 ited to you, answer the question. Upon this you may perceive two 
 incisions, which must have been caused by a sharp, cutting instru- 
 ment. No obtuse weapon was capable of the effect. The blows 
 were manifestly sufficient to have caused death, but for the inter- 
 vention of the elastic material upon which their principal force 
 was expended. The part, then, taken by Murdaugh in the affray, 
 
116 ^SPEECH OF SEAEGENT 8. PRENTISS 
 
 was clearly defensive and justifiable. It is not pretended that 
 Doctor Wilkinson took any other part in the aifray than attempting 
 to escape from its violence, unless you notice the evidence of Old- 
 ham, that he cut him as he fled from the room. He was beaten, 
 first by Rothwell, then by Holmes, and if you take their own state- 
 ments, by those two worthies, Halbert and Oldham. He was' 
 crushed almost to atoms. He had not a chance even for self-de- 
 fense. Rothwell had left Murdaugh, after striking him one blow, ' 
 in charge of Meeks, and fell upon the Doctor. While beating the 
 Doctor, he was stabbed by the Judge, near the dining-room door. 
 The Doctor fled round the room, still followed by Rothwell, who 
 was again struck by the Judge when upon the opposite side. The 
 two blows paralyzed his powers; when Holmes stepped in and so 
 completely prostrated the Doctor that he was compelled to hold 
 him up with one hand while he beat him with the other. 
 
 Neither offensive word nor action, upon this occasion, on the 
 part of Dr. Wilkinson, is proven or pretended. It is perfectly clear 
 that he was beaten by Redding's friends, simply because he was of 
 the Mississippi party. I consider it highly disgraceful to the Grand 
 Jury who found the bill, that he was included in it. 
 
 In reference to the part taken by Judge Wilkinson : It is proven 
 beyond contradiction, by Mr. Pearson, a gentleman of undoubted 
 veracity, that the Judge, at his solicitation, was in the act of leav- 
 ing the room as the affray commenced; when, witnessing the attack 
 upon Murdaugh, he stopped, refusing to leave until he saw the 
 result of the controversy in which his friend was engaged. Stand- 
 ing in the corner of the room, he did not at first take part in the 
 conflict, perceiving, doubtless, that Murdaugh was making good his 
 own defense. Presently, however, he cast his eyes around and saw 
 his brother trodden under foot, entirely powerless, and apparently 
 either dead or in imminent danger from the fierce blows of Roth- 
 well, who, as you have heard, was a man of tremendous physical 
 power, and armed with a bludgeon, some say a sword cane. Then 
 it was he thought it necessary to act; and advancing through the 
 crowd to the spot, he wounded the assailant who was crushing out 
 his brother's life. Gen. Chambers swears positively that Rothwell 
 was beating, with a stick, and with great severity, some one, whom 
 the other witnesses identify as the Doctor, at the time he was 
 stabbed near the dining-room door. This produced a slight di- 
 version in the Doctor's favor, who availed himself of it by retreat- 
 ing, in a stooping posture, towards the passage door. Rothwell, 
 
m DEFENSE OF EDWARD C. WILKINSON. 117 
 
 however, pursued and beat him down, but was arrested in his vio- 
 lence by another blow from Judge Wilkinson, which, together with 
 the puncture in his throat, received, in all probability, from a chance 
 thrust of the sword cane in the hands of one of his own party, dis- 
 abled him and caused his death. About this time Holmes was 
 completing Rothwell's unfinished work, and the Doctor, hunted 
 entirely around the room, fell, utterly exhausted, at the feet of his 
 relentless pursuers. It is wonderful that he had strength enough to 
 escape with Murdaugh and the Judge. 
 
 Such, briefly, were the parts enacted by these defendants, re- 
 spectively, in this unfortunate affray, the result of which none regret 
 more than themselves. Considering the proof of the conspiracy, 
 and the knowledge, or even the reasonable apprehension on the 
 part of the defendants, of its existence, as affording them ample 
 justification for their participation in the matter, I have not thought 
 it necessary to go into a minute analysis of the evidence on this 
 branch of the subject, nor to attempt to reconcile those slight dis- 
 crepancies which will always occur in the testimony of the most 
 veracious witnesses, in giving an account of the transaction viewed 
 from different positions and at different periods of time. 
 
 II. The law of self-defense. — Circumstances which justify 
 
 THE TAKING OF LIFE. 
 
 The law of self-defense has always had and ought to have a 
 more liberal construction in this country than in England. Men 
 claim more of personal independence here ; of course they have 
 more to defend. They claim more freedom and license in their 
 actions towards each other, consequently there is greater reason for 
 apprehending personal attack from an enemy. In this country men 
 retain in their own hands a larger portion of their personal rights 
 than in any other; and one will be authorized to presume an inten- 
 tion to exercise and enforce them, upon grounds that, in other 
 countries, would not excite the slightest suspicion. It is the appre- 
 hension of impending harm, and not its actual existence, which 
 constitutes the justification for defensive action. If mine enemy 
 point at me an unloaded pistol or a wooden gun, in a manner cal- 
 culated to excite in my mind apprehensions of immediate, great 
 bodily harm, I am justifiable in taking his life, though it turn out 
 afterwards that I was in no actual danger. 
 
 So, on the other hand, if I take the life of another, without 
 
118 SPEECH OF SE ARGENT S. PRENTISS 
 
 being aware of any intended violence on his part, it will constitute 
 no excuse for me to prove that he intended an attack upon me. 
 
 The apprehension must be reasonable, and its reasonableness 
 may depend upon a variety of circumstances — of time, place and 
 manner, as well as of character. The same appearance of danger 
 would authorize greater apprehension, and of course readier de- 
 fensive action, at night than in the day-time. An attack upon one 
 in his own house would indicate greater violence, and excuse 
 stronger opposing action, than an attack in the street. 
 
 Indications of violence from an individual of known desperate 
 and dangerous character will justify defensive and preventive ac- 
 tion, which would be inexcusable towards a notorious coward. A 
 stranger may reasonably indulge from the appearance or threats of 
 a mob apprehension that would be unpardonable in a citizen sur- 
 rounded by his friends and neighbors. 
 
 Bearing these observations in mind, let us look at the situation 
 of the defendants. They were attacked at their hotel, which, for 
 the time being, was their house. They were strangers, and a fierce 
 mob had gathered around them, indicating, both by word and deed, 
 the most violent intentions. They were three small, weak men, 
 without friends — for even the proprietor of the house, who should 
 have protected them, had become alarmed, and left them to their 
 fate. Their enemies were, comparatively, giants-*— dangerous in 
 appearance and desperate in action. Was there not ample ground 
 for the most fearful apprehensions ? 
 
 12. The propositions advanced by the prosecution, an- 
 swered. — Illustrations of the law of 
 self-defense. 
 
 But the District Attorney says, they are not entitled to the 
 benefit of the law of self-defense, because they came down to sup- 
 per, and thus placed themselves voluntarily within reach of the 
 danger. According to his view of the case, they should have re- 
 mained in their chamber, in a state of siege, without the right to 
 sally forth even for provisions; while the enemy, cutting off their 
 supplies, would doubtless soon have starved them into a surrender. 
 But it seems there was a private entrance to the supper table, and 
 they should have skulked in through that. No one but a craven 
 coward, unworthy of the privileges of a man, would have followed 
 such a course. The ordinary entrance to . supper was through the 
 bar-room. They had a right to pass this way; no law forbade it. 
 
IN DEFENSE OF EDWARD C. WILKINSON. 119 
 
 Every principle of independence and self-respect prompted it. And 
 through that bar-room I would have gone, as they did, though the 
 floor had been fresh sown with the fabled dragon's teeth, and brist- 
 ling with its crop of armed men. 
 
 I care not whether the assailing party had deadly weapons or 
 not; though I will, by-and-by, show they had, and used them, too. 
 But the true question is, whether the defendants had not good 
 reason for believing them armed and every way prepared for a 
 desperate conflict. I have shown already that Dr. Wilkinson and 
 Murdaugh did not transcend the most technical principle laid down 
 by the commonwealth's attorney; not even that which requires a 
 man to run to the wall before he can be permitted to defend him- 
 self — a principle which, in practice, is exploded in England, and 
 never did obtain in this country at all. But, says the learned at- 
 torney, Judge Wilkinson interfered and took part before he was 
 himself attacked; he had no right to anticipate the attack upon 
 himself; he had no right to defend his friend; he had no right to 
 protect his brother's life. Now I differ from the worthy counsel on 
 all these points: I think he had a right to prevent, by anticipating 
 it,, violence upon his person; he had a right to defend his friend, 
 and it was his sacred duty to protect his brother's life. 
 
 Judge Wilkinson was the most obnoxious of the party; his 
 friends were already overpowered; he could not expect to escape; 
 and in a moment the whole force of the bandit gang would have 
 turned upon him. 
 
 The principles of self-defense, which pervade all animated na- 
 ture, and act towards life the same part that is performed by the 
 external mechanism of the eye towards the delicate sense of vision 
 — ^affording it, on the approach of danger, at the same time, warning 
 and protection — do not require that action shall be withheld till it 
 can be of no avail. When the rattlesnake gives warning of his fatal 
 purpose, the wary traveler waits not for the poisonous blow, but 
 plants upon his head his armed heel, and crushes out at once " his 
 venom and his strength." When the hunter hears the rustling in 
 the jungle, and beholds the large green eyes of the spotted tiger 
 glaring upon him, he waits not for the deadly spring, but sends at 
 once through the brain of his crouching enemy the swift and leaden 
 death. 
 
 If war was declared against your country by an insulting foe, 
 would you wait till your sleeping cities were wakened by the terrible 
 music of the bursting bomb ? till your green fields were trampled 
 
120 • SPEECH OF SEARGENT S. PRENTISS 
 
 by the hoofs of the invader, and made red with the blood of your 
 brethren ? No! you would send forth fleets and armies; you would 
 unloose upon the broad ocean your keen falcons; and the thunder 
 of your guns would arouse stern echoes along the hostile coast. 
 Yet this would be but national defense, and authorized by the same 
 great principle of self -protection, which applies no less to individu- 
 als than to nations. 
 
 13. Defendants' conduct eulogized. — They took life from 
 
 NECESSITY, not FROM MALICE. 
 
 But Judge Wilkinson had no right to interfere in defense of his 
 brother; so says the commonwealth's attorney. Go, gentlemen, 
 and ask your mothers and sisters whether that be law. I refer you 
 to no musty tomes, but to the living volumes of Nature. What! 
 A man not permitted to defend his brother against conspirators ? 
 against assassins, who are crushing out the very life of their bruised 
 and powerless victim ? Why, he who would shape his conduct by 
 such a principle does not . deserve to have a brother or a friend. 
 To fight for self is but the result of an honest instinct which we 
 have in common with the brutes. To defend those who are dear 
 to us is the highest exercise of the principle of self-defense. It 
 nourishes all the noblest social qualities, and constitutes the germ 
 of patriotism itself. 
 
 Why is the step of the Kentuckian free as that of the bounding 
 deer ? firm, manly and confident as that of the McGregor when his 
 foot was on the heather of his native hills and his eye on the peak 
 of Ben Lomond ? It is because he feels independent and proud; 
 independent in the knowledge of his rights, and proud in the gen- 
 erous consciousness of ability and courage to defend them, not 
 only in his own- person, but in the persons of those who are dear 
 to him. 
 
 It was not the blood that would desert a brother or a friend, 
 which swelled the hearts of your fathers in the " olden time," when 
 in defense of those they loved, they sought the red savage through 
 all the fastnesses of his native forest. It was not such blood that 
 was poured out, free as a gushing torrent, upon the dark banks of 
 the melancholy Raisin, when all Kentucky manned her warrior 
 sires. They were as bold and true as ever fought beneath a plume. 
 The Roncesvalles pass, when fell before the opposing lance the 
 harnessed chivalry of Spain, looked not upon a braver or a better 
 band. 
 
IN DEFENSE OF EDWARD C. WILKINSON. 121 
 
 Kentucky has no law which precludes a man from defending 
 himself, his brother, or his friend. Better for Judge Wilkinson had 
 he never been born than that he should have failed in his duty on 
 this occasion. Had he acted otherwise than he did, he would have 
 been ruined in his own estimation and blasted in the opinions of 
 the world. And young Murdaugh, too; he has a mother who is 
 looking even now from her window, anxiously watching for her 
 son's return; but better, both for her and him, that he should have 
 been borne a bloody corpse to her arms than that he should have 
 carried to her, unavenged, the degrading marks of the accursed 
 whip. 
 
 But there was danger, as well as degradation. Their lives were 
 in imminent hazard. Look at the cuts in Murdaugh's hat and upon 
 his head, the stab received by the Judge, and the wounds inflicted 
 upon the Doctor. Besides the overwhelming superiority in number 
 and strength, the conspirators had very greatly the advantage in 
 weapons. We have proven the exhibition and use by them of 
 knives, dirks, a sword cane, and a pistol, without counting the 
 bludgeons which, in the hands of such men, are weapons little less 
 deadly than the others. 
 
 Need I dwell longer upon this point ? Need I say that the de- 
 fendants are no murderers ? that they acted in self-defense, and 
 took life from necessity, not from malice ? 
 
 14. Scathing review of the character and conduct of the 
 
 PRINCIPAL witnesses FOR THE PROSECUTION. 
 
 But there is a murderer; and, strange to say, his name appears 
 upon the indictment, not as a criminal, but as a prosecutor. His 
 garments are wet with the blood of those upon whose deaths you 
 hold this solemn inquest. Yonder he sits, allaying for a moment 
 the hunger of that fierce vulture, conscience, by casting before it 
 the food of pretended regret, and false but apparent eagerness for 
 justice. He hopes to appease the manes of his slaughtered victims 
 — victims to his falsehood and treachery — by sacrificing upon their 
 graves a hecatomb of innocent men. By base misrepresentations 
 of the conduct of the defendants, he induced his imprudent friends 
 to attempt a vindication of his pretended wrongs by violence and 
 bloodshed. His clansmen gathered at his call, and followed him 
 for vengeance; but when the fight began, and the keen weapons 
 clashed in the sharp conflict — where was this wordy warrior ? Aye, 
 "Where was Roderick then?" No "blast upon his bugle horn" 
 
122 SPEECH OF SEARGENT S. PEEJSTIS3 
 
 encouraged his companions as they were laying down their lives in 
 his quarrel; no gleam of his dagger indicated a. desire to avenge 
 their fall; with treacherous cowardice he left them to their fate, and 
 all his vaunted courage ended in ignominious flight. 
 
 Sad and gloomy is the path that lies before him. You will in a 
 few moments dash, untasted, from his lips the sweet cup of revenge; 
 to quaff whose intoxicating contents he has paid a price that would 
 have purchased the goblet of the Egyptian queen. I behold gath- 
 ering around him, thick and fast, dark and corroding cares. That 
 face which looks so ruddy, and even now is flushed with shame and 
 conscious guilt, will from this day grow pale, until the craven blood 
 shall refuse to visit his ha.ggard cheek. In his broken and distorted 
 sleep, his dreams will be more fearful than those of the " false, per- 
 jured Clarence;" and around his waking pillow, in the deep hour 
 of night, will flit*the ghosts of Rothwell and of Meeks, shrieking 
 their curses in his shrinking ear. 
 
 Upon his head rests not only all the blood shed in this unfortu- 
 nate strife, but also the soul-killing crime of perjury; for, surely as 
 he lives, did the words of craft and falsehood fall from his lips, ere 
 they were hardly loosened from the Holy Volume. But I dismiss 
 him, and do consign him to the furies — 'trusting, in all charity, that 
 the terrible- punishment he must suffer from the scorpion-lash of a 
 guilty conscience will be considered in his last account. 
 
 Johnson and Oldham, too, are murderers at heart. But I shall 
 make to them no appeal. There is no chord in their bosoms which 
 can render back music to the touch of feeling. They have both 
 perjured themselves. The former cut up the truth as coolly as if 
 he had been carving meat in his own stall. The latter, on the con- 
 trary, was no longer the bold and hot-blooded knight, but the 
 shrinking; pale-faced witness. Cowering beneath your stern and 
 indignant gaze, marked you not how "his coward lip did from its 
 color fly;" and how his quailing eye sought from floor to rafter 
 protection from each honest glance. 
 
 It seems to me that the finger of Providence is visible in the 
 protection of the defendants. Had this affair occurred at Mr. Red- 
 ding's Coffee House, instead of the Gait House, nothing could have 
 saved them. Their lives would have been sworn away, without re- 
 morse, by Redding and his gang. All that saved them from sacri- 
 fice was the accidental presence of gentlemen whose testimony can- 
 not be doubted, and who have given an honest and true account of 
 the transaction. 
 
IN DEFENSE OP EDWAED C. 'WILKINSON. 123 
 
 Gentlemen of the Jury: — I shall detain you no longer. It was, 
 in fact, a matter of supererogation for me to address you at all, after 
 the lucid and powerful exposition of the case which has been given 
 by my respected friend, Col. Robertson. It was doubly so when it 
 is considered that I am to be succeeded by a gentleman (Judge 
 Rowan), who, better perhaps than any other man living, can give 
 you, from his profound learning and experience, a just interpreta- 
 tion of the laws of your State; and in his own person a noble illus- 
 tration of that proud and generous character which is a part of 
 the birthright of a Kentuckian. 
 
 It is true I had hoped, when the evidence was closed, that the 
 commonwealth's attorney might have found it in accordance with 
 his duty and his feelings to have entered at once a nolle prosequi. 
 Could the genius of " Old Kentucky " have spoken, such would 
 have been her mandate. Blushing with shame at the inhospitable 
 conduct of a portion of her sons, she would have hastened to make 
 reparation. 
 
 Gentlemen: — Let her sentiments be spoken by you. Let your 
 verdict take character from the noble State which you in part rep- 
 resent. Without leaving your box, announce to the world that here 
 the defense of one's own person is no crime, and that the protec- 
 tion of a brother's life is the subject of approbation rather than of 
 punishment. 
 
 Gentlemen of the Jury: — I return you my most profound and 
 sincere thanks for the kindness with which you have listened to me, 
 a stranger, pleading the cause of strangers. Your genero.us and 
 indulgent treatment I shall ever remember with the most grateful 
 emotions. In full confidence that you, by your sense of humanity 
 and justice, will supply the many defects in my feeble advocacy, I 
 now resign into your hands the fate of my clients. As you shall 
 do unto them, so, under like circumstances, may it be done unto 
 you. 
 
 The jury returned a verdict of not guilty as to all of the defendants. 
 
IMPORTANCE OF THE DOCTRINE OF STARE DECISIS. 
 
 LUTHER BRADISH. 
 
 The people, in forming the organic law of the government of this State, 
 very wisely foresaw that, in its action and progress, questions of interpre- 
 tation of the settlement of legal principles, and of their application, would 
 frequently arise ; and thence the necessity of constituting some tribunal 
 with general appellate and supervisory powers, whose decisions should be 
 final and conclusively settle and declare the law. This was supposed to 
 have been accomplished in the organization of this court. Heretofore this 
 court, under the Constitution, has been looked to by the people as the trib- 
 unal of the last resort in the State ; and it has hitherto been supposed, that 
 when this court had decided a case upon its merits, such decision not only 
 determined the rights of the parties litigant in that particular case, but 
 that it also settled the principles involved in it, as permanent rules of law, 
 universally applicable in all future cases embracing similar facts, and in- 
 volving the same or analogous principles. These decisions thus became 
 at once public law, measures of private right, and landmarks of property. 
 They determined the rights of persons and of things. Parties entered into 
 contracts with each other with reference to them, as to the declared and 
 established law ; law equally binding upon the courts and the people. But 
 the doctrine recently put forth would at once overturn this whole body of 
 law founded upon the adjudications of this court, built up as it has been 
 by the long continued and arduous labors, grown venerable with years, and 
 interwoven as it has become with the interests, the habits, and the opinions 
 of the people. Under this new doctrine all would again be unsettled — 
 nothing established. Like the ever returning but never ending labors of 
 the fabled Sisyphus, this court, in disregard to the maxim of " stare de- 
 cisis," would, in each recurring case, have to enter upon its examination 
 and decision as if all were new, without any aid from the experience of the 
 past, or the benefit of any established principle or settled law. Each case 
 with its decision being thus limited as law to itself alone, would in turn 
 pass away and be forgotten, leaving behind it no record of principle estab- 
 lished, or light to guide, or rule to govern the future.— [Hanford v. Archer, 4 
 Hill, 321.] 
 
 [124] 
 
SPEECH OF DAVID PAUL BROWN, 
 
 In Defense of Alexander William Holmes, Indicted for 
 Manslaughter on the High Seas. 
 
 [l Wallace, Jr., i.] 
 
 AT A CIRCUIT COURT OF THE UNITED STATES, HELD AT 
 THE CITY OF PHILADELPHIA, APRIL TERM, 1842. 
 
 Law of the Ocean. — It is a sailor's duty to protect persons in- 
 trusted to his care, not to sacrifice them ; and this obligation rests upon 
 him at all times, in every emergency of his calling. He must expose him- 
 self to every danger, and protect the life of the passenger to the last ex- 
 tremity. 
 
 Where two persons who owe no mutual duty to each other, are by 
 accident placed in a situation where both cannot survive, neither is bound 
 to save the other's life by sacrificing his own ; nor would either commit a 
 crime in saving his own life, in a struggle for the only means of safety. 
 In applying this principle, therefore, not only the jeopardy, but the rela- 
 tions in which the parties stand, should be considered, because the slayer 
 must be under no obligation to make his own safety secondary to the safety 
 of others. [United States v. Holmes, I Wall. Jr.] 
 
 Analysis of Me. Brown's Speech. 
 
 i. Heroic conduct of the defendant. 
 ^. Rejected indictzients.— No quarter to be 
 given or received. 
 
 3. Circu=i3tanccs under whicii alone a true 
 
 verdict could be readied. 
 
 4. Realistic description of the scenes sur- 
 
 rounding the alleged crime. 
 
 5. Legal character of the charge. — The au- 
 
 thorities discussed. 
 
 6. Propositions advanced by the prosecution 
 
 answered. 
 
 7. The prisoner bound to obey the maters 
 
 order ; otherwise all were in a slate of 
 
 nature when artificial distinction 
 cease to prevail, 
 
 S. The defendant acted under the appre- 
 hension of immediate peril and press- 
 ings necessity. 
 
 9. Vindication of thecaptain of thelost vessel. 
 
 10. Narration of the facts, and evidence in 
 
 the case. 
 
 11. The impulses which led to the catas- 
 
 trophe considered. 
 
 12. Self-preservation tbe first law of nature. 
 
 13. The survivors saved, solely through the 
 
 instrumentality of the defendant. 
 
 The circumstances surrounding the remarkable case of the United States v. 
 Holmes, present the melancholy romance and painful details which invariably 
 attach to stories of marine disaster. It is, we believe, the only case on record 
 in which the rights of sailor and passenger, and their relative duties and obliga- 
 tions in the hour of peril and shipwreck, have come directly under judicial 
 consideration. It would seem at first blush as if the old maxim, that self-pres- 
 ervation is the first law of nature, a principle enunciated by Lord Bacon and 
 
 [125] 
 
126 SPEECH OF DAVID PAUL BROWN 
 
 approved by elementary and speculative writers for nearly three centuries, 
 had been disregarded here. The familiar illustration given by the high au- 
 thority referred to, is that of two persons being shipwrecked and getting on 
 the same plank, one of whom, finding it not able to save both, thrusts the other 
 from it, whereby he is drowned. And this is declared to be excusable homicide. 
 A careful examination of the case, however, shows that Mr. Justice Baldwin has 
 adopted this rule, so far as it applies to those who are under no legal obligations 
 to each other. But where such obligations exist, as between sailor and passen- 
 ger, they remain in force at all times and under all circumstances. The facts of 
 the case are as follows : 
 
 On the 13th day of March, 1841, the good ship "William Brown" left 
 Liverpool, bound for Philadelphia. She had on board sixty-five passengers, 
 mostly Irish and Scotch emigrants, and a crew of seventeen, including officers 
 and seamen, making a total of eighty-two souls. On Monday night, the igth of 
 April, while about two hundred and fifty miles southeast of Cape Race, off the 
 coast of Newfoundland, the vessel struck an iceberg and began to sink. The 
 life-boats were launched. The first mate, eight seamen and thirty-two pas- 
 sengers were crowded into the long boat ; the captain, second mate, six of 
 the crew and one passenger got into the jolly boat. The ship went down an 
 hour and a half after she struck, carrying with her thirty-one passengers, who, 
 being unable to get into the boats, perished. At the last moment, just before 
 the wreck disappeared, the frail shells, burdened to the water's edge with human 
 freight, were cut loose and set adrift upon the trackless waste of waters. The 
 boats remained together during the night, and parted company Tuesday morn- 
 ing. Before separating, the mate in the long boat, realizing the extreme peril in 
 which he was placed, tried to prevail on the captain to take some of the pas- 
 sengers from the long boat into the jolly boat, as the former was unmanageable, 
 and said that, unless he did so, it would be necessary to cast lots and throw some 
 overboard. "I know what you'll have to do," said the captain ; "don't speak 
 of that now. Let it be the last resort." ■ As a parting injunction he directed the 
 seamen in the long boat to obey the orders of the mate as they would his own. 
 
 The long boat was 22 feet long, 6 feet in the beam, and from 2 J to 3 feet 
 deep. She had provisions for six or seven days, close allowance, consisting of 75 
 . pounds of bread, 6 gallons of water, 8 or 10 pounds of meat, and a small hag of 
 oat meal. The boat, however, was leaky ; the plug in the bottom was insufficient 
 for the purpose, and it became necessary to commence bailing the moment she 
 touched the water. 
 J, During the forenoon of Tuesday it began to rain, and the rain continued 
 
 during the remainder of. the day and night. The sea was quite calm, however, 
 until towards evening, when the wind freshened and it became rough, and at 
 times w^ashed over the sides of the boat. Great masses of ice were floating 
 about, and during the day icebergs had been seen. As the shades of night began 
 to thicken, the ocean became more and more tempestuous, and the peril of de- 
 struction became imminent. The gunwale was within from five to twelve inches 
 of the water. The crew rowed turn-about, and the passengers bailed. About ten 
 o'clock Tuesday night, as the sea grew heavier and the chances of keeping afloat 
 began to diminish, the mate, who had been bailing steadily, cried out : " This 
 work won't do. Help me, God ! Men, go to work." No attention was paid to 
 
m DEFENSE OF ALEXANDER WILLIAM HOLMES. 127 
 
 this order. Some of the passengers then exclaimed; "The boat is sinking. 
 The plug's out. God have mercy on our poor souls !" In a few minutes after, 
 the mate again said : " Men, you musi go to work, or we shall all perish." 
 
 Alexander William Holmes, one of the crew to whom these orders 
 were addressed, was a Finn by birth, and had followed the sea from his youth. 
 He was the last man of the crew to leave the sinking ship, and had become con- 
 spicuous for courage and daring in his endeavors to rescue the passengers from 
 the wreck. The following incident will illustrate i A widowed mother and three 
 daughters got into the long boat, but just as it was about being cut loose from 
 the sinking hulk, to escape going down in the vortex, it was discovered that one 
 of the daughters, who was sick and helpless, had been left behind. The mother, 
 half distracted, called the child's name. ' ' Isabel ! Isabel ! Come ! Come ! " 
 she cried, but the poor creature was too feeble to stir. William Holmes heard 
 the mother's grief, and climbing up the ship's side, at the peril of his life, he 
 rescued the sick girl, and placing her on his shoulder, swunghimself with one 
 arm by the tackle into the boat. This scene is vividly portrayed by his counsel 
 in his address to the jury. He had 'also parted with nearly all his clothing to 
 protect the shivering women in the boat. Neventheless, Holmes, the hardy and 
 courageous sailor, in response to the command of the mate to "goto work," 
 assisted in throwing the passengers into the sea. No lots were cast. The pas- 
 sengers were not consulted, the only orders were not to throw over any women, 
 and not to separate man and wife. Holmes and his associates threw overboard 
 fourteen males and two women. 
 
 After three persons had been thrown out. Holmes came to Francis Askin, 
 who offered him five sovereigns to spare his life till morning, saying : "If God 
 don't send us help by morning, we'll draw lots, and if the lot falls on me, I'll go 
 over like a man." Holmes answered, " I don't want your money, Frank," and 
 cast him into the sea. There was a violent struggle, but the boat did not sink. 
 The two women above referred to as having been thrown over, were the sisters 
 of Askin, and there was some doubt as to whether they were thrown out or vol- 
 untarily sprang into the water, choosing to share their brother's fate. 
 
 The murder of Askin constituted the offense forwhich Holmes was indicted 
 and brought to trial in the Circuit Court of the United States; on the 13th day of 
 April, 1842. 
 
 The sequel of the catastrophe is soon told. Holmes was the ablest and most 
 experienced seaman on board, and the mate concluded to take his judgment en- 
 tirely as to what course to pursue. He advised not to make for Newfoundland, 
 that it would never be reached, but to steer south where it was warmer, and 
 take the chances of being picked up. He encouraged everybody, and bade them 
 not despair. He tried to make a sail with a quilt, but the wind was too 
 strong. On Wednesday morning the weather cleared. Holmes kept a sharp look- 
 out, and long before any one else saw it, his trained and experienced eye descried 
 a sail. He at once raised a sign of distress. The approaching vessel proved to 
 be the ship Crescent, which, seeing the signal, put about and picked up the sur- 
 vivors. The captain and second mate with the persons in the jolly boat, after 
 beating about for six days, were rescued by a French fishihg lugger. 
 
 Holmes was indicted under the act of April 30th, 1790, entitled "An Act for 
 the punishment of certain crimes against the United States (i Story's Laws U. S. 
 
128 SPEECH OP DAVID PAUL BROWN 
 
 p. 83), the I2th section of which provides, that if any seaman shall commit man- 
 slaughter upon the high seas, he shall be imprisoned not exceeding three years, 
 and fined not exceeding one thousand dollars. 
 
 The trial created great excitement and attracted universal attention. The 
 prosecution was conducted by William M. Meredith (U. S. District Attorney), 
 Oliver Hopkinson, and George M. Dallas. For the prisoner appeared David 
 Paul Brown, Edward Armstrong, and Isaac Hazlehurst. 
 
 For forty years, David Paul Brown was one of the brightest ornaments of his 
 profession, and his attainments and abilities have acquired for the Quaker lawyer 
 enduring fame. He was a scholarly and accomplished advocate, and invariably 
 brought to his task the wealth of his classical learning to adorn and beautify 
 his work. His success at the bar was instantaneous, and it is said that, during 
 the first fifteen years of his professional life, his fees aggregated the handsome 
 sum of $100,000. In his defense of Holmes he urged with great power, that 
 when the vessel went down, the voyage, with all its contemplated conditions and 
 possibilities, was at an end, and whatever duties or obligations might ordinarily 
 attach to the mariner, were absolved under circumstances of extreme peril, when 
 all men were reduced to a state of nature. The Court, however, ruled against 
 him on these points, and afterwards denied a motion for a new trial, involving 
 the, correctness of the position taken in his charge. Mr. Brown addressed the 
 jury as follows : * 
 
 With Deference to the Court : — How wonderful and mys- 
 terious, gentlemen of the jury, are the vicissitudes of human life. 
 How frail and precarious are our best holds upon human happiness. 
 Man, the boasted lord of creation, is the sport of every wind that 
 blows, of every wave that flows. He appears like the grass of the 
 field, flourishes and is cut down, and withers ere the setting sun ; 
 like the dews of the morning he sparkles for a brief moment and is 
 exhaled. There is nothing earthly certain but uncertainty ; there is 
 nothing true but Heaven. 
 
 What a salutary practical commentary is supplied by the present 
 intensely interesting occasion upon the truth of this melancholy 
 doctrine. On the thirteenth day of March, in the last year, a 
 staunch and gallant ship, with a competent commander and a noble 
 crew, with sixty-five passengers on board, sailed from the port of 
 Liverpool, destined for that of Philadelphia ; a destination, alas ! 
 which was never accomplished. 
 
 For more than a month, notwithstanding she encountered storms 
 and tempests, she outrode them all ; and like a thing of life held on 
 her way rejoicing. On the 19th of the succeeding month, she ar- 
 rived in fairer climes and enjoyed more propitious gales ; but even 
 
 ■ For this full report of Mr. Brown's speech, we are indebted to Mr. Robert 
 Eden Brown, who has collected and edited a volume of his father's speeches. 
 King & Baird, Philadelphia, 1873. 
 
IN DEFENSE OF ALEXANDER WILLIAM HOLMES. 129 
 
 then, when every heart throbbed with the anticipated joy of a 
 speedy arrival, the angel of destruction spread his broad black 
 wings above her, and while traversing the ocean with all sails set, 
 at the rate of ten knots an hour, she came into collision with an 
 island of ice, and in a moment her pride was prostrate, and the 
 doomed ship was reduced to an actually sinking condition, afford- 
 ing scarcely time for the unhappy inmates, in the moment of their 
 extremest need, to cry God bless us. The ocean, her favored ele- 
 ment, of which for years she had been the pride, became her se- 
 pulchre ; and the winds that had borne her upon many a prosper- 
 ous voyage, sung her last sad, only requiem. Here is a scene strik- 
 ingly presented, in which the theories of philosophy are reduced at 
 once to a frightful reality. 
 
 I. Heroic conduct of the defendant. 
 
 But there is still another picture to which I would invite, and 
 upon which I would fasten your attention. On that dreadful night, 
 the crew and half the passengers having taken to the boats, the 
 agonizing voice of a mother is heard even beyond the tumult and 
 the clamor, calling for the preservation of her daughter, who in the 
 consternation of the moment had been forgotten, and remained on 
 board the fated ship. In an instant, you may see a gallant, athletic 
 and powerful sailor, passing hand over hand, by dint of a slender 
 rope, until he regains the vessel. And you may further behold him 
 upon the quarter deck, iij the depth of the night, surrounded by the 
 wild and wasteful ocean, with one arm entwined around a sickly and 
 half naked girl, while, with the other, he bravely swings himself and 
 his almost lifeless burden, by means of the "boat tackle falls," 
 from the stem of the sinking ship into the boat below, and at once 
 restores the child to the open arms and yearning heart of the 
 mother. Yet to-day, I say it to the disgrace of the law, after 
 m.onths of solitary imprisonment, you here see that self-same heroic 
 sailor arraigned upon the odious charge of having voluntarily and 
 wantonly deprived a fellow-creature of his life ; and that, gentle- 
 men of the jury, is the charge that I am to argue and you are to 
 determine. I say this is what you are to determine. 
 
 2. Rejected indictments. — No quarter to be given or 
 
 RECEIVED. 
 
 It may not be inappropriate, however, though certainly not vital 
 to this cause, that I should ask your attention, in passing to the real 
 9 
 
130 SPEECH OF DAVID PAUL BROWN 
 
 subject in controversy, to two other indictments which stain the 
 records of this court, referring to portions of the same transaction: 
 the first charging the defendant with murder, which the grand jury 
 promptly ignoramused ; and the second, in the impotency of disap- 
 pointed revenge, accusing him of larceny in having stolen a quilt of 
 the alleged value of three dollars, which charge shared the same 
 fate. You can form some idea of the dignity of the United States 
 and its value, while observing how it has been cheapened by itself. 
 This very quilt, permit me to remind you, is that which was con- 
 verted by Holmes into a sail for the boat, in a moment of the ex- 
 tremest peril, in order that he might save the lives of those very 
 beings who gratefully appeared before the grand jury upon the first 
 opportunity, in order to convict their benefactor of these imputed 
 crimes. I shall speak of this hereafter ; for the present I merely 
 advert to it, and pass at once to more important matters. 
 
 In approaching the consideration of this case, which I do with 
 pride and pleasure and confidence, I cahnot but express my regret, 
 to adopt a military phrase, that I am called into conflict not only 
 with the regular troops of the United States, but with her recently 
 enlisted volunteers. I am sorry that my gallant friend ' who led on 
 the attack so boldly yesterday, and who is a legitimate leader every- 
 where, should so far have returned to his first love as to desert the 
 white banner of innocence (under which he has lately so success- 
 fully foughf) to engage once more beneath the bloody flag of such 
 a prosecution ^s this. Since it is so, however, let him nail that flag 
 to the mast. We should be happy to abide by every principle of 
 civilized warfare ;; t)ut in a mortal controversy, in a death struggle 
 like this, we shall neither ask nor will we receive any quarter. 
 
 3. Circumstances under which alone a true verdict 
 could 3e reached. 
 
 This case, in order to embrace all its horrible relations, ought 
 to be decided in a long .boat, hundreds of leagues from the shore, 
 loaded to the very gunwale with forty-two half naked victims; with 
 provisions only sufficient to prolong the agonies of famine and of 
 thirst ; with all the elements combined against her ; leaking from 
 below, filling also from above ; surrounded by ice, unmanageable 
 from her condition, and subject to 4estruction from the least 
 change of the wind and the waves — the most variable and most 
 terrible of all the elements. Decided at such a tribunal, nature — 
 
 ' Mr. Dallas. 
 
IN DEFENSE OF ALEXANDER WILLIAM HOLMES. 131 
 
 intuition — would at once pronounce a verdict, not only of acquittal, 
 but of commendation. The prisoner might, it is true, obtain no 
 outward atonement for nine months of suffering and of obloquy ; 
 but he would at least enjoy the satisfaction always to be derived 
 from a consciousness of rectitude, in which the better part of the 
 world sympathize, and in which it confides. 
 
 Are the United States to come here now, a year after the events, 
 when it is impossible to estimate the elements which combined to 
 make the risk, or to say to what extent the jeopardy was imminent; 
 are they, with square, rule and compass, deliberately to measure 
 this boat, in this room ; to weigh these passengers ; call in philos- 
 ophers ; discuss specific gravities ; calculate by the tables of a life 
 insurance company the chances of life ; and because they, the 
 judges, find that, by their calculation, this unfortunate boat's crew 
 might have had the thousandth part of one poor chance to escape, 
 to condemn this prisoner to chains and a dungeon for what he did 
 in the terror and darkness of that dark and terrible night ? Such a 
 mode of testing men's acts and motives is monstrous ! 
 
 Alas ! how different is the scene now exhibited ? You sit here, 
 the sworn twelve, the center of that society which you represent, 
 surrounded by the sanctions of those laws which for a time you ad- 
 minister ; reposing amidst the comforts and delights of sacred 
 homes ; directed and instructed by a judge who, being full of light 
 himself, freely imparts it to all he approaches ; to decide upon the 
 impulses and motives of the prisoner at the bar, launched upon the 
 bosom of the perilous ocean ; surrounded by a thousand deaths in 
 their most hideous forms, with but one plank between him and de- 
 struction. What sympathies can be inspired by relative positions 
 so remote, so opposite as these. 
 
 4. Realistic description of the scenes surrounding the 
 alleged crime. 
 
 Translate yourselves if you can, by the power of imagination, 
 to those scenes, those awful scenes to which this proceeding refers. 
 Fancy yourselves in a frail barque, encompassed by towers of ice 
 Olympus high, and still magnified by the fear natural to man ; ex- 
 posed to bleak and pitiless winds, surrounded by forty wretches as 
 miserable as yourself, deepening your own afflictions by the con- 
 tagion of grief ; removed a hundred leagues from land, and still 
 further removed by a destitution of those means by which alone it 
 could possibly be reached. 
 
132 SPEECH OF DAVID PAUL BROWS' 
 
 Nay, further, superadd to these horrors the apprehension of 
 famine, of storm, bearing assured destruction on its wing ; and 
 connect all these with the scenes and terrors of the night just past, 
 enough to appal the stoutest heart and overthrow the firmest brain, 
 and then tell me, not what the defendant should have done, but 
 what the most severe and rigid would have done, in trials and perils 
 and calamities like these. It is easy to scorn the tempest while 
 sporting with the zephyr ; to laugh at the ocean while secure from 
 its ravages and horrors ; to expatiate upon the harmlessness of ice 
 while indulging in it, perhaps as a luxury ; or to underrate famine 
 in the abundance of your supplies ; but may that Power that " rides 
 on the whirlwind and directs the storm," protect you against the 
 sad reality of those afflictions which in their mere theory are often 
 so readily overcome by your self-secure, cold-blooded and reckless 
 philosophy. Philosophy readily triumphs ove'r past and future and 
 remote ills ; but present and immediate ills grapple closely with the 
 heart, and triumph over philosophy. 
 
 5. Legal character of the charge. — The authorities 
 discussed. 
 
 Let us now come to those facts which distance and defy all the 
 powers of fancy. Before doing this, however, you will pardon me 
 in examining the legal character of his charge : First, as relates to 
 the act of Congress ; secondly, as regards the inherent defects of 
 the indictment ; thirdly, as respects its inconsistency with the evi- 
 dence in the cause. I have for the present but a word to say upon 
 each of these subjects, rather to show that they have not been over- 
 looked, than with any intention elaborately to discuss them. 
 
 The act of Congress leaves manslaughter where it was at com- 
 mon Jaw, so far as regards its definition ; it only modifies its punish- 
 ment. The punishment is not more than three years, with a penalty 
 not exceeding one thousand dollars. You have been truly told by 
 the opposite counsel that the court may reduce their sentence to a 
 merely nominal punishment. That is the business of the court, 
 however, and after your verdict is found, your influence is extinct. 
 Whether the punishment is to be an hour or a year, it is an in- 
 famous punishment ; and you should be equally cautious in resting 
 your verdict upon unquestionable and unsatisfactory proof. I 
 marvel, indeed, that my learned friend, while haranguing you upon 
 the enormity of this offense, should attempt soothing you into a ver- 
 dict by the suggestion that it would probably be attended with no evil 
 
IS DEFENSE OF ALEXANDER -WILLIAM HOLMES. 133 
 
 to the defendant. Allow me to deprecate this questionable mercy. 
 It is calculated, if not designed, to seduce you from allegiance to 
 your duties. If the defendant be guilty, he should meet the rigor 
 of the law ; if innocent, his rights should not be compromised by 
 the imaginary insignificance of his anticipated punishment. I make 
 no claims upon your charity ; my appeals are to your justice. 
 
 Now, as to the internal defects of the indictment. The indict- 
 ment contains four counts for manslaughter. That is, for unlaw- 
 fully, but without malice, depriving a fellow-creature of his life. 
 Malice would elevate what would otherwise be manslaughter, into 
 murder. 
 
 The first count charges the homicide on board of the ship Wil- 
 liam Brown, belonging to Stephen Baldwin. The second — on board 
 of a vessel, name unknown, belonging to Stephen Baldwin. The 
 third and fourth are the same, with the exception of Thomas Vogel's 
 name being substituted for that of Stephen Baldwin's. 
 
 Now, these charges are incompatible with each other, and are 
 calculated to bewilder the prisoner in his defense. They cannot 
 all be true, and as there has been no election on the part of the 
 prosecution, a verdict upon all will involve an inconsistency obvi- 
 ously illegal, if not utterly fatal. The doctrine of Milton, as ap- 
 plied to angelic existences, that, vital in every part, they cannot, 
 but " by annihilation, die," is not true in its application to indict- 
 ments. They are mortal in every part, and the destruction of one 
 part of a count is the destruction of all parts of the same count. 
 One count, it is true, does not destroy another when they are at all 
 compatible with each other, and when an election has been made ; 
 but when the charges contained in an indictment are, as in this 
 case, totally inconsistent, if the jury should find a verdict of guilty 
 upon the indictment generally, it will be subject to a motion in ar- 
 rest of judgment, and it can never stand. 
 
 Lastly, I say, if the indictment were unquestionable in itself, it 
 is not supported by the proof. I say nothing in regard to the error 
 in the time stated, which, in some cases, might be fatal, but probably 
 not in f/iis. The ship, as appears by the evidence, neither belonged 
 to Baldwin nor Vogel, but to McCrea, who is not even referred to. 
 Baldwin, however, it is said, held a claim to her, a mortgage upon 
 her as collateral security. That does not improve the case of the 
 prosecution. Special property may be sufficient, but it must be 
 special property accompanied by possession, or at all events pos- 
 session itself, actual or constructive. Suppose a person were in- 
 
134 SPEECH OF DAVID PAUL BROWN 
 
 dieted for committing a burglary upon the house of A. B., and 
 upon the trial it appeared that the house was the dwelling of E. F., 
 and that the person whose name was introduced into the indictment 
 was merely the mortgagee, certainly the charge could not be sus- 
 tained for a moment. I merely, for the present, hint at rather 
 than press these objections. I shall, if necessary — which it prob- 
 ably will not be — have the benefit of them hereafter. 
 
 We pass now to the law more immediately connected with the 
 facts of this case. Russell, Paley, Rutherford, Blackstone, and, 
 above all, Lord Bacon, are the authorities upon which thcentire 
 law of the case rests. 
 
 As to Puffendorf, Grotius, Heineccius, and others who have 
 been quoted, with all their lofty pretensions, they do not contain as 
 much wisdom or light as may be found upon each and every page 
 of " the wisest and brightest of mankind." So far as regards the 
 present subject, they exhibit more pedantry and casuistry than 
 either learning or common sense. 
 
 We contend, that what is honestly and reasonably believed to 
 be certain death, will justify self-defense in the degree requisite for 
 excuse. According to Dr. Rutherford,' " this law " — /. e., the law 
 of nature — " cannot be supposed to oblige a man to expose his life 
 to such dangers as may be guarded against, and to wait till the 
 danger is just coming upon him, before it allows him to secure him- 
 self." In other words, he need not wait till the certainty of the 
 danger has been proved, past doubt, by its result. Yet this is the 
 doctrine of the prosecution. They ask us to wait till the boat has 
 sunk ; we may then make an effort to prevent her from sinking. 
 They tell us to wait till all are drowned ; we may then make en- 
 deavors to save a part. They command us to stand still till we all 
 are lost, past possibility of redemption, and then we may rescue as 
 many as can be saved ! " Where the danger is instantaneous, the 
 mind is too much disturbed," says Rutherford, in a passage hereto- 
 fore cited, " to deliberate upon the method of providing for one's 
 own safety, with the least hurt to an aggressor." The same author 
 then proceeds : " I see not, therefore, any want of benevolence 
 which can be reasonably charged upon a man in these circum- 
 stances, if he takes the most obvious way of preserving himself, 
 though, perhaps, some other method might have been found, which 
 would have preserved him as effectually, and have produced less 
 hurt to the aggressor, if he had been calm enough, and had been 
 
 ' Inst, of Nat. Law, book 1, chap. i6. 
 
IN DEFENSE OF ALEXANDER WILLIAM HOLMES. 135 
 
 allowed time enough to deliberate about it." ' Nor is this the lan- 
 guage of approved text-writers alone. The doctrine has the 
 solemnity of judicial establishment. In Grainger v. The State,' the 
 Supreme Court of Tennessee deliberately adjudge, that " if a man, 
 though in no great danger of serious bodily harm, through fear, 
 alarm, or cowardice, kill another, under the impression that great ' 
 bodily injury is about to be inflicted on him, it is neither man- 
 slaughter nor murder, but self-defense." " It is a different thing," 
 say the Supreme Court of the United States, in the Mariana Flora, 
 " to sit in judgment upon the case, after full legal investigations, 
 aided by the regular evidence of all parties, and to draw conclu- 
 sions at sea, with very imperfect means of ascertaining facts and 
 principles, which ought to direct the judgment." ' The decision in 
 the case just cited carried out this principle into practice, as the 
 case of Le Louis, decided by Sir William Scott, had done before.* 
 
 The counsel cited Lord Bacon, likewise.' But the prospect of 
 sinking was not imaginary ; it was well founded. It is not to be 
 supposed that Holmes, who, from infancy, had been a child of the 
 ocean, was causelessly alarmed ; and there being no pretense of ani- 
 mosity, but the contrary, we must infer that the peril was extreme. 
 
 I have thus given you the law. There is but little difficulty 
 between us in regard to it. The labor is in the application of the 
 law. 
 
 6. Propositions advanced by the prosecution answered. 
 
 I maintain that a well-founded apprehension of peril to life 
 justifies self-defense, to the extent of destroying the adversary. 
 The opposite counsel maintain that the peril must be actually in- 
 evitable. This I deny, and say that it is enough if it be honestly 
 and reasonably supposed to be so. An inevitable danger I don't 
 understand. 
 
 They maintain that the peril must be not only inevitable, but 
 immediate. I answer, it need be neither ; but it must reasonably 
 be supposed to be both. 
 
 Suppose, upon an indictment for manslaughter, a plank be 
 
 ' Rutherford, Inst, of Nat. Law, book I, chap. i6, § 5. 
 ^ 5th Verger's Rep. p. 459. 
 
 * nth Wheaton's Rep. p. 51. 
 
 * 2d Dodson's Admiralty Rep. p. 264. 
 
 '"Works by Montague, vol. 13th, p. 160; London, 1831 ; and 4th Black- 
 stone's Com. p. 160. 
 
136 SPEECH OF DAVID PAUL BEOWN 
 
 measured in court, with square, rule and compass, and it be found 
 that it would have sustained two persons ; still, is he, who in his 
 terror supposes it would not, to be liable for conviction ? Certain- 
 ly not. 
 
 The prosecution contends that if there be a doubt as to the in- 
 evitable peril, the defendant is to be convicted. I say it is pre- 
 sumed to have been considered inevitable, from the fact itself ; 
 there being no pretense of animosity, but clear evidence of the 
 greatest kindness and sympathy. 
 
 They say, that if the danger were inevitable, still the defendant 
 had no right to make selection. To this I reply, that this argu- 
 ment involves the necessity of throwing all overboard. The selec- 
 tion would have been just the same if they had destroyed those 
 who are living now, and permitted the others to remain. 
 
 But, say they, lots might have been cast. If the peril were in- 
 evitable and immediate, that could not have been done. We hear 
 for the first time of casting lots in a sinking boat, where the ques- 
 tion is whether any can be saved, rather than who shall be lost. 
 Lots in cases of famine, where meafts of subsistence are wanting 
 for the number of the crew, are matters which, horrible as they 
 are, are comparatively familiar to us. But to cast lots to see who 
 shall go first, when all are going, is reserved for the ingenuity of 
 the counsel, who constructs a raft on board of ship, in the depth of 
 the night, with the prospect of her going down before he drives the 
 first nail, or plies the first rope. 
 
 The danger was instantaneous ; " a case," says Rutherford,' 
 "where the mind is too much disturbed to deliberate ;" and where, 
 if it were " more calm," there is no time for deliberation. The 
 sailors adopted the only principle of selection which was possible 
 in an emergency like theirs ; a principle more humane than lots. 
 Man and wife were not torn asunder ; and the women were all pre- 
 served. Lots would have rendered impossible this clear dictate of 
 humanity. 
 
 7. The prisoner bound to obey the mate's order ; other- 
 wise ALL WERE IN A STATE OF NATURE WHEN ARTI- 
 FICIAL DISTINCTIONS CEASE TO PREVAIL. 
 
 But, again, the crew either were in their ordinary and original 
 state of subordination to their officers, or they were in a state of 
 
 ' Inst, of Nat. Law, book I, chap. 16, § 5. 
 
IN DEFENSE OF ALEXANDER WILLIAM HOLMES. 137 
 
 nature. If in the former state, they were excusable in law for hav- 
 ing obeyed the order of the mate ; an order twice imperatively 
 given. Independent of the mate's general authority in the captain's 
 absence, the captain had pointedly directed the crew to obey all 
 the mate's orders as they would his (the captain's), and the crew 
 had promised to do so. 
 
 It imports not to declare that the crew is not bound to obey an 
 unlawful order ; for to say that this order was unlawful, is to pos- 
 tulate what remains to be proved. Who is to judge of the unlaw- 
 fulness ? The circumstances were peculiar. The occasion was 
 emergent, without precedent or parallel. The lawfulness of the 
 order is the very question we are disputing, a question about which 
 the whole community has been agitated, and is still divided ; the 
 discussion of which crowds this room with auditors past former 
 example ; a question which this court, with all its resources, is now 
 engaged in considering, as such a question demands to be consid- 
 ered, most deliberately, most anxiously, most cautiously. It is no 
 part of a sailor's duty to moralize and to speculate, in such a 
 moment as this was, upon the orders of his superior officers. The 
 commander of a ship, like the commander of an army, " gives 
 desperate commands." He requires instantaneous obedience. The 
 sailor, like the soldier, obeys by instinct. In the memorable, im- 
 mortal words of Carnot, when he surrendered Antwerp, in obedi- 
 ence to a command which his pride, his patriotism, and his views 
 of policy all combined to oppose : " The armed force is essentially 
 obedient ; it acts, but never deliberates." The greatest man of 
 the French Revolution did here but define, with the precision of 
 the algebraist, what he conceived with the comprehension of a 
 statesman ; and his answer was justification with every soldier in 
 Europe ! How far the principle was felt by this crew, let us wit- 
 ness the case of this very mate, and of some of these very sailors, 
 who, by the captain's order, left the jolly boat, which had ten per- 
 sons, for the long boat, with more than four times that number. 
 They all regarded this as going into the jaws of death ; yet, not a 
 murmur ! It is a well-known fact, that in no marine on the ocean 
 is obedience to orders so habitual and so implicit as in our own. 
 The prisoner had been always distinguished by obedience. Whether 
 the mate, if on trial here, would be found innocent, is a question 
 which we need not decide. That question is a different one from 
 the guilt or innocence of the prisoner, and one more difficult. 
 
 But if the whole company were reduced to a state of nature, 
 
138 SPEECH OF DAVID PAUL BROWN 
 
 then the sailors were bound to no duty not mutual to the pas- 
 sengers. The contract of the shipping articles had become dis- 
 solved by an unforeseen and overwhelming necessity. The sailor 
 was no longer a sailor, but a drowning man. Having fairly done 
 his duty to the last extremity, he was not to lose the rights, of a 
 human being, because he wore a roundabout instead of a frock- 
 coat. We do not seek authorities for such doctrine. The instinct 
 of these men's hearts is our authority ; the best authority. Who- 
 ever opposes it must be wrong, for he opposes human nature. All 
 the contemplated conditions, all the contemplated possibilities of 
 the voyage were ended. The parties — sailors and passengers — were 
 in a new state. All persons on board the vessel became equal ; . all 
 became their own law-givers ; for artificial distinctions cease to 
 prevail when we are reduced to the equality of nature. The law 
 which did prevail on that awful night, having been the law of neces- 
 sity and the law of nature, too, it is the law which will be upheld by 
 this court to the liberation of this prisoner. 
 
 Now I have shown, if these views be sound, that apart from the 
 preservation of the rest of the passengers, and themselves, these 
 men could have had no inducement to take life. That the 
 magnanimity, gallantry and tenderness of Holmes utterly forbid 
 the idea. That, therefore, it is honestly and /airly to be inferred, 
 that they apprehended immediate peril, and were sustained by the 
 laws of nature in acting accordingly. 
 
 8. The defendant acted under the apprehension of imme- 
 diate PERIL AND pressing NECESSITY. 
 
 As to the circumstance of Frank Askins offering five guineas to 
 preserve his life till morning, and its being refused ; that so far 
 from making against us, makes for us. If they had complied with 
 that request, they must either have sold the lives of all on board for 
 five sovereigns, or have offered conclusive evidence that they did 
 not conceive the peril to be immediate. If they had even received 
 the money, and afterwards deprived him of life, the money itself 
 would have been an indication, either of a corrupt motive, or a re- 
 liance on their own security, incompatible with the doctrine for 
 which I contend. It was a terrific deed, to be sure, consider it 
 which way you will ; and the very horror of the deed constitutes 
 part of its defense : as it is fairly to be presumed it would not have 
 been resorted to, except in a case of a horrible necessity. 
 
 The fate of the two sisters is spoken of with peculiar pathos. 
 
IN DEFENSE OF ALEXANDER WnLLIAM HOLMES. 139 
 
 I maintain their lives were never sacrificed by the crew, (ist.) Be- 
 cause there is no positive proof to that effect — mere loose sugges- 
 tions or inferences. {2d.) Because there was not a hand laid upon 
 any other woman in the boat. (3d.) Because never mentioned by 
 witnesses upon previous examinations. (4th.) Because the conduct 
 of the sisters shows that it was an act of self-devotion, which is al- 
 most admitted, indeed ; and which adds another bright page to the 
 records of time, exhibiting the fidelity, affection and devotion of a 
 woman's heart. 
 
 Considering it in this point of view, its glory is almost equal to 
 its horrors, neither of which is attributable to the defendant. But 
 it is said, that if the passengers had been allowed to live until the 
 next morning, a ship was at hand. 
 
 First, I answer, that the probability was that they could not 
 have survived the night ; and, secolidly, that, without prescience 
 they could not know of the ship being at hand. 
 
 Now let us look to the next morning. The boat is still filled 
 with water, the peril is not abated, and two more half frozen 
 wretches are removed ; some few hours after this, the vessel is dis- 
 cerned, and Holmes, and the passengers, through the instrumen- 
 tality of Holmes, are saved. 
 
 As to the notion that there is any distinction between sailors and 
 other men, in their natural rights of self-defense, it is not to be 
 tolerated. If the peril were not imminent, no man has a right to 
 destroy the life of another for the preservation of his own. If it 
 were imminent and apparently inevitable, any man, without regard 
 to condition, vocation or degree, had that right. A state of nature 
 implies the absence of all but natural law ; and natural law is not 
 to be affected by artificial distinctions. A sailor is upon equality 
 with passengers ; nay, he is upon an equality with his captain in 
 emergencies like this. With these views of the law let us turn to 
 the facts. 
 
 9. Vindication of the captain of the lost vessel. 
 
 On the 13th of March, 1841, as has been said, the ship sailed 
 from Liverpool to Philadelphia ; she came in contact with the ice 
 on the 19th of April, and in one hour and less was reduced to a 
 sinking condition. 
 
 The captain having unavailingly attempted the pumps, ordered 
 the boats to be launched from the ship. Thirty-three passengers 
 and nine sailors rntered the long boat, and the captain, seven sail- 
 
140 SPEECH OF DAVID PAUL BROWN 
 
 ors and one passenger entered the jolly boat. The boats were 
 moored at the stern of the ship, by dint of a ten fathom rope, at- 
 tached to the vessel. And in a few minutes the ship sunk forever ; 
 the rope being severed at that very moment by Holmes, who was 
 posted for that purpose. 
 
 The counsel, at this point of the case, indulged in a severe and 
 unmeasured attack upon Captain Harris, for having deserted the 
 vessel ; maintaining that he was bound to have sunk with her, that 
 he has disgraced the American name by not having done so, and 
 that he presents by his conduct a shameful contrast to Grace Dar- 
 ling, who placed her life in peril to redeem the passengers and crew 
 from a wreck, in the neighborhood of a light-house of which her 
 father was the keeper. 
 
 Now this is all very poetical, very beautiful, and what embraces 
 more, very gallant on the part of my learned friend. Rather than 
 take the laurel from the brow of Grace Darling or any other dar- 
 ling, I would wear the cypress round my own ; but you will still al- 
 low me to say, there is a vast difference between an experiment in 
 a life-boat and almost within hail of the shore, and the scene to 
 which our attention is here called — one hundred leagues from land 
 — in the darkness of night and surrounded by icebergs. The captain 
 was not bound to do more than he did ; he was bound to do all 
 that he did. His calmness and composure in the midst of these 
 horrible scenes contributed to save the lives of upwards of fifty 
 human beings ; although it is true that he was not enabled to rescue 
 those who remained on board of the ship. Their temporary rescue 
 would have resulted finally in the loss of all. 
 
 As to his sacrificing his own life, sympathy for others forbade it. 
 If he and all of the sailors had perished, so far from its operating 
 to the benefit of the passengers, it would have proved their inevi- 
 table and total destruction. 
 
 But, says the gentleman, why didn't he construct a raft ? he had 
 an hour to do it in. He had no assurance of a moment ; the ship 
 was laden with iron ; two columns of water of the thickness of a 
 man's body were pouring through the stem of the ship into her very 
 vitals. And although nearly an hour elapsed after leaving her, and 
 before she sunk, how was he to determine upon the probability of 
 her surviving the shock ? The learned counsel's argument is quite 
 consistent throughout the case. He says a raft should have been 
 constructed, because it turned out that the vessel did not sink for 
 ar. hour ; as he says that the men should not have perished, be- 
 cause a ship afterwards hove in sight. 
 
IN DEFENSE OF ALEXANDER WILLIAM HOLMES. 141 
 
 But it is further said by the learned gentleman, that the captain 
 might have taken off more of the passengers. That suggestion is 
 in direct opposition to the evidence. The gunwales of the boat 
 were within six or eight inches of the water ; a single additional 
 person would have swamped them ; and thus all must have per- 
 ish, perhaps, from an ill-judged effort to save one. The conduct of 
 the captain was not only judicious, but humane. If he had re- 
 turned alongside of the ship, he would have been ingulfed by the 
 vortex produced by her sinking, or subjected to a calamity scarcely 
 less terrible, by some of the inmates of the ship jumping irtto the 
 boats. As to the suggestion that he might have at least rescued 
 the children in the ship, that attempt would have resulted in the 
 same consequence, even supposing that the perishing parents would 
 have been willing to sever themselves, in this moment of direst 
 emergency, from offspring more precious than even life itself. 
 
 I have deemed it my duty to say this much in behalf of an ab- 
 sent man, and a most meritorious and exemplary officer ; not that 
 it was by any means essential to the defense, but simply because it 
 was an act of justice. If the captain is so disgracious now in the 
 eyes of the prosecution, so culpable in the eye of the law, why have 
 not our learned adversaries instituted legal proceedings against 
 him, instead of attempting to transfer the burden of his imputed 
 guilt to the shoulders of the prisoner. The captain's deposition 
 was taken ; he was examined in the office of the attorney for the 
 United States ; he was within the very jaws of the Royal Tiger, yet 
 those jaws did not close upon him, with all their thirst for blood. 
 Now, however, that his march is o'er the mountain wave, the coun- 
 sel speak of his escape from justice, and the horrible retribution 
 that awaits his return. This is the thunder without the bolt, or the 
 power of Jove to wield it. 
 
 lo. Narration of the facts, and evidence in the case. 
 
 We pass now to other scenes. In the morning of the 20th of 
 April, which was ushered in in darkness and in gloom, the two boats 
 separated from each other ; the captain and eight others directing 
 their course, in the jolly boat, for Newfoundland, and the mate and 
 thirty-three passengers and crew remaining in the long boat. At 
 the time of separation, which was on Tuesday morning, the captain 
 directed his first officer, who had left the jolly boat for the long 
 boat, to endeavor to steer for the nearest point of land, which was 
 two hundred and fifty miles off ; and then having taken a list of 
 
142 SPEECH OF DAVID PAUL BROWN 
 
 those on board of the long boat, he bade them a melancholy adieu. 
 In parting, the mate begged him to take some of the passengers in- 
 to the jolly boat ; the captain refused it as a matter of impossibil- 
 ity ; the mate declared that his boat would sink, or they should 
 have to cast lots ; and the captain, clearly acquiescing in that prob- 
 able necessity, begged that it might be the last resort. 
 
 Shortly after the departure of the jolly boat, the sad series of 
 disasters commenced, which terminates in the lamentable catas- 
 trophe in which this trial originated. Nothing before this point of 
 time bears directly upon this question, although there is much in 
 the scenes referred to, calculated to touch the most callous heart. 
 
 At the time the boats parted company, or shortly after, it was 
 raining heavily ; the air was very cold, from the proximity of the 
 ice ; and the miserable, half naked passengers were benumbed by 
 exposure and hardships to which they had been subjected the pre- 
 ceding night. The long boat had leaked from the time she left the 
 ship ; the plug had, in some way, been removed, and another was 
 substituted. The second plug was lost, and a variety of expedients 
 were from time to time resorted to to supply its place, as well as to 
 stop the other leaks. Added to this, the long boat was, in her situ- 
 ation, entirely unmanageable. The testimony of the mate and cap- 
 tain, which is not contradicted by any of the witnesses, places this 
 beyond the reach of doubt. Parker, the mate, says : " I have fol- 
 lowed the sea for twenty-one years. I think the long boat was too 
 unmanageable to be saved, from the experience I have had. If 
 there had been no leak, I do not think they would have been able 
 to save themselves." Again, upon the cross-examination : " The 
 long boat being unmanageable, I thought she would have sunk the 
 first night. By unmanageable I mean they could not put her head 
 from one point to another — she was going round like a tub ; she 
 was like her own mistress — they could not keep her head any one 
 way, not even for a minute." 
 
 And Captain Harris is equally clear and explicit upon the sub- 
 ject, when he informs us : " That the long boat leaked, that they 
 attempted to bail, but could not make out anything ; they were so 
 thronged in the boat. She would not have supported one-half she 
 had in her, had there been a moderate blow, even without a leak. 
 The gunwale was about twelve inches above the surface of the sea." 
 
 Again, speaking on the same subject, the captain says : " I 
 found she was unmanageable, and that it was useless for me to 
 waste further time with them ; they could not use the oars ; they 
 
m DEFENSE OF ALEXANDER WILLIAM HOLMES. 143 
 
 eOuld not steer the boat," &c. And, further : " A very little irreg- 
 ularity in stowage would have capsized the long boat ; a moderate 
 flaw would have swamped her very quickly." 
 
 On Tuesday it rained heavily all day; the sailors were employed 
 in rowing at times ; the passengers took their turns in bailing, and 
 it is perfectly apparent from the proof, that this course continued, 
 with but little intermission or relaxation, until the dreary night 
 closed in. At this time the wind increased, the waves ran high, at 
 times dashing into the boat, depositing ice upon the already half 
 frozen passengers and crew; and at the same time calling for re- 
 newed exertion, while impairing the ability to make it. At length, 
 abandoned to despair, the water increasing in the boat, and the 
 peril of death being imminent and apparently inevitable, a cry of 
 horror is heard from various quarters, exclaiming : " We are sink- 
 ing ! We are sinking ! " Then it was that the mate, who, unmur- 
 muringly had taken his post in the very throat of death, at the 
 command of the captain, perceiving that everything was reduced to 
 a state of utter hopelessness, and unable longer to repress his emo- 
 tions, cried out : " Help me, God ! this will not do ; men, go to 
 work." The witnesses all agree in regard to these expressions of 
 the mate ; some, however, say they were thrice repeated before 
 they were obeyed, and finally the obedience of the crew was the 
 death of sixteen of the passengers, by which, alone, in all human 
 probability, the remaining seventeen passengers and nine seamen 
 were saved. 
 
 II. The impulses which led to the catastrophe 
 
 CONSIDERED. 
 
 Here let us pause, to ascertain, if we can, what were the im- 
 pulses, the secret impulses, the direct impulses that led to this de- 
 plorable catastrophe. I deny, emphatically, the correctness of the 
 doctrine of the prosecution, that if there be any doubts of the suffi- 
 ciency of the cause which led to the death, the defendant should 
 be convicted. This inverts the whole current of the philosophy of 
 criminal jurisprudence. Doubts of motive, doubts of acts, are al- 
 ways doubts of guilt ; and reasonable doubts of guilt must result 
 in acquittal. I am strengthened in this position by the indisputable 
 fact that Holmes, the prisoner, during the whole voyage, was upon 
 the kindest and most harmonious terms with all the passengers ; 
 that he preserved the same friendly relation to them after the loss 
 of the ship ; that he had periled his life more than once to preserve 
 
144 SPEECH OF DAVID PAUL BEOWN 
 
 them ; that he had literally stripped himself of his apparel for their 
 comfort : in short, his desire to save them seemed to absorb all 
 consideration of mere personal or individual safety. In these cir- 
 cumstances, to suppose anything cruel or wanton upon his part, is 
 to run counter to everything that is possible or natural. I infer, 
 therefore, that he supposed the peril to be imminent and instantane- 
 ous, or he never would have complied with the orders of the mate; 
 and that the mate who gave the order, did it under the impression 
 of direct necessity, is too obvious to require or admit of argument. 
 
 On Tuesday night, I say, about lo o'clock, the boat filled with 
 water from above and below ; the wind having risen ; the waves 
 having increased ; the ice accumulating, and the passengers shriek- 
 ing with horror at the prospect of drowning ; the final, fatal order 
 was given. It is not to be supposed that these hardy sons of the 
 sea were unnecessarily alarmed. That Holmes, particularly, was a 
 brave, resolute, and determined seaman, as well as a most humane 
 man, no one will venture to deny ; that he had but one supposable 
 object, which was to save such as might be saved, is equally clear. 
 I maintain, therefore, that the most favorable construction is to be 
 placed upon his motives ; and it is justly to be inferred that he 
 acted upon the impression that the danger was imminent, and that 
 death was inevitable to all, except by resorting to those means 
 which he actually adopted. 
 
 We are told, however, that he is not the judge. I ask, who is 
 the judge ? There is a vast deal of difference between judging in a 
 storm and judging of a representation of a storm ; and, therefore, 
 it was that I said, that, in order to a righteous determination of this 
 case, your verdict should be rendered in the midst of perils such as 
 have been described, instead of being pronounced while surrounded 
 by all the securities and sanctions of the law. I agree that if you 
 can conceive of any other inducement than the desire of self-pres- 
 ervation, and that of the majority of the passengers, inducing this 
 act, which I defy you to do, you may then imagine that that in- 
 ducement led to the act, and thereby divest the prisoner of his 
 present defense ; but even taking all the statements of the witnesses 
 for the prosecution, highly colored — I will not say discolored — as 
 they are, and torture them as you may, it is impossible for you to 
 arrive at any other conclusion than that Holmes was actuated by 
 the kindest and most generous influences ; and certainly I need not 
 say that kindness and generosity are opposed to wantonness and 
 barbarity. 
 
IN DEFENSE OF ALEXANDER WILLIAM HOLMES. 145 
 
 I repeat, then, that in these circumstances of terror men are 
 left to their honest determinations. They are not to resort to mere 
 imaginary evils as a pretext, nor are they to be supposed to resort to 
 them as a pretext. If they err in their determination, according to 
 the rules adopted by a cold system of reasoning, their error, as 
 thus detected, is not to be visited upon them as a crime. 
 
 12. Self-preservation the first law of nature. 
 
 Suppose two men, occupying perfectly friendly relations to each 
 other, should be cast away, and both seize the same plank (to me 
 the favorite illustration), and one should thrust the other off ; would 
 it not be monstrous, upon the trial of the alleged offender, that the 
 plank should be brought into court and submitted to some men of 
 approved skill, and measured and examined by square, rule and 
 compass ; its specific gravity ascertained, and the possibility of its 
 sufficiency to sustain two men discussed and decided ; and, upon 
 the basis of such calculation as that, the prisoner should be de- 
 prived of his liberty or his life ; when, if you had placed the wit- 
 nesses in his precise situation, and they had been called upon to 
 act upon a sudden emergency, they would have done precisely what 
 he did, and what every principle of natural law abundantly war- 
 rants. It is worse than idle to suppose, that in such a critical junc- 
 ture as this men are to cast lots or toss up for their lives. In such 
 peril a man makes his own law with his own right arm. 
 
 But, say the learned counsel, had the passengers been permitted 
 to remain until the morning, they might have been saved by the 
 Crescent. I answer, had they remained a single hour, they would 
 have never seen the morning ; every man, woman and child, would 
 have weltered in the coral caves of the ocean. The approach of 
 the Crescent could not, even in point of fact, have operated to al- 
 leviate their fears ; without prescience, they could have anticipated 
 no such relief. Men are to act upon the past and the present ; the 
 future belongs to God alone. 
 
 You are told, however, that the condition of the boat was not 
 hopeless; that she was on "the great high road of nations," and 
 that there was every prospect of her being picked up. The gentle- 
 man speaks of the great high road of nations over the pathless 
 ocean, as if it were the Chesapeake and Delaware canal, in which 
 two vessels could scarcely pass abreast. The " President," steamer, 
 sunk probably upon this great high road, leaving no voice to tell 
 her fate. Surrounded, as the boat was, by mountains of ice, no 
 10 
 
146 SPEECH OF DAVID PAUL BROWN 
 
 ship would probably ever have reached her, if steering in that direct 
 course. Fate itself seemed to forbid it ; nay, no vessel, says the 
 captain, would have ventured among the ice, had the position of 
 the boat been known ; as no commander, however philanthropic, 
 would have so far periled his own hopes in order to redeem the 
 lives of others. The chances of rescue were entirely too remote 
 then — ninety-nine chances against one, say the witnesses — to enter 
 into the calculation of the mate and crew, had their circumstances 
 even been such as to allow them dispassionately to reason upon the 
 subject ; but as it was, terror had assumed the throne of reason, 
 passion became judgment, and you know the sequel. 
 
 I have now briefly and imperfectly passed over that part of the 
 case upon which your decision must mainly turn ; but before I 
 close, let me direct your attention to another circumstance which 
 casts a reflected light upon the matters already adverted to. I refer 
 to the occurrence of the next day ; and this leads me to present to 
 your view another picture in this nautical gallery. 
 
 13. The survivors saved, solely through the instrumen- 
 tality OF the defendant. 
 
 On Wednesday, the 21st of April, the morning dawns ; yet the 
 sun still shrouds his face amidst shadowy clouds and darkness, from 
 the traces of horror which the past night had left. You may see, 
 gentlemen of the jury, without any extraordinary stretch of fancy, 
 on that awful morning, a small boat, in the center of the ocean, 
 with a single sailor, apparently engaged in an effort to rig out a 
 sail, baring his brow and his breast to the bleak winds that howl 
 around him, with no one to impart encouragement or aid, deserted 
 by earth and frowned upon by Heaven. That man was Holmes, 
 the prisoner at the bar. His messmates have sunk exhausted into 
 the bottom of the boat ; the mate is lost in dismay ; the passengers 
 are buried in hopelessness and horror : 
 
 Silent they sit, 
 All faculties absorbed by black despair ; 
 The world is banish'd, and the soul is dead 
 To earthly sympathy — to earthly care, 
 Brooding alone on its eternal fate, 
 And prostrate in the presence of its God. 
 
 And there, amidst this solemn and harrowing scene, the defend- 
 ant stands, toiling and struggling to the last, not for himself, but 
 
VS DEFENSE OP ALEXANDER WILLIAM HOLMES. 147 
 
 for those very persons who, having forgotten their gratitude with 
 their danger, now appear before you to pay for their own life by 
 . depriving their preserver of his. Whether this mode of discharging 
 obligations shall meet with your approval, it will remain for your 
 verdict to decide. 
 
 I have now done. I am perfectly sensible of the power of the 
 learned counsel opposed to me ; and if this case is to be determined 
 by the comparative strength or skill of the advocates, I have much 
 cause for alarm. My gallant friend who opened the conflict, ap- 
 peared like Apollo, radiant in his glory, balancing his body, adjust- 
 ing his bow, and directing his shaft — his golden pointed shaft — at the 
 very heart of his intended victim. By and by, his colleague, who 
 may be compared to Hercules, will take the field with his club, and 
 exert all his stupendous powers to demolish this defense. Still, 
 armed in the panoply of justice, I entertain no fear, for after all, 
 gentlemen of the jury, what is a giant when wrapped up in a 
 QUILT? Against all these odds, therefore, I stand firmly by the 
 side of that man, who always stood firmly by others. The destiny, 
 the worldly destiny, of the prisoner is now confided to your hands*- 
 Do with him as you would be done by. 
 
 N. B. — The prisonei's counsel requested the Court to charge, that in a state 
 of imminent and deadly peril all men are reduced to a state of nature ; that 
 when the vessel went down the voyage was at an end, and that there was then 
 no longer any distinction between the rights of sailors and passengers. The Court 
 declined so to charge. His statement of tlie law was substantially as follows : 
 The passenger stands in a position different from that of officers and seamen. It 
 is the sailor's duty to encounter the hardships and perils of the voyage. The pas- 
 senger owes no duty but submission ; he is under no obligation to protect and keep 
 the conductor in safety ; he is not bound to labor, except in cases of emergency, 
 where his services are required by unanticipated and uncommon danger. This 
 relation is not changed when the ship is lost by tempest or other dangers of the 
 sea, because impending danger cannot absolve from duty. Should the danger 
 become extreme, so as to require the sacrifice of human life, the rule of law is 
 the same. Since the passenger is not bound to labor or incur the risk of life, he 
 is not bound to sacrifice his existence to preserve the sailor. The captain and a 
 sufficient number of seamen to navigate the boat must be preserved, "for except 
 these abide in the ship all shall likewise perish ;" but supernumerary sailors have 
 no right to sacrifice the passengers to secure their own safety. In the eye of the 
 law, the positions of sailor and passenger are not equal ; nor are the relations be- 
 tween them absolved by the law of nature, or the laws of necessity, under any 
 circumstances. As between sailor and sailor, or passenger and passenger, they 
 may lawfuUy struggle with each other for the same plank which can save but 
 
14:8 SPEECH OF DAVID PAUL BEOWN. 
 
 one ; but if the passenger is on the plank, even the law of necessity justifies not 
 the sailor who takes it from him. As between those in equal relations, they 
 must have an equal chance of life when the destruction is ascertained to be cer- 
 tain, and must arrive in the near future. As, for example, when all sustenance 
 has been exhausted, and a sacrifice of one person is necessary to appease the 
 hunger of the others, the fairest mode of selection is by lot, which all writers 
 have regarded as just, being in one sense an appeal to God for the selection of 
 the victim. 
 
 The jury retired, and after sixteen hours deliberation returned a verdict of 
 guilty. The defendant was sentenced to six months imprisonment at hard labor, 
 and to pay a fine of twenty dollars. 
 
SPEECH OF WILLIAM H. SEWARD, 
 
 In Defense of the Negro, William Freeman, Indicted for 
 THE Murder of John G. Van Nest. 
 
 AT THE CAYUGA OYER AND TERMINER, HELD AT THE 
 VILLAGE OF AUBURN, N. Y., JULY TERM, 1846. 
 
 Analysis of Me. Sewahd's Speech. 
 
 z. The execntion*of a madman is murder, 
 a. The defense is interposed in behalf of 
 
 justice and humanity, for society and 
 
 mankind. 
 
 3. The preliminary verdict as to the prison- 
 
 er's sanity, imperfect and unjust. 
 
 4. The standard of intelligence by which 
 
 the prisoner must be judged. 
 
 5. Insanity, though often counterfeited, is a 
 
 perfect defense. — How the truth of the 
 plea may be tested. 
 
 6. Relations of the law towards the insane. 
 
 — Review of Kleim's case. 
 
 7. Public security does not require the sac- 
 
 rifice of the prisoner. 
 
 8. Difficulty of detecting insanity. — The 
 
 human mind incapable of complete 
 obliteration. 
 9. Insanity defined. 
 
 10. Why the prisoner could not possibly 
 
 simulate madness. 
 
 11. Insanity of the prisoner demonstrated. — 
 
 The various causes of insanity dis- 
 cussed. 
 
 12. Delusion, when Shown, incontestable 
 
 proof of insanity. — Illustrations of 
 the subject. 
 
 13. The circumstances of the murder tested 
 
 by scientific rules. 
 
 14. The personal appearance and demeanor 
 
 of the prisoner the strongest proof of 
 his insanity. 
 
 William Freeman was born at Auburn, in the county of Cayuga, in the year 
 1824, When he arrived at the age of sixteen, he was accused of having stolen 
 a horse belonging to a Mrs. Godfrey. He stoutly protested his innocence, and 
 after an examination before a magistrate, was discharged. The horse was after- 
 wards found. It had been purchased, it was said, from a negro answering the 
 description of one Jack Furman, who was accordingly arrested. The latter, 
 knowing that Freeman had been previously suspected of the offense, now re- 
 newed the charge against him, and offered to implicate Freeman, i^rovided he 
 should himself be released. Freeman was convicted on Furman's evidence, and 
 the latter, the real thief, was discharged as a reward for his perjury; for it after- 
 wards became clear that Freeman was at another place the night the horse was 
 stolen. The conviction affected Freeman's mind. He could not comprehend 
 why he should be shut up in prison for no offense. He pleaded his innocence, 
 and begged in vain to be released, but received no sympathy. His patience 
 finally became exhausted ; he grew restive and quarrelsome; and met only with 
 ill-treatment and abuse. One day, his keeper, with whom he had a difficulty, 
 struck him a terrible blow on the temple with a heavy basswood board, from the 
 effects of which he never recovered. To use his own words, "It knocked all 
 the hearing off so that it never came back.'* He became deaf, grew sullen, 
 
 [149] 
 
150 SPEECH OF WILLIAM H. SEWARD 
 
 downcast and morose. A post mortem examination revealed the fact that the 
 drum of his left ear had been broken, and his left temporal bone was carious 
 and diseased. He was considered deranged before his release. He brooded 
 over his unjust imprisonment, and talked of nothing but getting his pay for the 
 time he had spent in prison. The mania grew upon him, and when he was 
 finally discharged at the expiration of his term, he applied, on several occasions, 
 for warrants against persons in order, he said, to get " his pay," but his language 
 was incoherent and broken; and he grew weak and foolish. 
 
 John G. Van Nest, a wealthy and respectable farmer, lived with his family 
 in the town of Fleming, on the western border of the Owasco Lake, about three 
 and a half miles south of the village of Auburn. At about half past nine o'clock 
 on the evening of the I2th of March, 1846, Mr. Van Nest, who was about to re- 
 tire, heard proceeding from the back yard the shrieks of his wife. He opened 
 the door, and almost instantly received a fatal wound from the hand of an assassin, 
 and died without a struggle. Helen Holmes, a domestic, in another apartment, 
 hearing the noise, opened the door, when Mrs. Van Nest, pale, haggard and 
 covered with blood, staggered into the house, fell upon the floor, and expired. 
 Mrs. Wyckoff, a member of the family, in her attempt to escape, was struck down 
 by the murderer, who had, by this time, entered the dwelling. The wretch, in 
 passing, slew an infant sleeping in the room, but, in attempting to ascend the 
 stairs, was confronted by Mr. Van Arsdale, a farm laborer employed by Mr. Van 
 Nest, who succeeded in driving his assailant from the premises, though he re- 
 ceived a terrible wound in the encounter. The murderer stole a horse close by 
 and made good his escape. Before he had gone far, he stabbed the animal, pro- 
 cured another, and continued his flight into Oswego county, and was captured the 
 next day, a distance of forty miles from the scene of the tragedy. The assassin 
 was William Freeman. 
 
 The conduct of Mr. Seward, in undertaking the defense of Freeman, when 
 he was arraigned for the murder, was an exhibition of moral courage almost 
 without a parallel. The crime charged was terrible and appalling, and wrought 
 upon the public mind to such a degree, it was almost a miracle how the pris- 
 oner escaped swift destruction at the hands of the mob. He was without 
 money and without friends. He sprung from a race socially and politically de- 
 based. His father had been a slave, and the son was a person of idle and in- 
 temperate habits, and, though only twenty-three, had spent five years of his life 
 in State prison. Yet Mr. Seward was convinced that the poor wretch was, at 
 the time of the offense, destitute of reason, and suffering from dementia ap- 
 proaching to idiocy. He believed the execution of such a being would be mur- 
 der, and he determined to spare the community the disgrace of hanging a mad- 
 man, even at the cost of his own popularity. The storm of public indignation 
 beat so fiercely about him, that at one time, fears were entertained for his per- 
 sonal safety. In a letter to a friend, he thus referred to the subject: " There is 
 a busy war around me to drive me from securing a fair trial for the negro Free- 
 man. . . . No priest (except one Universalist), no Levite, no lawyer, no 
 man, no woman, has visited him. He is deaf, deserted, ignorant, and his con- 
 duct is unexplainable on any principle of sanity. It is natural he should turn to 
 me to defend him. If he does, I shall do so. This will raise a storm of preju- 
 dice and passion which will try the fortitude of my friends. But I shall do my 
 duty. I care not whether I am to be ever forgiven for it or not." 
 
IN DEFENSE OF "WILLIAM FREEMAN. 151 
 
 In addressing the jury upon the preliminary trial, to test the question as to 
 the prisoner's sanity, he said: "In due time, gentlemen of the jury, when I 
 shall have paid the debt of nature, my remains will rest here in your midst, 
 with those of my kindred and neighbors. It is very possible they may be un- 
 honored, neglected, spumed ! But perhaps, years hence, when the passion ahd 
 excitement which now agitate the community shall have passed away, some 
 wandering stranger, some lone exile, some Indian, some negro, may erect over 
 them an humble stone, and thereon this epitaph, He was faithful." 
 
 On the 1 8th of May, 1846, indictments were found against Freeman, at the 
 General Sessions of Cayuga county, which were, under the statute, sent to the 
 Oyer and Terminer on the ist of June following. When about to be arraigned, 
 Mr. Seward voluntarily interposed in his behalf a plea of insanity, upon which 
 issue was joined, and on the 24th of June the Court directed the question to be 
 tried by a jury. After quite a lengthy trial, on the 5th of July the following 
 verdict was rendered i " We find the prisoner sufficiently sane in mind and 
 memory to distinguish between right and wrong." Mr. Seward excepted to the 
 verdict, and requested the Court to instruct the jury to find whether the prisoner 
 was sane or insane, which was refused. The next day (Monday), July 6th, the 
 prisoner was brought up for trial. Mr. Seward objected to his being required to 
 plead, because the verdict on the preliminary trial did not determine the question 
 as to the prisoner's sanity. Objection overruled. When asked if he demanded 
 a trial, the prisoner answered "no." The Court, however, directed a plea of 
 "not guilty" to be entered for him, and ordered the trial to proceed. Mr. Sew- 
 ard volunteered to remain counsel for the prisoner until his death. He con- 
 ducted the case with great ability, and called many witnesses to establish his 
 only defense, insanity. The following counsel appeared on the trial. For the 
 people, John Van Buren (Attorney-General) and Luman Sherwood. For the 
 prisoner, William H. Seward, David Wright and Christopher Morgan. Hon. 
 Samuel Blatchford was associated with Mr. Seward in the preliminary trial. 
 
 In closing the case, in behalf of the prisoner, Mr. Seward addressed to the 
 jury the following powerful appeal : 
 
 May it please the Court, — Gentlemen of the Jury : — " Thou 
 shalt not kill," and, "Whoso sheddeth man's blood by man shall 
 his blood be shed," are laws found in the code of that people who, 
 although dispersed and distracted, trace their history to the crea- 
 tion; a history which records that murder was the first of human 
 crimes. 
 
 The first of these precepts constitutes a tenth part of the juris- 
 prudence which God saw fit to establish, at an early period, for the 
 government of all mankind throughout all generations. The latter, 
 of less universal obligation, is still retained in our system, although 
 other States as intelligent and refined, as secure and peaceful, have 
 substituted for it the more benign principle that good shall be re- 
 turned for evil. I yield implicit submission to this law, and ac- 
 knowledge the justice of its penalty, and the duty of courts and 
 juries to give it effect. 
 
152 SPEECH OF WILLIAM H. SEWARD 
 
 In this case, if the prisoner be guilty of murder, I do not ask 
 remission of punishment. If he be guilty, never was murderer more 
 guilty. He has murdered, not only John G. Van Nest, but his 
 hands are reeking with the blood of other, and numerous, and even 
 more pitiable victims. The slaying of Van Nest, if a crime at all, 
 was the cowardly crime of assassination. John G. Van Nest was 
 a just, upright, virtuous man, of middle age, of grave and modest 
 demeanor, distinguished by especial marks of the respect and es- 
 teem of his fellow citizens. On his arm leaned a confiding wife, 
 and they supported, on the one side, children to whom they had 
 given being, and, on the other, aged and venerable parents, from 
 whom they had derived existence. The assassination of such a 
 man was an atrocious crime, but the murderer, with more than 
 Savage refinement, immolated on the same altar, in the same hour, 
 a venerable and virtuous matron of more than three-score years, 
 and her daughter, wife of Van Nest, mother of an unborn infant. 
 Nor was this all. Providence, which, for its own mysterious pur- 
 poses, permitted these dreadful crimes, in mercy suffered the same* 
 arm to be raised against the sleeping orphan child of the butchered 
 parents, and received it into Heaven. A whole family, just, gentle 
 and pure, were thus, in their own house, in the night time, without 
 any provocation, without one moment's warning, sent by the mur- 
 derer to join the assembly of the just; and even the laboring man, 
 sojourning within their gates, received the fatal blade into his 
 breast, and survives through the mercy, not of the murderer, but of 
 God. 
 
 For William Freeman, as a murderer, I have no commission to 
 speak. If he had silver and gold accumulated with the frugality 
 of Croesus, and should pour it all at my feet, I would not stand an 
 hour between him and the avenger. But for the innocent, it is my 
 right, my duty to speak. If this sea of blood was innocently shed, 
 then it is my duty to stand beside him until his steps lose their 
 hold upon the scaffold. 
 
 I. The execution of a madman is murder. 
 
 " Thou shalt not kill " is a commandment addressed, not to him 
 alone, but to me, to you, to the Court, and to the whole community. 
 There are no exceptions from that commandment, at least in civil 
 life, save those of self-defense, and capital punishment for crimes 
 in the due and just administration of the law. There is not only a 
 question, then, whether the prisoner has shed the blood of his fel- 
 low man, but the question whether we shall unlawfully shed his 
 
IN DEFENSE OF WILLIAM FREEMAN. 153 
 
 blood. I should be guilty of murder if, in my present relation, I 
 saw the executioner waiting for an insane man and failed to say, or 
 failed to do in his behalf, all that my ability allowed. I think it 
 has been proved of the prisoner at the bar, that during all this long 
 and tedious trial, he has had no sleepless nights, and that even in 
 the day time, when he retires from these halls to his lonely cell, he 
 sinks to rest, like a wearied child, on the stone floor, and quietly 
 slumbers till aroused by the constable with his staff, to appear 
 again before the jury. His counsel enjoy no such repose. Their 
 thoughts by day and their dreams by night are filled with op- 
 pressive apprehensions that, through their inability or neglect, he 
 may be condemned. 
 
 I am arraigned before you for undue manifestations of zeal and 
 excitement. My answer to all such charges shall be brief. When 
 this cause shall have been committed to you, I shall be happy in- 
 deed, if it shall appear that my only error has been, that I have 
 felt too much, thought too intensely, or acted too faithfully. 
 
 If my error would thus be criminal, how great would yours be 
 if you should render an unjust verdict ? Only four months have 
 elapsed since an outraged people, distrustful of judicial redress, 
 doomed the prisoner to immediate death. Some of you have 
 confessed that you approved that lawless sentence. All men 
 now rejoice that the prisoner was saved for this solemn trial. 
 But this trial would be as criminal as that precipitate sentence if, 
 through any willful fault or prejudice of yours, it should prove but 
 a mockery of justice. If any prejudice of witnesses, or the iinagi- 
 nation of counsel, or any ill-timed jest shall at any time have 
 diverted your attention; or if any prejudgment which you may have 
 brought into the jury box, or any cowardly fear of popular opinion 
 shall have operated to cause you to deny to the prisoner that dis- 
 passionate consideration of his case which the laws of God and 
 man exact of you, and if, owing to such an error, this wretched 
 man fall from among the living, what will be your crime ? You 
 have violated the commandment, " Thou shalt not kill." It is not 
 the form or letter of the trial by jury that authorizes you to send 
 your fellow man to his dread account, but it is the spirit that sanc- 
 tifies that glorious institution; and if, through pride, passion, 
 timidity, weakness, or any cause, you deny the prisoner one iota of 
 all the defense to which he is entitled by the law of the land, you 
 yourselves, whatever his guilt may be, will have broken the com- 
 mandment, " Thou shalt do no murder." 
 
151 SPEECH OF WILLIAM H. SEWARD 
 
 There is not a corrupt or prejudiced witness, there is not a 
 thoughtless or heedless witness, who has testified what was not true 
 in spirit, or what was not wholly true, or who has suppressed any 
 truth, who has not offended against the same injunction. 
 
 Nor is the Court itself above the commandment. If these 
 judges have been influenced by the excitement which has brought 
 this vast assemblage here, and under such influence, or under any 
 other influence, have committed voluntary error, and have denied 
 to the prisoner, or shall hereafter deny to him, the benefit of any 
 fact or any principle of law, then this Court will have to answer for 
 the deep transgression, at the bar at which we all shall meet again. 
 When we appear there, none of us can plead that we were insane 
 and knew not what we did; and by just so much as our ability and 
 knowledge exceed those of this wretch, whom the world regards 
 as a fiend in human shape, will our guilt exceed his, if we be • 
 guilty. 
 
 2. The defense is interposed in behalf of justice and 
 humanity, for society and mankind. 
 
 I plead not for a murderer. I have no inducement, no motive 
 to do so. I have addressed my fellow-citizens in many various 
 relations, when rewards of wealth and fame awaited me. I have 
 been cheered on other occasions by manifestations of popular ap- 
 probation and sympathy; and where there was no such encourage- 
 ment, I had at least the gratitude of him whose cause I defended. 
 But I speak now in the hearing of a people who have prejudged 
 the prisoner, and condemned me for pleading in his behalf. He is 
 a convict, a pauper, a negro, without intellect, sense, or emotion. 
 My child, with an affectionate smile, disarms my care-worn face 
 of its frown whenever I cross my threshold. The beggar in the 
 street obliges me to give, because he says " God bless you " as I 
 pass. My dog caresses me with fondness if I will but smile on 
 him. My horse recognizes me when I fill his manger. But what 
 reward, what gratitude, what sympathy and affection can I expect 
 here ? There the prisoner sits. Look at him. Look at the as- 
 semblage around you. Listen to their ill-suppressed censures and 
 their excited fears, and tell me where, among my neighbors or my 
 fellow men, where, even in his heart, I can expect to find the senti- 
 ment, the. thought, not to say of reward or of acknowledgment, but 
 even of recognition. I sat here two weeks during the preliminary 
 trial. I stood here, between the prisoner and the jury, nine hours. 
 
, IN DEFENSE OF WILLUM FEEEMAlf. 155 
 
 and pleaded for the wretch that he was- insane and did not even 
 know he was on trial; and, when all was done, the jury thought, at 
 least eleven of them thought, that I had been deceiving them, or 
 was self-deceived. They read signs of intelligence in his idiotic 
 smile, and of cunning and malice in his stolid insensibility. They 
 rendered a verdict that he was sane enough to be tried — a con- 
 temptable compromise verdict in a capital case; and then they 
 looked on, with what emotions God and they only know, upon his 
 arraignment. The district attorney, speaking in his adder ear, 
 bade him rise, and, reading to him one indictment, asked him 
 whether he wanted a trial, and the poor fool answered no. Have 
 you counsel ? No. And they went through the same mockery, 
 the prisoner giving the same answers, until a third indictment was 
 thundered in his ears, and he stood before the Court silent, motion- 
 less, and bewildered. Gentlemen, you may think of this evidence 
 what you please, bring in what verdict you can, but I asseverate, 
 before Heaven and you, that, to the best of my knowledge and be- 
 lief, the prisoner at the bar does not, at this moment, know why it 
 is that my shadow falls on you instead of his own. 
 
 I speak with all sincerity and earnestness, not because I ex- 
 pect my opinion to have weight, but I would disarm the injurious 
 impression that I am speaking merely as a lawyer speaks for his 
 client. I am not the prisoner's lawyer. I am, indeed, a volunteer 
 in his behalf, but society and mankind have the deepest interest at 
 stake. I am the lawyer for society, for mankind, shocked, beyond 
 the power of expression, at the scene I have witnessed here of try- 
 ing a maniac as a malefactor. In this, almost the first of such 
 causes I have ever seen, the last I hope that I shall ever see, I wish 
 that I could perform my duty with more effect. If I suffered my- 
 self to look at the volumes of testimony through which I have to 
 pass, to remember my entire want of preparation, the pressure of 
 time, and my wasted strength and energies, I should despair of ac- 
 quitting myself as you and all good men will hereafter desire that 
 I should have performed so sacred a duty. But, in the cause of 
 humanity, we are encouraged to hope for divine assistance where 
 human powers are weak. As you all know, I provided for my way 
 through these trials, neither gold nor silver in my purse, nor scrip; 
 and when I could not think before hand what I would say, I re- 
 membered that it was said to those who had a beneficent commis- 
 sion, that they should take no thought what they should say when 
 brought before the magistrate, for, in that same hour, it should be 
 
156 SPEECH OP WILLIAM H. SEWARD . 
 
 given them what they should say, and it should not be they who 
 should speak, but the spirit of their Father speaking in them. 
 
 You have promised, gentlemen, to be impartial. You will find 
 it more difficult than you have supposed. Our minds are liable to 
 be swayed by temporary influences, and above all, by the influences 
 of masses around us. At every stage of this trial, your attention 
 has been diverted, as it will be hereafter, from the only question 
 which it involves, by the eloquence of the counsel for the people, 
 reminding you of the slaughter of that helpless and innocent 
 family, and of the danger to which society is exposed by relaxing 
 the rigor of the laws. Indignation against crime, and apprehen- 
 sions of its recurrence, are elements on which public justice relies 
 for the execution of the law. You must indulge that indignation. 
 You cannot dismiss such apprehensions. You will, in common 
 with your fellow-citizens, deplore the destruction of so many pre- 
 cious lives, and sympathize with mourning relations and friends. 
 Such sentiments cannot be censured when operating upon the 
 community at large, but they are deeply to be deplored when they 
 are manifested in the jury box. 
 
 3. The preliminary verdict as to the prisoner's sanity, 
 imperfect and unjust. 
 
 Then, again, a portion of this issue has been tried, imperfectly 
 tried, unjustly tried, already. A jury of twelve men, you are told, 
 have already rendered their verdict that the prisoner is now sane. 
 The deference which right-minded men yield to the opinions of 
 others, the timidity which weak men feel in dissenting from others, 
 may tempt you to surrender your own independence. I warn you 
 that that verdict is a reed which will pierce you through and through. 
 That jury was selected without peremptory challenge. Many of 
 the jurors entered the panel with settled opinions that the prisoner 
 was not only guilty of the homicide, but sane, and all might have 
 entertained such opinions for all that the prisoner could do. It 
 was a verdict founded on such evidence as could be hastily collected 
 in a community where it required moral courage to testify for the 
 accused. Testimony was excluded upon frivolous and unjust pre- 
 tenses. The cause was submitted to the jury on the fourth of 
 July, and under circumstances calculated to convey a malicious 
 and unjust spirit into the jury box. It was a strange celebration. 
 The dawn of the day of independence was not greeted with can- 
 non or bells. No lengthened procession was seen in our streets, 
 
IN DEFENSE OF "WILLIAM FREEMAN. 157 
 
 nor were the voices of orators heard in our public halls. An in- 
 tense excitement brought a vast multitude here, complaining of the 
 delay and the expense of what was deemed an unnecessary trial, 
 and demanding the sacrifice of a victim who had been spared too 
 long already. For hours that assemblage was roused and excited 
 by denunciations of the prisoner, and ridicule of his deafness, his 
 ignorance, and his imbecility. Before the jury retired, the Court 
 was informed that they were ready to render the verdict required. 
 One juror, however, hesitated. The next day was the Sabbath. 
 The jury were called, and the Court remonstrated with the dissen- 
 tient, and pressed the necessity of a verdict. That juror gave way 
 at last, and the bell which summoned our citizens to church for the 
 evening service was the signal for the discharge of the jury, be- 
 cause they had agreed. Even thus a legal verdict could not be ex- 
 torted. The eleven jurors, doubtless under an intimation from 
 the Court, compromised with the twelfth, and a verdict was ren- 
 dered, not in the language of the law, that the prisoner was " not 
 insane," but that he was " sufficiently sane, in mind and memory, 
 to distinguish between right and wrong;" a verdict which implied 
 that the prisoner was at X^d&t partially insane, was diseased in other 
 faculties besides the memory, and partially diseased in that, and 
 that, although he had mind and memory to distinguish between 
 right and wrong in the abstract, he had not reason and under- 
 standing and will to regulate his conduct according to that distinc- 
 tion; in short, a verdict by which the jury unworthily evaded the 
 question submitted to them, and cast upon the Court a responsi- 
 bility which it had no right to assume, but which it did neverthe- 
 less assume, in violation of the law. That twelfth juror was after- 
 wards drawn as a juror in this cause, and was challenged by the 
 counsel for the people for partiality to the prisoner, and the chal- 
 lenge was sustained by the Court, because — although he had, as the 
 Court says, pronounced by his verdict that the prisoner was sane — 
 he then declared that he believed the prisoner insane, and would die 
 in the jury box before he would render a verdict that he was sane. 
 Last and chief of all objections to that verdict now, it has been 
 neither pleaded nor proved here, and therefore, is not in evidence 
 before you. I trust, then, that you will dismiss, to the contempt 
 of mankind that jury and their verdict, thus equivocating upon 
 law and science, health and disease, crime and innocence. 
 
158 SPEECH OF WILLIAM H. SEWARD 
 
 4. The standard of intelligence by which the prisoner 
 
 MUST be judged. 
 
 Again. An inferior standard of intelligence has been set up 
 here as the standard of the negro race, and a false one as to the 
 standard of the Asiatic race. The prisoner traces a divided line- 
 age. On the paternal side his ancestry is lost among the tiger 
 hunters on the gold coast of Africa, while his mother constitutes a 
 portion of the small remnant of the Narragansett tribe. Hence, it 
 is held, that the prisoner's intellect is to be compared with the 
 depreciating standard of the African, and his passions with the 
 violent and ferocious character erroneously imputed to the 
 aborigines. Indications of manifest derangement, or at least of 
 imbecility, approaching to idiocy, are therefore set aside, on the 
 ground that they harmonize with the legitimate but degraded 
 characteristics of the races from which he is descended. You, 
 gentlemen, have, or ought to have, lifted up your souls above the 
 bondage of prejudices so narrow and so mean as these. The color 
 of the prisoner's skin and the form of his features are not im- 
 pressed upon the spiritual, immortal mind which works beneath. 
 In spite of human pride, he is still your brother, and mine, in form 
 and color accepted and approved by his Father, and yours, and 
 mine, and bears equally with us the proudest inheritance of our 
 race — the image of our Maker. Hold him then to be a man. 
 Exact of him all the responsibilities which should be exacted under 
 like circumstances if he belonged to the Anglo-Saxon race, and 
 make for him all the allowances which, under like circumstances, 
 you would expect for yourselves. 
 
 5. Insanity, though often counterfeited, is a perfect 
 defense. — how the truth of the plea may be tested. 
 
 The prisoner was obliged — no, his counsel were obliged, by law, 
 to accept the plea of not guilty, which the Court directed to be en- 
 tered in his behalf. That plea denies the homicide. If the law 
 had allowed it, we would gladly have admitted all the murders of 
 , which the prisoner was accused, and have admitted them to be as 
 unprovoked as they were cruel, and have gone directly before you 
 on the only defense upon which we have insisted, or shall insist, or 
 could insist, that he is irresponsible, because he was and is insane. 
 
 We labor, not only under these difficulties, but under the fur- 
 ther embarrassment that the plea of insanity is universally sus- 
 
IN DEFENSE OF WILLIAM FREEMAN. 159 
 
 pected. It is the last subterfuge of the guilty, and so, is too often 
 abused. But, however obnoxious to suspicion this defense is, 
 there have been cases where it was true; and when true, it is, of all 
 pleas, the most perfect and complete defense that can be offered in 
 any human tribunal. Our Saviour forgave his judges because "they 
 knew not what they did." The insane man who has committed a 
 crime knew not what he did. If this being, dyed with human 
 blood, be insane, you and I, and even the children of our affec- 
 tions, are not more guiltless than he. 
 
 Is there reason to indulge a suspicion of fraud here ? Look at 
 this stupid, senseless fool, almost as inanimate as the clay moulded 
 in the brick-yard, and say, if you dare, that you are afraid of being 
 deceived by him. Look at me. You all know me. Am I a man 
 to engage in a conspiracy to deceive you and defraud justice? 
 Look on us all, for although I began the defense of this cause 
 alone, thanks to the generosity, to the magnanimity of an enlight- 
 ened profession, I come out strong in the assistance of counsel 
 never before attached to me in any relation, but strongly grappled 
 to me now, by these new and endearing ties. Is any one of us a 
 man to be suspected ? The testimony is closed. Look through it 
 all. Can suspicion or malice find in it any ground to accuse us oif 
 a plot to set up a false and fabricated defense ? I will give you, . 
 gentlemen, a key to every case where insanity has been wrongfully 
 and yet successfully maintained. Gold, influence, popular favor, 
 popular sympathy, raise that defense and make it impregnable. 
 But you have never seen a poor, worthless, spiritless, degraded 
 negro like this acquitted wrongfully. I wish this trial may prove 
 that such an one can be acquitted rightfully. The danger lies 
 here. There is not a white' man or white woman who would not 
 have been dismissed long since from the perils of such a prosecu- 
 tion, if it had only been proved that the offender was so ignorant 
 and so brutalized as not to understand that the defense of insanity 
 had been interposed. 
 
 If he feign, who has trained the idiot to perform this highest 
 and most difficult of all intellectual achievements ? Is it I ? 
 Shakspeare and Cervantes only, of all mankind, have conceived 
 and perfected a counterfeit of insanity. Is it I ? Why is not the 
 imposition exposed, to my discomfiture and the prisoner's ruin ? 
 Where was it done ? Was it in public, here ? Was it in secret, in 
 the jail? His deafened ears could not hear me there, unless I 
 were overheard by other prisoners, by jailers, constables, the sher- 
 
160 SPEECH OF WILLIAM H. SEWARD 
 
 iff, and a cloud of witnesses. Who has the keys of the jail ? Have 
 I ? You have had sheriff, jailer, and the whole police upon the 
 stand. Could none of these witnesses reveal our plot ? Were there 
 none to watch and report the abuse ? When they tell you, or in- 
 _sinuate, gentlemen, that this man has been taught to feign insanity, 
 they discredit themselves, as did the Roman sentinels, who, ap- 
 pointed to guard the sepulchre of our Saviour, said, in excuse of the 
 broken seal, that while they slept men came and rolled away the 
 stone. 
 
 6. Relations of the law towards the insane. — Review 
 OF Kleim's case. 
 
 I advance towards the merits of the cause. The law which it 
 involves will be found in the case of KJeim, tried for murder in 
 1844, before Judge Edmonds, of the first circuit, in the city of 
 New York, reported in the Journal of Insanity for January, 1846, 
 at page 261. I read from the report of the judge's charge: 
 
 " He told the jury that there was no doubt that Kleim had been 
 guilty of the killing imputed to him, and that under circumstances 
 of atrocity and deliberation which were calculated to excite in their 
 minds strong feelings of indignation against him. But they must 
 beware how they permitted such feelings to influence their judg- 
 ment. They must bear in mind that the object of punishment was 
 not vengeance, but reformation; not to extort from a man an 
 atonement for the life which he cannot give, but, by the terror of 
 the example, to deter others from the like offenses, and that 
 nothing was so likely to destroy the public confidence in the ad- 
 ministration of criminal justice, as the infliction of its pains upon 
 one whom Heaven has already afflicted with the awful malady of 
 insanity." 
 
 These words deserve to be written in letters of gold upon tab- 
 lets of marble. Their reason and philosophy are apparent. If 
 you send the lunatic to the gallows, society will be shocked by 
 your inhumanity, and the advocates for the abolition of capital 
 punishment will find their most effective argument in the fact that 
 a jury of the country, through ignorance, or passion, or prejudice, 
 have mistaken a madman for a criminal. 
 
 The report of Judge Edmonds' charge proceeds: "It was true 
 that the plea of insanity was sometimes adopted as a cloak for 
 crime, yet it was unfortunately equally true, that many more per- 
 sons were unjustly convicted, to whom their unquestioned insanity 
 
IN DEFENSE OF WILLIAM FREEMAN. 161 
 
 ought to have been an unfailing protection." This judicial answer 
 to the argument that jurors are too likely to be swayed by the plea 
 of insanity, is perfect and complete. Judge Edmonds further 
 charged the jury, " that it was by no means an easy matter to dis- 
 cover or define the line of demarkation where sanity ended and 
 insanity began," and that it was often " difficult for those most ex- 
 pert in the disease to detect or explain its beginning, extent or 
 duration; that the classifications of the disease were in a great 
 measure arbitrary, and the jury were not obliged to bring the case 
 of the prisoner within any one of the classes, because the symptoms 
 of the different kinds were continually mingling with each other.'' 
 
 The application of this rule will render the present case per- 
 fectly clear, because it appears from the evidence that the prisoner 
 is laboring under a combination of mania or excited madness, with 
 dementia or decay of the mind. Judge Edmonds furnishes you 
 with a balance to weigh the testimony in the case in these words: 
 ' It was important that the jury should understand how much 
 weight was to be given to the opinions of medical witnesses. The 
 opinions of men who Kad devoted themselves to the study of 
 insanity as a distinct department of medical science, and studied 
 recent improvements and discoveries, especially when to that 
 knowledge they added the experience of personal care of the in- 
 sane, could never be safely disregarded by courts and juries; and, 
 on the other hand, the opinions of physicians who had devoted 
 their particular attention to disease were not of any more value 
 than the opinions of common persons." 
 
 This charge of Judge Edmonds furnishes a lamp to guide your 
 feet, and throws a blazing light on your path. He acknowledges, 
 in the first place, with distinguished independence for a judge and 
 a lawyer, that " the law, in its slow and cautious progress, still lags 
 far behind the advance of true knowledge. An insane person is 
 one who, at the time of committing the act, labored under such a 
 defect of reason as not to know the nature and quality of the act 
 he was doing, or if he did know it, did not know he was doing 
 what was wrong; and the question is not whether the accused 
 knew the difference between right and wrong generally, but whether 
 he knew the difference between right and wrong in regard to the 
 very act with which he is charged. If some controlling disease 
 was, in truth, the acting power within him, which he could not 
 resist, or if he had not a sufficient use of his reason to control the 
 passions which prompted him, he is not responsible. But it must 
 11 
 
162 SPEECH OF WILLIAM H. SEWARD 
 
 be an absolute dispossession of the free and natural agency of the 
 mind. In the glowing but just language of Erskine, it is not 
 necessary that reason should be hurled from her seat; it is enough 
 ■that distraction sits down beside her, holds her trembling in her 
 iplace, and frightens her from her propriety." 
 
 , Judge Edmonds proceeded : " And it must be borne in mind 
 that the moral as well as intellectual faculties may be so disordered 
 by the disease as to deprive the mind of its controlling and direct- 
 ing power. In order then, to establish a crime, a man must have 
 memory and intelligence to know that the act he is about to com- 
 niit is wrong; to remember and understand, that if he commit the 
 act he will be subject to punishment; and reason and will to en- 
 able him to compare and choose between the supposed advantage 
 or gratification to be obtained by the criminal act, and the im- 
 munity from punishment which he will secure by abstaining from 
 it. If, on the other hand, he have not intelligence enough 
 to have a criminal intent and purpose, and if his moral or 
 intellectual powers are either so deficient that he has not suffi- 
 cient will, conscience or controlling mental power, or if, through 
 the overwhelming violence of mental disease, his intellectual 
 power is for the time obliterated, he is not a responsible moral 
 agent." The learned judge recommended to the jury, " as aids 
 to a just conclusion, to consider the extraordinary and unac- 
 countable alteration in the prisoner's whole mode of life; the in- 
 adequacy between the slightness of the cause and the magnitude of 
 the offense; the recluse and ascetic life which he has led; his invin- 
 cible repugnance to all intercourse with his fellow creatures; his 
 behavior and conduct at the time the act was done, and subse- 
 quently during his confinement; and the stolid indifference which 
 he alone had manifested during the whole progress of a trial upon 
 which his life or death depended." 
 
 Kleim was acquitted and sent, according to law, to the State 
 Lunatic Asylum at Utica. The superintendent of the asylum, in 
 a note to this report, states that Kleim is uniformly mild and 
 pleasant; has not asked a question, or spoken or learned the name 
 of any one; seems very imperfectly to recollect the murder or the 
 trial; says he was put in prison; does not know what for; and was 
 taken to the court, but had no trial; that his bodily health is good, 
 but that his mind is nearly gone — quite demented. 
 
 You cannot fail, gentlemen of the jury, to remark the extraordi- 
 nary similarity between the case of Kleim, as indicated in the 
 
m DEFENSE OF "WILLIAM FREEMAN. 163 
 
 charge of Judge Edmonds, and that of the pHsoner at the bar. If 
 I were sure you would receive such a charge, and be guided by it, 
 I might rest here, and defy the eloquence of the attorney-general. 
 The proof of insanity in this case is of the same nature, and the 
 disease in the same form as in the case of Kleim. The only differ- 
 ence is, that the evidence here is a thousand times more conclusive. 
 But Judge Edmonds does not preside here. Kleim was a white 
 man. Freeman is a negro. Kleim set fire to a house, to burn only 
 a poor obscure woman and her child. Here the madman destroyed 
 a whole family, rich, powerful, honored, respected and beloved. 
 Kleim was tried in the city of New York, and the community en- 
 gaged in their multiplied avocations, and heedless of a crime not 
 infrequent there, and occurring in humble life, did not over- 
 awe and intimidate the Court, the jury, or the witnesses. Here 
 a panic has paralyzed humanity. No man or woman feels safe 
 until the maniac shall be extirpated from the face of the earth. 
 Kleim had the sympathies of men and women, willing witnesses, 
 advocates sustained and encouraged by popular favor, and an 
 impartial jury. Freeman is already condemned by the tribunal 
 of public opinion, and has reluctant and timorous witnesses, 
 counsel laboring under embarrassments plainly to be seen, and a 
 jury whose impartiality is yet to be proved. 
 
 7. Public security does not require the sacrifice of the 
 
 prisoner. 
 
 The might that slumbered in this maniac's arm was exhausted 
 in the paroxysm which impelled him to his dreadful deeds. Yet, 
 an excited community, whose terror has not yet culminated, de- 
 clare, that whether sane or insane, he must be executed, to give 
 safety to your dwellings and theirs. I must needs then tell you the 
 law, which will disarm such cowardly fear. If you acquit the 
 prisoner, he cannot go at large, but must be committed to jail, to 
 be tried by another jury, for a second murder. Your dwellings, 
 therefore, will be safe. If such, a jury find him sane, he will then be 
 sent to his fearful account, and your dwellings will be safe. If ac- 
 quitted, he will be remanded to jail, to await a third trial, and your 
 dwellings will be safe. If that jury convict, he will then be execu- 
 ted, and your dwellings will be safe. If they acquit, he will still be 
 detained, to answer a fourth murder, and your dwellings will be 
 safe. Whether the fourth jury acquit or convict, your dwellings 
 will still be safe; for, if they convict, he will then be cut off, and if 
 
164 SPEECH OF WILLIAM H. SEWARD 
 
 they acquit, he must, according to the law of the land, be sent to 
 the lunatic asylum, there to be confined for life. You may not slay 
 him then for the public security, because the public security does 
 not demand the sacrifice. No security, for home or hearth, can be 
 obtained by judicial murder. God will abandon him, who, through 
 cowardly fear, becomes such a murderer. / also stand for the 
 security of the homes and hearths of my fellow citizens, and have 
 as deep an interest, and as deep a stake as any one of them. There 
 are my home and hearth exposed to every danger that can threaten 
 theirs, but I know that security cannot exist for any, if feeble man 
 undertakes to correct the decrees of Providence. 
 
 8. Difficulty of detecting insanity. — The human mind 
 incapable of complete obliteration. 
 
 The counsel for the people admit, in the abstract, that insanity 
 excuses crime, but they insist on rules for the regulation of insanity, 
 to which that disease can never conform itself. Dr. Fosgate testi- 
 fied that the prisoner was insane. He was asked by the attorney- 
 general, "what if the law, nevertheless, hold to be criminal that same 
 state of mind which you pronounce insanity ? " He answered with 
 high intelligence and great moral firmness, " The law cannot alter 
 the constitution of man as it was given him by his Maker." In- 
 sanity, such as the counsel for the people would tolerate, never did 
 and never will exist. They bring its definition from Coke, Black- 
 stone and Hale, and it requires that by reason either of natural 
 infirmity or of disease, the wretched subject shall be. unable to 
 count twenty, shall not know his father or mother, and shall have 
 no more reason or thought than a brute beast. 
 
 According to the testimony of Dr. Spencer, and the claim of 
 the attorney-general, an individual is not insane if you find any 
 traces or glimmerings of the several faculties of the human mind, 
 or of the more important ones. Dr. Spencer has found in the 
 prisoner memory of his wrongs and sufferings, choice between 
 bread and animal food, hunger to be appeased, thirst to be 
 quenched, love of combat, imperfect knowledge of money, anger 
 and malice. All of Dr. Spencer's questions to the accused show, 
 that in looking for insanity, he demands an entire obliteration of 
 all conception, attention, imagination, association, memory, under- 
 standing and reason, and everything else. There never was an 
 idiot so low, never a diseased man so demented. 
 
 You might as well expect to find a man born without eyes, ears, 
 nose, mouth, hands and feet, or deprived of them all by disease, 
 
m DEFENSE OF WILLIAM FREEMAN. 165 
 
 and yet surviving, as to find such an idiot, or such a lunatic, as the 
 counsel for the people would hold irresponsible. The reason is, 
 that the human mind is not capable, while life remains, of such 
 complete obliteration. What is the human mind ? It is immaterial, 
 spiritual, immortal; an emanation of the divine intelligence, and if 
 the frame in which it dwells had preserved its just and natural pro- 
 portions, and perfect adaptation, it would be a pure and heavenly 
 existence. But that frame is marred and disordered in its best 
 estate. The spirit has communication with the world without, and 
 acquires imperfect knowledge only through the half-opened gates 
 of the senses. If, from original defects, or from accidental causes, 
 the structure be such as to cramp or restrain the mind, it becomes 
 or appears to be weak, diseased, vicious and wicked. I know one 
 who was born without sight, without hearing, and without speech, 
 retaining the faculties of feeling and smell. That child was, and 
 would have continued to be an idiot, incapable of receiving or com- 
 municating thoughts, feelings or affections; but tenderness unex- 
 ampled, and skill and assiduity unparalleled, have opened avenues 
 to the benighted mind of Laura Bridgman, and developed it into a 
 perfect and complete human spirit, consciously allied to all its 
 kindred, and aspiring to Heaven. Such is the mind of every idiot, 
 and of every lunatic, if you can only open the gates and restore the 
 avenues of the senses; and such is the human soul when deranged 
 and disordered by disease, imprisoned, confounded, benighted. 
 That disease is insanity. 
 
 Doth not the idiot eat ? Doth not the idiot drink ? Doth not 
 the idiot know his father and his mother ? He does all this because 
 he is a man. Doth he not smile and weep? and think you he 
 smiles and weeps for nothing ? He smiles and weeps because he is 
 moved by human joys and sorrows, and exercises his reason, how- 
 ever imperfectly. Hath not the idiot anger, rage, revenge ? Take 
 from him his food, and he will stamp his feet and throw his chains 
 in your face. Think you he doth this for nothing ? He does it all 
 because he is a man, and because, however imperfectly, he exer- 
 cises his reason. The lunatic does all this, and if not quite de- 
 mented, all things else that man, in the highest pride of intellect, 
 does or can do. He only does them in a different way. You may 
 pass laws for his government. Will he conform ? Can he conform ? 
 What cares he for your laws ? He will not even plead; he cannot 
 plead his disease in excuse. You must interpose the plea for him, 
 and if you allow it, he, when redeemed from his mental bondage. 
 
166 SPEECH OF WILLIAM H. SEWARD 
 
 will ple9,d for you, when he returns to your Judge and his. If you 
 deny his plea, he goes all the sooner, freed from imperfection, and 
 with energies restored, into the presence of that Judge. You must 
 meet him there, and then, no longer bewildered, stricken and dumb, 
 he will have become as perfect, clear and bright as those who re- 
 viled him in his degradation, and triumphed in his ruin. 
 
 9. Insanity defined. 
 
 And now what is insanity ? Many learned men have defined it 
 for us, but I prefer to convey my idea of it in the simplest manner. 
 Insanity is a disease of the body, and I doubt not, of the brain. 
 The world is astonished to find it so. They thought for almost six 
 thousand years, that it was an affection of the mind only. Is it 
 strange that the discovery should have been made so late ? You 
 know that it is easier to move a burden upon two smooth rails on 
 a level surface than over the rugged ground. It has taken almost six 
 thousand years to learn that. But moralists argue that insanity 
 shall not be admitted as a physical disease, because it would tend 
 to exempt the sufferer from responsibility, and because it would ex- 
 pose society to danger. But who shall know, better than the 
 Almighty, the ways of human safety, and the bonds of human 
 responsibility ? 
 
 And is it strange that the brain should be diseased ? What 
 organ, member, bone, muscle, sinew, vessel or nerve is not subject 
 to disease ? What is a physical man, but a frail, perishing body, 
 that begins to decay as soon as it begins to exist ? What is there 
 of animal existence here on earth exempt from disease and decay ? 
 Nothing. The world is full of disease, and that is the great agent 
 of change, renovation and health. 
 
 And what wrong or error can there be in supposing that the 
 mind may be so affected by disease of the body as to relieve man 
 trom responsibility ? You will answer it would not be safe. But 
 who has assured you of safety ? Is not the way of life through 
 dangers lurking on every side, and though you escape ten thousand 
 perils must you not fall at last ? Human life is not safe, or in- 
 tended to be safe, against the elements. Neither is it safe, or in- 
 tended to be safe, against the moral elements of man's nature. It 
 is not safe against pestilence or against war, against the thunder- 
 bolt of Heaven, or against the blow of the maniac. But compara- 
 tive safety can be secured, if you will be wise. You can guard 
 against war, if you will cultivate peace. You can guard against 
 
KJ DEFENSE OF "WILLIAM FREEMAN. 167 
 
 the lightning, if you will learn the laws of electricity, and raise the 
 protecting rod. You will be safe against the maniac, if you will 
 watch the cause of madness, and remove them. Yet after all, there 
 will be danger enough from all these causes to remind you that on 
 earth you are not immortal. 
 
 Although my definition would not perhaps be strictly accurate, 
 I should pronounce insanity to be a derangement of the mind, char- 
 acter and conduct, resulting from bodily disease. I take this word 
 derangement, because it is one in common every day use. We all 
 understand what is meant when it is said that anything is ranged 
 or arranged. The houses on a street are ranged, if built upon a 
 straight line. The fences on your farms are ranged. A tower, if 
 justly built, is ranged; that is, it is ranged by the plummet. It 
 rises in a perpendicular range from the earth. A file of men 
 marching in a straight line are in range. " Range yourselves, men," 
 though not exactly artistical, is not an uncommon word of com- 
 mand. Now what do we mean when we use the word ' V^ranged " ? 
 Manifestly that a thing is not ranged, is not arranged, is out of 
 range. If the houses on the street be built irregularly, they are de- 
 ranged. If the fences be inclined to the right or left, they are de- 
 ranged. If there be an unequal pressure on either side, the tower 
 will lean, that is, it will be deranged. If the file of men become 
 irregular, the line is deranged. So if a man be insane. There was 
 a regular line which he was pursuing, not the same line which you 
 or I follow, for all men pursue different lines, and every sane man 
 has his own peculiar path. All these paths are straight, and all are 
 ranged, though all divergent. It is easy enough to discover when 
 the street, the fence, the tower, or the martial procession is de- 
 ranged; but it is quite another thing to determine when the course 
 of an individual life has become deranged. We deal not then with 
 geometrical or material lines, but with an imaginary line. We have 
 no physical objects for land marks. We trace the line backward 
 by the light of imperfect and satisfactory evidence, which leaves it 
 a matter almost of speculation whether there has been a departure 
 or not. In some cases, indeed, the task is easy. If the fond 
 mother becomes the murderer of her offspring, it is easy to see that 
 she is deranged. If the pious man, whose steps were firm and 
 whose pathway led straight to Heaven, sinks without temptation 
 into criminal debasement, it is easy to see that he is deranged. But 
 in cases where no natural instinct or elevated principle throws its 
 
168 SPEECH OF WILLIAM H. SEWARD 
 
 light upon our research, it is often the most difficult and delicate of 
 all human investigations to determine when a person is deranged. 
 
 We have two tests. First, to compare the individual after the 
 supposed derangement with himself as he was before. Second, to 
 compare his course with those ordinary lines of human life which 
 we expect sane persons, of equal intelligence and similarly situated, 
 to pursue. 
 
 If derangement, which is insanity, means only what we have as- 
 sumed, how absurd is it to be looking to detect whether memory, 
 hope, joy, fear, hunger, thirst, reason, understanding, wit, and other 
 faculties remain ! So long as life lasts they never cease to abide 
 with man, whether he pursue his straight and natural.way, or the 
 crooked and unnatural course of the lunatic. If he be diseased, 
 his faculties will not cease to act. They will only act differently. 
 It is contended here that the prisoner is not deranged, because he 
 performed his daily task in the State prison, and his occasional 
 labor afterwards; because he grinds his knives, fits his weapons, 
 and handles the file, the ax, and the saw, as he was instructed, and 
 as he was wont to do. Now the lunatic asylum at Utica has not an 
 idle person in it, except the victims of absolute and incurable de- 
 mentia, the last and worst stages of all insanity. Lunatics are 
 almost the busiest people in the world. They have their prototypes 
 only in children. One lunatic will make a garden, another drive 
 the plow, another gather flowers. One writes poetry, another 
 essays, another orations. In short, lunatics eat, drink, sleep, work, 
 fear, love, hate, laugh, weep, mourn, die. They do all things that 
 sane men do, but do them in some peculiar way. It is said, how- 
 ever, that this prisoner has hatred and anger, that he has remem- 
 bered his wrongs, and nursed and cherished revenge; wherefore, 
 he cannot be insane. Cowper, a moralist who had tasted the bit- 
 ter cup of insanity, reasoned otherwise: 
 
 " But violence can never longer sleep 
 Than human passions please. In ev'ry heart 
 Are sown the sparks that kindle fiery war; 
 Occasion needs but fan them and they blaze. 
 The seeds of murder in the breast of man." 
 
 Melancholy springs oftenest from recalling and brooding over 
 wrong and suffering. Melancholy is the first stage of madness, and 
 it is only recently that the less accurate name of monomania has 
 been substituted in the place of melancholy. Melancholy is the 
 foster-mother of anger and revenge. Until 1830, our statutory defi- 
 
IN DEFENSE OF WILLIAM FREEMAN. 169 
 
 nition of lunatics was in the terms " disorderly persons, who, if left 
 at large, might endanger the lives of others." Our laws now regard 
 them as merely disorderly and dangerous, and society acquiesces, 
 unless madness rise so high that the madman slay his imaginary 
 enemy, and then he is pronounced sane. 
 
 The prisoner lived with Nathaniel Lynch, at the age of eight or 
 nine, and labored occasionally for him during the last winter. 
 Lynch visited him in the jail, and asked him if he remembered 
 him, and remembered living with him. The prisoner answered yes. 
 Lynch asked the prisoner whether he was whipped while there, and 
 by whom, and why. From his answers it appeared that he had 
 been whipped by his mistress for playing truant, and that he 
 climbed a rough board fence in his night clothes and fled to his 
 mother. Upon this evidence, the learned professor from Geneva 
 College, Dr. Spencer, builds an argument that the prisoner has con- 
 ception, sensation, memory, imagination, and association, and is 
 most competent for the scaffold. Now here are some verses to 
 which I would invite the doctor's attention: 
 
 ' ' Shut up in dreary gloom, like convicts are. 
 In company of murderers! Oh, wretched fate! 
 If pity e'er extended through the frame, 
 Or sympathy's sweet cordial touched the heart, 
 Pity the wretched maniac who knows no blame, 
 Absorbed in sorrow, where darkness, poverty, and every curse impart." 
 
 Here is evidence, not merely of memory and other faculties, but 
 of what we call genius. Yet these verses are a sad effusion of 
 Thomas Lloyd, a man-slaying maniac in Bedlam. 
 
 10. Why the prisoner could not possibly simulate 
 
 MADNESS. 
 
 The first question of fact here, gentlemen, as in every case 
 where insanity is gravely insisted upon, is this: Is the prisoner 
 feigning or counterfeiting insanity ? What kind of a man is he ? 
 A youth of twenty-three, without learning, education or experience. 
 Dr. Spencer raises him just above the brute; Dr. Bigelow exalts 
 him no higher; and Dr. Dimon thinks that he has intellectual 
 capacity not exceeding that of a child of ten years, with the knowl- 
 edge of one of two or three. These are the people's witnesses. 
 All the witnesses concur in these estimates of his mind. 
 
 Can you conceive of such a creature comprehending such a 
 plot, and standing up in his cell in the jail, hour after hour, day 
 
170 SPEECH OP WILLUM H. SEWARD 
 
 after day, week after week, and month after month, carrying on 
 such a fraud; and all the while pouring freely into the ears of in- 
 quisitors curious, inquisitors friendly, and inquisitors hostile, with- 
 out discrimination or alarm, or apparent hesitation or suspicion, 
 with "child-like simplicity," as our witnesses describe it, and with 
 " entire docility," as it is described by the witnesses for the people, 
 confessions of crime which, if they fail to b6 received as evidences 
 of insanity, must constitute an insurmountable barrier to his 
 acquittal ? i 
 
 I am ashamed for men who, without evidence of the prisoner's 
 dissimulation, and in opposition to the Unanimous testimony of all 
 the witnesses, that he is sincere, still think that this poor fool may 
 deceive them. If he could feign, and were feigning, would he not 
 want some counsel, some friend, if not to advise and assist, at least 
 to inform him of the probable success of the fraud ? And yet no 
 one of his counsel or witnesses has ever conversed with him, but 
 in a crowd of adverse witnesses; and for myself, I have not spoken 
 with him in almost two months, and during the same period, have 
 never looked upon him elsewhere than here, in the presence of the 
 Court and the multitude. Would a sane man hold nothing back? 
 admit everything ? to everybody ? affect no ignorance ? no forget- 
 f ulness ? no bewilderment ? no confusion ? no excitement ? no 
 delirium ? 
 
 Dr. Ray, in his Treatise on the Medical Jurisprudence of 
 Insanity, p. 333, gives us very different ideas from all this, of those 
 who can feign, and of the manner of counterfeiting: "A person 
 who has not made the insane a subject of study, cannot simulate 
 madness, so as to deceive a physician well acquainted with the 
 disease. Mr. Haslam declares, that ' to sustain the character of a 
 paroxysm of active insanity, would require a continuity of exertion 
 beyond the power of a sane person.' Dr. Conolly afifirms, that he 
 can hardly imagine a case which would be proof against an efficient 
 system of observation. The grand fault committed by impostors is 
 that they overdo the character they assume. The really mad, ex- 
 cept in the acute stage of the disease, are, generally speaking, not 
 readily recognized as such by a stranger, and they retain so much 
 of the rational as to require an effort to detect the impairment of 
 their faculties. Generally speaking, after the acute stage has 
 passed off, a maniac has no difficulty in remembering his friends 
 and acquaintances, the places he has been accustomed to frequent, 
 names, dates, and events, and the occurrences of his life. The 
 
IN DEFENSE OF "WILLIAM FREEMAN. 171 
 
 ordinary relations of things are, with some exceptions, as easily and 
 clearly perceived as ever, and his discrimination of character seems 
 to be marked by his usual shrewdness A per- 
 son simulating mania will frequently deny all knowledge of men 
 and things with whom he has always been familiar." 
 
 And now, gentlemen, I will give you a proof of the difference 
 between this real science and the empiricism upon which the coun- 
 sel for the people rely in this cause. Jean Pierre was brought be- 
 fore the Court of Assizes in Paris, in 1824, accused of forgery, 
 swindling, and incendiarism. He feigned insanity. A commission 
 of eminent physicians examined him, and detected his imposture 
 by his pretended forgetfulness, and confusion in answering inter- 
 rogatories concerning his life and history. The most prominent of 
 these questions are set down in the books. (Ray, p. 338.) I sub- 
 mitted these questions and answers, with a statement of Jean 
 Pierre's case, to Dr. Spencer, and he, governed by the rules which 
 have controlled him in the present cause, pronounced the impostor's 
 answers to be evidence of insanity, because they showed a decay 
 of memory. 
 
 Again, gentlemen, look at the various catechisms in which this 
 prisoner has been exercised for two months, as a test of his sanity. 
 Would any sane man have propounded a solitary one of all those 
 questions to any person whom he believed to be of sound mind ? 
 Take an instance. On one occasion. Dr. Willard, a witness for the 
 people, having exhausted the idiot's store of knowledge and emotion, 
 expressed a wish to discover whether the passion of fear had burned 
 out, and employing Mr. Morgan's voice addressed the prisoner 
 thus: " Bill, they're going to take you out to kill you. They're go- 
 ing to take you out to kill you. Bill." The poor creature answered 
 nothing. "What do you think of it. Bill?" Answer: "I don't 
 think about it — I don't believe it." " Bill," continues the inquis- 
 itor with louder and more terrific vociferation, " they're going to 
 kill you, and the doctors want your bones; what do you think of it, 
 Bill?" The prisoner answers: "I don't think about it — I don't 
 believe it." The doctor's case was almost complete, but he thought 
 that perhaps the prisoner's stupidity might arise from inability to 
 understand the question. Therefore, lifting his voice still higher, 
 he continues: "Did you ever see the doctors have any bones? 
 Did you ever see the doctors have any bones. Bill ? " The fool an- 
 swers, " I have." " Then, where did you see them. Bill ? " " In 
 Dr. Pitney's office." And thus, by this dialogue, the sanity of the 
 
172 SPEECH OF WILLIAM R, SEWARD 
 
 accused is, in the judgment of Dr. Willard, completely established. 
 It is no matter that if the prisoner had believed the threat, his 
 belief would have proved him sane; if he had been terrified, his 
 fears would have sent him to the gallows; if he had forgotten the 
 fleshless skeleton he had seen, he would have been convicted of 
 falsehood, and of course have been sane. Of such staple as this are 
 all the questions which have been put to the prisoner by all the wit- 
 nesses. There is not an interrogatory which any one of you would 
 have put to a child twelve years old. 
 
 Does the prisoner feign insanity i One hundred and eight wit- 
 nesses have been examined, of whom seventy-two appeared on be- 
 half of the people. No one of them has expressed a belief that he 
 was simulating. On the contrary, every witness to whom the 
 inquiry has been addressed, answers that the sincerity of the pris- 
 oner is beyond question. 
 
 Mr. Seward here reviewed the testimony of the witnesses to establish the 
 proposition that the prisoner could not feign, and never attempted to simulate 
 insanity. He then continued : 
 
 I submit to you, gentlemen of the jury, that by comparing the 
 prisoner with himself, as he was in his earlier, and as he is in his 
 later history, I have proved to you conclusively that he is visibly 
 changed and altered in mind, manner, conversation and action, and 
 that all his faculties have become disturbed, impaired, degraded 
 and debased. I submit, also, that it is proved: First, that this 
 change occurred between the sixteenth and the eighteenth years of 
 his life, in the State prison, and that, therefore, the change thus pal- 
 pable was not, as the attorney-general contends, effected by mere 
 lapse of time and increase of years, nor by the natural development 
 of latent dispositions; Secondly, that inasmuch as the convicts in 
 the State prison are absolutely abstemious from intoxicating drinks, 
 the change was not, as the attorney-general supposes, produced by 
 intemperance. 
 
 II. Insanity of the prisoner demonstrated. — The various 
 
 CAUSES OF insanity DISCUSSED. 
 
 I have thus arrived at the third proposition in this case, which 
 is, that the prisoner at the bar is insane. This I shall demonstrate: 
 First, by the fact already so fully established, that the prisoner is 
 changed; Secondly, by referring to the predisposing causes which 
 might be expected to produce insanity; Thirdly, by the incoher- 
 ence and extravagance of the prisoner's conduct and conversation, 
 and the delusions under which he has labored. 
 
IN DEFENSE OF WILLIAM FREEMAN. 173 
 
 And now as to the predisposing causes. The prisoner was bom 
 in this village, twenty-three years ago, of parents recently emerged 
 from slavery. His mother was a women of violent passions, severe 
 discipline, and addicted to intemperance. His father died of delir- 
 ium tremens, leaving his children to the neglect of the world, from 
 which he had learned nothing but its vices. Hereditary insanity was 
 added to the prisoner's misfortunes, already sufficiently compli- 
 cated. His aunt, Jane Brown, died a lunatic. His uncle, Sidney 
 Freeman, is an acknowledged lunatic. 
 
 All writers agree, what it needs not writers to teach, that neglect 
 of education is a. iraitiul cause of crime. If neglect of education 
 produces crime, it equally produces insanity. Here was a bright, 
 cheerful, happy child, destined to become a member of the social 
 state, entitled by the principles of our government to equal advan- 
 tages for perfecting himself in intelligence, and even in political 
 rights, with each of the three millions of our citizens, and blessed 
 by our religion with equal hopes. Without his being taught to 
 read, his mother, who lives by menial service, sends him forth at 
 the age of eight or nine years to like employment. Reproaches are 
 cast on his mother, on Mr. Warden, and on Mr. Lynch, for not 
 sending him to school, but these reproaches are all unjust. How 
 could she, poor degraded negress and Indian as she was, send her 
 child to school ? And where was the school to which Warden and 
 Lynch should have sent him ? There was no school for him. His 
 few and wretched years date back to the beginning of my acquaint- 
 ance here, and during all that time, with unimportant exceptions, 
 there has been no school here for children of his caste. A 
 school for colored children was never established here, and all 
 the common schools were closed against them. Money would , 
 always procure instruction for my children, and relieve me from the 
 responsibility. But the colored children, who have from time to 
 time been confided to my charge, have been cast upon my own care 
 for education. When I sent them to school with my own children, 
 they were sent back to me with a message that they must be with- 
 drawn, because they were black, or the school would cease. Here 
 are the fruits of this unmanly and criminal prejudice. A whole 
 family is cut off in the midst of usefulness and honors by the hand 
 of an assassin. You may avenge the crime, but whether the pris- 
 oner be insane or criminal, there is a tribunal where this neglect will 
 plead powerfully in his excuse, and trumpet-tongued against the 
 " deep damnation " of his " taking off." 
 
174 
 
 SPEECH OF WILLIAM H. 8EWAED 
 
 Again. The prisoner was subjected, in tender years, to severe 
 and undeserved oppression. Whipped at Lynch's; severely and un- 
 lawfully beaten by Wellington, for the venial offense of forgetting 
 to return a borrowed umbrella; hunted by the police on charges 
 of petty offenses, of which he was proved innocent; finally con- 
 victed, upon constructive and probably perjured evidence, of a 
 crime of which it is now universally admitted he was guiltless, he 
 was plunged- into the State prison at the age of sixteen, instead of 
 being committed to a House of Refuge. 
 
 Mere imprisonment is often a cause of insanity. Four insane 
 persons have, on this trial, been mentioned as residing among us, 
 all of whom ' became insane in the State prison. Authentic statis- 
 tics show that there are never less than thirty insane persons in 
 each of our two great penitentiaries. In the State prison the pris- 
 oner was subjected to severe corporeal punishment, by keepers who 
 mistook a decay of mind and morbid melancholy for idleness, ob- 
 istinacy and malice. Beaten, as he was, until the organs of his 
 hearing ceased to perform their functions, who shall say that other 
 and more important organs connected with the action of his mind, 
 did not become diseased through sympathy ? Such a life, so filled 
 with neglect, injustice and severity, with anxiety, pain, disappoint- 
 ment, solicitude and grief, would have its fitting conclusion in a 
 mad-house. If it be true, as the wisest of inspired writers hath 
 said, " Verily oppression maketh a wise man mad," what may we 
 not expect it to do with a foolish, ignorant, illiterate" man ! Thus 
 it is explained why, when he came out of prison, he was so dull, 
 •stupid, morose; excited to anger by petty troubles, small in our 
 Tiew, but mountains in his way; filled in his waking hours with 
 moody recollections, and rising at midnight to sing incoherent 
 songs, dance without music, read unintelligible jargon, and combat 
 with imaginary enemies. 
 
 How otherwise than on the score of madness can you explain 
 the stupidity which caused him to be taken for a fool at Apple- 
 gate's, on his way from the prison to his home ? How else, the 
 ignorance which made him incapable of distinguishing the coin which 
 he offered at the hatter's shop ? How else, his ludicrous apprehen- 
 sions of being re-committed to the State prison for five years, for the 
 offense of breaking his dinner knife ? How else, his odd and 
 strange manner of accounting for his deafness, by expressions, all 
 absurd and senseless, and varying with each interrogator : as to 
 John De Puy, " that Tyler struck him across the ears with a plank. 
 
m DEFENSE OF WILLIAM FREEMAN. 175 
 
 and knocked his hearing off, and that it never came b^ck; that 
 they put salt in his ear, but it didn't do any good, for his hearing 
 was gone — all knocked off"; to the Rev; John M. Austin, "the 
 stones dropped down my ears, or the stones of my ears dropped 
 down"; to Ethan A. Warden, "'got stone in my ear; got it out; 
 thought I heard better when I got it out "; to Dr. Hermance, " that 
 his ears dropped "; and to the same witness on another occasion, 
 "that the hearing of his ears fell down "; to his mother, "that his 
 ear had fell down "; to Deborah De Puy, " that Tyler struck him on 
 the head with a board, and it seemed as if the sound went down his 
 throat"; to Dr. Brigham, "that he was hurt when young, it made 
 him deaf in the right ear "; also, " that in the prison he was struck 
 with a board by a man, which made him deaf"; and also, "that a 
 stone was knocked into, or out of his ear " ? 
 
 It is now perfectly certain, froin the testimony of Mr. Van Ars- 
 dale and Helen Holmes, that the prisoner first stabbed Mrs. Van 
 Nest, in the back yard, and then entered the house and stabbed 
 Mr. Van Nest, who fell lifeless at the instant of the blow. And yet, 
 sincerely trying to give an account of the dreadful scenes, exactly 
 as they passed, the prisoner has invariably stated, in his answers to 
 every witness, that he entered the house, stabbed Van Nest, went 
 into the yard, and then, and not before, killed Mrs. Van Nest. It 
 was in this order that he related the transaction to Warren T. Wor- 
 den, to John M. Austin, to Ira Curtis, to Ethan A. Warden, to Wil- 
 liam P. Smith, to Dr. Van Epps, to James H. Bostwick, to Dr. 
 Brigham, to Nathaniel Lynch, to Dr. Willard, to Dr. Bigelow, and 
 to Dr. Spencer. How else than on the score of madness can you 
 explain this confusion of memory ? and if the prisoner was sane, and 
 telling a falsehood, what was the motive ? 
 
 How else than on the score of a demented mind will you ex- 
 plain the fact, that he is without human curiosity; that he has 
 never, since he came out of prison, learned a fact, or asked a ques- 
 tion ? He has been visited by hundreds in his cell, by faces become 
 famiUar, and by strangers, by fellow prisoners, by jailers, by sheriff, 
 by counsel, by physician, by friends, by enemies, and by relations, 
 and they unanimously bear witness that he has never asked a ques- 
 tion. The oyster, shut up within its limestone walls, is as inquisi- 
 tive as he. 
 
 How else will you explain the mystery that he, who seven years 
 ago had the capacity to relate connectively any narrative, however 
 extended, and however complex in its details, is now unable to con- 
 
176 SPEECH OF WILLIAM H. SKWARD 
 
 tinue any relations of the most recent events, without the prompting 
 of perpetual interrogatories, always leading him by known land- 
 marks; and that when under such discipline he answers — he em- 
 ploys generally the easiest forms — " Yes," " No," " Don't know " ? 
 
 Then mark the confusion of his memory, manifested by contra- 
 dictory replies to the same question. Warren T. Worden asked 
 him: " Did you go in at the front door ? Yes. Did you go in at 
 the back door ? Yes. Were you in the hall when your hand was 
 cut ? Yes. Was your hand cut at the gate ? Yes. Did you stab 
 Mrs. Wyckoff in the hall ? Yes. Did you stab Mrs. Wyckoff at 
 the gate ? Yes. Did you go out at the back door ? Yes. Did 
 you go out at the front door ? Yes." 
 
 Ethan A. Warden asked him: "What made you kill the child?" 
 "Don't know any thing about that." At another time he answered: 
 "I don't think about it; I didn't know it was a child.'' And again, 
 on another occasion: " Thought — feel it more;" and to Dr. Bigelow, 
 and other witnesses, who put the question, whether he was not sorry 
 he killed the child, he replied: " It did look hard — I rather it was 
 bigger." When the ignorance, simplicity and sincerity of the pris- 
 oner are admitted, how otherwise than on the ground of insanity 
 can you explain such inconsistencies as these ? 
 
 The testimony of Van Arsdale and Helen Holmes, proves that 
 no words could have passed between the prisoner and Van Nest, 
 except these: "What do you want here in the house ? " spoken by 
 Van Nest before the fatal blow was struck. Yet, when inquired of 
 by Warren T. Worden what Van Nest said to him when he entered 
 the house, the prisoner said, after being pressed for an answer, that 
 Van Nest said to him: " If you eat my liver, I'll eat yours; " and 
 he at various times repeated to the witness the same absurd ex- 
 pression. To the Rev. John M. Austin he made the same state- 
 ment, that Van Nest said: " If you eat my liver, I'll eat your liver;" 
 to Ira Curtis the same; to Ethan A. Warden the same; to Lans- 
 ingh Briggs the same; and the same to almost every other witness. 
 An expression so absurd under the circumstances, could never have 
 been made by the victim. How otherwise can it be explained than 
 as the vagary of a mind shattered and crazed ? 
 
 The prosecution, confounded with such evidence, appealed to 
 Dr. Spencer for relief. He, in the plentitude of his learning, says, 
 that he had read of an ancient and barbarous people, who used to 
 feast upon the livers of their enemies; that the prisoner has not 
 imagination enough to have invented such an idea, and that he 
 
IN DEFENSE OF WILLIAM FREEMAN. 177 
 
 must somewhere have heard the tradition. But when did this de- 
 mented wretch, who reads "woman" for "admirable," and "cook" 
 for " Thompson," read Livy or Tytler, and in what classical circle 
 has he learned the customs of the ancients ? Or, what perhaps is 
 more pertinent, who were that ancient and barbarous people, and 
 who was their historian ? 
 
 Consider now the prisoner's earnest and well-attested sincerity 
 in believing that he could read, when either he never had acquired, 
 J or else had lost, the power of reading. The Rev. Mr. Austin vis- 
 ' ited him in jail, at an early day, asked him whether he could read, 
 and being answered that he could, gave him a testament. In fre- 
 quent visits afterwards, when the prisoner was asked whether he 
 had read his testament, he answered, " Yes," and it was not until 
 after the lapse of two months that it was discovered that he was 
 unable to spell a monosyllable. 
 
 Mr. Seward here reviewed the testimony to show that the prisoner could not 
 read, though he pretended to be able to do so, and claimed, that from various 
 other circumstances respecting his conduct, it had been clearly established that 
 the prisoner was hopelessly demented. He showed also that he was insensible 
 to corporal pain or suffering. He then referred with regret to the fact that his 
 offer to allow the jury, personally, to examine the prisoner had been rejected. 
 He continued : 
 
 I have thus shown you, gentlemen, the difficulties which attend- 
 ed you in this investigation, the law concerning insanity, the nature 
 and characteristics of that disease, the great change which the pris- 
 oner has undergone, and some of those marked extravagances 
 which denote lunacy. More conclusive evidence yet remains; and 
 first, the delusion by which the prisoner was overpowered, and 
 under whose fearful spell his crimes were committed. 
 
 12. Delusion, when shown, incontestable proof of insan- 
 ity. — Illustrations of the subject. 
 Delusion does not always attend insanity, but when found it is 
 the most unequivocal of all proofs. I have already observed, that 
 melancholy is the first stage of madness, and long furnished the 
 name for insanity. In the case of Hatfield, who fired at the king 
 in Drury-Lane Theatre, Lord Erskine, his counsel, demonstrated 
 that insanity did not consist in the absence of any of the intellectual 
 faculties, but in delusion; and that an offender was irresponsible, if 
 his criminal acts were the immediate, unqualified offspring of such 
 delusion. Erskine there defined a delusion to consist in deductions 
 from the immovable assumption of the matters as realities, either 
 12 
 
178 SPEECIh of WILLIAM H. SEWAED 
 
 without any foundation whatever, or so distorted and disfigured by 
 fancy as to be nearly the same thing as their creation. 
 
 The learned nien here have given us many illustrations of such 
 delusions; as that, ot the man who believes that his legs are of glass, 
 and, therefore refuses to move, for fear they will break; of the man 
 who fancies himself the king of the French; or of him who confides 
 to you the precious secrfet that he is emperor of the world. These 
 are palpable delusions, but there are others equally, or even more 
 fatal in their. effects, which have their foundation in some original 
 fact, and are thus described by Dr. Ray, at page 210 of'his work: 
 "In another class of cases, the exciting cause of homicidal insanity 
 is of a moral nature, operating upon some peculiar physical predis-., 
 position, and sometimes followed by more or less physical disturb- 
 ance. , Instead of being urged by a sudden imperious impulse to 
 kill, the subjects of this form of the affection, after suffering for a 
 certain period much gloom of mind and depression of spirits, feel 
 as if bound by a sense of necessity to destroy life, and proceed to 
 the fulfillment of their destiny with the utmost calmness and delib- 
 eration. So reluctant have courts and juries usually been to re- 
 ceive the plea of insanity in defense of crime, deliberately planned 
 and executed by a mind in which no derangement of intellect has 
 ever been perceived, that it is of the greatest importance that the 
 nature of these cases should not be misunderstood." 
 
 Our learned witnesses have given us various definitions of a de- 
 lusion. Dr. Hun's is perhaps as clear and accurate as any: " It is 
 a cherished opinion opposed by the sense and judgment of all man- 
 kind." In simple speech, it is what is called the predomina.nce of 
 one idea, by which reason is subverted. I shall now show you such 
 a predominance of one idea, as will elucidate the progress of this 
 maniac from the first disturbance of his mind, to the dreadful ca- 
 tastrophe on the shores of the Owasco Lake. That delusion is a 
 star to guide your judgment to an infallible conclusion, that the 
 prisoner is insane. If you mistake its course and consign him to 
 a scaffold, it will rest over his grave, indicating him as a martyr, 
 and you as erring or unjust judges. 
 
 In April, 1840, Mrs. Godfrey, who resides in the town of Sen- 
 nett, on the middle road, four miles northeast of Auburn, lost a 
 horse. One Jack Furman, a hardened offender, stole the horse. 
 For some purpose not now known, he put him in the care of the 
 prisoner, who was seen with hira. Both Furman and Freeman were 
 arrested. The former was the real thief and Freeman construct- 
 ively guilty. Freeman was arrested by Vanderheyden, taken into 
 
IN DEFENSE OF "WILLIAM FREEMAN. 179 
 
 an upper chamber, and there declared his innocence of the crime. 
 He was nevertheless committed to jail. All the police, and the 
 most prejudiced of the witnesses for the people, have testified their 
 entire conviction that the prisoner was innocent. Furman was 
 selected by favor as a witness for the people. Freeman, while in 
 jail, comprehending his danger, and conscious of his innocence, 
 dwelt upon the injustice, until, having no other hope, he broke pris- 
 on and escaped. Being retaken, he assigned as the reason for his 
 flight, that Jack Furman stole the horse, and was going to swear 
 him into the State prison. The result was as he apprehended. He 
 was convicted by the perjury of Furman, and sentenced to the 
 State prison for five years. This was the first act in the awful 
 tragedy of which he is the hero. Let judges and jurors take warn- 
 ing from its fatal consequences. How deeply this injustice sank 
 into his mind, may be seen from the testimony of Aretas A. Sabin, 
 the keeper, who said to him on the day he entered the prison, " I 
 am sorry to see you come here so young." The prisoner wept. 
 Well would it have been if this, the last occasion on which the 
 prisoner yielded to that infirmity, had, ominous as it was of such 
 fatal mischief, been understood and heeded. A year passed away, 
 and he' is found in the prison, neglecting his allotted labor, sullen 
 and morose. 
 
 Mr. Seward next traced the progress of the mental derangement of the ac- 
 cused while he was in prison. He then reviewed, in elaborate detail, his conduct' 
 and actions from the time he left prison down to the night of the murder, and 
 claimed that it had been shown that a sense of his wrongs had taken complete 
 possession of him, and whatever of mind, conscience or reason remained, had 
 been finally overthrown. His conduct after the murder was next taken up, for 
 the purpose of showing that his past misfortunes were the burden of his life, it 
 having appeared that he always confessed the deed, and in answer to questions 
 put to him to ascertain his motive, the answers were broken and incoherent, but 
 invariably referred to his being in prison innocently, and could get no pay 
 for it. 
 
 It would be tedious to gather all the evidence of similar import. 
 Let it suffice, that the witnesses who have conversed with the pris- 
 oner, as well those for the people as those for him, concur fully in 
 the same statement of facts, as to his reasons and motives for the 
 murders. We have thus not merely established the existence of ■ 
 an insane delusion, but have traced directly to that overpowering 
 delusion, the crimes which the prisoner has committed. 
 
 How powerful that delusion must have been, may be inferred 
 from the fact that the prisoner, when disabled, desisted from his 
 work and made his retreat to his friends in Oswego county, not to 
 
180 SPEECH OF WILLIAM H. SEWAED 
 
 escape from punishment for the murders, but, as he told Mr. E, A, 
 Warden, to wait till his wounded hand should be restored, that he 
 might resume his dreadful butchery; and, as he told Dr. Bigelow, 
 because he couldn't " handle his hand." The intenseness of this 
 delusion exceeds that under which Hatfield assailed the king; 
 that which compelled Henriette Cornier to dissever the head of 
 the child entrusted to her care; and that of Rabello, the Portuguese, 
 who cut to pieces with his axe, the child who trod upon his feet. 
 
 13. The circumstances of the murder tested by scientific 
 
 RULES. 
 
 The next feature in the cause which will claim your attention, 
 ■gentlemen of the jury, is the manner and circumstances of 
 the act itself. 
 
 In Ray's Medical Jurisprudence, at page 224, are given several 
 tests by which to distinguish between the homicidal maniac and 
 the murderer. We shall best consider the present case by com- 
 paring it with those tests: 
 
 I. " There is the irresistible, motiveless impulse to destroy life." 
 Never was homicide more motiveless, or the impulse more com- 
 pletely irresistible, than in the present case, as we have learned 
 from the testimony already cited. 
 
 IL " In nearly all cases the criminal act has been preceded, 
 either by some well marked disturbance of the health, or by an 
 irritable, gloomy, dejected, or melancholy state; in short, by many 
 of the symptoms of the incubation of mania." How truly does 
 this language describe the condition of the prisoner during the 
 brief period of his enlargement ! 
 
 III. " The impulse to destroy is powerfully excited by the sight 
 of murderous weapons — by favorable opportunities of accomplish- 
 ing the act — by contradiction, disgust, or some other equally trivial 
 and even imaginary circumstance." 
 
 While we learn from Hersey's testimony, that the prisoner kept 
 a store of knives fit for such a deed, we find in the denial of his 
 demands for settlement, for pay, and for process, by Mrs. Godfrey 
 and the magistrates, the contradiction and causes of disgust here 
 described. 
 
 JV. " The victims of the homicidal monomaniac are either en- 
 tirely unknown or indifferent to him, or they are amongst his most 
 loved and cherished objects." 
 
 Freeman passed by his supposed oppressors and persecutors, 
 aad fell .upon a family absolutely indifferent, and ajmost unknown 
 
IN DEFENSE OF WILLIAM FREEMAN. 181 
 
 to him, while he reserved the final stroke for his nearest and best 
 friend, and brother-in-law. 
 
 V. " The monomaniac sometimes diligently conceals and some- 
 times avows his purpose, and forms schemes for putting it into ex- 
 ecution, testifying no sentiment of grief." 
 
 The prisoner concealed his purpose from all but Hersey. He 
 purchased the knife which he used, in open day, at a blacksmith's 
 shop, in the presence of persons to whom he was well known, and 
 ground it to its double edge before unsuspecting witnesses, as 
 coolly and deliberately as if it were to be employed in the sham- 
 bles. He applied at another blacksmith's shop, where he was 
 equally well known, to have another instrument made. He shaped 
 the pattern in a carpenter's shop, carried it to the smith, disagreed 
 about the price, and left the pattern upon the forge in open sight, 
 never thinking to reclaim it, and it lay there until it was taken by 
 the smith before the coroner's inquest, as an evidence of his design. 
 So strange was his conduct, and so mysterious the form of the 
 knife which he required, that Morris, the smith, suspected him, and 
 told him that he was going to kill somebody; to which he answered 
 with the nonchalance of the butcher: "that's nothing to you if you 
 get your fay for the knife." On the two days immediately pre- 
 ceding the murder, he is found sharpening and adjusting his knives 
 at a turner's shop, next door to his own dwelling, in the presence 
 of persons to whom he is well known, manifesting no apprehension, 
 and afifecting no concealment. 
 
 The trivial concerns of his finance and occupation are as care- 
 fully attended to, as if the murder he was contemplating had been 
 an ordinary and lawful transaction. Hyatt demands three shillings 
 for the knife. The prisoner cheapens until the price is reduced to 
 eighteen pence, with the further advantage that it should be sharp- 
 ened and fitted to a handle. Hyatt demands sixpence for putting 
 a rivet into his knife. He compromises, and agrees to divide the 
 labor and pay half the price. He deliberately takes out his wallet 
 and lays down three cents for Simpson, the turner, for the use of 
 the grindstone. On the very day of the murder, he begs some 
 grease at the soap factory to soften his shoes, and tells Aaron 
 Demun that he is going into the country to live in peace. At four 
 o'clock in the afternoon he buys soap at the merchant's for Mary 
 Ann Newark, the poor woman at whose house he lived. He then 
 goes cautiously to his room, takes the knives from the place of 
 their concealment under his bed, throws them out of the window, 
 
182 SPEECH OF, WILLIAM H. SEWARD 
 
 to avoid exposure to her observation, and when the night has 
 come, and the bells are ringing for church, and all is ready, he 
 stops to ask the woman whether there is any chore to be done. 
 She tells him, none, but to fill the tub with snow. He does it as 
 carefully as if there were no commotion in his mind, and then sal- 
 lies forth, takes up his instruments, and proceeds on his errand of 
 death. He reconnoiters the house on the north of Van Nest's, 
 Van Nest's house, and Brooks' house on the south, and finally de- 
 cides upon the middle one as the place of assault. It does not 
 affect his purpose that he meets Mr. Cox and Mr. Patten, under a 
 broad, bright moonlight. He waits his opportunity, until William- 
 son , the visitor has departed,, and Van Arsdale the laboring man 
 has retired to rest With an energy and boldness that no sane 
 man with such a purpose could possess, he mortally stabs four 
 persons, and dangerously wounds a fifth, in the incredibly short 
 space of fiv;e minutes. Disabled,, and therefore desisting from fur- 
 ther destruction, he enters the stable, takes the first horse he 
 finds, mounts him -vyithout a saddle, and guiding him by a halter, 
 dashes towards the town. He overtakes and passes Williamson 
 the visitor, within the distance of three-fourths of a mile from the 
 house which he had left in supposed security. Pressing on, the 
 jaded beast, worn out with age, stumbles and brings him to the 
 ground. He plunges his knife into the breast of the horse, aban- 
 dons him, scours , forward through the town, across the bridge and 
 on the middle road to Burrington's; there seizes another horse, 
 mounts him, and urges forward until he arrives among his rela- 
 tions, the De Puys, at Schroeppel, thirty miles distant. They, sus- 
 pecting him to have stolen the horse, refuse to entertain him. He 
 proceeds to the adjoining village, rests from his flight, offers the 
 horse for sale, and when his title to the horse is questioned an- 
 nounces his true name and residence, and refers to the De Puys, 
 who had just cast him off, for proof of his good character and con- 
 duct. When arrested and charged with the murder he denies 
 the act. 
 
 VI. Now the sixth test given by Dr. Ray is, that "while most 
 maniacs having gratified their propensity to kill, voluntarily confess 
 the act and quietly give themselves up to the proper authorities, a 
 very few only, and those to an intelligent observer show the strongest 
 indications of insanity, fly and persist in denying the act." 
 
 VII. " Murder is never criminally committed without some 
 motive adequate to the purpose in the mind that is actuated by it, 
 
IN DEFENSE OF WILLIAM FREEMAN. 183 
 
 while the insane man commits the crime without any motive what- 
 ever, strictly deserving the name." 
 
 VIII. " The criminal never sheds more blood than is necessary 
 for the attainment for his object. The monomaniac often sacrifices 
 all within his reach, to the cravings of his murderous propensity." 
 
 IX. " The frm/«ff/ either denies or confesses his guilt; if the 
 latter, he sues for mercy, or glories in his crimes. On the contrary, 
 the maniac, after gratifying his bloody desires, testifies neither re- 
 morse, repentaijce, nor satisfaction." 
 
 X. " The criminal has accomplices; the maniac has none." 
 
 XI. " The murderer never conceives a design to murder with- 
 out projecting a plan for concealing his victim, effecting his escape, 
 and baffling pursuit. The maniac prepares the means of commit- 
 ting the crime, with calmness and deliberation, but never dreams 
 of the necessity of concealing it when done, or of escape, until his 
 victim lies at his feet." 
 
 Dr. Bigelow and others state, that the prisoner told them, as ob- 
 viously was the case, that he sought no plunder; that he thought 
 not of escape or flight, until his things were broken, and his hand 
 was cut, so that he could not continue his work. He seized the 
 nearest and the most worthless horse in the stable, leaving two fleet 
 animals in their stalls. He thought only of taking Burrington's 
 horse when the first failed; all he cared for was to get out of the 
 county, there to rest until his hand was cured, so that he could 
 come back and do more work. He rested from flight within thirty 
 miles from the seat of his crimes, and, in selling his horse, was de- 
 priving himself of the only means of making his escape successful. 
 When the person of Van Nest was examined, his watch, pocket- 
 book, money and trinkets were found all undisturbed. Not an 
 article in the house had been removed; and when the prisoner was 
 searched upon his arrest, there was found in his pockets nothing 
 but one copper coin, the hundredth part of a dollar. Without fur- 
 ther detail, the parallel between the prisoner and the tests of mad- 
 ness established by medical jurisprudence, is complete. 
 
 It remains, gentlemen, to conclude the demonstration of the 
 prisoner's insanity, by referring to the testimony of the witnesses 
 who have given their opinion on that question. 
 
 Mr. Seward then reviewed the testimony. He claimed, upon this point, that 
 the evidence of the State was feeble and unsatisfactory, while that adduced by 
 the defense was conclusive and overwhelming, and established beyond all doubt 
 the fact that the prisoner was insane. In discussing the statements of Dr. Spen- 
 
184 SPEECH OF WILLIAM H. SEWARD 
 
 cer, the principal expert for the State, he proceeded to demolish the theories 
 advanced by that scientific gentleman after the following fashion : 
 
 He heralds himself as accustomed to teach, and informs us that 
 he has visited the principal hospitals for the insane in London, 
 Paris, and other European capitals. How unfortunate it was, that 
 on his cross-examination, he could not give the name or location 
 of any asylum in either of those cities! Even the names and loca- 
 tions of the " Charenton " and " Bicetre " had escaped his memory. 
 But it is no matter. The doctor overwhelms us with learning, uni- 
 versal and incomprehensible. Here is his map ' of the mental 
 faculties, in which twenty-eight separate powers of mind are de- 
 scribed in odd and even numbers. 
 
 The arrows show the course of ideas through the mind. They 
 begin with the motives in the region of the highest odd numbers in 
 the southwest corner of the mind, marked A, and go perpendicu- 
 larly northward, through Thirst and Hunger to Sensation marked 
 B; then turn to the right, and go eastward, through Conception, to 
 Attention, marked C, and then descend southward, through Per- 
 ception, Memory, Understanding, Comparison, Combination, Rea- 
 son, Invention and Judgment; wheel to the left under the Will, 
 marked D, and pass through Conscience, and then to V, the un- 
 ascertained center of Sensation, Volition, and Will. This is the 
 natural turnpike road for the ideas when we are awake and sane. 
 But here is an open shunpike, X, Y, Z, on which Ideas, when we 
 are asleep or insane, start off and pass by Conscience, and so avoid 
 paying toll to that inflexible gatekeeper. Now all this is very well, 
 but I call on the doctor to show how the fugitive Idea reached the 
 Will at D, after going to the end of the shunpike. It appeared 
 there was no other way but to dart back again, over the shunpike, 
 or else go cringing, at last, through the iron gate of Conscience. 
 Then there was another difficulty. The doctor forgot the most im- 
 portant point on his own map, and could not tell, from memory, 
 where he had located "the unascertained center." 
 
 The doctor pronounces the prisoner sane because he has the 
 chief intellectual faculties, Sensation, Conception, Attention, Imagi- 
 nation, and Association. Now here is a delicate piece of wooden 
 cutlery, fabricated by an inmate of the lunatic asylum at Utica, 
 who was acquitted of murder on the ground of insanity. He who 
 fabricated it evinced in the manufacture. Conception, Perception, 
 
 ' For the Map, see Appendix, p. 717. 
 
IN DEFENSE OF WILLIAM FREEMAN. 185 
 
 Memory, Comparison, Attention, Adaptation, Co-ordination, Kind- 
 ness, Gratitude, Mechanical Skill, Invention, and Pride. It is well 
 for him that Dr. Spencer did not testify on his trial. 
 
 Mr. Seward then referred to the overwhelming preponderance of medical 
 and other testimony for the prisoner, which he proceeded to analyze with great 
 ability, and concluded by directing attention to the personal conduct and de- 
 meanor of the accused, which he claimed was the strongest proof of his insanity. 
 This may, perhaps, be considered the most touching and powerful part of his 
 address : 
 
 14. The personal appearance and demeanor of the pris- 
 oner THE strongest PROOF OF HIS INSANITY. 
 
 There is proof, gentlemen, stronger than all this. It is silent, 
 yet speaking. It is that idiotic smile which plays continually on the 
 face of the maniac. It took its seat there while he was in the State 
 prison. In his solitary cell, under the pressure of his severe tasks 
 and trials in the workshop, and during the solemnities of public 
 worship in the chapel, it appealed, although in vain, to his task- 
 masters and his teachers. It is a smile, never rising into laugh- 
 ter — without motive or cause — the smile of vacuity. His mother 
 saw it when he came out of prison, and it broke her heart. John 
 De Puy saw it and knew his brother was demented. Deborah De 
 Puy observed it and knew him for a fool. David Winner read in 
 it the ruin of his friend Sally's son. It has never forsaken him in 
 his later trials. He laughed in the face of Parker, while on con- 
 fession at Baldwinsville. He laughed involuntarily in the faces of 
 Warden and Curtis, 4ind Worden and Austin, and Bigelow and 
 Smith, and Brigham and Spencer. He laughs perpetually here. 
 Even when Van Arsdale showed the scarred traces of the assassin's 
 knife, and when Helen Holmes related the dreadful story of the 
 murder of her patrons and friends, he laughed. He laughs while I 
 am pleading his griefs. He laughs when the attorney-general's 
 bolts would seem to rive his heart. He will laugh when you de- 
 clare him guilty. When the judge shall proceed to the last fatal 
 ceremony, and demand what he has to say why the sentence of the 
 law should not be pronounced upon him, although there should not 
 be an unmoistened eye in this vast assembly, and the stern voice 
 addressing him should tremble with emotion, he will even then look 
 up in the face of the Court and laugh, from the irresistible emo- 
 tions of a shattered mind, delighted and lost in the confused mem- 
 ory of absurd and ridiculous associations. Follow him to the scaf- 
 fold. The executioner cannot disturb the calmness of the idiot. 
 
186 SPEECH OF WILLIAM H. SEWARD 
 
 He will laugh in the agony of death. Do you not know the signifi- 
 cance of this strange and unnatural risibility ? It is a proof that 
 God does not forsake' even* the poor wretch whom we pity or de- 
 • spise. There, are, in every human memory, a well of joys arid a 
 fountain of sorrows: Disease opens wide the one, and seals up the 
 Other forever. ■ •.•■,-, 
 
 You have been told,i gentlemen, that this smile is hereditary 
 and apcufetomed. 1^6 you think that ever ah ancestor or*parent of 
 the prisoner, -or even the poor idipt'himself, was ■ in such straits as 
 these? Hbwtheh'xah yoii think -that this smile was ever before 
 recognized by these ■wining witnesses? That chaotic smile is the 
 external derangem.^nt which signifies, that thp strings of the harp are 
 disordered and broken, the superficial mark which God has set 
 upon the tabjernacl^, to signify that it^ immortal tenant is disturbed 
 by a divine and mysterious commandment. If you cannot see it, 
 take heed that the obstruction of your vision be not produced by 
 the mote in your own eye, which you are commanded to remove 
 before you consider the beain in your brother's eye. If you are 
 bent on rejecting the>tes]timony of .fltiose who know, by experience 
 and by science, the deep afflictions of the prisoner, beware how you 
 misinterpret the handwriting of the Almighty. 
 
 I have waited until now, gentlemen, to notice some of the anim- 
 adversions of the counsel for the people: They say that drunken- 
 ness will explain the conduct of the prisoner. It is true that John 
 De Puy discovered that those who retailed poisonous liquors were 
 furnishing the prisoner with this, the worst of Jood for his madness. 
 But the most laborious investigation has resulted in showing, by the 
 testimony of Adam Gray, that he once saw the prisoner intoxicated, 
 and that he, with some other persons, drank spirits in not immod- 
 erate quantity on the day when Van .;Nest was slain. There is no 
 other evidence that the prisoner was ever intoxicated. John De 
 Puy and Adam Gray testify, that, except that one time, he was 
 always .sober. David Winner proves he was sober all the time the 
 witness lived at Willard's; and Mary Ann Newark says he was en- 
 tirely sober when he sallied forth on his fatal enterprise. The only 
 value of the fact of his drunkenness, if it existed, would be to ac- 
 count for his disturbed nights at De Puy's, at Gray's and at Wil- 
 lard's. It is clearly proved that his mind was not beclouded, nor 
 bis frame excited, by any such cause on any of those occasions; 
 and Doctor Brigham truly tells you, that while the maniac goes 
 quietly to his bed, and is driveii from it by the dreams of a dis- 
 
IN DEFENSE OF WILLIAM FREEMAN. 187 
 
 turbed imagination, the drunkard completes his revels and his orgies 
 before he sinks to rest, and then lies stupid and besotted until na- 
 ture restores his wasted energies with return of day. 
 
 He then spoke of the assaults which had been made upon the credibility of 
 several of the witnesses for the defense, and the attempts to discredit them on ac- 
 conut of, their social position and low standard of intelligence, and continued as 
 follows : 
 
 The testimony of Sally Freeman, the mother of the prisoner, is 
 .questioned. She utters the voice of nature. She is the guardian 
 whom God assigned to study, to watch, to learn, to know what the 
 prisoner was, and is, and to cherish the memory of it forever. She 
 could not forget it if she would. There is not a blemish on the 
 person of any one of us, born with us or coming from disease or 
 accident, nor have we committed a right or wrong action,. that has 
 not been treasured up in the memory of a mother. Juror ! roll up 
 the sleeve from ybur manly arm, and you will find a scar there of 
 which ,you know nothing. , Your mother will give you the detail of 
 every day's progress of the preventive disease. Sally Freeman has 
 the mingled blood of the African and Indian races. She is, never- 
 theless, a woman and a mother, and nature bears witness in every 
 climate and every country, to the singleness and uniformity of those 
 characters. I have known and proved them in the hovel of the 
 slave, and in the wigwam of the Chippewa. But Sally Freeman 
 has been intemperate. The white man enslaved her ancestors of 
 the one race, exiled and destroyed those of the other, and debased 
 them all by cbrrupting their natural and healthful appetites. She 
 comes honestly by her only vice. Yet when she comes here to tes- 
 tify for a life that is dearer to her .than her own, to say she knows 
 her own son, the white man says she is a drunkard ! May Heaven 
 forgive the, white man for adding this last, this cruel injury to the 
 wrongs of such a mother ! Fortunately, gentlemen, her character 
 and conduct are before you. No woman has ever appeared with 
 xaoTe decency, modesty and propriety than she has exhibited here. 
 No witness has dared to say or think that Sally Freeman is not a 
 woman of truth. Dr. Clary, a witness for the prosecution, who 
 knows her well, says, that with all her infirmities of temper and of 
 habit, Sally "was always a truthful woman." The Roman Cornelia 
 could not have claimed more. Let then the stricken mother 
 testify for her own son. 
 
 ' ' I ask not, I care not — if guilt's in that heart, 
 I know that I love thee, whatever thou art." 
 
188 SPEECH OF "WILLIAM H. SEWARD 
 
 The learned gentlemen who conduct this prosecution have at- 
 tempted to show that the prisoner attended the trial of Henry 
 Wyatt, whom I defended against an indictment for murder, in this 
 Court, in February last ; that he listened to me on that occasion, 
 in regard to the impunity of crime, and that he went out a ripe and 
 complete scholar. So far as these reflections affect me alone, they 
 are unworthy of an answer. I pleaded for Wyatt then, as it was 
 my right and my duty to do. Let the counsel for the people prove 
 the words I spoke, before they charge me with Freeman's crimes. 
 I am not unwilling those words should be recalled. I am not un- 
 willing that any words I ever spoke in any responsible relation 
 should be remembered. Since they will not recall those words, I 
 will do so for them. They were words like those I speak now, de- 
 manding cautious and impartial justice; words appealing to the 
 reason, to the consciences, to the humanity of my fellow men; words 
 calculated to make mankind know and love each other better, and 
 adopt the benign principles of Christianity, instead of the long- 
 cherished maxims of retaliation and revenge. The creed of Ma- 
 homet was promulgated at a time when paper was of inestimable 
 value, and the Koran teaches that every scrap of paper which the 
 believer has saved during his life, will gather itself under his feet, 
 to protect them from the burning iron which he must pass over 
 while entering into Paradise. Regardless as I have been of the 
 unkind construction of my words and actions by mycotemporaries, 
 I can say in all humility of spirit, that they are freely left to the 
 ultimate, impartial consideration of mankind. But, gentlemen, 
 how gross is the credulity implied by this charge ! This stupid 
 idiot, who cannot take into his ears — deaf as death — the words 
 which I am speaking to you, though I stand within three feet of 
 him, and who even now is exchanging smiles with his and my ac- 
 cusers, regardless of the deep anxiety depicted in your countenan- 
 ces, was standing at yonder post, sixty feet distant from me, when 
 he was here, if he was here at all, on the trial of Henry Wyatt. 
 The voice of the district attorney reverberates through this dome, 
 while mine is lost almost within the circle of the bar. It does not 
 appear that it was not that voice that beguiled the maniac, instead 
 of mine; and certain it is, that since the prisoner does not compre- 
 hend the object of his attendance here now, he could not have un- 
 derstood anything that occurred on the trial of Wyatt. 
 
 Gentlemen, my responsibilities in this cause are discharged. In 
 the earnestness and seriousness with which I have pleaded, you 
 
Va DEFENSE OF "WILLIAM FREEMAN. 189 
 
 will find the reason for the firmness with which I have resisted the 
 popular passions around me. I am, in some degree, responsible, 
 like every other citizen, for the conduct of the community in which 
 I live. They may not inflict on a maniac the punishment of a male- 
 factor, without involving me in the blame, if I do not remonstrate. 
 I cannot afford to be in error abroad, and in future times. If I 
 were capable of a sentiment so cruel and so base, I ought to hope 
 for the conviction of the accused; for then the vindictive passions, 
 now so highly excited would subside, the consciences of the wise 
 and the humane would be awakened, and in a few months the in- 
 vectives, which have so long pursued me, would be hurled against 
 the jury and the Court. 
 
 You have now the fate of this lunatic in your hands. To him 
 as to me, so far as we can judge, it is comparatively indifferent 
 what be the issue. The wisest of modern men has left us a saying, 
 that " the hour of death is more fortunate than the hour of birth," 
 a saying which he signalized by bestowing a gratuity twice as great 
 upon the place where he died as upon the hamlet where he 
 was born. For ought that we can judge, the prisoner is uncon- 
 scious of danger and would be insensible to suffering, let* it come 
 when it might. A verdict can only hasten, by a few months or 
 years, the time when his bruised, diseased, wandering and be- 
 nighted spirit shall return to Him who sent it forth on its sad and 
 dreary pilgrimage. 
 
 The circumstances under which this trial closes are peculiar. I 
 have seen capital cases where the parents, brothers, sisters, friends 
 of the accused surrounded him, eagerly hanging upon the lips of 
 his advocate, and watching in the countenances of the Court and 
 jury, every smile and frown which might seem to indicate his fate. 
 But there is no such scene here. The prisoner, though in the 
 greenness of youth, is withered, decayed, senseless, almost lifeless. 
 He has no father here. The descendant of slaves, that father died 
 a victim to the vices of a superior race. There is no mother here, 
 for her child is stained and polluted with the blood of mothers and 
 a sleeping infant; and "he looks and laughs so that she cannot 
 bear to look upon him." There is no brother, or sister, or friend 
 here. Popular rage against the accused has driven them hence, 
 and scattered his kindred and people. On the other side I notice 
 the aged and venerable parents of Van Nest, and his surviving 
 children, and all around are mourning and sympathizing friends. 
 I know not at whose instance they have come. I dare not say 
 
190 SPEECH OF WILLIAM H. SEWAUD. 
 
 they ought not to be here. But I must say to you that we live in 
 a Christian and not in a savage State, and that the affliction which 
 has fallen upon these mourners and us, was sent to teach them and 
 us mercy and not retaliation; that although we may send this 
 maniac to the scaffold, it will not recall to life the manly form of 
 Van Nest, nor reanimate the exhausted frame of that aged matron, 
 nor restore to life, and grace, and beauty, the murdered mother, 
 nor call back the infant boy from the arms of his Saviour. Such 
 a verdict can do no good to the living, and carry no joy to the 
 dead. If your judgment shall be swayed at all by sympathies so 
 wrong, although so natural, you will find the saddest hour of your 
 life to be that in which you will look down upon the grave of your 
 victim, and " mourn with compunctious sorrow " that you should 
 have done so great injustice to the "poor handful of earth that 
 will lie mouldering before you." 
 
 I have been long and tedious. I remember that it is the har- 
 vest moon, and that every hour is precious while you are detained 
 from your yellow fields. But if you shall have bestowed patient 
 attention throughout this deeply interesting investigation, and shall 
 in the end have discharged your duties in the fear of God and in 
 the love of truth justly and independently, you will have laid up a 
 store of blessed recollections for all your future days, imperishable 
 and inexhaustible. 
 
 John Van Buren, attorney-general, closed the case for the people, and the 
 Hon. Bowen Whiting delivered the charge. The jury, after consultation, on the 
 23d of July, returned a verdict of guilty, and the prisoner was, at 6:30 o'clock the 
 next morning, sentenced to be hanged on the l8th of September. Mr. Seward 
 obtained a writ of error, and the conviction was afterwards reversed and a new 
 trial ordered. (Freeman v. The People, 4 Denio.) After the reversal by the 
 General Term, the prisoner was visited by the Circuit Judge, with reference to 
 the propriety of having him arraigned, and it is said he declined to try him again. 
 The prisoner died in his cell August 21st, 1847. A post mortem examination 
 was had, which revealed the fact that his brain had been long diseased, and that 
 he must have been insane before the murder. 
 
ARGUMENT OF CHARLES O'CONOR, 
 
 For the Claimants, in the Case of the Brig-of-War 
 General Armstrong. 
 
 [Armstrong z/. The United States, Dsv. Ct. of CI. 22 J 
 
 BEFORE THE UNITED STATES COURT OF CLAIMS, AT WASH- 
 INGTON, D. C, NOVEMBER 27th, 1S55. 
 
 International Law. — Where the claim of a citizen upon a foreign 
 government has been submitted to arbitration, without his consent, or 
 without an opportunity to be heard, and the award is adverse to him, the 
 government must respond to the claimant in damages. 
 
 ANALTsia OF Me, O'Conoe's Aegitment. 
 
 z. Unprecedented cliaracter of the claim, 
 
 and the court. 
 3. Origin and growth of jurisprudence. — 
 
 Classification of rights and remedies. 
 
 3. Object and purposes of legal tribunals. 
 
 4. Early struggles of the English chancel- 
 
 lors ia framing a system of equity. 
 
 5. Character and importance of the Court 
 
 of Claims. 
 
 6. Power of the court to create remedies^ 
 
 and grant relief. 
 
 7. Condition of the republic in 1812. 
 
 8. Story of the destruction of the " Amer- 
 
 ican Privateer." 
 g. Liability of Portugal. 
 
 10. The United States could look to Portugal 
 
 alone for redress. 
 
 11. Rights of belligerents in neutral terri- 
 
 tory. .• 
 
 12. A nation like »n individual bound abso- 
 
 lutely to discharg^its obligations. 
 
 13. Portugal bound to , prevent hostilities 
 
 within itsjuris^i^tian. 
 
 14. Extent of the liability of a neutral. 
 
 15. Such liabilitv absolute. 
 
 16. Suchliability not affected by the strength 
 
 of the government. 
 
 17. Neither poverty nor weakness a ground 
 
 of exemption. 
 
 18. Government bound to enforce a subject's 
 
 claim for damages against a foreign 
 power. 
 
 19. The government responsible for its fail- 
 
 ure to enforce such claim. 
 
 20. In its prosecution the government is not 
 
 the agent of the claimant. 
 
 21. Submission of the claim to arbitration 
 
 creates no estoppel. 
 
 22. Government failed to present the facts 
 
 to the arbitrator, 
 
 23. Claimant forbidden to argue his cause 
 
 before Napoleon. 
 
 24. The award invalid since it turned upon 
 
 a question not submitted to the ar- 
 bitrator. 
 
 25. A single question of law all that was in- 
 
 tended to be referred. 
 
 26. The question as to who was the ag- 
 
 gressor a matter of national honor 
 or shame. 
 
 27. There was no question of fact before 
 
 Napoleon. 
 
 28. Circumstances under which the Arm- 
 
 strong fired the first gun. 
 
 29. Napoleon's award should have been re- 
 
 jected as void for warit of jurisdic- 
 tion. 
 
 [191] 
 
192 
 
 ARGUMENT OF CHARLES O'CONOR IN THE 
 
 30. When the award was accepted, the lia- 
 
 bility of Portugal was extinguished, 
 and the liability of our government 
 arose. 
 
 31. Ground of the liability of the govern- 
 
 ment. 
 -32. Review of the evidence as to who was 
 the aggressor. 
 
 33. The arbitration never ratified by the 
 
 claimants. 
 
 34. Captain Reid bound in law and honor to 
 
 pursue the course he did. 
 
 35. The claim founded on principles of ju* 
 
 tice and equity. 
 
 36. Private property cannot be taken for 
 
 public use without just compensa- 
 tion. 
 
 37. General observations as to the duty of 
 
 the government. 
 
 38. The claim against Portugal sacrificed 
 
 for public ends. 
 
 39. Observations as to the antiquity of the 
 
 claim and its alleged rejection. 
 
 40. Personal motives of Captain Reid.— A 
 
 comparison with Washington- 
 
 The battle of Fayal will be remembered as one of the most brilliant naval 
 engagements in the second war between the United States and Great Britain. 
 It was fought on the night of the 26th of September, 1814, in the port of Fayal, 
 one of the Azores islands, in the dominions of Portugal In this famous action 
 the damages were sustained, which form the subject of the very interesting and 
 able argument of Mr. O'Conor here presented. The legal controversy lasted for 
 more than forty years, having engaged public attention from the time of James 
 Monroe, down to the administration of James Buchanan. Some of the most dis- 
 tinguished men in the United States, Portugal, England, and France conducted 
 the protracted diplomatic correspondence. The claim was pressed with such 
 zeal and ardpr, that hostilities seemed at one time inevitable. President Taylor 
 sent a fleet to Portugal, and, had he lived, the hero of Buena Vista would, doubt- 
 less, have sustained his country's honor, and enforced payment, even through 
 the intervention of war, if necessary. 
 
 During our second memorable struggle with Great Britain, in 1812, the Amer- 
 ican brig General Armstrong was fitted out as a privateer. She sailed from 
 Sandy Hook, on the evening of the gth of September, 1814, under command of 
 Captain Sam. C. Reid, of New York, with a crew of ninety men ; and, on the 
 26th, ran into Fayal roads for a supply of fresh water. Portugal, being a neutral 
 power, the vessel was entitled, under the law of nations, to protection while 
 within neutral territory. It is an elementary principle, that the property of 
 belligerents, 'While within neutral jurisdiction, is inviolable. It is not lawful to 
 make neutral territory the scene of hostility, or to attack an enemy while within 
 it ; and if the enemy be attacked, or any capture is made under neutral protec- 
 tion, the neutral is bound to redress the injury, and effect restitution.' 
 
 The American privateer, having learned that none of the enemy's cruisers had 
 been seen in that latitude for several weeks, cast anchor, supposing, of course, in 
 case she was surprised by the arrival of a hostile squadron, or by superior strength 
 and numbers, that the laws of civilized warfare would be observed, and the neutral- 
 ity of the port respected. About sunset a British brig, the Carnation, hove m sight. 
 Two more of the enemy's vessels, the Rota and Plantagenet, were sighted, and 
 signalled, and appeared suddenly in the roads. The hostile squadron closed in 
 upon Captain Reid's gallant little vessel, and, in utter violation of every principle 
 of good faith and national honor, determined to overpower the Americans and 
 capture their ship. Shortly after dusk. Captain Reid, noticing some suspicious 
 movements, began to haul his vessel close under the guns of the castle. The 
 
 ' Kent's Com. vol. i, p. 117; Vattel, book 3d, ch. 7, § 132. 
 
CASE OF THE BRIG-OF-WAR GENERAL ARMSTRONG. 193 
 
 moon was near its full, riding in the heavens like a ball of silver, and the clear 
 light revealed to the American commander every movement of the enemy. The 
 Carnation, about eight o'clock, lowered all her boats, which were manned with 
 an armed force, and moved rapidly towards the " Armstrong." Seeing this hos- 
 tile demonstration. Captain Reid, after warning them to keep off, cleared the 
 decks for action. The boats, however, paid no attention to the warning, and, 
 when they got nearly alongside, the Americans opened a murderous fire, which 
 was promptly returned. The enemy cried for quarter, and hauled off, having 
 lost upwards of twenty killed and wounded. Aboard the Armstrong one man 
 was killed, and the first lieutenant wounded. They now prepared for a more 
 formidable attack. The inhabitants of the island crowded to the shore to wit- 
 ness the magnificent and exciting spectacle about to take place. The little 
 vessel floating the stars and stripes carried but seven guns. The Carnation 
 carried i8 guns, the Rota 38, and the Plantagenet 74. About midnight the 
 attack was renewed with twelve boats, and about four hundred men. As this 
 fleet approached the Americans opened a heavy fire, which was promptly re- 
 turned. This continued until the enemy was alongside, and attempted to board 
 the vessel. They were driven back with great slaughter. The Armstrong's 
 second lieutenant had died of his injuries, and the third lieutenant was badly 
 wounded, consequently the fire was slackened at the forecastle ; but the gallant 
 captain, rallying his entire force, succeeded in beating off the enemy in a hand 
 to hand conflict, in which swords, pikes, pistols and muskets were freely used. 
 The attack was renewed a third time with a wild shout, and, after a decided 
 conflict, the enemy were routed, and many of their boats entirely destroyed. 
 The action lasted about forty minutes. The British lost nearly two hundred 
 men. The American loss was two killed and seven wounded. Captain Lloyd, 
 commanding the British squadron, finding himself unable to capture the priva- 
 teer, soon after began to cannonade her. The Americans, finding further resist- 
 ance useless, scuttled and abandoned their vessel, which was soon after set on fire 
 by the British. 
 
 The vessel having been destroyed in violation of the neutrality of the port, 
 Portugal became liable for the damages sustained, while England, in turn, be- 
 came liable to Portugal. Conceding her liability, Portugal at once demanded 
 redress from England, which she failed to obtain. At the request of the owners 
 of the privateer, the United States, in 1835, made a demand on Portugal for the 
 loss. After protracted negotiations, it was finally agreed, by treaty concluded on 
 the 24th of February, and ratified on the loth of March, 185 1, to submit the 
 claim to arbitration, and Napoleon III, then president of France, was chosen as 
 referee. On the 3d of November, 1852, he rendered an award in favor of Por- 
 tugal, which was accepted and acquiesced in by our government. Captain Reid, 
 in behalf of himself, and the owners, officers and crew of the privateer, then pre- 
 sented a claim against the United States for $131,600. The grounds upon which 
 the liability of the government was based are discussed by Mr. O'Conor with 
 great learning and ability. The case was finally brought on for argument on the 
 17th of November, 1855, before the United States Court of Claims at Washington, 
 present Hon. John J. Gilchrist, C. J., Hon. Isaac Blackford, and Hon. George 
 P. Scarburgh. Mr. O'Conor was successful. The views advanced by the great 
 advocate were 'afterwards adopted by the court which rendered judgment in 
 favor of his clients. The claimants were represented by Charles O'Conor and 
 13 
 
lOi ARGUMENT OF CHARLES O'CONOR IN THE 
 
 Sam. C. Reid, Jr., of New York; Hon. P. Phillips of Alabama; and Hon. Charles 
 Naylor of Pennsylvania. Hon. Montgomery Blair, U. S. Solicitor, represented 
 the government. After all the counsel had spoken, Mr. O'Conor, on the 27th of 
 November, closed the case for the claimants as follows : 
 
 May it please the Court: — The claim now presented for 
 adjudication may be placed upon several distinct grounds. In the 
 first place, we contend that the General Armstrong was employed 
 by her officers and crew in the service of the United States, and 
 against the public enemy, under such circumstances that, on being 
 advised of the facts and of the great benefits which resulted there- 
 from to the country, it became the government, as a matter of 
 equity, to adopt the act and to indemnify the parties against the 
 expense incurred. 
 
 Our second general head embraces the following elements: The 
 General Armstrong, whilst lying in the port of Fayal, was entitled 
 to absolute protection from the Portuguese government. That 
 protection was not afforded; in violation of the neutrality of that 
 port, she was destroyed by the forces of a British squadron; and 
 for this delinquency on the part of Portugal, her owners had a 
 perfect right, by the law of nations, to be fully indemnified. The 
 owners had themselves no legal capacity to prosecute this claim 
 directly; but, on establishing its validity, they were entitled to 
 redress through the action of their own government against that of 
 Portugal. The United States, accordingly, investigated the claim, 
 decided in favor of its justice, assumed the control of it, and 
 entered upon the duty of enforcing it. Instead, however, of pros- 
 ecuting it to an issue by legitimate means, the government receded 
 from its duty in that respect, and actually extinguished the claim, 
 whereby a right has accrued to the owners to demand compensa- 
 tion from the public treasury. 
 
 Each step in the argument by which these conclusions are 
 arrived at, seems to us quite clear and intelligible; but the learned 
 solicitor for the government has advanced a great variety of objec- 
 tions, and it is principally in answering these that we shall engage 
 the time and attention of your honors. 
 
 I. Unprecedented character of the claim, and the 
 
 court. 
 
 The absence of precedents has been urged against us, and we 
 have been called upon to produce from the books of the common 
 law some instance of an action brought, a trial had, and a judg- 
 ment rendered for the plaintiff upon a claim like the present. We 
 
CASE OF THE BRIG-OF-WAR GENERAL ARMSTRONG. 195 
 
 cannot comply with this unreasonable demand; but neither can we 
 admit that our claim should suffer on that account. The nation 
 itself is here a defendant, responding to the claim of a private 
 suitor for reparation of injuries sustained — a thing unparalleled in 
 jurisprudence. The court itself is the first-born of a new judicial 
 era. Consequently, we cannot hope to find among the narrow 
 rules and practical formulae which ordinarily govern in determining 
 mere questions of property between citizen and citizen, the lights 
 which are to guide its judgment. As a judicial tribunal, it is not 
 merely new in the instance; it is also new in principle. So far as 
 concerns the power of courts to afford redress, it has heretofore 
 been fundamental that the sovereign can do no wrong. This court 
 was erected as a practical negative upon that vicious maxim. 
 Henceforth our government repudiates the arrogant assumption, 
 and consents to meet at the bar of enlightened justice every right- 
 ful claimant, how lowly soever his condition may be. 
 
 Whence is such a tribunal to extract the principles by which its • 
 action is to be governed — by which it shall test and allow or dis- 
 allow the claims which may come before it ? In ordinary cases of 
 specific rights declared by some particular statute or regulation, 
 its path may be easy. But in those extraordinary cases which are 
 dependent upon principles not hitherto falling within the judicial 
 authority, which has never been enforced against the State, and 
 which, consequently, courts have never declared in their judgments 
 or illustrated in their opinions, difficulties may bc'cncountered at 
 the outset. To meet and surmount these, if they exist, is one of 
 the high and responsible duties devolved upon your honors, as 
 pioneers in this newly opened chapter of juridical science. 
 
 Though without exact precedents, you are not wholly without 
 chart or compass. A reference to the origin and growth of juris- 
 prudence, in instance the most analogous, will furnish a sufficient 
 guide. 
 
 2. Origin and growth of jurisprudence. — Classification of 
 rights and remedies. 
 
 Rights and their correlative duties are divided into two classes, 
 that is to say, the perfect and the imperfect. The only difference 
 between these classes is in external circumstances — intrinsically or 
 morally there is none. Perfect rights are those which may be en- 
 forced by established remedies; perfect duties are those the per- 
 formance of which may be coerced; a right of imperfect obligation 
 
196 ARGUMENT OF CHARLES O'CONOR IN THE 
 
 is one for the enforcement of which no remedy is provided. Juris- 
 prudencCj as administered by human tribunals, deals only with the 
 means of enforcing rights which are recognized as perfect; but like 
 all moral sciences, it is capable of improvement. As the general 
 mind of a nation advances in that freedom which is the result of 
 increased knowledge, the legislative authority will constantly en- 
 large the sphere of action assigned to jurisprudence, and increase 
 its power of establishing justice. Jurisprudence is only the means, 
 justice is the end. Jurisprudence is of human origin; justice is an 
 attribute of divinity, pre-existent of all created thing?, eternal and 
 immutable. Its authority is not derived from any human code, 
 either of positive institution or of customary reception; its decrees 
 are found in the voice of God speaking to the heart which faith 
 has purified to receive and reason enlightened with capacity to un- 
 derstand. 
 
 When thus aided by the legislature, jurisprudence is enabled to 
 , enlarge the circle of perfect rights, by furnishing, from time to 
 time, new instrumentalities for enforcing justice. Est boni judicis 
 ampliare jurisdictionem, is a sound and unexceptionable maxim; 
 for the exercise of jurisdiction is but giving to men in a practical 
 form the behests of divine justice, and enforcing their observance. 
 This is well illustrated by the rise and progress of the English law. 
 In the lofty growth of equity, by the side of its stunted rival, the 
 common law, we see by what means rights founded in justice and 
 conscience, but. not yet recognized by positive law, may rise in 
 grade, acquire recognition, and become enforceable by adequate 
 remedies. In that example this court will find the best lights for 
 its government. In our early law books we find it urged and ad- 
 mitted, that " every right must have a remedy.'' But Lord Chief 
 Justice Vaughan stripped this common place of all its force, by 
 replying, "where there is no remedy, there can be no right:" The 
 common law judges of England always acted upon the principle 
 embodied in this remark. From their rigid adherence to it arose 
 the necessity of a distinct jurisdiction — the power of equity to 
 compel an observance of those duties which conscience enjoined, 
 but which positive law had provided no means of enforcing. 
 
 3. Object and purposes of legal tribunals. 
 
 The ordinary courts of law are not created to declare or enforce 
 justice in the abstract, or justice in general.' Their function is to 
 
 ' See note a to De Bode v. Regina, 13 Queen's Bench R. p. 387. 
 
CASE OF THE BRIG-OF-WAR GENERAL ARMSTRONG. 197 
 
 effectuate such human rights only as, in the existing stage of its 
 progress, jurisprudence is enabled to bring within the sphere of its 
 remedial forms, leaving all others to be sought by entreaty and 
 yielded by free will. The judge is obliged to dismiss every claim, 
 however just, for enforcing which he cannot find an appropriate 
 writ in the register; and, consequently, the regret of the bench and 
 a deep censure upon the defendant is often expressed in the same 
 breath with a judgment denying the remedy sought. 
 
 This was strikingly exemplified in the case of Jackson v. Bar- 
 tholomew.' An honest farmer seeing his neighbor's wheat-stack 
 on the verge of being consumed by fire in the owner's absence, 
 voluntarily assumed the task of saving it, and did so at a slight 
 cost. Reimbursement being churlishly refused, he brought an ac- 
 tion in a justice's court, and the rustic magistrate, not learned 
 enough to know that legal policy sometimes stifles the voice of 
 conscience, decided in favor of the plaintiff. The defendant ap- 
 pealed; and when reversing the decision on the ground that for a 
 service, however beneficial, rendered without a previous request,' 
 no action lay, the Supreme Court of New York denounced the 
 defendant's conduct as "most unworthy." In this censure all 
 honest men must concur. No one could doubt that, had the owner 
 of the wheat been present at the moment of peril, he would have 
 requested aid and promised compensation. An honest man would 
 have conceded this, ratified his neighbor's kind intervention, and 
 promptly repaid his expenditure; but selfishness saw that this was 
 a duty of imperfect obligation, and a callous conscience dishonor- 
 ably refused to perform it. 
 
 4. Early struggles of the English chancellors in fram- 
 ing A SYSTEM OF EQUITY. 
 
 The equity jurisdiction of Great Britain has been considered as 
 an anomaly in legal science. Continental jurists seem never to 
 have comprehended it; though it could easily be shown that no 
 civil society ever existed in which there were not some remediable 
 forms of injustice which lex non exacte definit sed arbitrio boni virt 
 permittit.' Institutions which are novel in form, will always excite 
 criticism and opposition, however harmonious they may be, in prin- 
 ciple, with what has gone before. But the difficulties which may 
 beset the path of this court, at the outset of its high career, can- 
 
 ' 20 Johnson's Reports, p. 28. * Story's Eq. Jur. §§ 8, 9. 
 
198 ARGUMENT OF CHARLES O'CONOR I'S THE 
 
 not be greater than those which surrounded the early English 
 chancellors in their efforts to mitigate the rigor and supply the 
 imperfections of positive law. They had no judicial precedents to 
 guide them in stilling the waves of contention; the great unwritten 
 law of natural justice alone governed. They claimed to deal with 
 matters binding in conscience only, and the power to enforce its 
 dictates. At every step they had to contend with the argument 
 now urged against us, that there was no legal remedy, and conse- 
 quently the law left it optional with the defendant how to demean 
 himself in the premises. As in the present case, the law — the law 
 was dinned into the ears of the court, by the advocates of wrong, 
 with loudness and pertinacity; but the clamor was unavailing. 
 Without aid from precedents, but guided by principles, the courts 
 grappled with and mastered the devices of iniquity. Justice! 
 Equity! Conscience! words without definition, and incapable of 
 being defined, alone prescribed their jurisdiction, and neither legal 
 nor political science had any further connection with the new cases 
 arising before them, than to aid in solving the question how far 
 State policy would admit of right being done to the injured suitor. 
 To the precise extent which a due regard to public policy 
 would admit, the masters of equity encroached upon the territory 
 of imperfect duties, making firm land wheresoever they trod. 
 Thus they gradually redeemed from the outlawry to which igno- 
 rance or inexpertness had consigned them, a large class of imperfect 
 rights, and enforced a large class of duties before deemed imper- 
 fect — because not enforceable — but which were always obligatory 
 in the eyes of God, and were always voluntarily performed by 
 honest men. 
 
 5. Character and importance of the Court of Claims. 
 
 Prior to the institution of this court, all rights, as against the 
 nation, were imperfect in the legal sense of the term; every duty 
 of the nation was a duty of imperfect obligation. There was no 
 judicial power capable of declaring either; no private person pos- 
 sessed the means of enforcing the one or coercing the other. These 
 rights may be deemed still to remain, in one sense, imperfect; for 
 the decrees of this court cannot be carried into execution by au- 
 thority of the court itself. But effectual progress has been made 
 toward giving form and method to the administration of justice 
 between the nation and the individual. This court enables the 
 latter to obtain an authoritative recognition of his right. No more 
 
CASE OF THH BEIG-OF-WAR GENERAL ARMSTRONG. 199 
 
 is needed; for in no case can a State, after such a recognition, 
 withhold payment and yet retain its place in the great family of 
 civilized nations. The ordinary jurisdiction of the court bears a 
 strong resemblance to the narrow cognizance at common law; but 
 its extraordinary jurisdiction over " all claims which may be re- 
 ferred to it by either house of Congress," extends its power to the 
 utmost limits attainable by juridical science in its fullest develop- 
 ment. In this aspect, its dignity and importance as a governmental 
 institution cannot be too highly appreciated. As a means by which 
 rightful claims against the government may be readily established, 
 and those not founded in justice promptly driven from the portals 
 of Congress, it must exercise a most healthful influence. But we 
 are authorized to look hig'her than the mere convenience of suitors 
 and the dispatch of public business. Enlightened patriotism will 
 contemplate other and more important consequences. Caprice can 
 no longer control. Here equity, morality, honor and good con- 
 science must be practically applied to the determination of claims, 
 and the actual authority of these principles over governmental 
 action ascertained, declared and illustrated in permanent and abid- 
 ing forms. As step by step, in successive decisions, you shall have 
 ascertained the duties of government toward the citizen, fixed their 
 precise limits upon sound principles, and armed the claimant with 
 means of securing their enforcement, a code will grow up, giving 
 effect to many rights not heretofore practically acknowledged. In 
 it will be found enshrined for the admiration of succeeding ages an 
 honorable portraiture of our national morality, and a full vindica- 
 tion of the eulogium recently pronounced upon our people by the 
 highest authority in the parent State. " Jurisprudence," says Lord 
 Campbell, in the Queen v. Millis,' " is the department of human 
 knowledge to which our brethren in the United States of America 
 have chiefly devoted themselves, and in which they have chiefly 
 excelled." 
 
 6. Power of the court to create remedies, and grant 
 
 RELIEF. 
 
 Whilst we assert that this court does not stand super antiquas 
 vias in anything which concerns mere procedure, and, consequent- 
 ly, that the call for judicial precedents is idle and unreasonable, we 
 admit that cases arising here must be determined in conformity 
 
 ' 10 Clarke & Finnelly, p. 777. 
 
200 ARGUMENT OF CHARLES O'CONOR IN THE 
 
 with established principles. It has been truly said, that " you have 
 no power to invent rights," but it must be conceded that you have 
 express power to invent remedies. The seventh section of the act 
 creating the court, provides that you shall prepare to be laid before 
 Congress for enactment, the requisite bill or bills in those cases 
 which shall have received your " favorable decision, in such form 
 as, if enacted, will carry such decision into effect." This, accord- 
 ing to Mr. Justice Ashhurst, in Pasley v. Freeman,' is the precise 
 mode of dealing with cases which are without precedent in the 
 known practice of judicial tribunals. 
 
 We agree that you have jurisdiction only over that class of 
 cases which are claims properly so called. The applicant for 
 bounty must go elsewhere. Grace and favor, if it is ever proper to 
 bestow them, must be bestowed as heretofore, by Congress, without 
 your interference. But claims — claims which would be entitled, as 
 between individuals, to recognition and enforcement according to 
 known principles of law, or upon known principles of equity, are 
 to be vindicated and established by this court. We assert no more 
 than this, except so far as the nature of things may warrant a prac- 
 tical distinction between a sovereign State and an individual. In 
 this way the sphere of equity may, as against the government, ad- 
 mit of some expansion. In a case like that of the wheat-stack, 
 cited from Johnson's Reports, a court constituted as this is, could 
 find no difficulty in enforcing the claim against the government. If 
 a large quantity of public property, or any other great public inter- 
 est, were, at this moment, in danger of being sacrificed, under cir- 
 cumstances rendering it impossible to apply to the executive for 
 instructions or for the means of saving it, we insist that a reference 
 of the voluntary salvor's claim would enable this court, as keeper 
 of the nation's conscience, to award remuneration. We say that 
 government could not, any more than the owner of the wheat-stack, 
 conscientiously withhold compensation in such a case; and that, if 
 the claim should be sent here, this court would be bound to enforce 
 it. State policy may forbid that equity should go so far in a case 
 between individuals as to compel a man to make a request, as it 
 were nunc pro tunc. But why may not government ascertain, 
 through a proper judicial investigation, the existing and binding 
 force in equity of a claim upon it, which, in a private case, no 
 honest man would hesitnte to acknowledge; which no gentleman 
 could repudiate without dishonor ? 
 
 ' 3 T. R. p. 63. 
 
CASE OF THE BEIG-OF-VTAR GENERAL ARMSTRONG. 201 
 
 7. Condition of the republic in 1812. 
 
 When war was declared in 181 2, this republic was yet in the 
 infancy of her power. We could scarcely be said to possess either 
 an army or a navy. Though in the achievement of our independ- 
 ence we had won high renown, yet physical strength, the only attri- 
 bute which can enforce respect for the rights of a nation, was not 
 ours to any great extent, and was not imputed to us by any. Our 
 commercial marine had often been plundered with impunity. Even 
 our ships of war had not been exempt from search and impress- 
 ment. War with France, our early friend, had failed to protect us 
 from insult, and it was in an absolutely necessary defense of our ex- 
 istence as an independent State, that we were compelled to venture 
 upon hostilities with the greatest power of ancient or modern times. 
 The invasion of our neutral rights in navigating the ocean induced 
 the measure, the vindication of them was its immediate aim and 
 object.' 
 
 Our naval reputation at that time may be judged by the ro- 
 mantic temerity with which the Alert, a pitiful little English gun- 
 boat, in the first month of the war, bore down upon the Essex, a 
 32-gun frigate. 
 
 Perhaps we seized upon an opportune moment, for Britain was 
 engaged in an European war which tasked her utmost energies. 
 Even with this advantage on our side, the contest was very unequal; 
 but when at length the gigantic power of Napoleon was prostrated, 
 what was our condition ? The patroness of France, under her re- 
 stored dynasty, the foremost of a holy alliance of all monarchical 
 Christendom, with her thousand ships and her victorious legions 
 relieved from every other occupation, Britain stood prepared to 
 "crush us at a blow." Such, all will remember, was the language 
 of the times; and naught seemed to interpose between her resolve 
 and its execution but a brief time, as much as might be needed to 
 conquer intervening space. 
 
 Her force was soon felt. The sacred capitol of our Union, the 
 spot consecrated to liberty by the immortal Washington, fell into 
 the hands of her mercenaries. The thunder of her vauntings was 
 heard along our coasts, and at what vital point her apparently 
 resistless force was next to fall upon us, none could tell. 
 
 ' Annals o£ Thirteenth Congress, pp. 1419-1427, 1431. 
 
202 ARGUMENT OF CHAELES O'CONOE IN THE 
 
 8. Story of the destruction of the "American 
 Privateer." 
 
 At that critical juncture ^September 9th, 1814), the General 
 Armstrong set sail from New York upon a cruise designed to harass 
 our powerful antagonist. On the seventeenth day out she cast 
 anchor in the neutral port of Fayal, for the purpose of taking in a 
 supply of water. Soon after, on the same day, a British squadron, 
 under the command of Captain Lloyd, consisting of a seventy-four- 
 gun ship, a frigate of thirty-eight guns, and a sloop of war carrying 
 eighteen guns, entered that port for the same purpose. Two con- 
 flicts took place between the American privateer and a body of 
 armed men sent in boats from the British fleet to assail her, which 
 terminated in the destruction of the privateer. 
 
 This violation of neutrality, and the consequent loss of our 
 property, entitled us to demand compensation as claimants upon 
 the justice of Portugal. 
 
 Questions of law have been raised as to this asserted liability 
 of Portugal. These we must dispose of in the first place. 
 
 9. Liability of Portugal. 
 
 It is said that Captain Reid, having himself resorted to violence 
 and struck the first blow, must be deemed the aggressor, however 
 apparent it may have been that such resort was necessary to save 
 his vessel from capture. It is also said, that the obligation of a 
 neutral to make compensation in such cases is not absolute; that if 
 a neutral, at the time and place of the aggression, employs all the 
 means in his power to prevent it, this is all that can be required. 
 Of course, in this connection, it is conceded that if there be negli- 
 gence in providing, at such time and place, the amount of defensive 
 force which might, under all circumstances, be reasonably required, 
 or if there was a failure in the due and effectual employment of 
 such force, from pusillanimity, gross ignorance, or want of skill on 
 the part of the neutral, responsibility might ensue. What singular 
 questions for discussion between nations would arise in the investi- 
 _gation of these points! In following out its consequences, this 
 idea of limiting national responsibility within the compass of na- 
 tional power, it is said that property unlawfully seized by a third 
 power, within the territory of a neutral, must be restored by the 
 courts of the latter, in case it should come within their reach; but 
 that when the property is destroyed, or for any other reason cannot 
 
CASE OF THE BRIG-OF-WAR GENERAL ARMSTRONG. 203 
 
 be thus subjected to legal process, the neutral is only bound to use 
 his best exertions to procure compensation. 
 
 To illustrate what is meant by this employment of his best 
 exertions, it is argued that a neutral is not bound to go to war in 
 such a case; that it would be unreasonable and, consequently, un- 
 just to require a feeble State to involve itself in hostilities with a 
 powerful aggressor merely for the sake of obtaining justice for the 
 stranger; that friendly negotiation and urgent entreaty for compen- 
 sation constitute the whole duty of a weak neutral State, whose 
 territory has been unlawfully converted into a theater of war by a 
 powerful belligerent. 
 
 Notwithstanding their palpable absurdity, these doctrines are 
 gravely insisted on. From a perusal of the correspondence be- 
 tween the two governments, it might be thought that some of the 
 able and patriotic negotiators who, from time to time, sought the 
 enforcement of the claim against Portugal, conceded these doc- 
 trines; for they condescended, in arguing against them, to discuss 
 the evidence, relying, as they well might, upon its insufficiency to 
 excuse Portugal, even if the rule of law was as contended for. 
 We shall adopt the same line of argument; but we protest, at the 
 outset, against any such inference as against us. We do not ac- 
 quiesce in any of these doctrines. They are founded in the grossest 
 misconception of public law, and a singular blindness to the plain- 
 est dictates of common sense. We proceed to prove this, seeking 
 thereby to establish that, in point of law, our claim was perfectly 
 valid against Portugal, until that government was released by the 
 acquiescence of the United States in Louis Napoleon's- award. 
 
 10. The United States could look to Portugal alone 
 for redress. 
 
 England could in no event be held responsible to the United 
 States or to the aggrieved parties. As between belligerents them- 
 selves, it is the right of each to make war upon the other, his sub- 
 jects and property, wheresoever he can find them. " A capture 
 made within neutral waters is, as between enemies, deemed to all 
 intents and purposes rightful. It is only by the neutral sovereign 
 that its legal validity can be called in question. The enemy has 
 no rights whatever; and if the neutral omits or declines to inter- 
 pose a claim, the property (so captured) is condemnable, jure belli, 
 to the captor." " This," says the Supreme Court in The Ann, 3d 
 Wheaton's R. p. 435, "is a clear result of the authorities, and the 
 
204 AEGUMENT OF CHARLES O'CONOR IN THE 
 
 doctrine rests on well established principles of public law." True 
 it is, that Great Britain was responsible over to Portugal for any 
 sum which she might be obliged to pay; and hence, no doubt, the 
 British influence in procuring Louis Napoleon's award. But that 
 was a question altogether between Portugal and Great Britain; we 
 had no claim whatever against the latter. 
 
 It is affirmed, on all hands, that belligerents are bound to ab- 
 stain from hostilities within neutral territory, and that any violence, 
 except in self-defense, committed by them within such territory is 
 unlawful. It is unlawful as between the neutral and each of the 
 belligerents. The injured belligerent may claim indemnity from the 
 neutral, the neutral may demand reimbursement from the aggressor. 
 We refer to the case last cited, and also to i Wheaton, p. 405; 4 
 Wheaton, p. 52; Ibid. p. 298. 
 
 II. Rights of belligerents in neutral territory. 
 
 The rule requiring a total abstinence from hostilities within 
 neutral territory has, of course, the same limitation which is im- 
 posed by reason and necessity in every other case where violence 
 is prohibited. The right of self-defense is rightly called the first 
 law of nature. The arm of the civil magistrate cannot always be 
 extended to prevent injury to the citizen, and when it is not pres- 
 ent for his defense, he is not bound to submit unresistingly to 
 death or wounds. When the danger is imminent, and safety can- 
 not otherwise be purchased, the assailed party may always defend 
 himself, repelling force by force. The same authorities which as- 
 sert that a belligerent forfeits all claim to protection from a neutral 
 sovereign by commencing hostilities within his territory, admit this 
 right of self-defense. And this, let it be noted, is not the privilege 
 of returning a blow; that, indeed, is revenge or retribution, not 
 self-defense. Self-defense must foresee, anticipate, and defeat the 
 unlawful design whilst only threatened or mediated. Nothing else 
 is defense. Chief Justice Marshall says, in The Ann,' that " whilst 
 lying in neutral waters," a ship is " bound to abstain from all hostil- 
 ities, except in self-defense." Again he says, that no vessel in such 
 waters " is bound to submit to search, or to account (to the belli- 
 gerent) for her conduct or character." In a case somewhat anal- 
 ogous to the present. The Marianne Flora," Mr. Justice Story says, 
 in reference to defensive force used by the commander of a ship 
 
 ' 3 Wheaton, p. 435. " n Wheaton, p. i. 
 
CASE OF THE BEIG-OF-WAR GENERAL ARMSTRONG. 205 
 
 menaced by another: "He acted, in our opinion, with entire legal 
 propriety. He was not bound to fly or to wait until he was crippled. 
 His was not a case of mere remote danger, but of imminent, press- 
 ing, and present danger. He had the flag of his country to main- 
 tain and the rights of his cruiser to vindicate." It will be seen, 
 therefore, that Captain Reid's acts in defense of Jiis vessel were 
 lawful; that they involved no breach of duty on his part towards 
 Portugal, and that they in no degree lessened the duty of Portugal 
 to protect him. 
 
 12. A NATION LIKE AN INDIVIDUAL BOUND ABSOLUTELY TO 
 DISCHARGE ITS OBLIGATIONS. 
 
 What, is sometimes called local and temporary allegiance, but is 
 more properly termed obedience, is due to every government from 
 aliens and strangers sojourning within its jurisdiction. The neutral 
 State forbids hostilities within its territories between the armies or 
 navies of belligerents, precisely as the civil magistrate forbids 
 violence between individual enemies. By his laws and regulations, 
 he absolutely supersedes the law of nature, and promises absolute 
 protection in return for obedience. We may admit the truism that 
 neither men nor nations can go further in the performance of their 
 obligations than the employment of their utmost ability. But an 
 obligation like that under consideration is never, in itself, theoreti- 
 cally, nor for any practical purpose, subject to any such limitation. 
 A private man's obligations are no longer enforceable in fact, when 
 his whole means of payment are exhausted; but after that event 
 he remains charged with the residue of his indebtedness precisely 
 in the same degree as before. Until relieved by death, or released 
 by bankruptcy, he is still bound to his creditor. Poverty and weak- 
 ness may plead for indulgence, but neither can rightfully demand a 
 release. The obligation remains. So it is with nations; they must 
 perform their duties or cease to exist. There is no bankrupt act 
 for them; political extinction is their only refuge from the penalties 
 of unredeemed responsibility. 
 
 Although some crude remarks of publicists may be found afford- 
 ing a slight pretext for the argument, it cannot be maintained, that 
 the duty of a sovereign to afford full protection to the stranger 
 within his gates, whose presence he permits, is anything less than 
 absolute, or that the duty in this respect of a weak nation is any 
 less than that of a strong and powerful one. 
 
 When a private individual breaks the peace and does an injury 
 
206 ARGUMENT OF CHARLES O'CONOR Ilf THE 
 
 to another, the sovereign power subjects him, by due process of 
 law, to mulcts and penalties. His whole estate, if necessary, is se- 
 questered for the remuneration of the injured party. Precisely the 
 same measure of retribution is to be meted out for the like offense 
 when committed against persons or property by a foreign nation. 
 
 13. Portugal bound to prevent hostilities within its 
 jurisdiction. 
 
 ' Belligerents are not permitted to fit out ships of war or augment 
 their force in the ports of a neutral; but all nations allow their 
 ports to be visited by the vessels of those with whom they are in 
 amity, for the purpose of obtaining those necessaries of life which 
 are equally useful in peace or war. Therefore, it was entirely 
 proper for the American privateer and the British squadron to enter 
 the friendly port of Fayal, as they did, to supply themselves with 
 water. But it was the duty of both to preserve the peace while 
 there, and that duty was enforced to the utmost against the pri- 
 vateer by the Portuguese authorities. After the first attack upon 
 the General Armstrong, and in anticipation of the second. Captain 
 Reid sought the governor's permission for thirty, of his country- 
 men, then on shore at Fayal, to come on board and assist in the 
 defense of his vessel. The application was peremptorily refused; 
 and Louis Napoleon, in his award, commends as worthy of all 
 praise the act of the governor, in thus effectually preventing an 
 augmentation of the American force. We agree that this was per- 
 forming precisely, and to the letter, the duty of Portugal towards 
 England. But we insist, however excusable the governor may 
 have been from want of power, that the supreme government of 
 Portugal was bound effectively to have prevented hostilities against 
 those who were restrained by its laws from employing their own 
 means of self-defense. 
 
 The learned solicitor asserted, that the Portuguese government 
 was not bound to protect strangers, any more than it was bound to 
 protect its own people. Perhaps it was not. It is the duty of 
 every government to protect its own people, and when violence has 
 been committed upon them, to enforce redress from the wrong-doer 
 to the whole extent of such wrong-doer's ability. The same duty 
 exists to preserve the peace within neutral territory between bel- 
 ligerent nations. The reason is obvious; the local authority com- 
 pels the belligerent parties to keep the peace, and it is therefore 
 bound to protect them. This seems to us so plain, so obvious, that 
 
CASE OF THE BRIGOF-WAR GENERAL ARMSTRONG. 207 
 
 no argument is necessary to enforce it. Indeed, the general propo- 
 sition is not denied; we have only to combat an attempt to fritter 
 it away in practice by subtle distinctions. 
 
 14. Extent of the liability of a neutral. 
 
 The extent of the liability upon the part of the neutral power, 
 to furnish compensation from its own treasury for the losses in- 
 curred in consequence of its failure to keep the peace within its 
 territories, is alone disputed. If full reparation is not due to the 
 stranger, what is he entitled to? The attempts to answer this 
 question are ludicrous! It is said, that if a vessel is captured in 
 neutral territory, and afterwards comes within the same territory, it 
 should be restored to the original owner; but if it is carried off and 
 does not return within the neutral territory, then the neutral is not 
 liable. If this is true, then the total destruction of property involves 
 no liability at all, for the neutral cannot deliver up that which has 
 ceased to exist. As violence cannot always be prevented, what is 
 the duty of the neutral in those cases where destruction ensues ? 
 The learned solicitor says, the nation whose territory has been in- 
 vaded is to remonstrate with the aggressor; it is to appeal to him 
 in the name of justice, reason and friendship, to make amends to 
 the injured party. And it is said, if these means fail, the injured 
 party can claim no further redress. Can this be law ? The sover- 
 eign to whom the application is made, is the unrighteous transgres- 
 sor; he knows that the reparation sought is for his enemy. He 
 knows also that he has only to refuse, and the obligation of his 
 neutral friend will be satisfied. By a simple refusal he can close 
 the transaction and settle the account forever. If this were really 
 the extent of the neutral liability, the whole notion of a right to 
 indemnity would be the merest farce. 
 
 We insist that the obligation of the neutral power is to prevent 
 hostilities, if practicable; and, if that be impracticable, then to 
 make compensation for the injury sustained. 
 
 15. Such liability absolute. 
 
 The notion of limiting the duty to prevention or to the employ- 
 ment of such force as may halppen to be at the spot for that pur- 
 pose, is extremely absurd. It can rarely be in the power even of 
 the greatest States to maintain at every point of their territories a 
 force adequate to prevent violations of their neutrality. Indeed, 
 
208 ARGUMENT OF CHARLES O'CONOR IN THE 
 
 when the force exists, the local officer is not always justifiable in 
 employing it. If the commander of a dozen British seventy-four- 
 gun ships, lying in one of our ports, where they had touched for 
 provisions, should seize a Russian ship, refuse to surrender her to 
 the marshal, and, as Lloyd did at Fayal, threaten, in case of inter- 
 ference with his capture, to bombard the town and slaughter its 
 inhabitants, would the local authorities be bound to plunge at once 
 into the horrors of irregular war ? In most cases the force on the 
 spot would be wholly inadequate to effective resistance. But when 
 it happens otherwise, we doubt the expediency of such a resort. 
 Vastly less mischief would result, in ordinary cases, from leaving 
 the wrong to be redressed by the supreme power. Then, if war 
 should come, it would be met with fitting preparation. The armed 
 warrior, not the women and children of a peaceful town, would 
 encounter its brunt. We deny that the governor of the Azores 
 could properly have employed his military force in open war upon 
 the fleet of a powerful nation, which was not only the friend and 
 ally, but, it may be said, the protector of his sovereign. Even if 
 his force had been adequate, the act would have been rash and in- 
 judicious. It is quite clear that in such cases the local authorities 
 should most generally submit to the violence, leaving it to the su- 
 preme government to apply the proper remedy. And it is equally 
 clear that indemnity is the only remedial justice which can ordi- 
 narily be had. If the neutral State has any duty to perform, it is 
 the procurement of such indemnity. 
 
 i6. Such liability not affected by the strength of the 
 
 GOVERNMENT. 
 
 In the obligations which thus rest upon neutrals, there is no 
 difference between strong and weak nations. We commonly say, 
 that in the eye of the law all men are equal. So, in international 
 law, all sovereigns are on a perfect equality. Consequently a State, 
 however feeble, cannot maintain its rank and position in the family 
 of nations without performing its public duties When it fails in 
 this respect, it must necessarily fall exactly into the same condition 
 as an individual engaged in trade, who, failing to pay his debts and 
 to perform the duties of his station, loses all credit and position 
 among his fellow-men. This doctrine is reasonable; no other 
 would be tolerable. A feeble State has at its command a suitable 
 remedy for every such case. When wronged by a powerful nation, 
 
CASE or THE BEIG-OF-WAE GENERAL ARMSTRONG. 209 
 
 it may invoke the reprobation of mankind by a proper exposition 
 of the act. The force of opinion is great, and nations have been 
 constrained to respect it in the worst of times. If this resort 
 should fail, it may form an equal alliance with other States of its 
 own class, or it may seek the protection of one more powerful. If 
 it can be supposed that none of those means would enable it to 
 redeem its obligations, nothing <;an be clearer than that it should 
 declare itself bankrupt and relinquish its pretensions to sovereignty. 
 To prove that for injuries to property sustained by a belligerent, 
 within the territory of a neutral, from hostilities there unlawfully 
 prosecuted against him by his enemy, the neutral sovereign is only 
 bound to afford the measure of redress which may be within his 
 ability, your honors are referred to the text of certain treaties be- 
 tween the United States, England, France, Russia, and Holland. 
 We there find stipulations to the effect that each nation engages to 
 " use its utmost endeavors to obtain from the offending party full 
 and ample satisfaction for the vessel or vessels so taken," or to 
 " protect and defend by all means in its power the vessels, &c., and 
 restore the same to the right owner." These treaties are relied 
 upon as full evidence of the sense entertained by the great maritime 
 States, as to the extent of the obligations of neutrals in the partic- 
 ular now under consideration. It is claimed that they are not 
 merely strong, but decisive evidence of ihej'us gentium. We admit 
 the proposition in its broadest extent. It only remains, then, to 
 inquire what is meant by the '' utmost endeavors " of a nation, or 
 by the employment of " all means in its power." Our government 
 is one party to these treaties. Do we, when promising to use our 
 utmost endeavors and all means in our power, intend to say that 
 we will humbly pray for justice and earnestly expostulate against 
 injustice? Does this involve a complete exhaustion of all the 
 means in our power ? And if, indeed, we are so weak and so de- 
 graded as this, is Great Britain, is powerful and martial France, 
 with more than forty millions of warlike subjects, equally so ? 
 The small kingdom of Holland is also a party to these treaties. 
 Surely these same words, in the same treaty, do not mean one 
 thing as applied to one party, and a different thing as applied to 
 the other party. We respectfully insist that the rule, as expressed 
 in the text of our writers on international law, and in these treaties, 
 means nothing less than that the neutral State is bound to obtain 
 or to make restitution for every outrage committed upon friendly 
 nations within its limits, peacefully if it can, forcibly if it must. 
 14 
 
210 ARGUMENT OF CHARLES O'CONOR IN THE 
 
 17. Neither poverty nor weakness a ground of exemption. 
 
 A few words in Mr. Wheaton's comment upon these treaties are 
 thought to favor the doctrine of limited liability now contended 
 for. In Mr. Lawrence's edition of the Elements of International 
 Law, p. 497, the author says: " They were not bound to make 
 compensation, if all the means in their power were used and failed 
 in their effect." But he does not, by example or otherwise, give 
 the least clue to his notions concerning the means which must be 
 used by the " high contracting parties " in order to fulfill the obli- 
 gation created by these words. Observing upon the jurisdiction 
 over captures in neutral territory exercised by the admiralty courts 
 of the neutral, he says, it is " exercised only for the purpose of 
 restoring the specific property, and does not extend to the infliction 
 of vindictive damages, as in ordinary cases of maritime injuries." 
 This sentence is the learned solicitor's leading authority for the 
 position, that when the specific property is destroyed the neutral 
 has no duty to perform. An important distinction, however, exists 
 between the obligations of a sovereign power, which are to be rec- 
 ognized and performed through its executive,, and the much more 
 limited field of admiralty jurisdiction. Of course, a court of ad- 
 miralty could neither draw upon the public treasury, nor levy war 
 upon a foreign power. But we can find in Mr. Wheaton's work no 
 evidence that he ever intended to sanction the doctrine that sover- 
 eign power can excuse itself from performing the duties of sover- 
 eignty on the plea of weakness. 
 
 We have been asked, whether we mean to insist that Portugal 
 was bound to go to war? We answer, certainly not. Portugal 
 owed us no such obligation. The question, so far as war is con- 
 cerned, was, whether she owed that measure to herself ? Her obli- 
 gation was to yield us protection, and having failed in that, to in- 
 demnify us. Whether she would prosecute a claim against Great 
 Britain by the sword or otherwise, for reimbursement, was alto- 
 gether her own affair. If she was so weak or so pusillanimous as 
 to waive her rights in this respect, we certainly could not complain. 
 We only say that her high state amongst the powers of earth re- 
 quired her to protect or indemnify us, and forbid her to plead 
 weakness or poverty as a ground of exemption. 
 
 The unlimited liability of the neutral in such cases is asserted 
 by the highest authorities on international law. It is asserted in 
 the published speeches of nearly every legislator who has spoken 
 
CASE OF THE BRIG-OF-WAR GENERAL ARMSTRONG. 211 
 
 upon this claim. All our administrations, without exception, have 
 maintained it. Portugal herself conceded it in 1814, and even 
 Louis Napoleon admits it. He says, in his award, that, if Captain 
 Reid had not released her by his own conduct, Portugal was under 
 an obligation " to afford him protection by other means than peace- 
 ful intervention." The original liability of Portugal is therefore 
 manifest, unless Captain Reid, by some misconduct on his own 
 part, forfeited the protection which she owed him. Whether he so 
 misbehaved, is a question of fact which we will discuss hereafter. 
 
 18. Government "botjnd to enforce a subject's claim for 
 
 DAMAGES against A FOREIGN POWER. 
 
 The next question of law is, whether the enforcement of this 
 claim against Portugal devolved upon the United States as a pub- 
 lic duty. 
 
 In return for the allegiance claimed by the sovereign, says Mr. 
 Justice Blackstone, the sovereign " is always under an obligation to 
 protect his subjects at all times and in all countries." And that 
 this right of the subject "can never be forfeited by any distance of 
 place or time, but only by misconduct." ' 
 
 The Lord Chancellor of England, on the argument of Baron de 
 Bode's case,' says: "It is admitted law that, if the subject of a 
 country is spoliated by a foreign government, he is entitled to ob- 
 tain redress through the means of his own government. But if, 
 from weakness, timidity, or other cause on the part of his own gov- 
 ernment, no redress is obtained from the foreigner, then he has a 
 claim against his own country." 
 
 These are the maxims of monarchy at his day. It was the pride 
 of her who, in ancient times, gave law to men and nations, that, in 
 the most distant climes and among the most barbarous people, " I 
 am a Roman citizen " was a certain passport to safety. Shall it be 
 said that our republic yields a less perfect protection to her citi- 
 zens ? We trust not. Mr. Justice Parker, one of the most eminent 
 of American jurists, recognizes the rule that in such cases there 
 rests an " obligation on the government of the United States to 
 procure redress for its citizens, or itself to reimburse them." ' On 
 
 ' Wendell's Blackstone, pp. 370, 371, and notes. 
 
 ' 16 Eng. L. & Eq. Reports, p. 23. 
 
 ' Famam v. Brooks, 9 Pickering's Reports, p. 239. 
 
212 ARGUMENT OF CHARLES O'CONOR Itf THE 
 
 this head, there is no lack of precedents. Half the diplomacy of 
 nations has been devoted to obtaining securities for their merchants 
 when subjected in person or property to the jurisdiction of other 
 States; half the treaties on record contain provisions for ascertain- 
 ing dues and making compensation on account of past failures in 
 this respect, and all of them abound with mutual pledges of pro- 
 tection for the future. From the father of his country to our pres- 
 ent chief magistrate, no executive has sent to Congress an annual 
 message unmarked with recognitions of this duty. We defy refer- 
 ence to a single instance in which the President has failed annually 
 to apprise Congress of his progress in pending efforts to obtain for 
 our citizens redress of grievances suffered by the acts or omissions 
 of other nations. 
 
 The duty of our government in this respect cannot be denied. 
 It is not denied. The questions are, how far did that duty extend ? 
 was there any failure in performing it ? and, if so, is the govern- 
 ment responsible for the consequences ? 
 
 19. The government responsible for its failure to 
 enforce such claim. 
 
 Responsibility is denied on many grounds. In the first place, 
 we are told, the government of the United States, in prosecuting 
 claims against foreign powers for redress of grievances suffered by 
 our citizens, is merely the agent of the injured individual; and, as- 
 suming as applicable the same rules which obtain in the common 
 law, concerning the private relation of principal and agent, or, 
 more exactly speaking, master and servant, it is said that the claim- 
 ants did not object to the treaty with Portugal before it was made, 
 or afterwards so protest against it, or against the action had under 
 it, as to screen themselves from the imputation of having ratified 
 the act of their servant by implied consent or acquiescence. It is 
 said the subsequent action of the claimant amounts to acquiescence; 
 acquiescence is assent; assent is ratification, and then comes, in 
 this common maxim of servile law, " a subsequent assent is equiva- 
 lent to an original command." 
 
 On the other hand, and with equal confidence, it is asserted, 
 that the government is the sole judge what claim of the citizen it 
 will enforce ; in what manner, at what time, by what means, and to 
 what extent, it will enforce them. It may, says our learned op- 
 ponent, relinquish them, submit them to arbitration, and to any 
 kind of arbitrament it judges to be expedient in reference to the 
 
CASE OF THE BRIG-OF-WAR GENERAL ARMSTRONG. 213 
 
 general interests of the republic; it may accept a compromise, or 
 it may release them without compensation, or for a consideration of 
 benefit or convenience to the public. In fine, its power over the 
 whole subject is claimed to be absolute in the most comprehensive 
 ^ense of the word, no responsibility attaching to its action, what- 
 ever that action may be. 
 
 It is true, that when laying down this latter proposition, the gov- 
 ernment solicitor became appalled by the enormity of his own doc- 
 trine. First, relieving his conscience by an empty admission that 
 it would be wrong, nay, iniquitous, to sacrifice a private right to the 
 public convenience, he endeavored to close this part of the discus- 
 sion by asserting that nothing of the kind had ever been done in 
 the whole practice of the government. But feeling, as he reached 
 it, that this assertion begged the very question before the court, he 
 returned like a stout-hearted champion to his starting point, and 
 insisted that the power was vested in our government thus to deal 
 with, traffic in, and for its own benefit dispose of the private right 
 of the citizen, without any responsibility whatever. 
 
 The two heads of exemption from liability thus advanced for 
 the government, are manifestly inconsistent. It must be admitted 
 that they cannot stand together; we hope to show that neither of 
 them is well founded. 
 
 20. In its prosecution, the government is not the agent 
 
 OF THE claimant. 
 
 How can the government be an agent or mere servant, liable to 
 be restrained by the master's prohibition, or affected by his subse- 
 quent censure, and, at the same time, possess absolute discretionary 
 power over the whole subject, free from control, restraint or respon- 
 sibility ? The inconsistency is too glaring. 
 
 An individual despoiled by the rapacity, or aggrieved by the 
 negligence of a foreign power, cannot lawfully wage war, or in any 
 other form prosecute directly a claim for indemnity. His only 
 remedy is to invoke the aid of his own government. By a funda- 
 mental rule of the social compact, sanctioned by immemorial 
 practice, every community is bound to afford this kind of protec- 
 tion to its members. And when a sovereign State, in the perform- 
 ance of this duty, appears as a prosecutor for redress of injuries, 
 the claimant and respondent are equal in power and dignity. The 
 individual wrong-doer, and the individual sufferer, are alike lost 
 sight of. The responding State cannot avoid liability by delivering 
 
214 ARGUMENT OF CHARLES CCONOR IN THE 
 
 up for sacrifice its agent or subject; neither is the claiming State 
 lO be deemed a mere agent of the aggrieved person. It does not 
 act in the name or by the authority of the injured individual, but 
 in its own name and right, as ultimate and paramount lord pro- 
 prietor of all things, and sovereign of all persons, within its juris- 
 diction. Between these " high contracting " or high contending 
 parties is the suit and the trial; between them must be the judg- 
 ment, whether obtained by negotiation, awarded by arbitrament, or 
 won by the sword.' 
 
 As the respective nations are the parties, and the only known or 
 recognized parties to the controversy, it necessarily follows that 
 any act of the claiming power, which bars its right of farther pros- 
 ecuting the claim, works an extinguishment of the claim itself; is, 
 in substance and effect, a release to the respondent. 
 
 The methods of pursuing such a claim are negotiation, and fail- 
 ing that, war, or, if the respondent will consent, arbitration. In 
 all cases which admit of its application, the latter is a resort fa- 
 vored by wisdom and humanity. When a claim is mutually sub- 
 mitted to arbitrament and determined by the arbiter, that law of 
 honor and good faith which nations must obey," declares the award 
 to be final, unless a just and defensible cause can be assigned for 
 disregarding it. If, upon its publication, neither party protest 
 against it, the award becomes conclusive, whatever may be its 
 moral or legal vices. 
 
 21. Submission of the claim to arbitration creates no 
 
 estoppel. 
 
 In the present case, a perfectly valid claim against Portugal has 
 been destroyed by the action of the government. We will prove 
 this by the evidence before your honors. The award of Louis 
 Napoleon stands in our way, and is relied upon as an estoppel. In 
 connection with our review of the merits, we hope to show that the 
 award is void as against us: first, for want of jurisdiction; second, 
 ly, because the government did not place before the arbiter, but ex- 
 pressly withheld from his view, important evidence, which afforded 
 him an opportunity to decide upon facts from his own notions or ex 
 parte stories, and sanctioned his availing himself thereof; thirdly, 
 because it refused us permission to be heard before the arbiter, or 
 to present an argument to him; and lastly, because even upon the 
 
 ' 5 Howard's U. S. R. p. 397. ' 8 Paige, p. 534. 
 
CASE OF THE BRIG-OF-WAR GENERAL ARMSTRONG. 215 
 
 imperfect proofs presented to him, the award is manifestly partial 
 and unjust. 
 
 Pursuant to the treaty with Portugal, by which this claim was 
 to be submitted to the arbitrament of a third power, the Secretary 
 of State, on the 20th of March, 1851, "in accordance," as he 
 states, " with suggestions made by M. de Figaniere " (the minister 
 of Portugal) instructed Mr. Hadduck, our representative at Lis- 
 bon, to prepare a protocol, with certain documents annexed, to be 
 authenticated by the respective governments, and laid before the 
 arbiter. The President of the French Republic was first named; 
 and in case he should decline the office. King Oscar, of Sweden, 
 was to be chosen in his place. 
 
 This letter of instructions contains a very singular passage; it 
 is in these words: "You will understand, of course, that these 
 copies {i. e., the papers to be annexed to the protocol) are limited 
 to such communications as have passed between the American 
 legation and the Portuguese government at Lisbon, and between 
 this department and the Portuguese legation in Washington." The 
 historical fact, that at the time of the occurrence, and when the 
 proofs in support of the claim were first made up and presented, 
 the Portuguese government was seated not at Lisbon, but at Rio 
 Janeiro, renders it easy to perceive why the Portuguese minister 
 suggested this singular limitation of the proofs to be laid before the 
 arbiter. His suggestion was craftily made and unwarily adopted. 
 Its effect was to carry into the record to be submitted to the arbiter 
 only so much and such parts of the evidence as happened to be in- 
 corporated with a renewed correspondence on the subject, which 
 was commenced in 1834, about twenty years subsequently to the 
 occurrence of the outrage for which redress was sought. We will 
 presently show that this instruction caused to be suppressed at 
 least one piece of evidence which was of great force, and, as we 
 conceive, perfectly conclusive upon the very point of Louis Napo- 
 leon's judgment. By the 12th July, 1851, the Department of State 
 was apprised of its mistake, and, in a dispatch of that date to Mr. 
 Hadduck, after calling his attention to the restrictive phraseology 
 used in his previous instructions, Mr. Webster says: "To provide, 
 however, against the omission of any important part of the earlier 
 portion of the correspondence, I mean that which passed in 1814 
 and 1815 in Rio Janeiro, where the court of Portugal at that time 
 resided, and which it could not have been intended to exclude, I 
 transmit you herewith " copies, &c. 
 
216 AEGUMENT OF CHARLES O'CONOE IN THE 
 
 The latter instructions were issued froin the Department of 
 State, at Washington, on the 12th July, 1851; but on the 9th day 
 of the same month, three days previously, the protocol had been 
 completed at Lisbon, signed and sealed by the respective agents of 
 Portugal and of the United States, and forwarded to the arbiter. 
 This is expressly stated in Mr. Hadduck's letter to the State De- 
 partment, dated 17th July, 1851. 
 
 If any important part of the evidence was left out by this mis- 
 adventure in preparing the documents, it must be confessed that 
 the case was not properly prepared. The solicitor has felt the 
 pressure of this circumstance. He could not help feeling it; for we 
 have read from the dispatch of July 12th, 1851, an express admis- 
 sion by the Department of its own error. The answer now given 
 to this objection is, that everything material in the prior corre- 
 spondence was, in some form, repeated in that which was annexed 
 to the protocol. But the fact is otherwise. 
 
 22. Government failed to present the facts to the 
 arbitrator. 
 
 Louis Napoleon's award admits expressly, or impliedly, every 
 proposition of law for which we contend. So far as the law is con- 
 cerned, it asserts but a single position against us, to wit: that a 
 belligerent who commences hostilities within the territory of a 
 neutral, thereby forfeits all claim to protection; and this we have 
 never denied. The Supreme Court of the United States has often 
 so decided, and we have never set up any pretense to the contrary.' 
 The point of the award is, that Captain Reid and his gallant com- 
 panions were the first aggressors. It goes upon a mere naked 
 question of fact. How manifestly important, then, was it that the 
 contemporaneous correspondence, and all the testimony taken at 
 the time and bearing on this point, should have been laid before 
 the arbiter. 
 
 It seems that Commodore Lloyd, the commander of the British 
 squadron, soon after the transaction, caused to be prepared and 
 verified by Lieutenant Fausset, an affidavit giving the British view 
 of the facts. No full copy of this affidavit was furnished to the 
 arbiter. A portion of it is found in the letter of Mr. James B. 
 Clay, our minister at Lisbon, to Count Tojal, Portuguese Minister 
 of Foreign Affairs, dated November 2d, 1849. That part is mani- 
 
 ■ The Ann, 3 Wheaton's R. p. 435. 
 
CASE OF THE BEIGvOF-WAR GENERAL AEMSTEONG. 217 
 
 festly false; but great aid in developing its falsehood would almost 
 necessarily have resulted from a review of its whole contents. Here 
 was a serious failure on the part of our government in its obligation 
 to properly collect and present the proofs. 
 
 Immediately after the occurrence at Fayal, the Marquis 
 D'Aguiar, the Portuguese minister of foreign affairs, addressed a let- 
 ter to Lord Strangford, the minister plenipotentiary of Great 
 Britain, resident at the court of Rio Janeiro, in which he denounced 
 the outrage upon the General Armstrong as an " audacious " and 
 an " unprovoked attack." He also called upon the British govern- 
 ment to make " satisfaction and indemnity, not only to the subjects 
 of Portugal, but for the American privateer, whose security was 
 guaranteed by the safeguard of a neutral port." In the same letter, 
 the Portuguese minister " nails to the counter," as a base false- 
 hood, the pretense of Captain Lloyd, embodied in Lieutenant 
 Fausset's affidavit, and which Louis Napoleon has sought to con- 
 secrate as truth, thereby, as far as in him lay, falsifying American 
 history and dishonoring the American name. 
 
 Thus speaks the Marquis D'Aguiar: "His Excellency (Lord 
 Strangford) will likewise observe the base attempt of the British 
 commander, at the time he commenced the unprovoked attack on 
 the American privateer, to attribute those violent measures to the 
 breaking of the neutrality on the part of the American in the first 
 instance, by repelling the armed barges that were sent for the pur- 
 pose of reconnoitering that vessel, advocating, with the most mani- 
 fest duplicity, that they (the Americans) were consequently the 
 aggressors; but what appears still more surprising, is the arrogance 
 with which the British commander threatened to consider the terri- 
 tory of his royal highness (the prince-regent of Portugal) as ene- 
 mies, should the governor adopt any measures to prevent them 
 from taking possession of the American privateer, which they sub- 
 sequently plundered and set on fire." 
 
 Some allusions to this letter were, indeed, contained in the cor- 
 respondence submitted to the arbiter; but no copy of it, or of these 
 important parts of it, was laid before him. This, the learned solic- 
 itor. tells us, was an unimportant omission, because the Portuguese 
 minister of State could only judge from the evidence; that his view 
 of it, if erroneous, was not conclusive upon his government, and 
 that Louis Napoleon was bound to exercise an independent judg- 
 ment on the evidence itself. Admitting, for the sake of the argu- 
 ment, that all the facts were laid before Louis Napoleon (which 
 
218 ARGUMENT OF CHARLES O'CONOR IN THE 
 
 was not the case), it cannot be maintained that this letter did not 
 contain important matter for his consideration. He had assumed 
 to decide a contested fact of considerable antiquity. The wit- 
 nesses were not personally produced before him; no truth-eliciting 
 cross-examination could be had, no oral dissection or discussion of 
 the proofs was allowed. Was it an unimportant fact that the de- 
 fendant in the cause — Portugal herself — had, through her highest 
 authorities, solemnly, and at the very moment of the transaction, 
 acknowledged the truth of Captain Reid's statement, and stamped 
 as base duplicity and falsehood the story of Captain Lloyd and his 
 lieutenant ? Contemporaneous opinion is strong evidence as to 
 ancient facts. When it is considered that this opinion came from 
 our opponent in the cause under arbitrament, and that, at the time 
 of pronouncing it, Portugal was not only the friend and the ally, 
 but, it may be said, a dependent of Great Britain, its force as evi- 
 dence cannot be too highly appreciated. If not technically con- 
 clusive, who will say that it was not very persuasive ? 
 
 Here was another grievous failure in the duty of duly present- 
 ing the proofs in support of the claim on Portugal. 
 
 There was another, and, as we regard it, still a greater failure. 
 It is a very fair presumption that Captain Lloyd conceived the de- 
 sign of seizing the Armstrong for a special purpose. To facilitate 
 aggressions upon our coast and in our rivers, small vessels were 
 greatly needed. The desire to supply this need has always seemed 
 the most probable solution of Lloyd's flagitiously illegal conduct. 
 It so happens that one document included in the Rio Janeiro cor- 
 respondence, and wholly omitted in the protocol, distinctly proves 
 this motive. Immediately after the principal or midnight combat, 
 William Greaves, the British consul at Fayal, addressed to the Por- 
 tuguese governor of the Azores a letter in which is found this 
 statement: "The (British) commander will send a brig from his 
 squadron to fire on the American schooner; and if the said brig 
 should encounter any hostilities from the castle, or your Excellency 
 should allow the masts to be taken from that schooner (the General 
 Armstrong), he will regard this island as an enemy of his Britannic 
 majesty, and will treat the town and castle accordingly." 
 
 Lloyd threatened to bombard the town and castle of a friend 
 and ally of his sovereign, in case the authorities should permit the 
 Americans to dismantle or destroy their own vessel so as to unfit 
 her for service. Anxiety to save an enemy from suicide proves 
 some other motive than revenge. The desire to reduce him to 
 captivity and servitude can alone account for it. 
 
CASE OF THE BRIG-OF-WAR GENERAL ARMSTRONG. 219 
 
 All these important proofs having been suppressed, it cannot be 
 said that the claimant's case was fairly tried before Louis Napoleon. 
 According to the recorded admission of that great jurist and states- 
 man, Daniel Webster, contained in his official letter of July 12th, 
 185 1, it was submitted in an imperfect and improper manner. 
 
 The failure to arrange the proofs properly so called, separately 
 from the mere arguments contained in the correspondence, seems 
 to have misled Louis Napoleon as to the nature of the submission, 
 or to have furnished him with a pretense for assuming a power 
 which our government could not have intended to confer. 
 
 The whole frame of his award implies that, in respect to the 
 facts, he did not consider himself bound by the documentary 
 proofs annexed to the protocol, and that he assumed the power of 
 ascertaining them aliunde. 
 
 For this purpose, we may fairly presume that he rambled 
 whithersoever he pleased — into British history or into British table- 
 talk. He recites that he proceeded to judgment " after having 
 caused himself to be correctly and circumstantially informed in re- 
 gard to the facts which have been the cause of the difference, and 
 after having minutely examined the documents, duly signed in the 
 names of the two parties, which have been submitted to our in- 
 spection by the representatives of both powers." 
 
 These words certainly imply that he sought proof of the facts 
 elsewhere, and afterwards examined the protocol with its attached 
 documents, as an additional or supplemental act. He did not ob- 
 tain what he calls his correct and circumstantial information solely 
 and exclusively by a perusal of these papers. 
 
 Thus it appears that, after having submitted the claim to an 
 arbiter, the government failed in its first duty as promovent. It not 
 only omitted to produce the evidence in its power, but expressly 
 withheld it at the instigation of the adverse party. It also furnished 
 the partial umpire with an excuse for assuming powers not granted 
 to him, and not intended to be conferred upon him. 
 
 23. Claimant forbidden to argue his cause before 
 Napoleon. 
 
 To cap the climax of injustice in the measures by which this 
 claim was sacrificed, the claimants were refused a hearing before 
 the arbiter, or even the liberty of presenting to him a written argu- 
 ment in support of their claim. This was one of those flagitious 
 violations of justice against which every honest mind must revolt. 
 
220 ARGUMENT 0¥ CHARLES O'CONOR IN THE 
 
 To reject without a hearing may be well enough, as between a 
 despot and his bond-slave; it is not within the capacity of a judge. 
 Precedent, authority, reason and sentiment unite in condemning it. 
 
 The Supreme Court of Pennsylvania, in Falconer & Montgom- 
 ery,' says: "The plainest dictates of natural justice must prescribe 
 to every tribunal the law that ' no man shall be condemned un- 
 heard.' It is not merely an abstract rule or positive right, but it 
 is the result of wise experience, and of a wise attention to the feel- 
 ings and dispositions of human nature. An artless narrative of 
 facts, a natural and ardent course of reasoning will sometimes have 
 ■ a wonderful effect upon a sound and generous mind; an effect 
 which the cold and minute details of a reporter can neither pro- 
 duce nor supplant. Besides, there is scarcely a piece of written 
 evidence, or a sentence of oral testimony, that is not susceptible of 
 some explanation or exposed to some contradiction. To exclude 
 the party, therefore, from the opportunity of interposing in any of 
 these modes (which the^ most candid and the most intelligent of 
 disinterested persons may easily overlook), is not only a privation 
 of his right, but an act of injustice to the umpire, whose mind 
 might be materially influenced by such interposition." 
 
 The case of Sharp v. Bickerdike ' arose upon an award made in 
 Scotland. The award was not impeached for any other fault than 
 the neglect of the arbitrator to hear the party, under a mistaken 
 belief that he had consented to waive that right. The positive law 
 of Scotland was, that no award should be set aside, at the instance 
 of either party, for any cause or reason whatever, unless it was for 
 bribery, falsehood or corruption in the arbitrator. Lord Eldon, 
 delivering the judgment of the House of I>ords, said, that by the 
 great principle of eternal justice, which was prior to all these acts, 
 &c., it was impossible that the award could stand. He added: 
 "Even if he had decidedly rightly, he had not decidedly /»j-/,^." 
 In these cases, and in Elmendorf v. Harris, decided by the court 
 of dernier resort, in New York,' the awards in question were 
 unanimously set aside upon this principle. Following this line of 
 precedent, the Court of Queen's Bench, in the very recent case of 
 Oswald V. Grey,* annulled an award for this cause, saying: "A 
 more glaring departure from the rules that ought to regulate the 
 
 ' 4 Dallas' Reports, p. 233. 
 
 ' 3 Dow's Parliamentary Reports, p. 102. 
 
 ' 23 Wendell, p. 633. 
 
 " 23 Eng. Law & Eq. R. p. 88. 
 
CASE OF THE BRIG-OF-WAE GENERAL ARMSTRONG. 221 
 
 proceedings of persons sitting in the character of judges, it is im- 
 possible to conceive." • 
 
 24. The award invalid since it turned upon a question 
 not submitted to the arbitrator. 
 
 Another and conclusive objection to this award appears. 
 
 As has been before observed, it goes upon a mere question of 
 fact; that is to say, the question whether the Americans, on the 
 occasion in question, resorted to force before they were assailed, or 
 subjected to any indignity or peril ? • 
 
 It never could have been the intent of the executive or the 
 Senate in framing the treaty with Portugal, to submit that question 
 to arbitrament. A total insensibility to national honor would have 
 been manifested in adopting such a course. 
 
 The correspondence between Portugal and the United States 
 shows that the former denied its liability on legal grounds. It was 
 affirmed, on the part of Portugal, that the duty of a State to afford 
 protection to foreigners within its territory was not absolute; that, 
 if such State employed the means of protection in its power, it was 
 not responsible for the inefficacy of such means. The absurdity of 
 this position, as applicable to the case in hand, has been already 
 shown; but suffice it to say, in this connection, that Portugal 
 gravely insisted on it. The treaty (Art. 2) recites, as the cause of 
 the arbitrament, that " the high contracting parties had not been 
 able to come to an agreement upon the question of public law in- 
 volved in the case of the American privateer. General Armstrong, 
 destroyed by British vessels in the waters of the island of Fayal, in 
 September, 1814." 
 
 25. A SINGLE QUESTION OF LAW ALL THAT WAS INTENDED TO 
 BE REFERRED. 
 
 This recital proves that the intent was to refer a question of 
 law only, not to refer a question of fact. Only two questions of 
 law can be imagined as arising in the case: first, the silly pretense 
 of immunity from the duties of sovereignty, on the ground of 
 weakness, set up by Portugal; and, secondly, whether, if the Gen- 
 eral Armstrong was the first assailant, she had thereby forfeited her 
 claim to protection. The latter point, as we have shown, was well 
 settled in the affirmative by our own courts, and was never dis- 
 
222 ARGUMENT OF CHARLES O'COXOR IN THE 
 
 puted by us; consequently it is plain that but one question of law- 
 was in dispute.* This question it might have been the part of 
 wisdom to refer, for no third power could ever have decided it 
 against us. Louis Napoleon himself was obliged to determine it in 
 our favor. 
 
 Did the Department of State, when preparing the protocol, in- 
 tend to submit the question of fact to Louis Napoleon ? We have 
 shown that the treaty gave it no authority so to do; but we ask 
 whether, through misapprehension of his powers, temporary inad- 
 vertence, or from any other cause, Daniel Webster, in the exercise 
 of his high functions as representative of the honor and interests 
 of his country, did really intend to submit to the arbitrament of a 
 third power the question of fact, whether the British or the Ameri- 
 cans were the aggressors in the memorable combat of September, 
 1814, at Fayal ? We cannot believe that such an intention existed. 
 We could not admit it without abandoning forever our deep and 
 unfeigned admiration of that illustrious jurist and statesman. Such 
 an act would have been the extreme of folly. It involved, by an 
 inevitable necessity, the loss of the claim and, what was far worse, 
 a lasting reproach upon our country. 
 
 26. The question as to who was the aggressor a matter 
 of national honor or shame. 
 
 In that midnight conflict, a little American privateer of two 
 hundred and forty tons burthen, carrying seven guns and ninety 
 men, defeated the force of a whole British fleet, killing of her as- 
 sailants, according to the English historians themselves, within one- 
 sixth as many men as Britain lost in the great naval victory off Cape 
 St. Vincent. 
 
 The strength of this comparison will be best exhibited by the 
 , facts. In that action, there were fifty ships of war engaged, and 
 Britain's immortal Nelson captured the Santissima Trinidada of 
 136 guns, and three other three-deckers. 
 
 Making due allowance for the disparity of the forces engaged, 
 looking with severely exact justice to precise facts, and judging by 
 results, there is not a transaction in the whole history of naval war- 
 fare which reflects such signal lustre upon the gallantry of the 
 actors as the defense of the General Armstrong. True, the heroes 
 who perished in the fight had moldered into dust, and no monu- 
 ment honored their resting places. Those who survived it had 
 
CASE OF THE BRIG-OF-WAR GENERAL ARMSTRONG. 223 
 
 nearly all passed from earth, and the very few yet alive were near 
 the close of their earthly pilgrimage, and were pining in want and 
 penury — ^were memorials of that neglect which is proverbially the 
 recompense of public benefactors. But the glory of their achieve- 
 ments was not forgotten. It belonged to the American name; it 
 had irradiated our naval diadem for forty years, and had become a 
 matter of history. Was an American Senate likely to forget its 
 duty towards these recollections ? Was Daniel Webster the man to 
 deliver over this bright page in our annals, to be obliterated by the 
 dictum of an European prince ? 
 
 Honor cannot attend or result from unlawful violence. Unable 
 to deny the physical results, Britain had sought to stigmatize the 
 conduct of Captain Reid as an unprovoked aggression in breach of 
 Portuguese neutrality, contrary to the law of nations, and deserv- 
 ing only the contempt and abhorrence of mankind. Desperate as 
 may seem the folly of imputing to this little cock-boat aggressive- 
 ness against a whole fleet, any resort was preferable to a confession 
 of the facts. Accordingly this pitifully absurd tale was placed 
 upon the records of the British Admiralty, and thence transferred 
 to the annals of the royal navy. Britain had sat in judgment on 
 the fact, in her national capacity, and sanctioned this story with her 
 high approval. On the other hand, the government of the United 
 States, in all its departments, and under several successive admin- 
 istrations, had testified its full belief in the statement of Captain 
 Reid. From these sources, the literature of the respective nations 
 had taken opposing opinions. The respective historians of Britain 
 and of the United States stood before the world in direct conflict as 
 to the fact, and were, of course, to descend to future times as rival 
 claimants of credibility on this question. Its solution involved no 
 matter of mere pecuniary interest, territorial aggrandizement or 
 other worldly profit of any kind; it was a question of national honor 
 or shame. 
 
 Did any nation ever submit such a question to the arbitrament 
 of an umpire ? To admit it to be a question for trial was to em- 
 brace infamy ? As well might a high-toned gentleman charged with 
 some scandalous act by a known and avowed enemy, refer the 
 slander to a mutual friend, with authority to decide, upon proofs, 
 whether or not he was a scoundrel. Honor decides such questions 
 for itself, reposes on its own known rectitude for a protection, or 
 vindicates itself by more active means. It never reposes in a trus- 
 tee, an agent, or an umpire, the power of consigning it to infamy. 
 
224 ARGUMENT OF CHAELES O'COH-QR IN THE 
 
 27. There was no question of fact before Napoleon. 
 
 One of our reasons for denying that Mr. Webster could ever 
 have intended to refer to Louis Napoleon the question of fact 
 whether the Armstrong was the aggressor, is that the result must 
 necessarily have been against his country and his fellow-citizens. 
 
 It is a principle of universal law, that the affirmative must be 
 proven by a preponderance of evidence. Equal colliding forces 
 produce a state of rest, as equal weights in the scales produce an 
 equipoise. It follows that whenever the opposing proofs as to a 
 disputed fact are equal, the party who asserts the fact must fail. 
 This, however true in theory, is rarely, if ever, applied in practice. 
 Some circumstance affecting the credit of a witness or of a docu- 
 ment produced on the one side or the other, almost always turns 
 the scale; and the verdict or decision goes, accordingly, upon the 
 theory of full credence being given to one side and denied to the 
 other. Thus a judicial forum decides between parties, and resolves 
 the doubtful point upon a nice scrutiny of the proofs, responding 
 according to its view of the right, notwithstanding that its decree 
 may possibly wound the honor of one party and his witnesses, by 
 impliedly imputing to them intentional misrepresentation. 
 
 Now it so happens, as any one can in a moment see, that if the 
 question of fact as to who was the first aggressor was to be sub- 
 mitted in this case, the United States would hold the affirmative, 
 and the witnesses would be in direct conflict. Consequently a 
 judgment could not be formed in our favor without thus implicat- 
 ing the witnesses of our adversary; whilst, on the other hand, the 
 arbiter could decide against us upon the mere philosophical prin- 
 ciple that, a perfect balance being produced, it did not become 
 him, as a friend and ally of each, to disbelieve either. 
 
 The treaty provided that the submission should be made " to a 
 sovereign potentate or chief of some nation in amity with both the 
 high contracting parties." It was well known that the true party 
 for whom Portugal appeared in the case was Great Britain. What- 
 ever Portugal might be compelled to pay to us. Great Britain would, 
 of course, be held to reimburse. But, besides all this — and hence 
 this bitter, long-continued, unyielding opposition to this claim by 
 Portugal, her ally — the honor of Great Britain was deeply involved 
 in the issue. Great Britain, for a wonder, was then "in amity" 
 with the whole civilized world. She was on terms of the closest 
 amity with both the chrysalis royalty of France and with Oscar of 
 
CASE OF THE BEIG-OF-WAE GENERAL ARMSTRONG. 225 
 
 Sweden, the only potentates contemplated by the protocol of sub- 
 mission. The witnesses on our side were private citizens. They 
 had not even an official recognition to connect them with our gov- 
 ernment, in the technical consideration of an European sovereign, 
 so that discrediting them might be deemed a direct offense to the 
 nation. On the other hand, the opposing witnesses were public 
 officers, servants and agents of Great Britain. Without taking into 
 view, as additional reasons, or make-weights, toward the same con- 
 clusion, the intimate relations for mutual support and protection 
 which exist between the sovereigns of Europe, is it not manifest to 
 the most simple-minded observer, that no one of them, consistently 
 with a prudent regard for his own high interests, could ever as- 
 sume the office of arbiter upon a matter of fact between two inde- 
 pendent sovereign powers, and pronounce a decree stigmatizing the 
 public agents of either as perjured ? 
 
 28. Circumstances under which the Armstrong fired the 
 
 first gun. 
 
 It was never denied that Captain Reid fired the first gun. 
 Prima facie, then, he was the aggressor. To justify this and fix 
 upon the British forces the inception of hostilities, it was necessary 
 to prove affirmatively the menacing approach of an armed enemy. 
 This was an affirmative of the class which it is most difficult to 
 establish by proof. Captain Reid and his men could do no more 
 than swear to it, as they did, and by way of confirmation affirm 
 the distinct fact that the fire was returned from the British boats. 
 But the defeated commandant of the assailing force could easily 
 ~ deny this, and he had denied it. Nor was this a case in which, 
 from the nature of the thing, affirmative testimony has a superiority 
 over negative. There was no room for mistake or oversight on the 
 British side. Lieutenant Fausset knew whether his men were 
 armed or not; and he swore they had no arms. Of course, if they 
 had no arms, they could not have returned the American fire. In 
 addition to the rule that the affirmative must be proved by a pre- 
 ponderance of testimony, there was a principle in close affinity to 
 it, which any one could see led inevitably to our defeat in the 
 umpirage. As to the hostile intent of the approaching British 
 flotilla. Captain Reid could only act upon circumstances affording 
 a presumption of such intent. 
 
 Had he abstained from firing any longer than he did, it is prob- 
 able that his deck would have been covered with an overwhelming 
 15 
 
226 ARGUMENT OF CHARLES O'CONOR IN THE 
 
 armed force before a blow was struck. Perhaps no wound would 
 ever have been given on either side. Perhaps every privateersman 
 would have been suddenly seized and pinioned by superior num- 
 bers, and the gallant little Armstrong, instead of perishing glorious- 
 ly amid her vanquished enemies, might have been employed to carry 
 rapine and desolation to our defenseless homes and firesides. As 
 it was always admitted that in the first combat Captain Reid re- 
 pelled the assailing force whilst it yet held no more commanding 
 position than that of a menace, proof of an aggressive intent by 
 those in the British boats was indispensable to our success; and the 
 proof on that head could only be circumstantial. On the other 
 hand, Lieutenant Fausset could swear positively that no such in- 
 tention existed. He could say Captain Reid was mistaken, and 
 thus, in the most polite style imaginable, entitle his side to the im- 
 perial award. 
 
 How hopelessly desperate, then, was the case — treated as a 
 question of fact — considering who was the arbiter and the conse- 
 quences to result from the decision. 
 
 In this connection, we do not question the equal fitness of 
 Louis Napoleon as an arbiter with any other European potentate. 
 It was not to be expected that any sovereign of Europe would 
 convict the British officers of perjury. He could not otherwise 
 conform to the known policy of his class than by finding, as he did, 
 that the fact was not proved. Consequently it would have been a 
 gross error to submit a fact of this kind to the determination of 
 such an arbiter. He could not afford to act judicially, to scrutin- 
 ize the evidence fairly, or to determine the fact justly. It would 
 have been not only a grievous error in national policy, but a palpa- 
 ble failure in duty to the country, and to the claimants. No 
 American who regards the honor of his country will ever admit 
 that the Senate of the United States intended to submit to any 
 earthly arbitrament the question of national honor which Louis 
 Napoleon has assumed to decide. No friend or honest admirer of 
 Daniel Webster will ever admit that he could have so far mistaken 
 the import of the treaty as to suppose that he had power to submit it, 
 or that he could have been so blind to the dictates of reason and 
 common sense, or so ignorant of the motives of State policy which 
 govern European potentates, as not to have seen that such submission 
 was equivalent to what lawyers call 4 retraxit. He never could have 
 intended thus to sacrifice at a blow the private interests committed 
 to his charge, and the national honor he so deeply cherished. 
 
CASE OP THE BRIG-OF-'WAR GENERAL ARMSTROlfG. 227 
 
 29. Napoleon's award should have been rejected as void 
 
 for want of jurisdiction. 
 
 If we are right in this, it will be seen that Louis Napoleon's 
 assumed jurisdiction over the facts was an usurpation of power not 
 granted. Upon this ground alone his award was wholly void in 
 every legal and moral sense, and should have been rejected by our 
 government immediately after its publication. 
 
 The tendency to usurpation was pretty strong in the mind of 
 the arbiter at the time, as may be perceived by reference to con- 
 temporaneous events. But in reference to this case, he not only 
 assumed powers not granted, but undertook to overrule and nega- 
 tive the very facts agreed upon by the high contracting parties, and 
 which, of course, he was expressly forbidden to adjudge. 
 
 In the second article of the treaty, it is stated in so many 
 words, that the General Armstrong was " destroyed by British ves- 
 sels in the waters of the island of Fayal." (Article 2.) Yet, the 
 award, in reciting this part of the submission, studiously omits the 
 words " by British vessels," and, in its finding upon the facts, it 
 states that the act of destruction was by Captain Reid in conse- 
 quence of the hostile demonstration made. Even if it was within 
 his judicial province to set aside a fact agreed by the parties, he 
 could not justify this finding. The proofs are clear that Captain 
 Reid merely fired a shot through the vessel's bottom, in order to 
 sink her in the harbor, thus placing her for the time beyond the 
 enemy's reach, and reserving the chance of raising her at a future 
 period. But the British, being thus baulked in their original de- 
 sign, set fire to her, and thereby effected her complete destruction. 
 
 30. When the award was accepted, the liability of Por- 
 
 tugal WAS extinguished, and the liability 
 
 OF OUR government AROSE. 
 
 Thus it will be seen that, independently of the deeper moral 
 objection to it, Louis Napoleon's award was not entitled to any 
 respect whatever, and was wholly void, because he based it upon a 
 question of fact not submitted to him. It may be well, therefore, 
 to state here the legal grounds on which we insist that its accept- 
 ance wrought an extinguishment of our claim against Portugal, and 
 gave rise to a claim in its place against the treasury of the United 
 States. We had, originally, a just claim for indemnity upon Portu- 
 gal, which, under the circumstances, it was the imperative duty of 
 
228 ARGUMENT OF CHARLES O'CONOR IN THE 
 
 our government to enforce, and which, as against us, the govern- 
 ment had no right to surrender or annul. The power of prosecut- 
 ing that claim was vested in the government alone, and consequent- 
 ly the award of Louis Napoleon thereon — whether just and lawful 
 or not — on being accepted by the department to which is intrusted 
 our foreign affairs, worked a complete extinguishment of the claim 
 as against Portugal.- That acceptance deprived us of all recourse 
 except upon the public treasury. We claim that the award of 
 Louis Napoleon was partial and unjust; we have shown that it was 
 void for want of jurisdiction, because not warranted by the sub- 
 mission, and that it was void as against us, because important 
 evidence was withheld from him, and because the right to be heard 
 in support of our claim before himself or his council was denied 
 to us. 
 
 31. Ground of the liability of the government. 
 
 The withholding of evidence, the denial of a hearing, and the 
 unwarrantable acceptance of the award, are relied upon as involv- 
 ing a liability of the government, because they are not acts of a 
 subordinate official who might be personally responsible at law to 
 the citizen for the injury produced by his malversation, but are 
 acts of State, performed by the supreme executive in the exercise 
 of a high discretionary authority which no court could control or 
 correct, at the suit of an individual. Hence the liability of the 
 nation. 
 
 An opinion of Mr. Attorney-General Gushing has been cited, 
 showing that the government is not responsible for the acts of 
 marshals, collectors, pilots, and other subordinate officers who are 
 appointed to facilitate the business operations of the citizens. We 
 acquiesce unhesitatingly in this opinion. But it has no application 
 to the President, the heads of departments, or other high public 
 functionaries who are themselves the government. These officers 
 are intrusted with the power of representing the nation and acting 
 for it. They cannot be arraigned, in a court of law, or elsewhere 
 made responsible to the private citizen who may be injured by acts 
 of State, performed through their agency. For these the nation 
 itself must answer, in its collective and sovereign capacity. Indeed, 
 the departments constantly recognize this rule. Collectors of the 
 customs are in the daily habit of seizing goods and performing 
 
 ' See Secretary Marcy's Letter, dated Dec. loth, 1854. 
 
CASE OF THE BRIG-OF-WAR CENEEAL ARMSTRONG. 229 
 
 Other acts of direct interference with the property of individuals, in 
 conformity with instructions from the treasury founded upon a 
 construction of the law which is subsequently condemned by the 
 courts as erroneous; and, as a necessary result, they are frequently 
 made liable for damages and expenses. On all such occasions, it 
 is the established practice to indemnify the subordinate out of the 
 public treasury. Though selected with especial reference to their 
 fitness for high station, the heads of departments are mortal, and 
 must sometimes err through haste, inadvertence or misconception. 
 When such errors occur, there being no other remedy, it is alto- 
 gether just that the government should make the reparation. 
 Though the act directed to be done is unlawful, though the direc- 
 tion itself is, of course, a violation of law, still it is impossible to 
 conduct public affairs, at all times, with absolute accuracy, and 
 there must be somewhere a discretionary power to act for the pub- 
 lic upon emergencies and in doubtful cases. When that discretion 
 is rightly exercised, the nation takes the benefit; when erroneously 
 exercised, it should sustain the resulting loss. 
 
 These same principles apply here. Our claim is against the 
 public treasury, because the injury complained of resulted from 
 acts of the government itself, performed through its highest func- 
 tionaries, in the exercise of an irresponsible discretion. The maxim 
 respondeat superior, is eminently applicable to such cases. For acts 
 of State, the State itself must answer. The government of the 
 United States did not protest against the award of Louis Napoleon, 
 but, on the contrary, expressly declared its acquiescence through 
 the department of State, and thus released Portugal from all 
 further responsibility. Had the award been rejected, we should 
 now stand in the same attitude which we had occupied for forty 
 years. We would still hold a valid and subsisting claim against 
 Portugal, neither abandoned nor released by our government, and 
 still in due course of prosecution by the proper authority. Although, 
 in such a condition of things, we might well murmur at the delay, 
 perhaps mere' delay, even amounting to neglect, would not entitle 
 us to maintain here or elsewhere a pecuniary demand against the 
 United States. 
 
 The right to reject the award of a mutual friend has been exer- 
 cised by our government, and is fully recognized in the law of 
 nations. Vattel says, that where there is flagrant partiality, or 
 where the arbitrator exceeds his power by determining a matter 
 not submitted to him, it will not bind. " If, by a sentence mani- 
 
230 ARGUMENT OF CHARLES O'CONOR IN THE 
 
 festly unjust, and contrary to reason, the arbitrator has stripped 
 himself of his quahty, his judgment deserves no attention." — Book 
 II, ch. 1 8, § 239. — In the same section, that writer illustrates his 
 views by very apposite instances. He says: "In case of a vague 
 and unlimited submission, in which the parties have neither pre- 
 cisely determined what constitutes the subject of the quarrel, nor 
 marked out the limits of their opposite pretensions, it may often 
 happen that the arbitrator may exceed his power and pass judg- 
 ment on what has not really been submitted for his decision." In 
 this case the submission was framed without the requisite precision 
 as to the point submitted, or Louis Napoleon, without that apology, 
 transcended the authority granted. In either case, the award 
 should have been rejected. 
 
 32. Review of the evidence as to who was the 
 aggressor. 
 
 We will now consider the evidence with a view to the question 
 whether Captain Reid was the aggressor. 
 
 Here Mr. O'Conor read from James' Naval History of Great Britain, vol. 6, 
 p. 349, vphich may be regarded as the British version, and the conflicting author- 
 ity from IngersoU's History of the Second War, vol. I, pp. 44, 45. He referred 
 to the affidavits of Lieut. Faussett and Captain Reid, which were also conflict- 
 ing, the former averring that the men in the boat first fired upon by the privateer 
 had no arms, the latter alleging that they were armed, and when warned refused 
 to keep off. He then showed that Reid's statements were correct, and were 
 corroborated by the facts and circumstances, and that the English version was 
 inconsistent throughout. He then continued: 
 
 The primary fact in dispute was this: Did Faussett approach 
 the Armstrong peacefully and unarmed, in a single small boat, to 
 ask a question, or did he approach, with several large boats, there- 
 by displaying and employing such a force as to justify apprehen- 
 sions of a hostile attack? Louis Napoleon concedes it to be 
 "clear," that this first approach to the General Armstrong was by 
 " some English long-boats, commanded by Lieutenant Robert 
 Faussett of the British navy." Disbelieving him as to the main 
 and primary fact, what honest court, sitting to determine this case 
 between man and man, could have found, upon his evidence, that 
 his crews were not armed, in opposition to the unimpeached oath 
 of Captain Reid and his officers, confirmed by the voice of all 
 indifferent spectators ? The whole story is a palpable falsehood. 
 The case is eminently one for the application of the rule falsus in 
 
CASE OF THE BRIG-OF-WAR GENERAL ARMSTRONG. 231 
 
 uno falsus in omnibus. Any impartial and competent arbitrator 
 would have applied it. 
 
 Nothing but Louis Napoleon's total incapacity to sit in judg- 
 ment on the case, in consequence of his political relations with 
 Great Britain — the party most deeply implicated in the transaction 
 — can account for the award. 
 
 Upon reason and authority, the claim against Portugal appears 
 to have been well founded in fact and valid in law. We had, by 
 the law of nations and the principles of justice, an absolute right 
 to full indemnity from that country. That right has been sacri- 
 ficed, and the remaining question is this: Are we remediless ? 
 
 33. The arbitration never ratified by the claimants. 
 
 Whilst we deny the authority or force of this award, and question 
 the whole course of the government in respect to the reference, we 
 wish to be understood as standing not in the least behind the 
 learned solicitor in our admiration for the character of Daniel 
 Webster. That great man had been just called into the State de- 
 partment, upon the sudden and wholly unexpected advent of a new 
 administration. General Taylor's warlike spirit, as it was sup- 
 posed, had brought the country to the verge of a war with Portu- 
 gal. The civilian who succeeded him preferred peace, and, of 
 course, his judgment controlled. Acting in harmony with the 
 policy of the new executive, and perhaps without having given to 
 the subject that careful examination which it required, Mr. Webster 
 assented to the reference for the sake of pea(?e. In this way, the 
 rights of the claimants were sacrificed for what was deemed the 
 public weal. 
 
 But it is contended that the United States, in prosecuting these 
 claims against foreign powers, acts only as agent for the individuals 
 aggrieved, and that, as principals, we have ratified the act of sub- 
 mission to Louis Napoleon. 
 
 We have already denied, in toto, the applicability of this doc- 
 trine. There can be no implied ratification, because the case is 
 not one of principal and agent. The nation has the whole power; 
 it is the principal, not the agent. In defending the rights of the 
 citizen, it is no more an agent than a father is in avenging an insult 
 offered to his child. It acts in vindication of its own honor and 
 sovereignty. But we need not have denied the doctrine, for there 
 is no evidence of ratification. 
 
 On the first rumor that an arbitrament was in contemplation, 
 
232 AEGUMENT OF CHAELES O'CONOR IN THE 
 
 Mr, Sam. C. Reid, Junior, the counsel for the claimants, addressed 
 to the Secretary of State a letter inquiring of its truth, and praying 
 to be heard on the subject before any such action should be had. 
 The gallant old sailor himself, who had never known fear of per- 
 sonal danger, shrank with a wisely instinctive horror from the bare 
 thought of submitting his own and his country's honor to the arbi- 
 trament of an European despot. The keenness with which he felt 
 upon this subject is but thinly veiled by the modest courtesy of his 
 respectful remonstrance. Let it be read; it deserves a place in the 
 annals of his country. Let the personal characteristics of the 
 hero, as exhibited in peaceful action, adorn the same page which 
 bears to future times his illustrious deeds. They will alike chal- 
 lenge admiration and reflect honor upon all who may be so happy 
 as to imitate. 
 
 " New York, August 26, 1850. 
 "Hon. Daniel Webster: 
 
 "Sir, — By the recent daily journals, rumors are rife that the 
 claims of the General Armstrong are about to be referred to some 
 power for arbitration. This mode at best being considered some- 
 what problematical, we, the claimants, would respectfully suggest, 
 whether or not a settlement by treaty or convention may not in 
 your opinion be preferable, as being most likely to enable us to ob- 
 tain our demands without the risk of a failure ? 
 
 " Feeling, as we do, that we are in very safe and very able hands, 
 we have no great fears for the future, if we be allowed to compare 
 what you have already done for us with what is to be expected on 
 future occasions. 
 
 " After so much negotiation, controversy, and anxiety, for a 
 long series of years, we now look to you, sir, with every confidence 
 for a final and favorable termination of this affair. And should 
 you be pleased to honor us with your views, we shall esteem our- 
 selves under additional obligations. • 
 " With great respect, &c., 
 
 " S. C. Reid, 
 " Late Commander of the G. A., 
 
 " In behalf of the claimants." 
 
 Before either of these letters reached the department of State, 
 the negotiations had been brought to a close, and consequently our 
 government could not recede. This had been done without notice 
 to the claimants, without either knowledge or assent on their part, 
 and it was contrary to their wishes. 
 
 As it was too late to prevent the arbitrament, the claimants did 
 all that remained in their power. They solicited permission, first, 
 
CASE OF THE BRIO-OF-WAR GENERAL AEMSTRONG. 233 
 
 that young Mr. Reid, their counsel, might proceed to France with 
 competent authority to obtain a due advocacy of the case. This 
 was not granted. They next had prepared a written argument, 
 and prayed that it might be laid before the arbiter. This request 
 was also denied. It seems to have been understood that it was 
 beneath the dignity of a monarch to hear the party. As an act of 
 State, this refusal may have been according to established forms, 
 but, if it was, how manifest becomes our position that the case 
 never should have been referred. Royal grants usually run ex 
 certa scientia et mero motu. This royal arbitrament seems to have 
 been in like manner understood by all parties, except the unsubmit- 
 ting claimants, as an appeal to absolute, irresponsible monarchical 
 volition! 
 
 These rejected solicitations for common justice, and these dis- 
 regarded remonstrances constitute the whole evidence relied upon 
 to prove a ratification. If they have that effect, we ask, in the 
 name of conscience and reason, what could the claimants have 
 done in the premises which would not have been a ratification ? 
 Was it necessary to levy war against the government ? Was it nec- 
 essary to appear at the State department and rail at the secretary 
 like a common scold ? Ought we to have hired penny-a-liners and 
 filled the journals of the day with invective ? Surely none of these 
 things will be pretended. We objected to the policy pursued. 
 When overruled, and no other resource was left to us, we resolved, 
 in humble submission to the omnipotence of the State department, 
 to make the most of a bad position and to devote every means in 
 our power to the attainment of success. 
 
 It may be presumed that our objections to the submission are 
 not relied upon as acts of ratification. Perhaps that point is mainly 
 founded on our prayer to be heard before Louis Napoleon. What 
 else could we have done at that stage of the affair ? Silence would 
 have been deemed assent. Any omission on our part to do and 
 suggest whatever was in our power and which could possibly con- 
 duce to success, would have been disrespectful toward our govern- 
 ment, and might justly have been condemned. Desperate as the 
 case may have seemed to us, it did not appear so to the govern- 
 ment, and surely we were right in straining every nerve to secure 
 success. The spirit which animated our gallant tars in the mid- 
 night combat at Fayal secured neither safety nor entire success; 
 but it inflicted upon the enemy an irreparable wound. It reflected 
 lustre upon our country. The same wise, gallant, persevering and 
 
234 ARGUMENT Of CHARLES O'CONOR IN THE 
 
 indomitable spirit presided over this last effort to sustain a righteous 
 cause sinking under the combined influence of artifice in the 
 enemy, partiality in the judge and oversight in the prosecutors. 
 It did not succeed; but this court will not permit it to prejudice 
 the man who made it. On the contrary, it was on his part a per- 
 formance of duty. Instead of justifying his condemnation to per- 
 petual silence as a willing participator in this unwise submission, it 
 is precisely the act which secures him still a standing in court as a 
 claimant, and entitles him this day to ask a judicial sentence against 
 the unjust arbiter. Judex damnatur cum nocens absolvitur. 
 
 There is something most irrational in the pretense that this 
 prayer for leave to be heard, although rejected, was a ratification by 
 us of all that had been done. A gladiator cast naked and weapon- 
 less into the arena, would instinctively call for a sword as the lion 
 approached him. According to our learned adversary's notions of 
 justice, this last prayer of the predestined victim, although cruelly 
 denied, would be an approval of his sentence to the unequal con- 
 flict. We dismiss, without further comment, this idlest of all idle 
 pretenses. 
 
 34. Captain Reid bound in law and honor to pursue the 
 course he did. 
 
 It has been urged that Captain Reid ought to have surrendered; 
 that he would have suffered no dishonor in yielding without a blow. 
 Suppose it to be so, was there neither merit nor honor in the op- 
 posite course ? But we cannot agree with the learned solicitor in 
 this. An act of Congress passed at the commencement of the war, 
 directed the President to prepare instructions and to cause a copy 
 to be delivered to the captain of every private armed cruiser." Our 
 copy was lost in the Armstrong. Knowing that a line of conduct 
 very different from tame and unresisting submission was com- 
 manded, we have sought for the original among the archives of the 
 department, but without success. The same remorseless enemy 
 who destroyed the copy at Fayal, at about the same moment de- 
 stroyed the original record at this capitol. We cannot, therefore, 
 produce it, but we submit that this court should infer the fact. 
 The instructions undoubtedly were to use the utmost exertions to 
 defeat the military and naval forces of the enemy, whenever and 
 wherever encountered. The ninth section of the same act gave 
 
 ' 2 Statutes at Large, p. 761, § 8. 
 
CASE OF THE BRIG-OF-WAR GENERAL ARMSTRONG. 235 
 
 a bounty to each person on board when any privateer burned, sunk 
 or destroyed an armed vessel of the enemy of equal force. 
 
 Pensions are also allowed by the acts of Congress to every offi- 
 cer, seaman and marine belonging to a privateer, disabled in any 
 engagement with the armed vessels of the enemy.' 
 
 This point ought not to have been urged by the counsel for the 
 government. Indeed the fact that it is here urged with a hope of 
 success, considering the ground of the arbiter's decision against us, 
 gives great and, we conceive, conclusive force to a distinct equity 
 entitling us to compensation from the public treasury. 
 
 The facts and circumstances in proof show clearly that Captain 
 Lloyd's object was to possess himself of the General Armstrong, 
 for the purpose of employing her against the unprotected villages 
 and hamlets upon our sea-board. 
 
 We have shown that the first approach was by many boats, and 
 that the men in them must have been armed. Louis Napoleon ad- 
 mits the former fact; indubitable results make manifest the latter. 
 The letter of Consul Graves proves Lloyd's desire to capture the 
 vessel in an uninjured state, and the first approach, as proved by 
 Faussett himself, shows a design to carry her by surprise. His 
 pinnace, as he calls it, when fired into, was immediately alongside 
 of the Armstrong, so near that he employed a boat-hook to direct 
 her motions. 
 
 These circumstances are, we say, entirely satisfactory proof of 
 the design imputed. 
 
 How great, then, was the merit of Captain Reid; how deep were 
 our obligations to him and his gallant companions for having de- 
 feated it. 
 
 35. The claim founded on principles of justice and 
 
 EQUITY. 
 
 Independently of the right to reimbursement from Portugal, 
 they have a direct claim upon the equity and justice of their 
 country. 
 
 When the boats first approached, symptoms of this design, in the 
 judgment of Captain Reid, were manifest. If Captain Reid had 
 preserved a pusillanimous or selfishly pacific demeanor, submitted 
 to capture and allowed his vessel to become a weapon of offense 
 
 ■ 2 Statutes at Large, p. 799, § 2. 
 
236 ARGUMENT OF CHARLES O'CONOR IN THE 
 
 against his country, the validity of his claim against Portugal never 
 could have been effectually questioned. But he acted on appear- 
 ances, defeated the design, crippled a whole British fleet, and con- 
 ducted his operations in a manner at once so judicious and so 
 gallant that, whilst considering the forces employed, they excel in 
 martial glory and fearful consequences to the enemy, any event of 
 the whole war; every spectator, including even the Portuguese 
 allies of our enemy — many of whom were injured in person and 
 property during the conflict — justified them as acts of imperiously 
 necessary self-defense, warranted by the great principles of natural 
 and international law, notwithstanding that they were conducted 
 within a neutral territory. His motive could only have been to 
 defeat this pernicious design, his acts could not have been dictated 
 by rashness and temerity, or by any selfish purpose. All the cir- 
 cumstances repel the imputation of rashness; selfishness would 
 have counselled submission to the enemy. He acted on a belief 
 which we can now see was amply justified; he defeated the hostile 
 intent: no mortal can set limits to the benefits which may prob- 
 ably have resulted to these United States from that defeat. 
 
 Yet the very nature of the case rendered proof that that intent 
 actually existed extremely difficult. Counter-evidence must of 
 course be very accessible to the unprincipled assailant. The in- 
 tent itself was fraudulent and dishonorable. Those engaged in it 
 could not be very conscientious. Falsehood, deception and pre- 
 varication are the invariable allies of fraud. In submitting himself 
 to the government of his well-founded opinion on this point, Cap- 
 tain Reid performed an act of disinterested devotion to the defense 
 of his country. It was a departure from what the solicitor now 
 calls " the private business speculation in which he was engaged." 
 It was a voluntary act of national defense. By entering upon it, 
 he threw away his certain claim of reimbursement from the Portu- 
 guese government, for it exposed him to that very judicial condem- 
 nation by which the claim has been sacrificed. Upon any proofs 
 which could ever be produced it might be to a partial arbitrator, 
 nay, to any tribunal, quite " uncertain " that the hostile and aggres- 
 sive intent which he anticipated and repelled, had any existence 
 except in his own imagination. 
 
 In thus judging and acting, Captain Reid performed a great 
 public benefit. He carried on war against the enemy at his own 
 expense; and it was only necessary to satisfy the constituted au- 
 thorities of his country that the act was a proper one to be ratified 
 
CASE OF THE BRIG-OF-WAR GENERAL ARMSTRONG. 237 
 
 and adopted, in order to give him a perfect claim in equity for re- 
 imbursement of the cost from the public treasury. 
 
 A government at war always contemplates carrying on hostili- 
 ties at the public cost by the employment of force against the 
 enemy at such points as may seem most likely to prove effectual. 
 And, although it is true that no citizen is authorized to assume 
 the direction of war measures, yet whenever a private individual, 
 with no motive but the public good, voluntarily avails himself of 
 a favorable opportunity, and bears the brunt of a contest which 
 government would gladly have assumed, could it have foreseen the 
 occasion, we conceive that there arises in his favor an equitable 
 claim to reimbursement. 
 
 The principles of enlarged equity and good conscience illus- 
 trated by the voluntary service in rescuing the stack of wheat 
 from impending peril mentioned in 20th Johnson's Reports, apply 
 to such cases, and require the government to indemnify the patri- 
 
 36. Private property cannot be taken for public use 
 
 WITHOUT just compensation. 
 
 There is still another distinct head under which our claim 
 should be allowed. 
 
 It is asserted by the learned solicitor, and cannot be denied, 
 that the government has entire and absolute control over such 
 claims as that which existed in this case against Portugal, and is 
 alone competent to prosecute them. Of course, we admit this 
 proposition. But whilst we concede the power, we deny that the 
 government has the right deliberately and intentionally to work an 
 inevitable shipwreck, or an express extinction of the private cit- 
 izens' claim, for its own ease in the administration of public af- 
 fairs, to secure the favor or appease the resentment of a foreign 
 power, or to attain any object or purpose beneficial only to the 
 public at large, except upon full compensation to the person whose 
 right is thus devoted to the use of the nation. This denial is sus- 
 tained by the eternal principles of justice. And these principles, 
 so far as they touch this question, do not rest merely upon the au- 
 thority of reason or even of precedent. They are consecrated as 
 
 ' The point of law here contended for was affirmed by the Commissioners of 
 Claims under the late convention with Great Britain, in re The Hudson's Bay 
 Company; President's Message of Aug. 11, 1856, p. 165. See also opinion of 
 Denio, Ch. J., 3 Keman's N. Y. Reports, p. 149. 
 
238 ARGUMENT OF CHARLES O'CONOR IN THE 
 
 law by the fifth amendment to the Constitution. It provides that 
 " private property shall not be taken for public use without just 
 compensation." No one will pretend that a right to reimbursement 
 for an injury is not property, or that the extinguishment of all rem- 
 edy for the enforcement of such a right, is not taking away the 
 right from him who possessed it. 
 
 This fundamental rule has been violated by the government of 
 the United States, in respect to the claim now before your honors; 
 and we insist that, whenever the heel of power tramples in this 
 way upon the interests of a private citizen, a reference of his claim 
 to this court vests it with the means, and charges upon it the duty 
 of vindicating the right and exacting justice from the conscience of 
 the republic. 
 
 37. General observations as to the duty of the 
 government. 
 
 Some further general observations relative to the powers and 
 duty of government in prosecuting against foreign powers claims 
 for redress of grievances suffered by its citizens may here be proper. 
 
 Though its action is representative, and bears a certain analogy 
 to that of an agent, yet, unlike any other agency, its power over the 
 subject is supreme. Whatever the government could do in its 
 legislative capacity, it could properly have done in reference to this 
 claim. Undoubtedly, in pursuing demands against foreign States, 
 the government must be the sole judge of the measures to be 
 adopted. It is the judge whether war shall be made, and how long 
 the negotiations shall be permitted to progress before resort shall 
 be had to extreme measures. The interests of particular individu- 
 als are not to be preferred to the interests of the whole; nor are 
 the horrors of war to be rashly invoked. It is also the sole and 
 the competent judge whether the claim actually exists. It has the 
 right to take adequate measures for investigating the facts, and 
 ascertaining not only the existence of the claim, but whether it is 
 of such a nature as to be properly enforceable by governmental 
 agency. This may be done in any tribunal, or by any officer or 
 instrumentality the government may think fit to select. This is 
 manifestly so, because in the nature of things the government can- 
 not otherwise act intelligently. As a consequence, we must con- 
 cede that when the official inquiry thus instituted results adversely 
 to the claim, the suitor is obliged to submit. Even though his 
 claim be just, he must relinquish its prosecution. In such a case 
 
CASE OF THE BRIG-OF-WAR GENERAL ARMSTRONG. 239 
 
 he is in no worse plight than the owner of any other righteous de- 
 mand, who, from want of evidence or other accident, has failed to 
 persuade a court and jury of its justice or legality. 
 
 Even when a claim has been found upon due examination to be 
 just, we concede that the suitor must submit to such delay in the 
 prosecution of it as the exigencies of public affairs may occasion; 
 nor is there any greater right to complain of delays than belong to 
 suitors in our ordinary courts of justice. Much time is often re- 
 quired to carry their cases through, and consequently mere delay 
 cannot be considered a neglect of duty. 
 
 Questions of "more difficulty may arise in respect to the powers 
 of government to compromise a claim which it has pronounced to 
 be just. For instance, whether in consideration of some special 
 circumstances government would be authorized, in a class of cases, 
 to accept as in full a portion of the sum due ? Perhaps there are 
 grounds which might justify the exercise of such a discretion. We 
 do not mean to deny or dispute it, because the inquiry is altogether 
 irrelevant to this case. 
 
 It has been contended that, when prosecuting claims against a 
 foreign State, government has a right to discriminate between 
 those equally meritorious, to prosecute some and abandon others. 
 Perhaps this may be so. But there is an universally received no- 
 tion of justice which forbids such a course. The learned solicitor 
 may, if he pleases, pronounce it a vulgar prejudice; certainly its 
 condemnation is usually expressed in a somewhat vulgar form 
 of speech. It is called " making fish of one, and flesh of another." 
 Even in matters of gift or courtesy it is disapproved. Equality 
 is approved by the universal sense of mankind — in the distribution 
 of alms, the bestowal of complimentary gifts, and the tender of 
 courtesy, as well as in the administration of justice. When a 
 parent's testament discriminates between his children, it often leaves 
 a " plague-spot " upon the testator's memory, and lights the bale- 
 ful fires of hatred amongst his posterity. How far a simple dis- 
 crimination between claims of precisely equal merit might be com- 
 petent, need not be determined. No such case is before the court. 
 This claim was never thus simply discriminated against and aban- 
 doned. We will consider hereafter what may be the just result 
 of that which did take place, that is to say, an abandonment of it 
 by the government for a valuable consideration received by the 
 public. 
 
 The right of the government as prosecutor of claims for the 
 
240 ARGUMENT OF CHARLES CCONOR IN THE 
 
 spoliation of its citizens, to discriminate, to a certain extent, be- 
 tween classes of claims, might safely be conceded, and perhaps 
 could not be denied. For instance, in negotiating with a foreign 
 State, all claims existing prior to a certain date, or to some public 
 _event, might perhaps be deferred; all claims constituting a class, 
 and, as such, falling within certain principles apparently detracting 
 from their merit, might perhaps be relinquished. This line of 
 action would not always involve a manifest violation of the rule 
 that government should afford equal protection, and extend equal 
 benefits to all beneath its sway. In imposing taxes and other 
 burdens, the legislative power often selects certain' classes. Partic- 
 ular trades or occupations hitherto lawful may, by an exercise of 
 legislative discretion, be adjudged to be prejudicial to the public 
 interest, and henceforth prohibited or restrained within new and 
 more confined limits. The legislative power decrees that only 
 males between certain ages shall be sent to bare their bosoms to the 
 enemy and ward off his assaults, thus exempting all others from 
 military duty. Inequalities in administration like these which go 
 upon some reason, wisely or not, assumed to be just, have not the 
 impress of unfairness and favoritism. We need not in this case 
 deny their lawfulness. But whilst we concede to the government, 
 in its legislative action and in its executive administration, this 
 right of discriminating between large classes of cases or persons, 
 in the imposition of burdens and the granting or withholding of 
 privileges, we deny its right to single out for sacrifice a single indi- 
 vidual or one particular claim. Such an act is repugnant to the 
 general sense of mankind; and, if it be designed for the public in- 
 terest, is forbidden by the Constitution, unless upon full compensa- 
 tion made from the public treasury. 
 
 38. The claim against Portugal sacrificed for public 
 
 ENDS. 
 
 In the first place, the government investigated the merits of this 
 claim, and determined that it was valid. It was in the power of the 
 government, on obtaining new lights, to have revoked this decision; 
 but it never has done so. It never can do so ; the facts forbid. 
 hs parens patrim, it assumed the duty of enforcing against Portugal 
 this claim, together with several others of equal, but not of greater 
 validity. Negotiations were commenced accordingly, and after 
 many years they reached a conclusion. The ultimatum of Portugal 
 was, that, although she denied the justice of all the claims, yet, 
 
CASE OF THE BRIG-OF-WAR GENERAL ARMSTRONG. 241 
 
 for the sake of peace, she would recede from her opposition to all 
 the others, and would pay them in full, provided our government 
 would refer this one to arbitration. Whether she could be driven 
 from this position by anything less than actual compulsion, was to 
 some extent tested by General Taylor's administration. The United 
 States could not separate the several parts of the offer; they were 
 obliged to accept it or reject it in toto} Mr. Clay, our minister, by 
 authority of his government, rejected it, demanded his passports, 
 and sailed from the Tagus. 
 
 At this critical moment in the history of our claim, the heroic 
 head of our government was summoned from mortal to immortal 
 life. His more cool successor, armed with a higher degree of pru- 
 dence, shrunk from the responsibilities of a war with that nation 
 which had been pleading her own weakness and incapacity for half 
 a century. He at once relinquished the high ground taken by his 
 predecessor, and accepted the offer of Portugal. 
 
 The treaty thereupon made, singled out the case of the General 
 Armstrong for umpirage, and the other claims were paid accord- 
 ingly. 
 
 We do not deny that our government might fairly have sub- 
 mitted any mere question of law involved in the case even to a 
 third power, since, on that part of the case, error seems to have 
 been impossible. Perhaps we could not complain of an investiga- 
 tion of the facts by a jury or by any responsible and impartial in- 
 dividual. But inasmuch as, from the outset, it was plainly mani- 
 fest to the commonest understanding, that a reference of the claim, 
 as a question of fact, or as a mixed question of law and fact, to any 
 potentate of Europe, necessarily involved its rejection, we insist 
 that this treaty, taken in connection with the subsequent unwar- 
 rantable acquiescence of our government in Louis Napoleon's 
 award, was a sacrifice of the claim for the sake of accomplishing 
 ends deemed to be important to the public, that is to say, the re- 
 covery of other claims and the restoration of amity with Portugal. 
 If we are mistaken in the views which have been expressed to the 
 contrary, and the treaty did, indeed, contemplate a submission of 
 the facts, our point is only made the more brief and direct. Then 
 the treaty itself was a substantial surrender of our claim. All that 
 followed was "leather or prunella," the mere ceremonial of the 
 release. Louis Napoleon was the scrivener, chosen by the high 
 
 ' 2 Sandford's Chancery Reports, p. 244. 
 16 
 
242 ARGUMENT OF CHAKLES O'CONOR IS THE 
 
 contracting parties, to select the phrase and apply the forms re- 
 quired for a solemn authentication of their preconceived design. 
 We do not mean that, in a common and vulgar sense, our govern- 
 ment designed this relinquishment; but it is sound law and con- 
 formable to reason, that parties are always held to intend the nec- 
 essary result of their acts. Portugal saw that arbitration and 
 release were practical synonyms; the claimants saw it and remon- 
 strated against the measure; our government ought to have seen it, 
 was bound to have seen it, and must, therefore, be adjudged to 
 have seen it. 
 
 Thus we establish our point that this claim being private prop- 
 erty, was devoted to destruction for purposes of State, which fact, 
 by the Constitution and by the elementary principles of general 
 justice, entitles the owners to compensation from the public 
 treasury. 
 
 39. Observations as to the antiquity of the claim and 
 its alleged rejection. 
 
 The great antiquity of this claim has been urged against it. 
 That is certainly not the fault of the claimants. They presented 
 it in their protest on the very day the General Armstrong was de- 
 ■stroyed; they have patiently but respectfully pressed it by every 
 means in their power from that day to the present. If it has been 
 neglected by the government, which dlone had the means of en- 
 forcing it, that fact, so far from being an objection to the claim as 
 now presented to this court, is the very basis on which it rests. 
 
 Here Mr. O'Conor showed that the claim never had been rejected, as was 
 claimed by the government. He referred to the report of the Senate Committee 
 in 1817, when it was declared " that indemnity from Portugal ought to be in- 
 sisted on as an affair of State." Next he showed that it was again referred to 
 the State Department in 1846. He then referred to the action of Congress after 
 the decision of Louis Napoleon, when a bill providing that the matter be re- 
 ferred to the court, having passed the house, was tabled in the Senate by one 
 vote. He then continued : 
 
 The claim was once allowed by a strong vote, and the utmost 
 that can be alleged against it is, that it was once indefinitely post- 
 poned by a majority consisting of one single vote. It is true, the 
 claimants have been delayed and postponed; they have been turned 
 over to Portugal for redress, and sent muzzled and fettered to the 
 footstool of Louis Napoleon for justice; but their merit has never 
 been denied. Every congressional report upon the subject, and 
 
CASE OF THE BRIG-OF-WAR GENERAL ARMSTRONG. 24:3 
 
 they amount to four in number, covering a period of nearly forty 
 years, is in their favor. 
 
 40. Personal motives of Captain Reid. — A comparison with 
 Washington. 
 
 Captain Reid has been reproached with sordid motives in min- 
 gling with the glorious history of his achievement the acceptance of 
 a pecuniary recompense. Is it dishonorable in the war-worn 
 veteran to accept from the overflowing treasury of his happy and 
 prosperous country the means of subsistence in his old age, and of 
 decent sepulture when his hour of parting shall arrive ? Surely 
 not. The learned solicitor accompanied his lecture on this head 
 with a reference to the example of him whose deeds and memory 
 are deemed the best illustrations of all that is heroic in patriotism, 
 and exalted in honor and moral rectitude. Though Captain Reid 
 presumes not to challenge a comparison, we must say that this allusion 
 of the learned solicitor was most unfortunate. Though there be no 
 comparison, neither is there in this particular any contrast. Though 
 Washington never descended to the grade of a hireling, and per- 
 sisted to the last in refusing compensation, though he did not even 
 accept reimbursement of his personal expenses from our impover- 
 ished treasury during the conflict; yet it is one of the recorded 
 proofs of his practical wisdom, of his freedom from mere senti- 
 mentality, and of his precision and exactitude in the details of 
 duty, that, when his country had achieved her independence and 
 was able and willing to do justice, he rendered, in his own hand- 
 writing, a minute statement of his expenses in the public service, 
 and received from Congress a full pecuniary indemnity. This 
 parallel, which, but for the learned solicitor's introduction of it, we 
 would not have ventured to exhibit, refutes another of his argu- 
 ments. He says that all claims allowed by government ought to 
 be founded in some prescribed rule of law. Washington declined 
 that very payment for his time and services which the law allowed, 
 and accepted the indemnity which no known law directly sanc- 
 tioned, but which, being due on principles of natural justice, was 
 conceded by the enlightened equity of Congress and the gratitude 
 of his country. 
 
 Captain Reid asks no gratuity; he asks neither pay nor reward 
 for his personal toil, sufferings or achievements. Simple indemnity 
 for the actual pecuniary losses of himself and his brave companions 
 is all that he seeks for himself or them. 
 
244 ARGUMENT OF CHARLES O'CONOR IN THE 
 
 Here and elsewhere, it has been again and again urged that the 
 allowance of this claim would be bad policy and " a dangerous 
 precedent." 
 
 Paying a just indemnity for such losses, it is said, would lead to 
 numerous claims of the kind. When claims are not founded on 
 meritorious services, they can be rejected. But we cannot see that 
 any mischief will result to our country or its interests from allowing 
 indemnity for the cost of achievements in war, so signal in them- 
 selves and so beneficial in their consequences as that now under 
 review. May such " precedents " never be wanting. They must 
 ever redound to the profit and honor of our country, and can never 
 prove dangerous, except to our enemies. 
 
 It is said, if we repudiate the award of Louis Napoleon, it will 
 disturb our amicable relations with France and prevent European 
 potentates from ever acting as umpires for us. France cannot 
 easily make a national quarrel out of our awarding compensation to 
 our gallant tars for doing their duty. And if the effect of your 
 decision should be to deter, for all future time, American statesmen 
 from submitting to the arbitrary determination of an European 
 potentate, without evidence and without argument, questions of 
 fact involving our national honor, so much the better. If it shall 
 also deter European rulers from ever again assuming the decision 
 of such questions, it will render them an important service. He 
 who by position and circumstances is disqualified from exercising 
 an impartial judgment, sins against his best interests and his own 
 honor in assuming the office of judge. 
 
 The award is founded in error. It seeks to falsify American 
 history, to fix a stigma upon our national character, and, at our 
 expense, to rescue our enemy from merited opprobrium. Unless by 
 some competent authority repudiated upon our part, we must be 
 deemed, through all future time, as having subscribed to its truth 
 and our own dishonor. Instead of allowing it to seem thus acqui- 
 esced in, this court, as it may do consistently with truth and justice, 
 ought to stamp upon the page of history its indignant reprobation 
 of both the reference and the award. 
 
 Let it not be said that posterity will prefer to the judgment of 
 this court the award of the impartial referee. In what degree he 
 was impartial may be gathered from the facts. He assumed powers 
 not granted. He gave credit to the denial of a witness whose posi- 
 tive assertion he discredited and solemnly found to be untrue. At 
 the very time of forming his award he was secretly progressing in 
 
CASE OF THE BRlG-OF-WAR GENERAL ARMSTRONG. 245 
 
 negotiations for an alliance with Great Britain, the nation chiefly 
 interested against us in the controversy. The importance of that 
 alliance, and the necessity of securing it, may be judged by the 
 stupendous objects it had in view, and is now struggling to accom- 
 plish.' Neither will it be overlooked that he was chosen to arbitrate 
 as president of the republic of France, and that, when preparing 
 the award, he was actively engaged in undermining the foundations 
 of that government, which, as chief magistrate, he was pledged to 
 maintain. Though the reference was to a president, the award 
 came from a king. With the hand which signed it, he had just 
 stricken down the liberties of his country; that hand was yet reek- 
 ing with the life-blood of a republican constitution. 
 
 It may not seem strange if to gratify a monarchical ally, he sac- 
 rificed the rights of a republic. 
 
 You have been asked to avoid scrutinizing too nicely the jus- 
 tice of this award, from considerations of deference to the chief of 
 a sovereign State now in amity with us. We ask you to scrutinize 
 it closely, to judge it fearlessly, and, as becomes an American tri- 
 bunal, to discard considerations of policy when justice and national 
 renown are involved. If the arbiter were all that his most ob- 
 sequious admirers would venture to assert, his merits have been 
 sufficiently acknowledged and amply rewarded. The liberties of 
 one republic have been sacrificed to his ambition, let us not im- 
 molate the fame of another upon the same unholy altar. 
 
 ' At the time when this speech was delivered, the seige of Sebastopol, by the 
 combined forces of France and Great Britain, was in active progress. — Editor. 
 
THE GROWTH OF PRINCIPLES. 
 
 HON. JOSEPH NEILSON. 
 Chief Justice of tlie City Court of Brooldyn. 
 
 At the sea shore you pick up a pebble, fashioned after a law of nature, 
 in the exact form that best resists pressure, and worn as smooth as glass. 
 It is so perfect that you take it as a keepsake. But could you know its 
 history from the time when a rough fragment of rock fell from the over- 
 hanging cliff into the sea, to be taken possession of by the under currents, 
 and dragged from one ocean to another, perhaps around the world, for a 
 hundred years, until in reduced and perfect form it was cast upon the beach 
 as you find it, you would have a fit illustration of what many principles, 
 now in familiar use, have endured, thus tried, tortured and fashioned dur- 
 ing the ages. We stand by the river and admire the great body of water 
 flowing so sweetly on ; could you trace it back to its source, you might find 
 a mere rivulet, but meandering on, joined by other streams and by secret 
 springs, and fed by the rains and dews of heaven, it gathers volume and 
 force, makes its way through the gorges of the mountains, plows, widens 
 and deepens its channel through the provinces, and attains its present 
 majesty. Thus it is that our truest systems of science had small begin- 
 nings, gradual and countless contributions, and finally took their place in 
 use, as each of you, from helpless childhood and feeble boyhood, have 
 grown to your present strength and maturity. No such system could be 
 born in a day. It was not as when nature in fitful pulsations of her strength 
 suddenly lifted the land into mountain ranges, but rather, as with small 
 accretions, gathered in during countless years, she builds her islands in 
 the seas. 
 
 It took a long time to learn the true nature and oflice of governments ; 
 to discover and secure the principles commonly indicated by such terms as 
 " Magna Charta," the " Bill of Rights," " Habeas Corpus," and the " Right 
 of trial by jury;" to found the family home, with its laws of social order, 
 regulating the rights and duties of each member of it, so that the music 
 at the domestic hearth might flow on without discord; the household 
 gods so securely planted that "Though the wind and the rain might 
 enter, the king could not " ; to educate noise into music, and music 
 into melody ; to infuse into the social code and into the law a spirit of 
 Christian charity, something of the benign temper of the New Testament, 
 so that no man could be persecuted for conscience sake, so that there should 
 be an end of human sacrifice for mere faith or opinion ; the smouldering 
 fires at the foot of the stake put out, now, thank God, as effectually as if 
 all the waters that this night flood the rivers had been poured in upon 
 them. It took a long time to learn that war was a foolish and cruel 
 method of settling international differences as compared with arbitration ; 
 to learn that piracy was less profitable than a liberal commerce; that un- 
 paid labor was not as good as well- requited toil ; that a splenetic old woman, 
 falling into trances and shrieking prophecies, was a fit subject for the asylum 
 rather than to be burned as a witch. 
 
 It took a long, long time after the art of printing had been perfected 
 before we learned the priceless value, the sovereign dignity and usefulness 
 of a free press. 
 
 But these lessons have been taught and learned ; taught for the most 
 part by the prophets of our race, men living in advance of their age, and 
 understood only by the succeeding generations. But you have the in- 
 heritance [From an address delivered at Saratoga, August i, 1875.] 
 
 [246] 
 
SPEECH OF RUFUS CHOATE, 
 
 On behalf of Helen Maria Dalton, in the Dalton 
 Divorce Case. 
 
 BEFORE Mr. JUSTICE MERRICK, AND A JURY, IN THE SU- 
 PREME JUDICIAL COURT, HELD IN THE CITY OF 
 BOSTON, MAY, 1856. 
 
 Analysis of Me. Choate's Speech. 
 
 i. A verdict for defendant equally desira- 
 ble by both parties. 
 
 2. The narration. 
 
 3. Helen Dalton's acquaintance with Sum- 
 
 ner. 
 
 4. Insincerity of counsel as to offering 
 
 Sumner's dying declarations. 
 
 5. No evidence of improper intimacy. 
 
 6. Mrs. Dalton's love for her husband. 
 
 7. Sumner's desires indignantly repelled. 
 
 8. Defendant's full and complete revela- 
 
 tions. 
 
 9. Dalton, with knowledge of all the facts, 
 
 believed his wife innocent. 
 
 10. Why plaintiff did not meet his wife pend- 
 
 ing his trial for homicide. 
 
 11. Influences which prejudiced the hus- 
 
 band. 
 
 12. Defendant's alleged confession ex- 
 
 plained. 
 
 13. Meeting of the husband and wife, after 
 
 their separation. 
 
 14. Object and purpose of the story of the 
 
 wife's crime exposed. 
 
 15. Necessity and propriety of public trials. 
 
 16. The presumption of innocence. 
 
 17. No proof of defendant's guilt 
 
 18. No proof of proximate acts of adultery. 
 
 19. Rules as to weighing circumstantial evi- 
 
 dence. 
 
 20. The circumstance relied on by plaintiff. 
 
 21. No motive to induce defendant to de- 
 
 stroy her offspring. 
 
 22. Testimony reviewed to show absence of 
 
 motive. 
 
 23. Defendant's proof showing falsity of the 
 
 charge narrated. 
 
 24. Mrs. Gove— her character and testi- 
 
 mony. 
 
 35. Mr. Gove— his character and testimony. 
 
 26. Dr. Calkins. — Inference from his refusals 
 
 to answer. 
 
 27. Defendant's evidence strongly corrobo- 
 
 rated. 
 
 28. The testimony of the parties contrasted. 
 
 29. Evidence of flirtation no proof of crime. 
 
 30. Observations on evils of flirtation. 
 
 31. Ap lication of the law to the case at bar. 
 
 32. The evidence of flirtation entirely >vorth- 
 
 less. 
 
 33. Evidence of flirtation consistent with a 
 
 theory of innocence. 
 
 34. Crime cannot be inferred from proof of 
 
 unlawful love and opportunity. 
 
 35. Circumstances showing that defendant 
 
 never declared she loved Sumner. 
 
 36. Dido's entreaty with ^neas. 
 
 37. Defendant's love for her husband. 
 
 38. A conviction asked on the evidence on 
 
 which plaintiff regarded her innocent. 
 
 39. The influences which changed the hus- 
 
 band's demeanor. 
 
 40. Evidence of the alleged confessions. — A 
 
 confession of guilt impossible under 
 the circumstances. 
 
 41. Nature and character of confessions as 
 
 evidence. 
 
 42. Application of the rules of evidence to 
 
 the facts. 
 
 43. Arraignment of the witnesses to the 
 
 confession. 
 
 44. Credibility of witnesses.— Arraignment 
 
 of John H. Coburn. 
 
 45. The husband's conduct a refutation of 
 
 Coburn's evidence, 
 
 46. The mutilated letter. 
 
 47. Edward O. Coburn's story of the cake 
 
 and wine an invention. 
 
 48. Arraignment of Edward O. Coburn. 
 
 49. Arraignment of Mary Hunter. 
 
 50. All the letters taken together show de- 
 
 fendant innocent. 
 
 [247] 
 
248 SPEECH OF EUFUS CHOATE 
 
 Near the close of his life, and in the fullness of his fame, Rufus Choate 
 made his great argument in defense of Helen Maria Dalton, in an action brought 
 by her husband for a divorce. He was, at the time, regarded as the head of the 
 American bar, and one of the most eloquent men living. The cause furnished 
 materials upon vifhich to display his power as a lawyer and an advocate. 
 
 On the nth of June, 1855, in the city of Boston, Frank Dalton married 
 Helen Maria Gove, a pretty, blushing school-girl of seventeen summers. Dalton 
 was then a young man of twenty-two, of good family and excellent prospects. 
 He stood high in the estimation of the mercantile firm with whom he was asso- 
 ciated, and earned a handsome yearly income, the reward of his talents and in- 
 dustry. He lived with his young wife at a stylish boarding-house in a fashion- 
 able part of the city, and for about five months was one of the happiest men in 
 the world; a kind and affectionate husband, and loved and esteemed by all with- 
 in the circle of his acquaintance. The period of the honeymoon, however, had 
 scarcely passed when the clouds began to lower, his domestic happiness was 
 broken and destroyed, and proceedings for divorce was the result. It appears 
 that his wife, who was quite handsome, became familiar with a young man 
 named William Sumner; who succeeded in stealing her affections to such an ex- 
 tent that she finally accepted presents and corresponded with him, and on sev. 
 eral occasions went out driving in his company. When the husband made the 
 discovery, he brought his wife and Sumner face to face, at the house of his 
 brother-in-law, Mr. Coburn, in Shawmut avenue, to ascertain the exact truth, for 
 he hoped and trusted that his wife, though foolishly indiscreet, was guilty of no 
 crime. He heard their story, and, though in deep distress and agony of spirit, he 
 believed his wife, until Sumner, for some reason becoming alarmed, threw him- 
 self at her feet for protection. This so exasperated the husband that he thrashed 
 Sumner severely, and would perhaps have seriously injured him had he not suc- 
 ceeded in making his escape. Sumner left Boston and went to his home in 
 Milton, where shortly afterwards he sickened and died. The newspapers got 
 hold of the story, the affair was greatly exaggerated, created a sensation, and 
 the result was that Dalton and Coburn, for the latter was present at the beating, 
 were arrested on the charge of having caused his death, were indicted and 
 lodged in jail. It is a remarkable coincidence that the unfortunate young 
 husband was put in the same cell previously occupied by Albert J. Tirrell, whose 
 life was saved by Mr. Choate in a defense supposed to have been the most skill- 
 ful and remarkable in the history of the American bar. The grand jury refused 
 to find a bill against the prisoners for murder, but they were indicted for man- 
 slaughter, tried, and acquitted. Upon the charge of assault, however, Dalton 
 was convicted and sentenced to five months' imprisonment. During his confine- 
 ment he still believed his wife innocent of actual criminality with Sumner. 
 Then there came a confession by the wife; whether a confession of her folly or 
 something more, is not exactly clear. Counsel for the defense argued, that from 
 his conduct the husband did not consider that it embraced his wife's guilt. Then 
 a sad circumstance occurred. Mrs. Dalton became very ill. The theory of the 
 plaintiff was that she attempted to prematurely destroy her offspring to hide the 
 evidence of her guilt. Counsel for the defense insisted that she had suffered a 
 miscarriage, and seem to have established this fact upon the trial. They 
 claimed that the husband believed his wife innocent, and would have lived with 
 her, but his friends, in order to poison his mind against her forever, circulated 
 
ON BEHALF OF HELEN MARIA DALTON. 249 
 
 the stoiy which it was endeavored to establish at the trial. Whether the last 
 great charge was true or false, certain it is that Frank Dalton came to believe 
 his wife guilty. He was, however, a man with a kind heart and generous im- 
 pulses, and it was thought by his father-in-law, that if proper influences could 
 be brought to bear, a reconciliation might be effected. In response, however, 
 to the overtures of Mr. Gove, the offer of money and the proposition to go to 
 California, Mr. Dalton wrote : " Were she innocent, if heaven had made me 
 such another world of one entire and perfect chrysolite, I would not have sold 
 her for it ; but as I know her to be what she has been obliged to confess to me 
 she is, the world is not rich enough to buy me ! I have loved her, but no more 
 can she be wife of mine. I cannot any longer confide to her the guardianship 
 of my honor ; she has unfitted herself to be any longer the keeper of any man's 
 honor and his peace of mind. I cannot take her to be the mother of my chil- 
 dren; if the law does not compel me to do it, I cannot do it." It was then that 
 Dalton showed his splendid manhood, for he paid back to Mr. Gove the $3,000 
 which he had advanced as a marriage portion, and having thus swept away every 
 seeming incumbrance, he came into court and asked that the marriage contract he 
 had made might be dissolved, because his wife had failed faithfully to keep and 
 perform it. 
 
 Notwithstanding the strong circumstances pointing to the defendant's crim- 
 inality, Mr. Choate unquestionably showed that, putting plaintiff's proof in the 
 strongest possible light, the entire evidence was at least consistent with a theory 
 of defendant's innocence, even if also consistent with a theory of guilt, and he 
 claimed that, under the circumstances as matter of law, the plaintiff was not en- 
 titled to a verdict. (Bishop on Mar. & Div. § 423; Ferguson v. Ferguson, 3 Sand- 
 ford, 307.) Despite the good name and character of the plaintiff, and the ex- 
 ceedingly able and brilliant argument of Richard H. Dana, Jr., in his behalf, 
 Mr. Choate split the jury and won the case. 
 
 The crowning point of this wonderful effort was the manner in which he dis- 
 posed of the story that the defendant had destroyed her offspring. On that 
 portion of the evidence — after he had finished his searching analysis of the testi- 
 mony, pronounced his terrible and scathing arraignment of the witnesses relied 
 upon to establish it, and made his conclusive argument to show that there was 
 not the shadow of a foundation for a motive for the crime — ^he had demolished 
 the strong part of the plaintiff 's case, and made an impression upon a portion of 
 the jury that could not be effaced. All the resources of his well-stored mind and 
 fervid imagination were brought to bear and made to contribute to his advantage 
 and success. He knew how to touch the springs of knowledge at the right time 
 and in the right way, without straining, without effort, without vain display, 
 without show of pedantry. His work was the work of a master. The strong 
 parts of plaintiff's evidence crumbled away beneath his searching investigation. 
 His power to persuade and convince was irresistible. 
 
 It will be noticed with what tenderness and regard he treated not only his 
 adversary, for whom he entertained high esteem, but the plaintiff also. He never 
 stooped to employ invective; but his arraignment of an untruthful witness, when 
 opportunity offered, was fearful and terrific. Mr. H. F. Durant was associ- 
 ated with Mr. Choate, and opened for the defendant. Richard H. Dana, Jr., 
 conducted the cause for the plaintiff with very great ability. When the evidence 
 on both sides was all in, Mr. Choate arose and addressed the jury as follows: 
 
250 SPEECH OF EUFUS CHOATE 
 
 Mr. Foreman and Gentlemen: — I congratulate you, on ap- 
 proaching, at least, the close of this case, so severe and painful to 
 all of us. One effort more of your indulgence I have to ask, and 
 then we shall retire from your presence, satisfied and grateful that 
 everything which candor and patience and intelligence can do for 
 these afflicted suitors has been done. It very rarely, indeed, hap- 
 pens, gentlemen, in the trial of a civil controversy, that both par- 
 ties have an equal, or rather a vast interest that one of them — in 
 this case the defendant — should be clearly proved to be entitled 
 to your verdict. Unusual as it is, in the view I take of this case, 
 such an one is now on trial. 
 
 I. A VERDICT FOR DEFENDANT EQUALLY DESIRABLE BY BOTH 
 
 PARTIES. 
 
 To both of these parties, it is of supreme importance, in the 
 view I take of it, that you should find this young wife, erring, indis- 
 creet, imprudent, forgetful of herself, if it be so, but innocent of the 
 last and greatest crime of a married woman. I say, to both parties 
 it is important. I cannot deny, of course, gentlemen, that her in- 
 terest in such a result is perhaps the greater of the two. For her, 
 indeed, it is not at all too much to say, that everything is staked 
 upon the result. I cannot, of course, hope, I cannot say, that any 
 verdict which' you can render in this case, can give her back again 
 the happy and sunny life which seemed opening upon her two years 
 ago; I cannot say it, because I do not think that any verdict you 
 can render will ever enable her to recall those weeks of folly, and 
 frivolity, and vanity, without a blush, without a tear; I cannot de- 
 sire that it should be so. But, gentlemen, whether these grave and 
 impressive proceedings shall terminate by sending this young wife 
 from your presence with the scarlet letter upon her brow; whether 
 in this, her morning of life, her name shall be thus publicly stricken 
 from the roll of virtuous women — her whole future darkened by dis- 
 honor and waylaid by temptation; her companions driven from her 
 side; herself cast out, it may be, upon common society, the sport of 
 libertines, unassisted by public opinion or sympathy or self-respect 
 — this certainly rests with you. For her, therefore, I am surely war- 
 ranted in saying, that more than her life is here at stake. " What- 
 soever things are honest, whatsoever things are lovely, whatsoever 
 things are pure, whatsoever things are of good report, if there be 
 any virtue, if there be any praise," all the chances that are to be 
 left her in life, for winning and holding these holy, beautiful and 
 needful things, rest with you. 
 
ON BEHALF OF HELEN MARIA DALTON. 251 
 
 I cannot, therefore, with my impression of the importance of 
 this inquiry, turn away from her, even to these parents whose hearts 
 are bleeding also. But is there not another person, gentlemen, in- 
 terested in these proceedings, with an equal, or at least a supreme 
 interest with the respondent, that you shall be able by your verdict 
 to say that Helen Dalton is not guilty of the crime of adultery, and 
 is not that person her husband ? I do not say, gentlemen, that he 
 ought to feel or would feel grateful for a verdict that should acquit 
 her on any ground of doubt or technicality, leaving everybody to 
 suspect her guilty; I do not say that he would feel contented with 
 such a verdict as that, though I say it would be her sacred right 
 that such a verdict should be rendered, if your minds were left in 
 that state. He must acquiesce, whether the verdict is satisfactory 
 to him in that particular or not. But, gentlemen, if you can here 
 and now, on this evidence, acquit your consciences and render a 
 verdict that shall assure this husband that a jury of Suffolk, men of 
 honor and spirit, some of them his personal friends, believe that he 
 has been the victim of a cruel and groundless jealousy; that they 
 believe that he has been led by that scandal that circulates about 
 him, and has influenced him everywhere; that he has been made to 
 misconceive the nature and over-estimate the extent of the injury 
 his wife has done him; if he could be made to believe and see, as 
 I believe you see and believe, and every other human being sees 
 and believes, that this story of abortion, by which he has been in- 
 duced to institute these proceedings, is falser than the coignage of 
 hell; if you can thus enable him to see that, without dishonor, he 
 may again take her to his bosom, let me ask you if any other human 
 being can do another so great a kindness as this ? If by your ver- 
 dict you can assure him that his first thoughts on this subject were 
 right; that the steadiness and constancy with which he held her to 
 his heart, from the 17th of November down to the morning of the 
 26th of February; the steadiness and constancy with which he held 
 her to his affections, after he became aware of every credible fact 
 and circumstance that has been put in evidence in this case; if you 
 can teach him that this steadiness and constancy were just and 
 honorable and true; if you thus restore him to his former and bet- 
 ter self, before he was maddened by these falsehoods and this 
 malignant conspiracy by which he has been surrounded: will it not 
 be he, rather than she, that will have occasion to bless you for your 
 judgment ? 
 
 Sensitiveness to public opinion, if I understand the character of 
 
252 SPEECH OF RUFU3 CHOATE 
 
 Dalton at all, is what has misled him; it is other men's judgments, 
 not his own, which have led him to this proceeding; it is through 
 others' eyes, not his own, that he has looked; and now I submit 
 that, if you can only assist him to follow in the impulses of his 
 own heart without dishonor, permit me to say, you may live long 
 and do much, but to no human being can you do such a kindness 
 as this. 
 
 " Not poppy, nor mandragora, 
 Nor all the drowsy syrups of this world, 
 Can ever med'cine thee to that sweet sleep 
 That thou ow'd'st yesterday." 
 
 It seems to me, therefore, gentlemen, if my learned friend on 
 the other side will not deem it arrogance in me to say so, that I am 
 here to maintain the cause, not of the wife against the husband, 
 but of both of them. I am here to say, that the husband has a 
 right to his wife, and the wife has a right to her husband. What 
 is their case, gentlemen, as it now rests, in my own mind at least, 
 and I trust in yours, as far as the result is affected by the whole 
 evidence now before us ? Permit me to state that case exactly as 
 I apprehend it; and when I have done, that I shall be obliged to 
 turn a little more particularly and more methodically to what the 
 libellant has to prove, and by what evidence he has attempted to 
 establish it; but first let me give you the position of the case as at 
 last it rests, I hope, upon your minds, certainly rests upon my own. 
 
 2. The narration. 
 
 These parties were married in June, 1855; he was very young, 
 I believe not more than 22 or 23 at the time, and she was only a 
 child, not yet eighteen, at school as late as the January previous, 
 which she left in consequence of her engagement, and to make 
 preparations for her marriage. She was comely, of remarkable 
 modesty — on the testimony of Dalton himself and of Mr. Richard- 
 son — affectionate and fond in her nature and disposition, a little 
 quick sometimes, as has been testified to, but instantly herself 
 again, and instantly hastening, whenever a momentary difference 
 had occurred between herself and her husband, to make all up by 
 throwing her arms around his neck — herself making the approach 
 to a reconciliation. She was the child, I hope I may be allowed to 
 say, notwithstanding the testimony of Mrs. Joseph Coburn given 
 here yesterday, of respectable. Christian parents, somewhat beyond 
 the middle of life, their youngest and not their least beloved, and 
 
OS BEHALF OF HELEN MARIA. DALTON. 253 
 
 they had been diligent to afford her all those opportunities of edu- 
 cation, moral and mental, which our commonwealth offers to all its 
 daughters, and they had afforded her, what perhaps is of more im- 
 portance to remember here, the still more inestimable privileges 
 and blessings of the family altar and worship, and a Christian, con- 
 stant parental example. This was Helen Dalton that day — pure as 
 the falling flake of snow, pure as any child, as any bride that was 
 ever given in marriage at any altar. They began their married life 
 by living at a grave and decorous boarding-house of the first class — 
 Mrs. Le Cain's, in Summer street — full of servants, full of boarders, 
 and of the highest respectability in all particulars. They were affec- 
 tionately fond of each other, and there was never, in the history of 
 married, bridal life, a happier beginning. Such is the universal 
 testimony in this case. 
 
 About the 20th or 25th of September she became, or knew her- 
 self to be, pregnant; the father of that child, beyond a particle of 
 controversy, was her lawful husband. This was the last of Sep- 
 tember, a month before she ever saw young Sumner, two months 
 before that ride to Brighton or Watertown, previous to the outrage" 
 on Shawmut avenue, where, if at all, they are to locate the crime. 
 
 3. Helen Dalton's acquaintance with Sumner. 
 
 It happened, as has been stated by counsel on both sides, in the 
 opening, that not being at housekeeping, and her husband neces- 
 sarily and without the least fault on his part — creditable rather to 
 him — detained from home about his business, she was very much 
 alone and had very little to do, and having a sister very nearly her 
 own age, and a very respectable friend. Miss Snow — to whose 
 deposition, given so long ago you may have forgotten it, I shall 
 have occasion to revert — having friends as pure as she was then, 
 she was, in that pleasant waning summer and beginning of autumn, 
 very much abroad. I hope I shall be excused for saying to the 
 married men upon the jury, that the very restlessness of incipient 
 pregnancy may have induced a desire to be abroad. It was during 
 this time that she made the acquaintance of young Sumner, whose 
 name, from his connection with this caSe, recalls many sad thoughts 
 and memories of the disappointed hopes that cluster about him and 
 rest upon his grave. He also was nothing more than a boy, with 
 some capacity, I may say, for refinement of sentiment, a certain 
 pleasing address and manner, with some susceptibility of disposi- 
 tion — not that he was debauched or dissolute — for his friends' sake 
 
254: SPEECH OF EUFUS CHOATE 
 
 I thank God there is not a particle of evidence that he was a se- 
 ducer by profession or design, only that once or perhaps twice he 
 was hurried away by impulse into the offer of a familiarity, reveal- 
 ing a warmer and more ungovernable sentiment, which was instant- 
 ly repelled and instantly and forever abandoned. If evil into that 
 immature nature came and went, as evil will, it perished in the 
 blossom and bore no fruit. 
 
 4. Insincerity of counsel as to offering Sumner's dying 
 declarations. 
 
 Gentlemen, my learned brother, in opening his case, was pleased 
 to say that he was not at liberty, by the rules of law, to give in 
 evidence certain imaginary confessions made by young Sumner on 
 his death-bed. My learned brother will excuse me for saying that 
 he has not been quite so scrupulous in the offer of incompetent 
 and inadmissible testimony, as to warrant a belief in it here. But 
 lest there should be any, you will remember that my associate, after 
 consultation with myself, in his opening argument, challenged the 
 learned counsel — pledging us to waive every objection on the 
 ground of incompetency or the order of trial — challenged him to 
 produce the brother of Mr. Sumner, who hung over his dying bed 
 and received his last words. The witness was before you, gentle- 
 men, called on two or three comparatively unimportant points in 
 this case, and constantly under the eye of the counsel on the other 
 side. We challenged him to produce him, to say whether or not, 
 in that last hour, in that moment of unutterable solemnity, just 
 when he was passing into the presence of the All-seeing One, he 
 went out of the world confessing or denying that he had committed 
 this act. Gentlemen, let the fact that my learned brother has not 
 ventured to meet this challenge, go for the proof. Men may live 
 fools, but fools they cannot die. 
 
 5. No EVIDENCE OF IMPROPER INTIMACY. 
 
 Well, gentlemen, this acquaintance began the middle of Octo- 
 ber; I pray you, as I may not think it worth while to spend time 
 to recur to it again — I pray you take it here that there is not a 
 scintilla of evidence that she ever saw him in her life until the 
 middle of October. She was then pregnant by her husband six 
 weeks. What the nature of their acquaintance was, so far as it 
 consisted in outside, visible evidence, I think we have been able to 
 lay before you exactly. They met occasionally in the streets; 
 
ON BEHALF OF HELEN MARIA DALTON. 255 
 
 sometimes at Fera's and Vinton's saloons. I think we hear of two 
 rides in omnibuses, in which were all four (Mr. Sumner and Mr. 
 Porter, Mrs. Coburn and Mrs. Dalton), the omnibuses full of pas- 
 sengers ; they drove once to Cambridge in a carriage, according to 
 the testimony of the driver Burns, four together, the windows all 
 open; and once only rode out alone. That she was ever out walk- 
 ing with him after the sun went down, that they ever met but in 
 the broadest daylight, that he ever insulted or astonished her by an 
 invitation to a house of assignation, that they ever met anywhere 
 but in the broad light of day, but in the presence of everybody, 
 except on the single occasion of the ride to Brighton, there is not 
 a particle of proof. I advert now to the deposition of Miss Snow. 
 Perhaps you have forgotten that they asked that respectable wit- 
 ness, called by themselves, whether she ever knew or heard of 
 Helen Dalton's going with Sumner to a house of assignation or a 
 house of pleasure, and she denied that she had ever heard or known 
 such a thing in her life. Therefore I have the honor to repeat, in 
 order that we may not exaggerate the matter, and may have the 
 whole of this part of the cause before us — I say I have the honor 
 to repeat that these interviews, Mr. Foreman, were no walks by dusk 
 or moonlight, no meetings by the insidious and seductive light and 
 music of the house of pleasure, no walk, no meeting, anywhere, on 
 any occasion, alone, but a single ride on the 15th or i6th of No- 
 vember. 
 
 6. Mrs. Dalton's love for her husband. 
 
 Gentlemen, of this intimacy between Helen Dalton and Mr. 
 Sumner, I hold the same opinion with regard to it that the father 
 expressed through his tears upon the stand. I look upon it with 
 abhorrence. I regard it exactly as Helen Dalton everywhere, in 
 every word she uttered, in every line she wrote, whenever her burst- 
 ing tears enabled her to speak her thoughts, shows that she re- 
 garded it. But we are here on a charge of adultery, and I have 
 the honor to submit to you, gentlemen, after the most careful and 
 thoughtful consideration and weighing of evidence in this case, 
 under responsibilities professionally as severe and as oppressive as 
 those under which I ever assisted to try a case in my life; I re- 
 spectfully submit, on a review of that evidence, these two views 
 will have the approbation of every candid mind. I submit that she 
 never came to love young Sumner with that impulsive, absorbing, 
 engrossing love that endangers virtue and conquers shame. I sub- 
 
256 SPEECH OF RUFU3 CHOATE 
 
 mit also, gentlemen, that there was never a moment, during their 
 whole intercourse, when the thought of criminal connection was 
 entertained by her for a moment — never one. Young, comely, 
 vain, as may be with her sex and in her condition, in her father's 
 family, trained to but little intercourse with the world, the society 
 and pleasing manners of this young man tickled her, afforded her 
 pleasure, playing round the head, but going not near the heart. 
 But I mean to maintain, and I shall base the defense — a triumphant 
 defense in this case, unless I deceive myself upon it — that her hus- 
 band had her heart at first, and has it to-day; that this attachment 
 (if you please to call it so) was merely a transient and superficial 
 feeling, a false, fickle light on the surface of the stream, whose 
 depths were unchanged, untroubled, undisturbed. How well she 
 loved him we shall see, if you will permit me to go a little into the 
 argument of the cause. The whole case is full of evidence to show 
 the affection of the earlier period of their married life. There are 
 the three weeks after the Shawmut avenue tragedy; those two days 
 when, during those three weeks, her husband having absented him- 
 self, she knew not why, she went for him, half distracted, every- 
 where, going at a late hour in the evening to his mother's house; 
 her following him to jail, hovering about that cell, a beam of light, 
 a dove of constant presence; those letters — in the whole history of 
 the human heart there is nothing to equal the depth of feeling, the 
 beautiful, inexpressible, undimmed affection they exhibit, down 
 even to the very last, in which she breathes out the thoughts of a 
 breaking heart; how well she loved him from the first, how con- 
 stantly she loved him through the whole, and how light and tran- 
 sient and superficial was this intimacy with Mr. Sumner, I shall have 
 the pleasure, by and by, of stating my opinion. 
 
 7. Sumner's desires indignantly repelled. 
 
 I say, also, for the second view of this intercourse between 
 her and Sumner, that it is beyond all reasonable controversy, 
 that the very first time that Sumner suffered himself to be hur- 
 ried away by a momentary impulse into expressions that revealed 
 the existence of warmer desires, she instantly met and instantly 
 repelled them. Will you ever forget, gentlemen, that only a day 
 or two before the Shawitiut avenue tragedy, having discovered 
 by, it may be, a touch of the foot or of the hand, the existence of 
 these warm emotions, she thereupon repelled him, snatched her 
 letters from his hands, tore them up, and threw them out the window? 
 
ON BEHALF OF HELEK MAKIA DALTON. 257 
 
 Have you forgotten that one of the letters of Sumner to her was 
 never opened by her, but found unopened ? Well did Dalton com- 
 ment upon that fact when he said to Mr. Richardson, she could 
 not much have loved him to have left his letter unopened. And I 
 submit to you further, gentlemen, — the evidence will show you 
 whether I am warranted in these strong introductory statements — 
 that when at Brighton or at Watertown, he, probably for the first 
 time in his life, distinctly conveyed an intimation of his wishes, how 
 she started back from him, burst out crying — on the testimony of 
 Mrs. E. O. Coburn, their witness, and to be believed by them — and 
 commanded that he should instantly drive her home again to Boston. 
 
 8. Defendant's full and complete revelations. 
 
 The letters were found; the Shawmut avenue tragedy was en- 
 acted; Sumner was brought into her presence and made certain 
 statements. The next Sunday night, in the presence of the Dal- 
 tons, of whom I am bound to say, although they have, perhaps 
 with the best motives towards their kinsman, perhaps intentionally 
 and perhaps unintentionally, urged him to this proceeding; not- 
 withstanding this, I have the greatest pleasure in saying that they 
 stand out in extraordinary comparison, as a family of witnesses and 
 of blood, with that other family which figures so largely and, as I 
 shall show you by and by, so disgracefully in the case. In their 
 presence, on the Sunday night after the tragedy, she made a full and 
 complete revelation of her way of life with Sumner, in the presence 
 of her husband and of his family; admitted there, as everywhere, her 
 own grief, shame and compunction for what had taken place, but 
 protested her absolute innocence of the last and greatest crime, 
 just as she had once before, when Dalton proposed that test, sunk 
 down on her knees, with her hand on her father's gift, the Bible, 
 and solemnly swore her innocence of that charge; just as she had, 
 in that even more solemn moment when the pains of premature 
 birth were upon her, in the presence of Mr. Richardson, adjured 
 her Maker that she was innocent. 
 
 9. Dalton, with knowledge of all the facts, believed 
 HIS wife innocent. 
 
 This brings me to that great fact which I apprehend you will 
 believe to be decisive in the case, that the libellant — with the knowl- 
 edge of every single credible fact and circumstance which is laid 
 before you in this cause, and with the full and perfect knowledge 
 17 
 
258 SPEECH OF RUFUS CHOATE 
 
 pf everything but this enormous and outrageous and barbarous 
 falsehood of abortion, which was an after- thought; with a full and 
 perfect knowledge of her intimacy with Sumner, her rides with him, 
 her going to saloons, her exchange of rings and letters, the gift of 
 a book, and the knowledge of the still ^further fact that on one oc- 
 casion Sumner, in a moment of passion, had reached his hand into 
 her bosom; with the knowledge of every fact and declaration on 
 which this jury will place a particle of reliance — declared, not merely 
 by his language, but by acts and conduct the most unequivocal, 
 that he believed her innocent of that crime, and loved and trusted 
 her still. And so I have to repeat, for it seems to me that in this 
 view the argument will appear to be conclusive; I repeat that down 
 to that time, through all that interval, from the 17th of November 
 down to the 14th of January, with the knowledge of every credible 
 fact and circumstance, Dalton, who knew his wife so much better 
 than we can know her, who knew how pure as an angel she came 
 to his bed, who knew when she spoke the truth, who knew how 
 tenderly she had Loved him, who knew so much better than we can 
 know how to probe her, how to practice upon her, how to surprise 
 her into confession; he who had even a chance to watch over her 
 sleep and hear the revelations of her dreams, he loved her and be- 
 lieved her innocent of this charge down to the 14th of January — 
 down to that date, I respectfully submit, the fact will not admit of 
 controversy. Once for all, gentlemen, remember that series of let- 
 ters from the jail, so honorable to his first thoughts, showing him 
 still so well worthy to be the husband of this wife; those letters 
 from the jail, so beautiful, so manly — unless he was deceiving her, 
 which, of course, he was not — one long, unbroken strain of music, 
 the burden of which is " home, sweet home, and you, my loved 
 one, my fond one, dearer and better for what has happened, you 
 again to fill and illumine and bless it." So it stood down to the 
 14th of January, which brings us to a great epoch in the history of 
 this case. 
 
 10. Why plaintiff did not meet his wife pending his trial 
 
 FOR homicide. 
 
 We come now, Mr. Foreman and gentlemen, to this law suit. 
 The grand jury found no bill against Mr. Dalton and Mr. Coburn 
 for murder, but indicted them for manslaughter. On the charge of 
 murder they were to be released, and were released. They came 
 abroad on the 14th of January, and then at once they were to pre- 
 
Olf BEHALF OF HELEN MARIA DALTON. 259 
 
 pare for their trial, which promised, at that time, to be a very severe 
 one. The punishment for manslaughter may be twenty years in 
 the State prison, and of manslaughter both these parties were at 
 that time believed by the public to be guilty; they were believed to 
 have aided in sending that boy to his dishonored and untimely 
 grave. Public opinion, whatever that is worth, was undoubtedly 
 against them both, especially against E. O. Coburn, as the oldest 
 and probably the leader in that tragedy; and he having taken it 
 into his head to console his domestic grief by stealing $1,700 from 
 his father-in-law's safe, by keys false, or otherwise, was somewhat 
 distrusted and as likely to undergo a pretty severe trial at the bar 
 of public opinion. To change that public opinion, and in order 
 to a defense against the charge of manslaughter, it became neces- 
 sity that there should be a belief, or at least an appearance of be- 
 lief, in the guilt of Sumner. And therefore, gentlemen, at some 
 time, the precise time is not practicable nor is it necessary to fix, 
 but at some time, and at some short time, too, before leaving the 
 jail, it was arranged, unquestionably through the influence of coun- 
 sel (not of my brother Dana, who, I believe, was not engaged in 
 this early stage of the case), that when Dalton and Coburn should 
 go abroad, they should not publicly meet their wives. To go into 
 court and maintain that Sumner had attempted or committed adul- 
 tery, and to maintain that in the sincere belief of his guilt they had 
 killed him, and at the same time publicly consort with their wives, 
 would seem inconsistent and impolitic; and so it was arranged — 
 I do not know as I have to complain of it as an impolitic or inex- 
 pedient arrangement — that they should not meet their wives at all. 
 Therefore it is that you hear from Mr. Richardson; that Mr. Dal- 
 ton wrote to him that, although he had arranged to meet his wife 
 at once, it would not be expedient for him to meet her until after 
 the trial; otherwise he should be very glad to see her. They came 
 abroad, and although in almost the very last letter which he wrote 
 to his wife from the jail, he expressed a desire to fly to her arms, he 
 refused to see her, and did not see her at all. 
 
 II. Influences which prejudiced the husband. 
 
 So it remained down to the 25th of February. I said, and I 
 repeat, that I do not know that this was very impolitic or inexpe- 
 dient, or that it is to be complained of at all; but I pray you now 
 to see the history of the libel. The very moment he places him- 
 self in this position, he comes to ■ be in an antagonistic and false 
 
260 SPEECH OF RUFUS CHOATE 
 
 position towards her from the nature of the case; the habit of 
 dwelling on the offenses or supposed offenses of Sumner very nat- 
 urally brought his mind into something like suspicion or belief 
 that Sumner was guilty, and that brought him to a willingness or 
 necessity to believe that his wife was guilty too. At all events, it 
 brought him into a condition of complete perplexity of mind, and 
 surrounded him with ten thousand influences which poured into 
 his abused ears and loaded his bosom with jealous doubts. His 
 family and friends, insidious enemies pretending to be friends, 
 gossipers and scandal-mongers right and left, the whisper of public 
 opinion to which Dalton is emphatically sensitive, the laugh of by- 
 standers, all came around him as an atmosphere, and brought him 
 to that condition so strikingly represented by the greatest master of 
 the heart — " Perplexed in the extreme " — "Perplexed in the ex- 
 treme." He came to know what I trust few hearts know — 
 
 " What damned minutes tells he o'er, 
 Who dotes yet doubts, suspects, yet strongly loves." 
 
 Gentlemen, there is not in the whole history of human nature, 
 in fact or fiction, a more remarkable and affecting illustration of 
 the degree of perplexity to which the human mind can be brought, 
 than this of the condition of Mr. Dalton's mind at that time. 
 
 12. Defendant's alleged confession explained. 
 
 Then we have another important fact in this case. You re- 
 member how he wrote along all the way down to the 12th of Janu- 
 ary, how fondly he loved and trusted her, and how happy he hoped 
 they would yet be. As early as the 5th of February, before he 
 heard one solitary fact or circumstance of which we have a particle 
 of credible evidence, so far as we can discern, before the story of 
 the abortion was concocted to poison his mind, my brother Dana 
 was called upon to give us notice of the libel. And then, more 
 strongly to bring to mind another illustration of the perplexed con- 
 dition of his mind at that time, do you remember that Mr. Richard- 
 son testified that Mr. Dalton told him, with all the sincerity in the 
 world, that his wife had actually confessed to him that she had 
 committed adultery with Sumner in Fera's saloon ? "I believe her 
 innocent," he says, and then comes on the revulsion which is 
 the natural result of the perplexed condition of his mind, and he 
 says, " she confessed to me that she committed adultery in Fera's 
 saloon." Did she ever confess to adultery in Fera's saloon ? You 
 
OK BEHALF OF HELEN MARIA DALTON. 261 
 
 know perfectly well she never did. "When did she confess it?" 
 "At the time of the flogging affair." And yet, after the flogging 
 affair, he holds her to his heart and his bed for three weeks, and 
 writes her these tender and manly letters from jaii. He understood 
 exactly what she confessed then. She confessed then what she has 
 everywhere confessed, by her words and letters, temptation, wrong, 
 sin, but no adultery — no adultery ! Accordingly, gentlemen, he 
 lived with her and wrote to her, and she was his wedded and 
 trusted wife for a month afterward. But now, in this perplexed 
 and false position in which he stood towards her, preparing for his 
 trial, with ten thousand whisperers at his elbow, he actually brought 
 himself to the belief that she had confessed it! How striking an 
 illustration that is, by the way, of the danger of these confessions! 
 What a lesson of candor and caution and good sense it teaches a 
 jury, as to weighing alleged confessions put in evidence. 
 
 However, there he was, from the 14th of January down to the 
 25th of February, away from her, among her enemies, his heart en- 
 crusted over, though, as we shall see in a moment, a deep fountain 
 of love and trust was there even yet. 
 
 13. Meeting of the hxjsband and wife, after their 
 separation. 
 
 We come now to the 25th of February. What happened then, 
 gentlemen ? This wife had been kept from his sight from the time 
 he left jail, on the 14th of January down to the 25th of February; 
 more than a month she had never seen him. On that night, winged 
 by that love which was stronger than the malignity of the Coburns, 
 that love which is said (if I may be excused the expression in a 
 cause so grave as this) to " laugh at locksmiths," she forced her 
 way to his presence in the very house of her enemies, his enemies, 
 and the enemies of truth. Gentlemen, what took place there on 
 that evening of the 25th of February can never, of course, be per- 
 fectly known until all secrets, large and small, shall be revealed; 
 but I have no fear but that the intelligence of this jury will pene- 
 trate that interview, and I have no fear but that, turning with dis- 
 gust from the perjury of John H. Coburn, you will see that these 
 were the transactions of this evening: They met there after a long 
 separation. The meeting, at the commencement was most painful, 
 beginning in a review of the past, interrupted, of course, by sobs 
 and tears, in which she again reviewed and reiterated, and prayed 
 him to forgive her for what she had done, the very same story she 
 had told at the house of his mother the Sunday after the tragedy; 
 
262 SPEECH OF EUFUS CHOATE 
 
 and then and there, I respectfully submit, you will find on the 
 proof that the husband trusted her again completely, as he had 
 done from the beginning, and surrendered his heart and person to 
 her; that they then locked that door, and there remained alone un- 
 til some one, rapping upon the outside, reminded them of what they 
 seemed to have forgotten, so fast had the hours flown by that it was 
 past nine o'clock. Instead of meeting there to make arrangements 
 for a separation of husband and wife, which is the theory of the 
 other side — instead of that it was a still more sad and self -reproach- 
 ful confession of all that she had ever done, asseverating and con- 
 stantly avowing her innocence of guilt; and he, then and there, 
 finding he had no criminal guilt to pardon, pardoned and forgave 
 the rest, and they locked their door and sat down to sketch out the 
 plan of their future troubled life. It was not expedient or practi- 
 cable that they should meet publicly, for his sentence was still 
 hanging over his head; but they sat down then and there to arrange 
 their future life, as he in; terms told her father. They parted with 
 the understanding that the first meeting, somewhat privately from 
 the Daltons and Coburns, was to take place at the house of Mrs. 
 Richardson, her sister, on the night following. 
 
 I cannot possibly abstain, as I see it lying under my eye, from 
 recurring to that mutilated letter which, because it had been muti- 
 lated, his honor declared inadmissible, but which came in by our 
 consent last night. I -ask you to turn to that, and see if it does not 
 reveal that this "poor creature" (as even Mary Hunter was con- 
 strained to call her) went away from that interview, walking in the 
 air, in the clouds; a new world, a recovered husband, a happy future 
 opening before her. Hear her, and not my colder language: 
 
 "My much loved husband: In our meeting yesterday, I see a 
 bright hope and prospects of a happy future before me. Oh! dear 
 Frank, I hope that the day will come when we shall be happy soon. 
 I feel much happier than I did yesterday. [Why " much happier ?" 
 Because she has told everything ? Because she has a great load 
 off her conscience ? No, gentlemen !] I feel now as if I had a 
 dear husband to live for; before I felt as if I did not care to live; 
 I had nothing to live for. But oh! what a beautiful thought now 
 fills my heart — that I have him, dear Frank, to live for; him to 
 build all my future hopes on; his strong arm to lean on; his dear 
 words and sweet smiles to encourage me; and if I should ever 
 falter, I have Frank to say, cheer up, Nellie, we shall soon be 
 happy. It seems as if I could' not express on paper my thoughts; 
 but I long to fly to bis arms, and lay my face close to his, and then 
 tell him all my heart." 
 
OS BEHALF OP HELEN MARIA DALTON. 263 
 
 Judge you, gentlemen, judge you, whether or not that letter was 
 written the morning after a confession that must have wrung tears 
 from the eyes, and drops of ruddy blood from the heart of the hus- 
 band who parted them forever! No, gentlemen! i I repeat, they 
 met; the meeting was sorrowful at first; at first it was a review of 
 the melancholy past; it was repentant of that past; it was the as- 
 sertion of innocence; it was the delicious belief of innocence; it 
 was the arrangement of a future life, based upon that belief; and 
 therefore it is that when she awakes the next morning a new sun is 
 shining, there is a new heaven and a new earth. 
 
 14. Object and purpose of the story of the wife's crime 
 
 EXPOSED. 
 
 But what followed ? He could not be publicly seen with her, 
 and Edward O. Coburn went home with her that night, and Edward 
 O. Coburn had discernment enough to find out how it was with 
 them — that she had won her husband back again; and even he, 
 although he is a man who will mutilate her letters and turn them 
 by forgery as far as he can into a lie, even he was obliged to admit 
 upon the stand that she told him that she felt better that night, for 
 she was going to see her husband again the next night. Then it 
 was that these parties, the Coburns, finding that the husband and 
 wife were going to come together again at last, and that all was likely 
 to be over, then and there it was, I respectfully submit to you, that 
 they fabricated and reported to Dalton this hideous and unutter- 
 able falsehood of the abortion by the instrument of Dr. Calkins. 
 I submit to you, gentlemen, that then and there it was that they 
 approached his abused and ready ear with that infamous story of 
 abortion. There was exactly enough of truth for falsehood and 
 malignity to work upon. The truth had been exactly this : Mrs. 
 Dalton had suffered a premature birth. Grief and care which were 
 entirely adequate to produce the effect, according to the testimony 
 of the medical witnesses who have been upon the stand, had pre- ^ 
 maturely nipped in its bud of life her progeny. Three times, in- 
 cluding the last one, she had been attacked by the pains of miscar- 
 riage, and three times that Christian matron, mother, of whose 
 credibility I shall by and by have the honor to say something, 
 but on whose credibility I with undoubting confidence rely — this 
 Christian mother, when these attacks came on, herself familiar with 
 that agony and pain, applied to her a mother's care and a mother's 
 love, and along with these, those old mother remedies, warm water 
 
264 SPEECH OF RUFUS CHOATE 
 
 for the feet and composition powders; not to produce miscarriage, 
 because that event was believed to be inevitable, but in the vain 
 idea — for Dr. Clark has told you that they were worthless for this 
 purpose— that they might a little relax the system and diminish the 
 agony, and if miscarriage must happen, a little relieve the suffer- 
 ings of her child. If for that this Christian mother is to stand 
 condemned and judged as a party to the murder of that young life, 
 God have mercy upon us! I hope there is no one on that jury who 
 is a victim, as I am, periodically, to sick headache, as I should just 
 as soon expect to have my wife accused of murder, because when 
 that torture is upon me, she is in the habit of coming to me with a 
 little warm water and bathing my head, in the hope that possibly it 
 may relieve in some degree the agonizing throbs. Is it adminis- 
 tered to cause sick headache — judge you as you would be judged — 
 or in the hope that the pain would be assuaged, the system relaxed, 
 the time of suffering shortened ? This is what they have done. 
 The two first cases of this difficulty passed off. While she was 
 suffering from the third attack, her brother-in-law broke in upon 
 her and told her that her husband had refused to see her and to 
 live with her, and then, after an agony of tears and another appeal 
 to her Maker that she was innocent, the miscarriage took place. 
 
 On that foundation I say, gentlemen, I submit it is perfectly 
 true that these men then and there fabricated, out of whole cloth, 
 the story of an intentional abortion by the agency of Dr. Calkins. 
 I shall by and by have occasion to show you how unutterably false 
 is that story; false everywhere, disproved by the weight of irresist- 
 ible evidence in this case. But I advert to it here and now only 
 for the purpose of showing you how it was that the last blow was 
 struck, and Mr. Dalton was, for the present at least, if not forever, 
 separated from his wife. And that fiction did the business, and he 
 thenceforward surrenders himself to his friends, as they called 
 themselves — his enemies, as I think — and here he is, upon such tes- 
 timony as they enable him to lay before you. 
 
 Here Mr. Choate spoke of the painful duties of counsel and the jury. He 
 then referred to the subject of public trials, as follows : 
 
 15. Necessity and propriety of public trials. 
 
 Our habits are for public trial and investigation, and our liber- 
 ties will last just as long as our trials are public, and not a moment 
 more. Weagree in that; we have this love of a public trial from 
 
ON BEHALF OF HELEN MARIA DALTON. 265 
 
 our ancestors. Who does not remember a remarkable case a few- 
 years ago, when her majesty the queen of England was arraigned 
 before the House of Lords on a charge, and assailed by a body of 
 trash, compared with which the evidence of Mrs. Coburn is as in- 
 nocent as one of Dr. Watts' psalms or hymns. And here I would 
 like to ask your honor and this public, whether or not, if it had 
 been proposed to try that cause under lock and key at a long 
 table covered with baize and by lamp light, the people of England 
 would have borne it ? They would have thrown every lord and 
 bishop into the river, and piled the stones of the parliament 
 house on their heads; but they would have seen that trial and 
 heard that trial. Do you think that was for the love of offensive 
 exhibitions, gentlemen ? I have the honor to believe, for the 
 country of my descent and yours, that was the old English love 
 of fair play. They wanted to see how this was to be done, and 
 how it was that a set of Italian rascals and villains that ought to 
 have been hanged forty years before they came over to England 
 to testify, were going to prove that the greatest of queens could 
 become the wickedest of women. It was an inclination to see that 
 done; and if John H. Coburn must separate this man and wife, 
 people want to know how it is brought about, and surround the 
 jury to see with their eyes and take something of the benefit of 
 their judgment. Shame to him who evil thinks. I said, and say 
 again, no man is hurt by this trial who was worth saving when he 
 came into court. Shame to him who evil thinks! The man, the 
 mind, the heart that could go through such cases as this, listen to 
 this sad, melancholy story of bridal love, of jealousy, of misery, of 
 sorrow, of broken hearts, of willful perjury, and carry away no 
 impression but of its obscenity, reminds one of an expression used 
 by the pastor of your Brattle street church, who said he could go 
 through a gallery of art, containing the pictures of heroes and 
 demi-gods, with no impression but that they were all stark naked. 
 Shame to him who evil thinks. Let us, gentlemen, not suffer our 
 delicacy to prevent our doing our duty; the result is to be one 
 which may interest the heart and affections and improve the life. 
 
 i6. The presumption of innocence. 
 
 We begin this trial, Mr. Foreman and gentlemen, by taking with 
 us a familiar principle of the law — by the presumption that every- 
 body, and especially the defendant, is innocent until clearly proved 
 guilty, We begin with the presumption that it is in the last degree 
 
266 SPEECH OF EUFU8 CHOATE 
 
 improbable that a young bride, in the fifth month of her marriage 
 and the second month of her pregnancy, affectionate, modest, of 
 Christian training, has committed the greatest crime of woman. 
 We take with us, gentlemen, merely that the circumstance that she 
 has been engaged in what Edward O. Coburn said he thought was 
 a flirtation, and nothing more, with young Sumner, does not prove 
 that the last great step is taken. We believe this, and take this 
 with us, because we know it to be so, perfectly well. We ourselves 
 and those we love best, rejoice to know that it does not follow be-. 
 cause one step has been taken, all have been. We take with us the 
 ordinary principle, too, by which circumstantial and other evidence 
 of adultery is to be weighed. I had the honor to call the attention 
 of the court just now to an authority upon this subject. It is not 
 worth while to trouble you with it, but I pray his honor to take 
 notice, that throughout, the burden is upon the libellant to prove his 
 case clearly and undoubtedly; that every invisible fact and circum- 
 stance goes for nothing at all; and that throughout, if everything 
 that has been> established by credible evidence is fairly reconcilable 
 with the innocence of the party, in reference to the great ultimate 
 charge, there is not a tittle of proof in the case. 
 
 17. No PROOF, OF defendant's GUILT. 
 
 With this We start. It is the crime of adultery, Mr. Foreman. 
 It is an intentional and deliberate surrender of the person unlaw- 
 fully to another. No surprise at the window, no sudden placing 
 of the hand within the bosom, instantly and by a flood of tears re- 
 pelled, is adultery. ■ There must be some intentional, intelligent, 
 voluntary and consummated surrender of the body; and this estab- 
 lished by evidence clear and undoubted, or there is no case. No 
 such case is established or begun to be established before you. It 
 would express my opinion, gentlemen — and if I should allow my- 
 self, what I would prefer to do, to make a very short address upon 
 this evidence, I should leave it upon that — it would express my 
 opinion exactly of the state of the proof, if I should say that, un- 
 til you come down to the alleged confession of John H. Coburn, 
 there is not a particle of proof, not one fact, not one declaration, 
 that tends in the least degree to prove the guilt of the defendant; 
 and of John H. Coburn's testimony I should say, it was the most 
 barbarous, beastly, incredible, impossible perjury that was ever at- 
 tempted to be passed upon a jury. And if my object, as I said be- 
 fore, were merely a verdict of acquittal upon this charge, I would 
 
OS BEHALF OF HELEN MARIA. DALTON. 267 
 
 leave it there, or rather I would proceed at once to the discussion 
 of the testimony upon that fact. But the importance of the cause 
 and the novelty of the trial make it necessary to go a little further; 
 and therefore I beg leave to submit my commentary upon the whole 
 proof under this arraignment, and I commend it to your attention, 
 as it will enable you to see where I am in the progress of the dis- 
 cussion; and I will enable you to give me credit for believing that 
 if I do not at once place, or in one moment, reply to a piece of 
 evidence that lies in your own mind, according to the arrangement 
 I have proposed, I shall do it in another. 
 
 I have, therefore, to submit to you that every particle of credible 
 evidence in this case, until you come down to the testimony of 
 John H. Coburn and the alleged confession of the 25 th of Febru-. 
 ary, is perfectly consistent with the innocence of Helen Dalton; 
 and I shall respectfully submit that if it rested there, on the whole 
 case as it existed down to that evening, you would not leave your 
 seats to find a verdict for the defendant. I shall then have the 
 honor to submit to you that Mr. Coburn's evidence is not entitled 
 to a moment's belief. I want you, gentlemen, first to try all that 
 evidence yourself, and after you and I have conferred a little upon 
 it, I shall respectfully once more ask you to appreciate the great 
 fact, that upon every single word of it, every fact and circumstance, 
 Mr. Dalton himself pronounced his own judgment, and declared 
 that it did not convict her of guilt. 
 
 18. No PROOF OF PROXIMATE ACTS OF ADULTERY. 
 
 In the first place, let us look at it for ourselves. It is usual in 
 cases of alleged adultery for the libellant or the commonwealth, or 
 whoever has the burden of proof, to begin by what is called posi- 
 tive proof of what are called proximate acts; that is to say, direct 
 positive evidence of certain acts committed by which a party ap- 
 proximates to a surrender, evidencing an immediate commission of 
 the crime. Direct evidence of the commission of adultery is of 
 course very rare, and is never demanded. Positive evidence of 
 these proximate acts, such I mean, of course, as the parties being 
 found very near each other and apparently surprised, rising hastily, 
 dress discomposed, one running one way and another another, con- 
 fusion, hesitancy, embarrassment — ^positive evidence of that kind 
 of proximate acts is ordinarily the evidence by which adultery is 
 established in a court of law. Accordingly, on a late occasion, in 
 the immediate neighborhood, of which everybody, except perhaps 
 
268 SPEECH OF EUFUS CHOATE 
 
 my brothei- Dana, may have heard something, that was the admitted 
 line of proof — positive proof of alleged proximate acts. 
 
 The first remark that I have to make here is, that there is not 
 the first particle of evidence of any proximate act. 
 
 Here Mr. Clioate carefully analysed the testimony to show that no proxi- 
 mate acts of adultery had been shown. He then continued : 
 
 19. Rules as to weighing circumstantial evidence. 
 
 The burden being then upon the libellant to establish beyond a 
 reasonable doubt the fact of the adultery, and the libellant failing 
 altogether to produce the ordinary evidence of a positive character 
 of proximate acts, we pass on — still, as you understand, gentlemen, 
 confining ourselves entirely to the state of the proof, before we ar- 
 rive at the alleged confessions — we pass on to see what is the nature 
 of the proof relied upon by the libellant. And you see that it is 
 circumstantial evidence only of adultery. They rely wholly upon 
 circumstantial evidence to prove the alleged fact of adultery. I 
 speak of this intermediate and earlier period, let me say, in order 
 that I may be perfectly appreciated by the jury, before and inde- 
 pendent of the alleged offense sworn to by the Coburns, and I re- 
 mind you that it is no more, at the best, than circumstantial evi- 
 dence of adultery. I need not pause to remind you how much 
 caution, how much candor, and how much intelligence are requi- 
 site in appreciating circumstantial evidence in any case. That 
 kind of evidence may clearly prove guilt. That many times, how- 
 ever, it has also shed innocent blood, and many times it has stained 
 a fair name, I need not pause for a moment to illustrate or remind 
 you. Instead of doing that, I think I shall be better occupied, 
 under the direction of his honor, in reminding you of the two 
 great rules by which circumstantial evidence is to be weighed, ap- 
 preciated and applied by the jury. Those rules, gentlemen, are 
 these : 
 
 In the first place, that the jury shall be satisfied, beyond a 
 reasonable doubt, that the circumstances relied upon to prove the 
 fact really existed; and then, when these circumstances are clearly 
 and certainly established. 
 
 In the second place, it is a rule of equal, or even more impor- 
 tance in this case, that the jury shall be satisfied that they conduct, 
 as a necessary result and conclusion, to the inference of guilt. It 
 is a rule that may be called ' a golden rule in the examination and 
 application of this kind of evidence which we call circumstantial, 
 
Olf BEHALF OF HELEN MARIA DALTON. 269 
 
 that should it so turn out that every fact and circumstance alleged 
 and proved to exist is consistent on the one hand with the hypoth- 
 esis of guilt, and on the other hand consistent, reasonably and 
 fairly, with the hypothesis of innocence, then those circumstances 
 prove nothing at all. Unless they go so far as to establish as a 
 necessary conclusion this guilt which they are offered with a view 
 to establish, they are utterly worthless and ineffectual for the in- 
 vestigation of truth. I had the honor to read to the court this 
 morning, and possibly in your hearing, an authority in which that 
 familiar and elementary doctrine was laid down, a doctrine every 
 day applied, everywhere recognized as primary in the appreciation 
 of this kind of evidence. It is not enough that the circumstances 
 relied upon are plainly and certainly proved. It is not enough to 
 show that they are consistent with the hypothesis of guilt. They 
 must also render the hypothesis of innocence inadmissible and im- 
 possible, unreasonable and absurd, or they have proved nothing 
 at all. 
 
 20. The circumstance relied on by plaintiff. 
 
 I might illustrate this by reference to cases, and by reference to 
 the practice and experience of courts of law. But there is no need 
 at this moment to detain you upon this subject, and I pass at once 
 to the examination of the circumstances relied upon by the counsel 
 for the libellant to prove the charge of adultery. I think I may 
 very well put first, as the foremost upon which they here insist, as the 
 capital fact and circumstance upon which they mean to rely, that 
 Helen Dalton, having been conscious of the guilt of adultery, prac- 
 ticed, by the aid, assistance and advice of her mother, the crimi of 
 intentional abortion by the agency of Calkins' instrument, to con- 
 ceal that guilt. That, I respectfully submit, is the fact, and the 
 great fact that the libellant insists upon in this case. That is the 
 circumstance I have had the honor already to submit to you, by 
 which they at last determined the yet undoubting mind and heart 
 of Dalton. That was the capital suggestion by which they at last 
 approached him, and persuaded him to abandon his wife and insti- 
 tute this libel. That circumstance is also the first and main one 
 through which, from the first three days of this trial, they appeared 
 to gain the ear of the public and the press, and by which they 
 made an impression upon you. 
 
 I have the honor to insist upon the evidence, by leave of the 
 court, that a more enormous and manifest falsehood, in the color 
 
270 SPEECH OF RUFtT3 CHOATE 
 
 of circumstantial proof, was never laid before a jury. What is this 
 circumstance, exactly as the libellant, by his testimony, brings it 
 before you ? We learn from the testimony that Helen Dalton, hav- 
 ing been threatened with a natural miscarriage in the manner indi- 
 cated in the evidence upon the stand by her mother, and corrobo- 
 rated more particularly by other testimony; having been threatened 
 with a natural miscarriage once, twice, and a third time, was as- 
 sisted by her mother by some of those feeble and accustomed old 
 woman's remedies, warm water applied to the feet — composition 
 powder to be taken. It is not the charge, and I understand that 
 the learned counsel will not ventiire to take the ground, if it be 
 true in point of fact, as upon the evidence has been shown to you, 
 that she was merely threatened with a natural miscarriage, and in 
 order to break its force, alleviate its pangs, and, if it was inevitable, 
 abridge its duration, her mother applied the remedies; but the 
 charge is this exactly: that, being - perfectly well, liable to bear a 
 child, whose countenance might tell the story of guilt, fearing the 
 revelation of a natural birth, under the advice of her mother, at- 
 tended by her mother and counselled by her father, she was con- 
 ducted at first to an irregular operator who performe'd an artificial 
 operation for abortion. That is the ground taken by the other 
 side; and it is between these two theories, upon this part of the 
 case, that I have' the honor of comparing the weight of the evi- 
 dence and invoking the intelligence of the jury. I ask, gentlemen, 
 which theory it is that commends itself to you ? Is it the one pro- 
 pounded by the respondent, proved by her mother, father, Mrs. 
 RichardsoHj Margaret Ware, Mrs. Emerson, Dr. Calkins, and by 
 ev^body, that it was a natural miscarriage, three times developing 
 the threat of .its approach, three times vainly sought to be allevi- 
 ated by those trivial remedies of the mother, three times feared, 
 three times provided against, and at last, happening under the 
 anguish of the communication made to her by Dalton through Mrs. 
 Richardson ? Is it this, or is it, as they put forward; that being 
 perfectly well, pregnant, and about to be naturally delivered, but 
 not knowing who was the father of the child, and fearing that its 
 birth might reveal her guilt, for the purpose of concealment she re- 
 sorted to this abortion ? If it is the explanation which we lay be- 
 fore you, of course this is all perfectly worthless as circumstantial 
 evidence in the case. But if, on the other hand, they have estab- 
 lished their theory, these are circumstances, I admit, of great 
 strength; and I have, therefore, the honor to repeat that this is the 
 
ON BEHALF OF HELEN MARIA DALTON. 271 
 
 capital fact or circumstance offered by the learned counsel, and at- 
 tempted to be proved by his witnesses, and by which they per- 
 suaded Dalton to resort to this libel, by which they stand or fall, 
 upon thejudgment of this jury, in their whole case. 
 
 21. No MOTIVE TO INDUCE DEFENDANT TO DESTROY HER 
 OFFSPRING. 
 
 I pray your attention, therefore, for a moment somewhat more . 
 carefully, particularly to the weight of the evidence upon this point. 
 And the very first thing to which your attention is likely to be 
 called, is the question: Where was the motive which induced Helen 
 Dalton, or the mother of Helen Dalton, to commit this crime of 
 abortion ? Where was the motive to stifle the birth of life of her 
 unborn babe in the circumstances imputed in the libel ? Where 
 was the motive ? My learned friend is very well aware of the im- 
 portance of that part of the case, and therefore he made it sub- 
 stantially the groundwork of the case, saying that he should prove, 
 by certain evidence more clearly to be brought before you, that 
 Helen Dalton stated that she could not tell who was the father of 
 her child, and to secure herself from that shame, abortion was prac- 
 ticed upon her by the knowledge of some of her family and 
 through the instrumentality of a low physician. My learned brother 
 put forward the motive and took the issue; but having gone through 
 with the evidence in this part of the case, I ask you where is the 
 particle of evidence, credible or incredible, that Helen Dalton ever 
 stated to any human being that she did not know who was the 
 father of her child ? Where is the witness, Edward Coburn, John 
 Coburn, Mary Hunter, or anybody, who comes forward here to 
 give the least color to a charge so cruel and yet so decisive as this ? 
 If they told my learned friend so, upon consultation with him, be- 
 fore they appeared upon the stand, I can only say that when they 
 came before this court, and into the light of this room, they did 
 not dare to repeat it. I can only say, that if anybody told him so 
 anywhere, when they came here, that which was a mere fiction in 
 the beginning, their memory refused to enable them to repeat in 
 your presence; for I have the honor again to submit to you that, 
 from the first to the last, there is not a scintilla of evidence from 
 any witness, even from the most disreputable and untrustworthy of 
 them all, that Helen Dalton ever breathed a doubt to mortal man 
 or woman of the paternity of her yet unborn babe. On the con- 
 trary,. if it were necessary to consume your time upon this pointy I 
 
272 SPEECH OF RUFUS CHOATE 
 
 might show you by Miss Dalton and other witnesses, that it was 
 known to everybody, or assumed by everybody, that Dalton was 
 the father of the child. Mary Hunter tells you that this savin, 
 about which she gives you so much information, the leaves of 
 .which may be as large as your thumb-nail, or as large as the New 
 York Courier &' Enquirer, she don't know which, was given to 
 bring along Dalton's child. It was Dalton's child, by the testi- 
 mony of all, that was to be made to be born before its time; and 
 from the testimony of no one, in view of the evidence, light or 
 dark, is there a suggestion that she ever feared in her life that it 
 should prove otherwise. Where then, I ask you, does my learned 
 brother find a warrant for that opening which made such a lodg- 
 ment in your minds and in the minds of the community a fort- 
 night ago, when this case commenced, the assertion that she said 
 she did not know who was the father, and not knowing what father's 
 face might be painted upon its infancy, she decided to destroy it ? 
 I respectfully submit, upon the other hand, that it is demonstrated 
 in the course of the evidence, so as to leave no doubt upon the 
 mind of a human being, that whatever else there may be in this 
 case to regret, and whatever else there may be to investigate, Dal- 
 ton was the father of that child; that it was known to him, that it 
 was known to her, that it was known or believed to be so by every- 
 body. And therefore the foundation of this most cruel and yet in- 
 fluential pretense is struck from under their feet. 
 
 Here Mb Choate reviewed the evidence to support his statement, and to 
 show that this testimony was not contradicted. He then continued : 
 
 Can it be that rights like these, that affections like these, are to 
 be determined by the jury against proof or without proof, and in 
 the face of a body of such proof as that with which we confront 
 it ? On the other hand, we have the honor to lay before you, first, 
 the testimony of three witnesses swearing to the matter, directly 
 and distinctly as within their own knowledge; and, secondly, that 
 of two experts, who apply their knowledge of science to this sub- 
 ject, and who declare that the knowledge of conception must have 
 dated back as far as the last of September or the first of October. 
 
 Starting from that, the next inquiry in this case is, when and 
 where did Helen Dalton first become acquainted with Sumner ? 
 That at that time she had ever known such a man as Sumner, not 
 a human being contends. And yet the time of that acquaintance 
 has a very material bearing upon the alleged statement that she 
 
ON BEHALF OF HELEN MARIA DALTON. 273 
 
 said she did not know who was the child's father; and in order to 
 show you the utter groundlessness of that charge, I have only to 
 remind you that they have not produced one scrap of evidence that 
 she ever saw the person of Sumner in her life before the middle of 
 October. And she bore in her bosom a pregnancy of a month, or 
 at least of two or three weeks, before she ever saw him in her life. 
 I contend that nobody's suspicions have ever dreamed that there 
 was any colorable pretense for the charge of an unlawful connec- 
 tion with Sumner until the i6th of October, when certainly she was 
 one or two months advanced in this pregnancy. There is no proof 
 which they have been able to bring upon that point. 
 
 But I do not rest it upon the absence of evidence. How stands 
 the matter, so far as regards the direct testimony ? They have in- 
 troduced two direct witnesses who certainly are entitled to credit; 
 Miss Snow, a respectable young lady, and friend of Helen Dalton, 
 and willing to be her friend and to avow herself to be her friend; 
 and Mrs. Coburn, her sister, who would know, if any human being 
 would know, the fact; and both declare that, to their best knowl- 
 edge and belief, Helen Dalton never saw Sumner in her life up to 
 the middle of October. Miss Snow declares that all the knowledge 
 she has of their acquaintance begins about the middle of October, 
 when she was introduced to him; and Mrs. Coburn, in her deposi- 
 tion read to you last night, makes the declaration that it was the 
 middle of October before she ever saw him. Are not the facts un- 
 doubted that she was pregnant, that it was known to her husband, 
 known to her mother and her sisters ? 
 
 22. Testimony reviewed to show absence of motive. 
 
 And now, turning again to my learned friend, who says that she 
 declared she did not know who was the father of her child, I ask 
 him, as I asked before, where was the motive to stifle his unborn 
 babe in the birth of life, and to add this crime of murder to all the 
 other incidents with which this case is connected ? Where was the 
 motive ? Do you think it probable, Mr. Foreman— I pray your at- 
 tention to the evidence — do you think it probable that this young 
 wife, suspected by her husband and stricken to her heart because 
 her husband suspected; who knew perfectly well that she was inno- 
 cent; who hoped that it might live to be a tie and pledge to them 
 in the days of their reunion; who knew perfectly well that she car- 
 ried in her bosom, upon her infant's eloquent features, what might 
 one day testify to the legitimacy of the child, the honor of the hus- 
 18 
 
274 SPEECH OF RTJFtrS CHOATE 
 
 band, and the virtue of the wife — do you believe that then and 
 there she would surrender her body to this operation, to this peril, 
 to stifle and destroy her means of proof; her most eloquent of ad- 
 vocates, the most powerful means by which a mother expecting and 
 hoping for progeny could look forward to restore the alienated 
 heart of a once loving husband, with whom she must either live or 
 bear no life ? I turn upon him, in total absence of proof of these 
 alleged facts, and I ask what motive could she have had ? I ap- 
 peal, to borrow the language of the Queen of France, when, = in 
 that great trial which terminated with the sacrifice of her life, being 
 accused of everything else, she was accused of pandering the vices 
 of her son, she exclaimed, and that shriek went through France and 
 through Europe: "I appeal to mothers, if it be possible ! " I ap- 
 peal to you if it be possible that this daughter should be led out 
 by her mother, and trotted across the street like an unclean beast, 
 for an operation which was to destroy the hopes of both. I appeal 
 to you if it be possible that that mother and grandmother can be 
 believed to have cared so little about the operation for intentional 
 abortion, as was testified by one witness, that she had performed it 
 herself half a dozen times upon the person of Mrs. Emerson, so 
 that she would do it as lightly and unfeelingly as a boy would shake 
 green apples from a tree. I appeal to you, gentlemen, if our hearts 
 and our reasons do not pronounce and denounce the whole story 
 as a fabrication, an ingenious falsehood, without a single element 
 of grave truth ? 
 
 Here Mr. Choate showed that the only proof to the contrary was that of 
 John H. Cobum, Edward O. Coburn, and Mary Hunter, whose testimony he 
 showed was conflicting and unworthy of belief. He then continued : 
 
 Now, what have we upon the other side ? I do not know but 
 the trial will end in the severance of this tie; and in a general con- 
 viction of a body of perjury committed in the court-house under 
 your eye, most hideous, most enormous, most unparalleled in the 
 administration of criminal justice. But if it is not to come to that, 
 then I put upon one side of this case of the charge of abortion this 
 great fact: that we produce the positive and direct testimony of 
 five witnesses^for I include Mr. and Mrs. Emerson, inasmuch as 
 it is just as fully proved that the operation for abortion has been 
 practiced upon Mrs. Emerson for six times as upon Helen Dalton 
 once— five witnesses, hitherto respectable in the eyes of the com- 
 munity, who have come before you with every apparent title to 
 your confidence, and who have opposed the declarations which the 
 
ON BEHALF OF HELEN MARIA DALTOK. 275 
 
 other: side have brought forward, by declarations of matters of fact 
 strictly within their personal knowledge. Three of them say that 
 no abortion was practiced upon Helen, and two of them testified 
 that no abortion was practiced upon Mrs. Emerson. Five witnesses 
 swear directly as to a matter of fact, most striking and painful if 
 it ever happened within their recent experience, which they will 
 remember as long as their moral nature exists, if it occurred at all; 
 and these five tell you that the story is false and scandalous and 
 groundless from beginning to end. 
 
 23. Defendant's proof showing falsity of the charge 
 narrated. 
 
 I think I should hardly be warranted in an ordinary case in de- 
 taining you another moment, if it were not very material, if it were 
 probable, if it were not attended with consequences which I think 
 will settle this controversy. If it were a mere naked question 
 whether abortion was procured or not, I should leave it here; but 
 inasmuch as, if it were not done, if that story is as false, every 
 part of it, as any fabrication from the infernal world, this whole 
 case goes down with it, I ask you to pause a moment longer. If 
 there was no abortion, permit me to say, better were it for John 
 H. Coburn, Edward O. Coburn, and Mary Hunter, if they from an 
 untimely birth had never seen the light, than that they should come 
 here and commit this great sin, if they die without repentance and 
 without forgiveness. I submit that it will follow inevitably, in 
 every aspect of this case, that if that story is untrue, there is not a 
 particle of foundation to rest their case upon from the beginning. 
 
 I am not blaming Dalton. Do not understand me as blaming 
 Dalton because he brings forward their charge of abortion. They 
 vanquished him by it. They made a child of him by it. They 
 made him believe that story. He took it as it was told to him, and 
 it was no folly for him to lay it before you. It is they who fabri- 
 cated it, and who by means of it have won him to this pursuit, who 
 are deserving of our censure. Upon that I have something further 
 to say by and by. 
 
 Now I ask you, first and foremost, whether you believe our five 
 positive witnesses. I would not in any ordinary case consume 
 time upon it; but if you will bear with me, I think there is a capital 
 distinction between the testimony of the other side and that of 
 these five witnesses, who swear to matters of fact within their own 
 positive knowledge. If that matron mother led that blooming and 
 
276 SPEECH OF RUFUS CHOATE 
 
 innocent child across the street for the performance of this opera- 
 tion, she knows it. If Mr. Gove was consulted about it, or coun- 
 selled it either before he went West or after his return, he knows it 
 perfectly. If this happened at all, I submit to you that Dr. Calkins 
 knows it perfectly. And if it was ever practiced upon the pure, 
 youthful, matron form of Mrs. Emerson, does not she and does not 
 her husband know it ? And yet they all declare it to be an absolute 
 falsehood upon the stand. Can there possibly be any escape for 
 them if they are wrong ? Is not here an absolute certainty that, if 
 they are honest and state what they believe to be true, they cannot 
 be mistaken ? Allow me for a moment to run over this part of the 
 evidence, that you may perceive its entire strength; for I want this 
 matter put completely at rest, to put at rest your judgment; and I 
 want your verdict to express your opinion upon this point. Let me 
 then go over this evidence a little more in detail. 
 
 24. Mrs. Gove — her character and testimony. 
 
 We call Mrs. Gove, who declares upon her solemn oath in your 
 presence, that she never advised an operation, that she never ac- 
 companied her daughter for that purpose, and that she never 
 suspected or dreamed that it was ever charged until a late period 
 in the history of this case. You remember her testimony upon the 
 Stand, and I ask you whether you believe her a willful perjurer. I 
 know the deep feeling with which she testifies in the case. I know 
 that she has arrived at a time of life when the future is abridged as 
 well as uncertain and doubtful, and I believe that at any time of 
 life she would give her own for her child; and I submit to you, if 
 there is any ground to say or any ground to suspect that she comes 
 here willing to peril her soul — and she sustains, I believe, a Christ- 
 ian character — in swearing to a falsehood. Do you believe that 
 story to be true ? Grief may have impaired her faculties to some 
 extent. Her memory may be occasionally somewhat defective. 
 Some exceptions may have been taken as to her manner upon the 
 stand. But the solemnity and dignity of that Christian matron as 
 a witness here must, I think, have given to you all the assurance 
 you could desire that she meant to tell the truth. Is there any 
 escape for her upon the ground of forgetfulness ? Can it be that 
 she could take part in such a transaction, and not be able to re- 
 member it ? or that she does so much of it in her own house that a 
 particular case of that kind makes no impression upon her memory? 
 Could she be mixed up with a domestic agony so sharp as this — ■ 
 
ON BEHALF OF HELEN MARIA. DALTON. 277 
 
 could she possibly have taken part in it, led her child to the knife, 
 and carried her back to a premature delivery — and have forgotten 
 it ? Gentlemen, there is no such escape for my learned friend as 
 this. There is the most dreadful perjury, or she has told the truth. 
 But you observe, still further, that there is no excuse left upon 
 the score of forgetfulness, for another reason. You cannot have 
 forgotten with how much minuteness of detail she traced the his- 
 tory of this case. She fixed the period of the pregnancy, announced 
 the fact that she was three times threatened with miscarriage, fixed 
 the number of weeks as nearly as the time may be fixed, a time 
 corroborated by the testimony in the case of the final miscarriage. 
 You will remember that she stated with the utmost precision the 
 k;nd of remedies which she applied, the periods she applied them, 
 the effects that followed; that one attack passed away, and then, 
 after a considerable interval, another came on; that these attacks 
 were subdued under the influence of some applications made by 
 her maternal care; and at last the third and decisive attack fol- 
 lowed, hurried to its inevitable consummation by that sharpest of 
 afflictions, announced by Mr. Richardson, that her husband refused 
 to meet her again. I respectfully submit, therefore, that there is 
 no room — none in the world — for escape, upon the score of forget- 
 fulness, from the charge of perjury, if she has not told you the 
 truth. 
 
 25. Mr. Gove, — his character and testimony. 
 
 Permit me now to say something of Mr. Gove. He stands be- 
 fore you convicted of a violation of truth and a most deliberate 
 perjury, if he had any agency, direct or indirect, or if he ever 
 suspected in his life that the crime of abortion was committed, un- 
 til he heard it in the anonymous communication of which he has 
 spoken. I know very well that Mr. Gove's testimony is liable to 
 criticism. With this burden upon his mind, and this long agony, 
 threatened as he is with the lopping off the lowest and fairest 
 branch of the family tree, I know how full his heart is, and I re- 
 spect him the more for it. I know, gentlemen, that he does not 
 dismiss it from his thoughts an hour; that it is in his prayers; that 
 it goes with him to his bed; that it attends him in the streets; 
 that it lies heavy upon his heart everywhere; that it makes him 
 forget the proprieties of his general character, in the presence of 
 one of the jury. I know that it haunts his dreams — dreams, gentle- 
 men; he has no sleep but the sleep which anodynes supply him; 
 
278 SPEECH OF RTJFUS CHOATE 
 
 and I know very well, therefore, that in regard to the trifling matters 
 of detail, or concerning proprieties of conduct, Mr. Gove has not 
 appeared advantageously. The father has been too strong for the 
 citizen, in certain respects and to a certain extent; and I need not 
 appeal to you, gentlemen, who may expect or fear also yourselves 
 to be judged, to say whether or not he would commit a willful per- 
 jury upon a matter of fact like this. Is not that a wholly delusive 
 theory, in everybody's judgment ? May he not be imprudent and 
 talkative, wish to hear whether one man or another man is to pass 
 upon this trial which affects more than his life, because it affects 
 what is treasured in his heart ? May he not want to know about 
 what this witness says, or what that witness says ? May he not talk 
 imprudently or even foolishly, but yet, past the middle of life, a 
 man whose gray hairs and bald head give evidence of an approach 
 to that time when we should be walking, thoughtful and silent, 
 upon the solemn shore of that vast ocean upon whose waves we are 
 to sail so soon, would he not put truth and good words on board ? 
 Is that the correct inference that a man like Mr. Gove — grown up 
 before you, a boy from the country, of respectable and pious 
 parentage, one of the disciples and children of John and Charles 
 Wesley, who sings their hymns, utters their prayers daily and 
 nightly — comes to swear deliberately and willfully to a falsehood ? 
 God forbid, gentlemen, that we should thus judge one another in 
 judgment! I do not appeal to your charity, to your hearts, but I 
 put it to your knowledge of life — and you may be parents — whether 
 you cannot appreciate perfectly how the father should be talkative, 
 and forward, and imprudent ; willing to forget, or at any rate for- 
 getful of smaller and minute details, and yet shrink back as if heU 
 opened under his feet from the utterance of a lie ? 
 
 Here Mr. Choate reviewed the evidence to show the falsity of the crime 
 charged against the defendant and against her father, and continued: 
 
 26. Dr. Calkins.^Inference from his refusals to answer. 
 
 There is another single witness who, if anybody upon the face 
 of the earth, must have known whether this charge was true or 
 false, and that is Dr. Calkins. We who did not know who he was, 
 or care what he was, produced him here ; because we knew that 
 whatever he was, he would not dare to stand before the face of 
 that mother and child, and tell you that that mother ever practiced 
 abortion or assisted in it. We called him and placed him before 
 
ON BEHALF OF HELEN MAEIA DALTON. 279 
 
 you, and you know that, unless he adds to the other black list the 
 guilt of perjury, the charge is groundless. As Dr. Calkins is a 
 stranger, he was entitled to be heard before you, and I submit to 
 you that he is entitled to be believed upon his oath, upon every 
 principle of law and common sense, until it is shown why he should 
 not be believed. Every witness is entitled to be believed upon his 
 oath with regard to a matter within his knowledge, unless we have 
 some certain ground upon which to discredit him. I ask you, if 
 there is one ■ scintilla of evidence that should warrant you upon 
 your oaths in saying that Dr. Calkins has sworn to a word of un- 
 truth ? What is there against Dr. Calkins ? This only. My learned 
 brother addressed certain inquiries to ascertain whether he had not 
 at some other period procured an irregular abortion. Dr. Calkins 
 took his constitutional privilege and declined to answer. What is 
 the inference ? It is that he so respects his oath, that he dares 
 not answer untruly; and that he could not answer untruly, without 
 criminating himself, he took his constitutional privilege and de- 
 clined to answer. What was to hinder him from giving my brother 
 information about that bamboo-bottomed chair ? What was to 
 hinder him from denying everything, but the fear of Almighty 
 God on the oath he had taken ? And why does he stand here and 
 swear that he did not practice an abortion upon Helen, but because 
 he can truly do it ? I submit to you, that the very fact that he 
 made this distinction, that he claimed this constitutional privilege 
 in the one instance, upon which his honor instantly extended to 
 him its protection, and answered freely in the other instance, 
 showed that he could negative one inquiry as a man of conscience 
 under oath, and respected his oath too much to negative the other. 
 Although I disapprove of what we may conjecture his practice to 
 have been, I thank God that herein we may see another illustration 
 that a man may do one wrong and commit one irregular act, or one 
 breach of the law, and yet that he is not necessarily a devil incar- 
 nate, a perjurer, or an adulterer. 
 
 I go further for Dr. Calkins and say this: Disapproving alto- 
 gether of his bamboo-bottomed chair, unless it is an easier one than 
 I have been accustomed to, I have this to say for him, that there is 
 not a scrap of evidence in here that he has taken an infant's life, 
 or endangered a human mother — not one. In coming before you, 
 I know nothing of reputation, and you know nothing of reputation; 
 we know nothing but the evidence of the facts, as they have been 
 by law laid regularly before you. 
 
280 SPEECH OF EUFUS CHOATH 
 
 27. Defendant's evidence strongly corroborated. 
 
 Three witnesses, then, the only ones who have spoken upon the 
 subject, declare this charge of abortion against Helen Dalton to be 
 false. Are they not corroborated ? 
 
 Here Mr. Choate stated the corroborating testimony, and continued : 
 
 I should be glad to know, also, if there is any corroboration of 
 the assertion that here was an intentional abortion, and not the 
 natural progression of a miscarriage. I should like to know why 
 we have not further evidence about it from this family. How 
 comes it to pass that this young woman, passing to Pleasant street 
 and going to Dr. Calkins, no human being in or about the house 
 ever heard or dreamed of it ? Mrs. Richardson did not know it; 
 and how comes it to pass that Mrs. Emerson, who spent that very 
 Friday there, upon the evidence of the mother and daughter, who 
 heard her mother say that she feared a miscarriage — ^how comes it 
 to pass that she knows nothing at all about it ? It negatives it. If 
 Mrs. Coburn is not willfully perjured, and that will hardly be con- 
 tended here, you have this striking fact. The testimony of all these 
 parties refers to the successive attacks, and to the fact that the 
 mother feared a miscarriage; it shows that she called upon Helen 
 to lie down and keep still in order to prevent it; she kept her still 
 and recumbent, and in two cases it all passed away; she adminis- 
 tered the harmless foot-bath and composition powder, to diminish 
 its pangs if it should not pass away. I think, too, there is corro- 
 boration in the testimony of Dr. Clark; and in this whole case, if 
 her story is corroborated anywhere, I think you will find that cor- 
 roboration here, that it is an ordinary case of natural miscarriage, 
 the result, it may be, of grief or care. Dr. Storer and Dr. Jackson 
 have testified that it belongs to this great trial of woman, extraor- 
 dinary and mysterious, this bearing of children in pain ; it is a part 
 of the law that not only physical disease, accident, physical calam- 
 ity, but the labor of the heart, sorrow and anguish, fear and doubt, 
 and mental pain, may produce this effect — it is the ordinary his- 
 tory. These remedies rather mark the purpose of the mother to 
 soothe her nerves for the purpose either of securing her from mis- 
 carriage, or conducing to her comfort in that untoward event. 
 
 Here Mr. Choate reviewed more corroborative testimony. He then con- 
 tinued : 
 
 I intend, if my feelings will allow me, to bring this whole series 
 
Oir BEHALF OF HELEN MARIA DALTON. 281 
 
 of correspondence, by and by, in its order before the jury, in 
 demonstration of the merits in this case. It will be useless to turn 
 to that correspondence now. Suffice it for the present to say this: 
 What becomes of this theory of abortion upon the other side ? 
 The story is that, being well enough, feeling herself pregnant, and 
 not knowing who was the father of the child, she decided to submit 
 to this operation, and put it to death. And upon this view of the 
 case, this whole operation should be conducted secretly and with- 
 out the knowledge of her husband; whereas we see by his letters, 
 as I will show you more completely and regularly by and by, she 
 apprised him from attack to attack, exactly or substantially what 
 was the matter, exactly or substantially what they all feared, exact- 
 ly or substantially what her mother was giving in order to alleviate 
 her pains if the miscarriage was to happen, and after all, she con- 
 gratulates herself, congratulates Dalton, that she will give him a 
 child at last, and moots the little playful conjugal question, " Shall 
 it be a boy or a girl ? " I will not trust myself now to read from 
 her letter, but the result is an ample demonstration that her father, 
 mother, sisters, all knew of it. 
 
 Here Mr. Choate stated other corroborating testimony, and continued : 
 
 28. The testimony of the parties contrasted. 
 
 I now put it to you, as I said before, that if our confidence in 
 human testimony is not to be abandoned, that apparently just, 
 pure, comely, intelligent and still young wife, swore to the truth 
 when she said that she never had abortion practiced upon her by 
 instruments, or by purpose, in her lifetime; that she had suffered 
 one certainly natural miscarriage, and possibly another, may be 
 true; but the whole story as it was told here, in every part and 
 parcel, in substance and in color, was wholly false. We must be- 
 lieve that somebody tells the truth, and we must believe that one or 
 another swears falsely. I do not think it a very wise position to 
 maintain that a witness upon one side swears intentionally to a 
 falsehood. It is a hard charge to bring— a dreadful crime to im- 
 pute. Better is it to adopt almost any supposition, to solve the 
 case, than that supposition. But we are here in this painful and 
 remarkable position^— somebody has perjured himself or herself be- 
 fore God Almighty. That we know. We have only by our best 
 lights to say who, the one or the other, has done it. You are not, 
 therefore, brought at all to the painful dilemma of being obliged to 
 
282 SPEECH OF EUPUS OHOATE 
 
 take a certain theory of a case, or to say that an individual has 
 sworn untruly. Edward O. Coburn and John H. Cobum have 
 perjured themselves, or five respectable witnesses have perjured 
 themselves; and I put it to you, upon this solemn responsibility of 
 your oaths, to declare whether you do not believe Mrs. Emerson 
 and her husband, and these other witnesses. 
 
 Here Mr. Choate referred to the vindictive cross-examination of Mr. Emer- 
 son, shovping that it was unwarranted, and that the witness had no other motive 
 than to tell the truth. 
 
 29. Evidence of flirtation no proof of crime. 
 
 What do they go to next ? It is said — and this brings me to an 
 interesting and very important part of the case — that there was an 
 intimacy between Helen and Sumner : walks, drives, rings ex- 
 changed, a book given, an intimacy of some weeks, a light, frivol- 
 ous, objectionable intimacy, one which, as long as she is a living 
 woman, is to be the sorrow and repentance of her life; and so there 
 was. They will say, as Edward O. Coburn expresses it to Mr. 
 Matthews (that was the witness, I think), that there was a " flirta- 
 tion "between Mr. Sumner and Mrs.Dalton. I answer, gentlemen, 
 yes, there was; and I answer also, exactly in the words of Edward 
 O. Coburn and Mr. Matthews, in the same conversation, that it was 
 only a flirtation — that it went no farther than a flirtation — that it 
 ' might have gone farther, but was stopped. I answer thus this great 
 piece of circumstantial evidence on which they rely, therefore, in 
 the words of their witness, that it was a flirtation only, and there 
 it stops. 
 
 I answer in my own language also, in the next place, gentlemen, 
 which I greatly prefer, that this intimacy, which since the days of 
 Joseph Addison, has been called a flirtation — a vulgar, coarse word, 
 but one that best expresses the idea — this series of conduct, how- 
 ever, which we call flirtation, as circumstantial evidence to prove 
 the fact of adultery, is wholly worthless. And this is a point on 
 which I hope, gentlemen, at some little length, with some care — not 
 unmindful of my duties as a parent, a citizen — to lay before you my 
 views also as a lawyer, and in a court. I repeat, and I submit to 
 your honor's direction, and upon the authorities, that this kind of 
 intimacy that is characterized, as Mr. Coburn characterizes it also 
 between the parties, as circumstantial evidence of the crime of 
 adultery, is wholly worthless; and for this decisive reason — founded 
 upon the nature of circumstantial evidence — that it may perfectly 
 
OIT BEHALF OF HELEN MARIA DALTON. 283 
 
 well consist with innocence of that great crime. With propriety, 
 with decorum, with a proper respect and regard to reputation, I 
 agree it cannot consist, and does not consist; but with innocence 
 of the least degree of the crime of adultery, I submit that, as cir- 
 cumstantial evidence, it is absolutely worthless, and upon the broad 
 ground that it may perfectly well exist and be committed, and yet 
 no crime of adultery shall have been committed. 
 
 I have to ask your attention, gentlemen, a little more partic- 
 ularly to the exhibition of this proposition of evidence under the 
 rules of law, and then to a brief examination of this case; and I 
 submit what I have to say here under three views. But, notwith- 
 standing my entire concurrence with the counsel on the other side, 
 and with the father and with the child in regard to the indecorous, 
 the light, the frivolous character of this kind of conduct, or any- 
 thing characterized as flirtation, I submit to you, on the whole 
 course of this evidence, it is perfectly clear that Helen Dalton never 
 came to love Sumner with that engrossing, impulsive and absorbing 
 love that endangers virtue and conquers the instincts of shame. I 
 shall submit it to you on the consideration of the evidence appli- 
 cable to the case. I shall submit to you, further, that it is perfectly 
 clear, that the very moment she discovered that in his case his 
 warmer feelings were carrying him beyond the line of propriety, 
 and threatening a solicitation of personal guilt, she started in a 
 moment from his advances. And I shall submit, thirdly and lastly, 
 that this Mr. Dalton himself, with that knowledge of every single 
 fact and circumstance that made up that entire series of intimacies 
 between Sumner and his wife, came deliberately and intelligently 
 to the judgment that she was wholly innocent of the crime for 
 which she is arraigned here to-day. 
 
 30. Observations on evils of flirtation. 
 
 Under these three views I beg leave to submit to you some 
 thoughts on this part of the case. Now I had the honor to say — 
 and I shall in a moment refer to the authority that warrants what I 
 insist upon in that behalf — that this matter of intimacy which is 
 characterized by this name, as a circumstantial evidence of the 
 crime of adultery, is not entitled to the least consideration. I have 
 the honor to submit to you that there is no fact in all our social 
 life better established than this: that a young married woman may 
 admit that kind of intimacy and accept a certain degree of pleasure 
 from iti and yet at heart shall never be touched for an instant by 
 
284 SPEECH OF EUFUS CHOATE 
 
 the sentiment of a dangerous love, and start back when the propo- 
 sition of crime is intelligibly made to her, as if hell was opening 
 under her feet. I submit as the result of all our observation of 
 life and of books — our Edgeworths, our Walter Scotts — all that we 
 have observed everywhere, proceeds upon this distinction and rea- 
 sons upon it — every observer puts the flirt in one class and the 
 adulterer in another, and everybody understands that they belong 
 to a totally distinct species of characters, that a totally distinct 
 moral and censorial treatment of them applies to them everywhere. 
 We ridicule and satirize her whom we call vain, light, coquettish; 
 from the adultress we turn away with aversion and tears. We 
 satirize one as foolish, and turn from the other as wicked. We 
 hold up one as a warning to herself for her own correction; of the 
 other we say: " O no, we never mention her." One is weak, the 
 other is wicked; one has a right, I submit to you, gentlemen, to the 
 benefit of the exhortation of parents, the protection of law, the 
 protection of public opinion, the care of a husband; from the other, 
 duty, public opinion, religion itself commands us to turn away and 
 to tear her from the heart, although its fibres part and its blood 
 follows in the effort. Is it not a fact, gentlemen, not very pleasant, 
 not very creditable, but perfectly well known to us all through our 
 observation of life, that many a woman, married woman, may hover 
 and flutter for half a lifetime in this region of vanity, flattery and 
 coquetry, and yet never dream of taking the dark descent below ? 
 Is it not a fact as well established as any other, that falls within 
 our observation ? How many of them will flutter their plumage 
 and incline their ear tp the music of flattery, and even allow it to 
 be polluted by the whisper of a half suppressed warmer passion, 
 and yet, when the romance is broken by the solicitation of chastity, 
 will start and put their hands upon their ears, and fly as if a goblin 
 damned was revealed before them! I submit to you, gentlemen, 
 that it is a fact perfectly established by all our observation of life, 
 that many a woman may indulge in this sentiment, and accept this 
 treatment and feel this pleasure, whose heart is never touched by 
 an illicit love, and I need not, I think, submit to you — your knowl- 
 edge of life is enough for it, gentlemen — that, unless the heart is 
 conquered, adultery is utterly impossible. 
 
 I return, gentlemen, to maintain my proposition. On the law, I 
 respectfully submit that this conduct on which my brother is by 
 and by to insist as evidence circumstantially proving the commis- 
 sion of the last crime, is worthless as circumstantial evidence to 
 
OIT BEHALF OF HELEN MARIA DALTON. 285 
 
 establish it. And while I place myself on that ground, I know, 
 gentlemen, that you cannot by possibility misunderstand me so 
 much as to suppose I am defending this kind of conduct. I be- 
 lieve I go as far as any one of you in my judgment of it ; I believe 
 I know I ought at least to go as far as you in my moral condemna- 
 tion of it. I believe to adopt in advance every word of the pol- 
 ished and expressive exhortation of my friend who will address you 
 on this subject. I agree with him in every word he says of its in- 
 decorum and its levity, its frivolity and its danger. But I meet 
 him as a lawyer and on the judgment of this jury, on the knowl- 
 edge of life, on the language of every observer of life and all we 
 know of it, we know that many women have gone so far and yet 
 could never be suspected of having taken that last final step. 
 
 31. Application of the law to the case at bar. 
 
 In that immediate connection, permit me to remind you of his 
 honor's direction of the course of law which should govern this 
 case. The learned judge, in the case I had the honor to refer to 
 this morning, had occasion to comment upon certain letters that go 
 beyond any letters to be relied upon in this case — to comment upon 
 them and the conduct on the part of the wife. I am permitted by 
 the court to read the passage to you; it is from one of my learned 
 brother's ecclesiastical judges, and I think he at least will approve 
 of their judgment. He was a man, a good man, who knew life too 
 well to make an illogical, a barbarous, a beastly inference from 
 conduct that he disapproved; we knew that ten thousand fashion- 
 able women came home at midnight, one o'clock, two o'clock, from 
 a party at which they supposed themselves to be honored, to find 
 their husbands asleep, aye, and to be conscious of a truer pleasure 
 and deeper love when they lay down by his side, than they received 
 from the admirers of an evening. It is a pleasure only too agree- 
 able to a light, susceptible and easily flattered nature, playing 
 around the head, but coming not near the heart; and, therefore, 
 gentlemen, I feel no doubt or difficulty that we should be able to 
 agree in our judgment of the act on its true quality as a ground of 
 inference in relation to the grave charge they have brought here. 
 But let me read the charge of the learned judge: 
 
 " The letters have been much examined and commented upon. 
 I have read them over and over again; but I do not intend to fol- 
 low the counsel in their comments. They are written in an ardent 
 and romantic strain; Bushe soliciting interviews for criminal pur- 
 
286 SPEECH OF RUFUS' CHOATE 
 
 poses, for it is impossible his object, in thus addressing a married 
 woman, could have been other than criminal, or that when a mar- 
 ried woman receives such letters from a married man, but that she 
 must know they were for licentious purposes. Still, however some 
 women will go a great way without proceeding to the last extremity 
 of guilt; and the court must be satisfied, not only that there has 
 been a surrender of the mind, but of the person." 
 
 " Women will go a great way without proceeding to the last ex- 
 tremity of guilt;" therefore, that she has gone a little way or a 
 great way is not proof of guilt by the oaths of this jury in point of 
 law. It is not proof of guilt, it will not warrant an inference, and 
 it is beyond all manner of controversy, therefore, that here and 
 now, unless they can go further, much further than to those moral 
 and ordinary platitudes in which my brother will by and by in- 
 dulge, about the impropriety of such conduct as this — which he 
 cannot by possibility paint in anything like the strength of con- 
 demnation in which it shows its effects here to-day — an answer to 
 all that is, that we agree with him perfectly, but that is worthless 
 for his argument. Unless, therefore, he can go further than that, 
 and show you beyond the fact of intimacy and beyond the fact of 
 flirtation, that there was this consummated act of guilt established 
 by other collateral arid stronger proof, then I respectfully submit 
 that he totally fails on this part of the case, on the doctrine of cir- 
 cumstantial evidence. 
 
 32. The evidence of flirtation entirely worthless. 
 
 Now, gentlemen, I have been laying down the law, so to speak, 
 under the direction of the court, in regard to this kind of evi- 
 dence, and I have only now to say, leaving the point and proceed- 
 ing to the proof, that if there ever was a case in the world where a 
 young married woman might feel a certain degree of pleasure in 
 this description of intercourse, and yet not commit a great crime, 
 I think it would be this. I ask you if you believe it probable that 
 a young wife, eighteen years of age, in the fifth month of her mar- 
 riage and the second month of her pregnancy, modest to an extra- 
 ordinary degree, as her husband attests, a child of schools, a child 
 of religion, has all at once committed this great crime ? If a writer 
 of romance should put forward such a case, would you not say he 
 did not understand his own foolish business, and that his case was 
 extraordinary and unnatural ? Do you believe it probable, do you 
 believe it credible, that those instincts of shame, tliose lessons of 
 
ON BEHALF OF HELEN MARIA DALTON. 287 
 
 virtue, those lessons of childhood, those words of the holy man by 
 whom they had just been united in marriage, those prayers, those 
 hymns, those hopes, were all lost in a moment ? I admit, gentle- 
 men, not very much accustomed to this kind of society, probably 
 never in her life having received the attention and address of a 
 young man like this, she very naturally felt a certain degree of 
 pleasure in it — that kind of pleasure that applies to the head, but 
 does not come near the heart, to which the heart which is wise re- 
 plies: Can this be joy? But the instant the mask was attempted 
 to be or was thrown off, that instant she saw it was not her beauty, 
 or her conversation, or her manners that made the attraction, but 
 that the aims were lust, she resisted and fled. If then, gentlemen, 
 I am warranted in my position — as I think you will agree with me ; 
 as I know I am upon the law — that this series of conduct which we 
 call a flirtation is not circumstantial evidence of guilt at all, this 
 case presents the strongest possible illustration of that fact. 
 
 33. Evidence of flirtation consistent with a theory of 
 
 innocence. 
 
 There is a cardinal rule for the interpretation of circumstantial 
 evidence which I referred to yesterday,, and which I deem of such 
 vital importance in the case that I will read it to you again: 
 
 " When the facts relied upon are equally capable of two inter- 
 pretations, one of which is consistent with the defendant's inno- 
 cence, they will not be sufficient to establish guilt." 
 
 That they are irreconcilable with positiveness of guilt, as well 
 as of innocence, gives, them no value as proof of the fact. It will 
 not, therefore, be enough for my learned brother, when he comes 
 to comment upon the circumstantial evidence in this case, that the 
 facts are always and throughout consistent with the supposition of 
 the crime of adultery. Unless he can go further and show that they 
 necessarily lead to that conclusion, and that they are utterly irre- 
 concilable with the hypothesis of innocence, they are worth nothing 
 fpr any purpose. We take with us also, gentlemen, in this investi- 
 gation, what I had the honor to lay before you yesterday as a uni- 
 versal maxim of life and society, that that kind of intercourse be- 
 tween a married woman and another not her husband, without his 
 knowledge, which we generally denominate as a flirtation, is utterly 
 unavailing to prove the crime of adultery, for the reason that it has 
 been universally observed, that it may be entirely consistent with 
 
288 SPEECH OF RUFUS CHOATE 
 
 the innocence of the accused. I had the honor in bringing that 
 maxim to your recollection yesterday, to advert to Addison, Edge- 
 worth and Scott. It has been recorded and proved, and, by 
 the kindness of my learned friend, I am enabled to bring to your 
 recollection another recognition of that fact, in one of those 
 pregnant and solid judgments of that great and stern moralist. 
 Dr. Johnson: "Depend on it, sir," said he, "there is a vast 
 distance from familiarity to that great and last crime — a vast 
 distance." It is quite apparent, therefore, that in order to make 
 anything of this series of conduct on the part of Mrs. Dalton, the 
 libellant is called on to go a great deal further. And I submit it is 
 perfectly clear that he is to go so far and take this step; that taking 
 her entire little life as before us, from January, 1855, down to the 
 last letters which she wrote to her husband in answer to the cruelty 
 of this libel, he must show you that she had conceived a passion of 
 illicit love, so vehement and so absorbing towards Sumner as nec- 
 essarily, when opportunity was afforded, would lead to the commis- 
 sion of the offense with which she is charged. They must take 
 that step, or they do not advance in the least degree the inference 
 of guilt from the circumstantial evidence of this trial. 
 
 Now, I am about to have the pleasure to lay before you conclu- 
 sive proofs, that if you take that life from January down to the 
 last period to which the evidence in the case has traced it, it is per- 
 fectly manifest that the general and habitual tone of her sentiment, 
 of her affection, was steadfastly for her husband; that she loved 
 him affectionately, deeply, constantly, and always, and although she 
 might have been a little influenced, her love a little suspended, by 
 this intimacy, which she and all of us so greatly regret, that it re- 
 vived again, in all its original strength, the moment the sharp reali- 
 ties of life brought her back again completely to herself. And I 
 shall respectfully submit, in the next place, that whatever your 
 opinion may be as to the extent to which this intimacy with Sumner 
 had proceeded, and how far her interest in him had been carried, 
 it is perfectly plain, on the evidence introduced by the libellant 
 himself, that it stopped short, wholly short, of the commission of 
 the last great offense. 
 
 Here Mr. Choate referred to two letters put in evidence by plaintiff, written 
 by Sumner to defendant, one of which was never opened by her, and both found 
 in an exposed place. From these facts, he claimed that the letters could not be 
 relied upon as proof that the defendant loved Sumner, but implied a con- 
 trary inference. He explained why the evidence of defendant's letters to Sumner 
 
ON BEHALF OF HELEN MARIA DALTON. 289 
 
 had been ruled out. He then reminded the jury that their oaths forbade them to 
 consider testimony which the court had excluded, in arriving at a verdict. He 
 contended at great length that none of the letters contained evidence of de- 
 fendant's love for Sumner, nor of guilt between them, and that this theory had 
 not been sustained. He then commented on the circumstances of the defendant's 
 last ride with Sumner, to Brighton and Watertown, and claimed that this testi- 
 mony revealed nothing criminal or unnatural. He then continued : 
 
 34. Crime cannot be inferred from proof of unlawful 
 
 LOVE AND opportunity. 
 
 I suppose my learned friend's argument will be upon this point, 
 to bring in his ecclesiastical law books to prove that they have 
 somewhere broached the doctrine, that if there is proved to have 
 been unlawful love and opportunity, the jury may infer the crime. 
 I ask your honor to instruct the jury that whatever such authority 
 maybe quoted, we have no such law as that in this commonwealth; 
 and upon this point I pray your honor's attention to the case of 
 Dunham v. Dunham. I claim that we are not bound by it, what- 
 ever those works may declare. They seem to be of the opinion 
 that where there is unlawful love and an opportunity, adultery is 
 necessary as a sort of chemical result. Do they forget that there 
 is such a thing as free will, such a thing as conscience, such a thing 
 as recollection of the teachings of religion, such a thing as shame, 
 such a thing as a point at which to stop and a point from which to 
 go back ? They forget the inherent virtue that pervades the nature 
 of woman. They forget such a word as that. And therefore I 
 say that the doctrine is old, poor, monkish, artificial, and has never 
 been adopted in this State, and never, as my learned brother will 
 present it to you, in any country; for I believe the work holds that 
 if it turns out that the opportunity did not as a matter of fact carry 
 the parties to the guilt, there is an end of it. I contend that there 
 is no divorce to be granted for loving or for having an opportunity, 
 if the parties do not indulge. There is no proof of such indul- 
 gence; and therefore every word of the evidence that I have brought 
 before you this morning, is proof to the contrary. Upon this case 
 it stands demonstrated, and I entreat your judgments upon your 
 oaths to say, that whatever fancy or vanity there may have been, 
 her heart was not affected, at all events she did not yield so far as 
 to carry her beyond the line of perfect personal innocence. I 
 imagine, gentlemen, that this is pretty nearly the end of the case, 
 and I might here invoke your judgment and leave it. 
 19 
 
290 SPEECH OF RUFU3 CHOATE 
 
 Here Mr. Choate referred to the exchange of rings and presents to show 
 that those acts were open and unconcealed, and were , not evidence against de- 
 fendant. He continued ; 
 
 35- Circumstances showing that defendant never declared 
 SHE loved Sumner. 
 
 I do not know whether my learned brother will think it worth 
 his while to comment upon a little evidence, which, however, they 
 introduced, and I cannot therefore pass entirely unnoticed. Some 
 of it, particularly that of Miss Coburn, may be deserving of our 
 attention; while that of Mary Hunter I maintain to be unworthy of 
 it in the least degree. Upon that they may argue some interest in 
 Sumner. You will scarcely have forgotten that Mary Hunter told 
 you that on the day of the flogging affair, between the time when 
 Porter was beaten and the time when Sumner was brought in to be 
 beaten also, she heard the respondent tell her husband that he was 
 no husband of hers; that he should not be or would not be her 
 husband; that she hoped a dagger or two would be stuck in his 
 heart; and all the rest of that testimony. They gravely produce 
 ■such trash as that, to show you that she shamelessly avowed to his 
 face that she preferred Sumner to him. I do not believe that if I 
 had passed this over, my learned friend would have said anything 
 about it; but it was introduced, and I suppose was intended to 
 make an impression. To be sure, Mary Hunter is compelled to 
 admit that, on that very night, Dalton, who had heard it all, slept 
 with his wife; and that from that time forward for three weeks he 
 held her upon his own pillow to his heart, which had not yet con- 
 demned. You are glad, I apprehend, to remember, gentlemen, 
 that it is established by the series of letters we have laid before 
 you, that he continued to declare his love for her, and his full be- 
 lief that she reciprocated that love. And yet this woman is brought 
 here to make you believe that under the circumstances that took 
 place that night, she turns round and tells him to his head : You 
 are no husband to me, and Sumner is the man I love. 
 
 Mr. Choate then referred to the testimony of Adelaide Coburn on this point, 
 and claimed that the wife's language on that occasion, when she entreated her 
 husband to remain with her, and added ' ' you are no husband of mine if you 
 leave me now," was not inconsistent with a warm affection on her part toward 
 him. With great ingenuity he sought to turn the evidence to his advantage, and 
 pointed his argument by an illustration from Virgil's famous epic. He said: 
 
on BEHALF OF HELEN MARIA DALTON. 291 
 
 36. Dido's entreaty with ^neas. 
 
 My friend is welcome to the evidence, if he will only make the 
 proper use of it. Have we not seen ten thousand parallel cases, 
 and is not that exactly what we should expect to find; her praying 
 him not to go, presenting to him every inducement not to go, and 
 even adding, in the language of frantic and imprudent impreca- 
 tion upon him: I hope you will get killed if you go; for God's 
 sake stay with me; stay with me or you are no husband; I hope 
 you will get killed if you go. Is it not a fine touch of human 
 nature in the heart ? I submit it to my learned friend, and pray 
 his commentary upon it. And inasmuch as he meets my explana- 
 tion with a smile, may I be permitted to ask him if it has not been 
 regarded a fine touch and true to nature, in the Roman poet when 
 he drew the Carthagenian queen; when she had been driven even 
 to unsex herself in entreating ^neas to remain, and appealed to 
 the memory of that secret meeting in the cave during the storm, 
 when she entreated him by his offspring unborn and by the future 
 of Carthage to stay; and then, when she found him still fixed and 
 determined upon his departure, breaking out before the tempest of 
 her passion and praying that he might perish by the storm and the 
 whirlwind and the flood, without the care of friends or gods, upon 
 the angry sea; and again, when another reaction came, falling back 
 fainting, and carried by her servants to her couch ! And do we not 
 find that same fine touch of nature in the mother or the affectionate 
 sister, every day of our lives, when she says to the froward boy, 
 " Stay at home, or I hope you will have your head broke for going 
 out at such a time as this?" That is all there is of it. It is ex- 
 actly that outbreak of human nature which we constantly witness; 
 and I ask you if this is not ten thousand tiroes more probable than 
 the enormous, foolish and barbarous explanation which Mary Hun- 
 ter affords of it. 
 
 37. Defendant's love for her husband. 
 
 I believe I have now gone over all the evidence upon which the 
 learned counsel have relied here to show how far, to what extent 
 this affection of Mrs. Dalton for Sumner proceeded. I have re- 
 spectfully submitted to you that it was a light, transient, superficial 
 fancy, and no more; for the very instant she discovered that his 
 designs went further than her virtue and her instincts approved, 
 they were met and repelled. If that be the result of the evidence, 
 
292 SPEECH OF RUFUS CHOATE 
 
 of course all this part of the case is at an end. But I am only 
 too happy to call to your remembrance, that in regard to the whole 
 body of evidence which is laid before you, if you take her entire 
 life as it is brought before you from January, 1855, when their 
 courtship began, until her very last letter in answer to his libel, 
 which terminates the series, you will find it marked by a sweet, 
 passionate and beautiful love for her husband, as an entire little 
 life, one long, true, constant love, never interrupted, never dis- 
 placed. Once and for a few weeks losing somewhat of its entire 
 control, but recovering it again in a moment and flowing strongly 
 and beautifully as ever. Let me remind you how the evidence 
 stands in relation to that fact, which is of a good deal of import- 
 ance and authority, in appreciating all parts of this case, and may 
 do very much towards determining whether she is yet a wife fit for 
 the arms of Dalton and deserving your favorable verdict. Weigh- 
 ing all the circumstances, what do they show us ? 
 
 She was a child at school when Dalton sought her honorably in 
 marriage. There is no doubt, for Dalton feelingly and strongly so 
 declared, and I think we had other testimony to the same effect, 
 that she was modest, uncommonly so, and to such an extent that, 
 although he met her often, he sought in vain to catch her eye in 
 the street as she walked to and from school. It was only when ad- 
 dressed honorably and openly for marriage, that she yielded him 
 her heart. I submit that it is perfectly clear that Dalton had se- 
 cured that great thing, a pure and modest young woman's first love. 
 Look at her after life, trace it from the hour of marriage, and you 
 find a uniform concurrence of the evidence in every quarter that 
 she was ever affectionate and fond; that she made his house and 
 his home like another garden of Eden. We have the universal tes- 
 timony uncontradicted, of everybody everywhere, that she was ever 
 affectionate, ever fond, never away for a moment when she might 
 hope to have the pleasure of his society there, never absent from a 
 meal, never away at the hour of supper, never neglecting a solitary 
 duty of the wife, even to the stitching of a button upon his shirt- 
 collar, but always faithful, always affectionate, always tender. It 
 will add much to a correct understanding of this part of the case 
 to read Dalton's letters to her from the jail, to see whether he then 
 had anywhere any reason to remind her that she was during those 
 few weeks becoming absent-minded, engrossed, or irritable, or that 
 she was at all changed. Not a word of it. There is not a little of 
 evidence to show it, but everything on the contrary demonstrates 
 
ON- BEHALF OF HELEN MARIA DALTON. 293 
 
 that at every moment of time which she could find she devoted to 
 her husband, that all that time she appeared the same, and mani- 
 fested that unchanged and affectionate tenderness and care; that 
 she was never mt)ody, never gloomy, never apparently thinking of 
 somebody, never apparently sorry to see him; never neglectful of 
 the ten thousand little cares through which the demonstration of 
 love exercises and enjoys itself; never absenting herself, but always 
 there, always there through it all. I confess that I attach an im- 
 portance to all this beyond my own power of language to tell or 
 convey to you, because I put it to your own hearts and your 
 own knowledge of life, if her heart had not been his, could she not 
 have changed during those five or six weeks in her husband's eye. 
 Could she love God and Mammon ? Could her heart own two 
 loves at once ? No, gentlemen; she would have been changed, she 
 would have been away at his meals, inattentive to his wants, un- 
 moved and unregardful of his care — a changed wife in all. But 
 what is the fact ? I submit that it stands entirely demonstrated 
 here, through that whole critical period, upon the testimony of her 
 husband himself, again and again, most fully and unequivocally 
 delivered in his letters from the jail, that she was not changed to 
 him for one hour. This all follows close upon the aifair of the 
 Shawmut avenue tragedy; and I entreat your attention that there 
 was no mourning, no tears over Sumner's untimely grave. Was 
 there anything in the three weeks following to show that she did 
 not through all this cling to her old love exactly as before ? Did 
 not her husband leave her every morning with a kiss, take her 
 upon his knee, find her there every evening when he came home ? 
 A striking evidence how affectionate was their intercourse is found 
 in the fact that when Mr. Gove, hearing the rumor of this scandal 
 and this misery while in the West, coming home distracted and 
 anxious to see what it was that was threatened, is greeted on his 
 return by that first sight which he sees — the wife sitting still upon 
 her husband's knee. And thus those three weeks passed away. 
 One or two little irritations arose, it is true, because she thought he 
 was a little hasty in requiring her to disown her own beloved sister, 
 but yielding in a moment she throws her arms about him and says: 
 " I yield it all; I will do it if you say so; I don't see the reason of 
 it, but I will do it if you say so." And when once he left her upon 
 a certain Friday, we have the testimony of Mrs. Richardson how 
 distracted she was during that absence, how she wandered almost 
 at midnight to her mother's house to seek an explanation, and to 
 
294 SPEECH OF RUFUS CHOATE 
 
 complain and cry out that the Daltons were getting away her hus- 
 band from her. And then, when she goes to the jail, she is like a 
 light in the jail, that every day when she can drag one foot after 
 the other, in order to give him every possible provision which she 
 could afford, asking him to have his clothes returned, bringing him 
 bouquets to give him pleasure in his cell — pansies " for remem- 
 brance," as poor Ophelia says — every hour, every moment, down to 
 the very last, when he goes from the jail and declines to meet her. 
 I take that whole life together, that little rounded life from Janu- 
 ary, 1855, to January, 1856, and I say that there is not in the his- 
 tory of womanhood, a history of married life, a year more beauti- 
 ful, true, constant. I ask you, is not a love like this worth having ? 
 Is it not the evidence of a good heart, a rich heart, a wealth for 
 him who knows how to cultivate it ? 
 
 Taking this body of evidence, we find on the other hand as 
 miserable a piece of folly and nonsense as could well happen, weeks 
 of shame afterwards looked upon with abhorrence, weeks of sin as 
 she calls it herself a thousand times over, explaining and asseverat- 
 ing every moment that she was innocent of the great crime; weeks 
 of sin, but no week, hour or moment of illicit love; even if there 
 could have been an illicit love, one which stopped short, far short, 
 of its final consummation of guilt. 
 
 Here Mr. Choate read the first letter written by defendant to her husband 
 in jail, indicating her affection for him. He then showed that, with a knowl- 
 edge of all the facts in the case, except the charge of abortion, which he claimed 
 to be a conspiracy against her, Dalton believed his wife, and continued to love 
 her. He continued : 
 
 38. A CONVICTION ASKED ON THE EVIDENCE ON WHICH PLAINTIFF 
 REGARDED HER INNOCENT. 
 
 I call your attention particularly to one or two of these last 
 letters of Dalton from the jail, because they, in my judgment, put 
 an end to this case. If he, upon all this evidence, believes her to 
 be innocent of adultery, can he stand before the jury to-day and ask 
 you upon the very same evidence to believe her guilty of adultery ? 
 Is not he of all human beings the best quahfied to judge of the evi- 
 dence and to judge of its effect? When, therefore, you look upon 
 his letters, and compare them with the evidence in this case, all of 
 it known to him when these letters were written, I shall expect you 
 to use it in his way. In the first place you will say, Dalton had 
 heard every word of this evidence, and if it really and necessarily 
 
OK BEHALF OF HELEN MARIA. DALTOK. 295 
 
 conducts us to an inference of guilt, it must come to us exagger- 
 ated. Was not the husband's ear quick to hear, and the husband's 
 eye quick to see ? Would he not know if she had said that which 
 was to strike a dagger into his heart ? Did not he hear it, if she 
 ever exclaimed, I love Sumner ? Certainly he must have heard it, 
 if it had been said. You will say, then, that there is exaggeration 
 in the testimony as reported to you, if it conducts you to a more 
 severe judgment than the husband himself, who, if anybody, could 
 hear and interpret it aright. But there is another view of this evi- 
 dence of Dalton's, the just and full import of which I pray you to 
 weigh. I have touched upon it again and again, but I cannot tear 
 myself from it. I cannot divest myself of the impression that it 
 disposes of the controversy. It is the circumstance that Dalton of 
 all human beings had the best means of judging of the guilt or in- 
 nocence of his wife, and that his judgment is conclusive upon ours. 
 Not that you may not find him a poor, silly, trifling and fond fool, 
 overcome by her blandishments; not but you may be driven to it, 
 in coming to the conclusion that he could not judge whether she 
 was guilty or innocent. But there is not a little of evidence to 
 show that he has not the average and ordinary share of intelligence, 
 or that he is not altogether qualified to judge for himself. Was not 
 the husband, under the nature of the circumstances, the best and 
 the severest of judges ? Had not jealousy quickened his appre- 
 hension, and even colored his eye against her ? Had he not beaten 
 Sumner almost to death for improper familiarities tendered by him 
 and not sufficiently promptly repelled by her ? Was he not jealous 
 and suspicious, and therefore exactly in the mood to look upon her 
 with more distrust than your hearts would allow to entertain ? And 
 when he came to probe the whole matter to the bottom, what 
 human being so well as Dalton is entitled to belief ? When he 
 looks back and sees that modest eye, averted in the street, that coy 
 reluctance to yield her virgin heart, that sweet chastity of her orig- 
 inal virgin person, who could know as well as he could know how 
 truly she had loved him always ? Who could know as he must 
 have known how to catch her in a lie, how to probe her for the 
 truth, how to come suddenly upon her, how to practice a little de- 
 ception and take her unawares, how to hang upon her sleep and 
 see what she said when conversing only with her heart and her 
 spirit, without the assistance of her reason and her judgment? 
 Who could tell so well as he how sincere was her repentance, and 
 how that repentance was confined to a mere acknowledgment of 
 
296 SPEECH OF RUEUS CHOATE 
 
 imprudence, joined with a protestation of innocence or guilt ? Who 
 cduld read that heart, who try that case, like Dalton ? I hope I do 
 not underrate the intelligence of the jury, upon whose intelligence 
 so much is depending; I do not fear the action of the tribunal 
 which for her I have invoked; but, with the profoundest respect 
 for you, gentlemen of the jury, and for the court, I ask what one 
 human being could best investigate the facts and most surely know 
 how to interpret them, could most certainly draw the right deduc- 
 tions from this whole body of circumstances, if it were not he whom 
 jealousy had exasperated and aroused. He has judged, and he has 
 found her not guilty, upon every particle of evidence in this case 
 but this hideous, incredible, barbarous allegation to which I am 
 coming in a moment. 
 
 39. The influences which changed the husband's 
 demeanor. 
 
 What changed Dalton when he ca,me out of the jail ? I briefly 
 adverted to it yesterday, and may remind you of it again to-day. 
 It was the necessity of his unhappy position. He was on trial for 
 manslaughter, and the penalty threatened to be a severe one. It 
 was necessary that they should be separated; and when they were 
 separated, he fell a victim to the influences which were brought in- 
 evitably to bear upon him. You remember the passage in one of 
 his letters, date of December 19th, in which he says: 
 
 '" My dear wife, if the world could understand your case as I 
 do, I should feel happy; but as they do not, we must make the best 
 of it." 
 
 There it is; there is his judgment. For myself I have tried you; 
 for myself I approve you; you gave me your virgin heart and per- 
 son; you should make me the father of my first child; I have ap- 
 preciated your error; I have investigated its origin, the extent to 
 which it was carried, and I find you the same dear Nellie that won 
 my heart, and would to God that the judgment of the world was as 
 my judgment, would to God that the opinions of the world would 
 enable me to stand before them and avow thus publicly what I 
 assure you is the settled conviction of my heart and judgment. To 
 show you how long this continued, how long and how steadily he 
 held these opinions, I have to call your attention to letters which 
 he wrote towards the close of the time when he was in jail. We 
 heard something about forged letters. It is to be stated for the 
 
ON- BEHALF OP HELEK MARIA DALTON. 297 
 
 thorough understanding of these last letters of his, that he had 
 heard of those forged letters, that he had heard from Nellie that 
 they were forgeries, as by law you are bound to take them to have 
 been. You will see that they never altered his sentiment in the 
 slightest degree, nor colored in the least degree the expression of 
 his affection for her. I shall ask you to take those last letters 
 which he wrote her from the jail; and I entreat you to remember 
 that there is not a line in those letters from beginning to end, there 
 is no intimation that some dark speech had reached his ear and 
 changed his mind. There is an intimation that necessities control 
 him and make it proper for them not to meet quite so openly or 
 immediately as he had anticipated; but there is not a suggestion, 
 from first to last, that down to that hour he had heard a single 
 thing to change his mind — not one. I submit, therefore, that the 
 explanation is entirely in accordance with what I assumed yester- 
 day, that having been compelled by the necessities of his position, 
 as he believes, to live away from her, his mind was perplexed and 
 distracted by the scandal which abused his ear and at last reached 
 and changed his feelings towards her. Now let us see that in these 
 last letters written from the jail, he still loved her, and still promised 
 to meet her, when they could arrange their plans for their future 
 life. The first is dated January 8th. 
 
 Here Mr. Choate read passages from several letters written by Dalton to his 
 wife, dated in the early part of January, 1856. Court then took a recess, after 
 which he resumed his argument as follows : 
 
 40. Evidence of the alleged confessions. — A confession of 
 
 GUILT IMPOSSIBLE UNDER THE CIRCUMSTANCES. 
 
 We have arrived, in the course of the argument, gentlemen, to 
 the evening of the 25 th of February. The case of the libellant, if 
 it can be maintained at all, is to be maintained on this, that al- 
 though down to that night the respondent had continued constant 
 in her asseveration of innocence of the great crime, and her hus- 
 band has implicitly believed it, on that night, not having succeeded 
 in forcing an interview with him at the house of Coburn, she con- 
 fesses to him that she had been guilty of adultery. Unless this 
 part of the case is estabHshed by credible and undoubted testimony 
 to your reasonable conviction, it is certain that there is no case for 
 the libellant. We are brought at once, then, to the examination of 
 that important part of the case. And perhaps I cannot better be- 
 gin what I have to say in relation to it, than by asking you whether 
 
298 SPEECH OF EUFUS CHOATE 
 
 it is at all conceivable, as a matter of probability, that this respond- 
 ent on that night all at once falls into a confession of guilt. Down 
 to that hour, remember, her story had been uniform, and repeated, 
 and constant; down to that hour, on her oath, in the pangs of pre- 
 mature childbirth, with tears and attestations to God Almighty, she 
 had declared herself innocent; down to that time her husband had 
 a hundred times said he had believed her to be so. And the alle- 
 gation on the part of the libellant is, that then and there, under the 
 influence of some incomprehensible motive or another, she sud- 
 denly and instantly changes her tone and admits her guilt. I think, 
 gentlemen, that the first thought which would present itself to your 
 mind, with which you should most naturally begin this inquiry, is, 
 whether or not it is at all conceivable, as a matter of probability, on 
 any view of the case, that she could then and there go and confess 
 it. Those of you who believe with me on this survey of the evi- 
 dence, and on the judgment of the libellant himself, that she was 
 wholly innocent of guilt, will of course reject it as entirely incred- 
 ible and impossible. But I respectfully submit to those of you who 
 may feel any degree of doubt in regard to the matter, who might 
 still think it in any degree an open question whether she was or 
 was not possibly guilty, although there is 'no proof of it — I ask 
 you whether you believe it to be possible that then and there she 
 makes the confession? May I ask you, gentlemen, with very great 
 earnestness and confidence, if you can discover a conceivable mo- 
 tive for it ? I can very well understand, assuming for a moment 
 the hypothesis of guilt, that although she had down to that hour 
 continued steady and constant in her asseveration of innocence, 
 upon a death-bed, in a moment of anticipated final separation from 
 her husband, wishing to make a clean and clear breast and reveal 
 everything — if she had down to that time kept so perilous a secret 
 as this in her bosom, that she would have declared it. 
 
 But how stands the admitted fact; for what purpose is it on the 
 confession of everybody in this case, that she seeks this interview 
 with her husband ? Everybody tells you — John H. Coburn tells you, 
 that in that interview she proposes to fly with him to California, 
 where they can live away and alone. Every particle of evidence in 
 this case, entitled or not entitled to confidence, makes it perfectly 
 clear to a demonstration, that she solicited that interview because, 
 tortured by his extraordinary absenting himself from her since he 
 left jail, she was anxious to make one more effort to win him back. 
 From the hour he left the prison, down to the night of the 25th of 
 
ON BEHALF OF HELEN MARIA DALTON. 299 
 
 February, she had expected to see him; down to that time she had 
 been kept from him by influences incomprehensible to herself; 
 down to that time she felt scandal and slander were keeping them 
 apart; that his ear had been abused, and that he only wanted one 
 more assurance from her lips that she had told all the truth, and 
 he would come back to her. For that purpose, the result of all 
 the evidence in this case proves, she seeks him, and then and 
 there — I respectively submit to you in advance — that it is a stu- 
 pendous moral improbability, which nothing can sustain, that on 
 any possible theory of this case, she should meet him and fall into 
 a confession of adultery. For what conceivable purpose, I ask 
 you again, on any theory of the case, should she do it ? She was 
 dying to live with him; her heart craved him; she must live there 
 or bear no life, and the whole object of the interview, obtained par- 
 tially, they say, by stratagem — and I dare say it is so, for they did 
 not intend to meet — was to remove any lingering doubt or uncer- 
 tainty on his mind in regard to her supposed guilt. The very ob- 
 ject of it was to overcome any obstacle that scandal and slander 
 had placed between their reunion, and therefore I submit it is prov- 
 able by no amount of evidence, that meeting him for that purpose, 
 she falls instantly into a confession of guilt. Whether she was 
 guilty or innocent, I submit to you; we know, as men of common 
 intelligence, that she would have continued, then and there, stead- 
 fast in her assertion of innocence; was she so great a fool as to 
 think for a moment, that if after so many and such solemn assevera- 
 tions of her innocence she could not win her husband back, a little 
 confession of adultery would do it ? If he would not live with her 
 an innocent woman, would he live with her a guilty woman ? If he 
 would not live with her believing her heart to be his and her body 
 to be his, would he live with her after he learned that she had sur- 
 rendered both to his pollution ? I put it to you, in advance, gen- 
 tlemen, that if an angel from heaven, a being assuming to come in 
 the guise of an angel, should appear before you with such a story 
 as this, it would bring his origin, mission and character into great 
 question with you. Was she afraid at that time of any new revela- 
 tion ? Certainly none at all. The forged letters, if she had heard 
 of them, she declared to be forgeries, and her husband believed it. 
 Sumner was in his grave; the last voice that accused her was 
 hushed in death; and therefore, if down to that hour, fearless of 
 exposure, fearless of detection anywhere, or from any quarter, she 
 had continued steadfast in this assertion of innocence, I submit 
 
300 SPEECH OF RUFU3 CHOATE 
 
 that every motive that could weigh with the human mind, would have 
 kept her constant in it to the end; and if down to that time, while 
 Sumner was still living, and these letters, if they were not forged, 
 might have been invoked against her and proved to be genuine, she 
 had never faltered in that assertion, and if every motive of fear had 
 gone, and every motive for persistence in her original statement 
 had remained in all its force, I repeat, even upon the testimony of 
 John H. Coburn and Edward O. Coburn, and from all the facts 
 and circumstances in this case, she seeks that interview for the 
 single purpose of disabusing the ear of her husband of this scandal 
 and slander, by which he was kept so mysteriously away from her, 
 and therefore it is not possible, under the ordinary and known laws 
 of human nature, that she should not have persisted in her inno- 
 cence still. Those of you who believe with me all the evidence in 
 this case as judged by Dalton himself, will declare her innocent; 
 those of you who are in any degree of doubt upon that subject, 
 will also say she is innocent. I have therefore to call your atten- 
 tion directly to the nature of the evidence by which they attempt 
 to overcome our claim of the improbability of this confession. 
 
 41. Nature and character of confessions as evidence. 
 
 And this makes it necessary and proper that I should say a word 
 in advance in regard to the nature and danger of this kind of evi- 
 dence on which they are now relying. It is the evidence of con- 
 fession, and confessions on the reported words of the speaker. It 
 is very common to say, and it has passed into a maxim of the law, 
 and it is one, I dare say, upon which his honor will give you the 
 results of his own experience in his instructions to the jury, that it 
 is a kind of evidence in all circumstances extremely dangerous, and 
 to be most critically and carefully considered by the jury. The 
 evidence of confession may sometimes be the highest and most 
 satisfactory in a judicial investigation; and, on the other hand, it 
 may be, according to the circumstances of the case, the most worth- 
 less by which human rights are ever brought in peril in a court 
 of law. 
 
 Gentlemen, if we can feel undoubted confidence that the exact 
 words of the speaker are brought before us as they were uttered; if 
 we can feel undoubted confidence that we have them all in their 
 proper order and according to their sense and meaning as they 
 were spoken; if we can feel undoubted confidence that nothing has 
 been omitted, nothing has been colored, the right collocation has 
 
on BEHALF OF HELEN MARIA BALTON. 301 
 
 been pursued from first to last, and that the true substantial sense 
 and effect, as it was intended when they were uttered, has been 
 given, we may then, with, great confidence and certainty, proceed 
 to the most solemn of adjudications. But if, on the other hand, 
 there is reason to fear that the words themselves may have been 
 imperfectly heard; if they come reported to us by untrustworthy 
 and unreliable witnesses; if they are testified to by persons under 
 strong temptation to color, to exaggerate, to forget, to drop the ap- 
 propriate qualifications, to change the order of them as they are 
 spoken; if they come before us under such circumstances as these, 
 gentlemen, there is no weaker or more worthless or more pernicious 
 description of proof on which an intelligent jury are called upon 
 to investigate a case. 
 
 I think we need not go further than such a case as this to indi- 
 cate the danger of such a species of evidence. Had you not had 
 it proved, by the most undoubted testimony in the case, that Mr. 
 Dalton, with apparent sincerity, declared in the country, that Mrs- 
 Dalton had confessed to him that she committed the crime of adul- 
 tery in Fera's saloon. You remember the testimony of William 
 Richardson to this point; and to those of you who know him and 
 his character, and to all of you who have seen and heard him on 
 the stand, I am sure there cannot be a particle of doubt that Dalton 
 made the declaration with apparent sincerity. That he did so, is 
 the evidence of Mr. Richardson, under circumstances that give it 
 entire credit in the minds of the jury; that he did so submit, made 
 it perfectly clear by the fact that the allegation in the libel charges 
 in terms adultery in Fera's saloon. Dalton then made that decla- 
 ration — and as I believe that Dalton, with all his faults, all his mis- 
 takes (and as much as I pity him, I have to the same extent to 
 censure him), is still an honest, intelligent man — you have it before 
 you that he himself, an honester man than either of these Coburns, 
 a thousand times told, verily believed, and seriously declared that 
 his wife had confessed to his face adultery in Fera's saloon. That 
 you have heard from him. Did she ever make such a confession 
 as this to Dalton ? Did she ever say a word to him which, as he 
 understood it, at a time when his mind was fairly and freely under 
 the influence of no sinister motive or biases or cause of disturb- 
 ance — did she ever make such a declaration as this to him in her life ? 
 Gentlemen, let his own conduct answer that question. I had oc- 
 casion to advert to it yesterday, but it is necessary again to call your 
 attention to it. Dalton himself declared that the confession was 
 
302 SPEECH OF RUFUS CHOATE 
 
 made to him about the time of the flogging affair of the 17th of 
 November. That it was made then, if it was ever made, there is 
 no matter of controversy or doubt in this case. If any fact is 
 established, it is this one: that from the 14th of January until the 
 evening of the 2Sth of February, he never met her at all. This 
 confession of his wife, therefore, thus distinctly and deliberately 
 affirmed by him to have been made to him, was made on or before 
 or about the 17th of November, and within three or four days fol- 
 lowing that tragedy. Did Dalton at that time understand that to 
 be a confession of guilt in Fera's saloon ? Didn't he live with her 
 for the three weeks following as a loving and trusting husband ? 
 Didn't he write her letters which have been so much the subject of 
 commentary before you ? Is it not, therefore, perfectly clear, as he 
 heard them first when his ear was unabused, and his mind capable 
 of judging, and his memory capable of accurately reporting, that 
 he understood her perfectly ? What did he understand her to say 
 then ? Just what she has said everywhere, just what she has said 
 a hundred times over in her letters, more forcibly and more strongly 
 everywhere against herself than there — that she had sinned with 
 Sumner; that she had had improper intercourse and intimacy with 
 him, and that she had met in the course of that intimacy at Fera's 
 saloon. That was exactly the confession as she made it; that was 
 exactly the manner in which he understood it then, proved by his 
 subsequent, unequivocal acts; and yet afterwards, when he came 
 abroad and began to look back upon it from some time subsequent, 
 when he began to conjecture that public opinion began to pro- 
 scribe this and proscribe that, when his real or false friends had 
 come to whisper another story in his ear; even then it was, for the 
 first time, that, attempting to recall the conversation and to find in 
 it somewhat to justify hii% for the course public opinion, not his 
 own convictions, was compelling him to adopt, exceedingly doubt- 
 ful, perplexed in the extreme, and endeavoring to recall those words, 
 he recalls them as a confession of actual guilt. 
 
 I submit that you have there an illustration and a warning that 
 should put you upon your guard from first to last, and if you find 
 such a mind as Dalton's incapable of recalling a confession made 
 to him deliberately and distinctly, and on which he acted for two 
 months, incapable to remember, incapable to repeat — ^judge you 
 whether or not great caution is not needed in weighing this kind of 
 evidence, when you appreciate the source from which it comes be- 
 fore us. Always, therefore, gentlemen — and I pray his honor's at- 
 
OU BEHALF OF HELEIT MARIA DALTON. 303 
 
 tention and approbation to the remark — this species of evidence is 
 to be weighed with the utmost degree of care and caution; and I 
 suppose, sir, that I speak the universal language of the books and 
 the universal experience of every lawyer, when I say to you that in 
 the nature of the case no well founded reason to apprehend that 
 the words spoken were equivocal in their nature, that they were 
 meant by the person speaking them in one sense, and yet so uttered 
 that there is danger that they should be taken in another, and when 
 they come before you on the report of witnesses untrustworthy, 
 testifying under strong apparent bias and motive to color and ex- 
 aggerate, and omit and put them out of their order, it is the weak- 
 est and least reliable testimony ever given in a court. 
 
 That is true, gentlemen, of this kind of evidence, under all cir- 
 cumstances; but may I not now remind you a little more formally 
 and earnestly, how these confessions all come in. 
 
 42. Application of the rules of evidence to the facts. 
 
 May I not remind you that every one of them is made by a 
 party believing and admitting herself to be guilty of something; by 
 a party who, under that consciousness of having been guilty to 
 some extent, through sighs and bursting tears, makes confession of 
 that guilt, intending to make no confession of guilt beyond that. 
 Is there not extreme danger that the extent and nature of the con- 
 fession, which is insisted upon, will be exaggerated and colored 
 when it comes to be reported to you by parties with a disposition 
 and temper to report unfavorably. Helen Dalton did not stand in a 
 position in which she could deny all impropriety and all guilt; on 
 the contrary, her case is — and it has this affecting and this important 
 peculiarity — that she had much wrong to confess, that she had 
 much guilt to own, that she had many temptations to acknowledge, 
 that she had much sin to pray God and her husband to forgive; 
 therefore, when she is making confessions to this extent, is there 
 not danger the most extreme, unless we can place the most un- 
 doubted reliance on the kind of testimony and the character of 
 witnesses by whom it comes to be reported to us, that it will come 
 exaggerated, and misconceived and overrated, perilously and fa- 
 tally, at the cost of truth. 
 
 Here Mr. Choate argued that the letters of defendant in evidence contained 
 confession of impropriety and wrong, but not of the great crime charged. He 
 then continued : 
 
304 SPEECH OF RUFUS CHOATE 
 
 Therefore, you see, even in the interpretation of writing, where 
 the party is making a confession to some extent, there is great 
 danger that we shall interpret those confessions beyond the mean- 
 ing. And therefore I have to call your attention to that great rule 
 by which not all circumstantial evidence, but in a very extraordi- 
 nary degree any evidence of confession, is to be judged — that great 
 rule which applies and governs this part of the case, which is that, 
 if the language employed, whether spoken or written, is fairly and 
 reasonably susceptible of a twofold construction, it is the duty of 
 the jury to take it in the milder. It is not at all a matter of feel- 
 ing, it is not a matter of the heart, it is not a matter of charity, it is 
 not a matter of inclination,, but it is a clear rule of the law, that 
 where the language is equivocal, and where circumstances (and her 
 own folly among the rest) have placed the party in a condition in 
 which she must speak in equivocal expression, you are bound every- 
 where to adopt the milder interpretation; and yet you see that when 
 testimony like that, not resting upon letters, comes to be reported 
 to you by witnesses under strong bias and feeling, to color, exag- 
 gerate and overstate, it is all but impossible that it should come be- 
 fore you in form false and distorted. 
 
 43. ARRAIGNMEiSTT OF THE WITNESSES TO THE CONFESSION. 
 
 The first general remark, then, which I have to make to you on 
 this evidence is, that before the law advises a jury to pay the 
 slightest regard to reported verbal confessions, they ought to have 
 the clearest conviction that the witnesses who come here to report 
 it are perfectly cool, unbiased, impartial, fair, just, and under the 
 influence of no motive and no temptation which should induce 
 them to color, exaggerate or distort it. The law makes it, I sub- 
 mit, and I pray the observation of the court upon this, almost an 
 indispensable prerequisite that they should come before you through 
 a source perfectly trustworthy; through witnesses whose character 
 is undoubted and justly unsuspected by the jury, so that they should 
 feel satisfied that they cannot by any possibility have lost or gained 
 by their representation before you. And I submit that we come to 
 the evidence of confessions in this case, evidence of a fact so im- 
 probable in itself, by this great uncertainty standing out on the 
 face of it, that there is not a scintilla of testimony of confession 
 against Helen Dalton, but of the confession of that indiscretion 
 and loss of self-respect about which there is no controversy in the 
 
ON BEHALF OF HELEN MARIA DALTON. 305 
 
 case, except from witnesses wha are not apparently entitled to the 
 least degree of regard from the jury. 
 
 John H. Coburn, who admits here in this case that he attempted 
 to obtain money by written false pretenses of Mr. Gove, a State's 
 prison offense that ought to destroy his testimony in a moment; 
 Edward O. Coburn, who has to admit in the outset of the cause 
 that he is a robber to the amount of seventeen hundred dollars of 
 his father's money, and Mary Hunter, that brawny stranger of 
 whom we know that she is a wet nurse and a mother without a hus- 
 band — these are the witnesses who come before you. I say nothing 
 of conspiracies or of families, but I do have the honor to say to 
 you for the rights of my client, in regard to evidence so delicate, 
 requiring to be weighed and handled with such accuracy and care, 
 that it is a body of proof which should put it out of the considera- 
 tion of the jury in a moment. These witnesses to confession can- 
 not so much as bring a written letter of my client to this case with- 
 out mutilating it as a forger; they cannot carry a letter to her hus- 
 band without taking a pen and striking out eleven lines of it, and 
 thus change the whole statement into a lie which she has never 
 uttered. Does not that fact stand outside of this case? Was not 
 his honor, a week or a fortnight ago, obliged ■ by the undoubted 
 rules of law to reject a letter offered in evidence by the counsel on 
 the other side, because it appeared on the evidence addressed to 
 the court, that one of the leading witnesses had by mutilation 
 turned the whole letter into a falsehood, and poisoned her own 
 proofs at the very source^ Are they witnesses to be trusted with 
 the report of evidence by words ? Are they witnesses to remember 
 words where everything may depend upon the exact expression, 
 upon the order of the language, upon dropping an epithet here and 
 inserting an epithet there, by which the guilt of adultery is con- 
 fessed? Is this a body of witnesses that are to be trusted to report 
 words, that are the issues of life, with certainty and accuracy ? I 
 submit that, on the outside of it, the whole case of confession to be 
 listened to by this jury, is a conclusive and rational distrust which 
 would leave my client in no fear at all of the result. Here is a 
 man that cannot be trusted to carry ten bushels of yellow fiat cord 
 across the city for fear that he would steal half of it; who cannot 
 be trusted to take a hat full of uncounted bills to New York. A 
 man who has not honesty enough, or fairness enough, to weigh the 
 hind quarter of an ox — shall he be trusted to weigh out gold dust 
 and dimes, and count the pulses of life? A man not honest 
 20 
 
306 SPEECH OF EUFCS CHOATE 
 
 enough, a combination not honest enough, to carry a letter without 
 mutilating it into a falsehood, to prove words in which honesty, in- 
 telligence and fairness may be entirely omitted! 
 
 We come, then, to this examination of confession exactly in this 
 state of the case: It is a probability, amounting almost to a miracle, 
 that a confession should be made under any circumstances at all. 
 Confessions themselves are never to be acted upon by the jury, un- 
 less they know, upon their oaths, that they have the very words 
 spoken in the sense in which they came. They never can have 
 that assurance if they have not a clear and undoubting confidence 
 in the speaker that reports them. And their case opens, I say, with 
 Jhisl.that a moral miracle is to be established on the testimony of 
 confessions, by the evidence of witnesses, as a body, manifestly and 
 apparently, undeserving a moment's confidence. 
 
 44. Credibility of witnesses. — Arraignment of John H. 
 
 COBURN. 
 
 But, gentlemen, we must go now into this miserable detail a little 
 /more fully. My client has been in great danger of being ruined by 
 the evidence of witnesses, every one of whom I submit is worse 
 than the other, and every one of whom is less trustworthy than the 
 other. And it becomes, therefore, my painful duty to ask your at- 
 tention for a few moments on the evidence to some of these grounds 
 on which the law declares it to be your duty to lay the evidence 
 aside. J hope you know me too well, by this time, gentlemen, at 
 any rate, if not it is too late to make professions about it, to think 
 that I have any pleasure in railing against witnesses; that I expect 
 to gain .anything in the least degree by mere sarcasm against wit- 
 nesses; that J do not recognize in the fullest manner the general 
 presumption, of the law that a witness means to speak the truth; 
 that I am inot, .therefore, bound to show you on this proof that, ac- 
 cording to the established and recognized tests by which the cred- 
 ibility of evidence is to be weighed and appreciated, these wit- 
 nesses are not entitled to confidence. 
 
 If I. don't go to that extent, do not hear me; if I do not go to 
 that extent, I give my eloquent friend leave to reply that I have 
 brought a mere railing accusation. If I shall show you, according 
 to those standards which the law has provided to discriminate be- 
 tween .truth and falsehood, between trustworthiness and untrust- 
 wortbiness, that these witnesses are not entitled to the full and un- 
 
ON BEHALF OF HELEN MARIA DALTON. 307 
 
 •doubting confidence of the jury, I then demand of you, on your 
 oaths, gentlemen, that you disbelieve every one of them. 
 
 I may be permitted, in this same connection, to repeat a remark 
 I made yesterday, which is, that somebody or another in this case 
 has perjured himself. It is not a vague, a general charge of per- 
 jury, to be made out by me against the other side; it is a call on 
 the jury to choose and say, according to recognized tests of cred- 
 ibility by which the credit of witnesses is to be weighed in a court 
 of law, which of the witnesses they will believe and which they will 
 not believe. 
 
 I begin, therefore, with the foundation witness in this case, John 
 H. Coburn, and I respectfully submit to you, that, tried by every 
 test of credibility which the law recognizes, on your oaths you are 
 bound to disbelieve him. It is not that a laugh can be raised 
 against Coburn or his testimony — that is nothing; it is that, accord- 
 ing to those tests which are founded on the longest and widest ex- 
 perience the law deems satisfactory, to show whether a jury can 
 safely believe or not, he is not to be believed. I submit, then, that 
 John H. Coburn is not an honest man, and is not, therefore, en- 
 titled to be heard in so delicate a work as bringing every word my 
 client spoke on that evening to her husband; he is not an honest 
 man, and I put it on your solemn oath to you, that there is not a 
 man on that jury who, on the exhibition of John H. Coburn, 
 would entrust him to carry a bundle worth five dollars from this 
 court-house to the depot. There is not a man of you who would 
 take him into your service for any wages or for no wages; there is 
 not a man of you who would have his own life, his own character, 
 his owrt good name, still less the life of his child or the good name 
 of his child, to rest on the tongue of that witness for a moment. 
 How does he come into this transaction at all ? I will tell you ex- 
 actly. He found out very well that Mr. Gove was extremely exer- 
 cised on the subject of this attack upon his daughter; he found that 
 this father, alarmed and apprehensive, receiving anonymous letters, 
 his nights made sleepless, his fears becoming his master, was look- 
 ing for and fearing evidence in every direction; and says Coburn 
 to himself: "I will have something of this; I will make something 
 out of that, or my name's not John H. Coburn, nor John S. Perkins, 
 nor John S. ' Serkins.' " Here he found the tenderest sensibilities 
 of the human heart tortured. I will not call, as my learned friend 
 did the other day, Mr. Gove an " old fool," but he was an old 
 parent tormented by his heart's love, ready in a moment to believe 
 
308 SPEECH OF E1TFU3 CHOATE 
 
 everything, ready to run to the fortune teller, ready to take counsel 
 with dreams when his anodyne would give him a dream to consult. 
 And says he: "I will have a jacket and trowsers out of this busi- 
 ness; I see pantaloons there; I will have a game of billiards and a 
 suit of clothes, or I am nobody." That is the way he comes into 
 the case. He comes and tells Mr. Gove the most treacherous, 
 beastly falsehood by which an exercised, and tender, and apprehen- 
 sive heart and imagination can be solicited and imposed upon. 
 Says he: "I was in the court-house the other day, very much ab- 
 sorbed in the trial of the cause, and somebody whispered in my ear 
 that one John Simpson saw these people commit adultery out in 
 Brighton." " Now," says he, " I don't think John Simpson will 
 stick to that; I don't know that it is true, but if you will furnish 
 me money enough I will go and find John Simpson, and he can be 
 brought to see whether it is true or not." Every word of that was 
 as black a lie as if it had been uttered by four pirates. He never 
 had heard a word in the court-house about John Simpson; there 
 was no such man as John Simpson; the whole is a pure and sheer 
 coinage of his own bad heart to practice upon this father and fur- 
 nish himself with the miserable means of a night or two's dissipa- 
 tion in Providence, and a suit of clothes that he had not credit for 
 at a second-hand shop. It is a sheer fabrication — there is no such 
 man as John Simpson on the face of the earth; if there is, now is 
 his time, now is his last time; I call for John Simpson, out of this 
 court or out of this community, to show his head; aye, or any 
 human being that ever heard of him in his life. It would not be 
 extraordinary if, looking over the directories of ten thousand cities, 
 States and kingdoms, you might find such a man; but th'at John 
 Coburn ever heard of such a name, that the name of such a man 
 was ever reported to him in his life, that he believed for an instant 
 he had any such testimony to give, that it was anything but down- 
 right scandal and falsehood — for which, if I was not in a court-house 
 and was not responsible to the law, I should say a horsewhip was 
 the remedy and not the State prison — is preposterous. No such 
 man ever existed. Why do I say this ? Does not Coburn come 
 here and say somebody told him about Simpson ? Yes; but who 
 told him ? Do we rely on what Coburn heard ? Here he is: a 
 little money, and he who agreed to go down and make that report 
 through the telegraph will swear to it just as solemnly as he has 
 done it on the stand ? Do you believe him on the stand on his 
 oath, or because you believe the principle of veracity is there ? I 
 
ON BEHALF OF HELEIT MAEIA DALTOK. 309 
 
 hope the solemnity of an path will never be dispensed with. I be- 
 lieve it is not likely to.be; but I am bound to regard it as a foolish 
 and idle ceremony if it is taken by a heart and head that does not 
 recognize out of doors the principle of truth. I say once more, 
 that you have no more evidence of the existence of John Simpson 
 than you have that Cpburn met him at Providence and was about 
 putting him over the wires when he wanted him for evidence. He 
 lied then for money; he may now lie for malignity and consist- 
 ency. There is not, therefore, a title of evidence, and I call on 
 you who are charged with the administration of justice in this case, 
 who should know by this time that our rights are only as our 
 proofs — and that you don't own your house any more than I own it 
 but upon evidence — that you have no right to your life or good 
 name, no right to entertain a belief in the good name of your wife 
 or child in law, but according to the proofs by which the law is ad- 
 ministered — I call upon you here and now to say, this man is a 
 rogue, a liar, a forger of false telegraphic communications. A 
 party comes into this case for the purpose of making money by 
 falsehood; therefore he is to be laid entirely out of the considera- 
 tion of the jury. Do you suppose that anybody whispered to him 
 in the court-house about John Simpson ? Next to John Simpson, 
 I should like to see the man who made the whispered communica- 
 tion in the court-house. He hadn't the curiosity to look over his 
 shoulder, so absorbed was he in the proceedings; somebody whis- 
 pered in his ear, "Simpson saw all this at Brighton," and he never 
 looked over his shoulder to see who it was. I would like to know 
 if he thought he was a man with a " venerable gray beard," whether 
 he was all right about the feet. He should be suspicious of that, I 
 should think— whether there was nothing cloven anywhere — and to 
 be quite sure whether it was not the suggestion of the devil himself 
 or his own bad heart. Never looked over his shoulder to see the 
 man! If the person who gave that information is within the sound 
 of my voice to-day, let me tell him now is his time, and that he 
 would bring a hundred times moi^ than he was probably ever worth 
 in his life if he would show his head. There never was such a 
 communication; the whole was simply false, and you have no 
 doubt of it as it stands before you. 
 
 Gentlemen, you have as little pleasure as I have — and I have 
 little pleasure in remarking upon any human being, who, upon the 
 responsibility of his oath, has given his testimony. But we are 
 here to defend a great right in a court of law, and upon the proofs 
 
310 SPEECH OF EUFUS CHOATE 
 
 it would be a mistake of duty if we did not follow this matter up, 
 and hunt up to the whole extent the character of this witness. I 
 say you do not know whether he tells the truth, because he lied 
 down there; and didn't he lie here, and didn't he come up to the 
 Tremont and the Parker House and book himself with a false name 
 — for a charge which remained unliquidated, for all he knows — 
 and then send down a communication in the name of John Simp- 
 son, to bring this poor, credulous, terrified heart to a hotel to be 
 cheated ? Is there a man who doubts that he had some scoundrel 
 whom it was intended to pass off to Mr. Gove as this Simpson, 
 who was willing to declare to the falsity of the charge ? Didn't 
 he twice by writing declare that Simpson was there, and wasn't it a 
 palpable and repeated lie ? And this man to save his head and 
 conscience and sacrifice his heart. He is so malignant a creature 
 that if the mere joke of this exquisite falsehood should bring this 
 father up there, merely to give him the trouble of walking to the 
 hotel and an additional walk upstairs — no, I give John H. Coburn 
 credit for not quite so much malignity as this; and I have reason 
 to suppose that if it was not for a little money to play billiards with 
 and a suit of new clothes, he would hardly go so far as that. Prac- 
 tice a joke under those circumstances! Is this the character of 
 Coburn ? Why, he admitted all this falsehood on the stand in such 
 a winning, ingenious and loving way — that he was a great rogue 
 and liar, and had been everywhere, that we were almost attracted 
 to him. It is, therefore, fit and proper we should know that this 
 winning confession of Coburn on the stand was not quite so volun- 
 tary after all, but if it becomes necessary to bring another incident 
 into the trial, he is ready to furnish it. 
 
 This Coburn, about six days ago, was attacked by a very bad 
 erysipelas in his ankle. I do not wonder at that; after his five 
 hours' examination on that stand I think he might get it. But he 
 was attacked with a vei^y bad erysipelas in his foot or ankle. In 
 my humble judgment, it was an • erysipelas of apprehension about 
 coming into the court-house to testify under the eye of the court 
 and jury. But he was attacked, and accordingly we sent a couple 
 of eminent physicians, Drs. Dana and Durant, up to see what they 
 could do for him, and they put him through a course of warm 
 water or composition powder, or one thing or another, until they 
 cured the erysipelas beyond all doubt, gentlemen. They killed the 
 witness and they cured the patient. So the man came upon the 
 stand, and admitted he sent this communication by telegraph, and 
 
ON BEHALF OF HELEN MARIA DALTON. 311 
 
 the message from the Parker and Tremont. He swore forty times 
 very deliberately that he never wrote one of them — deliberately and 
 repeatedly over and over again, and it was not till my friend, the 
 Doctor here, had turned that screw about a hundred times, with 
 from forty to fifty interrogations, that he was beaten out of one 
 covert into another, from another into another, until at last he was 
 obliged to confess, although he began with most peremptorily deny- 
 ing it altogether, that he sent the telegraph and wrote the forged 
 communication from the Tremont and Parker House. 
 
 That deposition has been read to you, gentlemen, and perhaps 
 it may be within your recollection, and I will not take a great deal 
 of time to verify what I have said. I do maintain — and I call upon 
 my brother who was present and who can tell whether what I say 
 is exactly true or not — I call your attention to the fact, that instead 
 of then and there admitting he recollected it in the prompt manner 
 he did on the stand, he meant to lie it through and deny it, and he 
 did deny again and again in the most deliberate, positive and per- 
 emptory terms that he sent the telegraph or sent the message. 
 And his honor will instruct you — and I ask the court for that in- 
 struction — that if you found him then and there intentionally utter- 
 ing a willful and deliberate falsehood, you will not look at his testi- 
 mony, you will not weigh it, you will not remember that he has 
 testified in the case. You will throw him out of view and put the 
 merits of the case upon testimony that is credible. 
 
 Here Mr. Choate analyzed Coburn's testimony in detail to show that he was 
 unworthy of belief. He then continued : 
 
 Can I, gentlemen of the jury, possibly pursue the detail of such 
 an examination as that ? I ask you, as you value your rights, that 
 you instantly, if you take the rule which the court will unquestion- 
 ably prescribe to you, if the witness has intentionally falsified in 
 any one thing, he is to be taken to be false in all things. He may 
 be innocently mistaken in one case, and yet you may give him 
 credit in another part of the case, but the moment that you find 
 him deliberately falsifying, his opinion is of no consequence, it has 
 no meaning, and he is regularly laid out, and there is an end of 
 him, and the case is thenceforward to go on. without him. The 
 only escape for this man is for him to say, that he goes to Provi- 
 dence and telegraphs these falsehoods; comes back to Boston and 
 hires two rooms at different hotels, under false names; causes false 
 letters to be sent under false names, enters his own name falsely — 
 
312 SPEECH OP EUFUS CHOATE 
 
 and that transaction had entirely faded from his memory — and 
 therefore he could not recollect it. I say it would be to trifle 
 with the oaths of the jurors, with the administration of the law, the 
 rights of the parties, to give the least degree of credit to such an 
 explanation as that. I submit to you, therefore, there is an end to 
 the witness John H. Coburn, and there is no testimony to that 
 hideous confession which he comes here to report — none whatever. 
 It is not sworn to, there was no confession to the judgment of the 
 jury under the subtle rules of law. Do you not all see that in the 
 course of this argument I have carefully avoided all mere profes- 
 sional raillery at the witness ? I am bringing him up to the golden 
 tests and standard's by which the law weighs proof, or the assayer 
 weighs gold. I am helping you to see him by the light of the rule 
 of law, and I cannot allow you for a moment to suppose that I am 
 indulging in a professional habit of abusing witnesses when I am 
 simply declaring to you — with all truth and soberness, under my 
 responsibility to my profession and my oath of office, and with the 
 sanction of this bench^the great rule of law by which the credi- 
 bility of evidence is to be passed on; and I declare the law to be, 
 if you find a witness to have sworn deliberately to a falsehood, 
 knowing and believing it to be a falsehood, that he is no longer a 
 witness, and on this ground I submit that the testimony of John H. 
 Coburn is not to engage your attention for a moment. There is a 
 great deal of commentary that might be made on this, a great deal 
 tending to show the utter incredibility of the witness to the jury, 
 with which I will not detain you. He is laid out, and is to be 
 viewed as a discarded, false and perjured witness. 
 
 Here Mr. Choate went on to point out particular instances and portions of 
 the testimony which he argued were absolutely false. He continued : 
 
 45. The husband's conduct a refutation of Coburn's 
 evidence. 
 
 There is one answer to this man's testimony, which puts an end 
 to him on this case, and I submit that we gain on the merits of our 
 own case by this commenting on the worthlessness of the evidence 
 offered by the libellant, and I answer this story that the conduct of 
 Dalton that night, as we have it revealed to us by credible testi- 
 mony in this case, gives this story to the hissing and contempt 
 which it deserves from every intelligent man. 
 
 I ask you to look at the conduct of Dalton; take the unques- 
 
ON EEHALF OF HELEN MARIA DALTON. 313 
 
 tionable circumstances, then all the positive testimony; take the 
 beautiful letter in which the next morning she breathed out her 
 expectation of that new life of promise resulting from the inter- 
 view, and I ask if you believe for one single moment that such a 
 hideous communication was made. Remember that down to that 
 time, even after Dalton left the jail, he declared that he believed 
 she was innocent, that he loved and trusted her, and wished to 
 God that he could trust her completely. Remember that down to 
 that night, on her oath, with her hand on the Bible, and in the 
 pains of the threatened miscarriage, she had declared herself to be 
 innocent; and remember, that she then comes into his presence to 
 play her last card for his heart, and then, according to this man's 
 testimony, makes such a confession. I put it to you that, exasper- 
 ated as Dalton was, hoping, yet fearing, manifestly determined to 
 fly at once, if the evidence of her guilt should come from her lips, 
 would he not have started from his feet at such a declaration, and 
 cried, "Oh! ruin! ruin!" and fled from the door ? 
 
 You are soon to be appealed to to give a divorce, because those 
 sensibilities which are respected and which are to be religiously 
 cared for, these susceptibilities of the husband have been out- 
 raged. 
 
 Try him, then, as a husband; try him on the supposition that 
 he has those sensibilities and feels them keenly, and then give him 
 credit for this character. I have to ask you, if one man of you 
 doubts, on hearing such a communication from his wife, he would 
 have exclaimed: "May God forgive you, I cannot! All is over 
 now! " and have left her forever. There is not a husband on the 
 panel that would not have done it; nor a husband who recognizes 
 the marriage tie on the face of the earth who would not have done 
 it. Yet does John H. Coburn hear him utter one word ? Not one. 
 He seems very desirous of knowing what Fanny has been doing. 
 But is that all ? No, gentlemen. By all the admitted testimony of 
 this case coming to us by the witnesses for the libellant, and therefore 
 open to no criticism from them, the doors are softly drawn to and 
 locked, and there they are for two hours and a half — there they 
 would have been till daylight if this same John H. Coburn had not 
 knocked at the door and said it was nine o'clock, and asked them 
 if they were aware of the lateness of the hour. What was he doing 
 there? How is the confession just then made for the first time? 
 What has become of that ? I submit that it is too clear for a 
 moment's controversy, that the conversation began with the door 
 
314: SPEECH OF EUFUS CHOATE 
 
 open, and was the free, full, heart-breaking revelation of actual 
 wrong, and an asseveration of actual innocence; that it was full of 
 sorrow, grief and earnest pathos on her part; that she at last caused 
 him to believe the truth, and then the door was closed, and then 
 and there she gave her love to her husband. I have adverted to 
 this more than once. You may take it as coming from my client, 
 or on my suggestion, as you please. In that sweet recognition they 
 spent two hours, two hours and a half. He was satisfied that there 
 had been nothing but imprudence, and no guilt; and in that sweet 
 moment of reconciliation, after an absence of two months — do 
 not be quite sure that he did not then and there give her all that a 
 husband can; whether he did so or not, it is entirely immaterial to 
 my argument, which is, that his conduct was utterly and instantly 
 a decisive refutation of Coburn's story about the confession. I go 
 further, and show you, by a body of positive and circumstantial 
 evidence, that they there made a provisional arrangement for their 
 troubled and yet possible future. They fell into an arrangement, 
 and although he could not live with her openly until the sentence 
 was imposed, yet he was entirely ready to do everything for his 
 wife, and then and there commenced arrangements for their 
 troubled future; and I submit it to you, it was agreed that they 
 should meet the next Thursday night to mature their arrangements, 
 when they should lay out a scheme of life for the future. 
 
 Remember, in the next place, that Edward O. Coburn admitted, 
 that when they were going home, that she said she felt better now 
 — not because she had made a clean breast of guilt, but because 
 she expected to meet him the next Thursday night. 
 
 46. The mutilated letter. 
 
 The next piece of evidence is that mutilated letter; that elo- 
 quent orator, that truthful and decisive witness — the mutilated let- 
 ter. They bring it and offer it as a letter written by her the next 
 morning after the transaction, and they do not dare lay it before 
 you without first erasing eleven lines, which, though incapable of 
 being fully read, clearly show that this poor thing was then and 
 there making provision for every contingency of this meeting on 
 the next Thursday night. They found that she was making too 
 strong a point of it, in taking too much pains that nothing should 
 prevent the meeting, and so they struck out a portion of it. I sub- 
 mit that you take a microscope of a hundred horse power, and you 
 
OS BEHALF OF HELEN MARIA DALTON. 315 
 
 will find a meaning in the erasure, and will see that it is a clear 
 recognition of the arrangement for the proposed meeting; and if 
 you cannot find it in this way, I think you will do so by your 
 reason. 
 
 Here Mr. Choate showed from the evidence and Mrs. Dalton's letters to her 
 husband, that at their meeting, after she had told him everything, he promised 
 to live with her, and was prevented by his family from doing so. That the al- 
 leged confessions, even if true, revealed no crime, but the evidence, on the con- 
 trary, disclosed that plaintiff after all believed his wife innocent. Mr. Choate 
 next reviewed the testimony of Edward O. Coburn and Mary Hunter at great 
 length, to show, first, that it was false, and, second, that, even if any part of it 
 were true, it failed to establish the cobfession of adultery sought to be proved by 
 plaintiff. He then continued : 
 
 47. Edward O. Coburn's story of the cake and wine an 
 
 invention. 
 
 This Mr. Coburn began to find after a time that his excuse of 
 standing at a window would not quite answer the purpose, and he 
 began to think, under my brother Durant's cross-examination, that, 
 as the excuse of standing at the window might perhaps be suffi- 
 ciently explained and deemed to be adequate, it would be well for 
 him to volunteer to add to that excuse that she had been taking a 
 little cake and wine, and probably that was the reason. Mark the 
 hypocritical malignity of that testimony. He had stated before 
 that she had been surprised in an unexpected position, and that 
 she resisted the moment she found she was surprised. He per- 
 ceived that that was a perfect defense everywhere; he therefore 
 thought he would give her a treat of a little cake and wine of his 
 own. It was the cake, the wine, the champagne, which was to ac- 
 count for it; he had not said a word about taking cake, or wine, or 
 champagne — not a word; the whole of it was a sudden, extem- 
 poraneous, hypocritical, malignant invention of the witness to color, 
 change, qualify and turn to falsehood his whole story upon the 
 stand, which had attributed to hgr the excuse of being surprised at 
 the looking out of a window, resisting in a moment, her virtue never 
 yielding. He says to himself: " That is a complete and perfect de- 
 fense, but if she were to be brought under the influence of a stimu- 
 lant, wine or champagne, she might have yielded to that surprise;" 
 and so he finds his occasion, and treats her at his own expense, as 
 it costs him nothing — to cake and wine and champagne upon the 
 stand. I submit to you, gentlemen, whether it was not as sheer, as 
 
316 SPEECH OF EUFUS CHOATE 
 
 malignant, as hypocritical a falsehood as has occurred in the testi- 
 mony of any witness in this whole case. I am inclined to think 
 that Mary Hunter's story came rather suddenly across his memory, 
 and so he volunteered it, although he was compelled to admit that 
 she had herself said not a single syllable about it. 
 
 I put it to you again, gentlemen, with great earnestness, that if 
 the testimony of this witness was entirely trustworthy, making rea- 
 sonable allowance for the difficulty of reporting language, the state 
 of the case which he makes out against her is no more thajURan be 
 made out against any young daughter of Boston, pure |«he flakes 
 of snow when it falls, standing at the Athenaeum and flo|king out 
 upon a graveyard, upon whom an intoxicated rowdy should sud- 
 denly break in and allow his hand to stray lasciviously upon her 
 bosom, from whom instantly she turns, shrieks, bursts into tears 
 and falls hysterically — not a particle, and that is the state of testi- 
 mony before you. Is there anything in the evidence of John H. 
 Coburn which in the least degree resembles it ? He places it at a 
 time when she is conducting an earnest expostulation to a com- 
 plaint of her husband — at a time when . she is making an argument 
 to show that she is entitled to have him back again; and I there- 
 fore put it to you as beyond a particle of doubt, that she means so 
 to conduct that argument as to make out a case. Of the two Co- 
 burns at confession give me John H. Coburn, for he gets up some- 
 thing which nobody believes. The principles of the two Coburns 
 remind me of Pope's classification: 
 
 " John struts, a perjurer, open, bold and brave. 
 Ned sneaks, a liar, an exceeding knave.'' 
 
 That is the difference between them exactly. Is Edward O. 
 Coburn entitled in the least degree to the credit of the jury ? Need 
 I say anything more than to ask you whether Edward O. Coburn 
 is an honest man and fit to be trusted upon a question of this im- 
 portance — affecting life, or character, or good fame ? 
 
 Here Mr. Choate referred to the fact that credit was claimed for Edward O. 
 Coburn, because he wanted to run away and not testify. He branded him as n 
 hypocrit, and showed that he did not wish to be questioned about robbing his 
 father-in-law's safe as the reason why he desired to absent himself. He con- 
 tinued: 
 
 48. Arraignment of Edward O. Coburn. 
 
 There is a general public rumor current in this community that 
 a thief is not an honest man, and Edward O. Coburn is a thief. 
 
ON BEHALF OF HELEN MARIA DALTON. 317 
 
 He was obliged to admit under your eye, that he took false or true 
 keys, broke into his father's safe, and took all there was. Of the 
 amount he was not certain, but it was about $1,700. He went 
 away and denied it — that is to be a thief, and to be a thief is not 
 to be an honest man. He who would steal his father-in-law's 
 money is not to be believed when he gives testimony against his 
 sister-in-law, the child of the father-in-law. He is not an honest 
 man. You heard the explanation that he attempted to give here, 
 and the malignity and intellectual hypocrisy by which that explana- 
 tion was marked. He was called upon to admit the fact, and he 
 did so. He was called upon for his reasons, and he said that in 
 consequence of his irregularities he had contracted debts, which 
 he wanted to pay. He wanted a little money, and as some defense 
 of himself against this charge he said it was under the influences of 
 certain wild ideas; that the memory of this affair had done him 
 great injury. When he was asked how much money he wanted to 
 pay his debts, he said he did not know, but he took all there was; 
 and then he went away and denied that he had taken a dollar. 
 And yet to put himself upon this jury — I care nothing about his 
 defense — as entitled to some confidence from the jury, he under- 
 takes to account for taking this money by certain wild ideas. How 
 contemptible a hypocrisy is this! I can very well understand, from 
 what I have read and what I have discovered, that a husband sud- 
 denly made aware or made to believe in his wife's guilt, and made 
 jealous by it, might be urged in the tempest to the murder of the 
 adulterer, or to the murder of the adulteress, and the digging of 
 his own grave. That I can understand, for it is altogether a new 
 mode which he seems to have taken of solacing his grief — that of 
 stealing by means of false keys. It has generally been considered 
 a great stroke of nature in the poet, where he represents Othello — 
 when those billows were raging and those storms blowing in that 
 great bosom — as going to the bed, kissing his wife, and then stifling 
 her to death; and after that comes the superb speech beginning, 
 
 Soft now, a word or two before we part, 
 
 and he kills himself. But what should we think of Shakespeare, to 
 adopt Mary Hunter's expression, if he had represented Othello as 
 "blowing off a little," in the first place, by stealing seventeen or 
 eighteen hundred dollars of his father's money ? It is hypocrisy, 
 gentlemen, and no truth, no manhood. I submit that the witness 
 is not entitled to the confidence and credit of this jury. 
 
318 SPEECH OF RUFU3 CHOATE 
 
 Here Mr. Choate went on at great length to show that the witness testified 
 falsely from malignant motives. He continued : 
 
 This man comes here to report words and confession when he 
 cannot carry a letter from one house to another without sitting 
 down and forging it into a falsehood. He stands here, let me say, 
 in the judgment of this court on the evidence in this position. He 
 receives a letter from the respondent which he agrees to carry to 
 her husband, that letter which was filled up with new life and new 
 hopes — a new and a dear husband to live for, a future opening before 
 her, a happy meeting next Thursday which she is anxious by all 
 possible attentions to secure to herself — and he cannot bring it be- 
 fore the court without having first elaborately erased from it every 
 word which goes to show an arrangement for such a meeting as 
 that. I repeat that such a man who has not honesty and fairness 
 enough to keep his hands from forgery, is not entitled to bring in 
 words. 
 
 There is that beautiful letter, not a word of confession in it; 
 there it is with a key at the end, opening all its sense, and he broke 
 in and stole the key — stole the key; not this time a key for the rob- 
 bery of his father's store, but for the destruction of the daughter's 
 proofs. I pray your judgment, gentlemen, that this is the end of 
 Edward O. Coburn. 
 
 49. Arraignment of Mary Hunter. 
 
 From John H. Coburn and Edward O. Coburn to Mary Hunter, 
 whether ascending or descending, is easy — with or without the 
 Latin maxim on that subject. I believe if you leave the two Co- 
 burns out of the case, you will- not be troubled by Mary Hunter. 
 I submit that her testimony was mixed for her exactly as a man 
 mixes rum and water to drink, and she drank it. In that bronze, 
 strange woman, what do we behold ? From her appearance and 
 her account of herself upon the stand, what do we know that would 
 warrant us to give credit to what she swears to for a moment ? 
 Where she came from, with whom she has lived, what has been her 
 way of life, who is the father of her child, to every question which 
 my brother Durant puts under the settled practice of the court, the 
 only means by which perjury of an unknown stranger can be de- 
 tected — to all these she answers, with her arms akimbo, " It is none 
 of your business." I submit to you, gentlemen, that the inference 
 
ON BEHALF OF HELEN MARIA DALTON. 319 
 
 is inevitable, if she could truly and properly answer those questions 
 on her oath, a chaste, well ordered life and conversation, she would 
 have leaped to do it. She would have rejoiced at the opportunity; 
 my learned brother would have instructed her, it would have been 
 his duty to so instruct her to take her earliest opportunity to tell 
 her history, perhaps a humble one; and I submit to you that no 
 other inference can be made from her reiterated refusal to tell us 
 anything about herself, than that she knows perfectly well that it is 
 one of those rare cases, but which sometimes happen, where " the 
 least said is soonest mended;" and therefore she tells us, "it is 
 none of your business," and that is the end. Is that a ground for 
 railing at the witness ? No; but it is a ground for saying that we 
 do not know whether that woman knows anything, or respects in 
 the least degree the sanctity of an oath. We have not a particle of 
 evidence that that foreigner and stranger ever had a lesson from 
 the Bible in her life, that she ever heard a word of counsel from 
 priest or minister, that she ever heard a mass "by bell, book or 
 candle," that she ever saw a domestic example of purity, that she 
 remembers a father or mother, that she had ever received one 
 single lesson or one single influence which enables us to believe 
 that she, here and now, feels the obligation of an oath. That she 
 is a foreigner is nothing against her; that, being a foreigner, we 
 should naturally inquire something about her antecedents, was not 
 strange, but it was nothing against her; and if then and there she 
 had frankly disclosed them to us, we might have found her entitled 
 to belief. But she buries herself up, she refuses to tell you anything; 
 and I repeat that you do not know whether from her childhood to 
 this hour she ever had a lesson of virtue from anybody, ever came 
 to understand the importance of truthfulness, the virtue of chastity 
 and the value of character and reputation. 
 
 She stands before you here and now, gentlemen, only as a wet 
 nurse and mother, without a husband, whom she will not confess, 
 and it is for you to say, if standing on her alone, if the cause rests 
 on her alone, whether or not she is entitled in the least degree to 
 credit by this jury. The matter and manner of her testimony may 
 be briefly adverted to, and with that I complete all I have to say 
 with regard to her. 
 
 Here Mr. Choate showed that her evidence about purchasing savin, &c. , 
 was unworthy of belief, and wholly uncorroborated. He then continued : 
 
320 SPEECH OF EUFUS CHOATE 
 
 50. All the letters taken together show defendant 
 innocent. 
 
 I need not, in the view I have been taking of this case, call your 
 attention to one fact. I apprehend it has already been anticipated 
 and long since disposed of. That on reading this entire series of 
 letters, you will find, everywhere,' from first to last, perhaps strong, 
 est in the first, certainly no stronger in the last, continual and re- 
 iterated expressions of remorse, and regret, and grief by Helen 
 Dalton for what she had done. I do not believe my learned 
 brother, upon a collation of that series of letters, will stand up 
 here and contend for a moment, and say, that she ever dreamed of 
 supposing for a moment, she meant to confess by any strong ex- 
 pression, that she had committed the crime of adultery; but, on 
 the contrary, I hold it to be one of the best points in this case for 
 that young wife, I hold it to be a satisfactory evidence, that there 
 is yet a heart and character worth cultivating and saving, that there 
 is yet a wife whom Dalton might be proud and happy to take again 
 to his bed, that no strength of language seems to herself sufficient 
 to express her own remorse and shame for what she has done. 
 She knew when she penned every one of those letters, she knew 
 perfectly well, from her conversation with her husband and the 
 Daltons on the Sunday evening after the Shawmut avenue tragedy, 
 that he understood perfectly well that all her strong expressions, all 
 her tears, all her prayers to Almighty God to forgive her for her 
 sin, all her regret that she had failed to make him happy, and failed 
 to be worthy of him, were only the confessions of a pure and a 
 chaste heart, that judged itself more harshly than God in his in- 
 finite mercy will surely judge it, more harshly than the generous 
 and manly heart could judge it. Ag she looked back to that time, 
 no language seemed too strong, no compunction seemed too severe, 
 no prayer to God seemed too profound, no promise of a better life 
 too warm, too strong, too heartfelt, to express it all. And now I 
 say, for my learned brother to cull out a single one of that series, 
 and put it forward without its context, by itself, and call on you to 
 interpret it as no letter ought to be interpreted, out of its connec- 
 tion, without the usus loquendi of the parties themselves, who per- 
 fectly understood it, and without which it could not be appreciated — 
 to do that would be a cruelty treniendous, an injustice from which I 
 think he would shrink back. No, gentlemen, you will take this 
 series from first to last, and I will take my chance of a verdict, or 
 
ON BEHALF OF HELEN MARIA DALTON. 321 
 
 disagreement, as you shall find, that the strongest and clearest ex- 
 pressions of compunction, grief, guilt, and sin, shall be found at 
 the beginning of the series. After he had seen them, and studied 
 them, and understood them perfectly well, he writes her again and 
 again that he truly loves her, looks to a happier life yet with the 
 loved one, the trusted one. I might read a sentence or two, but 
 one is enough, for she had clearly and distinctly put him in posses- 
 sion of her mind on this point. I submit that the purer she was, 
 the more confident she felt that her body had been preserved as a 
 vessel of honor for her husbapd, at the same time, the more dis- 
 tinctly and clearly she appreciated the deep wrong she had actu- 
 ally done. I submit that it is according to the nature of love that 
 she shall even overstate, she shjdl exaggerate, shall make more of it 
 than it deserves, even of that miserable flirtation which did not 
 end in adultery. It is to lay herself at his feet; it is to show how 
 wholly she feels with him; it is to assure him of her whole heart 
 laid bare, her whole soul probed to the bottom; and, therefore, it is 
 that you shall find here exaggerated expressions, which, unless you 
 know perfectly well, as the correspondents themselves must have 
 known, their true signification. I apprehend under the rule of law 
 they must be subject to the mildest interpretation which can be put 
 upon them. Here you have the key to the whole, and thank God, 
 they have not stolen this bar if they have stolen the others. " God 
 knows I love you, darling, forgive that vein of folly, although I have 
 sinned — yet not criminal;" that is the key; that is the interpreta- 
 tion of the language. And thenceforward it is perfectly understood 
 between the parties that when she says she has sinned, that she has 
 been wicked, that she has been tempted, that the tempter is in his 
 grave, and she is sorry he had not been there before he presented 
 the temptation; it is all perfectly understood between them from 
 beginning to end. It is the most dreadful cruelty and injustice 
 here and now to desert that perfect understanding; that what she 
 meant was: " I have been sinful by my vanity; I have been secret- 
 ly tempted by the influence of this young man now in his grave, 
 and I have so far done you a wrong which I shall acknowledge for 
 sin, and pray God while life lasts to forgive me for, but not crime, 
 dear Frank, not crime " — the whole course of the correspondence 
 perfectly understood by them — and to read half-a-dozen extracts 
 from those letters, to show much more strength of affection and a sin 
 which he can never forgive. It is hardly necessary to illustrate my 
 proposition with regard to the meaning of language, the usus lo- 
 21 
 
322 SPEECH OF RUFUS CHOATE 
 
 quendi of the parties in the interpretation of a writing. " Frank, 
 you know and God knows that when I married you I was as pure 
 as a child could be, and I am now. If you do not know it, your 
 folks know it. Father will not allow his daughter, if she has com- 
 mitted a wrong thing, which no one upholds her in, to be treated 
 thus. Darling Frank, pray our heavenly Father to forgive me my 
 sins, and let us also feel that in a great degree he has. Frank, 
 when you pray, pray that God will forgive your erring wife. I 
 never expect to have any one love me, I have been so naughty; but 
 then I know Frank will love me, if no one else, won't you, darling ?" 
 After that he writes to her again and again and again: " My own 
 sweet Nelly, my darling, I fly to your arms; we shall be happy yet. 
 Courage; trust your own affectionate husband." Then, gentlemen, 
 I submit that the selection of a single paragraph from such a letter 
 as the last, written manifestly under the impression of the great joy 
 the communication of the day before in its results had given her, 
 will not be pursued, or if pursued, will be ineffectual with a candid 
 jury. 
 
 . I therefore, gentlemen, bring this argument to a close. Positive 
 evidence on behalf of the respondent from the nature of the case 
 we cannot bring. Sumner is in his grave; we cannot bring him. 
 We could not bring in evidence of his declarations, but in that 
 silence we have these two persuasive tests: the testimony of a dying 
 man to his innocence — testimony on that solemn occasion when 
 men and women speak the truth if they ever speak it; and the tes- 
 timony of Helen Dalton, who declared herself innocent of this 
 crime; once when her husband, who knew that she was to be 
 trusted, who knew that he could entitle himself to have the joy of 
 belief in her, proposed to her to sink down upon her knees upon 
 the family Bible, and call upon her heavenly Father to witness 
 whether she spoke the truth, upon which oath propounded by her 
 she declared herself to be innocent; and over again, when the pains 
 of premature delivery came upon her, when, therefore, she was in 
 the very danger and peril of death, in that state where, according 
 to a statute of law in this commonwealth, a certain artificial credit 
 is always to be given to the oath of a witness declaring her inno- 
 cence then. We submit the proof that from the testimony in this 
 case, she has been uniformly and steadily constant in that decla- 
 ration. 
 
 The charge of abortion by which they poisoned your own minds 
 for a time, and the public mind for a time, is wholly false and 
 
ON BEHALF OP HELEN MARIA DALTON. 323 
 
 wholly disproved. There is no question whatever about this. The 
 testimony of these Coburns and Mary Hunter, all three, will not 
 weigh a feather for a moment in your minds. And then upon 
 every thing else, from one end of the case to the other, every par- 
 ticle of credible testimony, you have the deliberate judgment of the 
 best witnesses on our side. 
 
 I leave her case, therefore, upon this statement, and respect- 
 fully submit that for both their sakes you will render a verdict 
 promptly and joyfully in favor of Helen Dalton — for both their 
 sakes. There is a future for them both together, gentlemen, I 
 think; but if that be not so — if it be that this matter has proceeded 
 so far that her husband's affections have been alienated, and that a 
 happy life in her case has become impracticable, yet for all that, 
 let there be no divorce. For no levity, no vanity, no indiscretion, 
 let there be a divorce. I bring to your minds the words of Him 
 who spake as never man spake: "Whosoever putteth away his 
 wife " — for vanity, for coquetry, for levity, for flirtation ? — " whoso- 
 ever putteth away his wife for anything short of adultery, intention- 
 ally, willingly indulged, and that established by clear, undoubted 
 and credible proof — whosoever does it, 'causeth her to commit 
 adultery.' " If they may not be dismissed then, gentlemen, to live 
 again together, for her sake and her parents' sustain her; give her 
 back to self-respect and the assistance of that public opinion which 
 all of us require. 
 
 There was a time in the progress of this cause when that father, 
 unaware of what might be produced against her, or by what instru- 
 ments of defense it would be necessary here to protect his daughter's 
 honor, set on foot an inquiry of recrimination to be instituted 
 against the libellant. Information was brought to his ears on which 
 he directed a certain inquiry; the result was communicated to 
 counsel, and that result has been stated on the files of the court. 
 On that allegation of recrimination we have had occasion to pro- 
 duce no evidence; it was contrary, as Mr. Gove has sworn, to the 
 wishes of his daughter from first to last, that the attempt should 
 be made at all. There is, therefore, by her request — and it is 
 gratifying to the counsel in that respect to be able to indulge that 
 request — not a tittle of evidence upon which it can ever be predi- 
 cated that he was guilty; as to that he must be found to be inno- 
 cent. Permit me to say that she would have thought it the last 
 drop in this bitterest cup if her own frivolities and vanities had 
 done anything to tempt or even to bring into suspicion the chastity 
 
324 SPEECH OF EUFUS CHOATE. 
 
 of her husband. It would have been the bitterest drop in her cup. 
 She would say by me, as she said to him in her last letter to Frank: 
 " You have done all you can to disgrace me, but no matter now — 
 I will not blame you. You are my husband for the present; I will 
 not talk against you nor say aught that can make you unhappy. 
 Wishing you much happiness and peace with much love, if you will 
 accept it, I remain, your wife." So may she remain until that one 
 of them to whom it is appointed first to die, shall find the peace of 
 the grave. 
 
 I thank you for your kind indulgence and leave the case in 
 your hands. 
 
 It is perhaps proper here to state, that when this speech was delivered, re- 
 porters did not always possess the skill they now have. Mr. Choate, when ex- 
 cited and in the full tide of his argument, spoke with great rapidity — a vehement 
 and onward rush of thoughts. It was, therefore, difficult, often impossible, to 
 take down fully and accurately all he said; and Professor Brown, in speaking of 
 this argument, remarks, that the mere reading of it can give but a feeble idea of 
 its beauty and cogency. A reporter once remarked, he would as soon undertake 
 to report "chain-lightning." It is related of Mr. Choate, that after reading one 
 of his addresses, a friend asked him whether it had been correctly given. The 
 reply was, ' ' not verbally, not verbally, but the general nonsense of the thing 
 they have got." 
 
 The effect of the powerful appeal in the Dalton Case went farther than the 
 jury box. It brought conviction in a strange direction. Mr. Choate, we have 
 reason to believe, convinced the plaintiff. It is certain, at all events, that soon 
 after the trial Dalton began paying attentions to his wife, sending her bouquets, 
 and exhibiting other tokens of his affection. Both shortly left Boston, were re- 
 united, and lived together in harmony. 
 
ARGUMENT OF EDWIN M. STANTON, 
 
 In Defense of Hon. Daniel E. Sickles, Indicted for the 
 Murder of Philip Barton Key. 
 
 IN THE CRIMINAL COURT FOR THE DISTRICT OF COLUM- 
 BIA, WASHINGTON, D. C, APRIL 23d, 1859. 
 
 Analysis of Me. Stanton's Aegument. 
 
 1. Homicide defined. 
 
 z. Theory of the defense. 
 
 3. Effects of the crime of adultery upon the 
 
 home circle. — Sanctity of the nuptial 
 bond. 
 
 4. The hallowed relation as between parent 
 
 and child. 
 
 5. The tie between brother and sister. 
 
 6. The punishment of adultery under the 
 
 Levitical law. 
 
 7. Conduct embraced witlkin the act of adul- 
 
 tery. 
 
 8. The husband legally justified in slaying 
 
 the adulterer. 
 
 9. Review of Manning's case. 
 
 10. Slaying the adulterer no crime under the 
 
 law. 
 
 11. The wife's consent no qualification of 
 
 the adulterer's guilt 
 
 12. The English and American authorities 
 
 discussed. 
 
 13. The wife's consent cannot be invoked to • 
 
 shield the adulterer. 
 
 14. The prisoner's right to slay further based 
 
 on the law of self-defense. 
 
 " Whether a homicide committed by a man smarting under a sense of dis- 
 honor is murder or manslaughter," says Mr. Wharton in his work on homicide, 
 "depends upon the question whether the killing was in the first transport of pas- 
 sion or not. In the latter case the offense is murder ; in the former man- 
 slaughter." Those not familiar with legal principles may regard thisvas an ex- 
 tremely harsh rule. Many will, no doubt, consider that a man is not only blame- 
 less, but justified in taking the life of the adulterer, and that, in doing so, he 
 discharges n. duty which he owes to the community. The rule, however, is a 
 wise one, and salutary in its operation. Chief Justice Ruffin, of North Carolina, 
 in -a. very able opinion, illustrates the wisdom of the law on this subject. He 
 says: " Where a husband only hears of the adultery of his wife, no matter how 
 well authenticated the information may be, or how much credence he may give 
 the informer, and kills either the wife or her paramour, he does it not upon pres- 
 ent provocation, but for a past wrong — a grievous one, indeed; but it is evident 
 he kills for revenge. Let it be considered how it would be if the law were other- 
 wise. How remote or recent must the offense be ? How long or how far may 
 the husband pursue the offender ? If it happen that he be the deluded victim of 
 an lago, and, after all, that he has a chaste wife, how is it to be then ? These 
 inquiries suggest the impossibility of acting on any rule but that of the common 
 law, without danger of imbruing men's hands in innocent blood, and certainly of 
 encouraging proud, headstrong men to slay others for vengeance, instead of 
 
 [335] 
 
326 ARGUMENT OF EDWIN M. STANTON 
 
 bringing them to trial and punishment by law." ' The act of adultery, therefore, 
 furnishes no excuse for the homicide. Its effect, at most, is to reduce the grade 
 of killing from murder to manslaughter. 
 
 It is only under the common law of England, however, that the slaying 
 of the adulterer caught in the act, is regarded as manslaughter. Such kill- 
 ing was justified by the laws of the Greeks, the Romans, the ancient Goths, 
 and other nations of antiquity. If a burglar enters my dwelling to spoil 
 my goods, and I kill him, the authorities all agree that I am justified. I am 
 not guilty of any offense, because the circumstances wiE excuse the homi- 
 cide. Applying this principle, it was urged in the Sickles case, that if a lib- 
 ertine destroys his friend's home, if he spoils his domestic happiness, ruins 
 the wife's chastity and the mother's virtue, the husband would be justified in 
 taking his life. The burglar seeks that which is material and perishable. What 
 the adulterer destroys is more precious than gold or rubies, and cannot be re- 
 stored. Hon. Edwin M. Stanton discussed the law upon this subject in a masterly 
 manner, and made perhaps the most powerful argument that has ever been at- 
 tempted upon the subject. On behalf of his client he claimed, that if such 
 killing was manslaughter under the common law as it existed in England, it 
 should not be followed here, nor declared as part of our American jurisprudence. 
 He urged that both in law and in morals Mr. Sickles was justified in taking the 
 life of the adulterer, for he insisted that, in the eye of the law, he slew him in 
 the act. The facts of the case are briefly told. 
 
 On Sunday afternoon, on the 27th of February, 1859, Sickles shot and killed 
 Key in a public thoroughfare, in the city of Washington. The night before the 
 homicide, he learned that Key, who had been his friend and companion, had 
 violated the sanctity of his friendship and betrayed his hospitality, and had been 
 for a long time criminally intimate with Mrs. Sickles. The truth of this terrible 
 revelation was confirmed the next morning. While Mr. Sickles was seated near 
 his front window, he saw Key drive past and wave his handkerchief, the signal 
 that he desired to meet Mrs. Sickles away from the roof of her husband. 
 Within a very few hours the opportunity presented itself, and the husband, en- 
 raged and mortified beyond endurance, shot and killed the seducer upon the 
 public street. " Key, you scoundrel," he exclaimed, " you have dishonored my 
 house; you must die," whereupon he fired three shots, all of which took efiect 
 in the body of the victim. 
 
 The inquiry before the court was not as to how far the accused was 
 blameless in the eye of his maker for inflicting vengeance upon the destroyer 
 of his domestic happiness. However interesting such a discussion might be 
 to the mind of the casuist, it did not necessarily arise before a human tri- 
 bunal. Could the slayer be convicted under the law? Was the fact that he 
 took the life of an adulterer, because he had committed adulteiy, a legal excuse 
 for the homicide ? Mr. Stanton undertook to show, as matter of law, that the 
 prisoner was justified; that those decisions which sustained a contrary doctrine 
 had their origin in an age which for vice and profligacy has no parallel in the 
 history of the Anglo-Saxon race, and that the law declared during that period 
 had no precedent in the past, and had not been followed since. He argued 
 the question in all its bearings, not only as affected by the common law of 
 
 ' State V. Neville, 6 Jones (N. C.) Law, 433. 
 
IN DEFENSE OF HON. DANIEL E. SICKLES. 327 
 
 England, but the aspect in which the prisoner's acts would have been regarded 
 under other systems of jurisprudence which have prevailed among men since the 
 morning of time. He cites the law of Moses for the government of the Jews, a 
 people whose statutes were ordained not by any human legislature, but by divine 
 authority. And so under the law of all civilized countries of which we have any 
 account in ancient history, either sacred or profane, there is but one answer to the 
 question as to the punishment of the adulterer. When, however, Mr. Stanton 
 justifies his client's conduct upon the broad principles of self-protection, which 
 he asserts as a natural right, his argument is great. His eloquent description of 
 the sanctity, the beauty and purity of the family relation, and the importance of 
 family influence as the great factor in social life, upon which alone the existence 
 of civil society depends, commands admiration and is rendered powerful and 
 effective; while the conclusion is irresistible, that the crime of adultery brings 
 destruction not only upon the individual, but upon society itself. The argument 
 was not upon the facts to the jury, but upon the law to the court, in order to 
 sustain the position taken by the prisoner's counsel upon the requests to charge 
 the jury. In order that the argument may be thoroughly understood, the reader 
 will find the requests submitted by the prosecution and the defense, and the rul- 
 ings of the court, at page 718 of the Appendix. 
 
 Before Mr. Stanton filled the office of attorney-general of the United States, 
 his reputation as a lawyer was established in connection with the Wheeling 
 Bridge Case, and the Pennsylvania Railroad v. The Canal Commissioners, re- 
 ported in gth of Harris. A brilliant advocate and profound lawyer, he possessed 
 also the qualities of a great judge. By his early demise, shortly after his ap- 
 pointment to the bench of the Supreme Court of the United States, the world 
 has lost the benefit of his ripe learning, wide research and experience. 
 
 The trial of Mr. Sickles was commenced on Monday, April 4th, 1859, in the 
 Criminal Court for the District of Columbia, at the city of Washington, before Hon. 
 T. H. Crawford and a jury. Robert Ould, U. S. District-Attorney, was assisted 
 on behalf of the prosecution by Mr. J. M. Carlisle, of Washington. The follow- 
 ing gentlemen appeared for the prisoner: James T. Brady and John Graham, of 
 New York, Edwin M. Stanton, Mr. Radcliff, Mr. Clinton, Mr. Magruder, and 
 Mr. Phillips, of Washington. The trial lasted twenty days, and resulted in ver- 
 dict of acquittal. Mr. Stanton addressed the court as follows: 
 
 May it please your Honor: — It becomes my duty to present 
 some considerations in support of the points of law which have 
 been submitted by the defense, and which points are in conformity 
 with those which may be given to a jury.' The event which has 
 brought the jury and the prisoner at the bar into solemn relations, 
 and made the court and counsel participators in this momentous 
 trial, is the death of Mr. Key at the hand of Mr. Sickles, which 
 took place on Sunday, the 27th of February. The occasion of 
 this event was an adulterous intrigue between Mr. Key and the 
 wife of Mr. Sickles. The law rising on the case must depend on 
 
 ' For the points submitted, see Appendix, p. 718. 
 
328 ARGUMENT OF EDWIN M. STANTON 
 
 the relations each held to the other at the time the occurrence 
 took place. Two theories have been presented — one by the pros- 
 ecution, the other by the defense. Those theories, as in all such 
 cases, are opposite; and it will be for the court, by a comparison 
 of those theories with the known principles of law, to give to the 
 jury the instruction. 
 
 1. Homicide defined. 
 
 The act of taking human life is designated in law by the general 
 term of homicide, which may be either with malice or without 
 malice. The act of Congress which governs in this district, des- 
 ignates two grades of unlawful homicide, namely, murder and 
 manslaughter. " Murder," says Blackstone, " is now thus defined, 
 or rather described, by Sir Edward Coke: ' When a person of sound 
 memory and discretion unlawfully killeth any reasonable creature 
 in being, and under the king's peace, with malice aforethought, 
 either express or implied.' " The same author defines man- 
 slaughter to bp " the unlawful killing of another without malice, 
 either express or implied; which may be either voluntary, upon a 
 sudden heat, or involuntary, but in the commission of some unlaw- 
 ful act." In some States the law designates other grades of unlaw- 
 ful homicide, but only two are designated by the act of Congress 
 before referred to; but life may be taken under circumstances which 
 the law will excuse or "justify. This must depend on a variety of 
 circumstances, neither foreseen nor enumerated, and must be judged 
 by wise tribunals and by maxims which form the common law of 
 the land, and are essential to peace and security. They are illus- 
 trated by examples and cases, whence the reason of the law can 
 be derived, and by these the true rule of judgment is ascertained. 
 
 There are two classes of cases in which a man maybe exempted 
 from judicial punishment for killing, namely, self-protection, which 
 is a natural right, and, secondly, the defense of one's household 
 from the thief or robber. But there is a third class, arising from 
 the social relation, for the law holds family chastity and the sanctity 
 of the marriage bed, the matron's honor and the virgin's purity, 
 to be more valuable and estimable in law than the property or life 
 of any man. The present case belongs to that class. On it rests the 
 foundation of the social system. As it involves the life of the 
 prisoner, it cannot be too carefully considered. Indeed this prin- 
 ciple has never come before a judicial tribunal in a form more im- 
 
IN DEFENSE OF HON. DANIEL E. SICKLES. 329 
 
 pressive than now. Here, in the capital of the nation, the social 
 and political metropolis of thirty millions of people, a man of 
 mature age, the head of a family, a member of the learned profes- 
 sion, a high officer of the government, intrusted with the adminis- 
 tration of the law, and who for years at this bar has demanded 
 judgment of fine, imprisonment and death against other men for 
 offenses against law, has himself been slain in open day in a public 
 place, because he took advantage of the hospitality of a sojourner 
 in this city. Received into his family, he debauched his house, 
 violated the bed of his host, and dishonored his family. On this 
 ground, alone, the deed of killing was committed. 
 
 2. Theory of the defense. 
 
 The instructions presented by defendant bring to the view of 
 the court two consistent lines of defense — one, that the act of the 
 prisoner at the bar is justified by the law of the land, under the cir- 
 cumstances of its commission; the other, that, whether justified or 
 not, it is free from legal responsibility by reason of the state of the 
 prisoner's mind. When the crime was committed against him by 
 the deceased, in both points of view, the relations which the de- 
 ceased and the prisoner at the bar bore to each other at the moment 
 of the fatal act are to be observed — one, as a husband outraged in 
 his house, his family, and his marital rights; the other, an adulterer 
 in flagrante delicto. While counsel for the prisoner insist that the 
 act is justified by the law, the counsel for the prosecution assert 
 that the act is destructive of the existence of society, and demand 
 judgment of death against him as a fitting penalty. 
 
 3. Effects of the crime of adultery upon the home 
 CIRCLE. — Sanctity of the nuptial bond. 
 
 The very existence of civil society depends not on human life, 
 but on the family relations. " Who knows not," says John Milton, 
 " that chastity and purity of living cannot be established or con- 
 tinued, except it be first established in private families, from 
 whence the whole breed of men come forth ? " " The family," says 
 another distinguished moralist, " is the cradle of sensibility, where 
 the first lessons are taught of that tenderness and humanity which 
 cement mankind together; and were they extinguished, the whole 
 fabric of society would be dissolved." In a general sense, the 
 
330 ARGUMENT OF EDWIN M. STANTON 
 
 family may embrace various degrees of affinity, more or less near; 
 but in a strictly legal sense it embraces the relations of husband 
 and wife, parent and child, brother and sister. The first and most 
 sacred tie, however, is the nuptial bond. " Eternal discord and 
 violence," says a great moralist, " would ensue if man's chief object 
 of affection were secured to him by no legal tie." No man could 
 enjoy any happiness or pursue any vocation if he could not enjoy 
 his wife free from the assaults of the adulterer. The dignity and 
 permanence of the marriage are destroyed by adultery. When the 
 wife becomes the adulterer's prey, the family is destroyed, and all 
 family' relations are involved in the ruin of the wife. When a man 
 accepts a woman's hand in wedlock, he receives it with a vow that 
 she will love, honor, serve and obey him in sickness or in health, 
 and will cleave only to him. This bond is sanctified by the law of 
 God. "What God hath joined together let no man put asunder." 
 By a marriage, the woman is sanctified to the husband, and this 
 bond must be preserved for the evil as well as for the good. It is 
 the blessing of the marital institution that it weans men from their 
 sins and draws them to the performance of their duties. This seal 
 of the nuptial vow is no idle ceremony. Thenceforth the law com- 
 mands the adulterer to beware of disturbing their peace. It com- 
 mands that no man shall look on woman to lust after her. 
 
 The penalty for disobedience to that injunction did not originate 
 in human statutes; it was written in the heart of man in the Garden 
 of Eden, where the first family was planted, and where the woman 
 was made bone of man's bone, flesh of man's flesh. No wife yields 
 herself to the adulterer's embrace till he has weaned her love from 
 her husband; she revolts from her obedience, and serves the hus- 
 band no longer. When her body has been once surrendered to the 
 adulterer, she longs for the death of her husband, whose life is 
 often sacrificed by the cup of the poisoner, or the dagger or pistol 
 of the assassin. 
 
 4. The hallowed relation as between parent and child. 
 
 The next greatest tie is that of parent and child. If in God's 
 providence a man has not only watched over the cradle of his 
 child, but over the grave of his offspring, and has witnessed earth 
 committed to earth, ashes to ashes, and dust to dust, he knows that 
 the love of a parent for his child is stronger than death. The bit- 
 ter lamentation — " Would to God I had died for thee " — has been 
 
IN DEFENSE OF HON. DANIEL E. SICKLES. 331 
 
 wrung from many a parent's heart. But when the adulterer's 
 shadow comes between the parent and child, it casts over both a 
 gloom darker than the grave. What agony is equal to his who 
 knows not whether the children gathered around his board are his 
 own offspring or an adulterous brood, hatched in his bed. To the 
 child it is still more disastrous. Nature designs" that children shall 
 have the care of both parents; the mother's care is the chief bless- 
 ing to her child — a mother's honor its priceless inheritance. But 
 when the adulterer enters a family, the child is deprived of the care 
 of one parent, perhaps of both. When death, in God's providence, 
 strikes a mother from the family, the deepest grief that preys upon 
 a husband's heart is the loss of her nurture and example to his 
 orphan child; and the sweetest conversation between parent and 
 child is when they talk of the beloved mother who is gone. But 
 how can a father name a lost mother to his child, and how can a 
 daughter hear that mother's name without a blush ? Death is 
 merciful to the pitiless cruelty of him whose lust has stained the 
 fair brow of innocent childhood by corrupting the heart of the 
 mother, whose example must stain the daughter's life. 
 
 S- The tie between brother and sister. 
 
 The pride and glory of the family is its band of brothers and 
 sisters. Sprung from the same love, with the same blood coursing 
 in their veins, their hearts are bound together by a cord which 
 death cannot sever; for, wide asunder as may be the graves of a 
 household, varied as may be their life here on earth, when life's 
 rough ocean is passed, sooner or later they will rejoice on the 
 hea^'enly coast — a family in heaven. But when the adulterer puts 
 a young wife asunder from her husband, her child is cut off from 
 all kindred fellowship. The companionship and protection of a 
 brother of the same blood can never be hers. No sister of the 
 same blood can ever share her sorrow or her joy. Alone, thence- 
 forth, she must journey through life, bowed down with a mother's 
 shame. Nor does the evil stop here. It reaches up to the aged 
 and venerable parents of the wretched husband and of the ruined 
 wife, and stretches around to the circle of relatives and friends that 
 cluster around every hearth. Such are the results of the adulterer's 
 crime on the home — on the home, not as it is painted by the poet's 
 fancy, but home as it is known and recognized by the law — as it 
 exists in the household, and as it belongs to the family of every 
 
332 ARGUMENT OF EDWIN M. STANTON 
 
 man. They show that the adulterer is the foe of every social rela- 
 tion, the destroyer of every domestic affection, the fatal enemy of 
 the family, and the desolator of the home. The crime belongs to 
 the class known in law as mala in se — evil in itself — fraught with 
 ruin to individuals and destruction to society. 
 
 6. The punishment of adultery under the Levitical law. 
 
 Such being its nature, we can easily perceive why it is that in 
 Holy Writ the crime of the adulterer is pronounced to be one 
 which admits of no ransom and no recompense. We can perceive 
 why it is that in every book of the Old and New Testament it is 
 denounced; why it is that by every holy lawgiver, prophet and 
 saint, it is condemned. We can understand why it is that twice it 
 is forbidden in the Ten Commandments, and why it is that Jehovah 
 himself, from the tabernacle in the midst of the congregation, de- 
 clared that "the man who committeth adultery with another 
 man's wife, even he who committeth adultery with his neighbor's 
 wife, shall surely be put to death." By God's own ordinance he 
 was to be stoned to death, so that every family in Israel, every man, 
 woman and child might have a hand in the punishment of the 
 common enemy of the family. By the Levitical law, the adulteress 
 was subject to the same punishment. But the Redeemer of man- 
 kind, when on earth, is supposed to have mitigated the punishment 
 of the adulteress by requiring him who was without sin to cast at 
 her the first stone. No such condition, however, was imposed in 
 favor of the adulterer. There was no mitigation of his crime, and 
 we know the Saviour's judgment of the sin when he declared that 
 " he who looketh at a woman to lust after her committeth adultery 
 in his heart." From the silence of Scripture on the occasion re- 
 corded in the Gospel of John, it is to be inferred that, as the adul- 
 terer and adulteress had been taken in the act, the adulterer on 
 that day in Jerusalem had been put to death by the husband, as he 
 might be by the Roman law, before the adulteress had been brought 
 to the Saviour's feet. This case has been cited here, as it often is 
 in favor of the adulterer and against the husband. But the argu- 
 ment of Dr. Paley, alluded to by counsel on the other side, con- 
 clusively shows that that case cannot be cited in favor of the adul- 
 terer. On that day, in Jerusalem, the laws of Moses, as a civil 
 and political institution, had passed away and the Roman law had 
 taken its place. 
 
IK DEFENSE OF HON. DANIEL E. SICKLES. 333 
 
 Why was it that the men of Jerusalem brought not to the Saviour 
 the adulterer who had been taken at the same time, if they wanted 
 to know the Saviour's judgment of the sin of 'adultery. By the 
 Roman law, while the adulterer suffered death, that punishment 
 does not seem to have been inflicted on the adulteress. This 
 woman, therefore, was brought to the Saviour's feet to hear what 
 would be his judgment. If he had undertaken to say that the laws 
 of Moses ought not to prevail then, an accusation might be brought 
 against him in the synagogue; and if, on the other hand, he had 
 said that the laws of Moses should be enforced, then ready accusa- 
 tion would have leaped to their lips that he was usurping judicial 
 functions, and he would have been brought before the judgment 
 seat of the Roman authorities. As Dr. Paley observes, the case 
 only serves to show that the Saviour meant to rebuke those who 
 tempted him, but that he never designed to shield the adulterer 
 from the just doom of the law. 
 
 7. Conduct embraced within the act or adultery. 
 
 What, then, is the act of adultery ? It cannot be limited to the 
 fleeting moment of sexual contact; that would be a mockery; for 
 then the adulterer would ever escape. But law and reason mock 
 not human nature with any such vain absurdity. The act of adul- 
 tery, like the act of murder, is supposed to include every proximate 
 act in furtherance of, and as a means to, the consummation of the 
 wife's pollution. This is an established principle in American and 
 English law, established from the time of Lord Stowell, as will be 
 hereafter shown. If the adulterer be found in the husband's bed, 
 he is taken in the act, within the meaning of the law, as if he was 
 found in the wife's arms. If he provide a place for the express 
 purpose of committing adultery with another man's wife, and be 
 found leading her, accompanying her, or following her to that place 
 for that purpose, he is taken in the act. If he not only provides, 
 but habitually keeps such a place, and is accustomed by precon- 
 certed signals to entice the wife from the husband's house, to be- 
 siege her in the streets, to accompany him to that vile den; and if, 
 after giving such preconcerted signal, he be found watching her, 
 spy-glass in hand, and lying in wait around a husband's house, that 
 the wife may join him for that guilty purpose, he is taken in the act. 
 
 If a man hire a house, furnish it, provide a bed in it for such a 
 purpose, and if he be accustomed, day by day, week by week, and 
 
334 ARGUMENT OF EDWIN M. STANTON 
 
 month by month, to entice her from her husband's house, to tramp 
 with her through the streets to that den of shame, it is an act of 
 adultery, and is the most appalHng one that is recorded in the 
 annals of shame; if, moreover, he has grown so bold as to take the 
 child of the injured husband, his little daughter, by the hand, to 
 separate her from her mother, to take the child to the house of a 
 mutual friend while he leads the mother to the guilty den, in order 
 there to enjoy her, it presents a case surpassing all that has ever 
 been written of cold, villainous, remorseless lust. 
 
 8. The husband legally justified in slaying the 
 adulterer. 
 
 If this be not the culminating point of adulterous depravity, 
 how much farther could it go ? There is no one point beyond. 
 The wretched mother, the ruined wife, has not yet plunged into the 
 horrible filth of common prostitution, to which she is rapidly hurry- 
 ing, and which is already yawning before her. Shall not that mother 
 be saved from that, and how shall it be done ? When a man has 
 obtained such a power over another man's wife that he can not only 
 entice her from her husband's house, but separate her from her 
 child for the purpose of guilt, it shows that by some means he has 
 acquired such an unholy mastery over that woman's body and soul 
 that there is no chance of saving her while he lives, and the only 
 hope of her salvation is that God's swift vengeance shall overtake 
 him. The sacred glow of well-placed domestic affection, no man 
 knows better than your Honor, grows brighter and brighter as years 
 advance, and the faithful couple whose hands were joined in holy 
 wedlock in the morning of youth find their hearts drawn closer to 
 each other as they descend the hill of life to sleep together at its 
 foot; but lawless love is short-lived as it is criminal, and the neigh- 
 , bor's wife so hotly pursued, by trampling down every human feel- 
 ing and divine law, is speedily supplanted by the object of some 
 fresher lust, and then the wretched victim is sure to be soon cast 
 off into common prostitution, and swept through a miserable life 
 and a horrible death to the gates of hell, unless a husband's arm 
 shall save her. 
 
 Who, seeing this thing, would not exclaim to the unhappy hus- 
 band: Hasten, hasten, hasten to save the mother of your child. 
 Although she be lost as a wife, rescue her from the horrid adulterer; 
 and may the Lord, who watches over the home and the family, 
 
IN DEFENSE OF HON. DANIEL E. SICKLES. 335 
 
 guide the bullet and direct the stroke.' And when she is delivered, 
 who would not reckon the salvation of that young mother cheaply 
 purchased by the adulterer's blood ? Aye, by the blood of a score 
 of adulterers ? The death of Key was a cheap sacrifice to save 
 one mother from the horrible fate which, on that Sabbath day, 
 hung over this prisoner's wife and the mother of his child. 
 
 Mr. Stanton here reviewed the authorities, both English and American, bear- 
 ing upon the question of adultery as a justification for homicide. He then pro- 
 ceeded: 
 
 Under the laws of Maryland, as they descended to the District 
 of Columbia, at the time of the cession in 1801, it has never been 
 adjudged by this or any other court, that the man who destroyed 
 the violator of his family chastity was guilty of a crime. 
 
 9. Review of Manning's case.' 
 
 Manning was a married man, who, entering his house one day, 
 found his wife in the arms of a neighbor who was committing adul- 
 tery with her. The husband snatched up a stool and struck a blow 
 over the adulterer's head, and killed him on the spot; and for this 
 was arraigned as a prisoner for murder. As an Englishman it was 
 his birthright to have the act passed upon by a jury of his country, 
 and his innocence or guilt determined by them in accordance with the 
 common law. But this was in the dark day of judicial tyranny and 
 corruption; the day when jurors were fined and sent to jail, as the 
 authorities show, for refusing to find verdicts against their con- 
 sciences, in accordance with the charge of the court; in a day when, 
 from the King's Bench, from Westminster Hall, it was declared that 
 the judge was intrusted with the liberties of the people, and that 
 his saying was the law. That was the day when it was adjudged 
 that the husband was a felon for killing a man caught in adultery 
 with his wife. In Manning's case. Judge Twisden directed a special 
 verdict, and determined the degree of guilt himself; and Manning 
 was punished by being branded on the hand as a felon. 
 
 10. Slaying the adulterer no crime under the law. 
 
 There were four epochs in which killing in such cases went un- 
 punished: it was justified under the Jewish dispensation, by the 
 
 ' Here the audience broke into an unrestrainable burst of applause, which 
 the officers of the court vainly endeavored to check. 
 
 ' Sometimes cited Maddy's Case, Ventris's R. p. 158; Sir T. Raymond's R. 
 p. 212; 3 Keble's R. p. 829. 
 
336 ARGUMENT OF EDWIN M. STANTON 
 
 laws of Solon, by those of the Roman empire, and by the Gothic 
 institutions which have given shape to our own. By the mere force 
 of frequent repetition in the books, of Manning's case, it has come 
 to be believed that a man must stand by the bed of his wife and 
 behold the adulterer polluting his bed, and not raise his hand 
 against him. From the time of Edward II to King Charles — three 
 hundred and sixty odd years — no word is to be found in the com- 
 mon law, no word imputing guilt to the slayer of the violator of the 
 chastity of his wife. This right to kill was never denied till now. 
 There is one fact I have never before seen related, except by Paley, 
 that by the laws of the commonwealth, immediately preceding the 
 time of Charles, adultery was punished by death. 
 
 MR. CARLISLE. — Blackstone mentioned it. In 1650, at a 
 period before the judgment in Manning's case, it was punishable by 
 death. 
 
 .MR. STANTON,— The age of Charles was an age of adultery 
 and gross corruption ; the palace was filled with harlots and thronged 
 with adulterers and adulteresses; the judges were the panderers, 
 partakers and protectors of the corruptions of the age, and the same 
 court which adjudged the husband to be a felon for slaying the 
 adulterer on his bed, fined and sent jurors to prison for refusing to 
 find verdicts in accordance with its instructions. It was the same 
 court which hunted Quakers, Catholics and Nonconformists to 
 death; the same court which persecuted John Howe and Richard 
 Baxter, and which sent to the pillory and prison John Bunyan for 
 preaching the gospel to the poor.' 
 
 This was the state of the laws and social life at the time the 
 principle was introduced into the common law of England, that to 
 kill an adulterer in the act is a crime. And when society in this 
 district is reduced to the same condition, and when the government 
 offices are filled by open and avowed adulterers, when the profes- 
 sions of law and medicine shall be thronged with libertines, when 
 the wife's purity and family chastity shall become a jest, then it will 
 be time to introduce here a principle of common law never before 
 heard from the judgment-seat; then it will be necessary for the 
 court to extend the shield of law over its attorneys to save their 
 lives from the hands of the husbands whose wives they have vio- 
 lated, whose homes they have destroyed, and whose families they 
 have made desolate. 
 
 ' For a history of those times, Mr. Stanton referred to Macaulay, vol. I, 
 p. 140. 
 
m DEFENSE OF HON. DANIEL E. SICKLES. 337 
 
 II. The wife's consent no qualification of the adulter- 
 er's GUILT. 
 
 I claim, then, on this proposition, that the expression or rule of 
 the common law in regard to the consent of the wife had its origin 
 in a state of manners and of social life that do not exist in this 
 country, and that that rule is not applicable here. It is founded 
 on the principle that the wife's consent can qualify the degree of 
 the adulterer's guilt, and determines the husband to be a criminal. 
 In American society, there is a freedom from restraint and super- 
 vision that exists nowhere else, and this results from various causes: 
 husbands, fathers and brothers devote a large share of time to the 
 cares of life and to the duties of providing for the family, during 
 which time the female portion of the family are left to themselves 
 without protection. The frequent changes of habitation and the 
 equality of our social condition lead to a frankness of intercourse" 
 which requires, for the sanctity of the home and the security of the 
 marriage bed, a rigorous personal responsibility to the death. The 
 peculiar conditions of society in this District are also to be noted 
 before any principle like that of social law can be introduced. 
 
 Families come hither from all parts of the Union to remain for 
 a shorter or a longer period of time. To enjoy any social life here, 
 the intercourse must be frank, without suspicion. The time which, 
 in long established communities, may enable individuals to choose 
 and pick out those with whom they may associate, is not had here. 
 Besides, it has been the custom here for officers of the government, 
 and those in the public employment, to throw open their doors with 
 a wide hospitality that exists nowhere else. This forms a peculiar 
 feature and attraction in Washington society, and by the population 
 that it attracts here and the stimulus thus given to business, the 
 wealth and prosperity of the city and District are promoted. But 
 if these social occasions are to be made the means of guilty as- 
 signations; if they are to become the means by which the adulterer 
 pursues his lust, then the doors of families must be swiftly closed. 
 No man would be willing to have his hospitality made the means of 
 an assignation, or the social occasions, when he desires to give his 
 friends and neighbors pleasure, converted into opportunities for 
 corrupting the innocent wife of his friend. 
 
 I repeat, then, that the doctrine on which this prosecution rests, 
 is founded on the Manning case, copied by Hale and Foster and 
 Blackstone. But it is also to be observed that, from the day in which 
 23 
 
338 ARGUMENT OF EDWIN M. STANTON 
 
 Manning's case was decided to the present hour, it has not been 
 followed by the conviction of a husband in England. No husband 
 since then has been punished as a felon for taking the life of an 
 adulterer. In three cases the doctrine of that case has been de- 
 clared from the bench, but only by two judges: the case of the 
 Queen against Fisher, the case of the Queen against Kelly, and an- 
 other case. Two of these were tried by Justice Pare, and the other 
 by Baron Rolfe. In the one, there was no adultery of the wife; in 
 the other, no marriage, and in the third, the crime was of a totally 
 different nature. 
 
 12. The English and American authorities discussed. 
 
 As, from the time of Alfred to the time of Charles the Second, 
 there is no evidence that a husband was regarded as a felon in 
 •common law for slaying an adulterer, so from the time of Charles 
 the Second to the present hour that principle has never been en- 
 forced by the punishment of any man in England. 
 
 Counsel then proceeded toarguethat in the three cases cited by the prosecu- 
 tion from the North Carolina and South Carolina reports, there were entirely 
 distinct questions at issue ; that, so far as the marital relations of slaves were 
 concerned, they were not recognized by the laws of those States, and that, there- 
 fore, the adjudications or rulings in the case of slaves did not govern or apply to 
 this case. 
 
 There is another case cited in Jones — the case of a white man; 
 but there was sufficient evidence to show that the killing proceeded 
 from preceding malice. The case, however, which was cited from 
 Hill's Reports, has some analogy to this case. There the adulterer 
 slew a husband who was endeavoring to rescue his wife,- and it was 
 held that the murderer could not set up the plea of self-defense. 
 The American common law on this subject is shown in the cases of 
 Singleton Mercer, of Myers, of Jacob Green, the case of John 
 Stump, and the case of Jarboe, where, in each instance, the slayer 
 of the seducer was acquitted. I also refer your Honor to Smith's 
 case and Sherman's case in Philadelphia, Eoyer's case in Virginia, 
 and Ryan's case reported in vol. 2 Wheeler's Criminal Cases, p. 47. 
 Where, then, I ask, does the adulterous doctrine of Charles the 
 Second prevail in America? Not where the stars and stripes 
 wave; not even where the royal banner of England floats; for it 
 was not long since, in Canada, a husband had followed his wife's 
 seducer from city to city till he found and slew him; and there the 
 
IN DEFENSE OF HON. DANIEL E. SICKLES. 339 
 
 doctrine of Charles the Second was repelled and the man instantly 
 acquitted. 
 
 By the American law the husband is always present by his wife; 
 his arm is always by her side; his wing is ever over her. The con- 
 sent of the wife cannot in any degree affect the question of the 
 adulterer's guilt; and if he be slain in the act by the husband, then 
 it is justifiable homicide. I will pass, then, to the question of what 
 constitutes the act. I understood oije of the learned counsel for the 
 prosecution to claim, in accordance with the very loose language of 
 Baron Parke, that it is necessary for the husband to have ocular 
 demonstration. 
 
 MR. CARLISLE.—" Finding " is the word. 
 
 MR. STANTON.— It does credit to the frankness as well as to 
 the good sense of the counsel not to claim that doctrine, but that is 
 the doctrine of Manning's case. The wife could not only consent 
 to the act, but the husband, if he came in in the dark, could not lay 
 his hand on the adulterer until he lit the candle and saw his shame; 
 and then if he slew the adulterer he must have the felon's branding 
 on his hand. The object was to erect before the husband the gal- 
 lows and branding iron, so that the courtiers and corrupt men of 
 that age might pursue with impunity the wives and daughters of 
 the people; hence they demanded not only that the wives should 
 not consent, but that the husband should see his shame. As late 
 as within the last few years. Baron Parke, sitting in the judgment- 
 seat of England, said that the husband must have ocular inspection 
 of the act. What is the act, and what is necessary ? It is the fact 
 of adultery that constitutes the guilt of the individual and the jus- 
 tification of the husband. The fact is to be manifested according 
 to the rules of evidence that apply in regard to other facts. It is 
 claimed by the defense that the evidence was brought directly to 
 the visual senses of the prisoner at the bar; but whether it was so 
 or not, the fact is only to be determined by the ordinary rules of 
 evidence. 
 
 Counsel here referred to the rules of evidence in regard to adultery, as laid 
 down in Poynter on Marriages, p. 187; Collins v. The State, vol. 14 Alabama 
 Reports, p. 608 ; The State v. Jolly, vol. 3 Devereux and Battle (N. C. ) Law, p. no. 
 
 13. The wife's consent cannot be invoked to shield 
 the adulterer. 
 
 My last proposition is, that the wife's consent cannot shield the 
 adulterer, she being incapable by law of consenting to any infrac- 
 
340 ARGUMENT OF EDWIN M. STANTON 
 
 tion of her husband's marital rights, and that, in the absence of 
 consent and connivance on his part, every violation of the wife's 
 chastity is, in the contemplation of law, forcible and against his 
 will, and may be treated by him as an act of violence and force on 
 his wife's person. It follows, as a logical consequence, from the 
 relation of husband and wife, as stated in the first proposition, be- 
 cause her very being and existence is suspended, that is to say, > 
 " incorporated and consolidated," says Blackstone, into that of the 
 husband during marriage, that any invasion of the husband's right 
 or chastity of the wife is a forcible act. 
 
 The law does not look to the degree of force; it looks to the 
 forcible movement; and being an act of force, it follows that the 
 right of the husband to resist that force is clear and undoubted on 
 the highest principles of law. My friend here,' says, he condemns 
 the adulterer as much as any one, but that he abhors lawless vio- 
 lence. So do I; but the question is here whether the violence be 
 lawless ? In undertaking to designate the act of the prisoner here 
 as an act of violence, as an act of personal justice, he assumes 
 the very question that is involved, because on no theory of law, 
 on no system of jurisprudence recognized among men, has the de- 
 fense of a right, the maintenance of possession in a right, the pro- 
 tection of a right, been recognized either as a revengeful act or an 
 act of lawless violence. By the contemplation of law, the wife is 
 always in the husband's presence, always under his wing; and any 
 movement against her person is a movement against his right, and 
 may be resisted as such. 
 
 14. The prisoner's right to slay further based on the 
 
 LAW OF self-defense. 
 
 We place the ground of defense here on the same ground and 
 ^limited by the same means as the right of personal defense. If a 
 man be assailed, his power to slay the assailant is not limited to the 
 moment when the mortal blow is about to be given; he is not bound 
 to wait till his life is on the very point of being taken; but any 
 movement towards the foul purpose plainly indicated justifies him 
 in the right of self-defense, and in slaying the assailant on the spot. 
 The theory of our case is, that there was a man living in a constant 
 state of adultery with the prisoner's wife, a man who was daily, by 
 
 ' Mr. Carlisle. 
 
m DEFENSE OP HON. DANIEL E. SICKLES. 341 
 
 a moral — no, by an immoral power — enormous, monstrous, and al- 
 together unparalleled in the history of American society, or in the 
 history of the family of man, a power over the being of this woman 
 — calling her from her husband's house, drawing her from the side 
 of her child, and dragging her, day by day, through the streets in 
 order that he might gratify his lust. The husband beholds him in 
 the very act of withdrawing his wife from his roof, from his pres- 
 ence, from his arm, from his wing, from his nest; meets him in that 
 act and slays him, and we say that the right to slay him stands on 
 the firmest principles of self-defense. 
 
 I have endeavored, as briefly as I could, to explain the prin- 
 ciples of social law and jurisprudence on which the defense is 
 planted, and I trust that, on examination, it will not be found to be 
 any visionary ground of defense, or any such mere theory as was 
 apprehended by my learned friend' who opened the argument. 
 He says that society could not exist on such principles, because this 
 was the exercise of the right of private judgment; and if it was 
 to be established as a principle, the land would be a scene of blood, 
 as the punishment of adultery would be followed by the punish- 
 ment of other crimes. Now, if it were so, if this land were to be a 
 scene of blood, and if it were necessary to make it so, I ask whether 
 blood had not better run in torrents through our streets than that 
 the homes of men should be destroyed by the adulterer at will ? 
 But it is not so. Neither your Honor nor I will be frightened by 
 any such appaling picture. Thank God, adultery is a crime that 
 is usually a stranger to American society. It is but rarely in our 
 history that some great event like this occurs to startle society and 
 lead it to the examination of the principles on which it is founded. 
 That has been the case, and should it lead to the examination of 
 the principles of law on which home and family rest, should it result 
 in planting ajround that home and family the safeguards of the law, 
 in breaking through the bonds by which the adulterous court of 
 Charles the Second undertook to bind the arm of the husband; then 
 some good will grow out of that great evil that has been produced 
 by this event. 
 
 It is not my purpose to pursue this discussion in reference to 
 the other points. I shall leave them to my colleague." I thank 
 your Honor for the patience with which you have heard me in the 
 discussion of this question. I have endeavored to discuss it on 
 
 ' Mr. Carlisle. ' Mr. James T. Brady. 
 
342 ARGUMENT OF EDWIN M. STANTON. 
 
 principles which I believe, as a man, as a father, and as a husband, 
 to be essential to the peace and security of your home and mine. 
 I have endeavored to discuss it on principles which are essential to 
 the peace and prosperity of the society in which my home is planted 
 as well as yours; and I hope that, by the blessing of God, as it has 
 been your Honor's good fortune to lay down the law which secures 
 the family, in one aspect, from the seducer of the sister, you may 
 also plant on the best and surest foundations the principles of law 
 which secure the peace of the home, the security of the family, and 
 the relations of husband and wife, which have been in the most 
 horrid manner violated in this case. 
 
SPEECH OF JAMES T. BRADY, 
 
 In Defense of the "Savannah Privateers," Indicted for 
 
 Piracy. 
 
 AT A CIRCUIT COURT OF THE UNITED STATES, HELD 
 AT THE CITY OF NEW YORK, OCTOBER TERM, 1861. 
 
 Analysis of Mk. Brady's Speech. 
 
 1. Piracy, — Nature and character of the 
 crime. 
 
 a. Piracy under the law of nations, and un- 
 der the acts of Congress. — The " En- 
 chantress" case. 
 
 3. The question of intent one of fact for the 
 
 jury, 
 
 4. Intent can not be inferred, but must be 
 
 proved. 
 
 5. Consequences of defendants' acts not nec- 
 
 essarily criminal. 
 
 6. Legal presumption of intentmay be over- 
 
 come. —Narration of facts. 
 7. Larceny and trespass distinguished. — Il- 
 lustrations. 
 
 8. The letter of marque a valid defense. 
 
 9. The '■ Liberty Boys " of New York be- 
 
 fore the revolution. 
 
 10. Rebellion as distinguished from revolu- 
 
 tion. 
 
 11. The right of revolution a legal right. 
 
 12. Secession synonymous with revolution ; 
 
 right synonymous with power. 
 
 13. Evidences of the existence of civil war. 
 
 14. During civil w^ar, the combatants are 
 
 entitled to all the rights of war. — 
 Blockade defined. 
 The duties of an advocate require the 
 highest moral courage. 
 
 15. 
 
 The trial of the officers and crew of the Confederate privateer Savannah 
 forms an interesting episode in the history of the late war of the rebellion, in- 
 volving, as it did, a discussion of the legal aspects of that memorable conflict; 
 the right of revolution within the law of nations, and the rights of revolutionists 
 under the laws of war. The Savannah, a. schooner of about fifty-three tons 
 burden, armed with cannon and small arms, and manned by a crew of twenty 
 persons, including her officers, sailed from under the shadows of Fort Sumter, on 
 the morning of Sunday, the 2d day of June, 1861, and pushed out into the At- 
 lantic, bound for no port, and without any particular point of destination in view. 
 Her commander, Thomas Harrison Baker, carried a letter of marque bearing 
 date the i8th of May, 1861, issued by Jefferson Davis, signing himself " Presi- 
 dent of the Confederate States of America," whereby the Savannah was commis- 
 sioned and authorized '* to act as a private armed vessel of the Confederate States, 
 on the high seas, against the United States of America, their ships, vessels, goods 
 and effects, and those of her citizens, during the pendency of the war now exist- 
 ing between the said Confederate States and the said United States." 
 
 On Monday, the 3d of June, the Savannah descried a sail and gave chase, 
 flying the American colors. The vessel proved to be the American brig Joseph, 
 
 [343] 
 
344 SPEECH OF JAMES T. BRADY 
 
 laden with sugar, from Cardenas, in Cuba, bound for Pliiladelphia. When with- 
 in hailing distance. Captain Balcer ran up the confederate flag, and ordered the 
 master of the Josepli on board his vessel, with his papers, by authority of the 
 Confederate States, saying, in response to an inquiry from the Joseph, " I am 
 sorry for it, but you make war upon us, and we have, in retaliation, to make war 
 upon you." A prize crew was put on board the Joseph, and she was run into a 
 confederate port and sold as a prize. Upon the same day, however, the Savannah 
 was captured by the United States brig-of-war Perry. The prisoners were after- 
 wards transferred to the Minnesota, which ran into Hampton Roads, and were 
 there placed on board the Harriet Lane, which carried them to New York, where 
 they were indicted by the United States grand jury, and tried upon a charge of 
 piracy. 
 
 Twelve prisoners were arraigned : Thomas Harrison Baker, Charles Sydney 
 Passalaigue, John Harleston, Heniy Cashman Howard, Joseph Cruse del Camo, 
 Patrick Daly, John Murphy, Martin Galvin, Henry Oman, William Charles 
 Clarke, Richard Palmer, Alexander Carter Coid, and Albert G. Ferris. The first 
 four named were citizens of the United States; the others were foreigners, and 
 had never been naturalized. 
 
 Piracy is of two kinds : national and municipal. The former is a crime un- 
 der the common law of nations ; the latter is an offense under the statutes of a 
 particular State or nation. Under the former, the element of intent must be 
 broad enough to cover property of every nation ; under the latter, the offense is 
 made out by showing an intent to depredate upon the property of the particular 
 State, to the exclusion of all others. A pirate, according to the general defini- 
 tion, offends against the universal laws of society; he is deemed an enemy of the 
 human race, making war indiscriminately upon all mankind, and the vessels of 
 every nation have a right to seize and punish him. National piracy is defined to 
 be "the offense of depredating on the seas, without being authorized by any 
 sovereign State, or with commissions from different sovereigns at war with each 
 other." ' It is a rule of international law, that in a state of war existing between 
 two nations, either may commission "privateers,'' or private armed vessels to 
 carry on war against the enemy on the high seas ; and such commission will afford 
 protection, even in the courts of the enemy's country, against a charge of robbery 
 or piracy. 
 
 Congress, under the power given by the Constitution,' to define and punish 
 piracies and felonies committed on the high seas, and offenses against the law of 
 nations, passed an act, on the 30th of April, 1790, entitled "An Act for the pun- 
 ishment of certain crimes against the United States,'' commonly known as " The 
 Crimes Act." On the 15th of May, 1820, an additional law was passed makmg 
 further provision for punishing the crime of piracy. The third section of the act 
 of 1820 declares, " that, if any person shall, upon the high seas, commit the 
 crime of robbery, in or upon any ship or vessel, or upon any ship's company of 
 any ship or vessel, or the lading thereof, such person shall be adjudged to be a 
 pirate." Under this statute, a commission from a State or nation at war with an- 
 other, would, according to the law of nations, constitute a defense. 
 
 The ninth section of the act of 1790 declares, " that if any ciHzen shall com- 
 
 ' Wheaton's Int. Law, p. 184. " Article i, sec. 8. 
 
IN DEFENSE OF THE "SAVANNAH PRIVATEER.3." 345 
 
 mit any piracy or robbery aforesaid, or any act of hostility against the United 
 States, or any citizen thereof, upon the high seas, under color of any commission 
 from any foreign prince or State, or on pretense of authority from any person, 
 -Such offender shall, notwithstanding the pretense of any such authority, be 
 deemed, adjudged, and taken to be a pirate, felon and robber." It was claimed 
 by the prisoners, that this statute could only apply to acts done under authority 
 of a foreign power or person; that, if Jefferson Davis represented that power or 
 person, then the defendants were subjects of that power, not citizens of the 
 United States, and not within the act; if he did not represent a foreign power, 
 the act had no application. 
 
 The indictment charged the prisoners with the robbery of an American ves- 
 sel upon the high seas, and contained ten counts : the first five were framed un- 
 der the act of 1820; the other five under the ninth section of the act of 1790, 
 charging all the prisoners with being citizens, and with having committed the 
 acts set forth on pretense of authority from one Jefferson Davis. On behalf of 
 the foreign defendants, it was claimed, that it was a settled principle of interna- 
 tional law that one nation could not make that piracy which was not piracy under 
 the law of nations, except so far as their own subjects were concerned,' and 
 hence there could be no conviction under the act of 1820, since there was no in- 
 tent to seize any but American vessels. It was further claimed, in behalf of all 
 the defendants, that the commission from Jefferson Davis was a defense, because 
 the right of revolution for cause was a legal right, and the po.sition occupied by 
 the Confederacy towards the United States was such that they were justified in 
 adopting the means of retaliation or aggre^ion recognized in a state of war, and 
 entitled to all the privileges and immunities existing under the laws of war. 
 
 The questions presented Upon this trial, it will be seen, were of the first 
 magnitude and importance, and required for their solution a familiarity with the 
 most profound legal principles and the highest professional knowledge. The 
 case was conducted by distinguished counsel, among whom were some of the 
 ablest lawyers in the land. E. Delafield Smith, United States District Attorney, 
 was assisted by William M. Evarts, Samuel Blatchford (now U. S. Circuit Judge), 
 and Ethan Allen; for the defense appeared Jeremiah Larocque, Daniel Lord, 
 James T. Brady, Algernon S. Sullivan, Joseph H. Dukes, Isaac Davega, and 
 Maurice Mayer. Hon. Judges Nelson and Shipman presided. 
 
 The character and genius of James T. Brady made him the most popular 
 advocate of his time, for in him were combined the most superb qualities of the 
 head and heart. The following remark illustrates his genuine manhood : "I 
 honor greatness, genius and achievements/' he said, "but I honor more those 
 qualities in a man's nature which show that, while he holds a. proper relation to 
 the Deity, he has also a just estimate of his fellow-men, and a kindly feeling 
 towards them. I would rather have it said of me, after death, by my brethren 
 of the bar, that they were sorry I had left their companionship, than to be spoken 
 of in the highest strains of gifted panegyric.'' He was esteemed by all, but to 
 those who were so fortunate as to share his acquaintance, he was endeared by 
 the warmest ties of friendship and affection. That man will always be loved 
 
 ' Wheaton's Int. Law, vol. 6, p. 85; I Kent's Com. p. 195; i Phillemore, 
 381; Hefter on Modem Int. Law (4th ed.), p. 191. 
 
34:6 SPEECH OF JAMES T. BRADY 
 
 who believed, as did Mr. Brady, that the highest, purest, and most unselfish of 
 all earthly affections is man's love for man. He was a successful and accom- 
 plished lawyer. His intellectual power will appear upon a perusal of his very 
 able and interesting address for the defense of this case. After all the other 
 counsel for the, prisonershad spoken, Mr. Brady summed up as follows : 
 
 May it piease the Court, — Gentlemen of the Jury: — I feel 
 quite certain that all of you are much satisfied to find that this 
 important trial is rapidly drawing to a close; and I think it would 
 be unbecoming in me, as one of the counsel for the accused, to 
 proceed a step farther in my address to you without acknowledging 
 to the court the gratitude which we feel for their kindness in hear- 
 ing so largely discussed the grave legal questions involved in this 
 controversy; to the jury, for their unvarying patience throughout 
 the investigation; and to our learned opponents, for the frank and 
 open manner in which the prosecution has been conducted. Our 
 fellow-citizens at the South — certainly that portion of them who 
 •cherish affection for this part of the Union — will find in the course 
 of this trial most satisfactory evidence that respect for law, free- 
 dom of speech, freedom of discussion, liberty of opinion, and the 
 rights of all our countrymen, here exist to the fullest extent. All 
 of us have heretofore been connected with interesting and exciting 
 trials; I am warranted in saying that, considering the period at 
 which this trial has occurred, and all the facts and circumstances 
 attending it, the citizens of New York have reason to be proud that 
 such a trial could proceed without one word of acerbity, without 
 one expression of angry feeling, or one improper exhibition of 
 popular sentiments. 
 
 1. Piracy. — Nature and character of the crime. 
 
 The great question for this jury, absorbing all others, is: Have 
 the twelve men named in the indictment, or has either of them, 
 committed piracy, and thus incurred the penalty of death ? It is 
 a very interesting inquiry, gentlemen — interesting in its historical, 
 national, judicial and political aspects; interesting, too, because of 
 the character and description of the accused. We discover that 
 eight of them are foreigners, who have never been naturalized, and 
 do not judicially come under the designation of citizens of the 
 United States. Four of them are what we call natural-born citi- 
 zens: two from the State of South CaroHna, one from North Caro- 
 lina, and one from Philadelphia. Two of them are in very feeble 
 health; and I am sorry to say, some are not yet of middle age, 
 
m DEFENSE OF THE "SAVANNAH PRIVATEERS." 347 
 
 some quite young, including Passalaigue, who has not yet attained 
 his eighteenth year. I know my fellow-citizens of New York quite 
 well enough to be quite sure that, even if there had been any exhi- 
 bition of popular prejudice, or feeling, or fury, with a view to dis- 
 turb their judgments in the jury-box, the sympathy that arises 
 properly in every well-constituted heart and mind, in favor of the 
 accused, their relatives and friends, would overcome any such 
 wrong impulse as might be directed to deprive them of that fair 
 trial which, up to this point, they have had, and which, to the end, 
 I know they will have. 
 
 Are they pirates and robbers ? Have they incurred the penalty 
 of death ? Gentlemen, it is a little curious that, during the present 
 reign of Victoria, a statute has been passed in England softening 
 the rigor of the punishment for piracy, and subjecting the person 
 found guilty to transportation, instead of execution, unless arms 
 have been used in the spoliation, or some act done aggravating the 
 offense. I have used the term " pirate," and the term " robber." 
 There is another which, strangely enough, was employed by a judge 
 of the Vice- Admiralty Court in South Carolina, in 17x8, who calls 
 these pirates and robbers, as we designate them, " sea thieves ;" 
 and I am very glad to find that phrase, because the words robber 
 and pirate have fallen into mere terms of opprobrium; while the 
 word " thief " has a significance and force understood by every 
 man. You know what you thought a " thief " to be when a boy, 
 and how you despised him; and you are to look at each prisoner 
 mentioned in this indictment, and say, on your consciences as men, 
 in view of the facts and of the law, as expounded by the learned 
 court, do you consider that the word " thief " can be applied to any 
 one of the men whom I have to assist in defending ? That is the 
 great practical question which you are to decide. 
 
 Here Mr. Brady briefly adverted to the question of jurisdiction, as having 
 been already very fully discussed. After some observations on the case of Hicks, 
 the pirate, he continued : 
 
 2. Piracy under the law of nations, and under the acts 
 OF Congress. — The "Enchantress" case. 
 
 This indictment charges two kinds of offense: Piracy, as that 
 crime existed by the law of nations, which law may be said to have 
 been incorporated into the jurisprudence of the United States; and 
 piracy under the ninth section of the act of 1790. Piracy by the 
 law of nations is defined by Wheaton, the great American com- 
 
34:8 SPEECH OE JAMES T. BRADY 
 
 mentator on international law, on page 184 of his treatise on that 
 subject. " Piracy," says that eminent gentleman, who was an 
 ornament to the country which gave him birth, and an honor to my 
 profession, " piracy is defined by the text-writers to be the offense 
 of depredating on the seas, without being authorized by any sov- 
 ereign State, or with commissions from different sovereigns at war 
 with each other." The last part of the definition you need not 
 trouble yourselves about, as I only read it so as not to quibble the 
 text. I will read the passage without the latter part. " Piracy is 
 defined to be the offense of depr^ating on the seas, without being 
 authorized by any sovereign State." Other definitions will here- 
 after be suggested. 
 
 This leads me to remark upon certain judicial proceedings in 
 Philadelphia against men found on board the Southern privateer 
 '■ Jefferson Davis," and who were convicted of piracy for having 
 seized and sent away as a prize the " Enchantress." Now, my way 
 of dealing with juries is to act with them while in the jury-box as 
 if they were out of it. I never imitate that bird referred to by the 
 gentleman who preceded me — the ostrich which supposes that when 
 he conceals his head, his whole person is hidden from view. I 
 know, and every gentleman present 'knows, that a jury in the city 
 of Philadelphia has convicted the men arrested on the " Jefferson 
 Davis " of piracy. We are a nation certainly distinguished for 
 three things: for newspapers, politics, and tobacco. I do not know 
 that the Americans could present their social individualities by any 
 better signs. Everybody reads the papers, and everybody has a 
 paper given him to read. The hackman waiting for his fare con- 
 sumes his leisure time perusing the paper. The apple-woman at 
 her stall reads the paper. At the breakfast table, the dinner table, 
 and the supper table, the paper is daily read. I sometimes take 
 my meals at Delmonico's, and have there observed a gentleman 
 who, while refreshing himself with a hasty meal, takes up the news- 
 paper, places it against the castor, and eats, drinks and reads all at 
 the same time. Gentlemen, I say that a people so addicted to 
 newspapers must have ascertained that the men in Philadelphia 
 were convicted; and how the jury could have done otherwise upon 
 the charge of Justices Grier and Cadwalader, I am incapable of 
 perceiving. I have the pleasure of knowing both those eminent 
 judges. My acquaintance with Judge Cadwalader is slight, it is 
 true, but of sufficient standing to insure him the greatest respect 
 for his learning and character. With Judge Grier the acquaintance 
 
IN DEFENSE OF THE "SAVANNAH PRIVATEERS." 349 
 
 is of longer duration; and as he has always extended to me in pro- 
 fessional occupations before him courtesies which men never for- 
 get, I cannot but speak of him with affection. I have nevertheless 
 something to say about the law laid down by those judges on that 
 case. No question on the merits was left to the jury, as I under- 
 stand the instructions. The jurymen were told that if they believed 
 the testimony, then the defendants were guilty of piracy. 
 
 3. The question of intent one of fact for the jury. 
 
 Now, as to the aspect of this case in view of piracy by the law of 
 nations, the question for the jury is, in the first place: Did these 
 defendants, in the act of capturing the Joseph, take her by force, 
 or by putting the captain of her in fear, with the intent to steal her ? 
 That is the question as presented by the indictment, and in order 
 to convict under either of the first five counts, the jury must be 
 satisfied, beyond all reasonable doubt, that, in attacking the 
 Joseph, the defendants were actuated as described in the indict- 
 ment, from which I read the allegation that they, "with force and 
 arms, piratically, feloniously, and violently, put the persons on 
 board in personal fear and danger of their lives, and in seizing the 
 vessel did, as aforesaid, seize, rob, steal and carry her away." In 
 this the indictment follows the law. Another question of fact, in 
 the other aspect of the case, under the ninth section of the act of 
 1790, will be, substantially, whether the existence of a civil war is 
 shown. That involves inquiry into the existence of the Confed- 
 erate States as a de facto government or as a dejure government. 
 
 The animus furandi, so often mentioned in this case, means 
 nothing but the intent to steal. The existence of that intent must 
 be found in the evidence, before these men can be called pirates, 
 robbers, or thieves; and whether such intent did or did not exist, 
 is a question entirely for you. 
 
 To convict under the ninth section of the act of 1790, the pros- 
 ecution must prove that the defendants, being at the time of such 
 offense citizens of the United States of America, did something 
 which by that act is prohibited. You will bear in mind that the 
 act of 1790, in its ninth section, has no relation except to American- 
 born citizens, and as to that part of the indictment the eight for- 
 eigners charged are entirely relieved from responsibility. 
 
 Mr. Brady here read the special verdict in the case of U. S. v. Smith (5 
 Wheat. 104), as illustrating what piracy is, and continued : 
 
350 SPEECH OF JAMES T. BEADT 
 
 According to the evidence in the case of Smith, the defendants 
 were clearly pirates. They had no commission from any govern- 
 ment or governor, and were mere mutineers, who had seized a ves- 
 sel illegally, and then proceeded to seize others without any pre- 
 tense or show of authority, but with felonious intent. For these 
 acts they were justly convicted. 
 
 4. Intent can not be inferred, but must be proved. 
 
 Now, we say, that this felonious intent as charged against these 
 defendants, must be proved. But what say my learned friends op- 
 posed ? Why (in effect), that it need not be proved to a jury by 
 any evidence, but must be inferred, as a matter of law, or by the 
 jury first, from the presumption that every man knows the law; and 
 these men, in this view, are pirates — though they honestly believed 
 that there was a valid government called the Confederate States, 
 and that they had a right to act under it — ^because they ought to 
 have known the law; ought to have known that, although the Con- 
 federate States had associated for the purpose of forming, yet they 
 had not completed a government; ought to have known that, 
 though Baker had a commission signed by Jefferson Davis, the so- 
 called President of the Confederate States, under which he was 
 authorized to act as a privateer, yet the law did not recognize the 
 commission. 
 
 There is, indeed, a rule of law, said to be essential to the exist- 
 ence of society, that all men must be taken to know the law, ex- 
 cept, I might add, lawyers and judges, who seldom agree upon any 
 proposition until they must. 
 
 The whole judicial system is founded upon the theory that 
 judges will err about the law, and thus we have the courts of review 
 to correct judicial mistakes and to establish permanent principles. 
 Yet it is trud that every man is presumed to know the law; and the 
 , native of Manilla (one of the parties here charged). Loo Foo, or 
 whatever his name may be, who does not, probably, understand 
 what he is here for, is presumed to know the law as well as one of 
 us. If he did not know it better, considering the differences be- 
 tween us, he might not be entitled to rate high as a jurist. One of 
 my brethren read to you an extract from a recent German work,' 
 which presents a different view erf this subject as relates to foreign 
 subjects in particular cases. I was happy to hear Mr. Mayer on 
 the law of this case, more particularly as he declared himself to be 
 
 ' Hefter on Modem Int. Law. 
 
m DEFENSE OF THE "SAVANNAH PErVATEEKS." 351 
 
 a foreign-born citizen; for it is one of the characteristics of this 
 government — a characteristic of our free institutions — that no dis- 
 tinction of birth or creed is permitted to stand in the way of merit, 
 come from what clime it may. 
 
 5. Consequences of defendants' acts not necessarily 
 
 criminal. 
 
 There is another presumption. Every man is presumed to in- 
 tend the natural consequences of his own acts. Now, what are the 
 natural consequences of the acts done by these defendants ? The 
 law on this point is illustrated and applied with much effect in 
 homicide cases. Suppose a man has a slight contention with an- 
 other, and one of the combatants, drawing a dagger, aims to inflict 
 a slight wound, say upon the hand of the other; but, in the struggle, 
 the weapon enters the heart, and the injured party dies. The man 
 is arrested with the bloody dagger in his hand, the weapon by which 
 death was unquestionably occasioned; and the fact being estab- 
 lished that he killed the deceased, the law will presume the act to 
 be murder, and cast upon the accused the burden of showing that 
 it was something other than murder.' I hope, gentlemen, to see the 
 day when this doctrine of law will no longer exist. I never could 
 understand how the presumption of murder could be drawn from 
 an act equally consistent with murder, manslaughter, justifiable or 
 excusable homicide, or accident, but such is the law, and it must 
 be respected. 
 
 I say, that neither of the defendants intended, as the ordinary 
 and natural consequence of his act, to commit piracy or robbery, 
 though what he did might, in law, amount to such an offense. He 
 intended to take legal prizes, and no more to rob than the man in 
 the case I supposed designed to kill. The natural consequences of 
 his acts were, to take the vessel and send herto a port to be adju- 
 dicated upon as a prize. 
 
 6. Legal presumption of intent may be overcome. — 
 
 Narration of facts. 
 
 Now, I state to my learned friends and the court this proposi- 
 tion: that, though a legal presumption as to intent might have ex- 
 
 ' Now, under the New York statutes, the rule is changed. The law no 
 longer presumes malice from proof of killing merely. The jury must determine 
 the grade of the offense from all the evidence of the case. Stokes v. The Peo- 
 ple, 53 N. Y. 164. 
 
352 SPEECH OF JAMES T. BKADY 
 
 isted in this case, if the prosecution had proved merely the forcible 
 taking, yet if, in making out a case for the government, any fact be 
 elicited which shows that the actual intent was different from what 
 the law, in the absence of such fact, would imply, the presumption 
 is gone. And when the prosecution made their witness detail a 
 conversation which took place between Captain Baker and the cap- 
 tain of the Joseph, with reference to the authority of the former to 
 seize the vessel, and when you find that Captain Baker asserted a 
 claim of right, that overcomes the presumption that he despoiled 
 the captain of the Joseph with an intent to steal. The animus 
 furandi must, in this case, depend on something else than pre- 
 sumption. I will refer you for more particulars of the law on this 
 point to I Greenleaf on Evidence, sections 13 and 14, and I make 
 this citation for another purpose. When an act is in itself illegal, 
 sometimes, if not in the majority of cases, the law affixes to the 
 party the intent to perpetrate a legal offense. But this is not the 
 universal rule. In cases of procuring money or goods under false 
 pretenses, where the intent is the essence of the crime, the prosecu- 
 tion must establish the offense, not by proving alone the act of re- 
 ceiving, but by showing the act and intent; so both must be proved 
 here. 
 
 Now, I ask, has the prosecution entitled itself to the benefit of 
 any presumption as to intent ? What are the facts — the conceded 
 facts ? Baker, and a number of persons in Charleston, did openly 
 and notoriously select a vessel called the " Savannah," then lying 
 in the stream, and fitted her out as a privateer. Baker, in all of 
 these proceedings, acted under the authority of a commission signed 
 by Jefferson Davis, styling and signing himself President of the 
 Confederate States of America. Baker and his companions then 
 went forth as privateersmen, and in no other capacity, for the pur- 
 pose of despoiling the commerce of the United States, and with 
 the strictest injunction not to meddle with the property of any other 
 country. The instructions were clear and distinct on this head, as 
 you know from having heard them read. They went to sea and 
 overhauled the Joseph, gave chase with the American flag flying — 
 one of the ordinary devices or cheats practiced in naval warfare; 
 a device frequently adopted by American naval commanders to 
 whose fame no American dare affix the slightest stigma. On Hear- 
 ing the Joseph, the Savannah showed the secession flag, and Baker 
 requested Captain Meyer to come on board with his papers. The 
 captain asked by what authority, and received for answer: " The 
 
IN DEFENSE OF THE "SAVANNAH PRIVATEERS." 353 
 
 authority of the Confederate States." The captain then went on 
 board with his papers, when Baker, helping him over the side, said: 
 " I am very sorry to take your vessel, but I do so in retaliation 
 against the United States, with whom we are at war." Baker put 
 a prize crew on board the Joseph, and sent her to Georgetown; the 
 captain he detained there as a prisoner. She was then duly sub- 
 mitted for judgment as a prize. These are the facts upon which 
 they claim that piracy at common lav^ is established. 
 
 7. Larceny and trespass distinguished. — Illustrations. 
 
 My learned associate, Mr. Larocque, cited a number of cases to 
 show that, though a man might take property of another, and ap- 
 propriate it to his own use, yet if he did so under color of right, 
 under a bona fide impression that he had authority to take the 
 property, he would only be a trespasser; he would have to restore 
 it or pay the value of it, but he could not be convicted of a crime 
 for its conversion. 
 
 Let me state a case. You own a number of bees. They leave 
 your land, where they hived, and come upon mine, and take refuge 
 in the hollow of a tree, where they deposit their honey. They are 
 your bees, but you cannot come upon my land to take them away; 
 and though they are in my tree, I cannot take the honey. Such a 
 case is reported in our State adjudications.' But, suppose that I 
 did take the bees and appropriate the honey to my own use: I 
 might be unjustly indicted for larceny, because I took the property 
 of another, but I am not, consequently, a thief in the eye of the 
 law; the absence of intent to steal would insure my acquittal. 
 
 That is one illustration. I will mention one other, decided in 
 the South, relating to a subject on which tjie South is very strict 
 and very jealous. A slave announced to a man his intention to 
 escape. The man secreted the slave for the purpose of aiding his 
 escape and effecting his freedom. He was indicted for larceny, on 
 the ground that he exercised a control over the property of the 
 owner against his will. The court held that the object was not to 
 steal, and he could not be convicted. In Wheaton's Criminal Pro- 
 ceedings, page 397, this language will be found, and it is satisfac- 
 tory on the point under discussion: "There are cases where taking 
 is no more than a trespass. Where a man takes another's goods 
 
 ' Goff V. Kilts, 15 Wend. 550; and see Gillet v. Mason, 7 Johns. 161; Fer- 
 guson V. Miller, I Cow. 243. 
 23 
 
354 SPEECH OF JAMES T. BRADY 
 
 openly before him, or where, having otherwise than by apparent 
 robbery, possessed himself of them, he avows the fact before he is 
 questioned. This is only a trespass." 
 
 Now all these principles are familiar and simple, and do not 
 require lawyers to expound them, for they appeal to the practical 
 sense of mankind. It is certainly a most lamentable result of the 
 wisdom of centuries, to place twelve men together and ask them, 
 from fictions or theories, to say, on oath, that a man is a thief when 
 every one of them knows that he is not. If any man on this jury 
 thinks the word pirate, robber or thief can be truly applied to 
 either of these defendants, I am very sorry, for I think neither of 
 them at all liable to any such epithet. 
 
 8. The letter of marque' a valid defense. 
 
 But, suppose that the intent is to be inferred from the act of 
 seizing the Joseph, and the defendants must be convicted, unless 
 justified by the commission issued for Captain Baker, let us then 
 inquire as to the effect of that commission. We say that it pro- 
 tects the defendants against being treated as pirates. Whether it 
 does or not depends upon the question whether the Confederate 
 States have occupied such a relation to the United States of America 
 that they might adopt the means of retaliation or aggression recog- 
 nized in a state of war. 
 
 It is our right and duty, as advocates, to maintain that the con- 
 federate government was so situated, and to support the proposi- 
 tion by reference to the political and judicial history and precedents 
 of the past, stating for these men the principles and views which 
 they and their neighbors of the revolting States insist upon; our 
 personal opinions being in no wise called for, nor important, nor 
 even proper, to be stated at this time and in this place. 
 
 If it can be shown that the Confederate States occupy the same 
 position towards the government of the United States that the 
 thirteen revolted colonies did to Great Britain in the war of the 
 revolution, then these men cannot be convicted of piracy. 
 
 I do not ask you to decide that the Southern States had the 
 right to leave the Union, or secede, or to revolt — to set on foot an 
 insurrection, or to perfect a rebellion. That is not the question 
 here. I will place before the jury such views of law and of his- 
 tory as bear upon the case, endeavoring not to go over the ground 
 
 ' For a copy of the letter, see Appendix, p. 722. 
 
IN DEFENSE OF THE "SAVANNAH PRIVATEERS." 355 
 
 occupied by my associates. I will refer you to a small book pub- 
 lished here in 1859, entitled "The History of New York from the 
 Earliest Time," a very reliable and authentic work. In this book 
 I find a few facts to which I will call your attention, one of which 
 may be unpleasant to some of our friends from the New England 
 States, for we find that New York, so far as her people were con- 
 cerned — exclusive of the authorities — was in physical revolt against 
 the parent government long before our friends in New England, 
 some of whom often feel disposed to do just what they please, but 
 are not quite willing to allow others the same privilege. 
 
 9. The "liberty boys" of New York before the 
 revolution. 
 
 I will refer to it to show you what was the condition of things long 
 before the 4th of July, 1776, and to show that, though we now hurl 
 our charges against these men as pirates — who never killed any- 
 body, never tried to kill anybody; who never stole and never tried 
 to steal — yet the men of New York city who committed, under the 
 name of " Liberty Boys, "what England thought terrible atrocities, in 
 New York, were never touched by justice, not even so heavily as if 
 a feather from the pinion of the humming bird had fallen upon 
 their heads. I find that, about the year 1765, our people here be- 
 gan to grumble about the taxes and imposts which Great Britain 
 levied upon us. And you know, though the causes of the revolu- 
 tionary war are set forth with much dignity in the Declaration of 
 Independence, the contest originated about taxes. That was the 
 great source of disaffection, directing itself more particularly to 
 the matter of tea, and which led to the miscellaneous party in Bos- 
 ton, at which there were no women present, however, and where 
 salt water was used in the decoction. I find that the governor of 
 the city had fists, arms, and all the means of aggression at his com- 
 mand; but at length, happily for us, the government sent over a 
 young gentleman to rule us (Lord Monckford), who, when he did 
 come, appears to have been similar in habits to one of the accused, 
 who is described as being always idle. .The witness for the pros- 
 ecution explained that separate posts and duties were assigned to 
 each of the crew of the Savannah; one fellow, he said, would do 
 nothing. But he will be convicted of having done a good deal, if 
 the prosecution prevail. A state of rebellion all this time and 
 afterwards existed in this particular part of the world, until the 
 British came and made themselves masters of the city. In the 
 
356 SPEECH OF, JAMES T. BRADY 
 
 course of the acts then committed by the citizens, and which the 
 British government called an insurrection, a tumultuous rebellion 
 and revolution, they offered, or it was said they offered, an indig- 
 nity to an equestrian statue of George III. The British troops, in 
 retaliation, and being grossly offended at the conduct of Pitt, who 
 had been a devoted friend of the colonists, mutilated the statue of 
 him which stood on Wall street. The remains of the statue are 
 still with us, and can be seen at the corner of West Broadway and 
 Franklin street, where it is preserved as a relic of the past — a grim 
 memento of the perfect absurdity of charging millions of people 
 with being all pirates, robbers, thieves, and marauders. 
 
 When the British took possession of this city, they had at one 
 time in custody five thousand persons. That was before any formal 
 declaration of independence; before the formation of a government 
 dejure or de facto; and yet did they ever charge any of the prison- 
 ers with being robbers ? Not at all. Was this from any kindness 
 or humane spirit ? Not at all: for they adopted all means in their 
 power to overcome our ancestors. The eldest son of the Earl of 
 Chatham resigned his commission, because he would not consent 
 to fight against the colonies. The government did not hesitate to 
 send to Germany for troops. They could not get sufficient at home. 
 The Irish would not aid them in the fight. The British did not 
 even hesitate to employ Indians; and when, in Parliament, the Secre- 
 tary of State justified himself, saying that they had a perfect right 
 to employ " all the means God and nature " gave them, he was elo- 
 quently rebuked. Even, with all this hostility, such a thing was 
 never thought of as to condemn men, when taken prisoners, and 
 hold them outside that protection which, according to the law of 
 nations, should be extended to men under such circumstances, even 
 though in revolt against the government. 
 
 10. Rebellion as distinguished from revolution. 
 
 In October, 1774, the king, in his message to Parliament, said 
 that a most daring spirit of resistance and disobedience to the laws 
 existed in Massachusetts, and was countenanced and encouraged 
 in others of his colonies. 
 
 Now, I want you to keep your minds fairly applied to the point, 
 on which the court will declare itself, as to whether I am right in 
 saying, that the day when the message was sent to Parliament, the 
 colonies occupied towards the old government a position similar to 
 that of the Confederate States in the hour of revolt to the United 
 
IN DEFENSE OF THE "SAVANNAH PRIVATEERS." 357 
 
 States. But we will possibly see that the Confederate States occu- 
 py a stronger position. 
 
 In the course of the discussion which ensued upon the message, 
 the famous Wilkes remarked: " Rebellion, indeed, appears on the 
 back of a flying enemy; but revolution flames on the breastplate of 
 a victorious warrior." 
 
 If an illegal assemblage sets itself up in opposition to themunic- 
 ipal government, it is a mere insurrection, though ordinary officers 
 of the law be incapable of quelling it, and the mihtary power has 
 to be called out. That is one thing. But when a whole State 
 places itself in an attitude of hostility to the other States of a con- 
 federacy, assumes a distinct existence, and has the power to main- 
 tain independence', though only for a time, that is quite a different 
 affair. 
 
 We remember how beautifully expressed is that passage of the 
 Irish poet, so familiar to all of us, and especially to those who, like 
 myself, coming from Irish ancestry, know so well what is the name 
 and history of rebellion: 
 
 " Rebellion — foul, dishonoring word, 
 Whose wrongful blight so oft hath stained 
 The holiest cause that tongue or sword 
 Of mortal ever lost or gained ! 
 How many a spirit born to bless 
 Has sunk beneath thy withering bane, 
 Whom but a day's — an hour's success, 
 Had wafted to eternal fame ! " 
 
 A remarkable instance, illustrating the sentiment of this pas- 
 sage, is found in the history of that brave man, emerging from ob- 
 scurity, stepping suddenly forth from the common ranks of men, 
 whose name is so generally mentioned with reverence and love, and 
 who so lately freed Naples from the rule of a tyrant. This brave 
 patriot was driven from his native land, after a heroic struggle in 
 Rome. History has recorded how he was followed in this exile by a 
 devoted wife, who perished because she would not desert her hus- 
 band; and how he came to this country, where he established him- 
 self in business until such time as he saw a speck of hope glimmer 
 on the horizon over his lovely and beloved native land. Then he 
 went back almost alone. Red-shirted, like a common toiling man, 
 he gathered round him a few trusty followers who had unlimited 
 confidence in him as a leader, and accomplished the revolution 
 which dethroned the son of Bomba, and placed Victor Emanuel in 
 
358 SPEECH OF JAMES T. BRADY 
 
 his stead. You already know that I speak of Garibaldi.' And yet, 
 Garibaldi, it seems, should have been denounced as a pirate, had 
 the sea been the theater of his failure; and a robber, had he been 
 unsuccessful upon land. 
 
 What do you think an eminent man said, in the British Parlia- 
 ment, about the outbreak of our revolution, and the condition of 
 things then existing in America ? " Whenever oppression begins, 
 resistance becomes lawful and right." Who said that ? The great 
 associate of Chatham and Burke, Lord Camden. At that time 
 Franklin was in Europe, seeking to obtain a hearing before a com- 
 mittee of parliament in respect to the grievances of the American 
 people. It was refused. 
 
 The Lords and Commons, in an address to the king, declared 
 in express terms, that a " rebellion actually existed in Massachu- 
 setts;" and yet, in view of all that, no legal prosecution of any 
 rebel ever followed. So matters continued till the war effectively 
 began, Washington having been appointed commander-in-chief. 
 Then some Americans were taken by the British and detained as 
 prisoners. Of this Washington complained to General Gage, then 
 in command of the British army. Gage returned answer that he 
 had treated the prisoners only too kindly, seeing that they were 
 rebels, and that " their lives, by the law of the land, were destined 
 for the cord." Yet not one of them so perished. 
 
 II. The right of revolution a legal right. 
 
 In view of these things, even so far as I have now advanced; in 
 view of the sacrifices of the southern colonies in the revolution; 
 in view of the great struggle for independence, and the great doc- 
 trine laid down, that, whenever oppression begins, resistance be- 
 comes lawful and right — is it possible to forget the history of the 
 past, and the great principles which gleamed through the darkness 
 and the perils of our early history ? Are we to assert that the Con- 
 stitution establishing our government is perfect in all its parts, and 
 stands upon a corner-stone equivalent to what the globe itself might 
 be supposed to rest on, if we did not know it was ever wheeling 
 through space ? Is all the history of our past, its triumphs and re- 
 verses, and the glorious consummation which crowned the efforts 
 
 ' Garibaldi's sympatliies were not with the Confederacy, as appears by his 
 letter, read by Mr. Evarts, in his reply. See post, p. 419, and Appendix, p. 723. 
 
IN DEFENSE OF THE "SAVANNAH PRIVATEERS." 359 
 
 of the people, all alike to be thrown aside now, upon the belief 
 that we have established a government so perfect, and a Union so 
 complete, that no portion of the States can ever, under any cir- 
 cumstances, secede, or revolt, or dispute the authority of the others, 
 without danger of being treated as pirates and robbers ? The 
 Declaration of Independence has never been repudiated, I believe, 
 and I suppose I have a right to refer to it as containing the polit- 
 ical creed of the American people. I do not know how many 
 people of the old world agree with it, and a most eminent lawyer 
 of our own country characterized the maxims stated at its com- 
 mencement as " glittering generalities." But I believe the Ameri- 
 can people have never withdrawn their approbation from the prin- 
 ciples and doctrines it declares. Among those we find the self- 
 evident truth, that man has an inalienable right to life, liberty, and 
 the pursuit of happiness; that it is to secure these rights that gov- 
 ernments are instituted among men, deriving their just powers 
 from the consent of the governed; and that whenever any form of 
 government becomes destructive of those ends, it is right and 
 patriotic to alter and abolish it, and to institute a new government, 
 laying its foundations on such principles, and conferring power in 
 such a form, as to them may seem most likely to secure their safety 
 and happiness. Is this a mockery ? Is this a falsehood ? Have 
 these ideas been just put forward for the first time ? There has 
 been a dispute among men as to who should be justly denominated 
 the author of this document. The debate may be interesting to 
 the historian; but these principles, though they are embodied in 
 the Constitution, were not created by it. They have lived in the 
 hearts of man since man first trod the earth. I can imagine the 
 time, too, when Egypt was in her early glory, and in fancy see one 
 of the poor, miserable wretches, deprived of any right of humanity, 
 harnessed, like a brute beast, to the immense stone about being 
 erected in honor of some monarch, whose very name was destined 
 to perish. I can imagine the degraded slave pausing in his loath- 
 some toil to delight over the idea that there might come a time 
 when the meanest of men would enjoy natural rights, under a gov- 
 ernment of the multitude formed to secure them. 
 
 Now, what says Mr. Blackstone, the great commentator on the 
 law of England, when speaking of the revolution which dethroned 
 James II: "Whenever a question arises between the society at 
 large and any magistrate originally vested with powers originally 
 delegated by that society, it must be decided by the voice of the 
 
360 SPEECH OF JAMES T. BEADY 
 
 society itself. There is not upon earth any other tribunal to re- 
 sort to." ' 
 
 Prior to the 23d of March, 1776, the Legislature of Massachu- 
 setts authorized the issuing of letters of marque to privateers upon 
 the ocean, and when my learned friend, Mr. Lord, in his remarks 
 so clear and convincing, called attention to the lawfulness of pri- 
 vateering, my brother Evarts attempted to qualify it by designating 
 the granting of letters of marque as reluctantly tolerated, and as 
 if no such practice as despoiling commerce should be permitted, 
 even in a state of war. 
 
 I will not again read from Mr. Marcy's letter, but I will 
 say here that the position he took gratified the heart of the 
 whole American people. He said, in substance: If you, En- 
 gland and France, have the right to despoil commerce with 
 armed national vessels, we have a right to adopt such means of 
 protection and retaliation as we possess. We do not propose, if 
 you make war upon us, or we find it necessary to make war upon 
 you, that we, with a poor, miserable fleet, shall not be at liberty to 
 send out privateers, but yield to you, who may come with your 
 steel-clad vessels and powerful armament to practice upon us any 
 amount of devastation. No. We never had a navy strong enough 
 to place us in such a position as that with regard to foreign powers. 
 Look at it. Do you think that France or England has any feeling 
 of friendship towards this country as a nation ? I do not speak of 
 the people of these countries, but of the cabinets and governments. 
 No. Nations are selfish. Nearly all the laws of nations are founded 
 on interest. Nations conduct their political affairs on that basis. 
 They never receive laws from one another, not even against crime. 
 And when you want to obtain back from another country a man 
 who has committed depredations against society, you do it only by 
 virtue of a treaty, and from no love or affection to the country de- 
 manding it. And if this war continues much longer, I, for one, 
 entertain the most profound apprehension that both these powers, 
 France and England, will combine to break the blockade, if they 
 do not enter upon more aggressive measures. If they for a moment 
 find it their interest to do so, they will, and no power, moral or 
 physical, can prevent them. 
 
 I say, then, the right of revolution is a right to be exercised, 
 not according to what the government revolted against may think, 
 but according to the necessities or the belief of the people revolting. 
 
 ' Black. Com. vol. i, p. 2H. 
 
IN DEFENSE OF THE "SAVANNAH PRIVATEERS." 3G1 
 
 If you belonged to a State which was in any way deprived of its 
 rights, the moment that oppression began resistance became a duty. 
 A slave does not ask his master when he is to have his freedom, but 
 he strikes for it at the proper opportunity. A man threatened with 
 death at the hands of another, does not stop to ask whether he has 
 a right to slay his assailant in self-defense. If self-preservation is 
 the first law of individuals, so also is it of masses and of nations. 
 Therefore, when the American Colonies made up their minds to 
 achieve independence, whether their reasons were sufficient or not, 
 they did not consent to have the question decided by Great Britain, 
 but at once decided it for themselves. Very early in our history, 
 in 1778, France recognized the American government. England, 
 as you know, complained, and the French government sent back 
 an answer, saying: Yes, we have formed a treaty with this new gov- 
 ernment; we have recognized it, and you have no right to com- 
 plain; for you remember, England, said France, that during the 
 reign of Elizabeth, when the Netherlands revolted against Spain, 
 you, in the first place, negotiated secret treaties with the revolution- 
 ists, and then recognized them; but, when Spain complained of 
 this, you said to Spain: The reasons which justify the Netherlands 
 in their revolt entitle them to our support. Was success necessary ? 
 Was the doctrine of our opponents correct, that, though people 
 may be in absolute revolt against the parent government, with an 
 army in the field, and in exclusive possession of the territories they 
 occupy, yet they have no right to be recognized by the law of na- 
 tions, and are not entitled to the humanities that accompany the 
 conditions of a war between foreign powers ? Is success neces- 
 sary ? Why was it not necessary in the case of the colonies when 
 recognized by France ? Why not necessary in the case of the 
 Netherlands when recognized by England ? Never has been put 
 forward such a doctrine for adjudication since the days of Ogden 
 and Smith, tried in this city in 1806. 
 
 Here Mr. Brady referred to the argument of Thomas Addis Emmett, in de- 
 fense of Smith and Ogden, charged with aiding General Miranda and the people 
 of Caraccas in a revolt against Spain, as showing that the right of revolution 
 rested upon sound legal principles. He then cited extracts from a work of James 
 D. Torrey on " The Southern Rebellion, and the War for the Union,'' showing 
 that the view taken by the South was analogous to the notions entertained by 
 New England in the war of 1812, and could not be considered as novel or wicked. 
 He then proceeded : 
 
362 SPEECH OF JAMES T. BEADY 
 
 12. Secession synonymous with revolution; right 
 synonymous with power. 
 
 Now, this enables me to repeat, with a clearer view derived 
 from history, the proposition that the Confederate States are — un- 
 der the law of nations, and the principles embodied in the Decla- 
 ration of Independence, sustained in the revolution, and recog- 
 nized by our people — in a condition not distinguishable from that 
 of the colonies in 1776, except that, if there be a difference, the 
 position of the confederates, in reference to legality, as a judicial 
 question, is more justifiable, as it is certainly more formidable. 
 This word "secession" is, after all, only a word; a word, as Mr. 
 Webster said in one of his great speeches, answering Mr. Calhoun, 
 of fearful import; a word for which he could not, according to his 
 views, too strongly express condemnation. But whether you use 
 the word "secession," or the familiar expression, "going out of the 
 Union," or, "not consenting to remain in the Union," the idea is 
 one and the same. Much acumen and ingenuity have been dis- 
 played, even by a mind profound as that of Mr. Calhoun, a most 
 acute man and a pure man, as Mr. Webster eloquently attested in 
 the Senate chamber, after the decease of that South Carolina states- 
 man. I say a good deal of acumen had been spent on the question 
 whether a State, or any number of States, have a right under the 
 Constitution to secede from the Union. It is a quarrel about 
 phrases. It is not necessary in any point of view, political, philo- 
 logical or moral, to use the word " secession " as either excusing or 
 justifying the act of the Confederate States. Suppose I grant, as 
 a distinct proposition, in accordance with what I admit to be the 
 opinion of the great majority of jurists, and orators, and statesmen 
 at the North, that there is no right in a State, under the Constitu- 
 tion, to secede from the Union — what then ? I shall not stop to 
 give you the argument with which the South presents a view of the 
 question entirely different from that of the North. Of what con- 
 sequence is it, practically, whether the right of the State to go out 
 be found in any part of the compact called the Constitution, or be 
 derived from a source extrinsic of it ? You (let me suppose) are 
 twelve States, and I am the thirteenth. There is the original con- 
 federacy of States, pure and simple, under the agreement with each 
 other; and there, according to the views of Mr. Webster and the 
 prosecution here, we became constituted in a general government, 
 or, as Wheaton says, in a "composite government," giving great 
 
m DEFENSE OF THE "SAVANNAH PEIVATEEES." 363 
 
 power to the general center. Now, what difference does it make, 
 if you twelve States conclude to leave me, whether you do it by 
 virtue of anything contained in the Constitution, or inferable from 
 the Constitution, or in virtue of some right or claim of right that 
 resides out of the Constitution ? It is not of the least consequence. 
 I do not care for the word " secession." It would be, at the worst, 
 revolution. In that same great speech of Mr. Webster's against 
 Calhoun, in which I think I am justified in saying he exhausts the 
 subject and makes the most formidable argument against the theory 
 of secession that was ever uttered in the United States, all the con- 
 clusion he comes to is this: "'Peaceable secession!' I cannot 
 agree to such a name. I cannot think it possible. It would be 
 revolution.'' Very well. Of what consequence is the designation ? 
 Who cares for the baptism or the sponsors ? It is the thing you 
 look to. And if they have either the right or the power to secede 
 or revolutionize, they may do it, and there is no tribunal on earth 
 to sit in judgment upon them; though we have the right and the 
 power, on the other hand, to battle for the maintenance of the 
 whole Union. 
 
 Our friend, Mr. Justice Grier, says: "No band of conspirators 
 can overcome the government merely because they are dissatisfied 
 with the result of an election." Now, gentlemen, with the defej- 
 ence he deserves, I would ask the learned Justice Grier, or any 
 other justice, or my learned friend, Mr. Evarts, how he will pro- 
 ceed to dispose of the case which I am about to put ? Suppose 
 that all but one of our States meet in their legislatures, and, by the 
 universal acclaim, and with the entire approval of all the people, 
 resolve that they will remain no longer in association with the 
 others— what will you do with them ? That solitary State, which may 
 be Rhode Island, says: "I have in me the sovereignty; I have in 
 me all the attributes that belong to empire or national existence; 
 but I think I will have to let you go. Whether you call it seces- 
 sion, or rebellion, or revolution, you may go, because you have the 
 power to go, if there be no better reason." And power and right 
 become, in reference to this subject, the same thing in the end. 
 Do they not .' Is there any relation on earth that has a higher 
 sanction than marriage ? So long as two parties, who have con- 
 tracted that holy obligation, have, in truth, no fault to find with 
 each other, is there any right in either to go away from the other ? 
 There is no such right, either by the laW of God or of man. But 
 there is a power to do it; is there not ? And if the wife flee from 
 
364 SPEECH OF JAMES T. BRADY 
 
 her husband, instead of towards him, or if a husband go from his 
 wife, is there any law of society that can compel them to unite ? 
 And why not ? Because mankind, though they have perpetrated 
 many follies, have, at least, recognized that this was a remedy ut- 
 terly impossible. In the relation of partnership between two indi- 
 viduals, does not the same state of things exist ? and do not the 
 same arguments suggest themselves ? I ask my learned brother 
 what he can do in reference to the ten States that have claimed to 
 secede from the Union, and have organized themselves into a gov- 
 ernment ? I will give him all the army he demands, and will let 
 him retain in the chair of State this honest, pleasant Mr. Lincoln, 
 who is not the greatest man in the world — nobody will pretend 
 that — ^but is as good and honest a person as there is in the world. 
 There is not the slightest question but that, in all his movements, 
 he only proposes what he deems consistent with the welfare and 
 honor of the country. I will give my learned brother the army 
 now on the banks of the Potomac, doing nothing, and millions of 
 money, and then I desire him to tell us how, with all these aids, he 
 can coerce those ten States to remain in the confederacy. What 
 was said by Mr. Buchanan on the subject, in his message of De- 
 cember last ? " I do not propose," s^d he, " to attempt any co- 
 ercion of the States. I believe that it would be utterly impossible. 
 You cannot compel a State to remain in the Union. They may 
 refuse to send Senators to the Senate of the United States. They 
 may refuse to choose electors, and the government stops." Well, 
 I grant you that this is not the view of other men quite as eminent 
 as Mr. Buchanan. I grant you that the great Chief Justice Mar- 
 shall — a man to -whom it would be bad taste to apply any other 
 word than great, because that includes everything which character- 
 ized him — I grant you that brilliant son of Virginia met an argu- 
 ment like this with the great power that distinguished all his judg- 
 ments, when a question arose in the Supreme Court of the United 
 States, affecting the State of Virginia and a citizen. But of what 
 importance it is what any man thinks about it ? What is your 
 theory as compared with your practice ? Now, I will give my 
 friend all the power he wants, and ask him to deal with these ten 
 States. Do you believe it to be within the compass of a possibil- 
 ity to compel them to remain in the Union, as States, if they do 
 not wish it ? 
 
 Thus I reach the conclusion, on even the weakest view of the 
 case for us, that the power to secede, and the power to organize a 
 
IN DEFENSE OF THE "SAVANNAH PRIVATEERS." 3G5 
 
 government existing, there is no power on earth which, on any rule 
 of law, can interfere with it, except that of war, conducted on the 
 principles of civilized war. 
 
 Now, then, let us look at those Confederate States a little more 
 closely. What says Vattel, in the passage referred to by my learned 
 friend, Mr. Larocque, and which it is of the utmost importance, in 
 this connection, to keep in mind. 
 
 Here Mr. Brady cited Vattel (Book 3, chap. 18, §§ 287, 292, 293), to show 
 the distinction between rebellion and civil war, ' and claimed that the Confederate 
 States were clearly within the rule, and entitled to the benefits of the estab- 
 lished laws of war. He continued : 
 
 Is not that clearly expressed and easy to understand ? All of 
 us comprehend and can readily apply it in this case. That resolves 
 the question, if indeed this be the law of the land, into this: Have 
 the Confederate States, on any show of reason, or without it — for 
 that does not affect the inquiry — attained sufficient strength, and 
 become sufficiently formidable, to entitle them to be treated, under 
 that law of nations, as in a condition of civil war, even if they 
 have not constituted a sepa:^ate, sovereign and independent nation ? 
 Really, it seems to me, too clear for doubt, that they have. We 
 had, in the revolution, thirteen colonies, with a limited treasury, 
 almost destitute of means, and with some of our soldiers so behav- 
 ing themselves, in the early part of the struggle, that General Wash- 
 ington, on one memorable occasion, threw down his hat on the 
 ground and asked: "Are these the men with whom I am to defend 
 the liberties of America ? " And those of you, gentlemen, who have 
 read this correspondence, know how constantly he was complaining 
 to Congress about the inefficiency of the troops and their liabihty 
 to desertion. I remember that he says something like this: " There 
 is no doubt that patriotism may accomplish much. It has already 
 effected a good deal. But he who relies on it as the means of car- 
 rying him through a long war will find himself, in the end, griev- 
 ously mistaken. It is not to be disguised that the great majority of 
 those who enter the service do so with a view to the pay which 
 they are to receive; and, unless they are satisfied, desertions may 
 be expected." He also remarked, at another period, in regard to 
 the troops of a certain portion of our country, which I will not 
 name, that they would have their own way; that, when their term 
 of enlistment expired, they would go home; and that they would 
 
 ' For the sections cited see Appendix, p. 723. 
 
366 SPEECH OP JAMES T. BEADY 
 
 sometimes go before that period arrived. That, I am mortified to 
 say, has been imitated in the present struggle. 
 
 Such was the early condition of the colonies. 
 
 Now, the Southern Confederacy have ten States; they had 
 seven when this commission was issued, with about eight millions 
 of people. They have separate State governments, which have ex- 
 isted ever since the Union was formed, and which would exist if 
 this revolution were entirely put down. They have excluded us 
 from every part of their territory, except a little foothold in the 
 eastern part of Virginia, and " debatable ground " in western Vir- 
 ginia. We have not yet been able to penetrate farther into the 
 Confederate States. We cannot send even food to the hungry or 
 medicine to the afflicted there. We cannot interchange the com- 
 monest acts of humanity with those of our friends who are shut up 
 in the South. I do think, with the conceded fact looking directly 
 into the face of the American people that, with all the millions at 
 the command of the administration, there is yet found sufficient 
 force and power in the Confederate States to maintain their terri- 
 tory, their government, their legislature, their judiciary, their exec- 
 utive, and their army and navy, it is vain and idle to say that they 
 are not now in a state of civil war, and that they ought to be ex- 
 cluded from the humanities incident to that condition. Such an 
 idea should not, I think, find sanction in either the heart, the con- 
 science or intelligence of any right-minded man. 
 
 13. Evidences of the existence of civil war. 
 
 Not only are the facts already stated true, but the Confederate 
 States have been recognized as a belligerent power by France and 
 England, as we have proved by the proclamations placed before 
 you; and they have been recognized by our government as bellig- 
 erents, at least. That I submit, as a distinct question of fact, to 
 , the jury, unless the court conceive that it is a pure question of law, 
 in which case I am perfectly content that the court shall dispose 
 of it. 
 
 And where do I find this ? I find it in the admission of Mr. 
 Lincoln, in his inaugural address, that there is to be no attempt at 
 any physical coercion of these States; a concession that it is a 
 thing not called for, not consistent with the views of the admin- 
 istration, or with the general course of policy of the American 
 people. According to his view, there was to be no war. I find it 
 in the correspondence of General Anderson with Governor Pickens, 
 
m DEFENSE OF THE "SAVANNAH PRIVATEERS." 36Y 
 
 which has been read in the course of the trial' — which, of course, 
 has been communicated to the government, will be found among 
 its archives, and of which no disapprobation has been expressed. 
 And here I borrow a doctrine from the district attorney, who said, 
 when I declared that the legislative branch of the government had 
 not given their declaration as to what was the true condition of the 
 South, that their silence indicated what it was; and so, the silence 
 of the government, in not protesting against this correspondence, 
 is good enough for my purpose. 
 
 The proclamation of the President, calling for 75,000 troops, 
 and then calling for a greater number, would, in any court in 
 Christendom, outside of the United States, be regarded, under in- 
 ternational law, as conclusive evidence that those troops were to be 
 used against a belligerent power. Who ever heard of eight mil- 
 lions of people, or of one million of people, being all traitors, and 
 being all liable to prosecution for treason at once. I find this rec- 
 ognition in the exchange of prisoners, which we know, as a matter 
 of history, has occurred. I find it in the capitulation of Hatteras, 
 at which, and by which. General Butler, of his own accord, when 
 he refused the terms of surrender proposed by Commodore Barron, 
 declared that the garrison should be taken as prisoners of war; and 
 that has been communicated to the government, and no dissatisfac- 
 tion expressed about it. 
 
 And, gentlemen, I rest it, also, as to the recognition by our 
 government, on the fact to which Mr. Sullivan so appropriately al- 
 luded: the exchange of flags of truce between the two contending 
 forces, as proved by one of the officers of the navy. A flag of 
 truce sent to rebels — to men engaged in lawless insurrection, in 
 treasonable hostility to the government, with a view to its over- 
 throw! Why, gentlemen, it is the grandest, as it is the most char- 
 acteristic, device by which humanity protects men against atrocities 
 which they might otherwise perpetrate upon each other: that little 
 white flag, showing itself like a speck of divine snow on the red 
 and bloody field of battle; coming covered all over with divinity; 
 coming in the hand of peace, who rejoices to see another place 
 where her foot may rest; welcome as the dove which returned to 
 the ark; coming, I say, in the hand of peace, who is the great con- 
 queror, and before whom the power of armies and the bad ambi- 
 tions and great struggles of men must ultimately be extinguished^ 
 
 ' For an abstract of the documentary evidence, sec Appendix, p. 725. 
 
368 SPEECH OF JAMES T. BRADY 
 
 This, of itself, will be regarded by mankind, when they reflect 
 wisely, as sufficient to show that our government must not be 
 brutal; and we seek to rescue the administration from any imputa- 
 tion that it wants to deny to the South the common humanities 
 which belong to warfare, by your refusing to let men be executed 
 as pirates, or to make a distinction between him who wars on the 
 deep and him who wars upon the land. 
 
 It is very strange if the poor fellows who had no means of earn- 
 ing a meal of victuals in the city of Charleston, like some of those 
 who composed the crew of this vessel, shut up as if in a trap, 
 should be hanged as pirates for being on board a privateer, under 
 a commission from the Confederate States, and that those who 
 have slain your brothers in battle should be taken as prisoners of 
 war, caTrefully provided for, and treated with the benevolence which 
 we extend to all prisoners who fall into our hands ; the same 
 humanities that, as you perceive, are provided for in the instruc- 
 tions from Jefferson Davis, found on board the privateer, directing 
 that the prisoners taken should be dealt with gently and leniently, 
 and to give them the same rations as were supplied to persons in 
 the confederate service. 
 
 Mr. Brady here referred' to the proposition advanced by Vattel, that some 
 reason must exist for a revolt or a civil war, in order to distinguish it from an in- 
 surrection merely. He claimed that if any reason existed, there was no common 
 superior to judge who was right or wrong. He then stated the reasons assigned 
 by the South in justification of its course. They claimed, he said, that the gov- 
 ernment had no right to interfere with slavery, or limit its extension, or to nullify 
 the fugitive slave laws in New England. He referred to Mr. Webster's speech 
 of the 7th of March, 1850, to show that no section of the country had a right to 
 refuse obedience to the fugitive slave law, and that such refusal was a wrong 
 towards the South. He referred to the " Creole Case," to show that the courts 
 did not afford them ample remedy, and that, therefore, their only course was 
 revolution. He then continued : 
 
 14. During civil war, the combatants are entitled to all 
 the rights of war. blockade defined. 
 
 Let me now cite to you Wheaton's International law, page 30, 
 in which he says, that " sovereignty is acquired by a State, either 
 at the origin of the civil society of which it is composed, or when 
 it separates itself from the community of which it previously formed 
 a part, and on which it was dependent." Then he says, that "civil 
 war between the members of the same society is, by the general 
 usages of nations, such a war as entitles both the contending parties 
 
IN DEFENSE OF THE "SAVANNAH PRIVATEERS." 369 
 
 to all the rights of war as against each other, and as against neutral 
 nations." 
 
 This, if your Honors please, seems to me an answer to the doc- 
 trine put forward in this case, that the judges are to treat this 
 question in reference to the seceding States as it has been viewed 
 by the executive and legislative branches of the government. If it 
 be true that when a state of civil war exists, as stated by Wheaton, 
 both the contending parties have all the rights of war as against 
 each other, as well as against neutral nations, then it follows very 
 clearly that the seceding States, as well as our own, have all the 
 rights of war; and there is no such rule as that they must have 
 those rights determined only by the executive or legislative branches 
 of the government, or by both. 
 
 And here, gentlemen, let us refer to the matter of bloclfade, 
 which I take to be the highest evidence of a distinct recognition, 
 by the general government, of a state of war as between the United 
 and the Confederate States. I see no escape from that conclusion. 
 It is true that a learned judge in New England, an eminent and 
 pure man, has determined, as we see from the newspapers, that, in 
 his judgment it is not a blockade which exists, but merely the ex- 
 ercise by the general government of its authority over commerce 
 and territory in a state of insurrection ; that it is a mere police or 
 municipal regulation. Well, gentlemen, that is not the view taken 
 by the judges elsewhere. Certainly it is not adopted in this dis- 
 trict, where prize cases have arisen, instituted by the government, 
 which calls this a blockade; and I undertake to say that, in the 
 history of the human race, that word, blockade, never was applied 
 except in a state of war; and the exercise of that power never can 
 occur except in a state of war, because, as the writers inform us, 
 blockade is the right of a belligerent affecting a neutral, and only 
 allowable in a state of war. Why is it that France and England, 
 and all the other countries of the world, do not attempt to send 
 their vessels to any of the ports in guard of which we place armed 
 vessels ? 
 
 A ^ord more about piracy: A pirate is an offender against the 
 law of nations. He is called in the Latin, and by the jurists, the 
 enemy of the human race. Any nation can lay hold of him on 
 the high seas, take him to its country, and punish him. Now, if a 
 ship of war — British, French, Russian, or of any other nation — 
 should meet with a piratical craft, she would capture and condemn 
 it in the courts of her country, and the crew would suffer the pun- 
 24 
 
370 SPEECH OF JAMES T. BRADY 
 
 ishment of pirates. No one will dispute that proposition. But if 
 such a ship of war had met with the privateer Savannah, even in 
 the very act of capturing the Joseph, would she have captured the 
 Savannah or attempted to arrest her crew as pirates ? If not, does 
 it not follow, as a necessary consequence, that the Savannah was 
 not engaged in piratical business ? and does it not involve a palpa- 
 ble absurdity to say, that a vessel on the high seas, cruising under 
 a privateer's commission, can be treated as a pirate by the power 
 with which it is at war, and yet be declared not a pirate by all the 
 other powers of the earth ? This must be so, if there is anything 
 in the idea that piracy is an offense against the law of nations. 
 
 There is not a case in our books where any man, under a com- 
 mission emanating from any authority or person, was ever treated 
 as a pirate, and so condemned, unless the actual intent to steal was 
 proved. In the case of Aurey such was the fact, as in many other 
 cases which have been cited. And so it seems, that, if the Confed- 
 erate States were either an actual government, established in virtue 
 of the principles of right to which I have referred; or if a govern- 
 ment de facto, as distinguished from one having that right; or if 
 these men believed that the commission emanated from either kind 
 of government — was lawfully issued — we claim that it is impossible 
 in law, and would be wrong in morals, and unjust in all its conse- 
 quences, to hold them as pirates, or to treat them otherwise than 
 as prisoners of war. And, gentlemen, I am sorry to say, or rather 
 I am glad to say, that if they should be acquitted of the crime of 
 piracy, they would yet remain as prisoners of war. The worst 
 thing to do with them is to hang them. By preserving their lives 
 we have just their number to exchange for prisoners taken by the 
 enemy. 
 
 You, gentlemen, will do your duty under the law, whatever be 
 the consequences. If you have no doubt that these men have com- 
 mitted piracy, they should be convicted of piracy. No threat of 
 retaliation from any quarter should or will influence right-minded 
 men in the disposition to be made of cases where they have to give 
 a verdict according to their conscience, the evidence, and the law 
 of the land. 
 
 But the fact of retaliation, as a danger that may ensue from 
 treating as pirates men engaged in war, is referred to by Vattel in 
 his treatise on the laws of nations. It is one of the considerations 
 which enjoin on courts and governments the duty of seeing that, 
 
IN DEFENSE OF THE "SAVANNAH PRIVATEERS." 371 
 
 when people are prosecuting civil war, they shall enjoy the human- 
 ities of war. 
 
 Mr. Brady here discussed the case under the ninth section of the act of 1790. 
 He claimed it had no application to the four Americans, since they owed allegi- 
 ance to another government. That, as construed by the prosecution, the act was 
 unconstitutional, because it could only apply to acts done under authority of a 
 foreign power or person, and if Jefferson Davis was or represented that power, the 
 defendants were his subjects, and not (citizens; if he did not represent a foreign 
 power, the act did not apply at all. He then referred to the subject of variance 
 between the proof and the indictment, .and cited Wharton's Crim. Law, pp. 78, 
 gi, 93, 94 and 96, and U. S. v. Hardiman, 13 Peters, 176. He claimed also that 
 the status of the Confederacy was a judicial question, and must be considered by 
 the court and jury. After referring to the trial of McLeod, he concluded as 
 follows: 
 
 Gentlemen, I will detain you but a few moments longer. I have 
 endeavored to show, in the first place, that these men cannot be 
 convicted of piracy, because they had not the intent to steal, essen- 
 tial to the commission of that offense, and that you are the judges 
 whether that intent did or did not exist. If it did not, then the 
 accused men are entitled to acquittal on that ground. If the act 
 of 1790 be constitutional, and if it can be construed to extend to 
 a case like this, then eight of the prisoners are to be discharged, 
 being foreigners, not naturalized; and the other four also, having 
 acted under a commission issued in good faith by a government 
 which claimed to have existence, acted upon in good faith by them- 
 selves, and with the belief that they were not committing any law- 
 less act of aggression. In this connection I hold it to be imma- 
 terial whether the confederate government was one of right, estab- 
 lished on sufficient authority according to the law of nations, and 
 to be recognized as such, or whether it was merely a government in 
 fact. We claim, beyond all that, and apart from the question of 
 government in law or government in fact, that there exists a state 
 of civil war, which entitles these defendants to be treated in every 
 other manner than as pirates; which may have rendered them 
 amenable to the danger of being regarded as prisoners of war, but 
 which has made it impossible for them to be ever dealt with as 
 felons. 
 
 15. The duties of an advocate require the highest 
 moral courage. 
 
 I am sorry that it has become necessary in this discussion to 
 open subjects for debate, any inquiry about which, at this partic- 
 
372 SPEECH OF JAMES T. BEADY 
 
 ular juncture in our history, is not likely to be attended with any 
 great advantage. But, like my brethren for the defense, I have 
 endeavored to state freely, fearlessly, frankly and correctly, the 
 positions on which the defendants have a right to rely before the 
 court and before you.. It would have been much more acceptable 
 to my feelings, as a citizen, if we had been spared the performance 
 of any such duty. But, gentlemen, it is not our fault. The advo- 
 cate is of very little use in the da^s of prosperity and peace, in the 
 periods of repose, in protecting your property, or aiding you to re- 
 cover your rights of a civil nature. It is only when public opinion, 
 or the strong power of government, the formidable array of influ- 
 ence, the force of a nation, or the fury of a multitude, is directed 
 against, you, that the advocate is of any use. 
 
 Many years ago, while we were yet colonies of Great Britain, 
 there occurred on this island what is known as the famous negro 
 insurrection — the result of an idle story told by a worthless person, 
 and yet leading to such an inflammation of the public mind that 
 all the lawyers who then practiced at the bar of New York (and it 
 is the greatest stigma on our profession of which the world can 
 furnish an example) refused to defend the accused parties. One of 
 them was a poor priest, of, I believe, foreign origin. The conse- 
 quence was, that numerous convictions took place, and a great 
 many executions. And yet all mankind is perfectly satisfied that 
 there never was a more unfounded rumor, never a more idle tale, 
 and that judicial murders were never perpetrated on the face of 
 the earth more intolerable, more inexcusable, more without pallia- 
 tion. How different was it in Boston, at the time of what was 
 called the massacre of Massachusetts subjects by British forces! 
 The soldiers on being indicted, sought for counsel, and they found 
 two men of great eminence in the profession to act for them. One 
 of them was Mr. Adams, and the other Mr. Quincy. The father 
 of Mr. Quincy addressed a letter, imploring him, on his allegiance 
 as a son, and from affection and duty toward him, not to undertake 
 the defense of these men. The son wrote back a response, recog- 
 nizing, as he truly felt, all the filial affection which he owed to that 
 honored parent, but, at the same time, taking the high and appro- 
 priate ground that he must discharge his duty as an advocate, ac- 
 cording to the rules of his profession and the obligation of his offi- 
 cial oath, whatever might be the result of his course. 
 
 The struggles, in the history of the world, to have in criminal 
 trials an honest judiciary, a fearless jury, and a faithful advocate, 
 
IN DEFENSE OF THE "SAVANNAH PRIVATEERS." 373 
 
 disclose a great deal of wrong and suffering inflicted on advocates 
 silenced by force, trembling at the bar where they ought to be ut- 
 terly immovable in the discharge of their duty — on juries fined and 
 imprisoned, and kept lying in dungeons for years, because they 
 dared, in State prosecutions, to find verdicts against the direction 
 of the court. The provisions of our own Constitution, which se- 
 cure to men trial by jury and all the rights incident to that sacred 
 and invaluable privilege, are the history of wrong against which 
 those provisions are intended to guard in the future. This trial, 
 gentlemen, furnishes a brilliant illustration of the beneficial results 
 of all this care. Nothing could be fairer than the trial which these 
 prisoners have had; nothing more admirable than the attention 
 which you have given to every proceeding in this case. I know all 
 the gentlemen on that jury well enough to be perfectly certain that 
 whatever verdict they render will be given without fear or favor, on 
 the law of the land, as they shall be informed it does exist, on a 
 calm and patient review of the testimony, with a due sympathy for 
 the accused, and yet with a proper respect for the government, so 
 that the law shall be satisfied and individual right protected. 
 
 But, gentlemen, I do believe most sincerely that, unless we have 
 deceived ourselves in regard to the law of the land, I have a right to 
 invoke your protection for these men. The bodily presence, if it 
 could be secured, of those who have been here in spirit by their 
 language, attending on this debate and hovering about these men 
 to furnish them protection — Lee, and Hamilton, and Adams, and 
 Washington, and Jefferson, all whose spirits enter into the prin- 
 ciples for which we contend — would plead in their behalf. I do 
 wish that it was within the power of men, invoking the great Ruler 
 of the Universe, to bid these doors open and to let the revolution- 
 ary sages to whom I have referred, and a Sumter, a Moultrie, a 
 Marion, a Greene, a Putnam, and the other distinguished men who 
 fought for our privileges and rights in the days of old, march in 
 here and look at this trial. There is not a man of them who would 
 not say to you that you should remember, in regard to each of 
 these prisoners, as if you were his father, the history of Abraham 
 when he went to sacrifice his son Isaac on the mount — the spirit of 
 American liberty, the principles of American jurisprudence, and the 
 dictates of humanity, constituting themselves another Angel of the 
 Lord, and saying to you, when the immolation was threatened, 
 " Lay not your hand upon him." 
 
SPEECH OF WILLIAM M. EVARTS, 
 
 For the Prosecution in the Case of the "Savannah Pri- 
 vateers," Indicted for Piracy. 
 
 AT A CIRCUIT COURT OF THE UNITED STATES, HELD AT 
 THE CITY OF NEW YORK, OCTOBER TERM, 1861. 
 
 Analysis of Me. Evaets' Speech. 
 
 Limitation of the responsibility of the 
 jury. 
 
 Principles governing the punishment of 
 crime. 
 
 Wisdom and justice of the pardoning 
 power. 
 
 Elements of the crime of piracy. 
 
 Opinions or views as to property rights 
 in general, no defense. 
 
 An exhibition of force sufficient evi- 
 dence. 
 
 Nature of the defense and province of 
 the jury. 
 
 Privateering under the law of nations, 
 and laws of war. 
 
 Rights of neutral powers, with respect 
 to privateers, in a state of civil war. 
 
 The fact that the South had been recog- 
 nized as belligerents, immaterial. 
 
 The condition of belligerents no protec- 
 tion to citizens. 
 
 Statement of the views advanced by the 
 defense. 
 
 The evidence, as to civil war, and the 
 right of revolution. 
 
 The fact of actual existence of war im- 
 material* 
 
 15. "War defined. — The plea of war a con- 
 
 fession of treason. 
 
 16. Treason no defense against piracy. 
 
 17. The authority of Vattel in harmony 
 
 with the prosecution. 
 
 iS. Duty of government to protect its com- 
 merce and its citizens. 
 
 ig. The novel political questions presented 
 by the defense. 
 
 20. The right of revolution. 
 
 21. The problem of self-government, 
 
 22. Practical object and spirit of govern- 
 
 ment. 
 
 23. Political results of war. 
 
 24. Wisdom and advantages of our political 
 
 system. 
 
 25. The right of secession inconsistent with. 
 
 our institutions. 
 
 26. Views of William Pinckney on the per- 
 
 fection of our government. 
 
 27. Views of Alexander H. Stephens on the 
 
 sanctity of the Union. 
 
 28. Marvelous success of our government 
 
 29. Distinction between power and right. 
 
 30. Good faith no defense.— Case of John 
 
 Brown. 
 
 Mr. Evarts closed the case for the prosecution. He discussed the various 
 questions raised by the prisoners in an able and masterly manner, weaving an 
 instructive and interesting address, full of information in the departments of 
 legal learning, which pertain to the law of nature and nations, and embracing a 
 consideration of the immunities and privileges recognized by the rules of civil- 
 ized warfare. When, and under what circumstances, in law and in morals, are 
 a people justified in invoking the scourge of war; and for what causes have they 
 a right to shatter the foundations of government and society ? The prisoners 
 claimed, that if cause had been shown, the court must recognize the existence of 
 [374] 
 
SPEECH OF WILLIAM M. EVARTS. 375 
 
 a state of civil war, and could not treat the belligerents as insurrectionists mere- 
 ly, but as entitled to all the rights of war. That, in a state of civil war, the 
 right to commission privateers was a legal right, and the letter of marque offered 
 in evidence was, therefore, a legal defense. They claimed that the federal gov- 
 ernment had accorded these rights to the soldiers in the field, and that, there- 
 fore, the court should do likewise with regard to those who carried on warfare 
 on the ocean; and, by way of justification, it was sought to establish a parallel 
 between the war of the revolution and the war of the rebellion. 
 
 In answer to these arguments Mr. Evarts claimed, that the wrongs com- 
 plained of by the South, as constituting just cause for rebellion against the gov- 
 ernment, did not proceed from the government. That there was no parallel be- 
 tween the present controversy and the war with Great Britain in 1776; because 
 the causes for that revolution embraced an exercise of tyranny towards the 
 colonies by the mother country, and an absolute denial of representation in the 
 government. Here there was no pretense either of oppression by the general 
 government, or of any limitation of the right of representation. This branch of 
 the defense was discussed under two heads, the right of secession, and the right 
 of revolution. Under the first, Mr. Evarts gave a historical sketch of the causes 
 and results of the revolution, to show that the war was carried to a successful 
 termination by the people, as one people, and not as independent sovereignties. 
 That although the diplomatic history of the country showed that in some of the 
 early treaties each State was separately named, yet they were invariably grouped 
 as one nation, and the treaties always referred to the commerce of the two 
 countries. Under the second head, he argued, that where a government was de- 
 fective or vicious in its operations, there an inherent right existed to alter or 
 abolish it. But where a. government was universally regarded as the most per- 
 fect of all human governments, it was unjust and wicked to rebel against it. As 
 proof of the perfection of our system he quoted the encomiums that had been 
 passed upon it by some of the wisest statesmen at the South, at the hour of its 
 birth, and at the hour of its attempted dissolution. Owing to the great length 
 of this speech, it became necessary to give that portion of it relating to right of 
 revolution only. The technical portions relative to the bearing of the act of 
 1790, and some minor topics, have been necessarily omitted, from both the argu- 
 ments of Mr. Brady and Mr. Evarts, though referred to in the notes, together 
 with the authorities cited. 
 
 The question of jurisdiction was argued at various stages of the case. It 
 arose from the following language of the statute : ' ' The trial of all offenses 
 which shall be committed upon the high seas, or elsewhere, out of the limits of 
 any State or district, shall be in the district where the offender is apprehended, 
 or into which he may be first brought." It was claimed that the prisoners were 
 first brought into Hampton Roads, in the eastern district of Virginia, and that 
 this court had no jurisdiction. The court held that the clause was in the alter- 
 native, and jurisdiction might be exercised either in the district where the pris- 
 oners were first brought, or in the district where they were apprehended under 
 lawful authority for trial. Mr. Evarts spoke as follows: 
 
 May it please your Honors, and Gentlemen of the 
 Jury: — A trial in a court of justice is a trial of many things be- 
 
376 SPEECH OF WILLIAM M. EVARTS 
 
 sides the prisoners at the bar. It is a trial of the strength of the 
 laws, of the power of the government, of the duty of the citizen, 
 of the fidelity to conscience and the intelligence of the jury. It is 
 a trial of those great principles of faith, of duty, of law, of civil 
 society, that distinguish the condition of civilization from that of 
 barbarism. I know no better instance of the distinction between 
 a civilized, instructed. Christian people, and a rude and barbarous 
 nation, than that which is shown in the assertions of right where 
 might and violence and the rage of passion in physical contest 
 determine everything, and this last sober, discreet, patient, intel- 
 ligent, authorized, faithful, scrupulous, conscientious investigation, 
 under the lights of all that intelligence with which God has favored 
 any of us; under that instruction which belongs to the learned and 
 accredited expounders of the law of an established free govern- 
 ment; under the aid of, and yet not misled by, the genius or elo- 
 quence of advocates on either side. 
 
 But, after all, the controlling dominion of duty to the men be- 
 fore you in the persons of the prisoners, to the whole community 
 around you, and to the great nation for which you now discharge 
 here a vital function for its permanence atiji its safety; your duty 
 to the laws and the government of your country (which, giving its 
 protection, requires your allegiance, and finds its last and final 
 resting-place, both here and in England, in the verdicts of juries); 
 your duty to yourselves requires you to recognize yourselves not 
 only as members of civil society, but as children of the " Father of 
 an Infinite Majesty," and amenable to His last judgment for your 
 acts. Can any of us, then, fail to feel, even more fully than 
 we can express, that sympathies, affections, passions, sentiments, 
 prejudices, hopes, fears, feelings and responsibilities of others than 
 ourselves are banished at once and forever, as we enter the threshold 
 of such an inquiry as this, and never return to us until we have 
 passed from this sacred precinct, and, with our hands on our 
 breasts and our eyes on the ground, can humbly hope that we have 
 done our duty, and our whole duty. 
 
 Something was said to you, gentlemen of the jury, of the un- 
 wonted circumstances of the prosecution, by the learned counsel 
 who, many days ago, and with an impressiveness that has not yet 
 passed away from your memory, opened on behalf of the prisoners 
 the course of this defense. 
 
IN THE CASE OF THE "SAVANNAH PRIVATEERS." 377 
 
 I. Limitation of the responsibility of the jury. 
 
 He has said to you, that the number of those whose fate, for life 
 or for death, hangs on your verdict, is equal to your own; hinting 
 a ready suggestion that that divided responsibility by which twelve 
 men may sometimes shelter themselves, in weighing in the balance 
 the life of a single man, is not yours. Gentlemen, let us under- 
 stand how much of force and effect there is in the suggestion, and 
 how truly and to what extent the responsibility of a jury may be 
 said to include this issue of life and death. In the first place, as 
 jurymen, you have no share or responsibility in the wisdom or the 
 justice of those laws which you are called upon to administer. If 
 there be defects in them; if they have something of that force and 
 severity which is necessary for the maintenance of government and 
 the protection of peace and property, and of life on the high seas: 
 you have had no share in their enactment, and have no charge at 
 your hands of their enforcement. In the next place, you have no 
 responsibility of any kind in regard to the discretion of the repre- 
 sentatives of this government in the course which they choose to 
 take, as to whether they will prosecute or leave unprosecuted. You 
 do not, within the limits of the inquiry presented to you, dispose of 
 the question, why others have not been presented to you; nor may 
 that which has been done in a case not before you, serve as a guide 
 for the subject submitted to your consideration. So, too, you have 
 no responsibility of any kind concerning the course or views of the 
 law which this tribunal may give for your guidance. The court 
 does not make the law, but Congress does. The court declares the 
 law as enacted by the government, and the jury find the facts, giv- 
 ing every scrutiny, every patient investigation, every favor for life, 
 and every reasonable doubt as to the facts, to the prisoners. Hav- 
 ing disposed of that duty, as sober, intelligent and faithful men, 
 graduating your attention only by the gravity of the inquiry, you 
 have no further responsibility. But I need not say to you, gentle- 
 men, that if any civilized'government is to have control of the sub- 
 ject of piracy, if pirates are to be brought within the jurisdiction 
 of the criminal law, the very nature of the crime involves the fact 
 that its successful prosecution necessarily requires that consider- 
 able numbers shall be engaged in it. I am quite certain that, if my 
 learned friends had found in the circumstances of this case nothing 
 which removed it out of the category of the heinous crime of pri- 
 vate plunder at sea, exposing property and life, and breaking up 
 
378 ' SPEECH OF WILLIAM M. EVAETS 
 
 commerce, they would have found nothing in the fact that a ship's 
 crew was brought in for trial, and that the number of that crew 
 amounted to twelve men, that should be pressed to the disturbance 
 of your serene judgment, in any disposition of the case. Now, 
 gentlemen, let us look a little into the nature of the crime, and into 
 the condition of the law. 
 
 2. Principles governing the punishment of crime. 
 
 The penalty of the crime of piracy or robbery at sea stands on 
 our statute books heavier than the penalty assigned for a similar 
 crime committed on land; which is, in fact, similar, so far as con- 
 cerns its being an act of depredation. It may be said, and it is 
 often argued, that, when the guilt of two offenses is equal, society 
 transcends its right and duty when it draws a distinction in its 
 punishments; and it may be said, as has been fully argued to you, 
 at least, by implication, in the course of this case, that the whole 
 duty and the whole responsibility of civil governments, in the ad- 
 ministration of criminal law and the punishment of crime, has to 
 do with retributive vengeance, as it were, on the moral guilt of the 
 prisoner. Now, gentlemen, I need not say to you, who are experi- 
 enced at least in the common inquiries concerning governments 
 and their duties, that, as a mere naked and separate consideration 
 for punishing moral guilt, government leaves, or should leave, 
 vengeance where it belongs — to Him who searches the heart and 
 punishes according to its secret intents — drawing no distinction 
 between the wicked purpose which fully plans, and the final act 
 which executes that purpose. The great, the main duty; the great, 
 the main right of civil society, in the exercise of its dominion over 
 the liberties, lives, and property of its subjects, is the good of the 
 public, in the prevention, the check, the discouragerrient, the sup- 
 pression of crime. And I am sure that there is scarcely one of us 
 who, if guilt, if fault, if vice could be left to the punishment of 
 conscience and the responsibility of the last and great assize, with- 
 out prejudice to society, without injury to'the good of others, with- 
 out, indeed, being a danger and a destruction to all the peace, the 
 happiness, and the safety of communities, would not readily lay 
 aside all his share in the vindictive punishments of guilty men. 
 But society, framed in the form and for the purposes of govern- 
 ment, finds, alas! that this tribunal of conscience, and this last and 
 future accountability of another world, is inadequate to its protec- 
 tion against wickedness and crime in this. 
 
m THE CASE OF THE "SAVANNAH PRIVATEERS." 379 
 
 You will find, therefore, in all, even the most enlightened and 
 most humane codes of laws, that some necessary attention is paid 
 to the predominant interest which society has in preventing crime. 
 The very great difficulty of detecting it, the circumstances of se- 
 crecy, and the chances of escape on the part of the criminal, are 
 considerations which enter into the distribution of its penalties. 
 You will find, in a highly commercial community, like that of En- 
 gland, and to some extent — although, I am glad to say, with much 
 less severity — in our own, which is also a highly commercial com- 
 munity, that frauds against property, frauds against trade, frauds 
 in the nature of counterfeiting and forgery, and all those peaceful 
 and not violent, but yet pernicious interferences with the health 
 and necessary activity of our every-day life, require the infliction 
 of severe penalties for what, when you take up the particular ele- 
 ments of the crime, seems to have but little of the force, and but 
 little of the depth of a serious moral delinquency. 
 
 3. Wisdom and justice of the pardoning power. 
 
 The severity of the penalties for passing counterfeit money are 
 inflicted upon the poor and ignorant who, in so small a matter as a 
 coin of slight value, knowingly and intelligently, under even the 
 strongest impulses of poverty, are engaged in the offense. Now, 
 therefore, when commercial nations have been brought to the con- 
 sideration of what their enactments on the subject of piracy shall 
 be, they have taken into account that the very offense itself re- 
 quires that its commission should be outside of the active and effi- 
 cient protection of civil society; that the commission of the crime 
 involves, on the part of the criminals, a fixed, deliberate determina- 
 tion and preparation; and that the circumstances under which the 
 victims, either in respect of their property or of their lives, are 
 exposed to these aggressions, are such as to make it a part of 
 the probable course of the crime, that the most serious evils and 
 the deepest wounds may be inflicted. When a crime, not con- 
 demned in ethics or humanity, and which the positive enactments 
 of the law have made highly penal, yet contains within itself cir- 
 cumstances that appeal very strongly to whatever authority or 
 magistrate has rightful control of the subject for a special exemp- 
 tion, and special remission, and special concession from the penalty 
 of the law, where and upon what principle does a wise and just, a 
 humane and benignant government, dispose of that question ? I 
 agree that, if crimes which the good of society requires to be sub- 
 
380 SPEECH OP WILLIAM M. EVARTS 
 
 jected to harsh penalties, must stand, always and irrevocably, upon 
 the mere behest of judicial sentence, there would be found an op- 
 pression and a cruelty in some respects, that a community having 
 a conscientious adherence to right and humanity would scarcely 
 tolerate. Where, then, does it wisely bestow all the responsibility, 
 and give all the power that belongs to this adjustment, according 
 to the particular circumstances of the moral and personal guilt, 
 which must be necessary, and is always conceded ? Why, confess- 
 edly, to the pardoning power alluded to on one side or the other 
 — though chiefly on the part of the prisoners' counsel — in the 
 course of this trial. You will perceive at once what the differ- 
 ence is between a court or a jury, or a public prosecuting officer, 
 yielding to particular circumstances of actual or of general qualifi- 
 cation of a crime charged, so that the law shall be thwarted, and 
 the certainty and directness of judicial trial and sentence be made 
 the sport of sympathy, or of casual or personal influences, and 
 placing the pardoning power where it shall be governed by the 
 particular circumstances of each case, so that its exercise shall 
 have no influence in breaking down the authority of law, or in dis- 
 turbing the certainty, directness and completeness of judicial rules. 
 For, it is the very nature of a pardon, committed to the chief 
 magistrate of the federal Union in cases of which this court has 
 jurisdiction, and to the chief magistrate of every State in the Union 
 in cases of which the State tribunals take cognizance, that it is a 
 recognition of the law, and of the sentence of the law, and leaves 
 the laws undisturbed, the rules for the guidance of men unaffected, 
 the power and strength of the government unweakened, the force 
 of the judiciary unparalyzed, and yet disposes of each case in a 
 way that is just, or, if not just, is humane and clement, where the 
 pardon is exercised. 
 
 Now, gentlemen, I shall say nothing more on the subject of 
 pardon. It is a thing with which I have nothing to do; with which 
 this learned court has nothing to do; with which you, as jurymen, 
 have nothing to do, beyond the fact that this beneficent govern- 
 ment of ours has not omitted from its arrangement, in the admin- 
 istration of its penal laws, this divine attribute of mercy. 
 
 4. Elements of the crime of piracy. 
 
 Now, there being the crime of piracy or robbery on the high 
 seas, which the interests of society, the protection of property and 
 of life, the maintenance of commerce, oblige every State and every 
 
m THE CASE OF THE "SAVANNAH PRIVATEERS." 381 
 
 nation, like ours, to condemn — what are the circumstances, what 
 are the acts, that, in view of the law, amount to piracy ? You will 
 understand me that, for the present, I entirely exclude from your 
 consideration any of the particular circumstances which are sup- 
 posed to give to the actual crime perpetrated a public character, 
 lifting it out of the penal law that you administer, and out of the 
 region of private crime, into a field of quite different considera- 
 tions. They are, undoubtedly, that the act done shall be with in- 
 tent of depriving the person who is in possession of property, as its 
 owner, or as the representative of that owner, of that property. 
 That is what is meant by the Latin phrase, with which you are 
 quite as familiar now, at least, as I, ammo furandi — with the in- 
 tention of despoiling the owner of that which belongs to him. 
 And, to make up the crime of robbery on land, in distinction from 
 larceny or theft, as we generally call it (though theft, perhaps, in- 
 cludes all the varieties of crime by which the property of another is 
 taken against his will), robbery includes, and piracy, being robbery 
 at sea, includes the idea that it is done with the application, or the 
 threat, or the presence of force. There must be actual violence, 
 or the presence and exhibition of power and intent to use violence, 
 which produces the surrender and delivery of the property. Such 
 are the ingredients of robbery and piracy. And, gentlemen, these 
 two ingredients are all; and you must rob one or the other of them 
 of this, their poison, or the crime is completely proved, when the 
 fact of the spoliation, with these ingredients, shall have been 
 proved. The use that the robber or the pirate intends to make of 
 the property, or the justification which he thinks he has by way of 
 retaliation, by way of injury, by way of provocation, by way of any 
 other occasion or motive that seems justifiable to his own con- 
 science and his own obedience to any form whatever of the higher 
 law, has nothing to do with the completeness of the crime, unless 
 it come to what has been ad\«erted to by the learned counsel, and 
 displayed before you in citations from the law-books — to an honest, 
 however much it may be mistaken and baseless, idea that the prop- 
 erty is really the property of the accused robber, of which he is 
 repossessing himself from the party against whom he makes the 
 aggression. 
 
 5. Opinions or views as to property rights in general, 
 NO defense. 
 
 Now, unless, in the case proved of piracy, or robbery on land, 
 there be some foundation for the suggestion that the willful and in- 
 
382 SPEECH OF WJLLIAM M. EVART3 
 
 tentional act of depriving a party of his property rests upon a 
 claim of the robber, or the pirate, that it is his own property (how- 
 ever baseless may be the claim), you cannot avoid, you cannot 
 defeat, the criminality of the act of robbery, within the intention 
 of the law, by showing that the robber or the pirate had, in the 
 protection of his own conscience, and in the government of his own 
 conduct, certain opinions or views that made it right for him to 
 execute that purpose.' Thus, for instance, take a case of morals: 
 A certain sect of political philosophers have this proposition as a 
 basis of all their reasoning on the subject of property, that is, that 
 property, the notion of separate property in anything, as belonging 
 to anybody, is theft; that the very notion that I can own anything, 
 whatever it may be, and exclude other people from the enjoyment 
 of it, is a theft made by me, a wrongful appropriation, when all 
 the good things in this world, in the intention of Providence, were 
 designed for the equal enjoyment of all the human race. Well, 
 now, a person possessed of that notion of political economy and of 
 the moral rights and duties of men, might seek to avail himself of 
 property owned and enjoyed by another, on the theory that the 
 person in possession of it was the original thief, and that he was 
 entitled to share it. I need not say to you, that all these ideas and 
 considerations have nothing whatever to do with the consideration 
 of the moral intent with which a person is despoiled of his property. 
 Now, with regard to force, I do not understand that my learned 
 friends really make any question, seriously, upon the general prin- 
 ciples of what force is, or upon the facts of this case, that this 
 seizure of the Joseph by the Savannah had enough of force — the 
 threat, the presence and exhibition of power — and of the intent to 
 use it, to make the capture one of force, if the other considera- 
 tions which are relied upon do not lift it out of that catalogue of 
 crime. 
 
 6. An exhibition of force sufficient evidence. 
 
 It is true that the learned counsel who last addressed you, 
 seemed to intimate in some of his remarks, near the close of his 
 very able and eloquent and interesting address, that there was not 
 any force about it, that the master of the Joseph was not threat- 
 ened, that there was no evidence that the cannon was even loaded, 
 and that it never had been fired off. Well, gentlemen, the very 
 illustration which he used of what would be a complete robbery on 
 land — the aggressor possessing a pistol and asking, in the politest 
 
m THE CASE OF THE "SAVANNAH PRIVATEERS." 383 
 
 manner, for your money — relieves me from arguing that you must 
 fire either a cannon or a pistol before you have evidence of force. 
 If our rights stand on that proposition, that when a pistol is pre- 
 sented at our breast, and we surrender our money, we must wait 
 for the pistol to be fired before the crime is completed, you will see 
 that the terrors of the crime of robbery do not go very far towards 
 protecting property or person, which is the object of it. 
 
 7. Nature of the defense and province of the jury. 
 
 When, gentlemen, the government, within a statute which, in 
 the judgment of the court, shall be pronounced as being lawfully 
 enacted under the Constitution of the United States, has completed 
 the proof of the circumstances of the crime charged, it is entitled 
 at your hands to a conviction of the accused, unless, by proof ad- 
 duced on his part, he shall so shake the consistency and complete- 
 ness of the proof on the part of the government, or shall introduce 
 such questions of uncertainty and doubt, that the facts shall be 
 disturbed in your mind, or unless he shall show himself in some 
 predicament of protection or right under the law (and by " under 
 the law " I mean, under the law of the land where the crime is 
 punishable, and where the trial and the sentence are lawfully attrib- 
 uted to be), or unless he shall introduce some new facts which, 
 conceding the truthfulness and the sufficiency of the case made by 
 the government, shall still interpose a protection, in some form, 
 against the application of the penalty of the law. I take it that I 
 need not say to you that this protection or qualification of the 
 character of the crime must be by the law of the land; and whether 
 it comes to be the law of the land by its enactment in the statutes 
 of the United States, or by the adoption and incorporation into the 
 law of the land of the principles of the law of nations, is a point 
 quite immaterial to you. You are not judges of what the statutes 
 of the United States are, except so far as their interpretation may 
 rightfully become a subject of inquiry by the jury, in the sense of 
 whether the crime is within the intent of the act, in the circum- 
 stances proved. You are not judges of what the law of nations is, 
 in the first place; nor are you judges of how much of the law of 
 nations has been adopted or incorporated into the system of our 
 government and our laws, by the authority of its Congress or of 
 its courts. 
 
 Whether, as I say to you, there is a defense, or protection, or 
 qualification of the acts and transactions which, in their naked 
 
384 SPEECH OF WILLIAM M. EVARTS 
 
 nature and in their natural construction, are violent interferences 
 with the rights of property, against the statute, and the protection 
 of property intended by the statute; whether the circumstances do 
 change the liability or responsibility of the criminal, by the intro- 
 duction of a legal defense under the law of nations, or under the 
 law of the land in any other form, is a question undoubtedly for 
 the court, leaving to you always complete control over the ques- 
 tions of fact that enter into the subject. So that the suggestion 
 also dropped by my learned friend, at the close of his remarks, that 
 any such arrangement would make the jury mere puppets and give 
 them nothing to do, finds no place. It would not exclude from 
 your consideration any matters of fact which go to make up the 
 particular condition of public affairs, or of the public relations of 
 the community towards each other, in these conditions which dis- 
 turb the land, provided the court shall hold and say that, on such 
 a state of facts existing, or being believed by you, there is intro- 
 duced a legal qualification or protection against the crime charged. 
 But if it should be held that all these facts and circumstances, to 
 the extent and with the effect that is claimed for them by the 
 learned counsel as matter of fact, yet as matter of law leave the 
 crime where it originally stood, being of their own nature such as 
 the principles of law do not permit to be interposed as a protection 
 and a shield, why, then you take your larw on the subject in the 
 same way as you do on every other subject, from the instructions 
 of the learned and responsible bench, whose errors, if committed, 
 can be corrected; while your confusion between your province and 
 the province of the court would, both in this case and in other cases, 
 and sometimes to prejudice of the prisoner, and against his life and 
 safety when prejudices ran that way, confound all distinctions; 
 and, in deserting your duty to usurp that of another portion of the 
 court, you would have done what you could, not to uphold, but to 
 overthrow the laws of your country and the administration of jus- 
 tice according to law, upon which the safety of all of us, at all 
 times, in all circumstances, depends. 
 
 Mr. Evarts here reviewed the evidence showing the facts, substantially as 
 stated at page 343. He then spoke of the imperative duty which devolved upon 
 government to protect its citizens and their property. He claimed upon the evi- 
 dence that the acts of the prisoners vi'ere entirely voluntary, that their motives 
 were selfish, and proceeded from a desire for private gain and not patriotic de- 
 votion ; and argued that there was nothing in the acts of Congress relating to 
 piracy contrary to humanity or common sense. That the United States, by 
 treaty with France and the Netherlands, agreed that any person of either nations 
 
IN THE CASE OF THE "SAVANNAH PRIVATEERS." 385 
 
 taking letters of marque or commissions from any country with which either 
 might be at war, should be punished as pirates. (Citing Treaty of Commerce 
 with France, Feb. 6th, 1778, art. 21, Stat, at L. vol. 8, p. 24 ; Treaty between 
 Netherlands and U. S., 1872, art. 19, Stat, at L. vol. 8, p. 44.) That it was the 
 uniform policy of our government to extirpate private war from the ocean. 
 After referring to the evidence to show that there has been sufficient exhibition 
 of force on the part of the defendants, he continued : 
 
 8. Privateering under the law of nations, and laws 
 
 OF WAR. 
 
 I do not know that I need say anything to you about privateer- 
 ing, further than to present somewhat distinctly what the qualifica- 
 tions, what the conditions, and what the purposes of privateering 
 are. In the first place, privateering is a part of war, or is a part of 
 the preliminary hostile aggressions which are in the nature of a 
 forcible collision between sovereign powers. Now, what is the law 
 of nations on this subject, and how does there come to be a law of 
 nations; and what is its character, what are its sanctions, and who 
 are parties to it ? We all know what laws are when they proceed 
 from a government and operate upon its citizens and its subjects. 
 Law, then, comes with authority, by right, and so as to compel 
 obedience; and laws are always framed with the intent that there 
 shall be no opportunity of violent or forcible resistance to them, or 
 of violent or forcible settlement of controversies under them, but 
 that the power shall be submitted to, and the inquiry as to right 
 proceed regularly and soberly under the civil and criminal tribunals. 
 But when we come to nations, although they have relations towards 
 each other, although they have duties towards each other, although 
 they have rights towards each other, and although, in becoming 
 nations, they nevertheless are all made up of human beings, under 
 the general laws of human duty, as given by the common lawgiver, 
 God, yet there is no real superior that can impose law over them 
 or enforce it against them. And it is only because of that, that 
 war, the scourge of the human race — and it is the great vice and 
 defect of our social condition that it cannot be avoided — comes 
 in as the only arbiter between powers that have no common su- 
 perior. I am sure that the little time I shall spend upon this topic 
 will be serviceable; as, also, in some more particular considerations 
 as to what is called a state of war, and as to the conditions which 
 give and create a war between the different portions of our unhappy 
 country and its divided population. 
 
 So, then, nations have no common superior whom they recog- 
 23 
 
386 SPEECH OF WILLIAM M. EVART8 
 
 nize under this law, which they have made for themselves in the 
 interest of civilization and humanity, and which is a law of natural 
 right and natural duty, so far as it can be applied to the relations 
 which nations hold to one another. They recognize the fact that 
 one nation is just as good, as matter of right, as another; that 
 whether it be the great powers of Russia, of England, of France, 
 of the United States of America, or of Brazil, or whether it be one 
 of the feeble and inferior powers, in the lowest grade, as one of the 
 separate Italian kingdoms, or the little republic of San Marino, 
 whose territories are embraced within the circuit of a few leagues, 
 or one of the South American States, scarcely known as a power in 
 the affairs of men; yet, under the proposition that the States are 
 equal in the family of nations, they have a right to judge of their 
 quarrels, and, finding occasions for quarrel, have a right to assert 
 them, as matter of force, in the form of war. And all the other 
 nations, however much their commerce may be disturbed and in- 
 jured, are obliged to concede certain rights that are called the 
 rights of war. We all understand what the rights of war are on 
 the part of two people fighting against each other. A general right 
 is to do each other as much injury as they can; and they are very 
 apt to avail themselves of that right. There are certain meliora- 
 tions against cruelty, which, if a nation should transgress, probably 
 'Other nations might feel called upon to suppress the extravagance. 
 IBnt, as a general thing, while two nations are fighting, other nations 
 stand by and do not intervene. But the way other nations come to 
 have any interest, and to have anything to say whether there is war 
 between sovereign powers, grows out of certain rights of war which 
 the law of nations gives to the contending parties against neutrals. 
 For instance ; Suppose Spain and Mexico were at war. Well, you 
 would isay, what is that to us ? It is this to us. On the high seas, 
 a naval vessel of either power has a right, in pursuit of its designs 
 against the <enemy, to interrupt the commerce of other nations to a 
 certain extent It has a right of visitation and of search of vessels 
 that apparently carry our flag. Why ? In order to see whether the 
 vessel be really our vessel, or whether our flag covers the vessel of 
 its enemy, or the property of its enemy. It has also a right to push 
 its inquiries .farther, and if it iinds it to be a vessel of the United 
 States of America, to see whether we are carrying what are called 
 contraband of war into the ports of its enemy; and if so, to con- 
 fiscate it and her. Each of the powers has a right to blockade the 
 ports of the other, and thus to break up the trade and pursuits of 
 
IN- THE CASE OF THE " SAVANNAH PRIVATEERS." 387 
 
 the people of other nations; and that without any quarrel with the 
 other people. And so you see, by the law of nations, this state of 
 war which might at first seem to be only a quarrel between the two 
 contending parties, really becomes, collaterally, and in some cases 
 to a most important extent, a matter of interest to other nations of 
 the globe. But however much we suffer, however much we are 
 embarrassed (as, for example, in the extreme injury to British com- 
 merce and British interests now inflicted in this country — the 
 blockade keeping out their shipping and preventing shipments of 
 cotton to carry on their industry), we must submit, as the English 
 people submit, in the view their government has chosen to take of 
 these transactions. 
 
 Now, gentlemen, this being the law of nations, you will per- 
 ceive that, as there is no human earthly superior, so there are no 
 courts that can lay down the law, as our courts do for our people, 
 or as the courts of England do for their people. There are no 
 courts that can lay down the law of nations, so as to bind the 
 people of another country, except so far as the courts of that 
 country, recognizing the sound principles of morality, humanity 
 and justice obtaining in the government and conduct of nations 
 towards each other, adopt them in their own courts. So, when my 
 learned friends speak of the law of nations as being the law that is 
 in force here, and that may protect these prisoners in this case 
 against the laws of the United States of America, why, they speak 
 in the sense of lawyers, or else in a sense that will confuse your 
 minds, that is to say, that the law of nations, as the court will ex- 
 pound and explain it, has or has not a certain effect upon what 
 would be otherwise the plain behests of the statute law. 
 
 9. Rights of neutral powers, with respect to privateers, 
 
 IN A state of civil WAR. 
 
 Now, it is a part of the law of nations, except so far as between 
 themselves they shall modify it by treaty (two instances of which I 
 have read in the diplomacy of our own country, and a most ex- 
 tensive instance of which is to be found in the recent treaty of 
 Paris, whereby the law of nations, in respect to privateering, has 
 been so far modified as to exclude privateering as one of the means 
 of war), outside of particular arrangements made by civilized na- 
 tions, it was a part of the original law of war prevailing among 
 nations, that any nation engaged in war might fit out privateers in 
 aid of its belligerent or warlike purposes or movements. No diffi- 
 
388 SPEECH OF WILLIAM M. EVARTS 
 
 culty arose about this when war sprang up between two nations 
 that stood before the world in their accredited and acknowledged 
 independence. If England and France went to war, or if England 
 and the United States, as in 1812, went to war, this right of fitting 
 out privateers would obtain and be recognized. But there arises, 
 in the affairs of nations, a condition much more obscure and un- 
 certain than this open war between established powers, and that is, 
 when dissension arises in the same original nation; when it pro- 
 ceeds from discontent, sedition, private or local rebellion, into the 
 inflammation of great military aggression; and when the parties 
 assume, at least (assume, I say), to be rightfully entitled to the po- 
 sition of powers, under the law of nations, warring against one 
 another. The South American States, in their controversy which 
 separated them from the parent country, and these States when 
 they were colonies of Great Britain, presented instances of these 
 domestic dissensions between the different parts of the same gov- 
 ernment, and the rights of war were claimed. Now, what is the 
 duty of other nations in respect to that ? Why, their duty and right 
 is this, that they may either accord to these struggling, rebellious, 
 revolted populations the rights of war, so far as to recognize them 
 as belligerents, or not; but whether they will do so or not, is a 
 question for their governments, and not for their courts sitting un- 
 der and by authority of their governments. For instance, you can 
 readily see that the great nations of the earth, under the influences 
 upon their commerce and their peace which I have mentioned, 
 may very well refuse to tolerate the quarrel as being entitled to the 
 dimity of war. They may say: No, no; we do not see any occa- 
 sion for this war, or any justice or benefit that is to be promoted 
 by it; we do not see the strength or power that is likely to make it 
 successful; and we will not allow a mere attempt or effort to throw 
 us into the condition of submitting to the disturbance of the peace, 
 or the disturbance of the commerce of the world. Or, they may 
 say: We recognize this right of incipient war to raise itself and 
 fairly contend against its previous sovereign — not necessarily from 
 any sympathy, or taking sides in it, but it is none of our affair; 
 and the principles of the controversy do not prevent us from giving 
 to them this recognition of their supposed rights. Now, when they 
 have done that, they may carry their recognition of right and power 
 as far as they please, and stop where they please. They may say: 
 We will tolerate the aggression by public armed vessels on the seas, 
 and our vessels shall yield the right of visitation and search to 
 
IN THE CASE OF THE "SAVANNAH PRIVATEERS." 389 
 
 them. They may say: We will extend it so far as to include the 
 right of private armed vessels, and the rights of war may attend 
 them; or they may refuse to take this last step, and say: We will 
 not tolerate the. business of privateering in this quarrel. And, 
 whatever they do or say on that subject, their courts of all kinds 
 will follow. 
 
 lo. The fact that the South had been recognized as 
 
 BELLIGERENTS, IMMATERIAL. 
 
 Apply this to the particular trouble in our national affairs that 
 is now progressing to settle the fate of this country. France and 
 England have taken a certain position on this subject. I do not 
 know whether I accurately state it (and I state it only for the pur- 
 pose of illustration, and it is not material), but, as I understand it, 
 they give a certain degree of belligerent right, so that they would 
 not regard the privateers on the part of the Southern rebellion as 
 being pirates, but they do not accord succor or hospitality in their 
 ports to such privateers. Well, now, suppose that one of these 
 privateers intrudes into their ports and their hospitalities, and 
 claims certain rights. Why, the question, if it comes up before a 
 court in Liverpool or London, will be: Is the right within the credit 
 and recognition which their government has given ? And only that. 
 So, too, our government took the position in regard to the revolting 
 States of South America, that it would recognize them as belliger- 
 ents, and that it would not hang, as pirates, privateers holding 
 commissions from their authority. But when other questions came 
 up, as to whether a particular authority from this or that self-styled 
 power should be recognized, our government frowned upon it, and 
 would not recognize it. With regard to Captain Aury, who styled 
 himself Generalissimo of the Floridas, or something of that kind, 
 when Florida was a Spanish province, our courts said: We do not 
 know anything about this; his commissions are good for nothing 
 here; our government has not recognized any such contest or incip- 
 ient nationality as this. So, too, in another case, where there was 
 an apparent commission from one struggling power, the court say: 
 Our government does not recognize that power, and we do not, in 
 giving any rights of war to it; but the court say, it appears in the 
 proof that this vessel claims to have had a commission from Buenos 
 Ayres, another contending power; if so, that is a power which our 
 government recognizes; and the case must go down for further 
 proof on that point. 
 
390 SPEECH OF WILLIAM M. EVARTS 
 
 I confess that, if the views of my learned friends are to prevail 
 in determining questions of crime and responsibility under the laws 
 and before the court, and are to be accepted and administered, I 
 do not see that there is any government at all. For you have every 
 stage of government: first, government of right; next, a govern- 
 ment in fact; next, a government trying to make itself a fact; and, 
 next, a government which the culprit thinks ought to be a fact. 
 Well, if there are all these stages of government, and all these au- 
 thorities and protections, -which may attend the acts of people all 
 over the world, I do not see but every court and every jury must, 
 finally, resolve itself into the great duty of searching the hearts of 
 men and putting its sanctions upon pure or guilty secret motives, 
 or notions, or interpretations of right and wrong — a task to which 
 you, gentlemen of the jury, I take it, feel scarcely adequate. 
 
 II. The condition of belligerents no protection to 
 
 CITIZENS. 
 
 Now, gentlemen, I have perhaps wearied you a little upon this 
 subject; because it is from some confusion in these ideas: first, of 
 what the law of nations permits a government to do, and how it 
 intrudes upon and qualifies the laws of that government; and, sec- 
 ond, upon what the rights are that grow out of civil dissensions, as 
 towards neutral powers, that some difficulty and obscurity are in- 
 troduced into this case. 
 
 If the court please, I maintain these propositions in conformity 
 with the views I have heretofore presented: first, that the law of 
 the land is to determine whether this crime of piracy has been 
 committed, subject only to the province of the jury in passing upon 
 the facts attending the actual perpetration of the offense; and, 
 second, upon all the questions invoked to qualify, from the public 
 relations of the hostile or contending parties in this controversy, 
 the attitude that this government holds towards these contending 
 parties is the attitude that this court, deriving its authority from 
 this government, must necessarily hold towards them. 
 
 I have argued this matter of the choice and freedom of a gov- 
 ernment to say how it will regard these civil dissensions going on 
 in a foreign nation, as if it had some application to this contro- 
 versy, in which we are the nation, and this court is the court of 
 this nation. 
 
 But, gentlemen, the moment I have stated that, you will see that 
 there is not the least pretense that there is any dispensing power in 
 
IN THE CASE OF THE "SAVANNAH PRIVATEERS." 391 
 
 the court, or that there has been any dispensing power exercised 
 by our government, or that there has been any pardon, or any 
 amnesty, or any proclamation, saving from the results of crime 
 against our laws any person engaged in these hostilities, who at any 
 time has owed allegiance and obedience to the government of the 
 United States. Therefore here we stand, really extricated from 
 all the confusion, and from all the wideness of controversy and of 
 comment that attends these remote considerations of this case, that 
 have been pressed upon your attention, as if they were the case it- 
 self, on the part of our learned friend. 
 
 Mr. Evarts here discussed the constitutionality of the act of 1790, and 
 claimed that a citizen who accepted a commission, even from a foreign 
 power, nevertheless continued to be a citizen v?ithin the meaning of the act. 
 (Citing U. S. V. Pirates, 5 Wheat. 202 ; " The Invincible," Opinions Atty.-Gen. 
 vol. 3, p. 120.) He argued that Congress had power to govern its citizens on the 
 high seas, notwithstanding it had no common-law jurisdiction on the subject 
 of crimes. He then continued : 
 
 12. Statement of the views advanced by the defense. 
 
 Now, gentlemen, if the court please, I come to a consideration 
 of the political theories or views on which these prisoners are 
 sought to be protected against the penalties of this law. In that 
 argument, as in my argument, it must be assumed that these penal- 
 ties, but for those protections, would be visited upon them; for we 
 are not to be drawn hither and thither by this inquiry, and to have 
 it said, at one time, that the crime itself, in its own nature, is not 
 proved, and, at another time, that, if it be proved, these are de- 
 fenses. I have said all I need to say, and all I should say, about 
 the crime itself. The law of the case on that point will be given 
 to you by the court, and if it should be, as I suppose it must, in 
 accordance with that laid down by the court in the circuit of Penn- 
 sylvania, then, as my learned friend Mr. Brady has said of that, 
 that he could not see how the jury could find any verdict but 
 guilty, it necessarily follows, if that is a sound view of the law, that 
 you cannot find any other verdict but guilty. I proceed, there- 
 fore, to consider these other defenses which grow out of the particu- 
 lar circumstances of the piracy. 
 
 Now, there are, as I suggested, three views in which this subject 
 of the license, or authority, or protection against our criminal laws 
 in favor of these prisoners is urged, from their connection with 
 particular occurrences disclosed in the evidence. One is, that they 
 
392 SPEECH OF WILLIAM M. EVARTS 
 
 are privateers; but I have shown you that, to be privateers, their 
 commission must come from an independent nation, or from an 
 incipient nation which our government recognizes as such. There- 
 fore, they fail entirely to occupy that explicit and clear position 
 under the law of the land and the law of nations. But, they 
 say, they are privateers either of a nation or a power that exists, 
 as the phrase is, de jure, that has a right the same as we, or En- 
 gland, or France; or of a power that has had sufficient force and 
 strength to establish itself, as matter of fact. Without considering 
 the question of right, as recognized under the system of nations, 
 they contend, and with a great deal of force and earnestness in 
 the impression of their views upon the jury, and great skill and 
 discretion in handling the matter; they contend that there is a 
 state of civil war in this country, and that a state of civil war gives 
 to all nations engaged in it, against the government with which 
 they are warring, rights of impunity, of protection, of respect, of 
 regard, of courtesy, which belong to the laws of war; and that, 
 without caring to say whether they are a government or ever will 
 be a government, so long as they fight they cannot be punished. 
 
 That is the proposition; there is nothing else to it. They come 
 down from the region of de jicre government and de facto govern- 
 ment, and have nothing to prove but the rage of war on the part 
 of rebels, in force enough to be called war. Then they say that, 
 by their own act, they are liberated from the laws, and from their 
 duty to the laws, which would otherwise, they admit, have sway 
 over them, and against which they have not as yet prevailed. That 
 is the proposition. 
 
 Another proposition on which they put themselves is, that what- 
 ever may be the law, and whatever the extent of the facts, if any 
 of these persons believed that there was a state of war, rightful to 
 be recognized and believed, in good faith, that they were fighting 
 against the United States government, they had a right to seize the 
 property of United States citizens; and that, if they believed that 
 they constituted part of a force co-operating, in any form or effect, 
 with the military power which has risen up against the United 
 States of America, then, so long as they had that opinion, they, by 
 their own act, and their own construction of their own act, impose 
 the law upon this government, and upon this bench, and upon this 
 jury, and compel you to say to them that if, in taking, in a manner 
 which would have been robbery, this vessel, the Joseph, they were 
 also fighting against the United States of America, they have not 
 committed the crime of piracy. 
 
IN THE CASE OF THE "SAVANNAH PRIVATEERS." 393 
 
 13. The evidence, as to civil war, and the right of 
 revolution. 
 
 Now, if the court please, and gentlemen of the jury, let us, be- 
 fore we explore and dissect these propositions; before we discover 
 how utterly subversive they are of any notions of government, of 
 fixity in the interpretation of the law, or certainty in the enforce- 
 ment of it; let us see what you will fairly consider as being proved, 
 as matter of fact, concerning the condition of aifairs in this country. 
 Let us see what legal discrimination or description of this state of 
 things is likely to be significant and instructive, in determining the 
 power and authority of the government, and the responsibility of 
 these defendants. They began with an ordinance of South Caro- 
 lina, passed on the 20th of December of last year, which in form and 
 substance simply annulled the ordinance of that State with which, 
 as they say, they ratified or accepted the Constitution of the United 
 States. They then went on with similar proceedings on the part of 
 the States of Georgia, Alabama, Mississippi, and Florida, showing 
 the establishment and adoption of a provisional Constitution, by 
 which they constituted and called themselves the Confederate 
 States of America. They proved, then, the organization of the 
 government, the election of Mr. Davis and Mr. Stephens as Presi- 
 dent and Vice-President, and the appointment of secretaries of war 
 and of the navy, and other portions of the civil establishment. 
 They proved, then, the occurrences at Fort Sumter, and gave par- 
 ticular evidence of the original acts at Charleston — the firing on 
 the Star of the West, and the correspondence which then took 
 place between Major Anderson and the governor of South Caro- 
 lina. They then went on to prove the evacuation of Fort Moultrie; 
 the storming of Fort Sumter; the proclamation of the President of 
 the United States, of the isth of April, calling for 75,000 troops; 
 Mr. Davis' proclamation, of the 17th of April, inviting privateers; 
 and then the President's proclamation, of the 19th of April, de- 
 nouncing the punishment of piracy against privateers, and putting 
 under blockade the coasts of the revolted States. The laws about 
 privateering passed by what is called the Confederate government, 
 have also been read to you; and this seems to complete the docu- 
 mentary, and constitutional, and statutory proceedings in that dis- 
 affected portion of the country. But what do the prisoners prove 
 further? Thwt an actual military conflict and collision com- 
 menced, has proceeded, and is now raging in this country, wherein 
 we find not one section of the country engaged in a military con- 
 
394 SPEECH OF WILLIAM M. EVAETS 
 
 test with another section of the country; pot two contending fac- 
 tions, in the phrase of Vattel, dividing the nation for the sake of 
 national power; but the government of the United States, still 
 standing, without the diminution of one tittle of its power and dig- 
 nity; without the displacement or disturbance of a single function 
 of its executive, of its legislative, of its judicial establishments; 
 without the disturbance or the defection of its army or its navy; 
 without any displacement in or among the nations of the world; 
 without any retreat, on its part, or any repulsion, on the part of 
 any force whatever, from its general control over the affairs of the 
 nation, over all its relations to foreign States, over the high seas, 
 and over every part of the United States themselves, in their whole 
 length and breadth, except just so far as military occupation and 
 military contest have controlled the peaceful maintenance of the 
 authority and laws of the government. 
 
 Now, this may be conceded for all sides of the controversy. I 
 do not claim any more than these proofs show, and what we all 
 know to be true; and I am but fair in conceding that they do show 
 all the proportions and extent which make up a contest by the 
 forces of the nation, as a nation, against an armed array, with all 
 the form and circumstances, and with a number and strength, 
 which make up military aggression and military attack on the part 
 of these revolting or disaffected communities or people. 
 
 14. The fact of actual existence of war immaterial. 
 
 Now, some observations have been made, at various stages of 
 this argument, of the course the government has taken in its decla- 
 ration of a blockade, and in its seizure of prizes by its armed 
 vessels, and its bringing them before the prize courts ; and my 
 learned friend, Mr. Brady, has done me the favor to allude to some 
 particular occasion on which I, on behalf of the goverment, in the 
 admiralty court, have contended for certain principles which would 
 lead to the judicial confiscation of prizes under the law of the land, 
 or under the law of nations adopted and enforced as part of the 
 law of the land. Well, gentlemen, I understand and agree that, 
 for certain purposes, there is a condition of war which forces 
 itself on the attention and the duty of governments, and calls on 
 them to exert the power and force of war for their protection and 
 maintenance. And I have had occasion to contend — and the 
 learned courts have decided — that this nation, undertaking to sup- 
 press an armed military rebellion which arrays itself, by land and 
 
IN THE CASE OF THE "SAVANNAH PRIVATEERS." 395 
 
 by sea, in the forms of naval and military attack, has a right to 
 exert — under the necessary principles which control and require 
 the action of a nation for its own preservation, in these circum- 
 stances of danger and of peril — not only the usual magisterial force 
 of the country; not only the usual criminal laws; not only such 
 civil posses or aids to the officers of the law as may be obtained 
 for their assistance; but to take the army and the navy, the strength 
 and the manhood of the nation, which it can rally around it, and 
 in every form, and by every authority, human and divine, suppress 
 and reduce a revolt, a rebellion, a treason, that seeks to overthrow 
 this government in, at least, a large portion of its territory, and 
 among a large portion of its people. In doing so, it may resort, as 
 it has resorted, to the method of a warlike blockade, which, by 
 mere force of naval obstruction, closes the harbors of the disaffected 
 portion of the country against all commerce. Having done that, 
 it has a right, in its admiralty courts, to adjudicate upon and con- 
 demn as prizes, under the laws of blockade, all vessels that shall 
 seek to violate the blockade. Nor, gentlemen, have. I ever denied, 
 nor shall I here deny, that, when the proportions of a civil dis- 
 sension or controversy come to the port and dignity of war, good 
 sense and common intelligence require the government to recognize 
 it as a question of fact, according to the actual circumstances of 
 the case, and to act accordingly. I, therefore, have no difficulty in 
 conceding that, outside of any question of law and right; outside 
 of any question as to whether there is a government down there, 
 whether nominal or real, or that can be described as having any 
 consistency of any kind, under our law and our government, there 
 is prevailing in this country a controversy, which is carried on by 
 the methods, and which has the proportions and extent, of what 
 we call war. 
 
 15. War defined. — The plea of war a confession of 
 
 TREASON. 
 
 War, gentlemen, as distinguished from peace, is so distinguished 
 by this proposition: that it is a condition in which force on one 
 side and force on the other are the means used in the actual pros- 
 ecution of the controversy. Now, gentlemen, if the court please, 
 I believe that that is all that can be claimed, and all that has been 
 claimed, on behalf of these prisoners, in regard to the actual facts 
 and the condition of things in this country. And I admit that, if 
 this government of ours were not a party to this controversy; if it 
 
396 ' SPEECH OF WILLIAM M. EVARTS 
 
 looked on it from the outside, as England and France have done, 
 our government would have had the full right to treat these con- 
 tending parties, in its courts and before its laws, as belligerents, en- 
 gaged in,, hostilities, as it would have had an equal right to take the 
 opposite course. Which course it would have taken, I neither 
 know, nor should you require to know. 
 
 But I answer to the whole of this, if the court please, that it is 
 a war in which the government recognizes no right whatever on the 
 part of the persons with whom it is contending; and that, in the 
 eye of the law as well as in the eye of reason and sound political 
 morality, every person who has, from the beginning of the first act 
 of levying war against the United States until now, taken part in 
 this war, actively and effectively, in any form; who has adhered to 
 the rebels; who has given aid, information, or help of any kind, 
 wherever he lives, whether he sends it from New Hampshire or 
 New York, from Wisconsin or from Baltimore, whether he be found 
 within or without the armed lines, is, in his own overt actions or 
 open espousal of the side of this warring power against the govern- 
 ment of the United States, a traitor and a rebel. I do not know 
 that there is any proposition whatever, of law, or any authority 
 whatever, that has been adduced by my learned friends, in which 
 they will claim, as matter of law, that they are not rebels. I in- 
 vited the attention of my learned friends, as I purposed to call that 
 of the court, to the fact that the difficulty about all this business 
 was, that the plea of authority or of war, which these prisoners in- 
 terposed against the crime of piracy, was nothing but a plea of their 
 implication in treason. I would like to hear a sober and solemn 
 proposition from any lawyer, that a government, as matter of law, 
 and a court, as matter of law, cannot proceed on an infraction of a 
 law against violence either to person or property, instead -of pro- 
 ceeding on an indictment for treason. The facts proved must, of 
 course, maintain the personal crime; and there are many degrees 
 of treason, or facts of treason, which do not include violent crime. 
 But to say that a person who has acted as a rebel cannot be in- 
 dicted as an assassin, or that a man who has acted on the high 
 seas as a pirate, if our statutes so pronounce him, cannot be in- 
 dicted, tried and convicted as a pirate, because he could plead, as 
 the shield of his piracy, that he committed it as part of his treason, 
 is, to my apprehension, entirely new, and inconsistent with the first 
 principles of justice. 
 
 This very statute of piracy is found in a general crimes act. 
 
IN THE CASE OF THE "SAVANNAH PRIVATEERS." 397 
 
 The first section is: "If any person or persons owing allegiance to 
 the United States of America shall levy war against them, or shall 
 adhere to their enemies, giving them aid and comfort within the 
 United States, or elsewhere, and shall be thereof convicte(4" " such 
 person or persons shall be adjudged guilty of treason against the 
 United States, and shall suffer death." 
 
 i6. Treason no defense against piracy; 
 
 Now, you will observe that treason is not a defense against 
 piracy; nor is good faith in treason a defense against treason, or a 
 defense against piracy. What would be the posture of these prison- 
 ers, if, instead of being indicted for piracy, they were indicted for 
 treason ? Should we then hear anything about this notion that 
 there was a war raging, and that they were a party engaged in the 
 war ? Why, that is the very definition of treason. Against whom 
 is the war ? Against the United States of America. Did you owe 
 allegiance to the United States of America? ~Yes, the citizens did; 
 and I need not say to you, gentlemen, that those residents who are 
 not citizens owe allegiance. There is no dispute about that. 
 Those foreigners who are living here unnaturalized are just as much 
 guilty of treason, if they act treasonably against the government, as 
 any of our own citizens can be. That is the law of England, the 
 law of treason, the necessary law of civilized communities. If we 
 are hospitable, if we make no distinction, as we do not, in this 
 country between citizens and foreigners resident here and protected 
 by our laws, it is very clear we cannot make any distinction when 
 we come to the question of who are faithful to the laws. So, there- 
 fore, if they were indicted for treason, what would become of all 
 this defense ? It would be simply a confession in open court that 
 they were guilty of treason. Well, then, if they fell back on the 
 proposition: "We thought, in our consciences and judgments, that 
 either these States had a right to secede, or that they had a right 
 to carry on a revolution; that they were oppressed, and were entitled 
 to assert themselves against an oppressive government, and we, in 
 good faith, and with a fair expectation of success, entered into it;" 
 what would become of them ? The answer would be: " Good faith 
 in your attempt to overthrow the government does not excuse you 
 from responsibility for the crime of attempting it." Our statute is 
 made for the purpose of protecting our government against efforts 
 made, in good faith or in bad faith, for its overthrow. 
 
398 SPEECH OF WILLIAM M. EVART3 
 
 17. The authority of Vattel in harmony with the 
 prosecution. 
 
 And now, in this connection, gentlemen, as your attention, as 
 well as that of the court, has been repeatedly called to it, let me 
 advert again to the citation from that enlightened public writer, 
 Vattel, who has done as much, perhaps, as our learned friends have 
 suggested, to place on a sure foundation the ameliorations of the 
 law of nations in time of war, and of their intercourse in time of 
 peace, as any writer and thinker whom our race has produced. 
 You remember that he asks: How shall it be when two contend- 
 ing factions divide a State in all the forms and extent of civil war; 
 what shall be the right and what the duty of a sovereign in this 
 regard ? Shall he put himself on the pride of a king, or on the 
 flattery of a courtier, and say, I am still monarch, and will enforce 
 against every one of this multitude engaged in this rebellion the 
 strict penalties of my laws ? Vattel reasons, and reasons very 
 properly: You must submit to the principles of humanity and of 
 justice; you must govern your conduct by them, and not proceed 
 to an extermination of your subjects because they have revolted, 
 whether with or without cause. You must not enforce the sanc- 
 tions of yoilr government, or maintain its authority, on methods 
 which would produce a destruction of your people. And you must 
 not further, by insisting, under the enforced circumstances which 
 surround you, on the extreme and logical right of a king, furnish 
 occasion for the contending rebels, who have their moments of suc- 
 cess and power as well as you, to retaliate on your loyal people, 
 victims of their struggle on your behalf, and thrown into the power 
 of your rebellious subjects; to retaliate, I say, on them the same 
 extreme penalties, without right, without law, but by mere power, 
 which you have exerted under your claim of right. 
 
 And now, gentlemen of the jury, as the court very well under- 
 , stands, this general reasoning, which should govern the conduct of 
 a sovereign, or of a government, against a mere local insurrection, 
 does not touch the question as to whether the law of the nation in 
 which the sovereign presides, and in violation of which the crime 
 of the rebels has been perpetrated, shall be enforced. There has 
 been, certainly, in modern times, no occasion when a sovereign has 
 not drawn, in his discretion and under the influence of these prin- 
 ciples of humanity and justice, this distinction, and ha» not inter- 
 posed the shield of his own mercy between the offenses of misled 
 and misguided masses of his people and the offended laws. We 
 
m THE CASE OF THE " SAVANNAH PEIVATEEES." 399 
 
 know the difference between law and its condemnation, and mercy 
 and its saving grace; and we know that every government exercises 
 its discretion. And I should like to know why these learned coun- 
 sel, who are seeking to interpose, as a legal defense on the part of 
 a criminal, the principles of policy and mercy which should guide 
 the government, are disposed to insist that this government, in its 
 prosecutions and its trials, has shown a disposition to absolve great 
 masses of criminals from the penalties of its laws ? I should like 
 to know, when my learned friend Mr. Brady, near the close of his 
 remarks, suggested that there had been no trial for treason, whether 
 this government, from the first steps in the outbreak down to the 
 final and extensive rage of the war, has not foreborne to take satis- 
 faction for the wrongs committed against it, and has not been dis- 
 posed to carry on and sustain the strength of the government with- 
 out bloody sacrifices for its ' maintenance and for the offended 
 justice of the land ? But it is certainly very strange if, when a gov- 
 ernment influenced by those principles of humanity of which Vattel 
 speaks, and which my learned friends so much insist upon, has 
 foreborne, except in signal instances, or, if you please, in single in- 
 stances that are not signal, to assert the standard of the law's au- 
 thority and of the government's right, that it may be seen that the 
 sword of justice, although kept sheathed for the most part, has yet not 
 rusted in its scabbard, and that the government is not faithless to 
 itself, or to its laws, its powers or its duties, in these particular 
 prosecutions that have been carried, one to its conclusion, in Phila- 
 delphia, and the other to this stage of its progress, here; it is 
 strange, indeed, that the appeal is to be thrust upon it: " Do not 
 include the masses of the misguided men! " and when it yields so 
 mercifully to that appeal and says, " I will limit myself to the least 
 maintenance and assertion of a right," that the answer is to come 
 back: " Why, how execrable, how abominable, to make distinctions 
 of that kind! " 
 
 But, gentlemen, the mercy of the government, as I have said to 
 you, remains after conviction, as well as in its determination not 
 to press numerous trials for treason; but it is an attribute, both in 
 forbearing to try and in forbearing to execute, which is safely left 
 where the precedents that are to shape the authority of law cannot 
 be urged against its exercise. Now, I look upon the conduct and 
 duty of the government on somewhat larger considerations than 
 have been pressed before you here. The government, it is said, 
 does not desire the conviction of these men, or, at least, should not 
 
400 SPEECH OF WILLIAM M. EVARTS 
 
 desire it. The government does not desire the blood of any of its 
 misguided people. The government — the prosecution — should have 
 no passion, no animosities, in this or in any other case; and our 
 learned friends have done us the favor to say that the case is pre- 
 sented to you as the law should require it to be; that you, and all, 
 are unaffected and unimpeded in your judgment; and that, with a 
 full hearing of what could be said on the part of these criminals, 
 you have the case candidly and openly before you. 
 
 18. Duty of government to protect its commerce and 
 its citizens. 
 
 Now, gentlemen, the government, although having a large meas- 
 ure of discretion, has no right, in a country where the government 
 is one wholly of law, to repeal the criminal law, and no right to 
 leave it without presenting it to the observation, the understanding, 
 and the recognition of all its citizens, whether in rebellion or not, 
 in its majesty, in its might, and in its impartiality. The govern- 
 ment has behind it the people, and it has behind it all the great 
 forces which are breathing on our agitated society, all the strong 
 passions, all the deep emotions, all the powerful convictions, which 
 impress the loyal people of this country as to the outrage, as to the 
 wickedness, as to the perils of this great rebellion. Do you not 
 recollect how, when the proclamation of Mr. Davis invited maraud- 
 ers to prey upon our commerce, from whatever quarter and from 
 whatever motives (patriotism and duty not being requisite before 
 they would be received), the cry of the wounded sensibilities of a 
 great commercial people burst upon this whole scene of conflict ? 
 What was there that as a nation we had more to be proud of, more 
 to be glad for in our history, than our flag ? To think that in an 
 early stage of what was claimed to be first a constitutional, and 
 then a peaceful, and then a deliberate political agitation and main- 
 tenance of right, this last extreme act, the arming of private per- 
 sons against private property on the sea, was appealed to before 
 even a force was drawn on the field on behalf of the United States 
 of America! The proclamation of the President was but two days 
 old when privateers were invited. to rush to the standard. The in- 
 dignation of the community, the sense of outrage and hatred was 
 so severe and so strong, that at that time, if the sentiment of the 
 people had been consulted, it would have found a true expression 
 in what was asserted in the newspapers, in public speeches, in pri- 
 vate conversations: that the duty of every merchantman and of 
 
IN THE CASE OF THE "SAYANNAH PRIVATEERS." 401 
 
 every armed vessel of the country, which arrested any of these so- 
 called privateers, under this new commission, without a nation and 
 without authority, was to treat them as pirates caught in the act, 
 and execute them at the yard-arm by a summary justice. 
 
 Well, I need not say to you, gentlemen, that I am sure you and 
 I and all of us would have had occasion to regret, in every sense, 
 as wrong, as violent, as unnecessary, and, therefore, as wholly un- 
 justifiable, on the part of a powerful nation like ourselves, any such 
 rash execution of the penalties of the law of nations, and of the 
 law of the land, while our government had power on the sea, had 
 authority on the land, had courts and laws and juries under its au- 
 thority, to inquire and look into the transaction. 
 
 The public passions on. this subject being all cool at this time, 
 after an interval of four months or more from the arrest, we are 
 here trying this case. Yet my learned friends can find complaint 
 against the mercy of the government and its justice, that it brings 
 any prosecution; and great complaint is made before you, without 
 the least ground or cause as it seems to me, that the prosecution is 
 pressed in a time of war, when the sentiments of the community 
 are supposed to be inflamed. 
 
 Well, gentlemen, what is the duty of government, when it has 
 brought in prisoners arrested on the high seas, but to deliver 
 them promptly to the civil authorities, as was done in this case; 
 and then, in the language of the Constitution, which secures the 
 right to them, to give them a speedy and impartial trial ? That it 
 is impartial they all confess. How speedy is it ? They say they 
 regret that it proceeds in time of war. Surely, our learned friends 
 do not wish to be understood as having had denied to them in this 
 court any application which they have made for postponement. 
 The promptness of the judicial and prosecuting authorities here 
 had produced this indictment in the month of June, I believe the 
 very month in which the prisoners were arrested, or certainly early 
 in July; and then the government was ready to proceed with the 
 trial, so far as I am advised. But, at any rate, aii application — a 
 very proper and necessary application — was made by our learned 
 friends, that the trial should be postponed till, I believe, the very 
 day on which it was brought on. That application was not ob- 
 jected to, was acquiesced in, and the time was fixed, and no further 
 suggestion was made that the prisoners desired further delay; and 
 if the government had undertaken to ask for further delay, on the 
 -ground of being unprepared, there was no fact to sustain any such 
 20 
 
402 SPEECH OF WILLIAM M. EVAET3 
 
 application. If it was the wish of the prisoners, or for their con- 
 venience, that there should be further delay, it was for them to 
 suggest it. But, being entitled by the Constitution to a speedy as 
 well as an impartial trial, and the day being fixed by themselves on 
 which they would be ready, and they being considered ready, and 
 no difficulty or embarrassment in the way of proof having been 
 suggested on the part of the government, it seems to me very 
 strange that this regret should be expressed, unless it should take 
 that form of regret which all of us participate in, that the war is 
 not over. That, I agree, is a subject of regret. But how there 
 has ever been any pressure, or any — the least — exercise of author- 
 ity adverse to their wishes in this matter, it is very difficult for me 
 to understand. 
 
 19. The novel political questions presented by the 
 
 DEFENSE. 
 
 Now, gentlemen, I approach a part of this discussion which I 
 confess I would gladly decline. I have not the least objection — no 
 one, I am sure, can feel the least objection — to the privilege or 
 supposed duty of counsel who are defending prisoners on a grave 
 charge — certainly not in a case which includes, as a possible result, 
 the penalty of their clients' lives, to go into all the inquiries, dis- 
 cussions and arguments, however extensive, varied, or remote, that 
 can affect the judgment of the jury, properly or fairly, or that can 
 rightly be invoked. But I confess that, looking at the very inter- 
 esting, able, extensive and numerous arguments, theories and illus- 
 trations that have been presented in succession by, I think, in one 
 form or another, seven counsel for these prisoners, as the introduc- 
 tion into a judicial forum, and before a jury, of inquiries concern- 
 ing the theories of government, the course of politics, the occasion 
 of strife on one side or the other, within the region of politics and 
 the region of peace, in any portion of the great communities that 
 composed this powerful nation; in that point of view, I aver, they 
 seem to me very little inviting and instructive, as they certainly are 
 extremely unusual in forensic discussions. Certainly, gentlemen of 
 the jury, we must conceive some starting point somewhere in the 
 stability of human affairs, as they are intrusted to the control and 
 defense of humin governments. But in the very persistent and 
 resolute views of the learned counsel upon this point: first, on the 
 right of secession as constitutional; second, if not constitutional, 
 as being supposed by somebody to be constitutional; third, on the 
 
IN THE CASE OF THE "SAVANNAH PRIVATEERS." 403 
 
 right of revolution as existing on the part of a people oppressed, 
 or deeming themselves oppressed, to try their strength in the over- 
 throw of the subsisting government; fourth, on the right to press the 
 discontents inside of civil war; and then finally and at last, that 
 whoever thinks the government oppresses him, or thinks that a 
 better government would suit his case, has not only the right to try 
 the venture, but that, unsuccessful, or at any stage of the effort, 
 his right becomes so complete that the government must and should 
 surrender at once and to every attempt: I see only what is equiva- 
 lent to subversion of government, and to saying that the right of 
 revolution, in substance and in fact, involves the' right of govern- 
 ment in the first place, and its duty in the second place, to sur- 
 render to the revolutionist, and to treat him as having overthrown 
 it in point of law and in contemplation of its duty. That is a 
 proposition which I cannot understand. 
 
 Nevertheless, gentlemen, these subjects have been so extensively 
 opened, and in so many points attacks have been made upon what 
 seems to me not only the very vital structure and necessary support 
 of this, our government, but the very necessary and indispensable 
 support of any government whatever, and we have been so dis- 
 tinctly challenged, both on the ground of an absolute right to over- 
 throw this government whenever any State thinks fit; and, next, 
 upon the clear right, on general principles of human equity, of each 
 State to raise itself against any government with which it is dis- 
 satisfied; and upon the general right of conscience, as well as on 
 the complete support by what has been assumed to have been the 
 parallel case, on all those principles, of the conduct of the colonies 
 which became the United States of America and established our 
 government — that I shall find it necessary, in the discharge of my 
 duty, to say something, however briefly, on that subject. 
 
 Now, gentlemen, these are novel discussions in a court of jus- 
 tice within the United States of America. We have talked about 
 the oppressions of other nations, and rejoiced in our exemption 
 from all of them, under the free and benignant and powerful gov- 
 ernment which was, by the favor of Providence, established by 
 the wisdom and courage and virtue of our ancestors. We had, for 
 more than two generations, reposed under the shadow of our all- 
 protecting government with the same conscious security as under 
 the firmament of the heavens. We knew, to be sure, that for all 
 that made life hopeful and valuable, for all that made life possible, 
 we depended upon the all-protecting power a,nd the continued 
 
404 SPEECH OF WILLIAM M. EVARTS 
 
 favor of Divine Providence. We knew just as well, that without 
 civil society, without equal and benignant laws, without the admin- 
 istration of justice, without the maintenance of commerce, without 
 a suitable government, without a powerful nationality, all the mo- 
 tives and springs of human exertion and labor would be dried up 
 at their source. But we felt no more secure in the Divine promise 
 that "summer and winter, seed-time and harvest," should not 
 cease, than we did in the permanent endurance of that great fabric 
 established by the wisdom and the courage of a renowned ancestry, 
 to be the habitation of liberty and justice for us and our children 
 to every generation. We felt no solicitude whatever that this great 
 structure of our constituted liberties should pass away as a scroll, 
 or its firm power crumble in the dust. But, by the actual circum- 
 stances of our situation, and, if not by them, certainly by the de- 
 structive theories which are presented for your consideration, it 
 becomes necessary for us as citizens, and, in the judgment at least 
 of the learned counsel for these prisoners, for you, and for this 
 learned court, in the conduct of this trial and in the disposition of 
 the issue of " guilty " or " not guilty " as to these prisoners, to pay 
 some attention to these considerations. If, in the order of this 
 discussion, gentlemen, I should not seem to follow in any degree, 
 or even to include by name, many of the propositions, of the dis- 
 tinctions, and of the arguments which our learned friends have 
 pressed against the whole solidity, the wholeocharacter, the whole 
 permanence, the whole strength of our government, I yet think 
 you will find that I have included the principal ideas they have 
 advanced, and have commented upon the views that seem to us, 
 at least so far as we think them to be at all connected with this case, 
 suitable to be considered. 
 
 Here Mr. Evarts discussed the right of secession, showing that such a doc- 
 trine as contended for by the defense was utterly antagonistic with the theory of 
 the American revolution out of which the nation was born, and that it was only 
 upon the idea of unity that the people of the colonies succeeded. He then pro- 
 ceeded to discuss the right of revolution as follows : 
 
 20. The right of revolution. 
 
 And now, gentlemen, having done with this doctrine of seces- 
 sion, as utterly inconsistent with the theory of our government, and 
 utterly unimportant as a practical right for any supposable or even 
 imaginable case that may be suggested, I come to consider the 
 question of the right of revolution. I have shown to you upon 
 
m THE CASE OF THE "SAVANNAH PRIVATEERS." 405 
 
 what principles and upon what substantial question, between being 
 subjects as slaves or being participants in the British government, 
 our colonies attempted and achieved their independence. As I 
 have said to you, a very brief experience showed that they needed, 
 to meet the exigencies of their situation, the establishment of a 
 government that should be in accordance with the wishes and 
 spirit of the people in regard of freedom, and yet should be of 
 such strength and such unity as would admit of prosperity being 
 enjoyed under it, and of its name and power being established 
 among the nations of the earth. . 
 
 Without going into the theories of government and of the 
 rights of the people, and of the rights of the rulers, to any great 
 extent, we all know that there has been every variety of experiment 
 tried, in the course of human affairs, between the great extreme 
 alluded to by my learned friend (Mr. Brady), of the slavery of 
 Egyptians to their king— the extreme instance of an entire popula- 
 tion scarcely lifted above the brutes in their absolute subjection to 
 the tyranny of a ruler, so that the life and the soul, and the sweat 
 and the blood of a whole generation of men are consumed in the 
 task of building a mausoleum as the grave of a king — and the later 
 efforts of our race, culminating in the happy success of our own 
 form of government, to establish, on foundations where liberty and 
 law find equal support, the principle of government, that govern- 
 ment is by, and for, and from all the people; that the rulers, in- 
 stead of being their masters and their owners, are their agents and 
 their servants; and that the greatest good of the greatest number 
 is the plain, practical and equal rule which, by gift from our Crea- 
 •tor, we enjoy. 
 
 21. The problem of self-government. 
 
 Now this, you will observe, is a question which readily receives 
 our acceptance. But the great problem in reference to the freedom 
 of a people, in the establishment of their government, presents it- 
 self in this wise: The people, in order to maintain their freedom, 
 must be masters of their government, so that the government may 
 not be too strong, in its arrangement of power, to overmaster the 
 people; but yet the government must be strong enough to maintain 
 and protect the independence of the nation against the aggressions, 
 the usurpations and the oppressions of foreign nations. Here you 
 have a difficulty raised at once. You expose either the freedom of 
 the nation by making the government too strong for the preserva- 
 
406 SPEECH OF WILLIAM M. EVARTS 
 
 tion of individual independence, or you expose its existence by 
 making it too weak to maintain itself against the passions, interests 
 and power pf neighboring nations. If you have a large nation, 
 counting its population by many millions and the circumference of 
 its territory by thousands of miles, how can you arrange the 
 strength of government, so that it shall not, in the interests of 
 human passions, grow too strong for the liberties of the people ? 
 And if, abandoning in despair that effort and that hope, you cir- 
 cumscribe the limits of your territory and reduce your population 
 within a narrow range, how can you have a government and a na- 
 tion strong enough to maintain itself in the contests of the great 
 family of nations, impelled and urged by interests and passions ? 
 
 22. Practical object and spirit of government. 
 
 Here is the first peril.which has never been successfully met and 
 disposed of in any of the forms of government that have been 
 known in the history of mankind, until, at least, our solution of it 
 was attempted, and unless it has succeeded and can maintain itself. 
 But, again, this business of self-government by a people has but 
 one practical and sensible spirit and object. The object of free 
 government is, that the people, as individuals, may with security 
 pursue their own happiness. We do not tolerate the theory that 
 all the people constituting the nation are absorbed into the national 
 growth and life. The reason why we want a free government is, 
 that we may be happy under it, and pursue our own activities ac- 
 cording to our nature and our faculties. But you will see at once 
 that it is of the essence of being able to pursue our own interests 
 under the government under which we live, that we can do so ac- 
 cording to our own notions of what they are, or the notions of those 
 who' are intelligently informed of, participate in, and sympathize 
 with those interests. Therefore it seems necessary that all of the 
 every-day rights of property, of social arrangements, of marriage, of 
 contracts — everything that makes up the life of a social community 
 — shall be under the control, not of a remote or distant authority, 
 but of one that is limited to and derives its ideas and principles 
 from a local community. 
 
 Now, how can this be in a large nation, in a nation of thirty 
 millions, distributed over a zone of the earth ? How are we to get 
 along in New York, and how are others to get along in South 
 Carolina, and others in New England, in the every-day arrange- 
 ments that proceed from government and affect the prosperity, the 
 
IN THE CASE OF THE " SAVANNAH PRIVATEERS." 407 
 
 freedom, the independence, the satisfaction of the community with 
 the condition in which it lives ? How can we get along if all these 
 minute and every-day arrangements are to proceed from a govern- 
 ment which has to deal with the diverse opinions, the diverse senti- 
 ments, the diverse interests of so extensive a nation ? But if, flee- 
 ing from this peril, you say that you may reduce your nation, you 
 fall into another difficulty. The advanced civilization of the pres- 
 ent day requires for our commercial activity, for our enjoyment of 
 the comforts and luxuries of life, that the whole globe shall be ran- 
 sacked, and that the power of the nation which we recognize as 
 our superior shall be able to protect our citizens in their enter- 
 prises, in their activities, in their objects all over the world. How 
 can a little nation, made up of Massachusetts, or made up of South 
 Carolina, have a flag and a power which can protect its commerce 
 in the East Indies and in the southern ocean ? Again, we find that 
 nations, unless they are separated by wide barriers, necessarily, in 
 the course of human affairs, come into collision; and, as I have 
 shown to you, the only arbitrament for their settlement is war. 
 But war is a scourge, an unmitigated scourge, so long as it lasts, 
 and in itself considered. But for objects which make it meritorious 
 and useful, it is a scourge never to be tolerated. It puts in abey- 
 ance all individual rights, interests and schemes, until the great con- 
 troversy is settled. 
 
 23. Political results of war. 
 
 If, then, we are a small nation, surrounded on all sides by other 
 nations, with no natural barriers, with competing interests, with oc- 
 casions of strife and collision on all sides, how can we escape war, 
 as a necessary result of that miserable situation ? But war strength- 
 ens the power of government, weakens the power of the individual, 
 and establishes maxims and creates forces that go to increase the 
 weight and the power of government, and to weaken the rights of 
 the people. Then we see that, to escape war, we must either estab- 
 lish a great nation which occupies an extent of territory and has a 
 fund of power sufficient to protect itself against border strifes and 
 against the ambition, the envy, the hatred of neighbors; or else one 
 which, being small, is exposed to war from abroad to subjugate it, 
 or to the greater peril to its own liberties, of war made by its own 
 government, thus establishing principles and introducing interests 
 which are inconsistent with liberty. 
 
 I have thus ventured, gentlemen, to lay before you some of these 
 
408 SPEECH OF WILLIAM M. STARTS 
 
 general principles, because, in the course of the arguments of my 
 learned friends as well as in many of the discussions before the 
 public mind, it seems to be considered that the ties, the affections 
 and the interests which oblige us to the maintenance of this gov- 
 ernment of ours, find their support and proper strength and nour- 
 ishment only in the sentiments of patriotism and duty, because it 
 happens to be our own government; and that, when the considera- 
 tions of force or of feeling which bring a people to submit to a 
 surrender of their government, or to a successful conquest of a 
 part of their territory, or to a wresting of a part of their people 
 from the control of the government, shall be brought to bear upon 
 us, we shall be, in our loss and our surrender, only suffering what 
 other nations have been called upon to lose and to surrender, and 
 that it will be but a change in the actual condition of the country 
 and its territory. 
 
 24. Wisdom and advantages of our political system. 
 
 But you will perceive that, by the superior fortune which at- 
 tended our introduction into the family of nations, and by the 
 great wisdom, forecast and courage of our ancestors, we avoided, 
 at the outset, all the difficulties between a large territory and a 
 numerous population on the one hand, and a small territory and a 
 reduced population on the other hand, and all those opposing 
 dangers of the government being either too weak to protect the 
 nation, or too strong and thus oppressive of the people, by a dis- 
 tribution of powers and authorities, novel in the affairs of men, 
 dependent on experiment, and to receive its final fate as the result , 
 of that experiment. We went on this view, that these feeble col- 
 onies had not, each in itself, the life and strength of a nation; and 
 yet these feeble colonies and their poor and sparse population were 
 nourished on a love of liberty and self-government. These senti- 
 ments had carried them through a successful war against one of 
 the great powers of the earth. They were not to surrender that 
 for which they had been fighting to any scheme, to any theory of a 
 great, consolidated nation, the government of which should subdue 
 the people and re-introduce the old fashion in human affairs; that 
 the people were made for the rulers, and not the rulers by and for 
 the people. They undertook to meet, they did meet, this difficult 
 dilemma in the constitution of government, by separating the great 
 fund of power and reposing it in two distinct organizations. They 
 reserved to the local communities the control of their domestic 
 
IN THE CASE OF THE "SAVANNAH PRIVATEERS." 409 
 
 affairs, and attributed the maintenance and preservation of them to 
 the State governments. They undertook to collect and deposit, 
 under the form of a written Constitution, with the general -govern- 
 ment all those larger and common interests which enter into the 
 conception and practical establishment of a distinct nation among 
 the nations of the earth, and determined that they would have a 
 central power which should be adequate, by drawing its resources 
 from the patriotism, from the duty, fron>the wealth, from the num- 
 bers of a great nation, to represent them in peace and in war; a 
 nation that could protect the interests, encourage the activities and 
 maintain the development of its people, in spite of the opposing 
 interests or the envious or hostile attacks of any nation. They de- 
 termined that this great government, thus furnished with this range 
 of authority and this extent of power, should not have anything to 
 do with the every-day institutions, operations and social arrange- 
 ments of the community into which the vast population and terri- 
 tory of the nation were distributed. They determined that the 
 people of Massachusetts, the people of New York, and the people 
 of South Carolina, e^ch of them, should have their own laws about 
 agriculture, about internal trade, about marriage, about apprentice- 
 ship, about slavery, about religion, about schools, about all the 
 every-day pulsations of individual life and happiness, controlled by 
 communities that moved with the same pulsations, obeyed the same 
 instincts, and were animated by the same purposes. And, as this 
 latter class of authority contains in itself the principal means of 
 oppression by a government, and is the principal point where op- 
 pression is to be feared by a people, they had thus robbed the new 
 system of all the dangers which attend the too extensive powers of 
 a government. They divided the fund of power to prevent a great 
 concentration and a great consolidation of the army of magistrates 
 and officers of the law and of the government, which would have 
 been combined by an united and consolidated authority, having 
 jurisdiction of all the purposes of government, of all the interests 
 of citizens, and of the entire population and entire territory in these 
 respects. They thus made a government, complex in its arrange- 
 ments, which met those opposing difficulties, inherent in human 
 affairs, that make the distinction between free governments and 
 oppressive governments. They preserved the people in their en- 
 joyment and control of all the local matters entering into their 
 every-day life, and yet gave them an establishment, springing from 
 the same interests and controlled by the same people, which has 
 
4:10 SPEECH OF WILLIAM M. EVART8 
 
 sustained and protected us in our relations to the family of nations 
 on the high seas and in the remote corners of the world. 
 
 25. The right of secession inconsistent with our 
 institutions. 
 
 Now, this is the scheme and this is the purpose with which this 
 government was formed; and you will observe that there is con- 
 tained in it this separation -and this distribution. And our learned 
 friends, who have argued before you respecting this theory and 
 this arrangement and practice of the power of a government as in- 
 consistent with the interests and the freedom of the people, have 
 substantially said to you that it was a whimsical contrivance, that 
 it was an impossible arrangement of inconsistent principles, and 
 that we must go back to a simple government composed of one of 
 the States, or of a similar arrangement of territory and people, 
 which would make each of us a weak and contemptible power in 
 the family of nations; or we must go back to the old consolidation 
 of power, such as is represented by the frame of France or England 
 in its government, or, more distinctly, more absolutely, and more 
 likely to be the case, for so vast a territory and so extensive a pop- 
 ulation as ours, to the simple notion of Russian autocracy. 
 
 That, then, being the object, and that the character of our in- 
 stitutions, and this right of secession not being provided for, or 
 imagined, or tolerated in the scheme, let us look at the right of 
 revolution as justifying an attempt to overthrow the government; 
 and let us look at the occasions of revolution which are pre- 
 tended here as giving a support before the world, in the forum of 
 conscience, and in the judgment of mankind, for the exercise of 
 that right. 
 
 And first let me ask you whether, in all the citations from the 
 great men of the revolution, and in the later stages of our history, 
 any opinion has been cited which has condemned this scheme as 
 unsuitable and insufficient for the freedom and happiness of the 
 people, if it can be successful ? I think not. The whole history 
 of the country is full of records of the approval, of the support, 
 of the admiration, of the reverent language which our people at 
 large and the great leaders of public opinion, the great statesmen 
 of the country, have spoken of this system of government. Let 
 me ask your attention to but two encomiums upon it, as repre- 
 sented by that central idea of a great nation, and yet a divided 
 and local administration of popular interests, to wit, one in the first 
 
IN THE CASE OF THE "SATANNAH PRIVATEERS." 411 
 
 Stage of its adoption, before its ratification by the people was com- 
 plete; and the other, a speech made at the very eve of, if not in 
 the very smoke of, this hostile dissolution of it. 
 
 26. Views of William Pinkney on the perfection of our 
 government. 
 
 Mr. Pinkney, of South Carolina, who had been one of the 
 delegates from the State in the national convention, and had co- 
 operated with the northern statesmen, and with the great men of 
 Virginia, in forming the government as it was, in urging on the 
 convention of South Carolina the adoption of the Constitution and 
 its ratification, said: 
 
 " To the Union we will look up as the temple of our freedom — 
 a temple founded in the affections and supported by the virtue of 
 the people. Here we will pour out our gratitude to the Author of 
 all good, for suffering us to participate in the rights of a people 
 who govern themselves. Is there, at this moment, a nation on the 
 earth which enjoys this right, where the true principles of repre- 
 sentation are understood and practiced, and where all authority 
 flows from and returns, at stated periods, to the people ? I answer, 
 there is not. Can a government be said to be free where those do 
 not exist ? It cannot. On what depends the enjoyment of those 
 rare, inestimable rights ? On the firmness and on the power of the 
 Union to protect and defend them." 
 
 Had we anything from that great patriot and statesman of 
 this right of secession, or independence of a State, as an important 
 or a useful element in securing these rare, these unheard of, these 
 inestimable privileges of government, which the author qf all good 
 had suffered the people of South Carolina to participate in ? No; 
 they depended " on the firmness and the power of the Union to 
 protect and defend them." Mr. Pinkney goes on to say: 
 
 " To the philosophic mind, how new and awful an instance do 
 the United States at present exhibit to the people of the world ? 
 They exhibit, sir, the first instance of a people who, being thus 
 dissatisfied with their government, unattacked by a foreign force 
 and undisturbed by domestic uneasiness, coolly and deliberately 
 resort to the virtue and good sense of the country for a correction 
 of their public errors." 
 
 That is, for the abandonment of the weakness and the danger 
 of the imperfect confederation, and the adoption of the constitu- 
 tional and formal establishment of federal power. Mr. Pinkney 
 goes on to say: 
 
412 SPEECH OF WILLIAM M. EVARTS 
 
 « 
 
 " It must be obvious that, without a superintending government, 
 it is impossible the liberties of this country can long be secure. 
 Single and unconnected, how weak and contemptible are the largest 
 of our States! how unable to protect themselves from external or 
 domestic insult! how incompetent, to national purposes, would 
 even the present Union be! how liable to intestine war and con- 
 fusion! how little able to secure the blessings of peace! Let us, 
 therefore, be careful in strengthening the Union. Let us remem- 
 ber we are bounded by vigilant and attentive neighbors " — (and 
 now Europe is within ten days, and they are near neighbors) — 
 "who view with a jealous eye our rights to empire." 
 
 27. Views of Alexander H. Stephens on the sanctity of 
 
 THE Union. 
 
 Pursuing my design of limiting my citations of the opinions of 
 public men to those who have received honor from, and conferred 
 honor on, that portion of our country and those of our country- 
 men now engaged in this strife with the general government, let me 
 ask your attention to a speech delivered by Mr. Stephens, now the 
 Vice-President of the so-called Confederate States, on the very eve 
 of, and protesting against, this effort to dissolve the Union. I read 
 from page 220 and subsequent pages of the documents that have 
 been the subject of reference heretofore: 
 
 " The first question that presents itself," says Mr. Stephens to 
 the assembled legislature of Georgia, of which he was not a mem- 
 ber, but which, as an eminent and leading public man, he had been 
 invited to address, " is, shall the people of the South secede from 
 the Union in consequence of the election of Mr. Lincoln to the 
 Presidency of the United States? My countrymen, I tell you 
 frankly, candidly and earnestly, that I do not think that they ought. 
 In my judgment, the election of no man, constitutionally elected 
 to that high office, is sufficient cause for any State to separate from 
 the Union. It ought to stand by and aid still in maintaining the 
 Constitution of the country. To make a point of resistance to the 
 government, to withdraw from it because a man has been constitu- 
 tionally elected, puts us in the wrong. We are pledged to maintain 
 the Constitution. Many of us have sworn to support it. 
 ******* 
 
 " But it is said Mr. Lincoln's policy and principles are against 
 the Constitution, and that, if he carries them out, it will be de- 
 structive of our rights. Let us not anticipate a threatened evil. 
 If he violates the Constitution, then will come our time to act. 
 Do not let us break it because, forsooth, he may. If he does, that 
 is the time for us to strike. * * * My countrymen, I am not 
 of those who believe this Union has been a curse up to this time. 
 
IN THE CASE OE THE "SAVANNAH PRIVATEERS." 413 
 
 True men, men of integrity, entertain different views from me on 
 this subject. I do not question their right to do so; I would not 
 impugn their motives in so doing. Nor will I undertake to say- 
 that this government of our fathers is perfect. There is nothing 
 perfect in this world, of a human origin. Nothing connected with 
 human nature, from man himself to any of his works. You may 
 select the wisest and best men for your judges, and yet how many 
 defects are there in the administration of justice ? You may select 
 the wisest and best men for your legislators, and yet how many 
 defects are apparent in your laws ? And it is so in our govern- 
 ment. 
 
 " But that this government of our fathers, with all its defects, 
 comes nearer the objects of all good governments than any on the 
 face of the earth, is my settled conviction. Contrast it now with 
 any on the face of the earth." [" England," said Mr. Toombs.] 
 " England, my friend says. Well, that is the next best, I grant; 
 but I think we have improved upon England. Statesmen tried 
 their apprentice hand on the government of England, and then ours 
 was made. Ours sprung from that, avoiding many of its defects, 
 taking most of the good and leaving out many of its errors, and, 
 from the whole, constructing and building up this model republic, 
 the best which the history of the world gives any account of. 
 
 "Compare, my friends, this government with that of Spain, 
 Mexico, the South American Republics, Germany, Ireland — are 
 there any sons of that down-trodden nation here to-night ? — 
 Prussia, or, if you travel further east, to Turkey or China. Where 
 will you go, following the sun in his circuit round our globe, to find 
 a government that better protects the liberties of its people, and 
 secures to them the blessings we enjoy ? I think that one of the 
 evils that beset us is a surfeit of liberty, an exuberance of the price- 
 less blessings for which we are ungrateful. * * * * 
 
 " When I look around and see our prosperity in everything — 
 agriculture, commerce, art, science, and every department of educa- 
 tion, physical and mental, as well as moral advancement, and our 
 colleges — I think, in the face of such an exhibition, if we can, with- 
 out the loss of power, or any essential right or interest, remain in 
 the Union, it is our duty to ourselves and to posterity to — let us 
 not too readily yield to this temptation — do so. Our first parents, 
 the great progenitors of the human race, were not without a like 
 temptation when in the garden of Eden. They were led to believe 
 that their condition would be bettered, that their eyes would be 
 opened, and that they would become as gods. They in an evil 
 hour yielded. Instead of becoming gods, they only saw their own 
 nakedness. 
 
 " I look upon this country, with our institutions, as the Eden of 
 the world, the paradise of the Universe. It may be that out of it 
 we may become greater and more prosperous, but I am candid and 
 sincere in telling you that I fear if we rashly evince passion, and, 
 without sufficient cause, shall take that step, that, instead of becom- 
 
414 SPEECH OF WILLIAM M. EVART3 
 
 ing greater and more peaceful, prosperous and happy — instead of 
 becoming gods — we will become demons, and, at no distant day, 
 commence cutting one another's throats." 
 
 Still speaking of our government, he says: 
 
 " Thus far it is a noble example, worthy of imitation. The 
 gentleman (Mr. Cobb) the other night said it had proven a failure. 
 A failure in what ? In growth ? Look at our expanse in national 
 power. Look at our population and increase in all that makes a 
 people great. A failure? Why, we are the admiration of the 
 civilized world, and present the brightest hopes of mankind. 
 
 " Some of our public men have failed in their aspirations; that 
 is true, and from that comes a great part of our troubles. 
 
 " No, there is no failure of this government yet. We have 
 made great advancement under the Constitution, and I cannot but 
 hope- that we shall advance higher still. Let us be true to our 
 cause." 
 
 Now, wherein is it that this government deserves these encomi- 
 ums which come from the intelligent and profound wisdom of 
 statesmen, and gush spontaneously from the unlearned hearts of 
 the masses of the people ? Why, it is precisely in this point, of its 
 not being a consolidated government, and of its not being a narrow 
 and feeble and weak community and government. Indeed, I may 
 be permitted to say that I once heard, from the lips of Mr. Calhoun 
 himself, this recognition, both of the good fortune of this country 
 in possessing such a government, and of the principal sources to 
 which the gratitude of a nation should attribute that good fortune. 
 I heard him once say, that it was to the wisdom, in the great con- 
 vention, of the delegates from the State of Connecticut, and of 
 Judge Patterson, a delegate from the State of New Jersey, that we 
 owed the fact that this government was what it was, the best gov- 
 ernment in the world, a confederated government, and not what it 
 would have been — and, apparently, would have been but for those 
 statesmen — the worst government in the world, a consolidated gov- 
 ernment. These statesmen, he said, were wiser for the South than 
 the South was for herself. 
 
 I need not say to you, gentlemen, that if all this encomium on 
 the great fabric of our government is brought to naught, and is 
 made nonsense by the proposition that, although thus praised and 
 thus admired, it contains within itself the principle, the right, the 
 duty of being torn to pieces whenever a fragment of its people 
 shall be discontented and desire its destruction, then all this en- 
 comium ccimes but as sounding brass and a tinkling cymbal; and 
 
IN THE CASE OF THE "SAVANNAH PRIVATEERS." 415 
 
 the glory of our ancestors, Washington, and Madison, and Jeffer- 
 son, and Adams; the glory of their successors, Webster, and Clay, 
 and Wright, and even Calhoun, for he was no votary of this non- 
 sense of secession, passes away, and their fame grows visibly paler, 
 and the watchful eye of the English monarchy looks on for the 
 bitter fruits to be reaped by us for our own destruction, and as an 
 example to the world, the bitter fruits of the principle of revolution 
 and of the right of self-government which we dared to assert against 
 her perfect control. Pointing to our exhibition of an actual con- 
 course of armies, she will say: " It is in the dragon's teeth, in the 
 right of rebellion against the monarchy of England, that these armed 
 hosts have found their seed and sprung up on your soil." 
 
 28. Marvelous success of our government. 
 
 Now, gentlemen, such is our government, such is its beneficence, 
 such is its adaptation, and such are its successes. Look at its suc- 
 cesses. Not three-quarters of a century have passed away since 
 the adoption of its Constitution, and now it rules over a territory 
 that extends from the Atlantic to the Pacific. It fills the wide belt 
 of the earth's surface that is bounded by the provinces of England 
 on the north, and by the crumbling and weak and contemptible 
 governments, or no governments, that shake the frame of Mexico 
 on the South. Have nature and providence left us without re- 
 sources to hold together social unity, notwithstanding the vast ex- 
 panse of the earth's surface which our population has traversed and 
 possessed ? No. Keeping pace with our wants in that regard, the 
 rapid locomotion of steam on the ocean, and on our rivers and 
 lakes, and on the iron roads that bind the country together, and 
 the instantaneous electric communication of thought, which fills 
 with the same facts, and with the same news, and with the same 
 sentiments, at the same moment, a great, enlightened and intelligent 
 people, have overcome all the resistance and all the dangers which 
 might be attributed to natural obstructions. Even now, while this 
 trial proceeds, San Francisco and New York, Boston and Portland, 
 and the still farther east, communicate together as by a flash of 
 lightning ; indeed, it may be said, making an electric flash farther 
 across the earth's surface — and intelligible, too, to man — than ever, 
 in the natural phenomena of the heavens, the lightning displayed 
 itself. No; the same author of all good, to whom Pinkney avowed 
 his gratitude, has been our friend and our protector, and has re- 
 moved, step by step, every impediment to our expansion which the 
 
416 SPEECH OF WILLIAM M. EVAKTS 
 
 laws of nature and of space had been supposed to interpose. No, 
 no ; neither in the patriotism nor in the wisdom of our fathers was 
 there any defect; nor shall we find, in the disposition and purposes 
 of divine providence, as we can see them, any excuse or any aid 
 for the destruction of this magnificent system of empire. No; it is 
 in ourselves, in our own time and in our own generation, in our 
 own failing powers and failing duties, that the crash and ruin of 
 this magnificent fabric, and the blasting of the future hopes of man- 
 kind, is to find its cause and its execution. 
 
 Here Mr. Evarts showed that there was nothing in the declaration of inde- 
 pendence to justify the right of revolution, except for some cause proceeding 
 from the general government amounting to absolute despotism or a denial of the 
 right of representation. He then reviewed all the alleged grievances of which 
 the South complained, to show that none of them proceeded from the federal 
 government, and that they were without any real foundation, because the South 
 was fully represented,' and slavery was protected by the federal statutes, which 
 were enforced by the United States courts. 
 
 29. Distinction between power and right. 
 
 Now, my learned friends, pressed by this difficulty as to the 
 sufficiency of the causes, are driven finally to this: that there is a 
 right of revolution when anybody thinks there is a right of revolu- 
 tion, and that that is the doctrine upon which our government rests, 
 and upon which the grave, serious action of our forefathers pro- 
 ceeded. And it comes down to the proposition of my learned 
 friend, Mr. Brady, that it all comes to the same thing, the power 
 and the right. All the argument, most unquestionably, comes to 
 that. But do morals, does reason, does common sense recognize 
 that, because power and right may result in the same consequences, 
 therefore there is no difference in their quality, or in their support, 
 or in their theory ? If I am slain by the sword of justice for my 
 crime, or by the dagger of an assassin for my virtue, I am dead, 
 under the stroke of either. But is one as right as the other ? An 
 oppressive government may be overthrown by the uprising of the 
 oppressed, and Lord Camden's maxim may be adhered to, that 
 "when oppression begins, resistance becomes a right;" but a gov- 
 ernment, beneficent and free, may be attacked, may be overthrown 
 by tyranny, by enemies, by mere power. The colonies may be 
 severed from Great Britain, on the principle of the right of the 
 people asserting itself against the tyranny of the parent govern- 
 ment; and Poland may be dismembered by the interested tyranny 
 
IN THE CASE OF THE "SAVANNAH PRIVATEERS." 417 
 
 of Russia and Austria; and each is a revolution and destruction of 
 the government, and its displacement by another — a dismember- 
 ment of the community, and the establishment of a new one under 
 another government. But do my learned friends say that they 
 equally come to the test of power as establishing the right ? Will 
 my learned friend plant himself, in justification of this dismember- 
 ment of a great, free and prosperous people, upon the example of 
 the dismemberment of Poland, by the introduction of such influ- 
 ences within, and by the co-operation of such influences without, 
 as secured that result ? Certainly not. And yet if he puts it upon 
 the right and the power, as coming to the same thing, it certainly 
 cannot make any difference whether the power proceeds from with- 
 in or from without. There is no such right. Both the public ac- 
 tion of communities and the private action of individuals must be 
 tried, if there is any trial, any scrutiny, any judgment, any deter- 
 mination, upon some principles that are deeper than the question 
 of counting bayonets. When we are referred to the case of Victor 
 Emanuel overthrowing the throne of the king of Naples, and thus 
 securing the unity of the Italian people under a benign govern- 
 ment, are we to be told that the same principle and the same prop- 
 osition would have secured acceptance before the forum of civiliza- 
 tion, and in the eye of morality, to a successful effort of the tyrant 
 of Naples to overthrow the throne of Victor Emanuel, and include 
 the whole of Italy under his. King Bomba's, tyranny ? No one. 
 The quality of the act, the reason, the support, and the method of 
 it, are traits that impress their character on those great public and 
 national transactions as well as upon any other. 
 
 30. Good faith no defense. — Case of John Brown. 
 
 There is but one proposition, in reason and morality, beyond 
 those I have stated, which is pressed for the extrication and abso- 
 lution of these prisoners from the guilt that the law, as we say, im- 
 presses upon their action and visits with its punishment. It is said 
 that, however little, as matter of law, these various rights and pro- 
 tections may come to, good faith, or sincere, conscientious convic- 
 tion on the part of these men as to what they have done, should 
 protect them against the public justice. 
 
 Now, we have heard a great deal of the assertion and of the 
 
 execration of the doctrine of the "higher law," in the discussions 
 
 of legislation and in the discussions before the popular mind; but 
 
 I never yet have heard good faith or sincere opinion pressed, in a 
 
 27 
 
418 SPEECH OF WILLIAM M. EVARTS 
 
 court of justice, as a bar to the penalty which the law has soberly- 
 affixed, in the discreet and deliberate action of the legislature. 
 And here my learned friend furnishes me, by his reference to the 
 grave instance of injury to the property, and the security, and the 
 authority of the State of Virginia, which he has spoken of as 
 "John Brown's raid," with a ready instance in which these great 
 principles of public justice, the authority of government, and the 
 sanction of human law were met, in the circumstances of the trans- 
 action, by a complete, and thorough, and remarkable reliance, for 
 the motive, the support, the stimulus, the solace, against all the 
 penalties which the law had decreed for such a crime, on this in- 
 terior authority of conscience, and this supremacy of personal 
 duty, according to the convictions of him who acts. The great 
 State of Virginia administered its justice, and it found, as its prin- 
 cipal victim, this most remarkable man, in regard to whom it was 
 utterly impossible to impute anything like present or future, near or 
 remote, personal interest or object of any kind: a man in regard 
 to whom Governor Wise, of Virginia, said, in the very presence of 
 the transaction of his trial, that he was the bravest, the sincerest, 
 the truthfulest man that he ever knew. And now let us look at 
 the question in the light in which our learned friend presents it: 
 that John Brown, as matter of theoretical opinion of what he had a 
 right to do under the Constitution and laws of his country, was 
 justified upon the pure basis of conscientious duty to God; and let 
 us see whether, before the tribunals of Virginia, as matter of fact 
 or matter of law, or right or duty, any recognition was given to it. 
 No. John Brown was not hung for his theoretical heresies, nor 
 was he hung for his hallucinations of his judgralent and the aberra- 
 tion of his wrong moral sense, if you so call it, instead of the in- 
 terior light of conscience, as he regarded it. He was hung for 
 attacking the sovereignty, the safety, the citizens, the property, and 
 the people of Virginia. And when my learned friend talks about 
 this question of hanging for political, moral or social heresy, and 
 that you cannot thus coerce the moral power of the mind, he vainly 
 seeks to beguile your judgment. When Ravaillac takes the life of 
 good King Henry, of France, is it a justification that, in the inter- 
 ests of his faith, holy to him — of the religion he professed — he felt 
 impelled thus to take the life of the monarch ? When the assassin 
 takes, at the door of the House of Commons, the life of the prime 
 minister, Mr. Percival, because he thinks that the course of meas- 
 ures his administration proposes to carry out is dangerous to the 
 
IN THE CASE OF THE "SAVANNAH rRIVATEEES." 419 
 
 country, and falls a victim to violated laws, I ask, in the name of 
 common sense and common fairness, are these executions to be 
 called hanging for political or religious heresies ? No. And shall 
 it ever be said that sincere convictions on these theories of seces- 
 sion and of revolution are entitled to more respect than sincere 
 convictions and opinions on the subject of human rights ? Shall it 
 be said that faith in Jefferson Davis is a greater protection from 
 the penalty of the law than faith in God was to John Brown or 
 Francis Ravaillac ? 
 
 Here Mr. Evarts showed that the exchange of flags of truce and capitula- 
 tions did not constitute such a recognition of the enemy as justified rebellion or 
 a violation of law. That what the government had done in this respect in the 
 past, was no bar to future action. That it was the duty of the government to 
 show that resort to war, as a means of redress, was error ; that the remedy for all 
 grievances^, real or imaginary, is in the region of debate and opinion and equal 
 representation. He then read a letter from Garibaldi, showing that the Italian 
 patriot did not share the views of the defense in regard to the war, his sympa- 
 thies being with the federal government.' After quoting from Mr. Webster's 
 speech, delivered tin the centennial anniversary of the birthday of Washington, 
 in 1832, in which he eulogized the establishment of our government as the 
 greatest achievement in human affairs, he concluded as follows : 
 
 If, gentlemen, the eloquence of Mr. Webster, which thus en- 
 shrines the memory and the great life of Washington, calls us back 
 to the glorious recollections of the revolution and the establishment 
 of our government, does it not urge every man everywhere that his 
 share in this great trust is to be performed now or never, and 
 wherever his fidelity and his devotion to his country, its govern- 
 ment and its spirit, shall place the responsibility upon him ? It is " 
 not the fault of the government, of the learned district attorney, or 
 of me, his humble associate, that this, your verdict, has been re- 
 moved, by the course of this argument and by the course of this 
 eloquence on the part of the prisoners, from the simple issue of 
 the guilt or innocence of these men under the statute. It is not 
 the action or the choice of the government, or of its counsel, that 
 you have been drawn into higher considerations. It is not our 
 fault that you have been invoked to give, on the undisputed facts 
 of the case, a verdict which shall be a recognition of the power, 
 the authority, and the right of the rebel government to infringe our 
 laws, or partake in the infringement of them, to some form and 
 extent. And now, here is your duty, here your post of fidelity, not 
 
 ' For the reference to Garibaldi, see ante, p. 357; for the letter, see Ap- 
 pendix, p. 723. 
 
420 SPEECH OF WILLIAM M. EVARTS. 
 
 against law, not against the least right under the law, but to sus- 
 tain, by whatever sacrifice there may be of sentiment or of feeling, 
 the law and the Constitution. I need not say to you, gentlemen, 
 that if, on a state of facts which admits no diversity of opinion, 
 with these opposite forces arrayed, as they now are, before you — 
 the Constitution of the United States, the laws of the United 
 States, the commission of this learned court, derived from the gov- 
 ernment of the United States, the venire and the impaneling of 
 this jury, made under the laws and by the authority of the United 
 States, on our side; met, on their side, by nothing, on behalf of 
 the prisoners, but the commission, the power, the right, the author- 
 ity of the rebel government, proceeding from Jefferson Davis — you 
 are asked, by the law, or under the law, or against the la,w, in some 
 form, to recognize this power, and thus to say that the folly and 
 the weakness of a free government find here their last extravagant 
 demonstration, then you are asked to say that the vigor, the judg- 
 ment, the sense, and the duty of a jury, to confine themselves to 
 their responsibility on the facts of the case, are worthless and yield- 
 ing before impressions of a discursive and loose and general nature. 
 Be sure of it, gentlemen, that, on what I suppose to be the facts 
 concerning this particular transaction, a verdict of acquittal is 
 nothing but a determination that our government and its authority, 
 in the premises of this trial, for the purposes of your verdict, are 
 met and overthrown by the protection thrown around the prisoners 
 by the government of the Confederate States of America, actual or 
 incipient. Let us hope that you will do what falls to your share in 
 the post of protection in which you are placed, for the liberties of 
 this nation and the hopes of mankind; for, in surrendering them, 
 you will be forming a part of the record on the common grave of 
 the fabric of this government, and of the hopes of the human race, 
 where our flag shall droop, with every stripe polluted and every 
 star erased, and the glorious legend of " liberty and Union, now 
 and forever, one and inseparable," replaced by this mournful con- 
 fession, " unworthy of freedom, our baseness has surrendered the 
 liberties which we have neither the courage nor the virtue to love or 
 defend." 
 
 Judge Nelson delivered the charge to the jury, on Wednesday afternoon, 
 October 30, at the close of Mr. Evarts' address. They remained out all night, 
 and, being unable to agree, were discharged by the court on the following day. 
 
ARGUMENT OF JOHN K. PORTER, 
 
 On the Constitutionality of Legal Tender Acts. — 
 
 Metropolitan Bank v. Van Dyck. 
 
 [27 N. Y. 400.] 
 
 BEFORE THE COURT OF APPEALS OF THE STATE OF NEW 
 YORK, AT ALBANY, JUNE 27th, 1863. 
 
 Analysis of Me. Porter's Argument. 
 
 i. Object and purpose of the Constitution, 
 and the powers delegated to give it 
 effect. 
 
 a. The exigencies which made it necessary 
 to pledge the public credit for the pub- 
 lic defense. 
 
 3. Results of the measures adopted by Con- 
 
 gress. 
 
 4. The power of Congress to declare what 
 
 shall be a legal tender, not prohibited 
 by the Constitution. 
 
 5. "Why this power was not conferred in 
 
 specific terms. 
 
 6. How the power to create a legal tender 
 
 was exercised in Colonial times. 
 
 7. Congress, by creating a "uniform" cur- 
 
 rency, fulfilled a constitutional trust 
 
 8. Enumeration of the incidents of the war 
 
 power vested in Congress. 
 
 9. Review of the events of the war. — An his- 
 
 torical retrospect. 
 
 10. Nature of the crisis which demanded the 
 
 passage of the legal-tender acts. 
 
 11. The desperate alternative forced upon 
 
 Congress. 
 
 12. The power to pass the legal-tender acts 
 
 exists by express grant, and by nec- 
 essary implications. 
 
 13. Postulates which those who seek to nul- 
 
 lify the legal-tender acts must estab- 
 lish. 
 
 14. The power to create a legal tender ex- 
 
 isted prior to the adoption of ttie Con- 
 stitution, and was either vested in 
 Congress or extinguished. 
 
 15. The inquiry whether self-preservation 
 
 is an inherent right rising above 
 constitutional limitations, does not 
 arise. 
 
 16. Meaning of the terms "legal tender" 
 
 and "money" considered and dis- 
 tinguished. — The subject of legal 
 tender. 
 
 17. All the attributes of sovereignty pre- 
 
 sumed to exist, till those who deny it 
 establish the contrary. 
 
 The Metropolitan Bank, the party plaintiff in this action, was a banking 
 corporation, located and doing business in the city of New York, and organized 
 under and by virtue of the laws of that State. By its charter, it was authorized 
 to issue circulating notes to a fixed and limited amount, upon depositing with the 
 bank department proper securities for the redemption and payment of its cur- 
 rency so issued. The statute further provided, in case, after lawful demand, 
 default should be made in the payment of any of its notes in ' ' lawful money of 
 the United States," that the holder of such notes should cause the same to be 
 protested; and the bank department was authorized, upon receiving notice of 
 such protest, to institute proceedings as prescribed by the statute to enforce pay- 
 ment out of the securities deposited with him for that purpose, and, if need be, 
 
 [421] 
 
422 ARGUMENT OF JOHN K. PORTER IN 
 
 to sell the same. On the 26th of March, 1863, one D. Valentine, being the 
 owner and holder o£ a bill or note of the denomination of ten dollars, issued by 
 the Metropolitan Bank, presented the same to the proper officer and demanded 
 payment thereof in gold or silver coin of the United States, which was refused. 
 The bank, however, tendered to Valentine, and offered to pay the note presented 
 by him for redemption, with a note of the denomination of ten dollars, issued 
 by the Secretary of the Treasury upon the credit of the United States, under and 
 by virtue of an act of Congress, entitled " An act to authorize the issue of United 
 States notes, and for the redemption or funding thereof, and for funding the 
 floating debt of the United States,'' approved February 25th, 1862. The tender 
 was refused. The note was duly protested, and notice of protest filed with the 
 defendant, Henry H. Van Dyck, Superintendent of the Bank Department, as 
 required by law. The defendant then notified the plaintiff, that the note which 
 Valentine had presented for redemption must be paid within fifteen days in gold 
 or silver coin, or, in default thereof, he would proceed to sell the securities de- 
 posited with him, and redeem said note according to the requirements of the 
 statute. 
 
 The plaintiff accordingly brought this action to restrain the defendant from 
 taking any steps towards the sale of the stock or trust funds in his hands belong- 
 ing to plaintiff, on the ground that the money tendered by it to Valentine, by 
 way of redemption, was " lawful money of the United States,'' and that said 
 tender was a valid and legal tender. The issue involved, therefore, was the 
 validity of the act of February 25 th, 1862. If Congress had no power to pro- 
 vide for the payment of the national debt, and to create a currency for that pur- 
 pose upon the credit of the government, and to make such currency a legal tender in 
 payment of all debts public and private, then the money tendered by the plaintiff 
 in payment of its note was not " lawful money of the United States," and no 
 legal tender had been made. The court below held, that Congress had power 
 to pass the law creating a national currency, and giving it the quality of a legal 
 tender in payment of all debts, and enjoined the defendant from instituting pro- 
 ceedings to sell plaintiff's securities. From that decision this appeal was taken. 
 
 The importance of the question presented was, at the critical period when it 
 arose, beyond all calculation, and the result of the decision will be of vital con- 
 sequence as long as the republic shall endure. The government was engaged in 
 suppressing the most formidable rebellion known to history; a struggle which 
 has been justly regarded as the greatest of modern wars. Congress was conse- 
 quently obliged to create a currency, and issue its bonds to provide means to 
 maintain and support the fleets and armies enlisted to preserve its existence. If 
 the courts should declare that Congress had no constitutional power to do this, or 
 to make its notes a legal tender for private as well as public debts, the effect of 
 the decision would render its currency and bonds valueless, and thus deprive the 
 government of the only means for protecting itself from utter dissolution. It 
 
 was an issue, therefore, which concerned the very existence of the nation 
 
 whether it could exercise the right of self-preservation under the Constitution. 
 It has been frequently claimed that, independent of express statutory authority, 
 the right of existence is inherent in every sovereignty, outweighing all considera- 
 tions, and rising above all constitutional limitations. Philosophical and histori- 
 cal writers in different ages, and at different periods, have agreed that self-pres- 
 
THE METROPOLITAN BANK v. TAN DYCK. 423 
 
 ervation is the supreme law, the application of which is universal, embracing 
 within its scope communities as well as individuals, nations as well as men. 
 History records instances in which this doctrine has been invoked, and consti- 
 tutes the only authority upon which the measures of the government could be 
 sustained. But history also teaches, that such a course, however justifiable for 
 the moment, has always been productive. of the greatest evils, because men who 
 have exercised power without constitutional authority, even to save n. nation's 
 life, have never failed afterwards to make such actions a pretext for the exercise 
 of unlawful authority to further schemes of personal ambition. Judge Porter, 
 however, contended for no such doctrine. He recognized in it principles which 
 were dangerous in the extreme. With marked ingenuity and great power of 
 reasoning, he showed that the framers of our Constitution, in their consummate 
 political wisdom, had provided for the exercise of such a power within that in- 
 strument by an express grant to Congress, so that, in the exercise of this most 
 important attribute of sovereignty, it was not necessary to go beyond the organic 
 law. The decision of the lower court was affirmed. Judges Selden and Denio 
 dissented from the opinion of the court, upon the ground that, while Congress 
 had power to issue money, it had no power to make its currency a legal tender in 
 payment of private debts, or to compel an individual to accept it in payment 
 therefor. Mr. J. V. W. Doty and George Ticknor Curtis appeared for the appel- 
 lant; and William Curtis Noyes and John K. Porter for the respondents. Mr. 
 Porter said: 
 
 May it please the Court: — The able and exhaustive argu- 
 ment of my learned associate has left nothing with which I can 
 occupy profitably the portion of time allotted for my part in the 
 discussion, unless it be to submit some general suggestions as to 
 the powers of Congress under the Constitution, in the varying exi- 
 gencies of peace and of civil and foreign, war. 
 
 Precisely here is the point from which, in our reasonings, we 
 begin to diverge from my learned friend, Mr. Curtis, who, in his 
 opening argument, has presented with so much perspicuity and 
 learning all that can be urged against the power of the government 
 to uphold itself against treason, and to defend against the violence 
 of rebellion the people by whose authority the Union was ordained. 
 
 We submit that there is and can be no bolder constitutional 
 heresy than the proposition which, though not advanced in terms, 
 pervades the entire argument of our adversaries, that the Constitu- 
 tion is a mere compact between the States, or, at most, a mere 
 power of attorney from the people to the federal government. 
 
 It is an ordinance of sovereignty, framed by the American people 
 through their representatives in national convention, and subse- 
 quently ratified in separate conventions by the people of each of 
 the original thirteen States. It has been ratified by the people of 
 each of the younger States which have since presented themselves, 
 
424 ARGUMENT OF JOHN K. PORTER IN 
 
 from time to time, at the capitol for enrollment as members of the 
 federal Union, and to seek protection and strength beneath the 
 aegis of the Constitution. 
 
 In construing this ordinance, it is to be read in view of the un- 
 limited power of those who framed it, and the magnitude of the 
 objects which they proclaimed as intended and secured by its 
 adoption. 
 
 The preamble of the Constitution is the first utterance of the 
 nation as an organized government. It is the proclamation of their 
 will, their purpose and their act, by the whole American people. 
 In every exigency of national existence, it continues to announce 
 to the government and to the world the sovereign objects the people 
 sought to attain, and the sovereign powers they assumed in the 
 Constitution to confer. 
 
 I. Object and purpose of the Constitution, and the powers 
 
 DELEGATED TO GIVE IT EFFECT. 
 
 In the light thus reflected upon it, by this unanimous and au- 
 thentic utterance of the popular will, every clause of the ordinance 
 is to be read. Each grant of power is to be expounded with a 
 view to the great ends proclaimed in the preamble. The Constitu- 
 tion furnishes in its first words its own irrevocable rule of judg- 
 ment. 
 
 " We, the People of the United States, in order to form a more 
 perfect Union, establish justice, insure domestic tranquillity, pro- 
 vide for the common defense, promote the general welfare, and se- 
 cure the blessings of liberty to ourselves and our posterity, do 
 ordain and establish this Constitution for the United States of 
 America." 
 
 Six objects are proclaimed: 
 
 (i.) Cementing the Union; (2.) Establishing justice; (3.) Insur- 
 ing domestic tranquillity; (4.) Providing for the common defense; 
 (5.) Promoting the general welfare; (6.) Securing to ourselves and 
 our posterity the blessings of liberty. 
 
 To secure each of these great ends, in times of peace, of war, 
 of insurrection, of invasion, of public repose, of public danger, the 
 Constitution commits to Congress, as the representative of the 
 popular will, the powers under consideration in this discussion, to 
 be so exercised as to fulfill each and all of these high trusts. 
 
 It empowers the representatives of the people, by the enactment 
 of laws, subject to the check of the Presidential veto: 
 
THE METROPOLITAN BANK v. VAN BTCK. 425 
 
 • (i.) To lay and collect taxes; (2.) To pay the public debts; 
 (3.) To provide for the common defense; (4.) To regulate com- 
 merce; (5.) To coin money; (6.) To borrow money; (7.) To regu- 
 late the value of money; (8.) To punish counterfeiters of public 
 securities and current coin; (9.) To declare war; (10.) To support 
 armies; (11.) To maintain navies; (12.) To suppress insurrections; 
 (13.) To repel invasions; (14.) To enact all laws needful to the 
 execution of these powers, and of all other powers vested in the 
 government, or any of its ofiScers or departments under this Con- 
 stitution. 
 
 Your Honors will observe, that in my abstract I have marshaled 
 these powers, not in the order of their enumeration in the Consti- 
 tution, but in the order appropriate to the discussion of the ques- 
 tions now submitted for judgment. 
 
 2. The exigencies which made it necessary to pledge the 
 
 PUBLIC credit for THE PUBLIC DEFENSE. 
 
 Exigencies have arisen during the present war, which have 
 made it necessary, in order to enable the government to execute 
 these powers and to preserve its own existence, to employ more 
 money than exists in gold and silver coin in the Western Hemi- 
 sphere, and more than probably exists to-day on the face of the 
 whole earth. 
 
 Ours is the wealthiest government in Christendom. Its re- 
 sources are boundless, but they are not in coin. The people it is 
 charged with the duty of defending, is rich, but not in coin. The 
 country is at war with rebellious States in which paper money is the 
 legal currency. 
 
 We have debts to pay; armies and navies to support; insurrec- 
 tion to suppress; invasion to repel; a country to defend. 
 
 Congress has adjudged, with the concurrence of the President, 
 that an exigency has arisen in which it is " necessary and proper " 
 for the protection of the people and their government, to make the 
 public credit available for the public defense, and to make the 
 notes of the United States, with a pledge of the public faith, a 
 legal tender in payment of public and private debts; and laws have 
 accordingly been enacted with that view, from time to time, as the 
 necessities of the nation have demanded. 
 
 The enemies of the government, at home and abroad, denounced 
 these acts, as they have denounced every measure of the war. The 
 people, of course, acquiesced. They appreciated the public neces- 
 
426 ARGUMENT OF JOHN K. PORTEE IN 
 
 sity. If Congress had failed to fulfill its trust, it would have pre- 
 cipitated us into universal bankruptcy; and this, by an almost in- 
 evitable necessity, would have involved the speedy dissolution of 
 the government. 
 
 3. Results of the measures adopted by Congress. 
 
 The policy adopted by Congress, with the concurrence of the 
 Secretary of the Treasury, has vindicated itself by its works. The 
 public credit has been maintained. We have upheld the army and 
 the navy, while they in turn have upheld the government. We have 
 narrowed the lines of rebellion and compressed the throat of 
 treason. Under the measures adopted by Congress, and to-day 
 arraigned before the judiciary which owes its being to the Consti- 
 tution, the people of the loyal States, in their mere material inter- 
 ests, are more prosperous now, in a time of public war, than any 
 other people on earth in periods of profound peace. 
 
 But this acquiescence is not universal. The defendant in this 
 particular case occupies a mere fiduciary relation, and has a record 
 of loyalty which will honorably connect his name with the history 
 of New York during this memorable war. But some half dozen 
 gentlemen of a population of twenty millions, who seem to have 
 personal and private interests which do not harmonize with " the 
 general welfare " of the country, which it is ihe constitutional duty 
 of Congress to promote; and who would prefer their payments in 
 gold, at the premium it bears in times of civil commotion, have al- 
 most simultaneously invoked the courts, in this and in other States, 
 to nullify these acts of Congress, and to fulfill their oaths of fidelity 
 to the Constitution, to which my learned adversary so impressjvely 
 referred, by adjudging it to be utterly impotent even for its own 
 salvation. 
 
 4. The power of Congress to declare what shall be a 
 
 LEGAL tender, NOT PROHIBITED BY THE 
 
 Constitution. 
 
 There is no allegation, either by these non-contents or their 
 counsel, that Congress \s prohibited iroxs\ declaring by law what shall 
 be a legal tender in payment of private or of public debts. 
 
 They concede that the omission of such prohibition was not in- 
 advertent; for the subject was present in the minds of the framers 
 of the Constitution, and the tenth section of the same article which 
 clothes Congress with the broad powers to which I have referred, 
 
THE METROPOLITAN BAifK v. VAN DYCK. 427 
 
 expressly prohibits the States from making " anything but gold and 
 silver coin a tender in payment of debts."' 
 
 The omission was confessedly due to no hesitation, either as to 
 the propriety or necessity, of limiting the broad powers conferred 
 on Congress by the eighth section; for the ninth section of the same 
 article contains a series of emphatic and express prohibitions. 
 
 Neither can it be claimed that the omission was due to inadvert- 
 ence on the part of the people; for after full discussion of every 
 clause of the Constitution in the conventions of the several States, 
 amendatory articles were proposed, consisting mainly of limitations 
 of the powers of Congress; but no State could be found even to 
 propose a prohibition of the exercise of the power, inherent in all 
 sovereignties, of determining by law what should be a tender in 
 payment of private and public debts. 
 
 Nor was the omission due to the people's being unmindful that 
 this was an inherent right of the law-making power in every govern- 
 ment claiming to be supreme. They recognized the existence of the 
 power, by prohibiting its exercise by the States — which were not 
 intended to be supreme in matters of national concern. They rec- 
 ognized its necessity, by not extending the prohibition to the general 
 government, which, for national purposes, they invested with the 
 high attributes of sovereignty. 
 
 5. Why this power was not conferred in specific terms. 
 
 They did not, indeed, commend and invite its exercise by con- 
 ferring it in terras, as a separate and specific power; for they re- 
 garded a departure from the standard of gold and silver as an evil 
 to be deprecated, unless public exigencies should make it a neces- 
 sity to avert still "greater evils. 
 
 To have disarmed the government of a power, which the experi- 
 ence of every civilized nation had shown to be at times a condition 
 of national existence, would have been to deliver it over in bonds 
 to the mercy of its enemies, in periods of civil convulsion or for- 
 eign war. 
 
 The Constitution was adopted by a people who, before they 
 were organized into a nation, had known the grip of the strong 
 vice of war. They had felt to the quick the mischiefs of a govern- 
 ment currency, issued in deference to inexorable necessity, and to 
 an amount far exceeding the means which could be pledged by the 
 
 ' Constitution, art. I, sec. 10. 
 
428 ARGUMENT OF JOHN K. PORTER IN 
 
 States for its redemption; and they hoped that no future con- 
 tingency would impose a like necessity, even on a responsible gov- 
 ernment. But they also knew that the exercise of the power of 
 making the notes of the Colonies a legal tender in payment of the 
 debts of their citizens, had alone enabled them, even with the aid 
 of the British crown, to struggle through the French and Indian 
 wars, and the hardships and vicissitudes of frontier growth. 
 
 6. How THE POWER TO CREATE A LEGAL TENDER WAS EXER- 
 CISED IN COLONIAL TIMES. 
 
 South Carolina led the van in 1703. New York and Connecti- 
 cut followed, and made their notes a legal tender in 1709. Rhode 
 Island fell into their wake in 1720; Pennsylvania in 1722; Mary- 
 land in 1733; Delaware in 1739; North Carolina in 1748; Virginia 
 in 1755; Georgia in 1760.' In two of the States, tobacco and 
 beaver skins were made a legal tender, and your Honors doubtless 
 still retain your schoolboy memories of the celebrated Parson's 
 Case, in which Wirt so charmingly interwove the story of the 
 wrongs of the clergy, with the eloquence of Patrick Henry, in sup- 
 port of the act of the "House of Burgesses of Virginia, authorizing 
 the payment in gold and silver of the stipend which, in right of 
 the church, they claimed to be payable only in the narcotic com- 
 mended by Sir Walter Raleigh even on his way to the scaffold.' 
 
 In 175 1, the imperial parliament, by the act of 24 George II, 
 ch. 53, sec. 2, in the exercise of its unlimited and undoubted power, 
 interdicted the further emission by the Colonies of bills of credit 
 as a legal tender. That country was less benign to our fathers 
 than to its later Colonies; for from 1833 to the present hour, the 
 notes of the Bank of England have been, by act of parliament, a 
 legal tender for private debts in every part of the British empire.' 
 
 The Colonies were at length relieved from this parliamentary 
 restriction by the Declaration of Independence — a declaration 
 which they found themselves unable to maintain, except by resum- 
 ing the exercise of the governmental power of making their notes a 
 legal tender for public and private debts. 
 
 The continental money has been much maligned; for its issues 
 
 ' II Peters, 333-7, Briscoe v. Bank of Kentucky; Cong. Globe of 1862, 
 
 P- 797- 
 
 = Wirt's Life of Henry, 38, Philadelphia ed. 1836. 
 » 3 & 4 William IV, ch. 98, sec. 6. 
 
THE METROPOLITAN' BANK v. VAN DYCK. 429 
 
 were controlled by no central government, and were too inordinate 
 in amount to be redeemed by States reduced to bankruptcy by war. 
 Yet the continental money, such as it was, was the price paid 
 for our existence as a government; and those only who do not 
 deem liberty worth what it cost denounce the purchase, because it 
 was not cheap enough for the money-changers, some of whom I 
 fear would sell it now for half its cost, and take their pay in con- 
 federate scrip. 
 
 7. Congress, by creating a " uniform " currency, fulfilled 
 A constitutional trust. 
 
 Governments cannot wage war without the means of war. The 
 Colonies were poor. We are rich. We know — the world knows — 
 and our adversaries concede, that every dollar of our debt will be 
 paid. Few men in the loyal States have ventured publicly to inti- 
 mate a doubt on this subject, and as to-morrow looms higher than 
 yesterday, it would be more grateful even to them, that the intima- 
 tion should be forgotten, than that it should be remembered. 
 
 No man believes that the debt of England will ever be paid, 
 unless on the condition of the downfall of the British monarchy. 
 That debt is the security of the throne. No such security is needed 
 by a free government. Ours is a debt due to the people, and from 
 the people. It is contracted by the popular will, for the public de- 
 fense. 
 
 Congress, in providing for the issue of treasury notes, was not 
 insensible of the evils that followed in the train of the continental 
 currency which paid the price of American independence. The 
 chief of these was, that, the States having small resources, it be- 
 came matter of interest to speculators in the misfortunes of their 
 country to depreciate the public credit. Congress resolved, that in 
 this war for maintaining our independence, the credit of the gov- 
 ernment should be upheld by the army, the navy, the people and 
 the law J and that the debt we are compelled to incur should neither 
 be multiplied now by exactions, nor repudiated hereafter on the 
 pretext of such exactions. 
 
 A popular government has no interest of its own, apart from 
 the interests of the whole body of the people. Congress imposed 
 on itself, and on every officer of the government, the same burden 
 it imposed on the citizens at large. It held its powers in trust for 
 the nation, which could act through Congress, and through Con- 
 gress alone. 
 
430 ARGUMENT OF JOHN K. PORTER IN 
 
 When the government was suddenly summoned in the exigencies 
 of a civil war, to which no parallel is furnished in the history of 
 man, to an expenditure of two millions a day, it would have been a 
 breach of trust to put its bonds carte blanche in the hands of specu- 
 lators and bind the people to pay six millions for each two millions 
 expended. 
 
 It would have been faithless if it had not used all its powers to 
 protect them from exactions destructive of every interest. 
 
 The constitutional trust was fulfilled. The complaint of our 
 adversaries is that it was not betrayed. 
 
 The people, through the House of Representatives and the 
 President — the States, through their Senators in Congress — ad- 
 judged the existence of a necessity for means for the public defense, 
 unparalleled in the history of nations; and in such an exigency 
 ordained, in view of the impending struggle for the salvation of the 
 Constitution and the republic, that there should be a single and 
 uniform currency, alike for the people and the government, resting 
 on the firm foundation of the public faith; and that in this crisis of 
 war and civil convulsion the private creditor should exact no other 
 or better pay than we bestow on the armies whom we charge by 
 law with the duty of defending us, at the peril of mutilation and 
 death, and at the easy rate of thirteen dollars a month payable in 
 treasury notes. 
 
 The government held — as I trust this court will hold — that the 
 creditor who remains at home has no higher rights in a period of 
 public war than those whom the law summons to the deck or the 
 camp. 
 
 8. Enumeration of the incidents of the war power 
 VESTED IN Congress. 
 
 It is conceded that the government can constitutionally compel 
 every citizen to serve in the field; to serve, with treasury notes or 
 without them; to serve on the public credit; and that it can shoot 
 him, if he refuse, as a deserter. 
 
 It can appropriate the property of every citizen, if needful for 
 the purposes of war, and with no security but the credit of the gov- 
 ernment. 
 
 It can levy taxes, not subject to restitution — poll taxes, income 
 taxes, land taxes, partial or general, equal or unequal, measured 
 only by the necessities of war — and this, though debtor and cred- 
 itor be involved by it in common ruin and bankruptcy. 
 
THE METROPOLITAN BA»K v. VAN DYCK. 431 
 
 The government may, if essential to the preservation of its ex- 
 istence and to the public defense, substitute itself for the creditor, 
 and appropriate every debt, pledging the faith of the nation for its 
 payment. 
 
 These are propositions too familiar to the court to require argu- 
 ment or authority in their support. They have not been denied. 
 They will not be controverted hereafter, either here or elsewhere, 
 in the progress of a discussion, on the ultimate issue of which is 
 poised the fate of the republic. 
 
 I have thus marshaled for the purposes of the present argument, 
 a few of the stern and recognized incidents of the war power which 
 the Constitution has confided, with limitations immaterial to the 
 present issue, to the absolute discretion of Congress, except so far 
 as even that discretion is controlled by the unlimited powers in- 
 vested in the commander-in-chief for the purposes of public de- 
 fense, in periods of civil convulsion and foreign war. 
 
 And yet, when the American Congress exercises the first right 
 of war, by availing itself of the public credit for the public de- 
 fense, we are told that it is bound by some constitutional implica- 
 tion, to provide a better currency for the defended than for their 
 defenders; that, though the soldier and the sailor must be content 
 with treasury notes, they shall not in the hands of their wives and 
 children be a tender to the landlord for his rent or the baker for 
 his bread; that the rights of more than half a million of citizens in 
 arms are overrode by the more sacred rights of disaffected grocers 
 and mortgagees at home, guaranteed to them, as they claim, by 
 some unwritten clause of the Constitution. 
 
 9. Review of the events of the war. — An historical 
 retrospect. 
 
 It becomes material, in one aspect of the discussion, to recur to 
 the circumstances under which the notes of the United States were 
 made a lawful tender by act of Congress. 
 
 In November, i860, Mr. Lincoln was elected to the presidency 
 by the votes of nearly two millions of our citizens. More than a 
 million of votes were cast for Judge Douglas, who was equally true 
 and loyal to the Constitution. One-third of the popular vote was 
 divided between the two remaining candidates, who, after being 
 defeated at the polls, illustrated the honor and good faith of them- 
 selves and their adherents, by uniting in a treasonable attempt to 
 
432 ARGUMENT OP JOHN K. PORTER IN 
 
 subvert the government which the people would not permit them 
 to administer. 
 
 On the loth of December, i860, Mr. Cobb retired from the 
 treasury department, and the frauds perpetrated with his connivance, 
 in the interest of the conspirators, proved even more serious than 
 had been foreshadowed by his apology six days before, in his report 
 to Congress, for the depletion of an already rifled treasury. 
 
 Four days later. General Cass resigned the portfolio of the state 
 department, on account of the refusal of President Buchanan to re- 
 inforce Fort Moultrie, which was then menaced by the rebels with 
 guns stolen with the connivance of the Secretary of War. That 
 functionary, though higher on the list of promotion, could not be 
 spared from his present position; and accordingly General Cass 
 was succeeded by Attorney-General Black, who, on the 20th of the 
 preceding month, had favored Mr. Buchanan with an official opin- 
 ion, announcing in effect, but with much decorous circumlocution, 
 that the government was constitutionally impotent for its own de- 
 fense, and existed only by the toleration of the South. 
 
 On the 24th of December, a convention of South Carolina 
 adopted an ordinance of secession, by which it assumed to dissolve 
 the American Union. 
 
 Two days later, Major Anderson, the Kentuckian in command, 
 spiked the guns of Fort Moultrie, and transferred the little band — 
 which represented there the force of the nation — to the narrower 
 and more defensible limits of Fort Sumter. 
 
 On the 29th of December, Floyd, having purloined and trans- 
 ferred to the confederates all the national arms and munitions of 
 war which they thought worth their acceptance, and having divided 
 and dispersed the American forces to suit the purposes of his ac- 
 complices, resigned his position in the Cabinet to take a commission 
 in the confederate army, alleging as his reason that the President 
 had broken faith with the rebels by not ordering Major Anderson 
 back to Fort Moultrie, where they could have seized him more con- 
 veniently. 
 
 On the 8th of January, 186 1, President Buchanan sent a mes- 
 sage to Congress, communicating so much as he thought proper of 
 his personal correspondence with the South CaroHna conspirators; 
 announced that " we are in the midst of a great revolution," and 
 gravely recommended to the people of the loyal States to yield to 
 the rebels, and conciliate them by a new appeal " to the ballot box." 
 
 The other Cotton States, having in the meantime perfected their 
 
THE METROPOLITAN BANK v. VAN DTCK. 433 
 
 conspiracy — having possessed themselves by treachery, by surprise, 
 by theft and by violence of the treasure, the arms and the strong- 
 holds of the nation — followed at' the heels of South Carolina, and 
 adopted ordinances of secession. 
 
 The rebel flag was raised by Mississippi on the 9th of January, 
 1861; by Alabama and Florida on the nth; by Georgia on the 
 19th, and by Louisiana on the 25th of January. 
 
 Six days afterwards, at a convention held at our own State 
 capitol, the memorable announcement went forth from high author- 
 ity, as a response from the North: "Already six States have with- 
 drawn from this confederacy. Revolution has actually begun." 
 
 On the 23d of February, 1861, the President-elect made his way 
 to the capitol; and the enemies of the country continue to this day 
 to reproach him for wearing the Scotch cap and cloak recom- 
 mended by Gen. Scott, which saved him from recognition by the 
 assassins who were awaiting his arrival at Baltimore. 
 
 President Buchanan was unfortunately under the influence, and 
 persistently blind to the purposes of those who were in league to 
 remove his successor and to subvert by violence the government 
 each had been chosen by the people to administer. 
 
 On the 4th of March, President Lincoln was inaugurated, and 
 was saved again from assassination by the forecast of Gen. Scott, 
 who insisted that his predecessor should accompany him on his 
 way to the capitol, and that the avenue should be guarded by an 
 armed soldiery. 
 
 Three days afterwards, Beauregard, a former protege of the 
 government, was put in command of the army of rebels who had 
 been assembled to seize Fort Sumter. 
 
 On the 14th of April, that fortress fell; and if the constitutional 
 theory of our adversaries could be maintained, on that day this 
 government fell. 
 
 On the 15th of April, President Lincoln issued his proclamation, 
 summoning 75,000 men to arms, to maintain and defend the Union 
 and the Constitution. 
 
 On the 2 1 St of July, the national army was defeated at Bull 
 Run. On the 20th of August, Gen. McClellan assumed command 
 of the army of the Potomac. From that time, until long after the 
 enactment of this law, the guns of the rebel army were trained on 
 the capitol, and its tents and watch-fires within view from its 
 cupola. 
 
 At the commencement of the then fiscal year, the entire aggre- 
 28 
 
434 ARGUMENT OF JOHN K. PORTER IN 
 
 gate amount of gold and silver coin in the country, north and 
 south, so far as it could be deduced from reliable statistics, was 
 $243,010,103. If your Honors should have occasion to verify this 
 fact, you will find a statement on the subject in detail in the 48th 
 volume of Hunt's Merchants' Magazine, 215, in the number of that 
 work issued in March, 1863. 
 
 This was much less than the country needed to borrow for im- 
 mediate use. Accordingly, on the 2Sth of February, 1862, an act 
 of Congress was passed to provide means for the immediate 
 payment of the arrears due to the army and navy, by issuing 
 $150,000,000 in United States notes, in addition to the public 
 loans previously made or authorized, making these notes a tender 
 in payment of debts due to and from the people and the govern- 
 ment, and providing for the funding of the public debt and pay- 
 ment of the interest in coin. 
 
 The particular provisions of that act have been brought to your 
 Honors' notice by my learned associate. I need only make a pass- 
 ing allusion to the circumstances under which it was enacted. 
 
 It was voted for within reach of a night assault by 100,000 
 rebels in arms. The war had been begun against the pillaged na- 
 tion, under the leadership of those who had' rifled its treasury. It 
 had been begun against an unarmed nation, by those who had been 
 trained to the science of war at its expense, and who, after being 
 laden with its honors and enriched by its bounty, banded together 
 as conspirators against its life. 
 
 The conspiracy had been well matured. At home and abroad 
 the work was prepared. The courts of Europe had been pre- 
 occupied by the able, adroit and busy emissaries of the South. 
 Every purchasable government press had been suborned to the use 
 and interests of the rebels. The North had but one friend among 
 the nations of the earth — that friend the Russian Czar, exercising 
 dominion over portions of three continents, Europe, Asia and 
 America; in sympathy with us, because we had common enemies; 
 but passive, because our controversy had no relation to the inter- 
 ests of his dynasty. 
 
 Our credit was undoubted throughout Christendom; but no na!- 
 tion on earth had a motive to aid us either with money, with men 
 or with arms. Under these circumstances we had only to rely, as 
 among monarchies every republic must rely, on the patriotism, the 
 fidelity and the resources of our own people. That reliance was 
 not in vain. Three-quarters of a million of men, untrained to arms, 
 
THE METROPOLITAN BANK v. VAN DYCK. 435 
 
 interposed their breasts and their bayonets between the government 
 and the public enemy. 
 
 The President, unused to the responsibiHties of command, was 
 nevertheless faithful and loyal to his trust. He needed, as the head 
 of the nation — what he has hitherto received, and what he will re- 
 ceive to the end — the earnest,- constant, enduring support of every 
 cordial friend of the government. Congress coming fresh from the 
 people, was also true and faithful to its trust. It needs no other 
 vindication of its patriotism, its wisdom and its forecast in regard 
 to the enactment now in question, than has been furnished by sub- 
 sequent events. 
 
 I pass over intermediate matters familiar to your Honors, and 
 which have already gone to history, where your judgment is soon 
 to follow them. 
 
 10. Nature of the crisis which demanded the passage of 
 the legal-tender acts. 
 
 Congress assembled on the ist of December, 1862. The Presi- 
 dent, in his message, communicated the fact that in the fiscal year 
 ending on the 30th of June, 1862, the year in which the law in 
 question was enacted, the disbursements of the government had 
 been $570,841,700 25, of which $529,692,460 50 had been borrowed 
 on the credit of the government. The payment of specie had 
 been suspended, not only by the banks, but by the people. It was 
 a necessity of war, acquiesced in by the common consent of the 
 nation. The President directed the attention of Congress to inter- 
 vening events, which had demonstrated the wisdom and necessity 
 of the law adopted at the previous session, and submitted for their 
 consideration the claims of the people and the government in the 
 existing exigencies of the nation. 
 
 After full deliberation and discussion in Congress, a similar act 
 was passed, which will be found in the Statutes at Large for 1863, 
 page 709, chapter 73. The act was approved by the President, 
 and became a law on the 3d of March, the last day of the third 
 session of the 37th Congress. It was entitled " An act to provide 
 ways and means for the support of the government," an ordinary 
 title, to which events had given an extraordinary significance. 
 
 The first section authorized the Secretary of the Treasury to 
 borrow $900,000,000 on bonds of the government, payable in coin, 
 at periods ranging from ten to forty years, with interest semi- 
 annually, payable also in coin. The second section authorized him 
 
4-36 ARGUMENT OF JOHN K. PORTER IN 
 
 to issue, on the credit of the United States, $400,000,000 of treas- 
 ury notes, and $150,000,000 of United States notes, exchangeable 
 for prior issues of a like character, and to be made a legal tender 
 to a similar extent with previous issues. The third section author- 
 ized him, if required by the exigencies of the public service for the 
 payment of the army and navy, and other creditors of the govern- 
 ment, to issue on the credit of the United States $150,000,000 of 
 United States notes, not bearing interest, which notes so issued 
 should be lawful money, and a legal tender in payment of all debts, 
 public and private, within the United States, except for duties on 
 imports and interest on the public debt. 
 
 Thus, on the 3d of March, 1863, by the concurrent and recorded 
 judgment of the popular and the executive departments of the gov- 
 ernment, $1,600,000,000 were required to meet the current obliga- 
 tions of the nation, beyond the resources it anticipated from the 
 revenues on imports, the sales of the public lands, the proceeds of 
 the stamp acts, and the direct taxes imposed on the incomes and 
 industry of the country. One-third of those bound to contribute 
 to the expenses of the government, had already been reduced by 
 their own rebellion to destitution and bankruptcy ; and the prop- 
 erty remaining in their possession was protected against federal de- 
 mands by military ramparts and bayonets. Three-quarters of a 
 million of loyal men were in arms on the land, and a proportionate 
 number on the sea, to maintain the government by force. All 
 must be fed, clothed, and supplied with the munitions of war. 
 
 Sixteen hundred millions were to be drawn for the exigencies of 
 the ensuing year alone — and on the theory of our adversaries, this 
 amount was to be drawn in coin, and not from our entire popula- 
 tion of 31,000,000, but from 20,000,000 of loyal citizens. On their 
 theory, each soldier, sailor, man, woman, child, must contribute $80 
 in gold and silver, besides all other State and national burdens, and 
 this to maintain the government to the ist of January, 1864. 
 
 This was the nature of the public crisis, which in the judgment 
 of Congress demanded the enactment of these laws. They zx^pari 
 materia, and stand or fall together. The Supreme Court of the 
 United States has already announced its judgment of the perils 
 which overhung the people and the government, by declaring on 
 our judicial records, simultaneously with the passage of one of these 
 acts, that we were in the crisis of " the greatest civil war known in 
 the history of the human race." ' 
 
 ' The Prize Cases, 2 American Law Register, N. S. 339. 
 
THE METROPOLITAN BANK v. TAN DYCK. 437 
 
 II. The desperate alternative forced upon Congress. 
 
 The question presented to Congress for decision was : Shall the 
 government be dissolved ? The alternative was, the exercise, in a 
 period of public war, of an inherent sovereign power, not prohibited 
 by the Constitution, or a bankrupt treasury, a bankrupt people, and 
 a government overthrown. 
 
 Two millions of dollars a day must be paid out by the govern- 
 ment for the ordinary disbursements of war. Its efficient arms had 
 been stolen, and it must replace them from the markets of Europe. 
 It could not borrow abroad, from enemies who looked and longed 
 for its destruction. It could not borrow at home in gold and silver, 
 without draining the life-blood of commerce, and this by forced 
 loans involving universal bankruptcy. It could not meet present 
 demands by taxation, for it needed the money to sustain the ma- 
 chinery of taxation, and one-third of those subject to assessment were 
 making war upon the taxing power. It could not wait, and it could 
 not want. It might tax, but the people could not pay. It could 
 sacrifice private property by seizure and forced sales, but there was 
 not enough gold and silver coin on the continent to buy what the 
 government would be compelled to sell. 
 
 All powers necessary to the execution of its governmental trusts 
 were expressly granted to Congress by the Constitution. If the 
 power to enact these laws be incident to the necessity, it existed ; 
 for the necessity was undeniable. One-third of the nation was 
 using against the other two-thirds the very power, the existence of 
 which for the destruction of the government was recognized and 
 defended by those who denied its existence for the purpose of gov- 
 ernment protection. 
 
 The alternative was plain. The government, to which alone 
 the creditor could look for protection, must be upheld ; must up- 
 hold the Constitution and the laws ; must sustain the people, the 
 debtor, the creditor, the common rights and common existence, by 
 substituting the public credit and the plighted faith of the nation, 
 for the gold and silver coinage, which had formed the theoretical, 
 but at no portion of our history the practical currency of the 
 country. 
 
 All individual rights of life, liberty and property, are subordinate 
 to the right of national existence. Rights of property exist only 
 through and under government. When the government itself is in 
 peril of subversion by war, the Constitution has wisely left its arm 
 
438 ARGUMENT OF JOHN K. POETER IN 
 
 of protecting power bare and free. When all rights are endangered, 
 it is better that some be suspended, than that all should perish. 
 The right of the government in the maintenance of its sovereignty, 
 not only to kill its enemies but to compel its citizens to die in its 
 defense, is conceded by those who deny it the power to maintain 
 navies, support armies, suppress insurrections, provide for the com- 
 mon defense, and wage war for the maintenance of its own ex- 
 istence. 
 
 The right of Congress to make United States notes a legal 
 tender, in the exercise of the specific powers to levy taxes, and to 
 borrow, to coin and to regulate the value of money, has been so 
 fully considered in the numerous briefs and arguments of my 
 learned associates, and so ably discussed in the opinions delivered 
 by the Judges in the Seventh Judicial District, that I shall feel at 
 liberty to confine myself to the single question of the validity of the 
 law, under the general authority vested in Congress by the last clause 
 in the eighth section of the first article of the Constitution. 
 
 12. The power to pass the legal-tender acts exists by 
 express grant, and by necessary implication. 
 
 The people,, after declaring that Congress shall have certain . 
 specific powers, conclude the enumeration by an express grant of 
 the broad and plenary power : " To make all laws which shall be 
 necessary and proper for carrying into execution the foregoing 
 powers and all other powers vested by this Constitution in the 
 government of the United States, or in any department or officer 
 thereof." 
 
 So clearly does the very idea of government presuppose the 
 existence of power in some of its departments, to do such acts as 
 may be needful to fulfill its trusts and maintain its authority, that 
 some of our earlier statesmen were of opinion that Congress would 
 have possessed it, even without the specific grant, as a necessary 
 and inherent right of sovereignty — and that it, therefore, added 
 nothing more than would have been plainly implied, even in the 
 absence of such a provision. Those who would use the Constitu- 
 tion as a weapon with which to cleave down the government, are 
 fond of quoting these opinions, as authority for expunging this 
 clause from the instrument — while they sturdily reject the postulate 
 that the power would have existed by necessary implication, even 
 without the grant. They are not at liberty to ignore at once the 
 clause and the implication. It is a very easy, but a very illogical 
 
THE METROPOLITAN BANK v. VAN DTCK. 439 
 
 process, to strike out the express grant, on the ground that the 
 power was inherent in Congress, and then to deny the power on the 
 ground of the absence of an express grant. 
 
 The provision stands. It can neither be expunged nor ignored. 
 Primus inter pares, it is second in authority to no other provision 
 of the Constitution. Events have demonstrated the wisdom of 
 those who framed it. Ordinary powers were enumerated, because 
 they were capable of enumeration. Other powers were granted, to 
 be exercised only in case of necessity. As the varying necessities 
 of national existence could not be foreseen, these did not admit of 
 enumeration. As some department of the government must judge 
 of the existence of the necessity, which was the sole condition of 
 the power, it was committed to the concurrent judgment of the 
 representatives of the people, and the representatives of the States, 
 subject to the check of the presidential veto. 
 
 The law in question is upheld by this provision of the Consti- 
 tution, if, in the existing exigencies of the nation, its enactment was 
 " necessary and proper for carrying into execution " the powers 
 vested in Congress, "to lay and collect taxes." — "to borrow money 
 on the credit of the United States " — " to regulate the value " of 
 money — "to provide and maintain a navy'' — "to raise and support 
 armies "— " to suppress insurrection '' — " to pay the debts and pro- 
 vide for the common defense and general welfare of the United 
 States." 
 
 If this legislation was necessary and proper to enable Congress 
 to fulfill these high trusts, the law must stand or the Constitution 
 must fall. 
 
 13. Postulates which those who seek to nullify the legal- 
 tender ACTS MUST establish. 
 
 When our adversaries invoke the subversion of these acts of 
 Congress by the judiciary, they are charged with the burden of 
 maintaining one of two propositions. 
 
 The first is, that there is no such necessity as these laws pre- 
 suppose and recognize : that there is gold and silver coin enough 
 in the loyal States to fulfill all private obligations, and with the 
 surplus to conquer ten millions of men who can command gold in 
 the markets of Europe, closed to us ; who can issue hundreds of 
 millions of confederate scrip for every million of Northern coin, 
 and who recognize and pay no debts among themselves, except by 
 pledging the faith of a league of rebellious States. 
 
440 ARGUMENT OF JOHN K. PORTER IN 
 
 As to this, I need only say it is a purely political question, com- 
 mitted to the judgment of another department of the government, 
 wliose decision on this state of facts is not subject here to review. 
 The Constitution having intrusted Congress with the duty of de- 
 termining what may be needful, in the varying exigencies of public 
 necessity, to carry into effect the powers with which it is vested — 
 its judgment, in good faith, and in its own sphere of action, is ab- 
 solute and subject to no review. This proposition is too clearly 
 settled by authority to require elucidation by argument. I will ask 
 the court to note a reference to a few additional cases not cited in 
 the printed points.' 
 
 Failing in this, our adversaries must maintain the proposition, 
 that, conceding these laws, by which the notes of the United 
 States are declared a legal tender, to be " necessary and proper for 
 carrying into execution " the specific powers vested in Congress — 
 conceding them to be within the very terms of the general grant of 
 power at the close of the eighth section — they are still in conflict 
 with the Constitution, because they are not specially authorized 
 elsewhere in the same instrument, within the ordinary and enumer- 
 ated powers of Congress, to be exercised irrespective of any public 
 necessity. 
 
 They do not advance this proposition in terms ; and yet, unless 
 they can establish that we are powerless to pass these lawg^— though 
 they are demanded for the common defense, as an iron necessity of 
 war, to avert the downfall of the government; though this necessity 
 is adjudged by Congress, with the concurrence of the President ; 
 though the fact exists, and is known of all men ; though without 
 the exercise of this power the Constitution itself is paralyzed — we 
 submit that our opponents have not gained a stand-point, from 
 which they can call on the courts to fulfill their trust by scuttling 
 the national ship and going down with the wreck. 
 
 As the means adopted by Congress were appropriate to the re- 
 quired ends, and as subsequent events have demonstrated that they 
 precisely met the public necessity to which all other remedies were 
 inadequate, the onus is upon those who seek to nullify these laws to 
 establish that the means resorted to were plainly excluded by the 
 Constitution. In the language of Chief Justice Marshall, those 
 who contend that the government " may not select any appropriate 
 
 ' The Prize Cases, 2 Am. Law Register, N. S. 335; United States v. Pro- 
 basco, lb. 419, 430 ; McCulloch v. State of Maryland, 4 Wheat. 316, 422 ; 
 Wheaton's Life of Pinkney, 561 ; Martin v. Mott, 12 Wheat. 31. 
 
THE METROPOLITAN BANK v. VAN DYCK. 441 
 
 means — that one particular mode of effecting the object is ex- 
 cluded — ^must take upon themselves the burden of establishing the 
 exception." ' 
 
 14. The powkr to create a legal tender existed prior to 
 
 the adoption of the constitution, and was either 
 
 VESTED IN Congress or extinguished: 
 
 The conceded absence of any express prohibition on this sub- 
 ject, has peculiar force and significance. The power of making 
 the paper of the government a legal tender, existed and was exer- 
 cised in every State, from the Declaration of Independence to the 
 adoption of the federal Constitution. In the partition then made 
 of governmental powers, this, being one essential for national pur- 
 poses, would appropriately be conferred upon the national Con- 
 gress. It was vested in the Congress of the United States, or it 
 was vested nowhere. It was not one of the powers " reserved to 
 the States respectively, or to the people " by tenth article of the 
 amendments to the Constitution. It was not reserved to the States, 
 for they were expressly prohibited from its exercise. It was not re- 
 served to the people, for it was not personal and popular in its na- 
 ture. It was a high governmental power — a known and recognized 
 attribute of national sovereignty. It was either committed to Con- 
 gress, or annihilated. There is no presumption in favor of the vol- 
 untary and deliberate extinguishment of a sovereign power, essen- 
 tial to the authority and existence of every nation, which would 
 compete on equal terms with the other nations of the earth. 
 
 15. The inquiry whether self-preservation is an inher- 
 ent RIGHT rising ABOVE CONSTITUTIONAL LIM- 
 ITATIONS, DOES NOT ARISE. 
 
 The federal government, in its national relations, is invested 
 with the powers of sovereignty. If the Constitution had failed to 
 invest it with these, it would, in the language of Chief Justice 
 Marshall, have been only " a splendid bauble." Mere forms are 
 nothing. Substance is everything. It was said by Napoleon, that 
 " a throne is a mere block of wood, covered with velvet." A na- 
 tional Constitution, which failed to organize a nation, would be 
 even more unmeaning than the throne stripped of its covering. 
 
 In the special message of President Monroe, communicated to 
 
 ' 4 Wheaton, 410. 
 
442 ARGUMENT OF JOHN K. PORTEK IN 
 
 Congress on the 4th of May, 1822, after giving the history of the 
 Constitution, he proceeds to say : " Thus were two separate and in- 
 dependent governments established over our Union — one for local 
 purposes, over each State, by the people of the State ; the other 
 for national purposes, by the people of the United States. The 
 whole power of the people on the representative principle is di- 
 vided between them. The State governments are independent of 
 each other, and to the extent of their powers are complete sover- 
 eignties. The national government begins where the State gov- 
 ernments terminate, except in some instances where there is a con- 
 current jurisdiction between them. This government is also, to 
 the extent of its powers, a complete sovereignty.'" On the ques- 
 tion of the supremacy and sovereignty of the federal government, 
 within the scope of its powers in all matters of national concern, I 
 beg leave to refer the Court to the opinions of Chief Justice Mar- 
 shall, in the United States Bank case, and of Mr. Justice Nelson, 
 in the Tax case.' 
 
 We do not claim that the courts should, in an iota, transcend 
 the limits of the Constitution ; but simply that they should deal 
 with it fairly, with a view to its avowed objects and ends. 
 
 The case has not yet arisen — I trust it may never arise — ^when 
 the judiciary may be compelled to pass on the question of the ulti- 
 mate power of all governments in maintaining their own existence. 
 
 It was in reference to such a question, that Cromwell, in 1656, 
 speaking in behalf of England, addressed language to the British 
 Parliament, which has been deemed worthy of a place in history : 
 
 " If nothing should ever be done, but what is ''according to law,' 
 the throat of the nation may be cut while we send for some one to 
 make a law. Therefore, certainly it is a pitiful beastly notion to 
 think, though it be for ordinary government to live by law and rule, 
 yet if a government in extraordinary circumstances go beyond the 
 law, even for self-preservation, it is to be clamored at, and blattered 
 at. When matters of necessity come, then, without guilt, extraor- 
 dinary remedies may be applied. * * And I must say I do not 
 know one action of this government — no, not one — but it hath been 
 in order to the peace and safety of this nation." 
 
 If, in the progress of events in revolutionary times, that ques- 
 tion should ever arise, the courts will have occasion to weigh the 
 
 ' 2 Statesman's Manual, 497. 
 
 " 4 Wheat. 405 ; 25 Howard's Pr. R. 14, 16. 
 
THE METEOPOLITAlf BANK v. VAN DYCK. M3 
 
 views of an eminent southern civilian, submitted as the result of 
 calm study and a mature reflection, in a posthumous publication 
 on the principles of government. Mr. Calhoun says : " Exigen- 
 cies will occur, in which the entire powers and resources of the 
 community will be needed to defend its existence. When this is 
 at stake, every other consideration must yield to it. Self-preserva- 
 tion is the supreme law, as well with communities as individuals." ' 
 If this principle of ultimate governmental power has indeed a foot- 
 hold in the polity of nations, it could find no exigency in which it 
 would apply with greater force, than immediate peril of national 
 dissolution in the throes of intestine war. The declaration of Vat- 
 tel, that " a civil war breaks the bands of society and government, 
 or at least suspends their force and effect," is with approval cited 
 in the same opinion of the Supreme Court of the United States, 
 which, in March last, characterized this as " the greatest civil war 
 known in the history of the human race." ' 
 
 I have referred to this mooted question of the inherent govern- 
 mental right of self-defense, rising in great exigencies above all 
 constitutional limitations, not with a view of discussing it, or ex- 
 pressing any opinion as to its soundness, but for the sole purpose 
 of distinguishing it from the position we maintain, and with which 
 our opponents seem to confound it. 
 
 We claim that Congress was authorized by express constitu- 
 tional grant, to exercise the powers in question, when demanded by 
 governmental necessity, and that the means it employed, having 
 been not only appropriate but efficacious to meet the necessity, its 
 decision on these questions, purely political in their nature, is not 
 subject to review and reversal in any judicial tribunal, but binds 
 the whole American people, by whose authority and in whose name 
 it was pronounced. 
 
 i6. Meaning of the terms "legal tender" and "money" 
 
 CONSIDERED and DISTINGUISHED. — ThE SUBJECT 
 OF LEGAL TENDER. 
 
 The substantial issue is on the right to make the notes of the 
 United States a legal tender. A minor issue is raised as to the 
 power of Congress to declare them to be money. That is a ques- 
 tion of very trivial moment, as without such a declaration they are 
 
 ' I Calhoun's Works, p. 10. 
 
 ' The Prize Cases, 2 Am. Law Reg. N. S. 337, 339. 
 
444 ARGUMENT OF JOHN K. PORTER IN 
 
 money by the common recognition of all civilized communities.' 
 If Congress had failed to make the declaration, the omission would 
 be quite immaterial, as the Supreme Court of the United States 
 had held treasury notes to be money, even before they were made 
 a legal tender." 
 
 But on the great question in the case, whether the government 
 can make this money a legal tender, your Honors will not fail to 
 observe that the very term "legal tender " imports, that the sub- 
 ject is one by the common understanding of mankind, belonging in 
 every sovereignty to the law-making power. It has been recog- 
 nized as such in every civilized nation. Gold and silver have been 
 a legal tender with us. Not so in Great Britain. There, except 
 for small sums, it is gold coin or notes of the Bank of England. 
 Not so in France. There it is silver coin — and government paper 
 in periods of public exigency. 
 
 Our first government coinage was copper; of which 300 tons 
 were converted into money, at the mint, during the secretaryship 
 of General Hamilton. 
 
 Doubtless, gold and silver, and government paper, have been 
 generally preferred by the law-making powers of the various mod- 
 ern nations. That this was not always so, even with them, is illus- 
 trated by the fact that we have the record in British history, of the 
 time when a white woman was money, and when a fair-haired 
 Saxon slave boy was a medium of commercial exchange, and the 
 subject of tender in payment of civil debts; and it is a curious feat- 
 ure of English History, alluded to by Macaulay, that there is no 
 record to be found in the Statutes at Large, to this day, of the 
 abolition in that country of the institution of human slavery. 
 
 Whatever, in any country, may happen to be for the time the 
 recognized medium of commercial exchange, whether gold, silver, 
 or government paper, it derives its character as legal tender, not 
 from the material of which it is composed, but from the imprint of 
 the law-making or sovereign power. I may have a chest full of 
 gold bars, but, without the stamp of government authority, it is not 
 a legal tender in payment of a debt for a loaf of bread. 
 
 When a penny of Caesar was brought by a disciple to one wiser 
 
 ' Wharton's Law Lexicon; BurriU's Law Dictionary; Webster's and Worces- 
 ter's Dictionaries; McCuUoch's Commercial Dictionary, title Money; Rees' Cy- 
 clopedia, title Coin; 4 Webster's Works, 339; Miller v. Race, i Sorrow's R. 
 
 452- 
 
 ' United States v. Morgan, 11 Howard, 160: Woodbury, J. 
 
THE METROPOLITAN BANK v. VAN DTCK. 445 
 
 than man, the inquiry he deemed appropriate was, not what metal 
 is this, but, "whose image and superscription is this ? " It was the 
 recognition by the king of kings, of the authority of human laws, 
 and the stamp of national sovereignty. 
 
 17. All the attributes of sovereignty presumed to exist, 
 
 TILL those who DENY IT ESTABLISH THE CONTRARY. 
 
 Dealing then, as we are, with a recognized attribute in every 
 nation of the law-making power, we are entitled to presume its ex- 
 istence, until those who deny it can establish, with irresistible 
 clearness, its annihilation. It must be shown to be affirmatively 
 excluded, under all circumstances, in all exigencies, or it will be 
 deemed to be embraced in a Constitution designed to distribute and 
 not to destroy the attributes of representative sovereignty. 
 
 In every nation, all the legitimate powers of government are 
 lodged in some of its various departments, by the necessity of 
 social and national existence. By the law of human imperfection, 
 no Constitution ever devised by man, contained a full bill of partic- 
 ulars of all governmental powers. But this proves, not the absence 
 of the powers, but the imperfection of constitutional enumeration 
 and forecast. 
 
 As this power to make laws for upholding the nation is neither 
 in the States nor the executive, it is in the people, or the Congress 
 to which they have deputed authority, to make laws for carrying 
 into execution all powers belonging to or inherent in the whole 
 body of the government. 
 
 It is to be remembered that the Constitution was framed with 
 reference to perpetuity; to all the exigencies of human affairs in 
 the future vicissitudes of the race.* Its general powers were 
 granted in terms sufficiently broad and comprehensive to cover 
 those cases, certain to arise, but which no human foresight could 
 anticipate and provide for in detail. The establishment of a gov- 
 ernment with power to perpetuate and maintain itself, was the 
 primary purpose of the Constitution; as the want of such power 
 was the primary mischief which led to its adoption. 
 
 In the case of McCulloch v. The State of Maryland, Chief 
 Justice Marshall, in the most memorable judicial opinion which il- 
 lumines the annals of American jurisprudence, established immu- 
 tably the principles of construction which control the judicial 
 department of the government in expounding the Constitution. It 
 
446 ARGUMENT OF JOHN K. PORTER IN 
 
 was of that unanimous decision of the ultimate tribunal of the na- 
 tion that' William Pinkney said, he saw in it " a pledge of the im- 
 mortality of the Union." Your Honors will have occasion to recur 
 to the opinion anew, and without pausing to follow the train of 
 that luminous argument, I desire only to call the attention of the 
 court to one or two brief passages which relate to the particular 
 clause of the Constitution empowering Congress to make all laws 
 which shall be necessary and proper to carry into execution the 
 powers of the government. " The subject is, the execution of 
 those great powers on which the welfare of a nation essentially de- 
 pends. It must have been the intention of those who gave these 
 powers to insure, as far as human prudence could insure, their 
 beneficial execution. This could not be done by confining the 
 choice of means to such narrow limits as not to leave it in the 
 power of Congress to adopt any which might be appropriate, and 
 which were conducive to the end. This provision is made in a 
 Constitution intended to indure for ages to come, and, consequent- 
 ly, to be adapted to the various crises of human affairs. To have 
 prescribed the means by which government should, in all future 
 time, execute its powers, would have been to change, entirely, the 
 character of the instrument, and give it the properties of a legal 
 code. It would have been an unwise attempt to provide, by im- 
 mutable rules, for exigencies which, if foreseen at all, must have 
 been seen dimly, and which can be best provided for as they occur. 
 To have declared that the best means shall not be used, but those 
 alone without which the power given would be nugatory, would 
 have been to deprive the legislature of the capacity to avail itself 
 of experience, to exercise its reason, and to accommodate its legis- 
 lation to circumstances. If we apply this principle of construction 
 to any of the powers of the government, we shall find it so per- 
 nicious in its operation that we shall be compelled to discard it. 
 
 " We admit, as all must admit, that the powers of the govern- 
 ment are limited, and that its limits are not to be transcended. But 
 we think the sound construction of the Constitution must allow to 
 the national legislature that discretion, with respect to the means 
 by which the powers it confers are to be carried into execution, 
 which will enable that body to perform the high duties assigned to 
 it, in the manner most beneficial to the people. Let the end be 
 legitimate, let it be within the scope of the Constitution, and all 
 means which are appropriate, which are plainly adapted to that 
 
THE METROPOLITAN BANK v. VAN DTCK. 447 
 
 end, which are not prohibited, but consist with the letter and spirit 
 of the Constitution, are constitutional." ' 
 
 We submit, that upon the principles settled by this decision, the 
 laws in question are plainly within the powers expressly vested in 
 Congress by the Constitution. If the question were even one of 
 doubt — one on which, in the language of Chief Justice Marshall, 
 "human reason might pause, and the human judgment be sus- 
 pended" — you would not on such an issue, bring the judiciary in 
 collision with the other two departments of the government, but 
 would solve the question, by giving your country the benefit of the 
 doubt. Even in such a case, the court would peremptorily refuse, 
 in the language of Justice Grier, " to cripple the arm of the gov- 
 ernment, and paralyze its powers by subtle definitions and ingen- 
 ious sophisms."" 
 
 The question is, not how three members of the convention 
 which framed the Constitution were induced to propose it to the 
 people — but what was the intent evinced by the people in its adop- 
 tion ? The inquiry is, how would it have been read by Washing- 
 ton, Hamilton, and Madison, in the light of the events now trans- 
 piring — which have developed the necessity and wisdom of these 
 general grants of power. As George Mason said to John C. Cal- 
 houn, " the Constitution has proved to be wiser than the men who 
 made it." 
 
 President Madison, in his annual message of December 5, 1815, 
 after the close of the war with Great Britain, introduced a passage, 
 which leaves no doubt how he would have solved the question, in a 
 national exigency like that in which these laws were passed. 
 
 " The absence of the precious metals will, it is believed, be a 
 temporary evil ; but until they can again be rendered the general 
 medium of exchange, it devolves on the wisdom of Congress to 
 provide a substitute which shall equally engage the confidence and 
 accommodate the wants of the citizens throughout the Union. If 
 the operation of the State banks cannot produce this result, the 
 probable operation of a national bank will merit consideration ; 
 and, if neither of these expedients be deemed effectual, it may be 
 necessary to ascertain the terms upon which the notes of the gov- 
 vernment, no longer required as an instrument of credit, shall be 
 
 • 4 Wheaton, 415, 421. 
 
 ' 2 American Law Register, N. S. 339. 
 
448 ARGUMENT IN METROPOLITAN BANK v. VAN DYCK. 
 
 issued upon motives of general policy as a common medium of cir- 
 culation. 
 
 It is to be remembered, too, that this is not an issue between 
 the States and the nation — between two clashing sovereignties — but 
 simply a question whether the power we contend for has been an- 
 nihilated, or whether it exists in the federal government for the 
 common protection of the people and the States. We submit that, 
 in determining this issue, the Constitution is to be read as an ordi- 
 nance of sovereignty, by the people of a continent, for the main- 
 tenance of public law and liberty, and the defense of themselves 
 and their posterity. It is also to be remembered that the para- 
 mount duty of every citizen, every officer, every judge. State and 
 federal, is to uphold the government and defend the Constitution. 
 Especially is this our duty when the issue presented is, whether the 
 Constitution, adopted by the people for their protection, shall be so 
 wrested from its objects as to inure only to the benefit of the pub- 
 lic enemy. It happens, by a singular coincidence, that the appeal 
 to your Honors, to declare the government impotent for its own de- 
 fense, is made at a time when, the heels of the rebel soldiery are 
 polluting the soil of a free State, between the capitol of New York, 
 in which we hold our deliberations, and the capitol of the nation, 
 where final judgment is to be pronounced. 
 
 On the theory we maintain, the Constitution was designed as a 
 citadel to secure public liberty and repose. On the theory of our 
 adversaries, it was to serve as a grave, in which sovereignty should 
 be buried alive, to linger only until life should be extinguished by 
 suffocation. 
 
 "Eplurtbus unum " is not a mere rhetorical phrase, but the terse 
 record of the philosophy of our system of government — a stumb- 
 ling-block only to those who reject even the mathematical postulate 
 that the whole is greater than either of its parts. The effect of 
 yielding to the views of these tenacious friends of the Constitution, 
 would be to relieve them and us from its burdens and its protection. 
 It would be to deliver over the government to its enemies, " mon- 
 strum ingens — cut lumen ade>nJ)tum"—r\.3.y,raorQ,yi\tYiL its inherent 
 force and its constitutional power of self-defense, bound to helpless- 
 ness with cords spun from its own fibre. 
 
 ' I Statesman's Manual, 330. 
 
ARGUMENT OF WILLIAM A. BEACH, 
 
 In Defense of Samuel North and Others, Charged with 
 Tampering with Soldiers' Votes. 
 
 BEFORE A MILITARY COMMISSION AT WASHINGTON, D. C, 
 FEBRUARY, 1865. 
 
 Analysis of Mb. Beach's Argument. 
 
 I. Powers assumed by military courts. 
 3. Tlie action of the court cannot be justi- 
 fied on the plea of military necessity. 
 
 3. A military commission has authority to 
 
 punish only military offenses. 
 
 4. General observations as to the nature of 
 
 crime, and the philosophy of punish- 
 ment. 
 
 5. The authority of the court extends only 
 
 to violations of military law. 
 
 6. The charges against defendants do not 
 
 embrace a military crime. 
 
 7. The charges not sustained by the spec- 
 
 ifications. 
 
 8. Civil ofienses not within the jurisdiction 
 
 of the court. 
 
 9. No authority conferred upon the court 
 
 to try civil offenses. 
 
 10. Military law defined. 
 
 11. Ruinous consequences which must fol- 
 
 low an assumption of unlawful au- 
 thority. 
 
 12. Defendants entitled to an acquittal. 
 
 13. Distinction between martial law and 
 
 military law.— Martial law not appli- 
 cable. 
 
 I?' 
 
 18. : 
 
 14. Rule as to the existence of martial law. 
 
 15. Consequences of the doctrine advanced 
 
 by the judge advocate. 
 
 16. Constitutional rights cannot be sus- 
 
 pended. 
 The doctrine of suspending the Consti- 
 tution novel and startling. 
 Provisions of the Constitution suf&cient 
 for every political possibility. 
 19. All constitutional authority clearly de- 
 fined, 
 so. Case of Vallandigham distinguished, 
 
 21. The offenses charged not hostile to the 
 
 military operations of the govern- 
 ment 
 
 22. Whether defendants can be punished 
 
 under the State law immaterial. 
 
 23. Duty of government to protect its 
 
 soldiers considered. 
 
 24. Jurisdiction of the court must arise from 
 
 positive law. 
 
 25. Questions of fact involved. 
 
 z6. Private character of Colonel North. 
 37. Interest and importance of the issues in 
 the case. 
 
 Samuel North, Levi Cohn, Marvin M. Jones, and two others, were tried be- 
 fore a military commission, convened at the city of Washington in February, 
 1865, charged with having falsely and fraudulently signed and issued election 
 blanks, purporting to have been sent by soldiers in the field, to their homes in 
 the State of New York; and for attempting to cast the votes of absent soldiers, 
 in fraud of the rights of the true elector. The accusation was rendered doubly 
 criminal and detestable, in view of the events- transpiring at the time, and ex- 
 29 [449] 
 
450 ARGUMENT OF WILLIAM A. BEiCH 
 
 cited popular wrath and indignation everywhere. It was during the war of the 
 rebellion, at the critical period, when it became necessary to choose a President 
 of the United States. In the dark and perilous hours of that great conflict, 
 which was to decide the existence of our institutions, any attempt to interfere 
 with the political rights of our country's defenders could not be tolerated or 
 excused upon any pretext. 
 
 The circumstances surrounding the case were as follows : The legislature of 
 the State of New York, on the 21st of April, 1864, passed an act to enable 
 qualified electors of the State, absent therefrom, and in the military. service of 
 the United States and navy thereof, to vote (Laws 1864, ch. 253). The soldier 
 was required, by the provisions of the act, to authorize any elector of the town 
 or city where he resided to cast his vote for him, such authority to be in writing 
 properly executed and acknowledged. The ballot and the written authority 
 were to be sealed in an envelope, which was to be placed inside of another en- 
 velope marked " soldier's vote," and forwarded to the elector authorized to cast 
 it, by mail or otherwise. The delivery or presentation of any forged, altered or 
 changed ballot was declared to be a misdemeanor, subjecting the offender upon 
 conviction to fine and imprisonment. 
 
 It was alleged that ths defendants had prepared and forwarded spurious 
 votes, and also that they iiad abstracted genuine votes and inclosed others in- 
 stead. The charge was, therefore, of the most heinous character, being a 
 political crime and an offense against society, meriting the severest punishment. 
 Public opinion and public prejudice were strongly against the prisoners, and 
 their condemnation was demanded by the press of the country. The accused 
 were arraigned before a military court, sitting at the national capitol, a tribunal 
 which, as the sequel shows, had no power or authority to detain the prisoners, 
 and was without jurisdiction of the offense charged. 
 
 Under such circumstances Mr. Beach made his masterly argument in behalf 
 of the defendants. But it was at a juncture when the advocate appears to the 
 best .advantage and is of the greatest service. As was truly remarked by Mr. 
 James T. Brady, in his address in defense of the " Savannah Privateers," " the 
 advocate is of very little use in the days of prosperity and peace, in the periods 
 of repose. It is only when public opinion, the strong power of government, the 
 formidable array of influence, the force of a nation, or the fury of a multitude 
 is directed against you, that the advocate is of any use." 
 
 The defense presented by Mr. Beach was twofold in its character: first, he 
 contended that the court had no power or authority to detain, try or sentence the 
 prisoners, and, secondly, that from the evidence in the case it appeared that the 
 defendants were innocent of the charges preferred. The result was complimentary, 
 not only to the intellectual powers of the advocate, but to the sterling integrity 
 of the members of the tribunal whom he addressed, who despite the pressure of 
 public opinion and the clamor of an injured community, refused to usurp powers 
 which they did not possess, and discharged the prisoners. 
 
 For the prosecution appeared General John A. Foster, the judge advocate. 
 The prisoners were represented by William A. Beach, of New York, and John 
 D. McPherson and Mr. Gillet, of Washington. After the evidence was all in, 
 Mr. Beach addressed the court as follows : 
 
W DEFENSE OF SAMUEL NORTH AND OTHERS. 451 
 
 May it please the Commission: — I may assume, with pro- 
 priety, that Your Honors and myself have a common purpose in 
 our present labor. It is, to accomplish essential justice. Of course 
 this is the sole object of this honorable Court. I know the parti- 
 sanship of counsel, the partial prepossessions of professional effort. 
 But there are occasions of exalted interest, which inspire the spirit 
 of advocacy with something of their own elevation. I deem this 
 one of them. It reaches the domain of executive power. It asso- 
 ciates with the cardinal principles of government. It concerns the 
 sacred rights of personal liberty and of trial by jury. It is magni- 
 fied by the demands of exigent war. We cannot but feel that it is 
 invested with unusual and elevating consequence. While I acknowl- 
 edge the enlarged sentiments it excites, I greatly regret that it does 
 not confer a corresponding ability for their expression. 
 
 1. Powers assumed by military courts. 
 
 I design no disrespect by the remark, that I speak rather for my 
 cause than for the Court. As an organized tribunal of the country 
 I render to it, personally and collectively, the respect due to its 
 dignified position. Still, I cannot resist the conviction, that this is 
 not the safest judgment seat for civil right and individual liberty. 
 Your Honors are a military tribunal, instructed soldiers, imbued, it 
 is true, with the chivalric characteristics of your profession, but in- 
 clined, nevertheless, to the severe and summary conclusions taught 
 by the necessities of the camp and the field. I miss the forms and 
 the principles of civil judicature, the atmosphere of legal experience 
 and thought pervading the courts of common law. I cannot forget, 
 that I stand in the presence of military power, associated with all 
 the terror it brings to the sensitive apprehension of organized and 
 regulated justice. Nor can I forget, that in the progress of this 
 case, this Court has already demonstrated its natural tendencies, 
 manifested the influences which inhere in and surround it. By an ex- 
 cusable association of ideas, one would connect with a military court 
 like this, the trial of military crimes. Propriety would seem to re- 
 quire that its jurisdiction should be limited to the soldier, and the 
 necessities of armies; that, untaught in the profound wisdom of 
 municipal law, unfamiliar with the vast system of rules within which 
 civil right is enshrined, this Court would be content so to adminis- 
 ter its office, as to protect military organization and secure mili- 
 tary efficiency. 
 
 It has adjudged otherwise. It asserts the power to punish a 
 
452 ARGUMENT OF WILLIAM A, BEACH 
 
 civilian for an offense against the domestic law of a State. It 
 claims jurisdiction over the citizen of New York, to punish an al- 
 leged crime against her dignity and peace. It arrogates the power 
 to supersede her authority not only, but here, in the midst of regu- 
 lar courts, active and efificient. in the exercise of all their functions, 
 to assume the trial and punishment, by military law, of private citi- 
 zens charged only with civil malefaction. 
 
 Surely the incongruity of this proceeding cannot fail to excite 
 astonishment and dread. It invests this cause with a new dignity, 
 elevating it far above personal consequences. It will be engrafted 
 upon the history of these deplorable times, not the least among the 
 many indications marking the decay of American liberty. 
 
 It is for this cause I speak, with the hope of demonstrating its 
 true character, and exposing dangerous violations of public law and 
 private right. 
 
 Your Honors, I am sure, 'have no desire to usurp authority. 
 You cherish the rights of a common citizenship. You recognize 
 the ancient principles which constitute this government a govern- 
 ment of law, and upon which, alone, American freedom can securely 
 rely. 
 
 In the great emergency oppressing our country, the fear is, that 
 an ardent patriotism will forget its reverence for the law; that, in 
 eager pursuit of desirable ends, it will be less scrupulous of the 
 means employed. Such is the necessary tendency of war. It is 
 hostile to regulated peace. It is the element of force acting de- 
 structively upon civil institutions. Unless restrained within the 
 limits of actual necessity, it grows into turbulent despotism. 
 
 2. The action of the court cannot be justified on the 
 plea of military necessity. 
 
 I do not overlook or deny the prerogatives of military necessity. 
 I acknowledge the presence and rights of war, and would not, if I 
 could, abridge the power which shall arm this government with the 
 amplest ability to maintain its integrity. Purest patriots may dif- 
 fer in the details by which this result may be attained, but to that 
 result every loyal heart is irrevocably pledged. Quite possibly Your 
 Honors and myself might differ as to the circumstances creating 
 the extreme necessity, before which the ordinary functions of gov- 
 ernment, and the securities of society, are at once prostrated. I raise 
 no abstract issue of principle. Conceding the doctrine in its most 
 
IN DEFENSE OF SAMUEL NORTH AND OTHERS. 453 
 
 liberal sense, I yet insist that it has no principle, either of right or 
 policy, applying to a case like the present. 
 
 3. A MILITARY COMMISSION HAS AUTHORITY TO PtJNISH ONLY 
 
 MILITARY OFFENSES. 
 
 It is upon the rights of war, either express or customary, that 
 this prosecution proceeds. It is founded upon military jurisdiction 
 alone, and must be upheld by military law. It can gain no support 
 from municipal enactment. Your Honors are not exerting a con- 
 current jurisdiction. You claim exclusive, absolute power, deriv- 
 ing and seeking no aid from associated authority. 
 
 It is desirable, therefore, to ascertain, primarily, the character of 
 the offense charged against the accused, and how far, if at all, it is 
 recognized as a military crime. 
 
 4. General observation as to the nature of crime, and 
 
 THE philosophy OF PUNISHMENT. 
 
 It will be conceded, that all crime, punishable by human au- 
 thority, consists in the violation of some rule of conduct declared 
 and published by some competent source. The principle is funda- 
 mental. It underlies the administration of criminal justice by all 
 tribunals, whether military or civil. To constitute offense there 
 must be law existing and law violated; and the law which declares 
 it, must be proclaimed and public. If it exist in the form of posi- 
 tive enactment, it must be published. If it be customary law, it 
 must be general, uniform, acknowledged. The citizen cannot be 
 entrapped into crime. He must be notified of the demands of 
 society in all the departments of its action, whether of peace or war, 
 before obedience can be exacted, and disobedience punished. In 
 a government of laws those acts only are criminal which the law 
 condemns; and publicity is one of its material requisites. The 
 idea of secret statutes, withheld from the subject whose conduct 
 they are to regulate, is hostile to every principle of just government, 
 and excites the sternest indignation. Hence the ponderous statutes 
 of our national and State legislatures, declaring and defining crime, 
 publicly enacted and widely promulgated. Hence the principle 
 of antiquity involving immemorial recognition, upon which the 
 common law rests. Hence, also, it is, that all are chargeable with 
 knowledge of the law. Ignorance of its mandate will not excuse 
 the offender. It is the duty of the subject to know it, and knowing, 
 to obey it. The existence of the implication and duty, demands 
 
454 ARGDMENT OF WILLIAM A. BEACH 
 
 the correlative obligation of government, to publish its require- 
 ments. Men cannot be required to know that which is unrevealed, 
 or to obey that which is unannounced. They cannot be punished 
 but for sinning with knowledge, or with the means of knowledge. 
 History has immortalized the shame of the ancient lawgiver, whose 
 edicts were only published upon the city walls, high above the ob- 
 servation of the people. And if ever an American citizen shall be 
 condemned under an unknown law, history will be true to her trust, 
 and perpetuate the memory and condemnation of the prodigious 
 wrong. 
 
 5. The authority of the court extends only to viola- 
 tions OF MILITARY LAW. 
 
 This inquiry into the nature of the offense charged, of neces- 
 sity involves the jurisdiction of this Court. If military law has not 
 been invaded. Your Honors have no power to punish. It is an in- 
 quiry always pertinent and proper. It may be raised by prelimi- 
 nary plea to the charge and specifications, or upon final submis- 
 sion; and whenever and however presented, imperatively demands 
 the consideration of the Court. To this proposition I cite from 
 O'Brien, p. 248, and De Hart, p. iii. 
 
 " The prisoner may make a plea of demurrer by pleading that 
 even if the facts alleged be true, they do not amount, as stated, to 
 the offense charged. When the facts do not amount to any offense 
 cognizable by a military court, the prisoner may take advantage of 
 it by a plea of demurrer, by a plea of jurisdiction, or under the 
 general plea of not guilty." ' 
 
 " For although the prisoner might subsequently plead the want 
 of relevancy, or perspicuity in the charge, still, as the court is the 
 judge of its own competency, at any stage of its proceedings, and is 
 bound to notice questions of jurisdiction whenever raised, the 
 mode of procedure now suggested, could never, in any instance, 
 militate against the interests of the accused, and might, in some, 
 save much useless trouble and individual responsibility." " 
 
 My position, therefore, is, that to give this Court jurisdiction, the 
 charge and specifications must impute military crime; and that, to 
 be so, the acts specified must be declared unlawful by the articles 
 of war, or be such as are " repugnant to military discipline, and are 
 pointed out by law; by the general regulations of the army, and by 
 the customs of war.'' 
 
 ' O'Brien's Am. Mil. Law, p. 248. 
 De Hart on Courts-martial, p. in. 
 
IN DEFENSE Of SAMUEL NORTH AND OTHERS. 455 
 
 " The charge must enunciate some one general crime provided 
 against by the articles of war. It must enunciate it clearly and dis- 
 tinctly, so that the prisoner may know precisely the offense of 
 which he is accused." ' 
 
 Here Mr. Beach cited De Hart on Courts-martial, p. 299, to establish the 
 proposition that where the charge itself does not name any crime provided for 
 generally or specifically by any of the articles of war, the court was bound to 
 discharge the prisoner. (For the extract cited, see Appendix, p. 726.) He then 
 continued: 
 
 The Court will observe how admirably these citations maintain 
 the idea of published or known law. They recognize the indis- 
 pensable ingredient of publicity. Acts designated as such, by pos- 
 itive law, by general army regulations and the custom of war, are 
 alone crimes. The adoption of articles of war by Congressional 
 enactment, the promulgation of regulations, the growth of customs, 
 all assume the necessity of established and notified obligation. 
 Their object is to form a military code, prescribing rules of action 
 promotive of the efficiency of the service, and defining the powers of 
 military tribunals. If there be an undefined jurisdiction, springing 
 from a pretended necessity, roaming unrestrained and unregulated, 
 without law to limit or judge its action, adjudging crime at pleasure 
 and punishing at discretion, what need of articles of war or army 
 regulations ? And how long would the rights of citizenship stand 
 before the bold usurpation ? 
 
 Your Honors must, therefore, find in these nominated sources of 
 your authority, some provision constituting the acts charged against 
 the defendants' military crimes. What then is the charge ? 
 
 6. Thk charges against defendants do not embrace a 
 military crime. 
 
 It alleges " conduct prejudicial to the military service of the 
 United States, and in fraud of the electoral rights and duties of the 
 soldiers and officers in said service." 
 
 It will be perceived that the charge is of conduct having two 
 characteristics or consequences; not of two distinct species of acts. 
 It affirms that the defendants have heen guilty of deeds, which are 
 both prejudicial to the servifce and in fraud of electoral right. It is 
 not necessary, here, to contend that the proven offense must com- 
 bine the two alleged results. The position may be assumed with 
 
 ' O'Brien's Am, Mil. Law, p. 235. 
 
456 ARGUMENT OF WILLIAM A. BEACH 
 
 great propriety. The-charge and specifications are analogous to an 
 indictment, averments in which, descriptive of the offense, must be 
 proven as laid. The point, however, now is, not the sufficiency of 
 the proof, but the law declaring the things charged to be criminal. 
 If it be conceded that the testimony sustains the charge, it is denied 
 that either affirm a military crime. Grant that the proven acts prej- 
 udiced the service, where is the article, or regulation, or custom, 
 declaring them criminal in the civilian ? What law prohibits them 
 as to him ? Are they forbidden by the provisions devised by the 
 wisdom of Congress, or established by the experience of the past ? 
 This is the first essential inquiry. 
 
 It is by the specifications that these defendants must be judged. 
 They must sustain the charge not only, but must, in themselves, 
 constitute the crime, or some degree of it, embodied in the charge. 
 
 Here Mr. Beach cited O'Brien's American Military Law, pp. 234 and 235, to 
 show that the specifications must not only sustain the charge, but' must them- 
 selves embody the offense charged. (For the extract cited, see Appendix, p. 
 728.) He then continued: 
 
 7. The charges not sustained by the specifications. 
 
 It is manifest that these specifications do not uphold that branch 
 of the charge which imputes conduct prejudicial to the military 
 service of the United States. The most perverse ingenuity will 
 fail to connect with that service, in the remotest association, the 
 forgery of soldiers' votes, or frauds upon their elective suffrage. 
 They are utterly disconnected with the military character and duty 
 of the soldier. They deprive him of no martial right. They, in 
 no degree, diminish his soldierly ability, or disqualify him for service. 
 They affect him only in his civil relations, impairing none of his 
 obligations to the government, neither seducing him from his duty 
 nor impairing his fitness to perform it. How, then, do these alleged 
 frauds prejudice the military service of the United States ? It is 
 for the learned judge advocate to maintain it, and for this Court, 
 intelligently and conscientiously, to adjudge it. No vague and in- 
 definite accusation will answer the demands of justice. No general 
 assertion of injury to the service will .satisfy the responsibility of 
 the Court. It must be able to perceive clearly the injurious effect, 
 and to trace it to the alleged cause. If there be any substantial 
 imperfection in the relation, this prosecution falls. The charge 
 and the specifications must harmoniously co-exist, each founded 
 
IN DEFENSE OF SAMUEL NORTH AND OTHERS. 457 
 
 upon and mutually sustaining the other. This is the plain teaching 
 of military law, followed by the uniform practice of its courts. 
 
 I respectfully but emphatically ask, then, if these specifications 
 disclose any acts inimical to military service ? Can it be that a 
 reputable Court will adjudge a proposition so revoltingly preposter- 
 ous and false ? 
 
 8. Civil offenses not within the jurisdiction of the 
 
 COURT. 
 
 The remnant of the charge requires Your Honors to adjudicate 
 that frauds upon the elective rights and duties of soldiers, in no 
 degree affecting the military service of the United States, are 
 crimes punishable by courts-martial. To this complexion this ar- 
 gument must come, at last. It is upon this theory that the defend- 
 ants must be condemned, if at all. No sophistry can evade the 
 position. You must find in the specifications the elements of the 
 crime you adjudge, and you find in them no other accusation. It 
 is a direct, bold issue, which must be frankly met and responsibly 
 determined. I press it vigorously, in all its bald and repulsive ab- 
 surdity, upon the consideration of the Court. You are expected to 
 record, by solemn judicial decree, that the forgery of a soldier's 
 vote, or fraud upon his elective franchise, is a military crime, sub- 
 jecting the offenders to an undefined penalty under military law. 
 The proposition needs but its statement for its refutation. Nay, 
 may it please Your Honors, the statement awakens something more 
 than a mental dissent. It shocks the commonest intelligence, and 
 arouses a bitter resentment. The free sentiment of this country is 
 not so far subdued that it can feel nothing but fear under the 
 threatening pretension. We venerate the institutions of our fathers; 
 we cling to the Union, hallowed by their wisdom and sacrifice; we 
 yield and suffer much for its preservation: but if it is to be saved 
 only by the surrender of the dearest privileges it confers to the 
 dominion of military power; if the purest civil rights are to be 
 grasped by a military jurisdiction, it may be well worth considera- 
 tion whether the boon deserves the price. 
 
 9. No authority conferred upon the COURT TO TRY CIVIL 
 
 OFFENSES. 
 
 I pray Your Honors to inquire for the source of your authority, 
 to entertain this indictment. What article of war, what army regu- 
 lation, what custom of warfare confers it ? I search for it in vain. 
 
458 ARGUMENT OF "WILLIAM A. BEACH 
 
 Your Honors are a Court of special and limited powers. You have 
 no original or general jurisdiction. You are created by the na- 
 tional executive, by virtue of an act of Congress. I look to the 
 act, to the order under which you convene, and I find no special 
 delegation of this authority. I look to the general law, to military 
 usage, and I find there no countenance for your claim. Upon 
 what, then, is it founded ? If it exist at all, it must be traceable in 
 some enactment, or regulation, or custom. These all are silent. 
 And the strange anomaly is presented of a special Court, exercising 
 important criminal functions, derived neither from the legislature, 
 the executive, or the customs of mankind. Such a spectacle may 
 well excite profound astonishment and dismay. The assumption is 
 accompanied with a tremendous responsibility. It cannot pass un- 
 noticed in an intelligent community, educated in the midst of au- 
 thorized courts and mindful of their constitutional rights. 
 
 lo. Military law defined. 
 
 In this connection I invite Your Honors' attention to an admi- 
 rable definition of military law, and the powers of its courts, from 
 O'Brien. He says: 
 
 " Military law may be defined to be a body of rules and ordi- 
 nances prescribed by competent authority for the government of the 
 military state considered as a distinct community. It is an accu- 
 mulation law. The citizen, on becoming a soldier, does not merge 
 his former character in the latter. He relieves himself from none 
 of his former duties and obligations. Instead of this, he engages 
 to perform other duties in addition to those with which he was 
 formerly charged. He submits himself to a special code of laws 
 which does not supersede or abrogate that to which he was formerly 
 subject, but which, on the contrary, binds him by a new tie to the 
 very same authority which, as a citizen, he previously obeyed. 
 With regard to civil powers and authorities he stands in the pre- 
 cise position he formerly occupied. They lose none of their rights 
 and prerogatives. He still remains subject to them, and is bound 
 to assist and aid them even in the apprehension of his military com- 
 rades. There is no principle more thoroughly incorporated, in our 
 military as well as in our civil code, than that the soldier does not 
 cease to be a citizen, and cannot throw off his obligations and 
 responsibilities as such. The general law claims supreme and un- 
 disputed jurisdiction over all. The military law puts forth no such 
 pretensions. It aims solely to enforce on the soldier the additional 
 duties he has assumed. It constitutes tribunals for the trial of 
 breaches of military duty only. It attempts not to regulate or ad- 
 just the civil rights of those who fall under its cognizance, nor does 
 it affect to redress civil injuries or private wrongs, unless they be, 
 
IN defe:jse of samuel north and others. 459 
 
 in some degree, connected with the safety and good order of the 
 military state, as having a tendency to disturb its peace and quiet. 
 Civil injuries or private wrongs, not immediately related to the 
 rights of a soldier, as such, are left, like his civil rights, to the re- 
 dress of the general or common law. 
 
 " These two systems of law can, in no case, come in collision. 
 Their spheres of action are different. The military code com- 
 mences where the other ends. It finds a body of men who, besides 
 being citizens, are also soldiers. Their rights and duties in the 
 former capacity it finds already well established; but, in their latter 
 capacity, their duties are undefined, their rights are unascertained, 
 until it steps in to fill this vacuum, to place the soldier as com- 
 pletely under the cover of law, and to guard him as securely against 
 tyrannical and arbitrary power in his military as in his civil char- 
 acter. The one code embraces all citizens, whether soldiers or 
 not; the other has no jurisdiction over any citizen as such." ' 
 
 Your Honors perceive how completely the extract justifies my 
 reasoning. It will impress Your Honors with its obvious propriety. 
 It assigns to Courts like yourselves, their true position. It enables 
 them to accomplish their full office, without interference, with the 
 ordinary tribunals of the country. It disturbs none of the relations 
 of civil life. It assigns to you exclusively the field of military dis- 
 cipline and efficiency. It maintains a wise harmony between the 
 necessity which called you into existence and the functions you 
 should exercise. 
 
 II. Ruinous consequences which must follow an assump- 
 tion OF unlawful authority. 
 
 Why, then, assume ungranted and dangerous power ? You are 
 created for the good of the army, and for that alone. Why enlarge 
 the circle of your duty, and that upon a principle which stretches 
 it over every civil right of the soldier ? It is not only unjustifiable; 
 it is profitless. You accomplish thereby no beneficial result. The 
 consequences are all evil. You inaugurate a baleful conflict be- 
 tween civil and military power. You spread wider the terrors of in- 
 surrectionary war, devastate more broadly the institutions of peace, 
 and alienate the confidence of the people. The bold spirit of 
 the trained commander may mock these unprosperous issues, but 
 Your Honors are upon the judicial bench, not in the field. You 
 are called to exert the prudence of the judge, not the fearlessness 
 of the veteran. Wisdom, not courage, is the quality of your posi- 
 
 ' O'Brien's Am. Mil. Law, pp. 26, 27. 
 
460 ARGUMENT OF "WILLUM A. BEACH 
 
 tion. We live in perilous times, when it becomes us to act wisely. 
 The foundations of government are fiercely shaken. Recent events 
 seem to assure us that they are rapidly settling to their former 
 solidity; but there is a mighty work of reconstruction before this 
 people. With peace will come the onerous duty of reorganization, 
 and a more sensible appreciation of the accumulated burdens of 
 war. It is well to limit, as far as may be, its devastations upon 
 civil right, and to cultivate amity between the government and the 
 people. This will not be done by needless encroachment upon 
 their privileges, and a reckless and ruthless exertion of military 
 power. 
 
 If Your Honors assume this jurisdiction, you are forced, more- 
 over, to devise a punishment for the crime you invent. You en- 
 counter a fresh novelty in this necessity. You have, then, not only 
 a roving commission to try all charges, but plenary discretion to 
 punish. Your Honors are, without guide or limit, the most uni- 
 versal and arbitrary Court on the face of the earth. You may re- 
 vive the barbarity of the ancient law of Britain, or practice the 
 most indulgent lenity. You may discriminate between culprits, and 
 protect friends while you crush enemies. It is a most convenient 
 license. You may choose your subjects at pleasure, and dispose of 
 your selected victims as caprice or interest may dictate; or you 
 may execute submissively the will of the power which made you. 
 
 I am not exaggerating the statement. I have proven that there 
 is no law empowering this Court to try the accused upon the mat- 
 ters alleged; and I affirm that there is no law specifying their pun- 
 ishment. With the exception of spies, suttlers, commissaries, camp 
 retainers, and the like, no non-military offender is triable or punish- 
 able under the articles of war, or any other law or custom, except 
 martial law regularly declared. There is no provision for a case 
 like the present. Hitherto it has been uncontemplated by delib- 
 erative or executive wisdom, unrequired by the emergencies of 
 war. If it be true, that Your Honors may try and punish under 
 these specifications, it is the only example under heaven, outside of 
 absolutism, where a citizen may be condemned without law limiting 
 the punishment, either by specified penalty or by a conferred dis- 
 cretion. This fearful prerogative to punish, exposed to all the 
 temptations which beset it — now urging it to vindictive cruelty, and 
 now seducing it to weakness — changing and vacillating and ter- 
 rible, cannot exist where justice is respected. It prostrates per- 
 sonal security at the foot of judicial power. It would multiply in 
 
IN DEFEIfSE OP SAMUEL NORTH AND OTHERS. 461 
 
 this land the infamous scenes enacted in England by a Scroggs and 
 a Jeffries. Courts like this would be fearful as the inquisition — 
 tremendous and destructive engines, wielded by unsparing hands, 
 against the franchises of liberty. 
 
 12. Defendants entitled to an acquittal. 
 
 I know Your Honors are bold and brave men, sinewed and 
 strong " on the perilous ridges of battle," but it requires another 
 hardihood to strike at the integrity of the law — full against the 
 buckler of the Constitution. My clients stand securely under these 
 safeguards. They invoke you, by your respect for these, by your 
 instinctive sense of right, by your veneration for the past and your 
 trust for the future, to stay this ill-judged prosecution. They de- 
 mand an acquittal, for want of jurisdiction in this Court. Innocent 
 or guilty, it is their lawful due. If they have broken the law, it is 
 not your law. If they deserve punishment, yours are not the hands 
 to inflict it. Meet this issue in the enlarged spirit of the upright 
 judge, enlightened by patriotic forecast. The plaudits and bless- 
 ings of the country will attend your judgment. It will stand an 
 enduring landmark, illustrative of judicial integrity and independ- 
 ence, amidst the disquieting and disintegrating influences of the 
 present hour. 
 
 13. Distinction between martial law and military law. — 
 Martial law not applicable. 
 
 The position I have argued is not overcome by the prevailing 
 presence of martial law. I raise no question as to the power to 
 declare it in certain emergencies. I concede, that, wherever law- 
 fully existing, it supplants civil authority and consolidates in a 
 single will all the powers of the State. Mr. De Hart thus writes: 
 
 " It must be understood, however, that the term martial law has 
 a different interpretation from that of military law. Military law, 
 as has been stated above, is a rule for the government of military 
 persons only, but martial law is understood to be that state of 
 things when, from the force of circumstances, the military law is 
 indiscriminately applied to all persons whatsoever. The distinction 
 is thus expressed by a writer on military law: ' Martial law extends 
 to all persons; military law to all military persons, but not to those 
 in a civil capacity.' " ' 
 
 But, if Your Honors please, this tyrannical and abyssmal law is 
 ' De Hart on Courts-martial, p. 17. 
 
462 ARGUMENT OF WILLIAM A. BEACH 
 
 only invoked in seasons of the extremest anarchy and peril. It is 
 an act of the last necessity; and it must be proclaimed before the 
 ordinary avenues of justice are closed and the vitality of civil right 
 is strangled in the mailed grasp of military rule. It will not, I 
 think, be pretended that martial law exists here. No proclamation 
 has established it. It does not practically exist. Your streets 
 abound with an armed soldiery, and the commandant issues neces- 
 sary orders for their government and discipline; but the civil 
 magistracy continue to discharge their appropriate duties, while the 
 higher courts dispense the weightier matters of the law. 
 
 I understand the learned judge advocate to maintain that the 
 city of Washington is "in the field," in a sense which introduces 
 martial law. I am not familiar with the technical signification of 
 the term. Unskilled judgment will apply it only to the scene of 
 active operations in presence of an enemy. Such an exigency alone 
 demands the suppression of the usual agencies of social order. 
 Non-combatants would not consider an unbeleaguered garrison "in 
 the field," nor a recruiting station, nor depots for troops. If 
 Washington is "in the field," so is Baltimore and New York, and 
 the large cities of the West, and martial law impends over their 
 peaceable and loyal populations. I submit to Your Honors, this 
 would be an unnecessary and mischievous application of the term, 
 vastly overreaching the necessity from which it originates. It is a 
 palpable misapplication if it implies the consequences claimed by 
 the learned judge advocate. 
 
 14. Rule as to the existence of martial law. 
 
 I deny, however, that martial law accompanies armies in the 
 field, except in the control of the excrescences which attend them. 
 Mr. De Hart thus states the doctrine: 
 
 " Armies, when engaged in active operations, are at all seasons 
 accompanied by a large train of followers who minister to their 
 convenience and comfort. The various descriptions of persons in- 
 cluded under that appellation have granted to them certain privi- 
 leges, such as living within the boundaries of the camp, and pro- 
 tection to their persons and property, dependent necessarily upon 
 the essential conditions of good order, quiet, subordination and 
 fidelity to the State. The great important interest to the nation 
 involved in the movements of an army, which, for certainty of ac- 
 tion, uniformity of conduct and ultimate success, must rely mainly 
 upon a system of rigid discipline, has caused the rule which applies 
 everywhere else for the protection of the civilian, to be somewhat 
 modified, or even for the time to be entirely set aside; hence the 
 
IN DEFENSE OF SAMUEL NORTH AND OTHERS. 463 
 
 custom which provides in the field, of trying persons not connected 
 with the army by courts-martial, must have arisen from, as it de- 
 pends on, necessity. Were any other principle for the regulation 
 of such persons admissible, it is certain that an army might suffer 
 the greatest detriment, and a way might thereby be opened for the 
 easy communication of the enemy, and the acquisition and trans- 
 mission of intelligence. Disorder, riot and confusion would neces- 
 sarily also prevail; for it would be quite impossible to exact the 
 observance of different police laws by the enlisted soldier and the 
 follower of the camps, when both parties are confined to the same 
 limits. 
 
 " But it must be remembered, that the opposition of such laws 
 to such persons would not be warranted in time of peace, under 
 the ordinary conditions of camps and garrisons; and wherever civil 
 jurisdicture is in force, the followers of the camp who are accused 
 of crimes punishable by the known laws of the land, must be given 
 up to the civil magistrate." ' 
 
 In this form the rule is quite admissible. It secures all the 
 benefit sought, without injury to the general interests of society. 
 It subjects those who voluntarily attach themselves to the army to 
 the imperious necessity which surrounds it with prompt and vigor- 
 ous subjection. There is justice in it, as well as need of it. 
 But this seems not to appease the rapacious spirit of military con- 
 solidation. It is not content with the " field," but aspires to the 
 city. It annexes to an army, quartered in the quiet and luxurious 
 metropolis of the Union, the incidents and necessities which per- 
 tain only to the " tented field " and the sulphurous din of war. 
 The ambition is not likely to be gratified. It may encroach some- 
 what upon the steady movements of our civil organizations, but 
 their majestic revolution will, full soon, repel the aggression. 
 
 15. CONSKQUENCES OF THE DOCTRINE ADVANCED BY THE 
 JUDGE ADVOCATE. 
 
 If the position be sound, the municipal and judicial institutions 
 of this district exist only by military sufferance. The action of its 
 courts depends entirely upon the indulgence of military grace. It 
 needs but the order of a military governor, and your august na- 
 tional temple will be polluted by the tread of an armed soldiery, 
 and its halls of justice and of legislation be closed. An improvised 
 military commission will occupy the places of the reverend justices 
 who dignify our national tribunal, and military edicts will supplant 
 the deliberations of Congress. This is the legitimate and close 
 
 ' De Hart on Courts-martial, pp. 22, 23. 
 
464 ARGUMENT OF WILLIAM A. BEACH 
 
 conclusion of the argument. If Your Honors adjudge the doctrine, 
 you must accept these consequences; and they may follow more 
 speedily than Your Honors would desire. Events quite as won- 
 derful have happened in history. 
 
 i6. Constitutional rights cannot be suspended. 
 
 The learned judge advocate affirms your jurisdiction upon an- 
 other and still more alarming theory. He invokes your action, be- 
 cause, as he declares, in time of war " the great mass of the pro- 
 visions of the Constitution are suspended." 
 
 It is a startling announcement, coming from the public prosecu- 
 tor, on behalf of the United States, uttered within sound of Capitol 
 Hill, under the very droppings of the sanctuary. If it were not for 
 its savor of authority, it would be execrated as an appalling sacri- 
 lege. I denounce the sentiment as at once unsound in law and 
 atrocious in principle. In a free government, regularly operating 
 in its legitimate sphere, no imaginable condition of things suspends 
 for an instant the constitutional privileges of the citizen. War 
 largely subverts individual right, but war co-exists with the Consti- 
 tution. It is by the efficient exercise of powers granted by it, not 
 by its subversion, that the calamities of war are to be overcome. 
 Broad and ample provisions anticipate the exigency. It did not 
 escape the prophetic intuition of the fathers of the republic. Just 
 emerged from the strife of the revolution, they were unlikely to for- 
 get, in the formation of a government, the necessities of war. It is 
 the wonder of their marvelous work that it grasped and provided 
 for all the possibilities of the future. It was formed for perpetuity; 
 it left nothing to the hazard of a contingency; it confided to the 
 general government the power of making treaties, of declaring war, 
 of suppressing insurrection. 
 
 Under and by virtue of the Constitution, Congress and the ^^x- 
 ecutive wield the vast resources of the nation. By it our navy is 
 founded and our armies marshaled. Its energies have gathered 
 the triumphant hosts who proudly bear to-day its banner over the 
 ruins of a gigantic rebellion. Obedient to it, a loyal people have 
 lavished upon this government their richest treasures. What more 
 does the rapacity of war demand ? And what will be the end of 
 an impaired Constitution ? The nature of this government will be 
 essentially changed, and all its invigorating principles necessarily 
 paralyzed. If this be done by military power, and in so far as 
 done, it is military despotism; however done, it is revolutionary. 
 
IN DEFENSE OF SAMUEL NORTH AND OTHERS. 465 
 
 The Constitution ordains this government, organizes its form and 
 confers and limits its authority. The principle is elemental in the 
 law and statesmanship of the country. The maxim, that govern- 
 ment is derived from the consent of the governed, is old but not 
 forgotten. It is graven deep upon our historic record. It is the 
 living principle of our national life. This consent is expressed in 
 the Constitution; through it alone are our rulers empowered. 
 There is no other fountain of power; there cannot be, in a consti- 
 tutional system. All exercised authority not conferred by its 
 grants, express and implied, is but audacious usurpation, tending in 
 the degree of its departure to the overthrow of free institiitions. 
 
 In the memorable contests of the past over governmental power, 
 how constantly have our great jurists and statesmen appealed to 
 the Constitution, bowing in reverent submission to its supremacy, 
 recognizing and honoring the obligation and wisdom of its limita- 
 tions and restraints! The idea of the learned judge advocate is a 
 wild paradox, born of these inauspicious days. Not until now has 
 it been taught that the great charter of American liberty has lost 
 its virtue; that the exigencies of war suspend the fundamental law 
 by which alone government exists. If so, it must then survive by 
 its own inherent strength, and that is a military dictatorship. It is 
 claimed thus to override the Constitution under the pretense of an 
 inexorable necessity. It is the old plea of tyrants, and thus always 
 have encroachments upon waning liberty begun, and the end, un- 
 resisted, has ever been sure and fatal. 
 
 Half a century ago, the gorgeous genius of Erskine denounced 
 this dogma of Kingcraft. I appropriate his, language. On Hardy's 
 trial for treason he thus spoke: 
 
 " What is it that distinguishes the government of England from 
 the most despotic monarch ? What but the security which the 
 subject enjoys in a trial and judgment by his equals ; rendered 
 doubly secure as being part of a system of law which no expedi- 
 ency can warp, and which no power can abuse with impunity! To 
 the attorney-general's second preliminary observation I equally 
 agree; I anxiously wish with him that you shall bear in memory 
 the anarchy which is desolating France. Before I sit down, I may, 
 perhaps, in my turn, have occasion to reflect a little upon its prob- 
 able causes; but, waiting a season for such reflection, let us first 
 consider what the evil is which has been so feelingly lamented as 
 having fallen on that unhappy country. It is, that in the dominion 
 of a barbarous State necessity, every protection of law is abrogated 
 and destroyed; it is, that no man can say, amid such a system of 
 alarm and terror, that his life, his liberty, his reputation, or any one 
 30 
 
466 ARGUMENT OF WILLIAM A. BEACH 
 
 human blessing is secured to him for a moment; it is, that, if ac- 
 cused of federalism, or moderatism, or incivism, or whatever else 
 the changing fashions and factions of the day shall have lifted up 
 into high treason against the State, he must see his friends, his 
 family, and the light of heaven no more — the accusation and the 
 sentence being the same, following one another as the thunder pur- 
 sues the flash." ' 
 
 I deny the necessity. I maintain the ability of the Constitution 
 to support itself. Upon it this government can stand, defiant of 
 all adversity. It is the fertile source of prosperity in war as well 
 as peace. In all emergencies it reconciles the high prerogatives of 
 government with the personal privileges of citizenship. It makes 
 these to harmonize and co-operate in all the diversities of its ex- 
 perience. It is only when the constitutional relation between the 
 government and the citizen is disturbed, that disorder ensues. 
 Maintain that inviolate, restrict power to its prescribed sphere, at- 
 taching to it thus the hopes and interests of the people, and you 
 give to this nation immortal life. 
 
 17. The doctrine of suspending the Constitution novel 
 
 and startling. 
 
 I appeal from the present to the past, from the learned judge 
 advocate to the venerated sages of America, from the war of to-day 
 to those of history. If I remember aright, this government en- 
 countered some stringent necessities in the war of 181 2. Patriotism, 
 in a certain quarter, now intensely loyal, was not as fervid then. 
 The heresy of secession was more than dreamed of in those early 
 days, north of Mason a,nd Dixon's line. We were in our youth, 
 struggling with the giant of nations; but the grand specific of the 
 learned judge advocate, through a suspension of the Constitution, 
 was not then administered. The necessity was dire enough. The 
 embargo sat heavily upon New England, and she did more than 
 mutter; but the Constitution was unshaken, and the war was glori- 
 ous. The modern invention of abrogating and reinstating the or- 
 ganic law, the idea that the Constitution could exist in suspended 
 animation, dandled in the arms of military terrorism, had not then 
 been discovered; it was too near the cradle of the republic. 
 
 18. Provisions of the Constitution sufficient for every 
 
 POLITICAL possibility. 
 
 It will be difficult to mention any necessary operation of war 
 ' Howell's State Trials, vol. 24, p. 878. 
 
IN DEFENSE OF SAMUEL NORTH AND OTHERS. 467 
 
 upon civil rights not embraced by the qualifications of the Consti- 
 tution. The learned judge advocate referred to the deprivation of 
 trial by jury, forgetting that by the Constitution the right is with- 
 held from the military and naval forces when in actual service. I 
 do not stop to urge the implication springing from this express 
 provision. The power to raise armies and wage war carries all 
 authority necessary to do so effectually. The unavoidable inci- 
 dents of war accompany its existence. By the declaration of the 
 Constitution, government possesses all powers necessary to render 
 effective those specifically granted. What need, then, to assail the 
 Constitution ? Whenever actual necessity requires the sacrifice of 
 private property, or individual right, the Constitution authorizes it. 
 Why, then, inculcate the pernicious notion that it is unequal to its 
 great office; that the vigor which has borne it gallantly through 
 two foreign conflicts, is unable to subdue the rebellious outbreaks 
 of its own subjects ? It has become fashionable to decry its 
 merits. We have lost our veneration for the political parent which 
 has nursed and protected our infancy and glorified our manhood. 
 We have grown too large and strong for constitutional restraint. 
 It needs but the doctrine of the learned judge advocate to disen- 
 cumber our maddened passions and ambitions of all embarrass- 
 ment, and leave us to that career of political profligacy which pro- 
 phesied and accomplished the fate of the old republics. 
 
 19. All constitutional authority clearly defined. 
 
 I have claimed for government the broadest incidental powers. 
 I believe the Constitution expansile enough for all the possibilities 
 it may meet. This, by no means, concedes that these powers, when 
 their exertion is demanded, are to remain inexplicit and indefinite, 
 dependent upon the caprice of military captains or the arbitrary 
 will of the executive. They mainly appertain to Congress. So far 
 as concerns the necessities of war, they have been expressed and 
 methodized by legislative act and the law of nations. The articles 
 of war define their quality and regulate their exercise; the modes 
 by which they operate, the agencies through which they act, are all 
 nominated, and, beyond these, they remain unexerted in the hands 
 of Congress. The most superficial student knows, that in a repre- 
 sentative, constitutional government, its officers have no undefined, 
 discretionary authority, undelegated by the Constitution or the 
 legislature. All official power must originate from these; and this 
 
468 ARGUMENT OF WILLIAM A. BEACH 
 
 is the radical distinction between our own system and the simple 
 monarchies of Europe. When it shall become the expressed will 
 of the people to eradicate this difference, and not till then, will the 
 theory of the learned judge advocate be accepted by American 
 law or by popular favor. 
 
 20. Case of Vallandigham distinguished. 
 
 It has been said that the opinion of Judge Leavitt, in the case 
 of Vallandigham, intimates it. On the contrary, its reasoning and 
 avowals are in direct opposition to it. The judge says (p. 263): 
 
 " In my judgment, when the life of the republic is threatened, he 
 mistakes his duty and obligation as a patriot, who is not willing to 
 concede to the Constitution such a capacity of adaptation to cir- 
 cumstances as may be necessary to meet a great emergency and 
 save the nation from hopeless ruin." 
 
 It is the flexible quality of the Constitution, adapting itself to 
 the emergencies of war, or rather, it is its sagacious foresight, 
 anticipating and providing for them, to which the judge appeals. 
 He concedes both its obligation and its efficiency. He counte- 
 nances no such abomination as a suspension of " the great mass " of 
 its powers. Again he says (p. 266) : 
 
 " In time of war the President is not above the Constitution, 
 but derives his power expressly from the provision of that instru- 
 ment, declaring that he shall be commander-in-chief of the army 
 and navy. * * * f jjg occasion which justifies the exer- 
 cise of this power, exists only from the necessity of the case; and 
 when the necessity exists, there is a clear justification of the act. 
 If this view of the power of the President is correct, it undoubt- 
 edly implies the right to arrest persons who, by their mischievous 
 acts of disloyalty, impede or endanger the military operations of 
 the government." 
 
 These sentiments cannot be misunderstood or misapplied. 
 They recognize the supreme obligations of the Constitution, and 
 fortify, with singular exactness, the considerations I have sub- 
 mitted to Your Honors. They locate the war power of the govern- 
 ment in the Constitution. They do more. They justify its exer- 
 cise against civil right only " from the necessity of the case." They 
 confine military arrests to those persons " who, by their mischiev- 
 ous acts of disloyalty, impede or endanger the military operations 
 of the government." 
 
m DEFENSE OF SAMUEL NORTH AKD OTHERS. 469 
 
 21. The offenses charged not hostile to the military 
 operations of the government. 
 
 When Your Honors shall find an imperative necessity requiring 
 the arrest and punishment of these defendants; when any act shall 
 have been proven against them, impeding or endangering the mili- 
 tary operations of the government, your jurisdiction may be ac- 
 knowledged. But where is the necessity? and how have my clients 
 interfered with military action ? The great and manifest distinction 
 between the case of Vallandigham and this is, that he was charged 
 with conduct pernicious to the discipline of the army. General 
 Burnside, in his statement to the court, vindicated his order pre- 
 cisely upon this ground. The charge upon the military commis- 
 sion, was " declaring disloyal sentiments and opinions, with the ob- 
 ject and purpose of weakening the power of the government in its 
 efforts to suppress an unlawful rebellion." 
 
 What analogy is there in the two examples ? Have these de- 
 fendants propagated disloyalty, fomented dissension, alienated the 
 patriotism of the army, or disturbed its harmony ? Not at all. 
 Your Honors. They were the commissioned agents of New York 
 in ministering to the wants of her soldiery. Their efforts were 
 auxiliary to the government and in aid of the effectiveness of the 
 army. They are charged with no design or act hostile to military 
 operations. No treasonable sentiment is imputed to them. If they 
 did all of which they are accused, they have violated no military 
 order, endangered no military enterprise, tampered with no mili- 
 tary obligation. Be he a traitor or a patriot, they are not fit asso- 
 ciates for Vallandigham; his fate furnishes no precedent for their 
 condemnation. This prosecution remains unprecedented and un- 
 paralleled. It stands upon no sure foundation of principle or ex- 
 ample. It appeals to no impulse of patriotism. You seek, in ne- 
 cessity, some apology for its merciless cruelty, and find none. These 
 defendants have tasted the bitterness of a felon's captivity, felt the 
 dishonoring and savage rigor of military infliction, isolated from 
 the amenities and sympathies of social life. Justice demands a 
 reason for this barbarous invasion of constitutional right. What 
 imminent danger impended ? What interest of State was imperiled ? 
 What clamoring exigency exacted the sacrifice? None, Your 
 Honors, none. They are the powerless victims of authority mis- 
 chievously perverted, hopeless, save in the dignified independence 
 and impartial justice of this honorable Court. 
 
470 ARGUMENT OF WILLIAM A. BEACH 
 
 22. Whether defendants can be punished under the 
 State law immaterial. 
 
 It has been further argued that New York cannot punish these 
 defendants for offenses against her laws, committed beyond her 
 territorial jurisdiction. I differ with the learned prosecutor upon 
 the abstract proposition, although it is not involved in this case. 
 The prisoners are citizens 6f New York, owing obedience to her 
 authority. They were acting under her laws and in reference to 
 her interests, and it may well be insisted that the obligation of her 
 statutes followed them everywhere. It is not, however, needful to 
 discuss the question. New York, at least, can punish crimes orig- 
 inated abroad, but consummated within her limits. If the offense 
 be set on foot here, but effected or continued there, she has ample 
 power to deal with the offender. Nor is it requisite that the crim- 
 inal act should have been personally performed by the accused, 
 within her boundaries. It is sufficient that he instigated or assisted 
 its performance. If he planned outside, and another executed 
 within her borders, he is accessary and liable. The injury is in- 
 flicted there, and he aided in its infliction. Nothing more is nec- 
 essary than that he be brought within her actual control. 
 
 The argument, at least, is but a lame apology for the inter- 
 meddling of military courts with civil obligations. Your Honors 
 cannot derive jurisdiction from the mere absence of authority else- 
 where to punish. This Court is not charged with the duty of sup- 
 plying the imperfections of the law. It is more important to de- 
 termine how much power Your Honors possess, than how little be- 
 longs to New York. The weakness of her jurisdiction does not 
 strengthen yours; and if Your Honors shall undertake to pursue all 
 offenses which would otherwise escape "unwhipped of justice," 
 your judicial functions have a remarkable origin and will have 
 abundant exercise. 
 
 23. Duty of government to protect its soldiers 
 considered. 
 
 The learned judge advocate justifies the proceedings before this 
 Court upon still another ground. He affirms it to be the " duty " 
 of government to protect the rights of its soldiers, and from this 
 he deduces the power to punish by court-martial frauds upon his 
 electoral privilege. I am at a loss to perceive how this " duty " is 
 imposed. Government cannot gratuitously assume it, and thus 
 
IN DEFENSE OF SAMUEL NORTH AND OTHERS. 471 
 
 gain jurisdiction over civilians and their rights. The duty must be 
 compuls5?y or undertaken in obedience to law; otherwise, by vol- 
 untary and officious assumption of " duty," government might in- 
 vest itself with the most arbitrary powers, and absorb in one de- 
 partment the functions of all. This is vitally opposed to the 
 protective principle of our institutions. They rest upon a division 
 of authority, upon multiplied responsibilities, upon a watchful sys- 
 tem of checks and balances hostile to centralization. 
 
 The idea of the learned judge advocate is not altogether vision- 
 ary. Undoubtedly government owes a duty to its soldiers, but it 
 relates exclusively to their rights in that special- character, and 
 which grow immediately out of their military relations. It orig- 
 inates from military character, and must be confined to military 
 subjects. If not, the superintending care of government must nec- 
 essarily overspread all the business and social interests of each 
 officer and private in the army. If it extends at all beyond strict 
 military associations, it must be comprehensive and complete. It 
 cannot be restricted to New York soldiers and frauds upon her 
 election laws. If the discharge of this universal duty has fallen 
 upon Your Honors, you must be endowed with general jurisdiction, 
 both civil and criminal. If you protect the soldier in the enjoy- 
 ment of his electoral right simply because he is a soldier, you must, 
 for the same reason, protect all others. If you punish wrongs to 
 one, you must as to all. You must defend his rights of property 
 and pursue the thief who filches his purse, the gambler who robs, 
 and the confidence man who defrauds him. Your Honors must not 
 forget his matrimonial privileges. You must frown upon seduction 
 and adultery, and amuse yourselves with actions for criminal con- 
 versation. 
 
 24. Jurisdiction of the court must arise from positive law. 
 
 Surely, the authority of this Court cannot depend upon such 
 reasoning. It is held by no such absurd tenure. You are a court 
 of law, like as any other court known to the country. You must 
 find your jurisdiction in the Constitution, and in acts of Congress 
 passed in accordance with it. You can gain it rightfully from no 
 other source. It would be lamentable, indeed, if Your Honors were 
 driven to follow the learned judge advocate, in his devious search, 
 after authority for this proceeding. Powers, such as you wield, 
 should have no dubious origin. They lay strong hold upon the 
 liberty and life of the citizen. They fall with sudden, resistless, 
 
472 ARGUMENT OF WILDIAM A. BEACH 
 
 merciless energy. The doom is arbitrary, the execution summary. 
 They should be exerted upon no doubtful occasion. They should 
 trace their descent lineally and legitimately from legal parentage. 
 Before Your Honors shall judge these accused, claiming the rights 
 of private citizenship, appealing, as they do, to the sacred guardian- 
 ship of the civil law, to the constitutional privilege of trial by jury, 
 in due course of law, you will examine your judicial lineage, and 
 see to it that you exercise no spurious authority. The occasion 
 has become too marked and conspicuous for inconsiderate action. 
 It looks toward consequences too serious for indifferent unconcern. 
 I submit to Your Honors this jurisdictional question with an 
 assured confidence, although I feel how unequal to the great theme 
 my argument has been. I have not specifically spoken of the con- 
 stitutional provisions regulating the forms of proceeding in criminal 
 prosecutions, nor of the clear intendments springing from the act 
 of 1863. I have preferred to meet this issue in the limited mode I 
 have pursued. I have sought to impress upon Your Honors the 
 ardent convictions of my own mind, and lead your judgments to a 
 wise conclusion. Notwithstanding your adverse prepossessions, I 
 have faith in the sober reflections of the righteous judge; I have 
 faith in the educated intelligence, the constitutional instincts of this 
 honorable Court, and look to them hopefully to acknowledge the 
 rights of American citizenship. 
 
 25. Questions of fact involved. 
 
 My duty, nevertheless, requires a discussion of the issues of 
 facts arising from the evidence. I might well have rested this de- 
 fense upon the poverty of the accusing proof. My clients need no 
 shelter, other than their innocence, against the asserted jurisdiction 
 of this Court. Upon this they have rested with quiet assurance, 
 while the unlimited power of this government has exhausted itself 
 in spasmodic efforts to discover proof of guilt. Always ready, they 
 have endured the ignominy and distress of a loathsome imprison- 
 ment, while this trial has been prolonged by a frantic and fruitless 
 pursuit of criminating testimony. The public prosecutor has 
 thrown his official dragnet over the State of New York, subsidized 
 private malice and partisan hate, agitated every cess-pool of polit- 
 ical garbage in his implacable purpose to convict. The judgment 
 of every thoughtful observer, the public sense of the community, 
 disapproved this prosecution. Indignant, as all true citizens were, 
 at the suspicion of attempted fraud upon the elective franchise, 
 
m DEFENSE OF SAMUEL NORTH AND OTHERS. 473 
 
 popular conviction, long ago, exonerated these defendants. 
 Magnanimous justice would have accepted the general verdict; 
 but the overheated zeal of the prosecutor, the peril of at once ad- 
 mitting the falsehood and folly of this accusation, inspired anew 
 the flagging zeal which, for its own safety, sought a victim. These 
 defendants have been tortured with the severest prison regimen, in 
 the merciless hope that desperate means would supply a justifica- 
 tion. This trial has been delayed, not to procure known evidence, 
 but to hunt it down. Suspicion alone dictated the charge; indus- 
 try was to obtain the needful testimony, and, in the meantime, a 
 gentleman of cultivated associations, distinguished for probity and 
 position, must await in prison the tardy advance of his accuser. 
 True, the spontaneous sympathy of the just and good has cheered 
 him. From political friend and political foe, his unmerited suffer- 
 ing has drawn prompt and hearty testimonials to his integrity. It 
 is none the less lamentable that such a scene should have been 
 enacted at the center of national authority, at the culminating 
 point of highest law and loftiest power. Speedy trial is due to in- 
 nocence, speedy judgment to guilt. Government owes to its sub- 
 jects protection against inquisitorial prosecutions. If the benign 
 provisions of the Constitution to this end are to be " suspended," 
 if the established tribunals of the country are to be superseded, 
 humanity cries aloud against the iniquity which executes before it 
 condemns. Probable cause alone justifies the humiliating incar- 
 ceration of a citizen. When it shall be tolerated, that military offi- 
 cials may arrest upon suspicion and imprison at will, the worst of 
 tyranny will be felt, because it is the tyranny of abused law. 
 
 What, after all, has been accomplished by these unparalleled 
 efforts of the government ? It is the power of the United States, 
 with its host of satellites and its prodigal treasures, directed by this 
 rancorous purpose, arrayed against the simple citizen powerless in 
 his cell. What wonder if this mighty influence should prevail over 
 individual weakness! We are not ignorant of the insidious re- 
 sources of towering dominion. It finds zealous sycophants. 
 Ready instrumentalities are tendered to its service. Obsequious 
 parasites divine its wishes and pander to their gratification. This 
 is a government prosecution. The majesty of the accuser intensi- 
 fies the charge. The destined victim is a prominent citizen of his 
 native State, more deeply obnoxious from his distinction. The 
 crime alleged is an atrocious attempt to deprave the vital principle 
 of our free institutions. Who will deny that the gravest delibera- 
 
474 ARGUMENT OF WILLIAM A. BEACH 
 
 tion, the most cautious investigation, should precede the spectacle 
 this proceeding exhibits ? Who could anticipate from it " a most 
 lame and impotent conclusion " which provokes the ridicule and 
 scorn of the world ? ' ' 
 
 I cannot anticipate the judgment of this Court; but in the in- 
 stincts of a common manhood, I may believe that Your Honors 
 cannot but feel how pitiful is the denouement of this miserable 
 tragedy. 
 
 If all be conceded that the most embittered malice can claim 
 from the proof, what is the magnitude of the crime which has so 
 aroused the vindictive energies of the government ? Frightful de- 
 velopments of gigantic frauds were promised. The press and the 
 rostrum, with glaring italics and vehement denunciation, paraded 
 the coming revelation. The frenzy of political zeal was maddened 
 with spectral visions of ponderous " boxes " and flitting shapes, 
 ominous of political ruin. The State agency of New York, mar- 
 shalled by Col. North, with huge and stealthy fraud, were corrupt- 
 ing the whole franchise of the Union, and the startled country 
 seemed to see the fabric of government tottering to its fall. Truly, 
 the mountain heaved in painful labor. Your Honors are witnesses 
 to the royal delivery, and are to christen the contemptible progeny. 
 
 This State prosecution claims to have revealed the astounding 
 fact, that a dozen preparatory forms for soldiers' votes were signed 
 and certified in blank, by a competent officer, to be executed by 
 the voter at need. With ostentatious fraud they were spread upon 
 a public table, in the absence of the official who alone could prop- 
 erly employ them; and the evidence fails to show a single instance 
 of their effectual use. There is not the slightest proof of a single 
 false ballot deposited. It is pretended that these forms were pre- 
 served for an emergency. It is a false pretense; but, if true, they 
 were not used. The diligence of the learned judge advocate has 
 succeeded in raising a suspicion that, during the entire canvass, 
 three attempts were made by somebody to change soldiers' votes. 
 How and by whom made is at the best problematical, but they all 
 signally failed. 
 
 In its utmost latitude, this is the " head and front of the offend- 
 ing — no more." That it was not even this, I hope to demonstrate. 
 But grant it this, how far short it is of criminality, how infinitely 
 disproportioned to the direful prelude and the wearisome perform- 
 ance! What stately dignity invests the government of the United 
 States, presiding at this momentous accouchement. 
 
IN DEFENSE OF SAMUEL NORTH AND OTHERS. 475 
 
 Here Mr. Beach reviewed in detail the testimony to show that the defend- 
 ants were entitled to an acquittal on the evidence. In discussing the alleged 
 confession of guilt by Jones, one of the defendants, made in the absence of the 
 others, he contended that it was not evidence against them, on the ground that 
 the declarations of a conspirator are not competent against his fellow-conspira- 
 tors, unless made in pursuit of a common design, which must be first clearly 
 established, citing from the opinion of Chief Justice Marshall on the trial of 
 Aaron Burr (Burr's Trials, pp. 93-96). He contended, further, that it did not 
 implicate Col. North, and that to convict, all the circumstances must be incon- 
 sistent with the theory of innocence, citing from the opinion of Chief Justice 
 Shaw in the case of Prof. Webster (5 Cush. p. 317). After reviewing the evidence 
 of all the witnesses, he continued : 
 
 If Your Honors please, this comprises, in detail, all the evidence, 
 direct and remote, against Col. North. It is, with no sentiment of 
 disrespect to this Court, that I express my amazement that he 
 should be still held as a criminal. However just his original arrest 
 may have seemed; whatever colorable suspicions or fears may have 
 instigated it; surely, after the developments of this trial, the in- 
 structed justice of this government should have given him an 
 honorable discharge. I do not reflect upon its exertion by the 
 statement that he has been pursued by the keenest vigilance. 
 Grant that it was due to the nature of the accusation. He has 
 suffered, in advance, the doom of the convicted malefactor. Make 
 no question as to its severity. But, Your Honors, is justice to be 
 ever relentless ? Is the fable true, that she is the blind deity, smit- 
 ing with indiscriminate slaughter, careless of her victims, if but her 
 gluttony of death be satiated? No! Your Honors. If she be the 
 vengeful executioner of guilt, she is, likewise, the strong-armed 
 savior of innocence. Her watchful eye pierces the murky cloud of 
 circumstance, searches the mazy web of artful contrivance, until 
 she grasps the sure and steady arm of her majestic handmaid — 
 truth. Seek truth. Your Honors. Rest your unwavering justice 
 upon it, not upon the frail and staggering foundation of misty 
 doubts and unsteady suspicions. 
 
 26. Private character of Colonel North. 
 
 And if Your Honors are still unconvinced, regard the spotless 
 character of the man you judge. It is an unsoiled mantle of pur- 
 ity wrapping its protecting folds around his whole life. An ami- 
 able and accomplished gentleman, endeared to his friends; an un- 
 tarnished merchant and officer, honored by the world; an ardent, 
 but stainless politician, respected by his adversaries, he appeals to 
 
476 ARGUMENT OF WILLIAM A. BEACH 
 
 the congenial instincts of his judges. Had guilt been proven, even 
 his unblemished name would not save him; but, in the sometimes 
 subtle entanglement of malicious circumstance encompassing the 
 good man with shadows, he may confidently and proudly point to 
 his blameless reputation. I repel the idea that there is an atom of 
 proof from which the foulest hate can hatch suspicion. But if 
 there were, I meet it with an invulnerable character and defy its 
 venom. Once, at least, it saves from doubtful circumstance. It 
 can but once; for even defeated accusation leaves its enduring 
 taint. The memory of this trial will cling to Col. North, ever sup- 
 plying malice with its poison. Your judgment may acquit him, but 
 he has been suspected and accused, and that, with censorious 
 rumor, is guilt. 
 
 His fate, Your Honors, is in your hands. All of honor he has 
 won in the past, all of hope he has for the future, awaits your de- 
 cision. The State whose representative he is, the troops of friends 
 whose devoted faith attests his innocence, loving kindred who lean 
 upon him in gentle affection: all implore you to give him true de- 
 liverance. United with their voices, not in supplication but in 
 mandate, Your Honors hear the loud and decisive tones of legal 
 privilege and constitutional immunity. There have been times 
 when all these were unavailing to redeem from the fires of persecu- 
 tion. Their bloody track along the annals of history stands as a 
 warning, not as an example. Succeeding them is traced the 
 magnificent struggle of professional genius with the minions of 
 royal prerogative, and then came the triumph of disenthralled hu- 
 manity; and, still onward, the growing illumination of American 
 progress has lighted the pathway of civilization. I pray you, let 
 not the record be dishonored by the faltering virtue of our judi- 
 ciary. It is enough that the bold front of treason defies the Con- 
 stitution; let it not be defiled in the holy tabernacle of the law. 
 
 Here Mr. Beach reviewed the evidence in regard to the defendant Cohn, to 
 show that nothing fraudulent or criminal had been proven against hiin. After 
 referring to the testimony as to his good character, and analyzing the statements 
 of each of the witnesses against him, he continued : 
 
 If Your Honors please, I have thus analyzed the proofs and 
 given them appropriate application. I may have misconceived 
 their character and misjudged their force; but I submit them to 
 the judgment of this Court without apprehension, and to the intel- 
 ligence of the country without misgiving. Acknowledging, but not 
 
m DEFENSE OF SAMUEL NORTH AND OTHERS. 477 
 
 fearing the ability of my learned adversary, without arrogance, but 
 with boldness, I challenge all dispute of the conclusions I have 
 established. I demand legal deliberation and logical results, not 
 the vapid demagogueism and unreasoning prejudice of a political 
 conclave. My clients are to answer in a court of law for their 
 proven acts, not to a party caucus for suspected wrong. Your 
 Honors are judges, not partisans, and I may expect that my learned 
 friend will demonstrate, not denounce. He is fully able to discuss 
 this case with the learning and candor of the true lawyer. It will 
 demand his highest qualities. Although he has not considered it 
 his duty to yield to my clients a proper acknowledgment of their 
 innocence, he will, I am persuaded, grant them the fairness of an 
 honorable debate. 
 
 Here Mr. Beach compared the evidence with the charges and specifications, 
 to show that the evidence was upon authority wholly insufficient to sustain them, 
 and cited O'Brien on American Military Law, pp. 192, 265, and De Hart on 
 Courts-martial, p. 298. He then continued : 
 
 It is only when Your Honors pass the pitiable insignificance of 
 the proof, that the real greatness of this issue appears. It is then 
 you enter the atmosphere of loftiest thought, loaded with the genius 
 and wisdom of the mighty past, pregnant with the issues of the 
 mightier future. You tread sanctified ground, and there your 
 weighty responsibility begins. 
 
 27. Interest and importance of the issues in the case. 
 
 You see how this case mingles with the great topics of govern- 
 mental power which have stirred the heart of the world since the 
 endless struggle began between liberty and oppression. You can- 
 not, if you would, belittle it. It is not alone the fate of these de- 
 fendants you are to decide. Strange as it may seem, here — even 
 here, before a military commission, the legal representative of the 
 government of the United States demands a judgment afiSrming 
 the suspension of the Constitution. He seeks the liberty, if not 
 the lives of these defendants, over the shattered fragments of lib- 
 erty and law. The issue is sharply made between the government 
 and the citizen. The learned judge advocate concedes, argument- 
 atively, that he can reach the accused only through a broken Con- 
 stitution. Vour Honors must approve his amazing doctrines, or 
 you must acquit. I know, not how potentially your decision may 
 affect the future history of the country; I do know that, whatever 
 that history may become, you may have the proud satisfaction of 
 
478 ARGUMENT OF 'WILIilAM A. BEACH 
 
 linking your names nobly with the fate of constitutional freedom. 
 It may be that the forebodings of many good men are but the 
 childish fears of a timid conservatism. The lessons of the past 
 may be reversed; triumphant power may surrender its victories 
 over violated right, and restore a mangled Constitution; but, Your 
 Honors, it is not for you to speculate upon the desperate venture. 
 As a court you will administer the supreme law, temporizing with 
 no considerations of expediency, fearless of all dictation, animated 
 only by an unswerving love of justice. 
 
 It cannot be concealed that this cause derives further interest 
 from its conflict with the claimed power of the State of New York. 
 The defendants are her citizens. The law violated, if any has 
 been violated, is the law of her legislature. The offense, if any, is 
 against her sovereignty. By taunt and gibe and innuendo, her 
 executive has been assailed, and the purity of her elective franchise 
 has been impeached. These have been justified by the revelations 
 of this trial. The calumnies of a reckless partisanship have been 
 refuted by the clearest demonstration. They answered their tem- 
 porary purpose; but their calculating and baseless malice has been 
 exposed. It remains for this Court to recognize and acknowledge 
 the jurisdiction of the State of New York over these defendants. 
 She claims the power to vindicate her own majesty, to avenge her 
 own laws, and purify her own record. She asks no aid from the 
 military arm of this government. Competent to punish, if guilty, 
 and to protect, if innocent, she demands her citizens from the 
 hands of this Court. Your Honors may heed her not. In the flush 
 of armed authority, environed by the " pomp and circumstance " 
 of war, her remonstrating voice may be unheard. She raises above 
 her persecuted children the double shield of the Constitution and 
 her own sovereignty. You may suspend the one and deride the 
 other; but your judgment must meet the review of posterity, if it 
 shall escape the swift retribution of the present. 
 
 And why, Your Honors, deny her claim ? Is the justice of New 
 York distrusted ? Is her loyalty to our institutions suspected ? Is 
 she so debauched and impotent that the general government, by 
 military tribunals, must assume to vindicate her honor? What 
 overwhelming State necessity demands a remedy so revolutionary 
 and perilous? Is the army endangered? Is the government 
 shaken? Have rebellion and anarchy uprooted the constituted 
 forms of peaceful society? Oh no! Your Honors; not in these 
 must you seek the cause of this unrighteous prosecution. It is 
 
m DEFENSE OF SAMUEL NORTH AND OTHERS. 479 
 
 honored by no love of country, dignified by no zealous fear for her 
 security. It is all selfish and malignant. It is the instrumentality 
 of despotism, or it is the refuge for political depravity. It may be 
 both; but whichever it is, it is destined to ignoble failure and per- 
 petual malediction. These defendants may be immolated, but the 
 purpose which sacrifices them shall not be secured. The rebound- 
 ing vigor of the Constitution, the elastic vitality of the law, will 
 ultimately prevail. Patriotism may sleep on in its strange apathy; 
 the delusion of a vicious prosperity may mislead its vigilance; its 
 deathless love for the Union of the fathers may stifle its alarms; 
 but the awakening will surely come. The deadly heresies, infect- 
 ing the political faith of the people, shall be uprooted ; these 
 daring invasions upon republican liberty shall be rebuked ; and 
 then, if not now, my clients shall be vindicated and avenged. 
 
WITHOUT LAW THERE IS NO SECURITY. 
 
 JEREMY BENTHAM. 
 
 Law, alone, has accomplished what all the natural feelings were not 
 ■ able to do ; Law, alone, has been able to create a fixed and durable 
 position, which deserves the name of Property. The law, alone, could 
 accustom men to submit to the yoke of foresight, at first painful to be 
 borne, but, afterwards agreeable and mild ; it alone could encourage them 
 in labor — superfluous at present, and which they are not to enjoy till the 
 future. Economy has as many enemies as there are spendthrifts, or men 
 who would enjoy without taking the trouble to produce. Labor is too 
 painful for idleness ; it is too slow for impatience : Cunning and Injustice 
 underhandedly conspire to appropriate its fruits ; Insolence and Audacity 
 plot to seize them by open force. Hence Society, always tottering, always 
 threatened, never at rest, lives in the midst of snares. It requires, in the 
 legislator, vigilance continually sustained, and power always in action, to 
 defend it against his constantly reviving crowd of adversaries. 
 
 The law does not say to a man, "Work, and I will reward you ; '' but 
 it says to him, " Work, and by stopping the hand that would take them 
 from you, I will insure to you the fruits of your labor, its natural and 
 sufficient reward, which, without me, you could not preserve." If industry 
 creates, it is the law which preserves ; if, at the first moment, we owe 
 everything to labor, at the second, and every succeeding moment, we owe 
 everything to the law. 
 
 In order to form a clear idea of the whole extent which ought to be 
 given to the principle of security, it is necessary to consider, that man is 
 not like the brutes, hmited to the present time, either in enjoyment or 
 suffering ; but that he is susceptible of pleasure and pain by anticipation, 
 and that it is not enough to guard him against an actual loss, but also to 
 guarantee to him, as much as possible, his possessions against future 
 losses. The idea of his security must be prolonged to him throughout the 
 whole vista that his imagination can measure. 
 
 This disposition to look forward, whicJh has so marked an influence 
 upon the condition of man, may be called expectation — expectation of the 
 future. It is by means of this we are enabled to form a general plan of 
 conduct; it is by means of this that the successive moments which com- 
 pose the duration of hfe are not like isolated and independent points, but 
 become parts of a continuous whole. Expectation is a chain which unites 
 our present and our future existence, and passes beyond ourselves to the 
 generations which follow us. The sensibility of the individual is prolonged 
 through all the links of this chain. The principle of security compre- 
 hends the maintenance of all these hopes ; it directs that events, inasmuch 
 as they are dependent upon the laws, should be conformed to the expecta- 
 tions to which the laws have given birth. — [ The Principles of the Ciril Code. 
 
 [480] 
 
ARGUMENT OF JEREMIAH S. BLACK 
 
 In Defense of the Right to Trial by Jury. 
 
 [£x parte Milligan, 4 Wall. 2.] 
 
 IN THE SUPREME COURT OF THE UNITED STATES, 
 DECEMBER TERM, 1866. 
 
 Constitutional Law. — "Where the courts are open, and in the 
 proper exercise of their jurisdiction, the right of a citizen to a jury trial, 
 guaranteed by the Constitution, cannot be denied or abridged. 
 
 Analysis of Mk. Black's Argument, 
 
 i.. Of the charg-es against the relator, and 
 the tribunal by which he was con- 
 victed. 
 
 ■£. The commission which tried the relator 
 illegal, and its entire proceedings void 
 for want of jurisdiction. 
 
 3. Duty of the court to discharge the peti- 
 
 tioners shown. 
 
 4. The trial and punishment of an offense is 
 
 an exercise of exclusive authority, con- 
 ferred upon express conditions and 
 limitations. 
 
 5. Trial by jury affords the best protection 
 
 for innocence, and the surest mode of 
 punishing guilt, yet discovered among 
 men. 
 
 6. Enumeration of the rights for the pre- 
 
 servation of individual liberty, which 
 form part of the organic law. 
 
 7. Special provisions applicable to the law 
 
 of treason. 
 
 8. Historical retrospect of the provisions 
 
 which to-day secure the natural rights 
 of man. 
 
 9. No military tribunal has power to try a 
 
 citizen at a place where the courts are 
 
 open — The title by which a jury trial 
 is secured. 
 
 10. In turbulent t'mes tha rights of the 
 
 citizen should be doubly guarded. 
 
 11. Why the plea of necessity, the only ex- 
 
 c 'se for violating law, has no appli- 
 cation to the case. 
 
 12. Necessity could but excuse a violation 
 
 of law, but cannot impart validity to 
 an act which the law forbids. 
 
 13. Results of the doctrine that trial by jury 
 
 is lost to the citizen during the exist- 
 ence of war. 
 
 14. The rights of the civil authorities have 
 
 been regarded as sacred in the past. 
 
 15. Neither the I2.W of nations, nor the laws 
 
 of war, have any bearing on the cas2. 
 
 16. Legal modes possessed by the govern- 
 
 ment lor protecting itself against 
 danger. 
 
 77. A military commission an anomaly au- 
 thorized by no law, and governed by 
 no laws of its own. 
 
 18. Military commission synonymous with 
 arbitrary power.— Review of the va- 
 rious modes in which it has been ex- 
 ercised throughout the world. 
 
 Lambdin P. Milligan, W. A. Bowles, and Stephen Horsey, during the war 
 of the rebellion, in October, 1864, were arrested by order of General Alvin P. 
 Hovey, commanding the military district of Indiana, brought before a military 
 commission convened at Indianapolis, tried on certain charges and specifications, 
 found guilty, and sentenced to be hanged. Friday, May 19th, 1865, was the day 
 
 31 [481] 
 
482 ARGUMENT OF JEREMIAH S. BLACK 
 
 fixed for their execution. The charges on which Milligan and his associates were 
 convicted, were substantially that they had joined and aided a secret society 
 known as the " Order of American Knights, or Sons of Liberty," for the purpose 
 of destroying the government, communicating with the enemy, conspiring to 
 seize munitions of war belonging to the Union forces, and to liberate rebel 
 prisoners confined within the Federal lines. Nine days prior to the time fixed 
 for his execution, Milligan applied by petition to the Circuit Court of the Unit- 
 ed States for his discharge, on the ground that his imprisonment and detention 
 were unauthorized and illegal. Upon the matters presented by the petition the 
 court were divided in opinion, and certified the following questions to the 
 Supreme Court of the United States, based upon all the facts .set out in 
 the record; (i.) Should a writ of habeas corpus be issued? (2.) Should Milligan 
 be discharged as prayed for? (3.) Had the military commission jurisdiction 
 legally to try and sentence the petitioner ? The court held that the writ would 
 issue, and that Milligan was entitled to his discharge, on the ground that the 
 military commission was unauthorized and illegal, and acquired no jurisdiction 
 to try and sentence him. Although the court were unanimous in their judgment 
 that the relator should be discharged, there seemed to be a difference of opinion 
 as to the power of Congress to establish military commissions. In view of this 
 fact, a separate opinion was written by Chief Justice Chase, which was concurred 
 in by Justices Swayne, Wayne and Miller, declaring that while the particular 
 commission which sentenced Milligan was not authorized, yet the power of 
 Congress to authorize trials for crimes' against the security and safety of the 
 national forces may be dsrived in time of war but not in peace, from its author- 
 ity to raise and support armies and to declare war, if not from its Constitutional 
 authority to provide for governing the national forces. Mr. Justice Davis was 
 the organ of the court, and delivered the opinion of the majority with a power 
 of convincing logic, which does infinite honor to his name. He fully adopted 
 the views of the counsel for the relator. 
 
 This defense of the right of trial by jury is a marvelous display of Judge 
 Black's extraordinary power and abilities as a lawyer, and the enduring import- 
 ance of the subject will render it interesting as long as the individual liberty of 
 the citizen shall be preserved as part of the frame-work of human government. 
 It was delivered during a period of great political excitement, before the passions 
 and prejudices stirred up by the greatest civil war in history had been allayed. 
 It affected the destiny of one whose crimes were aimed at the destruction of the 
 government itself, and the public desire to see the sentence of the commission 
 executed, was very general. Since the anger and excitement of the times have 
 passed away, and. the great questions involved in this case present themselves in 
 their true aspect and importance, the argument of Judge Black becomes conspic- 
 uous as a defense of the dearest rights of the citizen, and stands like a monument 
 to which the eyes of mankind will turn in the hpur when their rights are assailed. 
 It will be admired by the student as a comprehensive exposition of the funda- 
 mental principles upon which the law of civil liberty depends, and the causes 
 ■i\hich led to their perfection and adoption under our system. The subject loses 
 the dry, tedious detail of a legal argument, and becomes animated with the 
 spirit and genius of the speaker, while presenting a review of the struggle be- 
 tween freedom and arbitrary power which the world has witnessed for centuries. 
 
IN DEFENSE OF THE RiaHT TO TRIAX BY JURY. 483 
 
 It will be considered precious by persons in every walk of life, for it defines 
 in a masterly manner the natural rights guaranteed to each individual by the 
 organic law, and its importance in this respect clothes it with the heritage of 
 immortality. 
 
 On the part of the relator appeared David Dudley Field, J. E. McDonald, 
 Jeremiah S. Llack, and James A. Garfield. On the part of the government the 
 attorney-general (Mr. Speed) and Mr. Stanberry and Benjamin F. Butler, of 
 counsel. Mr. Black spoke as follows : 
 
 May it please your honors : — I am not afraid that you will 
 underrate the importance of this case. It concerns the rights of 
 the whole people. Such questions have generally been settled by 
 arms ; but since the beginning of the world no battle has ever 
 been lost or won upon which the liberties of a nation were so dis- 
 tinctly staked as they are on the result of this argument. The pen 
 that writes the judgment of the court will be mightier, for good or 
 for evil, than any sword that ever was wielded by mortal arm. 
 
 As might be expected from the nature of the subject, it has 
 been a good deal discussed elsewhere, in legislative bodies, in pub- 
 lic assemblies, and in the newspaper press of the country. But 
 there it has been mingled with interests and feelings not very 
 friendly to a correct conclusion. Here we are in a higher atmos- 
 phere, where no passion can disturb the judgment or shake the even 
 balance in which the scales of reason are held. Here it is purely a 
 judicial question; and I can speak for my colleagues as well as my- 
 self, when I say that we have no thought to suggest which we do 
 not suppose to be a fair element in the strictly legal judgment 
 which you are required to make up. 
 
 In performing the duty assigned to me in the case, I shall neces- 
 sarily refer to the mere rudiments of constitutional law; to the 
 most commonplace topics of history, and to those plain rules of 
 justice and right which pervade all our institutions. I beg your 
 honors to believe that this is not done because I think that the 
 court, or any member of it, is less familiar with these things than I 
 am, or less sensible of their value; but simply and only because, 
 according to my view of the subject, there is absolutely no other 
 way of dealing with it. If the fundamental principles of American 
 liberty are attacked, and we are driven behind the inner walls of the 
 Constitution to defend them, we can repel the assault only with 
 those same old weapons which our ancestors used a hundred years 
 ago. You must not think the worse of our armor because it hap- 
 pens to be old-fashioned and looks a little rusty from long disuse. 
 
484: ARGUMENT OF JEREMIAH S. BLACK 
 
 I. Of the charges against the relator, and the 
 
 TRIBUNAL BY WHICH HE WAS CONVICTED. 
 
 The case before you presents but a single point, and that an ex- 
 ceedingly plain one. It is not encumbered with any of those vexed 
 questions that might be expected to arise out of a great war. You 
 are not called upon to decide what kind of rule a military com- 
 mander may impose upon the inhabitants of a hostile country 
 which he occupies as a conqueror, or what punishment he may in- 
 flict upon the soldiers of his own army or the followers of his 
 camp; or yet how he may deal with civilians in a beleaguered city 
 or other place in a state of actual siege, which he is required to de- 
 fend against a public enemy. The contest covers no such ground 
 as that. The men whose acts we complain of erected themselves 
 into a tribunal for the trial and punishment of citizens who were 
 connected in no way whatever with the army or navy. And this 
 they did in the midst of a community whose social and legal organi- 
 zation had never been disturbed by any war or insurrection, where 
 the courts were wide open, where judicial process was executed 
 every day without interruption, and where all the civil authorities, 
 both State and national, were in the full exercise of their functions. 
 
 My clients were dragged before this strange tribunal, and after 
 a proceeding, which it would be mere mockery to call a trial, they 
 were ordered to be hung. The charge against them was put into 
 writing and is found on this record, but you will not be able to de- 
 cipher its meaning. The relators were not accused of treason; for 
 no act is imputed to them which, if true, would come within the 
 definition of that crime. It was not conspiracy under the act of 
 1861; for all concerned in this business must have known that con- 
 spiracy was not a capital offense. If the commissioners were able 
 to read English, they could not help but see that it was made pun- 
 ishable, even by fine and imprisonment, only upon condition that 
 the parties should first be convicted before a circuit or district 
 court of the United States. The judge advocate must have meant 
 to charge them with some offense unknown to the laws, which he 
 chose to make capital by legislation of his own, and the commis- 
 sioners were so profoundly ignorant as to think that the legal inno- 
 cence of the parties made no difference in the case. I do not say 
 what Sir James Mackintosh said of a similar proceeding: that the 
 trial was a mere conspiracy to commit willful murder upon three 
 innocent men. The commissioners are not on trial; they are absent 
 and undefended; and they are entitled to the benefit of that charity 
 
IN DEFENSE OF THE RIGHT TO TRIAL BY JURY. 483 
 
 which presumes them to be wholly unacquainted with the first prin- 
 ciples of natural justice, and quite unable to comprehend either 
 the law or the facts of a criminal cause. 
 
 2. The commission which tried the relator, illegal and 
 
 its entire proceedings void for want 
 
 of jurisdiction. 
 
 Keeping the character of the charges in mind, let us come at 
 once to the simple question upon which the court below divided in 
 opinion: Had the commissioners jurisdiction — were they invested 
 with legal authority to try the relators and put them to death for 
 the offense of which they were accused ? We answer, no; and, 
 therefore, the whole proceeding from beginning to end was utterly 
 null and void. On the other hand, it is absolutely necessary for 
 those who oppose us to assert, and they do assert, that the com- 
 missioners had complete legal jurisdiction both of the subject-mat- 
 ter and of the parties, so that their judgment upon the law and the 
 facts is absolutely conclusive and binding, not subject to correction 
 nor open to inquiry in any court whatever. Of these two opposite 
 views, you must adopt one or the other; for there is no middle 
 ground on which you can possibly stand. 
 
 I need not say (for it is the law of the horn books) that where a 
 court (whatever may be its power in other respects) presumes to 
 try a man for an offense of which it has no right to take judicial 
 cognizance, all its proceedings in that case are null and void. If 
 the party is acquitted, he cannot plead the acquittal afterwards in 
 bar of another prosecution; if he is found guilty and sentenced, he 
 is entitled to be relieved from the punishment. If a Circuit Court 
 of the United States should undertake to try a party for an offense 
 clearly within the exclusive jurisdiction of the State courts, the 
 judgment could have no effect. If a county court in the interior 
 of a State should arrest an officer of the Federal navy, try him, and 
 order him to be hung for some offense against the law of nations, 
 committed upon the high seas or in a foreign port, nobody would 
 treat such a judgment otherwise than with mere derision. The 
 Federal courts have jurisdiction to try offenses against the laws of 
 the United States, and the authority of the State courts is confined 
 to the punishment of acts which are made penal by State laws. It 
 follows that where the accusation does not amount to an offense 
 against the law of either the State or the Federal government, no 
 court can have jurisdiction to try it. Suppose, for example, that 
 
4S0 ARGUMENT OF JEREMIAH S. BLACK 
 
 the judges of this court should organize themselves into a tribunal 
 to try a man for witchcraft, or heresy, or treason against the Con- 
 federate States of America, would any body say that your judg- 
 ment had the least validity ? 
 
 I care not, therefore, whether the relators were intended to be 
 charged with treason or conspiracy, or with some offense of which 
 the law takes no notice. Either or any way, the men who under- 
 took to try them had no jurisdiction of the subject-matter. 
 
 Nor had they jurisdiction of the parties. It is not pretended 
 that this was a case of impeachment, or a case arising in the land 
 or naval forces. It is either nothing at all or else it is a simple 
 crime against the United States, committed by private individuals 
 not in the public service, civil or military. Persons standing in 
 that relation to the government are answerable for the offenses 
 which they may commit only to the civil courts of the country. So 
 says the Constitution, as we read it ; and the act of Congress of 
 March 3d, 1863, which was passed with express reference to persons 
 precisely in the situation of these men, declares that they shall be 
 delivered up for trial to the proper civil authorities. 
 
 3. Duty of the court to discharge the petitioners shown. 
 
 There being no jurisdiction of the subject-matter or of the par- 
 ties, you are bound to relieve the petitioners. It is as much the 
 duty of a judge to protect the innocent as it is to punish the 
 guilty. Suppose that the secretary of some department should 
 take it into his head to establish an ecclesiastical tribunal here in 
 the city of Washington, composed of clergymen " organized to 
 convict" every body who prays after a fashion inconsistent with 
 the supposed safety of the State. If he would select the members 
 with a proper regard to the odium fheologicum, I think I could in- 
 sure him a commission that would hang every man and woman 
 who might be brought before it. But would you, the judges of the 
 land, stand by and see their sentences executed ? No ; you would 
 interpose your writ of prohibition, your habeas corpus, or any other 
 process that might be at your command, between them and their 
 victims. And you would do that for precisely the reason which 
 requires your intervention here — because religious errors, like po- 
 litical errors, are not crimes which any body in this country has 
 jurisdiction to punish, and because ecclesiastical commissions, like 
 military commissions, are not among the judicial institutions of 
 this people. Our fathers lonj ago cast them both aside among the 
 
IN DEFENSE OF THE RIGHT TO TRIAL BY JURY. 487 
 
 rubbish of the dark ages ; and they intended that we, their chil- 
 dren, should know them only that we might blush and shudder at 
 the shameless injustice and the brutal cruelties which they were 
 allowed to perpetrate in other times and other countries. 
 
 But our friends on the other side are not at all impressed with 
 these views. Their brief corresponds exactly with the doctrines 
 propounded by the attorney-general, in a very elaborate official 
 paper which he published last July, upon this same subject. He 
 then avowed it to be his settled and deliberate opinion that the 
 military might "take a7id kill, try and execute" (I use his own 
 wordsj persons who had no sort of connection with the army or 
 navy. And though this be done in the face of the open courts, the 
 judicial authorities, according to him, are utterly powerless to pre- 
 vent the slaughter which may thus be carried on. That is the 
 thesis which the attorney-general and his assistant counsellors are 
 to maintain this day, if they can maintain it, with all the power of 
 their artful eloquence. 
 
 We, on the other hand, submit, that a person not in the military 
 or naval service cannot be punished at all until he has had a fair, 
 open, public trial before an impartial jury, in an ordained and es- 
 tablished court, to which the jurisdiction has been given by law to 
 try him for that specific offense. There is our proposition. Be- 
 tween the ground we take and the ground they occupy there is and 
 there can be no compromise. It is one way or the other. 
 
 Our proposition ought to be received as true without any argu- 
 ment to support it; because if that, or something precisely equiva- 
 lent to it, be not a part of our law, this is not what we have always 
 supposed it to be — a free country. Nevertheless, I take upon my- 
 self the burden of showing affirmatively not only that it is true, but 
 that it is immovably fixed in the very frame-work of the govern- 
 ment, so that it is utterly impossible to detach it without destroying 
 the whole political structure under which we live. By removing it 
 you destroy the life of this nation as completely as you would de- 
 stroy the life of an individual by cutting the heart out of his body. 
 I proceed to the proof. 
 
 4. The trial and punishment of an offense is an exercise 
 
 of exclusive authority, conferred upon express 
 
 conditions and limitations. 
 
 In the first place, the self-evident truth will not be denied, that 
 the trial and punishment of an offender against the government is 
 
488 ARGUMENT OF JEREMIAH S. BLACK 
 
 the exercise of judicial authority. That is a kind of authority 
 which would be lost by being diffused anaong the masses of the 
 people. A judge would be no judge if every body else were a judge 
 as well as he. Therefore, in every society, however rude or how- 
 ever perfect its organization, the judicial authority is always com- 
 mitted to the hands of particular persons, who are trusted to use it 
 wisely and well; and their authority is exclusive; they cannot share 
 it with others to whom it has not been committed. Where, then, is 
 the judicial power in this country ? Who are the depositaries of it 
 here? The Federal Constitution answers that question in very plain 
 words, by declaring that " the judicial power of the United States 
 shall he vested in one Supreme Court, and in such inferior courts as 
 Congress may from time to time ordain and establish." Congress has 
 from time to time ordained and established certain inferior courts; 
 and in them, together with the one Supreme Court to which they 
 are subordinate, is vested all the judicial power, properly so called, 
 which the United States can lawfully exercise. That was the com- 
 pact made with the general government at the time it was created. 
 The States and the people agreed to bestow upon that government 
 a certain portion of the judicial power which otherwise would have 
 remained in their own hands, but gave it on a solemn trust, and 
 coupled the grant of it with this express condition : that it should 
 never be used in any way but one; that is, by means of ordained 
 and established courts. Any person, therefore, who undertaTces to 
 exercise judicial power in any other way, not only violates the law 
 of the land, but he treacherously tramples upon the most import- 
 ant part of that sacred covenant which holds these States to- 
 gether. 
 
 May it please your honors : you know, and I know, and every 
 body else knows, that it was the intention of the men who founded 
 this republic to put the life, liberty and property of every person 
 in it under the protection of a regular and permanent judiciary, 
 separate, apart, distinct from all other branches of the government, 
 whose sole and exclusive business it should be to distribute justice 
 among the people according to the wants and merits of each indi- 
 vidual. It was to consist of courts, always open to the complaint 
 of the ibjured, and always ready to hear criminal accusations when 
 founded upon probable cause ; surrounded with all the machinery 
 necessary for the investigation of truth, and clothed with sufficient 
 power to carry their decrees into execution. In these courts it was 
 expected that judges would sit who would be upright, honest, and 
 
IN DEFENSE OF THE EIGHT TO TRIAL EV JURY. 489 
 
 sober men, learned in the laws of their country,' and lovers of jus- 
 tice from the habitual practice of that virtue; independent because 
 their salaries could not be reduced, and free from party passion be- 
 cause their tenure of office was for life. Although this would place 
 them above the clamors of the mere mob and beyond the reach of 
 executive influence, it was not intended that they should be wholly 
 irresponsible. For any willful or corrupt violation of their duty, 
 they are liable to be impeached ; and they cannot escape the con- 
 trol of an enlightened public opinion, for they must sit with open 
 doors, listen to full discussion, and give satisfactory reasons for the 
 judgments they pronounce. In ordinary tranquil times the citizen 
 might feel himself safe under a judicial system so organized. 
 
 But our wise forefathers knew that tranquillity was not to be 
 always anticipated in a republic ; the spirit of a free people is often 
 turbulent. They expected that strife would rise between classes 
 and sections, and even civil war might come, and they supposed 
 that in such times judges themselves might not be safely trusted in 
 criminal cases, especially in prosecutions for political offenses, where 
 the whole power of the executive is arrayed against the accused 
 party. All history proves that public officers of any government, 
 when they are engaged in a severe struggle to retain their places, 
 become bitter and ferocious, and hate those who oppose them, even 
 in the most legitimate way, with a rancor which they never exhibit 
 towards actual crime. This kind of malignity vents itself in prose- 
 cutions for political offenses, sedition, conspiracy, libel, and trea- 
 son, and the charges are generally founded upon the information of 
 hireling spies and common delators, who make merchandise of their 
 oaths and trade in the blood of their fellow men. During the civil 
 commotions in England, which lasted from the beginning of the 
 reign of Charles I to the revolution of 1688, the best men and the 
 purest patriots that ever lived fell by the hand of the public execu- 
 tioner. Judges were made the instruments for inflicting the most 
 merciless sentences on men, the latchet of whose shoes the minis- 
 ters that prosecuted them were not worthy to stoop down and un- 
 loose. Let me say here that nothing has occurred in the history of 
 this country to justify the doubt of judicial integrity which our 
 forefathers seem to have felt. On the contrary, the highest com- 
 pliment that has ever been paid to the American bench is embodied 
 in this simple fact: that if the executive officers of this government 
 have ever desired to take away the life or the liberty of a citizen con- 
 trary to law, they have not come into the courts to get it done; they 
 
490 AnouMENr of jeeemiah s. black 
 
 have gone outside 'the courts, and stepped over the Constitution, 
 and created their own tribunals, composed of men whose gross ig- 
 norance and supple subservience could always be relied on for 
 those base uses to which no judge would ever lend himself. But 
 the framers of the Constitution could act only upon the experience 
 of that country whose history they knew most about, and there they 
 saw the brutal ferocity of Jeffreys and Scroggs, the timidity of 
 Guilford, and the base venality of such men as Saunders and 
 Wright. It seemed necessary, therefore, not only to make the ju- 
 diciary as perfect as possible, but to give the citizen yet another 
 shield against the wrath and malice of his government. To that 
 end they could think of no better provision than a public trial be- 
 fore an impartial jury. 
 
 5. Trial by jury affords the best protection for inno- 
 cence, AND THE SUREST MODE OF PUNISHING GUILT, 
 YET DISCOVERED AMONG MEN. 
 
 I do not assert that the jury trial is an infallible mode of ascer- 
 taining truth. Like everything human, it has its imperfections. I 
 only say, that it is the best protection for innocence and the surest 
 mode of punishing guilt that has yet been discovered. It has borne 
 the test of a longer experience, and borne it better, than any other 
 legal institution that ever existed among men. England owes more 
 of her freedom, her grandeur, and her prosperity, to that than to all 
 other causes put together. It has had the approbation not only of 
 those who lived under it, but of great thinkers who looked at it 
 calmly from a distance, and judged it impartially. Montesquieu 
 and De Tocqueville speak of it with an admiration as rapturous as 
 Coke and Blackstone. Within the present century, the most en- 
 lightened states of continental Europe have transplanted it into 
 their countries; and no people ever adopted it once and were after- 
 wards willing to part with it. It was only in 1836 that an interfer- 
 ence with it in Belgium provoked a successful insurrection which 
 permanently divided one kingdom into two. In the same year, the 
 Revolution of the Barricades gave the right of trial by jury to every 
 Frenchman. 
 
 Those colonists of this country who came from the British 
 Islands brought this institution with them, and they regarded it as 
 the most precious part of their inheritance. The immigrants from 
 other places where trial by jury did not exist, became equally at- 
 tached to it as soon as they understood what it was. There was no 
 
m DEFENSE OF THE RIGHT TO TRIAL BY JURY. 491 
 
 subject upon which all the inhabitants of the country were more 
 perfectly unanimous than they were in their determination to main- 
 tain this great right unimpaired. An attempt was made to set it 
 aside and substitute military trials in its place, by Lord Dunmore, 
 in Virginia, and General Gage, in Massachusetts, accompanied with 
 the excuse which has been repeated so often in late days, namely, 
 that rebellion had made it necessary ; but it excited intense popu- 
 lar anger, and every colony from New Hampshire to Georgia made 
 common cause with the two whose rights had been especially in- 
 vaded. Subsequently, the Continental Congress thundered it into 
 the ear of the world, as an unendurable outrage, sufficient to justify 
 universal insurrection against the authority of the government 
 which had allowed it to be done. 
 
 If the men who fought out our revolutionary contest, when they 
 came to frame a government for themselves and their posterity, had 
 failed to insert a provision making the trial by jury perpetual and 
 universal, they would have covered themselves all over with infamy 
 as with a garment; for they would have proved themselves basely re- 
 creant to the principles of that very liberty of which they professed 
 to be the special champions. But they were guilty of no such 
 treachery. They not only took care ot the trial by jury, but- they 
 regulated every step to be taken in a criminal trial. They knew 
 very well that no people could be free under a government which 
 had the power to punish without restraint. Hamilton expressed in 
 the Federalist the universal sentiment of his time, when he said that 
 the arbitrary power of conviction and punishment for pretended 
 oifenses had been the great engine of despotism in all ages and 
 all countries. The existence of such power is utterly incompatible 
 with freedom. The difference between a master and his slave con- 
 sists only in this : that the master holds the lash in his hands and 
 he may use it without legal restraint, while the naked back of the 
 slave is bound to take whatever is laid on it. 
 
 6. Enumeration of the rights for the preservation of 
 
 individual liberty, which forms part of the 
 
 organic law. 
 
 But our fathers were not absurd enough to put unlimited power 
 in the hands of the ruler and take away the protection of law from 
 the rights of individuals. It was not thus that they meant " to se- 
 cure the blessings of liberty to themselves and their posterity." 
 
492 ARGUMENT OF JEREMIAH S. BLACK 
 
 They determined that not one drop of the blood which had been 
 shed on the other side of the Atlantic, during seven centuries of 
 contest with arbitrary power, should sink into the ground ; but the 
 fruits of every popular victory should be garnered up in this new 
 government. Of all the great rights already won, they threw not 
 an atom away. They went over Magna Charta, the Petition of 
 Right, the Bill of Rights, and the rules of the Common Law, and 
 whatever was found there to favor individual liberty they carefully 
 inserted in their own system, improved by clearer expression, 
 strengthened by heavier sanctions, and extended by a more univer- 
 sal application. They put all those provisions into the organic law, 
 so that neither tyranny in the executive, nor party rage in the Leg- 
 islature could change them without destroying the government 
 itself. 
 
 Look for a moment at the particulars and see how carefully 
 every thing connected with the administration of punitive justice is 
 guarded. 
 
 1. No ex post facto law shall be passed. No man shall be an- 
 swerable criminally for any act which was not defined and made 
 punishable as a crime by some law in force at the time when the 
 act was done. 
 
 2. For an act which is criminal he cannot be arrested without a 
 judicial warrant founded on proof of probable cause. He shall not 
 be kidnapped and shut up on the mere report of some base spy 
 who gathers the materials of a false accusation by crawling into 
 his house and listening at the key-hole of his chamber door. 
 
 3. He shall not be compelled to testify against himself. He 
 may be examined before he is committed, and tell his own story if 
 he pleases; but the rack shall be put out of sight, and even his con- 
 science shall not be tortured; nor shall his unpublished papers be 
 used against him, as was done most wrongfully in the case of Al- 
 gernon Sydney. 
 
 4. He shall be entitled to a speedy trial; not kept in prison for 
 an indefinite time without the opportunity of vindicating his inno- 
 cence. 
 
 5. He shall be informed of the accusation, its nature and 
 grounds. The public accuser must put the charge into the form 
 of a legal indictment, so that the party can meet it full in the face. 
 
 6. Even to the indictment he need not answer unless a grand 
 jury, after hearing the evidence, shall say upon their oaths that they 
 believe it to be true. 
 
1-^ DEFENSE OF THE RIGHT TO TRIAL BY JURY. 493 
 
 7. Then comes the trial, and it must be before a regulai court of 
 competent jurisdiction, ordained and established for the State and 
 district in which the crime was committed; and this shall not be 
 evaded by a legislative change in the district after the crime is al- 
 leged to be done. 
 
 8. His guilt or innocence shall be determined by an impartial 
 jury. These English words are to be understood in their English 
 sense, and they mean that the jurors shall be fairly selected by a 
 sworn officer, from among the peers of the party residing within the 
 local jurisdiction of the court. When they are called into the box, 
 he can purge the panel of all dishonesty, prejudice, personal enmity, 
 and ignorance, by a certain number of 'peremptory challenges, and 
 as many more challenges as he can sustain by showing reasonable 
 cause. 
 
 9. The trial shall be public and open, that no underhand ad- 
 vantage may be taken. The party shall be confronted with the 
 witnesses against him, have compulsory process for his own wit- 
 nesses, and be entitled to the assistance of counsel in his defense. 
 
 10. After the evidence is heard and discussed, unless the jury 
 shall, upon their oaths, tmanimously agree to surrender him up into 
 the hands of the court as a guilty man, not a hair of his head can 
 be touched by way of punishment. 
 
 11. After a verdict of guilty, he is still protected. No cruel 
 or unusual punishment shall be inflicted, nor any punishment at all, 
 except what is annexed by law to his offense. It cannot be doubt- 
 ed for a moment, that if a person convicted of an offense not capi- 
 tal were to be hung on the order of a judge, such judge would be 
 guilty of murder as plainly as if he should come down from the 
 bench, tuck up the sleeves of his gown, and let out the prisoner's 
 blood with his own hand. 
 
 12. After all is over, the law continues to spread its guardian- 
 ship around him. Whether he is acquitted or condemned he shall 
 never again be molested for that offense. No man shall be twice 
 put in jeopardy of life or limb for the same cause. 
 
 7. Special provisions applicable to the law of treason. 
 
 These rules apply to all criminal prosecutions. But, in addi- 
 tion to these, certain special regulations were required for treason, 
 the one great political charge under which more innocent men have 
 fallen than any other. A tyrannical government calls everybody a 
 traitor who shows the least unwillingness to be a slave. The party 
 
494 AUGUMEXT OF JEREMIAH S. ELACK 
 
 in power never fails, when it can, to stretch the law on that subject 
 by construction, so as to cover its honest and conscientious oppo- 
 nents. In the absence of a constitutional provision it was justly 
 feared that statutes might be passed which would put the lives of 
 the most patriotic citizens at the mercy of the basest minions that 
 skulk about under pay of the executive. Therefore a definition of 
 treason was given in the fundamental law, and the legislative au- 
 thority could not enlarge it to serve the purpose of partisan malice. 
 The nature and amount of evidence required to prove the crime 
 was also prescribed, so that prejudice and enmity might have no 
 share in the conviction. And lastly, the punishment was so limited 
 that the property of the party could not be confiscated and used to 
 reward the agents of his persecutors, or strip his family of their sub- 
 sistence. 
 
 If these provisions exist in full force, unchangeable and irrepeal- 
 able, then we are not hereditary bondsmen. Every citizen may 
 safely pursue his lawful calling in the open day; and at night, if he 
 is conscious of innocence, he may lie down in security and sleep 
 the sound sleep of the freeman. 
 
 I say they are in force, and they will remain in force. We have 
 not surrendered them and we never will. If the worst comes to 
 the worst, we will look to the living God for His help, and defend 
 our rights and the rights of our children to the last extremity. 
 Those men who think we can be subjected and abjected to the con- 
 dition of mere slaves are wholly mistaken. The great race to which 
 we belong has not degenerated so fatally. 
 
 8. Historical retrospect of the provisions which to-day 
 secure the natural rights of man. 
 
 But how am I to prove the existence of these rights? I do not 
 propose to do it by a long chain of legal argumentation, nor by the 
 production of numerous books with the leaves dog-eared and the 
 pages marked. If it depended upon judicial precedents, I think I 
 could produce as many as might be necessary. If I claimed this 
 freedom, under any kind of prescription, I could prove a good long 
 possession in ourselves and those under whom we claim it. I might 
 begin with Tacitus, and show how the contest arose in the forests 
 of Germany more than two thousand years ago; how the rough vir- 
 tues and sound common sense of that people established the right 
 of trial by jury, and thus started on a career which has made their 
 posterity the foremost race that ever lived in all the tide of time. 
 
IN DEFENSE OF THE RIGHT TO TRIAL BY JURY. 495 
 
 The Saxons carried it to England, and were ever ready to defend it 
 with their blood. It was crushed out by the Danish invasion; and 
 all that they suffered of tyranny and oppression, during the period 
 of their subjugation, resulted from the want of trial by jury. If that 
 had been conceded to them the reaction would not have taken 
 j-lice which drove back the Danes to their frozen homes in the 
 North. But those ruffian sea-kings could not understand that, and 
 the reaction came. Alfred, the greatest of revolutionary heroes and 
 the wisest monarch that ever sat on a throne, made the first use of 
 his power, after the Saxons restored it, to re-establish their ancient 
 laws. He had promised them that he would, and he was tiue to 
 them because they had been true to him. But it was not easily 
 done; the courts were opposed to it, for it limited their power — a 
 kind of pov.-er that every body covets — the power to punish with- 
 out regard to law. He was obliged to hang forty-four judges in 
 one year for refusing to give his subjects a trial by jury. When 
 the historian says he hung them, it is not meant that he put them 
 to death without a trial. He had them impeached before the grand 
 council of the nation, the Wittenagemote, the parliament of that 
 time. During the subsequent period of Saxon domination no man 
 on English soil was powerful enough to refuse a legal trial to the 
 meanest peasant. If any rninister or any»king, in war or in peace, 
 had dared to punish a freeman by a tribunal of his own appoint- 
 ment, he would have roused the wrath of the whole population; 
 all orders of society would have resisted it; lord and vassal, knight 
 and squire, priest and penitent, bocman and socman, master and 
 thrall, copyholder and villein, would have risen in one mass and 
 burnt the offender to death in his castle, or followed him in his 
 flight and torn him to atoms. It was again trampled down by the 
 Norman conquerors; but the evils resulting from the want of it 
 united all classes in the effort which compelled King John to re- 
 store it by the Great Charter. Everybody is familiar with the strug- 
 gles which the English people, during many generations, made for 
 their rights with the Plantagenets, the Tudors, and the Stuarts, and 
 which ended finally in the revolution of i6S8, when the liberties of 
 England were placed upon an impregnable basis by the Bill of 
 Rights. 
 
 Many times the attempt was made to stretch the royal authority 
 far enough to justify military trials; but it never had more than 
 temporary success. Five hundred years ago Edward II closed up 
 a great rebellion by taking the life of its leader, the Earl of Lan- 
 
496 ARGUMENT OF JEREMIAH S. BLACK 
 
 caster, after trying him before a military court. Eight years later 
 that same king, together with his lords and commons in parliament 
 assembled, acknowledged with shame and sorrow that the execution 
 of Lancaster was a mere murder, because the courts were open and 
 he might have had a legal trial. Queen Elizabeth, for sundry rea- 
 sons affecting the safety of the State, ordered that certain offend- 
 ers not of her army should be tried according to the law martial. 
 But she heard the storm of popular vengeance rising, and, haughty, 
 imperious, self-willed as she was, she yielded the point; for she 
 knew that upon that subject the English people would never 
 consent to be trifled with. Strafford, as Lord Lieutenant of Ire- 
 land, tried the Viscount Stormount before a military commis- 
 sion. When impeached for it, he pleaded in vain that Ireland 
 was in a state of insurrection, that Stormount was a traitor, and the 
 army would be undone if it could not defend itself without appeal- 
 ing to the civil courts. The parliament was deaf ; the king himself 
 could not save him ; he was condemned to suffer death as a traitor 
 and a murderer. Charles I issued commissions to divers officers 
 for the trial of his enemies according to the course of military 
 law. If rebellion ever was an excuse for such an act, he could- 
 surely have pleaded it; for there was scarcely a spot in his king- 
 dom, from sea to sea, wiiere the royal authority was not disputed 
 by some body. Yet the parliament demanded in their petition of 
 right, and the king was obliged to concede, that all his commissions 
 were illegal. James II claimed the right to suspend the operation 
 of the penal laws — a power which the courts denied — but the expe- 
 rience of his predecessors taught him that he could not suspend 
 any man's right to a trial. He could easily have convicted the 
 Seven Bishops of any offense he saw fit to charge them with, if he 
 could have selected their judges from among the mercenary crea- 
 tures to whom he had given commands in his army. But this he 
 dared not do. He was obliged to send the bishops to a jury, and 
 endure the mortification of seeing them acquitted. He, too, might 
 have had rebellion for an excuse, if rebellion be an excuse. The 
 conspiracy was already ripe, which a few months afterwards made 
 him an exile and an outcast; he had reason to believe that the 
 Prince of Orange was making his preparations on the other side of 
 the channel to invade the kingdom, where thousands burned to join 
 him; nay, he pronounced the bishops guilty of rebellion by the 
 very act for which he arrested them. He had raised an army to 
 meet the rebellion, and he was on Hounslow Heath reviewing the 
 
IS DEFENSE OF THE RIGHT TO TRIAL BY JURY. 497 
 
 troops organized for that purpose, when he heard the great shout of 
 joy that went up from Westminster Hall, was echoed back from ' 
 Temple Bar, spread down the city and over the Thames, and rose 
 from every vessel on the river — the simultaneous shout of two hun- 
 dred thousand men for the triumph of justice and law. 
 
 If it were worth the time I might detain you by showing how 
 this subject was treated by the French Court of Cassation in Geof- 
 froy's case, under the constitution of 1830, when a military judg- 
 ment was unhesitatingly pronounced to be void, though ordered by 
 the king, after a proclamation declaring Paris in a state of siege. 
 I^as est ab hoste doceri; we may lawfully learn something from our 
 enemies — at all events we should blush at the thought of not being 
 equal on such a subject to the courts of Virginia, Georgia, Missis- 
 sippi, and Texas, whose decisions my colleague, General Garfield, 
 has read and commented on. 
 
 9. No MILITARY TRIBUNAL HAS POWER TO TRY A CITIZEN AT A 
 
 PLACE WHERE THE COURTS ARE OPEN. THE TITLE BY 
 
 WHICH A JURY TRIAL IS SECURED. 
 
 The truth is, that no authority exists anywhere in the world for 
 the doctrine of the attorney-general. No judge or jurist, no states- 
 man or parliamentary orator, on this or the other side of the water, 
 sustains him. Every elementary writer, from Coke to Wharton, is 
 against him. All military authors who profess to know the duties 
 of their profession, admit themselves to be under, not above, the 
 laws. No book can be found in any library to justify the assertion 
 that military tribunals may try a citizen at a place where the courts 
 are open. When I say no book, I mean, of course, no book of ac- 
 knowledged authority. I do not deny that hireling clergymen have 
 often been found to disgrace the pulpit by trying to prove the 
 divine right of kings and other rulers to govern as they please. It 
 is true also that court sycophants and party hacks have many times 
 written pamphlets, and perhaps large volumes, to shov/ that those 
 whom they serve should be allowed to work out their bloody will 
 upon the people. No abuse of power is too flagrant to find its de- 
 fenders among such servile creatures. Those butchers' dogs that 
 feed upon garbage and fatten upon the offal of the shambles are 
 always ready to bark at whatever interferes with the trade of their 
 master. But this case does not depend on authority. It is rather a 
 question of fact than of law. 
 
 I. prove my right to a trial by jury just as I would prove my 
 33 
 
498 ARGUMENT OF JEREMIAH S. BLACK 
 
 title to an estate if I held in my hand a solemn deed conveying it 
 to me, coupled with undeniable evidence of long and undisturbed 
 possession under and according to the deed. There is the charter 
 by which we claim to hold it. It is called the Constitution of the 
 United States. It is signed by the sacred name of George Wash- 
 ington, and by thirty-nine other names, only less illustrious than his. 
 They represented every independent State then upon this conti- 
 nent, and each State afterwards ratified their work by a separate 
 convention of its own people. Every State that subsequently came 
 in acknowledged that this was the great standard by which their 
 rights were to be measured. Every man that has ever held office 
 in the country from that time to this, has taken an oath that he 
 would support and sustain it through good report and through evil. 
 The attorney-general himself became a party to the instrument 
 when he laid his hand upon the gospel of God and solemnly swore 
 that he would give to me and every other citizen the full benefit of 
 all it contains. What does it contain ? This among other things: 
 •" The trial of all crimes, except in cases of impeachment, shall be 
 by jury," 
 
 jAgain ; " No person shall be held to answer for a capital or 
 otherwise infamous crime unless on a presentment or indictment of 
 a grand jury^ ^except in cases arising in the land or naval forces, or 
 in the militia .when in actual service in time of war or public dan- 
 ger; nor shall any person be subject for the same offense to be 
 twice put in jeopardy of life or limb, nor be compelled in any crim- 
 inal case to be a witness ;against himself, nor be deprived of life, 
 liberty, or property, without due process of law; nor shall private 
 property be taken for public Jjse without just compensation." 
 
 This is not all ; another -article declares, that "in all criminal 
 prosecutions the accused, shall enjoy the right to a speedy and pub- 
 lic trial by an impartial jury of the State and district wherein the 
 crime shall have been committed, which district shall have been 
 previously ascertained by law ; and to be informed of the nature 
 and cause of the accusation ; to be confronted with the witnesses 
 against him ; to have compulsory process for the witnesses in his 
 favor, and to have the assistance of counsel for his defense." 
 
 Is there any ambiguity there ? If that does not signify that a 
 jury trial ;shall be the exclusive and only means of ascertaining 
 guilt in criminal cases, then I demand to know what words or what 
 collocation of words in the English language would have that ef- 
 fect ? Does this piean that a fair, open, speedy, public trial by an 
 
IN DEFENSE OF THE RIGHT TO TRIAL BY JURY. 499 
 
 impartial jury shall be given only to those persons against whom 
 no special grudge is felt by the attorney-general, or the judge advo- 
 cate, or the head of a department ? Shall this inestimable privilege 
 be extended only to men whom the administration does not care to 
 convict ? Is it confined to vulgar criminals, who commit ordinary 
 crimes against society, and shall it be denied to men who are ac- 
 cused of such offenses as those for which Sydney and Russell were 
 beheaded, and Alice Lisle was hung, and Elizabeth Gaunt was 
 burnt alive, and John Bunyan was imprisoned fourteen years, and 
 Baxter was whipped at the cart's tail, and Prynn had his ears cut 
 off? No; the words of the Constitution are all-embracing — 
 
 "As broad and general as the casing air." 
 
 The trial of ALL crimes shall be by jury. ALL persons ac- 
 cused shall enjoy that privilege — and NO person shall be held to 
 answer in any other way. 
 
 That would be sufficient without more. But there is another 
 consideration which gives it tenfold power. It is a universal rule of 
 construction that general words in any instrument, though they may 
 be weakened by enumeration, are always strengthened by excep- 
 tions. Here is no attempt to enumerate the particular cases in 
 which men charged with criminal offenses shall be entitled to a jury 
 trial. It is simply declared that all shall have it. But that is 
 coupled with a statement of two specific exceptions : cases of im- 
 peachment; and cases arising in the land or naval forces. These 
 exceptions strengthen the application of the general rule to all other 
 cases. Where the law-giver himself has declared when and in what 
 circumstances you may depart from the general rule, you shall not 
 presume to leave that onward path for other reasons, and make dif- 
 ferent exceptions. To exceptions, the maxim is always applicable, 
 that expressio unius est exclusio alterius. 
 
 10. In turbulent times the rights of the citizen should be 
 doubly guarded. 
 
 But we are answered that the judgment under consideration was 
 pronounced in time of war, and it is therefore, at least, morally ex- 
 cusable. There may or there may not be something in that. I ad- 
 mit that the merits or demerits of any particular act, whether it 
 involve a violation of the Constitution or not, depend upon the 
 motives that prompted it, the time, the occasion, and all the attend- 
 ing circumstances. When the people of this country come to de- 
 
500 ARGUMENT OP JEREMIAH S. BLACK 
 
 cide upon the acts of their rulers, they will take all these things into 
 consideration. But that presents the political aspect of the case, 
 with which, I trust, we have nothing to do here. I decline to dis- 
 cuss it. I would only say, in order to prevent misapprehension, 
 that I think it is precisely in a time of war and civil commotion 
 that we should double the guards upon the Constitution. If the 
 sanitary regulations which defend the health of a city are ever to 
 be relaxed, it ought certainly not to be done when pestilence is 
 abroad. When the Mississippi shrinks within its natural channel 
 and creeps lazily along the bottom, the inhabitants of the adjoining 
 shore have no need of a dyke to save them from inundation. But 
 when the booming flood comes down from above, and swells into a 
 volume which rises high above the plain on either side, then a cre- 
 vasse in the levee becomes a most serious thing. So, in peaceable 
 and quiet times, our legal rights are in little danger of being over- 
 borne; but when the wave of arbitrary power lashes itself into vio- 
 lence and rage, and goes surging up against the barriers which were 
 made to confine it, then we need the whole strength of an unbro- 
 ken Constitution to save us from destruction. But this is a ques- 
 tion which properly belongs to the jurisdiction of the stump and 
 the newspaper. 
 
 II. Why the plea of necessity, the only excuse for 
 
 VIOLATING LAW, HAS NO APPLICATION 
 TO THE CASE. 
 
 There is another quasi political argument — necessity. If the 
 law was violated because it could not be obeyed, that might be an 
 excuse. But no absolute compulsiqn is pretended here. These 
 commissioners acted, at most, under what they regarded as a moral 
 necessity. The choice was left them to obey the law or disobey it. 
 The disobedience was only necessary as means to an end which 
 they thought desirable ; and now they assert that though these 
 means are unlawful and wrong, they are made right, because with- 
 out them the object could not be accomplished; in other words, the 
 end justifies the means. There you have a rule of conduct de- 
 nounced by all law, human and divine, as being pernicious in pol- 
 icy and false in morals. See how it applies to this case. Here 
 were three men whom it was desirable to remove out of this world, 
 but there was no proof on which any court would take their lives; 
 therefore it was necessary, and being necessary it was right and 
 proper, to create an illegal tribunal which would put them to death 
 
IN DEFENSE OF THE EIGHT TO TRIAL BY JURY. 501 
 
 without proof. By the same mode of reasoning you can prove it 
 equally right to poison them in their food or stab them in their 
 sleep. Nothing that the worst men ever propounded has produced 
 so much oppression, misgovernment, and suffering as this pretense 
 of State necessity. A great authority calls it " the tyrant's devilish 
 plea;" and the common honesty of all mankind has branded it with 
 everlasting infamy. 
 
 12. Necessity could but excuse a violation of law, but 
 
 cannot impart validity to an act which the 
 
 law forbids. 
 
 Of course, it is mere absurdity to say that these relators were 
 necessarily deprived of their right to a fair and legal trial, for the 
 record shows that a court of competent jurisdiction'was sitting at 
 the very time and in the same town, where justice would have been 
 done without sale, denial, or delay. But concede, for the argument's 
 sake, that a trial by jury was wholly impossible; admit that there 
 was an absolute, overwhelming, imperious necessity operating so as 
 literally to compel every act which the commissioners did, would 
 that give their sentence of death the validity and force of a legal 
 judgment pronounced by an ordained and established court ? The 
 question answers itself. This trial was a violation of law, and no 
 necessity could be more than a mere excuse for those who commit- 
 ted it. If the commissioners were on trial for murder or conspir- 
 acy to murder, they might plead necessity if the fact were true, 
 just as they would plead insanity or anything else to show that their 
 guilt was not willful. But we are now considering the legal effect 
 of their decision, and that depends on their legal authority to make 
 it. They had no such authority; they usurped a jurisdiction which 
 the law not only did not give them, but expressly forbade them to 
 exercise, and it follows that their act is void, whatever may have 
 been the real or supposed excuse for it. 
 
 If these commissioners, instead of aiming at the life and liberty 
 of the relators, had attempted to deprive them of their property by 
 a sentence of confiscation, would any court in Christendom declare 
 that such a sentence divested the title ? Or would a person claim- 
 ing under the sentence make his right any better by showing that 
 the illegal assumption of jurisdiction was accompanied by some 
 excuse which might save the commissioners from a criminal prose- 
 cution ? 
 
 Let me illustrate still further. Suppose you, the judges of this 
 
502 . AEGUMEXT OF JEREMIAH S. BLACK 
 
 court, to be surrounded in the hall where you are sitting by a 
 body of armed insurgents, and compelled by main force to pro- 
 nounce sentence of death upon the President of the United 
 States, for some act of his" upon which you have no legal au- 
 thority to adjudicate. There would be a valid sentence if necessity 
 alone could create jurisdiction. But could the President be legally 
 executed under it ? No ;' the compulsion under which you acted 
 would be a good defense for you against an impeachment or an in- 
 dictment for murder, but it would add nothing to the validity of a 
 judgment which the law forbade you to give. 
 
 That a necessity for violating the law is nothing more than a 
 mere excuse to the perpetrator, and does not in any legal sense 
 change the quality of the act itself in its operation upon other par- 
 ties, is a proposition too plain on original principles to need the 
 aid of authority. I do not see how any man of common sense is 
 to stand up and dispute it. But there is decisive authority upon 
 the point. In 1815, at New Orleans, General Jackson took upon 
 himself the command of every person in the city, suspended the 
 functions of all the civil authorities, and made his own will for a 
 time the only rule of conduct. It was believed to be absolutely 
 necessary. Judges, officers of the city corporation, and members 
 of the State Legislature, insisted on it as the only way to save 
 the "booty and beauty" of the place from the unspeakable out- 
 rages committed at Badajos and St. Sebastian by the very same 
 troops then marching to the attack. Jackson used the power thus 
 taken by him moderately, sparingly, benignly, and only for the 
 purpose of preventing mutiny in his camp. A single mutineer 
 was restrained by a short confinement, and another was sent four 
 miles up the river. But after he had saved the city, and the dan- 
 ger was all over, he stood before the court to be tried by the law; 
 his conduct was decided to be illegal by the same judge who had 
 declared it to be necessary, and he paid the penalty without a mur- 
 mur. The Supreme Court of Louisiana, in Johnson v. Duncan, de- 
 cided that everything done during the siege in pursuance of martial 
 rule, but in conflict with the law of the land, was void and of none 
 effect, without reference to the circumstances which made it nec- 
 essary. Long afterwards the fine imposed upon Jackson was re- 
 funded, because his friends, while they admitted him to have vio- 
 lated the law, insisted that the necessity which drove him to it 
 ought to have saved him from the punishment due only to a 
 willful offender. 
 
IN DEFENSE OF THE EIGHT TO TRIAL BY JURY. 503 
 
 The learned counsel on the other side will not assert that there 
 was war at Indianapolis in 1864, for they have read Coke' s Institutes 
 and Judge Grier's opinion in the Prize Cases, and of course they 
 know it to be a settled rule that war cannot be said to exist where 
 the civil courts are open. They will not set up the absurd plea of 
 necessity, for they are well aware that it would not be true in point 
 of fact. They will hardly take the ground that any kind of neces- 
 sity could give legal validity to that which the law forbids. 
 
 This, therefore, must be their position: That although there 
 was no war at the place where this commission sat, and no aqtual 
 necessity for it, yet if there was a war any where else, to which the 
 United States were a party, the technical effect of such war was to 
 take the jurisdiction away from the civil courts and transfer it to 
 army officers. 
 
 GEN. BUTLER. We do not take that position. 
 
 MR. BLACK. Then they can take no position at all, for 
 nothing else is left. I do not wonder to see them recoil from their 
 own doctrine when its nakedness is held up to their eyes. But 
 they must stand upon that or give up their cause. They may not 
 state their proposition precisely as I state it; that is too plain a 
 way of putting it. But, in substance, it is their doctrine — has been 
 the doctrine of the attorney-general's office ever since the advent 
 of the present incumbent — and is the doctrine of their brief, 
 printed and filed in this case. What else can they say? They will 
 admit that the Constitution is not altogether without a meaning; 
 that at a time of universal peace it imposes some kind of obligation 
 upon those who swear to support it. If no war existed they would 
 not deny the exclusive jurisdiction of the civil courts in criminal 
 cases. How then did the military get jurisdiction in Indiana ? 
 
 All men who hold the attorney-general's opinion to be true, 
 answer the question I have put by saying that military jurisdic- 
 tion comes from the mere existence of war; and it comes in Indi- 
 ana only as the legal result of a war which is going on in Mississip- 
 pi, Tennessee, or South Carolina. The Constitution is repealed, 
 or its operation suspended in one State because there is war in 
 another. The courts are open, the organization of society is in- 
 tact, the judges are on the bench, and their process is not impeded; 
 but their jurisdiction is gone. Why ? Because, say our opponents, 
 war exists, and the silent, legal, technical operation of that fact is 
 to deprive all American citizens of their right to a fair trial. 
 
504 ARGUMENT OF JEREMIAH S. BLAC2 
 
 13. Results of the doctrine that trial by jury is lost 
 to the citizen during the existence of war. 
 
 That class of jurists and statesmen who hold that the trial by 
 jury is lost to the citizen during the existence of war, carry out 
 their doctrine theoretically and practically to its ultimate conse- 
 quences. The right of trial by jury being gone, all other rights are 
 gone with it; therefore, a man may be arrested without an accusa- 
 tion and kept in prison during the pleasure of his captors; his pa- 
 pers may be searched without a warrant; his property may be con- 
 iiscated behind his back, and he has no earthly means of redress. 
 Nay, an attempt to get a just remedy is construed as a new crime. 
 He dare not even complain, for the right of free speech is gone 
 with the rest of his rights. If you sanction that doctrine, what is 
 to be the consequence ? I do not speak of what is past and gone; 
 but in case of a future war what results will follow from your 
 decision endorsing the attorney-general's views ? They are very 
 obvious. At the instant when the war begins, our whole system 
 of legal government will tumble into ruin, and if we are not all 
 robbed, and kidnapped, and hanged, and drawn, and quartered, 
 we will owe our immunity, not to the Constitution and laws, but to 
 the mere mercy or policy of those persons who may then happen 
 to control the organized physical force of the country. 
 
 This certainly puts us in a most precarious condition; we must 
 have war about half the time, do what we may to avoid it. The 
 President or Congress can wantonly provoke a war whenever it 
 suits the purpose of either to do so; and they can keep it going 
 as long as they please, even after the actual conflict of arms is 
 over. When peace woos them they can ignore her existence; and 
 thus they can make the war a chronic condition of the country, 
 and the slavery of the people perpetual. Nay, we are at the mercy 
 of any foreign potentate who may envy us the possession of those 
 liberties of whi9h we boast so much ; he can shatter our Constitu- 
 tion without striking a single blow, or bringing a gun to bear 
 upon us. A simple declaration of hostilities is more terrible to 
 us than an army with banners. 
 
 To me, this seems the wildest delusion that ever took pos- 
 session of a human brain. If there be one principle of political 
 ethics more universally acknowledged than another, it is that 
 war, and especially civil war, can be justified only when it is 
 undertaken to vindicate and uphold the legal and constitutional 
 
IN DEFENSE OF THE RIGHT TO TRIAL BT JURY. 505 
 
 rights of the people, not to trample them down. He who car- 
 ries on a system of wholesale slaughter for any other purpose, 
 must stand without excuse before God or man. In a time of 
 war, more than at any other time, public liberty is in the hands 
 of the public officers. And she is there in double trust: first, as 
 they are citizens, and therefore bound to defend her by the com- 
 mon obligation of all citizens; and next, as they are her special 
 guardians — 
 
 " Who should against her murderers shut the door 
 Not bear the knife themselves." 
 
 The opposing argument, when turned into plain English, means 
 this, and this only: that when the Constitution is attacked upon one 
 side, its ofiicial guardians may assail it upon the other ; when 
 rebellion strikes it in the face, they may take advantage of the 
 blindness produced by the blow to sneak behind it and stab it 
 in the back. 
 
 14, The rights of the civil authorities have been 
 regarded as sacred in the past. 
 
 The Convention, when it framed the Constitution, and the 
 people, when they adopted it, could have had no thought like 
 that. If they had supposed that it would operate only while per- 
 fect peace continued, they certainly would have given us some other 
 rule to go by in time of war ; they would not have left us to wander 
 about in a howling wilderness of anarchy, without a lamp to our 
 feet, or a guide to our path. Another thing proves their actual in- 
 tent still more strikingly. They required that every man in any 
 kind of public employment, state or national, civil or military, 
 should swear, without reserve or qualification, that he would sup- 
 port the Constitution. Surely our ancestors had too much regard 
 for the moral and religious welfare of their posterity to impose upon 
 them an oath like that, if they intended and expected it to be bro- 
 ken half the time. The oath of an officer to support the Constitu- 
 tion is as simple as that of a witness to tell the truth in a court of 
 justice. What would you think of a witness who should attempt to 
 justify perjury upon the ground that he had testified when civil war 
 was raging, and he thought that by swearing to a lie he might pro- 
 mote some public or private object connected with the strife ? 
 
 No, no, the great men who made this country what it is — the 
 
506 ARGUMENT OP JEREMIAH S. BLACK 
 
 heroes who won her independence, and the statesmen who settled 
 her institutions — had no such notions in their minds. Washington 
 deserved the lofty praise bestowed upon him by the president of 
 Congress when he resigned his commission — that he had always re- 
 garded the rights of the civil authority through all changes and 
 through all disasters. When his duty as President afterwards re- 
 quired him to arm the public force to suppress a rebellion in West- 
 ern Pennsylvania, he never thought that the Constitution was abol- 
 ished, by virtue of that fact, in New Jersey, or Maryland, or Virginia. 
 It would have been a dangerous experiment for an adviser of his at 
 that time, or at any time, to propose that he should deny a citizen 
 his right to be tried by a jury, and substitute in place of it a trial 
 before a tribunal composed of men elected by himself from among 
 his own creatures and dependents. You can well imagine how that 
 great heart would have swelled' with indignation at the bare thought 
 of such an insulting outrage upon the liberty and law of his coun- 
 try. 
 
 In the war of 1812, the man emphatically called the Father of 
 the Constitution was the supreme Executive Magistrate. Talk of 
 perilous times! there was the severest trial this Union ever saw. 
 That was no half-organized rebellion on the one side of the con- 
 flict, to be crushed by the hostile millions and unbounded resources 
 of the other. The existence of the nation was threatened by the 
 most formidable military and naval power then upon the face of the 
 earth. Every town upon the notthern frontier, upon the Atlantic 
 seaboard, and upon the Gulf coast was in daily and hourly danger. 
 The enemy had penetrated the heart of Ohio. New York, Penn- 
 sylvania, and Virginia were all of them threatened from the west as 
 well as from the east. The Capitol was taken, and burned, and 
 pillaged, and every member of the Federal Administration was a 
 fugitive before the invading army. Meanwhile, party spirit was 
 breaking out into actual treason all over New England. Four of 
 those States refused to furnish a man or a dollar even for their own 
 defense. Their public authorities were plotting the dismemberment 
 of the Union, and individuals among them were burning blue lights 
 upon the coast as a signal to the enemy's ships. But in all this 
 storm of disaster, with foreign war in his front and domestic treason 
 on his flank, Madison gave out no sign that he would aid old En- 
 gland and New England to break up this government of laws. On 
 the contrary, he and all his supporters, though compassed round 
 
IN DEFENSE OF THE RIGHT TO TRIAL BY JURY. 507 
 
 with darkness and with danger, stood faithfully between the Consti- 
 tution and its enemies 
 
 " To shield it, and save it, or perish there too." 
 
 The framers of the Constitution and all their contemporaries 
 died and were buried; their children succeeded them and continued 
 on the stage of public affairs until they, too, 
 
 " Lived out their lease of life, and paid their breath 
 To time and mortal custom;" 
 
 and a third generation was already far on its way to the grave before 
 this monstrous doctrine was conceived or thought of, that public 
 officers all over the country might disregard their oaths whenever a 
 war or a rebelhon was commenced. 
 
 15. Neither the law of nations, nor the laws of war, 
 
 HAVE ANY bearing ON THE CASE. 
 
 Our friends on the other side are quite conscious that when they 
 deny the binding obligation of the Constitution they must put some 
 other system of law in its place. Their brief gives us notice that, 
 while the Constitution, and the acts of Congress, and Magna Char- 
 ta, and the common law, and all the rules of natural justice shall 
 remain under foot, they will try American citizens according to the 
 law of nations ! But the law of nations takes no notice of the sub- 
 ject. If that system did contaiti a special provision that a govern- 
 ment might hang one of its own citizens without a judge or jury, it 
 would still be competent for the American people to say, as they 
 have said, that no such thing should ever be done here. That is 
 my answer to the law of nations. 
 
 But then they tell us that the laws of war must be treated as 
 paramount. Here they become mysterious. Do they mean that 
 code of public law which defines the duties of two belligerent par- 
 ties to one another, and regulates the intercourse of neutrals with 
 both ? If yes, then it is simply a recurrence to the law of nations, 
 which has nothing on earth to do with the subject. Do they mean 
 that portion of our municipal code which defines our duties to the 
 government in war as well as in peace ? Then they are speaking of 
 the Constitution and laws, which declare in plain words that the 
 government owes every citizen a fair legal trial, as much as the 
 citizen owes obedience to the government. They are in search of 
 an argument under difficulties. When they appeal to international 
 
508 ARGUMENT OF JEREMIAH 8. BLACK 
 
 law, it is silent ; and when they interrogate the law of the land, the 
 answer is an unequivocal contradiction of their whole theory. 
 
 The attorney-general tells us that all persons whom he and his 
 associates choose to denounce for giving aid to the rebellion, are to 
 be treated as being themselves a part of the rebellion ; they are 
 public enemies, and therefore they may be punished without being 
 found guilty by a competent court or a jury. This convenient rule 
 would outlaw every citizen the moment he is charged with a polit- 
 ical offense. But political offenders are precisely the class of per- 
 sons who most need the protection of a court and jury, fqf the 
 prosecutions against them are most likely to be unfounded, both in 
 fact and in law. Whether innocent or guilty, to accuse is to con- 
 vict them before the ignorant and bigoted men who generally sit in 
 military courts. But this Court decided, in the Prize Cases, that all 
 who live in the enemy's territory are public enemies, without regard 
 to their personal sentiments or conduct ; and the converse of the 
 proposition is equally true, that all who reside inside of our own 
 territory are to be treated as under the protection of the law. If 
 they help the enemy, they are criminals ; but they cannot be pun- 
 ished without legal conviction. 
 
 You have heard much (and you will hear more very soon) con- 
 cerning the natural and inherent right of the government to defend 
 itself without regard to law. This is wholly fallacious. In a 
 despotism the autocrat is unrestricted in the means he may use for 
 the defense of his authority against' the opposition of his own sub- 
 jects or others ; and that is precisely what makes him a despot. 
 But in a limited monarchy the prince must confine himself to a 
 legal defense of his government. If he goes beyond that, and com- 
 mits aggressions on the rights of the people, he breaks the social 
 compact, releases his subjects from all their obligations to him, 
 renders himself liable to be hurled from his throne, and dragged to 
 the block or driven into exile. This principle was sternly enforced 
 in the cases of Charles I and James II, and we have it announced, 
 on the highest official authority here, that the Queen of England 
 cannot ring a little bell on her table and cause a man by her arbi- 
 trary order to be arrested under any pretense whatever. If that be 
 true there, how much more true must it be here, where we have no 
 personal sovereign, and where our only government is the Consti- 
 tution and laws. A violation of law on pretense of saving such a 
 government as ours is not self-preservation, but suicide. 
 
 Salus populi suprema lex — observe it is not salus regis ; the 
 
IN DEFENSE OF THE RIGHT TO TRIAL BY JURY. 509 
 
 safety of the people, not the safety of the ruler, is the supreme law. 
 When those who hold the authority of the government in their 
 hands, behave in such manner as to put the liberties and rights of 
 the people in jeopardy, the people may rise against them and over- 
 throw them without regard to that law which requires obedience to 
 them. The maxim is revolutionary and expresses simply the right 
 to resist tyranny without regard to prescribed forms. It can never 
 be used to stretch the powers of government against the people. 
 
 i6. Legal modes possessed by the government for protect- 
 ing ITVSELF AGAINST DANGER. 
 
 If this government of ours has no power to defend itself with- 
 out violating its own laws, it carries the seeds of destruction in its 
 own bosom- ; it is a poor, weak, blind, staggering thing, and the 
 sooner it tumbles over the better. But it has a most efficient legal 
 mode of protecting itself against all possible danger. It is clothed 
 from head to foot in a complete panoply of defensive armor. 
 What are the perils which may threaten its existence ? I am not 
 able at this moment to think of more than these which I am about 
 to mention : foreign invasion, domestic insurrection, mutiny in the 
 army and navy, corruption in the civil administration, and last but 
 not least criminal violations of its laws committed by individuals 
 among the body of the people. Have we not a legal mode of de- 
 fense against all these ? Yes ; military force repels invasion and 
 suppresses insurrection ; you preserve discipline in the army and 
 navy by means of courts-martial ; you preserve the purity of the 
 civil administration by impeaching dishonest magistrates ; and 
 crimes are prevented and punished by the regular judicial author- 
 ities. You are not merely compelled to use these weapons against 
 your enemies, because they, and they only, are justified by the law; 
 you ought to use them because they are more efficient than any 
 other, and less liable to be abused. 
 
 There is another view of the subject which settles all contro- 
 versy about it. No human being in this country can exercise any 
 kind of public authority which is not conferred by law ; and under 
 the United States it must be given by express words of a written 
 statute. Whatever is not so given is withheld, and the exercise of 
 it is positively prohibited. Courts-martial in the army and navy 
 are authorized ; they are legal institutions ; their jurisdiction is 
 limited, and their whole code of procedure is regulated, by act of 
 Congress. Upon the civil courts all the jurisdiction they have or 
 
510 ARGUMENT OF JEREMIAH S. BLACK 
 
 can have is bestowed by law, and if one of them goes beyond what 
 is written, its action is ultra vires and void. But a military com- 
 mission is not a court-martial, and it is not a civil court. It is not 
 governed by the law which is made for either, and it has no law of 
 its own. Witiiin the last five years we have seen, for the first time, 
 self-constituted tribunals not only assuming power which the law 
 did not give them, but thrusting aside the regular courts to which 
 the power was exclusively given. 
 
 17. A MILITARY COMMISSION AN ANOMALY AUTHORIZED BY NO 
 LAW, AND GOVERNED BY NO LAWS OF ITS OWN. 
 
 What is the consequence ? This terrible authority is wholly 
 undefined, and its exercise is without any legal control. Undele- 
 gated power is always unlimited. The field that lies outside of the 
 Constitution and laws has no boundary. Thierry, the French his- 
 torian of England, says, that when the crown and scepter were 
 offered to Cromwell, he hesitated for several days, and answered : 
 " Do not make me a King ; for then my hands will be tied up by 
 the laws which define the duties of that office ; but make me Pro- 
 tector of the Commonwealth, and I can do what I please ; no stat- 
 ute restraining and limiting the royal prerogative will apply to me." 
 So these commissions have no legal origin and no legal name by 
 which they are known among the children of men ; no law applies 
 to them ; and they exercise all power for the paradoxical reason 
 that none belongs to them rightfully. 
 
 Ask the attorney-general what rules apply to military commis- 
 sions in the exercise of their assumed authority over civilians. 
 Come, Mr. Attorney, " gird up thy loins now like a man ; I will 
 demand of thee, and thou shalt declare unto me, if thou hast under- 
 standing." How is a military commission organized ^ What shall 
 be the number and rank of its members ? What offenses come 
 within its jurisdiction ? What is its code of procedure ? How 
 shall witnesses be compelled to attend it ? Is it perjury for a wit- 
 ness to swear falsely ? What is the function of the judge advo- 
 cate ? Does he tell the members how they must find, or does he 
 only persuade them to convict ? Is he the agent of the govern- 
 ment, to command them what evidence they shall admit and what 
 sentence they shall pronounce ? or does he always carry his point, 
 right or wrong, by the mere force of eloquence and ingenuity ? 
 What is the nature of their punishments ? May they confiscate 
 property and levy fines as well as imprison and kill ? In addition 
 
m DEFENSE OF THE EIGHT TO TRIAL BY JURY. 511 
 
 to strangling their victim, may they also deny him the last consola- 
 tions of religion, and refuse his family the melancholy privilege of 
 giving him a decent grave ? 
 
 To none of these questions can the attorney-general make a re- 
 ply, for there is no law on the subject. He will not attempt to 
 " darken counsel by words without knowledge," and, therefore, like 
 Job, he can only lay his hand upon his mouth and keep silence. 
 
 i8. Military commission synonymous with arbitrary power. 
 — Review of the various modes in which it has 
 
 BEEN exercised THROUGHOUT THE WORLD. 
 
 The power exercised through these military commissions is not 
 only unregulated by law, but it is incapable of being so regulated. 
 What is it that you claim, Mr. Attorney ? I will give you a defini- 
 tion, the correctness of which you will not attempt to gainsay. You 
 assert the right of the executive government, without the interven- 
 tion of the judiciary, to capture, imprison, and kill any person to 
 whom that government or its paid dependents may choose to im- 
 pute an offense. This, in its very essence, is despotic and lawless. 
 It is never claimed or tolerated except by those governments which 
 deny the restraints of all law. It has been exercised by the great 
 and small oppressors of mankind ever since the days of Nimrod. 
 It operates in different ways ; the tools it uses are not always the 
 same ; it hides its hideous features under many disguises ; it as- 
 sumes every variety of form ; 
 
 " It can change shapes with Proteus for advantages, 
 And set the murderous Machiavel to school." 
 
 But in all its mutations of outward appearance, it is still identical 
 in principle, object, and origin. It is always the same great engine 
 of despotism which Hamilton described it to be. 
 
 Under the old French monarchy the favorite fashion of it was a 
 /eUre de cachet, signed by the king, and this would consign the 
 party to a loathsome dungeon until he died, forgotten by all the 
 world. An imperial ukase will answer the same purpose in Russia. 
 The most faithful subject of that amiable autocracy may lie down 
 in the evening to dream of his future prosperity, and before day- 
 break he will find himself between two dragoons on his v/ay to the 
 mines of Siberia. In Turkey, the verbal order of the Sultan or 
 any of his powerful favorites will cause a man to be tied up in a 
 
512 ARGUMENT OF JEREMIAH S. BLACK 
 
 sack and cast into the Bosphorus. Nero accused Peter and Paul 
 of spreading a " pestilent superstition," which they called the 
 gospel. He heard their defense in person, and sent them to the 
 cross. Afterwards he tried the whole Christian church in one body, 
 on a charge of setting fire to the city, and he convicted them, 
 though he knew not only that they were innocent, but that he him- 
 self had committed the crime. The judgment was followed by in- 
 stant execution ; he let loose the Praetorian guards upon men, 
 women, and children to drown, butcher, and burn them. Herod 
 saw fit, for good political reasons, closely affecting the permanence 
 of his reign in Judea, to punish certain possible traitors in Bethle- 
 hem by anticipation. This required the death of all the children 
 in that city under two years of age. He issued his "general order," 
 and his provost marshal carried it out with so much alacrity and 
 zeal that in one day the whole land was filled with mourning and 
 lamentation. 
 
 Macbeth understood the whole philosophy of the subject. He 
 was an unlimited monarch. His power to punish for any offense 
 or for no offense at all was as broad as that which the attorney- 
 general claims for himself and his brother oflScers under the United 
 States. But he was more cautious how he used it. He had a dan- 
 gerous rival, from whom he apprehended the most serious peril to 
 the "life of his government." The necessity to get rid of him was 
 plain enough, but he could not afford to shock the moral sense of 
 the world by pleading political necessity for a murder. He must 
 " Mask the business from the common eye." 
 
 Accordingly, he sent for two enterprising gentlemen whom he 
 took into his service upon liberal pay — " made love to their assist- 
 ance," and got them to deal with the accused party. He acted as 
 his own judge advocate. He made a most eloquent and stirring 
 speech to persuade his agents that Banquo was their oppressor, and 
 had " held them so under fortune ; " that he ought to die for that 
 alone. When they agreed that he was their enemy, then said the 
 king: 
 
 " So is he mine, and though I could 
 With barefaced power sweep him from my sight, 
 And bid my jujV/ avouch it ; yet I must not. 
 For certain friends, who are both his and mine. 
 Whose loves I may not drop." 
 
 For these, and " many weighty reasons" besides, he thought it 
 best to commit the execution of his design to a subordinate agency. 
 
m DEFENSE OF THE RIGHT TO TRIAL BY JURY. 613 
 
 The commission thus organized in Banquo's case sat upon him 
 that very night at a convenient place beside the road where it 
 was known he would be traveling ; and they did precisely what 
 the attorney-general says the military officers may do in this coun- 
 try — they took and killed him, because their employer at the head 
 of the government wanted it done and paid them for doing it 
 out of the public treasury. 
 
 But of all the persons that ever wielded this kind of power, 
 the one who went most directly to the purpose and the object of 
 it, was Lola Montez. She reduced 'it to the elementary principle. 
 In 1848, when she was minister and mistress to the king of Bavaria, 
 she dictated all the measures of the government. The times were 
 troublesome. All over Germany the spirit of rebellion was rising; 
 everywhere the people wanted to see a first-class revolution, like 
 that which had just exploded in France. Many persons in Bava- 
 ria disliked to be governed so absolutely by a lady of the char- 
 acter which Lola Montez bore, and some of them were rash enough 
 to say so. Of course that was treason, and she went about to 
 punish it in the simplest of all possible ways. She bought her- 
 self a pack of English bull-dogs,_ trained to tear the flesh and 
 mangle the limbs, and lap the life-blood; and, with these dogs at 
 her heels, she marched up and down the streets of Munich with a 
 most majestic tread, and with a sense of power which any judge 
 advocate in America might envy. When she saw any body whom 
 she chose to denounce for "thwarting the government," or " using 
 disloyal language," her obedient followers needed but a sign to 
 make them spring at the throat of their victim. It gives me un- 
 speakable pleasure to tell you the sequel. The people rose in their 
 strength, smashed down the whole machinery of oppression, and 
 drove out into uttermost shame king, strumpet, dogs and all. From 
 that time to this neither man, woman, nor beast, has dared to worry 
 or kill the people of Bavaria. 
 
 All these are but so many different ways of using the arbitrary 
 power to punish. The variety is merely in the means which a ty- 
 rannical government takes to destroy those whom it is bound to 
 protect. Every where it is but another construction, on the same 
 principle, of that remorseless machine by which despotism wreaks 
 its vengeance on those who offend it. In a civilized country it 
 nearly always uses the military force, because that is the sharpest, 
 the surest, as well as the best looking instrument that can be found 
 for such a purpose. But in none of its forms can it be introduced 
 33 
 
514 ARGUMENT OF JEREMIAH S. BLACK 
 
 into this country; we have no room for it; the ground here is all 
 preoccupied by legal and free institutions. 
 
 Between the officers who have power like this and the people 
 who are liable to become its victims, there can be no relation ex- 
 cept that of master and slave. The master may be kind and the 
 slave may be contented in his bondage; but the man who can take 
 your life or restrain your liberty, or despoil you of your property 
 at his discretion, either with his own hands or by means of a hired 
 overseer, owns you and he can force you to serve him. All you are 
 and all you have, including your wives and children, are his prop- 
 erty. 
 
 If my learned and very good friend, the attorney-general, had 
 this right of domination over me, I should not be very much fright- 
 ened, for I should expect him to use it as moderately as any man 
 in all the world ; but still I should feel the necessity of being very 
 discreet. He might change in a short time. The thirst for blood 
 is an appetite which grows by what it feeds upon. We cannot know 
 him by present appearances. Robespierre resigned a country judge- 
 ship in early life because he was too tender hearted to pronounce 
 sentence of death upon a convicted criminal. Caligula passed for a 
 most amiable young gentleman before he was clothed with the impe- 
 rial purple, and for about eight months afterwards. It was Trajan, 
 I think, who said that absolute power would convert any man into a 
 wild beast, whatever was the original benevolence of his nature. If 
 you decide that the attorney-general holds in his own hands or 
 shares with others the power of life and death over us all, I mean 
 to be very cautious in my intercourse with him; and I warn you, 
 the judges whom I am now addressing, to do likewise. Trust not 
 to the gentleness and kindness which has always marked his beha- 
 vior heretofore. Keep your distance ; be careful how you ap- 
 proach him, for you know not at what moment or by what a trifle 
 you may rouse the sleeping tiger. Remember the injunction of 
 scripture, " Go not near to the man who hath power to kill; and if 
 thou come unto him, see that thou make no fault, lest he take away 
 thy life presently; for thou goest among snares and walkest upon 
 the battlements of the city." 
 
 The right of the executive government to kill and imprison citi- 
 zens for political offenses has not been practically claimed in this 
 country, except in cases where commissioned officers of the army 
 were the instruments used .' Why should it be confined to them ? 
 Why should not naval officers be permitted to share in it ? What is 
 
IN DEFENSE OF THE RIGHT TO TRIAL ET JURY. 515 
 
 the reason that common soldiers and seamen are excluded from all 
 participation in the business ? No law has bestowed the right upon 
 army officers more than upon other persons. If men are to be 
 hung up without that legal trial which the Constitution guarantees 
 to them, why not employ commissions of clergymen, merchants, 
 manufacturers, horse-dealers, butchers, or drovers, to do it ? It will 
 not be pretended that military men are better qualified to decide 
 questions of fact or law than other classes of people; for it is known 
 on the contrary that they are, as a general rule, least of all fitted to 
 perform the duties that belong to a judge. 
 
 The attorney-general thinks that a proceeding which takes 
 away the lives of citizens without a constitutional trial is a most 
 merciful dispensation. His idea of humanity as well as law is em- 
 bodied in the bureau of military justice, with all its dark and 
 bloody machinery. For that strange opinion he gives this curious 
 reason: that the duty of the commander-in-chief is to kill, and un- 
 less he has this bureau and these commissions he must " butcher" 
 indiscriminately without mercy or justice. I admjt that if the com- 
 mander-in-chief or any other officer of the government has the 
 power of an Asiatic king, to butcher the people at pleasure, he 
 ought to have somebody to aid him in selecting his victims, as 
 v/ell as to do the rough work of strangling and shooting. But if 
 my learned friend will only condescend to cast an eye upon the Con- 
 stitution, he will see at once that all the executive and military offi- 
 cers are completely relieved by the provision that the life of a citi- 
 zen shall not be taken at all until after legal conviction by a court 
 and jury. 
 
 You cannot help but see that military commissions, if suffered 
 to go on, will be used for most pernicious purposes. I have criti- 
 cised none of their past proceedings, nor made any allusion to their 
 history in the last five years. But what can be the meaning of this 
 effort to maintain them among us ? Certainly not to punish actual 
 guilt. All the ends of true justice are attained by the prompt, 
 speedy, impartial trial which the courts are bound to give. Is there 
 any danger that crime will be winked upon by the judges ? Does 
 any body pretend that courts and juries have less ability to decide 
 upon facts and law than the men who sit in military tribunals ? The 
 counsel in this cause will not insult you by even hinting such an 
 opinion. What righteous or just purpose, then, can they serve? 
 None whatever. 
 
 But while they are utterly powerless to do even a shadow of 
 
516 ARGUMENT OF JEREMIAH S. BLACK. 
 
 good, they will be omnipotent to trample upon innocence, to gag 
 the truth, to silence patriotism, and crush the liberties of the coun- 
 try. They will always be organized to convict, and the conviction 
 will follow the accusation as surely as night follows the day. The 
 government, of course, will accuse none before such a commission 
 except those whom it predetermines to ruin and destroy. The ac- 
 cuser can choose the judges, and will certainly select those who are 
 known to be the most ignorant, the most unprincipled, and the 
 most ready to do whatever may please the power which gives them 
 pay, promotion and plunder. The willing witness can be found as 
 easily as the superserviceable judge. The treacherous spy and the 
 base informer — those loathsome wretches who do their lying by the 
 job-^will stock such a market with abundant perjury, for the 
 authorities that employ them will be bound to protect as well as 
 reward them. A corrupt and tyrannical government, with such an 
 engine at its command, will shock the world with the enormity of 
 its crimes. Plied as it may be by the arts of a malignant priest- 
 hood, and urged on by the madness of a raving crowd, it will be 
 worse than the popish plot, or the French revolution — it will be a 
 combination of both, with Fouquier Tinville on the bench, and 
 Titus Gates in the witness box. You can save us from this horri- 
 ble fate. You alone can "deliver us from the body of this death." 
 To that fearful extent is the destiny of this nation in your hands. 
 
ARGUMENT OF DAVID DUDLEY FIELD, 
 
 On the Constitutionality of the " Enforcement Act." 
 
 [U. S. V. Cruikshank, 2 Otto.] 
 
 IN THE SUPREME COURT OF THE UNITED STATES, OCTO- 
 BER TERM, 1874. 
 
 Constitutional Law. — Congress can grant and secure to citizens of 
 the United States, those rights alone, which are, either expressly or by 
 imphcation, within its jurisdiction. The violation of rights which are 
 within the exclusive protection of the States, are not indictable under an 
 act of Congress. 
 
 Analysis of Me. Field's Argument. 
 
 I. The amendments to the Constitution 
 growing' out of the war. 
 
 ^. The legislation to enforce the amend- 
 ments. 
 
 3. The offenses charged in the indictment. 
 
 4. Object and design of the war amend- 
 
 ments. 
 
 5. Theory of the prosecution. 
 
 6. Meaning of the term ^' appropriate leg- 
 
 islation." 
 
 7. The express and implied prohibitions of 
 
 power within the Constitution. 
 
 8. Limitations upon the mode of enforcing 
 
 delegated powers. 
 
 9. The legislation to enforce the amend- 
 
 ments invalid. 
 
 10. The tendency towards the centralization 
 
 of power. 
 
 11. Rule of interpretation as to the new 
 
 amendments. 
 
 12. Two propositions which embrace the 
 
 theory of the defense. 
 
 13. Congress has no right to anticipate the 
 
 action of a State. 
 
 14. Failure to provide a remedy not equiv- 
 
 alent to the deprivation of a right. 
 
 15. A prohibition of the exercise of ppwer, 
 
 does not confer upon Congress the 
 power prohibited. 
 
 16. Mode in which Congress may legally 
 
 enforce prohibitions upon the States. 
 Constitutional mode of enforcing the 
 
 amendments. 
 How State laws may be prevented from 
 
 becoming operative. 
 The legislation assumes that Congress 
 
 has powers which it does not possess. 
 
 20. Second proposition. — Theory and object 
 
 of government 
 
 21. Practical results of the theory of the 
 
 prosecution. 
 
 22. Rules of interpretation heretofore 
 
 adopted. 
 
 17- 
 
 18. 
 
 19. 
 
 The Greek legends and poetry teach that the golden age is in the past. The 
 wonderful march of improvement which marks the closing century as the most 
 important which has yet occurred; the universal dissemination of knowledge, 
 which has done so much for the welfare of the race ; the remedies which are 
 being contrived, under a progressive civilization, to perfect and protect the rec- 
 ogniz€:d rights and liberties of the individual against the encroachments and 
 
 [517] 
 
518 ARGUMENT OF DAVID DUDLEY FIELD ON THE 
 
 usurpations of arbitrary power; seem to demonstrate that the golden age is in 
 the future. The age in which men are governed least, will be that ideal age. 
 To that we are approaching. Hence the highest and most interesting of secular 
 problems, which has engaged the attention of men, has been to establish a per- 
 fect government; and the solution of this question seems to have been reserved 
 for the genius of the American people. It is true that a pure democracy existed 
 at one time in Greece, and republican forms of government have flourished to a 
 certain extent at different periods, but the realization of perfection has never 
 been approached, until the fact of American independence finally led to the es- 
 tablishment of the model government of the world, ' ' an indestructible union of 
 indestructible States." The theory which has prevailed as to the object and 
 nature of government among the splendid empires of the Orient, has been re- 
 versed. The old notion, that the king was the source and fountain of all power, 
 has given way entirely to the opposite theory, that all power is in the people, and 
 is delegated under express and clearly defined limitations to be exercised by the 
 ruler. That the right to rule does not descend by divine appointment, but in- 
 heres in the people, to be exercised by such servants as they may choose, in such 
 manner as they may ordain. 
 
 The union of the States in the American republic, presents an apparently 
 complex, but in reality an exceedingly simple and harmonious system. The 
 powers and workings of this dual government forms the subject of the argument 
 here presented. 
 
 When the Union was framed, jealousies arose between the States and the 
 general government, as to the extent of the powers possessed by each, provoking 
 a discussion which finally culminated in a civil war. The results of the conflict 
 are embraced within the three last amendments to the Constitution, forbidding 
 the existence of slavery, and prohibiting the States from interfering with the 
 rights'and privileges of citizens of the United States on account of race or color.' 
 Out of the legislation to enforce these amendments, the controversy in Cruiks- 
 hank's case arose, upon the following facts: 
 
 William I. Cruikshank and ninety-six others, were indicted in the United 
 States Circuit Court for the District of Louisiana, charged with banding and con- 
 spiring together to injure, oppress, threaten and intimidate Levi Nelson and Alex- 
 ander Tillman, citizens of the United States, of African descent, and persons of 
 color, with the intent thereby to hinder and deprive them in their free enjoyment 
 of certain rights and privileges which, it was claimed, were granted and secured 
 to them, in common with all other good citizens of the United States, by the Con- 
 stitution and laws of the United States. The indictment contained thirty-two 
 counts, sixteen of which were framed under the sixth, and sixteen under the sev- 
 enth section of an act of Congress, entitled "An Act to enforce the rights of citizens 
 of the United States," &c., approved May 30, 1870, known as the " Enforcement 
 Act." The present controversy concerns only that portion of the indictment under 
 the sixth section, upon which alone three of the defendants were convicted 
 the others having been acquitted of all the charges. Of these sixteen counts there 
 were two series, eight charging the defendants with " banding," and eight with 
 " conspiring, " to deprive and hinder Nelson and Tillman in the exercise and enjoy- 
 ment of rights and privileges, substantially as follows : (i) Interfering with their 
 
 ' For text of the amendments, see Appendix, p. 728. 
 
CONSTITUTIONALITY OF THE "ENFORCEMENT ACT." 519 
 
 right to assemble with each other and with other good citizens of the United 
 States, for lawful purposes ; (2) Interfering with their right to bear arms for lawful 
 purposes ; (3) With having taken away their lives and liberty without due process of 
 law; (4) Interfering with their right to the equal protection of the laws secured to 
 white citizens; (5) Interfering with their right to vote at State elections; (6) With 
 having put them in fear and bodily harm, for having voted at'State elections; 
 (7) Interfering, on account of their race and color, with their rights and privi- 
 leges as secured to them, in common with all other citizens, by the laws of the 
 United States and of the State of Louisiana. 
 
 Upon these counts, three of the defendants were convicted, and upon 
 the verdict counsel moved an arrest of judgment, upon the ground (i) That the 
 matters charged were not offenses against the laws of the United States, nor 
 within the jurisdiction of the federal courts; but were exclusively within the ju- 
 risdiction of the State courts; (2) That the Act of Congress upon which the in- 
 dictment was framed, was unconstitutional; (3) That the indictment was defect- 
 ive, in that certain of the counts were indefinite, vague and uncertain, charging 
 no particular offense. The court were divided in opinion as to granting the 
 motion, and certified the questions to the Supreme Court. 
 
 The issues presented were, whether the people, in amending the Constitution, 
 intended thereby to give power to the general government to enforce rights which 
 had heretofore been wholly enforced and protected by the States? or was the ob- 
 ject to prohibit the States from withholding the protection of its laws from any 
 particular class of citizens ? Was it intended to give Congress power to enforce 
 the rights, or to prohibit the States from withholding from any citizen the equal 
 protection of its laws ? Has any citizen acquired thereby any new rights, or do 
 the amendments simply guarantee existing rights, giving Congress power to en- 
 force the guarantee ? 
 
 These are the questions discussed by Mr. Field, in his very elaborate and 
 careful argument. He takes the broad ground, that all the rights which it was 
 claimed had been violated and obstructed, were within the exclusive protection 
 of the States, and until a State had, by legislation or otherwise, denied these 
 rights to any citizen or class of citizens, the acts passed by Congress to enforce 
 the war amendments did not become operative ; that the failure of a, State to 
 provide a remedy for the enforcement of such rights, was not a denial of them 
 within fhe meaning of the fourteenth amendment, and did not bring it within 
 the prohibition declaring that no State shall make any law which shall abridge 
 the privileges or immunities of citizens of the United States, or deprive any per- 
 son of life, liberty, or property, without due process of law, or deny to any per- 
 son within its jurisdiction, the equal protection of the laws; that because a 
 State did not provide a remedy for the violation of rights within its jurisdiction, 
 that fact did not operate to confer upon Congress the power to enforce the rights 
 or provide remedies therefor, and that an indictment under a penal statute, pro- 
 viding for such enforcement, was without authority, illegal and void. 
 
 The court held, Chief Justice Waite writing the opinion, that the duties and 
 rights belonging to citizens within the original jurisdiction of the States, still re- 
 main there, and the only obligation resting upon the national government, is to 
 see that the States do not deny them. That the right to vote is derived from the 
 State, but the right of exemption from discrimination in the exercise of that 
 
520 ARGUMENT OJ" DAVID DUDLEY FIELD ON THE 
 
 right, on account of race or color, is conferred and secured by the fifteenth 
 amendment. The court held, further, that every citizen was entitled to the equal 
 protection of the laws, and this right was also secured by the Constitution, but 
 affirmed the order arresting the judgment and ordering a discharge of the de- 
 fendants, upon the ground that these offenses were not stated with certainty, but 
 were vague and indefinite, and not sufficient to support the indictment. The 
 case was argued on behalf of the prosecution, by Attorney-General Williams and 
 Mr. Solicitor-General Phillips, and on behalf of the defendants in error, by Mr. 
 Reverdy Johnson, Mr. David Dudley Field, Mr. Philip Phillips, and Mr. R. H. 
 Marr. Mr. Field said : 
 
 May it please the Court : — The argument that I shall have 
 the hoBor to address to the court will be confined to the question of 
 compatibility between the federal Constitution and the legislation of 
 Congress, which is supposed to authorize the present indictment. 
 
 It is indeed true, that if the form of the accusation is not con- 
 formable to the act of Congress, the defendants are entitled to be 
 presently discharged, but inasmuch as a new indictment might pos- 
 sibly be preferred, supposing the present to fail for defect of form, 
 this question is insignificant compared with the other. 
 
 For my part I shall leave the matter of procedure where it now 
 stands upon the argument, and confine myself to the question of 
 conformity or non-conformity of the act of Congress to the Consti- 
 tution. If the legislation upon which this indictment rests is con- 
 formable to the organic law of this country, then it matters little 
 what is or is not decided about the forms of proceeding. The sub- 
 stance of American constitutional government, as received from 
 the Fathers, will have gone, and the forms will not be long in fol- 
 lowing. 
 
 Let us reduce and formulate the question, if we can, so as to 
 separate the incidental from the essential, in order that our atten- 
 tion may be withdrawn from all other considerations than that of 
 the one fundamental and permanent theory, upon which this legis- 
 lation must stand, if it stand at all. 
 
 I. The amendments to the Constitution growing out of 
 
 THE war. 
 
 The 13th amendment to the Constitution (1865) declares, that 
 neither slavery nor involuntary servitude, except in punishment 
 of crime, shall exist within the United States, and authorizes Con- 
 gress to enforce the declaration by appropriate legislation. 
 
 The 14th amendment (1868), after defining citizenship of the 
 United States, prohibits the States (i) from making or enforcing 
 
CONSTITUTIONALITY OF THE "ENFORCEMENT ACT." 521 
 
 any law which shall abridge the privileges or immunities of citizens 
 of the United States ; (2) from depriving any person of life, liberty 
 or property, without due process of law ; and (3) from denying to 
 any person within their jurisdiction the equal protection of the 
 laws. And it authorizes Congress to enforce the provisions of the 
 amendment by appropriate legislation. 
 
 The isth amendment (1870) prohibits the States from denying 
 or abridging the rights of citizens of the United States to vote, on 
 account of race, color or previous condition of servitude. This 
 prohibition also Congress is authorized to enforce by appropriate 
 legislation. 
 
 2. The legislation to enforce the amendments. 
 
 Professing to act under the authority of these amendments, 
 Congress has passed five acts, four only of which were in existence 
 at the time of the indictment now under consideration ; one called 
 the Civil Rights Act, passed April 9, 1866; the second called the 
 Enforcement Act, passed May 31, 1870 ; the third, amending this, 
 passed February 28, 1871, and a fourth act, passed April 20, 1871. 
 
 The CivU Rights Act is first in order of time. Section i, 
 after declaring that all persons born in the United States, and not 
 subject to any foreign power, excluding Indians not taxed, are citi- 
 zens of the United States, enacts, that " such citizens, of every race 
 and color, without regard to any previous condition of slavery or 
 involuntary servitude, except as a punishment for crime, whereof 
 the party shall have been duly convicted, shall have the same right 
 in every State and Territory of the United States to make and en- 
 force contracts, to sue, be parties, and give evidence, to inherit, 
 purchase, lease, sell, hold and convey real and personal property, 
 and to full and equal benefit of all laws and proceedings for the 
 security of person and property, as is enjoyed by white citizens, and 
 shall be subject to like punishment, pains and penalties, and to none 
 others." Section 2 enacts, that " any person, who, under color of 
 any law, statute, ordinance, regulation or custom," shall cause any 
 inhabitant — the word citizen being dropped — " to be subjected to 
 the deprivation of any right secured or protected by this act," shall 
 be guilty of misdemeanor. Section 3 confers upon the federal 
 courts jurisdiction over infractions of the act. Sections 4 and 5 
 provide an army of officers to enforce the act. Section 6 enacts 
 penalties for obstructing or resisting the execution of the act. The 
 remaining sections,. 7, 8, 9 and 10, are not material to the present 
 inquiry. 
 
522 ARGUMENT OF DAVID DUDLEY FIELD ON THE 
 
 The first section of the Enforcement Act declares, that all 
 citizens of the United States, otherwise qualified, shall be al- 
 lowed to vote at all elections, without distinction of race, color, or 
 previous servitude. Section 2 provides, that if by the law of any 
 State or Territory a prerequisite to voting is necessary, equal op- 
 portunity for it shall be given to all, without distinction, &c.; and 
 any person charged with the duty of furnishing the prerequisite, 
 who refuses, or knowingly omits to give full effect to this section, 
 shall be guilty of misdemeanor. Section 3 provides, that an offer of 
 performance, in respect to the prerequisite, when proved by affida- 
 vit of the claimant, shall be equivalent to performance ; and any 
 judge or inspector of election who refuses to accept it shall be 
 guilty, &c. Section 4 provides, that any person who, by force, brib- 
 ery, threats, intimidation or other unlawful means, hinders, delays, 
 prevents, or obstructs any citizen from qualifying himself to vote, 
 or combines with others to do so, shall be guilty, &c. Section 5 
 provides, that any person who prevents, hinders, controls, or intimi- 
 dates any person from exercising the right of suffrage, to whom it 
 is secured by the isth amendment, or attempts to do so, by bribery 
 or threats of violence, or deprivation of property or employment, 
 shall be guilty, &c. Section 6 provides, that " if two or more per- 
 sons shall band or conspire together, * * * ^jth intent to 
 violate any provision of this Act," that is, of either act, "or to 
 injure, oppress, threaten, or intimidate any citizen, with intent 
 to prevent or hinder his free exercise and enjoyment of any 
 right or privilege granted or secured to him by the Constitu- 
 tion or laws of the United States, or because of his having 
 exercised the same, such persons shall be held guilty of felony," 
 &c. Section 7 provides, that if in violating any provision of 
 §§ 5 and 6 any other offense is committed, that shall be visited with 
 such punishments as are prescribed for like offenses by the laws of 
 the State. Sections 8, 9 and 10 give jurisdiction to certain courts, 
 provide commissioners and direct the execution of warrants, &c. 
 Section 1 1 provides penalties for preventing or obstructing the ex- 
 ecution of the act. Section 12 regulates the fees of officers. Sec- 
 tion 13 authorizes the President to employ the public forces. Sec- 
 tions 14 and 15 relate to the holding of office by persons disqualified 
 under the 14th amendment. Section 16 enacts, that "All persons 
 within the jurisdiction of the United States shall have the same 
 right in any State and Territory to make and enforce contracts, to 
 sue, be parties, give evidence, and to the full and equal benefit of 
 
CONSTITUTIONALITY OF THE "ENFORCEMENT ACT." 523 
 
 all laws and proceedings for the security of persons and property as 
 is enjoyed by white citizens, and shall be subject to like punish- 
 ments, pains, penalties, licenses and exactions of any kind, and none 
 other," &c.; and that no tax or charge shall be imposed upon im- 
 migrants from one country not imposed upon immigrants from any 
 other. Section 17 enacts, that any person who, "under color of 
 any law, statute, ordinance, regulation or custom," subjects any in- 
 habitant to the deprivation of any right secured or protected by 
 § 16, or " to different punishment, pains or penalties, on account 
 of such person being an alien, or by reason of his color or race, 
 than is prescribed for the punishment of citizens," shall be guilty, 
 &c. Section 18 re-enacts the Civil Rights Act. The remaining 
 sections, 19, 20, 21, 22, 23, relate to elections, and construct a very 
 large and complicated piece of machinery for their management. 
 
 The amendatory Act, passed February 28, 1871, relates chiefly 
 to elections of members of the House of Representatives ; the pro- 
 visions of which, and of the 4th Agt, however extraordinary, are 
 not within the scope of our present inquiry. 
 
 3. The offenses charged in the indictment. 
 
 By authority of this legislation, ninety-seven persons were in- 
 dicted together in the Circuit Court of the United States for the 
 District of Louisiana, and three of them, the present defendants, 
 were found guilty upon the first sixteen counts. The indictment 
 was found under the 6th and 7th sections of the Enforcement Act, 
 sixteen counts being for simple conspiracy under the 6th section, 
 and the other sixteen being for conspiracy, with overt acts result- 
 ing in murder. 
 
 The first count was for banding together, with intent " unlaw- 
 fully and feloniously to injure, oppress, threaten and intimidate" 
 two citizens of the United States " of African descent and persons 
 of color," "with the unlawful and felonious intent thereby" them 
 " to hinder and prevent in their respective free exercise and enjoy- 
 ment of their lawful right and privilege to peaceably assemble to- 
 gether with each other and with other citizens of the said United 
 States for a peaceable and lawful purpose." The second count avers 
 an intent to hinder and prevent the exercise by the same persons of 
 the "right to keep and bear arras for a lawful purpose." The third 
 avers an intent to deprive the same persons " of their respective 
 several lives and liberty of person without due process of law." 
 The fourth avers an intent to deprive the same persons of the " free 
 
524 ARGUMENT OF DAVID DUDLEY FIELD ON THE 
 
 exercise and enjoyment of the right and privilege to the full and 
 equal benefit of all laws and proceedings for the security of persons 
 and property " enjoyed by white citizens. The fifth avers an intent 
 to hinder and prevent the same persons " in the exercise and en- 
 joyment of the rights, privileges, immunities and protection granted 
 and secured to them respectively as citizens of the said United 
 States, and as citizens of the said State of Louisiana, by reason of 
 and for and on account of the race and color " of the said persons. 
 The sixth avers an intent to hinder and prevent the same persons 
 in "the free exercise and enjoyment of the several and respective 
 right and privilege to vote at any election to be thereafter by law 
 had and held by the people in and of the said State of Louisiana." 
 The seventh avers an intent " to put in great fear of bodily harm, 
 injure and oppress " the same persons " because and for the reason" 
 that, having the right to vote, they had voted. The eighth avers 
 an intent " to prevent and hinder " the same persons " in their sev- 
 eral and respective free exercise and enjoyment of every, each, all 
 and singular the several rights and privileges granted and secured " 
 to them "by the Constitution and Laws of the United States." 
 The next eight counts are a repetition of the first eight, except that 
 instead of the words " band together " the words " combine,' con- 
 spire and confederate, together " are used. 
 
 This indictment, or that portion of it upon which these defend- 
 ants have been convicted, is supposed to be justified by the 6th 
 section of the Enforcement Act, and that section is said to rest 
 upon the late amendments. In considering the question, whether 
 it is or is not supported by them, I assume, what cannot be dis- 
 puted, that before the late amendments this section, and the same 
 may be said of the other sections, would have been beyond the 
 competency of Congress. The point of contention, therefore, is 
 whether the amendments have conferred the power. 
 
 4. Object and design of the war amendments. 
 
 Upon this my first proposition is, that it was not the design of 
 the people, in adopting them, to change the fundamental character 
 of their government, or to alter the relations between the Union 
 and the States. They intended, that thb Union should continue 
 to "be what it had been before, to use the language slightly changed 
 of the late Chief- Justice, an indestructible union of indestructible 
 States. 
 
CONSTITUTIONALITY OF THE "ENFOECEMENT ACT." 525 
 
 The events of the last fifteen years are not secrets. The origin 
 of the war, the war itself, the questions to which, in its varying 
 progress, it gave rise, and its great results, are known of all men. 
 It established the unity of the nation and the freedom of the slaves. 
 Upon the final settlement, while it was not thought necessary to 
 make any constitutional changes in respect to the claim of seces- 
 sion and the relation of the States to the Union, it was thought 
 necessary to provide for the equality of the freedmen. 
 
 In doing this, two courses were open ; one was, to place them 
 and all their rights and relations under the cognizance of the fed- 
 eral power, and the other was to leave them as they were, under 
 the cognizance of the States, but to provide that these should make 
 no discrimination to their disadvantage. The latter course was 
 adopted. The articles are congruous and plainly adapted to that 
 end. They all imply that, apart from the prohibitions, the States 
 have plenary power over the subject, and they leave that power as 
 ' it was, with the single qualification, that it shall treat all alike, the 
 emancipated slaves side by side with their old masters. It was in 
 this respect somewhat like the treaty stipulation that we often make, 
 agreeing that the nation treating with us shall be put on the foot- 
 ing of the most favored nations, which, while it leaves us at full 
 liberty to make what new treaties or enact what new laws we please, 
 obliges us to grant to the one what we grant to the others. 
 
 It was the design of the amendments, and their whole design, 
 to raise the freedmen to an equality with their late masters before 
 the law, and to give the blacks all the rights which the whites en- 
 joyed. There was no complaint that the whites were oppressed. 
 There was no mischief in that respect to. remedy. They did not 
 need new guarantees, and none were intended for them. The com- 
 plaint to be relieved, the mischief to be remedied, the guarantee to 
 be provided, had respect to the lately subject race, and to that 
 alone. In saying this, we of course leave out of view the tempo- 
 rary provisions respecting the treatment of the rebels and the rebel 
 debt. So understood, there is symmetry in the whole of the amend- 
 ments ; they are all conformed to one plan, and carry out one great 
 purpose. Thus the 13th amendment decreed the emancipation of 
 the slaves ; the 14th gave them the privileges of citizens of the 
 United States, and to assure them equality of civil rights and debar 
 forever discriminating legislation to their oppression, forbade the 
 States to deprive any person of the equal protection of the laws, or 
 of life, liberty or property, without due process of law ; and finally. 
 
526 ARGUMENT OP DAVID DUDLEY FIELD ON THE 
 
 the 15th amendment gave them equality of political rights, to the 
 extent of an equal right to vote. 
 
 5. Theory of the prosecution. 
 
 The general question now is, what may Congress do to enforce 
 the prohibitions thus directed against the States ? The particular 
 question upon which this case depends is, whether, under color of 
 enforcing the prohibitions, and before any State has violated them, 
 Congress can anticipate and prevent their violation by taking into 
 its own hands the regulation of the whole subject. 
 
 The penal legislation upon which this indictment is founded, can 
 be defended only on the assumption that Congress has in its keep- 
 ing the various rights which the legislation aims to protect. The 
 object of punishment is the prevention of crime, and crime is the 
 violation of right. The United States cannot punish the violation 
 of State laws any more than the States can punish the violation of 
 federal laws. When the former assert their competency to punish ■ 
 violations of the right to assemble, the right to bear arms, the right 
 to life, liberty and property, the right to vote, the right to the equal 
 protection of the laws, and the privileges and immunities of citizens 
 of the United States, they assert their competency to enforce each 
 and all of these rights, privileges and immunities, and the compe- 
 tency to enforce includes, of course, the competency to enumerate 
 and define all that are enforced. 
 
 Such may be undoubtedly one way of accomplishing the object. 
 You can prevent a thing being done in a manner displeasing to you 
 by doing it yourself. Congress can prevent the States from making 
 a wrong regulation by itself making all the regulations. But is that 
 the fair purport of the authority? Is it the legitimate interpre- 
 tation of a charter of federal government, by which power' is care- 
 fully partitioned between the Union and the States, to say that, if 
 the former has authority to prevent the latter from doing a wrong 
 thing, it may prevent their doing anything, by doing everything 
 itself ? It seems to me the more natural and convenient way of 
 treating the subject, to discuss, first the general propositions, and 
 then to apply them to the case in hand. 
 
 6. Meaning of the term "appropriate legislation." 
 
 The prohibitions of these amendments of the last decade are 
 reasonably clear ; their general purpose is unmistakable ; they are 
 laid upon the States, and Congress has express power to enforce 
 
CONSTITTJTIONALITY OF THE "ENFORCEMENT ACT." 527 
 
 them by appropriate legislation. So much is indisputable. The 
 dispute begins when the word appropriate is to be interpreted. 
 What is, and what is not, appropriate legislation ? And who is to 
 judge of the appropriateness? These are the cardinal questions 
 upon which hinges the decision of the present cause, and with it 
 the determination in no small measure of the future of the country. 
 
 The first observation to be made is that the amendments being 
 made part of the Constitution are to be construed in connection 
 with the original parts of it, and according to the well-understood 
 and long-established interpretation of that instrument, Congress is 
 within certain limits, the exclusive judge of the appropriateness of 
 its legislation to the end designed ; but that there are such limits, 
 and beyond them. Congress may not pass. 
 
 The rules of interpretation applicable to the federal Constitu- 
 tion, have not been in any respect changed by the amendments. 
 The question is always, first, what is the natural sense of the lan- 
 guage used, and then, if that be doubtful, what was the intention of 
 the law-givers, that is, the people of the United States. In the 
 natural sense is included not only that of the particular provision 
 under consideration, but the other provisions of the same institu- 
 tion. In short, when the question arises, what legislation Congress 
 may adopt to enforce the amendment, the answer that should fol- 
 low is, that it must be appropriate, and must not be prohibited by 
 other provisions of the Constitution, either expressly or by impli- 
 cation. 
 
 7. The express and implied prohibitions of power within 
 THE Constitution. 
 
 There are certain express prohibitions, which are so many qual- 
 ifications of the powers granted, and there are also implied prohi- 
 bitions. For example. Congress could not, under color of prevent- 
 ing a State from doing certain things, destroy the State, or any of 
 its essential attributes. If it were proved, beyond question, that to- 
 morrow the legislature of Massachusetts, if not prevented by Con- 
 gress, would pass a law denying suffrage to every colored man in 
 the commonwealth. Congress could not, by any legislation what- 
 ever, terminate the session of the legislature, or authorize the Pres- 
 ident to march the garrison of Fort Warren into the State House 
 and turn the members out of doors. Congress could not, I say, do 
 this. I do not confine myself to saying it would not ; I say that if 
 it were so minded it could not, and every respectable authority in 
 the land — ^legislative, executive and judicial — would so pronounce. 
 
528 AEGUMENT OF DAVID DUDLEY FIELD ON THE 
 
 Why could not Congress do this ? let me ask. The answer is, that 
 the State of Massachusetts is a self-existing and indestructible 
 member of the American Union, and neither Congress nor any- 
 other department of the federal government has, expressly or by 
 implication, power to destroy any essential attribute of the sove- 
 reignty of that commonwealth. The word sovereignty I use in its 
 American sense of supreme power, partitioned between the Union 
 and each of the States. Neither the one nor the other is an abso- 
 lute sovereign ; each power is sovereign in its own sphere. The 
 dividing line between them is as marked to the eye of a lawyer as 
 if it were territorial. 
 
 Congress, then, is judge of the means to be chosen for attaining 
 a desired end, only in this sense, that it must choose appropriate 
 means, and such as are not expressly or by implication prohibited. 
 Certain means are expressly prohibited, as, for example, the es- 
 tablishment of an order of nobility. Other means are by implica- 
 tion prohibited, as, for example, the destruction of a State. Con- 
 gress is not expressly prohibited from destroying a State ; the im- 
 plied prohibition; however, is not less real and imperative. After 
 eliminating these prohibited means from the category of those 
 which are eligible, there must be a still further elimination of all 
 means which are not appropriate. This word appropriate is one 
 of limitation. Congress is not clothed with power to enforce the 
 prohibition by every kind of legislation, but by appropriate legis- 
 lation. We have, then, in the very body of the Constitution, these 
 limitations upon the choice of means by Congress ; they must not 
 be prohibited, and they must be appropriate. 
 
 When, therefore, it is said, as it often is, that Congress is the ex- 
 clusive judge of the means to be chosen for attaining an end, the 
 proposition is to be admitted only with the two qualifications that 
 have been mentioned. So it was said by Madison, Hamilton and 
 Jay, in the Federalist ; so it was said by Hamilton in his argument 
 for a bank of the United States ; so it was said by Ch. Justice 
 Marshall in McCulloch and Maryland, and so it has been said, 
 scores of times since, by judges of this court and other judges. 
 State and federal. 
 
 8. Limitations upon the mode of enforcing delegated 
 
 POWERS. 
 
 To illustrate the rule that no means can be adopted which con- 
 travene the implied as well as the express limitations of the Consti- 
 
CONSTITUTIONALITY OF THE "ENFORCEMENT ACT." 529 
 
 tution, let us suppose a few cases. Congress could not authorize 
 the criminal prosecution of a State legislator who voted for a bill 
 within the prohibition. Why not ? Because that would be incom- 
 patible with the independence of the State legislatures, an inde- 
 pendence essential to the sovereignty, or, if the expression is liked 
 better, the partial independence, or the autonomy, of the States. 
 Congress could not authorize an injunction against a State legis- 
 lature, forbidding it to pass such a bill, for the like reason. Con- 
 gress could not subject to criminal process the judges of a State 
 court for deciding against the constitutionality of the enforcement 
 act, and the reason here is the same. 
 
 There are many limitations upon the choice of means beyond 
 those which are expressed. They are implied from the nature of 
 the government, the history of the country and the traditions of the 
 people. The right to declare an act invalid, because incompatible 
 with the Constitution, applies with the same effect where the incom- 
 patibility relates to the implied, as where it relates to the express 
 limitations of the Constitution. 
 
 General language, though in itself unambiguous, is limited by 
 the circumstances in which it is used. Thus, " the United States 
 shall guarantee to every State in this Union a republican form of 
 government." But what sort of a republican government? Is 
 there any express provision of the Constitution which forbids Con- 
 gress to establish in a State, whose authorities are overthrown, a 
 government like that of Venice, or like that of another of the Ital- 
 ian republics of the middle ages ? According to the classification 
 of writers on government, Genoa under its doges, Florence under 
 its dukes, and Poland under its kings, were republics. Why may 
 not Congress take that form of republican government now exist- 
 ing in France, or that lately existing in Spain, or any of the repub- 
 lican forms of past ages, that, for instance, of the Commonwealth of 
 England under Cromwell, or even that of Poland ? There is no 
 reason other than this, that there are certain essential, inherent, in- 
 eradicable principles of American republican government, to which 
 the framers of the Constitution referred, and by which Congress is 
 bound. And if Congress be thus limited, the courts must say so 
 whenever the question is brought before them. What otherwise 
 could prevent Congress from establishing in a disorganized State, a 
 government of military dukes. 
 
 In all that I have said I am justified by recent decisions of this 
 court. Not longer ago than 1868, this court, speaking by its late 
 34 
 
530 ARGUMENT OF DAVID DUDLEY FIELD ON THE 
 
 chief justice, uttered these memorable words, which will live in con- 
 stitutional history so long as the Constitution lives in its vigor: 
 " Not only, therefore, can there be no loss of separate and inde- 
 pendent autonomy to the States through their union under the Con- 
 stitution, but it may be not unreasonably said, that the preservation 
 of the States, and the maintenance of their governments, are as 
 much within the design and care of the Constitution as the preser- 
 vation of the Union, and the maintenance of the national govern- 
 ment. The Constitution in all its provisions, looks to an inde- 
 structible Union, composed of indestructible States." ' And, in 
 1870, the court, speaking by Mr. Justice Nelson, used this language: 
 "The general government and the States, although both exist 
 within the same territorial limits, are separate and distinct sover- 
 eignties, acting separately and independently of each other, within 
 their respective spheres. The former in its appropriate sphere is 
 supreme, but the States, within the limits of their powers not 
 granted, or, in the language of the tenth amendment, ' reserved,' are 
 as independent of the general government, as that government, 
 within its sphere, is independent of the States."" And again: 
 '" It," the taxing power, "is therefore one of the sovereign powers 
 ■vested in the States by their constitutions, which remained unal- 
 tered and unimpaired, and in respect to which the State is as inde- 
 -pendent of the general government, as that government is inde- 
 'pendent of the States. The supremacy of the general government, 
 therefore, so much relied on in the argument of the counsel for the 
 plaintiff in error, in respect to the question before us, cannot be 
 maintained. The two governments are upon an equality," &c., 
 (p. 126). And again: "In this respect, that is, in respect to the 
 reserved powers, the State is as sovereign and independent as the 
 general government" (p. 127). The case itself is the strongest 
 possible example of an implied limitation upon the powers of Con- 
 gress. Its power to tax is apparently unlimited, and it had passed 
 an act, by the terms of which the salary of a State judge was liable 
 to taxation, but this court pronounced the act unconstitutional, be- 
 cause, in the exercise of an express power, Congress had trans- 
 gressed the implied limitations. Other instances of implied limita- 
 tions will readily suggest themselves; federal judges declining 
 duties not judicial, imposed on them by Congress, and State officers 
 declining federal duties. ' 
 
 » Collector v. Day, II Wall. 124. ' Texas v. White, 7 Wall. 725. 
 
COJfSTlTTJTIONALITT OF THE "ENFOECEMENT ACT." 531 
 
 9. The legislation to enforce the amendments invalid. 
 
 The only principle that can justify the legislation now in ques- 
 tion, if it be justifiable at all, is this: That, in the choice of means 
 to prevent a State violating the prohibitory clauses of the late 
 amendments, Congress may itself do the things which the State 
 would otherwise have done, in order to make sure that they are not 
 done improperly. The States may, every one of them, do what 
 New York and Massachusetts now do, in securing the right of all 
 citizens to vote, without regard to race, color, or previous condi- 
 tion of servitude; but, for fear that they will not continue to do so, 
 Congress may, it is claimed, register the voters, and receive and 
 count the votes. And if it may do that, it may do any other thing 
 that is to be done by a government in an election; in short, take 
 upon itself to construct and work the whole machinery of elections. 
 And what is true of voting, is, as I shall endeavor to show more 
 fully hereafter, true also of every other subject within the scope of 
 these amendments, and that includes almost every subject of gov- 
 ernment. For what is there in the world for State legislation but 
 " life, liberty and property," and the " protection of the laws ? " If 
 the validity of the present legislation is affirmed, one may affirm the 
 validity of legislation upon any subject concerning life, liberty, 
 property, and protection by the law. 
 
 10. The tendency towards the centralization of power. 
 
 It is idle to answer that such an attempt will never be made. 
 Who can tell what, in the frenzy of future parties, may not be at- 
 tempted ? Who that has seen the things happening in this genera- 
 tion, can foretell what may not be done' or attempted in some of 
 the times to come .' One of the most extraordinary phenomena of 
 political history, is the tendency of majorities to oppress minorities, 
 and to trample upon all obstructions standing in the way. It would 
 have been thought probable, that as each person who helps to make 
 the majority is himself but an individual, and may soon be in the 
 minority of individuals, he would be sedulous to guard his own 
 rights, by refusing to join in pressing too heavily upon the rights of 
 others. But the fact is different, though every federal legislator, 
 and every other federal officer does in truth depend for his own 
 protection and that of his family, more upon the State to which he 
 belongs, than upon the federal government which he for the time be- 
 ing serves. Yet this truth is lost sight of in the thoughtlessness and 
 
532 ARGUMENT OF DAVID DUDLEY FIELD ON THE 
 
 excitement of national discussions. Whoever has carefully watched 
 the political events of the last decade must have seen a constant 
 and constantly accelerated movement toward the organization and 
 cumulation of federal authority. This has been brought about by 
 the action of good men as well as bad, in obliviousness of the truth 
 that every new power added to the nation, is just so much sub- 
 tracted from the States. 
 
 II. Rule of interpretation as to the new amendments. 
 
 A political argument addressed to the Supreme Court would, of 
 course, be out of place. Its great but single function is to inter- 
 pret the law and the Constitution, be the consequences what they 
 may. But it is proper to reflect, that for the true interpretation of 
 language, we may, and should look at the occasion and circum- 
 stances in which it was used. This is both natural and philosoph- 
 ical. The imperfection of language leaves room for different inter- 
 pretations, in the choice of which we put ourselves, so far as may 
 be, in the place of those who used it. see with their eyes, hear with 
 their ears, and imagine ourselves to be aiming at that at which they 
 aimed. We know the history of the federal Constitution; and we 
 know also the history of the late amendments. The matter is too 
 fresh for us to be ignorant of the views and intentions of those who 
 ratified their provisions. We may appeal to the knowledge of men 
 around us, to our fellow-citizens of the whole nation, to bear us out 
 in the assertion, that the people did not suppose they were thereby 
 changing the fundamental theoryof their government. If this be 
 assumed, and it be shown, that the legislation in question goes upon 
 a new theory of the government, and of the relation of the States 
 to the Union, then it is shown that the people never contemplated, 
 and much less sanctioned, such an interpretation of their acts. 
 Should this be done, then, in a case where language is susceptible 
 of two interpretations, that one is to be preferred as the true one 
 which conforms to the understanding of the people, whose acts 
 alone these amendments are. 
 
 12. Two PROPOSITIONS WHICH EMBRACE THE THEORY OF THE 
 
 DEFENSE. 
 
 My argument, therefore, will consist of an endeavor to establish 
 the following two propositions: 
 
 I. The natural interpretation of the language of the new amend- 
 ments does not justify the present legislation; 
 
CONSTITUTIONALITY OF THE "ENFORCEMENT ACT." 533 
 
 II. If the natural interpretation did justify it, yet, as the lan- 
 guage is susceptible of a different one, the latter must be preferred 
 as that alone in which it was understood by the people. 
 
 The natural interpretation of the amendments does not justify 
 the legislation. No State, this is the language, shall make or enforce 
 any law which shall abridge the privileges or immunities of citizens 
 of the United States, or deprive any person of life, liberty or prop- 
 erty, without due process of law, or deny to any person within its 
 jurisdiction the equal protection of the laws; no State shall deny or 
 abridge the right of citizens of the United States to vote, without 
 regard to race, color, or previous condition of servitude. A State 
 is a corporate body, and can act only by its corporate authorities. 
 Until these corporate authorities have acted, the State has not vio- 
 lated the prohibition. Congress therefore must move after the 
 State, not before it. But as yet no State has moved, so far as we 
 are informed. Not one of them has done anything which a State 
 is, by these amendments, commanded not to do. 
 
 13. Congress has no right to anticipate the action of a 
 
 State. 
 
 The prohibitions being against State action, that action must 
 precede any counter action under act of Congress. This is so ob- 
 vious, as to amount almost to a truism. Even if Congress should 
 be supposed competent to legislate in anticipation of State action, 
 nothing could be done under the act of Congress until something 
 had been done under the act of the State, contrary to the prohibi- 
 tion. 
 
 It follows from the last proposition, as well as from other con- 
 siderations, that in respect to the mere prohibitions upon the States 
 no action under a law of Congress can be had for the mere inaction 
 of a State. If, for example, a State should wholly fail to provide 
 for certain rights of property. Congress v/ould not thereby become 
 authorized to pass laws for the protection of such rights. There 
 are many rights which courts acting only according to the common 
 law cannot adequately protect. Massachusetts and Pennsylvania 
 were formerly without equitable remedies. If they were so now, no 
 sane man would pretend that therefore Congress would be author- 
 ized to establish such remedies for them. So, too, in respect to 
 certain new rights of property, as, for instance, those which arise 
 out of telegraphy, should a State or all the States fail to define and 
 protect them, Congress could not do so. 
 
534 ARGUMENT OF DAVID DUDLEY FIELD ON THE 
 
 14. Failure to provide a remedy not equivalent to the 
 
 deprivation of a right. 
 
 Failure to provide a remedy for a wrong is not the same thing 
 as depriving of a right. If it were so, then Congress might examine 
 the codes of the States, and, if it found their provisions inadequate, 
 might supplement them. Were a State to repeal a part of its laws 
 for the protection of rights or the punishment of crimes, the na- 
 tional government could not supply the deficiency. Thus, if New 
 York were to repeal all laws for the collection of debts. Congress 
 could not re-enact them. If Massachusetts were to provide no 
 punishment for conspiracy or embezzlement, Congress could not 
 provide it. 
 
 It could hardly be claimed that these prohibitions require any 
 more of the State legislatures than would have been required of 
 them if the same had been contained in their own constitutions. 
 Then surely their doing no more and no less cannot give just occa- 
 sion for federal interposition. State inaction therefore is no cause 
 for federal action. There must be affirmative action by a State 
 tending to deprive a citizen of his rights before Congress can inter- 
 fere. Should a State legislature attempt to deprive a person of 
 property without due process of law, its action would be a nullity. 
 What, in that event, might Congress do ? Provide legal means for 
 establishing the nullity. What legal means did Congress, long ago, 
 provide for establishing the nullity of an ex post facto law, or a law 
 impairing the obligation of contracts, or a bill of attainder ? An 
 appeal to the federal courts. Has not that proved adequate ? The 
 whole question may be stated in these words: How may Congress 
 enforce the nullity of a State law. 
 
 15. A PROHIBITION OF THE EXERCISE OF POWER, DOES NOT CON- 
 
 FER UPON Congress the power prohibited. 
 
 Guarantee is not the converse of prohibition. The prohibitions 
 do not amount to guarantees. They do not require the States to 
 make sure that no man shall be deprived of life, liberty or property 
 without law. The prohibitory amendments act upon the States ai)d 
 not upon individuals. Because the States are interdicted from cer- 
 tain things, and Congress may enforce the interdict, that does not 
 prove that Congress may do the converse things. Because the 
 States are prohibited, it would be a strange inference that Congress 
 is authorized. When the Constitution says to the States, you shall 
 
CONSTITUTION ALITT OF THE "ENFORCEMENT ACT." 535 
 
 not, that is not the same thing as saying to Congress, you shall or 
 you may. If it were so, there would be found a strange omission 
 in the Constitution, wide enough to let in many of the mischiefs 
 which the prohibitions were intended to remedy. Congress is not 
 by these amendments prohibited; it is only the States which are. 
 If in consequence of the prohibition upon the States, Congress can 
 exercise plenary power over the subject, it can do some, indeed 
 many, of the very things, which the States were forbidden to do. 
 Congress is not forbidden to pass a law abridging the privileges 
 and immunities of citizens, or denying to certain persons the equal 
 protection of the laws. 
 
 i6. Mode in which Congress may legally enforce prohi- 
 bitions UPON the States. 
 
 But suppose a State, not content with its present laws, to be 
 about to act aggressively, and thus to violate the prohibition, we 
 may speculate upon what Congress could, in that e\tent, enact. The 
 means adopted must be appropriate, and not prohibited. The fed- 
 eral legislature can act only by statute, to be put in execution by 
 the executive and the courts. Could Congress authorize the exec- 
 utive to do anything against the recalcitrant State ? It is difficult 
 to see what it could empower the President to do. It must act 
 through the courts. And the only question is, what appropriate 
 action could Congress authorize to be taken in the courts to enforce 
 the prohibition, that is, to prevent or redress the violation. Could 
 it indict and punish the individuals who had taken advantage of the 
 State's violation of the prohibition, or take action against the State 
 authorities, or nullify the acts, which the State ordains or permits ? 
 Direct action against the State authorities is out of the question for 
 reasons hereinbefore and hereafter stated. For Congress to punish 
 individuals for violations of State laws is also out of the question. 
 To punish them for obeying the State laws would always be of 
 doubtful expediency, as leading to unnecessary conflict, and would 
 often be unconstitutional. The third remedy is the true if not the 
 only one, to nullify the action which the State should not have or- 
 dained or permitted. 
 
 We have lived now three-quarters of a century under the Con- 
 stitution, and it has not been thought necessary to apply to Con- 
 gress for the punishment of a conspiracy to impair the obligation 
 of a contract, or to pass an ex post facto law, or a bill of attainder. 
 
536 ARGUMENT OF DAVID DUDLEY FIELD ON THE 
 
 No one seems to have thought that Congress was competent to 
 punish such a conspiracy, or that there was any occasion for such 
 legislation, if it were possible. 
 
 17. Constitutional mode of enforcing the amendments. 
 
 Equality before the law is the general aim of the amendments. 
 That is secured by nullifying inequality, that is, for example, by de- 
 claring that whatever the State grants to its white citizens, shaE for 
 that reason be also the right of the black. This rule would execute 
 itself in most cases. Take that clause of the fourteenth amend- 
 ment, which forbids a State to make or enforce a law abridging the 
 privileges and immunities of citizens of the United States. The 
 State cannot enforce a law until it is made; if, therefore, it makes 
 no such law, the condition on which alone Congress can act has not 
 arrived. When the State has made such a law then Congress can 
 take steps to enforce the prohibition. What may they be ? Not 
 the passing of an Act to declare the State law null; that has already 
 been done by a* power higher than act of Congress — that is, the 
 Constitution itself — not by empowering the President to act, for he 
 cannot use force against the State statute, but by protecting the in- 
 dividual aggrieved from the operation of the obnoxious law. How 
 is that to be done ? Just as Congress has hitherto protected an in- 
 dividual aggrieved against an ex post facto law, or a law impairing 
 the obligation of contracts. It is not necessary to go into details. 
 Various legal processes will readily suggest themselves to a lawyer, 
 the effect of which will be to protect the person from any law aim- 
 ing to abridge his privileges or immunities as a citizen of the United 
 States, whatever they may be. 
 
 Take the next clause, that which forbids a State to deprive any 
 person of life, liberty or property, without due process of law. 
 Upon this the same observations may be made. It is difficult to 
 imagine any proceeding of a State to deprive a person of life, lib- 
 erty or property, which may not be effectually reached by the means 
 suggested. One of the most powerful instruments for depriving a 
 person of life, liberty or property, is a bill of attainder, or a bill of 
 pains and penalties. This is prohibited by the original Constitu- 
 tion. Is not that prohibition adequately enforced by existing acts 
 of Congress, allowing an appeal to the federal judiciary ? 
 
 Then take the third clause, that which forbids a State to deny 
 to any person within its jurisdiction the equal protection of the 
 laws. Cannot this be dealt with in the same way ? A denial in 
 
CONSTITUTION ALITT OF THE "ENFORCEMENT ACT." 537 
 
 words only, though in the form of a State statute, would be harm- 
 less. If the denial is followed by acts, the person aggrieved can 
 be defended against them by the same machinery of the courts, 
 which would be sufficient for his defense against a violation of 
 either of the preceding clauses. Indeed, the mode of dealing with 
 the prohibition against bills of attainder is marked out as the true 
 mode of dealing with the other prohibitions. No act of a State 
 could be more violent and aggressive than a bill of attainder, and 
 if the machinery of the twenty-fifth section of the Judiciary Act has 
 hitherto been sufficient to defend the citizen against that, it surely 
 will be sufficient to protect him against whatever is less violent and 
 aggressive. 
 
 Will it be said, that life, liberty and property cannot be pro- 
 tected without law; that the equal protection of the laws presup- 
 poses the existence and enforcement of laws, and that if the States 
 do not make the laws, or, being made, do not enforce them, then 
 Congress may interfere ? I have already said something on this 
 head, and will add only a few words. 
 
 Let the question be put in this form: Suppose a State not to 
 provide adequate remedies for the protection of life, liberty and 
 property, what may Congress do ? The answer must be, Congress 
 may do nothing whatever, beyond providing judicial remedies in 
 federal courts for parties aggrieved by deprivation of their rights. 
 Beyond this there is no alternative between doing nothing or doing 
 everything, between leaving the States alone or destroying them al- 
 together. Congress cannot do everything, because that would be 
 the annihilation of the States; therefore it can do nothing, beyond 
 providing the judicial remedies here indicated. 
 
 For want of a better expression, I will call affirmative legislation 
 that which declares and enforces substantive law; and by negative 
 legislation, that which operates by way of defense, in giving redress 
 to a party aggrieved. Using the expression in this sense, I should 
 say that affirmative legislation in respect to the prohibitions of the 
 14th amendment, is not within the competency of Congress. I see 
 no middle ground between giving Congress plenary power over the 
 subject of these fundamental rights, and giving it none. If a State 
 were to abrogate its whole civil and penal code, can Congress make 
 one for it ? By neglect of the government of New York, we will 
 suppose A. to be deprived of his property, without due process of 
 law. His remedy is to sue in the State courts. If that remedy is 
 denied he can go into the federal courts by appeal. Should the 
 
538 AKGUMENT OF DAVID DUDLEY FIELD ON THE 
 
 present process of appeal prove too dilatory or cumbrous, Congress 
 can afford an adequate remedy, by providing a simpler and speed- 
 ier appeal. 
 
 Then let us consider the prohibition of the 15th amendment. 
 " The right of citizens of the United States to vote, shall not be 
 denied or abridged by * * * any State, on account of race, 
 color or previous condition of servitude," and Congress may enforce 
 the provisions of this article. It might seem at first sight, that here 
 is a declaration of the right of citizens of the United States to vote, 
 but that vifould be an error. No right is guaranteed or asserted. 
 Discrimination only is prohibited. The right or privilege, which- 
 ever it may justly be called, of the elective franchise is still where 
 it has always been, under State control, with this single qua,lifica- 
 tion, that in determining it, the State shall make no distinction on 
 account of race, color or previous servitude. 
 
 This amendment is nothing but a prohibition, like the first sec- 
 tion of the 14th article, and should be dealt with in the same man- 
 ner. But the right or privilege of voting cannot be exercised with- 
 out affirmative legislation, it may be said. No more can the right 
 to property be exercised without affirmative legislation. Because a 
 judge of election refuses my right to vote, is that a reason why he 
 should be indicted in the federal courts any more than the judge 
 of a police court, who refuses my claim for redress against a ruffian 
 who has assaulted me in the street ? Because individuals, bad men, 
 band together to deprive me of my redress from the police magis- 
 trate, is that a constitutional reason why the federal judiciary should 
 be called upon to indict, try and punish them ? As individuals 
 they have violated the State laws, and the State must take them in 
 hand; if the State will not, the inhabitants of the State are the suf- 
 ferers, and in their hands lies the power of redress; let them not 
 call on Congress to help those who can help themselves. 
 
 It must never be forgotten that the judges and other oflScers of 
 all the States, are sworn to support the Constitution. The cases 
 have hitherto proved rare in which they failed justly to interpret, 
 and firmly to enforce the provisions of the Federal Constitution, 
 and there is no reason to suppose that they will be less faithful 
 hereafter. There should seem, therefore, to be no occasion for at- 
 tempting to bend the Constitution till it snaps asunder. 
 
 My proposition, in short, is this: That an act of a State in vio- 
 lation of the prohibitions of the amendments would be a nullity, 
 and that Congress, being authorized to enforce the prohibitions by 
 
CONSTITUTIONALITY OF THE "ENFORCEMENT ACT." 539 
 
 appropriate legislation, the natural, the true, and the only constitu- 
 tional mode of enforcement, is by judicial remedies to establish and 
 enforce the nullity. 
 
 i8. How State laws may be prevented from becoming 
 
 OPERATIVE. 
 
 The prohibitions of the three amendments present in effect a 
 body of law complete in itself, comprehensive like a law of the 
 twelve tables, and being the only substantive law, in that respect, 
 required or permitted on the part of the United States. All that 
 Congress has to do, by way of legislation, is to provide the means 
 for the courts to enforce the nullity of the prohibited acts, if any 
 such are passed by the States; in other words, to prevent their tak- 
 ing effect. That legislation Congress has, in a great part, supplied, 
 by the act just passed, April 3, 1875, by which a few words have 
 been inserted in the body of that section of the judiciary act of 
 1789, which conferred jurisdiction upon the Circuit Courts, and 
 giving them hereafter cognizance of suits of a civil nature " arising 
 under the Constitution or laws of the United States, or treaties 
 made or which shall be made under their authority." The ques- 
 tions arising under the prohibitions of these amendments are, like 
 the questions arising under the prohibitions of the original Consti- 
 tution, judicial in their character. Congress is not competent to 
 decide them, any more than it is competent to decide what are ex 
 post facto laws, or what laws impair the obligations of contracts, or 
 what are bills of attainder. 
 
 19. The legislation assumes that Congress has powers 
 
 WHICH it does not POSSESS. 
 
 The 6th section of the Enforcement Act assumes that Congress 
 has power to punish a conspiracy to deprive any citizen of the 
 United States of his right to vote; of any right granted or secured 
 by the federal Constitution; of any privilege or immunity of a citi- 
 zen of the United States; of the right to life, liberty and property, 
 and of the right to the equal protection of the laws. 
 
 Let us take one of these, and direct our attention to that; for 
 example, the right of property. The prohibition of the 14th amend- 
 ment commands a State not to deprive any person of property 
 without due process of law. The State may deprive a person of 
 his property by due process of law, but not without it. To deprive 
 without due process is to proceed, without law, by arbitrary acts of 
 
540 ARGUMENT OF DAVID DUDLEY FIELD ON THE 
 
 legislation, miscalled law. The State can act only by its corporate 
 officers, and then only in pursuance of State legislation. If a State 
 governor despoils a citizen, he is a simple trespasser, unless there 
 be a State law to justify him. We will suppose then a State law 
 prohibited by this amendment, which law authorizes a certain thing 
 to be done; it is the doing of this thing which Congress may nul- 
 lify. Suppose an act declaring that A. shall have a farm belonging 
 to B. This would be simply void. If not so declared by the State 
 courts, the federal courts, on appeal, would reverse their decision. 
 That would be all that need be done. Suppose that certain tenants 
 in New York conspire to deprive, by force, a citizen of that State 
 of his rights as landlord. That is a conspiracy to deprive a person 
 of his property without due process of law. May Congress enact 
 a general law for the punishment of the conspirators by a court of 
 the United States ? 
 
 We must discriminate among the prohibitions, between those 
 which aim merely kt equality, and those which aim at other rights. 
 The provision about the right to vote, without disparagement aris- 
 ing from race, confers no right of voting; but simply provides, that 
 if the right be given to whites it shall be given to blacks also. 
 Had a similar expression been used in respect to the right to hold 
 office, it surely would not have been said that a right to an office 
 was conferred. So, if the right to education had been mentioned in 
 the same terms, that would not have been construed to confer the 
 right to be educated. 
 
 Upon the whole, it is submitted that the amendments, taken in 
 their natural sense, do not justify the legislation now under review. 
 
 20. Second proposition. — Theory and object of government. 
 
 We come now to the second proposition, which is, that if the in- 
 terpretation contended for were not the more natural one, yet it is 
 at the very least a possible interpretation, and is to be preferred, 
 because it is the only one conformable to the understanding and 
 purpose of the people, by whom the text was adopted. 
 
 The general doctrine up to the time of these amendments con- 
 tinued to be, that the States were sovereign over their own State 
 concerns. This complex government was curiously contrived to 
 give liberty and safety to the people of all the States. It was fash- 
 ioned by the people, in the name of the people, and for the people. 
 Its aim was to keep the peace among the States, and to manage af- 
 fairs of common concern, while it left the States the entire manage- 
 
CONSTITUTIONALITY OF THE "ENFORCEMENT ACT." 641 
 
 ment of their own affairs. Its founders were wise and practical 
 men. They knew what history had taught from the beginning of 
 Greek civilization, that a number of small republics would perish 
 without federation, and that federation would destroy the small re- 
 publics without such a barrier as it would be impossible to pass. 
 Liberty and safety were the ends to be won by the double and com- 
 plex organization; liberty from the States and safety from the 
 Union, and the founders thought that they had contrived a scheme 
 which would make the States and the Union essential parts of a 
 great whole; that they had set bounds to each, which they could 
 not pass; in short, that they had founded "liberty and union, one 
 and inseparable." 
 
 No man in his senses could have supposed, at the formation of 
 the Constitution, or can now suppose, that a consolidated govern- 
 ment, extending over so much territory and so many people, can 
 last a generation, without the destruction of the States and of re- 
 publican government with them. History is a fable, and political 
 philosophy a delusion, if any government other than monarchial 
 can stretch itself over fifty degrees of longitude and half as many 
 of latitude with fifty millions of people, where there are no local 
 governments capable of standing by themselves and resisting all at- 
 tempts to imperil their self-existence or impair their authority. The 
 moment it is conceded that Washington may, at its discretion, reg- 
 ulate all the concerns of New York and California, of Louisiana 
 and Maine ; that the autonomy of the States has no defense 
 stronger than the self-denial of fluctuating congressional majori- 
 ties ; at that moment the republic of our fathers will have disap- 
 peared, and a republic in name, but a despotism in fact, will have 
 taken its place, to give way in another generation to a government 
 with another name, and other attributes. 
 
 Observe how far on that road the maintenance of the present leg- 
 islation will carry us. It has already led to the cases of Kellogg and 
 Warmouth, the United States and Clayton, and Harrison and Hadley, 
 and these cases are but a foretaste of what we may have hereafter. Its 
 essential principle is, that in order to anticipate and prevent a vio- 
 lation of the prohibitions, Congress may establish a system of law for 
 the general regulation of all subjects within the scope of the amend- 
 ments. The logical and inevitable conclusions from this new 
 theory are, that the prohibition against denying or abridging the 
 right to vote on account of color, race, or previous condition of 
 servitude, may be enforced by framing and working the machinery 
 
542 ARGUMENT OF DAVID DUDLEY FIELD ON' THE 
 
 of elections, no matter what may be the office or the function to be 
 filled by the electors. The prohibition against making or enforcing 
 any law abridging the privileges or immunities of citizens of the 
 United States may be enforced by framing a code of these priv- 
 ileges and immunities, defining the methods of enjoyment, and pro- 
 viding penalties for their violation. And the still more comprehen- 
 sive prohibitions against depriving any person of life, liberty or 
 property without due process of law, or denying to any person the 
 equal protection of the laws, may be enforced by a more compre- 
 hensive code, defining the rights of life, liberty and property, in all 
 their ramifications, the processes of law which are to be deemed 
 due, that protection of the laws which is to be considered equal, 
 and the various modes of enforcing the rights of life, liberty and 
 property by remedies civil and criminal. If these numerous and 
 multiform provisions would not cover the whole ground of law, sub- 
 stantive and remedial, it is not easy to see what would be omitted 
 that is contained in the most comprehensive existing code. The 
 legislation of Congress would, of course, supersede or exclude leg- 
 islation by the States upon the same subjects ; the United States 
 would stand as the universal lawgivers of the country, and the laws 
 of the States would dwindle to the dimensions of corporation ordi- 
 nances or the regulations of county supervisors. 
 
 21. Practical results of the theory of the prosecution. 
 
 The argument appears to be unanswerable, that such was not 
 and could not have been the intention of the American people, in 
 sanctioning these amendments, and therefore they should not be 
 thus interpreted, even if the natural significance of their language 
 were, as it is not, favorable to such an interpretation. 
 
 To suppose the contrary, is to suppose that the people of this 
 country haye forgotten all their history and all their traditions, and 
 have come to regard as evil that which their fathers accounted 
 good, and good evil. If Washington, when he left the chair of the 
 convention and signed his great name to the draft of the Constitu- 
 tion as president and deputy from Virginia ; if Franklin, when he 
 uttered there his last words, and looking at a picture of the sun in 
 the horizon, said he had been in doubt whether it was rising or set- 
 ting, but then, as they had so auspiciously concluded their labors, 
 he knew it was the rising sun ; if those patriot fathers had been 
 told that the time would ever come, when the proud common- 
 wealths which they represented would be accounted the vassals of 
 
CONSTITUTIONALITY OF THE "ENFORCEMENT ACT." 543 
 
 that Union which they were so sedulous to create and so stren- 
 uous to defend, they would have turned upon the utterers of such 
 prophesies, as fomentors of discord and enemies of the States. 
 
 22. Rules of interpretation heretofore adopted. 
 
 If confirmation of these views of the Constitution were needed, 
 it would be found in the interpretation, legislative, executive and 
 judicial, heretofore at all times given. We find that, with few ex- 
 ceptions, the current is all one way. The original instrument con- 
 tained prohibitions, that " no State shall enter into any treaty, al- 
 liance or confederation ; grant letters of marque and reprisal ; coin 
 money ; emit bills of credit ; make any thing but gold and silver 
 coin a tender in payment of debts ; pass any bill of attainder, ex 
 ^ost facto law, or law impairing the obligation of contracts, or grant 
 any title of nobility." These prohibitions have subsisted now for 
 nearly ninety years, but Congress has never attempted to enforce 
 them, except by the 25th section of the Judiciary Act of 1789, 
 which gave an appeal to the Supreme Court from the State courts, 
 upon federal questions, and this action of Congress has proved all 
 sufficient. 
 
 As to the executive department, although it is made the duty of 
 the President to recommend to the consideration of Congress " such 
 measures as he shall judge necessary and expedient," there has 
 never been, so far as I am aware, any executive recommendation of 
 further legislation to enforce these prohibitions. As to the judicial 
 department, we have a concurrence and weight of authority, that 
 leaves no room for doubt as to its views of the power of Congress. 
 
 Though this court, in every period of its history, has had occa- 
 sion to interpret the Constitution, and to declare the rules by which 
 it is to be interpreted, we have little occasion to go further back 
 than the last two years, for an exposition of those rules, and their 
 effect, especially upon the last three amendments. In the Slaughter- 
 House cases, the court declared, that any question of doubt con- 
 cerning the true meaning of the amendments cannot be safely and 
 rationally solved, without a reference to the history of the times, 
 and that 
 
 "In any fair and just construction of any section or phrase 
 of these amendments, it is necessary to look to the purpose 
 which * * * was the prevailing spirit of them all, the evil, 
 which they were designed to remedy, and the process of continued 
 addition to the Constitution, until that purpose was supposed to be 
 accomplished, as far as constitutional law can accomplish it. 
 
544 ■ AEGUMENT OF DAVID DUDLEY FIELD ON THE 
 
 " It would be the vainest show of learning to attempt to prove, 
 by citations -of , authority, that up to the adoption of the recent 
 amendments no claim or pretense was set up that those rights de- 
 pended on the federal government for their existence or protection, 
 beyond the very few express limitations which the federal Constitu- 
 tion imposed upon the States — such, for instance, as the prohibition 
 against ex post facto laws, bills of attainder, and laws impairing the 
 obligation of contracts. But, with the exception of these and a few 
 other restrictions, the. entire domain of the privileges and immuni- 
 ties of citizens of the States, as above defined, lay within the con- 
 stitutional and legislative power of the States, and without that of 
 the federal government. Was it the purpose of the fourteenth 
 amendment, by the simple declaration that no State should make 
 or enforce any law which shall abridge the privileges and immuni- 
 ties of citizens of the United States, to transfer the security and 
 protection of all the civil rights which we have mentioned, from the 
 States to the federal government? And where- it is declared that 
 Congress shall have the power to enforce that article, was it in- 
 tended to bring within the power of Congress the entire domain of 
 civil rights heretofore belonging exclusively to the States ? 
 
 " All this and more must follow, if the proposition of the plaint- 
 iffs in error be sound, for not only are these rights subject to the 
 control of Congress, whenever in its discretion any of them are sup- 
 posed to be abridged by State legislation, but that body may also 
 pass laws in advance, limiting and restricting the exercise of legis- 
 lative power by the States, in their most ordinary and most useful 
 functions, as in its judgment it may think proper on all such sub- 
 jects. And still further, such a construction, followed by the re- 
 versal of the judgments of the Supreme Court of Louisiana in these 
 cases, would constitute this court a perpetual censor upon all legis- 
 lation of the States, on the civil rights of their own citizens, with 
 authority to nullify such as it did not approve as consistent with 
 those rights as they existed at the time of the adoption of this 
 amendment. 
 
 '■ The argument, we admit, is not always the most conclusive 
 which is drawn from the consequences urged against the adoption 
 of a particular construction of an instrument. But when, as in the 
 case before us, these consequences are so serious, so far-reaching 
 and pervading, so great a departure from the structure and spirit of 
 our institutions; when the effect is to fetter and degrade the State 
 governments by subjecting them to the control of Congress, in the 
 exercise of powers hereto ore universally conceded to them of the 
 most ordinary and fundamental character; when it fact it radically 
 changes the whole theory of the relations of the State and federal 
 governments to each other, and of both of these governments to the 
 people; the argument has a force that is irresistible, in the absence 
 of language which expresses such a purpose too clearly to admit of 
 doubt. 
 
 " We are convinced that no such results were intended by the 
 
CONSTITUTIONALITY OF THE "ENFORCKMENT ACT." 545 
 
 Congress which proposed these amendments, nor by the legislatures 
 
 of the States which ratified them." 
 
 -* * * * * * * * « 
 
 " Nor shall any State deny to any person within its jurisdiction 
 the equal protection of the laws." 
 
 " In the light of the history of these amendments, and the per- 
 vading purpose of them, which we have already discussed, it is not 
 difficult to give a meaning to this clause. The existence of laws in 
 the States where the newly emancipated negroes resided, which dis- 
 criminated with gross injustice and hardship against them, was the 
 evil to be remedied by this clause as a class, and by it such laws 
 are forbidden. 
 
 " If, however, the States did not conform their laws to its re- 
 quirements, then, by the fifth section of the article of amendment, 
 Congress was authorized to enforce it by suitable legislation. We 
 doubt very much whether any action of a State, not directed by 
 way of discrimination against the negroes as a class, or on account 
 of their race, will ever be held to come within the purview of this 
 provision. It is so clearly a provision for that race and that emer- 
 gency that a strong case would be necessary for its application to 
 any other. But as it is a State that is to be dealt with, and not 
 alone the validity of its laws, we may safely leave that matter until 
 Congress shall have exercised its power, or some case of State op- 
 pression, by denial of equal justice in the courts, shall have claimed 
 a decision at our hands. We find no such case in the one before 
 us, and do not deem it necessary to go over the argument again, as 
 it may have relation to this particular clause of the amendment. 
 
 " In the early history of the organization of the government, its 
 statesmen seem to have divided on the line which should separate 
 the powers of the national government from those of the State gov- 
 ernments, and though this line has never been very well defined 
 in public opinion, such a division has continued from that day to 
 this. 
 
 " The adoption of the first eleven amendments to the Constitu- 
 tion so soon after the original instrument was accepted, shows a 
 prevailing sense of danger at that time from the federal power. 
 And it cannot be denied that such a jealousy continued to exist 
 with many patriotic men until the breaking out of our late civil war. 
 It was then discovered that the true danger to the perpetuity of the 
 Union was in the capacity of the State organizations to combine 
 and concentrate all the powers of the State, and of contiguous 
 States, for the determined resistance to the general government. 
 
 " Unquestionably this has given great force to the argument, 
 and added largely to the number of those who believe in the neces- 
 sity of a strong national government. 
 
 "But however pervading this sentiment, and however it may 
 have contributed to the adoption of the amendments we have been 
 considering, we do not see in these amendments any purpose to de- 
 stroy the main features of the general system. Under the pressure 
 8S 
 
546 ARGUMENT OF DAVID DUDLEY FIELD ON THE 
 
 of all the excited feelings growing out of the war, our statesmen 
 have still believed that the existence of the States with powers for 
 domestic and local government, including the regulation of civil 
 rights — the rights of person and of property — was essential to the 
 perfect working of our complex form of government, though they 
 have thought proper to impose additional limitations on the States, 
 and to confer additional power on that of the nation." 
 
 These extracts from the opinion of the court, delivered by Mr- 
 Justice Miller, are given at such length, because they are so import- 
 ant in themselves, and dispose of so many of the questions in the 
 present case. 
 
 Of the three dissenting opinions, two certainly, and perhaps the 
 third, properly understood, contain nothing in conflict with what is 
 here stated. The difference of views among the learned judges of 
 the court was upon the extent of the prohibitions, not upon the 
 means of enforcing them. 
 
 If the thirteenth and fourteenth amendments be understood and 
 applied, as it is here insisted they should, they will prove most 
 beneficent in results. The prohibitions upon the States are merely 
 such as every State Constitution should contain for its own legisla- 
 ture. It is only when the interference of Congress is invoked that 
 the danger begins, and that will cease so soon as it is understood 
 that Congress cannot act until the States have legislated in violation 
 of the prohibition, and then only by way of nullifying their action 
 through the courts. 
 
 I have heard it argued that, as allegiance and protection create 
 mutual obligations, all who have been made citizens of the United 
 States by the late amendments are entitled to the protection of the 
 United States. So they are, but that does not prove the constitu- 
 tionality of the present legislation, and for two reasons. The first 
 is, that all the citizens of the States were also citizens of the United 
 States before the amendments,' and the effect of the new definition 
 was merely to increase the number of citizens, but not their rights. 
 That protection of the federal government which the whites could 
 not have claimed 'before, the blacks cannot claim now. The second 
 reason is, that the allegiance and protection of the Union are qual- 
 ified by the allegiance and protection of the States. The same per- 
 son is a citizen of both, owes allegiance to both, and may claim the 
 protection of both. Each is his sovereign to a certain extent. 
 When, therefore, a citizen of the United States claims the protec- 
 
 ' Passenger Cases, 7 How. 492, and Slaughter-House Cases, 16 Wall. 72. 
 
CONSTITUTIONALITY OF THE "ENFORCEMENT ACT." 547 
 
 tion of the United States, the first inquiry should be, against what, 
 and in what manner the protection may be given. He cannot be 
 protected against the lawful act of his own State, nor can he be pro- 
 tected against its unlawful act, except in the manner sanctioned by 
 the Constitution of the United States. Who are citizens we learn 
 from one part of that instrument; their rights and duties from an- 
 other. 
 
 I must here close my part of the discussion. The general claim 
 on the part of the federal government is nothing more nor less than 
 this: that Congress is clothed with authority to punish in federal 
 courts any persons for agreeing together in intention to prevent or 
 hinder the free exercise and enjoyment by any citizen of any right 
 or privilege granted or secured to him by the Constitution or laws 
 of the United States, these laws being not only the three statutes 
 just mentioned, but all other existing statutes, revised or not re- 
 vised, and all statutes which Congress may choose hereafter to pass. 
 And it seems to be assumed, furthermore, that the mere mention in 
 the Constitution of a right is the same thing as granting or securing 
 it, and that whether the mention is made in the old amendments 
 containing prohibitions upon the United States, or in the new con- 
 taining prohibitions upon the States. This is an assertion of abso- 
 lutism or legislative omnipotence amazing to contemplate. 
 
 The particular claim in the present case is authority to punish 
 an agreement between two or more persons to prevent or hinder the 
 free exercise and enjoyment by any citizen of the right to the equal 
 protection of the laws, the right to life, liberty and property, unless 
 deprived thereof by due process of law, the right to vote, without 
 regard to race, color or previous servitude, the right to meet others 
 in assembly, and the right to keep and bear arms. This is the 
 claim in the present case, reduced to its strictest limit. It includes, 
 of course, as has been already said, the power to define what is the 
 right to the protection of the laws, what is the right to life, liberty 
 and property, what is due process of law, what is the right to vote, 
 what is the right to keep and bear arms, and what is the right of 
 assembly. It would be a logical inconsistency to pretend that a 
 government can clothe its courts with authority to punish for crime 
 without authority to say in what that crime consists. When the 
 Constitution gave Congress power to punish piracies and felonies 
 on the high seas, and offenses against the laws of nations, it gave 
 also the power to define them. 
 
548 ARGUMENT OF DAVID DUDLEY FIELD ON THE 
 
 The mere agreement or conspiracy, without any overt act, is the 
 crime, unless the "or" in the second member of the sentence of 
 the 6th section of the Enforcement Act is to be read as if it were 
 "and." It may not be out of place to observe, that an accusation 
 of conspiracy is of all accusations the most dangerous to meet, and 
 the easiest to make men believe, in ,an excited community. It is 
 the harshest engine of tyranny ever used under the form of law; 
 and its frequent use is the strongest evidence of misgovernment. 
 From the bloody days when the compassing or imagining the death 
 of a king was the miserable pretense upon which tyrants took the 
 lives and confiscated the estates of their victims, to the present 
 hour, no surer proof of good or evil government can be found than 
 the chapter on conspiracies in the statute book of a country. One 
 has but to compare the statutes of well-governed Connecticut with 
 the statutes of misgoverned Ireland to learn what an odious engine 
 of oppression is the law of conspiracy. And what an abundance 
 of materials for the supply of this engine are furnished by these 
 acts of Congress. If two magistrates, being convinced by counsel, 
 decide that some of their provisions are invalid, or if two counsel 
 in consultation come to that conclusion and so advise their clients, 
 do they not put themselves in peril of the penalties denounced by 
 the acts ? If two judges of a State court, after painstaking delib- 
 eration, decide that a statute of their State, though in conflict with 
 some portions of the Enforcement Act, is nevertheless valid, or even 
 if, without deciding, they agree so to decide, are they not liable to 
 be sent to the penitentiary, under the 6th section ? Would not the 
 6th and 17th sections send to prison the judges of California who 
 decided in favor of sending back the Chinese women ? 
 
 It is difficult to speak of the pretensions upon which this legis- 
 lation rests, in guarded language. It is a relief to think that they 
 are here to be tested by the Constitution of the country, without the 
 disturbing influence of party; by that Constitution which is above 
 all parties, and which was made, not for the use of partisans, but 
 for the safety and happiness of the whole people, and not for one, 
 but many generations. 
 
 The first two words of the national motto are as much a part 
 of it as the last. They have never been changed since their use 
 began. They have been borne in every battle and on every march, 
 by land or sea, in defeat as in victory. They are still blazoned on 
 our escutcheon, and copied in every, seal of office. You will find 
 
CONSTITUTIONALITY OF THE "ENFORCEMENT ACT." 649 
 
 them on all your commissions. May that motto tiever be mutilated 
 or disowned. It should be written on the walls of the capitol and 
 of every State house. I would wish it written on the ceiling of this 
 chamber, that, upon every turning of the face upward, the eye 
 might behold it. Its three words contain a faithful history; may 
 they abide for ages, pledges of the future, as they are witnesses of 
 the past. 
 
DECLARATION OF LORD MANSFIELD TO THE MOB, 
 IN THE COURT OF KING'S BENCH. 
 
 I will do my duty unawed. What am I to fear ? That " mendax in- 
 famia " [lying scandal] from the press, which daily coins false facts and 
 false motives ? The lies of calumny carry no terror to me. I trust that 
 the temper of my mind, and the color and conduct of my life, have given 
 me a suit of armor against these arrows. If during this King's reign I have 
 ever supported his government, and assisted his measures, I have done it 
 without any other reward than the consciousness of doing what I thought 
 right. If I have ever opposed, I have done it upon the points themselves, 
 without mixing in party or faction, and without any collateral views. I 
 honor the King and respect the people ; but many things acquired by the 
 favor of either are, in my account, objects not worthy of ambition. I wish 
 popularity, but it is that popularity which follows, not that which is 
 run after. It is that popularity which, sooner or later, never fails to do 
 justice to the pursuit of noble ends by noble means. I will not do that 
 which my conscience tells me is wrong upon this occasion, to gain the 
 huzzas of thousands, or the daily praise of all the papers which come from 
 the press. I will not avoid doing what I think is right, though it should 
 draw on me the whole artillery of libels — all that falsehood and malice can 
 invent, or the credulity of a deluded populace can swallow. I can say with 
 a great magistrate, upon an occasion and under circumstances not unlike, 
 "Ego hoc anzmo semper fui,ut invidiam virtute partam, gloriam. non 
 invidiam, putarem." 
 
 The threats go farther than abuse — personal violence is denounced. I 
 do not believe it. It is not the genius of the worst of men of this country, 
 in the worst of times. But I have set my mind at rest. The last end that 
 can happen to any man never comes too soon, if he falls in support of the 
 law and liberty of his country (for liberty is synonymous with law and 
 government). Such a shock, too, might be productive of public good. It 
 might awake the better part of the kingdom out of that lethargy which 
 seems to have benumbed ihera, and bring the mad part back to their senses, 
 as men intoxicated are sometimes stunned into sobriety. 
 
 Once fot all, let it be understood, that no endeavors of this kind will in- 
 fluence any man who at present sits here. If they had any effect, it would 
 be contrary to their intent ; leaning against their impression might give a 
 bias the other way. But I hope and I know that I have fortitude enough 
 to resist even that weakness. No libels, no threats, nothing that has hap- 
 pened, nothing that can happen, will weigh a feather against allowing the 
 defendant, upon this and every other question, not only the whole advan- 
 tage he is entitled to from substantial law and justice, but every benefit 
 from the most critical nicety of form which any other defendant could 
 claim under the like objection." — [Lord Mansfield, in reversing the Outlawry in 
 Wilkes' Case, June 8, 1768.] 
 
 [550] 
 
SPEECH OF THOMAS ERSKINE, 
 
 For the Prosecution, in the Proceedings against Thomas 
 
 Williams, for Publishing Paine's "Age of Reason." 
 
 [Howell's St. Tr. vol. 26, p. 653 ] 
 
 IN THE COURT OF KING'S BENCH, BEFORE LORD KENYON 
 AND A SPECIAL JURY, JUNE 24th, 1797. 
 
 Analysis of Me. Eeskine's Speech. 
 
 X. Attitude of counsel not iaconsistent with 
 
 views formerly expressed. 
 ^. Ttie defense anticipated. 
 
 3. Cliristianity the foundation upon which 
 
 our system of jurisprudence rests. 
 
 4. A free press an inestimable blessing. 
 
 5. The principles applicable to the liberty 
 
 of the press. 
 
 6. Distinction between legitimate inquiry 
 
 and scurrilous abuse. 
 
 7. Illustrations of the argument. 
 
 8. Mischievous and cruel effects of this il- 
 
 legal publication. 
 
 9. The character of the defense an anom- 
 aly, and iaconsistent with the juris- 
 diction of the court 
 
 10. Intellectual superiority of Christian be- 
 
 lievers. — N ewton . 
 
 11. Boyle, Locke, and Sir Matthew Hale. 
 
 12. John Milton's immortal offering. 
 
 13. Adherence to doctrines of the New Tes- 
 
 tament would banish wickedness 
 from the world. 
 
 14. Religion and morality alone constitute 
 
 the safety of the State. 
 
 15. Inferior object and capacity o^ Paine's 
 
 work. 
 
 Thomas Paine, the friend, at one time, of Washington, of Jefferson and 
 Franklin ; who had been honored by the Congress of the United States for his 
 distinguished services during the revolution ; whose worth and patriotism were, 
 in like manner, recognized by the great State of New York; Thomas Paine, 
 whose genius contributed so much towards the development and success of the 
 independence of the colonies; who loved freedom for its own sake; who became 
 conspicuous during the French revolution as the "apostle of liberty" — this 
 gifted man, after he had achieved so much for the welfare of his race, chose, 
 unfortunately for himself, to forfeit the respect and esteem of his fellow 
 men, and of posterity, because of his wanton attack upon the Scriptures and 
 the life and character of the Saviour of mankind. In the year 1794, he composed 
 the first part, and in the following year the second part, of an indecent and 
 blasphemous attack upon Christianity, which he entitled the "Age of Reason," 
 being what he was pleased to term an investigation of tnie and fabulous theol- 
 ogy. The work lacks the dignity and candor of respectful inquiry, and is in no 
 way worthy the intellect of Paine. It contains no sublime thought, and presents 
 in support of the theories advanced, no arguments which are at all convincing 
 or satisfactory, or which indicate even a thorough knowledge of the contempo- 
 
 [551] 
 
552 SPEECH OF THOMAS EESKINE 
 
 raneous history of the Bible. With the great problems of eternity, this defamer 
 of all theology has no concern, and treats with ridicule, truths which touch the 
 highest point of human interest and human comprehension. Instead of meeting 
 great questions within the domain of reason, he frequently drops into poor at- 
 tempts at wit, which are painful and disgusting to refined sensibilities, and his 
 expressions are often tinctured with coarseness and vulgarity. His performance 
 becomes culpable, in view of the fact that without sufficient reason, and appa- 
 rently from a desire to indulge his vanity, the author has labored to shake the 
 faith of those who derive hope and consolation from a book containing higher 
 thoughts, purer morality, and wiser maxims than has ever been written in any 
 language or in any age. The promises of an immortal inheritance, the rewards 
 assured to the Christian, more desirable and enticing than any which have ever 
 attracted the attention of mortals ; an heirship coeval with the creator of the 
 world — these are all brushed aside. In their stead, however, the sophistical skeptic 
 suggests nothing possessing even the merit of novelty or originality. While pro- 
 fessing to believe in a God and immortality,'Thomas Paine has produced a work, 
 the tendency of which is to banish from weaker minds than his own, the idea of 
 the existence of a God and an immortal lif e ; a work which strikes at the very 
 foundations of society, and assails the moral principles upon which society and 
 all human obligations must rest. 
 
 Paine, though a man of vigorous mind, was not an accomplished or finished 
 scholar. As to acquirements and elegant letters, his warmest admirers would 
 not venture to compare him with the distinguished jurist, linguist and antiquary. 
 Sir William Jones ; and it is fair to presume, that had he possessed a tithe of that 
 gentleman's learning, he would, perhaps, never have written the ' ' Age of Rea- 
 son." One very singular fact about Paine's production is, that its author fails to 
 recognize even the literary merit of the book from which, in his early life, he had 
 often preached. Apart from the inspiration of the sacred volume, he seeks to 
 deride its sublime eloquence and masterly composition. Sir William Jones, 
 who was conversant with no less than twenty-seven languages, speaking of its 
 excellence in this respect, says : " I have carefully and regularly perused these 
 , Holy Scriptures, and am of opinion that the volume, independently of its 
 divine origin, contains more sublimity, more morality, more important history, 
 and finer strains of eloquence, than can be collected from any other book, in 
 whatever language it may have been written.'' Upon another occasion the 
 same author remarks : " The two parts of which the Scriptures consists, are con- 
 nected by a chain of compositions, which bear no resemblance in form or style to 
 any that can be produced from the stores of Grecian, Indian, Persian, or even 
 Arabian learning. The antiquity of those compositions no man doubts, and the 
 unrestrained application of them to events long subsequent to their publication, 
 is a solid ground of belief that they are genuine compositions, and consequently 
 inspired." To demonstrate that these statements are not mere generalities, Mr. 
 Burgh, an English writer, in his work entitled the " Dignity of Human Nature," 
 takes a passage from the beginning of the eighth book of the Iliad, which he 
 regards as the loftiest strain in the most sublime of all human productions, and 
 contrasts it with a passage from the Bible. Speaking of this selection from 
 Homer, quoted below, Mr. Burgh remarks : " There the greatest of all human 
 imaginations labors to describe, not a hero, but a God ; not an inferior but the 
 
on THE TRIAL OF THOMAS WILLIAMS. 553 
 
 Supreme God ; not to show his superiority over mortals, but to the heavenly 
 powers ; and not to one, but all of them united." The passage is rendered by 
 Mr. Bryant, in his elegant translation, as follows : 
 
 Now morn in saffron robes had spread her light 
 O'er all the earth, when Jove, the Thunderer, 
 Summoned the gods to council on the heights 
 Of many-peaked Olympus. He addressed 
 The assembly, and all listened as he spoke. 
 " Hear, all ye gods and all ye goddesses! 
 While I declare the thought within my breast, 
 Let none of either sex presume to break 
 The law I give, but cheerfully obey. 
 That my design may sooner be fulfilled. 
 Whosoever, stealing from the rest, shall seek. 
 To aid the Grecian cause, or that of Troy, 
 Back to Olympus, scourged and in disgrace. 
 Shall he be brought, or I will seize and hurl 
 The offender down to rayless Tartarus ; 
 Deep, deep in the great gulf below the earth, 
 With iron gates, and threshold forged of brass, — 
 As far beneath the shades, as earth from heaven. 
 Then shall he learn how greatly I surpass 
 All other gods in power. Try, if ye will. 
 Ye gods, that all may know : suspend from heaven 
 A golden chain ; let all the immortal host 
 Cling to it from below ; ye could not draw. 
 Strive as ye might, the all-disposing Jove, 
 From heaven to earth. And yet, if I should choose 
 To draw it upward to me, I should lift. 
 With it and you, the earth itself and sea 
 Together, and I then would bind the chain. 
 Around the summit of the Olympian mount. 
 And they should hang aloft. So far my power 
 Surpasses all the power of gods and men." 
 
 "With this most masterly passage," says Mr. Burgh, "of the greatest master 
 of the sublime of all antiquity — the writer who probably had the greatest natural 
 and acquired advantages of any mortal for perfecting a genius — ^let the following 
 verbal translation of a passage from writings penned by one brought up a shep- 
 herd, and in a country where learning was not thought of, be compared, that the 
 difference may appear : 
 
 " ' O Lord, my God, thou art very great ! thou art clothed with honor and 
 majesty! who coverest thyself with light as with a garment ; who stretchest out 
 the heavens like a can6py ; who layest the beams of his chambers in the waters ; 
 who makest the clouds his chariots ; who walkest upon the wings of the winds ; 
 who makest his angels spirits, his ministers a flame of fire ; who laid the founda- 
 tion of the earth, that it should not be moved forever. Thou coverest it with 
 the deep, as with a garment — the waters that stood above the mountains. At 
 thy rebuke they fled ; at the voice of thy thunder they hasted away. They go 
 up by the mountains ; they go down by the valleys, unto the place thou hast 
 founded for them. Thou hast set a bound, that they may not pass over ; that 
 they may turn not again to cover the earth. 
 
 " ' O Lord, how manifold are thy works! In wisdom hast thou made them 
 all. The earth is full of thy riches. So is the great and wide sea, wherein are 
 creatures innumerable, both small and great. There go the ships ; there is that 
 leviathan, which thou hast made to play therein. These all wait upon thee, that 
 thou mayest give them their food in due season. That thou givest them they 
 gather. Thou openest thy hand, they are filled with good ; thou hidest thy face 
 
■554 SPEECH OF THOMAS ERSKINE 
 
 they are troubled ; they die and return to their dust. Thou sendest forth thy 
 spirit, they are created ; and thou renewest the face of the earth. The glory of 
 the Lord shall endure forever. The Lord shall rejoice in his works. He look- 
 eth on the earth, and it trembleth. He toucheth the hills, and they smoke. I 
 ■will sing unto the Lord as long as I live. I will sing praises unto my God, while 
 I have my being.' " 
 
 This single illustration shows the sophistry of Paine's criticism on the grandest 
 and most dignified literary production in the world. The "Age of Reason," how- 
 ever, produced pernicious effects among the middle and lower classes in Corn- 
 wall, Nottingham, Leeds, and many other places in England, and even in Scot- 
 land, where the work had been circulated. Its influence was regarded as dan- 
 gerous, affecting the happiness and welfare of the uneducated or ignorant classes, 
 who could not readily answer its plausible utterances, and the " Society for the 
 Prevention of Vice " decided to attempt its suppression. An indictment was ac- 
 cordingly preferred against Thomas Williams, of the parish of St. Giles, in the 
 county of Middlesex, for a blasphemous libel in publishing Paine's work. The 
 legal theory of this indictment was, that every publication which has a direct 
 tendency to debauch the morals of the people, is punishable as a libel ; that 
 blasphemy is an offense, not only against God and religion, but a crime against 
 the laws, the State and the government ; for to say that Christianity is a cheat 
 is to dissolve all those obligations whereby civil societies are preserved. (Tay- 
 lor's Case, I Ventris, 293; s. c. 3 Keble, 607 ; Rex v. Curl, Strange, 789; Rex v. 
 Woolston, Fitzgibbon, 64 ; Strange, 834 ; Blackstone's Com. vol. 4, pp. 43, 59.) 
 
 The prosecution was conducted by Thomas Erskine, the first and greatest 
 of English advocates, who, five years before, at the expense of his oflSce of at- 
 torney-general, defended Paine on an indictment for libel for publishing the second 
 part of the " Rights of Man." The Prince of Wales, as a reward for his brave 
 and honest defense of his client, disgraced himself by removing Erskine from 
 office. In his opening to the jury in that case, Mr. Erskine made the noble dec- 
 laration : " I will forever — at all hazards — assert the dignity,' independence and 
 integrity of the English bar, without which impartial justice, the most valuable 
 part of the English Constitution, can have no existence." 
 
 With Mr. Erskine, in the case of Williams, were associated William Gar- 
 row and John Bayley. The defendant was represented by Stewart Kyd. Mr. 
 Erskine opened the case for the prosecution as follows : 
 
 Gentlemen of the Jury: — The charge of blasphemy, which 
 is put upon the record against the printer of this publication, is 
 not an accusation of the servants of the Crown, but comes before 
 you sanctioned by the oaths of a grand jury of the country. It 
 stood for trial upon a former day ; but it happening, as it frequent- 
 ly does, without any imputation on the gentlemen named in the 
 panel, that a sufficient number did not appear to constitute a full 
 special jury, I thought it my duty to withdraw the cause from trial 
 till I could have the opportunity, which is now open to me, of ad- 
 dressing myself to you, who were originally appointed to try it. I 
 pursued this course, however, from no jealousy of the common 
 
ON THE TRIAL OF THOMAS WILLIAMS. 655 
 
 juries appointed by the laws for the ordinary service of the court, 
 since my whole life has been one continued experience of their vir- 
 tues, but because I thought it of great importance that those who 
 were to decide upon a cause so very momentous to the public, 
 should have the highest possible qualifications for the decision. 
 That they should not only be men capable, from their education, 
 of forming an enlightened judgment, but that their situations should 
 be such as to bring them within the full view of their enlightened 
 country, to which, in character and in estimation, they were in their 
 own turns to be responsible. 
 
 I. Attitude of counsel not inconsistent with views for- 
 merly EXPRESSED. 
 
 Not having the honor, gentlemen, to be sworn for the king, as 
 one of his counsel, it has fallen much oftener to my lot to defend 
 indictments for libels, than to assist in the prosecution of them. 
 But I feel no embarrassment from that recollection, since I shall 
 not be found to-day to express a sentiment or to utter an expression 
 inconsistent with those invaluable principles for which I have uni- 
 formly contended in the defense of others. Nothing that I have 
 ever said, either professionally or personally, for the liberty of the 
 press, do I mean to deny, to contradict, or counteract. On the 
 contrary, I desire to preface the discourse I have to make to you, 
 with reminding you that it is your most solemn duty to take care it 
 suffers no injury in your hands. A free and unlicensed press, in 
 the just and legal sense of the expression, has led to all the bless- 
 ings, both of religion and government, which Great Britain, or any 
 part of the^ world, at this moment enjoys, and is calculated still 
 further to advance mankind to higher degrees of civilization and 
 happiness. But this freedom, like every other, must be limited to 
 be enjoyed, and, like every human advantage, may be defeated by 
 its abuse. 
 
 2. The DEFENSE anticipated 
 
 Gentlemen, the defendant stands indicted for having published 
 this book, which I have only read from the obligations of profes- 
 sional duty, and which I rose from the reading of with astonishment 
 and disgust. Standing here with all the privileges belonging to the 
 highest counsel for the Crown, I shall be entitled to reply to any 
 defense that shall be made for the publication. I shall wait with 
 patience till I hear it. Indeed, if I were to anticipate the defense 
 
556 SPEECH OF THOMAS ERSKINE 
 
 which I hear and read • of, it would be defaming, by anticipation, 
 the learned counsel who is to make it. For if I am to collect it, 
 even from a formal notice given to the prosecutors in the course of 
 the proceedings, I have to expect that, instead of a defense con- 
 ducted according to the rules and principles of English law and 
 justice, the foundation of all our laws, and the sanctions of all our 
 justice, are to be struck at and insulted. 
 
 3. Christianity the foundation upon which our system of 
 jurisprudence rests. 
 
 WhsLt is the force of that jurisdiction which enables the court 
 to sit in judgment ? What but the oath which his lordship as well 
 as yourselves have sworn upon the Gospel to fulfill. Yet in the 
 King's Court, where his majesty is himself" also sworn to administer 
 the justice of England in the King's Court, who receives his high 
 authority under a solemn oath to maintain the Christian religion, as 
 it is promulgated by God in the Holy Scriptures, I am nevertheless 
 called upon, as . counsel for the prosecution, to produce a certian 
 book described in the indictment to be the Holy Bible. No man 
 deserves to be upon the rolls of the court who dares, as an attor- 
 ney, to put his name to such a notice. It is an insult to the au- 
 thority and dignity of the court of which he is. an officer ; since it 
 seems to call in question the very foundations of its jurisdiction. If 
 this is to be the spirit and temper of the defense ; if, as I collect 
 from that array of books which are spread upon the benches behind 
 me, this publication is to be vindicated by an attack on all the 
 truths which the Christian religion promulgates to mankind, let it 
 be remembered that such an argument was neither suggested nor 
 justified by anything said by me on the part of the prosecution. In 
 this stage of the proceedings, I shall call for reverence to the sacred 
 Scriptures, not from their merits unbounded as they are, but from 
 their authority in a Christian country ; not from the obligations of 
 conscience, but from the rules of law. For my own part, gentle- 
 men, I have been ever deeply devoted to the truths of Christianity, 
 and my firm belief in the Holy Gospel is by no means owing to the 
 prejudices of education, though I was religiously educated by the 
 best of parents, but arises from the fullest and most continued re- 
 flections of my riper years and understanding. It forms at this 
 moment the great consolation of a life which, as a shadow, must 
 pass away ; and without it, indeed, I should consider my long 
 course of health and prosperity, perhaps too long and uninterrupted 
 
ON THE TRIAL OF THOMAS WILLIAMS. 557 
 
 to be good for any man, only as the dust whicTi the wind scatters, 
 and rather as a snare than as a blessing. Much, however, as I wish 
 to support the authority of the Scriptures, from a reasoned consid- 
 eration of them, I shall repress that subject for the present. But 
 if the defense shall be as I have suspected, to bring them at all into 
 argument or question, I shall then fulfill a duty which I owe, not 
 only to the court, as counsel for the prosecution, but to the public, 
 to state what I feel and know concerning the evidences of that re- 
 ligion which is reviled without being examined, and denied without 
 being understood. 
 
 4. A FREE PRESS AN INESTIMABLE BLESSING. 
 
 I am well aware, that by the communications of a free piess, all 
 the errors of mankind, from age to age, have been dissipated and 
 dispelled ; and I recollect that the world, under the banners of re- 
 formed Christianity, has struggled through persecution to the noble 
 eminence on which it stands at this moment shedding the blessings 
 of humanity and science upon the nations of the earth. It may be 
 asked, by what means the Reformation would have been effected if 
 the books of the reformers had been suppressed, and the errors of 
 condemned and exploded superstitions had been supported as un- 
 questionable by the State, founded upon those very superstitions 
 formerly, as it is at present upon the doctrines of the Established 
 Church ? or how, upon such principles, any reformation, civil or 
 religious, can in future be effected ? The solution is easy. Let us 
 examine what are the genuine principles of the liberty of the press, 
 as they regard writings upon general subjects, unconnected with the 
 personal reputations of private men, which are wholly foreign to 
 the present inquiry. They are full of simplicity, and are brought 
 as near perfection by the law of England as, perhaps, is consistent 
 with any of the frail institutions of mankind. 
 
 5. The PRINCIPLES applicable to the LIBERTY OF THE PRESS. 
 
 Although every community must establish supreme authorities, 
 founded upon fixed principles, and must give high powers to mag- 
 istrates to administer laws for the preservation of the government 
 itself, and for the security of those who are to be protected by it ; 
 yet, as infallibility and perfection belong neither to human estab- 
 lishments nor to human individuals, it ought to be the policy of all 
 free establishments, as it is most peculiarly the principle of our own 
 Constitution, to permit the most unbounded freedom of discussion. 
 
558 SPEECH OF THOMAS ERSKINE 
 
 even by detecting errors in the Constitution or administration of 
 the very government itself, so as that decorum is observed which 
 every State must exact from its subjects, and which imposes no 
 restraint upon any intellectual composition, fairly, honestly, and 
 decently addressed to the consciences and understandings of men. 
 Upon this principle I have an unquestionable right — a right which 
 the best subjects have exercised — to examine the principles and 
 structure of the Constitution, and by fair, manly reasoning, to ques- 
 tion the practice of its administrators. I have a right to consider 
 and to point out errors in the one or in the other ; and not merely 
 to reason upon their existence, but to consider the means of their 
 reformation. 
 
 By such free, well-intentioned, modest, and dignified communi- 
 cation of sentiments and opinions, all nations have been gradually 
 improved, and milder laws and purer religions have been established. 
 The same principles which vindicate civil contentions, honestly di- 
 rected, extend their protection to the sharpest controversies on re- 
 ligious faiths. This rational and legal course of improvement was 
 recognized and ratified by Lord Kenyon as the law of England, in 
 a late trial at Guildhall, when he looked back with gratitude to the 
 labors of the reformers, as the fountains of our religious emancipa- 
 tion, and of the civil blessings that followed in their train. The 
 English Constitution, indeed, does not stop short in the toleration 
 of religious opinions, but liberally extends it to practice. It per- 
 mits every man, even publicly, to worship God according to his 
 own conscience, though in marked dissent from the national estab- 
 lishment, so as he professes the general faith, which is the sanction 
 of all our moral duties, and the only pledge of our submission to 
 the system which constitutes a State. Is not this system of free- 
 dom of controversy and freedom of worship, sufficient for all the 
 purposes of human happiness and improvement ? and will it be 
 necessary for either that the law should hold out indemnity to those 
 who wholly abjure and revile the government of their country, or 
 the religion on which it rests for its foundation ? 
 
 6. Distinction between legitimate inquiry and scurrilous 
 
 ABUSE. 
 
 I expect to hear, in answer to what I am now saying, much that 
 will offend me. My learned friend, from the difficulties of his sit- 
 uation — which I know, from experience, how to feel for very sin- 
 cerely — may be driven to advance propositions which it may be my 
 
ON THE TRIAL OF THOMAS WILLIAMS. 559 
 
 duty, with much freedom to reply to ; and the law will sanction 
 that freedom. But will not the ends of justice be completely an- 
 swered by the right to point out the errors of his discourse in terms 
 that are decent and calculated to expose its defects ? or will any 
 argument suffer, or will public justice be impeded, because neither 
 private honor and justice, nor public decorum, would endure my 
 telling my very learned friend that he was a fool, a liar, and a scoun- 
 drel, in the face of the court, because I differed from him in argu- 
 ment or opinion ? This is just the distinction between a book of 
 free legal controversy and the book which I am arraigning before 
 you. Every man has a legal right to investigate, with modesty and 
 decency, controversial points of the Christian religion; but no man, 
 consistently with a law which only exists under its sanctions, has a 
 right not only broadly to deny its very existence, but to pour forth 
 a shocking and insulting invective, which the lowest establishments 
 in the gradations of civil authority ought not to be permitted to 
 suffer, and which soon^ would be borne down by insolence and dis- 
 obedience, if they did. 
 
 7. Illustrations of the argument. 
 
 The same principle pervades the whole system of the law, not 
 merely in its abstract theory, but in its daily and most applauded 
 practice. The intercourse between the sexes, and which, properly 
 regulated, not only continues, but humanizes and adorns our na- 
 tures, is the foundation of all the thousand romances, plays, and 
 novels which are in the hands of every body. Some of them lead 
 to the confirmation of every virtuous principle; others, though with 
 the same profession, address the imagination in a manner to lead 
 the passions into dangerous excesses. But though the law does not 
 nicely discriminate the various shades which distinguish these works 
 from one another, so as that it suffers many to pass, through its lib- 
 eral spirit, that upon principle might be suppressed, would it or 
 does it tolerate, or does any decent man contend that it ought to 
 pass by unpunished, libels of the most shameless obscenity, mani- 
 festly pointed to debauch innocence, and to blast and poison the 
 morals of the rising generation ? This is only another illustration 
 to demonstrate the obvious distinction between the works of an 
 author who fairly exercises the powers of his mind in investigating 
 doctrinal points in the religion of any country, and him who at- 
 tacks the rational existence of every religion, and brands with ab- 
 
560 SPEECH OP THOMAS ERSKINE 
 
 surdity and folly the State which sanctions, and the obedient tools 
 who cherish, the delusion. 
 
 8. Mischievous and cruel effects of this illegal publi- 
 cation. 
 
 But. this publication appears to me to be as mischievous and 
 cruel in its probable effects, asit is manifestly illegal in its princi- 
 ples; because it strikes at the best, sometime, alas, the only refuge 
 and consolation amid the distresses and afflictions of the world. 
 The poor and humble, whom it affects to pity, may be stabbed to 
 the heart by it. They have more occasion for firm hopes beyond 
 the grave than those who have greater comforts to render life de- 
 lightful. I can conceive a distressed, but virtuous man, surrounded 
 by children, looking up to him for bread when he has none to give 
 them, sinking under the last day's labor, and unequal to the next, 
 yet still looking up with confidence to the hour when all tears shall 
 be wiped from the eyes of affliction, bearing the burden laid upon 
 him by a mysterious Providence which he adores, and looking for- 
 ward with exultation to the revealed promises of his Creator, when 
 he shall be greater than the greatest, and happier than the happiest 
 of mankind. What a change in such a mind might be wrought by 
 such a merciless publication ? 
 
 Gentlemen, whether these remarks are the overcharged declam- 
 ations of. an accusing counsel, or the just reflections of a man anx- 
 ious, for the public freedom, which is best secured hj the morals of 
 a nation, will be best settled by an appeal to the passages in the 
 work, that are selected in the indictment for your consideration and 
 judgment. You are at liberty to connect them with every -context 
 and sequel, and to bestow upon them the mildest interpretation. 
 
 Here Mr. Erskine read and commented upon several of the selected pas- 
 sages. He continued : 
 
 9. The character of the defense an anomaly, and incon- 
 sistent WITH the jurisdiction OF THE COURT. 
 
 Gentlemen, it would be useless and disgusting to enumerate the 
 other passages within the scope of the indictment. How any man 
 can rationally vindicate the publication of such a book, in a coun- 
 try where the Christian religion is the very foundation of the law of 
 the land, I am totally at a loss to conceive, and have no wish to 
 discuss. How is a tribunal, whose whole jurisdiction is founded 
 upon the solemn belief and practice of what is denied as falsehood, 
 
ON THE TRIAL OF THOMAS TVILLIAMS. 561 
 
 and reprobated as impiety, to deal with such an anomalous defense? 
 Upon what principle is it even offered to the court, whose authority 
 is contemned and mocked at ? If the religion proposed to be 
 called in question is not previously adopted in belief, and solemnly 
 acted upon, what authority has the court to pass any judgment at 
 all of acquittal or condemnation ? Why am I now, or upon any 
 other occasion, to submit to your lordship's authority ? Why am I 
 now, or at any time, to address twelve of my equals, as I am now 
 addressing you, with reverence and submission ? Under what sanc- 
 tion are the witnesses to give their evidence, without which there 
 can be no trial ? Under what obligations can I call upon you, the 
 jury, representing your country, to administer justice ? Surely upon 
 no other than that you are sworn to administer it under the oaths 
 you have taken. The whole judicial fabric, from the king's sover- 
 eign authority to the lowest office of magistracy, has no other 
 foundation. The whole is built, both in form and substance, upon 
 the same oath of every one of its ministers, to do justice, " as God 
 shall help them hereafter." What God ? and what hereafter ? That 
 God, undoubtedly, who has commanded kings to rule, and judges 
 to decree with justice; who has said to witnesses, not by the voice 
 of nature, but in revealed commandments, " thou shalt not bear 
 false witness against thy neighbor; " and who has enforced obe- 
 dience to them by the revelation of the unutterable blessings which 
 shall attend their observances, and the awful punishments which 
 shall await upon their transgressions. 
 
 10. Intellectual superiority of Christian believers. — 
 
 Newton. 
 
 But it seems this course of reason, and the time and the person 
 are at last arrived, that are to dissipate the errors which have over- 
 spread the past generations of ignorance! The believers in Chris- 
 tianity are many, but it belongs to the few that are wise to correct 
 their credulity! Belief is an act of reason; and superior reason 
 may, therefore, dictate to the weak. In running the mind along 
 the numerous list of sincere and devout Christians, I cannot help 
 lamenting that Newton had not lived to this day, to have had his 
 shallowness filled up with this new flood of light. But the subject 
 is too awful for irony. I will speak plainly and directly. Newton 
 was a Christian! Newton, whose mind burst forth from the fetters 
 cast by nature upon our finite conceptions;- Newton, whose science 
 was truth, and the foundation of whose knowledge of it was philos- 
 36 
 
562 SPEECH OP THOMAS EESKINE 
 
 ophy. Not those visionary and arrogant assumptions which too 
 often usurp its name, but philosophy resting upon the basis of 
 mathematics, which, like figures, cannot lie. Newton, who carried 
 the line and rule to the utmost barriers of creation, and explored 
 the principles by which, no doubt, all created matter is held togeth- 
 er and exists. But this extraordinary man, in the mighty reach of 
 his mind, overlooked, perhaps, the errors which a minuter investi- 
 gation of the created things on this earth might have taught him of 
 the essence of his Creator. 
 
 II. Boyle, Locke, and Sir Matthew Hale. 
 
 What shall then be said of the great Mr. Boyle, who looked into 
 the organic structure of all matter, even to the brute inanimate 
 substances which the foot treads on. Such a man may be sup- 
 posed to have been equally quahfied with Mr. Paine, to "look 
 through nature, up to nature's God." Yet the result of all his con- 
 templation was the most confirmed and devout belief in all which 
 the other holds in contempt as despicable and driveling supersti- 
 tion. But this error might, perhaps, arise from a want of due at- 
 tention to the foundations of human judgment, and the structure 
 of that understanding which God has given us for the investigation 
 of truth. Let that question be answered by Mr. Locke, who was 
 to the highest pitch of devotion and adoration a Christian. Mr. 
 Locke, whose office was to detect the errors of thinking, by going up 
 to the fountains of thought, and to direct into the proper track of 
 reasoning the devious mind of man, by showing him its whole pro- 
 cess, from the first perceptions of sense to the last conclusions of 
 ratiocination; putting a rein, besides, upon false opinion, by prac- 
 tical rules for the conduct of human judgment. 
 
 But these men were only deep thinkers, and lived in their closets, 
 unaccustomed to the traffic of the world, and to the laws which 
 practically regulate mankind. Gentlemen, in the place where you 
 now sit to administer the justice of this great country, above a cen- 
 tury ago the never-to-be-forgotten Sir Matthew Hale presided, 
 whose faith in Christianity is an exalted commentary upon its truth 
 and reason, and whose life was a glorious example of its fruits in 
 man; administering human justice with a wisdom and purity drawn 
 from the pure fountain of the Christian dispensation, which has 
 been, and will be, in all ages, a subject of the highest reverence 
 and admiration. 
 
ON THE TRIAL OF THOMAS WILLIAMS. 563 
 
 12. John Milton's immortal offering. 
 
 But it is said by Mr. Paine, that the Christian fable is but the 
 tale of the more ancient superstitions of the world, and may be 
 easily detected by a proper understanding of the mythologies of 
 the heathens. Did Milton understand those mythologies ? Was 
 he less versed than Mr. Paine in the superstitions of the world ? 
 No; they were the subject of his immortal song; and though shut 
 out from all recurrence to them, he poured them forth from the 
 stores of a memory rich with all that man ever knew, and laid them 
 in their order as the illustration of that real and exalted faith, the 
 unquestionable source of that fervid genius, which cast a sort of 
 shade upon all the other works of man: 
 
 He pass'd the bounds of flaming space, 
 Where angels tremble while they gaze; 
 He saw, til], blasted with excess of light, 
 He clos'd his eyes in endless night! ' 
 
 Btit it was the light of the body only that was extinguished; 
 "the celestial light shone inward," and enabled him to "justify the 
 ways of God to man." The result of his thinking was, neverthe- 
 less, not the same as Mr. Paine's. The mysterious incarnation of 
 our blessed Saviour, which the " Age of Reason " blasphemes in 
 words so wholly unfit for the mouth of a Christian, or for the ear 
 of a court of justice, that I dare not and will not give them utter- 
 ance, Milton made the grand conclusion of "Paradise Lost," the 
 rest of his finished labors, and the ultimate hope, expectation, and 
 glory of the world: 
 
 A Virgin is his mother, but his sire 
 
 The power of the Most High; he shall ascend 
 
 The throne hereditary, and bound his reign 
 
 With earth's wide bounds, his glory with the heavens. 
 
 The immortal poet having thus put into the mouth of the angel 
 the prophecy of man's redemption, follows it with that solemn and 
 beautiful admonition, addressed in the poem to our great First 
 Parent, but intended as an address to bis posterity through all gen- 
 erations: 
 
 This having learned, thou hast attained the sum 
 Of wisdom: hope no higher, though all the stars 
 Thou knew'st by name, and all th' ethereal powers, 
 
 ' Grey's Ode on the Progress of Poetry. 
 
564 SPEECH OF THOMAS EE8KXNE 
 
 All secrets of the deep, all Nature's works, 
 Or works of God in heaven, air, earth, or sea, 
 And all the riches of this world enjoy'st. 
 And all the rule one empire ; only add 
 Deeds to thy knowledge answerable, add faith, 
 Add virtue, patience, temperance; add love. 
 By name to come call'd Charity, the soul 
 Of all the rest; then wilt thou not be loth 
 To leave this Paradise, but shalt possess 
 A paradise within thee, happier far. 
 
 Thus you find all that is great, or wise, or splendid, or illus- 
 trious among created beings — all the minds gifted beyond ordinary 
 nature, if not inspired by their universal Author for the advance- 
 ment and dignity of the world, though divided by distant ages, and 
 by the clashing opinions distinguishing them from one another, yet 
 joining, as it were, in one sublime chorus to celebrate the truths of 
 Christianity, and laying upon its holy altars the never-fading offer- 
 ings of their immortal wisdom. 
 
 13. Adherence to doctrines of the New Testament wbuLD 
 
 BANISH wickedness FROM THE WORLD. 
 
 Against all this concurring testimony, we find suddenly, from 
 Mr. Paine, that the Bible teaches nothing but " lies, obscenity, 
 cruelty, and injustice." Did the author or publisher ever read the 
 sermon of " Christ upon the Mount," in which the great principles 
 of our faith and duty are summed up ? Let us all but read and 
 practice it, and lies, obscenity, cruelty, and injustice, and all human 
 wickedness, would be banished from the world. 
 
 14. Religion and morality alone constitute the safety 
 OF THE State. 
 
 Gentlemen, there is but one consideration more, which I cannot 
 possibly omit, because, I confess, it affects me very deeply. Mr. 
 Paine has written largely on public liberty and government; and 
 this last performance has, on that account, been more widely circu- 
 lated, and principally among those who attached themselves from 
 principle to his former works. This circumstance renders a public 
 attack upon all revealed religion, from such a writer, infinitely more 
 dangerous. The religious and moral sense of the people of Great 
 Britain is the great anchor which alone can hold the vessel of the 
 State amid the storms which agitate the world. If I could believe, 
 for a moment, that the mass of the people were to be debauched 
 
ON THE TRIAL OF THOMAS WILLIAMS. 565 
 
 from the principles of religion, which form the true basis of that 
 humanity, charity, and benevolence that has been so long the na- 
 tional characteristic, instead of mixing myself, as I sometimes have 
 done, in political reformations, I would rather retire to the utter- 
 most corners of the earth to avoid their agitation ; and would bear, 
 not only the imperfections and abuses complained of in our own 
 wise establishment, but even the worst government that ever ex- 
 isted in the world, rather than go to the work of reformation with a 
 multitude set free from all the charities of Christianity, who had no 
 sense of God's existence but from Mr. Paine's observation of na- 
 ture, which the mass of mankind have no leisure to contemplate; 
 nor any belief of future rewards and punishments to animate the 
 good in the glorious pursuit of human happiness, nor to deter the 
 wicked from destroying it even in its birth. But I know the people 
 of England better. They are a religious people; and, with the 
 blessing of God, as far as it is in my power, I will lend my aid to 
 keep them so. I have no objection to the freest and most extended 
 discussions upon doctrinal points of the Christian religion; and, 
 though the law of England does not permit it, I do not dread the 
 reasoned arguments of Deists against the existence of Christianity 
 itself, because, as was said by its divine author, if it is of God it 
 will stand. 
 
 15. Inferior object and capacity of Paine's work. 
 
 An intellectual book, however erroneous, addressed to the intel- 
 lectual world upon so profound and complicated a subject, can 
 never work the mischief which this indictment is calculated to re- 
 press. Such works will only employ the minds of men enlightened 
 by study in a deeper investigation of a subject well worthy of their 
 profound and continued contemplation. The powers of the mind 
 are given for human improvement in the progress of human exist- 
 ence. The changes produced by such reciprocations of lights and 
 intelligences are certain in their progressions, and make their way 
 imperceptibly, as conviction comes upon the world, by the final and 
 irresistible power of truth. If Christianity be founded in falsehood, 
 let us become Deists in this manner, and I am contented. But this 
 book hath no such object and no such capacity; it presents no ar- 
 guments to the wise and enlightened. On the contrary, it treats 
 the faith and opinions of the wisest with the most shocking con- 
 tempt, and stirs up men without the advantages of learning or sober 
 thinking to a total disbelief of everything hitherto held sacred, and, 
 
666 SPEECH OF THOMAS ERSKIIfE. 
 
 consequently, to a rejection of all the laws and ordinances of the 
 State, which, stand only upon the assumption of their truth. 
 
 Gentlemen, I cannot conclude without expressing the deepest 
 regret at all attacks upon the Christian religion by authors who 
 profess to promote the civil liberties of the world. For under what 
 other auspices than Christianity have the lost and subverted liber- 
 ties of mankind in former ages been reasserted ? By what zeal, but 
 the warm zeal of devout Christians, have Eiiglish liberties been re- 
 deemed and consecrated ? Under what other sanctions, even in 
 our own days, have liberty and happiness been extending and 
 spreading to the uttermost corners of the earth ? What work of 
 civilization, what commonwealth of greatness has the bald religion 
 of nature ever established ? We see, on the contrary, the nations 
 that have no other light than that of nature to direct them, sunk in 
 barbarism, or slaves to arbitrary governments ; while, since the 
 Christian era, the great career of the world has been slowly, but 
 clearly, advancing lighter at every step, from the awful prophecies 
 of the Gospel, and leading, I trust, in the end, to universal and 
 eternal happiness. Each generation of mankind can see but a few 
 revolving links of this mighty and mysterious chain; but, by doing 
 our several duties in our allotted stations, we are sure that we are 
 fulfilling the purposes of our existence. You, I trust, will fulfill 
 yours this day! 
 
 The evidence was very brief. The sale of the book by the prisoner was 
 shown, the notice by the defense to produce the Bible in evidence was read, and 
 the prosecution rested. Mr. Kyd then delivered an address to the jury, to which 
 Mr. Erskine replied. He closed his speech as follows: "I have only, therefore, 
 to remind you, gentlemen, that this indictment was not preferred from any idea 
 that the Christian religion could be affected, in its character or irresistible pro- 
 gress, by this disgusting and contemptible work; but to prevent its circulation 
 amongst the industrious poor, too much engaged in the support of their families 
 by their labor, and too uninformed to be secure against artful wickedness. Of 
 all human beings they stand most in need of the consolations of religion, and the 
 country has the deepest stake in their enjoying it, not only from the protection 
 which it owes them, but bfccause no man can be expected to be faithful to the 
 authority of man who revolts against the government of God." The jury found 
 a verdict of Guilty, without retiring from their seats. 
 
SPEECH OF SIR JAMES MACKINTOSH 
 
 In Behalf of Jean Peltier, Indicted for a Libel against 
 Napoleon Bonaparte. 
 
 [Howell's St. Tr. vol. 28, p. 566.] 
 
 IN THE COURT OF KING'S BENCH. MICHAELMAS TERM. 
 43d GEORGE III, FEB. 21, 1803. 
 
 Political Libel. — Every publication which has a tendency to pro- 
 mote public mischief by defaming the persons and characters of magis- 
 trates, and others in high and eminent situations of power and dignity in 
 other countries, inconsistent with amity and friendship, expressed in such 
 terms and such a manner as to interrupt the amity and friendship between 
 the two countries, is in law a libel. — [Lord EUenborough's charge in Rex 
 V. Peltier.] 
 
 AnaIiTSis of Me, Mackintosh's Speech. 
 
 A. The nominal parties to the record, not 
 the real parties to the issue. 
 
 3. The real issue— a conflict between the 
 greatest power in the world, and the 
 only free press in Europe. 
 
 3. Reason for the temporary toleration of a 
 
 free press in the minor European 
 States. 
 
 4. How the liberty of the continental press 
 
 perished, w^bile the press of England 
 alone remained free. 
 
 5. Distinction between libel and history. — 
 
 Philosophy of the law of libel. 
 
 6. The Maintenance of justice on the con- 
 
 tinent essential to the security of 
 Great Britain. 
 
 7. War never beneficial to a commercial 
 
 nation. 
 
 8. The freedom of the press cannot be im- 
 
 paired without danger to the State, 
 g. Malice the essence of the crime of libel. 
 
 — The privilege of the historian. 
 10. A satire not a libel. 
 iz. Defendant had a legal right to satirize 
 
 Jacobinism. 
 
 12. The spirit of Jacobinism not extinguish- 
 
 ed. 
 
 13. A picture of the French Jacobins. 
 
 14. Republicans and Jacobins distinguished. 
 
 15. The publication cannot represent the 
 
 opinions of the defendant, who is a 
 royalist. 
 
 16. Observations upon the ode. 
 
 17. The verses contain no exhortation to as- 
 
 sassinate Napoleon. 
 
 18. Free discussion the most important in- 
 
 terest of mankind. — The reign of 
 Elizabeth, 
 ig. Pow^er and importance of the press in 
 preserving the liberties of English- 
 men. 
 
 20. Louis XIV. — His arraignment by French 
 
 refugees no libel. 
 
 21. The invasion of Holland an avowed at- 
 
 tack upon the liberty of the press, 
 
 22. William of Orange saves England from 
 
 the power of Louis XIV. 
 
 23. Animadversion of the English press on 
 
 the projects of Louis XIV. 
 
 24. Influenceof newspapers on domestic and 
 
 foreign politics. 
 
 25. Arraignment by the press of the crime 
 
 against Poland. 
 
 26. The invasion of Switzerland.— England 
 
 an asylum for its oppressed heroes. 
 
 27. The reign of Robespierre.— Illustrations 
 
 to show the fallacy of the theory of 
 the prosecution. 
 
 [567] 
 
568 SPEECH OF SIR JAMES MACKINTOSH 
 
 On the 2ist of February, 1803, Jean Peltier was brought up for trial, charged 
 with having published a wicked and malicious libel against Napoleon Bonaparte 
 (at that time First Consul and Chief Magistrate of France), with the intent and 
 purpose of bringing him into hatred and contempt at home and abroad; to incite 
 his subjects to rebel against him; and, further, for the purpose of exhorting his 
 assassination. 
 
 Mr. Peltier was a French royalist, who, in the memorable autumn of 1792, 
 fled from his country on account of political persecution. In 1802, he com- 
 menced the publication of a French journal in the city of London, entitled 
 L'Ambigu, ou VarieUs atroces et amusantes. On the title page was the repre- 
 sentation of a Sphynx, with a head representing Bonaparte, wearing a crown. 
 A number of hieroglyphics were engraven on the pedestal on which it rested, 
 indicative of mystery. The columns of L'Ambigu were devoted to an exposure 
 of the conduct, designs and ambitions of Napoleon. The publication irritated 
 the First Consul to such a degree that he demanded of the English authorities 
 that Peltier be sent out of the country, but his solicitations were refused. He 
 then insisted that as France was at peace with England, the king should pro- 
 ceed against Peltier for a libel on a friendly government, which was, by the laws 
 of England, a crime to which severe penalties attached. 
 
 There appeared in the first number of L'Ambigu an ode, attributed to Chen- 
 ier (a Jacobin, and a man of distinguished talents), which hinted at the assas- 
 sination of Bonaparte. It also contained some verses of the same character, 
 entitled, " The Wish of a Dutch Patriot.'" The third number contained a parody 
 on the harangue of Lepidus to Sylla, which pointed at Bonaparte as having as- 
 sumed the dictatorship. These three articles were set out in the indictment, and 
 embraced the charge on which Peltier was arraigned. 
 
 He was defended by Sir James Mackintosh. The time when the trial oc- 
 curred, and the peculiar circumstances under which it took place, afforded Mr. 
 Mackintosh an opportunity to display the abilities with which he was so liberally 
 endowed. Such was the nature and importance of the affair, that, during the 
 week preceding the trial, it was believed in commercial circles that the acquittal 
 of Peltier would be considered in France as tantamount to a declaration of war 
 against the First Consul; and such was the feverish and uncertain tenure of 
 the peace between the two countries, that war'was actually declared before the 
 prisoner (who was convicted) was brought up for sentence. 
 
 Mr. Mackintosh's defense of Peltier must always rank as a model of chaste 
 and manly eloquence, which, as a display of intellectual power, has not been 
 surpassed in ancient or modern times. The vigor of thought and the wonderful 
 exhibition of memory which characterize this great speech, demonstrate that 
 Lord Macaulay did not place too high an estimate on the abilities of this eminent 
 Scotchman when he said : " His mind was a vast magazine, admirably arranged. 
 Everything was there, and everything was in its place. His judgments on men, 
 on sects, on books, had been often carefully tested and weighed, and had theq 
 been committed, each to his proper receptacle, in the most capacious and admir, 
 ably constructed memory that any human being ever possessed. While speaking, 
 he seemed to be recollecting, not creating. You never saw his opinions in the 
 making, still rude, still inconsistent, and requiring to be fashioned by thought 
 
 ' For the Ode and Verses, see Appendix, pp. 730, 731. 
 
IN BEHALF OF JEAN PELTIER. 669 
 
 and discussion. They came forth like the pillars of that temple, in which no 
 sound of axes or hammers was heard, finished, rounded, and exactly suited to 
 their places.'' Lord Erskine, who was present during Mr. Mackintosh's address, 
 wrote to him that, while he approved the verdict, he should always consider the 
 manner in which it was opposed as one of the most splendid monuments of 
 genius, literature and eloquence ; and Robert Hall, in acknowledging the receipt 
 of a copy of it from Mr. Mackintosh, remarked that it was "the most extraor- 
 dinary ssemblage of whatever is most refined in address, profound in political 
 and moral speculation, and masterly in eloquence in the language." Madame de 
 Stael was charmed with its fine passages, which she said seemed to touch her 
 very soul. She tran^ated it into French, and it became widely known on the 
 continent. 
 
 The attorney-general (Mr. Percival, afterwards Prime Minister) opened the 
 case to the jury. No evidence was offered by the prisoner. When the testi- 
 mony for the crown closed, Mr. Mackintosh said : 
 
 Gentlemen of the Jury : — The time is now come for me to 
 address you in behalf of the unfortunate gentleman who is the de- 
 fendant on this record. 
 
 I must begin with observing, that though I know myself too 
 well to ascribe to anything but to the kindness and good nature of 
 my learned friend, the attorney-general, the unmerited praises 
 which he has been pleased to bestow on me, yet, I will venture to 
 say, he has done me no more than justice in supposing that in this 
 place, and on this occasion, where I exercise the functions of an 
 inferior minister of justice, an inferior minister, indeed, but a 
 minister of justice still, I am incapable of lending myself to the 
 passions of any client, and that I will not make the proceedings of 
 this court subservient to any political purpose. 
 
 Whatever is respected by the laws and government of my coun- 
 try shall, in this place, be respected by me. In considering matters 
 that deeply interest the quiet, 'the safety, and the liberty of all man- 
 kind, it is impossible for me not to feel warmly and strongly ; but 
 I shall make an effort to control my feelings, however painful that 
 effort may be ; and, where I cannot speak out, but at the risk of 
 offending either sincerity or prudence, I shall labor to contain my- 
 self and be silent. 
 
 I cannot but feel, gentlemen, how much I stand in need of your 
 favorable attention and indulgence. The charge which I have to 
 defend is surrounded with the most invidious topics of discussion ; 
 but, they are not of my seeking. The case and the topics which 
 are inseparable from it are brought here by the prosecutor. Here 
 I find them, and here it is my duty to deal with them, as the inter- 
 ests of Mr. Peltier seem to me to require. He, by his choice and 
 
570 SPEECH OF SIR JAMES MACKINTOSH 
 
 confidence, has cast on me a very arduous duty, which I could not 
 decline, and which I can still less betray. He has a right to expect 
 from me a faithful, a zealous, and a fearless defense ; and this, his 
 just expectation, according to the measure of my humble abilities, 
 shall be fulfilled. 
 
 I have said a fearless defense. Perhaps that word was unneces- 
 sary in the place where I now stand. Intrepidity in the discharge 
 of professional duty is so common a quality at the English bar, 
 that it has, thank God, long ceased to be a matter of boast or 
 praise. If it had been otherwise, gentlemen, if the bar could have 
 been silenced or overawed by power, I may presume to say that an 
 English jury would not this day have been met to administer jus- 
 tice. Perhaps I need scarce say that my defense shall be fearless, 
 in a place where fear never entered any heart but that of a crim- 
 inal. But you will pardon me for having said so much when you 
 consider who the real parties before you are. 
 
 I. The nominal parties to the record, not the real 
 
 PARTIES TO the ISSUE. 
 
 Gentlemen, the real prosecutor isi the master of the greatest em- 
 pire the world ever saw. The defendant is a defenseless, pro- 
 scribed exile. He js a French royalist, who fled from his country 
 in the autumn of 1792, at the period of that memorable and awful 
 emigration, when all the proprietors and magistrates of the greatest 
 civilized country of Europe were driven from their homes by the 
 daggers of assassins; .when our shores were covered,, as with the 
 wreck of a great, tempest, with old men, and women, and children, 
 and ministers of religion, who fled from the ferocity of their coun- 
 trymen as, before an army of invading barbarians. 
 
 The greatest part of these unfortunate exiles, of those, I mean, 
 who have been spared by the sword, who have survived the effect 
 of pestilential climates or broken hearts, have been since permitted 
 to revisit their country. ; Though despoiled of their all, they have 
 eagerly embraced even the sad privilege of being suffered to die in 
 their native land. 
 
 Even this miserable indulgence was to be purchased by compli- 
 ances, by declarations of allegiance to the new government, which 
 some of these suffering Royalists deemed incompatible with their 
 consciences, with their dearest attachments, and their most sacred 
 duties. Among these last is Mr. Peltier. I do not presume to 
 blame those who submitted, and I trust you will not judge harshly 
 
US' BEHAI.F OF JEAN PELTIER. 573 
 
 of those who refused. You will not think unfavorably of a man 
 who stands before you as the voluntary victim of his loyalty and 
 honor. If a revolution (which God avert) were to drive us into 
 exile, and to cast us on a foreign shore, we should expect, at least, 
 to be pardoned by generous men, for stubborn loyalty, and unsea- 
 sonable fidelity to the laws and government of our fathers. 
 
 This unfortunate gentleman had devoted a great part of his life 
 to literature. It was the amusement and ornament of his better 
 days. Since his own ruin and the desolation of his country, he has 
 been compelled to employ it as a means of support. For the last 
 ten years he has been engaged in a variety of publications of con- 
 siderable importance; but since the peace, he has desisted from 
 serious political discussion, and confined himself to the obscure 
 journal which is now before you; the least calculated, surely, of any 
 publication that ever issued from the press, to rouse the alarms of 
 the most jealous government; which will not be read in England, 
 because it is not written in our language; which cannot be read in 
 France, because its entry into that country is prohibited by a power 
 whose mandates are not very supinely enforced, nor often evaded 
 with impunity; which can have no other object than that of amusing 
 the companions of the author's principles and misfortunes, by pleas- 
 antries and sarcasms on their victorious enemies. There is, indeed, 
 gentlemen, one remarkable circumstance in this unfortunate publi- 
 cation; it is the only, or almost the only journal which still dares 
 to espouse the cause of that royal and illustrious famUy, which, but 
 fourteen years ago, was flattered by every press and guarded by 
 every tribunal in Europe. Even the court in which we are met 
 affords an example of the vicissitudes of their fortune. My learned 
 friend has reminded you that the last prosecution ' tried in this 
 place, at the instance of a French government, was for a libel on 
 that magnanimous princess, who has since been butchered in sight 
 of her palace. 
 
 I do not make these observations with any purpose of question- 
 ing the general principles which have been laid down by my learned 
 friend. I must admit his right to bring before you those who libel 
 any government recognized by his Majesty, and at peace with the 
 British empire. I admit that, whether such a government be of yes- 
 terday, or a thousand years old; whether it be a crude and bloody 
 usurpation, or the most ancient, just, and paternal authority upon 
 earth, we are here equally bound, by his Majesty's recognition, to 
 protect it against libelous attacks. 
 
 ' The prosecution of Lord George Gordon. 
 
572 SPEECH OF SIR JAMES MACKINTOSH 
 
 I admit that if, during our usurpation, Lord Clarendon had pub- 
 lished his history at Paris, oi the Marquess of Montrose his verses 
 on the murder of his sovereign, or Mr. Cowley his Discourse on 
 Cromwell's Government, and if the English embassador had com- 
 plained, the President de Moli, or any other of the great magis- 
 trates who then adorned the Parliament of Paris, however reluct- 
 antly, painfully, and indignantly, might have been compelled to 
 have condemned these illustrious men to the punishment of 
 libelers. 
 
 I say this only for the sake of bespeaking a favorable attention 
 from your generosity, and compassion to what will be feebly urged • 
 in behalf of my unfortunate client, who has sacrificed his fortune, 
 his hopes, his connections, his country, to his conscience ; who 
 seems marked out for destruction in this his last asylum. 
 
 That he still enjoys the security of this asylum, that he has not 
 been sacrificed to the resentment of his powerful enemies, is perhaps 
 owing to the firmness of the king's government. If that be the fact, 
 gentlemen; if his Majesty's ministers have resisted applications to 
 expel this unfortunate gentleman from England, I should publicly 
 thank them for their firmness, if it were not unseemly and improper 
 to suppose that they could have acted otherwise — to thank an 
 English government for not violating the most sacred duties of 
 hospitality; for not bringing indelible disgrace on their country. 
 
 But be that as it may, gentlemen, he now comes before you per- 
 fectly satisfied that an English jury is the most refreshing prospect 
 that the eye of accused innocence ever met in a human tribunal; 
 and he feels with me the most fervent gratitude to the Protector 
 of empires that, surrounded as we are with the ruins of principali- 
 ties and powers, we still continue to meet together, after the manner 
 of our fathers, to administer justice in this her ancient sanctuary. 
 
 2. The real issue — a conflict between the greatest power 
 in the world, and the only free press in europe. 
 
 There is another point of view in which this case seems to me 
 to merit your most serious attention. " I consider it as the first of 
 a long series of conflicts between the greatest power in the world, 
 and the only free press remaining in Europe. 
 
 No man living is more thoroughly convinced than I am that my 
 learned friend, Mr. Attorney General, will never degrade his excel- 
 lent character ; that he will never disgrace his high magistracy by 
 
IN BEHALF OF JEAN PELTIER. 573 
 
 mean compliances ; by an immoderate and unconscientious exer- 
 cise of power; yet I _am convinced, by circumstances which I 
 shall now abstain from discussing, that I am to consider this as the 
 first of a long series of conflicts between the greatest power in the 
 world and the only free press now remaining in Europe. 
 
 Gentlemen, this distinction of the English press is new; it is a 
 proud and melancholy distinction. Before the great earthquake of 
 the French Revolution had swallowed up all the asylums of free 
 discussion on the Continent, we enjoyed that privilege, indeed, 
 more fully than others; but we did not enjoy it exclusively. In 
 great monarchies, the press has always been considered as too for- 
 midable an engine to be intrusted to unlicensed individuals. But, 
 in other continental countries, either by the laws of the State, or by 
 long habits of liberality and toleration in magistrates, a liberty of 
 discussion has been enjoyed, perhaps sufficient enough for most 
 useful purposes. It existed, in fact, where it was not protected by 
 law; and the wise and generous connivance of governments was 
 daily more and more secured by the growing civilization of their 
 subjects. In Holland, in Switzerland, in the imperial towns of Ger- 
 many, the press was either legally or practically free. Holland and 
 Switzerland are no more; and, since the commencement of this 
 prosecution, fifty imperial towns have been erased from the list of 
 independent States by one dash of the pen. Three or four still 
 preserve a precarious and trembling existence. I will not say by 
 what compliances they must purchase its continuance. I will not 
 insult the feebleness of States, whose unmerited fall I do most 
 bitterly deplore. 
 
 3. Reasons for the temporary toleration of a free press 
 in the minor european states. 
 
 These governments were, in many respects, one of the most 
 interesting parts of the ancient system of Europe. Unfortunately 
 for the repose of mankind, great States are compelled, by regard 
 to their own safety, to consider the military spirit and martial 
 habits of their people as one of the main objects of their policy. 
 Frequent hostilities seem almost the necessary condition of their 
 greatness; and, without being great, they cannot long remain safe. 
 Smaller States exempted from this cruel necessity — a hard con- 
 dition of greatness, a bitter satire on human nature — devoted them- 
 selves to the arts of peace, to the cultivation of literature, and the 
 
574 
 
 SPEECH OF SIR JAMES MACKINTOSH 
 
 improvement of reason. They became places of refuge for free 
 and fearless discussion; they were the impartial spectators and 
 judges of the various contests of ambition which, from time to 
 time, disturbed the quiet of the world. They thus became 
 peculiarly qualified to be the organs of that public opinion which 
 converted Europe into a great republic, with laws which mitigated, 
 though they could not extinguish ambition; and with moral tribu- 
 nals to which even the most despotic sovereigns were amenable. 
 If wars of aggrandizetnent were undertaken, their authors were 
 arraigned in the face- of Europe. If acts of internal tyranny were 
 perpetrated, they resounded from a thousand presses throughout 
 all civilized countries. Princes on whose will there were no legal 
 checks, thus found a moral restraint which the most powerful of 
 them could not brave with absolute impunity. They acted before 
 a vast audience, to whose applause or condemnation they could 
 not be utterly indifferent. The very constitution of human nature, 
 the unalterable laws of the mind of man, against which all rebel- 
 lion is fruitless, subjected the proudest tyrants to this control. No 
 elevation of power, no depravity, however consummate, no inno- 
 cence, however spotless, can render man wholly independent of 
 the praise or blame of his fellbw-men. 
 
 These governments were, in other respects, one of the most 
 beautiful and interesting parts of our ancient system. The perfect 
 security of such inconsiderable and feeble States, their undisturbed 
 tranquillity amid the wars and conquests that surrounded them, 
 attested, beyond any other part of the European system, the mod- 
 eration, the justice, the civilization to which Christian Europe had 
 reached in modern times. Their weakness was protected only by 
 the habitual reverence for justice, which, during a long series of 
 ages, had grown up in Christendom. This was the only fortifica- 
 tion which defended them against those mighty monarchs to 
 whom they offered so easy a prey. And till the French Revolu- 
 ■ tion, this was sufficient. Consider, for instance, the situation of 
 the republic of Geneva. Think of her defenseless position, in 
 the very jaws of France; but think also of her undisturbed security, 
 of her profound quiet, of the brilliant: success with which she applied 
 to industry and literature, while Louis XIV was pouring his myri- 
 ads into Italy before her gates. Call to mind, if ages crowded into 
 years have not effaced them from'your memory, that happy period, 
 when we scarcely dreamed of the subjugation of the feeblest re- 
 public of Europe than of the conquest of her mightiest empire; 
 
IN BEHALF OF JEAN PELTIER. 675 
 
 and tell me, if you can imagine a spectacle more beautiful to the 
 moral eye, or a more striking proof of progress in the noblest prin- 
 ciples of true civilization. 
 
 4. How THE LIBERTY OF THE CONTINENTAL PRESS PERISHED, 
 WHILE THE PRESS OF ENGLAND ALONE REMAINED FREE. 
 
 These feeble States — these monuments of the justice of Europe 
 — the asylum of peace, of industry, and of literature — the organs 
 of public reason — the refuge of oppressed innocence and persecuted 
 truth, have perished with those ancient principles which were their 
 sole guardians and protectors. They have been swallowed up by 
 that fearful convulsion which has shaken the uttermost corners of 
 the earth. They are destroyed and gone forever. 
 
 One asylum of free discussion is still inviolate. There is still 
 one spot in Europe where man can freely exercise his reason on 
 the most important concerns of society; where he can boldly pub- 
 lish his judgment on the acts of the proudest and most powerful 
 tyrants. The press of England is still free. It is guarded by the 
 free Constitution of our forefathers. It is guarded by the hearts 
 and arms of Englishmen, and, I trust I may venture to say, that if 
 it be to fall, it will fall only under the ruins of the British empire. 
 
 It is an awful consideration, gentlemen. Every other monu- 
 ment of European liberty has perished. That ancient fabric which 
 has been gradually reared by the wisdom and virtue of our fathers 
 still stands. It stands, thanks be to God ! solid and entire; but it 
 stands alone, and it stands amid ruins. 
 
 In these extraordinary circumstances, I repeat that I must con- 
 sider this as the first of a long series of conflicts between the great- 
 est power in the world and the only free press remaining in Europe. 
 And, I trust, that you will consider yourselves as the advance 
 guards of liberty, as having this day to fight the first battle of free 
 discussion against the most formidable enemy that it ever encount- 
 ered. You will, therefore, excuse me if, on so important an occa- 
 sion, I remind you, at more length than is usual, of those general 
 principles and law of policy on this subject which have been 
 handed down to us by our ancestors. 
 
 5. The DISTINCTION BETWEEN LIBEL, AND HISTORY OR DISCUSSION. 
 
 Philosophy of the law of libel. 
 
 Those who slowly built up the fabric of our laws never attempted 
 anything so absurd as to define, by any precise rule, the obscure 
 
576 SPEECH OF 8IE JAMES MACKINTOSH 
 
 and shifting boundaries which divide libel from history or discus- 
 sion. It is a subject which, from its nature, admits neither rules 
 nor definitions. The same words may be perfectly innocent in 
 one case, and most mischievous and libelous in another. A change 
 of circumstances, often apparently slight, is sufficient to make the 
 v/hole difference. These changes, which may be as numerous as 
 the variety of human intentions and conditions, can never be fore- 
 seen nor comprehended under any legal definitions, and the framers 
 of our law have never attempted to subject them to such definitions. 
 They left such ridiculous attempts to those who call themselves 
 philosophers, but who have, in fact, proved themselves most grossly 
 and stupidly ignorant of that philosophy which is conversant with 
 human affairs. 
 
 The principles of the law of England on the subject of political 
 libel are few and simple, and they are necessarily so broad, that, 
 without an habitually mild administration of justice, they might en- 
 croach materially on the liberty of political discussion. Every 
 publication which is intended to vilify either our own government 
 or the government of any foreign State in amity with this kingdom, 
 is, by the law of England, a libel. To protect political discussion 
 from the danger to which it would be exposed by these wide prin- 
 ciples, if they were severely and literally enforced, our ancestors 
 trusted to various securities — some growing out of the law and 
 Constitution, and others arising from the characters of those public 
 oflScers whom the Constitution had formed, and to whom its ad- 
 ministration is committed. They trusted, in the first place, to the 
 moderation of the legal officers of the Crown, educated in the max- 
 ims and imbued with the spirit of a free government; controlled 
 by the superintending power of Parliament, and peculiarly watched 
 in all political prosecutions by the reasonable and wholesome jeal- 
 ousy of their fellow subjects. And, I am bound to admit, that, 
 since the glorious era of the Revolution [1688], making due allow- 
 ance for the frailties, the faults, and the occasional vices of men, 
 they have, upon the whole, not been disappointed. I know that, 
 in the hands of my learned friend, that trust "will never be abused. 
 But, above all, they confided in the moderation and good sense of 
 all juries, popular in their origin, popular in their feelings, popular 
 in their very prejudices, taken from the mass of the people, and 
 immediately returning to that mass again. By these checks and 
 temperaments they hoped that they should sufficiently repress 
 malignant libels, without endangering that freedom of inquiry 
 
US BEHALF OF JEAN PELTIER. 577 
 
 which is the first security of a free State. They knew that the 
 offense of a political libel is of a very peculiar nature, and differ- 
 ing in the most important particulars from all other crimes. In all 
 other cases, the most severe execution of law can only spread terror 
 among the guilty; but, in political libels, it inspires even the inno- 
 cent with fear. This striking peculiarity arises from the 6ame cir- 
 cumstances which make it impossible to define the limits of libel 
 and innocent discussion; which make it impossible for a man of 
 the purest and most honorable mind to be always perfectly certain 
 whether he be within the territory of fair argument and honest 
 narrative, or whether he may not have unwittingly overstepped the 
 faint and varying line which bounds them. But, gentlemen, I will 
 go further. This is the only offense where severe and frequent 
 punishments not only intimidate the innocent, but deter men from 
 the most meritorious acts, and /rom rendering the most important 
 services to their country. They indispose and disqualify men for 
 the discharge of the most sacred duties which they owe to man- 
 kind. To inform the public on the conduct of those who adminis- 
 ter public affairs, requires courage and conscious security. It is 
 always an invidious and obnoxious office; but it is often the most 
 necessary of all public duties. If it is not done boldly, it cannot 
 be done effectually, and it is not from writers trembling under the 
 uplifted scourge that we are to hope for it. 
 
 6. Thk maintenance of justice on, the continent essen- 
 tial TO the security of Great Britain. 
 
 There are other matters, gentlemen, to which I am desirous of 
 particularly calling your attention. These are the circumstances 
 in the condition of this country which have induced our ancestors, 
 at all times, to handle with more than ordinary tenderness that 
 branch of the liberty of discussion which is applied to the con- 
 duct of foreign states. The relation of this kingdom to the com- 
 monwealth of Europe is so peculiar, that no history, I think, fur- 
 nishes a parallel to it. From the moment in which we abandoned 
 all projects of continental aggrandizement, we could have no in- 
 terest respecting the state of the Continent but the interests of 
 national safety and of commercial prosperity. The paramount 
 interest of every state — that which comprehends every other — is 
 security. And the security of Great Britain requires nothing on 
 the Continent but the uniform observance of justice. It requires 
 37 
 
578 SPEECH 01' SIR JAMES MACKINTOSH 
 
 nothing but the inviolability of ancient boundaries and the sacred- 
 ness of ancient possessions, which, on these subjects, is but an- 
 other form of words for justice. A nation which is herself shut 
 out from the possibility of continental aggrandizement can have no 
 interest but that of preventing such aggrandizement in others. We 
 can have no interest of safety but the preventing of those encroach- 
 ments which, by their immediate effects, or by their example, may 
 be dangerous to ourselves. We can have no interest of ambition 
 respecting the Continent. So that neither our real, nor even our 
 apparent interests, can ever be at variance with justice. 
 
 7. War never beneficial to a commercial nation. 
 
 As to commercial prosperity, it is, indeed, a secondary, but it is 
 still a -very important branch of our national interests, and it re- 
 quires -nothing on the continent of Europe but the maintenance of 
 peace, as far as the paramount interest of security will allow. 
 
 Whatever ignorant or prejudiced men may affirm, no war was 
 ever gainful to a commercial nation. Losses may be less in some, 
 and incidental profits may arise in others. But no such profits 
 ever formed an adequate compensation for the waste of capital and 
 industry which all wars must produce. Next to peace, our com- 
 mercial greatness depends chiefly on the affluence and prosperity 
 of our neighbors. A commercial nation has, indeed, the same in- 
 terest in the wealth of her neighbors that a tradesman has in the 
 wealth of his customers. The prosperity of England has been 
 chiefly owing to the general progress of civilized nations in the 
 arts and improvements of social life. Not an acre of land has 
 been brought into cultivation in the wilds of Siberia or on the 
 shores of the Mississippi which has not widened the market for 
 English industry. It is nourished by the progressive prosperity of 
 the world, and it amply repays all that it has received. It can 
 only be employed in spreading civilization and enjoyment over the 
 earth ; and by the unchangeable laws of nature, in spite of the 
 impotent tricks of government, it is now partly applied to revive 
 the industry of those very nations who are the loudest in their 
 senseless clamors against its pretended mischiefs. If the blind and 
 barbarous project of destroying English prosperity could be accom- 
 plished, it could bave no other effect than that of completely beg- 
 garing the very countries who now stupidly ascribe their own pov- 
 erty to our wealth. 
 
rsr BEHALF OF JEAlf PELTIEE. 579 
 
 8. The freedom of the press can not be impaired without 
 danger to the state. 
 
 Under these circumstances, gentlemen, it became the obvious 
 policy of the kingdom, a policy in unison with the maxims of a 
 free government, to consider with great indulgence even the bold- 
 est animadversions of our political writers on the ambitious pro- 
 jects of foreign states. 
 
 Bold, and sometimes indiscreet as these animadversions might 
 be, they had, at least, the effect of warning the people of their dan- 
 ger, and of rousing the national indignation against those encroach- 
 ments which England has almost always been compelled in the end 
 to resist by arms. Seldom, indeed, has she been allowed to wait 
 till a provident regard to her own safety should compel her to take 
 up arms in defense of others. For as it was said by a great orator 
 of antiquity that no man ever was the enemy of the republic who 
 had not first declared war against him, so I may say, with truth, 
 that no man ever meditated the subjugation of Europe who did 
 not consider the destruction or the corruption of England as the 
 first condition of his success. If you examine history, you will 
 find that no such project was ever formed in which it was not 
 deemed a necessary preliminary, either to detach England from the 
 common cause or to destroy her. It seems as if all the conspira- 
 tors against the independence of nations might have sufficiently 
 taught other states that England is their natural guardian and pro- 
 tector ; that she alone has no interest but'their preservation ; that 
 her safety is interwoven with their own. When vast projects of 
 aggrandizement are manifested, when schemes of criminal ambi- 
 tion are carried into effect, the day of battle is fast approaching 
 for England. Her free government cannot engage in dangerous 
 wars without the hearty and affectionate support of her people. 
 A state thus situated, can not without the utmost peril, silence 
 those public discussions which are to point the popular indigna- 
 tion against those who must soon be enemies. In domestic dissen- 
 sions, it may sometimes be the supposed interest of government to 
 overawe the press. But it never can be even their apparent inter- 
 est when the danger is purely foreign. A King of England who, 
 in such circumstances, should conspire against the free press of 
 this country, would undermine the foundations of his own throne ; 
 he would silence the trumpet which is to call his people ipund his 
 standard. 
 
580 SPEECH OF SIR JAMES MACKINTOSH 
 
 Our ancestors never thought it their policy to avert the resent- 
 ment of foreign tyrants by enjoining English writers to contain and 
 repress their just abhorrence of the criminal enterprises of ambi- 
 tion. This great and gallant nation, which has fought in the front 
 of every battle against the oppressors of Europe, has sometimes 
 inspired fear, but, thank God, she has never felt it. We know that 
 they are our real, and must soon become our declared foes. We 
 know that there can be no cordial amity between the natural ene- 
 mies and the independence of nations. We have never adopted 
 the cowardly and short-sighted policy of silencing our press, of 
 breaking the spirit and palsying the hearts of our people for the 
 sake of a hollow and precarious truce. We have never been base 
 enough to purchase a short respite from hostilities by sacrificing 
 the first means of defense ; the means of rousing the public spirit 
 of the people, and directing it against the enemies of their coun- 
 try and of Europe. 
 
 Gentlemen, the public spirit of a people, by which I mean the 
 whole body of those affections which unites men's hearts to the 
 commonwealth, is in various countries composed of various ele- 
 ments, and depends on a great variety of causes. In this country, 
 I may venture to say that it mainly depends on the vigor of the 
 popular parts and principles of our government, and that the spirit 
 of liberty is one of its most important elements. Perhaps it may 
 depend less on those advantages of a free government, which are 
 most highly estimated by calm reason, than upon those parts of it 
 which delight the imagination, and flatter the just and natural 
 pride of mankind. Among these we are certainly not to forget 
 the political rights which are not uniformly withheld from the low- 
 est classes, and the continual appeal made to them in public dis- 
 cussion, upon.- the greatest interests of the state. These are un- 
 doubtedly among the circumstances which endear to Englishmen 
 their government and their country, and animate their zeal for that 
 glorious institution which confers on the meanest of them a sort of 
 distinction and nobility unknown to the most illustrious slaves, 
 who tremble at the frown of a tyrant. Whoever were unwarily 
 and rashly to abolish or narrow these privileges, which it must be 
 owned are liable to great abuse, and to very specious objections, 
 might perhaps discover too late that he had been dismantling his 
 country. Of whatever elements public spirit is composed, it is 
 always and everywhere the chief defensive principle of a state. It 
 is perfectly distinct from courage. Perhaps no nation, certainly 
 
IS BEHALF OF JEAN PELTIER. 581 
 
 no European nation, ever perished from an inferiority of courage. 
 And undoubtedly no considerable nation was ever subdued in 
 which the public affections were sound and vigorous. 
 
 It is public spirit which binds together the dispersed courage 
 of individuals and fastens it to the commonwealth. It is, there- 
 fore, as I have said, the chief defensive principle of every country. 
 Of all the stimulants which arouse it into action, the most power- 
 ful among us is certainly the press ; and it cannot be restrained or 
 weakened without imminent danger that the national spirit may 
 languish, and that the people may act with less zeal and affection 
 for their country in the hour of its danger. 
 
 These principles, gentlemen, are not new — they are genuine old 
 English principles. And though, in our days, they have been dis- 
 graced and abused by ruffians and fanatics, they are, in themselves, 
 as just and sound as they are liberal; and they are the only princi- 
 ples on which a free State can be safely governed. These principles 
 I have adopted since I first learned the use of reason, and I think I 
 shall abandon them only with life. On these principles I am now 
 to call your attention to the libel with which this unfortunate gen- 
 tleman is charged. 
 
 9 Malice the essence of the crime of libel. — The priv- 
 ilege OF THE historian. 
 
 I heartily rejoice that I concur with the greatest part of what has 
 been said by my learned friend, Mr. Attorney General, who has done 
 honor even to his character by the generous and liberal principles 
 which he has laid down. He has told you that he does not mean to 
 attack historical narrative. He has told you that he does not mean 
 to attack political discussion. He has told you, also, that he does 
 not consider every intemperate word into which a writer, fairly 
 engaged in narration or reasoning, might be betrayed, as a fit sub- 
 ject for prosecution. 
 
 The essence of the crime of libel consists in the malignant mind 
 which the publication proves, and from which it flows. A jury 
 must be convinced, before they find a man guilty of libel, that his 
 intention was to libel, not to state facts, which he believed to be 
 true, or reasonings which he thought just. My learned friend has 
 told you that the liberty of history includes the right of publishing 
 those observations which occur to intelligent men when they con- 
 sider the affairs of the world; and, I think, he will not deny that it 
 
582 SPEECH OF SIR JAMES MACKINTOSH 
 
 includes also the right of expressing those sentiments which all 
 good men feel on the contemplation of extraordinary examples of 
 depravity or excellence. 
 
 One more privilege of the historian, which the attorney-gen- 
 eral has not named, but to which his principles extend, it is now my 
 duty to claim on behalf of my client; I mean the right of republish- 
 ing, historically, those documents, whatever their original malignity 
 may be, which display the character and unfold the intentions of 
 governments, or factions, or individuals. I think my learned 
 friend will not deny that a historical compiler may innocently re- 
 publish in England the most insolent and outrageous declaration 
 of war ever published against his Majesty by a fordgn govern- 
 ment. The intention of the original author was to vilify and de- 
 grade his Majesty's government; but the intention of the compiler 
 is only to gratify curiosity, or, perhaps, to rouse just indignation 
 against the calumniator whose production he republishes. His 
 intention is not libelous — his republication is, therefore, not a libel. 
 Suppose this to be the case with Mr. Peltier. Suppose him to 
 have republished libels with a merely historical intention. In that 
 case it cannot be pretended that he is more a libeler than my 
 learned friend, Mr. Abbott,' who read these supposed libels to you 
 when he opened the pleadings. Mr. Abbott republished them to 
 you, that you might know and judge of them— Mr. Peltier, on the 
 supposition I have made, also republished them, that the public 
 might know and judge of them. 
 
 You already know that the general plan of Mr. Peltier's publi- 
 cation was to give a picture of the cabals and intrigues, of the 
 hopes and projects of French factions. It is undoubtedly a natural 
 and necessary part of this plan to republish all the serious and 
 ludicrous pieces which these factions circulate against each other. 
 The ode ascribed to Chenier or GinguenS I do really believe 
 to have been written at Paris, to have been circulated there, to 
 have been there attributed to some one of these writers, to have 
 been sent to England as their work, and as such, to have been re- 
 published by Mr. Peltier. But I am not sure that I have evidence 
 to convince you of the truth of this. Suppose that I have not, 
 will my learned friend say that my client must necessarily be con- 
 victed ? I, on the contrary, contend that it is for my learned friend 
 to show that it is not a historical republication. Such it professes 
 to be, and that profession it is for him to disprove. The profes- 
 
 ' Junior counsel for the Crown, afterward Lord Tenterden. 
 
IN BEHALF OF JEAN PELTIER. 583 
 
 sion may indeed be "a mask; " but it is for my friend to pluck off 
 the mask, and expose the hbeler, before he calls upon you for a 
 verdict of guilty. 
 
 If the general lawfulness of such republications be denied, then 
 I must ask Mr. Attorney-General to account for the long impunity 
 which English newspapers have enjoyed. I must request him to 
 tell you why they have been suffered to republish all the atrocious, 
 official and unofficial libels which have been published against his 
 Majesty for the last ten years, by the Brissots, the Marats, the Dan- 
 tons, the Robespierres, the Barreres, the Talliens, the Reubells, the 
 Merlins, the Barrases, and all that long line of bloody tyrants who 
 oppressed their own country and insulted every other which they 
 had not the power to rob. What must be the answer ? That the 
 English publishers were either innocent, if their motive was to 
 gratify curiosity, or praiseworthy, if their intention was to rouse 
 indignation against the calumniators of their country. If any 
 other answer be made, I must remind my friend of a most 
 sacred part of his duty — the duty of protecting the honest fame 
 of those who are absent in the service of their country. Within 
 these few days we have seen, in every newspaper in England, a 
 publication, called the Report of Colonel Sebastiani, in which 
 a gallant British officer [General Stuart] is charged with writing 
 letters to procure assassination. The publishers of that infamous 
 report are not, and will not be prosecuted, because their intention 
 is not to libel General Stuart. On any other principle, why have 
 all our newspapers been suffered to circulate that most atrocious 
 of all libels against the king and people of England, which pur- 
 ports to be translated from the Moniteur of the ninth of August, 
 1802 — a libel against a prince who has passed through a factious 
 and stormy rpign of forty-three years, without a single imputation 
 on his personal character; against a people who have passed 
 through the severest trials of national virtue with unimpaired glory 
 — who alone in the world can boast of mutinies without murder; 
 of triumphant mobs, without massacre; of bloodless revolutions, 
 and of civil wars unstained by a single assassination. That most 
 impudent and malignant libel which charges such a king of such 
 a people, not only with having hired assassins, but with being so 
 shameless, so lost to all sense of character, as to have bestowed on 
 these assassins, if their murderous projects had succeeded, the high- 
 est badges of public honor, the rewards reserved for statesmen and 
 heroes — the order of the garter — the order which was founded by 
 
584 SPEECH OF SIR JAMES MACKINTOSH 
 
 the heroes of Cressy and Poitiers — the garter which was worn by 
 Henry the Great and by Gustavus Adolphus, which might now be 
 worn by the hero who, on the shores of Syria [Sir Sydney Smith] 
 — the ancient theater of English chivalry — has revived the renown 
 of English valor and of English humanity — that unsullied garter 
 which a detestable libeler dares to say is to be paid as the price of 
 murder. 
 
 If I had now to defend an English publisher for the republica- 
 tion of that abominable libel, what must I have said in his defense? 
 I must have told you that it was originally published by the French 
 government in their official gazette; that it was republished by the 
 English editor to gratify the natural curiosity, perhaps to rouse the 
 just resentment of his English readers. I should have contended, 
 and, I trust, with success, that his republication of a libel was not 
 libelous; that it was lawful, that it was laudable. All that would 
 be important, at least all that would be essential in such a defense, 
 I now state to you on behalf of Mr. Peltier; and, if an English news- 
 paper may safely republish the libels of the French government 
 against his Majesty, I shall leave you to judge whether Mr. Peltier, 
 in similar circumstances, may not, with equal safety, republish the 
 libels of Chenier against the First Consul. On the one hand, you 
 have the assurances of Mr. Peltier in the context that this ode is 
 merely a republication — you have also the general plan of his work, 
 with "which such a republication is perfectly consistent. On the 
 other hand, you have only the suspicions of Mr. Attorney-General 
 that this ode is an original production of the defendant.. 
 
 lO. A SATIRE NOT A LIBEL. 
 
 But supposing that you should think it his production, and that 
 you should also think it a libel, even in that event, which I cannot 
 anticipate, I am not left without a defense. The question will still 
 be open, " Is it a libel on Bonaparte, or is it a libel on Chenier or 
 Ginguene ?" This is not an information for a libel on Chenier, and 
 if you should think that this ode was produced by Mr. Peltier, and 
 ascribed by him to Chenier, for the sake of covering that writer 
 with the odium of Jacobinism, the defendant is entitled to your ver- 
 dict of not guilty. Or, if you should believe that it is ascribed to 
 Jacobinical writers, for the sake of satirizing a French Jacobinical 
 faction, you must also, in that case, acquit him. Butler puts sedi- 
 tious and immoral language into the mouth of rebels and fanatics; 
 
IK BEHALF OF JEAJif PELTIER. 585 
 
 but Hudibras is not, for that reason, a libel on morality or govern- 
 ment. Swift, in the most exquisite piece of irony in the world (his 
 argument against the abolition of Christianity), uses the language 
 of those shallow, atheistical coxcombs whom his satire was intended 
 to scourge. The scheme of his irony required some levity and 
 even some profaneness of language. But nobody was ever so dull 
 as to doubt whether Swift meant to satirize atheism or religion. In 
 the same manner Mr. Peltier, when he wrote a satire on French 
 Jacobinism, was compelled to ascribe to Jacobins a Jacobinical 
 hatred of government. He was obliged, by dramatic propriety, to 
 put into their mouths those anarchical maxims which are com- 
 plained of in his ode. But, it will be said, these incitements to in- 
 surrection are here directed against the authority of Bonaparte. 
 This proves nothing, because they must have been so directed, if 
 the ode were a satire on Jacobinism. French Jacobins must in- 
 veigh against Bonaparte, because he exercises the powers of gov- 
 ernment. The satirist who attacks them must transcribe their 
 sentiments and adopt their language. 
 
 I do not mean to say, gentlemen, that Mr. Peltier feels any 
 affection, or professes any allegiance to Bonaparte. If I were to 
 say so, he would disown me. He would disdain to purchase an ac- 
 quittal by the profession of sentiments which he disclaims and ab- 
 hors. Not to love Bonaparte is no crime. The question is not 
 whether Mr. Peltier loves or hates the First Consul, but whether he 
 has put revolutionary language into the mouth of Jacobins with a 
 view to paint their incorrigible turbulence, and to exhibit the fruits 
 of Jacobinical revolutions to the detestation of mankind. 
 
 :i. Defendant had a legal right to satirize jacobinism. 
 
 Now, gentlemen, we cannot give a probable answer to this 
 question without previously examining two or three questions, on 
 which the answer to the first must very much depend. Is there a 
 faction in France which breathes the spirit, and is likely to employ 
 the language of this ode ? Does it perfectly accord with their char- 
 acter and views ? Is it utterly irreconcilable with the feelings, 
 opinions, and wishes of Mr. Peltier? If these questions can be 
 answered in the affirmative, then, I think, you must agree with me 
 that Mr. Peltier does not, in this ode, speak his own sentiments; 
 that he does not here vent his awn resentment against Bonaparte; 
 but that he personates a Jacobin, and adopts his language for the 
 sake of satirizing his principles. 
 
586 SPEECH OF SIR JAMES MACKINTOSH 
 
 These questions, gentlemen, lead me to those political discus- 
 sions which, generally speaking, are in a court of justice odious 
 and disgusting. Here, however, they are necessary, and I shall 
 consider them only as far as the necessities of this cause require. 
 
 12. The spirit of jacobinism not extinguished. 
 
 Gentlemen, the French Revolution — I must pause after I have 
 uttered words which present such an overwhelming idea. But I 
 have not now to engage in an enterprise so far beyond my force as 
 that of examining and judging that tremendous Revolution. I 
 have only to consider the character of the factions which it must 
 have left behind it. 
 
 The French Revolution began with great and fatal errors. These 
 errors produced atrocious crimes. A mild and feeble monarchy 
 was succeeded by bloody anarchy, which, very shortly, gave birth 
 to military despotism. France, in a few years, described the whole 
 circle of human society. 
 
 All this was in the order of nature. When every principle of 
 authority and civil discipline, when every principle which enables 
 some men to command, and disposes others to obey, was extirpated 
 from the mind by atrocious theories, and still more atrocious ex- 
 amples; when every old institution was trampled down with con- 
 tumely, and every new institution covered in its cradle with blood; 
 when the principle of property itself, the sheet-anchor of society, 
 was annihilated; when in the persons of the -new possessors, whom 
 the poverty of language obliges us to call proprietors, it was con- 
 taminated in its source by robbery and murder, and it became sep- 
 arated from that education and those manners, from that general 
 presumption of superior knowledge and more scrupulous probity 
 which form its only liberal titles to respect; when the people were 
 taught to despise everything old, and compelled to detest everything 
 new, there remained only one principle strong enough to hold soci- 
 ety together, a principle utterly incompatible, indeed, with liberty, 
 and unfriendly to civilization itself, a tyrannical and barbarous 
 principle; but, in that miserable condition of human aifairs, a 
 refuge from still more intolerable evils. I mean the principle of 
 military power which gains strength from that confusion and blood- 
 shed in which all the other elements of society are dissolved, and 
 which, in these terrible extremities, is the cement that preserves it 
 from total destruction. 
 
 Under such circumstances Bonaparte usurped the supreme 
 
IN BEHALF OF JEAN PELTIER. 687 
 
 power in France. I say usurped, because an illegal assumption of 
 power is a usurpation. But usurpation, in its strongest moral sense, 
 is scarcely applicable to a period of lawless and savage anarchy. 
 
 The guilt of military usurpation, in truth, belongs to the author 
 of those confusions which, sooner or later, give birth to such a 
 usurpation. 
 
 Thus, to use the words of the historian, "by recent as 
 well as ancient example, it became evident that illegal violence, 
 with whatever pretenses it may be covered, and whatever object it 
 may pursue, must inevitably end at last in the arbitrary and des- 
 potic government of a single person." ' But though the government 
 of Bonaparte has silenced the revolutionary factions, it has not and 
 it cannot have extinguished them. No human power could reim- 
 press upon the minds of men all those sentiments and opinions 
 which the sophistry and anarchy of fourteen years had obliterated. 
 A faction must exist which breathes the spirit of the ode now be- 
 fore you. 
 
 It is, I know, not the spirit of the quiet and submissive majority 
 of the French people. They have always rather suffered than acted 
 in the revolution. Completely exhausted by the calamities through 
 which they have passed, they yield to any power which gives them 
 repose. There is, indeed, a degree of oppression which rouses men 
 to resistance; but there is another and a greater, which wholly sub- 
 dues and unmans them. It is remarkable that Robespierre him- 
 self was safe till he attacked his own accomplices. The spirit of 
 men of virtue was broken, and there was no vigor of character left 
 to destroy him but in those daring rufiSans who were the sharers 
 of his tyranny. 
 
 As for the wretched populace who were made the blind and 
 senseless instrument of so many crimes, whose frenzy can now be re- 
 viewed by a good mind with scarce any moral sentiment but that 
 of compassion; that miserable multitude of beings, scarcely human, 
 I have already fallen into a brutish forgetfulness of the very atroci- 
 ties which they themselves perpetrated. They have already for- 
 gotten all the acts of their drunken fury. If you ask one of them, 
 who destroyed that magnificent monument of religion and art ? or 
 who perpetrated that massacre ? they stupidly answer, the Jacobins! 
 though he who gives the answer was probably one of those Jaco- 
 bins himself; so that a traveler, ignorant of French history, might 
 suppose the name of Jacobins to be the name of some Tartar horde, 
 ' Hume Hist, of England, v. 7, p. 220. 
 
588 SPEECH OF SIR JAMES MACKINTOSH 
 
 who, after laying waste France for ten years, were, at last, expelled by 
 the native inhabitants. They have passed from senseless rage to 
 stupid quiet. Their delirium is followed by lethargy. 
 
 13. A PICTURE OF THE FRENCH JACOBINS. 
 
 In a word, gentlemen, the great body of the people of France 
 have been severely trained in those convulsions and proscriptions 
 which are the school of slavery. They are capable of no mutinous, 
 and even no bold and manly political sentiments. And if this ode 
 professed to paint their opinions, it would be a most unfaithful 
 picture. But it is otherwise with those who have been the actors 
 and leaders in the scene of blood. It is otherwise with the numer- 
 ous agents of the most indefatigable, searching, multiform, and 
 omnipresent tyranny that ever existed, which pervaded every class 
 of society which had ministers and victims in every village in 
 France. 
 
 Some of them, indeed, the basest of the race, the sophists, the 
 rhetors, the poet-laureates of murder, who were cruel only from cow- 
 ardice and calculating selfishness, are perfectly willing to transfer 
 their venal pens to any government that does not disdain their in- 
 famous support. These men, republicans from servility, who pub- 
 lished rhetorical panegyrics on massacre, and who reduce plunder 
 to a system of ethics, are as ready to preach slavery as anarchy. 
 But the more daring, I had almost said, the more respectable ruf- 
 fians, cannot so easily bend their heads under the yoke. These 
 fierce spirits .have not lost 
 
 " That unconquerable will. 
 And study of revenge, immortal hate." 
 
 They leave the luxuries of servitude to the mean and dastardly 
 hypocrites, to the Belials and Mammons of the infernal faction. 
 They persue their old end of tyranny under their old pretext of 
 liberty. The recollection of their unbounded power renders every 
 inferior condition irksome and vapid; and their former atrocities 
 form, if I may so speak, a sort of moral destiny which irresistibly 
 impels them to the perpetration of new crimes. They have no 
 place left for penitence on earth. They labor under the most 
 awful proscription of opinion that ever was pronounced against 
 human beings. They have cut down every bridge by which they 
 could retreat into the society of men. Awakened from their dreams 
 
m BEHALF OF JEAIT PELTIER. 589 
 
 of democracy, the noise subsided that deafened their ears to the 
 voice of humanity; the film fallen from their eyes which hid from 
 them the blackness of their own deeds; haunted by the memory of 
 their inexpiable guilt; condemned daily to look on the faces of 
 those whom their hands made widows and orphans, they are goaded 
 and scourged by these real furies, and hurried into the tumult of 
 new crimes, which will drown the cries of remorse; or, if they be too 
 depraved for remorse, will silence the curses of mankind. Tyran- 
 nical power is their only refuge from the just vengeance of their fel- 
 low-creatures. Murder is their only means of usurping power. 
 They have no taste, no occupation, no pursuit but power and blood. 
 If their hands, are tied, they must at least have the luxury of mur- 
 derous projects. They have drunk too deeply of human blood ever 
 to relinquish their cannibal appetite. 
 
 Such a faction exists in France. It is numerous, it is powerful, 
 and it has a principle of fidelity stronger than any that ever held 
 together a society. T/iey are banded together, by despair of forgive- 
 ness, by the unanimous detestation of mankind. They are now con- 
 tained by a severe and stern government. But they still meditate 
 the renewal of insurrection and massacre; and they are prepared 
 to renew the worst and most atrocious of their crimes, that crime 
 against posterity and against human nature itself, that crime of 
 which the latest generations of mankind may feel the fatal conse- 
 quences — the crime of degrading and prostituting the sacred name 
 of liberty. 
 
 I must own, that however paradoxical it may appear, I should 
 almost think not worse, but more meanly of them if it were other- 
 wise. I must then think them destitute of that which I will not 
 call courage, because that is the name of a virtue ; but of that 
 ferocious energy which alone rescues ruffians from contempt. If 
 they were destitute of that which is the heroism of murderers, 
 they would be the lowest as well as the most abominable of beings. 
 
 It is impossible to conceive anything more despicable than 
 wretches who, after hectoring and bullying over their meek and 
 blameless sovereign and his defenseless family, whom they kept so 
 long in a dungeon trembling for their existence — whom they put to 
 death by a slow torture of three years, after playing the Repub- 
 lican and the tyrannicide to women and children, become the sup- 
 ple and fawning slaves of the first government that knows how to 
 wield the scourge with a firm hand. 
 
590 SPEECH OF SIR JAMES MACKINTOSH 
 
 14. Republicans and Jacobins distinguished. 
 
 I have used the word Republican because it is the name by 
 which this atrocious faction describes itself. The assumption of 
 that name is one of their crimes. They are no more Republicans 
 than Royalists. They are the common enemies of all human 
 society. God forbid that by the use of that word I should be 
 supposed to reflect on the members of those respectable Repub- 
 lican communities which did exist in Europe before the French 
 Revolution. That Revolution has spared many monarchies, but it 
 has spared no republic within the sphere of its destructive energy. 
 One republic only now exists in the world— a republic of English 
 blood, which was originally composed of Republican societies, 
 under the protection of a monarchy, which had, therefore, no 
 great and perilous change in their internal constitution to effect ; 
 and of which, I speak it with pleasure and pride, the inhabitants, 
 even in the convulsions of a most deplorable separation, displayed 
 the humanity as well as valor which, I trust I may say, they inher- 
 ited from their forefathers. 
 
 Nor do I mean by the use of the word " Republican" to con- 
 found this execrable faction with all those who, in the liberty of 
 private speculation, may prefer a Republican form of government. 
 I own that, after much reflection, I am not able to conceive an 
 error more gross than that of those who believe in the possibility 
 of erecting a republic in any of the old monarchical countries of 
 Europe, who believe that in such countries an elective supreme 
 magistracy can produce anything but a succession of stern tyran- 
 nies and bloody civil wars. It is a supposition which is belied by 
 all experience, and which betrays the greatest ignorance of the first 
 principles of the constitution of society. It is an error which has 
 a false appearance of superiority over vulgar prejudice ; it is 
 therefore, too apt to be attended with the most criminal rashness 
 and presumption, and too easy to be inflamed into the most im- 
 moral and anti-social fanaticism. But as long as it remains a mere 
 quiescent error, it is not the proper subject of moral disapproba- 
 tion. 
 
 If, then, gentlemen, such a faction, falsely calling itself repub- 
 lican, exists in France, let us consider whether this ode speaks their 
 sentiments, describes their character, agrees with their views. Try- 
 ing it by the principle I have stated, I think you will have no diffi- 
 culty in concluding that it is agreeable to the general plan of this 
 
IN BEHALF OF JEAN PELTIER. 591 
 
 publication to give a historical and satirical view of the Brutuses 
 and brutes of the republic — of those who assumed and disgraced 
 the name of Brutus, and who, under that name, sat as judges in 
 their mock tribunals, with pistols in their girdles, to anticipate the 
 office of the executioner on those unfortunate men whom they 
 treated as rebels, for resistance to Robespierre and Couthon. 
 
 IS- The publication cannot represent the opinions of 
 
 THE defendant, WHO IS A ROYALIST. 
 
 I come now to show you that this ode 'cannot represent the 
 opinions of Mr. Peltier. He is a French royalist. He has de- 
 voted his talents to the cause of his king. For that cause he has 
 sacrificed his fortune and hazarded his life. For that cause he is 
 proscribed and exiled from his country. I could easily conceive 
 powerful topics of royalist invective against Bonaparte; and, if Mr. 
 Peltier had called upon Frenchmen by the memory of St. Louis and 
 Henry the Great, by the memory of that illustrious family which 
 reigned over them for seven centuries, and with whom all their martial 
 renown and literary glory are so closely connected; if he had adjured 
 them by the spotless name of that Louis XVI, the martyr of his love 
 for his people, which scarce a man in France can now pronounce but 
 in the tone of pity and veneration; if he had thus called upon them 
 to change their useless regret and their barren pity into generous 
 and active indignation; if he had reproached the conquerors of 
 Europe with the disgrace of being the slaves of an upstart stranger; 
 if he had brought before their minds the contrast between their 
 country under her ancient monarch — the source and model of re- 
 finement in manners and taste — and since their expulsion, the 
 scourge and the opprobrium of humanity; if he had exhorted 
 them to drive out their ignoble tyrants and to restore their native 
 sovereign, I should then have recognized the voice of a royalist. 
 I should have recognized language that must have flowed from the 
 heart of Mr. Peltier, and I should have been compelled to acknowl- 
 edge that it was pointed against Bonaparte. 
 
 Here Mr. Mackintosh showed that the ode expressed the sentiments of a 
 Jacobin, not of a royalist. That it could not have been written by a royalist 
 who assumed a. Jacobin disguise to serve a royalist purpose, for it would then 
 have to be considered an address to Jacobins, and the fact that the name of the 
 defendant, who was an avowed enemy of Jacobinism, was prefixed to it, was 
 wholly inconsistent with such a theory. He continued : 
 
 ' For the Ode, see Appendix, p. 730. 
 
592 SPEECH OF SIR JAMES MACKINTOSH 
 
 16. Observations upon the ode. 
 
 I can not conceive it to be necessary that I should minutely 
 examine this poem to confirm my construction. There are one or 
 two passages on which I shall make a few observations. The first 
 is the contrast between the state of England and that of France, 
 of which an ingenious friend ' has favored me with a translation, 
 which I shall take the liberty of reading to you. 
 
 Her glorious fabric England rears 
 
 On law's fixed base alone ; 
 Law's guardian pow'r while each reveres, 
 England ! thy people's freedom fears 
 
 No danger from the Throne. 
 
 For there, before the almighty Law, 
 High birth, high place, with pious awe, 
 
 In reverend homage bend : 
 There man's free spirit, unconstrain'd 
 Exults, in man's best rights maintain'd. 
 Rights, which by ancient valor gain'd. 
 
 From age to age descend. 
 
 Britons, by no base fear dismay'd, 
 
 May power's worst acts arraign : 
 Does tyrant force their rights invade ? 
 They call on Law's impartial aid, 
 
 Nor call that aid in vain. 
 
 Hence, of her sacred charter proud, 
 With every earthly good endow'd, 
 
 O'er subject seas unfurl'd, 
 Britannia waves her standard wide, 
 Hence, sees her freighted navies ride 
 Up wealthy Thames' majestic tide, 
 
 The wonder of the world.' 
 
 Here, at first sight, you may perhaps think that the consistency 
 of the Jacoliin character is not supported, that the Republican dis- 
 guise is thrown off, that the Royalist stands unmasked before you ; 
 but, on more consideration, you will find that such an inference 
 would be too hasty. The leaders of the Revolution are now re- 
 duced to envy that British Constitution which, in the infatuation 
 of their presumptuous ignorance, they once rejected with scorn. 
 They are now slaves, as they themselves confess, because twelve 
 
 ' Mr. Canning. 
 
 ' It seems that the entire ode was not set out in the indictment, and these 
 particular verses do not appear. For the benefit of the reader, we give them in 
 the appendix, p. 734. 
 
IK BEHALF OF JEAN PELTIER. 593 
 
 years ago they did not believe Englishmen to be free. They can 
 not but see that England is the only popular government in 
 Europe, and they are compelled to pay a reluctant homage to the 
 justice of English principles. The praise of England is too strik- 
 ing a satire on their own government to escape them ; and I may 
 accordingly venture to appeal to all those who know anything of 
 the political circles of Paris, whether such contrasts between 
 France and England as that which I have read to you be not the 
 most favorite topics of the opponents of Bonaparte. But in the 
 very next stanza, 
 
 Cependant, encore affligee 
 
 Par I'odieuse her^dit^, 
 
 Londres de titres surcharg^e, 
 
 Londres n'a pas PEgalite. 
 
 You see, that though they are forced to surrender an unwilling 
 tribute to our liberty, they can not yet renounce all their fantastic 
 and deplorable chimeras. They endeavor to make a compromise 
 between the experience on which they can not shut their eyes, and 
 the wretched systems to which they still cling. Fanaticism is the 
 most incurable of all mental diseases ; because in all its forms, 
 religious, philosophical, or political, it is distinguished by a sort of 
 mad contempt for experience, which alone can correct the errors 
 of practical judgment. And these deihocratical fanatics still speak 
 of the odious principle of "hereditary government." They still 
 complain that we have not "equality." They know not that this 
 odious principle of inheritance is our bulwark against tyranny ; 
 that if we had their pretended equality, we should soon cease to 
 be the objects of their envy. These are the sentiments which you 
 would naturally expect from half-cured lunatics. But once more I 
 ask you, whether they can be the sentiments of Mr. Peltier? 
 Would he complain that we have too much monarchy, or too much 
 of what they call aristocracy ? If he has any prejudices against 
 the English government, must they not be of an entirely opposite 
 kind ? 
 
 Here Mr. Mackintosh showed that there was nothing in the ode which 
 could be construed as an exhortation to assassinate Napoleon. He continued : 
 
 17. The verses contain no exhortation to assassinate 
 
 Napoleon. 
 
 Having said so much on the first of these supposed libels, I 
 shall be very short on the two that remain— the verses ascribed to 
 38 
 
594 SPEECH OF SIR JAMES MACKINTOSH 
 
 a Dutch patriot, and the parody of the speech of Lepidus. In the 
 first of these, the piercing eye of Mr. Attorney General has again 
 discovered an incitement to assassinate — the most learned incite- 
 ment to assassinate that ever was addressed to such ignorant ruf- 
 fians as are most likely to be employed for such nefarious purposes ! 
 An obscure allusion to an obscure and perhaps fabulous part of 
 Roman history, to the supposed murder of Romulus, about which 
 none of us know anything, and of which the Jacobins of Paris and 
 Amsterdam probably never heard. But the apotheosis ! Here 
 my learned friend has a little forgotten himself. He seems to 
 argue as if apotheosis always presupposed death. But he must 
 kno* that Augustus, and even Tiberius and Nero, were deified 
 during their lives, and he can not have forgotten the terms in 
 which one of the court poets of Augustus speaks of his master's 
 divinity : 
 
 Prasseus divus habebitur 
 
 Augustus adjectis Britannis 
 
 Imperio. 
 
 If any modern rival of Augustus should choose that path to 
 Olympus, I think he will find it more steep and rugged than that 
 by which Pollux and Hercules climbed to the ethereal towers, and 
 that he must be content with purpling his lips with Burgundy on 
 earth, as he has very little chance of purpling them with nectar 
 among the gods. 
 
 The utmost that can seriously be made of this passage is, that 
 it is a wish for a man's death. I repeat that I do not contend for 
 the decency of publicly declaring such wishes, or even for the pro- 
 priety of entertaining them ; but the distance between such a wish 
 and a persuasive to murder is immense. Such a wish for a man's 
 death is very often little more than a strong, though, I admit, not a 
 very decent way of expressing detestation for his character. 
 
 But without pursuing this argument any further, I think myself 
 entitled to apply to these verses the same reasoning which I have 
 already applied to the first supposed libel on Bonaparte. If they 
 be the real composition of a pretended Dutch patriot, Mr. Peltier 
 may republish them innocently. If they be a satire on such pre- 
 tended Dutch patriots, they are not a libel on Bonaparte. Grant- 
 ing, for the sake of argument, that they did entertain a serious 
 exhortation to assassinate, is there anything in such an exhortation 
 inconsistent with the character of these pretended patriots ? 
 
 They who were disaffected to the mild and tolerant government 
 
m BEHALF OF JEAN PELTIER. 595 
 
 of their flourishing country, because it did not exactly square with 
 all their theoretical whimsies ; they who revolted from that admin- 
 istration as tyrannical, which made Holland one of the wonders of 
 the world for protected industry, for liberty of action and opinion, 
 and for a prosperity which I may venture to call the greatest vic- 
 tory of man over hostile elements ; they who called in the aid of 
 the fiercest tyrants that Europe ever saw, who served in the armies 
 of Robespierre, under the impudent pretext of giving liberty to 
 their country, and who have finally buried in the same grave its 
 liberty, its independence, and perhaps its national existence, they 
 are not men entitled to much tenderness from a political satirist, 
 and he will scarcely violate dramatic propriety if he impute to 
 them any language, however criminal and detestable. They who 
 could not brook the authority of their old, lazy, good-natured 
 government, are not likely to endure with patience the joke of 
 that stem domination which they have brought upon themselves, 
 and which, as far as relates to them, is only the just punishment of 
 their crimes. They who call in tyrants to establish liberty, who 
 sacrifice the independence of their country under pretense of re- 
 forming its internal constitution, are capable of everything. 
 
 I know nothing more odious than their character, unless it be 
 that of those who invoked the aid of the oppressors of Switzer- 
 land to be the deliverers of Ireland ! Their guilt has, indeed, 
 peculiar aggravations. In the name of liberty, they were willing 
 to surrender their country into the hands of tyrants, the most law- 
 less, faithless, and merciless that ever scourged Europe ; who, at 
 the very moment of their negotiation, were covered with the blood 
 of the unhappy Swiss, the martyrs of real independence and of 
 real liberty. Their success would have been the destruction of the 
 only free community remaining in Europe — of England, the only 
 bulwark of the remains of European independence. Their means 
 were the passions of an ignorant and barbarous peasantry, and a 
 civil war, which could not fail to produce all the horrible crimes 
 and horrible retaliations of the last calamity that can befall soci- 
 ety — a servile revolt. They sought the worst of ends by the most 
 abominable of means. They labored for the subjugation of the 
 world at the expense of crimes and miseries which men of human- 
 ity and conscience would have thought too great a price for the 
 deliverance of mankind. 
 
 Here Mr. Mackintosh referred to the third and last publication set out in 
 the indictment, the parody on the speech of Lepidus, and claimed that it could 
 only be reasonably construed as a libel on M. Fouch^, having no reference to 
 Bonaparte. He continued : 
 
596 SPEECH OF SIR JAMES MACKINTOSH 
 
 1 8. Free discussion the most important interest of 
 MANKIND. — The reign of Elizabeth. 
 
 Believing, as I do, that we are on the eve of a great straggle; 
 that this is only the first battle betvi^een reason and power; that 
 you have now in your hands, committed to your trust, the only re- 
 mains of free discussion in Europe, now confined to this kingdom 
 — addressing you, therefore, as the guardians of the most import- 
 ant interests of mankind; convinced that the unfettered exercise of 
 reason depends more on your present verdict than on any other 
 that was ever delivered by a jury, I cannot conclude without bring- 
 ing before you the sentiments and examples of our ancestors in 
 some of these awful and perilous situations by which Divine Provi- 
 dence has, in former ages, tried the virtue of the English nation. 
 We are fallen upon times in which it behooves us to strengthen 
 our spirits by the contemplation of great examples of constancy. 
 Let us seek for them in the annals of our forefathers. 
 
 The reign of Queen Elizabeth may be considered as the open- 
 ing of the modern history of England, especially in its connection 
 with the modern system of Europe, which began about that time to 
 assume the form that it preserved till the French Revolution. It 
 was a very memorable period, of which the maxims ought to be en- 
 graven on the head and heart of every Englishman. Philip II, at 
 the head of the greatest empire then in the world, was openly aim- 
 ing at universal domination, and his project was so far from being 
 thought chimerical by the wisest of his contemporaries, that, in the 
 opinion of the great Duke of Sully, he must have been successful, " if, 
 by a most singular combination of circumstances, he had not at the 
 same time been resisted by two such strong heads as those of Henry 
 IV and Queen Elizabeth." To the most extensive and opulent domin- 
 ions, the most numerous and disciplined armies, the most renowned 
 captains, the greatest revenue, he added also the most formidable 
 power over opinion. He was the chief of a religious faction, ani- 
 mated by the most atrocious fanaticism, prepared to second his am- 
 bition by rebellion, anarchy and regicide in every protestant State. 
 Elizabeth was among the first objects of his hostility. That wise 
 and magnanimous princess placed herself in the front of the battle 
 for the liberties of Europe. Though she had to contend at home 
 with his fanatical faction, which almost occupied Ireland, which 
 divided Scotland, and was not of contemptible strength in England, 
 she aided the oppressed inhabitants of the Netherlands in their 
 just and glorious resistance to his tyranny; she aided Henry the 
 
nsr BEHALF OF JEAN PELTIER. 597 
 
 Great in suppressing the abominable rebellion which anarchical 
 principles had excited and Spanish arms had supported in France^ 
 and after a long reign of various fortune, in which she preserved 
 her unconquered spirit through great calamities and still greater 
 dangers, She at length broke the strength of the enemy, and re- 
 duced his power within such limits as to be compatible with the 
 safety of England and of all Europe. Her only effectual ally was 
 the spirit of her people, and her policy flowed from that magnani- 
 mous nature which, in the hour of peril, teaches better lessons than 
 those of cold reason. Her great heart inspired her with a higher 
 and nobler wisdom — which disdained to appeal to the low and 
 sordid passions of her people even for the protection of their low 
 and sordid interests, because she knew, or, rather, she felt, that 
 these are effeminate, creeping, cowardly, short-sighted passions, 
 which shrink from conflict even in defense of their own mean ob- 
 jects. In a righteous cause she roused those generous affections of 
 her people which alone teach boldness, constancy and foresight, 
 and which are, therefore, the only safe guardians of the lowest as 
 well as the highest interests of a nation. In her memorable ad- 
 dress to her army, when the invasion of the kingdom was threat- 
 ened by Spain, this woman of heroic spirit disdained to speak to 
 them of their ease and their commerce, and their wealth and their 
 safety. No ! She touched another chord — she spoke of their 
 national honor, of their dignity as Englishmen, of " the foul scorn 
 that Parma or Spain should dare to invade the borders of her 
 realms." She breathed into them those grand and powerful senti- 
 ments which exalt vulgar men into heroes, which led them into the 
 battle of their country, armed with holy and irresistible enthusiasm; 
 which even cover with their shield all the ignoble interests that 
 base calculation and cowardly selfishness tremble to hazard, but 
 shrink from defending. 
 
 19. Power and importance of the press in preserving the 
 liberties of englishmen. 
 
 A sort of prophetic instinct, if I may so speak, seems to have 
 revealed to her the importance of that great instrument for rousing 
 and guiding the minds of men, of the effects of which she had no 
 experience, which, since her time, has changed the condition 
 of the world, but which few modern statesmen have thoroughly 
 understood or wisely employed; which is, no doubt, connected 
 with many ridiculous and degrading details, which has pro- 
 
598 SPEECH OF SIR JAMES MACiONTOSH 
 
 duced, and which may again produce, terrible , mischiefs, but of 
 which the influence must, after all, be considered as the most cer- 
 tain effect and the most efficacious cause of civilization, and which, 
 whether it be a blessing or a curse, is the most powerful engine that 
 a politician can move — I mean the press. It is a curious fact that, 
 in the year of the Armada, Queen Elizabeth caused to be printed 
 the first gazettes that ever appeared in England; and I own, when 
 I consider that this pode of rousing a national spirit was then ab- 
 solutely unexampled, that she could have no assurance of its effi- 
 cacy from the precedents of former times, I am disposed to regard 
 her having recourse to it as one of the most sagacious experiments, 
 one of the greatest discoveries of political genius, one of the most 
 striking anticipations of future experience that we find in history. 
 I mention it to you to justify the opinion that I have ventured to 
 state of the close connection of our national spirit with our press, 
 even our periodical press. 
 
 I cannot quit the reign of Elizabeth without laying before you 
 the maxims of her policy, in the language of the greatest and 
 wisest of men. Lord Bacon, in one part of his discourse on her 
 reign, speaks thus of her support of Holland: "But let me rest 
 upon the honorable and continual aid and relief she hath given to 
 the distressed and desolate people of the Low Countries — a people 
 recommended unto her by ancient confederacy and daily inter- 
 course, by their cause so innocent and their fortune so lament- 
 able !" In another passage of the same discourse, he thus speaks 
 of the general system of her foreign policy as the protector of 
 Europe, in words too remarkable to require any commentary. 
 " Then it is her government, and her government alone, that hath 
 been the sconce and fort of all Europe, which hath let this proud 
 nation from overrunning all. If any state be yet free from his 
 factions erected in the bowels thereof ; if there be any state where- 
 in this faction is erected that is not yet fired with civil troubles ; if 
 there be any state under his protection that enjoyeth moderate lib- 
 erty, upon whom he tyrannizeth not, it is the mercy of this re- 
 nowned Queen that standeth between them and their misfor- 
 tunes !" 
 
 20. Louis XIV. — His arraignment by French refugees 
 
 NO LIBEL. 
 
 The next great conspirator against the rights of men and of 
 nations, against the security and independence of all European 
 
IN BEHALF OF JEAN PELTIEK. 599 
 
 states, against every kind and degree of civil and religious liberty, 
 was Louis XIV. In his time the character of the English nation 
 was the more remarkably displayed, because it was counteracted 
 by an apostate and perfidious government. During great part of 
 his reign, you know that the throne of England was filled by 
 princes who deserted the cause of their country and of Europe, 
 who were the accomplices and the tools of the oppressor of the 
 world, who were even so unmanly, so unprincely, so base, as to 
 have sold themselves to his ambition ; who were content that he 
 should enslave the continent, if he enabled them to enslave Great 
 Britain. These princes, traitors to their own royal dignity and to 
 the feelings of the generous people whom they ruled, preferred the 
 condition of the first slave of Louis XIV to the dignity of the 
 first freemen of England ; yet even under these princes, the feeU 
 ings of the people of this kingdom were displayed, on a most 
 memorable occasion, toward foreign sufferers and foreign oppres- 
 sors. The revocation of the Edict of Nantes threw fifty thousand 
 French Protestants on our shores. They were received as I trust 
 the victims of tyranny ever will be in this land, which seems 
 chosen by Providence to be the home of the exile, the refuge of 
 the oppressed. They were welcomed by a people high-spirited as 
 well as humane, who did not insult them by clandestine charity ; 
 who did not give alms in secret lest their charity should be de- 
 tected by their neighboring tyrants ! No ! They were publicly 
 and nationally welcomed and relieved. They were bid to raise 
 their voice against their oppressor, and to proclaim their wrongs 
 to all mankind. They did. so. They were joined in the cry of 
 just indignation by every Englishman worthy of the name. It was 
 a fruitful indignation, which soon produced the successful resist- 
 ance of Europe to the common enemy. Even then, when Jeffreys 
 disgraced the bench whichhis lordship (Lord Ellenborough) now 
 adorns, no refugee was deterred by prosecution for libel from giv- 
 ing vent to his feelings, from arraigning the oppressor in the face 
 of all Europe. 
 
 21. The invasion of Holland an avowed attack upon the 
 liberty of the press. 
 
 During this ignominious period of our history, a war arose on 
 the continent, which cannot but present itself to the mind on such 
 an occasion as this ; the only war that was ever made on the 
 avowed ground of attacking a free press. I speak of the invasion 
 
600 SPEECH OF SIR JAMES MACKINTOSH 
 
 of Holland by Louis XIV. The liberties which the Dutch 
 gazettes had taken in discussing his conduct were the sole cause of 
 this very extraordinary and memorable war, which was of short 
 duration, unprecedented in its avowed principle, and most glorious 
 in its event for the liberties of mankind. That republic, at all 
 times so interesting to Englishmen — in the worst times of both 
 countries our brave enemies ; in their best times our most faithful 
 and valuable friends — was then charged with the defense of a free 
 press against the oppressor of Europe, as a sacred trust for the 
 benefit of all generations. They felt the sacredness of the deposit; 
 they felt the dignity of the station in which they were placed, and 
 though deserted by the un-English government of England, they 
 asserted their own ancient character, and drove out the great 
 armies and great captains of the oppressor with defeat and dis- 
 grace. Such was the result of the only war hitherto avowedly 
 undertaken to oppress a free country because she allowed the free 
 and public exercise of reason. And may the God of justice and 
 liberty grant that such may ever be the result of wars made by 
 tyrants against the rights of mankind, especially against that right 
 which is the guardian of every other. 
 
 22. William of Orange saves England from the power of 
 
 Louis XIV. 
 
 This war, gentlemen, had the effect of raising up from obscu- 
 rity the great Prince of Orange, afterward King William III, the 
 deliverer of Holland, the deliverer of England, the deliverer of 
 Europe ; the only hero who was distinguished by such a happy 
 union of fortune and virtue that the objects of his ambition were 
 always the same with the interests of humanity ; perhaps the only 
 man who devoted the whole of his life exclusively to the service of 
 mankind. This most illustrious benefactor of Europe, this " hero 
 without vanity or passion," as he has been justly and beautifully 
 called by a venerable prelate (Dr. Shipley, Bishop of St. Asaph), 
 who never made a step toward greatness without securing or ad- 
 vancing liberty, who had been made Stadtholder of Holland for 
 the salvation of his own country, was soon after made King of 
 England for the deliverance of ours. When the people of Great 
 Britain had once more a government worthy of them, they returned 
 to the feelings and principles of their ancestors, and resumed their 
 former station and their former duties as protectors of the inde- 
 pendence of nations. The people of England, delivered from a 
 
m BEHALF OF JEAK PELTIER. 601 
 
 government which disgraced, oppressed, and betrayed them, fought 
 under William as their forefathers had fought under Elizabeth, 
 and after an almost uninterrupted struggle of more than twenty- 
 years, in which they were often abandoned by fortune, but never 
 by their own constancy and magnanimity, they at length once 
 more defeated those projects of guilty ambition, boundless aggran- 
 dizement, and universal domination, which had a second time 
 threatened to overwhelm the whole civilized world. They rescued 
 Europe from being swallowed up in the gulf of extensive empire, 
 which the experience of all times points out as the grave of civil- 
 ization ; where men are driven by violent conquest and military 
 oppression into lethargy and slavishness of heart ; where, after 
 their arts have perished with the mental vigor from which they 
 spring, they are plunged by the combined power of effeminacy and 
 ferocity into irreclaimable and hopeless barbarism. Our ancestors 
 established the safety of their own country by providing for that of 
 others, and rebuilt the European system upon such firm founda- 
 tions that nothing less than the tempest of the French Revolution 
 could have shaken it. 
 
 23. Animadversion of the English press on the projects of 
 
 Louis XIV. 
 
 This arduous struggle was suspended for a short time by the 
 peace of Ryswick. The interval between that treaty and the war 
 of the succession enables us to judge how our ancestors acted in a 
 very peculiar situation, which requires maxims of policy very 
 different from those which usually govern states. The treaty which 
 they had concluded was in truth and substance only a truce. The 
 ambition and the power of the enemy were such as to render real 
 peace impossible. And it was perfectly obvious that the disputed 
 succession of the Spanish Monarch would soon render it no longer 
 practicable to preserve even the appearance of amity. It was 
 desirable, however, not to provoke the enemy by unseasonable 
 hostility ; but it was still more desirable, it was absolutely neces- 
 sary, to keep up the national jealousy and indignation against him 
 who was soon to be their open enemy. It might naturally have 
 been apprehended that the press might have driven into premature 
 war a Prince who, not long before, had been violently exasperated 
 by the press of another free country. I have looked over the 
 political publications of that time with some care, and I can ven- 
 ture to say that at no period were the system and projects of Louis 
 
602 SPEECH OF SIR JAMES MACKINTOSH 
 
 XIV animadverted on with more freedom and boldness than dur- 
 ing that interval. Our ancestors and the heroic Prince who gov- 
 erned them did not deem it wise policy to disarm the national mind 
 for the sake of prolonging a truce. They were both too proud 
 and too wise to pay so great a price for so small a benefit. 
 
 24. Influence of newspapers on domestic and foreign 
 
 politics. 
 
 In the course of the eighteenth century, a great change took 
 place in the state of political discussion in this country. I speak 
 of the multiplication of newspapers. I know that newspapers are 
 not very popular in this place, which is, indeed, not very surpris- 
 ing, because they are known here only by their faults. Their pub- 
 lishers come here only to receive the chastisement due to their 
 offenses. With all their faults, I own I cannot help feeling some 
 respect for whatever is a proof of the increased curiosity and in- 
 creased knowledge of mankind; and I cannot help thinking that if 
 somewhat more indulgence and consideration were shown for the 
 difficulties of their situation, it might prove one of the best cor- 
 rectives of their faults, by teaching them that self-respect which is 
 the best security for liberal conduct toward others. But however 
 that may be, it is very certain that the multiplication of these 
 channels of popular information has produced a great change in 
 the state of our domestic and foreign politics. At home, it has, 
 in truth, produced a gradual revolution in our government. By 
 increasing the number of those who exercise some sort of judg- 
 ment on public affairs, it has created a substantial democracy, in- 
 finitely more important than those democratical forms which have- 
 been the subject of so much contest. So that I may venture to 
 say, Englan4.has not only in its forms the most democratical gov- 
 ernment that ever existed in a great country, but in substance has 
 the most democratical government that ever existed in any country: 
 if the most substantial democracy be that state in which the great- 
 est number of men feel an interest and express an opinion upon 
 political questions, and in which the greatest number of judgments 
 and wills concur in influencing public measures. 
 
 The same circumstances gave great additional iiriportance to 
 our discussion of continental politics. That discussion was no 
 longer, as in the preceding century, confined to a few pamphlets, 
 written and read only by men of education and rank, which 
 reached the multitude very slowly and rarely. In newspapers an 
 
IN BEHALF OF JEAN PELTIER. 603 
 
 almost daily appeal was made, directly or indirectly, to the judg- 
 ment and passions of almost every individual in the kingdom, upon 
 the measures and principles not only of his own country, but of 
 every state in Europe. Under such circumstances, the tone of 
 these publications, in speaking of foreign governments, became a 
 matter of importance. You will excuse me, therefore, if, before I 
 conclude, I remind you of the general nature of their language on 
 one or two very remarkable occasions, and of the boldness with 
 which they arraigned the crimes of powerful sovereigns, without 
 any check from the laws and magistrates of their own country. 
 This toleration, or rather this protection, was too long and uniform 
 to be accidental. I am, indeed, very much mistaken, if it be not 
 founded upon a policy which this country cannot abandon without 
 sacrificing her liberty and endangering her national existence. 
 
 25. Arraignment by the press of the crime against Poland. 
 
 The first remarkable instance which I shall choose to state of 
 the unpunished and protected boldness of the English press, of the 
 freedom with which they animadverted on the policy of powerful 
 sovereigns, is the partition of Poland in 1772; an act not, perhaps, 
 so horrible in its means, nor so deplorable in its immediate effects, 
 as some other atrocious invasions of national independence which 
 have followed it ; but the most abominable in its general tendency 
 and ultimate consequences of any political crime recorded in his- 
 tory; because it was the first practical breach in the system of 
 Europe, the first example of atrocious robbery perpetrated on un- 
 offending countries which have been since so liberally followed, 
 and which has broken down all the barriers of habit and principle 
 which guarded defenseless states. The perpetrators of this atro- 
 cious crime were the most powerful sovereigns of the continent, 
 whose hostility it certainly was not the interest of Great Britain 
 wantonly to incur. They were the most illustrious princes of their 
 age, and some of them were, doubtless, entitled to the highest 
 praise for their domestic administration, as well as for the brilliant 
 qualities which distinguished their characters. But none of these 
 circumstances, no dread of their resentment, no admiration of 
 their talents, no consideration for their rank, silenced the animad- 
 version of the English press. Some of you remember, all of you 
 know, that a loud and unanimous cry of reprobation and execra- 
 tion broke out against them from every part of this kingdom.. It 
 was perfectly uninfluenced by any considerations of our own mere 
 
604: SPEECH OF SIR JAMES MACKINTOSH 
 
 national interest, which might perhaps be supposed "to be rather 
 favorably affected by that partiti6n. It was not, as in some 
 other countries, the indignation of rival robbers, who were ex- 
 cluded from their share of the prey. It was the moral anger of 
 disinterested spectators against atrocious crimes, the gravest and 
 the most dignified moral principle which the God of justice has 
 implanted in the human heart; that of which the dread is the only 
 restraint on the actious of powerful criminals, and of which the 
 promulgation is the only punishment that can be inflicted on them. 
 It is a restraint which ought not to be weakened. It is a punish- 
 ment which no good man can desire to mitigate. 
 
 That great crime was spoken of as it deserved in England. 
 Robbery was not described by any courtly circumlocutions. Ra- 
 pine was not called policy; nor was the oppression of an innocent 
 people termed a mediation in their domestic differences. No 
 prosecutions, no criminal informations followed the liberty and the 
 boldness of the language then eniployed. No complaints ever ap- 
 pear to have been made from abroad, much less any insolent 
 menaces against the free constitution which protected the English 
 press. The people of England were too long known throughout 
 Europe for the proudest potentate to expect to silence our press 
 by such means. 
 
 I pass over the sfecond- partition of Poland in 1792. You all 
 remember what passed on that occasion, the universal abhorrence 
 expressed by every man and every writer of every party, the suc- 
 cors that were publicly preparing by large bodies of individuals of 
 all parties for the oppressed Poles. 
 
 I hasten to the final dismemberment of that unhappy kingdom, 
 which seems to me the most striking example in our history of the 
 habitual, principled, and deeply rooted forbearance of those who 
 administer the law toward political writers. We were engaged in 
 the most extensive, bloody, and dangerous war that this country 
 ever knew ; and the parties to the dismemberment of Poland were 
 our allies, and our only powerful and effective allies. We had 
 every motive of policy to court their friendship. Every reason of 
 state seemed to require that we should not permit them to be abused 
 and villified by English writers. What was the fact ? Did any 
 Englishman consider himself at liberty, on account of temporary 
 interests, however urgent, to silence those feelings of humanity and 
 justice which guard the certain and permanent interests of all 
 countries ? You all remember that every voice, and every pen. 
 
m BEHALF OF JEAN PELTIER. 605 
 
 and eve;ry press in England were unceasingly employed to brand 
 that abominable robbery. You remember that this was not con- 
 fined to private writers, but that the same abhorrence was expressed 
 by every member of both Houses of Parliament who was not under 
 the restraints of ministerial reserve. No minister dared even to 
 blame the language of honest indignation which might be very in- 
 convenient to his most important political projects ; and I hope I 
 may venture to say that no English assembly would have endured 
 such a sacrifice of eternal justice to any miserable interest of an 
 hour. Did the law officers of the Crown venture to come into a 
 court of justice to complain of the boldest of the publications of 
 that time ? They did not. I do not say that they felt any disposi- 
 tion to do so. I believe that they could not. But I do say that if 
 they had ; if they had spoken of the necessity of confining our 
 political writers to cold narrative and unfeeling argument ; if they 
 had informed the jury that they did not prosecute history, but 
 invective ; -that if private writers be allowed at all to blame great 
 princes, it must be with moderation and^ decorum; the sound heads 
 and honest hearts of an English jury would have confounded such 
 sophistry, and declared by their verdict that moderation of lan- 
 guage is a relative term, which varies with the subject to which it 
 is applied ; that atrocious crimes are not to be related as calmly 
 and coolly as indifferent or trifling events ; that if there be a de- 
 corum due to exalted rank and authority, there is also a much 
 more sacred decorum due to virtue and to human nature, which 
 would be outraged and trampled under foot by speaking of guilt 
 in a lukewarm language, falsely called moderate. 
 
 26. The invasion of Switzerland ; — England an asylum 
 for its oppressed heroes. 
 
 Soon after, gentlemen, there followed an act, in comparison 
 with which all the deeds of rapine and blood perpetrated in the 
 world are innocence itself — the invasion and destruction of Swit- 
 zerland, that unparalleled scene of guilt and enormity; that unpro- 
 voked aggression against an innocent country, which had been the 
 sanctuary of peace and liberty for three centuries ; respected as a 
 sort of sacred territory by the fiercest ambition ; raised, like its 
 own mountains, beyond the region of the storms which raged 
 around on every side ; the only warlike people that never sent forth 
 armies to disturb their neighbors ; the only government that ever 
 accumulated treasures without imposing taxes, an innocent treas- 
 
606 SPEECH OF SIR JAMES MACKINTOSH 
 
 ure, unstained by the tears of the poor, the inviolate patrimony of 
 the commonwealth, which attested the virtue of a long series of 
 magistrates, but which at length caught the eye of the spoiler, and 
 became the fatal occasion of their ruin. 
 
 Gentlemen, the destruction of such a country,' " its cause so in- 
 nocent and its fortune so lamentable !" made a deep impression on 
 the people of England. I will ask my learned friend if we had 
 then been at peace with the French republic, whether we must 
 have been silent spectators of the foulest crimes that ever blotted 
 the name of humanity! whether we must, like cowards and slaves, 
 have repressed the compassion and indignation with which that hor- 
 rible scene of tyranny had filled our hearts ? Let me suppose, gentle- 
 men, that Aloys Reding, who has displayed in our times the sim- 
 plicity, magnanimity, and piety of ancient heroes, had, after his 
 glorious struggle, honored this kingdom by choosing it as his 
 refuge; that after performing prodigies of valor at the Tiead of his 
 handful of heroic peasants on the field of Morgarten, where his 
 ancestor, the Landmann Reding, had, five hundred years before, 
 defeated the first oppressors of Switzerland, he had selected this 
 country to be his residence; as the chosen abode of liberty, as the 
 ancient and inviolable asylum of the oppressed, would my learned 
 friend have had the boldness to have said to this hero " that he 
 must hide his tears " (the tears shed by a hero over the ruins of his 
 country!) "lest they might provoke the resentment of Reubell or 
 Rapinat ! that he must smother the sorrow and the anger with which 
 his heart was loaded; that he must breathe his murmurs low, lest 
 they might be overheard by the oppressor! " Would this have been 
 the language of my learned friend ? I know that it would not. I 
 know that by such a supposition I have done wrong to his honor- 
 able feelings, to his honest English heart. I am sure that he knows, 
 as well as I do, that a nation which should thus receive the op- 
 pressed of other countries would be preparing its own neck for the 
 yoke. He knows the slavery which such a nation would deserve, 
 and must speedily incur. He knows that sympathy with the un- 
 merited sufferings of others, and disinterested anger against their 
 oppressors, are, if I may so speak, the masters which are appointed 
 by Providence to teach us fortitude in the defense of our own rights; 
 that selfishness is a dastardly principle, which betrays its charge 
 and flies from its post; and that those only can defend themselves 
 with valor who are animated by the moral approbation with which 
 
 ' Switzerland. 
 
ET BEHALF OF JEAjST PELTIEE. 607 
 
 they can survey their sentiments towards others, who are ennobled 
 in their own eyes by a consciousness that they are fighting for jus- 
 tice as well as interest; a consciousness which none can feel but 
 those who have felt for the wrongs of their brethren. These are 
 the sentiments which my learned friend would have felt. He would 
 have told the hero: "Your confidence is not deceived; this is still 
 that England, of which the history may, perhaps, have contributed 
 to fill your heart with the heroism of liberty. Every other country 
 of Europe is crouching under the bloody tyrants who destroyed 
 your country. We are unchanged; we are still the same people 
 which received, with open arms, the victims of the tyranny of 
 Philip II and Louis XIV. We shall not exercise a cowardly and 
 clandestine humanity! Here we are not so dastardly as to rob you 
 of your greatest consolation. Here, protected by a free, brave and 
 high-minded people, you may give vent to your indignation; you 
 may proclaim the crimes of your tyrants, you may devote them to 
 the execration of mankind; there is still one spot upon earth in 
 which they are abhorred, without being dreaded! " 
 
 27. The reign of Robespierre. — Illustrations to show the 
 
 FALLACY of the THEORY OF THE PROSECUTION. 
 
 I am aware, gentlemen, that I have already abused your indul- 
 gence, but I must entreat you to bear with me for a short time 
 longer, to allow me to suppose a case which might have occurred, 
 in which you will see the horrible consequences of enforcing rigor- 
 ously principles of law, which I cannot counteract, against political 
 writers. We might have been at peace with France during the 
 whole of that terrible period which elapsed between August, 1792 
 and 1794, which has been usually called the reign of Robespierre ! 
 The only series of crimes, perhaps, in history which, in spite of 
 the common disposition to exaggerate extraordinary facts, has been 
 beyond measure underrated in public opinion. I say this, gentle- 
 men, after an investigation which, I think, entitles me to affirm it 
 with confidence. Men's minds were oppressed by atrocity and the 
 multitude of crimes ; their humanity and their indolence took 
 refuge in skepticism from such an overwhelming mass of guilt ; 
 and the consequence was, that all these unparalleled enormities, 
 though proved not only with the fullest historical but with the 
 strictest judicial evidence, were at the time only half believed and 
 "are now scarcely half remembered. When these atrocities were 
 
608 SPEECH OF SIR JAMES MACKINTOSH 
 
 daily perpetrating, of which the greatest part are as little known 
 to the public in general as the campaigns of Genghis Khan, but 
 are still protected from the scrutiny of men by the immensity of 
 those voluminous records of guilt in which they are related, and 
 under the mass of which they will be buried till some historian be 
 found with patience and courage enough to drag them forth into 
 light, for the shame indeed, but for the instruction of mankind — 
 when these crimes were perpetrating, which had the peculiar 
 malignity, from the pretexts with which they were covered, of mak- 
 ing the noblest objects of human pursuit seem odious and detest- 
 able ; which has almost made the names of liberty, reformation, 
 and humanity synonymous with anarchy, robbery, and murder ; 
 which thus threatened not to extinguish every principle of improve- 
 ment, to arrest the progress of civilized society, and to disinherit 
 future generations of that rich succession, which they were entitled 
 to expect from the knowledge and wisdom of the present, but to 
 destroy the civilization of Europe, which never gave such a proof 
 of its vigor and robustness as in being able to resist their destruc- 
 tive power — when all these horrors were acting in the greatest em- 
 pire of the continent, I will ask my learned friend, if we had then 
 been at peace with France, how English writers were to relate them 
 so as to escape the charge of libeling a friendly government ? 
 
 When Robespierre, in the debates in the National Convention 
 on the mode of murdering their blameless sovereign, objected to the 
 formal and tedious mode of murder called a trial, and proposed to 
 put him immediately to death, " on the principles of insurrection," 
 because to doubt the guilt of the king would be to doubt of the in- 
 nocence of the convention; and, if the king were not a traitor, the 
 convention must be rebels, would my learned friend have had an 
 English writer state all this with " decorum and moderation 1 " 
 Would he have had an English writer state that though this reason- 
 ing was not perfectly agreeable to our national laws, or, perhaps, 
 to our national prejudices, yet it was not for him to make any 
 observations on the judicial proceedings of foreign States ? 
 
 When Marat, in the same convention, called for two hundred 
 and seventy thousand heads, must our EngHsh writers have said 
 that the remedy did, indeed, seem to their weak judgment rather 
 severe; but that it was not for them to judge the conduct of so 
 illustrious an assembly as the National Convention, or the sugges- 
 tions of so enlightened a statesman as M. Marat ? 
 
 When that convention resounded with applause at the news of 
 
m BEHALF OF JEAI? PELTIER. 609 
 
 several hundred aged priests being thrown into the Loire, and par- 
 ticularly at the exclamation of Carrier, who communicated the in- 
 telligence, "What a revolutionary torrent is the Loire" — when 
 these suggestions and narrations of murder, which have hitherto 
 been only hinted and whispered in the most secret cabals, in the 
 darkest caverns of banditti, were triumphantly uttered, patiently 
 endured, and even loudly applauded by an assembly of seven hun- 
 dred men, acting in the sight of all Europe, would my learned 
 friend have wished that there had been found in England a single 
 writer so base as to deliberate upon the most safe, decorous, and 
 polite manner of relating all these things to his countrymen ? 
 
 When Carrier ordered five hundred children under fourteen 
 years of age to be shot, the greater part of whom escaped the fire 
 from their size; when the poor victims ran for protection to the 
 soldiers, and were bayoneted clinging around their knees ! would 
 my friend — but I cannot pursue the strain of interrogation. It is 
 too much. It would be a violence which I cannot practice on my 
 own feelings. It v/ould be an outrage to my friend. It would be 
 an insult to humanity. No! Better, ten thousand times better, 
 would it be that every press in the world were burned; that the 
 very use of letters were abolished; that we were returned to the 
 honest ignorance of the rudest times, than that the results of civili- 
 zation should be made subservient to the purposes of barbarism; 
 than that literature should be employed to teach a toleration for 
 cruelty, to weaken moral hatred for guilt, to deprave and brutalize 
 the human mind. I know that I speak my friend's feelings as well 
 as my own, when I say God forbid that the dread of any punish- 
 ment should ever make any Englishman an accomplice in so cor- 
 rupting his countrymen, a public teacher of depravity and bar- 
 barity! 
 
 Mortifying and horrible as the idea is, I must remind you, gen- 
 tlemen, that even at that time, even under the reign of Robespierre, 
 my learned friend, if he had then been attorney-general, might 
 have been compelled, by some most deplorable necessity, to have 
 come into this court to ask your verdict against the libelers of 
 Barrere and Collot d'Herbois. Mr. Peltier then employed his tal- 
 ents against the enemies of the human race, as he has uniformly 
 and bravely done. I do not believe that any peace, any political 
 considerations, any fear of punishment would have silenced him. 
 He has shown too much honor, and constancy, and intrepidity, to 
 be shaken by such circumstances as these. 
 
GIO SPEECH OF SIR JAMES MACKINTOSH 
 
 My learned friend might then have been compelled to have filed 
 a criminal information against Mr. Peltier, for " wickedly and ma- 
 liciously intending to vilify and degrade Maximilian Robespierre, 
 President of the Committee of Public Safety of the French Re- 
 public." He might have been reduced to the sad necessity of ap- 
 pearing before you to belie his own better feelings, to prosecute 
 Mr. Peltier for publishing those sentiments which my friend him- 
 self had a thousand times felt, and a thousand times expressed. 
 He might have been obliged even to call for punishment upon Mr. 
 Peltier for language which he'and all mankind would forever des- 
 pise Mr. Peltier if he were not to employ. Then, indeed, gentle- 
 men, we should have seen the last humiliation fall on England; the 
 tribunals, the spotless and venerable tribunals of this free country 
 reduced to be the ministers of the vengeance of Robespierre! 
 What could have rescued us from this last disgrace ? The honesty 
 and courage of a jury. They would have delivered the judges of 
 this country from the dire necessity of inflicting punishment on a 
 brave and virtuous man, because he spoke truth of a monster. 
 They would have despised the threats of a foreign tyrant, as their 
 ancestors braved the power of oppression at home. 
 
 In the court where we are now met, Cromwell twice sent a satir- 
 ist on his tyranny to be convicted and punished as a libeler; and in 
 this court, almost in sight of the scaffold streaming with the blood 
 of his sovereign, within hearing of the clash of his bayonets which 
 drove out Parliament with contumely, two successive juries rescued 
 the intrepid satirist [Lilburne] from his fangs, and sent out with 
 defeat and disgrace the usurper's attorney-general from what he 
 had the insolence to call his court! Even then, gentlemen, when 
 all law .and liberty were trampled under the feet of a military ban- 
 ditti; when those great crimes were perpetrated on a high place 
 and with a high hand against those who were the objects of public 
 veneration, which, more than anything else, break their spirits and 
 confound their moral sentiments, obliterate the distinctions between 
 right and wrong in their understanding, and teach the multitude to 
 feel no longer any reverence for that justice which they thus see 
 triumphantly dragged at the chariot- wheels of a tyrant; even then, 
 when this unhappy country, triumphant, indeed, abroad, but en- 
 slaved at home, had no prospect but that of a long succession of 
 tyrants wading through slaughter to a throne — even then, I say, when 
 all seemed lost, the unconquerable spirit of English liberty survived in 
 the hearts of English jurors. That spirit is, I trust in God, not ex- 
 
IN BEHALF OF JEAN PELTIER. 611 
 
 tinct; and, if any modern tyrant were, in the drunkenness of his 
 insolence, to hope to overawe an English jury, I trust and I believe 
 that they would tell him: "Our ancestors braved the bayonets of 
 Cromwell; we bid defiance to yours. Contempsi Catiline gladios — 
 non pertimescam tuosJ"^ 
 
 What could be such a tyrant's means of overawing a jury ? As 
 long as their country exists, they are girt round with impenetrable 
 armor. Till the destruction of their country, no danger can fall 
 upon them for the performance of their duty, and I do trust that 
 there is no Englishman so unworthy of life as to desire to outlive 
 England. But, if any of us are condemned to the cruel punishment 
 of surviving our country — if, in the inscrutable counsels of Provi- 
 dence, this favored seat of justice and liberty, this noblest work of 
 human wisdom and virtue, be destined to destruction, which I shall 
 not be charged with national prejudice for saying, would be the 
 most dangerous wound ever inflicted on civilization; at least let us 
 carry with us into our sad exile the consolation that we ourselves 
 have not violated the rights of hospitality to exiles — that we have 
 not torn from the altar the suppliant who claimed protection as the 
 voluntary victim of loyalty and conscience. 
 
 Gentlemen, I now leave this unfortunate gentleman in your 
 hands. His character and his situation might interest your 
 humanity; but, on his behalf, I only ask justice from ,you. I only 
 ask a favorable construction of what cannot be said to be more 
 than ambiguous language, and this you will soon be told, from the 
 highest authority, is a part of justice. 
 
 The attorney-general then closed the case for the Crown. He began by re- 
 ferring to the speech of the opposing counsel. He said: " In rising, gentlemen, 
 "to address myself to you, on the part of the prosecution, after your attention 
 "has been so long rivetted to one of the most splendid displays of eloquence I 
 " ever had occasion to hear ; after your understandings have been so long daz- 
 " zled by the contemplation of that most splendid exhibition, I cannot but fear 
 " that, whatever the feeble light of such understandings as mine present to you, I 
 " can scarcely feel a hope of making any impression on your senses. And if I 
 " felt, on this occasion, that there was any necessity to answer much of my 
 "learned friend's. speech, I should feel myself embarked in an undertaking in 
 *' which it was absolutely necessary I should fail." When he had finished 
 
 ' " Defend! rempublicam adolescens; non deseram senex: contempsi Cati- 
 linse gladios; non pertimescam tuos." — I defended the republic in my youth, I 
 will not desert her in my age; I have despised the daggers of Catiline, and I 
 shall not fear yours.— [Cicero to Anthony, at the close of his second oration 
 against him.] 
 
612 SPEECH OF SIR JAMES MACKINTOSH. 
 
 his address, Lord Ellenborough charged the jury strongly against the prisoner. 
 He took occasion to say: "Gentlemen, I trust your verdict will strengthen the 
 "relations by which the interests of this country are connected with those of 
 " France, and that it will illustrate and justify, in every quarter of the world, the 
 " conviction that has been long and universally entertained of the unsullied 
 "purity of British judicature, and the impartiality by which their decisions are 
 " uniformly governed." The jury, without retiring from the box, immediately 
 returned a verdict of guilty. 
 
SPEECH OF WILLIAM C. PLUNKET. 
 
 Opening for the Crown in Rex v. Forbes and Others. — 
 Conspiracy and Riot. 
 
 IN THE COURT OF KING'S BENCH, DUBLIN, HILARY TERM, 
 3D GEORGE IV, FEBRUARY 3d, 1823. 
 
 Analysis of Mk. Plunket's Speech. 
 
 I. Nature of the offense charged. — Object of 
 
 the prosecution. 
 ■£. Motive of the Attorney-General in filing 
 
 an ex o^cio information. 
 
 3. The legality of the proceeding. 
 
 4. Statement of the case relied upon as a 
 
 precedent 
 
 5. The charges not intended as a protest 
 
 against the Society of Orangemen. 
 
 6. Panegyric on William of Orange. 
 
 7. Political events in which the conspiracy 
 
 had its origin. 
 
 8. William's campaign in Ireland conferred 
 
 upon its people blessings in disguise. 
 
 9. The visit of George IV to Ireland. 
 
 10. Lord Wellesley commended. — Defense 
 of his character. 
 
 1 r. The object of Lord Wellesley in prevent- 
 ing the decoration of King William's 
 statue. 
 
 12. Legal methods resorted to as the only 
 
 means of preventing it. 
 
 13. Narration of the facts constituting the 
 
 charges against the defendants. 
 
 14. The action of the attorney-general an 
 
 exercise of wise discretion. 
 
 About no figure in history have clustered such bitter memories and deadly 
 feuds, as are associated with Macaulay's favorite hero, the Prince of Orange, 
 afterwards William the Third. As no man has ever won more genuine and 
 profound admiration and reverence, so none has ever occasioned more deep- 
 seated and lasting animosities. The recollections of his campaign in Ireland are 
 the fruitful theme of religious strife, which has been kept alive till our own time. 
 No battle has ever been fought, the anniversary of which has been so enthusias- 
 tically observed, as the battle of the Boyne. It is celebrated in song as well as in 
 story, and the stirring music is invariably the signal for violence and bloodshed. 
 As often as the anniversary recurs, the calendars of criminal courts, not only in 
 Ireland, but elsewhere, exhibit, as a legitimate sequel, numerous informations 
 and indictments for murder and assault, and the unfortunate sufiferers, go to 
 swell the long list of killed and wounded, who have, from time to time, revived 
 the memory of this famous engagement. And this spectacle, strange as it may 
 seem, is frequently repeated on the 12th of July, in our country and in our 
 own age. 
 
 It is also true that the political results of the battle of the Boyne are still 
 felt in Ireland. Penal laws against Catholics have disgraced the English statute 
 book for more than a century. Consequently Irish politics became, in one sense, 
 narrowed to an issue between Catholics and Anti-Catholics; the friends of the 
 
 [613] 
 
614 SPEECH OF WILLIAM CONYNGHAM PLUNKET 
 
 fonner, among whom were very many staunch Protestants, advocated the re- 
 moval of political disabilities from their oppressed countrymen, and demanded 
 the complete'restoration of their civil and constitutional rights. 
 
 William Conyngham Plunket, the son of a Presbyterian minister, became 
 attached to the liberal party, and labored consistently throughout his long and 
 honorable career for Catholic emancipation. When George the Fourth came to 
 the throne, he paid a friendly visit to Ireland, and was received everywhere with 
 the most profound reverence and enthusiasm by men of all parties and sects. 
 He sent Lord Wellesley to Ireland, as Lord Liteutenant, and that minister de- 
 termined to treat all men alike, without respect to creed or opinion. He de- 
 sired, if possible; to break the ascendency of the Orange society, because he 
 believed that its custom of celebrating the achievements of King William tended 
 to keep fresh the bitterness of religious feuds. 
 
 In a public square in the city of Dublin, known as College Green, stands a 
 statue of William the Third. For years it had been the custom of the Orange- 
 men to show their respect for the memory of the illustrious monarch by decorat- 
 ing this image on the 4th of November, in honor of his birth, and the 12th 
 of July, in honor of his victory at the Boyne. Lord Wellesley determined to 
 abolish these ceremonies, and finally resorted to legal methods to accomplish his 
 purpose. This course aroused the hatred and indignation of a certain element 
 of the Protestant community. In order to show their contempt for the Lord 
 Lieutenant, a, number of Orangemen arranged to insult him publicly. They 
 seized the opportunity of his visit to the theatre. On the evening of December 
 14th, 1822, they early assembled in the galleries, and began to hiss and hoot as 
 soon as the Lord Lieutenant entered; and after he had taken his seat in the box, 
 hurled at him all sorts of missiles. One of the party threw an empty whisky 
 bottle, which struck the chair on which Lord Wellesley sat, and glanced off on 
 to the stage. From this circumstance the affair was known as the "bottle riot." 
 The parties were arrested, but such was the state of public feeling that the grand 
 jury threw out the indictments and refused to find a true bill against them. 
 
 Notwithstanding the popular sentiment, Mr. Plunket determined to sustain 
 fhe dignity of his friend, the Lord Lieutenant, and resolutely assumed the re- 
 sponsibility of filing, in his official capacity as attorney-general, an ex ojicio 
 information against the accused, under which they were brought to trial on the 
 3d of February, 1824, in the Court of King's Bench, in the city of Dublin.' 
 
 Lord Plunket, as a lawyer, was considered the leader of the Dublin bar at 
 its golden age; as an advocate he was comparable only with Erskine; as a states- 
 man he ranked among the foremost of his age ; as an orator he has not been sur- 
 passed by any of its contemporaries. " His oratory," says a writer in the Edin- 
 burgh Review, "was of a very high kind; in perfect mastery of the topics it 
 touched; in fullness and accuracy of information; in reasoning, not rapid and 
 vehement, but earnest, vigorous and sustained; in the dignity and propriety of 
 its diction, and in the occasional beauty of its illustrations — it has not been ex- ' 
 celled in the British Senate." As a chancery lawyer he was unrivaled, and Sheil 
 has remarked, that his arguments in important equity causes were most extraordi- 
 
 ' For a statement of the details of the charge, names of the prisoners, the 
 counsel, and the justices who presided, see post, pp. 641, 642. 
 
IN REX V. FORBES AND OTHERS. 615 
 
 nary exhibitions of human intellect. Through the tedious mazes of purely legal 
 discussion, his poetical fancy never forsakes him, but enriches his speech, like 
 exquisite gilding. The following, from one of his arguments, illustrates his deli- 
 cate fancy. Referring to the wisdom of the rule that long possession raises a legal 
 presumption as to the validity of the title, he said: " Time is the great destroyer 
 of evidence, but he is also the great protector of titles. If he comes with a scythe 
 in one hand to mow down the muniments of our possessions, he holds an hour- 
 glass in the other from which he incessantly metes out the portions of duration 
 that are to render those muniments no longer necessary.'' 
 
 His speech on the present occasion contains many beautiful and striking il- 
 lustrations, and displays his wonderful skill and ability as an advocate. In order 
 not to make his remarks odious to the majority, he abstains from fierce denunci- 
 ation against the Orange societies, and pays a tribute to the memory of King 
 William, which, for graceful and elegant expression, is worthy of his great powers 
 as an advocate and orator. This case is rendered more interesting from the fact 
 that his conduct in presenting the ex officio information against the accused, after 
 the grand jury had refused to find a bill, was made the subject of a motion for a 
 vote of censure in the House of Commons, and Plunket's vindication on that oc- 
 casion was complete and overwhelming. He literally carried everything before 
 him, and his address in his own defense has been regarded as one of the most 
 impassioned specimens of eloquence ever delivered in Parliament. He closed 
 with these simple words: " My public conduct and private character have been 
 alike assailed. I will retire, so that the House may more freely and unrestrain- 
 edly consider the question. My public conduct I consign to the justice of this 
 House; my private character I leave to its honor." In opening for the Crown, 
 Mr. Plunket said : 
 
 My Lords, and Gentlemen of the Jury: — It becomes now 
 my duty to lay before you the case on behalf of the Crown, and to 
 put you in possession of the grounds on which the present prosecu- 
 tion has been instituted, and of the evidence by which it is in- 
 tended to be supported. It has often been my lot, in the eventful 
 history of this country, to appear in the character of a public 
 prosecutor, and still more frequently to be a witness of the course 
 and conduct of public prosecutions. But certainly never in my 
 life have I approached a court of justice with sensations of more 
 deep anxiety, or with a more intense feeling of the importance of 
 the subject to be decided on, than I feel at the present moment. 
 It is a case, my Lords and gentlemen, not touching the life of the 
 parties; the offense as laid amounting only to a misdemeanor. It 
 is undoubtedly, however, to them a case of no small importance; 
 involving them, if the facts charged be proved, in very heavy penal 
 consequences. But with respect to the public at large, it is a case 
 of as deep and vital importance, as for the last fifty years has been 
 brought under the consideration of a court and of a jury. It is a 
 
618 SPEECH OF WILLIAM CONYNGHAM PLUNKET 
 
 country. Before I proceed to trout^e your lordships with any ob- 
 servation upon the exact nature and on the legality of this proceed- 
 ing, I wish to disembarrass the case of a few topics which may at- 
 tach to it. In the proceeding which I have thought it my duty to 
 institute, though I have been governed by my strong impression 
 that public justice had not been effected, I do not involve in this 
 conclusion any imputation on the sheriff who returned the grand 
 jury, still less on the grand jury themselves who have acted on their 
 oaths in throwing out those bills. For the purposes of the present 
 trial, whatever opinions I may entertain on that subject, I have no 
 right to advert to them. The sheriff who returned that grand jury 
 is not on his trial, and it would be gross injustice to arraign his 
 conduct when he cannot defend it. The grand jury are not on 
 their trials, and it would be injustice equally gross to make a charge 
 against them where they can have no opportunity of vindicating 
 themselves. A time may come and an occasion may arise in which 
 these considerations may be proper and necessary; and most cer- 
 tainly I will not, in that event, be found wanting to the discharge 
 of any duty, however painful, which may devolve on me. But in 
 the meantime, and with reference to the present proceeding, I wish 
 distinctly to be understood as disclaiming all imputations upon 
 either! I am ready to suppose, for the purposes of this trial, that 
 if the parties and the cause were the exact reverse of what they now 
 are; that if it had been the pleasure of the government to direct 
 that the statue of King William should be dressed on the 4th of 
 November, and a body of Roman Catholics, feeling themselves in- 
 sulted, had risen against the law and the magistracy, and had flung 
 a bottle or other missile at the Lord Lieutenant's head, and these 
 facts had been before the grand jury, they would have ignored the 
 bills; as, so help me God, I would, under the same circumstances, 
 had I remained the king's attorney-general, have filed my informa- 
 tion ex officio. I claim only for myself equal credit for the purity 
 of my motives and the-fair discharge of my sworn duty. 
 
 3. The legality of the proceeding. 
 
 I am told that it has been alleged that this proceeding on the 
 part of the attorney-general, by an ex officio information, is illegal. 
 I do not know whether what has been said in this respect has been 
 rightly reported; or whether it is meant that the proceeding is in 
 point of law invalid, or that the resorting to it, though a legal right, 
 is not a fair exercise of discretion. I am led naturally, without 
 
;u3iosui puB ajBjadsap v uMop Suinnd ui 'uoimdo jo X;TJoq}nB 
 gqj iiB Xq p35{DBq 'pre jnoX mrep oj ;X;3jbs pu'B so'ead jo S3doq 
 sji JO jiBqsq uo '.siav\ s^ puE Xjjunoo sqj jo Jl'eqaq uo ^nq !3Ati 
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 !p3UJ3ouoD X^puosisd SI 3q SB iBj OS sopsnC oijqnd joj \[bo oj u3A3 
 10 'ss3ip3j ^■BU0SJ3d JOJ >[SB o; 'j(3tS3n3jVV P-tOT J° IJ'^d! 3qj uo 3I3q 
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 -is3q J '3UIIID 3q} SI SB p3iduiBX3un puB SuiiBp 'spioq Xui 'ing 
 
 ■p3AJ3S3p ji 'lusuiqsrand SuixijjB Aq 'smbj 3q} jo X}iu 
 
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 — }U3Hipu3s 3U0 inq 3q ubo 3J3q; 'uopBJspisuoo 3}BAud puB oqqnd 
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 -iBqo inoX o} }|nsui ub sb it i3pisuoD p^noqs j jng ■p3A0jd Xpoup 
 -sip puB A\\nj ss3|uii 'pB oj jou jqSno noX qoiqAV uo 'usmspusS 
 'suo puB !3pBra 3q oj XpqSq jou jqSno qoiqAV sSjBqo B st siqx 
 
 •3Sodjnd 3qi loj ojui p3i3iu3 XpnoiASjd XoBiidsuoo 3ib 
 -J3qipp B JO 3onBnsjnd ui os 3uop SuiABq jo puB !miq Suppsui jo 
 asodind 3q} JOj 33U3S3jd siq ni lou b p3i4iuuuoo SuiABq jo iXiiunoo 
 
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 UBqj 301110 B SS3I ou SlJOduil II •SUOllBUIIOJUI 3qi p3U3do SBq oqM 
 pUSUJ p3UJB3| Xui Xq pSJBlS X^IBinOpiBd 3J0UI U33q SBq JI JO 3jnjBU 
 
 3qj ijoiuiu oqqnd moij ji jo pszuddB XjqBqojd 'spjoq; Xui 'ipBaip 
 3JB no^ -ispBJBqD XjBuipjo JO jqSq ou jo 3uo si sSiBqo sqx 
 
 ■Noixnoaso'ad: 
 aHX io ioafao — 'aaoHVHD asNaiao anx jo annxvjsi '^ 
 
 •oqqnd 3q} puB 'XinC 
 aqi ':^no^ 3qj jo uoijBispisuoD sqj J3pun iqSnoiq Xjiibj sq isnui 
 jnq 'p3qsinSu!}X3 jo psyps 3q ubd X3qj siqissodrai si }i 'sq Xbui 
 S1IJ3UI s;i j3A3}BqA 'jBqj puB iXjnC puB ;jnoo 5U33qpiui ub sjojsq 
 Xiinj jqSnojq 3q oj XpB3J mou si 3Sbd siqj iBqj Suimou5[ ui p3A3upB 
 U33q SBq joaCqo Xm jo jjBd jb3j3 b puB 'sui oj uopoBjspBS }B3jS 
 
aqj JO Ami puBi3 n Aq pajouSi U93q p^q puB 'asua^o auiBS sq} loj 
 suosjad auiBS 3i[j ;sure3B pajiajajd uaaq p'eq s^Tq jajjB pajg uasq 
 ST3q uoi;buiiojui <7;:'^(? arp sit^j j'Bq; 'sjbavb X^q^qoid ostB sj-b noX 
 '.A^uomnv UMo suj uodn pjauaS-Xauiojj-B s.XjssC-bui siq Xq pajif uoij 
 -•Buiiojui «7?;'^(7 ar^ UB SI siqj ^-Bij} 'spio'^; Xui 'pazuddn sits no^ 
 
 •N0I1VHH05NI 
 
 oiouao xa Nv ONnia ni avuaNao-AaNsoiiv anx jo aAiioj\[ "z 
 
 ■?i uiojj ^jutuqs aA'Bq o; Xjnp jo ^uauiuopu^qB ue3ui b uaaq SA'eq 
 pinoAV ;i 5Bqj ^fuiq} 0} a?B;isaq |pqs jo luopnDasojd siq; Suiinjpsui 
 joj 3UU sinsuao u^qs ubui ^EijiBduiT jo ;s3uoq Xub 'pasopsip uaaq 
 aA^q ||Bqs asBO siqj ui aouapiAa aq; jajp 'ji 'qoBOidai-jps jo aouai 
 -uas XA'Eaq aq; japun puB pajBTiTtunq 'ijnoD siqj uioij Xbaib oS |pqs 
 I -aopsnC OTiqnd jo asjnoD aqj ui jps^i ajSuira oj paia^ns uaaq 
 SBq 'X;np oqqnd jo aSi^qasTp snopuapsuoD aqj o; sSuopq qoiqAi 
 jBqj UBqj jaq^o }uampuas ou j-eq} 'Suipaj XiSub ou j^qj 'saoipnCaid 
 XqjiOAvun ou jeq; }sni} j -iDaCqo Xui sb aoab Xpaij j siqj, 
 
 •^uapsui aiB Xaq; sb 'ssapdoq puB uiba 
 aiB suB|d jpqj ;Bqj jqSnBj aq jsnui 'spaCojd qans aaunouuB oqAi 
 siaqjo IP puB Xaqx 'q^oq uiaqj o; joiiadns Xjijoq^nB ub dn Supps 
 puB 'a\bi aqj puB Sut5[ aqj SujXjap jo asodind aqj loj saApsuiaqi 
 pajBpossB SABq oqAi asoqj jo suoisuajaid SuiiBp aqj ■ UMop ind oj 
 XjBSsaoau st ;i :auop aq o; sureuiai qonui 'siq; |jb puoXaq '^ng 
 
 •ajdoad qsiij aq; jo 
 su'saq aq; uioij pansst SBq qoiqA uopBuSipui jo uoissajdxa psiaAiun 
 aq; Xq pauiaapaj uaaq SBq jajoBiBqa puopBU aq; padsai siq; ut ;nq 
 iured puB piSai jo suoijBSuas pa;pxa aABq jsnoi 'uBuiXjjunoD ipq; 
 ;sutbSb aSBjjno ub qons 'Supnoaxa jo ajqBdBO spuBq puB 'SuiAiaouoo 
 JO aiqBdBO s;jB9q puBj siq; ui uaaq aABq pjnoqs aiaq; ;Bqj, -juaui 
 -;uasaj ou ;jai ;t 'joijaj ou pajpxa }duia;p asBq jpq; 'asaq; SB s|MO 
 „ Smsnora „ qons Xq ,, ;b pa5[AiBq ^^ aq oj ;pj aABq ;snui aq sb juBuSip 
 -UI !ap;aui }UB[p3 siq asnoi o; Xjuo pa;;ij SB^tt. 3[ob}}b aq; 'paiaSuBp 
 -ua uaaq sBq ;i sb qonui 'X;ajBS puosiad umo siq o; ;oadsai q;m 
 !pa;oajip uaaq SBq Xuibjiia siq; uioqAi ;suibSb aSBUosiad snou;sn|ii 
 aq; jo sSuipaj aq; Aiou5[ j >[uiq; j •spuBiuuioo s,Sui5[ aq; a;noaxa 
 o; pauinsaid sBq aq asuBoaq 'aAi;B;uasajdai s^Sui^t aq; jBaqjaAO o; 
 puB SAB] aq; uAiop ;nd o; pa;BpossB aABq oqA 'Sub3 aiqi;dina;uoo 
 B JO XoBJidsuoD asBq b UAvop ;nd o; noX uo \\eo j •;uaiuiuaAo9 siq 
 JO sainsBaui aq; aSuBqo o; 'mbj aq; aAoqB aojoj b jo uopBusuoiuap 
 aq; Xq puB aouapiA puosiad jo uijb aq; Xq 'aAi;B;uasaidaj: siq pd 
 -moo o; puB ipuBpjj ui ;uauiuiaAoS Sj3ui5[ aq; aAVBiaAO o; ;duia;;B 
 
IN KEX V. FORBES AND OTHERS. 619 
 
 going out of the pleadings^ to make a few observations upon this 
 part of the subject; for although all the traversers have put in pleas 
 amounting to not guilty, yet two of them have thought proper to 
 put upon the record what cannot properly belong to that plea — a 
 sort of preamble or inducement, in which they state that those in- 
 formations have been filed against them after a grand jury had 
 ignored bills for the same charge. My learned friends, who framed 
 those defenses, knew perfectly well that on that allegation no issue 
 could be joined, either of law or of fact. It amounts, therefore, to 
 nothing else than a plea of not guilty. But I presume they thought 
 it might be made use of (though scarcely to your lordships or the 
 jury whom I address) to swell the cry which amongst the vulgar of 
 the public has been raised against the legality of this proceeding. 
 
 I think that on that subject I need occupy but little time in ad- 
 dressing the court before which I have now the honor to appear. 
 What I am about to say is rather with a view to set right the public 
 mind, and that it should be known that I have stated, in the pres- 
 ence of this enlightened court, what is the law upon this subject. 
 I assert, then, that the ignoring of a bill by a grand jury is, accord- 
 ing to the known and established principles of our law, no bar to 
 any subsequent legal proceeding against the same individual for the 
 same offense. It is competent to the Grown or the prosecutor to 
 send up another bill to the same or any other grand jury; and the 
 same power belongs to that public authority in which is vested the 
 right of filing an information. A party who has been already tried 
 may protect himself against a subsequent prosecution for the same 
 offense. He may do so by plea. It is a principle of our law that 
 no man shall be twice tried for the same offense. If he has been 
 already acquitted, there is a known legal form of pleading as old as 
 the law itself, by which he can defend himself. But it is settled 
 by authorities coeval with the law itself, that the plea of autrefois 
 acquit is not supported by evidence that a bill of indictment for 
 the same offense has been preferred to a grand jury, and ignored. 
 It must be an acquittal by a petit jury. Your lordships would con- 
 sider it a waste of time to refer to authorities in support of such a 
 position. It is laid down by Lord Hale, Lord Coke, and every 
 writer on the subject of Crown law. I shall not consume time by 
 adverting to cases for recognition of known principles. The thing 
 can only be doubted by those who are ignorant of our laws and 
 Constitution. That another indictment could be sent up is clear; 
 and I think I go a good way to show its legality by calling upon 
 
620 SPEECH OF WILLIAM CONTNGHAM PLUNKET 
 
 those who deny it, to show me any form of pleading by which it 
 can be resisted. There is no legal right belonging to any subject 
 of this realm, which the law has not afforded him a mode of setting 
 forth; and, therefore, if there be no form of pleading (and if there 
 were such, my learned friends, in whose hands the interests of the 
 traversers are so effectually secured, would have discovered it) by 
 which the throwing out of a bill by a grand jury may be set up as 
 a bar to a subsequent information, that is in itself a full proof of 
 the legality of such a proceeding. They have, indeed, distinctly 
 admitted it by putting in pleas not denying the competence of the 
 attorney-general to file, or of the court to entertain, the present 
 information, but asserting their innocence of the charge imputed to 
 them. In an ordinary case, not affecting the rights of the Crown, this 
 court is in the habit of granting criminal informations. The right 
 formerly exercised by the master in the Crown office has been narrowed 
 by statute, and is now subject to the discretion of the court. Has it 
 ever been heard of that the Court of King's Bench would refuse an 
 information because a grand jury had ignored the bill ? 
 
 So much trash has been circulated, and the public mind so much 
 abused upon this subject, that I hope your lordships will excuse my 
 calling your attention to it. So far from its being considered an ob- 
 jection that a grand jury has ignored the bill, it is often a reason why 
 the Court of King's Bench grants an information. I have often ap- 
 plied for liberty to file an information, when I had the honor of prac- 
 ticing in this court; and the court has asked me whether I had tried 
 a grand jury, saying, that if they refused to find a bill, they would 
 then entertain the application. The Court of King's Bench in 
 England, in the last term, granted an information in a case where 
 bills had been twice ignored by a grand jury, and because they had 
 been ignored. So far, therefore, is that circumstance from being 
 considered an objection to putting a party on his trial, that it is 
 frequently insisted upon as a requisite condition. Thus it is where 
 application is made to the Court of King's Bench. This is an in- 
 formation filed by the sworn officer of the Crown, in whom the law 
 has vested that privilege. Were I to come in as attorney-general, 
 and apply for liberty to file an information against these parties, 
 what would be your lordships' answer ? The same as was given by 
 my Lord Mansfield to De Grey, and I think to Sir Fletcher Norton, 
 namely: "We will not file an information at your suit; the law has 
 made you the sole judge of its propriety; if you think it proper, 
 you have a right to file it; if not, why should we do so ? " I am 
 
m EEX T. FORBES AND OTHERS. 621 
 
 not now applying myself to the soundness of this exercise of dis- 
 cretion, but to the new-fangled notion of the illegality of this in- 
 formation. It is the privilege of the lowest subject in the realm, 
 if by the error or impropriety of a grand jury he do not obtain 
 justice, to apply to the Court of King's Bench for a criminal in- 
 formation; but the king, it is said, is to be in a totally different 
 situation; and though for an offense indictable the court would 
 grant an information because a grand jury has ignored the bill, the 
 sovereign himself shall not have that redress which is open to the 
 meanest of his subjects. A proposition, this, too monstrous to bear 
 debate. I am asked for an authority; permit me to say, this is not 
 quite a fair requisition. Where a circumstance is totally imma- 
 terial, it is not to be expected that it should be the subject of no- 
 tice; and therefore we are not to be surprised, if in the greater 
 number of reported cases of informations it should not appear 
 whether a grand jury had previously thrown out bills or not. Such 
 a fact would be totally immaterial. It cannot be stated in a plea; 
 it could not be proved in evidence, and therefore it would be too 
 much to say, that, because it is not mentioned, the case had not ex- 
 isted. 
 
 4. Statement of the case relied upon as a precedent. 
 
 It has been my principle to hold in utter contempt the vile and 
 scurrilous publications which have been circulated through the 
 city, in order to prejudge the matters to be tried and affect the 
 characters of the persons employed as public functionaries. But 
 I have, by the generosity of some of their authors, been furnished 
 with a case directly in point, in which, by accident, the fact of bills 
 having been ignored by the grand jury before the information filed 
 does distinctly appear. 
 
 I shall detail the facts as they appear in the Commons' Journals. 
 In the latter end of the reign of Queen Anne, in the year 17 13, on 
 King William's birth-day, the play of Tamerlane was to be repre- 
 sented. King William, as your lordships are aware, was compared 
 to Tamerlane, and very deservedly so, if the possession of every 
 virtue that could ennoble a monarch entitled him to the distinction. 
 The name of Tamerlane had been connected with his. A prologue 
 to the play, written by Doctor Garth, was very generally repeated 
 at the time. The Doctor, it seems, was more happy as a poet than 
 as a courtier, and his reverence for King William led him to com- 
 pliment that monarch in terms not sufficiently guarded to avoid 
 
622 SPEECH OF WILLIAM CONYNGHAM PLUNKET 
 
 giving offense to Queen Anne. The government, therefore, thought 
 it right that the prologue should not be repeated When the play, 
 therefore, came on for representation, the actor omitted to repeat 
 it, and by so doing gave great offense to the audience. They were 
 full of respect for the memory of William, and did not wish that 
 attention to Queen Anne should break in on the ancient practice. 
 Mr. Dudley Moore, a zealous Protestant, who was in the house, 
 leaped upon the stage and repeated the prologue. This gave rise 
 to something like a riot. The government indicted Mr., Moore for 
 the riot. The bills were sent up to a grand jury, who returned a 
 true bill, and were then dismissed. In about half an hour after, the 
 foreman cama into court and made an affidavit tYyaXbilla vera was 
 a mistake^ and that they meant to return ignoramus. The court 
 refused to receive his affidavit; but then came in the three and 
 twenty, and swore positively to the same fact to which their fore- 
 man had deposed. The party was, notwithstanding this, in my 
 opinion very unwiselyj put to plead to the indictment. But the 
 attorney-general, thinking it would be hard to compel him to 
 plead when the bill had been in fact ignored,, moved to quash the. 
 indictment, which was done. 
 
 Do I overstate the matter when I say, that things were then in 
 the same situation as if the bill had been ignored by the grand jury ? 
 And yet, under these circumstances, i the attorney-general thought 
 himself at liberty to file an ex officio information against the same 
 person for the same offense. Sir Constantinei Phipps, who . was 
 then Lord Chancellor, and oneiof the Lords Justices, was consid- 
 ered ,by many as a great Tory and Jacobite, and as' an enemy to 
 the Protestant interest. Histo^has done more justice to him in 
 that respect than in the heat of party he received from his contem- 
 poraries. He interfered with the prosecution; he sent for the Lord 
 Mayor and lectured him as to the mode in which he was to con- 
 duct himself. . He was even supposed to have interfered with the 
 return of the jury. The whole matter, was brought before the 
 House of Commons, who addressed the throne to remove Sir Con- 
 stantine Phipps for, intermeddling in the trial. No fault was found 
 with the information though directly before them, but the trial was 
 treated as legally depending^ and a petition presented against the 
 Chancellor for interfering with that trial. Do I not here show a 
 case in which an ex officio information had been filed after a bill 
 had been thrown out, and where though the zeal of a party gen- 
 erated an anxiety to lay hold of anything that could warrant an 
 
IN REX V. FORBES AND OTHERa 623 
 
 imputation on the proceeding ? as the information filed was never 
 questioned, but the Chancellor and Chief Governor petitioned 
 against for interfering with the proceeding. 
 
 5. The charges not intended as a protest against the 
 SOCIETY OF Orangemen. 
 
 I shall not trouble your lordships farther upon the legality of 
 this proceeding. With respect to the soundness of the exercise of 
 my discretion under the circumstances, in resorting to the preroga- 
 tive right, I shall reserve myself until I shall have laid before the 
 court and the jury the facts which will be proved in the case. I 
 have already said, that I will prove that an attempt has been made 
 by a gang in this city for the purpose of controlling the law and 
 putting down the authority of the king's lieutenant. It is unfor- 
 tunately necessary to show, that the individuals concerned in this 
 outrage are persons belonging to a society known by the name of 
 the Orange Society. But it is particularly necessary, gentlemen of 
 the jury, that you and the court, and the public, should understand 
 what was formerly uttered by me, and what I now repeat. I am 
 desirous of expressly stating, that with the general nature of the 
 Orange societies in relation to the laws, the interests and happiness 
 of the country, I have on this trial nothing to do. Upon this sub- 
 ject I have my opinions, which at a proper place and season I shall 
 not shrink from avowing. But with the present investigation they 
 have no concern. I do believe in my conscience, that the greater 
 proportion of the persons associated in that society feel as strong 
 and lofty a contempt for those concerned in this disgraceful attack 
 as I do, and are as incapable of participating, authorizing, vindi- 
 cating, or palliating it. Every public man must expect to be the 
 subject of no very candid criticism. I wish distinctly to have it 
 understood, that this is no after-thought of mine, for the purpose 
 of qualifying expressions either inadvertently or too strongly used. 
 Had I applied these expressions indiscriminately to the Orangemen 
 of Ireland; I should have violated my duty and stepped beyond 
 that line of conducting this prosecution which was distinctly agreed 
 -upon between me and the eminent and respectable persons by 
 whom I have been advised. I am glad to take this opportunity 
 once for all, of returning my thanks to my learned colleague, by 
 whose high talents, enlightened information and extensive knowl- 
 edge I have been assisted in every stage of this proceeding, and to 
 
624 SPEECH OF WILLIAM CONTNGHAM PLUNKET 
 
 ■whose cordial zeal and co-operation no terms can be too strong to 
 render justice and express my gratitude. 
 
 6. Panegyric on William of Orange. 
 
 My Lords, I am anxious to proceed to an immediate statement 
 of the facts in this case, and to disperse that mass of scurrility and 
 falsehood which for some weeks past has disgraced this city. I 
 must, however, first trespass on your time with some preliminary 
 observations. 
 
 It is impossible to lay this case truly before the public without 
 briefly reverting to the political events in which the conspiracy 
 originated. The foundations of it were laid so long back as the 
 period when his majesty was pleased to honor this country with his 
 presence. 
 
 It is not, my Lords, my intention to occupy your time by at- 
 tempting a description of what took place on that occasion. From 
 the minds of those who witnessed the transaction, the splendor and 
 glory of that day never can be effaced. To those who have not, 
 no powers of mine can give an adequate description. It falls to 
 me to have the less pleasing task of remarking, that even then some 
 indications were to be found that his majesty's gracious disposi- 
 tions were not likely to be met with that degree of gratitude and 
 respect to which they were entitled; and that, even before he left 
 the Irish shore, the elements of mischief were at work. It was un- 
 derstood that the king, before he honored the Mansion House with 
 his presence, had signified his desire that the glorious memory 
 should not be given as a toast. I must entreat your excuse, my 
 Lords (it connects itself intimately with the matter of this trial), if 
 I advert more particularly to this topic, and endeavor to disabuse 
 the public mind upon the subject. 
 
 Perhaps, my Lords, there is not to be found in the annals of 
 history a character more truly great than that of William the Third. 
 Perhaps no person has ever appeared on the theatre of the world, 
 who has conferred more essential or more lasting benefits on man- 
 kind; on these countries certainly none. When I look at the ab- 
 stract merits of his character, I contemplate him with admira- 
 tion and reverence. Lord of a petty principality; destitute of all 
 resources but those with which nature had endowed him; regarded 
 with jealousy and envy by those whose battles he fought; thwarted 
 in all his counsels; embarrassed in all his movements; deserted in 
 
IN EEX T. FORBES AND OTHERS. 625 
 
 his most critical enterprise; he continued to mould all those dis- 
 cordant materials, to govern all these warring interests, and merely 
 by the force of his genius, the ascendancy of his integrity, and the 
 unmovable firmness and constancy of his nature, to combine them 
 into an indissoluble alliance against the schemes of despotism and 
 universal domination of the most powerful monarch in Europe, 
 seconded by the ablest generals, at the head of the bravest and best 
 disciplined armies in the world, and wielding, without check or 
 control, the unlimited resources of his empire. He was not a con- 
 summate general; military men will point out his errors; in that 
 respect fortune did not favor him, save by throwing the lustre of 
 adversity over all his virtues. He sustained defeat after defeat, but 
 always rose adversa rerum immersabilis unda. Looking merely at 
 his shining qualities and achievements, I admire him as I do a 
 Scipio, a Regulus, a Fabius; a model of tranquil courage, undevi- 
 ating probity, and armed with a resoluteness and constancy in the 
 cause of truth and freedom, which rendered him superior to the 
 accidents that control the fate of ordinary men. 
 
 7. Political events in which the conspiracy had its 
 
 ORIGIN. 
 
 But this is not all. I feel that to him, under God, I am at this 
 moment indebted for the enjoyment of the rights which I possess 
 as a subject of these free countries. To him I owe the blessings of 
 civil and religious liberty, and I venerate his memory with a fervor 
 of devotion suited to his illustrious qualities and to his godlike acts. 
 
 Did our gracious sovereign come here to trample on the memory 
 of the most illustrious of his predecessors ? No, my Lords; the 
 high errand on which he landed on our shores was worthy of him, 
 and bespoke a kindred mind to that of the immortal personage 
 whose name and character he vindicated. He knew that the whole 
 life of King William was a continued struggle against intolerance; 
 that the policy of his reign was opposed, and his most favorite ob- 
 jects for the peace and happiness of his people were bafiled by the 
 folly and bigotry of those who surrounded him; and that the career 
 of his glorious life was obstructed, as the lustre of his glorious 
 memory has been tarnished, by the absurd and intolerant dogma- 
 tism of those who were rescued by his exertions from that yoke 
 which they sought, in opposition to his eager wishes, to impose on 
 others. It was the unhappy but inevitable result of the circum- 
 stances in which the people of this unfortunate country were 
 <10 
 
626 SPEECH OF WILLIAM CONTIfGHAM PLUNKET 
 
 placed, that they had to meet that great man, not as subjects but 
 as enemies. 
 
 The peculiar good fortune of the British people was, that every 
 feeling of religion corresponded with their innate love of freedom 
 to alienate them from the cause of the exiled monarch. His de- 
 signs, his determinations against their civil and religious liberties, 
 were notorious and unalterable. An inflexible bigot and despot, he 
 was too intense in both characters to endure the appearance of a 
 compromise with toleration Or with freedom. Yet every man 
 knows through what difficulties aild dangers they had to struggle 
 before the house of Brunswick was firmly seated 6n the throne. 
 Even with the full tide of religion running in their favor, the prin- 
 ciple of loyalty to an hereditary succession was so indigenous to 
 British character, that it was not until after the lapse of nearly a 
 century that the principles of Jacobitism were finally subdued. 
 
 8. William's campaign in Ireland conferred upon its people 
 
 BLESSINGS in disguise. 
 
 But in unhappy Ireland the exiled king was the professor and 
 patron of the religion to which they were enthusiastically devoted. 
 He must be a preposterous critic who will impute as a crime to that 
 unhappy people, that they did not rebel against their lawful king, 
 because he was of their own religion, even if they had been so fully 
 admitted to the blessings of the British Constitution as to render 
 them equally alive to the value Of freedom. They seem, therefore, 
 by the nature of things, almost necessarily thrown into a state of 
 resistance. Nothing could have saved them from it but so strong 
 a love .of abstract freedom as might subdue the principles of loyalty 
 and theieelings of religion. No candid man can lay so heavily on 
 poor human nature, nor fairly say that he thinks worse of the Roman 
 Catholic'f or having on that day abided by his lawful sovereign and 
 his ancient faith. - What was the result? They were conquered; 
 conquered into freedom and happiness^a freedom and happiness 
 to which the -successful result of their ill-fated struggles would 
 have been destructive. There is np rational Roman Catholic in 
 Ireland who does not feel this to be the fact. Even the name of 
 the exiled family is now unknown; the throne rests on the firm 
 basis of the unanimous recognition of the entire people. The 
 memory of their unfortunate struggles is lost in the conviction of 
 the reality of those blessings which have been derived from their 
 results equally to the conqueror and to the conquered. What wise 
 
m REX T. FORBES AND OTHERS. 627 
 
 or godd man can feel a pleasure in recalling to the minds of a 
 people so circumstanced the fact that they have been conquered ? 
 What but the spirit of folly and of mischief can take a satisfaction 
 in interrupting them in the enjoyment of the blessings of their de- 
 feat, by taunting them with the recollection that they were defeated ? 
 Why is conquest desirable to any one but the Trooper ? Because 
 it opens the way to peace and harmony; but to those I have now 
 to deal with, the fruits of the conquest are valueless, without the 
 perpetuation of the triumph. 
 
 He is a mischievous man who desirek to remind the people of 
 this country that they are a conquered people. He is a mischiev- 
 ous inan who, for the gratification of his own whim, desires to cele- 
 brate, in the midst of that people, the anniversary of their conquest. 
 Never was there a subject more loudly calling for and justifying the 
 gracious and saving interposition of the royal wisdom. 
 
 9. The visit of George IV to Ireland. 
 
 In the history of royal lives, there seldom has occurred an in- 
 stance affording a more gratifying subject for the historian to dwell 
 on, than the royal visit to Ireland. The statement of splendid vic- 
 tories, the development of profound schemes of policy, the appli- 
 cation of able counsels and of powerful resources, the defense of 
 the liberties of the world — all these are the subjects of historic de- 
 tail, and may be the fair subjects of political controversy. But 
 here, by the mere impulse of his own feelings, the heartiness of his 
 nature, a moment was created in which, without calling on any of 
 the common places of royalty, without the aid of force, or fear, or 
 flattery; without arms, or power, or patronage; by the mere in- 
 dulgence of his kind and generous nature, he gained to himself the 
 most exalted privileges which a human being can exercise — that of 
 bestowing happiness on, and sharing it with, millions of his fellow- 
 creatures. The promptness with which this moment was seized; 
 the gracious and condescending manner by which it was improved; 
 the thousand and ten thousand blessings which are derived from it 
 — all these may be subjects of just applause and of sober criticism. 
 But here the true value of the act is its simplicity. To enter into 
 the hearts and become master of the enthusiastic affections of an 
 entire people, merely by showing himself the friend and father of 
 them all, was a felicity to him and them unparalleled in the event- 
 ful history of this nation. It was worthy of a successor of the 
 great monarch whose talents and virtues he emulated, and whose 
 
628 SPEECH OF WILLIAM CONTNGHAM PLUIfKET 
 
 memory he rescued from the disgraceful orgies by which it had 
 been tarnished. Equal in the motive and the feeling — happier in 
 this that the hard fortune of William the Third compelled him to 
 visit this country as a conqueror; but it was reserved for the pecu- 
 liar felicity of George the Fourth, that he was the first British king 
 who ever placed a friendly footstep upon the Irish soil. 
 
 I have already had occasion to remark, that the intimation of 
 his majesty's pleasure on the subject of public concord was not 
 perfectly agreeable to a certain portion of his subjects. Some little 
 clouds were seen flitting along the horizon, which indicated the 
 probability of a future storm. How far the government of the 
 country were enabled to act on the personal recommendation and 
 parting injunction of the king — what were the difficulties the 
 Irish government had to encounter; what were the means they 
 used to surmount them — these are matters which do not belong to 
 the present subject. 
 
 10. Lord Wellesley commended. — Defense of his 
 qharacter. 
 
 I pass to the period of Lord Wellesley's arrival in this country. 
 He found a great portion of the South of Ireland in a state of 
 licentiousness, surpassing the worst excesses of former unhappy 
 times. He had to deal with dangerous and secret conspiracies in 
 other parts of the country. In what manner the Lord Lieutenant 
 applied the powerful energies of his great mind to meet these com- 
 plicated difficulties does not fall within the compass or limit of this 
 trial. It would ill suit with my notions of what is due to the Mar- 
 quis Wellesley, and of his temper and character, to offer up the 
 suspicious praises which an Irish attorney-general is supposed 
 bound to tender to the Lord Lieutenant. I am too sensible of the 
 well-formed taste of this illustrious person, not to be convinced 
 that he would reject with disdain the vulgar incense of official 
 adulation, if I could stoop to offer it. No, my Lords, it would be 
 an unsuited return for the kindness, the confidence, I will presume 
 to say the friendship with which he has honored me; I know too 
 well his lofty feelings and noble nature, cui male si palpere, recal- 
 citrat undique tutus; but I will not be deterred by the apprehension 
 of a suspicion which I disdain, and to which I trust the character 
 of my life renders me superior, from expressing my sentiments of 
 that exalted personage when he has become the object of vulgar 
 scurrility, and when an open and desperate attack is made upon his 
 
IN EEX T. FORBES AND OTHERS. 629 
 
 person and his government. I will not be deterred from saying, 
 that, had our gracious sovereign surveyed the extent of his domin- 
 ions in search of one fitted to execute the magnificent purposes of 
 benevolence to his people with which his royal breast was filled, he 
 could not have found a person whom the gifts of nature, improved 
 by every noble art, and mellowed by a long and arduous experience 
 in the most difficult exigencies of this great empire, so eminently 
 qualified for the task; or one whose heart so entirely and cordially 
 vibrated in unison with the gracious and paternal interest which 
 was felt for the welfare of his native land. That noble peer en- 
 tered on the government of this country under this royal instruc- 
 tion; he had to explore a very difficult and dangerous and untried 
 path, but he had the parting admonition and the renewed injunc- 
 tions of his sovereign for his pole star. He entered on that gov- 
 ernment, carefully distinguishing his opinions and duties as a poli- 
 tician and a legislator, from those which necessarily involved the 
 system of government of the country committed to him. Never 
 abandoning, but carefully distinguishing his individual opinion 
 from his official duties, he applied himself strictly and exclusively 
 to effectuate the orders of the king, by the equal administration of 
 the existing laws, and by the promotion of peace, happiness and 
 concord among all the various classes of his subjects. I defy the 
 malignity of criticism to point out a false move in the government 
 of that noble person; one instance in which he departed from the 
 spirit of that mission of conciliation which was confided to him; 
 an act or an expression calculated to excite offense or disapproba- 
 tion in the mind of any honest man or lover of his country, be his 
 sect or his party what it may. Pursuing his clear and undeviating 
 course, raised above all party, the laws for his guide, and the public 
 happiness for his object, his fame is independent of the praise of 
 his friends and above the malice of his enemies; it is our business, 
 my Lords, to guard his person and his government against their 
 secret machinations and their open violence. 
 
 The discontinuance of the public insults to which I have al- 
 ready alluded, and which had been so highly disapproved of by the 
 king, necessarily had a place in the system of the Lord Lieutenant. 
 The offensive toast which had been renewed in the presence of the 
 late Lord Lieutenant was withheld in the presence of Lord Welles- 
 ley. I grieve to say that a spirit of mutiny and dissatisfaction on 
 this subject was giddily and rashly encouraged by many who knew 
 and ought to have reverenced the king's commands. The Lord 
 
630 SPEECH OF WILLIAM CONYNGHAM PLUNKET 
 
 Lieutenant, however highly he disapproved the giving the toast on 
 public occasions, did not think it , became him to take any further 
 step, having taken care that the king's authority should not, in his 
 presence, be insulted by it. Another subject, or rather another 
 part of the same subject, called his attention. 
 
 II. The object of Lord Wellesley in preventing the 
 
 DECORATION OF KiNG WiLLIAm'S STATUE. 
 
 The statue of King William, you all know, has been, for some 
 years back, bedaubed with ridiculous painting and tawdry orange 
 colors — a ludicrous specimen of bad taste, with which, however, 
 his excellency did not feel himself called on to intermeddle. But, 
 beyond this, a set of low persons, whose names were not avowed, 
 had been for some years back in the habit of mounting the statue 
 in the night of the 3d of November and of the nth of July, and 
 putting on it a fantastic drapery of orange scarfs, in themselves 
 ridiculous, if they had not been meant as a mark of triumph over 
 a certain portion of their fellow-subjects. This being done by a 
 party of sworn Orangemen, and for the avowed purpose of insult, 
 had been resented by the Roman Catholics whom it was intended 
 to insult; and on the 12th of July last a serious riot had occurred, 
 the insulted party conceiving that they had as good a right to un- 
 dress, as the other had to dress, the statue of King William. In 
 the course of this affray lives had been endangered, the peaceable 
 inhabitants of College Green seriously alarmed, the tranquillity of 
 the metropolis disturbed, and evil passions of the most furious kind 
 engendered in the minds of the parties. It is obvious that one of 
 these three courses was to be pursued. Either the dressers of the 
 statue were to be protected by public force and the constituted au- 
 thorities; or they were to be forbidden and prevented; or the par- 
 ties were to be left to fight it out, till outrage, riot and bloodshed 
 arrived at such a height that the civil power must act against both. 
 I have neyer heard it distinctly stated, or that it was distinctly 
 stated by any person, that either the first or the last of these 
 courses ought to have been proved; either that the public authori- 
 ties should have been called to assist the nightly party in making 
 the toilet of King William, and to apprehend any person who should 
 presume to interrupt them; or that the streets of the capital should 
 be disgraced by the continuance of these senseless brawls. The ■ 
 first question on which his Excellency had to satisfy his mind was, 
 
IN REX T. FORBES AND OTHERS. G31 
 
 whether the continuance of the practice of dressing the statue might, 
 under such circumstances, be legally prevented. 
 
 He was advised that it clearly might; that these mummers had 
 no right to lay their hands on this public ornament, whether for 
 the purpose of decoration or dedecoration. Gentlemen, I remem- 
 ber that, on one occasion, a set of ruffians mounted this statue 
 and daubed it over with lampblack. Neither they nor any other 
 persons had a right to meddle with the public ornaments, either to 
 adorn or to disgrace them. But, independently of this, his Excel- 
 lency was advised that this being proposed to be done, not in dis- 
 charge of any acknowledged duty, or in the prosecution of any 
 known business, or in the exercise of any right of property or fran- 
 chise, either by grant or usage, and being- found by experience to 
 have a tendency to produce, and to have actually produced, a 
 breach of the peace, and it being proved on oath that it had done 
 so, and that its continuance excited well-grounded apprehensions 
 for the safety of their persons in the minds of the king's subjects 
 residing in the neighborhood, several of whom, persons of knov/n 
 respectability, and Protestants too, had made affidavit to that effect, 
 his Excellency was advised that he would be well warranted in 
 using the civil force to prevent the dressing of the statue. 
 
 I am ashamed to think that it should be necessary to say, in a 
 court of justice, that they were Protestants. I say this, because 
 there are persons weak enough to imagine that the oath of a 
 Catholic is not to be attended to on this subject, and because it has 
 been untruly stated that these were affidavits of Catholics of the 
 lower order. I owe an apology to the good sense and feeling of the 
 court and the jury, for stating what their religion was; it is a dis- 
 grace to our country that such topics should be adverted to. Gen- 
 tlemen, I have been public prosecutor in this country, at a period 
 when the passions of men were most alive; and nevel in the course 
 of my official experience have I given any other advice to the 
 solicitor for the crown, than to select honest and fair men, without 
 reference to their religious opinions, and I have never felt myself 
 disappointed in the result; and therefore you will not suppose that 
 the circumstance of these persons being Protestants was necessary 
 to prop their credit in my estimation. 
 
 I am glad to have this opportunity of stating, that being called 
 on in the discharge of my sworn duty for my opinion, I gave it as 
 I have stated, and I challenge any man who respects his character 
 as a constitutional lawyer to correct its soundness. It is no light 
 
632 SPEECH OF WILLIAM CONTNGHAM PLUNKET 
 
 matter to charge the executive government with acting contrary to 
 law against any portion of the people;. it begets in their minds the 
 notion that, in resisting the civil authorities, they are resisting not 
 law but power. Such a course is calculated to bring the govern- 
 ment of the country into contempt; and when the acts so spoken 
 of have been done in pursuance of the king's instructions, it is a 
 violation of the personal respect which is due to him, independently 
 of its tendency, to weaken the authority of his government in this 
 country. 
 
 His Excellency was, independently of any respect which his 
 kindness might dispose him to attach to the opinion of his law ad- 
 viser, perfectly satisfied of the illegality of the practice in question; 
 and I am authorized to take this public opportunity of stating, that 
 having communicated on the subject with the king's government in 
 England, he was sanctioned by their unanimous opinion in using 
 the civil power for the prevention of these illegal practices. I am 
 further authorized to state, that since his Excellency adopted the 
 measures which are so publicly known for the carrying that opin- 
 ion into effect, his conduct has received the unanimous approbation 
 of the entire Brit'ish cabinet, and has, above all, been crowned by 
 the highest reward which a subject can receive for the faithful dis- 
 charge of his duty, the personal approbation of his sovereign, whose 
 commands he executed and whose government he sustained. 
 
 12. Legal methods resorted to as the only means of 
 preventing it. 
 
 Before his Excellency resorted to any public means for the sup- 
 pression of this practice, he tried every expedient, by persuasion 
 and remonstrance, to obviate the necessity of public interference. 
 It is but justice to say, that many, very many of the principal per- 
 sons who were supposed to have an influence over the Orange asso- 
 ciations did exert their authority for the purpose; but whatever 
 were their exertions, they were unavailing; they found they could 
 not govern the party with whom they had associated themselves. 
 So must it ever be when rank and station and education con- 
 descend to combine in a secret bond with the vulgar and the igno- 
 rant. They must not expect to govern them; so long as they run 
 in the same course of party and opinion, they may be suffered to 
 lead; but in vain will they endeavor to alter the direction or mod- 
 erate the violence. When the evil spirit is unchained and let loose, 
 the spell that raised it will be unavailing to allay it— for the pur- 
 
IN REX V. FORBES AND OTHERS. C33 
 
 poses of a greater excitement they may be powerful and danger- 
 ous; for those of repression and restraint altogether impotent. The 
 lower classes of these persons declared they would disobey the 
 Lord Mayor's proclamation, and resist the magistrates. Furious 
 and absurd speeches were made at public meetings, filled with 
 vulgar invectives against the constituted authorities; and prepara- 
 tions were made for resistance to the law. The dressing of the 
 statue on the night of the third and day of the fourth of Novem- 
 ber was prevented; but on subsequent nights, particularly on the 
 night of the sixth of November, several of the party assembled for 
 the purpose, and were not dispersed without considerable disturbance 
 and difficulty. On this occasion the traverser Henry Handwich 
 was particularly active; he headed a party who arrayed themselves 
 against the magistracy for the purpose of dressing the statue. He 
 was, it seems, the regular manteau-maker to King William. He col- 
 lected subscriptions on the night between the fifth and sixth of 
 November; he mounted on the statue, and nailed upon it the 
 tawdry ornaments with which he was furnished. With some difH- 
 culty he and his party were suppressed; they were dispersed before 
 morning. Two or three similar attempts were afterwards made, 
 but the firmness of the magistrates was sufficient to put them down. 
 In this situation of affairs, the Lord Lieutenant availed himself 
 of the first opportunity which the various claims of public care al- 
 lowed him, to announce his intention of honoring the Theater 
 Royal with his presence. A play ti^sls accordingly announced, and 
 notice given. 
 
 13. Narration of the facts constituting the charges 
 
 AGAINST the DEFENDANTS. 
 
 I shall now state the facts of this case, which will be so clearly 
 proved, and placed so far beyond all doubt, that no gentleman 
 whom I have the honor of seeing in that jury box, can leave it 
 with a doubt upon his mind as to the real nature of the transaction. 
 Certain persons met together, and conceived that this would be a 
 good opportunity of marking their public indignation against the 
 Marquis Wellesley, for presuming to enforce the king's command in 
 forbidding the dressing of the statue. One of those persons, gen- 
 tlemen (melancholy, if this be so, is the situation of the Lord 
 Lieutenant), holds high situations under the king's government, a 
 place in the post office, and another in the customs, producing 
 nearly ;^8oo a year. I allude to a man named William Heron. 
 
634 SPEECH OF WILLIAM CONYNGHAM PLUNKET 
 
 This person, and another of the name of M'Culloch, who holds a 
 situation in the Meath hospital; a man named Atkinson, holding a 
 situation in the Custom House, and others, on the night of Wednes- 
 day or the morning of the. Thursday before the play, consulted as 
 to the best means of dealing with the subject. The result they 
 came to was, that this would be a proper opportunity for acting in 
 the theater in such a manner as to evinpe the unpopularity of the 
 Lord Lieutenant and his government, and, make it necessary for 
 him to leave the house, and eventually to leave the country. It 
 was determined that a subscription should be raised to purchase 
 tickets. Well knowing that the true expression of the public senti- 
 ment would be strong in favor of his Excellency, they resolved, in 
 order to thwart it, to collect a party and pack the theater. They 
 thought the persons who were associated would of themselves be 
 sufficient for the pit and the middle gallery; but that, for the in- 
 ferior orders, seats must be purchased. Accordingly a subscription 
 of ^2 was collected by Heron and sent by him to Atkinson. This 
 was to be , communicated to an Oramge lodge;, assembled at the 
 house of one Daly,.in W.erburgh street, inwhat is called the Purple 
 Order of the lodge. That, gentlemen, is not conferred upon any 
 person until he has been for a certain time a member of the general 
 institution. This subscription was given to the parties present at 
 the lodge, and an additional subscription was raised by them. Two 
 of those lodges were concerned. The traverser, James Forbes, is 
 a member of the lodge 1660. He is deputy master of that lodge. 
 William Graham is secretary of the same. Henry Handwich and 
 Matthew Handwich are members of the lodge 780, of which Henry 
 is deputy master; and William Brownlow is a member of 1612. 
 Although it is necessarily my duty to show who and what these per- 
 sons are, I do not meddle with the general character of Orange 
 lodges in Ireland, the merits of which are for another place. I am 
 well satisfied that the great body of Orangemen feel as much ab- 
 horrence at this crime as any individual can do. With this sub- 
 scription a number of pit tickets were purchased on Saturday morn- 
 ing from the book-keeper at the play house. This was for the pur- 
 pose of filling the upper gallery. It was thought that the members 
 who were able to purchase tickets for themselves would be sufficient 
 for the pit and middle gallery. One pit ticket was to be given to 
 every three. Forbes was present when this subscription was raised. 
 On the Saturday morning, Forbes, M'Culloch and Atkinson went 
 together to the theater and purchased the tickets. They regularly 
 
IN REX V. FORBES AND OTHERS. 635 
 
 proceeded to fashion the conspiracy in all its parts. It was deter- 
 mined that an inferior Orange lodge, to which Handwich belonged, 
 and which met at Mrs. Daly's, in Ship street, should be ready to go 
 to the theater to execute the plan. Application was made in the 
 morning to Matthew Handwich at his work, and he was desired to 
 communicate with his brother Henry. Accordingly, about four 
 o'clock in the evening of Saturday, the parties met — Forbes, Atkin- 
 son, the Handwiches, and others. They were first supplied with 
 drink. They came armed with sticks. Handwich had been asked 
 if he could furnish sixty men. He said he could. He had not 
 quite so many at first, but the number was completed in the passage 
 to the theater. They were dispatched from the place of meeting 
 in parties of three, each with a pit ticket. The number was at 
 first sixty, but afterwards increased to near an hundred. They 
 were armed with bludgeons. The residue of the whisky they had 
 been drinking they put into a bottle and carried to the theater. 
 The last words of Handwich, on leaving the place of meeting, 
 were, " Boys, be wicked." It was settled that the duty of lodge 
 1612 should be to go to the pit door and beset it before it was 
 open, and to rush in in a body and occupy that part of the pit next 
 to his Excellency's box. Their directions were, that as soon as 
 " God save the King " was played, the " Boyne Water " should be 
 called for, and if it were refused, that the play should be stopped, 
 and that a system of hissing, groaning and violence should com- 
 mence. One of the party had a large rattle in his hand, for the 
 purpose of riot. 
 
 I should tell you, that at the meeting held of the Purple Order, 
 on Friday evening, and at which Forbes was present, the plan was 
 fully announced of compelling the Lord Lieutenant to leave the 
 theater, and, if possible, the country. One of the party even 
 offered to lay a wager, that before March he would be out of the 
 country. Finding that these conspirators entertained such serious 
 views; that their object was to make such a dempnstration of hostil- 
 ity as to compel his Excellency to quit the country, and that this 
 was to be effected by resistance, by riot, and even by personal 
 violence, one of the parties engaged took the alarm. He was 
 shocked at the extent to which their fury might go. At one time 
 he had formed the resolution of going to the Lord Lieutenant and 
 apprising him of the truth and the danger to which he was exposed. 
 He went to the park; a sentinel at the gate of the Viceregal lodge 
 asked him his business; his mind was in that situation in which a 
 
636 SPEECH OF WILLIAM CONTNGHAM PLUNKET 
 
 trivial circumstance makes an alteration — he hesitated and re- 
 turned, and the disclosure was not made. 
 
 Gentlemen, the party (1612), which had been arranged for the 
 purpose, rushed into the pit and occupied that part of it which was 
 nearest the viceregal box. The upper gallery party, to the number 
 of sixty, went there with the pit tickets. They had fixed upon a 
 watch-word: " Look Out." They seated themselves on the left- 
 hand side of the gallery, where the violence was carried on during 
 the night. Forbes placed them at their posts in the upper gallery, 
 armed with bludgeons. The police occupied the opposite side of 
 the house, and, like faithful watchmen, fell asleep on their posts. 
 No interruption was given to the merriment or to the mischief of 
 the party. To show the deliberation of their plans, I should men- 
 tion that, previously to the play, handbills were struck off, contain- 
 ing expressions insulting to the Lord Lieutenant, such as, " Down 
 with the Popish government,'' &c., and other expressions insignifi- 
 cant and contemptible, except as evincing deliberation and con- 
 cert. These handbills were brought to the theater, and disposed 
 of by the members of the conspiracy. Several were thrown by 
 M'Culloch, from the lattices over the Lord Lieutenant's box, and 
 others from various parts of the house. It will be proved that, 
 from the opening of the theater, the grossest system of insulting 
 and offensive expressions was commenced; groans were raised for 
 " The Popish Lord Lieutenant," and cries of " No Popish govern- 
 ment." There were also groans for the house of Wellesley. They 
 did not confine themselves to the noble lord at the head of the gov- 
 ernment; they extended to the duke of Wellington, and the other 
 branches of his illustrious family. Not satisfied with that, these 
 advocates of religion gave " a clap for the calf's head," an allusion 
 to a monstrous outrage committed, in or near Ardee, by some 
 ruffians who profaned a Roman Catholic place of worship by placing 
 such a thing upon the altar. They applauded also Sheriff Thorpe, 
 with the calf's head. There was " a groan for the bloody Popish 
 Lord Lieutenant." I cannot remember all the terms of outrage 
 which were used. Some persons, not connected with the gang, 
 cried out: "Shame, shame." Of these some were severely beaten, 
 and one man had a narrow escape by getting down from the upper 
 into the middle gallery; several were alarmed and left the house. 
 When the Lord Lieutenant came in, there was a general expression 
 of approbation from the audience, which, for some time, bore 
 down the hisses of the conspirators. But when an opportunity 
 
Ef REX T. FORBES AND OTHERS. 637 
 
 arose, a violent hissing and groaning were set up. These things 
 went on till "God save the King" was played; at that period a 
 bottle was thrown from the upper gallery, which hit the stage cur- 
 tain. The fact will be proved by a variety of witnesses, who will 
 leave no doubt upon it in your minds. It was flung from the gal- 
 lery by Henry Handwich. He will appear to have been a leader 
 of the party. You will have the testimony of several distinct and 
 independent witnesses, who can have no other object than to tell 
 the truth. Several persons saw the bottle in its progress. Amongst 
 the idle reports which have been circulated as to this transaction, it 
 has been said, that this came from the carpenters' gallery, and from 
 the pit; but, gentlemen, we shall put the fact beyond all contro- 
 versy. As to the precise point where it hit the curtain, there is a 
 diversity of opinion; but that it hit somewhere nearer to the Lord 
 Lieutenant than to the center, all the accounts concur. Some of 
 the witnesses say, it struck within four feet of the side next the 
 Lord Lieutenant, and within four feet of the stage. Another says, 
 that it was the breadth of the festoon. But all concur in this, that 
 it was thrown, and that their impression was that it was directed 
 against the Lord Lieutenant. It was thrown from the same side on 
 which his Excellency sat. You will ask why did they get to that 
 side. The right-hand side had been early occupied by other per- 
 sons; and the conspirators, feeling it necessary to be in a body, 
 were obliged to go to the left. The precise situation in which 
 Handwich was placed when he threw the bottle, will be proved to 
 you. He threw it under him, or by a side motion, and not over 
 him. Any person who will attend to the position in which he was, 
 as well as to that of the Lord Lieutenant, will easily account for 
 the aberration of the instrument. All the witnesses agree in stating 
 it to be their impression that the bottle was directed against his 
 Excellency. Besides the general proof to show that the bottle 
 came from the upper gallery, there are three witnesses who dis- 
 tinctly saw Henry Handwich throw it. One, whose arrival we 
 hourly expect, had his attention excited by some expression of 
 Handwich, and immediately marked him. He swears positively to 
 his having thrown the bottle. 
 
 George Graham was one of the principal rioters. He had a 
 large rattle which he used at first for the purpose of making a 
 noise; and when it had performed its services in that department, 
 he converted it into an instrument of personal attack. He broke 
 it into two pieces, and it will be distinctly proved that he came for- 
 
638 SPEECH OF WILLIAM CONYNGHAM PLUNKET 
 
 ward and took delibera:te aim at the Lord Lieutenant's head; so 
 good an aim that it struck the cushion of the next box, and with 
 such force that it cut the cushion and rebounded on the stage. If 
 it had taken effect, in all probabiHty it would have put an end to 
 his life. 
 
 When I state that a bottle was thrown at the king's representa- 
 tive, and that implements of violence were flung at his person, such 
 is the state of the public mind, that it is listened to as if it were a 
 mere bagatelle, a jeu (T esprit, a: trifle of which the Lord Lieutenant 
 need not take any notice, and which is below the attention of the 
 government and the law officers'. Why, gentlemen of the jury, are 
 we awake ? Can we be insensible to the effect of such occurrences 
 upon the honor and safety of the country ? Can we reflect, with- 
 out indignation, that such an outrage should be committed in a 
 civilized country against the- person of his majesty's representative, 
 because he had the presumption, in opposition to a desperate gang, 
 to execute the parting injunctions of the king in a manner not cal- 
 culated to give offense or excite animosity ? The sentiments of the 
 audience were roused; some rushed up to the gallery. Graham 
 first flung the heavy part of the rattle, and then the light. It will 
 be produced to you. Forbes, as 1 have already'stated, was a party 
 to the entire system of the party, and was present at the sending 
 the men from Daly's to the gallery with bludgeons. He stationed 
 them in the upper gallery at their post. After the bottle and rattle 
 had been thrown, he was observed in the lattices or pigeon holes, 
 immediately adjoining the left side of the upper gallery, in which 
 he had previously stationed the party; he was separated from them 
 only by the spikes dividing those two parts of the house. He was 
 seen actively encouraging the rioters; he held in his hand a whistle 
 with which he sounded the alarm, and gave a signal which was an- 
 swered through the whole house. He was asked by a magistrate 
 why he used the whistle, to which he replied, "for fun." He was 
 then arrested, but liberated on promise to give bail. 
 
 Here Mr. Plunkett briefly referred to conversations of some of the traversers, 
 after the affair at the theatre, to show that they boasted of what they had done. 
 He then continued: 
 
 14. The action of the attorney-general an exercise of 
 WISE discretion. 
 
 Am I now to justify myself in your opinion, and in that of the 
 public, for the exercise of my discretion in this ex officio informa- 
 
IN REX V. FORBES AND OTHERS. 639 
 
 tion, by which I have been enabled for the first time to bring these 
 facts before the public ? I ask any man Vvho has a principle of 
 candor or honesty in his composition, whether he is not bound to 
 acquit me, and whether I should not have basely betrayed the king 
 whom I serve, and the office with which he has honored me, if I 
 suffered public justice to be stifled and obstructed ? When these 
 transactions were brought under the consideration of the govern- 
 ment, the law officers were consulted by the magistrates. We be- 
 stowed the most patient attention and laborious investigation on 
 the case; for five or six days we were occupied at this business. 
 Every day some new light was thrown upon it, until it at length 
 assumed an aspect so formidable as to lead us to the apprehension 
 that his Excellency's life had been directly aimed at. When we 
 learned that Forbes had avowed his approbation of the act; when, 
 after the conspiracy had shown itself in its most desperate effects, 
 he expressed his regret at its failure, and his determination to make 
 another attempt more effectual; we felt, when called upon for our 
 advice upon his application to be discharged, that we could not 
 justify it to our conscience and our sworn duty, or to the respect 
 due to the high personage and illustrious character who had been 
 offered at, if we had suffered him to go at large till we knew the 
 whole of the transaction. There was at that time evidence, not 
 only sufficient to warrant a -grand jury for finding a bill for con- 
 spiracy to murder, but even for a petty jury to found a verdict for 
 conviction. It was one thing to consider the proper species of 
 committal, and another in what way we should ultimately proceed. 
 When that point came to be finally decided on, and we had reason 
 to believe that the whole of the evidence was before us, our deter- 
 mination was not to proceed on the capital charge. It was in- 
 finitely better we should be censured for the tameness of our pro- 
 ceeding, than that we should be arraigned for its rigor. We felt 
 that before we sent up an indictment containing a capital charge, we 
 should be clearly satisfied that the primary object of the conspiracy 
 was to take away the life of the Lord Lieutenant, and that, if any 
 doubt rested on the case, it would be better to be blamed for the 
 timidity and forbearance of the prosecution than exposed to the 
 heavy charge of exerting a rigor beyond the law. We were glad to 
 show in the instance of the most illustrious personage of the realm 
 a strict observance of the law. What satisfied my mind against 
 sending up a bill of indictment on a capital charge was this, that 
 the object of driving the Lord Lieutenant by violence from the 
 
640 SPEECH OF WILLIAM CONrNGHAM PLUNXET. 
 
 theater, and from the country, though it involved the imminent 
 hazard of the life of the Lord Lieutenant, was distinct from the 
 notion of a conspiracy to murder him. When it clearly appeared 
 that the object was to put down the Lord Lieutenant's government 
 and force him from the country, although this plot involved in it 
 an outrage on his person, I did not think that in a capital case a 
 jury could be called upon to say that murder was the aim of the 
 conspiracy. Under these circumstances, therefore, we thought it 
 right to send up the indictments for the misdemeanors which the 
 grand jury have thrown out. 
 
 The nature of these informations has already been laid before 
 you. There are tv/o distinct informations; one is for a riot and the 
 other for a conspiracy to riot. The counts vary; but in each there 
 is alleged, first, a conspiracy to riot, and then a conspiracy to hoot, 
 groan, hiss and assault the Lord Lieutenant. In point of law, 
 either or any part of these charges, if proved, will justify a verdict. 
 I have no doubt of being able to prove the whole. I have stated 
 this case without exaggeration against the traversers at the bar. I 
 have no feelings in the discharge of my duty, except the desire 
 faithfully to acquit myself of what I owe to my country and to my 
 sovereign. I may have expressed myself with warmth, I hope not 
 with intemperance. But after I have disabused your minds of the 
 ten thousand falsehoods which have been circulated on this sub- 
 ject, I feel it would be trifling with public justice to say, that this 
 was the act of a few misguided ruffians, growing out of any sudden 
 impulse. It is a proceeding originating with a gang within the 
 limits of this city, associated for the purpose of putting down the 
 king's government, of driving the Lord Lieutenant from this coun- 
 try, and of showing that he has not the power, against their wishes 
 and their authority, to discharge the duties belonging to his ex- 
 alted station. 
 
SPEECH OF JOHN HENRY NORTH. 
 
 Opening for the Defense in Rex v. Forbes and Others. — 
 Conspiracy and Riot. 
 
 IN THE COURT OF KING'S BENCH, DUBLIN, HILARY TERM, 
 3D GEORGE IV, FEBRUARY 5th, 1823. 
 
 Ana'ltsis of Me. North's Speech. 
 
 1. A proceeding- based upon an ex officio in- 
 
 formation, illegal and without prece- 
 dent 
 
 2. The charges and the evidence. 
 
 3. Loyalty the chief characteristic of Orange- 
 
 men. 
 
 4. Propriety of decorating King William's 
 
 statue discussed. — Scene when the 
 ceremony was forbidden. 
 
 5. The attorney-general's tribute to the 
 
 memory of King "William.— Right of 
 defendants to respect his memory. 
 
 6. The real object of the Lord Lieutenant's 
 
 visit to the theater. 
 
 7. A protest against unmerited applause no 
 
 crime. 
 
 8. The defendants never contemplated per- 
 
 sonal violence. 
 
 9. The testimony of the Atkinson brothers 
 
 discredited. 
 
 10. Sketch of Michael Farrell, and review of 
 
 his testimony. 
 
 11. Arraignment of Proctor M'Namara, who 
 
 saw the bottle " in transit." 
 
 12. The conduct of defendants not criminaL — 
 
 Supposed dialogue between Addison 
 and Lord Somers. 
 
 13. References to Bolingbroke, the Duke of 
 
 Rutland, and Queen Elizabeth. 
 
 14. Political aspect of a verdict consid- 
 
 ered. 
 
 The defendants embraced in the information in this remarkable trial were 
 James Forbes, George Graham, William Graham, Henry Handwich, otherwise 
 called Henry Handbridge, Matthew Handwich, otherwise called Matthew Hand- 
 bridge, Robert Fletcher the younger, Thomas Kelly, William Brownlow, Rich- 
 ard Mcintosh, William McCullogh, and William Heron, and divers other per- 
 sons to the attorney-general unknown. There were two informations. The 
 first charged a conspiracy, confederation and agreement to hiss, groan, insult and 
 assault the Lord Lieutenant while he should be present in the theater, and to 
 procure the same to be done. The second charged that the defendants did, with 
 force and arms, unlawfully make a great noise, riot and disturbance in the thea- 
 ter, the Lord Lieutenant then and there being present, and did then and there, 
 with force and arms, publicly and openly hiss, hoot, groan, insult and assault 
 the Lord Lieutenant, and with force and arms throw, fling and cast at the Lord 
 Lieutenant, with intent to strike and hit the Lord Lieutenant, '* divers pieces of 
 wood and copper, and divers glass bottles, in contempt of our lord the king and 
 his laws, to the evil example of all others in like cases offending, and against 
 the peace of our said lord the king, his crown and dignity." The counsel en- 
 gaged in the cause were numerous. For the crown appeared the Attomey-Gen- 
 
 41 
 
 [641] 
 
642 SPEECH OF JOHN HENRY NORTH 
 
 eral (Mr. Plunket), the Solicitor-General (Mr. Joy), Sergeant Lefroy, Sergeant 
 Torrens, Mr. Townsend, and Mr. Greene; Agent, Mr. Kemmis. For the pris- 
 oner James Forbes appeared Mr. Johnstone, Mr. Blackbume, Mr. Speer, Mr. 
 Rolleston, Mr. Hamilton, Mr. Perrin, and Mr. Law; Agent, Mr. Chambers. 
 For Matthew Handwich and George Graham appeared Mr. Driscoll, Mr. Scriven, 
 Mr. Speer and Mr. Hamilton. Mr. North appeared for Henry Handwich and 
 George Graham. For William Brownlow Mr. Scriven appeared; Agent, Mr. 
 Fearon. Upon the bench were the Lord Chief Justice (Charles Kendal Bushe) 
 and Mr. Justice Jebb, Mr. Justice Burton and Mr. Justice Vandeuleur, associ- 
 ates. 
 
 When the crown rested, Mr. Driscoll opened for the defense. Mr. North 
 then delivered the following address, after which Mr. Johnstone spoke to the 
 jury. The case was summed up by the Solicitor-General (Mr. Joy). The Chief 
 Justice and Mr. Justice Jebb charged the jury. The trial commenced on Mon- 
 day morning, February 3d, and was closed late on Friday the 7th. The follow- 
 ing day, the jury, having been unable to agree except as to the defendant Brown- 
 low who was acquitted, was discharged. 
 
 John Henry North died in September, 1831, at the early age of forty-two, 
 without having gained the distinctions to which his abilities entitled him. He 
 was a man of first-rate talents. His university career was one of the most bril- 
 liant ever attained, and no student within a century was graduated from Trinity 
 College, Dublin, with greater honors. He had conferred upon him an opiime^ 
 a mark of distinction seldom obtained, and only given as a recognition of the 
 highest merit in every department of learning. When called to the bar it was 
 fondly predicted that his career would form a new and splendid era in the annals 
 of Irish oratory, but this expectation, for some reason, was not fulfilled. Speak- 
 ing of his power as an advocate, Sheil says : " One qualification of a speaker he 
 possessed in an extraordinary degree. For extemporaneous correctness and 
 copiousness of phrase, I would place him in the very highest rank. All that he 
 utters, wherever the occasion justifies the excitement of his faculties, might be 
 safely printed without revision. Period after period rolls on, stately, measured 
 and complete. There is a paternal solicitude — perhaps a slight tinge of aristo- 
 cratic pride, in his determination that the children of his fancy should appear 
 abroad iri no vulgar garb. He is not like O'Connell, who, with the improvidence 
 of his country, has no compunction in flinging a brood of robust young thoughts 
 upon .the world without a rag to cover them." 
 
 His speech to the jury in the present case, though it cannot be regarded as 
 a specimen of the first order of excellence, is an able address. His plea was 
 rather ingenious. He advanced the theory that the real object of the Lord Lieu- 
 tenant's presence at the theater was to test the popularity of his administration, 
 and therefore the marks of approval or disapproval were not only justified, but 
 were called forth by Lord Wellesley himself, and were the legitimate result of 
 his visit. His tribute to the accomplishments of Lord Plunket as an orator, in 
 connection with the latter's panegyric on King William, is one of the most fin- 
 ished passages in the speech. Mr. North spoke as follows : 
 
 Gentlemen of the Jury: — I rise to address you on behalf 
 of Henry Handwich and William Graham. When these men ap- 
 
IN REX V. FORBES AND OTHERS. 643 
 
 peared to these informations, on the first day of the term, I confess 
 I v/as most anxious to obtain a postponement of their trial. I was 
 apprehensive that in the unexampled ferment of the public mind it 
 would have been impossible to procure for them a fair and impar- 
 tial hearing. What corner is there of the land; what shore so 
 lonely and remote; what glen or valley so silent and sequestered, 
 that has not been disturbed by the din of this extraordinary pro- 
 ceeding ? The innumerable addresses pouring in day after day and 
 hour after hour, from almost every county, from every corporation — 
 the church, the university, the capital — collectively in an aggregate 
 meeting, distributively in parish meetings, taking guilt for granted, 
 anticipating conviction, and imploring punishment upon these yet 
 untried individuals; while the answers of the Lord Lieutenant to 
 those addresses, by their rich, ever-varying, and, let me add, most 
 agitating eloquence, kept alive and fanned the popular flame until 
 it had become a consuming fire. At one period, I am convinced, 
 all hope of a fair investigation would have been utterly vain, and 
 these men must have come before the tribunals of justice like vic- 
 tims bound and bleeding at the foot of the altar, and ready for im- 
 molation. Thank God, however, that dreadful interval is past. 
 The first gleam of safety and deliverance broke from the darkest 
 quarter of the heavens, and, through the merciful interposition of 
 providence, was at length afforded by the extravagance and exag- 
 geration of our enemies. The most violent were startled into re- 
 flection; the most intemperate were stunned into sobriety, by the 
 monstrous and incredible charge of assassination and murder; yet 
 the sea still rolls and heaves though the storm has subsided, and I 
 am well warranted even now in demanding from you, on the 
 ground of the public agitation alone, a more than ordinary vigi- 
 lance and attention. 
 
 But there is yet another circumstance which characterizes this 
 case, and entitles me to call for the most scrutinizing jealousy, and, 
 gentlemen, it is this: that there exists in this case an inauspicious 
 and unnatural alliance between the natural favorites of the people 
 and the official servants of the crown — an alliance at all times most 
 dangerous to the rights and privileges of the subject. Never are 
 they in such imminent hazard as when the resentment of the court 
 and the rage of the people — the vultus instantis tyranni and the 
 civium ardor prava jubentium — unite in one common object and 
 concur in the same design. When those two antagonist forces, 
 popularity and power, conspire in the same direction, their strength 
 
644 SPEECH OF JOHN HENRY NORTH 
 
 is irresistible; the floodgates of oppression are thrown wide open, 
 and our liberties and laws are borne down by an overwhelming tor- 
 rent. I am fully convinced — I do most sincerely, and from my 
 heart, believe, it was no consciousness of the support to be derived 
 from this alliance, but a sense of duty, which, however, I must 
 consider a mistaken one, that induced the attorney-general to adopt 
 this strange and hitherto unheard-of proceeding. 
 
 I. A PROCEEDING BASED UPON AN EX OFFICIO INFORMATION, 
 
 ILLEGAL AND WITHOUT PRECEDENT. 
 
 • 
 
 It is, I believe, as yet unknown in the annals of our jurispru- 
 dence, that the self-same charge which has been dismissed by the 
 verdict of a grand jury should be brought forward again by an 
 attorney-general, upon an appeal to his own private judgment. 
 Gentlemen of the jury, this is new; and I expected therefore, when 
 this case was opened, that some precedent, some authority, some 
 dictum at least, would have been cited in support of it. For see to 
 what it leads: if this course of proceeding is to be sanctioned, the 
 authority of a grand jury is annihilated, and the institution itself 
 becomes a mere formal nullity. They are intrusted with just power 
 enough to forward the objects of the crown by finding bills accord- 
 ing to its wishes; but if they presume to ignore them, their judg- 
 ment is set aside as a matter of- course by the attorney-general, 
 who files his ex officio information. Preferring bills to a grand jury 
 under circumstances like these, seems to me a circuitous and un- 
 necessary proceeding. It would surely be better and more seemly 
 that the affront thus given to them should be dispensed with, and 
 that the attorney-general should file his information at once. 
 
 But, it is said, an authority is to be found for this singular mode 
 of proceeding, which has been hunted out of the Commons journals 
 of Ireland. The attorney-general mentioned this case, by a piece 
 of admirable forensic address, to evade the force of it; because, as 
 far as it is any authority at all, it is decidedly against him. Bills, 
 it appears, had been sent up to the grand jury, and returned by 
 mistake indorsed as true. The foreman, and afterwards the other 
 members of the jury, made affidavits that they had intended to 
 ignore the bills. On the motion of the attorney-general, the in- 
 dictments were then quashed, and he filed an ex officio information. 
 But what was the consequence ? The matter attracted the imme- 
 diate attention of the House of Commons. They entered warmly 
 into the subject, appointed a committee to search for precedents. 
 
m EEX V. FORBES AND OTHERS. 645 
 
 and having inquired from the members of the House who belonged 
 to the legal profession, whether any existed, were by them informed • 
 that such a proceeding was without example. An ex officio infor- 
 mation, even in those circumstances under which it is ordinarily 
 filed, is, to say the least of it, a severe exercise of the prerogative; 
 but an information of this nature, after bills had been ignored by 
 a grand jury, is without example; at least I have not been able to 
 discover one, and my search has been laborious, since the institu- 
 tion of grand juries itself has been transmitted to us from our 
 Saxon ancestors. What sayS Sir Matthew Hale, that great model 
 •of Christian piety, political integrity, and legal wisdom ? " In all 
 criminal cases, the safest mode of proceeding, and the most conso- 
 nant to the statutes of Magna Charta, is by presentment or indict- 
 ment of twelve sworn men." What says Mr. Fox, who brought to 
 the study of the Constitution the knowledge of a statesman as well 
 as of a lawyer ? " There are," he observes, " two great mainsprings 
 in the Constitution, which, if preserved in unimpaired vigor, the 
 other parts may be occasionally repaired; but if these be suffered 
 to decay, the whole system will fall into confusion; and these two 
 mainsprings," says he, " are the representation of the people in the 
 Commons House of Parliament, and the juridical power of the 
 people through the medium of the grand and petty jury." I have 
 dwelt upon this topic, because I feel its importance. They are not 
 obviously violent or arbitrary measures that we have reason to ap- 
 prehend, so much as those silent encroachments upon the Consti- 
 tution, which are the more dangerous, because they are the less 
 glaringly perceptible. A precedent of this kind, my Lords, is al- 
 ways fruitful, and the progeny is ever more mischievous than the 
 parent. It is against such attempts that we are warned by a cele- 
 brated writer, who has become a classic in our language. " One 
 precedent," says he, " creates another. They soon accumulate and 
 constitute law. What yesterday was fact, to-day is doctrine. Ex- 
 amples are supposed to justify the most dangerous measures, and 
 when they do not suit exactly, the defect is supplied by analogy." 
 Therefore, although it would be in me an indecorous presumption, 
 before their lordships have intimated an opinion, to pronounce this 
 proceeding absolutely illegal; yet here, in the presence of this high 
 court, before that learned bar, and in the face of the whole country, 
 I do arraign it as discountenanced by all great authority, as with- 
 out the warrant of any sound precedent, as alien to the mild spirit 
 of the British law, and practically and essentially unconstitutional. 
 
646 SPEECH OF JOHN HENEY NORTH 
 
 2. The charges and the evidence. 
 
 Gentlemen, having made these observations on the nature of 
 the proceeding, let me now examine the charge contained in the in- 
 formations, and the evidence adduced in support of it. The offense 
 charged is a conspiracy to insult and assault the Lord Lieutenant 
 in the public theater. I shall not examine the information as a 
 special pleader. I do not condescend to legal subtleties. I say, 
 that is the charge bona fide and substantially; and the attorney- 
 general is of a character far too sincere and manly to pretend that 
 there is any other. I say it in his hearing, and without fear of 
 contradiction, that the benches of the pit might have been torn up, 
 the panels of the bojes broken in, and every luster in the house 
 demolished, before he would have filed an ex officio information, if 
 the Lord Lieutenant had not been in the theater. There are cir- 
 cumstances in this case ridiculous enough; but the great absurdity 
 does not attach to it, of our being assembled here, day after day, 
 in the middle of term, before the whole court, upon a solemn trial 
 at bar, to ascertain whether or not there has been a riot in the 
 upper gallery. No, gentlemen; this is emphatically a State trial, 
 for State purposes; and the question which is now before you and 
 before the country, the issue which you have to try, is whether 
 these men conspired together personally to insult or assault his 
 Excellency the Lord Lieutenant. 
 
 3. Loyalty the chief characteristic of Orangemen. 
 
 The first circumstance which the attorney-general has brought 
 forward (for I must take the liberty of following him through a part 
 of his statement), as giving color to the accusation, is, that the de- 
 fendants belong to the society of Orangemen. They do so; it is 
 the fact; they do not disguise it; they glory in it; it is their boast 
 that they are Orangemen. Gentlemen, I do not stand here to give 
 my applause to that institution. Perhaps my private opinion may 
 be that it is not calculated to accomplish the ends it was originally 
 instituted to attain. Perhaps it may be my private opinion that it 
 is not likely to advance public prosperity, or to promote national 
 security, happiness or peace. But what of that ? I have the mis- 
 fortune on this subject to differ from some of the greatest, wisest, 
 and most experienced men in the country. But whether they or I 
 be right in this respect, is not the question. The question is this: 
 
IN EEX V. FORBES AND OTHERS. 647 
 
 Whatever men of this description have been charged with, whether 
 illiberality of sentiment, mistaken opinions — a wrong political bias 
 — have they ever been accused of disloyalty ? Has that ever been 
 one of the crimes imputed to them ? Have they ever been re- 
 proached with want of loyalty to their king, or disloyal disrespect 
 for the king's representative ? Why, gentlemen; the loyalty of these 
 men is the bond which unites them. It is an inborn, inbred quality 
 of their nature, growing with their growth, and strengthening with 
 their .strength — part of their bone and their flesh. Theirs is not 
 the loyalty which is assumed for a purpose; which comes in and 
 goes out with an occasion; which compounds for factious insolence 
 to-day, by cringing adulation to-morrow. It is a steady, permanent, 
 unfailing principle of action. More than a principle— it is a pas- 
 sion. Their enemies say, it is a prejudice. Perhaps it is all three, 
 and has the strength of all three united. I do not hesitate, there- 
 fore, to say, that a charge of disloyalty, or of anything approaching 
 to disloyalty, made against such men, is prima facie, and upon the 
 first opening of it, glaringly improbable. 
 
 4. Propriety of decorating King William's statue dis- 
 cussed. — Scene when the ceremony was 
 forbidden. 
 
 But the attorney-general has adverted to certain circumstances 
 in the history of this country, which, he presumes, may take off in 
 your estimation this first apparent improbability. For this purpose 
 he has called your attention to that State measure of his majesty's 
 government as he has now instructed us it was; but it is a fact of 
 which the public, or at least I may say myself, had not been previ- 
 ously apprised — I mean the interruption to the dressing of the 
 statue of King William. Upon that subject, gentlemen, I may 
 venture to give my opinion, because I am not restrained, as the 
 attorney-general is, by the reserve which belongs to a high official 
 situation. I say, therefore, it is my sincere opinion, that that idle 
 ceremony ought to be discontinued. I have felt all my life, that 
 everything in the slightest degree offensive to my Roman Catholic 
 fellow-subjects ought to be studiously and anxiously avoided. 
 There does not live a man more desirous than myself that they 
 should be admitted to the fullest privileges of the British Constitu- 
 tion, and maintained in the secure enjoyment of every advantage, 
 honor, and distinction, which may be the acquisition of industry, 
 the prize of talents, or the reward of virtue. These are the senti- 
 
648 SPEECH OF JOHN HENKT NORTH 
 
 ments which I have always avowed, in private and in public, in pe- 
 titions to the legislature, in requisitions to the magistrates to as- 
 semble meetings for the purpose of petitioning, and in canvassing 
 for a seat in the House of Commons amongst electors exclusively 
 Protestant. Gentlemen, notwithstanding these impressions, and 
 notwithstanding my opinions on the particular subject itself of un- 
 dressing the statue, and which opinions I had expressed somewhat 
 strongly and, perhaps, imprudently, I will frankly own to you, that, 
 when the thing itself occurred, I was taken by surprise. Never 
 shall I forget the emotions which I felt when, on the 4th of Novem- 
 ber, I walked down to College Green and beheld the scene which 
 was there exhibited. When I saw the statue of that illustrious 
 monarch, which, though I had not been so much accustomed to 
 reverence it, was so dear to my fathers and my kinsmen, stripped, 
 for the first time, of its accustomed honors, deprived of those an- 
 nual decorations which had been the old man's pleasure and the 
 poor man's pride, surrounded by armed horsemen with drawn 
 swords, hemming in and closing on the captive hero; it seemed to 
 me, for a moment, as if a successful invasion had been effected on 
 our shores, as if military occupation had been taken of the capital, 
 and some Scythian barbarian, from the Tanais or the Volga, was 
 heading the licentious troop, triumphing in the heart of the city, 
 and with his flickering sabre, menacing and insulting the venerable 
 monument of our laws, our liberties, and our religion. 
 
 5. The attorney-general's tribute to the memory of King 
 
 William. — Right of defendants to respect 
 
 his memory. 
 
 Gentlemen of the jury: When such were my feelings, thinking 
 as I do, and with the political sentiments which I entertain, and 
 having my views upon the great subject of Catholic claims, what, 
 I leave you to suppose, were the feelings of men who thought dif- 
 ferently from me, who believed that Protestant rights and Protest- 
 ant privileges, and all that is meant by Protestant ascendancy, were 
 main props and pillars of the British Constitution, and that, with- 
 out them, there was no security for Protestant property or peace ? 
 What, I ask you, were likely to be their feelings ? The attorney- 
 general has done justice to them; he has portrayed the character 
 and sketched the history of King William. I shall not attempt to 
 follow him there; I shall not enter into any such vain and foolish 
 emulation; I might as well think to shoot arrows at the sun. Gen- 
 
m REX T. FORBES AND OTHERS. 649 
 
 tlemen, you have heard that fine description. . The attorney-general 
 has laid his offering on the altar of King William; an offering of 
 his own workmanship, fresh from the mint of his transcendent 
 genius, and glowing with all those divine attributes and godlike 
 qualities which the powers of a sublime eloquence enabled him to 
 stamp upon it. But let him not, therefore, sneer at the poorer of- 
 fering of humbler men to the same object of their worship; his 
 gift was one every way worthy of him, suited to his extraordinary 
 talents, his refined taste and superior education; but we are taught 
 to believe that the rude wonder of the shepherds was as acceptable 
 as the gold, frankincense and myrrh of the eastern kings. The 
 attorney-general has taunted these poor men with their want of 
 taste; the sashes and scarfs with which they decorated the statue 
 were tawdry and vulgar, it seems, and the mantua-maker of King 
 William, as he termed him, did not adjust his millinery as well as 
 he might. But, gentlemen, this is not a point of taste; it is a mat- 
 ter of feeling. The soldier, in the field of battle, clings with as 
 much devotion and fidelity to his tattered colors as if they displayed 
 the painting of Rubens or the designs of Raphael. I, therefore, 
 claim for these men what the attorney-general has demanded for 
 himself; I claim for them the right to express, in their own homely 
 dialect and after their own vulgar and tasteless manner, if you will 
 have it so, their respect for the memory of King William, and their 
 gratitude for the benefits which he has conferred upon them and 
 on their country. 
 
 But such sentiments or such expression of them, you may tell 
 me, are not justified by philosophy and reason; and if you will 
 argue the point with me like metaphysicians or professors, per- 
 haps I shall be compelled to admit that they are not; but be it that 
 they are not reason, I tell you they are nature. There is a prin- 
 ciple implanted in the human breast for the highest and the noblest 
 purposes, that, by attractions which we cannot always explain, but 
 which we never can resist, draws us together into bands and com- 
 panies of kindred feeling. Sometimes it is the recollection that we 
 are sprung from the same endeared and consecrated soil; sometimes 
 the spirit-stirring thought that we have drawn our loyal swords in 
 defense of the same sovereign and the same law, or, perhaps, the 
 touching remembrance that we have bowed together before the altar 
 of a common faith. Whatever they may be, they are the links that 
 join heart to heart; the fine chords that bind man to man, that are 
 as sensitive as they are strong, and never yet were broken with im- 
 
650 SPEECH OF JOHN HENRT NORTH 
 
 punity. If the attorney-general had consulted the illustrious per- 
 son at the head of his majesty's government in this country, he 
 would have told him that even the feeble pliant Hindoo who bows 
 his neck beneath the yoke of every conqueror, Christian and Ma- 
 hometan, Tartar and European, will not permit one darling rite, 
 one ancient usage, one cherished prejudice to be touched, revolted 
 or disturbed. Not Tamerlane nor Zingis, not Clive nor Wellesley, 
 in the plentitude of their power, ever dared to assail him in the 
 sanctuary of his feelings; and shall Irishmen endure in tame and 
 uncomplaining submission, what would not be borne by the feeble 
 and enslaved Hindoo ? 
 
 6. The real object of the Lord Lieutenant's visit to 
 THE theater. 
 
 I am so far from wishing to conceal, then, that the discontinu- 
 ance of the annual commemoration of King William's birth-day 
 gave dissatisfaction to a certain class of his majesty's subjects, that 
 I freely admit it. I admit also that to this class the defendants be- 
 longed. Let us now inquire how far, and to what extent, their dis- 
 pleasure carried them. Apply yourselves with diligence to this 
 inquiry, for it is the issue you are to try. When the Lord Mayor 
 published his proclamation to prohibit the decoration of the statue, 
 a considerable degree of irritation was produced. It was not con- 
 fined to the defendants; it was felt by their fellow-citizens of a 
 higher order, and expressed in resolutions of the common council 
 and, I believe, some of the guilds. In this state of the public 
 mind, and while men were under the influence of these feelings, the 
 Lord Lieutenant, who had now been nearly a year at the head of 
 the government, announces his intention of publicly visiting the 
 theater for the first time. Pause, gentlemen, and ask yourselves for 
 what purpose a Lord Lieutenant visits the theater. Let no man 
 deceive you into a notion that he goes there for the sole object of 
 witnessing the spectacle. There is another and principal purpose 
 to which this is collateral and subordinate — the purpose, namely, of 
 receiving the applauses of the people and publicly manifesting the 
 popularity of his administration. If he should be fortunate enough 
 to receive these testimonies of public approbation, the fact is im- 
 mediately signified to the government in England. It appears in the 
 official papers, and is understood to bestow lustre, if it does not 
 confer strength, on the ministers of the crown. 
 
IN REX T. FORBES AKD OTHERS. 651 
 
 7. A PROTEST AGAINST UNMERITED APPLAUSE NO CRIME. 
 
 Now, gentlemen, it so happens that I feel, or that Graham feels, 
 or that Handwich feels, that the Lord Lieutenant does not deserve 
 this popularity which he thus publicly looks for. We are unwilling 
 that our sentiments should be misunderstood, as they would be if 
 the Lord Lieutenant were received with universal and unanimous 
 applause. I protest I have yet to learn that there is anything crim- 
 inal in going to the theater to oppose the tide of that popularity 
 which I think unmerited, or in refusing to join in those plaudits by 
 which it is evinced. And yet has any other offense been proved 
 against these men ? We were told, and the nation actually believed 
 it, that an attempt had been made to assassinate the Lord Lieu- 
 tenant. But what are the facts disclosed by the witnesses ? That 
 a number of persons of the purest and most untainted loyalty, 
 meeting in their Orange lodges, agree together to assemble on the 
 night of the Lord Lieutenant's going to the theater — in the upper 
 gallery — why be it so; but what to do there? to perpetrate what? 
 deadly treason ? Why, after " God save the King " had been played, 
 to call for the " Boyne Water," to let the Lord Lieutenant know 
 what, perhaps, had been concealed from him by his confidential ad- 
 visers, that there were men of too humble a rank to approach his 
 person and attend his levees, yeomen, and artificers, who still loved 
 the old favorite and once national air of the " Boyne Water," who 
 felt their blood warmed and their hearts cheered by its notes, and 
 kindling within them the spirit of their conquering ancestors. 
 Gentlemen, they assembled for that purpose, and for that purpose 
 only. I beg pardon — there might have been another. I will not 
 say it was no part of their intention to show signs of disapproba- 
 tion on the appearance of the Lord Mayor. But I have yet to 
 learn that that worshipful person comes within the statutes of trea- 
 son, or that, in the dignity of Lord Mayor, there is anything ex vi 
 termini, to speak with the grammarians, or ex officio, to speak with 
 the attorney-general, which gives him the protection of prerogative. 
 I never heard that he could touch for the king's evil, or that royal 
 virtue emanated from the white wand and gold chain. The Lord 
 Mayor is, I dare say, a very excellent man and a very worthy magis- 
 trate, and, like his predecessor in the Commons' journals, he may 
 yet be knighted for his political merits; but it is no misprision of 
 treason to hiss him in the theater. 
 
652 SPEECH OF JOHN HENRY NORTH 
 
 8. The defendants never Contemplated personal 
 violence. 
 
 To call for the " Boyne Water " then, and possibly to hiss the 
 Lord Mayor, these men assembled. But take this with you, that 
 when they made these determinations, it was no part of the agree- 
 ment; nay, it was expressly guarded against by the agreement, that 
 any personal violence should be offered, or any personal insult or 
 offense given to the Lord Lieutenant. We have that upon the evi- 
 dence of George Atkinson. We have, further, that when they were 
 collected at Ship street, one of them seeing his companions with 
 sticks, advised that they should be left behind, lest by any accident 
 they might lead to mischief. Nor would the witness swear that 
 this advice was not taken by many. Others, indeed, thought that 
 they were sufficiently masters of themselves, not to be exposed to 
 this danger; and others, again, no doubt, believed them requisite to 
 their safety. It was amusing enough to hear the terms in which 
 these sticks were described. One witness told us, very significant- 
 ly, they were short sticks, and another disclosed the prodigious 
 fact that they had knobs at the end of them; but that any improper 
 use was made of them, of this there was no evidence at all. 
 
 Any one who knows the powers of the attorney-general, must 
 be perfectly aware that it is with him a matter of the greatest facil- 
 ity to represent the plainest and simplest facts in such a manner as 
 to make them appear strange, startling and extraordinary. Never 
 have I seen him exert this wonderful talent to the same degree as 
 on the present occasion. I know not whether you have yet re- 
 covered from the emotions which his speech excited. But the 
 moment that George Atkinson was examined, no man, with the 
 slightest experience in courts of justice, but must have perceived 
 that the fabric which he had so artfully built up in the statement 
 was crumbling and dilapidating before the evidence. Admitting 
 every word spoken by George Atkinson to be true, is there any 
 other conspiracy proved than a conspiracy to call for the " Boyne 
 Water" after "God save the King," and to show the Lord Lieu- 
 tenant, by the expression of their feelings, that with them at least 
 he was unpopular. 
 
 But they had a further object, it is said— to drive the Lord 
 Lieutenant from the theater, and eventually from the country- 
 Here is one of the ingenious but cruel artifices I complain of. See 
 the turn that is given to the evidence. It was said, proposed, 
 
IN REX V. FORBES AND OTHERS. C53 
 
 agreed, that they should go together to the theater and call for the 
 "Boyne Water;" "he will then see," says some one, "that he is not 
 liked, and perhaps in disgust, for he is a sensitive man, he may 
 leave the theater;" " and perhaps," says another, yet more sanguine, 
 " perhaps, with the blessing of God, he may leave the country, too." 
 Something of that sort was probably said. But will you believe 
 that it was part of the original design, one of the direct objects 
 then in contemplation, to drive the Lord Lieutenant that night 
 from the theater and afterwards from the country ? Drive him 
 from the theater! How ? Where were the means ? Exquisite ab- 
 surdity! What were the arms they had collected for this great un- 
 dertaking ? What were the weapons, swords, guns, pistols, pikes, 
 to be used for his expulsion ? 
 
 I think I see these dreadful conspirators in close divan seated 
 round a table in full council: "We'll have him off, that's poz; but, 
 brother, what will you arm yourself with ?" " I'll arm myself with a 
 whistle; I'll whistle him off." "Ah," says the musician, "there's 
 nothing like the Boyne Water." If there was a tailor amongst 
 them, an assassinating tailor, he, to be sure, would "his quietus 
 make with a bare bodkin." The majority, however, are for a 
 bottle and rattle, and with these armamentaria belli they repair to 
 the scene of action, the upper gallery. And now observe how they 
 conduct their operations. In the first place, it would be prudent 
 one would think, if one meant to assassinate another, to get as near 
 to him as possible; but our wise conspirators take another view of 
 the case, and the Lord Lieutenant being close to the stage, they 
 file off to the upper gallery. Again, the Lord Lieutenant sitting 
 on the left hand of the house, and the object, as asserted, being to 
 launch some missile from their infernal machine which should 
 reach his person, they take their station in the extreme left of the 
 gallery, where they could not possibly see his figure, and whence, 
 from the construction of the house, the most dexterous hand could 
 send nothing that would strike him. Nay, what is more extraordi- 
 nary, if you believe George Atkinson, they occupied at first the 
 right-hand seats, where they had a full view of his Excellency, and 
 might take a just aim; yet this advantage they immediately resign, 
 and of their own accord quit that position and move off to the left. 
 All this is surprising, and leaves to the charge not a shadow of 
 probability. Were ever such means employed for such ends ? Or 
 did ever men possessing the use of their natural faculties, having 
 such designs, take such measures to effect them ? 
 
654 SPEECH OF JOHN HENRY NORTH 
 
 9. The testimony of the Atkinson brothers discredited. 
 
 But on whose evidence does this whole representation rest, even 
 such as it is ? Upon the testimony of two brothers, so help me — 
 the greatest villains I ever saw produced in a court of justice. The 
 old friends, as they described themselves, the sworn associates and 
 companions, the ancient allies of my clients — they steal into their 
 confidence, they get possession of their secrets and their hearts, 
 join with them in all their plans, concur in everything, go hand in 
 hand with them to the accomplishment of their common purposes, 
 and then they turn round — the Judases, the Arch-traitors — they 
 turn round upon their long endeared friends and sworn brother 
 Orangemen, and betray them to their bitterest enemies. Is it part 
 of an Orangeman's oath not to reveal the secrets of his lodge ? I 
 know not whether it be so or not, but it is a matter of no conse- 
 quence; the violation of an oath could add nothing to their guilt; 
 the bond of an oath is as nothing compared with the bond of an 
 association like theirs; linked together by the same political feel- 
 ings, by the bands of ancient friendship, by the ties of convivial 
 fellowship and social intercourse, by all that men hold most dear 
 and respected — they come forward to depose against their old asso- 
 ciates, to blast their fair fame and reputation, and expose them to 
 the full weight of that dire persecution with which the government 
 of the country has determined to bear them down. What was 
 their temptation ? Is it lucre ? That seems hardly a sufficient mo- 
 tive for such complicated iniquity; yet I cannot perceive any other. 
 There was no hate, no jealousy to gratify, no deadly revenge to be 
 satiated. When this trial is over, let them receive their reward. It 
 is quite right and proper. They have well deserved it. Verily, 
 verily, they should have their reward; but I trust it will be in hard 
 cash. I hope they will not be remunerated with a place in any de- 
 partment — customs, excise, police, any department, however inferior 
 or subordinate; if they should, they will pollute it; they will carry 
 into it infection, contagion, and corruption; they will dissolve the 
 ties that hold man to man, and spread through the community an 
 epidemic treason. 
 
 If there were no other evidence than that of these men, would 
 you convict any human being upon it ? Would you take a single 
 limb from the spider that crawls upon the wall, upon the testimony 
 of men like these ? The grave solicitor-general, however, may tell 
 me bye-and-bye, that they may yet regard one solitary virtue, 
 
IN REX V FORBES AND OTHERS. 655 
 
 though they have ceased to reverence the rest, and may tell truth, 
 though they have broken confidence. Gentlemen, one falsehood 
 George Atkinson has unquestionably told you. I am not a living 
 man this moment, if every word he swore as to his going to the 
 park was not a willful fabrication ? What! He tells you, that re- 
 solved to confederate with these men, for purposes which he would 
 represent as of the blackest nature, and concurring with them up 
 to the very day of their execution, he is at length struck with re- 
 morse, that he yields to it; but instead of giving notice of the plot 
 at the police offices, or in any of the hundred ways that were open 
 to him, he takes the extraordinary course of walking out forthwith 
 to the vice-regal lodge, to intimate the fact personally to the Lord 
 Lieutenant. At the gate he is stopped by the sentinel, who asks 
 him what business he had there, and upon this interruption, with- 
 out one further effort to obtain admission, without the slightest im- 
 portunity, without a word of remonstrance or expostulation, or the 
 least hint of the nature or importance of his business, he turns 
 round upon his heel and goes straight back to Dublin, repairs to 
 Ship street where his associates were assembled, becomes the most 
 active amongst them, furnishes the whistles, stations the party in 
 the upper gallery, and takes the most conspicuous part in all the 
 proceedings of the night; and after all, when the worst had hap- 
 pened, repairs to Flanagan's, sits down to supper with the rest, and 
 joins in the toasts and conversation. Do you believe him, gentle- 
 men ? Do you, sir? Or you, or you ? No; no man can believe 
 that he went that morning to the park. Why, gentlemen, see what 
 they might have done. The crown lawyers might have produced 
 the sentinel. They could ascertain who was the sentinel that day, 
 and procure his attendance here with as much ease as I could take a 
 tent of ink from that ink-stand. Why is not the sentinel forthcom- 
 ing? Be he what he may, Englishman, Irishman or Scotchman, 
 Roman Catholic, Protestant or Presbyterian, I am not a living man, 
 as I said before, if he would not give the lie to George Atkinson, 
 and therefore it is that he is not produced, and that he cannot be 
 produced. No intelligent man, whatever may be his wishes or 
 opinions, can believe this part of George Atkinson's evidence, and 
 discrediting him in that main fact, you are bound to disbelieve him 
 in every other. Great latitude is given to a jury, but it does not 
 extend to this that they may believe a witness to have sworn de- 
 liberately false in one part of his evidence, and yet found a verdict 
 upon the remainder. If you disbelieve him in this part of his nar- 
 
656 SPEECH OF JOHN HENRY NORTH 
 
 rative, I tell you, in the hearing of those learned judges, who will 
 hereafter direct you in point of law, that you must expunge the 
 evidence of George Atkinson from your notes. We have had 
 enough of him. 
 
 I shall not long detain you with his brother. They were indeed 
 par nobile fratrum. I wonder why the father was not produced. 
 He was waiting here at the door to see that his sons did their duty; 
 to see whether they would flinch; whether they would dare to look 
 Forbes and Graham in the face; whether their tongues would not 
 cleave to the roof of their mouths, while they were fabricating this 
 story against their old friends and companions. They maintained 
 their resoliftion, though it cost them a pang. Did you observe the 
 first of them ? Did you see the terrors of his conscience working 
 within him — issuing from his pores and steaming from his forehead 
 — a natural embarrassment of utterance, aggravated and increased 
 by his guilty confusion; and his shame and terror giving obscurity 
 to his expressions, so that he reminded me of Dr. Johnson's remark 
 upon the language which Shakespeare has put into the mouth of 
 Caliban, that " it is clouded by the gloominess of his temper and 
 the malignity of his purposes." Every answer he gave was at the 
 first unintelligible. He was always obliged to explain; and when 
 the most obvious questions were put to him, as: "Why he did not 
 endeavor to dissuade his companions ? " " Why he did not re- 
 monstrate with the sentinel ? " — he had no other reply than it did 
 not occur. " It did not occur! " Non mi ricordo was nothing to 
 him; and if his "did not occur" had the singularity of an Italian 
 phrase to give it currency, it would spread like the other, and be 
 the ready reproach for every shuffling, stammering and guilty wit- 
 ness. 
 
 It is not easy to distinguish between the evidence of the two 
 brothers; yet, perhaps, there are shades in their guilt. I think, of 
 the two, George is the worst. John, to be sure, was as willing to 
 betray his companions; but he did not resort to the miserable hy- 
 pocrisy of affecting a compunction which he never felt. When he 
 had stated all for which he was produced, he reserved a kind of 
 locus penitentim, made a compromise with his conscience, and tried 
 to lay up a store of merit by telling a little truth. On his cross- 
 examination, he admitted the important fact that Mr. Forbes had 
 said, " he could be no true Orangemen who threw the bottle." The 
 attorney-general attempted to destroy the effect of this admission, 
 by calling on the judges to refer to their notes for the words used, 
 
IN REX V. FORBES AND OTHERS. 657 
 
 and by observing that they went no further than his belief, and 
 were elicited by a leading question. Be it so. Who doubts that 
 Mr. Forbes used the expression ? If he had not, would John At- 
 kinson have dared to admit it ? I am glad he gave it the little tack 
 of his belief. It cannot impair the value of the evidence; it adds 
 to it, because it shows that it was wrung from an unwilling and re- 
 luctant witness. 
 
 Here Mr. North reviewed the evidence briefly to show that nothing had been 
 ■ proven against William Graham. He then referred to the testimony affecting 
 Henry Handwich, the person charged with having flung the bottle, as follows ; 
 
 lo. Sketch of Michael Farrell, and review of his 
 
 TESTIMONY. 
 
 Dismissing William Graham, therefore, I come to Henry Hand- 
 wich. He, to be sure, is made a prominent figure in the piece — 
 the assassination part has been attributed to him, and the public 
 ear yet vibrates with the charge that he flung a bottle at the Lord 
 Lieutenant from the upper gallery of the theater. The great im- 
 probability of the fact I have already endeavored to show from the 
 general plan and construction of the house, and from the relative 
 situation of all the parties. To descend a little more into detail. 
 By the evidence of all the witnesses it appears that Handwich was 
 in the third row of the gallery. I don't know, gentlemen, whether 
 any of you have been there. If you have, you must have found in 
 that third row a number of wooden pillars, or supports, bearing up 
 what is called the dip of the gallery, and which I suppose to be the 
 general cornice of the house. This dip, or cornice, is no more 
 than five feet from the floor; and under this, from the third row, in 
 a crowded gallery, "cribbed, cabined and confined," it is alleged 
 that Handwich flung the bottle which was exhibited on the stage. 
 
 Who are the persons who attest this extraordinary statement ? 
 The first is Mr. Michael Farrell, the jeweller, from Dame court. 
 ' Unfortunately we know of Mr. Michael Farrell no more than he 
 has been pleased to communicate himself. When an infant, he 
 tells us, he was taken to London and did not return to this city till 
 about four years ago. O, I do wish that the venue in this case had 
 been laid in Covent Garden. We should then, I shrewdly suspect, 
 have had no difficulty in dealing with Mr. Michael Farrell. I'll 
 venture to say, his ore rotunda, his broad O and his long E are as 
 familiar in the strand as any London cry. If these poor fellows 
 were rich enough for such a prosecution as this; if their last shil- 
 43 
 
658 SPEECH OF JOHN HENRY NORTH 
 
 ling had not been drained from them, we might have got some in- 
 formation in London relative to Mr. Farrell; at present all we know 
 is, that having gone there in his earliest years, and spent there the 
 greatest part of his life, he leaves, for what reason 'he has not 
 informed us, that great mart of wealth and commerce, where no 
 man ever took root and wished to be transplanted thence, and sets 
 up for a working jeweller in Dame court. A more pragmatical 
 gentleman I never beheld. He seemed disposed to lecture us all, 
 with such rhetorical flourishes, and such a volume of voice, that I 
 actually trembled for the windows. He put me in mind of the 
 famous Mr. Birkbeck, who went some time since to the banks of 
 the Mississippi, and I have no doubt we shall, very shortly, have 
 his letters from Dame court, with remarks on the capabilities of 
 Dublin, the facilities of emigration to Ireland, and notices of the 
 manners and customs of its savage inhabitants. His evidence is, 
 that Henry Handwich was the last person upon the left, and that 
 behind him there was a large empty space — an empty space! Do 
 you believe that on your oaths ? Was there as much free space as 
 there is now next to me ? Have you a doubt that the upper gallery 
 was not packed as close as close could be; that the people were not 
 wedged together, with their elbows pinned to their sides ? What 
 was Tiernan's evidence ? Tiernan, a plain, ready, unsophisticated, 
 natural Irishman, free and frank; he spoke fast, and he spoke out; 
 he wrote a running hand that had nothing stiff or cramped in it, 
 and he told you what it is easy to believe: "We were packed as 
 close as we could be; there was no room to budge; never was such 
 a crush, both to the sides and to the back.'' Which will you be- 
 lieve — the natural Irishman or the Anglo-Hibernian ? There is not 
 to be found a more odious production of perverted nature than an 
 Irish seedling grafted upon an English stock; it makes the worst 
 and sourest crab; it is a mixture that combines all that is bad in 
 each; with the dogged pertinacity, which is the worst part of the 
 English character, it wants the honest sincerity that redeems it. 
 Yes! Tiernan may be trusted. If I were to cross a lonely heath at 
 night, Tiernan should be my man. I'd not ask Farrell to go along 
 with me. 
 
 II. Arraignment of Proctor M'Namara, who saw the 
 
 BOTTLE "in transit." 
 
 But we have another witness, it seems, the far-famed Doctor 
 M'Namara, fresh from the pound of Ballinakill. Gentlemen, you 
 
IN REX v. FORBES AND OTHERS. 
 
 saw the peaceable Doctor, you marked his comportment and de- 
 meanor. " Up I came," says the Doctor, " from Ballinakill, went to 
 the middle gallery, and took my seat in the center. There I was 
 disporting myself, when suddenly I heard a cry of ' boys, mind your 
 fire.' " Oh, how fortunate it is that a man never comes to fabricate 
 a story, that he does not, by a sure infatuation, insert some little 
 circumstance that serves to betray him. If the Doctor had said 
 he heard the words "look out," he would have been corroborated; 
 but now he is contradicted by every witness. This cry, he says, 
 attracted his attention; he looked up and saw Handwich in the 
 third row. The Doctor, in the middle gallery, sees Handwich in 
 the third row of the upper one, though between them there were 
 two benches covered with people, and the boarded parapet in front 
 of the upper gallery besides! Through all these obstacles he sees 
 him in that dark corner of the gallery v/here he represents him to 
 be placed; sees him fling the bottle, and is now able, at this dis- 
 tance of time, to identify his person. The bottle itself he saw in 
 what he learnedly calls its transit. A word or two on that same 
 transit. I hold it physically impossible that a bottle could have 
 taken the course described by Farrell and M'Namara, from the up- 
 per gallery to the stage, without being observed by four or five 
 hundred spectators. Just think what the theater is: a wide, illumi- 
 nated area, whose bounding surfaces are studded with eyes as 
 numerous as those of Argus. Not a square inch in that field of 
 view which was not painted on the retina of some one eye or other 
 in that vast assembly. Consider, too, the time — the interval between 
 the play and farce — when the attention of the audience was not 
 fixed upon the stage, when people were all looking about them, rec- 
 ognizing and greeting their friends and acquaintances. Was there 
 no one to mark this bottle but Farrell, M'Namara, and the young 
 medical student ? What, not one giggling girl in the boxes, glanc- 
 ing round for admiration! not an opera glass pointed! no fortunate 
 observer of the" transit but the astronomer from Ballinakill! Is all 
 this credible ? But this is not all — voonders upon voonders, as the 
 Dutchman said when he got to London — the greatest miracle is to 
 come. Down comes the bottle, thundering from the upper gallery 
 to the stage, and falls unbroken! If they had candidly produced 
 it, I am instructed, it would appear to be one of those starred sandy 
 bottles that fly in pieces on the slightest collision. I don't know, 
 gentlemen, whether you are aware that glass is one of the most 
 elastic substances with which we are acquainted, far more elastic 
 
660 SPEECH OF JOHN HENEY NOETH 
 
 than ivory, which, you know, is used for billiard balls on account 
 of its great elasticity. This is the property which makes glass 
 ring, and it would be much more familiar to us if it were not coun- 
 teracted by the great fragility of the material. If the bottle, there- 
 fore, did not break, it must have rebounded to the center, if not to 
 the back of the pit, supposing it to have been thrown from the 
 upper gallery; but it rolls gently along the stage and is taken up 
 from behind the foot-lights. You all remember the prodigious ef- 
 forts made by counsel for the prosecution to establish from the 
 evidence that the bottle fell towards the left of the stage, and near 
 the Lord Lieutenant's box; but the fact and the intended inference 
 are at an end when it is recollected that Mr. Barton, from the 
 center of the orchestra, is the person who takes up the bottle, and 
 who does so without rising from his seat. Who, after this, will pre- 
 sume to tell us that it was intended for one side more than the 
 other ? The truth seems to be, it was designed for the stage, and 
 in all probability came from the pit or from the lattices, after re- 
 ceiving a very slight and, perhaps, an accidental impulse. Ah, 
 gentlemen, we have not been fairly dealt with; indeed we have not. 
 "Why is not the bottle forthcoming ? Why is not Mr. Barton pro- 
 duced ? You know the insinuation that this bottle was taken from 
 Ship street, and was the same which contained the whisky. Surely 
 you might judge of its contents if it were now produced, and we 
 should not be left to criticisms on the testimony of Mr. Cahill; you 
 would then be able to perceive whether it had been filled with 
 porter or with spirits. These are facts perhaps of small moment; 
 but the case for the prosecution is sought to be made out by cir- 
 cumstantial evidence, and the counsel for the crown were bound to 
 have furnished you with all imaginable means of arriving at a just 
 conclusion. 
 
 Here Mr. North referred to the testimony as to what Mr. Forbes had said 
 when he was arrested, when he declared that he was an Orangeman, and would 
 perhaps be sent to Botany Bay for it. He contended it was said without con- 
 sciousness of guilt, openly, and evinced no criminality. He then continued : 
 
 12. The conduct of defendants not criminal. — Supposed 
 
 DIALOGUE BETWEEN AdDISON AND LORD SOMERS. ■ 
 
 And now, gentlemen, having closed my observations on the evi- 
 dence and given you the means, I hope, to take the sting out of 
 this charge, allow me to inquire into the nature of the offense im- 
 puted, if offense it should be. Gentlemen, I have been accustomed 
 
IN REX T. FORBES AND OTHERS. 661 
 
 all my life long to believe it to be a privilege possessed by, the peo- 
 ple of Great Britain and Ireland, to give free expression in places 
 of public and general resort to a popular and political feeling. We 
 are not, indeed, to speak or to act to the terror of his majesty's 
 subjects, but short of that, I have always deemed it to be the priv- 
 ilege of every Englishman or Irishman to give expression in places 
 of public resort, such as a theater, to his public and political senti- 
 ments. If I am to lose this privilege, I will not part with it with- 
 out a struggle. The attorney-general has set up for a theatrical 
 reformer. I think he will find it a troublesome task, but I trust he 
 will not expose himself to the same censure with the parliamentary 
 reformers who have been so often reproached with not furnishing a 
 specific and detailed plan of their projected improvements. If our 
 ancient privilege is to be curtailed, at least, I hope he will point 
 out the exact limits within which we are to enjoy it: whether it be 
 conceded to the boxes, although refused to the gallery; and whether, 
 though suspended during the play, it may not revive in the enter- 
 tainment; or whether it be only when the Lord Lieutenant is at 
 the theater, that the silence of La Trappe is to prevail there. But 
 I trust it is not the presence of the Lord Lieutenant, no; nor of the 
 king himself, deeply as I reverence him, that shall ever frown a 
 British audience into Eastern sycophancy or silence. The privilege 
 I contend for is not a new one; it has been recognized in all periods 
 of our history. 
 
 I do not know what the attorney-general would say to the 
 trunk-maker, described by Addison, who used to signify his ap- 
 probation at the theater by beating the benches with an oaken 
 plank, and the critical correctness of whose strokes was the joy of 
 the actors and the delight of the house. The Spectator is not as 
 much read now as it used to be, and as it ought to be; but, gentle- 
 men, if you have not read that inimitable paper, do so by all means 
 when you go home. According to the new ex officio law, however, 
 the poor trunk-maker would have been made the subject of a State 
 prosecution; he would have been tried at bar. I can suppose 
 Bishop Hurd, who possessed a charming talent for writing dia- 
 logues, imagining a conversation between Lord Somers and Addi- 
 son, after the appearance of that paper: we may conceive Addison 
 dropping in at the breakfast table of Lord Somers, where the paper 
 is lying: " Well, my Lord, how were you amused with my last 
 night's lucubrations ? " "I was, indeed, charmed and delighted, 
 Addison; but are you aware that your trunk-maker has violated the 
 
662 SPEECH OF JOHN HENEY NORTH 
 
 law of the land, and that the attorney-general may file an ex officio 
 information against him ? " And then imagine Addison, smiling, 
 with that inimitable grace which we may suppose to have belonged 
 to him, and replying: " Yes, my Lord, the attorney-general may 
 file his ex officio information, but there is a fund of good sense and 
 natural equity in a British jury which will ever make the trunk- 
 maker too strong for the attorney-general." It is somewhat in this 
 manner, perhaps, that Hurd would have treated the subject. 
 
 13. References to Bolingbroke, the Duke of Rutland, 
 AND Queen Elizabeth. 
 
 As I have fallen into the vein of story-telling, gentlemen, you 
 will allow me to relate another, which belongs to the same times, and 
 of which they have reminded me. There was a great man in those 
 days. Lord Bolingbroke. Lord Wellesley resembles him in some 
 of the noblest parts of his character: his high spirit, his inimitable 
 style, his rich and flowing eloquence. In the other and defective 
 parts of Bolingbroke's character I believe there is no resemblance. 
 He came into power during the four last years of Queen Anne's 
 reign, that period to which the attorney-general is so fond of ad- 
 verting, when a plan was formed for defeating the succession in the 
 House of Hanover, and bringing back the pretender. He and 
 Harley, who were suspected of entertaining these designs (at that 
 time only surmised), became justly unpopular with the nation. It 
 was in this crisis of public feeling that Addison wrote his cele- 
 brated tragedy of Cato, almost every line of which was intended as 
 a reflection upon Bolingbroke and his administration. Bolingbroke 
 was aware of this, and determined to be present at the performance. 
 With admirable address, he took a conspicuous box and seated 
 himself in the full view of the whole house. As the play pro- 
 ceeded, the pit grew clamorous in their applause, pointing the ap- 
 plication of every stinging antithesis or swelling sentiment to the 
 unpopular minister. Was Bolingbroke offended ? No; he returned 
 the angry gaze of the people with a countenance beaming with 
 smiles, seemed to go along with the general current, was loudest in 
 his applause, and when the representation was over, sent for Booth, 
 who had performed the part of Cato, to his box and, in the presence 
 of the whole audience, presented him with a purse of sixty guineas 
 for having defended the cause of liberty so well against a perpet- 
 ual dictator. There was an example, gentlemen — it might be dis- 
 respectful to say for whom. 
 
IN REX V. FORBES AND OTHERS. 663 
 
 But there are instances nearer home. I am not old enough to 
 remember the brilHant times of the Duke of Rutland, but I have 
 heard of them. Chivalrous and gallant, generous and gay, he had 
 the faults of a man of pleasure and dissipation, and accordingly he 
 . never went into the theater that he was not assailed with some 
 coarse and offensive allusion to the supposed scandals of his private 
 life. We all know the story of Peg Plunket and Manners. But 
 yet I have never heard that the Duke of Rutland instituted a pros- 
 ecution. We are told, indeed, that on some of those occasions he 
 had the grace to blush; but it is added that he always had the good 
 humor to smile. The privilege, I insist on, has not only been con- 
 ceded by ministers and lord lieutenants, it has been allowed by 
 kings. Even in the most arbitrary period of our history, we find 
 the British sovereigns freely presenting themselves to their people, 
 and admitting the right to censure or applaud them. Even the 
 Tudors, in that critical interval when the prerogative stood highest, 
 after the ancient aristocracy was dissolved and before the Commons 
 had emerged to wealth and importance, never disputed this well 
 established privilege. Elizabeth herself, in the full maturity of her 
 greatness, when she had trampled on the necks of all her competi- 
 tors, broken the power of Spain and scattered the invincible 
 armada, even she did not dispute it. When, in a fatal hour of 
 pride and irritation, she had consigned the gallant Essex, the fav- 
 orite of the nation, to his untimely destiny; as she rode through 
 the streets of her capital to assemble her parliament, a murmur of 
 disapprobation rose around her loud and strong. All-unused to 
 such sounds, and spoiled, as she might well be supposed to be, by 
 the prosperity of forty years, she did not dare to complain: yet she 
 possessed a court of star-chamber, she had a privy council that as- 
 sumed a criminal jurisdiction, she had an attorney-general ready at 
 her slightest beck to file his ex officio information. But she resorted 
 to none of these. She was too magnanimous a princess; she had 
 too much of an English heart. No; she retired to her chamber, 
 wrung her hands in agony, smote her breast, and recognized within 
 the justice of the people's censure. 
 
 I shall not tarnish the luster of examples like tfiese, or diminish 
 their effect, by reminding you of the well-known interruption given 
 to the performances of Covent Garden theater, which continued for 
 sixty-six nights and has been called the O. P. war. There, indeed, 
 was a riot, something different from the "Boyne Water;" and yet, 
 when the subject came into a court of justice, an English jury — I 
 
664 SPEECH OF JOHir HENRY NORTH 
 
 don't say whether properly or improperly, right or wrong — but an 
 English jury found a verdict for the audience against the manager; 
 and when the Chief Justice, Sir James Mansfield, asked the foreman 
 his reasons for the verdict, he informed him that the jury did not 
 think it consistent with the rights of Englishmen to punish a British 
 subject for distributing placards or wearing the letters O. P. in his 
 hat. Gentlemen, I am not holding this example up for your imita- 
 tion. Do not suppose me capable of so gross and palpable an arti- 
 fice. You will find your verdict according to the evidence and the 
 law as it applies to it. But I do mention it for the purpose of 
 showing you what the notions and the feelings of the British people 
 are upon the rights and privileges of a British audience; and we 
 may affect what prudery or delicacy we please upon these subjects, 
 I tell you it is that sturdy English feeling, that sound sense, and 
 crassa Minerva, not to be duped by any sophistry, legal, political or 
 religious, which has made England the nation she is. This is the 
 true source of her splendor, the real foundation of her greatness. 
 
 Sic fortis Etniria crevit 
 
 Scilicet et rerum facta est pulcherrima Roma. 
 
 May you ever partake of that feeling! May you ever guard and 
 cherish it! May you ever look with jealousy on any attempt on 
 the part of your rulers to take from you the right of pronouncing 
 on the merits of their government, and of determining without ap- 
 peal, whether they are popiilar or unpopular. Preserve it as you 
 would the apple of your eye or the life-blood of your heart! It is 
 better, it is of more value than all your other privileges together. 
 Without it they are paralyzed and lifeless. This is the soul and 
 spirit which gives strength and animation to them all. 
 
 14. Political aspect of a verdict considered. 
 
 Only one topic more, gentlemen. The attorney-general would 
 fain represent to you that your verdict may forward the great cause 
 of national conciliation. Oh, gentlemen of the jury, consider well 
 before you suffer your minds to be entranced and your judgments 
 led along by so captivating an argument as this. I have heard of 
 various nostrums and specifics for the cure of all Irish diseases. 
 There is not a Right Hon. Secretary, or a Right Rev. Bishop, who 
 comes here from England, that does not bring with him some in- 
 fallible receipt of this description — some cordial or another — some 
 Dr. Solomon's balm of Gilead, that is to take the vertigo from our 
 
IN REX V. FORBES Am) OTHERS. 665 
 
 heads and the acid from our stomachs, and to restore us to polit- 
 ical sanity and vigor. It was only the other day that the philanthro- 
 pist Mr. Owen — indeed, I believe he is still in the kingdom, and a 
 most excellent and benevolent man he is — proposed to set every- 
 thing to rights by cutting up the country into small square pieces, 
 and raising our population from seven millions to seven and twenty. 
 Then all was to be harmony and conciliation. But of all the ex- 
 travagant projects I have yet heard of, surely the most desperate 
 and hopeless seems to be this of conciliating us all by an ex officia 
 information. Every man, to be sure, has a natural attachment to 
 his own profession. I would have given something to have been 
 present at the grand consultation when this expedient was agreed 
 on. "What shall we do," says the president of the council, "to 
 allay the differences of this unhappy people ? " " Call out the artil- 
 lery," says the commander of the forces, " erect barriers on the 
 bridges." " Put them down with the police," say Mr. Graves and 
 Mr. Tudor. " Shuffle them well together," says the Lord Mayor. 
 " No," says the attorney-general, " believe me, there is nothing like 
 an ex officio information." 
 
 " The currier wiser than all put together." 
 
 But I will n9t sport any longer with the subject; it is too grave, 
 it is too serious, it is too affecting. Conciliation! Conciliation! — 
 magical, mysterious word ! How often misapplied and misunder- 
 stood! Like the happiness described by the poet: 
 
 That still so near us, yet beyond us lies, 
 O'erlook'd, seen double, by the fool and wise. 
 Plant of celestial seed, if dropp'd below. 
 Say in what mortal soil thou deign'st to glow. 
 
 Alas, gentlemen of the jury, it is not within the precincts of a 
 court of justice we shall find it to flourish. Prosecutions and con- 
 victions, the halter and the prison-bar, are but coarse instruments 
 of conciliation. It is with this as with the other virtues of the 
 same family: friendship and affection, reciprocal esteem and mu- 
 tual forbearance. . It possesses that attribute which Shakespeare 
 has ascribed to the quality of mercy: " It is not strained." It will 
 not be commanded. A king may place his throne upon the sands, 
 and tell the stormy wave to roll back at his bidding; but whether 
 it be the swelling tide of popular emotion, or the bursting billows 
 of the tempestuous sea, they will equally teach him the littleness 
 
666 SPEECH OF JOHN HENRY NORTH. 
 
 of all mortal power, and the impassable limits which nature has 
 prescribed to the authority of man. Do not for a moment suppose 
 that I meaii any bold and disrespectful allusion to the parting in- 
 junctions of his majesty. I remember too well — who amongst us 
 does not remember — that great and ever-memorable day when the 
 king made his triumphal entry into this city, when the hearts of 
 this mighty population beat together in loyal unison as if it had 
 been the heart of one individual man, and the monarch was re- 
 ceived among his people like a father into the bosom of his family. 
 
 As a fair morning of the blessed spring, 
 
 After a tedious, stormy night; 
 Such was the glorious entry of our king! 
 
 Enriching moisture dropp'd on everything. 
 Plenty he sow'd below, and cast around him light. 
 
 To what enchanting prospects did we then surrender our de- 
 lighted imaginations! Why have these blissful hopes been thus 
 severely disappointed ? It is not because the great absurdity has 
 been attempted of conciliating men by force — of producing, by 
 constraint and violence, that which is the natural offspring of per- 
 suasion ? Hence what we have seen; hence unfounded committals 
 upon capital charges, refusal of bail and mainprise, the solemn 
 verdicts of grand juries slighted, scorned and set at defiance; hence 
 ex officio informations. Do not be persuaded, therefore, gentlemen 
 of the jury, that any verdict which you can pronounce will advance 
 the cause of conciliation; believe it not. You can find no concilia- 
 tory verdict, but you may find a righteous one. The Lord Lieu- 
 tenant has been deceived and abused; your verdict may undeceive 
 and disabuse him. His noble mind has been practiced upon: he 
 has been taught to believe that he is surrounded by conspirators and 
 traitors; that weapons are raised against his life; he has been in- 
 duced to bare his manly breast and to desire " the assassin, if not 
 yet disarmed, to strike now." Tell him by your verdict, gentle- 
 men, that he has no conspirators to fear; that he has no assassins 
 to dread; that there is no dagger aimed at his life, but the "air- 
 drawn dagger " of his own imagination. Such a verdict as this 
 may not be conciliatory, but in my heart I beHeve it will be just; 
 it will be one that to the latest hour of your lives will receive the 
 approbation of your own consciences; it is one already anticipated 
 by every thinking and reflecting man in the community; and at no 
 distant period it will be hailed by the whole country. 
 
SPEECH OF BARTHOLOMEW HOAR. 
 
 Opening for Plaintiff in Massy v. The Marquis of Head- 
 fort. — Damages for Criminal Conversation. 
 
 AT ENNIS ASSIZES, COUNTY CLARE, BEFORE BARON SMITH 
 AND A SPECIAL JURY, FRIDAY, JULY 27th, 1804. 
 
 Damages claimed, ;£4o,ooo. Amount recovered, ;£io,ooo. 
 
 Analysis of Mk. Hoae's Speech. 
 
 . The narration. — Facts and circumstances 
 of the case. 
 
 . How plaintiff's suspicions were aroused. 
 
 . Mrs. Massy's exemplary behavior quiets 
 his fears. — Circumstances of the ab- 
 duction.' 
 
 4. Defendant's crime compared to the 
 
 treachery of pirate wreckers. — A 
 stril^ing simile. 
 
 5. Grounds of the defense anticipated and 
 
 discussed. 
 
 6. The rule of damages. 
 
 The famous case of Massy v. The Marquis of Headfort, tried at the Ennis 
 Assizes, County Clare, Ireland, Friday, July 27th, 1804, was brought to recover 
 damages alleged to have been sustained by the plaintiff in consequence of the de- 
 fendant seducing and taking away his wife. The amount claimed was £40,000. 
 The case was rendered interesting on account of the rank and station of the 
 parties. The complainant was a clergyman of the Church of England; the de- 
 fendant, a peer of the realm and an officer in the British army. He was the son 
 of the Earl of Bective, and had been created, by the royal favor, a Baronet, a 
 Baron, a Viscount, an Earl, and finally a Marquis, and was possessed of an in- 
 come of £40,000 a year. The "lady in the case" was remarkable for grace, 
 beauty and accomplishments. The Rev. Charles Massy was the second son of a 
 gentleman of rank and distinction in the County of Clare. In March, 1796, he 
 married, contrary to his father's wishes, Mary Ann Rosslewin, a belle of eighteen, 
 of great personal attractions. The father's principal objection to the match was 
 based upon the fact that the lady was without fortune. He desired his son to 
 marry a person of wealth, and offered, in case of his compliance, to settle upon 
 him £11,000 a year in landed property. The son, however, sacrificed this ample 
 provision, and wedded the lady of his choice. For eight years their domestic 
 happiness was unbroken. At the time of the plaintiff's misfortune, he lived at 
 Summer Hill, near Limerick. While the defendant was stationed at the latter 
 place Mr. Massy made his acquaintance. At one time the plaintiff had a living 
 in the County of Meath, where Lady Bective, the Mother of the Marquis, was 
 one of his parishoners. Mr. Massy now extended to the son of his former parish- 
 oner, who was then over fifty years of age, every hospitality, as a mark of respect 
 to the Lady Bective, whose memory he cherished and esteemed. Under such 
 circumstances, by taking advantage of the confidence of his host, the defendant 
 
 [667] 
 
668 SPEECH OF BARTHOLOMEW HOAR 
 
 consummated his diabolical crime. On Sunday, while the plaintiff was adminis- 
 tering the functions of his sacred office, the defendant eloped with Mrs. Massy, 
 and took her with him to London. 
 
 The trial occasioned great excitement, and the small town of Ennis was 
 crowded with persons from all parts of the country. It is said that ten guineas 
 were paid for a bed the night before the trial, and large sums were offered for a 
 place in court to witness the proceedings. A stenographer, all the way from 
 London, was present to report the trial. A large array of counsel appeared. 
 For the plaintiff: John Philpot Curran, Bartholomew Hoar, Henry Dean Grady, 
 Thomas Casey, John White, Amory Hawksworth, William O. Regan, Thomas 
 Lloyd, William McMahon and George Bennett, Esqs.; agent, Anthony Hogan, 
 Esq. For the defendant: Hon. George Ponsonby, Thomas Quin, Thomas Goold, 
 John Franks, Charles Burton and Richard Pinnefather, Esqs.; agent, James 
 Sims, Esq. 
 
 It is, indeed, seldom we find atnisiptius, a controversy depending almost en- 
 tirely upon the forensic abilities of the advocate, where the measure of success 
 may be a farthing or a fortune, which can compare, for the skillful manner in 
 which it was conducted by all parties concerned, with this famous case. There 
 was no dispute about the fact that the defendant had eloped with the plaintiffs 
 wife. Indeed, it seemed, from the manner of the occurrence, as if the defendant 
 regarded his crime as an achievement which he desired to render conspicuous, 
 rather than a disgrace which he wished to conceal. It was insisted, however, 
 that the plaintiff was at least guilty of a moral delinquency or constructive con- 
 nivance in permitting his wife to associate with the Marquis, after knowledge of 
 the latter's loose character, and that, therefore, he could claim no compensation on 
 the theory that his own acts tended to contribute to his misfortune.' The issue, 
 therefore, was narrowed mainly to the question of pounds, shillings and pence. 
 Mr. Bartholomew Hoar opened for the plaintiff ; and Mr. Thomas Quin for the 
 defendant ; Hon. George Ponsonby summed up on the same side, and the case 
 was closed for plaintiff by John Philpot Curran. All the speaking was of a high 
 order, entirely free from coarse expressions or offensive matter. The arguments 
 partake rather of the nature of essays on njoral ethics than speeches to a jury at 
 nisi ^Hus. We have, therefore, concluded to give them in full, and also Earon 
 Smith's able and instructive charge to the jury. Mr. Hoar's opening is certainly 
 an able effort. His statement is clear^ his language choice, his style compact. 
 The striking parallel of the defendant's conduct with the treachery of the Cornish 
 pirates, who bum false lights on the rocky coast in order to lure the gallant ship 
 to destruction, presents a graphic picture. Mr. Hoar spoke as follows: 
 
 May it please the Court, — Gentlemen of the Jury: — This 
 is the first action of the kind a jury of this county has ever been 
 impanelled to try; and, as it is the first, so I hope in Heaven it 
 may be the last. Many idle reports have been circulated, and the 
 subject of this trial has engaged much of public attention; but it is 
 your duty, as I am sure it is your wish, to discharge your minds 
 
 ' For a synopsis'of the testimony, see post, page 677. 
 
I^ MASSY v. THE MARQUIS OF HEADFORT. 669 
 
 from every idle rumor, to stand indifferent between the parties, and 
 relying upon the evidence, and collecting information from the wit- 
 nesses on their oaths, who will be produced before you, to found 
 your verdict upon facts well attested, and of which you only are the 
 constitutional judges. 
 
 I. The narration. — Facts and circumstances of the 
 
 CASE. 
 
 The plaintiff, the Rev. Charles Massy, is the second son of a 
 gentleman of high distinction in this county, who has been more 
 than once called to the representation of it by a free and honor- 
 able election, and not only so descended, but is a person of liberal 
 education; a member of one of the learned professions in the prime 
 of manhood; a man, not only of inoffensive manners and of inno- 
 cent life, but a man whose virtues correspond with his situation in 
 society and adorn the profession he has adopted. In 1796 
 Mr. Massy became attached to Miss Rosslewin. Mr. Massy, 
 being a second son, and not independent of the bounty of his 
 father, possessed then a living of but ^^300 a year. Sir Hugh 
 Massy, his father, disapproved a match " which had not fortune to 
 support the claim of beauty," and had, therefore, proposed one 
 with a young lady of a neighboring county, which he conceived, in 
 point of fortune and of connection, far more eligible, and on that 
 occasion had offered to settle on his son, the plaintiff, ;j^i,ioo 
 a year in landed property, together with the young lady's fortune; 
 but, declining the hand of an amiable and accomplished lady, re- 
 fusing an ample and independent establishment, with the additional 
 enjoym^t of parental bounty and approbation, and foregoing all 
 these advantages, Mr. Massy proved the sincerity and purity of his 
 attachment by a generous sacrifice of fortune to affection, and 
 married Miss Rosslewin in March, 1796. The happiness of the 
 young couple during eight succeeding years, not only seemed to be 
 but really was unmixed and unabated; he loving with constant and 
 manly ardor; she with chaste and equal affection; and, during that 
 interval. Heaven had blessed their union with a boy, the bond and 
 cement of their present happiness, the pledge and promise of future 
 multiplied felicities. Then Mr. and Mrs Massy exhibited such an 
 example of domestic contentment and satisfaction to their neigh- 
 bors, their relatives and their friends, as to convince them that the 
 sacrifices he had made were not too great; that her grateful and 
 affectionate returns to a conduct so nobly liberal and disinterested- 
 
670 SPEECH OF BARTHOLOMEW HOAR 
 
 ly affectionate, were not too little; guilt and treachery had not yet 
 made their way into the abode of peace and innocence; all was 
 quiet, tranquil and happy till, to the misfortune of this county and 
 couple, the Marquis of Headfort made his appearance at Limerick. 
 Mr. Massy happened to have had, some years since, a living in 
 the county of Meath, where Lady Bective, the mother of the Mar- 
 quis of Headfort, was a principal parishoner, and from whom, dur- 
 ing his residence in the parish, Mr. Massy received much polite 
 and hospitable attention. From this circumstance of his acquaint- 
 ance with her, Mr. Massy waited on her son on his arrival at Lim- 
 erick, invited him to the house, and strained his narrow means to 
 give the son of Lady Bective every proof of his sense of her former 
 attentions and politeness; but, while indulging the hospitable spirit 
 of our cou'nty, little did Mr. Massy think he was introducing into 
 his house the man who could conceive the blackest and basest de- 
 signs against his peace and honor; that this stranger, so hospitably 
 received and so affectionately cherished, was to pour poison into his 
 peace and make him a wretch; for no reasonable man could suppose 
 that Lord Headfort, at his time, ever could disturb the peace of 
 any family, his age (for he is above fifty), his figure, his face, made 
 such a supposition not only improbable, but almost ridiculous; yet 
 so it happened that this " hoary veteran," in whom, like ^tna, the 
 snow above did not quench the flames below, looked at Mrs. Massy 
 and marked her for ruin. And nothing more beautiful could he 
 behold, and nothing upon whom it was more unlikely that such a 
 venerable personage as his Lordship could have made an improper 
 impression. 
 
 2. How plaintiff's suspicions were aroused.' 
 
 Lord Headfort spent four days at Summer Hill, on his first visit, 
 and was introduced by Mr. Massy to the gentlemen of the first 
 rank and consideration in the county, the Bishop of Limerick, 
 brother-in-law of Mr. Massy, and every other gentleman and noble- 
 man in the neighborhood. I need not, in this most hospitable part 
 of Ireland, mention to you the consequence. Lord Headfort was 
 received, entertained, and cherished by the friends and relatives of 
 Mr. Massy. Whilst Mr. Massy was endeavoring, by every polite 
 and hospitable attention in his power, to render his temporary stay 
 in this county not unpleasant to him, some anonymous letters first 
 created in the breast of the plaintiff — not suspicion; but conveyed 
 an intimation " that the Marquis of Headfort was too attentive to 
 
IN MASSY T. THE MARQUIS OF HEADFOET. 671' 
 
 Mrs. Massy." Too confident in the virtue of his wife, too generous 
 to credit information so conveyed, and yet too prudent wholly to 
 overlook or disregard it, Mr. Massy prohibited his wife's visits to 
 Limerick, and this was followed up by intimating to Lord Headfort 
 that his Lordship's visits would be dispensed with at Summer Hill, 
 his (Mr. Massy's) place of residence. Lord Headfort's visits were 
 discontinued. His Lordship promised not to repeat them. 
 
 3. Mrs. Massv's exemplary behavior quiets his fears. 
 — Circumstances of the abduction. 
 
 And yet, though Mr. Massy took these precautions, he still had 
 the utmost confidence in the virtue of his wife, and not without ap- 
 parent reason, for she still preserved the appearance of the most 
 affectionate attachment to him, and acquiesced without a murmur 
 in what his prudence prescribed. Her correct manners, her strict 
 attention to her religious duties, might have imposed upon a keener 
 penetration than her husband's. She regularly attended divine 
 service, took the sacrament, and has been heard to reprove her 
 brother and brother-in-law for want of attention to these duties; 
 and in conversation, turning on the indiscretions of other women, 
 was often heard to declare: "that if affection for her husband so 
 well merited, or for her child, were not sufficient checks to keep 
 her steady to her virtue, her sense of religious obligations would 
 alone have that effect." The unaffected liveliness and simplicity 
 of her manners, the decency of her deportment, her endearing at- 
 tentions to him and her child, left not the shadow of suspicion on 
 the mind of Mr. Massy, that she could, in anywise, forget her sex, 
 her situation, or her duty, much less that she could run into the 
 coarse toils spread for her by Lord Headfort. It will shock and 
 appal you, gentlemen, to hear the time and occasion which Lord 
 Headfort selected for the final accomplishment of his designs upon 
 the honor of this unfortunate woman, and the happiness of his host 
 and his friend. The day was Sunday; the hour, the time of divine 
 service. Yes, gentlemen, on that day and on that hour set apart 
 for the service of our Creator, whilst the reverend rector was bend- 
 ing before the altar of his God, invoking blessings, not only on his 
 flock there assembled, but on the head of the unfeeling and profli- 
 gate destroyer of his comfort and honor. On such a day, at such 
 an hour, upon such an occasion, did the noble Lord think proper to 
 commit this honorable breach of hospitable faith; this highminded 
 violation of the little laws of your diminutive county; this contempt 
 
672 SPEECH OF BARTHOLOMEW HOAR 
 
 — I would almost call it, this defiance of the Almighty himself. And 
 will not you, gentlemen, the sworn arbitrators of this profanation, 
 the guardians of our laws and our religion, the conscientious minis- 
 ters of divine and human justice, reward the noble delinquent ac- 
 cordingly ? I know you will; and to your just estimate of such an 
 act I commit this noble act and its most noble actor. 
 
 I have to state what will be proved, that on a Sunday, at such 
 an hour, Lord Headfort took off Mrs. Massy from her husband's 
 house at Summer Hill; they crossed the Shannon in a boat, got 
 into a chaise in waiting for them on the road, and from thence 
 posted to Pallas, eighteen or nineteen miles only from Summer 
 Hill. There he and Mrs. Massy, heedless of the misery and distrac- 
 tion of her unhappy husband, remained in the same room the whole 
 of Sunday night. The noble peer did not fly. No; he made short 
 and easy stages — not fearful of pursuit, not as a criminal endeavoring 
 to effect his escape, but as a conqueror, parading slowly through the 
 country, and quietly enjoying the glory and honor of his triumph! 
 What was his triumph? The distraction of the friend he mad- 
 dened with agony! the pollution of a, till then, spotless and inno- 
 cent woman! From Pallas his Lordship pursued his route to Clon- 
 mel, and there rested a night; from thence to Waterford, then to 
 England, where, I trust, he will ever remain, because I am satisfied 
 that no advantage to be derived to the country, from the most am- 
 ple fortune expended here, could countervail the mischiefs that 
 must flow from the application of enormous wealth to extravagant 
 vices, and the example of such prodigal profligacy amongst us. I 
 fear I detain you too long, yet it is necessary to detail the enormity 
 of this foul transaction, " in itself most foul." To you, then, I will 
 leave it to mark, by the verdict you will give, your approbation or 
 disapprobation of the conduct of this nobleman. He was not 
 young. If young, the ardor and inexperience of youth might have 
 been some extenuation of this enormity; but many years has 
 elapsed since the venerable Peer could have insisted upon such a 
 plea. The noble Lord is, I am instructed, between fifty and sixty 
 years of age, and from the life he has led and the pursuits he has 
 been engaged in, we must conclude his constitution not to be that 
 of a very green old age. At this advanced period of life, the 
 slightest check of principle must rein in and restrain the passions. 
 
 But if a sickly appetite cannot be controlled, and must be fed 
 with perpetual supplies of dearly purchased variety, let the wealth 
 he commands and abuses procure it, without breaking in upon the 
 
IN MASSY V. THE MARQUIS OF HEADFORT. 673 
 
 peace and honor of respectable families. The noble Lord pro- 
 ceeded to the completion of his diabolical project, not with the 
 rash precipitancy of youth, but with the cool and deliberate con- 
 sideration of age. 
 
 4. Defendant's crime compared to the treachery of 
 
 PIRATE wreckers. A STRIKING SIMILE. 
 
 The Cornish plunderer, intent on the spoil, callous to every 
 touch of humanity, shrouded in darkness, holds out false lights to 
 the tempest-tost vessel, and lures her and her pilot to that shore 
 upon which she must be lost forever — the rock unseen, the ruffian 
 invisible, and nothing apparent but the treacherous signal of secu- 
 rity and repose. So, this prop of the throne, this pillar of the State, 
 this stay of religion, the ornament of the Peerage, this common 
 protector of the people's privileges and of the crown's prerogatives, 
 descends from these high grounds of character to muffle himself in 
 the gloom of his own base and dark designs; to play before the 
 eyes of the deluded wife and the deceived husband the falsest 
 lights of love to the one, and of friendly and hospitable regards to 
 the other, until she is at length dashed upon that hard bosom where 
 her honor and happiness are wrecked and lost forever. The ag- 
 onized husband beholds the ruin with those sensations of horror 
 which you can better feel than I can describe. Her upon whom he 
 had embarked all his hopes and all his happiness in this life, the 
 treasure of all his earthly felicities, the rich fund of all his hoarded 
 joys, sunk before his eyes into an abyss of infamy, or if any frag- 
 ment escape, escaping to solace, to gratify, and to enrich her vile 
 destroyer. Such, gentlemen, is the act upon which you are to pass 
 your judgment; such is the injury upon which you are to set a 
 price, and I lament that the moderation of the pleader has circum- 
 scribed within such narrow limits the discretion you are to exercise 
 upon the damages. You cannot exceed the damages laid in the 
 declaration. I lament, and so I hope do you, that you cannot, for 
 the damages laid do not exceed one year's income of the noble 
 Lord's estates. The life of the adulterer is in some degree in the 
 power of the injured husband. If the husband kill the adulterer 
 caught in the act, the killing is not murder : what, according to the 
 noble Lord's own estimate, would be the value of the noble Lord's 
 life ? In mine, and perhaps in your estimation, the value of the 
 noble Lord's life would not be very high; but take it according to 
 his own, and it is invaluable. The ransom of his life ought to be 
 43 
 
C74 SPEECH OF BARTHOLOMEW HOAR 
 
 the measure of your damages. What can he plead ? Is it that he 
 too has a wife and children ? Is it that as a double adulterer he 
 comes into this court of justice and interposes the innocence of his 
 family between his crime and your justice? Are his titles and 
 honors, as they are vulgarly called, to dazzle your eyes and blind 
 you to the demerits of his conduct ? No, no. What are titles con- 
 ferred by kings if the souls of those who wear them be not ennobled 
 by the king of kings. These badges of distinction, these splendid 
 emblems of shining merit; these rewards conferred by grateful 
 sovereigns on eminent attainments in science, or achievements in 
 war, may be well allowed to adorn wisdom and virtue, but cannot 
 make the fool wise, the coward brave, or the knave honest. 
 « 
 5. Grounds of the defense anticipated and discussed. 
 
 There are two grounds of defense upon which I hear that the 
 noble Lord means to submit his case to the jury. The connivance 
 of the husband, the notorious general misconduct of the wife; 
 both, if I am rightly instructed, unfounded in fact and not to be 
 supported by any credible testimony. Witnesses to these, or to 
 any other facts, may be procured, but the jury is to determine on 
 their credit. But who is the man who will have the hardihood to 
 come forward and tell you that Mr. Massy, or any gentleman of his 
 family, rank, character, education or profession, could stoop to a 
 conduct so uniformly mean, so scandalously dishonorable; and if 
 such a witness can be found, who is the juror will believe him ? 
 Can any gentleman believe that a gentleman could be willfully in- 
 strumental to his own disgrace, the promoter of his own dishonor, 
 a'pander to the prostitution of an adored wife, the stigmatizer of 
 his idolized offspring ? Such a tale (let the relator be who he may) 
 is in itself utterly imprqbable. The proud mind of my client can- 
 not condescend to contradict it; but let the tenor of his whole life, 
 his character yet unaspersed and unblemished, his generous sacri- 
 fices to this very woman before her honor became his honor, and 
 her character the object of his protection, his exemplary conduct 
 as an husband, a father, a pastor of our church, a member of soci- 
 ety, give the lie to a story which cannot be told by any man of 
 honor, or be believed by any man of sense. It is not impossible, 
 however, gentlemen, that the Marquis of Headfort may attempt to 
 cover his retreat from the pursuit of justice by some contrivance 
 of this kind, nor is it quite impossible, however improbable, that 
 he may find some plausible instrument, hard of forehead and flip- 
 
m MASSY V. THE MARQUIS OF HEADFORT. 675 
 
 pant of tongue, ready from the motives which generally actuate 
 such instruments, to devote himself to the perilous service. If such 
 a witness should appear before you, I will give you a clue to his 
 character, I will describe to you what he is, and I much mistake if 
 by these marks and tokens you can fail to know him if he shall ap- 
 pear. He is not like those whom I have the honor to address, a 
 gentleman who has a character to stake upon the testimony he will 
 give. He is not a gentleman whose intercourse with the world has 
 fashioned him to courtesy without wearing out and defacing those 
 sharp, prominent features of oldfashioned probity, undeceiving 
 truth, and unbending pride, which characterize the Irish gentleman. 
 Let me now touch the second ground of what I understand is to 
 be the noble Lord's defense, the general misconduct of Mrs. Massy 
 before her elopement with him. It well becomes the Marquis of 
 Headfort to cover with additional disgraces the unfortunate victim 
 of his delusions. Is it that in the struggle between his avarice and 
 his vanity the former has conquered, or is it so ordered by the wise 
 and just dispensations of Providence that the best boons success- 
 ful vice bestows upon subdued chastity are private contempt and 
 public infamy ? But though the noble Marquis may not hesitate to 
 sink still lower and lower the degraded object of his guilty passion, 
 yet there are other considerations which might hold back from 
 such an attempt, a man not inaccessible to the feelings of human- 
 ity. Mr. Massy has a son still living. Why should this innocent 
 be more involved than he already is in his mother's dishonor? 
 Why should this half-orphaned child, robbed of one parent by the 
 tioMe Marquis, become, by the deliberate act of his and his family's 
 enemy, the sad remembrancer of the other, of a father's doubt and 
 a mother's- dishonor ? Is this additional pang to be inflicted on the 
 lacerated bosom ? Is this new wound to be opened in a bleeding 
 and exhausted heart ? Why will the no6Ie Marquis endeavor to in- 
 fuse this horrid suspicion into Mr. Massy's mind that the offspring 
 of his marriage bed is spurious; that though the father of a living 
 son, he is perhaps childless, his affections lavished upon, his name 
 borne by, his fortune destined for, perhaps an impostor ? This at- 
 tempt the noble Marquis will make, I am told, to mitigate the in- 
 jury and diminish the damages. If such an endeavorbe made, you, 
 gentlemen, will appreciate such an attempt according to its real 
 worth and true value. This attempt can only be supported by such 
 a witness as I have already described to you, and from whom your 
 honorable hearts will recoil with scorn and abhorrence. We are 
 
676 SPEECH OF BARTHOLOMEW HOAR. 
 
 prepared to show you, by the testimony of most respectable person- 
 ages, that the fame of this now unhappy woman had never been 
 sullied by the slightest imputation until her connection with the 
 Marquis of Headfort. 
 
 6. The rule of damages. 
 
 I feel, gentlemen, I have been honored with your attention too 
 long. I shall detain it but a very little longer. In this action the 
 plaintiff is entitled either to the largest or the smallest damages. If 
 connivance be proved to your satisfaction, a single shilling would be 
 too much; if not, I know not what measure of damages, under all 
 the circumstances of the case, would be too large. It will be proved 
 to you how he received the first news of her flight. The first inti- 
 mation was like the stroke of death. His portion for several weeks 
 after, agony and distraction. Happy would it have been for him 
 if death had followed the shock, or madness relieved him from 
 misery. It now rests with you to compensate the sufferings of this 
 deeply injured individual. It is with you to determine whether the 
 penalty you inflict on lawless lust shall operate as a protection to 
 legitimate happiness; whether your ample verdict shall not, like a 
 shield, cover domestic peace and social order from brutal insult 
 and dishonest violation. If the " compunctious visitings " of con- 
 science and duty cannot dissuade the black adulterer from his de- 
 signs upon the quiet of others, let the example you make drive him 
 from your doors, and deter him from the spoil of your dearest and 
 most invaluable possessions, your happiness and your honor. And 
 may that God, under whose eye and in whose presence we act, 
 when his hand shall hold the balance of divine justice, when those 
 transgressions from which the errors and infirmities of our nature 
 exempt no human creature, shall be put into one scale, may the 
 weighty and exemplary verdict of this day accompany your merits 
 into the other, and make it preponderate. 
 
SPEECH OF THOMAS QUIN 
 
 Opening for Defendant in Massy v. The Marquis of Head- 
 fort. — Damages for Criminal Conversation. 
 
 AT ENNIS ASSIZES, COUNTY CLARE, BEFORE BARON SMITH 
 AND A SPECIAL JURY, FRIDAY, JULY 27th, 1804. 
 
 Damages claimed, ^40,000. — Amount recovered, ;£io,ooo. 
 
 Analysis of Me. Qum's Speech. 
 
 i. The rule of law in relation to the injury 
 and claim in this class of actions. 
 
 2. The defense of connivance groes to the 
 foundation of the action. — Connivance 
 may be actual or constructive. 
 
 3. Character and conduct of Mrs. Massy. 
 
 4. The verdict must not be the result of 
 
 vengeance, but of reason and justice. 
 
 5. A good wife likened to a jewel, to be 
 
 worn next the heart. 
 
 In view of the fact that the speeches on both sides are published, we shall 
 give a synopsis of the evidence in the case, which was very brief.' But six wit- 
 nesses were called, four for plaintiff, two for defendant. The Rev. Dr. Parker 
 proved the marriage; Mr. Stackpole stated, that if plaintiff had married according 
 to the wishes of his father, he would have received a large fortune. His cross- 
 examination elicited the fact that plaintiff's brolher had separated from his wife, 
 and was living with a Mrs. Harvey ; the defendant's object being to show that 
 plaintiff, by allowing his wife to visit at his brother's, was careless of her moral 
 character. Patrick Dunn proved the elopement, and Jane Apjohn, a chamber- 
 maid, swore that defendant and Mrs. Massy occupied the same room that night 
 at the inn where she was employed. Colonel Pepper was called by the defend- 
 ant, and testified that he had often seen the Marquis pay marked attention to Mrs. 
 Massy, who seemed flattered thereby. He was corroborated by George E. Bruce, 
 who testified also that he had sfeen defendant at the races with Mrs. Massy; that 
 about six weeks before the elopement, he noticed she was extravagantly dressed, 
 and wore expensive jewelry and ornaments; that on one occasion, defendant 
 accompanied her from Limerick to Summer Hill in his carriage tete-cl-tete. On 
 his cross-examination he testified that Mrs. Harvey, the lady who lived with 
 plaintiff's brother, was a gentlewoman of refined manners, and very fond of child- 
 ren. Mr. Curran, who cross-examined, put the following question to the witness: 
 " Do you believe on your oath, as a man of honor, and in the presence of your 
 country and your God, that plaintiff connived at the conduct of his wife ? " He 
 answered: " I believe not. I am sure he was incapable of it. His fault was 
 more of the head than of the heart." 
 
 Mr. Quin's opening was very adroit. He pursued the same line of argu- 
 ment afterwards taken by his associate, Mr. Ponsonby, and without attempting 
 
 ' For a statement of the facts in the case, see ante, pages 667, 669. 
 
 [G7TJ 
 
678 SPEECH OF THOMAS QUIN 
 
 to justify defendant's conduct, claimed that the burden was on the husband to 
 show that his conduct was exemplary in all respects, and that if he was guilty of 
 any moral delinquency, it was pro tanto, in proportion to its flagrancy, a bar to 
 his recovery. He said : 
 
 May it please the Court, — Gentlemen of the Jury : — It is the 
 particular duty of my situation to lay before you the circumstances 
 of the defendant's case ; submitting it on his behalf to your investi- 
 gation, with a perfect confidence of your discharging the import- 
 ant duty devolved upon you with all that justice and fidelity which 
 may be expected from the goodness of your understandings and the 
 integrity of your hearts. 
 
 I. The rule of law in relation to the injury and claim 
 IN this class of actions. 
 
 Cases of this sort impose painful tasks upon the counsel for the 
 respective parties. They will not bear much ceremony, no polite 
 forbearance, no punctilious restraint can reasonably be expected ; 
 of this you have had tolerable evidence already. The husband 
 who brings his action as such, to recover compensation for an in- 
 jury offered to the most sacred relation in society, does thereby put 
 his character and conduct, as a husband, directly at issue, and if 
 he expects to succeed, must show that he fulfilled and discharged 
 the duties springing from that relation, because it is the violation 
 of it which constitutes at once the injury and the claim. We can- 
 not differ as to the principle and foundation of this action; it arises 
 out of the necessary politic provisions of society. It is bottomed 
 on the finest and purest affections of the human heart. What man 
 is there possessed of rationality and feeling, what husband who 
 deserves the name, that can resist to sympathize with, and is not 
 impatient to redress the sufferings of a person deprived, without 
 default of his, of that most inestimable of all human treasures, an 
 amiable and virtuous wife ? Here we agree ; but in proportion as 
 such feelings impel us to remunerate such an injury, and vindicate 
 the wrongs of such a sufferer, so do we turn with disgust and rep- 
 robation from an attempt to pervert the sacred nature of this rem- 
 edy from its just and honest purpose, from the assistance of the 
 pure, genuine and legitimate objects of its care, to lavish its re- 
 dress upon factitious injury, and make that jury who should be the 
 instruments of its salutary efficacy subservient to the scheme of 
 hypocrisy and imposition. If the husband, who by his deportment 
 is entitled to the name, meets such an injury, and sustains such a 
 
IN MASSY V. THE MARQUIS OF HEADFORT. 679 
 
 loss, compensate him (if he can be compensated) to the utmost 
 limit which the case may bear. You, at the same time, requite the 
 most poignant abuse which man can suffer, and give a wholesome 
 lesson to society. But if all who call themselves husbands shall ap- 
 peal successfully to this tribunal, and under pretense of injury shall 
 clamor for money, to assuage their feelings by supplying their 
 wants, you, in defiance of reason and of feelings, confound all 
 claimants, you confer what should remunerate the injured on him 
 who has received no injury, and equalize those persons who should 
 stand, in your estimation, as separate as innocence and guilt ; you 
 sanction, nay, encourage an adulterous traffic : the matrimonial 
 bond will become assailed by the most licentious, dissolute, and 
 sordid motives; lust, avarice and indigence will institute treaties on 
 the subject : husbands will take their wives to market, and instead 
 of restraining, you will promote the vice. 
 
 2. The defense of connivance goes to the foundation of 
 
 the action. connivance may be actual or 
 
 constructive. 
 
 The case of the defendant is not, because it cannot be, a case 
 of justification. The fact stands admitted, and however it may be 
 accounted for, it cannot be morally defended under any circum- 
 stances. The advocates of the defendant would not outrage moral 
 decency, or affront the feelings and understanding of a jury. But 
 the principle of the action should be exactly understood. The de- 
 fendant is not here upon his trial for the commission of an offense 
 against society ; you are not placed there on this occasion as moral 
 censors of the actions of men ; public duties should not be con- 
 founded ; the defendant is not the subject of criminal prosecution ; 
 but the plaintiff seeks compensation for a specific injury, and must 
 show he has sustained it. He says he has lost, by means of the de- 
 fendant, the comforts and enjoyments of conjugal domestic life. 
 The law upon the subject is simple and well settled. If the hus- 
 band, in the emphatical language of the law, connives at his own 
 dishonor (which I would not be understood to say he has done in 
 the present case), it goes to the foundation of the action, and he is 
 not entitled to a verdict. That must, of course, be collected from 
 the circumstances. Neglect and inattention may be so gross as to 
 amount to satisfactory evidence of connivance, or may disclose 
 such demerits on the plaintiff's part as should mitigate the damages 
 to nothing. 
 
680 SPEECH OF THOMAS QUIN 
 
 3. Character and conduct of Mrs. Massv. 
 
 The case before you is of the latter class, and as such we put it 
 to you. Let me advert to the circumstances under which the 
 plaintiff married Miss Rosslewin. She was young, volatile and 
 giddy, beautiful and vain, of an uncommon levity (the witness 
 called it gayety) of disposition, and fond of dress beyond even the 
 ordinary passion of her sex. His manly advantages and liberal 
 education enabled him, and the prudential duties of his station en- 
 joined him, to observe and guide her. Lest uncontrolled by the 
 presence and unassisted by the instruction of a husband, unre- 
 strained by a marital admonition, unattended, unadvised, unchecked 
 and unreproved by him who was the natural guardian of her morals 
 and his own honor, indulged in profusion to which his income was 
 inadequate, she engaged in a career of dissipation, and plunged 
 into that vicious vortex which hurried her to the depth of her own 
 infamy and his disgrace. Her life was passed and occupied ; the 
 plaintiff suffered it to pass amidst those scenes of fashionable en- 
 joyment wherein women, unfortified by principle and unaided by 
 advice, become exposed to the most dangerous impressions ; her 
 improving beauty solicited and provoked the admiration of our sex, 
 and her situation encouraged their approaches. Devoted to his 
 own amusements, her natural protector wandered from her and left 
 "her fair side all unguarded;" she received and permitted, with 
 undisguised delight, assiduities too observable to pass unnoticed, or 
 escape the effect of public observation. Her dress became magnif- 
 icent and costly. She passed months at the houses of single geptle- 
 men, unaccompanied or unattended, save occasionally by the plaint- 
 iff ; and, at Galway in particular, where she went on an excursion, 
 the attentions of a military man of rank became so remarkable, and 
 her encouragement so glaring, that her own connections found il 
 necessary to snatch her from the spot, as from impending infamy, 
 and hurried her to Limerick. 
 
 Thus it will appear that this unfortunate young lady, who has 
 been poetically represented by the plaintiff's counsel as a paragon 
 of domestic fidelity and female purity until the spoiler came, and 
 whose piety has composed one topic of the panegyric, had never 
 beheld the defendant, or he her, until the breath of public remark 
 had tainted, if not blasted, her reputation. Such as I have described 
 her, so did the defendant find her : engaged in public fashionable 
 life, immersed in pleasures, and practiced in those arts which too 
 
m MASSY T. THE MARQUIS OF HEADFORT. 681 
 
 often render a lovely married woman more seducer than seduced. 
 He met her first at the races of Limerick, then at the races of Mal- 
 low, unattended by the plaintiff at either place. The attentions of 
 a man of such superior rank were too flattering to be declined ; 
 they passed under public observation at all places of public or pri- 
 vate fashionable resort ; the eyes of all companies were fixed upon 
 them, and her reception of them, being too obvious to pass un- 
 marked, became the subject of general conversation. She avowed 
 to her relations her attachment to the defendant, and her deter- 
 mination to go off with him. Are you to presume that all this took 
 place unknown to her husband ? Was he, though on the spot, alone 
 deceived ? It is said the defendant's propensity to gallantry is no- 
 torious; was that unknown to the plaintiff ? It would be monstrous 
 indeed, under such circumstances, to presume him ignorant; but he 
 should have known her conduct, because it was his duty to observe 
 and govern it. That such was her demeanor will appear in proof. 
 We have heard and read of various husbands — the tender, the care- 
 less, the mysterious, the suspicious — but the plaintiff adds a new 
 one to the drama, and gives the unsuspecting or the sightless hus- 
 band ! Here was no breach of friendship, no confidence abused ; 
 the intercourse went on in public, and it was not until after a 
 familiar acquaintance with the wife, well known to the plaintiff, that 
 he and the defendant became known to each other. 
 
 4. The verdict must not be the result of vengeance, but 
 of reason and justice. 
 
 While these proceedings were in progress to their consumma- 
 tion, the plaintiff, who had resigned Mrs. Massy to her own good 
 guidance, passed his time at the house of his brother, enjoying the 
 highly moral intercourse of him and Mrs. Harvey. What ! Gentle- 
 men of the Jury! the man who claims ^^40,000 against another for 
 a breach of the most sacred moral relations in society — himself of 
 a sacred and highly moral function — associates with the mistress of 
 his brother ; sanctions, by his presence, the expulsion of an amiable 
 and deserving woman, cast into exile from that mansion which she 
 could adorn, and witnesses her rights supplanted and hfer place 
 usurped by the dominion of a concubine ! And if these be the 
 plaintiff's claims to your regard, indulge him to the extent of his 
 demand ; but before you do so, you will expect that he shall show 
 himself entitled from his own deportment, for your verdict will be 
 the result of reason and of justice, and not, as has been said, of 
 
682 SPEECH OF THOMAS QUIN. 
 
 vengeance. What will you be disposed to feel when you shall hear 
 that she dined repeatedly at the house of the defendant, alone, un- 
 accompanied and uncountenanced by any other female, and sur- 
 rounded by his officers ? To what can you ascribe such an un- 
 blushing breach of delicacy ? What inference do you draw from 
 that ? Why, that her principles were sapped before, and that it is 
 as idle, as unjust to charge the defendant with her ruin! What will 
 you think when I inform you that after, in consequence of such 
 misconduct, her relations shut their doors against her, the husband 
 opened his ? She returned from Limerick to Summer Hill, the 
 plaintiff's house, accompanied by the defendant, and no other per- 
 son, in the defendant's carriage, and was received by her unsuspect- 
 ing husband. What did he do ? Did he express a natural indigna- 
 tion ? Did he remonstrate ? Did he reprove ? No, gentlemen of 
 the jury ! He retired to Dian's temple at Donass, and, the key of 
 the cellar being left behind, nothing remained to impede the indul- 
 gences of love and wine ; from thence till he went off the defend- 
 ant passed whole days at Summer Hill, uninterrupted by the plaint- 
 iff. Allow me to ask, where was Mr. Massy, and how was he occu- 
 pied while his wife was so conducting herself ? Was he engaged 
 away in the service of his king and country ? Was he laudably em- 
 ployed in the industrious task of furnishing the comforts and ele- 
 gancies of life for the partner of his heart and the dear pledges of 
 their love ? No. 
 
 5. A GOOD WIFE LIKENED TO A JEWEL, TO BE WORN NEXT 
 THE HEART. 
 
 The man possessing a jewel of inestimable worth, who wished, 
 in truth, to guard its value and preserve its lustre, would wear it 
 next the heart ; but the plaintiff threw this gaudy, worthless trinket 
 here and there, to be picked up by every casual finder, or let it 
 hang so loosely from his person as to invite and, ready as it were, 
 to bless the silly hand which, tempted by its glitter, might feel dis- 
 posed to rid him of the contemptible embarrassment, and snip it 
 from his side. It has been lost, and you are called upon to esti- 
 mate the' injury and to reprize the loss. You will reflect how far it 
 was worth the keeping ; you will consider what pains he took to 
 guard it ; you will appreciate the value of the article, and then de- 
 termine upon what grounds, and to what extent, the plaintiff merits 
 the interposition of a jury. 
 
SPEECH OF Rt. Hon. GEORGE PONSONBY. 
 
 Closing for Defendant in Massy v. The Marquis of Head- 
 fort. — Damages for Criminal Conversation. 
 
 AT ENNIS ASSIZES, COUNTY CLARE, BEFORE BARON SMITH 
 AND A SPECIAL JURY, FRIDAY, JULY 27th, 1804. 
 
 Damages claimed, ^^40,000. — Amount recovered, ;£io,oc». 
 
 Analysis of Me. Ponsonbt's Speech. 
 
 *. Duty of the jury. — Varied character and 
 nature of the defenses to the action. 
 
 u. Observations as to the plaintiff's deport- 
 ment, and its influence upon the wife. 
 
 3. If plaintiff's conduct contributed to his 
 misfortune, he cannot be rewarded 
 for it. 
 
 . Vindictive damages not recoverable. — 
 The damages must be proportionate to 
 the injury and the conduct of the par- 
 ties. 
 While the defendant's acts cannot be jus- 
 tified, the plaintiff's conduct is not free 
 from blame. 
 
 The Right Honorable George Ponsonby, at the time this speech was deliv- 
 ered, stood at the head of his profession in Ireland, and it is said that he derived 
 from his practice an income of ;^6,ooo a year. He possessed landed estates, 
 was knight of the shire of Wicklow, and allied to several noble families both in 
 England and Ireland. He succeeded Lord Redesdale, in 1806, to the office of 
 Chancellor, and received the unanimous congratulation of the Bar on his ap- 
 pointment to the seals. Upon his retirement from office, his merits were recog- 
 nized, and the high appreciation in which his integrity, diligence and talents were 
 held, and the deep regret felt on the occasion, were expressed at the time by 
 Mr. Pliinket, in an address in behalf of his professional brethren. In the debate 
 in the Commons, regarding his pension. Lord Howick remarked, that a more 
 upright and efficient judge never graced the Chancery bench. He earned a re^ 
 utation as an honest, upright official, and no incumbent rendered more general 
 satisfaction. 
 
 His address on the present occasion is characteristic of the man. It con- 
 tains no attempt at ornament. No effort is made to justify his client's crime. 
 It is a frank, calm statement, containing many shrewd and practical observations, 
 bearing directly upon the legal aspect of the case, based upon the fixed and 
 settled principles of the law. Through it all there is a vein of candor, which 
 always goes far towards allaying the prejudices, which conduct like that of the 
 defendant invariably excites. If it is said that, notwithstanding this effort, the 
 damages were great, it should be remembered that the defense was mainly tech- 
 
 [6S3] 
 
084 SPEECH OF Et. Hon. GEORGE PONSONBY* 
 
 nical, and the jury might have given four times as much. At the close of the 
 testimony Mr. Ponsonby said : 
 
 May it please the Court : — It is my duty, gentlemen of the 
 jury, as counsel for the defendant, to trouble you with a few obser- 
 vations on the whole of the evidence that has been laid before you.' 
 You will please to observe, that this action is brought to recover 
 compensation, in money, for the injury sustained by the plaintiff. 
 That injury, only, is the foundation of this action ; and, therefore, 
 what you have heard of juries giving damages by way of example, 
 in order to deter others from the commission of a like offense, of 
 setting themselves up as censors, is perfectly irrelevant to the case 
 before you. It is the usual practice of counsel to have recourse to 
 this artifice, because they know well, should they succeed in impos- 
 ing such a principle on a jury, there is no redress for the defend- 
 ant if the damages should be excessive. In other cases such excess 
 may be rectified, but in this never can ; and therefore, from the 
 consequence of inflamed passions, there is no relief to be had, and 
 this should be a peculiar reason with a jury to reflect most maturely 
 in apportioning damages, because should they happen to be mis- 
 taken, their mistakes can never be rectified. 
 
 I. Duty of the jury. — Varied character and nature of 
 
 THE defenses TO THE ACTION. 
 
 In this action the law is plain and simple. The plaintiff in it 
 complains that the defendant deprived him of the comfort and so- 
 ciety of his wife, and the business for a jury is, on their oaths, to 
 inquire what comfort has been lost, or injuries sustained by the 
 plaintiff, and whether such have been brought on by his own mis- 
 conduct. This must be the rule to regulate the jury. 
 
 The degrees of defense to the action are various. A defend- 
 ant may show the plaintiff is not entitled to any damages, because, 
 if any injury has been sustained, it was occasioned by his default, 
 in conniving at his own disgrace. If such a defense should be 
 proved, the plaintiff must fail altogether; but that is not the de- 
 fense meant to be set up here. There are other degrees of defense: 
 the husband is, not only in fact, but is considered by the law, the 
 guardian and protector of his wife; but if, instead of so protecting 
 her, he puts her in a situation to provoke temptation, he is not en- 
 titled to such damages as he might otherwise have been. The de- 
 fense I am instructed to insist upon goes not to the right of 
 ' For the facts of the case, and the evidence, see pages 667, 677, G79. 
 
m MASSY T. THE MARQUIS OP HEADFORT. 685 
 
 the action, but is irresistible in mitigation of the damages. I do 
 not accuse plaintiff of connivance at the misconduct of his wife, 
 but I do insist, it must be inferred from the evidence that he is not 
 entitled to damages so great as his counsel would seem to require. 
 If a woman has long lived with her husband in affection, and dis- 
 charging, as became her, the duties of her situation, and is seduced, 
 the jury ought to compensate him most amply. If a long supposed 
 friendship is perverted to the seduction of such a wife, the seducer 
 ought to be punished — the jury ought to be liberal in compensa- 
 tion. It would be well if society were so perfect that there could 
 be no danger of such an offense. The truth is, men are more in 
 fault than women. Women are, in all countries, regulated by the 
 conduct of men, and if men will talk with levity; if they will talk 
 lightly of women who have been guilty; if those who are guilty are 
 received into society; it is but natural their own wives should be 
 induced to act the same part those guilty women have acted. It is 
 the husband's own conduct with regard to other women ; his con- 
 duct in society in general, in deportment, in conversation, that can 
 entitle him to damages in an action of this sort. It is painful to 
 an advocate to speak of a man in the same society with himself 
 with severity, but it is often his duty to do so. 
 
 2. Observations as to the plaintiff's deportment, and its 
 influence upon the wife. 
 
 What has been the conduct of this plaintiff's family ? To be 
 sure it has been endeavored to prove, that the lady was very relig- 
 ious; that she remonstrated at the conduct of her brother-in-law; 
 that she was fond of Sunday devotion; but was there not in such 
 devotion as much affectation as there was religion ! There was in 
 the plaintiff's brother so much of immorality, that even the plaintiff 
 was prevailed upon to remonstrate with him. What time more fit 
 for such remonstrance than his dinner visits ! No doubt, the way 
 of life of his brother was extremely disagreeable to the plaintiff, 
 and therefore he frequently visited him for the purpose of affecting 
 a reform in his religious principles and habits. But, admitting the 
 fact to be so, if the plaintiff's wife saw the frequency of those 
 visits, she might reasonably enough consider it strange in him to 
 visit a house whose legitimate owner was expelled, in order to make 
 way for a woman, a kept mistress of her husband, and, therefore, 
 the plaintiff's wife might consider it venial in herself to indulge a 
 little in the same guilt. Will you then say, gentlemen of the jury, 
 
686 SPEECH OF Rt. Hon. GEORGE PONSONBT 
 
 that the plaintiff has not been at least indiscreet to a very great 
 degree; and that connubial honor and domestic peace were not so 
 highly valued by him as his counsel would fain persuade you they 
 were. 
 
 You will consider, gentlemen, whether, as a minister of religion, 
 he should not have forborne to associate with a relative who had 
 thus set at defiance every moral and social duty, and by the sever- 
 ity of his censure prove he could not pardon such an offense. But, 
 instead of that, has he not sanctioned by his conduct the acts of 
 another man, and now complains of the very same when done by 
 the Marquis of Headfort ? 
 
 Is has been said that the defendant was a man of very notorious 
 gallantry, regardless of the ties which bind society, and trampling 
 under foot those bonds that secure the happiness and comfort of 
 families. How often he has sinned in this respect I know not; but 
 I would venture to say, this is the first action of this sort that ever 
 was brought against him. But even admitting the fact to be as 
 charged against the defendant, was it not notice to the husband to 
 regard, with a more watchful eye, the connection he saw increasing 
 between his wife and Lord Headfort ? Why did he allow any in- 
 timacy at all to subsist under such circumstances ? Why allow his 
 wife to dine with him ? Why allow her to visit him, when his ac- 
 tions were so pointed ? Was it not the height of indiscretion in 
 plaintiff to allow his wife to continue this intimacy — an intimacy 
 that could not proceed from any friendship between the plaintiff 
 and defendant, for none such subsisted ? To what account, then, 
 was he to place those attentions to his wife ? Was it not the de- 
 fendant's regard for her, and not for plaintiff ? The history of the 
 world unfortunately affords many instances of the violation of 
 friendships the most sacred, and of their perversion to purposes the 
 most abominable. But here no previous friendship existed. Suffi- 
 cient occurred to awaken the attention of plaintiff when those un- 
 usual tendernesses were shown by the defendant to his wife. 
 
 It has been said, to be sure, that his confidence in her honor 
 and principles were even so great as not to allow him to suspect 
 her. Why, it reminds me of one of the plays of Congreve, where a 
 lady laments the violence of her passion to her confidant. The 
 confidant says : " Ah, you will never yield ; your honor, your in- 
 tegrity will support you." The lady replies: " Ah, me, what is ««- 
 tegrity to opportunity ;" and, therefore, if a husband allows a parti- 
 ality for his wife to continue without interruption, he contributes to 
 
m MASSY V. THE MARQUIS OF HEADFORT. 687 
 
 his own misfortune ; most particularly if the suitor be a man of the 
 character and conduct this defendant has been said to be. What 
 can it be but the grossest folly in the husband not to discounte- 
 nance his advances altogether ? If anything detrimental to him fol- 
 lows from such neglect, who has he to blame but himself ? Is he 
 equally entitled, to damages with the husband who would, instead 
 of winking at the imprudencies of his wife, have removed her alto- 
 gether from the neighborhood of her gallant, or at least have for- 
 bidden her a longer continuance of his acquaintance ? To talk, 
 therefore, of the kindness of this husband ; of his unwillingness to 
 open his eyes to the conduct of his wife, is but idle declamation ; 
 he has nobody to blame but himself. 
 
 3. If plaintiff's conduct contributed to his misfortune, 
 he cannot be rewarded for it. 
 
 There are other considerations, gentlemen of the jury, of great 
 moment, necessary for your deliberation. I mean the actual loss 
 the husband has sustained independent of what is called the loss of 
 honor. Was not her conduct such as ought to make every prudent 
 husband watchful ? Was she not the subject of public animadver- 
 sion ? And, if he has not discharged his duty, ought he to get the 
 compensation of a husband the most virtuous ? He comes for 
 compensation for the loss he has sustained in the society of his 
 wife ; but if she would make the same mistake with any other per- 
 son, this defendant ought not to be punished beyond the propor- 
 tion of his offense. There is no man so rude or dull as not to un- 
 derstand, that if the approaches of a stranger be well received by a 
 married woman the husband cannot lose much by the loss of her 
 society. The plaintiff here lays his damages at _;^4o,ooo — a sum 
 never heard of even in the days of Lord Kenyon, a judge remark- 
 able for the severity of his principles. The truth is, gentlemen of 
 the jury, no woman capable of conduct such as plaintiff's wife 
 has been guilty of, could be worth ^^40,000. So strange was her 
 conduct, and so negligent was her husband, that one would think 
 it would be almost reasonable to expect he should have told the 
 defendant that he valued his wife at _;^4o,ooo. One begins to think 
 it was not fair in the plaintiff to allow the address of my Lord 
 Headfort to his wife, without giving him some notice that he valued 
 her so high. Had he done so, are you sure, gentlemen, that the 
 defendant would not have withdrawn his assiduities ? And this is 
 the only want of candor I impute to the plaintiff. Admitting that 
 
688 SPEECH OF Et. Hon. GEORGE PONSONBT 
 
 defendant's object was the reputation of gallantry, and that plaintiff 
 knew that was the fact, and encouraged it, and wished to make the 
 defendant pay for it, he ought, at least, to have told the defendant 
 he expected _^4o,ooo for his indulgence of him. What, gentlemen 
 of the jury, _;^4o,ooo for the seduction of a woman only four months 
 known to the defendant, previously too successfully assailed by 
 others, and plaintiff the claimant for such a sum, who has been, 
 himself, guilty of great moral delinquency ! I am no advocate for 
 gallantry of this kind, but I would ask you, has there been in this 
 case a long train of seduction, a long friendship violated, or a con- 
 fiding husband betrayed ? If such be the case, punish the defend- 
 ant ; punish him amply. But, on the contrary, if that be not the 
 fact, and the evidence laid before you shows it was not the fact ; if 
 plaintiff's own conduct has contributed to his own misfortune, you 
 are not to reward him for it. What is it to the plaintiff that Lord 
 Headfort is a married man ? Is his injury the greater ? You have 
 nothing to do with the marriage of the defendant. It can make no 
 difference in point of loss whether he was so or not. His being 
 separate from his wife is a reason, a strong reason, why the plaintiff 
 should not allow his wife to associate with him. 
 
 4. Vindictive damages not recoverable. — The damages 
 
 must be propormonate to the injury and the 
 
 conduct of the parties. 
 
 The plaintiff's counsel have talked of vindictive damages ; it is 
 an expression unintelligible to me. They have said he should be 
 made an example for all other adulterers. But your duty is to give 
 damages proportionate to the injuries sustained, and the conduct 
 of the parties, otherwise you may as well give damages because 
 others have committed the same offense, so as to prevent the repe- 
 tition of it. If one man had assaulted another so grievously as to 
 put out his eyes, it seems to me it would be equally right in you to 
 give vindictive damages to prevent the repetition of it, as it would 
 be to do so in the present case. But the fact is, each case must 
 rest on its own merits. You will ask yourselves these questions : 
 Did the plaintiff see his wife dressed in ornaments beyond her 
 means, and which he never supplied ? Had he such warning as 
 ought to have been sufHcient to put him on his guard ? If he had 
 discharged his duty, could he have occasion for bringing this ac- 
 tion ? The evidence laid before you has given an answer to these 
 questions, and ought to be the rule by which your verdict should 
 
IN MASSY V. THE MARQUIS OF HEADFORT. 689 
 
 be regulated. The liberty happily allowed to women in these 
 countries will often subject the best of husbands to deception ; but 
 it is better, allow it, than to have recourse to the horrible and abom- 
 inable coercions practiced in other countries. Here, women are 
 their own mistresses, and men are not their masters. If husbands, 
 acting under the generous feelings that are encouraged in these 
 countries, are deceived, and if foul advantages are taken of them, 
 it is hard to consider any compensation too great for the injury 
 they sustain ; but if the husband not only neglects, but almost in- 
 vites addresses to his wife, he shall not be compensated. What is 
 the law in other cases ? Is not the neglect or want of vigilance of 
 one's property considered by the law as not entitled to redress ? Is 
 not an estate often lost because the claim has not been made in a 
 reasonable time ? And why should it be otherwise in an action 
 like this ? Was the plaintiff's own conduct prudent and discreet ? 
 It has been said he ordered separate beds for himself and his wife ; 
 that he had forbid her for three weeks to visit Limerick ? and yet, 
 strange to tell, the defendant during that time was received at his 
 house. But suppose the defendant was not received there — sup- 
 posing the worst that can be said for my client — could not the 
 plaintiff have denied him admittance ? Could not he have removed 
 for a time to the country with his wife? The conduct of the 
 plaintiff and his relations was far different. No indignation was 
 expressed among them at the defendant's conduct. He dined 
 often after at plaintiff's brother's house. Could the rigid injunction 
 of plaintiff on his wife, not to visit Limerick or receive the defend- 
 ant, be considered serious ? Was he not induced to think, when 
 he was received at plaintiff's house after such an injunction, that 
 the whole proceeding was a mockery ? The witness said it was the 
 fault of the head and not of the heart of the plaintiff that occa- 
 sioned this neglect of his wife. Admitted. It was still weakness 
 in the extreme not to discountenance the defendant altogether. If 
 a man is told in words his advances are not welcome, and yet the 
 manner and actions contradict these words, which is to be be- 
 lieved ? The defendant knew that plaintiff lived in habits of in- 
 timacy with his brother, frequented that brother's house, dined 
 with him, when he well knew that the wife of that brother was ban- 
 ished from her home, and, in her place, was substituted the mistress 
 of the brother, who sat at the head of his table and discharged all 
 the other duties of the legitimate wife. The plaintiff left his wife 
 
 alone, spent days and dined in company with Mrs. Harvey. The 
 44 
 
690 SPEECH OF Rt. Hon. GEORGE PONSONBT. 
 
 plaintiff being a clergyman has nothing to do with this action. 
 He is no more entitled to damages for that reason than any other 
 man. It makes it only the more incumbent on him to attend to 
 the morals and conduct of his wife. 
 
 5. WhiCE thk defendant's acts cannot be justified, the 
 plaintiff's conduct is not free from blame. 
 
 I do not justify the defendant ; I do not accuse the plaintiff of 
 connivance ; but I do insist that his own conduct, his own way of 
 life, has occasioned whatever misfortune he has suffered. That 
 this unhappy woman has yielded to the addresses of four months 
 cannot be disputed. What was the occasion of it ? Was it the 
 prospect of marriage ? Was it love ? No. Twenty-five does not 
 love fifty. Her husband was but twenty-eight. She could not 
 leave 
 
 " That fair and fertile plain to batten on that moor." 
 
 Love might be a strong excuse for such conduct, because it is 
 often too strong for law, virtue, or morality ; it becomes entitled, 
 therefore, to human commiseration. But how is it possible to con- 
 ceive that a woman of twenty-five could, after an acquaintance of 
 four months, be induced by a violence of love to throw herself into 
 the arms of a man of fifty ? If this husband's conduct was virtuous 
 and' vigilant ; if his .wife's conduct was moral and domestic ; and 
 if not, notwithstanding she was seduced from him ; if the plaintiff 
 was everything that was right, and the defendant everything that 
 was abominable, why, then, give damages ? But do not say that be- 
 cause defendant is rich ; because he is a man of intrigue ; because 
 he is a man of gallantry ; therefore give vindictive damages. If 
 the breath of slander had never reached this lady previous to her 
 acquaintance with the defendant, punish the defendant for his se- 
 duction ; but, on the contrary, if the defendant has been deceived 
 by the husband and seduced by the wife, as men of sense con- 
 sider whether he ought, therefore, to be punished by vindictive 
 damages. 
 
SPEECH OF JOHN PHILPOT CURRAN. 
 
 Closing for Plaintiff in Massy v. The Marquis of Head- 
 fort. — Damages for Criminal Conversation. 
 
 AT ENNIS ASSIZES, COUNTY CLARE, BEFORE BARON SMITH 
 AND A SPECIAL JURY, FRIDAY, JULY 27th, 1804. 
 
 Damages claimed, ^40,000. Amount recovered, ;£io,c)oo. 
 
 Analysis of Mr. Cueean's Speech. 
 
 . Theory of damages in this class of ac- 
 tions. — Why the verdict cannot be set 
 aside for excess. 
 
 , Statement of the questions to be consid- 
 ered by the jury. 
 
 . The charge of connivance a false and im- 
 pudent defense. — Plaintiff*s indiscre- 
 tion no crime. 
 
 , Supposed remonstrance with the defend- 
 ant, when about to commit the offense. 
 
 , Shameful experience resulting from a 
 previous elopement of which the de- 
 fendant had been guilty. 
 
 6. Disgraceful conduct of the defendant in 
 
 the present case. 
 
 7. The character of the defense an aggra- 
 
 vation of the crime, and an insult to 
 thejury. 
 
 8. Reasons why liberal damages should be 
 
 awarded, 
 g. Sketch of the trial and nature of the ver- 
 dict anticipated by the de.'endant. 
 10. Exemplary damages should be given for 
 a breach of plaintiff's hospitality. — 
 The husband's sufferings depicted. 
 
 Mr. Curran has been considered by competent critics the most complete 
 example of the Irish school of eloquence, and his effort on the present occasion 
 is generally regarded as one of his best. " His speeches " says a learned British 
 reviewer, " combine the most prominent bea'uties and defects ; those beauties fre- 
 quently overshadowed, as it were, by their neighboring deformities ; and those 
 very deformities sometimes consecrated by their adjoining beauties. Tried with- 
 in the jurisdiction of severe taste, the style would be condemned as too florid and 
 Asiatic. We are grieved at this unrestrained appetite for decoration. We look in 
 vain for those under-parts in rhetoric which ought to be occasionally interposed 
 as resting places to relieve the mind in its efforts to follow him. Every topic, 
 whether primary or subordinate, is dressed in the same gorgeous trappings ; more 
 ambitious of starting and surprising than of fixing a steady and gradual convic- 
 tion in the understanding, he misses the object which ought to be the exclusive 
 aim of the orator. He deserts the high road to the human heart by perpetual 
 deviations after the flowers that grow by the wayside. The unintermitted play 
 of metaphor dazzles and fatigues us. In the perusal of his speeches we are in- 
 dulged to satiety with a gaudy succession of images, scattered about by a fancy 
 perpetually at work, but not unfrequently offending us by that which is fatal to 
 an image, the want of congruity in fitness. The reason and judgment reject the 
 
 [091] 
 
692 SPEECH OF JOHN PHILPOT CUREAN 
 
 unsubstantial and airy creations of an unfettered imagination. They demand 
 that chaste, though not unadorned diction in which the cause itself may be said 
 to speak, and the pleader is comparatively silent." ' 
 
 If, however, Mr. Curran is to be considered as the most shining example of 
 the Irish school, to what class must we assign Burke and Flood, Grattan, Sheri- 
 dan and Plunket ? Theirs was not the exuberant and florid style of Mr. Cur- 
 ran, but it will not be denied that their more restrained and elegant diction be- 
 longs to the highest order of intellect, and that their work is immortal. They 
 were Irishmen, but they belonged to no school. One proof of genuine elo- 
 quence is.'that independent of local or historical associations, there is nothing, 
 in the mannerism of the speaker, to indicate to what age or country he belonged. 
 
 Notwithstanding his alleged imperfections, Mr. Curran was a great advocate, 
 and his power over juries was wonderful. Those things which the precise scholi- 
 ast may characterize as faults of style, were the very elements of his success. His 
 ability to paint the misfortunes of his client in vivid colors, to awaken sympathy 
 and allay prejudices, brought him large verdicts. He cared not how his speech 
 looked in print. He was not talking to posterity, nor to please the schoolmen. 
 All his powers were concentrated to sway the passions of the heart ; and if the 
 result elicited the applause of the multitude, or created an irresistible desire to 
 carry him in triumph through the streets ; if his advocacy effected the release of 
 the accused, or gained liberal verdicts, his success was genuine and his reward 
 instant. One secret of Mr. Curran's power was that he appealed to the heart 
 rather than to the intellect. 
 
 In pleading the cause of Mr. Massy, Mr. Curran was in a position to appre- 
 ciate keenly his client's situation, since he had himself previously suffered the 
 same injury, under the same circumstances. He presented the plaintiff's case as 
 follows : 
 
 May it please the Court, — Gentlemen of the Jury : — Never, 
 so clearly as in the present instance, have I observed that safe- 
 guard of justice which Providence has placed in the nature of man. 
 Such is the imperious dominion with which truth and reason wave 
 their scepter over the human intellect, that no solicitation, however 
 artful, no talent, however commanding, can reduce it from its al- 
 legiance. In proportion to the humility of our submission to its 
 rule, do we rise into some faint emulation of that ineffable and 
 presiding divinity whose characteristic attribute it is to be coerced 
 and bound by the inexorable laws of its own nature, so as to be 
 all-wise and all-just from necessity rather than election. You have 
 seen it, in the learned advocate who has preceded me, most peculi- 
 arly and strikingly illustrated. You have seen even his great 
 talents, perhaps the first in any country, languishing under a cause 
 too weak to carry him, and too heavy to be carried by him. He 
 was forced to dismiss his natural candor and sincerity, and, having 
 
 ' Monthly Review, vol. 90, page 33/. 
 
IN MASSY T. THE MARQUIS OF HEADFORT. 693 
 
 no merits in his case, to substitute the dignity of his own manner, 
 the resources of his own ingenuity, over the overwhelming difficul- 
 ties with which he was surrounded. Wretched client ! unhappy 
 advocate ! What a combination do you form ! But such is the 
 condition of guilt — its commission mean and tremulous ; its defense 
 artificial and insincere ; its prosecution candid and simple ; its con- 
 demnation dignified and austere. Such has been the defendant's 
 guilt ; such his defense ; such shall be my address, and such, I 
 trust, your verdict. 
 
 I. Theory of damages in this class of actions. — Why the 
 
 VERDICT CANNOT BE SET ASIDE FOR EXCESS. 
 
 The learned counsel has told you that this unfortunate woman 
 is not to be estimated at forty thousand pounds. Fatal and un- 
 questionable is the truth of this assertion. Alas ! gentlemen, she 
 is no longer worth anything ; faded, fallen, degraded and disgraced, 
 she is worth less than nothing. But it is for the honor, the hope, 
 the expectation, the tenderness and the comforts that have been 
 blasted by the defendant, and have fled forever, that you are to re- 
 munerate the plaintiff by the punishment of the defendant. It is 
 not her present value which you are to weigh ; but it is her value 
 at that time when she sat basking in a husband's love, with the 
 blessing of Heaven on her head, and its purity in her heart ; when 
 she sat among her family and administered the morality of the pa- 
 rental board ; estimate that past value, compare it with its present 
 deplorable diminution, and it may lead you to form some judgment 
 of the severity of the injury and the extent of the compensation. 
 
 The learned counsel has told you you ought to be cautious, be- 
 cause your verdict cannot be set aside for excess. The assertion is 
 just ; but has he treated you fairly by its application ? His cause 
 would not allow him to be fair, for why is the rule adopted in this 
 single action ? Because, this being peculiarly an injury to the most 
 susceptible of all human feelings, it leaves the injury of the husband 
 to be ascertained by the sensibility of the jury, and does not pre- 
 sume to measure the justice of their determination by the cold and 
 chilly exercise of its own discretion. In any other action it is easy 
 to calculate. If a tradesman's arm is cut off, you can measure the 
 loss which he has sustained ; but the wound of feeling and the 
 agony of the heart cannot be judged by any standard with which I 
 am acquainted. You are, therefore, unfairly dealt with when you 
 
694 ' SPEECH OF JOHN PHILPOT CUREAN" 
 
 are called on to appreciate the present suffering of the husband by 
 the present guilt, delinquency and degradation of his wife. As well 
 might you, if called on to give compensation to a man for the mur- 
 der of his dearest friend, to find the measure of his injury by weigh- 
 ing the ashes of the dead. But it is not, gentlemen of the jury, by 
 weighing the ashes of the dead that you would estimate the loss of 
 the survivor. 
 
 The learned counsel has referred you to other cases and other 
 countries for instances of moderate verdicts. I can refer you to 
 some authentic instances of just ones. In the next county, ^^15,000 
 against a subaltern officer. In Travers and M'Carthy, ^S,ooo 
 against a servant. In Tighe against Jones, _;^io,ooo against a man 
 not worth a shilling. What, then, ought to be the rule where rank 
 and power, and wealth and station have combined to render the 
 example of his crime more dangerous ; to make his guilt more odi- 
 ous ; to make the injury to the plaintiff more grievous, because more 
 conspicuous ? I affect no leveling familiarity when I speak of per- 
 sons in the higher ranks of society. Distinctions of orders are 
 necessary, and I always feel disposed to treat them with respect. 
 But when it is my duty to speak of the crimes by which they are 
 degraded, I am not so fastidious as to shrink from their contact 
 when to touch them is essential to their dissection. In this action, 
 the condition, the conduct and circumstances of the party are justly 
 and peculiarly the objects of your consideration. Who are the par- 
 ties ? The plaintiff, young, amiable, of family and education. Of 
 the generous disinterestedness of his heart you can form an opin- 
 ion, even from the evidence of the defendant, that he declined an 
 alliance which would have added to his fortune and consideration, 
 and which he rejected for an unportioned union with his present 
 wife. She, too, at that time young, beautiful and accomplished ; 
 and feeling her affection for her husband increase in proportion as 
 she remembered the ardor of his love and the sincerity of his sacri- 
 fice. Look now to the defendant ! I blush to name him ! I blush 
 to name a rank which he has tarnished, and a patent that he has 
 worse than cancelled. High in the army ; high in the State ; the 
 hereditary counsellor of the king ; of wealth incalculable, and to 
 this last I advert with an indignant and contemptuous satisfaction, 
 because, as the only instrument of his guilt and shame, it will be 
 the means of his punishment and the source of compensation for 
 his guilt. 
 
IN MASSY V. THE MARQUIS OP HEADFORT. 695 
 
 2. Statement of the questions to be considered by the 
 
 JURY. 
 
 But let me call your attention distinctly to the questions you 
 have to consider. The first is the fact of guilt. Is this noble Lord 
 guilty ? His counsel knew too well how they would have mortified 
 his vanity, had they given the smallest reason to doubt the splendor 
 of his achievement. Against any such humiliating suspicion, he 
 had taken the most studious precaution by the publicity of the ex- 
 ploit. And here in this court, and before you, and in the face of 
 the country, has he the unparalleled effrontery of disdaining to re- 
 sort even to a confession of innocence. His guilt established, your 
 next question is the damages you should give. You have been told 
 that the amount of the damages should depend on circumstances. 
 You will consider these circumstances, whether of aggravation or 
 mitigation. His learned counsel contend that the plaintiff has been 
 the author of his own suffering, and ought to receive no compensa- 
 tion for the ill consequences of his own conduct. In what part of 
 the evidence do you find any foundation for that assertion ? He 
 indulged her, it seems, in dress. Generous and attached, he prob- 
 ably indulged her in that point beyond his means ; and the defend- 
 ant now impudently calls on you to find an excuse for the adulterer 
 in the fondness and liberality of the husband. 
 
 But you have been told that the husband connived. Odious and 
 impudent aggravation of injury, to add calumny to insult, and out- 
 rage to dishonor. From whom but a man hackneyed in the paths 
 of shame and vice ; from whom but from a man having no com- 
 punctions in his own breast to restrain him, could you expect such 
 brutal disregard for the feelings of others ? From whom but the 
 cold-blooded, veteran seducer ; from what but from the exhausted 
 mind, the habitual community with shame ; from what but the ha- 
 bitual contempt of virtue and of man, could you have expected the 
 arrogance, the barbarity and folly of so foul, because so false, an 
 imputation ? He should have reflected and have blushed before he 
 suffered so vile a topic of defense to have passed his lips. But, ere 
 you condemn, let him have the benefit of the excuse, if the excuse 
 be true. You must have observed how his counsel fluttered and 
 vibrated between what they called connivance and injudicious con- 
 fidence ; and how, in affecting to distinguish, they have confounded 
 them both together. If the plaintiff has connived, I freely say to 
 you, do not reward the wretch who has prostituted his wife and 
 
696 SPEECH OF JOHN PHILPOT CURRAN 
 
 surrendered his own honor ; do not compensate the pander of his 
 own shame, and the willing instrument of his own infamy. But as 
 there is no sum so low to which such a defense, if true, ought not 
 to reduce your verdict, so neither is any so high to which such a 
 charge ought not to inflame it, if such a charge be false. 
 
 3. The charge of connivance a false and impudent de- 
 fense. — Plaintiff's indiscretion no crime. 
 
 Where is the single fact in this case on which the remotest 
 suspicion of connivance can be hung ? Odiously has the defendant 
 endeavored to make the softest and most amiable feelings of the 
 heart the pretext of his slanderous imputations. An ancient and 
 respectable prelate, the husband of his wife's sister, was chained 
 down to the bed of sickness, perhaps to the bed of death. In that 
 distressing situation, my client suffered that wife to be the bearer of 
 consolation to the bosom of her sister ; he had not the heart to re- 
 fuse her, and the softness of his nature is now charged on him as a 
 crime ! He is now insolently told that he connived at his dishonor, 
 and that he ought to have foreseen that the mansion of sickness 
 and of sorrow would have been made the scene of assignation and 
 of guilt. On this charge of connivance I will not further weary 
 you, or exhaust myself ; I will add nothing more than that it is as 
 false as it is impudent ; that, in the evidence, it has not a color of 
 support ; and that, by your verdict, you should mark it with rep- 
 robation. The other subject, namely, that he was indiscreet in 
 his confidence, does, I think, call for some discussion ; for I trust 
 you see that I affect not any address to your passions by which you 
 may be led away from the subject. I presume merely to separate 
 the parts of this affecting case, and to lay them, item by item, be- 
 fore you, with the coldness of detail, and not with any coloring or 
 display of fiction or of fancy. Honorable to himself was his un- 
 suspecting confidence ; fatal must we admit it to have been, when 
 we look to the abuse committed upon it ; but where was the guilt 
 of this indiscretion ? He did admit this noble Lord to pass his 
 threshold as his guest. Now the charge which this noble Lord 
 builds on this indiscretion, is : " Thou fool ! thou hast confidence 
 in my honor, and that was a guilty indiscretion ; thou simpleton, 
 thou thoughtest that an admitted and cherished guest would have 
 respected the laws of honor and hospitality, and thy indiscretion 
 was guilt. Thou thoughtest that he would have shrunk from the 
 
IN MA3ST V. THE MARQUIS OF HEADFORT. 69T 
 
 meanness and barbarity of requiting kindness with treachery, and 
 thy indiscretion was guilt." 
 
 Gentlemen, what horrid alternative in the treatment of wives 
 would such reasoning recommend ? Are they to be immured by 
 worse than Eastern barbarity? Are their principles to be de- 
 praved, their passions sublimated, every finer motive of action ex- 
 tinguished by the inevitable consequences of thus treating them 
 like slaves ? Or is a liberal and generous confidence in them to be 
 the passport of the adulterer, and the justification of his crime ? 
 
 Honorably but fatally for his own repose, he was neither jealous, 
 suspicious, nor cruel. He treated the defendant with the confi- 
 dence of a friend, and his wife with the tenderness of a husband. 
 He did leave to the noble Marquis the physical possibility of com- 
 mitting against him the greatest crime which can be perpetrated 
 against a being of an amiable heart and refined education. In the 
 middle of the day, at the moment of divine worship, when the 
 miserable husband was on his knees, directing the prayers and 
 thanksgiving of his congregation to their God, that moment did the 
 remorseless adulterer choose to carry off the deluded victim from 
 her husband, from her child, from her character, from her happi- 
 ness, as if not content to leave his crime confined to its miserable 
 aggravations, unless he also gave it a cast and color of factitious 
 sacrilege and impiety. 
 
 4. Supposed remonstrance with the defendant, when about 
 to commit the offense. 
 
 Oh ! how happy had it been when he arrived at the bank of the 
 river with the ill-faded fugitive, ere yet he had committed her to 
 that boat, of which, like the fabled bark of Styx, the exile was 
 eternal ; how happy at that moment, so teeming with misery and 
 with shame, if you, my Lord, had met him, and could have accosted 
 him in the character of that good genius which had abandoned 
 him. How impressively might you have pleaded the cause of the 
 father, of the child, of the mother, and even of the worthless de- 
 fendant himself. You would have said : " Is this the requittal that 
 you are about to make for the respect, and kindness and confidence 
 in your honor ? Can you deliberately expose this young man in 
 bloom of life, with all his hopes yet before him ? Can you expose 
 him, a wretched outcast from society, to the scorn of a merciless 
 world ? Can you set him adrift upon the tempestuous ocean of his 
 own passions, at this early season when they are most headstrong ; 
 
698 SPEECH OF JOHN PHILPOT CUBRAN 
 
 and can you cut him out from the moorings of those domestic obli- 
 gations by whose cable he might ride at safety from their turbu- 
 lence ? Think, if you can conceive it, what a powerful influence 
 arises from the sense of home, from the sacred religion of the heart 
 in quelling the passions, in reclaiming the wanderings, in correcting 
 the disorders of the human heart. Do not cruelly take from him 
 the protection of these attachments. But if you have no pity for 
 the father, have mercy, at least, upon his innocent and helpless 
 child. Do not condemn him to an education scandalous or ne- 
 glected. Do not strike him into that most dreadful of all human 
 conditions, the orphanage that springs not from the grave, that falls 
 not from the hand of Providence or the stroke of death ; but comes 
 before its time, anticipated and inflicted by the remorseless cruelty 
 of parental guilt." For the poor victim herself, not yet immolated, 
 while yet balancing upon the pivot of her destiny, your heart could 
 not be cold, nor your tongue be wordless. You would have said to 
 him : " Pause, my Lord, while there is yet a moment for reflection. 
 What are your motives, what your views, what your prospects, from 
 what you are about to do ? You are a married man, the husband 
 of the most amiable and respectable of women ; you cannot look 
 to the chance of marrying this wretched fugitive. Between you 
 and such an event there are two sepulchers to pass. What are your 
 inducements ? Is it love, think you ? No. Do not give that name 
 to any attraction you can find in the faded refuse of a violated bed. 
 Love is a noble and generous passion ; it can be founded only on 
 a pure and ardent friendship, on an exalted respect, on an implicit 
 confidence in its object. Search your heart ; examine your judg- 
 ment. Do you find the semblance of any one of these sentiments 
 to bind you to her ? What could degrade a mind to which nature 
 or education had given port or stature, or character, into a friend- 
 ship for her ? Could you repose upon her faith ? Look in her face, 
 my Lord ; she is at this moment giving you the violation of the 
 most sacred of human obligations as the pledge of her fidelity. She 
 is giving you the most irrefragable proof that as she is deserting her 
 husband for you, so she would without scruple abandon you for 
 another. Do you anticipate any pleasure you might feel in the pos- 
 sible event of your becoming the parents of a common child ? She 
 is at this moment proving to you that she is as dead to the sense of 
 parental as of conjugal obligation, and that she would abandon 
 your offspring to-morrow with the same facility with which she now 
 deserts her own. Look, then, at her conduct as it is, as the world 
 
IN MASSY V. THE MARQUIS OF HEADFORT. 699 
 
 must behold it, blackened by every aggravation that can make it 
 either odious or contemptible, and unrelieved by a single circum- 
 stance of mitigation that could palliate its guilt or retrieve it from 
 abhorrence. 
 
 " Mean, however, and degraded as this woman must be, she will 
 still (if you take her with you) have strong and heavy claims upon 
 you. The force of such claims does certainly depend upon circum- 
 stances. Before, therefore, you expose her fate to the dreadful 
 risk of your caprice or ingratitude, in mercy to her weigh well the 
 confidence she can place in your future justice and honor. At that 
 future time, much nearer than you think, by what topics can her 
 cause be pleaded to a sated appetite, to a heart that repels her, to a 
 just judgment in which she never could have been valued or re- 
 spected ? Here is not the case of an unmarried woman, with whom 
 a pure and generous friendship may insensibly have ripened into a 
 more serious attachment, until at last her heart became too deeply 
 pledged to be reassumed. If so circumstanced, without any hus- 
 band to betray, or child to desert, or motive to restrain, except 
 what related solely to herself, her anxiety for your happiness made 
 her overlook every other consideration, and commit her destiny to 
 your honor ; in such a case (the strongest and the highest that 
 man's imagination can suppose), in which you, at least, could see 
 nothing but the most noble and disinterested sacrifice ; in which 
 you could find nothing but what claimed from you the most kind 
 and exalted sentiment of tenderness and devotion and respect, and 
 in which the most fastidious rigor would find so much more subject 
 for sympathy than blame ; let me ask you, could you, even in that 
 case, answer for your own justice and gratitude ? I do not allude 
 to the long and pitiful catalogue of paltry adventures in which, it 
 seems, your time has been employed : the coarse and vulgar suc- 
 cession of casual connections, joyless, loveless, and unendeared. 
 But do you not find upon your memory some trace of an engage- 
 ment of the character I have sketched ? " 
 
 5. Shameful experience resulting from a previous elope- 
 ment OF WHICH THE DEFENDANT HAD BEEN GUILTY. 
 
 " Has not your sense of what you would owe in such a case, and 
 to such a woman, been at least once put to the test of experiment ? 
 Has it not once, at least, happened that such a woman, with all the 
 resolution of strong faith, flung her youth, her hope, her beauty, 
 her talent, upon your bosom, weighed you against the world, which 
 
700 SPEECH OF JOHN PHILPOT CURRAN 
 
 she found but a feather in the scale, and took you as an equivalent ? 
 How did you then acquit yourself ? Did you prove yourself worthy 
 of the sacred trust reposed in you ? Did your spirit so associate 
 with hers as to leave her no room to regret the splendid and disin- 
 terested sacrifice she had made ? Did her soul find a pillow in the 
 tenderness of yours, and a support in its firmness ? Did you pre- 
 serve her high in her own consciousness, proud in your admiration 
 and friendship, and happy in your affection ? You might have so 
 acted (and the man that was worthy of her would have perished 
 rather than not so act) as to make her delighted with having con- 
 fided so sacred a trust to his honor. Did you so act ? Did she 
 feel that, however precious to your heart, she was still more exalted 
 and honored in your reference and respect ? Or did she find you 
 coarse and paltry, fluttering and unpurposed, unfeeling and un- 
 grateful ? You found her a fair and blushing flower, its beauty 
 and its fragrance bathed in the dews of Heaven. Did you so ten- 
 derly transplant it as to preserve that beauty and fragrance unim- 
 paired ? Or did you so rudely cut it as to interrupt its nutriment, 
 to waste its sweetness, to blast its beauty, to bow down its faded 
 and sickly head ? And did you at last fling it, like ' a loathsome 
 weed, away ? ' If, then, to such a woman, so clothed with every 
 title that could ennoble and exalt, and endear her to the heart of 
 man, you could be cruelly and capriciously deficient, how can a 
 wretched fugitive like this, in every point her contrast, hope to find 
 you just ? Send her, then, away. Send her back to her home, to 
 her child, to her husband, to herself." 
 
 6. Disgraceful conduct of the defendant in the present 
 
 CASE. 
 
 Alas, there was none to hold such language to this noble de- 
 fendant ; he did not hold it to himself. But he paraded his despi- 
 cable prize in his own carriage, with his own retinue, his own serv- 
 ants. This veteran Paris hawked his enamored Helen from this 
 western quarter of the island to a seaport in the eastern, crowned 
 with the acclamations of a senseless and grinning rabble, glorying 
 and delighted, no doubt, in the leering and scoffing admiration of 
 grooms and hostlers and waiters, as he passed. In this odious 
 contempt of every personal feeling, of public opinion, of common 
 humanity, did he parade this woman to the seaport, whence he 
 transported his precious cargo to a country where her example may 
 be less mischievous than in her own ; where, I agree with my 
 
IN MASSY T. THE MAEQUIS OF HEADFORT. 701 
 
 learned colleague in heartily wishing, he may remain with her for- 
 ever. We are too poor, too simple, too unadvanced a country for 
 the example of such achievements. When the relaxation of morals 
 is the natural growth and consequence of the great progress of arts 
 and wealth, it is accomplished by a refinement that makes it less 
 gross and shocking. But for such palliations we are at least a cen- 
 tury too young. I advise you, therefore, most earnestly to rebuke 
 this budding mischief, by letting the wholesome vigor and chastise- 
 ment of a liberal verdict speak what you think of its enormity. 
 In every point of view in which I can look at the subject, I see 
 you are called upon to give a verdict of bold and just and indignant 
 and exemplary compensation. The injury of the plaintiff demands 
 it from your justice. The delinquency of the defendant provokes 
 it by its enormity. The rank on which he has relied for impunity 
 calls upon you to tell him that crime does not ascend to the rank 
 of the perpetrator, but the perpetrator sinks from his rank and 
 descends to the level of his delinquency. 
 
 7. The character of the defense an aggravation of the 
 crime, and an insult to the jury. 
 
 The style and mode of his defense is a gross aggravation of his 
 conduct, and a gross insult upon you. Look upon the different 
 subjects of his defense as you ought, and let him profit by them as 
 he deserves. Vainly presumptuous upon his rank, he wishes to 
 overawe you by the despicable consideration. He next resorts to 
 a cruel aspersion upon the character of the unhappy plaintiff whom 
 he had already wounded beyond the possibility of reparation. He 
 has ventured to charge him with connivance. As to that, I will 
 only say, gentlemen of the jury, do not give this vain boaster a pre- 
 text for saying, that if the husband connived in the offense the jury 
 also connived in the reparation. 
 
 But he has pressed another curious topic upon you. After the 
 plaintiff had cause to suspect his designs, and the likelihood of their 
 being fatally successful, he did not then act precisely as he ought. 
 Gracious God, what an argument for him to dare to advance ! It 
 is saying thus to him : " I abused your confidence, your hospitality; 
 I laid a base plan for the seduction of the wife of your bosom ; I 
 succeeded at last, so as to throw in upon you that most dreadful of 
 all suspicions to a man fondly attached, proud of his wife's honor, 
 and tremblingly alive to his own ; that you were possibly a dupe 
 to the confidence in the wife as much as in the guest. In this so 
 
702 SPEECH OF JOHN PHILPOT CURRAN 
 
 pitiable distress, which I myself had studiously and deliberately 
 contrived for you ; between hope and fear, and doubt and love, 
 and jealousy and shame ; one moment shrinking from the cruelty 
 of your suspicion, the next fired with indignation at the facility and 
 credulity of your acquittal ; in this labyrinth of doubt, in this frenzy 
 of suffering, you were not collected and composed. You did not 
 act as you might have done if I had not worked you to madness ; 
 and upon that very madness which I have inflicted upon you, upon 
 the very completion of my guilt and of your misery, I will build 
 my defense. You will not act critically right, and therefore are 
 unworthy of compensation." Gentlemen, can you be dead to the 
 remorseless atrocity of such a defense ! And shall not your honest 
 verdict mark it as it deserves ? 
 
 But let me go a little further ; let me ask you, for I confess I 
 have no distinct idea of what should be the conduct of a husband 
 so placed, and who is to act critically right. Shall he lock her up 
 or turn her out ? Or enlarge or abridge her liberty of acting as she 
 pleases ? Oh, dreadful Areopagus of the tea-table ! How formid- 
 able thy inquests, how tremendous thy condemnations ! In the 
 first case, he is brutal and barbarous ; an odious Eastern despot. 
 In the next, what ! To turn an innocent woman out of his house 
 without evidence or proof, but merely because he is vile and mean 
 enough to suspect the wife of his bosom and the mother of his 
 child ! Between these extremes, what intermediate degree is he to 
 adopt ? I put this question to you ; do you at this moment, unin- 
 fluenced by any passion as you now are, but cool and collected and 
 uninterested as you must be, do you see clearly this proper and exact 
 line which the plaintiff should have pursued ? I much question if 
 you do. But if you did or could, must you not say that he was the 
 last man from whom you should expect the coolness to discover or 
 the steadiness to pursue it ? And yet this is the outrageous and in- 
 solent defense that is put forward to you. My miserable client, 
 when his brain was on fire and every fiend of hell was let loose 
 upon his heart, he should then, it seems, have placed himself before 
 his mirror ; he should have taught the stream of agony to flow de- 
 corously down his forehead. He should have composed his feat- 
 ures to harmony, he should have writhed with grace and groaned 
 in melody. 
 
 But look farther to this noble defendant and his honorable de- 
 fense : the wretched woman is to be successfully the victim of se- 
 duction and of slander. She, it seems, received marked attentions. 
 
m MASSY V. THE MARQUIS OP HEADFORT. 703 
 
 Here, I confess, I felt myself not a little at a loss. The witnesses 
 could not describe what these marked attentions were or are. They 
 consisted not, if you believe the witness that swore to them, in any 
 personal approach or contact whatsoever, nor in any unwarrantable 
 topics of discourse. Of what materials, then, were they composed ? 
 Why, it seems a gentleman had the insolence at table to propose 
 to her a glass of wine, and she, O most abandoned lady ! instead 
 of flying, like an angry parrot, at his head, and besmirching and 
 bescratching him for his insolence, tamely and basely replies, " Port, 
 sir, if you please." But, gentlemen, why do I advert to this folly, 
 this nonsense ? Not, surely, to vindicate from censure the most in- 
 nocent and the most delightful intercourse of social kindness, of 
 harmless and cheerful courtesy : " where virtue is, these are most 
 virtuous." But I am soliciting your attention and your feeling to 
 the mean and odious aggravation, to the unblushing and remorse- 
 less barbarity of falsely aspersing the wretched woman he had un- 
 done. One good he has done, he has disclosed to you the point in 
 which he can feel ; for how imperious must that avarice be which 
 could resort to so vile an expedient of frugality ? Yes, I will say, 
 that, with the common feelings of a man, he would have rather 
 suffered his _;,£'3o,ooo a year to go as compensation to the plaintiff 
 than saved a shilling of it by so vile an expedient of economy. He 
 would rather have starved with her in a jail, he would rather have 
 sunk with her into the ocean, than have so vilified her — than have 
 so degraded himself. 
 
 8. Reasons why liberal damages should be awarded. 
 
 But it seems, gentlemen, and, indeed, you have been told, that 
 long as the course of his gallantries has been (and he has grown 
 gray in the service), it is the first time he has been called upon for 
 damages. To how many might it have been fortunate if he had 
 not that impunity to boast ? Your verdict will, I trust, put an end 
 to that encouragement to guilt that is built upon impunity. The 
 devil, it seems, has saved the noble Marquis harmless in the past ; 
 but your verdict will tell him the term of that indemnity is expired, 
 that his old friend and banker has no more effects in his hands, 
 and that, if he draws any more upon him, he must pay his own bills 
 himself. You will do much good by doing so. You may not en- 
 lighten his conscience nor touch his heart, but his frugality will 
 understand the hint. It will adopt the prudence of age, and deter 
 
104: SPEECH OF JOHN PHILPOT CURE AN 
 
 him from pursuits in which, though he may be insensible of shame, 
 he will not be regardless of expense. You will do more, you will 
 not only punish him in his tender point, but you will weaken him 
 in his strong one — his money. We have heard much of this noble 
 Lord's wealth, and much of his exploits, but not much of his ac- 
 complishments or his wit. I know not that his verses have soared 
 even to the poet's corner. I have heard it said that an ass laden 
 with gold could find his way through the gate of the strongest city. 
 But, gentlemen, lighten the load upon his back, and you will com- 
 pletely curtail the mischievous faculty of a grave animal, whose 
 momentum lies not in his agility, but his weight ; not in the quan- 
 tity of motion, but the quantity of his matter. 
 
 There is another ground on which you are called upon to give 
 most liberal damages, and that has been laid by the unfeeling vanity 
 of the defendant. This business has been marked by the most elab- 
 orate publicity. It is very clear that he has been allured by the 
 glory of the chase, and not the value of the game. The poor ob- 
 ject of his pursuit could be of no value to him, or he could not 
 have so wantonly and cruelly and unnecessarily abused her. He 
 might easily have kept this unhappy intercourse an unsuspected 
 secret. Even if he wished for her elopement, he might easily have 
 so contrived it that the place of her retreat would be profoundly 
 undiscoverable. Yet, though even the expense (a point so tender 
 to his delicate sensibility) of concealing could not be a one-fortieth 
 of the cost of publishing her, his vanity decided him in favor of 
 glory and publicity. By that election he has in fact put forward 
 the Irish nation and its character, so often and so variously calum- 
 niated, upon its trial before the tribunal of the empire ; and your 
 verdict will this day decide whether an Irish jury can feel with 
 justice and spirit upon a subject that involves conjugal affection 
 and comfort, domestic honor and repose, the certainty of issue, the 
 weight of public opinion, the gilded and presumptuous criminality 
 of overweening rank and station. 
 
 9. Sketch of the trial and nature of the verdict antic- 
 ipated BY THE DEFENDANT. 
 
 I doubt not but he is at this moment reclined on a silken sofa, 
 anticipating that submissive and modest verdict by which you will 
 lean gently on his errors ; and expecting from your patriotism, no 
 doubt, that you will think again and again before you condemn any 
 
IN MASSY Y. THE MAKQUIS OF HEADFORT. 705 
 
 great portion of the immense revenue of a great absentee to be de- 
 tained in the nation that produced it. instead of being transmitted, 
 as it ought, to be expended in the splendor of another country. 
 He is now probably waiting for the arrival of the report of this day, 
 which I understand a famous note-taker has been sent hither to 
 collect. (Let not the gentleman be disturbed.) Gentlemen, let me 
 assure you it-is more, much more the trial of you than of the noble 
 Marquis, of which this imported recorder is at this moment col- 
 lecting the materials. His noble employer is now expecting a re- 
 port to the following effect: " Such a day came on to be tried at 
 Ennis, by a special jury, the cause of Charles Massy against the 
 most noble the Marquis of Headfort. It appeared that the plaint- 
 iff's wife was young, beautiful and captivating. The plaintiff him- 
 self a person fond of this beautiful creature to distraction, and 
 both doting on their child ; but the noble Marquis approached 
 her ; the plume of glory nodded on his head. Not the Goddess 
 Minerva, but the Goddess Venus had lighted upon his casque, ' the 
 fire that never tires, such as many a lady gay had been dazzled 
 with before.' At the first advance she trembled, at the second she 
 struck to the redoubted son of Mars and pupil of Venus. The 
 jury saw it was not his fault (it was an Irish jury) ; they felt com- 
 passion for the tenderness of the mother's heart, and for the warmth 
 of the lover's passion. The jury saw on the one side a young, en- 
 tertaining gallant, on the other a beauteous creature of charms irre- 
 sistible. They recollected that Jupiter had been always successful 
 in his. amours, although Vulcan had not always escaped some awk- 
 ward accidents. The jury was composed of fathers, brothers, hus- 
 bands, but they had not the vulgar jealousy that views little things 
 of that sort with rigor ; and wishing to assimilate their country in 
 every respect to England, now that they are united to it, they, like 
 English gentlemen, returned to their box with a verdict of sixpence 
 damages and sixpence costs.'' Let this be sent to England. I 
 promise you your odious secret will not be kept better than that of 
 the wretched Mrs. Massy. There is not a bawdy chronicle in Lon- 
 don in which the epitaph which you would have written on your- 
 selves will not be published, and our enemies will delight in the 
 spectacle of our precocious depravity, in seeing that we can be 
 rotten before we are ripe. I do not suppose it, I do not, cannot, 
 will not, believe it. I will not harrow up myself with the antici- 
 pated apprehension. 
 
 45 
 
706 SPEECH OF JOHN PHILPOT CUKRAN 
 
 lo. Exemplary damages should be given for a breach of 
 
 plaintiff's hospitality. — The husband's 
 
 sufferings depicted. 
 
 There is another consideration, gentlemen, which, I think, most 
 imperiously demands even a vindictive award of exemplary dam- 
 ages, and that is the breach of hospitality. To us peculiarly does 
 it belong to avenge the violation of its altar. The hospitality of 
 other countries is a matter of necessity or convention ; in savage 
 nations of the first, in polished of the latter ; but the hospitality of 
 an Irishman is not the running account of posted and legered 
 courtesies, as in other countries ; it springs, like all his qualities, 
 his faults, his virtues, directly from his heart. The heart of an 
 Irishman is by nature bold, and he confides : it is tender, and he 
 loves; it is generous, and he gives; it is social, and he is hospitable. 
 This sacrilegious intruder has profaned the religion of that sacred 
 altar so elevated in our worship, so precious to our devotion ; and 
 it is our privilege to avenge the crime. You must either pull down 
 the altar and abolish the worship, or you must preserve its sanctity 
 undebased. There is no alternative between the universal exclu- 
 sion of all mankind from your threshold, and the most rigorous 
 punishment of him who is admitted and betrays. This defendant 
 has been so trusted, has so betrayed, and you ought to make him a 
 most signal example. 
 
 Gentlemen, I am the more disposed to feel the strongest indig- 
 nation and abhorrence of this odious conduct of the defendant, 
 when I consider the deplorable condition to which he has reduced 
 the plaintiff, and perhaps the still more deplorable one that he has 
 in prospect before him. What a progress has he to travel through 
 before he can attain the peace and tranquillity which he has lost ? 
 How like the wounds of the body are those of the mind ! How 
 burning the fever ! How painful the suppuration ! How slow, 
 how hesitating, how relapsing the process to convalescence ! 
 Through what a variety of suffering, what new scenes and changes, 
 must my unhappy client pass ere he can re-attain, should he ever 
 re-attain, that health of soul of which he has been despoiled by the 
 cold and deliberate machinations of this practiced and gilded se- 
 ducer ? If, instead of drawing upon his incalculable wealth for a 
 scanty retribution, you were to stop the progress of his despicable 
 achievements by reducing him to actual poverty, you could not 
 even so punish him beyond the scope of his offense, nor reprize the 
 
m MASSY V. THE MARQUIS OF HEADFOET. 707 
 
 plaintiff beyond the measure of his suffering. Let me remind you, 
 that in this action the law not only empowers you, but that its 
 policy commands you to consider the public example, as well as the 
 individual injury, when you adjust the amount of your verdict. I 
 confess I am most anxious that you should acquit yourself worthily 
 upon this important occasion. I am addressing you as fathers, 
 husbands, brothers. I am anxious that a feeling of those high re- 
 lations should enter into and give dignity to your verdict. But I 
 confess it, I feel a tenfold solicitude when I remember that I am 
 addressing you as my countrymen, as Irishmen, whose characters 
 as jurors, as gentlemen, must find either honor or degradation in 
 the result of your decision. Small as must be the distributive 
 share of that national estimation that can belong to so unimportant 
 an individual as myself, yet do I own I am tremblingly solicitous 
 for its fate. Perhaps it appears of more value to me, because it is 
 embarked on the same bottom with yours ; perhaps the community 
 of peril, of common safety or common wreck, gives a consequence 
 to my share of the risk which I could not be vain enough to give 
 it, if it were not raised to it by that mutuality. But why stoop to 
 think at all of myself, when I know that you, gentlemen of the jury, 
 when I know that our country itself are my clients on this day, and 
 must abide the alternative of honor or of infamy, as you shall de- 
 cide. But I will not despond ; I will not dare to despond. I have 
 every trust and hope and confidence in you. And to that hope I 
 will add my most fervent prayer to the God of all truth and justice, 
 so to raise and enlighten and fortify your minds, that you may so 
 decide as to preserve to yourselves while you live, the most delight- 
 ful of all recollections, that of acting justly, and to transmit to your 
 children the most precious of all inheritances, the memory of your 
 virtue. 
 
Baron SMITH'S CHARGE TO THE JURY, 
 
 In the Case of Massy v. The Marquis of Headfort. — Dam- 
 ages FOR Criminal Conversation. 
 
 AT ENNIS ASSIZES, COUNTY CLARE, IRELAND, 
 FRIDAY, JULY 27th, 1804. 
 
 Damages claimed, ^40,000. — Amount recovered, ;£io,ooo. 
 
 Analysis of the Charge. 
 
 z. The rules of law goveroing this class of 
 actions illustrated and explained. 
 
 M. The nature of the injury. — What circum- 
 stances must be considered in fixing 
 the amount of damages, and the rea- 
 sons therefor. 
 
 3. Why connivance destroys the right of ac- 
 
 tion.— Distinction between errors of 
 the head and heart. 
 
 4. When the husband's conduct will not de- 
 
 feat his right to recover. 
 
 5. Moral considerations bearing upon the 
 
 question of damages. 
 
 Mr. Curran did not finish his remarks until near midnight, but as soon as he 
 sat down, notwithstanding the lateness of the hour. Baron Smith proceeded to 
 chai-ge the jury. His observations will be found to contain a philosophical and 
 comprehensive statement of the legal principles governing actions for criminal 
 conversation, expressed in elegant language, and with <t degree of clearness and 
 force indicative of his learning and ability as a jurist. The reasons why certain 
 facts and circumstances must be considered by the jury, and the bearing they 
 should have on the result of their deliberations, are stated so that all can under- 
 stand them. In this view his charge is rendered generally instructive and inter- 
 esting, because the legal principles here enunciated are law to-day on this side 
 of the Atlantic. It will be valuable to the profession, and especially to students, 
 since it embraces, in a remarkably brief space, a. thorough abridgment of the 
 law on the subject. Although it can be regarded neither as a speech nor an ar- 
 gument, it may perhaps be considered as an instructive specimen of legal elo- 
 quence. The Court said: 
 
 Gentlemen of the Jury : — After the long and serious de- 
 mands which this trial has already made on your attention, ren- 
 dered the less irksome by the brilliant displays of eloquence which 
 we have witnessed, I am sorry it has fallen to my lot to trespass 
 farther on your patience ; nor shall I do so in any greater degree 
 than is prescribed to me by the duties of my situation, considering 
 
 [708] 
 
BARON SMITH'S CHARGE TO THE JURY. 709 
 
 the importance of the question which you are to decide, and the 
 large amount of the damages which the plaintiff claims. 
 
 I shall set out by informing you, to the best of my knowledge, 
 of the legal doctrines which are applicable to actions of the descrip- 
 tion of this which is on trial, and shall then proceed to sum up the 
 evidence which has been given, without feeling it necessary to in- 
 terrupt the recapitulation by any general remarks. In short, I shall 
 leave to you to apply to the facts of the case (of which you are the 
 proper judges), those preliminary statements of the law which I 
 shall have made. 
 
 I. The rules of law governing this class of actions 
 
 ILLUSTRATED AND EXPLAINED. 
 
 In the first place, I feel myself not only warranted, but bound 
 to apprise you of a principle which I find laid down in books of 
 high authority and modern law. The principle is, that this sort of 
 action partakes of the nature of a penal prosecution, and that large 
 and exemplary damages are usually awarded. The rigor of the 
 above doctrine, it must however be observed, is regulated and re- 
 strained by a variety of qualifications, and appears to be so di- 
 luted and softened that it amounts at last to little more than this, 
 that where the plaintiff's right of action is indisputable, and the 
 injury he hath sustained is manifestly great, and where (as it must 
 always be the case) it is impossible to calculate, with exact precis- 
 ion, the amount in pounds, shillings, and pence, of the value of 
 those comforts of which he has been deprived ; there juries should 
 not be parsimonious in the damages which they award, but, on the 
 contrary, should be liberal, to a degree bordering on prodigality 
 and profusion, for the benefit of public example and the protection 
 of public morals. This part of the question may, perhaps, be il- 
 lustrated by a familiar usage in the case of assaults. An assault is 
 at once a civil injury for which the sufferer has a right to be retrib- 
 uted iij damages, and it is an offense for which the aggressor is liable 
 to punishment. If he be convicted on an indictment for the mis- 
 demeanor, the practice is for the Crown Judge to ascertain whether 
 the prosecutor intends to bring an action. If not, a punishment is 
 inflicted commensurate to the crime. Otherwise, a lenient and in 
 adequate sentence is pronounced. In this latter case, the verdict 
 of a record jury is, in some measure, substituted for the judgment 
 of a criminal court. To apply this, adultery is a crime, not indeed 
 
710 BARON SMITH'3 CHARGE TO THE JURY 
 
 of temporal cognizance, but punishable by the spiritual law, which 
 is part of the law of the land. But, proceedings of such a nature 
 in the spiritual courts, having become so unusual as to be nearly ob- 
 solete, perhaps we may, by a fair analogy, consider the transaction 
 as indirectly subject to the animadversion of the jury which tries 
 the civil action. 
 
 We must not, however, carry this principle too far. We must 
 not forget, first, that ours is a mere civil tribunal; or, secondly, that 
 adultery is no crime of temporal cognizance. If it were, that 
 would not be law which we know is law. The law is, that if the 
 jury be convinced, from the conduct of the plaintifif, that he was 
 consenting to the infamy of his wife, they are bound, in such cir- 
 cumstances, to find a verdict for the defendant. Now this could 
 never be the case, if their province were to punish adultery as a 
 crime, since it is plain that the guilt of the defendant would not be 
 diminished by the plaintiff's having been accessory to his offense. 
 Thus, the position to which I have adverted can only admit of the 
 interpretation which I have given it, viz., that where it is (as in 
 every such action it must be) difficult to make the value of the plaint- 
 iff's loss a subject of pecuniary calculation, there it shall be com- 
 petent to the jury to take the advancement of public morality into 
 their consideration. But they must make it a matter of collateral 
 and subordinate consideration ; they must recollect that they are 
 not sitting on the Crown side, but that their main, or rather their 
 only province is, to decide on a violation of the private rights of 
 parties. 
 
 2. The nature of the injury. — What circumstances must 
 
 BE considered IN FIXING THE AMOUNT OF DAMAGES, 
 AND THE REASONS THEREFOR. 
 
 The civil injury for which the plaintiff is entitled to compensa- 
 tion, is the wound given to his feelings and happiness as a husband, 
 and, therefore, the damages should be proportioned to its. poig- 
 nancy and extent. Accordingly, these are susceptible of aggrava- 
 tion or mitigation, on various grounds, which are all, in fact, merely 
 detailed applications of the principle which I have mentioned last, 
 namely, that the degree of the injury sustained is the proper stand- 
 ard for measuring the amount of the compensation. 
 
 The first ground which I shall notice, as one upon which the 
 jury may compute and justify the quantum of damages which they 
 
m MASSY T. THE MAEQUIS OF HEADFORT. 711 
 
 award, is the rank and situation of the plaintiff. Nor does this 
 rule trench on the impartial character of our law, or hold out dif- 
 ferent measures of jusljce to the rich and to the poor. It merely 
 provides that the severer the injury is, the greater shall be the retri- 
 bution. Virtue is far from being peculiar to the higher ranks ; but 
 there is, perhaps, a delicacy of sentiment and punctilio of honor 
 engendered by the refined habits which belong to opulence and 
 distinction, and which sharpen the sting of such an injury as this. 
 Besides, the more exalted is the sphere, the more are those who 
 move in it exposed to observation, and consequently the more 
 must such be injured by an aggression which subjects the sufferer 
 to scorn. 
 
 The fortune of the defendant supplies another consideration, by 
 which, estimating damages, a jury might be guided. Not that they 
 ought to more than compensate a plaintiff, merely because the de- 
 fendant happened to be rich. This would be to violate the maxim 
 which we have laid down : that the damages awarded should bear 
 a proportion to the injury sustained. But a jury, in the case of an 
 indigent defendant, may be disposed to give a plaintiff less than the 
 value of what he has lost, rather than, by awarding adequate com- 
 pensation, doom him who is to make it to imprisonment for life. 
 Where the aggressor is in affluent circumstances, they will be re- 
 lieved from such humane difficulties, and may find damages com- 
 mensurate to the injury which has been sustained. 
 
 It is also the duty of a jury to inquire whether the criminal in- 
 tercourse has, or has not, been the consequence of a preceding se- 
 duction of the wife. As evidence of this, they should examine her 
 previous character and conduct, and may found their estimate of 
 damages on such investigation. They may also take into account 
 the connection which subsisted between the parties, and ascertain 
 how far it involved those rights of hospitality or friendship which 
 might justify the plaintiff in being less circumspect and suspicious, 
 and reposing the greater confidence in the person who betrayed it. 
 To the same head I would refer the age of the defendant, and the 
 circumstance of his being married. It would be injurious to morals 
 to discourage that greater reliance which it is natural to place on 
 an aged and married, than on a younger and a single man. The 
 duties and attachments which may be supposed to belong to the 
 married state, and the bodily infirmities, the extinguished passions, 
 and confirmed and settled morality which should belong to age, 
 are so many securities for the honor of a husband, and justify the 
 
712 BARON SMITH'S CHARGE TO THE JURY 
 
 confidence which they inspire. If, however, these securities should 
 appear in proof to have been lessened by the gallantries of a de- 
 fendant, by his reputation in this respect, #,nd by the footing on 
 which he lived with his own wife ; a jury would be bound to throw' 
 these latter considerations into the opposite scale. 
 
 The injured husband's obligation, by settlement or otherwise, to 
 provide for the issue of that marriage whose rights have been en- 
 croached on, is also a fit object of inquiry for the jury. Neither, 
 indeed, can I conceive a more malignant source of agony to a feel- 
 ing heart ; a greater exasperation of the pain of that wound to 
 whose poignancy the compensation should be proportioned, than 
 must arise from the perplexing doubt in a supposed father's mind, 
 whether the child who shares his caresses ; who is to inherit his 
 possessions ; for whom he is bound to provide ; to whose advance- 
 ment he has devoted his industry and his talents, has any natural 
 and just claim to this parental care ; whether it be a pledge of his 
 wife's past affection for himself, or the offspring and memorial of 
 her infidelity and his own disgrace. 
 
 If the complainant has had criminal connections with other 
 women, his damages shall be curtailed on this account : both be- 
 cause these connections negative the existence of a high degree of 
 matrimonial comfort, and because such dissipation and neglect is 
 calculated to set an ill example to the woman : it tends to sap her 
 morals, to estrange her affections, and facilitate her seduction. 
 Therefore, though he have not actually been unfaithful, yet, by as- 
 sociating with women of forfeited and sullied honor, he may dimin- 
 ish his claim to damages, if this association has fallen under the eye 
 of his wife, and has arisen, not from peculiarity of circumstance, 
 but from laxity of principle. 
 
 Again, in ascertaining the damages to which such a plaintiff is 
 entitled, his having treated his wife with tenderness or harshness, 
 their having lived on terms of harmony or discord (let the fault 
 have lain where it may), are proper subjects of attention from a 
 jury ; for the gist of this action is the husband's loss of the comfort 
 and society of his wife, and this comfort must be in proportion to 
 their mutual cordiality and attachment. Indeed, where this affec- 
 tion appears by the evidence to have amounted to that engrossing 
 and subjugating sentiment called love, the keenness of the wound is 
 infinitely augmented, and the amount of the compensation should 
 be proportionably increased. 
 
IN MASSY V. THE MARQUIS OF HEADFOET. 713 
 
 3. Why connivance destroys the right of action. — Dis- 
 tinction BETWEEN errors OF THE HEAD 
 AND HEART. 
 
 We have already seen, that where a husband connives at the 
 infidelity of his wife, the effect shall be, not only to diminish his 
 compensation, but to destroy his right of action altogether, and 
 disentitle him to any verdict whatsoever ; and this on one or both 
 of the following grounds : First, that volenti non fit injuria; second- 
 ly, that a profligate accomplice in his wife's dishonor forfeits his 
 right to the protection of the court. But there may be a levity in 
 the husband's behavior, and a culpable inattention to the conduct 
 of his wife, which, not amounting to a consent of her infamy, shall 
 not, indeed, disentitle him to a verdict, but which, having probably 
 contributed to her seduction, shall mitigate the damages which are 
 awarded to him. 
 
 It has been urged in the present case, that if any such negli- 
 gence existed, it arose (to adopt the language of one of the wit- 
 nesses) "not from the fault of the heart, but of the head." This 
 excuse is founded in misapprehension. If the inattention arose 
 from the fault of the heart, it would amount to connivance and de- 
 stroy the plaintiff's right of action altogether. When the neglect 
 arises only from an error of the head, it leaves him a right of action; 
 but it is evidence admissible in mitigation of damages. Otherwise, 
 a snare would be laid for the defendant, who, judging of the plaint- 
 iff's motive by his conduct, might suppose that he intended to con- 
 nive, and was an accommodating husband, not from inadvertence, 
 but design. 
 
 4. When the husband's conduct will not defeat his 
 
 RIGHT TO recover. 
 
 At the same time, towards entitling a plaintiff to recover largely, 
 we must not require that he should have been a Spanish or an 
 Oriental husband. We must recollect the freedom which our cus- 
 toms allow to females, and not lay down a rule so rigorous as this : 
 that the rights of every married man may be invaded whose con- 
 duct is not a system of suspicion and control, exposing the jealous 
 spy to public derision, and degrading the woman who is the object 
 of his distrust, offending her pride, and alienating her affections. 
 
 It should sufKce that he does not negligently overlook behavior, 
 which ought to excite the vigilance of a man- duly attentive to his 
 
714 BAEON SMITH'S CHARGE TO THE JURY. 
 
 wife's honor. The law invests every husband with certain privi- 
 leges and authorities ; and if he will not use them for his own pro- 
 tection, he must forfeit a part of his claim to damages, as the rea- 
 sonable consequence of his default. It is the vigilant, not the in- 
 dolent, whom the law assists. 
 
 5. Moral considerations bearing upon the question of 
 
 DAMAGES. 
 
 There are but two observations more which I have to make : 
 First, that if, in measuring the damages, public morals- and example 
 should be at all taken into the question, we must remember that 
 plaintiffs as well as defendants are subject to the infirmities and 
 depravities of our imperfect nature. We must therefore take care 
 how, by awarding damages to an enormous amount, we hold out a 
 temptation to the unprincipled husband, dissembling his own con- 
 nivance, to wink however at his wife's dishonor, when he finds that 
 her infamy will bring so high a price. 
 
 The second and last remark which I have to trouble you with, 
 is this, that you will be the more scrupulous in measuring the com- 
 pensation which you award ; because; if you grant too much, it is 
 improbable that your error can ever be corrected, it being the 
 established practice, if it be not the undoubted law, that in actions 
 of this nature, however high the damages which are found may be, 
 the verdict cannot be set aside on the mere ground of their being 
 excessive. 
 
 The Court then proceeded to recapitulate the evidence as it ap- 
 peared upon his notes, without any further observations on the law. 
 
 N. B. — At 12 o'clock the same night, the jury, having been out only a short 
 time, returned a verdict for plaintiff for ;^io,ooo damages, and costs. The se- 
 quel only proves the truth of the old maxim in regard to the way of the trans- 
 gressor. It seems, when the Marquis returned to London with Mrs. Massy, he 
 settled upon her an annuity of ;£'i,ooo a year. As Mr. Ponsonby s^ely remarked, 
 however, twenty-five does not love fifty. It was the old story of January and 
 May. Notwithstanding the wealth and luxury with which she was surrounded, 
 after living about six weeks with the Marquis, Mrs. Massy left him, and went off 
 with a young officer of the guards. 
 
APPENDIX. 
 
Diagram prepared by Dr. Thomas Spencer, one of the 
 
 EXPERTS FOR THE StATE, AND REFERRED TO BY Mr. 
 
 Seward in his address to the jury. 
 
 [See text, p. 184.] 
 
 THREE CLASSES— THIRTY-SIX FACULTIES. 
 
 I. Involuntary faculties, ac- II. Intermediate 
 tions, or feelings of mind, faculties. 
 
 III. Voluntary 
 faculties. 
 
 I Sensation. -t- 
 
 31 Conception. 
 
 2 Attention. 
 
 B 
 
 3 Hunger. 
 
 32 Imagination. 
 
 4 Perception. 
 
 5 Thirst. 
 
 33 Association. 
 
 7 Love of Society. 
 
 13 
 "S 
 
 17 
 19 
 
 Children. 
 Money. 
 Combat. 
 Fame. 
 
 Naturals Laws. 
 Divine Things. 
 
 31 Revenge, 
 33 Anger, 
 25 Joy, Hope, 
 37 Fear, 
 
 And other pas- 
 sions, propen- 
 sities and mo- 
 tives. 
 
 6 Memory. 
 
 8 Understanding. 
 
 10 Comparison. 
 
 13 Combination. 
 
 Z4 Reason. 
 
 16 Invention. 
 
 18 Judgment. 
 
 20 Sense of Justice. 
 
 33 Pleasure in Right. 
 
 34 Horror of Wrong Acts. 
 
 36 Invention, Co-ordination. 
 
 38 Other Volitions, mental and 
 
 moral. 
 
 Z -1- 
 
 D 
 
 29 Self-Preservation. 
 
 36 Conscience. 
 
 30 Will. 
 
 V Unascertained Centre of Thought, 
 Sensation and Volition. 
 
 X Y Z Dreaming or Insane Road of 
 Thought around Conscience and 
 WiU. 
 
 Bo 
 
 dy. 
 
 V A B C D Union of all the Mental 
 Faculties, as if by electric wires, 
 as one whole. 
 
 [717] 
 
718 APPENDIX. 
 
 REQUESTS TO CHARGE AND RULINGS THEREON, 
 
 IN THE SICKLES' CASE. 
 
 [See text, p. 327.] 
 
 At the trial of Hon. Daniel E. Sickles the Court was requested to in- 
 struct the jury as to the law governing the case. The following are the 
 instructions presented by counsel, upon which the arguments were based, 
 and the rulings made by the Court. 
 
 INSTRUCTIONS SUBMITTED FOR THE PROSECUTION. 
 
 I. — If the jury believe, from the evidence in this whole cause, that the 
 prisoner, on the day named in the indictment, and in the county of Wash- 
 ington aforesaid, killed the said Philip Barton Key, by discharging at, 
 against, and into the body of him, the said Philip Barton Key, a pistol or 
 pistols loaded with gunpowder and ball, thereby giving him a mortal 
 wound or wounds, and that such killing was the willful and intentional 
 act of the prisoner, and was induced by the belief that the said deceased 
 had seduced his (the prisoner's) wife, and on some day or days, or for any 
 period definite or indefinite, prior to the day of such killing, had adulter- 
 ous intercourse with the said wife, and that the prisoner was not provoked 
 to such killing by any assault or offer of violence then used and there niade 
 by the deceased upon or against him, then such willful and intentional 
 killing, if found by the jury upon the facts and circumstances given in ev- 
 idence, is murder. But such killing cannot be found to have been willful 
 and intentional in the sense of this instruction if it shall have been proven 
 to the satisfaction of the jury upon the whole evidence aforesaid that the 
 prisoner was in fact insane at the time of such killing. 
 
 Ruling. — The first instruction ask for by the United States embodies the 
 law of this case on the particular branch of it to which it relates, and is granted 
 with some explanatory remarks as to insanity, with a reference to which the 
 prayer closes. A great English judge has said on the trial of Oxford, who shot 
 at the Queen of England, 9 Carrington and Paine's Reports, p. 533, " That if 
 the prisoner was laboring under some controlling disease, which was in truth the 
 acting power within him, which he could not resist, then he will not be responsi- 
 ble." And again: " The question is whether he was laboring under that species 
 of insanity which satisfies you that he was quite unaware of the nature, character 
 and consequences of the act he was committing, or in other words, whether he 
 was under the influence of a diseased mind and was really unconscious at the time 
 he was committing the act that it was a crime. A man is not to be excused from 
 responsibility if he has capacity and reason sufficient to enable him to distinguish 
 between right and wrong as to the particular act he is doing, a knowledge and 
 consciousness that the act he is doing is wrong and criminal and will subject him 
 to punishment. In order to be responsible, he must have sufficient power of 
 memory to recollect the relation in which he stands to others, and in which others 
 stand to him ; that the act he is doing is contrary to the plain dictates of jus- 
 tice and right, injurious to others, and a violation of the dictates of duty. On 
 the contrary, although he may be laboring under a partial insanity, if he still un- 
 derstands the nature and character of his act and its consequences ; if he has a 
 knowledge that it is wrong and criminal, and a mental power sufficient to apply 
 
APPENDIX. 719 
 
 that knowledge to his own case, and to know that if he does the act, he will do 
 wrong and receive punishment, such partial insanity is not Sufficient to exempt 
 hira from responsibility for criminal acts. 7 Metcalfe's Reports, pp. 500-503. 
 
 II. — If the jury believe, from the evidence, that the deceased was killed 
 by the prisoner by means of a leaden bullet discharged from a pistol, such 
 killing implies malice in law, and is murder. 
 
 III. — That the burden of rebutting the presumption of malice by 
 showing circumstances of alleviation, excuse or justification, rests on the 
 prisoner, and it is incumbent on him to make out such circumstances to 
 the satisfaction of the jury, unless they arise out of the evidence produced 
 against him. 
 
 RtJLING. — The second and third instructions asked for by the United States 
 are granted. 
 
 IV. — That every person is presumed to be of sound mind until the con- 
 trary is proved, and the burden of rebutting this presumption rests on the 
 prisoner, with the addition of the matters set forth in the next instruction 
 (No. V). 
 
 Ruling. — The fourth instruction asked for by the United States is answered 
 by prayer eleven of the defense. 
 
 V. — If the jury believe, from the evidence, that the deceased, previous 
 to the day of his death, had adulterous intercourse with the wife of the 
 prisoner ; and further, that the deceased, on the day of his death, shortly 
 before the prisoner left his house, made signals, inviting to a further act or 
 acts of adultery, which said signals, or a portion of them, were seen by the 
 prisoner ; and, that, influenced by such provocation, the prisoner took the 
 life of the deceased, such provocation does not justify the act or reduce 
 such killing from murder to manslaughter. 
 
 Ruling. — The fifth instruction asked for by the United States, the Court 
 thinks, is the law and grants the instruction. 
 
 INSTRUCTIONS SUBMITTED FOR THE PRISONER. 
 
 I. — There is no presumption of malice in this case, if any proof of " al- 
 leviation, excuse, or justification," arise out of the evidence for the prose- 
 cution. (State V. John, 3 Jones, p. 366; McDaniel v. State, 8 Smead's 
 and Marshall's, p. 401 ; Day's Case, p. 17 of pamphlet.) 
 
 Ruling. — There is, gentlemen, a legal presumption of malice in every delib- 
 erate killing, and the burden of repelling it is on the slayer, unless evidence of 
 alleviation, mitigation, excuse or justification, arise out of the evidence adduced 
 against him. The alleviation, mitigation, excuse or justification must be such as 
 the law prescribes, and within the limits already laid down in the instructions 
 given to you. 
 
 II. — The existence of malice is not presumable in this case, if on any 
 rational theory consistent with all the evidence the homicide was either 
 
720 APPENDIX. 
 
 justifiable or excusable, or an act of manslaughter. (Same cases as above 
 cited ; United States v. Mingo, 2 Curtis C. C. R. p. I ; Commonwealth v. 
 York, 2 Bennett & Heard Leading Criminal Cases, p. 505.) 
 
 Ruling. — In regard to the second instruction asked for by the defense, I 
 would say : The answer to the first prayer will be taken in connection with his 
 response to prayer number two : " If upon any course of reasoning consistent with 
 all the evidence," and the law as laid down to you by the Court, and the rules by 
 which it is ascertained what is legal provocation, what is justification or excuse, 
 you should come to the conclusion that there was such justification or excuse, or 
 that the homicide was manslaughter, then the presumption of malice which every 
 killing of a human being involves, is met. You will recollect that manslaughter 
 is the killing of a man without malice. 
 
 Ill — If, on the whole evidence presented by the prosecution, there is 
 any rational hypothesis consistent with the conclusion that the homicide 
 was justifiable or excusable, the defendant cannot be convicted. 
 
 Ruling. — The third prayer on the part of the defense is answered in the 
 same manner as prayer number two. 
 
 IV. — If the jury believe that Mr. Sickles, when the homicide occurred, 
 intended to kill Mr. Key, he cannot be convicted of manslaughter. 
 
 Ruling. — The fourth prayer the Court declines to grant ; manslaughter may 
 exist, and most frequently does where the slayer intended to destroy life, but 
 under circumstances which reduce the offense. 
 
 V. — It is for the jury to determine, under all the circumstances of the 
 case, whether the act charged upon Mr. Sickles is murder or justifiable 
 homicide. (Ryan's Case, 2 Wheeler's Criminal Cases, p. 54.) 
 
 Ruling. — The fifth prayer cannot be granted, as to the jury belongs the de- 
 cision of matters of fact, and to the Court the decision of matters of law, which 
 it is the duty of the jury to receive from the Court ; and from the evidence and 
 the law applied to the facts, it is the province and legal right of the jury to return 
 a vierdict of guilty or not guilty of murder or manslaughter. 
 
 VI.— If the jury find that Mr. Sickles killed Mr. Key while the latter 
 was in criminal intercourse with the wife of the former, Mr. Sickles cannot 
 be convicted of either murder or manslaughter. 
 
 Ruling. — In regard to the sixth instruction for the defense, I would remark : 
 If this prayer refers to actual (existing at the moment) adulterous intercourse 
 with the wife of the prisoner, the slaying of the deceased would be manslaughter. 
 And by existing adultery, I do not mean that the prisoner stood by and witnessed 
 the fact of adultery progressing, for it is easy to suppose the actual fact to be 
 established simultaneously with the killing by other evidence, and perfectly consis- 
 tent with the law ; if, for instance, the husband saw the adulterer leave the bed 
 of the wife, or shot him while trying to escape from his chamber. If, however, 
 a day or half a day intervene between the conviction of the husband of the guilt 
 of his wife and the deceased, and after the lapse of such time the husband take 
 tee life of the deceased, the law considers that it was done deliberately, and de- 
 hares that it was murder, (Jarboe's Case.) 
 
 VII. — If, from the whole evidence, the jury believe that Mr. Sickles 
 committed the act, but at the time of doing so was under the influence of 
 
APPENDIX. 721 
 
 a diseased mind, and was really unconscious that he was committing a 
 crime, he is not in law guilty of murder. (Day's Case, p. 9 of pamphlet.) 
 
 VIII. — If the jury believe that from any predisposing cause the prison- 
 er's mind was impaired, and at the time of killing Mr. Key he became or 
 was mentally incapable of governing himself in reference to Mr. Key, as 
 the debauchee of his wife, and at the time of his committing said act, was, 
 by reason of such cause, unconscious that he was committing a crime as 
 to said Mr. Key, he is not guilty of any offense whatever. (Day's Case, 
 p. 17 of pamphlet.) 
 
 Ruling. — The seventh and eighth instructions can be answered together. 
 They are granted. 
 
 IX. — It is for the jury to say what was the state of the prisoner's mind 
 as to the capacity to decide upon the criminality of the particular act in 
 question — the homicide — at the moment it occurred, and what was the 
 condition of the parties respectively as to being armed or not at the same 
 moment. These are open questions for the jury, as are any other ques- 
 tions which may arise upon the consideration of the evidence, the whole 
 of which is to be taken into view by the jury. (Jarboe's Case, p. 20 of 
 pamphlet.) 
 
 Ruling. — In reply to the ninth instruction the Court responds thus : " It is for 
 the jury to say what was the state of Mr. Sickles' mind as to the capacity to decide 
 upon the criminality of the homicide, receiving the law as given to them in re- 
 lation to the degree of insanity, whether it will, or will not, excuse, they (the 
 jury) finding the fact of the existence or non-existence of such degree of insanity." 
 Tlie gist of this prayer is, " what was the condition of the parties respectively as 
 to being armed or not at the same moment." So much of the instructions I 
 have now read, I grant without qualification. 
 
 X. — The law does not require that the insanity, which absolves from 
 crime, should exist for any definite period, but only that it exists at the 
 moment when the act occurred with which the accused stands charged. 
 
 Ruling. — The tenth instruction is granted. The time when the insanity is 
 to operate is the moment when the crime charged upon the party was committed, 
 if committed at all. 
 
 XI. — If the jury have any doubt as to the case, either in reference to 
 the homicide or the question of sanity, Mr. Sickles should be acquitted. 
 
 Ruling. — This instruction, as I mentioned in referring to prayer four of the 
 United States, will be answered in conjunction with it. 
 
 It does not appear to be questioned that if a doubt is entertained by the jury 
 the prisoner is to have the benefit of it. As to the sanity or insanity of the pris- 
 oner at the moment of committing the act charged, it is argued by the United 
 States that every man being presumed to be sane, the presumption must be over- 
 come by evidence satisfactory to the jury, that he was insane when the deed was 
 done. 
 
 This is not the first time this inquiry has engaged my attention. The point 
 was made and decided at the June Term, 1858. In the case of the United 
 States V. Devlins, when the Court gave the following opinion, which I read from 
 my notes of the trial. This prayer is based on the idea that the jury must be 
 satisfied, beyond all reasonable doubt, of the insanity of the party for whom the 
 46 
 
722 
 
 APPENDIX. 
 
 defense is set up. Precisely as the United States are bound to prove the guilt 
 of a defendant to warrant a conviction. I am well aware, and it has appeared 
 on this argument, that it has been held by a Court of high rank and reputation, 
 that there must be a preponderance of evidence in favor of the defense of insan- 
 ity to overcome the presumption of law that every killing is murder ; and that the 
 same Court has said that if there is an equilibrium, including, I suppose, the pre- 
 sumption mentioned as to evidence, the presumption of the defendant's inno- 
 cence makes the preponderance in his favor. 
 
 Whether a man is insane or not is a matter of fact ; what degree of insanity 
 will relieve him from responsibility is a matter of law, the jury finding the fact 
 of the degree, too. Under the instruction of the Court, murder can be committed 
 only by a sane man. Everybody is presumed to be sane who is charged with a 
 crime, but when evidence is adduced that a prisoner is insane, and conflicting 
 ' testimony makes a question for the jury, they are to decide it like every other 
 matter of fact, and if they should say or conclude that there is uncertainty, that 
 they cannot determine whether the defendant was or is not so insane as to pro- 
 tect him, how can they render a verdict that a sane man perpetrated the crime, 
 and that no other can ? 
 
 Nor is this plain view of the question unsupported by authority. In the case 
 of the Queen v. Ley, in 1840, Lewins C. C. p. 239, on a preliminary trial to as- 
 certain whether a defendant was sufficiently sane to go before a petit jury on an 
 indictment, Hullock, B., said to the jury: "If there be a doubt as to the prison- 
 er's sanity, and the surgeon says it is doubtful, you cannot say he is in a fit state 
 to be put on trial." This opinion was approved in the People v. Freeman, 
 4 Denio's Reports, p. 9. This is a strong case, for the witness did not say the 
 prisoner was insane, but only that it was doubtful whether he was so or not. The 
 humane, and, I will add, just doctrine, that a reasonable doubt should avail a 
 prisoner, belongs to a defense of insanity, as much, in my opinion, as to any 
 other matter of fact. I believe, gentlemen, that that answers ail the questions. 
 
 REFERENCES IN THE CASE OF THE "SAVANNAH 
 PRIVATEERS." 
 
 LETTER OF MARQUE ISSUED BY JEFFERSON DAVIS TO CAPTAIN 
 
 BAKER OF THE PRIVATEER " SAVANNAH." 
 
 [See text, p. 354.] 
 
 "JEFFERSON DAVIS, 
 
 "PRESIDENT OF THE CONFEDERATE STATES OF AMERICA. 
 
 " To all who shall see these presents^ greeting ; — Know ye, that by 
 virtue of the power vested in me by law, I have commissioned, and do 
 hereby commission, have authorized, and do hereby authorize, the schooner 
 or vessel called the Savannah (more particularly described in the schedule 
 hereunto annexed), whereof T. Harrison Baker is commander, to act as a 
 private armed vessel in the service of the Confederate States, on the high 
 seas, against the United States of America, their ships, vessels, goods, and 
 effects, and those of her citizens, during the pendency of the war now 
 existing between the said Confederate States and the said United States. 
 
APPENDIX. 723 
 
 " This commission to continue in force until revoked by the President 
 of the Confederate States for the time being. 
 
 " Schedule of description of the vessel :— Name, Schooner Savannah ; 
 tonnage, 53fJ- tons ; armament, one large pivot gun and small arms ; 
 number of crew, thirty. 
 
 ''Given under my hand and the seal of the Confederate States, at 
 Montgomery, this i8th day of May, 1861, 
 
 "JEFFERSON DAVIS. 
 
 " By the President— R. Toombs, Secretary of State." 
 
 garibaldi's letter, referred to by MR. BRADY 
 
 AND MR. EVARTS. 
 
 [See text, pp. 358, 419.] 
 
 " Caprera, Sept. 10. 
 " Dear Sir : I saw Mr. Sandford, and regret to be obliged to announce 
 to you that I shall not be able to go to the United States at present. I do 
 not doubt of the triumph of the cause of the Union, and that shortly ; but, 
 if the war should unfortunately continue in your beautiful country, I shall 
 overcome the obstacles which detain me and hasten to the defense of a 
 people who are dear to me. G. GARIBALDI." 
 
 CITATIONS, FROM VATTEL's LAW OF NATURE AND NATIONS, 
 
 BY MR. JAMES T. BRADY. 
 
 [See text, p. 365.] 
 
 " Sec. 287. It is a question very much debated whether a sovereign is 
 bound to observe the common laws of war towards rebellious subjects 
 who have openly taken up arms against him. A flatterer, or a Prince of 
 cruel and arbitrary disposition, will immediately pronounce that the laws of 
 war were not made for rebels, for whom no punishment can be too severe. 
 Let us proceed more soberly, and reason from the incontestible principles 
 above laid down." 
 
 " Sec. 292. When a party is formed in a State who no longer obey the 
 sovereign, and are possessed of sufficient strength to oppose him ; or when, 
 in a Republic, the nation is divided into two opposite factions, and both 
 sides take up arms, this is called a civil war. Some writers confine this 
 term to a just insurrection of the subjects against their sovereign to dis- 
 tinguish that lawful resistance from rebellion, which is an open and unjust 
 resistance. But what application will they give to a war which arises in a 
 Republic, torn by two factions, or, in a Monarch)', between two competi- 
 tors for the Crown ? Custom appropriates the term of civil war to every 
 war between the members of one and the same political society. If it be 
 between part of the citizens on the one side, and the sovereign with those 
 who continue in obedience to him on the other, provided the malcontents 
 
724 APPENDIX. 
 
 have any reason for taking up arms, nothing further is required to entitle 
 such disturbance to the name of civil war, and not that of rebellion. This 
 latter term is applied only to such an insurrection against lawful authority 
 as is void of all appearance of justice. The sovereign, indeed, never fails 
 to bestow the application of rebels on all such of his subjects as openly 
 resist him ; but when the latter have acquired sufficient strength to give 
 him effectual opposition, and to oblige him to carry on the war against 
 them according to the established rules, he must necessarily submit to the 
 use of the term civil war. 
 
 " Sec. 293. It is foreign to our purpose, in this place, to weigh the rea- 
 sons which may authorize and justify a civil war ; we have elsewhere 
 treated of the cases wherein subjects may resist the sovereign. (Book i, 
 cap. 4.) Setting, therefore, the justice of the cause wholly out of the 
 question, it only remains for us to consider the maxims which ought to be 
 observed in a civil war, and to examine whether the sovereign, in particu- 
 lar, is on such an occasion bound to conform to the established laws of 
 war. 
 
 " A civil war breaks the bonds of society and Government, or at least 
 suspends their force and effect ; it produces in the nation two independent 
 parties, who consider each other as enemies, and acknowledge no common 
 judge. Those two parties, therefore, must necessarily be considered as 
 thenceforward constituting, at least for a time, two separate bodies — two 
 distinct societies. Though one of the parties may have been to blame in 
 breaking the unity of the State, and resisting the lawful authority, they 
 are not the less divided in fact. Besides, who shall judge them ? Who 
 should pronounce on which side the right or the wrong lies ? On each they 
 have no common superior. They stand, therefore, in. precisely the same 
 predicament as two nations who engage in a contest, and, being unable to 
 come to an agreement, have recourse to arms. 
 
 " This being the case, it is very evident that the common laws of war 
 — ^those maxims of humanity, moderation and honor, which we have 
 already detailed in the course of this work — ought to be observed by both 
 parties in every civil war. For the same reasons which render the observ- 
 ance of those maxims a matter of obligation between State and State, it 
 becomes equally and even more necessary in the unhappy circumstances of 
 two incensed parties lacerating their common country. Should the sover- 
 eign conceive he has a right to hang up his prisoners as rebels, the oppo- 
 site party will make reprisals ; if he does not religiously observe the capitu- 
 lations, and all other conventions made with his enemies, they will no 
 longer rely on his word ; should he burn and ravage, they will follow his 
 example ; the war will become cruel, horrible, and every day more destruc- 
 tive to the nation." 
 
 After noticing the cases of the Due de Montpensier and Baron des 
 Adrets, he continues : 
 
 " At length it became necessary to relinquish those pretensions to 
 
APPENDIX. T25 
 
 iudicial authority over men who proved themselves capable of supporting 
 their cause by force of arms, and to treat them not as criminals, but as 
 enemies. Even the troops have often refused to serve in a war wherein 
 the Prince exposed them to cruel reprisals. Officers who had the highest 
 sense of honor, though ready to shed their blood on the field of battle for 
 his service, have not thought it any part of their duty to run the hazard oi 
 an ignominious death. Whenever, therefore, a numerous body of men 
 think they have a right to resist the sovereign, and feel themselves in a 
 condition to appeal to the sword, the war ought to be carried on by the 
 contending parties in the same manner as by two different nations, and 
 they ought to leave open the same means for preventing its being carried 
 into outrageous extremities and for the restoratioa of peace." 
 
 ABSTRACT OF DOCUMENTARY EVIDENCE OFFERED BY DEFEND- 
 ANTS IN THE CASE OF THE " SAVANNAH PRIVATEERS." 
 
 [See text, p. 367.] 
 
 Mr. Brady, for the defense, put in evidence the following documents: 
 
 1. Preliminary Chart of Part of the sea-coast of Virginia, and Entrance 
 to Chesapeake Bay. — Coast Survey Work, dated 1855. 
 
 2. The Constitution of Virginia, adopted June 29, 1776. It refers only 
 to the western and northern boundaries of Virginia — Art. 21 — but recog- 
 nizes the Charter of 1609. That charter (Hemmings' Statutes, ist vol. 
 p. 88) gives to Virginia jurisdiction over all havens and ports, and all 
 islands lying within 100 miles of the shores. 
 
 3. The Act to Ratify the Compact between Maryland and Virginia, 
 passed January 3, 1786 — to be found in the Revised Code of Virginia, page 
 53. It makes Chesapeake Bay, from the capes, entirely in Virginia. 
 
 Mr. Sullivan also put in evidence, from Putnam's Rebellion Record, 
 the following documents : 
 
 1. Proclamation of the President of the United States, of 15th April, 
 i86x. 
 
 2. Proclamation of the President, of 19th April, 1861, declaring a 
 blockade. 
 
 3. Proclamation of 27th April, 1861, extending the blockade to the 
 coasts of Virginia and North Carolina. 
 
 4. Proclamation of May 3d, for an additional military force of 42,034 
 men, and the increase of the regular army and navy. 
 
 5. The Secession Ordinance of South Carolina, dated Dec. 20, i860. 
 
 Mr. Sullivan read in evidence from page 10 of Putnam's Rebellion 
 Record : 
 
 Letter from Secretary of War, John B. Floyd, to President Buchanan, 
 dated December 29, i86o. 
 
 President Buchanan's reply, dated December 29, 1 860. 
 
 Also, from page 1 1 of Rebellion Record : 
 
'?'26 APPENDIX. 
 
 The Correspondence between the South Carolina Comniissioners and 
 the President of the United States. 
 
 Also referred to page 19 of Rebellion Record, for the Correspondence 
 between Major Anderson and Governor Pickens, with reference to firing 
 on the Star of the West. 
 
 Read Major Anderson's first letter (without date), copied from Charles- 
 ton Courier, of Jan. 10, 1861. 
 
 Governor Pickens' reply, and second communication from Major An- 
 derson. 
 
 Also, from page 29 of Rebellion Record, containing the sections of the 
 Constitution of the Confederate States which differ from the Constitution 
 of the United States. 
 
 Also, from page 3 1 of Rebellion Record : Inaugural of Jefferson Davis, 
 as President of the Confederate States. 
 
 Also, page 36 of Rebellion Record : Inaugural of Abraham Lincohi, 
 President of the United States. 
 
 Also, page 61 of Rebellion Record : The President's Speech to the 
 Virginia Commissioners. 
 
 Also, page 71 of Rebellion Record: Proclamation of Jefferson Davis, 
 with reference to the letters of marque, dated 17th April, 1861. 
 
 Also, page 195 of Rebellion Record: An Act recognizing a state of 
 war, by the Confederate Congress, — published May 6, i85i. 
 
 Mr. Lord read from pages 17, 19, and 20 of Diary of Rebellion 
 Record, to give the date of certain events: 
 
 l86i, February 8. The Constitution of the Confederate States adopted. 
 " 18. Jefferson Davis inaugurated President. 
 
 " 21. The President of the Southern Confederacy nominates mem- 
 bers of his Cabinet. 
 " 21. Congress at Montgomery passed an Act declaring the estab- 
 lishment of free navigation of the Mississippi. 
 March 19. Confederates passed an Act for organizing the Confederate 
 States. 
 April 8. South Carolina Convention ratified the Constitution of the 
 Confederate States by a vote of 119 to 16. 
 
 CITATIONS ON MILITARY LAW BY Mr. WILLIAM A. 
 
 BEACH. 
 
 [See text, p. 455.] 
 
 A Military Crime must be imputed in the Charges and 
 Specifications. 
 
 " The jurisdiction of court-martial is special and limited, arising from 
 the cognizance of crimes as committed by individuals, that is, by indi- 
 viduals subject to military law; and the crimes or acts are such as are 
 
APPENDIX. T2T 
 
 repugnant to military discipline, and are pointed out by law, by the general 
 regulations for the army, and by the custom of war, 
 
 " Those acts defined by law are sufficiently distinct for the observation 
 of members of military courts, whereby they may regulate their proceed- 
 ings, and no embarrassment can arise in regard to malcing them the sub- 
 ject of military investigation. 
 
 " The general regulations for the army are a permanent body of rules ' 
 for the better ordering and methodical arrangement of subjects of military 
 concernment, and have a view to establish uniformity of the affairs of the 
 army by determining, to a greater or less degree, the requisite minutise and 
 detail. Their character, while mandatory, is also ministerial, and, proceed- 
 ing from the President of the United States, the highest military authority, 
 claims the utmost respect, observance and obedience. It is true, they are 
 not in the nature of a subordinate legislation to determine or to define 
 offenses and affix penalties, for that belongs to Congress only, and such as 
 are set forth in the rules and articles of war; but they are of the nature 
 and character of orders, pertaining to the executive and administrative 
 branches of the service ; and although they denounce no punishment in 
 terms, yet the neglect or positive breaches of their requirements are im- 
 mediately referable to the established laws for the enforcement of disci- 
 pline, to which they appeal for an appropriate sanction. 
 
 " The custom of war is the unwritten or common law of the army. In 
 order to apply it to any particular case, it must be certain and well defined, 
 and clearly not opposed to any law or regulation. The custom of war is 
 rather sought for as explanatory of some doubtful question in which, with- 
 out its aid, a decision might become certain, then as a source of authority 
 by itself. It must be understood, too, that a custom to have any validity, 
 besides having the quotations above mentioned, must also be a custom of 
 the army for the government of which it is intended to be applied. To 
 resort to a foreign military service, and draw thence customs of war which 
 are genuine and acknowledged in such service, might be very illegal when 
 introduced into our own, as the circumstances or conditions which called 
 them into existence, and continued them in being, in the one might be en- 
 tirely wanting in the other. It is an authority which ought to be well 
 scrutinized before allowed to have a determining influence. The customs 
 and usages of an army are, when considered in contradistinction to the 
 positive laws and regulations for the same, generally pretty well under- 
 stood, and when adduced, as illustrative of the forms adhered to, or the 
 interpretation of acts, should have the certainty of established fact. 
 
 " In concluding this chapter, it is proper to observe, that it is a principle 
 by which the power and jurisdiction of courts-martial are restrained, that 
 they cannot take cognizance of any acts or offenses which are not conceded 
 by statute, or the custom of war, as specific crimes against the military 
 State, or as disorders and neglects tending to the prejudice of discipline 
 and good order." — De Hart on Courts-martial, pp. 298, 299. 
 
728 APPENDIX. 
 
 The Specifications must embrace the Charge and sustain 
 THE Offense. 
 
 [See text, p. 456.] 
 
 " The fact or facts ought to be very distinctly specified or alleged, in 
 such manner that neither the prisoner or court can have any difficulty in 
 knowing what is the precise object of investigation. Facts distinct in their 
 nature are not to be included in the same specifications. Every fact in the 
 specification should be such as, if proved, would convict the prisoner 
 of the charge, or at least might convict him of it. Any allegation in the 
 specification which, if proved, could not convict the prisoner of any degree 
 of the crime charged, is irrelevant and should be rejected. Its retention 
 will not vitiate the charge, but it is surplusage, and no evidence should 
 be received thereon. It is always better to reject such matter at first. 
 This rule is applicable, though the facts irrelevant to the particular charge 
 do themselves amount to a distinct crime. 
 
 " If all the facts stated in the specification would not, if proved, amount 
 to the crime stated in the charge, both charge and specification must be 
 rejected ; for the court is to pronounce only in the crime named in the 
 charge, and no other. 
 
 " From the preceding it results that the court-martial may and ought 
 to refuse to try on accusations, — 4th, when the specification alleges only 
 certain acts, either not at all criminal, or not constituting any degree of the 
 crime stated in the charge." — 'Brien on American Military Law, pp. 
 234, 235. 
 
 THE WAR AMENDMENTS TO THE CONSTITUTION. 
 
 [See text, p. 518.] 
 ARTICLE XIII. 
 Sec. I. Neither slavery nor involuntary servitude, except as a punish- 
 ment for crime, whereof the party shall have been duly convicted, shall 
 exist within the United States, or any place subject to their jurisdiction. 
 
 Sec. 2. Congress shall have power to enforce this article by appro- 
 priate legislation. 
 
 article XIV. 
 Sec. I. All persons born or naturalized in the United States, and sub- 
 ject to the jurisdiction thereof, are citizens of the United States, and of the 
 State wherein they reside. No State shall make or enforce any law which 
 shall abridge the privileges or immunities of citizens of the United States ; 
 nor shall any State deprive any person of life, liberty, or property, without 
 due process of law, nor deny to any person within its jurisdiction, the equal 
 protection of the laws. 
 
APPENDIX, 729 
 
 Sec. 2. Representatives shall be apportioned among the several States 
 according to their respective numbers, counting the whole number of per- 
 sons in each State, excluding Indians not taxed. But when the right to 
 vote at any electijon for choice of electors for president and vice-president 
 of the United States, representatives in congress, the executive and judicial 
 officers of a State, or the members of the legislature thereof, is denied to 
 any of the male inhabitants of such State being twenty-one years of age, 
 and citizens of the United States, or in any way abridged, except for par- 
 ticipation in rebellion or other crime, the basis of representation therein 
 shall be reduced in the proportion which the number of such male citizens 
 shall bear to the whole number of male citizens twenty-one years of age in 
 such State. 
 
 Sec. 3. No person shall be a senator, or representative in congress, or 
 elector of president and vice-president, or hold any office, civil or military, 
 under the United States, or under an.y State, who, having previously taken 
 an oath as a member of congress, or as an officer of the United States, or as 
 a member of any State legislature, or as an executive or judicial officer of 
 any State, to support the Constitution of the United States, shall have en- 
 gaged in insurrection or rebellion against the same, or given aid and com- 
 fort to the enemies thereof; but congress may, by a vote of two-thirds of 
 each house, remove such disability. 
 
 Sec. 4. The validity of the public debt of the United States authorized 
 by law, including debts incurred for payment of pensions and bounties for 
 services in suppressing insurrection or rebellion, shall not be questioned. 
 But neither the United States nor any State shall assume or pay any debt 
 or obligation incurred in aid of insurrection or rebellion against the United 
 States, or any claim for the loss or emancipation of any slave ; but all such 
 debts, obligations, and claims, shall be held illegal and void. 
 
 Sec. 5. The congress shall have power to enforce, by appropriate legis- 
 ation, the provisions of this article. 
 
 ARTICLE XV. 
 
 Sec. I. The right of citizens of the United States to vote shall not be 
 denied or abridged by the United States or by any State on account of race, 
 color, or previous condition of servitude. 
 
 Sec. 2. The congress shall have power to enforce this article by appro- 
 priate legislation. 
 
730 APPENDIX. 
 
 ODE AND VERSES REFERRED TO BY MR. MACKIN- 
 TOSH IN HIS DEFENSE OF PELTIER. 
 
 [See text, pp. 568, 591, 592.] 
 
 That the reader may thoroughly comprehend the argument of Mr. 
 Mackintosh, we present the portions of the first two publications set out in 
 the pleadings, for the Crown, and the translation as they appear upon the 
 record, in the language of the indictment. The allegation is that the de- 
 fendant, on the i6th of August, 1802, " within the liberty of Westminster, 
 in the county of Middlesex, unlawfully and maliciously did print and pub- 
 lish, and cause and procure to be printed and published, a most slandalous 
 and malicious libel, in the French language, of and concerning the said 
 Napoleon Buonapart6, that is to say, one part thereof to the tenor follow- 
 ing, to wit : 
 
 "Le 18 Brumaire an VIII. 
 
 '' Ode attribute d Ch^nier. 
 
 " Quelles temp6tes effroyables 
 Grondent sur les Acts dfichalnSs 
 Dieux ! quels torrents ^pouvantables 
 Roulent ces rocs dgracinSs ? 
 Les fleuves n'ont plus de rivages 
 Couvert d'ficume et de naufrages 
 L'oc6an mugit dans les airs 
 Sur ses fondements ebranlfie 
 La terre va-t-elle €croul€e 
 Se detacher de I'univers ? 
 
 " Ah plutSt pour se faire absoudre ! 
 D'une trop longue impunity 
 Les cieux peut-Stre avec la foudre 
 Vent protgger la Libert6 
 Dieux du peuple que Ton opprime 
 Vengez cette auguste victime 
 De I'audacieux attentat 
 Qu'aux jours malheureux de Brumaire 
 Les lois ont dans leur sanctuaire 
 Vu consommer par un soldat 
 
 " Trop vain espoir de la vengeance ! 
 Peuples livr6s aux oppresseurs 
 N'auriez vous dans votre souffrance 
 Que vos bras pour libfirateurs ? 
 Le ciel est aveugle au barbare 
 Et lorsque sa foudre s'figare 
 PortGe au hasard sur les vents 
 Qu'elle dfivaste les campagnes 
 Ou frappe d'arides montagnes 
 Elle respecte les tirans 
 
 "Jouets des flots et des orages 
 Voyez ces utiles vaisseaux 
 De leurs d6bris couvrir vos plages 
 
APPENBIX. 731 
 
 Ou s'abjmier au fond des eaux 
 Tandis que la nef criminelle 
 Qui porte ce Corse rebelle 
 Bfiserteur des champs Africains 
 Tranquillement vogue sur I'onde 
 Et de C6sar annonce au monde 
 Et la fortune et les desseins 
 
 " De la France, 6 honte gternelle 
 Cfisar au bord du Rubicon 
 A contre lui dans sa querelle 
 Le SSnat Pompge et Caton 
 Et dans les plaines de Pharsale 
 Si la fortune est inggale 
 S'il te faut cSder aux destins 
 Rome dans ce revers funeste 
 Pour te venger au moins il reste 
 Un poig^ard aux demiers Remains 
 
 '' Mais sous quelles viles entraves 
 A succomb6 notre vertu ! 
 Quoi ! I'univers nous voit esclaves 
 Sans que nous ayons combattu ! 
 Au sein d'un sgnat parricide 
 La noire trahison preside 
 Fiere encore de nos revers 
 Le pouvoir sans appui sans force 
 Tombe S, sa voix et c'est d'un Corse 
 Que le Franjais regoit des fers ? 
 
 " And in another part thereof to the tenor following, that is to say : 
 
 " D6jA dans sa rage insolente 
 
 Le despote ose menacer 
 
 Tel des flots la vague ecumante 
 Se brise contre le rocher 
 Est-ce pour vous donner un maitre 
 Est-ce pour couronner un traitre 
 Que la France a puni ses rois ? 
 Non non I'ambition coupable 
 Saura qu'il n'est d'inviolable 
 Que les droits du peuple et ses lois. 
 
 And in another part thereof to the tenor following, that is to say : 
 
 "Vcsu d'un bon Patriate au 14 Juillet, 1802. 
 
 " Quel fortune a fait le fils de Lfititie ! 
 Corse il devient Frangais Sa nouvelle partie 
 L'adopte le nourrit au rang de ses enfants 
 Et dfijS. lui promet les destins les plus grands ! 
 Un orage survient sous I'effort des tempetes 
 L'etat est renvers6 les plus augustes t^tes 
 Tombent tout est brise le Frangais malheureux 
 Regrette en soupirant son erreur et ses vceux ! 
 Napoleon parait ! de victoire en victoire 
 II atteint en volant au faite de la gloire ! 
 
V32 APPENDIX. 
 
 L'Orient, I'Occident teraoins de ses exploits 
 
 Par lui sont terrasses et ref oivent ses loix ! 
 
 Le Nil avail frCmi mais le sort qui I'entraine 
 
 Rappelle son vainqueur aux rives de la Seine 
 
 Cinq chefs ou cinq tyrans partageaient le pouvoir 
 
 II arrache & leur mains le sceptre et I'encensoir 
 
 Le voilft done assis oil s'elevait le tr6ne ! 
 
 Que faut-il a ses vceux ? un sceptre ? une couronne ? 
 
 Consul il regie tout il fait defait des rois 
 
 Peu soigneux d'Stre aimfi la terreur fait ses droits ! 
 
 Sur un peuple avili jusqu'au rang des esclaves 
 
 II regne-il est despote on baise ses entraves 
 
 Qu'a-t-il a. redouter? II a dicto la paix 
 
 Des rois sont 3. ses pieds, mendiant ses bienfaits ? 
 
 D'assurer en ses mains I'autoritg supreme 
 
 On lui porte les vceux ! Les Fran^ais des rois m^me 
 
 A le fglicitei-'s'empressent humblement 
 
 Et voudraient en sujets lui prater le serment . . . 
 
 II est proclamfi chef et consul pour la vie . . . 
 
 Pour moi loin qu'S son sort je porte quelqu'envie 
 Qu'il nomme j'y consens son digne successeur 
 Sur le pavois porte qu'on I'glise empereur 
 Enfin et Romulus nous rappelle la chose 
 Je fais voeu .... d^s demain qu'il ait I'apothgose ! amen. 
 
 " Which said scandalous and malicious words in the French language, 
 first above-mentioned and set forth, being translated into the English lan- 
 guage, were and are of the same signification and meaning as these En- 
 glish words following, that is to say : 
 
 " What frightful tempests growl on the unchained waves ? Gods, what 
 dreadful torrents roll these uprooted rocks } The rivers have no longer 
 any banks. The ocean, covered with foam and shipwrecks, bellows in the 
 air. Shaken at its foundation, is the earth fallen — going to detach itself 
 from the universe ! Ah ! rather to obtain their acquittal for too long im- 
 punity, the heavens, perhaps, are going to protect liberty with the thunder. 
 Gods of an oppressed people ! Avenge this august victim of the audacious 
 attempt which on the unhappy days of Brumaire, the laws, in their sanc- 
 tuary, saw completed by a soldier! (meaning the said Napoleon Buona- 
 parte). Too vain hope of vengeance ! Nations given up to oppressors, 
 have you in your sufferings only your arms for deliverers? The heaYen is 
 blind or cruel, and when its thunder flies, carried by chance upon the 
 winds, whether it lays waste the plains or strike the arid mountains, it re- 
 spects tyrants. Behold those useful vessels, the sport of the waves and 
 storms, cover your coasts with their wrecks or sink to the bottom of the 
 waters, while the guilty ship that carries that rebel Corsican (meaning the 
 said Napoleon Buonapartfi) deserter of the plains of Africa, sails tran- 
 quilly on the wave, and announces to the world the fortune and the designs 
 of Cffisar. Oh, eternal disgrace of France ! Csesar, on the bank of the 
 Rubicon, has against him in his quarrel the senate, Pompey and Cato, and 
 in the plains of Pharsalia, if fortune is unequal, if you must yield to the 
 destinies of Rome, in this sad reverse, at least, there remains to avenge 
 you, a poignard among the last Romans. But, under what vile fetters has 
 our valour fallen ! What ! the universe beholds us slaves without our hav- 
 ing combatted ! In the bosom of a parricide senate black treason presides, 
 
APPENDIX. 733 
 
 still fierce at our misfortunes ; power without support and without force 
 falls at its voice, and it is from a Corsican (meaning the said Napoleon 
 Buonaparte) that the Frenchman receives his chains. 
 
 " And which said scandalous and malicious words, in the French lan- 
 guage, secondly above-mentioned and set forth, being translated into the 
 English language, were and are of the same signification and meaning as 
 these English words following, that is to say : 
 
 •• Already, in his insolent rage, the despot (meaning the said Napoleon 
 Buonaparte) dares to menace; but the foaming wave of the sea breaks 
 itself against the roclf. Is it to give you a master — is it to crown a traitor 
 (meaning the said Napoleon Buonaparte (that France has punished her 
 kings ? No, no ; guilty ambition shall know that there is nothing inviola- 
 ble but the rights of the people and their laws. 
 
 " And which said scandalous and malicious matters in the French lan- 
 guage last above-mentioned and set forth, being translated into English, 
 are as follows, that is to say : 
 
 "Wish of a good patriot on the fourteenth day of July, in the year of 
 our Lord one thousand eight hundred and two. 
 
 "What fortune has the son of Laetitia (meaning the said Napoleon 
 Buonapartfi) arrived at! A Corsican, he becomes a Frenchman. His 
 new country adopts him, nourishes him in the rank of its children, and 
 already promises him the greatest destinies. A storm arises. By the force 
 of the tempests the State is overturned ; the most noble persons fall ; every- 
 thing is broken. The unhappy Frenchman regrets with sighs his error 
 and his wishes. Napoleon appears, flying from victory to victory. He 
 reaches the summit of glory. The east, the west, witnesses of his exploits 
 are vanquished by him and receive his laws. The Nile had shuddered, but 
 the lot that forces him on recalls his vanquisher to the banks of the Seine. 
 Five chiefs or five tyrants shared the power. He forces from their hands 
 the sceptre and the censer. Behold him, then, seated where the throne 
 was raised. What is wanting to its wishes ? A sceptre ? a crown .' Con- 
 sul, he governs all ; he makes and unmakes kings. Little careful to be be- 
 loved, terror establishes his rights over a people degraded even to the rank 
 of slaves. He reigns ; he is despotic ; they kiss their chains. What has 
 he to dread ? He has dictated peace. Kings are at his feet begging his 
 favors. He is desired to secure the supreme authority in his hands ! The 
 French, nay, kings themselves, hasten to congratulate him, and would take 
 the oath to him like subjects. He is proclaimed chief and consul for life. 
 As for me, far from envying his lot, let him name, I consent to it, his 
 worthy successor. Carried on the shield, let him be elected emperor ! 
 Finally (and Romulus recalls the thing to mind), I wish that on the mor- 
 row he may have his apotheosis. Amen. 
 
 " To the great scandal, disgrace and danger of the said Napoleon Buona- 
 partS, to the great danger of creating discord between our said lord the 
 king and his subjects and the said Napoleon BuonapartS, the French re- 
 public and the citizens of the said republic, in contempt of our said lord 
 the king and his law, to the evil example of all others in the like case 
 offending, and against the peace of our said lord the king, his crown and 
 dignity." 
 
734 APPENDIX. 
 
 PASSAGES OF THE ODE TRANSLATED IN VERSE, AND 
 CITED, BY MR. MACKINTOSH. 
 
 [ See Text p. 5g2. ] 
 
 C'est par les lois que I'Angleterre 
 Affermit sa prospgritfi : 
 Li, sous leur abri tutfilaire, 
 On peut braver la royaut6 ; 
 LS, devant leur toute puissance, 
 Et le pouvoir et la naissance 
 Baissent un front religieux ; 
 LS, I'homme pense sans contrainte, 
 Et, satisfait, jouit sans crainte 
 Des memes droits que ses ayeux. 
 
 Du pouvoir censeur nficessaire, 
 L' Anglais n'en peut craindre les coups; 
 Des lois jamais sur I'arbitraire 
 II n'invoque en vain le courroux. 
 Fiere de sa charte sacrfie, 
 De gloire et de biens entourSe, 
 Albion regne sur les mers ; 
 EUe chfirit sa destinge, 
 Et la Tamise fortunSe 
 Fixe les yeux de Tunivers. 
 
 Cependant encore afflig6e 
 Par I'odieuse hergdit6, 
 Londres, de titres surchargee, 
 Londres n'a pas I'^galitfi ; 
 Mais son rempart imp6n6trable. 
 Est dans le pouvoir responsable 
 De la volontfi de ses Rois : 
 Tandis que la main despotique 
 Qui conduit notre Rfipublique 
 Est plus puissante que Jes lois. 
 
INDEX. 
 
INDEX. 
 
 Addison, supposed dialogue between 
 f Lord Somers and, 660. 
 
 Advocate, duties of, require high moral 
 courage. 371. 
 
 ^neas, reference to, by Mr. Wirt, 65 ; 
 Dido's entreaty with, 2gi. 
 
 Age of Reason, the, mischievous effects 
 of, 560 ; intellectual mferiority of the 
 work, 565. 
 
 Alexander the Great, debts of Thessa- 
 lians remitted by, 5, 33. 
 
 Amendments, text of war amendments, 
 728. (See, also, Constitution.) 
 
 America, 'greatness of as a nation, 8 ; 
 period of her independence, 12; ne- 
 cessities which compelled her revolt, 
 13; struggles of, 15; right of, to be 
 considered a nation, 20 ; result had 
 she been conquered, 21 ; condition of, 
 in 1812, 201. 
 
 Americans, what things distinguished 
 for, 348. 
 
 Animus furandi, legal definition of, 349; 
 must depend on something more than 
 presumption, 352. • 
 
 "Appropriate Legislation," meaning of 
 the term, 526. 
 
 Armstrong, Brig-of-war, Gen., case of, 
 191; circumstances of her destruction, 
 192; story of her loss, 202; circum- 
 stances underwhich she fired the first 
 gun, 225. 
 
 Askin, Francis, circumstances of his 
 death, 127. 
 
 B 
 
 ■ Bacon, Lord, law of necessity, p. 125, 
 cited, 134, 135 ; extract from his dis- 
 course on the reign of Elizabeth, 598. 
 
 Baker, Thomas Harrison, captain of the 
 " Savannah," trial of, 343. 
 
 Baldwin, Hon. Henry, his charge in 
 United States v. Holmes, 147. 
 
 Bankrupt Laws, right of Congress to es- 
 tablish, exclusive, 69 ; object of pro- 
 hibiting the States from passing, 83. 
 
 Beach, William A., his defense of 
 
 47 
 
 Col. North, 449 ; his argument before 
 the Commission in case of, 451-480 ; 
 observations as to crime, and pun- 
 ishment, 453 ; defines consequences 
 of usurping unlawful authority, 459 ; 
 shows that constitutional rights can 
 not be suspended, 464 ; nor the Con- 
 stitution suspended, 466 ; defines lim- 
 itations of constitutional authority, 
 467 ; defines origin of legal tribunals, 
 471. 
 
 Belligerents, rights of, in neutral terri- 
 toiy, 204 ; status of, defined, 389 ; 
 condition of, no protection to citizens, 
 390. 
 
 Bentham Jeremy, observations of, as 
 as to the security afforded by law, 480. 
 
 Bible, vieviis of Sir William Jones con- 
 cerning, 552 ; literary merit of, 552 ; 
 doctrines of, would banish wicked- 
 ness, 564. 
 
 Black, Jeremiah S., his defense of 
 Milligan, 482; his argument before 
 the U. S. Supreme Court, 483, 516; his 
 review of the charges against Milli- 
 gan, 484 ; of the tribunal in which he 
 was tried, 484; of the jurisdiction of 
 the Commission, 485 ; enumerates the 
 safeguards to protect from illegal pun- 
 ishment, 492; sketches the history of 
 jury trials, 494; proves title to right 
 to jury trial, 497; disposes of the plea 
 of necessity, 500; historical review of 
 exercise of illegal authority throughout 
 the world, 511. 
 
 Blasphemy, prosecution of Williams on 
 charge of, 554. 
 
 Blockade defined, 396. 
 
 Bolingbroke, reference to, by Mr. North, 
 662. 
 
 Bonaparte. (See Napoleon Bonaparte.) 
 
 "Bottle Riot" case, 613; speech of 
 Mr. Plunket, 615-640; speech of Mr. 
 North, 642--666; nature of the of- 
 fense charged, object of the prosecu- 
 tion, 616; political events in which 
 conspiracy had its origin, 625; narra- 
 tion of the facts constituting charge 
 against the defendants, 633 ; conduct 
 
 [737] 
 
738 
 
 INDEX. 
 
 of the defense by Mr. North, 641 ; 
 names of the defendants, 641; wide 
 publicity of the proceeding, 643; con- 
 duct of the defendants no crime, 651 ; 
 personal violence not contemplated, 
 652; conduct of the defendants not 
 criminal, 660; political aspect of the 
 verdict considered, 664. 
 Boyle, reference to, by Mr. Erskine, 
 562. 
 
 Bradish, Luther, observations of con- 
 cerning importance of doctrine of 
 stare atciiis, 124. 
 
 Brady, James T., observations concern- 
 ing public opinion in criminal cases, 
 34 ; his defense of the " Savannah 
 Privateers," 343 ; remarks of, 345 ; his 
 speech to the jury, in defense of the 
 " Savannah Privateers," 346-373; his 
 definition of piracy, 346, 347, 369; nar- 
 ration of the facts in "Savannah" 
 case, 352 ; distinguishes larceny and 
 trespass, 353 ; his eulogy on the " lib- 
 erty boys," 355 ; distinguishes rebel- 
 lion and revolution, 356 ; reference to 
 flags of truce, 367; defines blockade, 
 368; refers to courage required of an 
 advocate, 372; his peroration in " Sa- 
 vannah" case, 373, 
 
 British Debts, case of — right of a State 
 to confiscate, 1-33; facts of the case 
 narrated, 2; effect of revolution on, 8. 
 
 Brother and sister, sacred relationship 
 between, 331. 
 
 Brown, David Paul, his defense of 
 Holmes, 128; his speech to the jury, 
 128; defines the circumstances in 
 which the jury could arrive at a ver- 
 dict, 130; discusses the charge and 
 the authorities, 132 ; answers the 
 prosecution, 135 ; vindicates the cap- 
 tain of the lost vessel, 139; narrates 
 the facts of the case, 141 ; defines the 
 law of self-preservation, 145. 
 
 Brown, John, case of, referred to by Mr. 
 Evarts, 417. 
 
 Calkins, Dr., inferences from his refusals 
 to answer, 278. 
 
 Canning, George, his translation of PC- 
 tier's ode, 592. 
 
 Centralization, the tendency towards, 
 
 531- 
 Chancellor. (See English Chancellors.) 
 Charles II., profligate character of his 
 
 reign, 336 ; law of adultery in time of, 
 
 disregarded, 338. 
 
 Choate, Rufus, his defense of Mrs. 
 Dalton, 248; facts and circumstances 
 of the case, 248-249; his speech to the 
 jury, 250-324; his arraignment of the 
 witnesses to the confession, 304; ar- 
 raignment of John H. Coburn, 306 ; 
 arraignment of Edward O. Cobum, 
 316 ; arraignment of Mary Hunter, 
 318 ; effect of his argument. 324. 
 
 Chose in action a subject of forfeiture. 
 
 Christians, intellectual superiority of, as 
 compared with infidels, 561. 
 
 Christianity the foundation of our juris- 
 prudence, 556, 
 
 Citizens, duty of government to protect, 
 400. 
 
 Civil Rights Act, provisions of, 521. 
 
 Civil War, legal evidence of the exist- 
 ence of, 366, 393; flags of truce, evi- 
 dence of, 367; blockade, evidence of, 
 369 ; combatants entitled to rights of 
 war, 368. 
 
 Circumstantial Evidence, rules as to, 
 268. 
 
 Coasting trade protected by Congress, 
 63. 
 
 Coburn, Edward O., his story of the cake 
 and wine, 315; arraignment of, by 
 Rufus Choate, 316. 
 
 Cobum, John H., arraignment of, by 
 Rufus Choate, 306; his evidence re- 
 futed by husband's conduct, 312. 
 
 Colonial period, history of legal tenders 
 during, 428. 
 
 Commission. (See Military Commis- 
 sion.) 
 
 Commerce, power to regulate, vested in 
 Congress, 47, 61; duty of government 
 to protect. 400. 
 
 Conduct, what embraced within act of 
 adultery, 333. 
 
 Confessions, evidence of, 297; confes- 
 sions of guilt, when impossible, 297; 
 nature and character of, as evidence, 
 300. 
 
 Confiscation, right of, in time of war, 7; 
 warranted by necessity during tlie rev- 
 olution, 13. 
 
 Congress, powers vested in, 50 ; exclu- 
 sive and concurrent powers, 51, 55; 
 may promote science and useful arts, 
 54; why so vested, 54; power to 
 grant patents, 59 ; may patent useful 
 discoveries, 60; how far can control 
 police regulations, 63 ; coasting trade 
 protected by, 63 ; exclusive power of, 
 to pass bankrupt laws, 69 ; grants of 
 power to, 79; object of these constitu- 
 tional grants 81-83; duty of, to pledge 
 the public credit, 425, 429 ; results of 
 
INDEX. 
 
 739 
 
 its measures, 426 ; power of, to create 
 a legal tender, 426 ; war powers vested 
 in, 430 ; alternative forced upon, dur- 
 ing the Rebellion, 437; the attributes 
 of sovereignty presumed to exist in, 
 445 ; power of, to secure rights of 
 citizens, 517, 519; legislation of, to 
 enforce the Constitutional Amend- 
 ments growing out of the war, 521; 
 cannot anticipate the action of a State, 
 533 ■ mode in which Congress may en- 
 force State prohibitions, 535 ; limita- 
 tion of criminal jurisdiction of, 547. 
 
 Connivance, a perfect defense in actions 
 for crim. con. 679 ; may be actual or 
 constructive, 679 ; when regarded in- 
 jurious as a defense, 6g6 ; indiscre- 
 tion not connivance, 696 ; nature of 
 the defense of, 713. 
 
 Constitution of United States, construc- 
 tion of, 50 ; powers delegated by, 51 ; 
 object and purpose of, 77; prohibitions 
 of, considered, 77; grants of power 
 in, considered, 79 ; nature of the in- 
 strument, 423 ; object and purposes 
 of, defined, 424 ; abstract of powers 
 of, 425 ; does not prohibit creation of 
 legal tenders, 426; why such power 
 not conferred in terras, 427; how 
 exercised in colonial times, 428 ; war 
 powers delegated to Congress by, 430 ; 
 rights under can not be suspended, 
 464; Constitution can not be suspend- 
 ed, 466; provisions of, sufficient for 
 every political necessity, 466 ; author- 
 ity of, clearly defined, 467 ; guaran- 
 tees of, for preservation of personal 
 liberty, 492 ; should be duly guarded 
 in time of war, 500; object of framers 
 of, 505 ; war amendments to, 520 ; text 
 of the amendments, 518 ; legislation 
 to enforce the amendments, 521 ; ob- 
 ject and design of the amendments, 
 524; prohibition of power in the Con- 
 stitution, 527 ; rules of interpretation 
 as to war amendments, 532; constitu- 
 tional mode of enforcing, 536. 
 
 Constitutional law — power to regulate 
 commerce, 47; when State bankrupt 
 law, no bar to an action, 67. 
 
 Constitutional prohibitions, object and 
 purpose of, 77. 
 
 Conspiracy, how shown in Wilkinson's 
 case, 94 ; direct evidence of, 99 ; cir- 
 cumstantial proof of, loi ; belief in, a 
 justification of murder, 113 ; charge 
 of, how used for political purposes, 
 548. 
 
 Constructive treason, doctrine of, de- 
 nounced, 44 ; results of doctrine of, 45, 
 
 Contracts, may be dissolved without con- 
 
 sent of the king, 20 ; obligations of, 
 considered, 70 ; duty of performing 
 rests upon universal law, 71 ; what 
 statutes impair obligations of, 72; 
 State can not pass law impairing, 72 ; 
 when existing law forms no part of, 
 75 ; law acts upon, when broken, 73. 
 
 Courts of law, object and "purpose of, 
 196 ; jurisdiction of, must arise from 
 positive law, 471. 
 
 Court of Claims, origin and character of, 
 194; importance of, 198; power of to 
 create remedies, 199. 
 
 Courts-Martial, when authorized, 509. 
 (See, also, Military Law ; Military 
 Commissions.) 
 
 Crawford, Hon. T. H., rulings in Sic. 
 kles' case, 718. 
 
 Crime, must proceed from bad heart' 
 40 ; principles governing punishment 
 of. 378 ; general nature of, and pun- 
 ishment for, 453 ; military crime, what 
 embraced in, 455. 
 
 Cruikshank, William I., U. S. v., 517 ; 
 argument of David Dudley Field in 
 case, 520 ; offenses charged in the 
 indictment, 523 ; theory of the prose- 
 cution in the case, 520; two pro- 
 positions which embrace the theory 
 of the defense, 532 ; practical results 
 of the theory of the prosecution, 542. 
 
 Criminal Conversation, rule of damages 
 for, stated by Mr. Hoar, 676 ; rules 
 of law applicable to, 678-709 ; the de- 
 fense of connivance, 679 ; varied char- 
 acter of defenses to the action, 684 ; 
 rule where plaintiff's conduct con- 
 tributes to the misfortune, 687 ; vin- 
 dictive damages, 688 ; why verdicts 
 can not be set aside for excess, 693 ; 
 nature and character of the injury, 
 710; when defendant's conduct will 
 not defeat his right to recover, 713. 
 
 CuRRAN, John Philpot, character of 
 his eloquence, 691 ; his speech to the 
 jury in Massy v. The Marquis of 
 Headford, 692-707 ; states the rule 
 of damages, 693; statement of the 
 questions to be considered by the jury, 
 695 ; derides the theory of connivance, 
 695 ; supposed remonstrance with the 
 defendant before committing the of- 
 fense, 697 ; recites the shameful ex- 
 perience of the defendant, 699 ; por- 
 trays defendant's disgraceful conduct, 
 700 ; the verdict anticipated by de- 
 fendant, 704; depicts the husband's 
 sufferings, 706. 
 
 Currency, right of Congress to provide 
 uniform system of, 429. 
 
740 
 
 INDEX. 
 
 Custom, law of, when binding on a na- 
 tion, 9 ; Vattel on law of custom, g ; 
 European customs not binding here, 
 10. 
 
 D 
 
 Dalton Divorce Case, facts and circum- 
 stances, »48-9 ; verdict for defendant 
 to be desired by both parties, 250; 
 the narration, 252 ; defendant's ac- 
 quaintance with Sumner, 253 ; her 
 love for her husband, 255 ; Dalton 
 believed his wife innocent, 257 ; influ- 
 ences which prejudiced the husband, 
 259 ; defendant's alleged confessions 
 explained, 260 ; meeting of the hus- 
 band and wife after separation, 261 ; 
 the mutilated letter, 262, 314 ; object 
 of the story of the wife's crime ex- 
 posed, 263 ; no proof of defendant's 
 guilt, 266 ; no proof of proximate acts 
 of adultery, 267 ; circumstances relied 
 on by plaintiff, 269 ; no motive to in- 
 duce defendant to destroy her off- 
 spring, 271 ; testimony shows absence 
 of motive, 273 ; defendant's proof 
 narrated, 275 ; defendant's evidence 
 strongly corroborated, 280 ; testimony 
 of the parties contrasted, 281; cir- 
 cumstances to show no unlawful love 
 declared, 290 ; defendant's love for 
 her husband, 291 ; a conviction asked 
 on evidence which plaintiff discred- 
 ited, 294; influences which changed 
 husband's demeanor, 296 ; all the let- 
 ters in the case show defendant inno- 
 cent, 320 ; reconciliation o£ the par- 
 ties, 324. , . . , 
 
 Damages, rule of, in cases of cnmmal 
 conversation, 676, 678, 687, 693, 703, 
 709 ; circumstances to be considered 
 in fixing amount of, 710 ; moral con- 
 siderations bearing upon the question 
 of, 714; exemplary damages, when 
 should be given, 706 ; vindictive dam- 
 ages not recoverable in, 688 ; why 
 verdicts can not be set aside for ex- 
 cess, 693. 
 
 Davis, Jefferson, letter of marque issued 
 by, as a defense against piracy, 353 ; 
 text of the letter, 722. 
 
 Debts, a subject of forfeiture in com- 
 mon war, 4, 8, 25 ; definition of, 4, 
 17; of enemy, may be remitted by 
 hostile nation, 5 ; extent of confisca- 
 tion of, 6 ; destroyed by act of British 
 government, 17, 28. 
 
 De Hart, on Military Courts, 454 ; dis- 
 tinction by, between martial and mil- 
 itary law, 461; defines martial law, 
 462. X 
 
 Delusion, proof of insanity, 177. 
 Dido, entreaty of, with ^neas, 291. 
 Divorce, crime can not be inferred from 
 
 unlawful love and opportunity, in 
 
 cases of, 284. 
 Duvall, J., rulings, in U. S. v. Hodges, 
 
 41 ; criticism of, by Mr. Pinkney, 42. 
 
 Edmonds, Hon. John W., his charge 
 in Klein's case, 160. 
 
 Elizabeth, Queen, sketch of her reign, 
 by Sir James Mackintosh, 596 ; causes 
 the first Gazettes to be printed in Eng- 
 land, 598 ; reference to reign of, by 
 Mr. North, 662. 
 
 Ellenborough, Lord, defines political 
 libel, 567. 
 
 Emmett, Thomas Addis, Wirt's reply to, 
 65 ; reference to argument of, by Mr. 
 Brady; 361. 
 
 "Enchantress," The, trial of crew of, 
 
 347- 
 Enforcement Act, ailment of. Mr. 
 
 Field as to constitutionality of, 520 ; 
 
 provisions of, 522. 
 England, offers an asylum forthe French 
 
 refugees, 599 ; for Swiss refugees, 605. 
 
 (See, also. Great Britain.) 
 English Chancellors, early struggles of, 
 
 197. 
 Equity Jurisprudence, early establish- 
 ment of the system, 197. 
 
 Erskine, Thomas, conduct at trial of 
 Dean of St. Asaph, 35 ; reference to, 
 by Mr. Pinkney, 38; extract from 
 speech of, in Hardy's trial, 465 ; con- 
 ducts the prosecution of Williams 
 for blasphemy, 554 ; his speech to the 
 jury, 554-566 ; consistency of, in con- 
 duct of the case, 555 ; anticipates the 
 defense, 555; views of Christianity, as 
 related to jurisprudence, 556; views as 
 to freedom of the press, 557; distin- 
 guishes between legitimate inquiry, 
 and abuse, 558; illustrates the in- 
 tellectual superiority of Christians, 
 561 ; views as to intellectual inferior- 
 ity of Paine's work, 565 ; regrets its 
 publication, 566. 
 Estoppel, when government not estop- 
 ped by decision of arbitrator, 214. 
 EvARTS, William M., his conduct of 
 the prosecution in the case of the 
 "Savannah Privateers," 374; his 
 speech to the jury, 375-420; defines 
 elements of the crime of piracy, 380; 
 defines privateering, 385 ; defines war, 
 395; defines right of revolution, 404; 
 
INDEX. 
 
 741 
 
 defines political results of war, 407 ; 
 the problem of government, 405 ; the 
 success of our government, 415 ; dis- 
 tinguishes power and right, 416 ; his 
 reference to John Brown, 417. 
 
 Evidence, application of rules of, 303. 
 (See, also, Circumstantial Evidence.) 
 
 Exemplary damages, in cases of crim. 
 con., 706. 
 
 Ex-ofHcio informations, review of the 
 law, as to legality of, by Mr. Plunket, 
 618, 638 ; declared illegal by Mr. 
 North, 644. 
 
 Expressio unius est exclusio alterius, 
 application of maxim, 499. 
 
 Family, purity and sanctity of the, 329. 
 
 Fayal, battle of, 192. 
 
 Field, David Dudley, his argument 
 on the Constitutionality of the "En- 
 forcement Act," in the U. S. Supreme 
 Court, 520-549 ; synopsis of the legis- 
 lation to enforce the war amend- 
 ments, 521; defines meaning of term 
 "appropriate legislation," 526; de- 
 fines the limitations as to mode of en- 
 forcing delegated powers, 521; re- 
 marks on centralization of power, 531; 
 defines the theory of the defense, 532; 
 constitutional mode of enforcing the 
 war amendments, 536; theory and 
 object of government, 540; defines 
 rules of constitutional interpretation, 
 
 543- 
 
 Flirtation, evidence of, no proof of 
 crime, 282 ; observations on evils of, 
 283 ; application of law to, 285 ; evi- 
 dence of, when worthless, 286; evi- 
 dence of, consistent with a theory of 
 innocence, 287. 
 
 Freeman, William, circumstances of 
 trial and offense, 149; his defense an 
 act of justice and humanity, 154 ; the 
 verdict as to his sanity imperfect and 
 unjust, 156; the standard of intelli- 
 gence by which he should be judged, 
 158 ; his sacrifice not demanded by 
 public security, iSj ; he could not 
 simulate madness, 169; his insanity 
 demonstrated, 172; rules for testing 
 his insanity, 180; his personal appear- 
 ance and demeanor at the trial, 185. 
 
 French Revolution, Sketch of, by Sir 
 James Mackintosh, 586. 
 
 Garibaldi, references to, by Mr. Brady, 
 358 ; by Mr. Evarts, 419 ; text of 
 letter of, 723. 
 
 George IV., his visit to Ireland, 627. 
 
 Gibbons, Thomas, v. Aaron Ogden, 47. 
 
 Gove, Mr., his character and testimony, 
 277; Gove, Mrs., her character and 
 testimony, 276. 
 
 Government, problem of, 405 ; practi- 
 cal object and spirit of, 406 ; wisdom 
 and advantages of U. S. Government, 
 408 ; duty to protect its soldiers, 470; 
 theory and object of, defined by Mr. 
 Field, 540. 
 
 Great Britain, maintenance of justice on 
 the continent essential to security of, 
 577. (See, also, England.) 
 
 Grotius on the right of confiscation, 7; 
 on rights and obligations, 24. 
 
 H 
 
 Hale, Sir Matthew, his Christian char- 
 acter, 562. 
 
 Headford, Marquis, arraignment of, by 
 Mr. Hoar, 671 ; by Mr. Curran, 699. 
 
 Henry, Patrick, argument of in Jones 
 V. Walker, 4; analysis of his argu- 
 ment, I ; defines debts, 4; rights of 
 hostile nations to remit, 4; panegyric 
 on America, 8 ; depicts the horrors of 
 the American Revolution, 15; shows 
 what would have been the result of 
 defeat, 21. 
 
 Herod, illegal exercise of his power in 
 Judea, 512. 
 
 Historian, the privilege of, as to a charge 
 of libel, 581. 
 
 History of the Rebellion reviewed, 433; 
 of the legal tender acts, 435. 
 
 History, distinguished from libel, 575. 
 
 Hoar, Bartholomew, his opening 
 for the plaintiff in Massy v. the Mar- 
 quis of Headford, 688-676; his sketch 
 of Rev. Charles Massy, the plaintiff, 
 669 ; his narration of the facts in the 
 case, 669; how plaintiff's suspicions 
 were aroused, 670 ; circumstances of 
 the abduction, 671; anticipates and 
 discusses the grounds of the defense, 
 674; the rule of damages, 676. 
 
 Hodges John, trial of, 35 ; his motives 
 in surrendering prisoners, 43 ; acquit- 
 tal of, 46. 
 
 Holmes, U. S. v., circumstances of case, 
 125; Speech of Mr. Brown, 128; his 
 heroic conduct, 129; graphic picture 
 of his alleged crime, 131. 
 
 Homicide, degrees of, 40; law of, 
 where husband slays his wife's seducer, 
 325; law of defined, 328; when ex- 
 cused, 328, 335 ; English and Amer- 
 ican authorities discussed, 338. 
 
742 
 
 INDEX. 
 
 Hunter, Mary, arraignment of by Rufus 
 Choate, 318. 
 
 Husband and wife, sacred character of 
 their relationship, 329 ; when husband 
 justified in slaying the adulterer, 334. 
 
 I 
 
 Informations. (See Ex-officio Informa- 
 tions.) 
 
 Innocence, always presumed, 265. 
 
 Insanity, a perfect defense, 158; how 
 truth of the plea may be tested, 159; 
 relation of the law toward the insane, 
 160 ; difficulty of detecting, 164 ; in- 
 sanity defined, 166 ; cannot be simu- 
 lated, 170. 
 
 Insanity, Ray's opinion as to, 170; 
 causes of, discussed, 172 ; delusion, 
 proof of, 177 ; rules for testing, 180. 
 
 Intent, the essence of every offense, 
 38 ; illustrations of the principle, 38 ; 
 case of Watt Tyrrel, 40 ; question of, 
 one of fact for the jury, 349 ; can not 
 be inferred, must be proved, 350; 
 legal presumption of may be over- 
 
 351. 
 
 International law — ^when government 
 must respond to citizen in damages, 
 191 ; protection to neutral vessel un- 
 der, 192: rights of belligerent under, 
 204; nation must discharge its obliga- 
 tions, 205; extent of liability of a 
 neutral, 207, 208 ; neither poverty or 
 weakness a ground of exemption, 
 210; must enforce the claim of a sub- 
 ject, 211; responsible for failure to do 
 so, 212 ; does not act in such case as 
 claimants' agent, 213; privateering 
 within the rules of, 385. 
 
 Interpretation, rules of as to the consti- 
 tutional amendments, 532 ; rules of 
 as applied to the U. S. Constitution. 
 
 Inventors, rights of secured underact of 
 Congress alone, 58. 
 
 Ireland, campaign of William III. in, 
 626; visit of George IV. to, 627. 
 
 J 
 
 Jacobinism, a satire upon, no libel, 585 ; 
 spirit of, not extinguished in France, 
 586 ; sketch of the French Jacobins. 
 588; Jacobins distinguished from Rep- 
 ublicans, 590. 
 
 James II., attempt of to abridge civil 
 liberty defeated, 496. 
 
 Jones, Sir William, views as to inspir- 
 ation of the Bible, 552. 
 
 Judiciary, can act only in pursuance of 
 express authority, 488; integrity of in 
 U. S., 489. 
 
 Jurisdiction, when none exists, proceed 
 ings void, 4B5 ; of Federal and State 
 Courts defined, 485; must arise from 
 positive law, 471. 
 
 Jurisprudence, origin and growth of, 
 
 195. 
 Jury, when judges of both law and fact, 
 37 ; duty of in murder trials, 92; limi- 
 tation of their responsibility, 377 ; 
 province of, 383; right of trial by, 
 secured by the Constitution, 481 ; ar- 
 gument of Judge Black, in defense of, 
 483-516 ; jui-y system eulogized, 490; 
 sketch of history of, 495 ; title by 
 which it is secured, 497; right to not 
 lost in time of war, 504. 
 
 K 
 
 Kentuckians, contrasted with Missis- 
 sippians, by Mr. Prentiss, gi ; re- 
 marks on, 120. 
 
 Kleim's Case, review of, 160; charge of 
 Judge Edmonds in, 160. 
 
 Language, general and unambiguous, 
 limited by circumstances in which 
 used, 529. 
 
 Larceny and Trespass, distinguished, 
 353 ; illustrations of, 353. 
 
 Law, observations by Paley as to un- 
 certainty of, 84 ; no security without 
 law, 480. (See, also, Levitical Law ; 
 Jurisprudence; International Law.) 
 
 Law of Nations, remarks on, 507. (See, 
 also. International Law.) 
 
 Leavitt, J., extract from opinion of, in 
 Vallandingham's case, 468. 
 
 Legal Tender Acts, constitutionality of, 
 421; necessities which render the 
 acts necessary, 425 ; not prohibited 
 by the Constitution, 426 ; why the 
 power was not conferred in terms, 
 427; how power exercised in colonial 
 times, 428 ; the crisis which rendered 
 the acts necessary, 435; power to 
 pass exists by express grant, 438 ; 
 exists also by implication, 439; power 
 to create a legal tender existed prior 
 to the Constitution, 441; meaning of 
 the term, 443; distinguished from 
 money, 444; what the subject of, 
 
 444- '. 
 
 Lettre de cachet, effect of, 511. 
 
 Letter of Marque issued by Jefferson 
 Davis, to Savannah Privateers ; a de- 
 fense against piracy, 354 ; resorted to 
 prior to 1776, 360. 
 
 Levitical law, punishment of adultery 
 under, 322. 
 
INDEX. 
 
 743 
 
 Libel, political libel defined by Lord 
 Ellenborough, 567 ; philosophy of the 
 law of libel, 575; malice essence of 
 the crime of, 581; a satire not a libel, 
 584. 
 
 Liberty, rights for preservation of, 
 enumerated, 492 ; history of, 494 ; 
 regarded as sacred by framers of the 
 Constitution, 505. 
 
 "Liberty Boys," prior to the Revolu- 
 tion, 355. 
 
 Locke, reference to by Mr. Erskine, 
 562. 
 
 Lola Montez. (See Montez.) 
 
 Louis XIV. sketch of, by Sir James 
 Mackintosh, 598 ; his invasion of 
 Holland, 599 ; arraignment of by the 
 English press, 601. 
 
 M 
 
 Macaulay, Thomas Babbington, sketch 
 of the character of Sir James Mackin- 
 tosh, 568. 
 
 Macbeth, his exercise of illegal au- 
 thority, 512. 
 
 Mackintosh, Sir James, his defense 
 of Peltier, 568; his speech to the jury, 
 569-612; sketches the misfortunes of 
 his client, 570; defines the real issue 
 as a struggle between royal power 
 and the freedom of the press, 572; 
 sketches history of freedom of the 
 press, 573; shows that war is never 
 beneficial to a commercial nation, 
 578; shows that freedom of the press 
 can not be impaired without danger 
 to the State, 579; defines public 
 spirit, 580; defines the privilege of 
 the historian, 581; sketches the 
 French Revolution, 586; sketches the 
 French Jacobins, 588; distinguishes 
 them from Republicans, 590 ; his ob- 
 servations on the ode ascribed to 
 Chenier, 592 ; text of the ode, 730 ; 
 his observations on the verses ascribed 
 to a Dutch patriot, 595; text of the 
 
 • verses, 731; sketches the reign of 
 Queen Elizabeth, 496; sketches Louis 
 XIV., 598; his sketch of William of 
 Orange, 600; sketches dismember- 
 ment of Poland, 603; sketches the 
 invasion of Switzerland, 605 ; sketches 
 the reign of Robespierre, 608. 
 
 Madman, not responsible for crime, 
 152; execution of, murder, 152; pub- 
 lic security does not require sacrifice 
 of, 163. 
 
 Malice, the essence of the crime of 
 libel, 581. 
 
 Mansfield, Lord, his declaration to the 
 mob in the Court of King's Bench 
 in Wilkes' case, 550. 
 
 Mannings Case, review of, 335-339. 
 
 Manslaughter at sea, legal character of, 
 132- 
 
 Manslaughter, as distinguished from 
 murder, 325-328. 
 
 Marcy, William M., reference to letter 
 of, 360. 
 
 Marque, letter of. (See "Letter of 
 Marque.") 
 
 Marshall, John, extract from argument 
 of in McCullough v. Maryland. 445- 
 446. 
 
 Marriage relation, the sanctity of, 329. 
 
 Martial law, distinction between and 
 military law ; rule as to existence of, 
 462. 
 
 Massy v. The Marquis of Headfortj 
 667; facts of the case, 667 ; opening 
 speech of Mr Hoar to the jury in, 
 668; speech of Mr. Quin for the de- 
 fense, 677; speech of Hon. George 
 Ponsonby f or the defense, 683 ; speech 
 of John Philpot Curran, for the plain- 
 tiff, 691 ; Baron Smith's charge to the 
 jury, 708; synopsis of testimony in 
 the case, 677 ; character and conduct 
 of Mrs. Massy referred to by Mr. 
 Quin, 680; questions for the jury to 
 consider, 695; plaintiff's indiscretion 
 no crime, 696; character of the de- 
 fense an insult and an aggravation, 
 701. 
 
 Melancholy, a stage of insanity, 168. 
 
 Metropolitan Bank v. Van Dyck, case 
 of, 421 ; Judge Porter's argument in, 
 423. 
 
 Mind, incapable of obliteration, 165. 
 
 Military commission, can only punish 
 military offenses, 453-454; no juris- 
 diction to try civil offenses, 457 ; 
 illegality of, 486; no power to act 
 where courts are open, 497; an 
 anomoly in the law, 510; synonymous 
 with arbitrary power, 511; history of, 
 
 511- 
 
 Military courts, powers assumed by,45l. 
 
 Military law, what constitutes violation 
 of, 454-455 ; civil offenses not viola- 
 tions of, 457 ; definition of, 458; mar- 
 tial law and military law distinguish- 
 ed, 461. 
 
 Military necessity, when does not au- 
 thorize militaiy tribunal, 452. 
 
 Miller, Hon. Samuel F., extract from 
 opinion of in " Slaughter-house " 
 Cases, 543. 
 
 Milligan, Lambdin P., case of in U. S. 
 Supreme Court, 481; argument of 
 
7U 
 
 UiTDEX. 
 
 Judge Black in his behalf, 483-516 ; 
 the charges against Milligan, 484; 
 plea of necessity not applicable to 
 case of, .500 ; neither law of nations, 
 nor laws of war, applicable to case 
 
 507. 
 
 Milton, John, his intellectual power 
 referred to, by Mr, Erskine, 563. 
 
 Mississippians and Kentuckians con- 
 trasted, by Mr. Prentiss, 91. 
 
 Money, as distinguished from legal 
 tender, 444. 
 
 Montez, Lola, account of, by Judge 
 Black, 513. 
 
 Murder, what constitutes, 40; distinc- 
 tion between, and manslaughter, 
 325; defined, 328. 
 
 N 
 
 Napoleon Bonaparte, libel against, by 
 Jean Peltier, 568 ; how he usurped 
 power during the French Revolution, 
 586 ; no exhortation to assassination 
 of by Peltier, 593. 
 
 Napoleon III., acts as arbitrator be- 
 tween U. S. and Portugal, 215 ; his 
 award not binding, 216, 2lg, 221; what 
 question intended to be referred, 221 ; 
 no question of fact before, 224 ; his 
 fitness for arbitrator, 226 ; his award 
 void for want of jurisdiction, 227 ; he 
 sacrifices Reid's claim, 241 ; his award 
 never ratified by claimants, 231. 
 
 National liability (see International 
 Law), 208. 
 
 Nature, in state of legal obligations 
 dissolved, 23 ; law of, considered, 134, 
 
 136. 145. 
 
 Necessity, application of law of, 500; 
 cannot impart validity to an illegal 
 act, 501. 
 
 Negro plot, reference to, by Mr. Brady, 
 372- 
 
 Neilson, Joseph, observations of as t° 
 growth of principles, 246. 
 
 Neutrals, rights of, with respect to priva- 
 teers, 387. 
 
 Newspapers, influence of, on domestic 
 and foreign politics, 602 ; when gaz- 
 ettes first printed in England, 598. 
 (See, also, " Press.") 
 
 Newton, Sir Isaac, character of his 
 mind, 561. 
 
 New York, law of, conflicting with 
 power of Congress to regulate com- 
 merce, 61. 
 
 North, John Henry, his defense in 
 the "Bottle Riot Case," 644; his 
 speech to the jury, 642-666; his 
 learning, 642 ; reference of to wide 
 
 publicity of the case, 643 ; he reviews 
 the law upon the legality of ex-officio 
 informations, 644 ; reviews the charges 
 against his clients, 646 ; describes the 
 scene to prevent decoration of King 
 William's statue, 647 ; his reference 
 to Lord Plunket's tribute to memory 
 of the Prince of Orange, 648 ; dis- 
 credits testimony of the Atkinson 
 Brothers, 654 ; reviews the testimony 
 of Michael Farrell, 657 ; his arraign- 
 ment of the witness who saw the 
 bottle " in transit," 658 ; his sup- 
 posed dialogue between Addison and 
 Lord Somers, 660; his reference to 
 Bolingbroke, Duke of Rutland, and 
 Queen Elizabeth, 662 ; considers the 
 political aspect of the verdict, 664. 
 North, Samuel, his trial and acquittal, 
 449 ; Argument of Mr. Beach in his 
 defense, 451-480; charges against not 
 a military crime, 455 ; charges against 
 not sustained by specifications, 456; 
 case distinguished from Vallanding- 
 ham's, 468 ; charges against not hos- 
 tile to military operations, 469 ; whe- 
 ther punishable under State law im- 
 material, 470 ; questions of fact in- 
 volved in, 472 ; private character of, 
 475 ; interest and importance of case 
 of, 477- 
 
 O 
 
 Ocean, law of, in time of Shipwreck, 
 120. 
 
 O'CONOR, Charles, his conduct of the 
 case of Brig Armstrong, 193; his 
 argument before the Court of Claims, 
 194, 245 ; classifies rights and reme- 
 dies, ig5 ; the object of legal tribun- 
 als, 196 ; the early struggles of the 
 English Chancellors, 197; the Court 
 of claims characterized, ig8 ; refers to 
 condition of the Republic in 1812, 
 201 ; defines the rights of belligerent, 
 in neutral territory, 204; states the cir- 
 cumstances of firing first gun at Fayal, 
 225 ; defines ground of govemmenfs 
 liability, 228 ; rule as to compensation 
 for private property, 237 ; his perora- 
 tion, 243. 
 
 O'Brien, on military courts, 454; defini- 
 tion of military law, 458. 
 
 Ogden, Aaron, ads Gibbons, 48. 
 
 Ogden V. Saunders, synopsis of argu- 
 ments on both sides, 67, 68; Mr. Web- 
 ster's argument in, 69. 
 
 Oldham, Henry, evidence of in Wilkin- 
 son trial, 108 ; arraignment of by 
 Mr. Prentiss, log. 
 
INDEX. 
 
 745 
 
 Overt acts, when evidence, 40. 
 
 Orange, Prince of. (See William III.) 
 
 Orangemen, charges in " Bottle Riot 
 
 Case" not intended as protest against, 
 
 623; loyalty chief characteristic of, 
 
 646. 
 
 Paine, Thomas, his " Age of Reason," 
 551; publication of held blasphemous, 
 566; defended by Erskine, for pub- 
 lishing " Rights of Man," 554; in- 
 feriority of his work, 565. 
 
 Paley, William, observations o{, con- 
 cerning uncertainty of the law, 84. 
 
 Paper money, compelled by necessity, 
 18 ; effect of payment of in war time, 
 26. 
 
 Pardoning power, wisdom apd justice 
 of, 379. 
 
 Parent and child, sacred relationship 
 between, 330. 
 
 Patent Laws, nature and character of, 
 
 59- 
 Peltier Jean, his libel against Napoleon 
 Bonaparte, 568 ; argument in his de- 
 fense by Sir James Mackintosh, 569- 
 612; sketch of his misfortunes, 570; 
 the real issue, 572; his right to satir- 
 ize Jacobinism, 585; the ode can- 
 not represent his opinions, 591 ; ob- 
 servations on the ode by Mr. Mackin- 
 tosh, 592; text of the ode, 730; ex- 
 tract from indictment against, 730. 
 
 PiNKNEY, William, argument of U. 
 S. V. Hodges, 35-46 ; conduct at 
 Bladensburg, 35 ; his strictures on 
 Justice Duvall ; regards the jury 
 judges of the law and the facts, 37 ; 
 remarks on criminal intent, 38 ; de- 
 fines the law of treason, 42 ; arraigns 
 the doctrine of constructive treason, 
 44 ; views of on perfection of the 
 Union, 411. 
 
 Piracy, nature and character of crime, 
 344, 346 ; under the law of nations, 
 and under the acts of Congress, 347 ; 
 proof required to convict, 349 ; letter 
 of marque, a defense against, 354; 
 crime of, 369 ; elements of, 380; false 
 views of property rights, no defense 
 of, 381; what sufEcient evidence to 
 constitute element of force, 382 ; trea- 
 son no defense, 397; good faith no de- 
 fense, 417. 
 
 Plunkett, William Conyngham, his 
 conduct of the prosecution in Rex. v. 
 Forbes, 613; his abilities as a lawyer, 
 614; his oratory, 614; his defense 
 
 for filing the information in Rex v. 
 Forbes, 615, 638 ; his speech to the 
 jury in, 615-640; motive of in filing 
 an ex-officio information, 617 ; legal- 
 ity of the proceeding, 618 ; his pane- 
 gyric on William of Orange, 624 ; his 
 defense of Lord Wellesley, 628; narra- 
 tion of the facts in case of Rex v. 
 Forbes, 633. 
 
 Poland, crime against, and dismember- 
 ment of, 603. 
 
 Police and quarantine, regulations dis- 
 tinguished, 61 ; how far controlled by 
 Congress, 63. 
 
 PoNSONBY, Rt. Hon. George, his char 
 acter a^ a lawyer, 683 ; his conduct 
 of the defense of the Marquis of 
 Headford, 683 ; his speech to the 
 jury, 684-690 ; remark as to duty of 
 the jury, 684; observations as to 
 plaintiff's deportment, and its in- 
 fluence upon the wife, 685; states the 
 rule of damages, 687. 
 
 Porter, John K., argument of on the 
 constitutionality of the legal tender 
 acts, 423-448; his definition of the 
 Constitution, 423 ; its object, 424 ; 
 the powers delegated to give it effect, 
 425 ; defines the necessity for pledging 
 the public credit, 425; sketches his- 
 tory of legal tenders in colonial times, 
 428 ; reviews the events of the rebel- 
 lion, 431; defines the subject of legal 
 tender, 443. 
 
 Portugal, liability incurred at Battle of 
 Fayal, 202; bound to prevent hos- 
 tilities, 206 ; when liability became 
 extinguished, 227. 
 
 Powers, exclusive and concurrent, dis- 
 tinguished, 51. 59 ; of a State may be 
 taken away by implication, 53 ; repug- 
 nancy of conflicting, 53 ; what exclu- 
 sive, 55. 
 
 Power, synonymous with right, 362; 
 power and right distinguished, 416. 
 
 Powers, express and implied prohibi- 
 tions of in the Constitution, 527; 
 limitation on mode of enforcing dele- 
 gated powers, 528. (See, also. Con- 
 stitution.) 
 
 Prentiss, Sergeant S., style of his 
 eloquence, 86 ; his defense of Judge 
 Wilkinson, 85 ; his speech to the 
 jury, 87; his arraignment of the wit- 
 ness Oldham, 109 ; of other conspir- 
 ators, III ; his arraignment of Red- 
 ding, 121. 
 
 Press, freedom of an inestimable bles- 
 sing, 557; principles applicable to 
 
746 
 
 INDEX. 
 
 liberty of, 557; freedom of in the 
 European States, 573; why it was tol- 
 erated on the continent, 573; how it 
 .perished on the continent, 575; re- 
 mains free only in England, 575; 
 freedom of, can not be impaired with- 
 out danger to the State, 579; im- 
 portance of, in time of Queen Eliza- 
 beth, 5g8; first gazettes printed in 
 England, 598 ; the invasion of Hol- 
 land an attack upon a free press, 599; 
 arraignment of Louis XIV. by the 
 English press, 601; influence of news- 
 papers on domestic and foreign poli- 
 tics, 602 ; arraignment by the press 
 of the crime against Poland, 603. 
 
 Private property cannot be taken with- 
 out compensation, 237; nor sacrificed 
 for public ends without compensation, 
 240. 
 
 Privateers, rights of neutrals with res- 
 pect to, 387. 
 
 Privateering under the law of nations, 
 and the laws of war, 385. 
 
 Prohibition, a guarantee not equivalent 
 to, 534; mode in which Congress may 
 enforce State prohibitions, 535 ; of 
 the war amendments to the Constitu- 
 tioii considered, 538 ; rules of inter- 
 pretation as to, 543. 
 
 Public opinion, always militates against 
 the prisoner, 34. 
 
 Public trials, propriety and necessity of, 
 264. 
 
 Punishment can only be exercised by 
 legal authority, 488 ; law to prevent 
 unlawful exercise of, 492 ; philosophy 
 of, 453- 
 
 Q . 
 
 Quarantine and police regulations dis- 
 tinguished, 61. 
 
 QuiN, Thomas, his opening for the de- 
 fense in Massy v. The Marquis of 
 Headford, 677; defines the rules of 
 law governing the action, 678; the 
 defense of connivance explained, 679; 
 defines the character and conduct of 
 Mrs. Massy, 680; the verdict must 
 not be founded on vengeance, but 
 upon reason and justice, 681; remarks 
 concerning a good wife, 682. 
 
 R 
 
 Ray, Dr., extracts from work on in- 
 sanity, 170; rules given by, to test a 
 maniac from a murderer, 180. 
 
 Rebellion, as distinguished from revo- 
 lution, 356; events of war of, re- 
 viewed, 431 
 
 Reding, Aloys, conduct of, at Mor- 
 garten, 606 ; supposed welcome to 
 England, 606. 
 
 Redding, the Louisville tailor, arraign- 
 ment of, by Mr. Prentiss, 121. 
 
 Reid, Capt. Sam. C, his conduct at the 
 battle of Fayal, 192; forbidden to 
 argue his claim before Napoleon, 219; 
 Napoleon's award not binding on, 
 221; question as to whether he was 
 the aggressor, 222; review of the evi 
 dence as to, 230; letter of Daniel 
 Webster, 232 ; commendation of his 
 course ; his claim founded in justice 
 and equity, 235 ; history of his claim, 
 242 ; his personal motives, 243; com- 
 parison with Washington, 244. 
 
 Religion, safety of the State dependent 
 on, 564. 
 
 Remedies and rights classified, 195. 
 
 Remedy, failure to provide, not equiva- 
 lent to a deprivation of a right, 534. 
 
 Republicans, in France, as distinguished 
 from Jacobins, 590. 
 
 Revolution, necessity which forced the, 
 13; distinction between revolution 
 and common war, 15; horrors of 
 American, 15; as distinguished from 
 rebellion, 356; right of, a legal right, 
 358; secession synonymous with, 362; 
 evidence of right of, 393 ; remarks on 
 right of, 404. 
 
 Rex V. Forbes. (See "Bottle Riot" 
 Case). 
 
 Right, synonymous with power, 362; as 
 distinguished from power, 416 ; fail- 
 ure to provide remedy for, not equiv- 
 alent to deprivation of, 534. 
 
 Rights and remedies classified, 195. 
 
 Robespierre, sketch of reign of, 607. 
 
 Sailor, must preserve passenger, 125; 
 must at all times obey orders, 136. 
 
 Salvage, law of, 27. 
 
 Satire, can not be regarded as a libel, 
 584. 
 
 Savannah Privateers, trial of, 343; 
 proof required to convict, 349; acts 
 of, not necessarily criminal, 351; nar- 
 ration of facts at trial of, 351; nature 
 of their defense, and province of the 
 jury, 383 ; statements of the defense 
 of, 391; novel political questions in 
 defense of, 402. 
 
 Science, power of Congress to promote, 
 54 ; why vested in Congress, 54 ; ex- 
 clusive in Congress, 55. 
 
 Secession, synonymous with revolution. 
 
INDEX. 
 
 Y47 
 
 362; inconsistent with our institu- 
 tions, 410. 
 
 Self-defense, application of the law of, 
 93, 117; illustrations of the rule, 118; 
 in hour of peril, 135; in time of ne- 
 cessity, 138; law of, in protecting a 
 wife's chastity, 340. 
 
 Self-government, problem of, 405. 
 
 Self-preservation, law of, 145 ; whether 
 an inherent right in a State, inde- 
 pendent of the Constitution, 441. 
 
 Seward, William H., his defense of 
 Freeman, 151; his argument to the 
 jury, 151-183 ; his letter before the 
 trial, 150; extract from his remarks 
 at preliminary trial, 151; his objec- 
 tion to the arraignment of Freeman, 
 151; his arraignment of Dr. Spencer, 
 184; review of the evidence of Free- 
 man's mother, 187. 
 
 Shipwreck, law of, as to passengers, 125. 
 
 Sickles, Daniel E., defense of, by Ed- 
 win M. Stanton, 327; requests to 
 charge and rulings of the court, on 
 the trial of. 718I theory of the de- 
 fense of, 239. 
 
 Sister, sacred relationship between 
 brother and, 331. 
 
 Slaughter-house Cases, extract from 
 opinion in, 543. 
 
 Smith, Baron, his charge to the jury 
 in Massy v. Marquis of Headford, 
 708; defines the law in actions for 
 crim. con., 709; states the rule of 
 damages, 709; defines the character 
 of the defense of connivance, 713; 
 what moral considerations must be 
 regarded in measuring damages, 714. 
 
 Soldiers, duty of government to pro- 
 tect, 470. 
 
 Somers, Lord, supposed dialogue of, 
 with Addison, 660. 
 
 Southern Confederacy, recognition of, 
 as belligerents, 389. 
 
 Spencer, Dr., medical testimony of, re- 
 viewed by Mr. Seward, 184; chart 
 of the mental faculties, 184; text of 
 chart, 718. 
 
 Stanton, Edwin M., his defense of 
 Daniel E. Sickles, 326 ; his argu- 
 ment to the court, 327-342. 
 
 Stare deads, importance of the law of, 
 124. 
 
 State, 'powers of, may be taken away by 
 implication, 53; laws of, must not 
 conflict with act of Congress, 57; can- 
 not grant a patent, 5g; cannot pro- 
 hibit use of an invention, 60; powers 
 of, discussed, 59; Congress cannot an- 1 
 
 ticipate action of, 533; mode in 
 which Congress may enforce prohibi- 
 tions upon, 535 ; how laws of may be 
 made inoperative by Congress, 539; 
 safety of the, dependent on religion, 
 564. 
 
 Steamboat Case, 47. 
 
 Stephens, Alexander H., views of, re- 
 specting the sanctity of the Union, 
 412. 
 
 Stone's Case, reference to, 39. 
 
 Sturges V. Crowninshield, principles de- 
 cided in, 6g, 70. 
 
 Switzerland, invasion of, sketched by 
 Sir James Mackintosh, 605. 
 
 Thebans, debts of, remitted, 5, 33. 
 Treason, defined under the Constitu- 
 , tion, 36 ; under the " Crimes Act " of 
 
 1790. 36; in time of war, 38, 42; for 
 
 levying war, 39; overt acts of, 40; 
 
 constructive treason denounced, 44; 
 
 when plea of war a confession of, 
 
 396; no defense against piracy, 397; 
 
 special provisions applicable to law 
 
 of, 493. 
 Treaty, effect of violation of, 29; may 
 
 be interpreted by courts, 31. 
 Trespass, distinguished from larceny, 
 
 353- 
 Trial, must be had in conformity with 
 
 express authority, 487 ; necessity of 
 
 public trials, 264. (See, also. " Jury.") 
 Truce, exchange of flags, evidence of 
 
 civil war, 367. 
 
 U 
 
 Ukase, use of, in Russia, 511. 
 
 United States, a government of dele- 
 gated powers, 50 ; liability of Portu- 
 gal to, 202; bound to enforce claim 
 of a citizen, 211 ; responsible for fail- 
 ure, 212; in such a prosecution it is 
 not the agent of the claimant, 213; 
 submitting claim to arbitration cre- 
 ates no estoppel, 214; when liability 
 of arose, 227; ground of liability of, 
 228; duty of, in Armstrong case, 238; 
 wisdom and advantages of govern- 
 ment of, 408 ; marvelous success of, 
 415; legal modes of defense pos- 
 sessed by, 509. 
 
 United States v. Holmes, facts of the 
 case, 125, 141. 
 
 United States v. Armstrong, 191. 
 
 V 
 Vattel on the right of confiscation, 7; 
 on law of custom, 9 ; on rights and 
 obligations, 24; distinction by, be- 
 
748 
 
 INDEX, 
 
 tween rebellion and civil war, 365; 
 
 cited for the prosecution in Savannah 
 
 case, 398. 
 Vallandingham, case of, distinguished, 
 
 468 ; extract from Judge Leavitt's 
 
 opinion in, 468. 
 Van Dyck ais. Metropolitan Bank, 421; 
 
 Judge Porter's argument in, 423. 
 Vindictive damages, in cases of crim. 
 
 con., 688, 693. 
 Virgil, cited by Mr. Wirt, 65. 
 
 W 
 
 Waite, Hon. Morrison R., reference to 
 opinion of, in U. S. v. Cruikshank, 
 
 519- 
 War Amendments. (See Constitution.) 
 War distinguished from revolution, 15 ; 
 levying of, defined, 39; combatants 
 in civil war entitled to rights of, 368 ; 
 privateering under laws of, 385 ; 
 rights of neutrals with respect to pri- 
 vateers in time of, 387 ; status of bel- 
 ligerents, 389; actual existence of, 
 when no defense to piracy, 394 ; def- 
 inition of war, 395 ; when plea of, a 
 confession of treason, 396 ; political 
 results of, 407; power to wage, vested 
 in Congress, 430; events of the war 
 of the rebellion, 431 ; right to jury 
 trials during, 504; reference to laws 
 of, 507 ; war of 1812, reference to 
 State of country during, 506; war 
 never beneficial to a commercial na- 
 tion, 578. 
 Washington, reference to character of, 
 505. 
 
 Webster, Daniel, argument of, in 
 Ogden V. Saunders, 67, 83; defines 
 power of Congress to pass bankrupt 
 laws, 69 ; meaning of term obligation 
 of contracts, remarks on duty of per- 
 forming contracts, 71 ; State bank- 
 rupt laws impair, 72 ; existing law 
 forms no part of contract, 73; con- 
 siders constitutional grants and pro- 
 hibitions, 79; letter to, in case of 
 brig Gen. Armstrong, 232; submits 
 
 the Armstrong case to Napoleon, 222; 
 reference to his eulogy on Washing- 
 ton, 419. 
 Wellesley, Lord, defense of his char- 
 acter by Lord Plunket, 628 ; his ob- 
 ject in preventing the decoration of 
 King William's statue, 630 ; real ob- 
 ject of his visit to the theater, 650. 
 Wharton, Francis, definition of homi- 
 cide, 325. 
 Wife, sacred relationship between hus- 
 band and, 329; consent of wife no 
 qualification of adulterer's guilt, 337; 
 cannot shield him, 339. 
 Wilkes' outlawry case, observations of 
 Lord Mansfield in passing judgment 
 in, 550. 
 Wilkinson, Edward C, circumstances 
 of his arrest and trial, 85 ; defense of, 
 by Seargent S. Prentiss, 87. 
 William III, Prince of Orange, com- 
 parison of, to Tamerlane, 621 ; pan- 
 egyric on, by Lord Plunket, 624; his 
 "Campaign in Ireland a blessing in dis- 
 guise, 626; Lord Wellesley's object 
 in preventing decoration of statue of, 
 630; propriety of such decoration dis- 
 cussed by Mr. North, 647 ; scene in 
 Dublin when the ceremony was for- 
 bidden, 647; Mr. North's reference 
 to Mr. Plunket's panegyric on, 648; 
 panegyric on, by Sir James Mackin- 
 tosh, 600. 
 Williams, Thomas, indictment of, for 
 blasphemy, 551; speech of Thomas 
 Erskine for the prosecution, 554-566; 
 his defense an anomaly in the law, 
 560. 
 
 Wirt, William, argument of, in Gib- 
 bons V. Ogden, 47-66 ; letter to Judge 
 Carr, 49 ; reply to Emmett, 65 ; de- 
 fines rules of constitutional construc- 
 tion, 50 ; distinguishes exclusive and 
 concurrent powers, 51; defines nature 
 and character of patent laws, 59; dis- 
 tinguishes quarantine and police regu- 
 lations, 61; his reply to Emmett, 65. 
 
 Witness, inferences from refusal of, to 
 answer under privilege, 278.