Cornell University Library 
 KF 213.B87B875 
 
 Miscellaneous writings of the late Hon. 
 
 3 1924 024 335 014 
 
 (flnrnpU Ham Bt\^aa\ ICibtary 
 
»1 
 
 Cornell University 
 Library 
 
 The original of tiiis bool< 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/cu31924024335014 
 
4^ 
 
 
 4 
 
 % 
 
 9^rt^^ 
 
 ^y 
 
MISCELLANEOUS WRITINGS 
 
 OF THE LATE 
 
 ys 
 
 A"^ 
 
 HON. JOSEPH P. BRADLEY, 
 
 ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED 
 
 STATES, WITH A SKETCH OF HIS LIFE BY HIS SOS, 
 
 CHARLES BRADLEY, A.M. 
 
 REVIEW OF HIS "JUDICIAL RECORD," 
 
 WILLIAM DRAPER LEWIS, 
 
 EDITOR OF THE "AMERICAN LAW REGISTER AND REVIEW,' 
 OF PHILADELPHIA, PA., 
 
 AN ACCOUNT OF HIS "DISSENTING OPINIONS," 
 
 BY THE LATE 
 
 A. Q. KEASBEY, Esq.. OF NEWARK, N. J. 
 
 EDITED AND COMPILED BY HIS SON, 
 
 CHARLES BRADLEY. 
 
 NEWARK, N. J.: 
 L. J. Hardham, 243-S Market Street. 
 
 1901 
 
COPYKIGHT 1901 BY CHAELB8 BRADLEY. 
 
CONTENTS. 
 
 Frontispiece. 
 
 Preface, ....... vii-xii 
 
 Biography, ....... i 
 
 Judicial Record, . . . . ij 
 
 PissENTiNG Opinions, • • • • • 33 
 
 The Legal Tender Cases in 1870, and a " Statement 
 OF Facts" in Relation Thereto, by the Ma- 
 jority OF THE United States Supreme Court 
 
 at That Time, ...... 45 
 
 Personal, Political, Historical and Philosophical. 
 Essays, Letters and Historical Notes. 
 
 Aaron Burr, ...... 77 
 
 A Love Letter, . . 78 
 
 Admission to the Bar, . . • ■ 79 
 
 A Picture, ...... 80 
 
 Translation of Lucan's Eulogy on Pompey, . 82 
 
 To My Sister Mary, ...... 83 
 
 Dreamland, . .... 84 
 
 The Marital Relation, ..... 86 
 
 Rutgers Alumni Dinner, ... 88 
 
 Equality, ....... 90 
 
 Political Economy, .... 93 
 
 Fenianism, ...•••• 95 
 
 Political Expressions, ..... 97 
 
 The Constitutional Amendment [XIII], 151 
 
 Opinions in The Electoral Commission, 1877, . 165 
 
 Electoral Commission, . . 217 
 
 Electoral Commission— Reply to Charges, 220 
 Electoral Commission, .223 
 
 Lecture on Law, 225 
 Organization of the United States Circuit Court of Appeals 
 
 for the Third Circuit, .367 
 
CONTENTS. 
 
 Thomas Hobbes, 
 
 FAGB. 
 
 283 
 
 286 
 287 
 
 Age of Egyptian Civilization, 2°S 
 
 Macaulay, • ■ • 
 History, ... 
 
 Carlyle's " French Revolution,'' 290 
 
 Stowe .292 
 
 History of Washington Park, Newark, N. J., 294 
 
 Truth, .298 
 
 Variety of Intellectual Capacities, 299 
 
 Will: Self-Control, . . . . ■ 30o 
 
 Experience, or Self-Improvement, 3°' 
 
 Principles Should Be Fixed, 303 
 
 Family Happiness, 305 
 
 Home, Defined, ... .305 
 
 Happiness, .... 306 
 
 Time, . . 308 
 
 The Teaching of Children, 31° 
 
 Fit Expressions, ... 3" 
 
 Eloquence, .... 3'3 
 
 Style, . . .314 
 
 Metaphysics, . . 3'^ 
 
 Upham on the Mind and its Disorders, . 318 
 
 The Human Mind, . . . 321 
 
 The English Guttural U, 322 
 
 Er, By, Neah, 323 
 
 Freedom of Thought, 324 
 
 Astronomical, Scientific and Mathematical. 
 " Studies," Letters, &*c. 
 
 The First Steam Engine in America, 329 
 
 Easter Day and Court Terms, 33 1 
 
 Perpetual Calendar, .... 333 
 
 Table for Finding Mean Time of New Moon, 334 
 
 New Calendar Proposed, 335 
 
 Letter to the Secretary of the Treasury, .341 
 
 Recurrence of Ice Periods in the Northern Hemisphere, 346 
 
 Standard of Weights and Measures, . . 347 
 The Force of Water as Used in Hydraulic Machinery in 
 
 Mining, ...... 350 
 
CONTENTS. 
 
 Religious and Moral. 
 
 ' 
 
 Essays and Letters. 
 
 
 Religion in the Constitution, 
 
 ■ 357 
 
 Christianity —Its Immortality, . 
 
 3S9 
 
 Noah's Ark, .... 
 
 360 
 
 The Moral Faculty, 
 
 361 
 
 Precept and Example, 
 
 364 
 
 Example, 
 
 366 
 
 Reformers, . ... 
 
 ■ 367 
 
 The Lord's Prayer, 
 
 368 
 
 The Bible, ... 
 
 370 
 
 Translations, .... 
 
 372 
 
 The English Translation of the Bible— I, . 
 
 ■ 373 
 
 II, 
 
 376 
 
 The Old English Bible, 
 
 378 
 
 Easter Day, 
 
 382 
 
 The World is not Eternal, . 
 
 • 383 
 
 Year and Day of Christ's Crucifixion, 
 
 386 
 
 The Date of the Crucifixion, 
 
 • 394 
 
 Day of the Crucifixion, 
 
 395 
 
 Inspiration, . . . . 
 
 ■ 398 
 
 Letter to Amzi Dodd, 
 
 400 
 
 Inerrant or Infallible Bible, 
 
 401 
 
 Sermons, .... 
 
 402 
 
 Religious Forms, .... 
 
 403 
 
 Danger of Abrogating Religious Forms, 
 
 405 
 
 The Sabbath and Sunday, . 
 
 407 
 
 On the Existence of a God, 
 
 422 
 
 Esoteric Thoughts on Religion and Religionism 
 
 • 423 
 
PREFACE. 
 
 The death of my father, Joseph P. Bradley, on 
 January 22, 1892, placed in my hands as his sole 
 executor, all his papers and MSS., a large and varied 
 collection. Appreciating its value and importance, I 
 have been engaged for some years in examining and 
 arranging it in convenient form, and after submission 
 to several distinguished and learned friends of my 
 father, I have, at their earnest sohcitation, under- 
 taken to gather together those heretofore unpublished 
 and unspoken thoughts of his, Avhich he habitually 
 wrote down in all manner of memoranda, record and 
 common-place books, as they became settled convic- 
 tions of his mind.* 
 
 To these I have added such public addresses and 
 lectures as seem pertinent to such a collection. But I 
 have endeavored to eliminate all strictly legal sub- 
 jects,t except the lecture before the law students of 
 the University of Pennsylvania, it being the purpose 
 of this volume to record in a permanent way his ac- 
 quisitions in other departments of thought than the 
 law. His legal reputation will be judged by his opin- 
 
 'See essay, "Experience or Self Improvemeiit.' 
 t See note to Preface. 
 
y{{{ PREFACE. 
 
 ions from 9th Wallace to 141st United States, which, 
 in the language of Chief Justice Fuller, "constitute a 
 repository of statesman-like views and of enlightened 
 rules in the administration of justice, resting upon the 
 eternal principles of right and wrong, which wiU 
 never pass into obHvion." 
 
 In presenting these thoughts of Mr. Justice Bradley, 
 it should be borne in mind, therefore, that they include 
 only such as are appropriate to a collection of miscel- 
 lanies. Much, probably three-quarters, of the time 
 occupied in studies distinct from those incident to the 
 prosecution of his profession, was devoted to mathe- 
 matics, his favorite subject, and the results of his 
 thoughts and work in that department of science are 
 found recorded in many places, whole blank books 
 being filled and reams of paper covered with solutions 
 and discussions of various problems, indicating pro- 
 found knowledge of and fanuliarity with the principles 
 of astronomical, geometrical and physical mathe- 
 matics. But the very nature of the work is such as 
 to preclude its introduction into these pages. Still 
 certain entries in his "Records " have seemed worthy 
 of preservation, if not for their own novelty, at least 
 as an index to this phase of the mental acquirements 
 of this many-sided man. 
 
 That these studies were not superficial, but deep 
 and thorough, is evidenced by an examination of his 
 
PREFACE. ix 
 
 correspondence, in which is found the letters of expert 
 engineers, practical mechanics and even college profes- 
 sors, soliciting his advice and his judgment on mechan- 
 ical and scientific devices and methods. 
 
 It is evidenced, also, as applied in his dissection of 
 complicated patent litigation before the Supreme 
 Court of the United States, in which his pre-eminence 
 has been so forcibly maintained by that leader among 
 great American patent lawyers, Mr. George Harding, 
 of Philadelphia, who says : "In that branch of law^ 
 (patent), as a judge, he has never been surpassed, if 
 he has been equalled. No matter w^hat department of 
 the arts was involved, mechanics, chemistry, electricity 
 or steam engineering, he mastered the subject." 
 
 Still another subject to which he devoted much 
 time and labor was genealogy.* To a complete his- 
 tory of his own family, with all its ramifications in 
 this country, involving a large correspondence and 
 personal inspection of old town records and docu- 
 ments in Connecticut, he added the compiling of the 
 history of his wife's family and connections (Horn- 
 blowers, Bumets, Gouvemeurs, etc.), besides the records 
 of many collateral branches, all duly preserved in 
 MSS., necessitating that manual and mental labor 
 and application that so astonished those who only 
 knew him by his work as lawyer and judge. As his 
 
 * The Bradley Family of Fairfield." Published privately in Newark 
 N. J., 1894. 
 
i PREFACE. 
 
 friend and eulogist, Hon. Cortlandt Parker, says : "I 
 am free to say that it has not ever happened to me to 
 meet a man informed on so many subjects entirely 
 foreign to his profession, and informed not slightly or 
 passably, but deeply — as it seemed, thoroughly on 
 them all. Literature, solid or light, in poetry or 
 prose ; science ; art ; history, ancient and modem ; 
 political economy ; hieroglyphics ; modem languages, 
 studied that he might acquaint himself with great 
 authors in their own tongues ; the Hebrew and kindred 
 tongues, that he might perfect himself in biblical study; 
 mathematics, in knowledge of which he was excelled 
 by few — all these were constantly subjects of his 
 study." 
 
 It was this all-absorbing thirst for kno\(rledge, this 
 determination to master and digest w^hatever subject 
 came under his observation, that forced him to devote 
 his every hour to some new^ acquisition, and yet with- 
 out detriment to his reputation and obligations as 
 an occupant of that great and laborious office which 
 he held. It is fortunate that he has left us some 
 monuments of all that study, of that great intellect. 
 Posterity may justly accord him that niche in the 
 history of the Supreme Court to which he is entitled. 
 This record will preserve in some small degree the 
 results of those hours of midnight toil — though to him 
 a pleasure — which only his family knew of, and which 
 it would be criminal to consign to the waste-paper 
 basket. 
 
PREFACE. Xl 
 
 Previous to Mr. Justice Bradley's ascending the 
 Bench in 1870, he had for thirty years practiced law 
 in Newark, N. J. While thus prosecuting his profes- 
 sion, he was not neglecting his duties as a citizen or 
 refusing the benefit of his wide influence and know- 
 ledge to religious, educational and philanthropical 
 organizations or objects. On the contrary, he was 
 an active participant, as ofl&cer or director, in financial 
 or other business corporations, and the frequent ad- 
 viser in the affairs of educational institutions, as 
 trustee or otherwise. Always pronounced, but not 
 extreme in his views, he w^as called on to address his 
 fellow^-citizens whenever the necessities of the emer- 
 gency seemed to require the peculiarly forceful and 
 thoughtful presentation of a serious public question, 
 with which his speeches are imbued. 
 
 We have, therefore, included some few of these 
 addresses, as an illustration of that force which made 
 him a power in the community. Then, turning to 
 another mental characteristic, we present some speci- 
 mens of his religious and philosophical essays and 
 discourses— a department in which he was most happy 
 in conveying his ideas to an audience, imparting life 
 and interest to an otherwise heavy subject. With 
 tbese there are intermingled certain miscellaneous say- 
 ings, exhibiting the versatility of his mind and accom- 
 plishments. In truth, he was the personification of 
 
XU PREFACE. 
 
 Bacon's famous epigram : " Reading maketh a fidl 
 man ; conference, a ready man, and writing, an exact 
 man." 
 
 I also include in these pages the secret history of 
 the conferences of the U. S. Supreme Court, in the 
 form af a "Statement of Facts," signed by the major- 
 ity of the Court, relating to the re-hearing and final 
 decision of the "Legal Tender" cases, in 1870. This 
 document, now published for the first time, should 
 emphatically dispose for all time of the erroneous and 
 unjust aspersions cast by some writers and pubUcists 
 upon the honor and action of the Court at that time. 
 
 CHARLES BRADLEY. 
 
 Newark, N. J., 1900. 
 
 Note. — Further reflection has produced the conviction that two papers 
 on the judicial career of Mr. Justice Bradley could be appropriately inserted 
 in these pages, and it is with undisguised pleasure that I have introduced 
 them at the beginning of the volume. 
 
 The first, entitled "The Work of Mr. Justice Bradley," by William 
 Draper Lewis, Associate Editor of The American Law Register and Review, 
 of Philadelphia, Pa., and the second, "Dissenting Opinions — Mr. Justice 
 Bradley," by A. Q. Keasbey, of Newark, N. J. 
 
 To both of these gentlemen — the latter having since passed away — I 
 publicly acknowledge the deep sense of my obligations and gratitude. 
 
JOSEPH P. BRADLEY. 
 
 Joseph P. Bradley was born March 14, 1813, at 
 Berne, Albany County, N. Y. His ancestors for gener- 
 ations had been farmers and, his father, Philo Bradley, 
 followed in their footsteps. Hence his early years 
 were passed in the laborious but healthful duties of a 
 farmer's son. His early schooling consisted of a few 
 months in the winter of each year at the country 
 school-house, but his natural aptitude for learning 
 soon exhibited itself so strongly that the attention of 
 the Reformed Dutch minister of the parish was attrac- 
 ted to him, and through his instrumentality he w^as 
 afforded the assistance of the church in obtaining a 
 college education. After a short period spent in teach- 
 ing school for the purpose of raising a little money, 
 and under the tutelage of Mr. Myers, the minister 
 above referred to, he prepared for entering Rutgers 
 College, an institution identified with the Dutch 
 Church, at New Brunswick,N. J. Joining the freshman 
 class in September, 1833, he soon found himself able 
 to enter the class above, and hence became a member 
 of the famous class of 1836. 
 
 After graduation he secured the position of Prin- 
 cipal of the Millstone, N. J., Academy, but not long 
 after he was persuaded by two of his class-mates- 
 Frederick T. Frelinghuysen and Cortlandt Parker— to 
 go to Newark, N. J., where they resided, and accept a 
 position in the office of Mr. Archer Gififord, a leading 
 lawyer and at the time Collector of the Port. Arriv- 
 ing in Newark, November 2, 1836, he immediately 
 
2 MISCELLANEOUS WRITINGS. 
 
 entered Mr. Gifford's office and began the study of 
 law. The salary of his office as Inspector of Customs 
 was sufficient to defray his expenses until his admis- 
 sion to the Bar, in November, 1839. In May, 1840, 
 he formed a business connection with Mr. John P. 
 Jackson, and from that time he had constant employ- 
 ment in his profession. 
 
 Marrying in October, 1844, Mary, the youngest 
 daughter of the late Chief Justice Homblower, of New 
 Jersey, his home became the centre of a wide circle of 
 friends. 
 
 Devoting himself assiduously to his profession, his 
 ability and force soon made themselves felt and his 
 services were sought after by the most powerful 
 private and corporate interests of the State, until he 
 became, admittedly, the leader of the Bar in New 
 Jersey, and through his frequent appearance in the 
 courts of the United States, earned even a wider, if 
 not a national reputation. 
 
 The opportunity presenting itself. President Grant's 
 attention w^as called to his pre-eminent fitness for the 
 vacancy then existing on the Bench of the Supreme 
 Court of the United States, and on February 7, 1870, 
 he nominated him as an Associated Justice of that 
 court, and his nomination was confirmed by the 
 United States Senate, March 21, 1870. 
 
 At the mature age of 57 years, and after thirty 
 years of active and continued pursuit of his profession, 
 leavened with intellectual diversions in almost every 
 scholarly path, broadened by foreign travel and in 
 robust health, he was singularly well prepared for the 
 burdens of his office and the discharge of its duties 
 and responsibilities. 
 
BIOGRAPHY. 
 
 It was fortunate that it was so, for his associates, 
 with whom he must cross swords in judicial confer- 
 ence, were concededly distinguished for their ability 
 and reputation. Salmon P. Chase— then Chief Justice 
 —Noah H. Swayne, Samuel Nelson, Nathan Clifford, 
 David Davis, Samuel F. Miller and Stephen J. Field, 
 all tested in the crucible of public life and experience— 
 these were the men on whom he must impress the 
 stamp of his pow^er and force, or sink into judicial 
 obscurity. That they were "foemen w^orthy of his 
 steel," he was proud to acknowledge. That he ob- 
 tained their recognition as a peer his, "Judicial Record" 
 demonstrated. And the questions quickly coming 
 before the Court, as the result of the war and recon- 
 struction periods, soon gave him the opportunity to 
 establish his position on the Bench — a status never 
 after questioned, even amid the changing personnel of 
 the court. 
 
 Immediately removing from Newark, he purchased 
 the large residence, No. 201 I Street, built by Stephen 
 A. Douglas and occupied by him till his death. Here 
 he lived for twenty-two years, dispensing a generous 
 hospitality and enjoying, when opporttmity permitted, 
 the social life of the Capital. Many old friends sur- 
 rounded him. In the Executive Department of the 
 Government, George M. Robeson, Secretary of the 
 Navy, was an intimate and welcome guest at his 
 house. In the Legislative Department were Senators 
 John P. Stockton and Frederick T. Frelinghuysen, 
 both old friends and contemporaries at the Jersey Bar, 
 while the latter, more than a friend, had been his 
 companion since college days. Thus, he and his family 
 were soon at home in Washington and quickly became 
 identified with its interests and life. 
 
4 MISCELLANEOUS WETTINGS. 
 
 The circuit allotted to him, the fifth, embracing all 
 the Southern States, except the Virginias and Caro- 
 linas, necessitated his holding Court in their principal 
 cities every spring, and the long journeys in warm 
 weather were a severe tax on his strength. Notwith- 
 standing, for ten years (until his circuit was changed), 
 he never failed every year to visit and hold Court in 
 either Galveston, San Antonio, Houston and Dallas, 
 Texas ; New Orleans, Jackson, Mobile, Jacksonville, 
 Savannah or Atlanta, usually alternating yearly be- 
 tween the Texas cities and Ne^v Orleans, and the 
 others named. 
 
 Of course, the labor incident to this circuit work 
 was very great, but his previous knowledge of the 
 Civil Law, and French and Spanish jurisprudence, 
 enabled him to dispatch it rapidly, and as he had 
 reason to know, to the great satisfaction of the 
 Southern Bar. This large jurisdiction vridened his 
 acquaintance and was the means of creating many 
 warm friendships. In fact the universal courtesy 
 which was extended to him by the citizens of the 
 South, w^as a source of great gratification to him, and 
 he was profuse (in the family circle) in his expressions 
 of gratitude to the gentlemen w^ho invariably enter- 
 tained him at their houses. This was especially pleas- 
 ing in view of his well-known Northern antecedents 
 and opinions, and the writer has personal knowledge 
 of his keen regrets, when his assignment to the Third 
 Circuit became proper. 
 
 For fifteen years or more, he spent his summers at 
 Stowe, Vermont — a small village situated in the heart 
 of the Green Mountains — the climate of which was 
 most healthful and invigorating, and he became de- 
 
BIOGRAPHY. 5 
 
 Yotedly attached to it. Generally going North late in 
 June, he would pay short visits to his sons in Newark, 
 and his daughter in Paterson, N. J., and then stopping 
 at "The Kaaterskill " in the Catskills, where he 
 enjoyed, especially, the companionship of his friend 
 George Harding, of Philadelphia, he would make his 
 w^ay to Stow^e and remain till October, returning 
 directly to Washington to be present at the opening 
 of the Fall Term of Court. At Stowe it was that 
 he had time and leisure to pursue so many of his favor- 
 ite studies, and indulge his literary taste to the full. 
 Taking w^ith him his choice books, he surrounded him- 
 self with the atmosphere of literature, and to my 
 mind, passed the happiest days of his later life. 
 
 Always a great reader and lover of books. Judge 
 Bradley had early accumulated a large and varied 
 library, embracing nearly every department of litera- 
 ture, which was a source of continual pleasure and 
 pride to him. By constant additions, this library be- 
 came very great, numbering about six thousand vol- 
 umes. In addition, his law library, aggregating some 
 ten thousand volumes, filled his home to over-flowing. 
 It is interesting to know that this law^ library was 
 secured by the Prudential Insurance Company, of 
 Newark, N. J., and is maintained complete and entire, 
 even to the pictures on the walls, in that company's 
 magnificent structure in that city, erected on land 
 owned by Judge Bradley for many years, and sold to 
 it three years before his death. 
 
 Socially, Judge Bradley was a charming compan- 
 ion and notwithstanding the inroads on his time, 
 enjoyed the refined surroundings of his position. Thus 
 ofiicially and personally brought into contact with 
 
6 MISCELLANEOUS WRITINGS. 
 
 men distinguished in the various pursuits of life, his 
 social life was most interesting. . A characteristic 
 habit consisted of his drawing a diagram of the table, 
 immediately on his return from a dinner, with the 
 names and seats of all the guests, adding a descriptive 
 line, explanatory of the occasion, and pasting these 
 cards in a book, which the writer now possesses, 
 embracing a record of one hundred and eighty-nine 
 dinners and including, of course, only formal entertain- 
 ments. This unique collection, covering a period of 
 twenty years, gives an idea of his social surroundings, 
 now interesting to peruse. Of course, the judicial 
 element prevails in the guests at most of the boards, 
 and varies with the changed personnel of the Court 
 and Bar of the country during that period, as w^ell as 
 the White House circles under five administrations — 
 Grant, Hayes, Arthur, Cleveland and Harrison. And 
 interspersed with distinguished diplomatic, army and 
 naval names, are those of many known throughout the 
 world for their political, scientific or literary achieve- 
 ments. Here w^e see him seated next to George Ban- 
 croft, Lord Houghton, Lord Coleridge ; there, at the 
 same board with Archdeacon Farrar, Dr. Oliver W. 
 Holmes, James Russell Low^ell and Lord Herschell ; 
 again, the guests include Robert C. Winthrop and 
 Mr. Joseph Chamberlain. And so on, either at his 
 own table or as the guest of others. Such were the 
 character of the men whom he met and talked with, 
 and with his receptive mind the wealth and variety of 
 information absorbed can be better imagined than 
 described. And thus his life, though laborious to a 
 degree, moved pleasantly along, with two celebrated 
 exceptions. 
 
BIOGRAPHY. 7 
 
 Those were occasions which tested the metal that 
 was in him, and his character stood the strain with- 
 out developing a flaw. I refer to the Legal Tender 
 Decision and the Electoral Commission. Subjected to 
 the most unjust and cruel criticism, charged by ignor- 
 ant journalists with almost every crime in the calen- 
 dar, his nervous and sensitive nature suffered acutely. 
 But the independent and self-reliant forces of his 
 character — which had made him what he was — ^now^ 
 stood him in good stead, and conscious of the recti- 
 tude of his motives and with a firm faith in the 
 correctness of his official opinions and acts, he cour- 
 ageously faced all detraction, all threats, all denunci- 
 ation, and stood like a rock against the impotent 
 assaults of enraged and disappointed partisans. 
 
 The recent death of Mr. Justice Field, who was his 
 colleague on the Supreme Court Bench at the time, 
 releases me from a silence imposed by Judge Bradley 
 and Judge Strong, and enables me to introduce in 
 these pages a " Statement of Facts " relating to the 
 order of the Supreme Court of the United States for a 
 re-argument of the Legal Tender question in April, 
 1870, prepared by the majority of the Court at that 
 time — ivhich is an absolute refiitation of the unjust 
 imputations cast upon his action in that matter by 
 many writers,* some of whom were inspired by par- 
 tisan antipathy and others by ignorance of the facts, 
 and which have gained currency by reason of their 
 long exemption from challenge. As introductory to 
 
 * " The life of S. P. Chase." by J. W. Shuckers, Chapter XXVIII. 
 
 Paul Leicester Ford's edition, "The Federalist." Introduction, p 
 XVIII. 
 
 "Congressional Government," by Woodrow Wilson. Introductory, p- 
 XXXVIII. 
 
8 MISCELLANEOUS WRITINGS. 
 
 the "Statement" I have, with the author's consent, 
 quoted largely from a letter of Senator George F. 
 Hoar, of Massachussetts, refuting the charge that 
 President Grant had, by the appointment of Judges 
 Bradley and Strong, " packed " the Supreme Court for 
 the purpose of securing the reversal of the Court's 
 decision in the case of Hepburn vs. Griswold, other- 
 wise known as the " Legal Tender " case. 
 
 The second occasion referred to — ^the Electoral 
 Commission — is briefly touched on by himself in the 
 accompanying volume. But his account gives little 
 idea of the bitterness of feeling then existing, and the 
 severe ordeal through which he passed and of which I 
 have personal knowledge. Having attended the Col- 
 umbian Law School, in Washington, during the winter 
 of 1876 and 1877, 1 was fully aware of the suppressed 
 
 Note. — Prof. Woodrow Wilson, having had his attention called. 
 by the editor, to the inaccuracy of his statement, wrote the following 
 very manly and satisfactory acknowledgment : 
 
 Princeton, N. J., December 20, 1900. 
 Mr. Charles Bradley, Newark, N. J.: 
 
 My Dear Sir : — I very much appreciate your letter of the six- 
 teenth. I have for some time been convinced of the unfair imputa- 
 tions of the passage to which you refer in my "Congressional 
 Government," but I have never had an opportunity of revising the 
 text since its publication. It has many times been reprinted, but no 
 change has been made in any part of it since its original appearance. 
 Stereotyped plates are regarded by publishers as a very rigid finality. 
 The change necessary in that passage would be very considerable, 
 and I have never had a chance to make it. I very much hope that 
 before very long I shall be allowed to revise at least that part. 
 
 Thanking you again for thus taking it for granted that I wished 
 to know and speak the truth. 
 
 Very sincerely yours, 
 
 Woodrow Wilson. 
 
BIOGRAPHY. 9 
 
 excitement which pervaded all classes, and when 
 finally my father w^as chosen to complete the organiz- 
 ation of the commission, he, as well as all of his 
 family, keenly regretted that the lot had fallen to him, 
 thereby becoming (unjustly), in a sense, the final 
 arbiter. I say unjustly because he was by belief, by 
 association, by past history, as staunch a Republican 
 as any of those members of the Commission who 
 were deliberately selected by reason of their known 
 political predilections. And yet, he alone Avas expected 
 to sink all political bias and act the judge merely. 
 He realized ftdly the delicate position he occupied, and 
 foresaw that w^hatever course he took w^ould subject 
 him to criticism. But that he would be assailed with 
 all the venom of a serpent, that he would be charged 
 openly with corruption, that he would be threatened 
 with bodily injury, aye, even to the taking of his life — 
 this he did not forsee nor believe possible. And yet 
 such was the case. As the proceedings of the commis- 
 sion advanced and the probable outcome was seen, 
 the fury of the Democratic press, led by that scorpion 
 of journalism, the New York Sun, knew no bounds. 
 And this continued vilification soon affected the excit- 
 able minds of irresponsible individuals, until he was 
 inundated by a flood of vulgar and threatening com- 
 munications which w^ould have unnerved a less brave 
 and courageous man. 
 
 He soon ceased to either read the press or his mail 
 and absolutely declined to see or converse with the 
 horde of callers at his house. As a matter of fact, he 
 was practically a hermit from the hour he left the 
 sittings of the commission one day until it met the 
 next, even his family seeing him only at meals. As 
 
10 MISCELLANEOUS WRITINGS. 
 
 an inmate of his house during the whole period of the 
 commission's existence, I speak with authority when 
 I say that the reports of his consultations with prom- 
 inent Republicans and members of the commission are 
 false— false not only as to the fact, but the inferences 
 which have been drawn from these false reports, and 
 especially that venomous statement that he had read 
 an opinion favorable to Mr. Tilden in the Oregon case 
 to one or two of his Democratic associates, but that 
 over-night he had been closeted with Republican mag- 
 nates and came into Court in the morning and voted 
 and read an opinion in favor of Mr. Hayes. This 
 statement having been credited to Judge Field, w^hether 
 correctly or not, he called upon that judge to either 
 prove it or retract it. Judge Field, then in California, 
 wrote him saying that his remarks had been misinter- 
 preted and exaggerated, and that he had said " noth- 
 ing derogatory to his honor or integrity." 
 
 That he gave the most conscientious consideration 
 to every point raised, and that his conclusions w^ere 
 irresistibly correct, is best evidenced by his opinions 
 elsew^here printed in this volume. That he exhibited 
 a courage not surpassed by any battle-field hero can 
 only be appreciated by those w^ho knew personally 
 the bitterness of the time. That the threats against 
 his life were not idle, and that the anxiety of his 
 family for his personal safety was not exaggerated, 
 became evident when we found that detectives, with- 
 out solicitation or his knowledge, had been detailed 
 by the then Secretary of the Navy to guard his house 
 and his person. Fearless in the execution of the trust 
 reposed in him, he had the satisfaction of living long 
 enough to see his conduct approved by all fair-minded 
 
BIOGRAPHY. 11 
 
 men and receive the sanction of popular opinion in 
 the condemnation of Mr. Tilden's "cypher despatch " 
 methods and that gentleman's permanent retirement 
 to private life. But amongst the many evidences of 
 endorsement received by him from all over the country^ 
 none appealed to him more than a testimonial of 
 confidence and approval tendered him by the leading 
 professional and business men of his old home — 
 Newark, N. J. (Note). Blessed with great vigor of 
 body and mind, he rounded out his long career with 
 fullness and satisfaction, ever gro-wing in judicial 
 strength and reputation. 
 
 The death of his eldest son, Wilham H. Bradley, in 
 1889, at the time an active lawyer in his old home 
 at New^ark, N. J., w^as a great blow, but he showed 
 no w^eakening of his powers until in the spring of 
 1891, -when an attack of "la grippe" left him much 
 enfeebled. He failed to recuperate his strength that 
 summer and returned to Washington in October much 
 debUitated. He took his seat on the Bench, however, 
 at the opening of Court, but in a few^ w^eeks w^as 
 compelled to retire by a general breaking up of his 
 system. Fully realizing his approaching end, he 
 calmly prepared himself and his affairs for the inevit- 
 able, and finally, peacefully passed away early on the 
 morning of January 22, 1892, surrounded by all his 
 family. Had he lived till March 14, he w^ould have 
 been 79 years old. 
 
 A man of the strongest personality— of deep feeling, 
 tho' undemonstrative — his friendships were sincere and 
 binding, and his family relations were most delightful. 
 
 And so ended a usefiil Christian life. May we 
 emulate his sterling worth and character and strive 
 to make as good an American citizen. 
 
12 BIOGRAPHY. 
 
 (Note.) 
 
 "Newark, N. J., March 7, 1877. 
 
 "Hon. Joseph P. Bradley, 
 
 "Justice U. S. Supreme Court. 
 
 '• Dear Sir : — Your friends and neighbors in this community 
 have given you their sincere sympathy in your discharge of the duties 
 imposed upon you as the arbiter of the Electoral Commission. 
 
 "No weightier responsibility was ever incurred by any citizen 
 than rested upon your casting vote, but your course has been watched 
 by us with more of affectionate interest than of anxiety. 
 
 " We had a life-long assurance that whatever of so-called polit- 
 ical bias you might make manifest would be only the expression of 
 deep-rooted convictions of the true interpretations of the Constitu- 
 tion and of devotion to republican government in its essence and 
 purity. 
 
 "We offer you our heart-felt congratulations, mostly for this, 
 that it has given to you to distinguish a just line between the power 
 and right of the States to choose a President and the unholy claim 
 of one branch of Congress to usurp that power. 
 
 " We are aware that in your action you have incurred virulent 
 partisan censure. The road to fictitious greatness, to pretense 
 instead of reality, lay in the other direction. The trial must have 
 been severe, as the temptations you avoided, and the difficulties in 
 your path were great, we the more congratulate ourselves that 
 Newark and New Jersey, in the persons of yourself and Senator 
 Frelinghuysen, have had so large and noble an office in the adjust- 
 ment of a controversy so solemn as that of the right of a State to 
 vote for the Presidency by its own methods and independent of the 
 dictation and surveillance of Congress. The tendency of the House 
 of Representatives to usurp judicial and executive functions is a 
 danger far greater than any mere change of party rule. 
 
 " But it is not our purpose to discuss the great issue you have 
 already adjucated. We only desire to say to you in deep sincerity, 
 that here at your home, where you have gone in and out before the 
 people for many years, the old love and respect are builded up 
 stronger by a new admiration of firmness in judgments that will be 
 historic as they are heroic, and mark an era in the Constitutional law 
 of our beloved country. 
 
BIOGRAPHY. 
 
 13 
 
 "With all wishes for your health 
 your attached friends : 
 
 "Marcus L. Ward. 
 "Joseph A. Halsey. 
 "Silas Merchant. 
 '■Amzi Dodd. 
 "W. A. Whitehead. 
 "Thos. T. Kinney. 
 "J. Whitehead. 
 "Abrm. Coles. 
 "Charles S. Graham. 
 " Joseph Ward. 
 "Isaac A. AlXing. 
 "Martin R. Dennis. 
 "John H. Kase. 
 "Samuel Atwater. 
 "William A. Newell. 
 "O. F. Baldwin, 
 "h. n. congar. 
 " Ira M. Harrison. 
 "A. M. Woodruff. 
 "N. Perry. 
 "Theo. Macknet. 
 "Francis Mackin. 
 "j. d. poinier. 
 " William Ward. 
 "Thomas B. Peddie. 
 "Bethuel L. Dodd. 
 " W. A. Meyer. 
 "Oba. Woodruff. 
 "William H. Kirk. 
 
 and happiness, we remain 
 
 "Lewis C. Grover. 
 "S. H. Pennington. 
 "Joseph N. Tuttle. 
 "Daniel Dodd. 
 "William B. Mott. 
 "John C. Beardsley. 
 " S. G. Gould. 
 "Cortlandt Parker. 
 " P. H. Ballantine. 
 "A. Grant. 
 " h. j. poinier. 
 " William T. Mercer. 
 " Henry J. Yates. 
 "James H. Halsey. 
 "Chas. G. Rockwood. 
 "A. L. Dennis. 
 "Lewis R. Dunn. 
 "Theo. P. Howell. 
 "James B. Pinneo. 
 "j. m. durand. 
 "John R. Weeks. 
 •■A. Q. Keasbey. 
 "John W. Taylor. 
 " George A. Halsey. 
 "Joseph Coult. 
 "John Hill. 
 "Elias O. Doremus. 
 "Sanford B. Hunt." 
 
THE "JUDICIAL RECORD" 
 
 OF THE LATE 
 
 MR. JUSTICE BRADLEY. 
 
 BY WILLIAM DRAPER LEWIS, 
 OF FHILADBLPHIA, PA. 
 
 The death of Mr. Justice Bradley removes one who, 
 for the past twenty-one years, has been a member of 
 "the ideal tribunal." No one but his fellow-judges, 
 who have come in daily contact with him, can rightly 
 estimate the extent of the influence which he had on 
 the development of jurisprudence ; for we are told 
 that it is in the consultation room that merit, learn- 
 ing and the clearness of one's ideas are best tested. 
 No show^ of knowledge w^hich one does not possess, 
 no glitter w^hich apes ability, can long deceive those 
 with w^hom we are engaged in a common intellectual 
 labor. And yet, even if we did not have the testi- 
 mony of his colleagues, we could not have failed to 
 realize the weight in the councils of a court which 
 that man must have -who, like the late Justice, evinced 
 in his written opinions such an intimate acquaintance 
 with all branches of the common and constitutional 
 law^ of his own cotmtry and with the judicial systems 
 of continental Europe, and who showed by the accur- 
 acy of his citations in oral statements of the law 
 during the argument of a case, the wonderful reten- 
 tiveness of his memory. 
 
16 MISCELLANEOUS WRITINGS. 
 
 The members of the profession have two sources 
 from which they can judge a judge ; the way in which 
 he conducts the business of the court while on the 
 bench, and his written opinions. The first, in a mem- 
 ber of an appellate court, is the lesser of the two in 
 importance, and yet no mention of the late Justice 
 would be complete wthout some notice of his mar- 
 vellous aptitude for what one may call "judicial 
 business." It was wonderful to see the quickness and 
 unfailing accuracy with w^hich he applied abstract 
 principles of law to the concrete cases which came be- 
 fore him in the Circuit Court. The highest compli- 
 ment which a Pennsylvanian could give -was paid to 
 him by one of the leading members of the bar of that 
 State, when he said : "In the manner of Judge 
 Sharswood, Justice Bradley cleared the list." 
 
 But it is from his reported opinions, and especially 
 his opinions in cases involving the construction of the 
 Constitution, that Mr. Justice Bradley will live in 
 history. In a short time, so quickly do we forget the 
 minor points of a great man's work, by these con- 
 stitutional opinions alone will he be judged. Whether, 
 as time passes, that judgment will become more or 
 less favorable, depends largely on whether the future 
 members of the Court follow his conceptions of the 
 true meaning of the important clauses of the Consti- 
 tution. For w^ith our judiciary, as with mankind in 
 general, greatness which comes from " ideas " endures 
 only so long as those ideas influence human thought 
 or conduct. 
 
 Nothing will show us more clearly the point of 
 view from which Mr. Justice Bradley regarded consti- 
 tutional questions than an analysis of some of the 
 
"judicial record." 17 
 
 opinions and dissents written by him in the more im- 
 portant cases which came before the Supreme Court 
 during his term of office. To examine first : 
 
 The Slaughter House Cases.— Few cases have 
 been considered by the Supreme Court with a more 
 abiding sense of their importance ; few^ seem to be 
 fraught with greater peril to the Hberties of the indi- 
 vidual citizen; few have had such little practical 
 effect. The reason for this will probably be found in 
 the fact that what the Court actually decided was 
 not, as a constitutional question, of great importance. 
 At the same time, the opinion of the Court contained 
 statements of constitutional law^ of great moment. 
 But to-day the dicta of the minority more nearly 
 represent the attitude of the members of the Supreme 
 Bench than do the dicta of Mr. Justice MiUer, who 
 spoke for the majority of his brethren. That the 
 opinion of the Court w^ent beyond what was actually 
 necessary for the decision of the case is evident. The 
 majority of the Court held that the Act of Louisiana, 
 granting to a corporation the monopoly of slaughter- 
 ing cattle over a territory 1,154 square miles in ex- 
 tent, and containing the city of New Orleans and 
 adjacent territory, w^as constitutional. The business 
 of slaughtering cattle, the Court maintained, w^as 
 under the police power of the State, and the act was 
 a police measure, legitimately framed to protect the 
 health of the community. Mr. Justice Bradley, who 
 was among those who delivered a dissenting opinion, 
 admitted that if the measure was, in its operation, 
 well suited to protect the health of the community, 
 there would be no doubt of its constitutionality. 
 He, therefore, agreed with the majority of the Court 
 
18 MISCELI..VNEOUS WRITINGS. 
 
 on the important qtiestion of law which arose in the 
 case — viz.: whether a State could create a monopoly 
 to carry out its health laws ; but he differed from the 
 majority on the mixed question of la-w and fact — 
 whether the law of Louisiana was a law designed to 
 protect the health of the people of New Orleans. He 
 did not think it was, but, on the contrary, considered 
 the law as establishing a monopoly of an important 
 industry, without one iota of public expediency to 
 recommend it. 
 
 In the opinion of the Court, however, Mr. Justice 
 Miller, after stating the law to be one designed to pro- 
 tect the health of the citizens of the State, went on to 
 uphold the power of the State to grant monopolies. 
 He says : "The proposition is, therefore, reduced to 
 these terms : Can any exclusive privileges be granted 
 to any of its citizens or a corporation by the legis- 
 lature of a State?" But, curiously, instead of dis- 
 cussing the power of the legislature to grant the 
 exclusive privilege to carry out its police laws, he goes 
 into the whole subject of monopolies, and upholds the 
 power of the State to grant monopolies and privileges 
 generally. It is this power that Mr. Justice Bradley 
 and the other dissenting Judges vehemently deny, and 
 it is in connection with this denial that the late 
 Justice sets forth with admirable clearness the follow- 
 ing conception of the last amendments to the Consti- 
 tution. These amendments declare that there is a 
 citizenship of the United States, and thex- protect the 
 rights which appertain to thtit citizenship from en- 
 croachment by the States. The rights of the citizen 
 are the rights of fi-ee-born Englishmen. One of the 
 most valuable is the right to carry on any trade and 
 
"judicial record." 19 
 
 occupation, hampered only by reasonable restrictions. 
 Furthermore, depriving a man by legislative enact- 
 ment of his right to carry on a partictdar trade, is 
 not only interfering with his right as a citizen of the 
 United States, but also deprives him of his liberty and 
 property without due process of law. This latter 
 contention was dismissed without argument by Mr. 
 Justice Miller. In his lengthy exposition of the ques- 
 tion of "citizenship," however, that Justice advanced 
 a radically different conception of the amendments. 
 He thought they were, as a matter of fact, designed 
 primarily to prevent discriminations by the State 
 against the colored man, and, in their construction, 
 this fact, w^hich indicated their main object, should 
 aWays be kept in view. The only privileges and 
 immunities w^hich w^ere protected by the amendments 
 were those w^hich affected citizens of the United States 
 as such. Citizenship of the United States and citizen- 
 ship of the State w^ere, in his vie-w, two different 
 things. In the amendments those who are citizens of 
 the States are pointed out, but the privileges and 
 immunities of such citizenship are neither defined nor 
 protected. The only rights which are protected from 
 the encroachment of State legislatures are the priv- 
 ileges of the citizen of the United States, and these are 
 those which belonged to the citizens of every national 
 government. As an instance of a national privilege 
 is mentioned the right of a citizen of the United 
 States to go to the seat of the Federal Government. 
 The rights of a citizen of the United States are not 
 the rights of trade and commerce within a State. In 
 fact, we can deduce from Mr. Justice Miller's opinion 
 that all those rights which are exercised solely within 
 
20 MISCELLANEOUS WRITINGS. 
 
 the State, and do not pertain to the national govern- 
 ment, are left for their protection to the discretion of 
 State legislatures. 
 
 We hope there is Httle doubt that Mr. Justice 
 Bradley's conclusion, that no State can create a mon- 
 opoly pure and simple, would be adopted to-day by 
 the Court, on the ground that granting a monopoly 
 would be depriving the individual of his right to 
 carry on a lawful calling, which right is his by virtue 
 of his being a citizen of the United States, and, per- 
 haps, also on the ground that it would deprive him 
 of his property and liberty without due process 
 of law. 
 
 Certainly, the words of the XlVth Amendment, as 
 construed by Mr. Justice Miller, do not, as was in- 
 tended, add any additional securities to our liberties. 
 The United States was a nation before the amend- 
 ments ; and the people of the States were members of 
 that nation, and as such each had the right w^hich 
 belongs to the inhabitants of any free government to 
 go to the seat thereof, travel from one part to 
 another, or assemble to petition for redress of griev- 
 ances. We cannot but believe that, as the importance 
 of individual liberty becomes more and more im- 
 pressed upon our minds, the following quotation from 
 Mr. Justice Bradley's dissent vnll more and more fully 
 echo our own sentiments and the sentiments of the 
 great tribunal which he graced so long. 
 
 He says : " The mischief to be remedied (bj- the 
 amendments) was not merely slavery and its incidents 
 and consequences, but that spirit of insubordination 
 to the national government which had troubled the 
 country for so many years in some of the States, and 
 
''judicial record." 21 
 
 that intolerance of free speech and free discussion 
 which often rendered life and property insecure and 
 led to much unequal legislation. The amendment 
 was an attempt to give voice to that strong national 
 yearning for that time and that condition of things 
 in w^hich Ametican citizenship should be a sure guar- 
 antee of safety, and in which every citizen of the 
 United States might stand erect in every portion of 
 its soil in the full enjoyment of every right and priv- 
 ilege belonging to free men, without fear of violence 
 or molestation." 
 
 This strong statement of the belief that the 
 amendments provided for the complete protection of 
 indi\adual liberty will do more to preserve the name 
 of the great jurist than probably any other single 
 opinion of his in the reports. 
 
 The Legal Tender Cases.— The keynote of the 
 late Justice's opinion of the powers of the Federal 
 Government is found in his expression in the Legal 
 Tender Cases.* " The United States is not only a 
 government, but a national government." As such, 
 he argued, it has all those pow^ers w^hich rightly be- 
 long and are necessary to the preservation of the 
 nation. The real question involved in the Legal 
 Tender Cases was with him, as with Mr. Justice Field, 
 who dissented, v^-liether a national republican govern- 
 ment, in the exercise of its control over the currency- 
 of the country (with complete control over which, Mr. 
 Justice Bradley contended, it is, as a national govern- 
 ment invested), can incidentally take the property of 
 one man and give it to another. This is what making 
 bills "legal tender" means. No one can read Mr 
 
 ' S Wall., 555. 
 
22 MISCELLANEOUS WRITINGS. 
 
 Justice Field's dissent on this point without being im- 
 pressed with its force. The question itself is one of 
 those on w^hich men of trained intellects w^ill alw^ays 
 hold different views. The power of the government 
 to protect and preserve itself, and the right of the 
 individual to his property, are two fundamental prin- 
 ciples in constitutional law. In the facts of the Legal 
 Tender Cases, they apparently came in direct conflict. 
 The national government, from its nature and the 
 duties and responsibilities w^hich devolve upon it as 
 defender of the people from domestic and external 
 violence, undoubtedly ought to possess greater control 
 over individual liberty and property than the State 
 governments. At the same time it is equally true 
 that there are principles of individual liberty w^hich a 
 national government ought not to be allow^ed to 
 trample under foot. No one would pretend for an 
 instant that the property of all men over six feet high 
 could be confiscated by the national government on 
 the pretence of saving the country. On the other 
 hand, a tax on all creditors of twenty per cent, on 
 their debts, collected w^hen payment was made, would 
 undoubtedly be constitutional. The facts of the Legal 
 Tender Cases stand betw^een these tw^o extremes. We 
 think that Mr. Justice Bradley v^ras right. It is cer- 
 tain that the majority of the bar and of laymen 
 approve of the decision. The value of his opinion, 
 however, lies not in the particular conclusions to 
 which he came from the facts before the Court, but in 
 the point of view w^hich the opinion adopts toward 
 the power of congress. To say that this view will 
 remain and grow in favor vrith the bench, the bar and 
 the whole country, is saying nothing more than that 
 we will continue to be one people, under one national 
 government. 
 
"judicial record." 23 
 
 Chicago, St. Paul, etc., R. R. Co. v. Minnesota.* 
 —Mr. Justice Bradley differed with the majority of his 
 brethren in his last years of ser^ace on the bench on a 
 subject which is likely to be one of great importance 
 during the next decade. As in the Slaughter House 
 Cases, the question arises out of the XlVth Amend- 
 ment. It is also the result of the laws of some of the 
 States which appoint railroad commissions, vested 
 with power to regulate the rates of fare charged by 
 common carriers on passengers and merchandise trans- 
 ported from place to place in the State. In the above 
 case the majority of the Court, Mr. Justice Blatchford, 
 Avriting the opinion, held, that, while a grant to the 
 directors in the charter of a railroad, of the right to 
 regulate the rates of fare, does not prevent the States 
 from declaring subsequently, through a general law, 
 that all rates of fare should be reasonable, yet, never- 
 theless, a State cannot prescribe unreasonable rates. 
 And the majority further decided that the judiciary 
 are the final arbitrators of the question, what are 
 reasonable rates ? If, therefore, the legislature directly 
 fixed unreasonable rates, or the commission appointed 
 by the legislature fixed rates unreasonable in the eyes 
 of the Court, the act was in contravention of the 
 XlVth Amendment, in that it deprived the railroad of 
 its property without due process of law. 
 
 Mr. Justice Bradley, in his dissent, took the posi- 
 tion, that since the legislature had the power to fix 
 the rates to be charged for pubhc services, such as the 
 transportation of passengers and goods, it should be 
 the final tribtmal to determine whether a specific rate 
 is reasonable. And, furthermore, the question of the 
 
 ♦134 U. S., 418. 
 
24 MISCELLANEOUS WRITINGS. 
 
 proper specific rate in any case being essentially an 
 " administrative " question, the State legislatures could 
 constitutionally delegate the power to determine the 
 rate of fare in any specific instance to a commission, 
 or even to the courts. In such a case the courts 
 would act as a commission and determine an admin- 
 istrative or, in other words, an executive question. 
 Thus the courts became, as far as the act relating to 
 railway fares was concerned, the executive. Under 
 the acts of the legislature which simply provide gen- 
 eral rules for the guidance of the courts in prescribing 
 the rates of fare in any instance, the judges determine 
 the rate as w^ould a railroad commission, or the gov- 
 ernor of a State under similar circumstances. But it 
 was for the legislature to say who should determine 
 in a specific instance the rates to be charged by one 
 carrying on a public employment. The proper rate 
 to charge is a legislative and executive but not a 
 judicial question. 
 
 In the present confused state of our ideas concern- 
 ing what is a judicial, what is a legislative, or what 
 is an administrative or executive question, no one can 
 say, with full confidence that his opinion can be sus- 
 tained by the trend of authority, whether the reason- 
 ableness of a rate of fare, charged by a common carrier, 
 ultimately will be considered a judicial question, as the 
 majority of the Supreme Court consider it, or, with 
 Mr. Justice Bradley, regarded as a legislative question. 
 But certainly the last position appeals to us as the 
 more consistent of the two. The word " reasonable," 
 applied in connection with the power of the legislature 
 to prescribe the charges for public employments, either 
 means something or nothing. If it means nothing, 
 
"judicial record." 25 
 
 then the legislature has the right, as Mr. Justice Brad- 
 ley claimed, to prescribe any rate of fare it chooses. 
 This is only another way of saying that the rate 
 established by the legislature, either directly or through 
 a commission, or Court sitting as a commission, is 
 necessarily reasonable, not simply prima facie reason- 
 able. The act of Minnesota, which the Court declared 
 unconstitutional, attempted to do this very thing. 
 The majority, therefore, took the position that when 
 they had said in Munn v. Illinois, that the legislatures 
 of the States had pow^er to fix reasonable rates for 
 pubUc employments, the w^ord reasonable meant some- 
 thing. The State legislatures alone being able to pre- 
 scribe what is reasonable, the reasonableness of any 
 rate becomes a fit subject for judicial investigation. 
 
 Now, the inevitable consequences of this position, 
 while they are not palpable absurdities, are, neverthe- 
 less, to say the least, extraordinary, in the extent of 
 the power which they place in the hands of the Courts, 
 and the way in w^hich they tie the hands of the State 
 legislatures in respect to subjects over which it has 
 always been considered they had absolute control — 
 /. e., the subjects under the police power of the State. 
 
 For instance, it may fairly be argued that in any 
 specific instance there is more than one rate which 
 may be said to be reasonable, but no one can deny that 
 there are possibilities of rates being unreasonably high 
 as well as possibilities of rates being unreasonably low. 
 If, then, a legislature has no right to fix anything but 
 a reasonable rate, suppose no rate is fixed b^- positive 
 act of the legislature, and the company, under per- 
 mission of the legislature to "fix rates," fixes a rate 
 unreasonably high ? The courts, in an action by a 
 
26 MISCELLANEOUS WRITINGS 
 
 shipper who had paid an unreasonably high rate, 
 would have either to allow him to recover, and in so 
 doing determine what was a reasonable rate for the 
 service of the common carrier, or affirm that the 
 legislature, through the directors of the company, had 
 prescribed an unreasonable rate. Whether under the 
 Constitution of the United States the legislatures of 
 the States can prescribe rates of fare that are unreason- 
 able, may be a question, but it certainly cannot be open 
 to doubt, that no State Court would imply that the 
 State legislature, by its failure to specify or prescribe 
 any rates of fare, had impliedly sanctioned any rates 
 of fare, no matter how unreasonable, which a carrier 
 company may choose to charge. Under the view of 
 the majority, therefore, State Railroad Commissions 
 that are not courts are utterly useless. Not only must 
 their conclusions as to the reasonableness of any rate 
 be reversed by the Judiciary, but the Judiciary possesses 
 a right, without a commission, to declare, at the suit 
 of any individual, that the fare charged by a railroad 
 company is unreasonable, and, therefore, contrary to 
 the will of the State legislature, w^hich, as a matter 
 of courtesy, must be presumed to have provided that 
 the company could only charge reasonable rates. 
 
 It may be stated as a general rule that the power 
 to do what another considers reasonable is no power 
 at all. For the last fifty years the courts have been 
 upholding the power of the State to make police regu- 
 lations. The right of the State to prescribe what a 
 man shall charge when he is carrying on a public 
 employment, as a railroad or a warehouse, was based 
 on this police power. It is now proposed to take 
 away the power by limiting the discretion of the 
 
"judicial record." 27 
 
 legislature to what the Courts shall think reasonable. 
 It seems to us that the whole theory on which the 
 right of the State to regulate public charges is based 
 is thus disregarded. It was thought to be based on 
 the fact that when a man takes up an employment, 
 whose proper conduct is of paramount interest to the 
 community, he does so subject to the right of the pub- 
 lic to regulate his actions. The will of the people in 
 this as in other respects is expressed through the acts 
 of their representatives in the Legislature. The opinion 
 that the reasonableness of the act of the legislature is 
 a judicial question, substitutes the will of the judges 
 for the will of the people. Mr. Justice Bradley clearly 
 foresaw^ this, and deeply regretted the inevitable con- 
 flict between the Courts and the legislature. 
 
 The Commerce Clause. — Outside the interpreta- 
 tion of the amendments, the most important w^ork of 
 the Court during the late Justice's term was the devel- 
 opment of the law relating to interstate commerce. 
 No other Justice, except Mr. Justice Miller, has played 
 such an important part in the development of this, per- 
 haps the most complicated branch of constitutional 
 law, and the one on whose proper application rests 
 the future industrial prosperity of the country. Mr. 
 Justice Bradley and his associates found the law rela- 
 tive to interstate commerce involved in doubt. To- 
 day, as a result of their labors, many principles which 
 can be applied to the majority of new cases as they 
 arise have been firmly established. With the most 
 important and far-reaching of these the name of Mr. 
 Justice Bradley, together with that of Mr. Justice 
 Field, will always be indissolubly connected. The 
 question of the nature of the power of Congress over 
 
28 MISCELLANEOUS WMTINGS. 
 
 commerce had often engrossed the attention of the 
 Court. Some judges thought the power was concur- 
 rent in the States, others exclusive in Congress. The 
 members of the Court during the time of Chief Justice 
 Taney, seemed to labor between two difficulties. If 
 the States had a concurrent power over commerce, 
 there appeared to be no limit to the extent of the pos- 
 sible interference of State legislatures in the intercourse 
 between citizens of different States. The main purpose 
 of the " more perfect union," was to prevent this inter- 
 ference. On the other hand, if the power w^as not 
 exclusively in Congress, were not the State pilot law^s 
 unconstitutional ? Mr. Justice Curtis apparently solved 
 this difficulty in Cooky v. Port Wardens, w^hen he 
 pointed out that the nature of a Federal power 
 depended upon the subjects over which it was exercised ; 
 and, therefore, as commerce embraced a multitude of 
 subjects, it was evident that over some, as pilots, the 
 concurrent power of the State extended, while others, 
 as imports in the hands of the importer, were exclu- 
 sively under the control of the Federal government. 
 During the time of Justices Miller, Field and Bradley, 
 a complete change has taken place in the attitude of 
 the Court, and an important rule, first emphasized by 
 Chief Justice Marshall in Gibbons v. Ogden, has been 
 firmly established. Chief Justice Marshall had said : 
 * * * " All experience shows that the same measure 
 or measures, scarcely distinguishable from each other, 
 may flow from distinct powers, but this does not prove 
 that the powers themselves are identical."* This 
 means that a State, in the exercise of her reserved pow- 
 ers, can pass many laws, such as pilot laws, which it 
 
 * Wh., 204. 
 
"judicial record." 29 
 
 ■would be competent for Congress to pass in the exer- 
 cise of the power over commerce. The fact that the 
 power may be exclusively in Congress, does not prevent 
 the State from making a law whose purpose, as dis- 
 closed by its terms, is fairly intended to improve the 
 internal commerce of the State, or to protect the health 
 and morals of the people, from being a constitutional 
 law, though Congress might have passed a similar 
 law^ in the exercise of one of her exclusive powers. As 
 far as interstate commerce is concerned, the adoption 
 of this principle ends the confusion which arose from 
 discussing a concurrent power of the State over a sub- 
 ject which, as interstate and foreign commerce, is essen- 
 tially national. One cannot but believe that its 
 recognition is a distinct advance in our constitutional 
 law. For from the standpoint of political science, one 
 of the purposes of that lav7 is to separate ttiings na- 
 tional from things local. In the complete development 
 of constitutional law, therefore, there can be no such 
 thing as a subject which is at once partly national 
 and partly local. Naturalization, for instance, ought 
 to be a national matter or a local or State matter. 
 To declare that it is both would be to invite confusion. 
 The realization that interstate commerce, as such, is 
 solely a national matter, but that nevertheless there is 
 nothing to prevent the States, in the exercise of their 
 reserved pOAvers, from passing laws which Congress 
 might pass in the exercise of its exclusive power over 
 such a commerce, which is mainh^ due to Mr. Justice 
 Field and the late Justices Miller and Bradley, has 
 therefore, done much to clarify our ideas on constitu- 
 tional subjects. 
 
 An important adjunct to the above-mentioned 
 
30 MISCELLANEOUS WRITINGS. 
 
 theory, in regard to the consequences of an exclusive 
 power in the Federal government, is the doctrine which 
 was developed simultaneously with it, and known as 
 that of the " silence of Congress." When the Court 
 regarded the exclusive power of Congress over com- 
 merce as not preventing the States, in the absence of 
 conflicting congressional legislation, from affecting com- 
 merce in the exercise of their police pow^ers, it imme- 
 diately followed that any law of the State, no matter 
 how much it obstructed interstate commerce, such as 
 a bridge over an important river, was entirely within 
 the power of a State to enact, provided its main object 
 was one which it was competent for a State to under- 
 take. Such a result was to be profoundly deplored. 
 Justices Field and Bradley, in a long line of cases, 
 commencing with Welton v. State of Missouri,* took 
 the old distinction between things over which Congress 
 was supposed to have an exclusive control, and those 
 over w^hich the States w^ere supposed to have a con- 
 current power, and formulated and applied the now 
 famous constitutional doctrine, that the silence of Con- 
 gress respecting regulations of subjects in their nature 
 national must be taken by the courts as an indication 
 of its wU that commerce in this respect should be free 
 from State regulations ; but over certain other subjects, 
 such as pilots, over which it used to be contended 
 that the concurrent power of the States extended, then 
 the non-action or silence of Congress is no indication 
 of its will that commerce in this respect should be free 
 from State regulations, and, therefore, State laws which 
 affect thege subjects do not conflict with the will of 
 Congress. Thus, though the wa}' of regarding the 
 
 * fll U. S., 375. 
 
"judicial record." 31 
 
 power of the States in respect to commerce was modi- 
 fied, hardly a case had to be overruled. 
 
 The practical effect of this interpretation of the com- 
 merce clause of the Constitution is a masterpiece of 
 judicial legislation. It requires that the consent of the 
 Federal authority should first be obtained before a 
 particular locality essays to embark on legislation, 
 which, however necessary to preserve the morals of 
 the citizens, profoundly affects the commerce of the 
 whole country. But when once the whole nation 
 decides that such local legislation may, in some in- 
 stances, be desirable, the particular regulations are 
 enacted by the States, which alone are familiar with 
 local conditions. 
 
 This examination of the opinions of the late Justice 
 might be continued indefinitely. We cannot dignify a 
 sketch which has simply touched the outskirts of his 
 work with the name review. When we look over the 
 long line of decisions with which his name is connected, 
 a feeling akin to awe and reverence comes over us. Of 
 awe, at the magnitude of the work ; of reverence, at 
 the greatness of the intellect w^hich solved such a vari- 
 ety of problems. Surely the late Justice was one of 
 those men of whom we, as Americans, can be justly 
 proud. He combined in his own person and character 
 the two strong points of the Anglo-Saxon : a great 
 and wide practical knowledge of men and things, com- 
 bined Avith the power of concentration and subjective 
 analysis. At his death, the bench, bar and country 
 lost one w^ho, for the clearness of his thought and for 
 the thoroughness of his acquaintance with all subjects 
 connected with his profession, was perhaps without a 
 superior in the history of our judiciary. 
 
*" DISSENTING OPINIONS " 
 
 OF 
 
 MR. JUSTICE BRADLEY. 
 
 BY THE LATB A. Q. KEA8BEY, ESQ, 
 OF NEWARK, N. J. 
 
 An interesting paper was read at the recent meeting 
 of the American Bar Association, by Mr. Hampton L. 
 Carson, of Philadelphia, entitled, " Great Dissenting 
 Opinions." It may be found in the Albany Law Jour- 
 nal for August 25, 1894. It was a happy thought to 
 recall in chronological order the important dissenting 
 opinions of the justices of the Supreme Court of the 
 United States upon questions of constitutional law. 
 The -writer justly says that these opinions, viewed in 
 mass for the last hundred years, constitute in a certain 
 sense the best exposition of the views of two contend- 
 ing schools of constitutional interpretation, and enable 
 us to grasp the living principles underlying the struggle 
 betw^een the expanding empire of national federaUsm, 
 and the shrinking reservation of State sovereignty. He 
 takes up in their order the great cases, the names of 
 which have become fixed in the memory of all students 
 of our constitutional history, as the names of famous 
 battle-fields become landmarks in the progress of the 
 w^orld. He brings before us in vivid array, Chisholm's 
 Executors v. Georgia ; Marbuty v. Madison ; Sturges 
 
 * New Jersey Law Joarnal, October, 1894>. 
 
34 MISCELLANEOUS WRITINGS. 
 
 V. Crowninshield ; McCulloch v. Maryland ; Cohens 
 V. Virginia ; Gibbons v. Ogden ; Dartmouth College 
 V. Woodward ; Osborne v. U. S. Bank ; Brown v. 
 Maryland ; Craig v. Missouri ; Ogden v. Saunders ; 
 Charles River Bridge v. Warren Bridge ; Genesee Chief 
 v. Fitz Hugh ; the License cases ; the Passenger cases ; 
 Prigg V. Pennsylvania ; the Dred Scott case ; the 
 Legal Tender cases ; the Slaughter House cases and 
 others. 
 
 These names in themselves recall to the mind of 
 every student of our constitutional history the phases 
 of the varied contests which have marked the develop- 
 ment of our national jurisprudence, and it is as Mr. 
 Carson says, " of infinite value to gaze on the most 
 hotly-contested battle-fields, while it is ennobling to 
 know^ how^ heroes fought in defense of causes w^hich 
 they held dear." Indeed some of these contests carried 
 on in the quiet chamber of justice, in Washington, with 
 no flare of trumpets or w^aving of banners, will be in 
 the long fiiture of more interest and importance than 
 any waged on our actual battle-fields. We commend 
 this scholarly paper to the general student of our his- 
 tory,as well as to the bar, as one of fascinating interest. 
 
 But the special object of this note upon it, is to 
 allude to the part taken by our great New^ Jersey Jus- 
 tice of the Supreme Court, in the contests that occurred 
 during the twenty years of his judicial service. In the 
 leading constitutional cases, he wrote few dissenting 
 opinions. Like Marshall, he was strong and masterful 
 enough generally to carry the Court with him. Mr. 
 Carson, in his paper, speaks of only one dissenting 
 opinion of Marshall, in Ogden v. Saunders, and says 
 that this was the only great dissenting opinion which 
 
"dissenting opinions." 35 
 
 occurred during his judicial career. And in the course 
 of the paper only one dissenting opinion of Mr. Justice 
 Bradley is alluded to, that which he read in the 
 slaughter house cases, in which, with Mr. Justice Field, 
 he urged, in energetic terms, that the fourteenth and 
 fifteenth amendments were intended for whites as well 
 as blacks ; that they conferred on all citizens of the 
 United States the fundamental rights of person and 
 property usually regarded as secured in all free coun- 
 tries. But this w^as not the only dissenting opinion of 
 Judge Bradley in matters of grave constitutional im- 
 port. Indeed the very last opinion read by him, but 
 five weeks before his death, w^as a dissenting one, and 
 related to a branch of constitutional law^, to which he 
 had devoted his best powers throughout his judicial 
 career — that of the scope of National authority in the 
 matter of interstate commerce. To extend and secure 
 this authority by judicial interpretation of the com- 
 merce clause of the Constitution had been his earnest 
 effort in every case in which the question arose in any 
 form. In a long line of decisions he had expressed his 
 view^s with the logical power and persuasive earnest- 
 ness which enabled Marshall to accomplish his great 
 work. Only three years before his death, in his opinion 
 in the Arthur Kill Bridge case, in the New Jersey Cir- 
 cuit, he had stated his views as to the scope of the 
 commerce clause in their most advanced form. One 
 hundred years before, the State of New York had 
 granted to John Fitch, the exclusive right to navigate 
 her waters with vessels " moved by fire or steam," 
 and continued it to Robert Fulton and Robert R. Liv- 
 ingston in 1803. Their assignee obtained an injunction 
 from the Chancellor of New York to stop a Jerseyman 
 
36 MISCELLANEOUS WRITINGS. 
 
 from running steamboats from Elizabethtown to New 
 York City. But in 1824 the Supreme Court of the 
 United States held the State law invalid, and Chief Jus- 
 tice Marshall laid dow^n principles which have been 
 reasserted in various forms and applied with increasing 
 force to all instrumentalities of interstate intercourse 
 in every phase of its development. In the Arthur Kill 
 Bridge case these principles had been rudely assailed 
 by the State of New Jersey in its turn, as New York 
 had done a century before. Her legislature declared 
 by joint resolution, that the waters of the Kill and the 
 soil under them -were hers by sovereign right, and that 
 if the Congress should authorize a bridge, it w^ould be 
 a usurpation, and the sympathy of all sister States 
 was invoked in the struggle of New Jersey for State 
 rights. A law^ was passed also expressly forbidding 
 any person or corporation to bridge any river dividing 
 New Jersey from other States. 
 
 A law of Congress authorizing the Baltimore and 
 New^ York Railroad Companj'- to bridge the sound w^as 
 passed, notwithstanding this State protest, and the 
 company proceeded to do so. The Attorney General 
 of New Jersey obtained an injunction and the w^ork 
 was stopped — as the New York Chancellor stopped Mr. 
 Gibbons from running his steamboats, the Stoudinger 
 and Bellona, from Elizabethtovm to New York, in 
 1824. The case was removed to the United States 
 Circuit Court, and this furnished Mr. Justice Bradley 
 an opportunity to express his views on the subject of 
 interstate commerce, and he did it with a vigor not 
 surpassed by that of Marshall in Gibbons v. Ogden. 
 He declared that " the power of Congress is supreme 
 over the whole subject, unimpeded by State laws or 
 
37 
 
 State lines ; that in matters of foreign and interstate 
 commerce there are no States ; and that it must be 
 received as a postulate of the Constitution, that the 
 government of the United States is invested with fiill 
 and complete power to execute and carry out its pur- 
 poses, w^hether the States co-operate and concur therein 
 or not." As to the claim of the State to ownership 
 of the waters and the soil under them he said, " The 
 power to regulate commerce is the basis of the power 
 to regulate navigation and navigable waters and 
 streams ; and these are so completely subject to the 
 control of Congress, as subsidiary to commerce, that 
 it has become usual to call the entire navigable waters 
 of the country the navigable waters of the United 
 States. It matters little whether the United States 
 has or has not the theoretical ownership and dominion 
 in the waters, or the land under them ; it has what is 
 more, the regulation and control of them for the pur- 
 poses of commerce, so wide and extensive is the opera- 
 tion of this power, that no State can place any 
 obstruction in or upon any navigable waters against 
 the will of Congress, and Congress may summarily 
 remove such obstructions at its pleasure." 
 
 This case was taken to the Supreme Court, but the 
 appeal was abandoned by the State, and the bridge 
 was built, and now the Hudson River is to be bridged 
 at the city of New York under a law of Congress, 
 without opposition. Judge Bradley expressed his 
 regret at the withdrawal of this appeal, for he was 
 anxious for every opportunity to vindicate his views 
 on interstate commerce and embody them in the judg- 
 ments of the Supreme tribunal. 
 
38 MISCELLANEOUS WHITINGS. 
 
 Certain cases afterward occurred, in which he felt 
 that the Court was taking retrograde steps on this 
 subject, which he deemed of vital importance. 
 
 One of them was Pullman's Palace Car Company 
 Y. Commonwealth of Pennsylvania, 141 U. S. 101, 
 decided May 11, 1891. 
 
 In this case the majority of the Court held, that 
 " there is nothing in the Constitution or laws of the 
 United States which prevents a State from taxing per- 
 sonal property within its jurisdiction, employed in 
 interstate or foreign commerce," and that, " where 
 the cars of a company within a State are employed in 
 interstate commerce, their being so employed does not 
 exempt them from being taxed by the State." The 
 opinion of the Court was read by Mr. Justice Gray, and 
 Justices Bradley, Field and Harlan dissented. Mr. 
 Justice Bradley read the dissenting opinion, in w^hich 
 he asserted his well known views on the score of the 
 commerce clause very strongly, saying that " A citizen 
 of the United States, or any other person, in the per- 
 formance of any duty, or in the exercise of any privi- 
 lege, under the Constitution or law^s of the United 
 States, is absolutely free from State control in relation 
 to such matters. So that the general proposition, 
 that all persons and personal property w^ithin a State 
 are subject to the laws of the State, tmless materially 
 modified, cannot be true." After a careftil review of 
 the cases he dissented emphatically from the result 
 reached by the Court, and closed by saying : " The 
 State can no more tax the capital stock of a foreign 
 corporation than it can tax the capital of a foreign 
 person. Pennsylvania cannot tax a citizen and resi- 
 dent of New York, either for the whole or any portion 
 
"dissenting opinions." 39 
 
 of his general property or capital. It can only tax 
 such property of that citizen as may be located and 
 have a situs in Pennsylvania. And it is exactly the 
 same with a foreign corporation. Its capital, as such, 
 is not taxable. To hold otherwise, Avould lead to the 
 most oppressive and unjust proceedings. It would 
 lead to a course of spoliation and reprisals that would 
 endanger the harmony of the imion." The same dis- 
 sent w^as filed in the case of Pullman's Car Co. v. 
 Hayw^ard, decided on the same day, in which it was 
 held, that, "the cars of a company, let to railroad 
 corporations, and employed exclusively in interstate 
 commerce, may be taxed in a State, and the tax 
 apportioned among the counties of the State accord- 
 ing to mileage of the railroads in each coxmty, and 
 levied in those counties." Judge Bradley regarded 
 these cases as indicating a divergence from the line of 
 decision which he had long striven to maintain. 
 
 Another case was the one already alluded to in 
 which he read his last opinion, dissenting from the 
 view^s of the majority. It was the case of State of 
 Maine v. Grand Trunk Railroad Company of Canada, 
 142 U. S., decided December 14, 1891. 
 
 Justice Field read the opinion of the Court, holding 
 that a State can levy an excise tax on a railroad cor- 
 poration for the privilege of exercising its franchise 
 within the State ; that the character of such a tax or 
 its validity are not determined by the modes adopted 
 in fixing its amount for any specific period of its pay- 
 ment ; and that reference to the transportation receipts 
 of a railroad company, and to a certain percentage of 
 the same in determining the amoimt of an excise tax 
 on the company is not in effect the imposition of a tax 
 
40 MISCELLANEOUS WRITINGS. 
 
 on such receipts, nor an interference with interstate 
 commerce, although the railroad lies partly w^ithin and 
 partly without the State. Justice Bradley regarded 
 this as an undue limitation of the power of Congress 
 over interstate commerce, and read an adverse opinion. 
 It may not take rank amongst " Great Dissenting 
 Opinions," but it displays his mental characteristics in 
 a striking manner, and shows the vigor and earnest- 
 ness which he always brought to bear in dealing with 
 this great subject. Three of his associates concurred 
 with him. He said: "Justices Harlan, Lamar, 
 Brown and myself, dissent from the judgment of the 
 Court in this case. We do so both on principle and 
 authority. On principle because, whilst the purpose 
 of the law professes to be to lay a tax upon the foreign 
 company for the privilege of exercising its franchise in 
 the State of Maine, the mode of doing this is uncon- 
 stitutional. The mode adopted is the laying of a tax 
 on the gross receipts of the company, and these receipts, 
 of course, include receipts for interstate and interna- 
 tional transportation between other States and Maine, 
 and betw^een Canada and the United States. Now, if 
 after the previous legislation, which has been adopted 
 Aarith regard to admitting the company to carry on 
 business within the State, the Legislature has still the 
 right to tax it for the exercise of its franchises, it should 
 do so in a constitutional manner, and not (as it has 
 done) by a tax on the receipts derived from interstate 
 and international transportation. The power to 
 regulate commerce among the several States (except as 
 to matters merely local) is just as exclusive a power 
 in Congress as is the power to regulate commerce with 
 foreign nations and with the Indian tribes. It is given 
 
"dissenting opinions." 41 
 
 in the same clause, and couched in the same phrase- 
 ology ; but if it may be exercised by the States, it 
 might as tycU be expunged from the Constitution. We 
 think it a power not only granted to be exercised, but 
 that it is of first importance, being one of the principal 
 moving causes of the adoption of the Constitution." 
 
 He then referred to disputes between States as to 
 interstate facilities of intercourse, and the intolerable 
 discriminations made, and said : " Passing this by, 
 the decisions of this Court for a number of years past 
 have settled the principle that taxation (which is a 
 mode of regtdation) of interstate commerce, or of the 
 revenue derived therefrom (w^hich is the same thing), 
 is contrary to the Constitution." 
 
 He cited, Pickard v. Pullman Car Co., 117 U. S. 
 34, — annual tax on sleeping cars going through the 
 State ; Leloup v. Mobile, 127 U. S. 640,— telegraph 
 receipts ; Norfolk Co. v. Pennsylvania, 136 II. S., 114, 
 — ^keeping a through railroad ofiice in a State ; 
 Crutcher v. Kentucky, 141 U. S. 47,— taxation of ex- 
 press companies for doing business between the States. 
 
 And added : "A great many other cases might be 
 referred to, showing that in the decisions and opinions 
 of this Court this kind of taxation is unconstitutional 
 and void. We think the present decision is a depart- 
 ure from the line of these decisions. The tax, it is 
 true, is called a tax on a franchise. It is so called, but 
 what is it in fact ? It is a tax on the receipts of the 
 company, derived from international transportation." 
 
 After speaking of the length to which State Courts 
 and the Supreme Court have gone in sustaining various 
 forms of taxes on corporations, he said : " I do not 
 know that jealousy of corporate institutions could be 
 
42 MISCELLANEOUS WRITINGS. 
 
 carried much further. The Supreme Court has held 
 that taxation of Western Union stock in Massachu- 
 setts, graduated by the mileage of lines in that State 
 compared with the lines in all other States, -was only 
 a tax upon its property, yet it was in terms a tax 
 upon its capital stock, and might as well have been a 
 tax upon its gross receipts. The present decision 
 holds that taxation may be imposed upon the gross 
 receipts of the company for the exercise of the fran- 
 chise within the State, if graduated according to the 
 number of miles the road runs in the State." And he 
 closed by saying : " Then it comes to this. A State 
 may tax a railroad company upon its gross receipts, 
 in proportion to the number of miles run within the 
 State, as a tax on its property and may also lay a 
 tax upon these same gross receipts in proportion to the 
 same number of miles for the privilege of exercising its 
 franchise in the State. I do not know ■what else it 
 may not tax the gross receipts for. If the interstate 
 commerce of the country is not, or will not be, handi- 
 capped by this course of decision, I do not understand 
 the ordinary principles w^hich govern human conduct." 
 Mr. Justice Bradley died on the 22d day of Janu- 
 ary, 1892, only a few weeks after reading this opinion. 
 The great Chief Justice lived eight years after deliver- 
 ing his dissenting opinion in Ogden v. Saunders. Mr. 
 Carson says that this opinion by Marshall has been 
 termed his master effort ; that " prior to that time the 
 steadiness of the movement of the ship of state under 
 the hand of her great helmsman, had been without 
 wavering or shadow of turning ; " and that " witli 
 the passing of Marshall, the school of strict construc- 
 tionists marched to power, and the current of decision 
 
"dissenting opinions." 43 
 
 was turned into channels, running in anew direction." 
 It does not seem Kkely, in the present situation of 
 the country in respect to interstate commerce, that the 
 current of decision on the subject will run in any new 
 direction, or meet with serious obstacles with the 
 passing of Bradley. And yet, within two weeks of his 
 death, he expressed to the writer of this note his fear 
 that such might be the case, and alluding to the judg- 
 ment from w^hich he had so lately dissented, he said 
 ■with great earnestness, and evidently with some fore- 
 boding, that he hoped to live and retain his faculties 
 for four years more, so that he might finish the w^ork 
 of placing the power of the national government over 
 interstate commerce, in all its forms, on an impregna- 
 ble basis. 
 
 September 24, 1894. 
 

THE LEGAL TENDER CASES IN 1870. 
 
 The recent death of Justice Stephen J. Field of the 
 Supreme Coiirt of the United States releases me from 
 a sacred obligation, imposed by my father, the late 
 Justice Joseph P. Bradley, when on his deathbed and 
 enables me to publish to the world the true and here- 
 tofore unknown history of the controversy in the secret 
 conferences of the Supreme Court, which led up to and 
 resulted in the famous Legal Tender decision of that 
 Court, — ^the reversal of the decision of the U. S. Supreme 
 Court in Hepburn v. Griswold, and to vindicate the 
 memory and reputation of my father, by refuting the 
 slanderous charge that Judge Strong and Judge Brad- 
 ley w^ere appointed to the bench -with the distinct 
 understanding that they would vote to reverse the 
 first decision of the Court on that question — ^the con- 
 stitutionality of the Legal Tender Act. 
 
 The obligation above referred to w^as that I shotdd 
 not permit the documents herewith printed to become 
 public, " as long as any Justice who w^as on the bench 
 at that time was still living," and being given me by 
 my father at such a solemn moment and reinforced by 
 the personally expressed w^ish of Justice Strong, I have 
 religiously conformed to it, but not without great 
 effort, in the face of repeated statements published by 
 distinguished w^riters, in which they have accepted a 
 mere political rumor of the day, as a fact and have 
 referred to the incident as the " packing " of the Court. 
 
46 MISCELLANEOUS WRITINGS. 
 
 Paul L. Ford, in the " Introduction " to his edition 
 of the " Federalist " so refers to it, and J. W. Shuckers 
 in his elaborate " Life and Public Services of Salmon 
 Portland Chase " (Chief Justice Chase), devotes a 
 whole chapter to the subject, pointedly and suggest- 
 ively intimating that it was a prearranged scheme, if 
 not a corrupt bargain between the then Executive, 
 Gen. Grant, and the two appointees, Strong and 
 Bradley. 
 
 Ex-Secretary of the Treasury, Charles S. Fairchild, 
 in a public address at Boston a few years ago, repeated 
 the charge, and this at last, induced Senator George 
 F. Hoar, of Massachusetts, to publish a refutation of 
 it, based on historical facts and dates, but more par- 
 ticularly in defense of his distinguished brother, Hon. 
 E. R. Hoar, at the time Attorney General, and w^ho had 
 warmly supported and urged the appointment of 
 Judges Strong and Bradley. But the real history of 
 the action of the Court itself is contained and only 
 contained in the "Statement," now given to the 
 public. 
 
 The original paper, prepared by Mr. Justice Miller, 
 at the request of the majority of the Court, and signed 
 by them (now^ in my possession), w^as kept by him 
 until his death, when Mr. Justice Bradley obtained it 
 and preserved it till the day before he died, at which 
 time he consigned it to my keeping with the injtmction 
 before mentioned. This was done with the knowledge 
 and consent of Mr, Justice Strong, the surviving signer 
 of the paper. 
 
 It is now given to the pubUc, not only as a vindi- 
 cation of these two great and honorable judges, but 
 in the hope that it will definitely and for all time 
 
THE LEGAL TENDER CASES. 47 
 
 settle this often misrepresented controversy and 
 silence the tongues and pens of those who have lightly- 
 tossed about the reputations of tviro men, whose names 
 in legal history will long remain as bright stars in 
 American jurisprudence. 
 
 The facts of the case leading up to the contro- 
 versy cannot be better stated than by quoting 
 from Senator Hoar's letter to the Worcester Spy of 
 December 7, 1896 : 
 
 " On the 7th day of February, 1870, the Supreme 
 Court of the United States met at 12 o'clock. The 
 Senate met at the same hour. After the disposition of 
 some other business, Chief Justice Chase announced 
 the decision of the Court in Hepburn v. Griswold. 
 The Court held, in substance, that it w^as not within 
 the constitutional power of Congress to make the 
 United States Treasury notes legal tender for debts, 
 past or fature. The Chief Justice in his opinion said, 
 in substance, that this pow^er w^as not expressly 
 granted to Congress by the Constitution, and w^as 
 not implied as being necessary to the execution of 
 other expressly granted powers, including the power 
 to declare and carry on -war. The Judge w^ho gave 
 this decision w^as himself the author of the law w^hich 
 he declared unconstitutional, and had recommended its 
 passage, and had procured the votes of reluctant Sen- 
 ators and Representatives by personal interviews in 
 which he had urged the passage of the measure on the 
 grotmd that it was impossible to carry on the war 
 without it, and that the government could neither pay 
 its soldiers nor fulfil its contracts for the supplies and 
 materials of war, if it were restricted to gold and silver 
 alone. Among the persons with whom Mr. Secretaty 
 
48 MISCELLANEOUS WRITINGS. 
 
 Chase had these personal interviews is my late col- 
 league, Mr. Dawes, then a leader in the House of Rep- 
 resentatives, and several other living persons w^hom I 
 might name, as well as a good many w^ho are deceased. 
 I mention this not for the sake of implying any censure 
 upon that great statesman and patriot. Chief Justice 
 Chase, for declaring in his place upon the bench the 
 law as it then seemed to him, after the exigencies of the 
 war had passed. Indeed, he deserves the greater 
 honor, if, in interpreting the Constitution in his place 
 upon the bench, he disregarded the consideration that 
 his ovoi reputation might be affected by the charge 
 of inconsistency or by the condemnation which his 
 decision w^ould imply of his own previous conduct. I 
 only mention the fact to show that it w^as very un- 
 likely that anybody should have expected beforehand 
 that he alone among the leading Repubhcan statesmen 
 of the war period, should come to such a conclusion. 
 This decision was announced, as I have stated, on 
 Monday, February 7, 1870. I suppose that opinions 
 were read in other cases, that motions were heard, as 
 was then usual on Monday morning, and that prob- 
 ably this opinion was not read before two or three 
 o'clock. Indeed, the reading of the Chief Justice's opin- 
 ion, and those of the minority, must have taken an 
 hour or two. On the same day, February 7, 1870, 
 the nominations of Justices Strong and Bradley were 
 sent to the Senate. The fact that they were sent there 
 was announced in the Washington Evening Star of 
 February 7, and in the Boston and New York even- 
 ing papers that day. I have now in my hand copies 
 of the nominations which I have obtained from the 
 files of the Senate. They read as follows : 
 
THE LEGAL TENDER CASES. 49 
 
 " To the Senate of the United States : 
 
 " I nominate Joseph P. Bradley, of New Jersey, to be Associate 
 
 Justice of the Supreme Court of the United States. 
 
 "U. S. Grant. 
 "Executive Mansion, February 7, 1870." 
 
 This is a precise copy of the nomination of the Hon. 
 William Strong, except the name and State. The 
 Senate journal does not sho-wr the receipt of any par- 
 ticular nomination until the Senate goes into executive 
 session, which may not be for some days. But the 
 nominations are made public at once, and these -were 
 made public all over the country on the afternoon of 
 February 7. I have also in my hand a copy of w^hat 
 ■was printed in the Washington Evening Star of Feb- 
 7. At the head of the first column, first page, under 
 the heading, " Nominations," is the announcement that 
 the President sent to the Senate that afternoon the 
 nomination of Joseph P. Bradley to be Associate Jus- 
 tice of the Supreme Court of the United States, vice 
 E. R. Hoar, rejected ; and William Strong to be Asso- 
 ciate Justice of the Supreme Court of the United States, 
 vice Edwin M. Stanton, deceased. 
 
 In the New York Tribune, of Tuesday, February 8, 
 is the Washington letter of February 7 : " The Pres- 
 ident sent to the Senate to-day the names of Bradley 
 and Strong." In the Boston Evening Transcript of 
 February 7, is the statement : " The President has 
 just nominated to the Senate, Judge Strong of Pennsyl- 
 vania and Joseph P. Bradley of New Jersey as Asso- 
 ciate Justices of the Supreme Court." But, more than 
 all, the Boston Herald published on the morning of 
 February 8, has, likewise, an announcement of these 
 nominations made the day before. The evening edition 
 
50 MISCELLANEOUS WRITINGS. 
 
 of the Herald for February 7, is not in our library. 
 I presume you will find the same thing there, though 
 that is unimportant. 
 
 The Senate journal, as I have said, does not show 
 the receipt of any particular Executive nomination 
 until it is opened and laid before the body in Executive 
 session, w^hich may not take place for days or weeks, 
 ' although ordinarily there is one every few days. But 
 the Congressional Globe of that morning shows that 
 the Senate merely transacted its routine morning busi- 
 ness, and then took up resolutions in honor of a deceased 
 member, and adjourned. It further show^s that during 
 the routine morning business, and before the introduc- 
 tion of bills and resolutions, the President's secretary 
 came in with sundry legislative messages. It is the 
 only time he came in that day. So, undoubtedly, the 
 Executive message nominating the Judges w^as deliv- 
 ered at the same time with the legislative messages, 
 and w^as upon the table of the Senate a few minutes 
 after 12 o'clock. 
 
 I have dwelt upon these details to show the absolute 
 accuracy of my statement and that of my brother, 
 which I shall quote hereafter, that these nominations 
 were made before the decision. But the question 
 whether the Chief Justice announced his opinion or the 
 nominations got to the Senate first by a few minutes 
 is of the most trifling character, because the President's 
 signature to the nominations must have been made 
 before the session of the Senate that momine, and the 
 Cabinet meeting at which they were discussed was held 
 Tuesday of the previous week, and, as will appear ver\' 
 soon, the nomination of Judge Strong, at least, had 
 been discussed and agreed upon long before. 
 
THE LEGAL TENDER CASES. 51 
 
 The decision of the Supreme Court in Hepburn v. 
 Griswold was made and entered when the Judges had 
 fimshed reading their opinions on Monday, February 
 7th, 1870, after the nominations of Justice Strong and 
 Bradley had been laid upon the table of the Senate. 
 It was some hours after they had been signed by the 
 President. It was some days after they had been 
 agreed on in Cabinet meeting. It was weeks after 
 the probable appointment of Judge Strong, as I shall 
 show^ presently, had been announced in the newspapers. 
 That \Yas the first and only decision of the Supreme 
 Court in Hepburn v. Griswold. I shall speak presently 
 of what took place November 27, 1869. What I am 
 speaking of now is the decision of the Supreme Court. 
 
 The practice of the Supreme Court of the United 
 States is, I suppose, well understood in Massachusetts. 
 It has lately been described by Mr. Justice Harlan in a 
 public address in Cincinnati. 
 
 I have taken pains also to get from a very high 
 authority, indeed, a statement to the same effect. The 
 course is precisely the same as that pursued by the 
 Supreme Court of Massachusetts, except that while the 
 decisions of the Supreme Court of the United States are 
 announced, according to the old practice, orally from 
 the bench, the decisions of our Court are now made by 
 a rescript filed in the clerk's office, and accompanied 
 by a brief written statement of the Court's reasons. 
 The course of proceeding in the Supreme Court of the 
 United States is this : After the hearing of arguments 
 the Judges meet in consultation. Each of the Judges 
 states his opinion as fully as he may desire. After 
 every Judge has been heard, and the matter has been 
 discussed as far as any member of the Court thinks fit. 
 
52 MISCELLANEOUS WRITIN&S. 
 
 the Judges vote upon the case. The Chief Justice then 
 directs what Judge shall deliver the opinion of the 
 Court. If any Judge dissent, he is at liberty to pre- 
 pare a minority opinion giving his reasons and the 
 reasons of the other Judges who may agree vrith him. 
 No record is made of this proceeding, and it is kept 
 absolutely secret within the breasts of the Judges 
 until the public announcement of the opinion in the 
 way I have stated. At some future meeting of the 
 Judges, when the opinion of the Court has been pre- 
 pared, it is read over to the Judges. It is discussed, 
 changed or modified in consequence of any suggestion 
 that may be made. In very recent years it has been 
 the custom of the Judge preparing the opinion to send 
 copies to his brethren. It sometimes happens that an 
 investigation by the Judge w^ho has the responsibility 
 of preparing the opinion changes his mind and sug- 
 gests to him some new point of view, w^hich he reports 
 to his fellows, and which changes their miads also. I 
 have had this happen twice in my own practice in 
 Massachusetts. One case w^as Taft v. Uxbridge, w^here 
 the Court first came to a conclusion in my favor, which 
 was afterward reversed ; and one was the case of Wol- 
 cott V. Winchester, where the Court first came to a 
 conclusion against me, but afterward decided in mv 
 favor. But no record whatever is made of anything ex- 
 cept the mere memoranda of the Judges to aid their own 
 memory until the public announcement. Now to call 
 this proceeding a decision of the Court is, in my opinion, 
 a misuse of language. It is in the highest degree secret 
 and confidential. Any Jiidge who should betray the 
 confidence of the Court in this matter would be abso- 
 lutely disgraced, would forfeit the respect of his fel- 
 
THE LEGAL TENDER CASES. 53 
 
 lows ; and when we consider the effect upon properties 
 and business affairs of many of these decisions of the 
 Supreme Court of the United States, I suppose it is not 
 too much to say that he would deserve impejichment. 
 I inquired of two Justices of the Supreme Court of 
 Massachusetts, both of whom had been reporters, 
 whether they had ever known of this secret getting 
 out from the Supreme Court of Massachusetts since 
 the beginning of the Government ; and they both re- 
 plied that they had never known or heard of such a 
 case. In the case of the Supreme Court of the United 
 States I have never known or heard of such' a case, 
 with one or two exceptions, although I have been tol- 
 erably familiar with that Court and pretty intimately 
 acquainted with every member of it for nearly twenty- 
 eight years. There w^as a case some time ago w^here 
 a decision which considerably affected the price of 
 stocks in some viray leaked out. Whether it came 
 from some imprudent remark of one of the Judges, or 
 from some page or attendant about the Court room 
 who came across some paper which had been care- 
 lessly left exposed, nobody knows. But it excited 
 great feeling on the part of the members of the Bench. 
 Before the Dred Scott decision President Buchanan 
 expressed in his message the hope that the question of 
 the power of Congress over slavery might be removed 
 from political discussion by the determination of the 
 Supreme Court. It was conjectured, but never proved, 
 and I think never believed by the large majority of the 
 profession of the country, that he might have had some 
 understanding in the matter with Chief Justice Taney. 
 I do not beheve it myself. The knowledge that the 
 question was before the Court and the general opinions 
 
54 MISCELLANEOUS WRITINGS. 
 
 Upon public questions of its members were quite sufii 
 cient for President Buchanan's hope, without attrib. 
 uting anything wrong to any member of the Bench. 
 
 I ought frankly to concede that to this ascertain- 
 ment in conference of the opinions of the members of 
 the Court, the term " decision " is not infrequently 
 applied, although there is nothing final in its character. 
 But the word to be used is of no consequence if only 
 the substance of the transaction be clearly understood. 
 There is no finality about it. It is merely w^hat the 
 Judges call a " semble." The Judges hold their minds 
 open to reconsider, modify, or reverse their opinions 
 if new light be shed upon the case by the researches of 
 the Judge who prepares the opinion, or by further 
 reflection or further discussion w^hen the opinion is read 
 in full. And they keep these opinions an absolute 
 secret. 
 
 A second meeting of the Judges was held in regard 
 to Hepburn v. Grisw^old on the 29th day of January, 
 1870. The opinion in that case was not read and 
 agreed to in conference until that day. (See the 
 opinion of Chief Justice Chase in the Legal Tender 
 Cases, 12 "Wallace, 572.) 
 
 The dates w^ith which we have to deal with are 
 these : 
 
 The opinion of the Judges ascertained in conference 
 27th November, 1869. 
 
 The opinion read and agreed to in conference 
 January 29, 1870. 
 
 The opinion of the Court announced, and the 
 decision entered upon the docket, February 7, 1870. 
 
 The statute increasing the number of Judges passed 
 April, 1869, to take effect December, 1869. 
 
THE LEGAL TENDER CASES. 55 
 
 The nominations of Judges Strong and Bradley 
 sent to the Senate February 7, 1870. 
 
 Stanton nominated, December 20, 1869. 
 
 Stanton died December 24, 1869. 
 
 Judge Grier's resignation to take effect February 1, 
 1870. 
 
 Judge Hoar nominated December 15, 1869. 
 
 Judge Hoar rejected February 3, 1870. 
 
 It appears from the above statement that when 
 the decision was entered and the opinion was publicly 
 announced, there were but four Judges upon the Bench 
 who agreed to that decision, out of a Court, which 
 when fall, consisted of nine. This consideration has 
 not the slightest effect upon the validity of the decision. 
 Whether it should have any weight as to the propriety 
 of a rehearing, is a fair question. 
 
 I have no doubt the Court discussed, in consultation, 
 the case of Hepburn v. Griswold, November 27, 1869, 
 and the opinion of the majority was then ascertained. 
 We will consider presently the question whether that 
 opinion leaked out. But first let us take the history 
 of these appointments. When President Johnson came 
 into pow^er the Supreme Court consisted often members. 
 By the statute of July 23, 1866, it was enacted that 
 there should be no new^ appointments, until by death or 
 resignations the Court should be reduced to seven 
 members, and seven thereafter should be the number 
 of Justices. This statute has been generally supposed 
 to have been passed to take from President Johnson 
 the pow^er of appointing any new Judges in place of 
 some of the members of the Court who were growing 
 old, and w^hose places, in the course of nature, would 
 shortly be vacant. When President Grant came in, 
 
56 MISCELLANEOUS WRITINGS. 
 
 tht number of the Court had become reduced to eight 
 members. The docket had become crowded wth busi- 
 ness, and suitors had to wait years for a hearing. 
 Accordingly, at the short spring session in 1869, an 
 act was passed increasing the number of Justices to 
 nine, and authorizing the President to nominate an 
 additional Judge to the session of the Senate, which 
 would take place the following December. The Presi- 
 dent nominated to that vacancy Mr. Hoar, then 
 Attorney General. This nomination w^as made Decem- 
 ber 14, 1869. I have never heard that anybody 
 supposed or intimated that that nomination was made 
 for the purpose of packing the Court, although, as you 
 will observe, it was made three weeks after the first 
 conference of the Supreme Court in regard to Hepburn 
 V. Griswold, and the conclusion then arrived at, by 
 whatever name you choose to call it. There were two 
 members of the Cabinet from Massachusetts. There 
 was none from the great State of Pennsylvania, and 
 there was none from the South. I suppose I should 
 not have to go beyond the columns of the Boston 
 Herald, or beyond the abundant testimonials of 
 eminent lawyers, to support the statement that Judge 
 Hoar's character and legal ability were such as to 
 render no other explanation of his selection necessary. 
 President Grant had determined upon this appoint- 
 ment months before. September 23, 1869, the Presi- 
 dent called upon Judge Hoar at his room, stayed 
 two hours, and informed him that there was no 
 lawyer from the Southern States he felt willing to 
 appoint to the Court, and asked him to accept the 
 office. I have now before me my brother's letter to 
 me of that date, in which he states these facts, and 
 asks my advice as to his acceptance. 
 
THE LEGAL TENDER CASES. 57 
 
 Mr. Justice Grier, early in December, 1869, sent in 
 his resignation, to take effect on the first of the 
 following February. I have not the date when Judge 
 Grier sent in his resignation. But the nomination of 
 Mr. Stanton, his successor, of which I have the record 
 with me, was made by the President December 20, 
 
 1869. I have never heard that anybody ever dreamed 
 that the selection of Stanton was made for the purpose 
 of packing the Court. A petition asking his appoint- 
 ment had been sent to the President, signed, if I am 
 not mistaken, by every Republican member of the 
 Senate. He had been a great lawyer. He had been 
 Attorney General of the United States. He was the 
 great War Secretary. With the exception of Grant 
 and Sew^ard and Sumner and Chase, he was undoubt- 
 edly the most conspicuous figure in American public 
 life. He was a Pennsylvanian, and belonged to the 
 Circuit to \yhich the President w^ould naturally look 
 for a successor to Mr. Justice Grier. Stanton died 
 after accepting the oiEce and before taking his seat, 
 on the 24th day of December, 1869. Mr. Hoar was 
 rejected by the Senate on the third day of February, 
 
 1870, four days before the decision of Hepburn v. 
 Griswold. 
 
 When Judge Hoar was nominated, it became neces- 
 sary for the President to look out for another 
 Attorney General. William Strong of Pennsylvania 
 was offered the place. He came to Washington to see 
 about it. I, myself, saw him there and was introduced 
 to him. I knew at the time that it was expected that 
 he would be my brother's successor, although I cannot 
 say from memory that I heard him say that he 
 expected to take the place. So when Stanton died, 
 
58 MISCELLANEOUS WRITINGS. 
 
 and Judge Hoar was rejected and remained in the old 
 office, it seemed almost inevitable that Judge Strong, 
 if he were fit for the place, should be offered one of the 
 vacant Judgeships. He was from Grier's circuit, and 
 from Pennsylvania, the State in that circuit to whose 
 able Bar the President had looked for an Attorney 
 General. He was admirably qualified for the place. 
 He had been a great Judge in his own State. He was 
 not only the head of the Bar in that circuit, certainly 
 the leading Republican lawyer, and he held a place in 
 the reverence and affection of the people who knew 
 him, as a man of singular purity and integrity, which 
 I had almost said was equalled by that of John Jay 
 alone. I think I am not over bold -when I afiirm that 
 the bitterest partisan in this country, of whatever 
 political opinion, or from ^whatever part of the country 
 he may come, will not question in the light of his long 
 service upon the Bench, that the nomination of WiUiam 
 Strong needs no explanation other than the statement 
 of the conspicuous merit and quality of the man. This 
 nomination would have been practically inevitable, if 
 the legal tender decision, or the legal tender law, had 
 never been heard of 
 
 Stanton died December 24, 1869. But it w^as quite 
 natural that the President should not nominate his 
 successor until the question of Judge Hoar's confirma- 
 tion or rejection was settled. If Judge Hoar had been 
 confirmed, the original plan of having Mr. Strong 
 Attorney General might have been carried out, although 
 he would probably have been appointed to Judge 
 Grier's place. I have no special means of forming an 
 opinion on that question. But the President awaited 
 the final action of the Senate, which undoubtedly had 
 been expected for some time before the final vote, and 
 then sent in the two names together. 
 
THE LEGAL TENDER CASES. 59 
 
 I do not think it necessary to vindicate the selec- 
 tion of Mr. Justice Bradley, any more than that of 
 Judge Strong. I have heard eminent lawyers compare 
 him -with Chief Justice Marshall, in the vigor and grasp 
 of his intellect, and attribute to him a variety of 
 accomplishments which w^ould not be attributed to 
 Marshall. But such utterances, when w^e experience a 
 great public loss like that of Judge Bradley, are apt 
 to be extravagant. It is only necessary to say, what 
 I am sure every living lawyer who is interested in such 
 things will agree to, that there is no greater or purer 
 judicial fame than that of Judge Bradley among the 
 Judges who were upon the Court when he took his 
 place upon it, or who have been upon the Court from 
 that day to this. 
 
 One thing ought, however, to be said. It was by 
 Judge Bradley's advice that the great railroad, for 
 which he was counsel, determined, when the legal 
 tender laws were in force, that honor and duty 
 required them to pay their debts in gold. 
 
 Now, having stated the facts, let us come directly 
 to this foul charge. It can only be sustained by prov- 
 ing three things : 
 
 (1.) That the confidence of the Court had been 
 betrayed, and the views of the Judges upon the consti- 
 tutionality of the legal tender law which they had 
 expressed to each other in their conference, November 
 27, had leaked out ; 
 
 (2.) That these views had become known to 
 President Grant and to the Attorney General or the 
 Cabinet ; 
 
 (3.) That in consequence of such knowledge they 
 had done something they would not have done but for 
 that. 
 
60 MISCELLANEOUS WRITINGS. 
 
 These three points have been so conclusively dis- 
 posed of in Senator Hoar's " Refutation " that further 
 comment on that question is unnecessary. The Court 
 finally having its full complement of Judges, and the 
 imperative necessity of obtaining a final decision of the 
 questions involved in the case of Hepburn v. Grisv.'old 
 forcing itself upon the Government, application for a 
 rehearing of them was made by the Attorney General, 
 and it is to this application and the result of it that 
 the "Statement" prepared by the majority of the 
 Court, and herewith published, has to do. Let it 
 speak for itself !— [Editor.] 
 
THE LEGAL TENDER CASES. 61 
 
 A statement of facts relating to the order of 
 the Supreme Court of the United States 
 for a re-argument of the Legal-Tender 
 Question, in April, 1870. 
 
 [As much adverse criticism has been made upon the 
 action of the Supreme Court in re-considering the 
 Legal-Tender question in other cases, after the decision 
 made in the case of Hepburn v. Griswold, (8 Wall. 
 603), the following statement of the facts connected 
 therewith, made by the Justices who voted for the 
 re-consideration, is due to the truth of history. It was 
 elicited by a statement made by Chief Justice Chase, 
 and placed by him on the files of the court, but w^ith- 
 drawm w^hen he learned that a counter statement 
 would be made. Inasmuch, how^ever, as his statement 
 has evidently been used by his biographer, if not in 
 other w^ays, it is no more than just that the statement 
 of the Justices should be printed for preservation and 
 for future reference if necessary. 
 
 It is proper to add, that Mr. Justice Grier, one of 
 the majority who decided Hepburn v. Griswold, had 
 tendered his resignation in December, 1869, to take 
 effect the 1st of February, 1870 ; and that the decision 
 in that case was not announced until Monday, the 
 7th of February. The nomination to the Bench of 
 Messrs. Strong and Bradley was made on the same 
 day, but had been prepared the week before, and had 
 been under consideration for some time previous, in 
 consequence of recommendations from the Bar and 
 others, without any reference to the legal tender 
 question. 
 
 The statement is as follows :] 
 
62 
 
 MISCELLANEOUS WRITINGS. 
 
 Latham 1 
 
 y- ( 
 
 The United States. J 
 
 Deming 1 
 
 The United States. J 
 
 The very singular paper filed by the Chief Justice 
 in these cases, in regard to the order of the Court, by 
 which they are set down for hearing on all the ques- 
 tions presented by their respective records, leaves the 
 court no alternative but to present a reply in the same 
 manner that the statement of the Chief Justice is pre- 
 sented. 
 
 The paper itself is ^vithout precedent in the records 
 of the Court. On the first day of this month the 
 Court announced, by the mouth of the Chief Justice, 
 that these cases would be heard on the 11th day of 
 the month, on all the issues involved in the record. 
 
 In making this announcement the Chief Justice did 
 all that w^as necessarjr to prevent any misconception 
 of his opinions by stating that he and Justices Nelson, 
 Clifford and Field dissented from the order. This 
 statement was placed in the records of the Court. 
 
 The present statement [that of the Chief Justice], 
 therefore, was not necessary to explain the position 
 of those gentlemen, or to vindicate their action, for it 
 was well understood and -was assailed by no one. 
 
 It is an effort to take the action of the Court out of 
 the ordinary and usual rules which govern it in the 
 simple matter of deciding when it will hear a case, and 
 what shall be heard in that case, and subject the Court 
 to censure, because it will not consent to have the rights 
 
THE LEGAL TENDER CASES. 63 
 
 of the parties in such cases controlled by the vague 
 recollection of some members of the Court, presented 
 only in conference, not reduced to writing, nor ever 
 submitted to the consideration of counsel charged with 
 the conduct of the cases. If this be a just ground of 
 censure, we must submit to it, and will be content to 
 bear it. 
 
 In reference to the facts on which the Court acted, 
 it is conceded by all that the cases, haAring been passed 
 without losing their place on the docket, were entitled 
 to a preference whenever either party should call them 
 up and insist on a hearing. The Attorney- General, on 
 behalf of the United States, did this on Friday, March 
 25. At the same time he stated that the cases pre- 
 sented the same question in regard to the constitu- 
 tionality of the legal tender statutes that had been 
 decided in the case of Hepburn v. Griswold, at the 
 present term, and asked the court to hear argument 
 on that question. Mr. CarHsle, counsel for Latham, 
 was present, and reminded the Court that some 
 six weeks before he had asked that his case might be 
 set down for hearing, and that he now vrished for an 
 early hearing, but hoped that the legal tender question 
 would not be reconsidered in his case. 
 
 He did not at that time intimate in any manner 
 that there had been any agreement of counsel, or any 
 action of the Court, which precluded that question in 
 his case. 
 
 The next day being conference day, the Court acted 
 on the motion of the Attorney General ; but on Mon- 
 day morning, before it could be announced, the Chief 
 Justice produced a letter from Mr. Carlisle to him^ 
 remonstrating against reopening the legal tender ques- 
 
64 MISCELLANEOUS WRITINGS. 
 
 tion in his case, and insisting that he had a right to 
 expect that the case of Hepburn v. Griswold would, as 
 to that point, decide his case also ; but he did not 
 state in that letter that any order of the Court had 
 been made to that effect, or any agreement of counsel 
 verbal or otherwise. 
 
 This letter of Mr. Carlisle, the only written docu- 
 ment, paper or statement ever presented to the Court 
 before its order was announced, as a foundation for 
 refusing to hear the legal tender question in the two 
 cases, w^as never filed with the clerk, and cannot now^ 
 be found by us. 
 
 The Court, in deference to Mr. Carlisle's statement, 
 made an order that on Thursday, the 31st of March, 
 the whole matter should be heard in open Court. On 
 that day the Attorney-General, w^ho had been shown 
 Mr. Carlisle's letter, appeared and insisted on his 
 motion. Mr. Carlisle opposed it, and in argument 
 gave his history of the cases in this Court. He also 
 argued that from that history he had a right to expect 
 that w^hatever should be the judgment of the Court in 
 Hepburn v. Griswold as to the constitutionality of the 
 legal tender acts, should conclude that matter in his 
 case. But he did not state or rely on any agreement 
 with counsel of the government of the one case by the 
 other, or any express order of the Court to that effect. 
 
 Mr. Merriman, the senior counsel in Deming's case, 
 was present at this argument. He took no part in it. 
 He made no objection to the argument of the legal 
 tender question in his case, and did not then claim, nor 
 has he ever claimed in court, that that question was 
 precluded by any action of the Court, or agreement of 
 counsel. 
 
THE LEGAL TENDER CASES. 65 
 
 On full consideration of all that was then before it, 
 the Court announced on Friday morning, the 1st of 
 April, that the two cases would be heard on all the 
 questions presented by the records on Monday, the 
 11th, ten days thereafter ; and at the same time the 
 Chief Justice announced the dissent of himself and the 
 other Justices already mentioned, to this order. 
 
 When that day arrived, a letter was presented from 
 Mr. Carhsle, dated in this city, of the Saturday before, 
 in which he said he had not had time to prepare for 
 the argument, and that he had an engagement to try 
 a case in New York on Tuesday, which he had not 
 been able to postpone, and again urged the injustice of 
 a reargument of the legal tender question in his case, 
 and stated that he understood when his case had been 
 passed, that it would abide the decision in Hepburn v. 
 Griswold. A telegram was also read stating Mr. 
 Merriman's illness. The Court from the bench post- 
 poned the hearing for one week. 
 
 Since that time the Chief Justice has received a letter 
 from Mr. Norton, former Solicitor of the Court of 
 Claims, vsrho once had some charge in that capacity of 
 these cases, in which he states, that when the cases 
 were continued in March, 1868, he understood that 
 they would be governed as to the legal tender ques- 
 tion by the decision of Hepburn v. Griswold, 
 
 Of both these letters, now the only papers on file 
 in regard to the matter, it is to be observed— 
 
 1. That they were presented after the Court had 
 appointed a day for hearing all that might be said for 
 or against the motion, and after both parties had had 
 a ftxll hearing, and after the Court had, on full consid- 
 eration of all that was before it, fixed the day for 
 
66 MISCELLANEOUS WRITINGS. 
 
 hearing, and decided to hear the whole matter in issue. 
 Of Mr. Norton's letter it may be further said, that it 
 was made after Mr. Carlisle's two efforts to prevent a 
 hearing had both been considered and overruled, and 
 is made by a gentleman not now^ engaged in the cases, 
 without verification, and without notice to any party, 
 or counsel in the case. 
 
 2. That neither of them assert that any agreement, 
 contract or promise w^as made by the counsel of the 
 United States, that Hepburn v. Griswold should con- 
 trol these cases in any matter of law w^hatever. 
 
 We do not doubt that counsel for appellants and 
 counsel for the United States believed, and in that 
 sense understood, that the judgment of the Supreme 
 Court in Hepburn v. Griswold, and the other legal 
 tender cases argued at the same time, would establish 
 principles on that subject that w^ould govern the cases 
 now under consideration, and all other cases in which 
 the same questions might arise. 
 
 This understanding was no more than the expecta- 
 tion, usual and generally w^ell founded, that a principle 
 decided by this Court will govern all the cases falling 
 w^ithin it. But this expectation must be subordinated 
 to the possibility, fortunately rare, that the Court may 
 reconsider the questions so decided ; and confers no 
 absolute right. 
 
 We have thus far considered only what occurred 
 in open Court since the motion of the Attorney-General 
 was made to take up these cases ; and in what has 
 been said the Court, consisting of Justices Swayne, 
 Miller, Davis, Strong and Bradley, all concur. 
 
 But the paper, to which we are replying, under 
 takes to give a history of the connection of these two 
 
THE LEGAL TENDER CASES. 67 
 
 cases with certain others, involving the legal tender 
 question, so much at variance with the records of the 
 Court, and with the recollections of the three Justices 
 of the Court first above named (the other two not 
 then being members of the Court), that we do not feel 
 at liberty to permit it to pass in silence. 
 
 This statement invades the sanctity of the confer- 
 ence room, and in support of its assault upon the 
 Court, does not hesitate to make assertions which are 
 but feebly supported by the recollections of a part of 
 the four Judges who join in it, but which are incon- 
 sistent with the record of the Court, and are contra- 
 dicted by the clearest recollections of the other three 
 Judges who then composed a part of the Court, w^ho 
 oin in this answer. 
 
 It is attempted, by speaking of these cases as 
 two out of nine, w^hich the Court constantly had in 
 view as involving the legal tender question, to sustain 
 the inference, that they were to be decided with the 
 others, and were submitted to the Court, so far as the 
 legal tender question was concerned, at the same time. 
 Now, the first and only time the legal tender cases 
 were grouped together in any order of the Court was 
 on the 2d day of March, 1868, when the following order 
 was made of record : 
 
 " No. 89. S. P. & H. P. Hepburn v. Henry Griswold, 1 
 " No. 225. Frederick Bronson v. Peter Rodes. J 
 
 " Ordered by the Court, That these cases stand 
 continued for re-argument by counsel at bar on the 
 first Tuesday of the next term, and that the Attorney 
 General have leave to be heard on the part of the 
 United States." 
 
68 MISCELLANEOUS WRITINGS. 
 
 "No. 35. Mandelbaum v. People of Nevada. 
 " No. 60. The County of v. The State of Oregon. 
 "No. 67. John A. McGlynn, Ex'r, &c., v. Emily 
 
 Magraw, Ex'trix. 
 "No. 71. Joseph C. Willard v. Benj. 0. Tayloe. 
 
 " Ordered by the Court, That these causes stand con- 
 tinued to the next terrti, with leave to counsel to 
 reargue the same if they see fit on any question com- 
 mon to them and to Nos. 89 and 225." 
 
 The Chief Justice says that there were nine of these 
 cases in all, w^hich were to be governed by the decision 
 of the Court made on the general argument in regard 
 to legal tender. Here are six of them grouped in these 
 two entries standing together. If Latham's and 
 Deming's cases stood on the same agreement, or the 
 same order, why were they not included ? It will not 
 do to say that they were carelessly omitted, for the 
 order is evidently drawn with particularity, and there 
 can be no doubt that it includes all that it Avas intended 
 to include. 
 
 Nor will it do to say that these cases could not be 
 included because they had other questions besides legal 
 tender, for the cases of Willard v. Tayloe and Mandel- 
 baum V. Nevada, -which are in the order, included other 
 questions, and were finally decided without touching 
 that question. The case of Horwitz v. Butler, which 
 is necessary to make out the nine alluded to, although 
 it involved nothing else but legal tender, was argued 
 by itself after Bronson v. Rodes was decided. There 
 was, therefore, evidently no general agreement or 
 order, that cases not named should abide those that 
 were, because they involved that question. 
 
 It is said that subsequently to the decision of 
 Hepburn v. Griswold, these cases " were called on sev- 
 
THE LEGAL TENDER CASES. 69 
 
 eral occasions, and it was again stated by the Chief 
 Justice from the bench that the legal tender question 
 having been determined in the other cases would not 
 be again heard in these." 
 
 This statement is, as we are satisfied, founded in 
 an entire misapprehension. If any statement had 
 been made from the bench that no argument would 
 be heard in these cases of the legal tender question, it 
 would certainly have attracted the attention of the 
 Judges who did not agree to that opinion, and would 
 have met with a denial on their part so emphatic as 
 to be remembered. 
 
 The case§ now under consideration were numbered 
 six and seven of the docket of this term. They had, 
 therefore, as the records of the Court show^, been called 
 and passed on the 8th December, two months before 
 the announcement of the decision of Hepburn v. Gris- 
 wold, which was February 8. 
 
 It further appears, that on the 10th December the 
 Attorney General moved to dismiss the appeal in 
 Latham's case because it had not been taken in due 
 time. The opinion of the Chief Justice is entered of 
 record overruhng this motion, because, though the 
 appeal was not allowed within ninety days, it had 
 been prayed within that time. In aU these orders no 
 hint is given that these cases were to abide the judg- 
 ment in Hepburn v. Griswold. 
 
 Very soon after the decision of Hepburn v. Griswold, 
 Mr. Carlisle called attention to the Latham case, and 
 asked that an early day be assigned for its hearing. 
 The Chief Justice was about to do this in open Court, 
 when Mr. Justice Miller requested him to take the 
 matter into conference. When the motion was called 
 
70 MISCELLANEOUS WHITINGS. 
 
 in conference, Mr. Justice Miller said that the case 
 involved the legal tender question, and that he hoped 
 it would not be set for hearing until the two vacancies 
 on the bench were filled, as nominations w^ere then 
 pending for both of them. No objection was made to 
 this, and the motion of Mr. Carlisle was postponed 
 indefinitely. The Chief Justice remarked, as those of 
 us who were present well recollect, that he considered 
 the legal tender question as settled by Hepburn v. 
 Griswold, as far as it went, but none of the Judges 
 gave any intimation that there was anything in the 
 history of these which precluded that question from 
 being considered in them. If it could not, there was 
 no reason for postponing their hearing for a full bench, 
 as was done, for they are otherwise quite imimport- 
 ant, either in principle or amount, and were entitled 
 to a speedy hearing, as they had been long delayed. 
 
 Conceding, as we do freely, that our brethren be- 
 lieve that such an order or statement was made 
 verbally, should it govern our action ? 
 
 We cannot consent to this, because if any order or 
 statement w^as made orally, unless it was reduced to 
 record, or is assented to or admitted by the counsel 
 for the United States, it is no sufficient legal ground 
 for refusing to hear the appellee on any defence found 
 in the record of these cases. 
 
 In support of this we hold the law to be that 
 without some order of Court made of record, or some 
 written stipulation signed by the party or his counsel, 
 or some verbal agreement of the parties established to 
 the satisfaction of the Court, no party can be deprived 
 of the right to any defence in this Court which the 
 record of his case presents. 
 
THE LEGAL TENDER CASES. 71 
 
 Much stress is laid in the paper we are con- 
 sidering upon the long deliberation, the clear majority 
 and the liberality of the Court in giving time to the 
 minority to file the dissent in Hepburn v. Gtiswold, 
 and we are freely told the steps in conference which led 
 to the final result. 
 
 The minority in that case are profoundly impressed 
 with the belief that the circumstances of that decision, 
 if w^ell understood, would deprive it of the w^eight 
 usually due to the decisions of this Court. The cases 
 had been on hand eighteen months or more. There 
 was no pressure for a decision. There was one vacancy 
 on the bench. It was believed that there w^ould soon 
 be another. Under these circumstances the minority 
 begged hard for delay until the bench was fall. But it 
 was denied. When, after all this argument and pro- 
 tracted consideration, the case w^as taken up in confer- 
 ence, and was there discussed for three or four hours, in 
 Avhich discussion every Judge took part, the vote w^as 
 taken and the Court was found to be equally divided 
 on afl&rming or reversing the judgment of the Court of 
 Appeals of Kentucky. * Before the cotiference closed, 
 how^ever, the vote of one of the Judges who had been 
 for reversing the judgment was changed. The circum- 
 stances under which this vote was changed were very 
 significant, but we do not deem it proper to state 
 them here. Without that change no opinion could 
 have been rendered holding the legal tender statutes 
 unconstitutional. 
 
 The question thus decided is of immense importance 
 to the government, to individuals and to the public. 
 The decision only partially disposed of the great ques- 
 tion to which it related, and has not been received by 
 
72 MISCELLANEOUS WRITINGS. 
 
 the profession or by the pubhc as conclusive of the 
 matter. If it is ever to be reconsidered, a thing which 
 we deem inevitable, the true interests of all demands 
 that it be done at the earHest practicable moment. 
 
 We did not seek the occasion, but when the case 
 seemed fairly before us we could not shrink from our 
 duty as we understood it. 
 
 We could not deny to a party in Court the right 
 Avhich the law^ gave him to a hearing on all the defences 
 which he claimed to have. When, on the other hand, 
 the rules of the Court did not admit of a rehearing in 
 the case of Hepburn v. Griswold, we did not attempt 
 to strain or modify those rules to reach the question. 
 In this case, as in all others, we have endeavored to 
 act as the law and our duty required. 
 
 The foregoing paper of eighteen pages [in the man- 
 uscript] was prepared and agreed to as the reply of 
 the Court to a paper filed by the Chief Justice on behalf 
 of himself and Justices Nelson, Clifford and Field. 
 That paper has been withdrawn by them from the files 
 of the Court, and this is, therefore, not filed. 
 
 We all concur in the statements of the foregoing 
 paper as to the reasons for our action in the matter 
 to which it refers, and the statement of facts we declare 
 to be true so far as they are matters w^hich took place 
 while we were respectively members of the Supreme 
 Court. 
 
 Washington, April 30, 1870. 
 
 N. H. Swayne. 
 Sam. F. Miller. 
 David Davis. 
 W. Strong. 
 Joseph P. Bradley. 
 
THE LEGAL TENDER CASES. 73 
 
 [Note.— The original draft of the statement, as 
 drawn by Justice Miller, from the asterisk on page 71, 
 concluded in the words printed below. But, on con- 
 sultation with the other Justices at the time it was 
 thought best to omit it, as Justice Grier was still 
 living, and might be pained if it should come to his 
 knowledge. Justice Miller, however, preserved it, and 
 placed it in the same envelope with the statement as 
 modified, where it was foimd after his death. It was 
 as follows :] 
 
 * This would have affirmed the judgment, but settled 
 no principle. 
 
 An attempt w^as then made to convince an aged and 
 infirm member of the Court that he had not understood 
 the question on w^hich he voted. He said that he 
 understood the Court of Appeals of Kentucky had 
 declared the legal tender law unconstitutional, and he 
 voted to reverse that judgment. As this was true, the 
 case of Hepburn v. Griswold was declared to bg 
 affirmed by a Court equally divided, and w^e passed to 
 the next case. 
 
 This was the case of McGlynn, Ex., v. Magraw, 
 and involved another aspect of the legal tender ques- 
 tion. In this case the venerable Judge referred to, for 
 w^hose public services and character we entertain the 
 highest respect, made some remarks. He was told 
 that they were inconsistent with his vote in the former 
 case. He was reminded that he had agreed with a 
 certain member of the Court in conversation on 
 propositions difiering from all the other Judges, and 
 finally his vote was obtained for affirming Hepburn v. 
 Griswold, and so the majority, whose judgment is now 
 said to be so sacred, was obtained. 
 
 To all this we submitted. We could do nothing 
 else. In a week from that day every Judge on the 
 
74 MISCELLANEOUS WRITINGS. 
 
 bench authorized a committee of their number to say 
 to the Judge who had reconsidered his vote, that it 
 was their unanimous opinion that he ought to resign. 
 
 These are the facts. We make no comment. We do 
 not say he did not agree to the opinion. We only ask, 
 of w^hat value was his concurrence, and of w^hat value 
 is the judgment under such circumstances ? 
 
 That question thus decided is of immense import- 
 ance to the Government, to the pubUc, and to indi- 
 viduals. The decision only partially disposed of the 
 great question to Asrhich it related, and has not been 
 received by the profession or by the public as conclud- 
 ing the matter. If it is ever to be reconsidered, a thing 
 which we deem inevitable, the best interests of all 
 concerned, public and private, demands that it be done 
 at the earliest practicable moment. 
 
 We have not sought the occasion, but when the 
 case is fairly before us, if it shall be found to be so in 
 these cases, we shall not shrink from our duty, w^hat- 
 ever that may be. For the present, we believe it is 
 our duty to hear argument on this question in these 
 cases. 
 
 Whether the judgment of the Court in Hepburn v. 
 Griswold shall be found by the Court to be conclusive, 
 or whether its principles shall be reconsidered and 
 reversed, can only be known after the hearing ; and in 
 the final judgment of the Court, whatever it may be, 
 we are satisfied there w^ill be acquiescence. 
 
 At all events, the duty is one w^hich we have not 
 sought — which we cannot avoid. 
 
PERSONAL, 
 
 POLITICAL, HISTORICAL 
 
 AND 
 
 PHILOSOPHICAL. 
 
BURR, AARON. 
 
 I have just finished (November 29, 1837) the perusal 
 of the second volume of Davis's Memoirs of Aaron 
 Burr. I took up that work with the most bitter 
 prejudices against Burr, but I must confess that a 
 perusal of it has very much softened, if not entirely 
 eradicated, my detestation of his character. Burr, no 
 doubt, was a persecuted man. He had intrigue, per- 
 haps too much like Pope, he practiced it when a 
 straightforward course would have answered his turn 
 as well. This rendered him suspected ; being suspected, 
 made him suspicious ; being thus suspicious and sus- 
 pected, his conduct toward General Hamilton, on the 
 one hand, and the conduct of the administration 
 tow^ards him in relation to the liberation of Mexico on 
 the other, are accounted for. He went too far in call, 
 ing out General Hamilton, although he received serious 
 provocations which had never been caused, nor revenged 
 by similar conduct on his part. He was above abusing 
 a rival, but he would take all honorable means of 
 triumphing over him. Hamilton w^as not above abus- 
 ing a rival ; but he would not go to such lengths, 
 perhaps, to secure a triumph. As to his being guilty 
 of treason in 1806 and 1807, there is very little 
 grovmd to imagine such a thing. Aaron Burr was not 
 that devil incarnate w^hich I had supposed him to be. 
 
 The letters which passed between him and his 
 daughter are some of the finest models of epistolary 
 w^riting I ever saw. I think them superior to Lady 
 Mary W. Montague — not in mind, nor in polish, nor in 
 
78 MISCELLANEOUS WRITINGS. 
 
 literary merit, nor in refinement, but in that playful 
 ease, and in that eternal sprinkling of the purest attic 
 salt which should characterize the epistolary. They 
 are perfect specimens of letters. Everybody can see 
 that the author of the book has crow^ded as many of 
 these letters into it as he possibly could, in order to 
 exhibit Burr in his most attractive light — his private 
 relations — and thus abstract the attention of the 
 reader from the events of his public life. Though, on 
 a perusal of the book, one could not point out any 
 particular event of Burr's public life on which the 
 author could have been more full than he has been. 
 On the whole, the work is a good one, in my view, and 
 will tend to repress the imputation of sinister and vin- 
 dictive motives to public men, by teaching the lesson 
 that a man may be hunted down as a monster in 
 society, w^ho, to his own intimate friends, exhibited 
 the tenderest, noblest feelings of our nature. 
 
 A LOVE LETTER. 
 
 September 6, 1838.— "This world has not so 
 many charms for me as it once had. I have been 
 tossed on its ruder surges so long that I have learned 
 to look for pure and abiding happiness in some more 
 pure and abiding world. But life must be spent here . 
 duties must be discharged here, and I should be 
 tmgratefiil to my Maker if I did not believe that He 
 has provided me with some source of happiness con- 
 nected with the situation in which He has seen fit to 
 place me. But, w^here is happiness to be found. She 
 
ESSAYS— LETTERS. 79 
 
 is not seen in the giddy world of fashion, nor does she 
 smile on the plumes of vanity and conceit. She is 
 social in her nature, and domestic in her habits. Sweet 
 in her disposition, her smile is bewitching. Tenderness 
 beams in her eyes, and affection throbs in her heart. 
 Her own fireside is her empire ; beyond it her wishes 
 never extend. Good sense and intelligence are her 
 attendants ; religion is her Mend." Such is the picture 
 which I have often drawn of the purest earthly bliss — a 
 picture which has had its counterpart in real life, but 
 which I have had little hope ever to realize. 
 
 (Note.) This extract is part of a love letter which, however, waj 
 never sent to the person for -whom it -was intended. 
 
 ADMISSION TO THE BAR. 
 
 December 29, 1839.— On Wednesday evening, 
 
 November 13, 1839, I was examined, at Trenton, before 
 
 the Justices of the Supreme Court of New^ Jersey, on 
 
 application for license to practice law ; and on the 
 
 next day, licensed and admitted to practice as an 
 
 attorney at law and solicitor in chancery in said State. 
 
 The following Friday I started for Albany, and after 
 
 staying at home nearly five weeks, returned to 
 
 Newark Wednesday, 18th inst., where I still remain, 
 
 undecided w^here to settle. Whilst at home, I witnessed 
 
 much of the Helderberg disturbances, which elicited a 
 
 call firom the Governor of New York on the militia to 
 
 suppress them. No blood was shed but that of divers 
 
 pigs and fowls. 
 
 (Signed) J. P. BRADLEY. 
 
80 MISCELLANEOUS WRITINGS. 
 
 A PICTURE. 
 
 George B. Corkhill, of Washington, D. C, lately 
 purchased an engraving, a little old and rough look- 
 ing, exhibiting a Judge with ass's ears sitting on a 
 tribunal, with Justice blindfolded on his left. Before 
 him an old man brings forward a female figure, who 
 holds a torch in one hand, and with the other clutches 
 by the hair a little imp, who makes wry faces and 
 kicks about resistingly. Behind the female figure are 
 some attendants of hers, one of A^vhom carries a drag- 
 net on her shoulder. Guards stand at the door half 
 concealed. In the extreme left hand upper comer an 
 open -wrindow^ shows a demon in the distance on the 
 wing, dragging away a female figure, as if it were 
 a spirit taken to perdition. The engraving has a 
 legend, as foUow^s : 
 
 Attrahit insonte perjura calumnia Apelle. 
 In jus immiscens fanda nefanda simul 
 Auriculis judex insignis tepora aselli 
 Jus pariter reddit coUite cu comite 
 Temporis at demum quae fertur filia seros 
 In lucem profert qui latuere dolos. 
 
 Which may be freely translated thus : 
 
 " False swearing Calumny drags into Court 
 Apelles innocent. The stupid Judge, 
 Confounding Right and Wrong, his temples crowned 
 With Ass's ears, with blindfold Justice by. 
 Awards alike to both — the Good — the Bad. 
 Time's daughter (Truth), who now at length is brought. 
 Reveals the hidden Fraud, alas, too late ! 
 
 The moment seized by the artist seems to be that 
 at which Truth, with torch in hand, and clutching by 
 the hair the struggling imp, representing the fraud 
 
ESSAYS— LETTERS. 81 
 
 that has lain concealed, and which has just been 
 dragged from the water, reveals to the Court the 
 awful mistake it has made. The Judge seems greatly- 
 surprised, and poor Justice hangs down her head in 
 shame. The old man who brings " Truth " forward 
 may be either " Time " or the agonized father of the 
 victim, who was unjustly condemned, and whose spirit 
 is seen to the left carried away by a demon. The 
 drag-net of "Truth," held by one of her attendants, 
 show^s her perseverance in finding out the fraud, and 
 reminds us how all hidden things are brought to light 
 by her indefatigable efforts, even from the bottom of 
 the sea. 
 
 The engraving has inscribed on a slab or caryatides, 
 in the body of the piece, this note : " Georgius Ghisi, 
 Mant. f 1560." That is, executed by George Ghisi of 
 Mantua 1560. At the foot is inscribed on a scroll, 
 " Luca Penis, in." That is, " Luca Penni's design." 
 Luca Penni was bom 1500, and was a scholar of 
 " Raphael." Ghisi of Mantua was a generation later. 
 In Spooner's Biographical history of the Arts, under 
 the title " Ghisi, George," is a list of some of Ghisi's 
 engravings, and amongst others, this, "An allegorical 
 subject representing a Judge on his tribunal with ass's 
 ears, after Luca Penni." The engraving purchased by 
 Mr. Corkhill is probably a French copy. I judge that 
 it is not an original, because wanting the artist's 
 monogram, and because it has an imprimatur, "cum 
 privilegio regis." It may have been copied in the 
 reign of Louis XIV or XV. 
 
 (Signed) J. P. BRADLEY. 
 
 June, 1882. 
 
82 MISCELLANEOUS WRITINGS. 
 
 201 " I " Street, June 9, 1882. 
 Dear Mr. Corkhill : 
 
 In looking over my version of the legend of your 
 engraAring, it occurs to me that the " immiscens fanda 
 nefanda simul " may be attributed to the Prosecutor, 
 " Calumnia," rather than to the Judge, whose greatest 
 crime appears to be his stupidity. Correcting it on 
 this theory, the rendering would be : 
 
 False swearing Calumny drags into Court 
 
 Apelles innocent, and guileful pleads, 
 
 Together mixing up things Right and Wrong. 
 
 The Judge with ass's ears on temples grown, 
 
 Like judgment gives, with blind associate by, 
 
 Time's daughter (Truth), who now at length is brought. 
 
 Reveals the hidden fraud, alas, too late. 
 
 This is more liberal, and seems to be more in keep- 
 ing with the original. 
 
 Yours truly, 
 
 (Signed) JOSEPH P. BRADLEY. 
 
 TRANSLATION OF LUCAN'S EULOGY ON POMPEY. 
 
 Casta domus luxuque carens, corruptaque ninquam 
 Fortuna domini, clarum et venerabile nomen 
 Gentibus, et multum nostrae quod proderat urbi. 
 
 A household chaste, of luxury devoid 
 And by its master's fortune uncorrupt. 
 A name renowned and venerated wide 
 Among the peoples, and that hath enhanced 
 
 Our city's weal. 
 
 Lucan's PMarsalia, /.Y. 
 1884. 
 
ESSAYS— LETTERS. S3 
 
 TO MY SISTER "MARY," MARCH 14, 1886. 
 
 The clouds are gathering, soon the night will come, 
 
 And we shall reach our long-expected home. 
 
 But from the mile post marked with " Seventy-three " 
 
 I hail you, sister, where you follow me ; 
 
 Six stages back is all the space between, 
 
 For you, as I, the best of life have seen ; 
 
 The most, if not the best, for who can know 
 
 Which is the best for mortals here below. 
 
 Youth, hope and fancy, or the sober close 
 
 Of life's long trials settling to repose. 
 
 Lit up by gleams reflected from that shore 
 
 Where wait our loved ones who have gone before ? 
 
 They wait, they beckon, why should we withstand 
 
 The law that draws us to that happy land ? 
 
 Then, cheerful, onward, let us hence pursue 
 
 The journey left that hides that land from view. 
 
 (Signed) J. P. BRADLEY. 
 
 ANSWER TO A REQUEST FOR A MOTTO. 
 
 Washington, 19th Sept., 1887. 
 Dear Sir : 
 
 I know of no motto truer or more to be studied by 
 
 a young man than the following : 
 
 Haec sunt Fortunae optima dona : 
 Sana mens in corpore sano, 
 Sedulus labor, probitas pura. 
 
 The best gifts of fortune are these: 
 Health of body, a sound understanding. 
 Pure integrity, industry untiring. 
 
 Yours truly, 
 
 (Signed) JOSEPH P. BRADLEY. 
 
 Mr. Ellery S. Ayer, 
 
 Boston. 
 
84 MISCELLANEOUS WRITINGS. 
 
 DREAMLAND. 
 
 I do not know whether I am singular, but I have 
 a dream-world to which I often repair in sleep. I do 
 not refer to those phantastic scenes and incidents 
 which have no rational connection or cause, and which 
 often attend our unquiet slumbers, and leave little 
 trace behind, or any deep impression. My dream- 
 world is very different. It has generally the same 
 phantasmagoria of surrounding objects and scenery, 
 and is altogether a pleasant and homogeneous system 
 of things. The singularity of it is, that it has this 
 constant sameness after the lapse of years. The prin- 
 cipal scene is located in a city, having a great resem- 
 blance to the City of Newark, where I formerly resided 
 and in this underworld city I am always residing and 
 have an office in the business part of the town, on 
 the ground floor, fronting on the main street ; but it 
 is usually closed in consequence of my prolonged 
 absences. I sometimes go in to look over some old 
 and rare books that I keep there — books the like of 
 which I never saw in my waking moments. One of 
 these books is at least a yard in height, and half a 
 yard in width, and at least four inches thick. The 
 binding is very old and heavy, the comers being 
 much frayed. The print is large and in double, and 
 sometimes treble, columns on the page. It is hard to tell 
 what the subject of it is. It contains chapters on law, 
 and on chronology and on philosophy and on religion, 
 and I find some very curious things in it, some of 
 which, if I get time, I will relate. There are other 
 old books of various sizes, some nearly as large as 
 the one I have described, and thence ranging down to 
 
ESSAYS— LETTERS. 85 
 
 ordinary quartos and royal octavos. I have generally 
 some anxiety when I visit the office to see whether 
 any of the books have been stolen. I sometimes 
 find them disarranged, but generally put them in 
 their proper places again. My principal trouble arises 
 from the improvements that are often going on in the 
 neighborhood. They have been building a row of 
 brick houses in the rear, on the next street, and the 
 lots join. I am constantly fearfiil lest the workmen 
 will come on to my lot and get into my back windows 
 and carry off some of my books, and then sometimes 
 when I am absent, and one of my clerks, or young 
 men, occupy the office part of the day, other lawyers 
 come in and borrow^ the books ; and some forget to 
 return them. In going up and down the street, I meet 
 many of my old acquaintances, long since dead, and 
 have many interesting conversations with them. I 
 visit this dreamland, sometimes as often as once a 
 month, sometimes only after an interval of a year 
 or more, but I always find it the same, and the old 
 books the same. The impression of its reality has 
 become so strong that even in my w^aking moments 
 I sometimes imagine for an instant that I possess 
 those old books somew^here, and do not recover from 
 the hallucination until I begin to inquire with myself 
 w^here they are. 
 
 Washington, January 27, 1889. 
 
86 MISCELLANEOUS WRITINGS. 
 
 THE MARITAL RELATION. 
 
 ASSOCIATE JUSTICE BRADLEY IN THE " NORTH AMERICAN 
 REVIEW" FOR DECEMBER, 1889. 
 
 As marriage and the family institution constitute 
 the foundation and chief comer stone of civil society, 
 it is of the greatest moment that the marriage-tie 
 should never be dissolved save for the most urgent 
 reason. I cannot assent, however, to the doctrine 
 that it should never be dissolved at all. Mere separa- 
 tion, though legalized, wotdd often be an inadequate 
 and unjust remedy to the injured party, who would 
 thus be subjected to an enforced celibacy. This might 
 suit the notions of those w^ho regard celibacy as a 
 virtue, but would fail to approve itself to those who 
 take a wider and more charitable view of human 
 nature. The divine law, which says, " What God has 
 joined together let not man put asunder," immediately 
 adds an exception, " save for the cause of fornication," 
 showing what the law of nature dictates, that the case 
 is not governed by any iron rule of universal application. 
 The law, " Thou shalt not kill," has its necessary excep- 
 tions, a disregard of w^hich would render it mischievous 
 in a high degree. I know of no other law on the 
 subject but the moral law, which does not consist in 
 arbitrary enactments and decrees, but is adapted to 
 our conditions as human beings. This is so, whether 
 it is conceived of as the will of an all-vdse Creator, or 
 as the voice of humanity, speaking from its experience, 
 its necessities and its higher instincts. And that law 
 surely does not demand that the injured party to the 
 
ESSAYS— LETTERS. 87 
 
 marriage vows be forever tied to one who disregards 
 and violates every obligation which it imposes ; to 
 one with whom it is impossible to cohabit ; to one 
 whose touch is contamination. Nor does it demand 
 that such injured party, if legally free, should be 
 forever debarred from forming other ties through 
 which the lost hopes of happiness for life may 
 be restored. It is not reason, and it cannot be 
 law, divine or moral, that unfaithfiilness, or wilful 
 and obstinate desertion, or persistent cruelty of 
 the stronger party, should afford no grounds for 
 relief The most rigid creeds, to the contrary, have 
 found methods of dispensation from the theoretical rule. 
 And if no redress be legalized, the law itself will be set 
 at defiance, and greater injury to soul and body vrill 
 result from clandestine methods of relief. Yet so desir- 
 able is the indissolubility of marriage as an institution, 
 so necessary is it to the happiness of families and the 
 good of society, so pitiable the consequences that often 
 flow from a dissolution, that every discouragement 
 to such a remedy should be interposed. Not only 
 should the Judge take every care to see that just 
 cause exists, but that no other remedy is possible. 
 No jugglery or privacy should be tolerated, however 
 high in station the parties may be. Investigation of 
 the truth should be thorough and open, and should 
 be a matter of public concern, participated in by the 
 public representative of the law. It should be regarded 
 as a quasi-criminal process, if not accompanied with 
 criminal sanctions. Only serious and even severe 
 methods of administering the law will be sufficient to 
 repress the growing tendency of discontented parties 
 to rush into divorce courts. 
 
88 MISCELLANEOUS WRITINGS. 
 
 RUTGERS' ALUMNI DINNER. 
 
 LETTBR OF "REGRET" SENT BY JOSEPH P. BRADLEY, DATED 
 WASHINGTON, FEBRUARY 26, 1891. 
 
 L. Laflin Kellogg, Esq., 
 
 Dear Sir : — I am sorry that I cannot be present 
 to-morrow evening to join our alumni at their annual 
 dinner, and to answer personally to the toast of " The 
 Bench." I can only say in this circumscribed w^ay, 
 that " The Bench " of the forum is quite as uneasy 
 and anxious a seat as "The Bench" of the country 
 schoolhouse, or the old stone college, without the oppor- 
 tunity of cutting your name on it with a jackknife. 
 That must be done with a diflferent weapon. How 
 deeply w^e all sympathize wth each other on looking 
 back, with a sigh, to those happy days when the only 
 care was to con a lesson well, or to make a creditable 
 recitation ; and yet, as the boy is father to the man, 
 so the college is mother — alma mater — to every branch 
 of professional life, looked back to, looked up to as 
 the source of all that is good or excellent in years of 
 riper development. But the standards of attainment 
 and approbation, how different ! It is not now a 
 question of Greek roots, or mathematical abstractions, 
 with anxious desire to win a professor's smile ; it is a 
 question of honest duty performed in the hard strug- 
 gles of life ; of wisdom daily acquired ; of " increasing 
 in favor with God and man," each of us squaring his 
 life, or trying to do so, by some standard appropriate 
 to his calling ; the merchant, by probity and diligence 
 in business ; the physician, by the most advanced 
 
ESSAYS— LETTERS. 89 
 
 analysis of human ills and their remedies ; the divine, 
 by the lofty ideals of sacred literature and the moral 
 manifestations of modem society ; the lawyer, by 
 studying the fountains of jurisprudence, as applied to 
 the phases of every-day business ; the jurist, by the 
 lights of truth and justice, from whatever source 
 derived, and all with a watchful world for spectators 
 and audience and judges. 
 
 Before us, on the Bench, stands the awfiil Goddess 
 of Justice and Law, watching every word and weigh* 
 ing every decision ; if we make a mistake, sending a 
 chill through every vein ; if we decide right, rew^arding 
 us only with a kindly nod of approval, but leaving us 
 to incur small thanks, and often deep curses, firom 
 those whose cases w^e are called upon to determine. 
 And, how fearful is the abiding consciousness, that, 
 however just our decisions may be, wretchedness, 
 poverty, ruin on one side or the other, may hang on 
 our words. Rejoice, fellow^ Alumni, for your freedom 
 from such trials. Your pursuits do not necessarily 
 involve, as our functions often do, the ruin of fortunes 
 and the destruction of all hope in the world. 
 
 So the Bench greets you -with the vnsh that you 
 may never have occasion to approach it, except as 
 idle and disinterested spectators, or with an invitation 
 to another "Alumni" dinner. 
 
 Let me give you something new and fresh : " Sol 
 ustitiae et occidentem illustra." 
 
90 MISCELLANEOUS WIUTIN&S. 
 
 EQUALITY. 
 
 " We hold it to be self-evident that all men are 
 created equal." This is our creed as a nation. 
 But the question of importance is, in what respect 
 equal ? Not equal in mind, for this experience teaches 
 us to be untrue. Not equal in compared vigor, for 
 this is contrary also to experience. Not equal in the 
 dispensations of Providence, nor equally favored by 
 fortune. In fine, there is scarcely one thing in which 
 we may be said to be equal. In what sense is it, then, 
 that we are declared to be equal by the Declaration of 
 Independence ? The answer must be, politically equal. 
 But again, w^herein does this political equality consist ? 
 Does it consist in the distribution of wealth, and a 
 common possession of the comforts and elegancies of 
 life ? Certainly not ; or else the great apostles of 
 our liberty ; our Washington, our Franklin, our Adams, 
 our JeiSerson, were traitors to their creed, and selfishly 
 dismissed from their intentions the design of realizing 
 the great doctrines which they so solemnly avowed. 
 Besides, it caimot be in this sense that they meant ; 
 for in this sense it would be nonsense and vanity. 
 The luxuries of life do not consist merely in dollars 
 and cents. These, it is true, might be distributed 
 with a comparative ease amongst the expectant throng. 
 But there are your music, your paintings, your other 
 trophies of art ; there are your stores of literature, 
 your black letter, your dead letter, your antiquities, 
 j'our offsprings of the muse, there are your refined 
 emotions, your generous feeling, your whole aspira- 
 tions — all these, and ten thousand more are real, bona- 
 fide luxuries, that not only occupy, but enchant 
 
ESSAYS— LETTERS. 91 
 
 hundreds and thousands who are susceptible of what 
 they are calculated to inspire. Now, if one class of 
 luxuries may be possessed in common, there is no 
 reason w^hy every class may not be — as, if we are all 
 created equal, it were unjust that any should have at 
 their command sources of delight which are denied to 
 the rest. But there are many species of luxury, those 
 in partictdar which I enumerated, w^hich the great 
 mass of mankind are incapable of enjoying,, and of 
 w^hich they ever would be incapable, how" equably 
 soever the grosser attendants of prosperity might be 
 distributed. Hence an equalization of w^ealth w^ould 
 not be followed by an equal power of enjoying life 
 (which is the object of w^ealth), and the very object 
 proposed would never be attained. Further, a dull 
 equalization of wealth would smother enterprise^ 
 produce listlessness, and induce a man, instead of 
 aiming to support himself by his own exertions, 
 to depend for his support upon the rest, conscious 
 always that however indolent and inactive him- 
 self might be, he would still share an equal 
 portion with his fellows — with even the most 
 industrious of them ; for any attempt to ptmish 
 inactivity by subjecting it to want, would be an 
 admission of the principle that industry should be 
 rewarded, and this is the great principle that supports 
 the present machinery of society. Leaving then the 
 notion that community of wealth is meant by the 
 equality alluded to in the Declaration, what else, may 
 we ask, can it mean ? Does it mean social eqality ? 
 Such a state would make all the classes (I do not say 
 orders) of society commingle their intercourse ; would 
 introduce the cobbler into the most elegant drawing 
 
92 MISCELLANEOUS WRITINGS. 
 
 room to take a cup of tea with the gayest belle of the 
 town, or else, perhaps, to debate with grave Senators 
 on the affairs of State. Could this have been meant ? 
 Certainly not. This is the least possible of all mean 
 ings that could be attached to the term. Men will 
 choose their own company in whatever state of society 
 you may choose to place them. This is the last 
 vestige of liberty with which they are willing to part, 
 and any state of society which forbids a man this 
 privilege, I shall neither contend for nor against. In 
 what, then, can this political equality consist ? Does 
 it consist in each man having an equal voice in the 
 civil government of his country ? This is what I con- 
 ceive it to be. But this is exercised originally, and 
 only so. After the elements of society are once organ- 
 ized in the least, after some one has exercised the 
 privilege (which belongs equally to all) of nominating 
 a chairman or a president in any meeting of the 
 citizens — after that moment — after the choice of that 
 chairman has been approved, much of the authority, 
 w^hich till then was equally exercised by all, is now^ 
 confided to him. If this meeting adopt a constitutioti 
 for the regulation of their conduct, a constitution 
 which any soul of them had the privilege of proposing, 
 then and thereafter that constitution is charged with 
 much of the authority which, till then, had existed only 
 in the people. Thus, by public decrees and constitutions, 
 the people deposit a certain portion of their own 
 power with particular individuals, and these individuals 
 have, then, a right which the multitude has not, of 
 making laws and administering government. Rights, 
 it will be observed, are delegated to them. They are 
 not made a privileged class. We have no orders of 
 
ESSAYS— LETTERS. 9;-5 
 
 society. No privileged classes. We have a plenty of 
 classes, and this class is one of them. It is made their 
 business and their datj (they might have declined if 
 they pleased) to attend to public matters. It all 
 arises from the necessity of the division of labor. All 
 cannot rule, nor can all be ruled. All cannot plow, 
 nor can all sow, nor reap. No more can all neglect 
 such employments, else the race would become extinct. 
 Each has his business to perform, his part to act. It 
 is a duty he owes to the rest as well as to himself. 
 In this way, all are equally dependent, equally necessary, 
 to the body politic. Hence, all have an equal right to 
 govern the whole where that right has not been pre- 
 viously conveyed away. This is Political Eqality. 
 
 POLITICAL ECONOMY. 
 
 Prof. Perry defines Political Economy to be the 
 Science of Exchanges, or, in other w^ords, the Science 
 of Value. This does not accord with my notion of 
 the science. Exchange and value have much to do 
 w^ith political economy, and play an important part ; 
 but it seems to me to be rather the science of pro- 
 ducing National Wealth ; that is to say — public and 
 private resources. 
 
 The questions which political economy professes to 
 answer, or ought to answer, are such as these : What 
 are the best methods of supplying a given society with 
 all its material needs ? Under the circumstances, is 
 agriculture essential ? If essential, how can it be 
 
94 MISCELLANEOUS WRITINGS. 
 
 encouraged ? May it be encouraged at the expense of 
 manufactures ? Or is it better to leave both to the 
 natural laws that govern action ? Will the erection 
 of railways be advantageous ? Or may the capital 
 expended on them be laid out to better advantage ? 
 If the means of intercourse and transportation are 
 sufl&ciently subserved by water in the particular case, 
 and if capital expended on railways would be wasted, 
 would the employment of such surplus capital in the 
 erection of steam engines and machinery be beneficial so 
 as to multiply the forces of production ? Or, would it be 
 better to invest it in commerce with foreign countries ? 
 And, if the same amount of wealth could be created 
 by each course, which w^ould be the preferable in the 
 long run, as affecting the future well-being of the 
 State ? Is the encouragement of the fine arts calcu- 
 lated to promote the physical or material prosperity 
 of society ? 
 
 In short, we expect political economy to tell us the 
 effect of all measures and all pursuits on the general 
 supply and distribution of material resources, and 
 consequently, upon the national well-being, so far as 
 material resources are concerned. 
 
 To produce national valor, military science is to be 
 consulted ; national virtue, moral science ; national 
 intelligence, educational science ; but the secret of 
 national wealth must be sought in the science of 
 political economy. The study of all these sciences 
 may be necessary to understand the entire necessities 
 and well-being of a State ; for intellectual and moral 
 development and military power may be as essential 
 as wealth and resources to the national prosperity 
 and glory, and each of these aspects of social great- 
 
ESSAYS— I.ETTERS. 95 
 
 ness may be but necessary complements of the others 
 all being required to produce that symmetrical com- 
 pleteness which alone can produce true national 
 aggrandizement. 
 
 Professor Perry, adopts Frederick Bastiat's defi- 
 nition of value as the relation between two services 
 exchanged. He also dilates on the excellency of the 
 word " service " for explaining the principles of politi. 
 cal economy. But I thinli he uses the word service 
 ambiguously, namely, both for the efforts or labor by 
 which one performs a service, and for the utility which 
 it subserves to him who receives it. Thus, we say : A 
 rendered service to B, which was of great service to 
 him; i. e., A performed a labor which was of great 
 utility to B. These ideas are very distinct the one 
 from the other. The same labor may be of great utility- 
 to-day and no utility to-morrow. Now, the value to 
 me is the utility to me. 
 
 Professor Perry defines utility to be the capacity 
 which any thing or any service has to gratify any 
 human desire. 
 
 FENIANISM. 
 
 Whilst equal representation and industrial privileges 
 are to be sought in every legal way, political separa- 
 tion or independency for Ireland is a delusive dream. 
 Eifort in that direction will only injure the Irish 
 cause. For, think : the British Empire is the most 
 pow^erful in existence. It embraces the earth, and 
 all its power would be put forth to prevent an 
 independent kingdom so near its heart as Ireland. It 
 
96 MISCELLANEOUS WRITINGS. 
 
 is as if Lombardy (or Cisalpine Gaul) had attempted 
 independence in the height of the Roman power. 
 When the British Empire goes into disintegration 
 (which it will at some future time) Ireland may be 
 independent. But that catastrophe is not to be 
 expected, not even wished for, now. The centers of 
 civilization are not so distributed, nor are its forms 
 so perfect as to make it desirable. America, perhaps, 
 might be the gainer, for she is now subservient to 
 the financial supremacy of England. But the world 
 would be an immense looser, and in the general loss, 
 even America would participate. Ireland could not 
 anticipate much benefit from such a cataclasm. She 
 w^ould be deeply involved in it. 
 
 But at all events, whoever seeks to make Ireland 
 independent must aim at nothing short of the destruc- 
 tion of the British Empire, w^hatever other conse- 
 quences may ensue. That is the necessary objective. 
 
THE POLITICAL EXPRESSIONS 
 
 JOSEPH P. BRADLEY. 
 
 COMPILED PROM 
 
 SPEECHES AND ARTICLES WRITTEN BY HIM. 
 
 Published in the Newark Daily Advertiser at 
 different periods during 1860-1862. 
 
 MR. BRADLEY'S RECORD. 
 
 As the position and views of J. P. Bradley, Esq., 
 on public matters in time past, are a matter of some 
 interest at present, we have taken the pains to gather 
 from the columns of the Advertiser various reported 
 speeches made by him in 1860 and 1861, and articles 
 from his pen. 
 
 These pieces indicate very clearly the views which 
 Mr. Bradley is well known by his friends to have 
 entertained and freely expressed. That his views on 
 the Slavery question and compromise w^ith the South, 
 previous to the breaking out of the Rebellion, were 
 very conservative, is well understood wherever he is 
 personally known. He took a deep interest in the 
 efforts to bring about a compromise without the 
 effusion of blood, in December, 1860, and January and 
 February, 1861. Amongst other things, he drew up 
 tw^o articles amendatory of the Constitution, and 
 pressed them upon the attention of the famous Com- 
 mittee of 33, appointed by Speaker Pennington, under 
 
98 MISCELLANEOUS WRITINGS. 
 
 a resolution of the House of Representatives. At one 
 time the indications were quite favorable for the success 
 of these articles in committee — a number of leading 
 Republicans having been induced to advocate them, 
 and it being w^ell understood that they would have 
 been entirely satisfactory to all the Border States. 
 
 The articles referred to, with a brief introduction, 
 were published in the Advertiser December 3, 1860, 
 the day of the opening of Congress. They are as 
 follows : 
 
 COMPROMISE. 
 
 No compromise is good for anything unless founded 
 on justice. The fourth article of the Constitution of 
 the United States requires and mutually pledges, that 
 fugitives from justice or service, from one State, shall, 
 on demand, be delivered up by another w^here they are 
 found. Justice requires that if this be not done, satis- 
 faction should be made. Justice also requires that the 
 citizens of the South, as well as the North, should 
 have a fair opportunity to emigrate, with their prop- 
 erty, to the territories which have been purchased with 
 the common treasure. But as slave labor and free 
 labor do not prosper together, expediency demands a 
 division of those territories between the parties. No 
 business man can say that these are not the dictates 
 of justice, as between the parties. The following 
 terms of compromise are based on these ideas, and we 
 suggest them for consideration : 
 
 [Amendments to the Constitution of the United States, to be 
 proposed by Congress to the Legislatures of the several States for 
 adoption ; requiring a two-third vote in Congress and a ratification 
 by three-fourths of the several States.] 
 
POLITICAL EXPRESSIONS. 99 
 
 ARTICLE XHT. 
 
 Slavery or involuntary servitude, other than for the punishment 
 of crime, shall not be permitted in any of the Territories of the United 
 States north of thirty-six degrees and thirty minutes north latitude ; and 
 shall not be prohibited in any of the said Territories south of that par- 
 allel ; proruided, however, that any State which may be formed out of any 
 portion of said territory, shall have full power in the premises within 
 its own bounds, after the lapse of twenty years from its admission into 
 the Union, and not before ; and provided, also, that any person 
 escaping into any such State or Territory, from whom labor or service 
 is lawfully claimed, shall be delivered up on claim of the party to 
 whom such service or labor may be due according to the fourth article 
 of the Constitution, and any laws passed in pursuance thereof, as 
 heretofore. 
 
 ARTICLE XrV. 
 
 If a person held to service or labor in one State, under the laws 
 thereof, shall escape into another, shall, in due form, be claimed and 
 identified by the party to whom such service or labor may be due, in 
 accordance with the fourth article of the Constitution, and any laws 
 passed in pursuance thereof ; and by reason of rescue or other forcible 
 interference with the due course of law, shall not be delivered up on 
 such claim according to the said fourth article, the said claimant shall 
 be indemnified, therefore, by the county in which said fugitive shall be 
 so claimed, which indemnity may be sued for and recovered in any 
 Courts of the United States. 
 
 The next article on the subject from Mr. B.'s pen 
 was published December 15, 1860, and was embodied 
 in an editorial in the Advertiser of that date. It was 
 as foUow^s : 
 
 " If no better remedy presents itself, let amendments 
 to the Constitution be proposed by Congress and 
 ratified by three-fourths of the States, completely 
 indemnifying holders of fugitive slaves, and giving the 
 slaveholding States a fair division of the public terri- 
 tory. This would obviate the constitutional objections 
 to the Missouri compromise. The territories were 
 
100 MISCELLANEOUS WRITINGS. 
 
 purcliased by the common treasure, and it is just 
 that the South as well as the North should enjoy 
 the benefit of them. But free labor and slave labor 
 cannot prosper together. Therefore it is fitting and 
 expedient that these territories should be fairly divided. 
 This would designate to each party their proper rights, 
 and would prevent any unseemly collisions. Let this 
 division be made fairly, and let it be made for all time. 
 This is just and wise. It cannot fail to meet the 
 approbation of the requisite number of States. The 
 people of the North are not unfriendly to those of 
 the South. The charge to the contrary is a slander. 
 Noisy and blustering persons, both at the North and 
 at the South, utter many foolish and crazy speeches ; 
 but the mass of the people have no sympathy with 
 them. This we know to be so at the North, and we 
 hope it is so at the South. We are sure it wotdd be so 
 if the people in that section clearly understood the 
 true feeling of the North tow^ards them. 
 
 " In such an exigency as the present no party feel- 
 ing should be permitted to intermingle. But are there 
 any reasons w^hy the Republican party should not 
 co-operate in such a settlement of the controversy as 
 that which is indicated ? 
 
 " The Republican party (unjustly, we know) is 
 deemed a sectional one ; and is held responsible for 
 arousing a strong sectional feeling — a feeling of 
 animosity to institutions on one hand, and jealousy 
 on the other. A disruption of the Union will be 
 unjustly laid to it. But it will, nevertheless, be laid to 
 it. It is, therefore, as much the interest of the Repub- 
 lican as of any other party to co-operate in such 
 measures as may lead to an honorable and just settle- 
 ment of existing difficulties. 
 
POLITICAL EXPRESSIONS. 101 
 
 " But rightly viewed the healing measures proposed 
 are in strict conformity -with the views and principles 
 of that party. This will appear by attention to the 
 following propositions : 
 
 " The Compromise of 1850 resulted in the admis- 
 sion of California as a free State, though situated in 
 part south of the Missouri Compromise line ; and in 
 the enactment of the Fugitive Slave law^, leaving the 
 Missouri Compromise line in all other respects undis- 
 turbed. It was supposed that this settlement would 
 be satisfactory to the country, and forever quiet 
 agitation. 
 
 " But the rapid settlement of Kansas, and its 
 immediate proximity to the slave property of Missouri, 
 opened a door for renewed and angry controversy. 
 The South sought to occupy that Territory, as an 
 off-set to California. To effect this object, the Kansas 
 and Nebraska act was promoted by Mr. Douglas and 
 passed by Congress in 1854, by which the Missouri 
 Compromise was repealed. The decision in the Dred 
 Scott case was used for the furtherance of the same 
 purpose. 
 
 " At these manifestations of the rapid strides made 
 by the slave power, the North rose in the shape and 
 form of the Republican party. Its special mission was 
 to drive back the tide of slavery within its proper 
 limits— not by waging war on the South or by ignor- 
 ing the obligations of the Constitution— but by rescuing 
 the territories of the Union from the unjust grab of 
 the slave power. 
 
 "If, now, the Republican party vigorously sup- 
 port a Constitutional provision by which the nation 
 is brought back to the Missouri Compromise, can it be 
 
102 MISCELLANEOUS WRITINGS. 
 
 justly accused of being false to the principle of its 
 organization ? On the contrary, no course could be 
 more compatible with it. No act could more fully 
 consummate the mission of the Republican party. 
 
 " This object attained, that party has still enough 
 on its hands to do. To it naturally falls the cham- 
 pionship of the industrial interests of the country. In 
 the pursuit of this object, which is purely a national 
 one, the party will receive the co-operation of the con- 
 servative party of the South, and the two wiU form 
 one great national party of impregnable strength. 
 
 " As to the other point, the indemnity of owners 
 of fugitive slaves rescued or withheld, it is a matter 
 of simple justice. Each State rests under a clear con- 
 stitutional obligation to restore fugitive slaves w^hen 
 demanded. If they fail to do so, it is clear that the 
 owner should be indemnified, and the delinquent parties 
 made to bear the loss. 
 
 " Thus on party, no less than on patriotic grounds, 
 every consideration of right and expediency leads us to 
 the same conclusion. We assure our Representatives 
 and the country that they will have the voice of New 
 Jersey in favor of every honorable effort which can be 
 devised for preserving the national existence." 
 
 [Published December 2S, I860.] 
 
 PARTY OR COUNTRY ? 
 
 St. Paul knew that meat which had been conse- 
 crated to idols was just as harmless as that w^hich 
 had never undergone such an absurd formula. But 
 many tminformed Christians had not that degree of 
 
POLITICAL EXPRESSIONS. 103 
 
 knowledge ; and if they saw him eat it, they would 
 either be scandalized, or else infer that a religious 
 respect for the idol was not inconsistent with the 
 Christian faith. "Wherefore," said the Apostle, "if 
 meat make my brother to offend, I will eat no meat 
 while the world standeth." This is a noble instance 
 of that charity which our divine religion inculcates. 
 
 The Republican party has succeeded in electing its 
 candidate for the Presidency. It says that it means 
 nothing but fealty to the Constitution, and intends no 
 invasion of the rights of the South. This is well. But 
 the South believes otherwise. The South may be 
 uninformed, or wrongly informed, on the subject. 
 But, nevertheless, it is a fact that a great deal o 
 exasperation exists ; and exasperation has led to acts 
 and declarations which are leading to the disruption 
 of the Republic. 
 
 In all this the South may be very wrong — ^undoubt- 
 edly is very wrong. The South, especially South 
 Carohna, has acted very unjustifiably, not to say 
 treasonably. There is no justification for secession — 
 w^hich is simply rebellion. And if the South was going 
 to injure itself alone, it might, perhaps, be a just retri^ 
 bution to let it separate from the North. But it will 
 not injure itself alone. In breaking the ties that con- 
 nect us together, the South would bring ruin on the 
 common country. The fatal act would bring disgrace 
 on free institutions ; it would prove what the advocates 
 of despotism are anxious to prove, the incapacity of 
 mankind for self-government ; it would destroy the 
 prestige of this nation, and all the associations dear 
 to freedom, which are connected with it ; and, in this 
 w^ay, independent of any consequences to our material 
 
104 MISCELLANEOUS WRITINGS. 
 
 interests, it would involve ruinous consequences to the 
 whole American community, and to the cause of civil 
 liberty throughout the world. 
 
 Of this there can be no doubt. Vain is the hope 
 of re-establishing a portion of the shattered fragments 
 of a divided country into a new government of the 
 North, to be based on firmer fotmdations and cemented 
 together with a more fervent loyalty than the present 
 government has enjoyed. Those who bold out this 
 hope are deceiving us. They are either self-deceived or 
 they are inflamed with personal ambition — animated 
 by that bad spirit which had rather rule in hell than 
 serve in heaven. 
 
 The choice is before us, disunion, with probable 
 civil w^ar ; or concession and peace. But will conces- 
 sion bring peace ? and can peace be secured by honor- 
 ble concession ? Of this, not the slightest doubt exists. 
 All the South asks is a guaranty that the victorious 
 North will not trample on their rights. Give them, in 
 the first place, substantial security that their fugitive 
 slaves shall, if demanded, be returned ; or that they 
 shall receive the value of them if rescued out of their 
 hands. This is a just demand. They have a right to 
 ask it. They do not now practically receive the benefit 
 of that article of the Constitution which requires their 
 fugitive slaves to be delivered up. In attempting to 
 secure the benefit of it they have to run the risk of 
 being mobbed, or of being delayed by expensive suits 
 instituted under personal liberty laws, habeas corpuses, 
 and other machinery of that kind. Let us do them 
 justice in this respect. Let us fairly comply with our 
 constitutional duties, and treat the South like brethren, 
 not like enemies. It is all they ask us to do. That is, 
 that'it is all that the great majority ask us to do. 
 
POLITICAL EXPRESSIONS. 105 
 
 In the next place, they ask us to secure to them a 
 fair proportion of the public domain, to which they 
 may emigrate with the same freedom from molestation 
 which we enjoy in emigrating to the Northwestern 
 lands. This is also just. The public lands are the prop- 
 erty of the whole nation. It is not fair in us to grasp 
 them all. They wotdd be satisfied with the line of 
 thirty-six degrees and thirty minutes as a line of 
 division. New^ Mexico and Arizona are the only Terri- 
 tories south of that line. It was the line with which 
 the nation w^as satisfied for a generation. Why not 
 re-adopt it ? 
 
 But that w^ould be against the principles of our 
 party ! Is fealty to party to stand before fealty to 
 the country ? Is a divided country, torn by civil dis- 
 sensions, to be preferred (for it certainly will come) to 
 a generous concession of some rigid party dogma ? 
 Then I am no party man. Then I repudiate party. 
 
 But it is not so. The Republican party can 
 re-establish the Missouri line with perfect honor — and 
 without the sacrifice of a principle. They w^ould 
 thereby secure to free labor three-fourths of the public 
 territory, all of which, by the highest judicial authority 
 of the nation, is now^ declared to be open to slavery 
 equally as to free emigration. 
 
 Shall we say that the Court decided wrong ? That 
 may be. All Courts are liable to error. But peaceful 
 and judicial decision, under a government of law, is 
 far better than an appeal to arms. At all events, such 
 is the decision ; and the constitutional mode of correct- 
 ing it is not by disregarding it, but by amending the 
 Constitution upon which the decision was made. 
 
 Fellow Republicans ! the issue is in our hands. 
 Some of our number desire a disruption of the Union 
 
106 MISCELLANEOUS WRITINGS. 
 
 for the very purpose of erecting a Northern Republic. 
 Shall we be led by them into the yawning gulf which 
 lies at our feet? They will counsel us against all 
 concession. I regard them but little better than the 
 rebels of the South. Our ambitious politicians are 
 bent on ruining us. Let the people rise in their might 
 and speak a voice for Union and the country that will 
 make politicians listen and tremble. 
 
 They say, " Who's afraid ? I will tell you. Fools 
 and madmen are not afraid. But those who foresee 
 the evils that are to come— they are afraid. They fear 
 for their country, and for the fate of civil liberty in 
 the world. 
 
 [Published February 20, 1861.] 
 
 BACKBONE. 
 
 Some papers and speakers are constantly talking 
 of backbone. " Don't back down from your principles," 
 is their motto. It is well to understand what this 
 means. 
 
 There are three distinct parties at the North : First — 
 Democratic politicians, w^ho seek every opportunity to 
 turn the public crisis to their particular party advan- 
 tage, by representing that the Republican party is an 
 association of enemies to the Constitution and country. 
 Their constant effort is to place the Republicans in 
 the w^rong. They profess to be friends of Southern 
 rights, and eagerly put forward such plans of com- 
 promise and conciliation as they inowwill be distaste- 
 ful and revolting to the Republican feeling. They do 
 this in order to drive the Republicans to the position 
 of enemies to all compromise. 
 
POLITICAL EXPRESSIOXS. 107 
 
 Second — Republican politicians, some of whom 
 appear to think more of a Chicago platform than they 
 do of the Bible— or, at least, profess to do so. They care 
 fifty times as much for their party and its programme 
 as they do for the country. When urged to concur in a 
 compromise with the Border Slave States, one of this 
 class said, "No compromise. If they choose to go, 
 let them go. We can get along without them. We 
 can form a confederacy with Canada and establish a 
 great Northern Republic." PubUcly, of course, they 
 profess great attachment to the Constitution ; and 
 assume to be its friends par excellence, w^hile they 
 refuse to lift a finger to save it, except in the imprac- 
 ticable w^ay of coercion and civil war. Just at this time 
 they are the advocates of warlike preparation, strength- 
 ening the hands of government, and all that ; and they 
 decry every one w^ho speaks of concession and arrange- 
 ment as a traitor. They call him weak-kneed and 
 dough-faced. They step before the real lovers of the 
 Constitution and the Union, push them one side, and 
 cry out, " We are the true patriots ; we are the true 
 lovers of the Constitution." 
 
 Third — The other party are the moderate and consid- 
 erate men of all parties who love the Constitution and 
 the Union more than they love party ; w^ho cling to 
 them as the palladia of all they hold sacred and dear. 
 To save them from destruction they are willing to 
 concede every just right to the slave States. They are 
 anxious to make some arrangement which will confirm 
 the Union sentiment in the border slave States. They 
 are just as strong in favor of supporting the govern- 
 ment, and giving it power and efficiency, as the sternest 
 Republicans ; but they are, at the same time, equally 
 
108 MISCELLANEOUS WRITINGS. 
 
 as anxious that all occasion for testing the strength 
 of government may be obviated by paternal and 
 peaceful arrangement. They are anxious for this, 
 because they believe it to be the only practicable method 
 of preserving the national existence. They are the 
 people whom the politicians call weak in the knees, 
 destitute of backbone, and such like liberal epithets. 
 
 Is NOT THIS EXACTLY TRUE ? Now, which of these 
 parties are we to choose ? Are we to stand by and 
 see the country go to pieces, and not lifb a hand to 
 prevent it ? The border slave States will certainly 
 join the Southern Confederacy unless something be 
 done to confirm the Union sentiment, which, at the 
 present moment is in the ascendant there. But though 
 now in the ascendant, the doctrines of secession are con- 
 stantly preached by a thousand interested missionaries 
 from the Gulf States, and will assuredly prevail, 
 unless we enter into some arrangement w^hich shall 
 demonstrate our willingness to yield the South a 
 fair participation of the public territory. It is not 
 enough for us to say that we intend no invasion of 
 the rights of the South. They think otherwise. They 
 interpret the Republican platform otherwise. True, 
 the most moderate men of the South might and w^ould 
 be satisfied with things as they are ; but the masses 
 will not be, and the question is simply this : Shall we 
 divide the territory, or shall we divide the country? 
 Another proposition is equally clear : If the border 
 slave States do join the Southern Confederacy, coercion 
 is out of the question. We are then a broken and 
 divided empire. Our glory and our greatness are 
 extinct. 
 
 It is also clear that nothing is necessary to be done 
 which the North cannot honorably agree to. What 
 
POLITICAL EXPRESSIONS. 109 
 
 concession of principle is involved in adopting the line 
 of thirty-six degrees and thirty minutes as a perpetual 
 line between slave labor and free ? The Chicago plat- 
 form ? Does that platform mean to declare that the 
 Southern States are entitled to none of the territories ? 
 If it does, it declares a solecism. Whatever its terms 
 may be, its spirit is only defensive — ^not aggressive. 
 
 Slavery w^as marching northward, striding over 
 Kansas and the West. The Supreme Court declared 
 it lawful everywhere 'in the public territories. The 
 Republican party raised its protest against this 
 advance of the slave povirer. This is simply its position. 
 Its language may be strong ; but the spirit and mean- 
 ing of it was simply this — " thus far sbalt thou go, 
 and no farther." Now an agreement or compromise, 
 which ends the strife, and drives the stake, and lays 
 the line of demarcation forever, is not concession of 
 principle, nor a compromise of honor, but a fair 
 adjustment of conflicting claims. 
 
 Then which of the parties are we to choose, the 
 politicians or the peacemakers ? As for me and my 
 house, our faces are set for conciliation and com- 
 promise. 
 
 Speech at New^ark on the celebration of Washing- 
 ton's Birthday, the evening of February 22, 1861. 
 
 Joseph P. Bradley Esq., was then announced, and 
 spoke substantially as follows : 
 
 Friends and Fellow-Citizens .—I understand this 
 meeting w^as intended to be free from a partisan char- 
 acter. As such it was represented to me, and as such 
 I complied with the request to offer some remarks in 
 
110 MISCELLANEOUS WRITINGS. 
 
 your presence. This is no time for the indulgence of 
 party feelings, or the promotion of party objects. A 
 common danger, which threatens our country, renders 
 it necessary that those should be discarded — a danger 
 such as has not been faced since the times of the 
 Revolution, and those which immediately followed it. 
 
 I know it is very hard to rise above the influences 
 of party prejudice. Often it almost drowns the senti- 
 ment of patriotism. Party rancor and party hatred 
 are the last serpents which the genius of patriotism 
 can crush. But in all great emergencies like that in 
 which we now are, crushed they must be, or else w^e 
 shall drift on to certain and irretrievable ruin. [Pro- 
 longed applause.] 
 
 The celebration of this day is a fitting occasion to 
 call these sentiments to mind. No man ever lived 
 who rose so far above the paltry prejudices of the hour 
 and of the partisan as George Washington. His 
 motto was his country only. We have just heard the 
 preceding speaker read the solemn words of warning 
 which he addressed to his countrymen when retiring 
 from public life. They sound almost like a dirge on 
 the ear — or like the burden of some ancient prophet — 
 foreshadowing the dark days of evil for time -which are 
 to afflict a guilty and infatuated people. 
 
 In turning back to those passages in his history 
 which seem most fitting for our present contemplation, 
 none have struck me more forcibly than those which 
 preceded the adoption of the Constitution. The Revo- 
 lution had triumphed — victory was won — ^peace w^as 
 smiling over the land — and everything betokened the 
 inauguration of a prosperous age ; but the demon of 
 anarchy was stalking abroad. When there was no 
 
POLITICAL EXPRESSIONS. Ill 
 
 public enemy without, then the furies of internal 
 dissension seemed to be let loose. There was a confed- 
 eration of States ; but it was not a united government, 
 every State did what was right in its own eyes, 
 famished the supply which Congress demanded when 
 they chose, and refused them when they chose. 
 
 Individuals imitated the examples of the States, 
 and armed themselves in hostility to their own Govern- 
 ment. In Massachusetts a very formidable armed 
 insurrection arose in the western counties. The Courts 
 were forcibly closed and not allowed to assemble, and 
 general gloom prevailed. The Government w^as crum- 
 bling into atoms, dissensions and chaos were the order 
 of the day. 
 
 This w^as in 1786. Washington was fifty-four 
 years of age. It is interesting to us to know how he 
 thought, and how he acted, at such a time as this. 
 It seemed as though all for which he and his compeers 
 had toiled through the dark and dreary days of the 
 Revolution was in peril of imminent and inglorious 
 destruction. It seems so now. How Washington felt, 
 and how^ he acted then, present a lesson well worthy 
 of the deepest reflection. 
 
 I have before me several of his letters written dur- 
 ing this period, and whilst the Constitution was under 
 discussion, w^hich shows to us my beau ideal of a true 
 patriot — that is, a patriot above the spirit of party. 
 
 [Mr. Bradley here read extracts from letters written 
 by Washington to Jay, Madison and Lafayette.] 
 
 These are the sentiments on which our national 
 existence rested for seventy-five years, and with which 
 every American citizen should at this moment be 
 actuated. The anxieties, the impulses, the heart- 
 
112 MISCELLANEOUS WRITINGS. 
 
 throbbing yearnings for the good of the whole 
 country, and the union of the whole country, on 
 principles of justice and mutual sacrifice, are needed 
 now no less than they were needed then. These 
 were the feelings that glowed in the bosom of the 
 Father of his Country, and if he were alive they 
 would glow in his bosom now. [Applause.] 
 
 The union of the country, and the Constitution 
 which was found to preserve and support it, and a spirit 
 of mutual concession and sacrifice both emanating 
 from and sanctified by the spirit of lofty patriotism, 
 untainted by party feeling, party animosity or party 
 prides — these are the objects for which he labored ; 
 this is the spirit by which he was animated — and he 
 preaches them to us this day, in a voice of touching 
 entreaty, coming down from the echoes of the past, in 
 tones so eloquent that none but traitors can refuse to 
 hear. [Tumtdtuous applause.] Ah ! ye that spurn 
 the institutions which he helped to frame, and over 
 the inauguration of which he presided, and strive to 
 tear asunder with unhallowed hands the glorious 
 flag -which he unfurled — ^ye that spurn the holy love of 
 cotmtry, those patriotic feelings of mutual forbearance, 
 concession and sacrifice, which animated him and his 
 compeers, and which he endeavored to impress upon 
 the hearts of his countrymen — ^ye that cling to local 
 and party prejudices in a time of general danger and 
 prevailing treason, and forget that you have a common 
 interest in the welfare of the whole country, and of every 
 part of it — I charge you never to invoke the great name 
 of Washington as a patron of your principles or your 
 deeds. Could his pure and majestic spirit look down 
 
POLITICAL EXPRESSIONS. 113 
 
 upon you from the place of his serene abode, his grave 
 and indignant form would chill your miserable hearts 
 to stone. [Great applause.] 
 
 But, my friends, let us look for better things to 
 come, and that we may yet see the glorious institu- 
 tions that have promoted the interests of freedom 
 throughout the world, shall be preserved by mutual 
 conciliation and sacrifice. 
 
 Mr. Bradley resumed his seat amid loud applause. 
 
 It thus appears that as long as there remained the 
 slightest hope of reconciliation and compromise with 
 the South, Mr. Bradley was among the most earnest 
 in favor of it, and was ready to make any honorable 
 concession to accomplish it. But the moment the 
 flame of rebellion burst out into open violence, his 
 whole tone w^as changed. In his view, it then became 
 simply a question of country or no country ; a ques- 
 tion w^hether w^e would stand by our free institutions 
 till the last drop of blood was shed, or w^hether we 
 should tamely submit to have them destroyed by 
 wicked hands before our eyes. And as in a foreign 
 war it is our duty as well as a point of honor to 
 stand by our own Government even though some of 
 its measures may not be approved ; so, in this war, 
 it is our duty to stand by our Government in its efforts 
 to put down treason and rebellion. These views vdll 
 be found expressed in the following articles. The first 
 appeared as a communication in the Advertiser on the 
 15th of April, 1861, a few days after the attack on 
 Fort Sumter and the troubles at Baltimore : 
 
114 MISCELLANEOUS WRITINGS. 
 
 THE CRISIS AND ITS DUTIES. 
 [Published April 15, 1861.] 
 
 There can be no question or vacillation now. 
 Every citizen is bound to sustain his Government. 
 When questions of policy were discussing we might 
 differ. We may privately differ from Government as to 
 its policy now. But Government has declared its policy, 
 has taken the responsibility of action, and now, we 
 must either stand by our country, or be prepared to 
 fall in its ruins. 
 
 We had hoped this painful crisis might have been 
 avoided. We believe it could have been avoided. We 
 labored hard to effect that result. But it was not 
 effected, and civil w^ar is upon us, and it is no time 
 now to indulge in useless regrets. The proper parties 
 will be held responsible at a proper time. 
 
 It is now no longer a party question. It is not a 
 Republican question, nor a Democratic one. It is 
 a qtiestion of government, and law, and country. 
 When our country, as represented by the constituted 
 authorities of government, calls to duty, either in a 
 contest of self-preservation or against a foreign foe, it 
 is no time to inquire who are in power, or by what 
 party the Government is administered. To do so, 
 might show a loyalty to party organization, but it 
 would be practical treason. We need not yield our 
 opinions ; we need not cease to urge our views in our 
 domestic councils ; nor to influence, so far as we may, 
 the views of our own public agents and rulers, but to 
 those with whom our country is at issue, we must 
 show a united front. We must reserve to ourselves 
 the sole right of abusing our rulers. But since they 
 
POLITICAL EXPRESSIONS. 115 
 
 are our agents, and the representatives of our sover- 
 eignty, others must respect them. We may scold, but 
 we must obey. We may grumble, but we must fight ; 
 fight under and fight for our flag, no matter by whom 
 the staff is upheld. 
 
 But in the light of the Constitution and the Laws, 
 our government is right. Secession has always been 
 treason. Those who are familiar with its history 
 know^ that the people of this country adopted the 
 Constitution for the very purpose of putting an end 
 to nulHfication and secession. Its very preamble 
 declares its object to be to form a more perfect Union, 
 and to insure domestic tranquillity. It expressly 
 declares that no State shall enter into any treaty, 
 alliance or confederation, nor, without the consent of 
 Congress, keep troops or ships of war in time of peace, 
 nor enter into any agreement or compact with another 
 State, or with a foreign power, or engage in war 
 unless actually invaded ; and, for the settlement of 
 differences that may arise, the judicial pow^er of the 
 Government is extended to controversies between two 
 or more States ; and the Constitution and the United 
 States are declared to be the supreme law of the land. 
 The moment South Carolina interfered with the 
 execution of the Federal laws, the moment she laid the 
 weight of her finger on a foot or a pound of Government 
 property, with intent to occupy and keep the same by 
 public force, that moment treason was committed ; 
 and as, by the same Constitution, the President is to 
 " take care that the laws be faithfully executed," that 
 moment it w^as his constitutional duty to employ 
 the executive force of the country to execute the laws. 
 The constitutionality of the course now taken by 
 Government cannot be called in question. 
 
116 MISCELLANEOUS WRITINGS. 
 
 We never urged compromise on the ground that 
 secession was constitutional, or that it was to be 
 viewed with a moment's patience ; but only on the 
 ground of expediency — as the best way of restoring 
 harmony and peace to the country. We still believe 
 that it w^ould have been wisest and best. Our own 
 view^ always was, conciliation first — nay, conciliation 
 to the extreme point of liberality — and then, if nothing 
 would ^vail for the attainment of peace and submis- 
 sion to the common Government of the country, then, 
 and not till then, let force decide vvrhether w^e have a 
 country or not. But that is also past. 
 
 Now the Government has put forth the arm of 
 its power to execute the laws, and let them be obeyed. 
 Let there be no traitors ; no double-minded among us. 
 Let there not even be any vacillating. If any treason 
 is found to exist among us, let it be crushed in the 
 bud. Let us do all that in us lies to support the dignity 
 and glory of the country which gave us birth. Let 
 not New Jersey be backward. She has never been 
 backward in duty before ; let her be true to her 
 old traditions now. We hope the Executive of this 
 State will take all such measures as are in its pow^er 
 to be ready at a moment's warning to aid the com- 
 mon force, and to preserve the domestic tranquillity 
 of the State. 
 
 But how far, it may be asked, are we to support 
 the acts of Government ? So far, most assuredly, we 
 answer, as Government shall see fit to go within the 
 line of its constitutional power; and that clearly 
 extends to the possession and occupation of all the 
 Government forts and arsenals and post offices, and 
 other public property, and the execution of the federal 
 
POLITICAL EXPRESSIONS. 117 
 
 laws in all the States. Whether Government will 
 consider it expedient to go so far as that is for it to 
 determine. The Congress has been called, and if the 
 national will, expressed in a legitimate manner, shall 
 deem it advisable, on just terms, to allow a portion 
 of the United States to separate itself from the mother 
 country, and erect an independent government, it will 
 then be time enough to call in question the attempt 
 of the Executive to maintain the national authority 
 in the whole country. Meanwhile it will be our right 
 and our duty to contribute our mite toward influenc- 
 ing that national will in such direction as each of us, 
 having the good of his country sincerely at heart, 
 may deem most for the public welfare. 
 
 On the 22d of April, 1861, a mass meeting was 
 held at New^ark to take into consideration the public 
 crisis and to devise measures for aiding the Govern- 
 ment in the suppression of the rebellion. Mr. Bradley 
 was requested to draw the resolutions for this meeting, 
 which he did, and enforced them by a speech, which 
 was not reported. The resolutions are as follows : 
 
 RESOLUTIONS. 
 
 Whereas, the subversion of our country's Constitution and 
 Government is threatened by armed bands of traitors in several States 
 of this Union, and the Federal authorities have found it necessary to 
 call into action the military force of the country for the maintenance of 
 the laws ; and Whereas, the preservation of our national existence 
 requires the co-operation of every loyal American citizen at this crisis 
 of our history, therefore, 
 
 Resolved, That it is the firm, unanimous, unalterable determination 
 of the citizens of Newark, first of all, and above all other duties, laying 
 
118 MISCELLANEOUS WRITINGS. 
 
 aside all party distinctions and associations, to sustain the Government 
 under which they live, which was adopted by the people's own choice, 
 and which has never brought anything but blessings in its train, and 
 to this object they pledge their lives and property. 
 
 Resolved, That we, the said citizens of Kewark, will give our 
 united, strong and unwavering support to the President of the United 
 States and the General Government in its endeavor to enforce the 
 laws, preserve the common property, vindicate the dignity of the Gov- 
 ernment, and crush the treasonable conspiracies and insurrections 
 which are rampant in various parts of the land, leaving to them, as 
 the constituted authorities, the exercise of their rightful discretion, 
 within all Constitutional limits, as to the mode and manner in which it 
 is to be done ; at the same time sincerely deploring the necessity which 
 compels us to array ourselves in opposition to men of the same blood, 
 and who possess, in common with us, the traditions of the Revolution, 
 solemnly declaring that nothing but the highest and most sacred sense 
 of duty to our country and our God could lead us to risk the shedding 
 of our brothers' blood. 
 
 Resolved, That we utterly execrate and abhor the ringleaders in 
 this treason and rebellion, as enemies of all good ; as false to their 
 country, their oaths, and their honor ; and that they have forfeited all 
 claim to our fraternal sympathies and regards ; but we sincerely com- 
 miserate and sympathize with our fellow-citizens in those States where 
 rebellion is predominant, who still maintain their loyalty to the Consti- 
 tution and country, but who are unable, in the insane and treasonable 
 commotions which surround them, to make their voices heard. 
 
 Resolved, That by the Constitution we are one nation, indissol- 
 uble by the action of any State or section ; that the Constitution and 
 the laws provide the means of redress for every wrong, actual, fancied 
 or apprehensible ; and that, when peace and obedience to law are 
 restored, we shall be ready to co-operate with our fellow-citizens 
 everywhere, in Congress or convention, for the relief of all supposed 
 grievances, yielding ourselves, and expecting others to yield, to the 
 will of the whole people lawfully expressed. 
 
 Resolved, That the Common Council be respectfully requested to 
 make such appropriations as may be necessary for the support of the 
 families of those of our citizens who shall enter into military service 
 under the call of the constituted authorities, and we pledge them the 
 unanimous support of the people in so doing. 
 
 Resolved, That a committee of twenty-five citizens be appointed 
 by the chairman to take in charge and carry forward all measures 
 
POLITICAL EXPRESSIONS. 119 
 
 needful for the equipment of troops, and to co-operate with the Com- 
 mon Council in the objects of the last resolution, and to take such 
 measures in co-operating with the authorities for the general security, 
 and protection as may be deemed advisable. 
 
 The only other document we shall reproduce com- 
 prises the resolutions adopted by the great Union 
 meeting at Newark, w^hich was addressed by Hon. 
 Daniel S. Dickinson, September 20, 1861, together 
 ■with the speech by which Mr. Bradley introduced 
 them. These resolutions were also from Mr. Bradley's 
 pen, and express the position which he has always 
 assumed since the Rebellion broke out : 
 
 MR. Bradley's speech. 
 
 Joseph P. Bradley, Esq., was then introduced by 
 the chairman, and was most warmly received. He 
 said : 
 
 Friends and Fellow-Citizens : — It is made my 
 duty by the arrangements which have been made by 
 those who have called this meeting together, to present 
 for its consideration resolutions expressive of their 
 view^s in respect to the great and important 
 events which are hovering over our countrj^. [ Cheers. ] 
 Before reading these resolutions, I will take the liberty 
 to express in a few and plain words the general purport 
 and essence of the resolutions that will be offered. In 
 the first place, we believe that this Union and this Gov- 
 ernment of ours, under which we live, under which we 
 have so long been happy and prosperous, under which 
 more freedom, more liberty and more enjoyment is 
 experienced than under any other government that 
 has ever existed on the face of the globe, is and must, 
 and shall be maintained [cheers], and that it ought to 
 be so ; that it was meant to be so, and that to maintain 
 
120 MISCELLANEOUS WRITINGS. 
 
 the contrary was ti-eason to the principles upon which 
 the Government and our institutions are founded. 
 [Enthusiastic cheers.] In the next place, we believe, 
 and we hold it to be true, that the Constitution under 
 which we live, was adopted by the people of this 
 country for the purpose of preserving and defending 
 that Union and Government, and that those who 
 attempt to subvert it, and to rend this fair country 
 into divided fragments are traitors to the principles 
 of the institutions that adorn the American world. 
 [Cheers. A voice : "That's so."] 
 
 In the third place, we believe, and hold it 
 to be true, that at such a time as this, when 
 treason and rebellion are stalking about in the land, 
 and are not absent even from ourselves, we should 
 forget all party differences and bury them under our 
 feet, and come up Democrats, Republicans, Americans 
 or whatever other party there may be, shoulder to 
 shoulder, as we stand here to-day, in support of the 
 Constitution and Government, tmtil its authority is 
 vindicated forever. [Loud cheers.] In the fourth 
 place, that we will, because we must, trust the man- 
 agement of the controversy to the constituted 
 authorities, whoever they may be, forgetting for the 
 moment all other political objects. We shall stand 
 by them, not because they are of this political shade 
 or of that, but, because in the providence of God they 
 happen to be at the head of our affairs, and if we do 
 not support them we cannot support our leaders. 
 [Cheers.] 
 
 In the fifth place, we beheve that we ought to 
 unite and organize ourselves together as a Country 
 party [cheers], as a Union party [cheers], and as a 
 
POLITICAL EXPRESSIONS. 121 
 
 party determined to see the Government through 
 [cheers] ; that we will stand by the Constitution 
 which is the Constitution of thirty -three States, and not 
 of seventeen States, and that we will do this without 
 any fear of danger or hope of reward. [Cheers.] 
 That we will do it because it is our duty to do it ; 
 because our prosperity depends upon it ; and that we 
 will do it because we have sworn allegiance to this 
 Constitution and this Government. After alluding to 
 the peace party, and remarking that we should have 
 submission to the Constitution first and compromise 
 afterward [cheers], Mr. Bradley read the resolutions, 
 as follows : 
 
 RESOLUTIONS. 
 
 1. Resolved, That "the Union must and shall be preserved;" that 
 its preservation is demanded by the history of the past and the hopes 
 of the future ; by the wisdom of its founders and the national happi- 
 ness and prosperity which it has caused ; by a regard to the sanctity 
 of law, and the success of free institutions; as an example to the 
 world, and a guaranty to future ages, of the ultimate triumph of right, 
 liberty and equality. 
 
 2. Resolved, That the Constitution of the United States is the 
 palladium of the Union, and was adopted by our fathers for the express 
 purpose of rendering it perpetual ; that to it, as the supreme law of 
 the land, we owe our first and highest allegiance, paramount to all 
 other allegiance; and that none but traitors and parricides will 
 attempt to subvert it or to desecrate the flag which waves over us as 
 its expressive symbol. 
 
 3. Resolved, That in the present contest for the existence of the 
 Union, we should recognize no party, believing it to be the solemn 
 duty of every patriot to lay aside party names and party prejudices, 
 and rally to the support of the Government until rebellion shall be 
 crushed and treason annihilated ; and that the nomination of candi- 
 dates for any office on party grounds tends to excite a strife which 
 cannot fail to be productive of evil in the present unhappy condition 
 of the country. 
 
122 MISCELLANEOUS WRITINGS. 
 
 4. Resolved, That when our Government shall be rescued from 
 danger of annihilation, and we can once more say we have country 
 and a name to be proud of ; when it shall again be a boast and a shield 
 of safety all over the world to say, " I am an American citizen ; ' — it 
 will then be time enough to remember our party names, and to discuss 
 party issues ; but till then to do so will be to fight against our brethren, 
 whilst the enemy is destroying our common heritage. 
 
 5. Resolved, That as long as two hundred thousand rebels are 
 thundering at the gates of the Capital, none but those who are cravens 
 or false-hearted will cry " peace, peace ; " and none but traitors will 
 seek to restrain our strong-handed yeomanry from rushing to the 
 defence of our common country and Government. 
 
 6. Resolved, That in the exercise of the war power, and in the 
 midst of actual hostilities, it is no time to trifle with or wink at treason, 
 either active or covert ; and if any persons are found within our lines 
 whose loyalty is reasonably suspected, the only safe course is to deprive 
 them of the power to do mischief ; and that in arresting and securing 
 those who aid and abet the cause of our enemies and suppressing 
 seditious and treasonable publications, the Government exercises only 
 the ordinary right of self-preservation, and the power which is implied 
 in the right to resist and suppress an internal war. 
 
 7. Resolved, That all Union-loving men who feel that party 
 should be ignored and that our Government should be sustained and 
 upheld in its endeavors to put down rebellion and enforce obedience 
 to the Constitution and laws throughout the whole country, and who 
 are willing to act on these views, should organize themselves for pro- 
 moting and carrying out such a sacred object and for thwarting and 
 overruling the insidious acts of those who profess a desire for honor- 
 able peace, but are ready for a dishonorable surrender of the integrity 
 of their country. 
 
 8. Resolved, That a committee, to consist of seven members, be 
 appointed by this meeting, to inaugurate such an organization for this 
 county, and to correspond with similar committees from other counties, 
 in order to perfect such an organization throughout the State, so as to 
 give to the loyal people of New Jersey an opportunity of making their 
 voice heard, and their influence felt, in the pending struggle for a 
 national victory. 
 
 The resolutions were adopted by acclamation. 
 
POLITICAL EXPRESSIONS. 123 
 
 It thus appears that Mr. Bradley has always been 
 eminently conservative in his views on national ques- 
 tions. It also appears that on the subject of the 
 Rebellion he has never entertained but a single view — 
 that it must be put down at all hazards, and that no 
 more compromises can be entertained till the authority 
 of the Government over the whole country is restored. 
 This is the sum and substance of the whole record ; 
 and show^s that Mr. Bradley stands where every true 
 patriot stands — on the Constitution as it is, and the 
 Union as it was. 
 
SPEECH 
 
 OF 
 
 JOSEPH P. BRADLEY, ESQ.. 
 
 AT TUB 
 
 UNION ADMINISTRATION MEETING, 
 
 HBLD IN NEWARK, OCTOBER 22, 1862. 
 
 [Prom the Newark Daily Advertiser, October 33, 1868.] 
 
 THE ADMINISTRATION MEETING. 
 
 SPEECHES BY MESSRS. BRADLEY AND OTHERS. 
 
 The mass meeting of friends of the Administration, 
 held at Concert Hall last Wednesday, was another 
 impressive demonstration of popular sentiment, the 
 spacious hall being filled to overflo-wing at an early 
 hour ; and the remarks of the speakers were listened 
 to with deep interest. The main feature of the evening 
 was, of course, the speech of Joseph P. Bradley, Esq., 
 their candidate for Congress in this district, it being 
 the first public expression of his sentiments since his 
 nomination. Though fresh from the court room, 
 overwhelmed by professional cares, and somewhat 
 embarrassed by a cold, Mr. Bradley warmed up with 
 the interest of his subject, and it is not too much to 
 say that he more than realized the most favorable 
 anticipations of his friends. His speech, to a full 
 report of which we yield a large portion of our space, 
 which could not be better filled, was the firesh and 
 vigorous utterance of one whose thoughts are not 
 
126 MISCELLANEOUS WRITINGS. 
 
 accustomed to travel in the settled groove of partisan 
 machinery, or among the cunning platitudes of the 
 mere politician — but the enlarged views of a thought- 
 fill and intelligent man, who has been drawn into the 
 political arena solely through a sense of duty to the 
 country ; and he doubtless did not exaggerate the 
 truth when he said that, on personal accounts — and 
 all others, save the great principles at stake — he should 
 greatly prefer the election of the opposing candidate 
 to his own. But without enlarging upon the details, 
 we give place to our report : 
 
 The chairman then introduced Joseph P. Bradley, 
 Esq., who spoke as follows : 
 
 Mr. Chairman and Fello-w-Citizens : — I do not 
 know that I am w^ell enough to-night to say more 
 than a few^ w^ords. I am oppressed by a severe cold 
 in my throat and chest ; but I have nevertheless felt 
 it my duty, as I have been expected here, to make my 
 appearance and to declare myself upon some of the 
 issues presented in the present canvass. 
 
 I appear before you in a position in which I never 
 expected to be placed. Political distinction was 
 never an object of my ambition, especially political 
 distinction of the sort for which I am now^ a candidate 
 before my fellow-citizens of this district ; and I could 
 not have been persuaded to engage in this contest but 
 from a sense of duty. I look upon this election as the 
 most important one that has ever been held within 
 my recollection. I believe that it is the most important 
 election that has ever been held within the memory of 
 
POLITICAL EXPRESSIONS. 127 
 
 any man in this house. I believe that the general 
 results of the election in the Northern States will go 
 far towards settling and determining the destiny of 
 this great republic ; and I beUeve this because I believe 
 that if the Democratic party shall be successful in the 
 election of its candidates in the Northern States, or in 
 the election of a majority of them, so as to control 
 the next Congress of the United States, the republic is 
 ended. This may be a hard saying. I would not say 
 it without due deliberation ; and when I do say it, I 
 do not mean to be understood as saying that there 
 are not in the ranks of the Democratic party many 
 thousands of excellent and patriotic men ; but I do 
 mean to say that the secret councils of that party at 
 this time are controlled by men — deep men — who have 
 not the interest of their country at heart. I believe 
 that those men are deceiving the people who follow 
 them — ^for the people are honest — the masses are hon- 
 est — but they may be temporarily deceived by false 
 pretenses ; and such I believe to be the fact under the 
 present organization and operations of the Democratic 
 party. 
 
 We cannot shut our eyes to the fact there are now 
 tw^o classes of Democrats ; and I may as well use here 
 on the platform the words we use on the street, and 
 say that those two classes are the Secession Democrats 
 and the War Democrats, respectively. [Applause.] 
 We know that there are these distinct classes in that 
 party, and we know further that those who are popu- 
 larly called Secession Democrats are the leaders of 
 that party— the leaders who meet at Trenton, fifteen 
 and twenty of them at a time, and consult about the 
 interests and plans of the party ; who direct all its 
 
128 MISCELLANEOUS WRITINGS. 
 
 cotmcils and manage all its affairs, and through whose 
 dictation it is that such men as George T. Cobb, of 
 Morristown, are thrown overboard, and such men as 
 Andrew Jackson Rodgers are nominated for Congress. 
 I believe, therefore, that that party, if it comes into 
 power, instead of w^ielding the resources of the cotmtry 
 energetically for the restoration of the Constitution 
 and the laws, will, to say the least, be pervaded by 
 divided councils ; and, to say all that I think and 
 believe, it will be governed by counsels inimical to the 
 stability of the republic, its honor and its life. For 
 this reason I have felt, and do feel, this to be the most 
 important canvass that has taken place vrithin my 
 memory, and for this reason also I feel it my duty to 
 contribute, if I can, something tow^ard the success of 
 the Administration party, whose object, as I understand 
 it, is, first of all, the restoration of the authority of 
 the Constitution throughout the whole country. 
 [Applause. J If this is not the object — ^the great object — 
 of that party, then I am not a member of it. [Renewed 
 applause.] I look upon this idea as the one that 
 swallows up all the rest. There are minor issues, it is 
 true ; but they sink into insignificance when compared 
 with the one great issue of saving our country from 
 destruction, and from division, which is destruction. 
 Therefore it is that I am here, and that I have con- 
 sented to appear before you in this political contest as 
 a candidate for your suffrages. I have not sought 
 this position ; I do not desire it ; and were it not for 
 the principles that are involved in the issue I would 
 gladly see my opponent elected instead of myself. 
 [Applause.] 
 
 I am not able, as I said before, to speak long 
 
POLITICAL EXPRESSIONS. 129 
 
 to night ; and my words must be few and pointed. I 
 have already indicated what I consider to be the great 
 cardinal principle of the Administration party, namely, 
 that " The Union must and shall be preserved." [Pro- 
 longed cheering.] In whatever way that can be done, 
 and be done most effectually, so let it be done. I know 
 of no conditions under w^hich our exertions for the 
 accomplishment of this great object are to be placed. 
 I know of no limits by which they are to be restrained, 
 other than the laws of God and the law of nations. 
 These w^e must observe. Our Constitution gives us 
 the broadest scope in which to work ; and I will 
 observe here, that it is puerile to say that this or that 
 thing in the conduct of the war is " unconstitutional." 
 I say that such an assertion is incorrect, illogical, and 
 a solecism. Does not the Constitution contain the 
 war-power just as much as it contains the habeas 
 corpus ? Does it not contain provision for a pow^er 
 on the part of the Government to suppress insurrection 
 and rebellion ? When those pow^ers are given, all the 
 powers that we w^ant are given — all the powers we 
 can exercise or that can be exercised within the limits 
 that I have named — the leuws of God and the law of 
 nations. [Applause.] It is idle and w^orse than idle 
 to say that the Constitution has been violated or 
 broken in the conduct of this war. There has been no 
 such violation ; but they violate the Constitution w^ho 
 stand up and do nothing w^hen the Constitution is 
 threatened with destruction. [Renewed applause.] 
 
 I am not going to read to this audience— it is not 
 necessary that I should — a legal opinion upon what 
 the lavir of nations will permit and w^hat it will 
 not permit. I take for granted that the admin- 
 
130 MISCELLANEOUS WRITINGS. 
 
 istration, having learned counsel around it, is 
 advised tipon the subject ; and I am willing, 
 so long as President Lincoln is at the head of 
 affairs, to confide to him, and to such councillors as he 
 calls to his aid, the selection of measures whereby to 
 perform this great duty of the Government, namely, 
 to restore its authority and that of the Constitution, 
 and to save the country from ruin. Had I been Presi- 
 dent, I might have done some things differently ; I 
 do not say whether I would or would not ; but this 
 is not the question. When my captain tells me : 
 " Forward, march ! the enemy is before you ; " I must 
 not stand, look behind me, and say, " Captain, it is 
 not time." I tell you that all subordinate questions 
 are swallowed up in the one great and overwhelming 
 question of self-preservation, and they are quibblers 
 w^ho say that what is done to effect that end is 
 "unconstitutional." [Prolonged applause.] 
 
 Having said so much, what raore need I say ? 
 There is the w^hole thing before you. Most of you 
 here know me. You know that I never was an 
 abolitionist. [Laughter.] You know that I was 
 always a conservative of the conservatives. The last 
 time — indeed, the only time — I ever spoke in this hall, 
 was on the evening of the 22d of February, 1861, 
 just before President Lincoln arrived at Washington ; 
 and some of you may remember what a doleful speech 
 I made on that occasion. [Laughter.] I remember 
 it. I made it from my heart. Nothing but com- 
 promise would suit me at that time. I w^as for com- 
 promise to the last — ^for 36:30 through to California — 
 [laughter] — for anything in God's name rather than 
 blood or division. But the moment they began to 
 throw mud at the glorious old flag, fired on Fort 
 
fOLITMCAL EXPRESSIONS. 131 
 
 Sumter and levied war, then we were in [laughter 
 and cheers] ; and then came up in me, as it came up 
 at the same time in millions at the North of every 
 shade of opinion before that, a sentiment of devotion 
 to the Constitution and to the integrity of the 
 republic — the whole republic— first of all and before all. 
 Then w^e heard and thought and felt no more on the 
 subject of compromises. The day of compromise w^as 
 ended ; it w^as then the day of £gbt. [Applause.] 
 "Not that we loved Cassar less, but that w^e loved 
 Rome more "; not that we felt any the less disposed to 
 do justice to the Southern States or people, but that 
 w^e felt that w^e must above all do justice to ourselves 
 and our country. [Prolonged applause.] 
 
 How^ we have been and are misunderstood and 
 misrepresented ! Because w^e love our country more 
 than all things else, and therefore have discarded the 
 idea of compromise w^hen compromise is no longer prac- 
 ticable, and when there is no longer any use in raising 
 that cry, we are called abolitionists. [Laughter.] Is 
 this fair? I do not want any better Constitution 
 than the old one. I want to see that Constitution 
 stand just as it is, word for word and letter for letter, 
 as long as I Kve. I do not want it altered ; I do not 
 want it violated ; I do not want to see the relation of 
 the States to each other, nor the relation of the people 
 of the different States, altered in the slightest degree. 
 I viTOuld have all these remain as they w^ere ; but in 
 prosecuting this war for the preservation of the Union, 
 I would prosecute it as I would prosecute any war, 
 by taking the ships of the enemy, if necessary, vrith- 
 out compensation ; by taking the horses of the enemy 
 without compensation; yea, by taking their lives 
 without compensation. [Applause.] 
 
132 MISCELLANEOUS WRITINGS. 
 
 If any person cannot hold in his head these two ideas, 
 it must be either because he shuts his eyes and ears to 
 them, or because he is so low in the scale of intellectual 
 existence that he cannot receive and understand two 
 ideas at once. They say on the other side, " The 
 Constitution as it is and the Union as it was "; and 
 so do I. [Applause.] 
 
 I say it just as strongly as they do ; but at the 
 same time I say, " Boys, load your guns ; take aim ; 
 fire ! " [Applause.] 
 
 And I say it because that is not a violation of the 
 Constitution. The suppression of rebellion by what- 
 ever means the law of nations allows, is permitted to 
 every Government in the world ; it is permitted to our 
 Government ; and the idea sought to be foisted upon 
 the people of the North, that we violate the Constitu- 
 tion when we do this or do that to queU the rebellion, 
 is the secret whisper of the enemy — I mean the old 
 enemy — the Arch Enemy. [Laughter.] 
 
 These are general principles, and they are principles 
 by which we can stand now and at all times with 
 perfect security. No one can assail us on such a plat- 
 form as this ; it is the platform of the Constitution, 
 and upon that I stand and mean to stand ■whether 
 elected or not. [Applause.] 
 
 One w^ord more regarding the merits of the ques- 
 tion. Not only are these our principles — that the 
 Union must and shall be preserved ; and that what is 
 done for its preservation is well done— but they are 
 vital, vital, vital ! If we do not carry them out we 
 are undone. Not only are they our principles, but 
 they are the onljr principles that can save us from per- 
 dition. Some good men, especially among the Seces- 
 
POWTICAL EXPRESSIONS. 133 
 
 sion Democrats, say, "Let them go; divide the 
 comitry ; it is large enough for two republics." Ah, 
 my fellow-citizens, if we once admit that doctrine of 
 dividing the country, in the first place where will you 
 draw your line ? Through the Potomac ? Along 
 Mason and Dixon's line ? On the south side of 
 Virginia, or where ? In the next place, after you have 
 drawn it, how long will it stay drawn ? [A voice, 
 " That's it."] And in the third place, after you have 
 made one division, how long will it be before another 
 and another wiU follow ? No, my fellow-citizens, we 
 must stand by this Constitution and Union as the 
 ark of republican institutions and of civil freedom 
 throughout the world. [Applause.] 
 
 In other countries they entertain a principle of 
 loyalty to their sovereigns. In this cotmtry, our 
 loyalty has all been directed to the Constitution made 
 by our fathers, by mutual concessions and mutual 
 sacrifices — the best Constitution in the world. Loyalty 
 to the Constitution of their country is the only loyalty 
 Americans know. Divide the republic, and this 
 loyalty that has grown up in our bosoms from infancy 
 is gone ; and there is no man here who, if the republic 
 w^as divided, would not go about the streets in mourn- 
 ing ; for the great bulwark of republicanism in the 
 world will have proved a failure. Foreign nations 
 would point at us as the great example of the failure 
 of free institutions ; and Americans going abroad, 
 instead of being respected, would be pointed at and 
 despised. If our country were to be divided and our 
 Constitution and institutions to fail, I would not 
 travel in Europe any more than I wotdd travel in the 
 realms of darkness. [Applause.] I would not show 
 
134 MISCELLANEOUS WRITINGS. 
 
 my head there ; I would be ashamed to do so ; and I 
 Tvould not allow an Englishman or a Frenchman to 
 enter my house. [Laughter and applause.] I tell you, 
 my friends, that if w^e give up this heritage of ours 
 we give up the most precious thing that has ever 
 been planted by human hands upon this globe. Shall 
 we give it up ? [No ! No !] Shall we give it up to those 
 Southern traitors — aristocrats who have no love for free 
 institutions, and who are determined that if they can- 
 not rule they will ruin ? Let us drive them into the 
 sea. Let us re-establish the authority of the Consti- 
 tution all over the land. Let us do it, even if it 
 involve the sacrifice of the population of one-third of 
 the States. If they will not yield to the Constitution 
 and laws without being sacrificed, let them be sacri- 
 ficed. I tell you that our free institutions are worth 
 more than that sacrifice. Let these institutions be 
 transmitted by us to our posterity with aU the living 
 vigor with which w^e received them from our fathers. 
 [Applause.] There can be no compromise about that, 
 gentlemen. I do not say this because I hate the 
 Southern people or their institutions. I do not care 
 a straw about their institutions, comparatively. That 
 is not the question ; it is, " Shall they be permitted to 
 destroy our Government ? " [No ! No !] 
 
 Now, there are some minor questions that our 
 opponents have talked a great deal about — ^the habeas 
 corpus, the act of confiscation passed by Congress, and 
 the President's proclamation of emeuicipation. I have 
 opinions upon all these subjects, and I would be very 
 free to express them if I were able. I really am not 
 able now ; but I may have an opportunity of meeting 
 you upon some other occasion during this canvas, and 
 
POLITICAL EXPRESSIONS. 135 
 
 of saying what I have to say upon these matters. 
 But after all is said that can be said, what miserable 
 issues are they, each and all, compared with the great 
 issues I have spoken of. 
 
 Oh, gentlemen, these men would not talk so much 
 about the habeas corpus, and the President's procla- 
 mation, if there was not something rotten in their 
 bones. [Applause.] I believe in the habeas corpus, 
 and I do not know whether or not I would have issued 
 the emancipation proclamation had I been President ; 
 but the President must know a great deal better than 
 I do the reasons for it, and I am w^illing to take for 
 granted that he does. At any rate I am not going to 
 quarrel with him about it just now. I am going to 
 stand by him until this war is over ; and if it be not 
 over when he goes out of office and another man is 
 put in his place, I do not care to what party he 
 belongs, if he is only loyal to the country and the 
 Constitution, I will stand by him too. [Applause.] 
 
 I know that in our particular community there 
 are many respectable men— men who formerly belonged, 
 many of them, to the old Whig party, God bless it ! 
 [Cheers]— conservative, good men, who think that by 
 making a peace with the South and letting them go, 
 trade will revive and things will go on better. Now I 
 have respect for these men. I know that they are in 
 a false position— that they are influenced in a great 
 degree by their pecuniary interests. Men cannot help 
 this ; and we are bound to have charity for them. I 
 respect these men, for they have been at the very bot- 
 tom of the prosperity of this city ; but their principles 
 I do not agree with ; and if there are any of those 
 gentlemen here now let me say to them that they are 
 
136 MISCELLANEOUS WRITINGS. 
 
 mistaken. No such peace with the South will ever 
 bring back the business that has been lost. If it is 
 ever brought back, it will be by the authority of and 
 under the old Constitution and the old flag. [Great 
 applause.] Let me tell you that the South is dealing 
 with the English manufacturers and French manufac- 
 turers, and they will whistle at our Newark manufac- 
 turers under any peace we may make with them. 
 
 Let me say, too, that the prosperity of Newark 
 is not bound up in any compromise with the 
 Southern States or in any unholy peace with them, 
 which may involve a division of the country, but in 
 the cause of the old Constitution and the old flag. 
 Let us re-establish their authority, and we re-establish 
 the prosperity of Newark, of its manufactures and its 
 manufacturers. [Loud applause.] 
 
 I make these remarks in all kindness to those men ; 
 for I believe them to be honestly mistaken ; but the 
 mistake is made in such a grave matter that I am 
 sorry that they make it — sorry for them and for the 
 city in which they live. 
 
 In order to be accurate with regard to the views I 
 
 hold in reference to the present contest, I cannot do 
 
 better than refer to the resolutions passed by the 
 
 Convention from w^hich I received the nomination. I 
 
 looked at these resolutions to see what the sentiments 
 
 of the Administration party there assembled were ; 
 
 and I will now read one or two of them : 
 
 Resolved, That the friends of the National Administration in 
 New Jersey desire, first of all, a republican form of government — free, 
 great and strong ; [None of your petty little republics that command 
 no respect in the world ; but a republic, free, great and strong, recom- 
 mending free institutions throughout the earth by its power as well 
 as its freedom], securing to its citizens the blessings of peace, and 
 challenging the respect of the world. 
 
POLITICAL EXPRESSIONS. 137 
 
 Mr. Bradley continued reading the resolutions, 
 which were published at the time, commenting on them 
 seriatim and fully endorsing their spirit. He then pro- 
 ceeded to say : 
 
 In the spirit of those resolutions I say to the 
 patriotic members of the Democratic party who may 
 hear my voice, " Come, go with us, and it shall do 
 thee good ; " for our only object is to restore the coun- 
 try to its normal condition, to restore the authority 
 and majesty of the Constitution and the laws. If 
 this is not the object of the Administration party, 
 then, as I have already said, I am not a member of it. 
 And I also say that those resolutions tell the truth— 
 that in this struggle no man can be neutral ; he must 
 be active in favor of the Government and in favor of 
 putting down the rebelUon, or he must be opposed to 
 it. IndifiFerence is opposition. Men cannot let their 
 arms hang by their sides and say, " Well, I hope 
 the national arms will succeed in putting down the 
 rebelHon ; but I have a great many reasons why I 
 do not wish to take any part in this contest." A man 
 who acts thus is like the man in the Scriptures, of 
 w^hom it is said, " He that is not with me is against 
 me ; and he that gathereth not with me scattereth 
 abroad ; " for, fellow-citizens, this cause of ours is a 
 holy cause — the cause of civil freedom — ^the cause of 
 human rights. In saying this, I do not refer to the 
 question of domestic slavery ; I am speaking of the 
 great mission of this country. It is a mission of civil 
 freedom and free institutions ; and if it falls they fall. 
 For a succession of ages — long ages — will it and they 
 lie in the dust before a new age shall arise in which 
 freedom can again plant her standards successfiilly 
 upon the motmtains and the plains and the valleys of 
 the earth. [Loud and long continued applause.] 
 
SPEECH 
 
 OP 
 
 JOSEPH P. BRADLEY, ESQ.. 
 
 THB UNION NOMINBB FOR CONGRESS, 
 AT 
 
 JERSEY CITY, TUESDAY EVENING, OCTOBER 28, 1862. 
 
 Gentlemen of Hudson County : — It gives me great 
 pleasure to have the opportunity of addressing you 
 upon the issues of this campaign. I am not known 
 to many of you, personally, and therefore it wiU, of 
 course, be a satisfaction to you to see me, and hear 
 from me of my views concerning some of the great 
 issues of this contest. All of you know that I 
 was not eager for the position in which my nomina- 
 tion has placed me. I acceded to it with reluctance, 
 and only from a strong sense of duty. I was especially 
 reluctant to be considered a candidate because the 
 nomination, according to usage, belonged to Hudson, 
 and I made it a special condition that I was not to 
 be named as a candidate without the consent of 
 Hudson County. I stood to that condition as a 
 matter of honor between the different parts of the 
 district. The law of honor on such subjects is imper- 
 ative. It therefore gave me great pleasure to under- 
 stand that the nomination came from you, and I con- 
 sider that this fact imposes upon me peculiar obliga- 
 
140 MISCELLANEOUS WRITINGS. 
 
 tions toward Hudson county, and if I should be so for- 
 tunate, or unfortunate, as the case may be, as to be 
 elected, I shall feel under special obligations to regard the 
 interests of this part of the district. I hold that any 
 man should be proud to be the representative of this 
 district. There is no district in the country which 
 a man ought to be more proud to represent than the 
 Fifth District of New Jersey. Commerce and manu- 
 factures concentre here their most important interests, 
 and the man who faithfully discharges the duties of 
 its representative should be familiar with all the rami- 
 fications and w^ants of those interests, and be able to 
 represent them fully ; and properly to discharge that 
 duty, properly to represent the great commercial and 
 manufacturing interests of Jersey City and of Newark, 
 one of the greatest centres of manufacturing industry 
 in the country, I feel requires more ability than I 
 possess, and I shall be obliged to give my sole and 
 undivided attention to my duties, in order to do what 
 will be required of me. 
 
 But apart from the local interests of this district, 
 we have at this particular period of our history, issues 
 before the country of great and paramount import- 
 ance — national issues, than which none more important 
 have been presented to the American people since they 
 have been a nation. None, I say, more important. 
 
 In the year 1788, an issue was presented as import- 
 ant as the present, but never one of greater importance. 
 Then, the question was, shall we adopt the noble 
 Constitution under which we live, which should consti- 
 tute us one country, one nation, one people, bound up 
 to one destiny ? Now the question is whether w^e 
 shall remain so. 
 
POLITICAL EXPRESSIONS. 141 
 
 Two years ago to-day, my fellow-citizens, the sua 
 in his daily round shone on no people so contented, so 
 happy, so prosperous as ourselves. The husbandman 
 tilled his fields on every hillside and tended his flocks 
 and herds in every valley of this broad land, enjoying 
 to the utmost the blessings of a freedom consistent 
 with the good order of society, gathering the full 
 and rich rewards of his honest toil. No poverty 
 cursed the land. Pauperism scarcely existed — ^we 
 hardly knew what it was. Every man that was able 
 to work and willing to work lived like a prince. 
 Everyone enjoyed the utmost freedom. He felt he 
 belonged to a great and noble country, and he par- 
 ticipated in and represented a portion of that great- 
 ness and nobility. An American citizen was then 
 respected by all, and he respected himself wherever he 
 w^ent. To-day, if an American should travel in Europe 
 and name himself an American, he would be a jest 
 and a by- word. To-day, instead of being great and 
 happy, and prosperous, w^e are divided, rent and torn 
 by civil war, and engaged in a terrible struggle to 
 save the nation from destruction, to preserve our insti- 
 tutions, and vindicate the authority of the Constitution 
 and laws. 
 
 What would our Government be w^orth, what 
 would our Constitution be worth, what would we be, 
 what could w^e do, if we become a divided people ? 
 We would be like the petty States of Germany, with- 
 out pow^er, without resources, without any of those 
 attributes of a nation which command the respect of 
 the virorld, and entirely at the mercy and control of 
 greater and stronger pow^ers. And who shall draw 
 the line if w^e divide ? What magician with his w^and 
 
142 MISCELLANEOUS WRITINGS. 
 
 shall establish a perpetual line of divisioH between 
 one part of the country and the other ? Where shall 
 it be ? Along the Potomac, south of Virginia, south 
 of North Carolina, Mason and Dixon's line — where ? 
 Once admit the principle of division and how^ soon 
 will we have to draw the line again ? How^ soon 
 would the West separate from the East, Pennsylvania 
 withdraw from New York, or both from New England ? 
 No, gentlemen, admit for a moment this principle, 
 and we have no country at all. The fabric our fathers 
 raised and swore to defend, that moment crumbles 
 into fragments — ^into petty States, to belong to which 
 would be no honor, and w^ould compel no respect. 
 
 New^ Jersey, noble little State, in whose fame we all 
 feel so just a pride. Who in our own land is not 
 proud to call himself a Jerseyman ? Yet who, abroad, 
 would think to call himself simply a Jerseyman ? We 
 would call ourselves Americans, and ia this name 
 something of the respect would attach to us which 
 formerly attached to the name of Roman citizen. 
 This w^ould be so because the nations have learned to 
 respect our greatness and our power. These con- 
 stituted us the bulwark of freedom and free 
 institutions in the w^orld. It was this which gave 
 us respect in the eyes of the world. Our ships, 
 our commerce, our citizens, w^ere all honored under 
 the broad shield of our nationality. Take away this, 
 and aU pow^er, all respect is gone. We become nothing 
 but petty States, subject to the beck and dictation of 
 every great pow^er in the world. We have all been 
 brought up with a love of our country — brought up 
 to believe that it is the best countty in the world. In 
 this country, at least, we thought we saw^ the true 
 
POLITICAL EXPRESSIONS. 143 
 
 and final success of republican institutions. This love 
 of country has grown in our bosoms to be a passion. 
 In other lands, there is loyalty to the person of the 
 sovereign ; here our loyalty fastens upon the Consti- 
 tution and the laws, and upon our free institutions. 
 If these are destroyed, this sentiment of loyalty would 
 be crushed, and we should go about the streets in 
 mourning. We should be broken down as a nation, 
 and our great experiment w^ould be a failure. [Ap- 
 plause.] Gentlemen, these sentiments and ideas lie 
 at the bottom of all our principles and instincts as 
 American citizens — members of this great republic. 
 They lie at the bottom of all that we are contending 
 for in this struggle. The man -who does not feel these 
 sentiments is a traitor at heart. [Great applause.] 
 
 Now, gentlemen, who are the authors of this 
 wicked rebellion which has been excited in the Southern 
 States against this glorious Government ? How did 
 it arise ? Many say the North are the authors of it. 
 [Mr. Bradley here read an extract from a speech deliv- 
 ered in Newark a short time since before a Democratic 
 convention, in -which the speaker justified secession, 
 and affirmed that the nation could never be saved 
 while the present crew are aboard the ship of State, 
 and declaring that they must be got rid of, if the ship 
 had to be scuttled and sunk, and lowered to the deck, 
 and the crew drowned out.] Mr. Bradley then pro- 
 ceeded : 
 
 Now, fellow-citizens, I do not justify the intemper- 
 ate language used by some Northern fanatics. I never 
 did justify it. I have always thought it wrong in 
 principle. I am speaking the sentiments of all conser- 
 vative men, and I say we were always willing to con- 
 
144 MISCELLANEOUS WRITINGS. 
 
 cede to the South all their just rights — the entire control 
 and regulation of their own affairs. The Constitution 
 gives us no power to meddle with them, no more than 
 it gives them power to meddle with us. The Consti- 
 tution w^as founded on the idea that the States should 
 regulate their own affairs. 
 
 We have also been always willing to concede to 
 them a fair proportion of the new territory -which 
 should be acquired by our common treasure and com- 
 mon arms. And if there were men at the North who 
 disputed these rights, they w^ere few^ in number, and 
 did not represent the general feelings of the North. 
 No, gentlemen, it was no invasion of Southern rights 
 by the North that produced this wicked rebellion. 
 Never, never. It was the devil in the hearts of the 
 Southern ringleaders — the determination if they could 
 not rule to ruin. That was the cause. The Southern 
 people themselves w^ere not in favor of this rebellion. 
 Two years ago they would have voted down secession 
 if they could have expressed their honest sentiments 
 at the ballot-box. But they were coerced and deceived, 
 and the truth was kept from them until they have 
 become mad in this great war against the Constitution 
 and the cotmtry — ^perfectly infuriated. This conspiracy 
 has been ripening for thirty years among Southern 
 politicians. They foresaw that power would depart 
 from their grasp, and they concocted this rebellion. 
 It was Calhoun and his compeers who w^ere at the 
 bottom of it. They are the guilty men whose lives 
 ought to have paid the forfeit. General Jackson — God 
 bless him — ought to have hung Calhoun, and then the 
 seed would have been destroyed which has grown up 
 and ripened to such a fearful harvest. 
 
POLITICAL EXPRESSIONS. 145 
 
 Now, fellow-citizens, in view of the enormity of this 
 rebellion, in view of this great effort to war against 
 and destroy our Government,, what is the duty of the 
 Government — the country — our duty ? To put down 
 the rebellion cost what it may. [Great Applause.] 
 That's the great principle which animates us to-day. 
 That's the pole star of our political principles. The 
 rebellion must be put down. Nothing else must be 
 thought of. I see nothing else, can see nothing else. 
 It glares in my eye continually — the Union must and 
 shall be preserved. [Enthusiastic applause.] You 
 may talk of mistakes, of official acts which are not 
 strictly according to law — about violating this or that 
 clause of the Constitution. It may be so. If so, we 
 can punish them for it after awhile ; but for the pres- 
 ent, I repeat it, we have nothing to do but to put 
 down the rebellion, and hold up the President's hands 
 whilst he is trying to do it. [Applause.] 
 
 Fellow-citizens, you want to know -what my pol- 
 itics are ; there they are. They are not the growth 
 of a day— they have been growing up in me for forty- 
 nine years ; they are the outcropping of my whole 
 nature. I have grown up from childhood to love our 
 glorious Constitution and Union, and that love has 
 become a passion of my nature. 
 
 I have seen in a speech made not far from this 
 place the sentiment that we must be kind and conciliat- 
 ing to our Southern " brethren "; that we must not 
 deal harshly with them, etc. 
 
 Gentlemen, up to the time that the war came, up 
 to the time that the Rebelhon became a fact, I could 
 endorse that sentiment with all my heart. I could 
 go with any man or set of men in effecting a com- 
 
146 MISCELLANEOUS WRITINGS. 
 
 promise with the South. I did join, in fact, in Decem- 
 ber, 1860, in an endeavor to get up a compromise 
 which would have satisfied the Southern people. I 
 spent several weeks in Washington, giving my whole 
 time to this matter, giving all my heart and energies 
 to it, because of my love for the Union, and my hatred 
 of blood. I thought then an honorable compromise 
 could be effected, and I could then say " Southern 
 brethren " with all my heart. But when they became 
 rebels and refused compromise and flung concilia- 
 tion in our face and endeavored to destroy our coun- 
 try, they were my brethren no longer. A rebel, a 
 traitor, is a criminal, like a murderer, an must be put 
 down. If they come in and submit to the authority 
 of the Constitution, I can then again hail them as 
 brothers ; but not till then. Until then they are 
 enemies, and to be dealt with as enemies. The plea 
 that we cannot do this or that in a war against 
 them is absurd. We might as well say we cotdd not 
 do such things in a war against England or France. 
 They have repudiated the Constitution, and are we 
 under the same obligations to them that w^e would 
 be if no w^ar existed ? 
 
 We are bound by the Constitution assuredly ; but 
 the Constitution has in it powers relating to war, and 
 for the suppression of insurrection and rebellion, as well 
 as other powers ; and we have the power to take the 
 same steps to put them down as w^e have to carry on 
 a foreign war, and in the exercise of those powers we 
 are just as much w^ithin the Constitution as we are 
 in returning their fugitive slaves in time of peace. 
 
 There is nothing in the Constitution which limits 
 or controls the conduct of the war. There is nothing 
 
POLITICAL EXPRESSIONS. 14t 
 
 but the law of nations. And even in regard to that, 
 the law of nations in respect to a foreign war differs 
 from that in regard to a domestic war. We have a 
 right to do things in a domestic war which we 
 would not have in a foreign w^ar. There is not a 
 nation in the world which does not confiscate the 
 property of rebels. It is part of the common law. 
 This right to confiscate extends in this country 
 with regard to lands, only to the lifetime of the 
 guilty person. Therefore, real estate cannot be confis- 
 cated beyond the lifetime of the guilty parties. With 
 that restriction, the power to confiscate is absolute, 
 and without that restriction it is absolute in every 
 other country in the world. In a foreign w^ar we 
 should not possess this right. We could not confiscate 
 the property of the citizens of France, as they w^otdd 
 owe obedience and allegiance to their own govern- 
 ment. But rebels, who fight against their own gov- 
 ernment, have not that plea. The law of the civilized 
 w^orld says that the property of rebels may be confis- 
 cated. So that, while we are bound by the law of 
 nations, it is the law of nations as applied to a 
 rebellion. 
 
 Now, whether confiscation is or is not expedient, 
 is another question. I only say it is constitutional — 
 i. e., it is not unconstitutional. 
 
 It is not for me, gentlemen, to discuss this or that 
 particular measure of the Administration. It is not 
 for me to sit in judgment in matters of such minor 
 importance. If the line of authority has been over- 
 stepped we must not stop now to punish the guilty. 
 Now we must put down the rebellion, and restore the 
 authority of the Constitution and laws. 
 
148 MISCELLANEOUS WHITINGS. 
 
 Mr. Bradley then referred to the duty of every 
 citizen to support the Government, instancing the 
 example of the Federalists in the war of 1812, who 
 opposed the war violently, and yet for the most part, 
 when the war actually begun, stepped gallantly for- 
 ward to lend their aid. They went forth like men, 
 and fought side by side with Democrats, and 
 those who then stood back, and let their hands hang 
 idly by their sides, w^ere forever branded as traitors to 
 their country. [A voice, " Buchanan."] 
 
 When the country is actually engaged in a war, we 
 must stand by the country. If the Government does 
 wrong, even, I say, stand by it, and see the war 
 through, and attend to the wrong afterwards. That's 
 what we are bound to do now. Party issues are to 
 be discarded. We should discard every issue but one, 
 and that is — our country must be saved and the 
 authority of the Constitution vindicated. Mr. Brad- 
 ley then referred to the possibility of England and 
 France interfering in this war. If they do, said he, 
 w^e shall have a more solemn duty than ever before 
 to perform. 
 
 The question arises, what will be our duty then ? 
 Have we ever injured them, or interfered -with them 
 during all their wars ? Then what right have they to 
 interfere with us ? Neither the laws of God or of 
 nations (except as concocted by themselves), give 
 them any right to interfere, and if they do, it will be 
 because they hate our institutions and will be glad 
 to see their downfall. We are not called upon to 
 declare a policy in advance, yet I, for one, would let 
 those nations know that they can't interfere vnth. us 
 with impunity [great applause] ; that there will be 
 
POLITICAL EXPRESSIONS. 149 
 
 blows to take as well as to give ; that there are 
 domestic dissensions and discontent in other countries 
 as well as ours. I would let them know in advance 
 that if they dare stir up the lion in his lair they may 
 feel the weight of his paw. I do not say what polic}'^ 
 should be pursued, but I will say that these are my 
 strong convictions. Now, gentlemen, some of these 
 remarks of mine may not be those of a politician. I 
 talk straight out and straight on. You have my views, 
 you have them frankly, fully. Our opponents are full 
 of the wisdom of the serpent, if not the harmlessness 
 of the dove. They profess to be in favor of the war, 
 yet w^e see in their councils, in their most secret coun- 
 cils, men whom we know, from their antecedents, to be 
 secessionists at heart. What they mean I don't know, 
 but I do know that those who are heartily for aiding 
 the Administration in carrying on the war can't be far 
 wrong. 
 
 I deprecate party politics in a time like this. I 
 would say to all patriotic men of every party, let us 
 unite in this great and holy cause until peace shall be 
 restored on the only basis on which it can permanently 
 stand — the unity of the whole country under the old 
 Constitution and the old flag. [Loud cheers.] 
 
THE CONSTITUTIONAL AMENDMENT. 
 
 LETTER 
 
 FROM 
 
 JOSEPH P. BRADLEY, ESQ., 
 
 OF NEW JERSEY, 
 
 TO 
 
 MR. CHARLES KNAP, 
 
 ON THE 
 
 QUESTION OF THE NUMBER OF STATES REQUISITE TO 
 RATIFY AN AMENDMENT TO THE CONSTITUTION. 
 
 Note. — The publication of the following letter at this time calls for no 
 apology. The subject is so important in itself, and the -views contained in 
 the letter impressed me as so conclusive, that it seemed to me eminently 
 proper to give them publicity, and, at my urgent request, the -writer has 
 given his consent to such disposition of it. C. KNAP. 
 
 ■Washington, February 20, 1865. 
 
 Washington, February 18, 1865. 
 My Dear Knap : Agreeably to your request, I 
 proceed to jot down the substance of the views 
 expressed in our conversation to-day, in relation to 
 the number of States required to ratify the Constitu- 
 tional amendment abolishing slavery. I apprehend 
 you will find very little that is new, as most 
 right-thinking men, who have given attention to 
 the subject, have undoubtedly come to the same 
 conclusion. But the persistency with which certain 
 leading journals and politicians detract from the 
 just authority of the Government and the validity 
 of its proceedings as being unconstitutional, on the 
 plea that certain integral and essential elements 
 
152 MISCELLANEOUS WRITINGS. 
 
 of the Confederacy (as they love to term it) are 
 not represented, renders it proper, and it is high 
 time, that all such heresies should be put down by the 
 American people. While we are at the work of restor- 
 ing and reinaugurating the truth, which has so long 
 been concealed in the deep well of Virginia abstrac- 
 tions, we should strangle each head of that hydra of 
 error which has led our country to the verge of 
 destruction. If, from motives of expediency or clem- 
 ency, we should conclude, in any case, to waive the 
 truth, w^e ought, at least, to recognize it, and place it 
 upon its own proper pedestal. A different course 
 will only lead to misunderstandings and embarrass- 
 ments hereafter. I consider the doctrine that a State, 
 by withdrawing from the Union, can produce any 
 deficiency in the " quorum," or other derangement 
 of the organic functions, so as to render constitution- 
 ally nugatory any action or proceeding of the Govern- 
 ment, quite as repugnant to all just ideas of constitu- 
 tional law as is the doctrine of secession itself. And, 
 therefore, I entirely concur in the conclusion arrived at 
 by Mr. Sumner in the joint resolution offered by him 
 in the Senate on the 4th instant, that the rebellious 
 States are not to be counted in estimating the number 
 of States of which three-fourths are required to ratify 
 and validate the amendment in question. "Whether it 
 would or w^ould not be politic to cotmt them is a 
 different question, which I do not discuss. 
 
 Congress having, by a vote of two-thirds of both 
 Houses, proposed this amendment to the legislatures 
 of the several States, the fifth article of the Constitu- 
 tion declares that, " when ratified by the legislatures 
 of three-fourths of the several States," it will be valid 
 
THE CONSTITUTIONAL, AMENDMENT. 153 
 
 as a part of the Constitution. The question is, What 
 are " the several States " intended in that article ? I 
 contend that they are those, and only those. States 
 which are connected with the Union as States when 
 the amendment is passed upon. 
 
 It is certainly clear that the Constitution did not 
 refer merely to the thirteen States which were then 
 organized, and in confederate relations with each other. 
 It might have been only nine of those States, had only 
 nine adopted the Constitution ; and as the power to 
 admit new States is expressly given, it may be a htm- 
 dred, if so many shall at any time be formed under the 
 Constitution. Otherwise the object of the clause, 
 namely, to secure a large preponderance of the body 
 politic in favor of an amendment before giving it valid- 
 ity, w^ould be frustated. If three-fourths of the original 
 thirteen were meant, ten of the old States could at 
 any time ratify an amendment w^hich w^ould bind, per- 
 chance, a hundred States. This could not have been 
 the intent. The clause, therefore, must have respect to 
 the States which, in the sense of the Constitution, 
 are, or shall be. States whenever an amendment is 
 proposed, w^hether they include all or do not include 
 any of the original thirteen. 
 
 This point being established, the next proposition, 
 equally clear and demonstrable, is, that, although 
 there may be and is such a thing as actual secession, 
 there is no such thing as a right of secession, any 
 more than there is a right of rebellion or revolution. 
 The w^ord " right " indicates a liberty of action or 
 possession guaranteed by the social law, that is, the 
 law which binds civil society together. But revolution 
 is an abrogation of the pre-existing bonds of civil 
 
154 MISCELLANEOUS WRITINGS. 
 
 society. The very provision for making amendments 
 to the Constitution was intended to obviate every 
 pretence for revolution. Now, by adopting the Con- 
 stitution, the people of the United States erased and 
 abrogated all State jurisdiction in the matters of sover- 
 eignty embraced within the scope of that instrument, 
 and, in so many words, declared : " This Constitution, 
 and the laws of the United States made in pursuance 
 thereof, and all treaties made, etc., shall be the supreme 
 law of the land." These portions of the general 
 sovereignty were lodged in the general Government, 
 not as a fief to be holden by any sort of tenure of or 
 from the State sovereignties, but as the tmdoubted 
 prerogative and allodium of the w^hole people of the 
 United States, independent, outside of, and above the 
 State sovereignties ; so that, in very truth, the Con- 
 stitution and laws of the Federal Government became, 
 in their nature, as they were thus declared to be, 
 " the supreme law of the land." After this no State 
 had or could have any right to secede. To do so 
 would be to set at naught or at defiance " the supreme 
 law of the land," which no State can repeal, and over 
 which no State has control. Within the constitutional 
 scope, which embraces all the most important branches 
 of national sovereignty, such as the foreign relations, 
 w^ar, peace, army, navy, controversies between the 
 States themselves, commerce, citizenship, money, 
 weights and measures, etc., there is but one country, 
 one " land," and one " supreme law of the land." Just 
 as well might any county in a State claim a right to 
 secede from the State, as for a State to claim the right 
 to secede from the Union. The attempt in either case 
 would be an attempt to disrupt the bands of civil 
 
THE CONSTITUTIONAL AMENDMENT. 155 
 
 society as organized in that community of which the 
 seceding body is a part. A State is a limited and 
 subordinate sovereignty— Umited and subordinate, 
 because destitute of those transcendent powers which 
 more particularly characterize nationality. Those 
 powers have, by the ultimate source of political 
 power — a source superior to that from w^hich any State 
 pow^er is derived, namely, the whole people of the United 
 States — been lodged in a separate and superior gov- 
 ernment. And hence, if a State could lawfully secede, 
 it w^ould only carry with it legitimately those subordi- 
 nate branches of sovereignty which it possesses, and 
 w^hich are not lodged in the general Government. It 
 is true, countries and peoples, formerly one, do some- 
 times violently separate from each other. But it is 
 revolution when they do so ; and it is revolution here. 
 But w^hile there is no such thing as a right of 
 secession, and while, in all national respects, as before 
 said, we are one people, and this is one country, yet 
 in the eye of the Constitution, the States for many 
 purposes have separate existence and status as such. 
 The members of the House of Representatives are 
 elected by the people of the several States — ^no con- 
 gressional district being formed from two States ; 
 each State is entitled to a certain number of Repre- 
 sentatives and Senators ; each State owes certain 
 constitutional duties to the other States, and to the 
 general Government ; and the general Government 
 owes certain duties to the States, one of which 
 is to guarantee to every one of them a republican 
 form of government, and to protect them from inva- 
 sion and domestic violence. The States, therefore, 
 having a separate existence, and being clothed with the 
 
156 MISCELLANEOUS WRITINGS. 
 
 forms of political sovereignty, and acting in all domestic 
 and internal matters as independent communities, 
 they can, de facto, secede, and by their actual secession 
 cause a vacancy in the associated circle of communities 
 forming the United States, which is calculated to 
 embarrass a fair exposition of Constitutional rights 
 and duties, both of the general and State Govern- 
 ments. This is the difficulty to be solved. 
 
 Now, suppose a single State in the national body 
 politic — Maryland, for example — should, through all 
 its organisms, popular, legislative, executive, judicial, 
 secede from the Union, and repudiate the Constitution, 
 and forcibly prevent the exercise of any Federal 
 authority in her territory, w^hat would be the status 
 of that State ? The territory of the State w^ould, of 
 course, remain w^here it was in spite of secession, and 
 the inhabitants would remain upon the territory. 
 But the State does not consist merely of the one nor 
 of the other, nor of both, without a certain political 
 organization. If, for example, all the inhabitants of 
 that State, with their entire political organization, 
 should remove to the Western plains, and there con- 
 tinue their social and political life, they would no 
 longer be the State of Maryland ; and on the other 
 hand, without inhabitants and a certain organized 
 community, the territory of Maryland would cease to 
 be a State. It would be the territory which was 
 once called the State of Maryland, but it would cease 
 to be such. Yet it would not be out of the United 
 States, nor free from the laws of the United States ; 
 nor would it be so by the supposed act of secession. 
 
 With this preliminary observation, I ask again, 
 what would be the status of Maryland after thus seced- 
 
THE CONSTITUTIONAL AMENDMENT. 157 
 
 ing from the Union ? What would be the status of her 
 territory and its inhabitants ? Are they any longer a 
 "State" within the meaning of the Constitution? 
 They may be de facto a State, in the popular sense of 
 the term ; but are they a State in the Constitutional 
 sense ? Are they entitled to the rights which the 
 Constitution secures to "the several States ?" When 
 a citizen of Maryland, for example, should come into 
 any other State, would he be entitled, any longer, to all 
 the privileges and immunities of its own citizens ? Do 
 we concede this privilege now, to citizens of Alabama ? 
 May they come within our lines, and take rooms at 
 our hotels, and trade and converse with our people ? 
 And in the hypothetical case of Maryland, would the 
 general Government any longer be bound to guarantee 
 to her a republican form of government ? Would the 
 other States be bound to return her fugitives from jus- 
 tice and her fugitives from service ? Would they be 
 bound to give full faith and credit to her legislative 
 acts and judicial proceedings ? Would the Supreme 
 Court be bound to hear and decide her controversies 
 with the other States ? If Maryland, imder such cir- 
 cumstances, should send two persons to the Senate of 
 the United States, and demand that they should sit in 
 that body, would it be allowed ? To ask these ques- 
 tions is to answer them. It would be absurd to 
 answer them in the affirmative. It is an intuitive 
 principle, growing out of the very nature of right, 
 and obligation, and law, and, therefore, a fundamental 
 maxim of all codes, that he who violates, repudiates, 
 and contemns a contract, cannot claim its collateral 
 advantages. If it is a lease of land, he loses all claim 
 to the land. If it is an agreement, he can claim no 
 
158 MISCELLANEOUS WRITINGS. 
 
 benefit from the agreement. As respects the bond 
 repudiated, he is an alien ; he has no rights, and no 
 claims, except upon the clemency of the other party. 
 So he who repudiates and contemns the social bond, 
 and wages war against mankind, is a pirate, and is 
 entitled to the protection of no law, for the very rea- 
 son that he has repudiated all law. And so, in the 
 case supposed, Maryland, by repudiating and trampling 
 upon the bond of our national social compact, would 
 be no longer entitled to any of the benefits or any of 
 the considerations of that compact. She puts herself 
 out of the pale of the Constitution, and shuts her 
 mouth to all objections arising out of her wrongful 
 position. 
 
 Then what, in relation to the Federal Constitution 
 and Government, would be her condition and status ? 
 Though she has seceded in fact, she cannot secede in 
 law ; and yet having seceded in fact, she — that is, her 
 people— are entitled to no regards as " a State." And 
 there lies her territory in the very heart of the country, 
 cutting it in twain. What are the logical results of 
 her condition ? 
 
 Are we told that we must reduce her people to 
 obedience ? This the general Government unquestion- 
 ably may do, and should do. But still the question 
 recurs, what is the Constitutional status of Maryland 
 and its inhabitants in the meantime ? And suppose 
 they wUl not be reduced to obedience ? They prefer 
 extermination ; they fight to the last ditch, and die in 
 it ; or they are expelled and banished. What then ? 
 Will the territory belong to nobody ? May England 
 people it again with colonists ? May France sieze it 
 as virgin territory, and hold it by right of occupancy ? 
 
THE CONSTITUTIONAL AMENDMENT. 159 
 
 Has the United States no right of political dominion 
 in it ? It seems to me perfectly clear that the Govern- 
 ment of the United States would be entitled to invite 
 settlers to replant it. If it might do this, would these 
 settlers be a State perforce, and without the consent 
 of the United States Government ? Is a particular 
 tract of land necessarily a State because a State was 
 once organized upon it ? This we have seen is not so. 
 If, then, new settlers, placed upon the territory by the 
 general Government, could not act as a State without 
 the consent of that Government, could a people who 
 have lost all rights as a State imder the Constitution, 
 and who, by the strong arm of the Government, have 
 been reduced to obedience, claim it as a right to act 
 again as a State on that same territory ? Could they 
 claim to resume and proceed with all the functions of 
 a State, as though nothing had happened ? 
 
 These questions lead unerringly to the true solution 
 of the difficulty. 
 
 The territory of Maryland is a part of that coun- 
 try, that " land " over which the people of the United 
 States have constituted the Federal Government, by 
 that Constitution which they have declared to be " the 
 supreme law of the land." This territory cannot be 
 wrenched from its subjection to the authority of that 
 Government. There is, there can be, no right of seces- 
 sion. It is a Constitutional solecism. But if the 
 people of the State, acting through their State organ- 
 ization, and as a State, have forfeited all claim to be 
 considered as a State — as in the case supposed they 
 clearly would — then it follows (and no other conclu- 
 sion can be logically drawn) that the general Govern- 
 ment has a right to occupy the obnoxious territory by 
 
160 MISCELLANEOUS WRITINGS. 
 
 its annies, and in all other ways, and to impose such 
 condition of habitancy therein as it sees fit to do, and 
 as it would have a right to do ia relation to any con- 
 quered or purchased territory. Any other conclusion 
 would be subversive of the Government itself, by 
 putting it into the power of any State, by indirection, 
 to stop the wheels of government, and thus practically 
 to exert the right of secession, which it is admitted 
 does not exist. The recreant State by seceding, 
 renounces her rights and status as a State, and the 
 Government takes her at her word ; but also adheres 
 to and enforces that other relation in w^hich her terri- 
 tory stands to the country and Constitution, as an 
 integral portion of the territory of the United States. 
 
 It follows as a corollary, that a seceding State, 
 w^hich repudiates and disclaims the Constitution, is not 
 a State within the meaning of the Constitution, but 
 has ceased to be such ; and, therefore, that its action 
 cannot in any manner clog the Avheels or embarrass 
 the movements of the Government. The territory of 
 the United States remains the same ; there is only one 
 State the less within that territory. The organization 
 of the various departments of the Government, 
 executive, legislative, judicial, is not affected nor 
 changed. Quorums of representative bodies, such as 
 the Senate and House of Representatives, are not 
 destroyed or rendered impracticable. The Government 
 moves serenely on ; and if the people of a particular 
 State will not have the Government to rule over them, 
 they simply lose their status as a State in the eye and 
 within the meaning of the Constitution, and remain 
 subject to the clemency of the Government. 
 
 As a matter of policy and expediency, it might, 
 and probably would be advisable, in such a case, to 
 
THE CONSTITUTIONAL AMENDMENT. 161 
 
 receive the erring sister back again as a State as soon 
 as she gets tired of secession. And the most expedient 
 manner of doing this might, and perhaps would be 
 that indicated by the enunciations of General Sherman, 
 namely, by silently allowing her representatives to 
 take their seats in the Congress, whenever Congress is 
 satisfied of her returning loyalty, and quietly setting 
 the w^heels of Government in motion again in her 
 territory. Such a course taken by the two Houses of 
 Congress w^ould probably be as valid a process for 
 readmission as a joint resolution w^as in the case of 
 Texas for the original admission of a State ; for it 
 would be tantamount to a joint resolution. 
 
 But be this as it may, in strict right, and as a 
 matter of Constitutional law, the seceding State, 
 while in a state of actual secession, cannot be reckoned 
 as a State for the purpose of claiming any rights or 
 interposing any obstacles to the action of the Govern- 
 ment or people of the United States, or for any other 
 Constitutional purposes. 
 
 To admit for a moment that the wrongful secession 
 of a State, or a number of States can embarrass the 
 proceedings required to amend the Constitution, or to 
 perform any function of the Government, w^ould be to 
 enable disloyal and rebelHous States to deprive the 
 people of loyal and faithful States of their most valued 
 privileges. One of the most valuable privileges secured 
 to the people of the United States is the right to 
 amend their Constitution and Government by peace- 
 able means — a right which few^ other nations enjoy ; 
 and hence their bloody revolutions for redress of griev- 
 ances. Englishmen secured this right by the revolution 
 of 1688, and highly do they prize it. The progress of 
 
162 MISCELLANEOUS WRITINGS. 
 
 ideas in the world, and the steady advance of civiliza- 
 tion, require gradual changes in the organic law. 
 But, if seceding States are to be included in the roll-call 
 of States when an amendment is proposed, the perma- 
 nent secession of ten States would forever present a 
 bar to any amendment being made, and their tempor- 
 ary secession w^ould temporarily suspend the Consti- 
 tutional prerogatives of the Government and people. 
 
 We should not for a moment listen to any such 
 absurd proposition. If a State secedes, she, by her 
 own act, ceases to be a State, but her territory does 
 not (except by force of successful rebelHon) cease to 
 be a portion of the territory of the United States. 
 Her readmission as a State cannot be claimed as a 
 right, but must depend upon the authority and consent 
 of the Federal Government. 
 
 It follow^s as a further corollary, that any amend- 
 ment of the Constitution requiring the approval of 
 a majority of the States, is valid when approved by 
 a majority of those States w^hich adhere to the Govern- 
 ment. If others have put it out of their own power 
 to co-operate in the matter, either by approval or 
 rejection, it is their own fault and their own misfor- 
 tune, and not that of the country or of the loyal 
 States. And when they come back again as States, 
 if they ever do, they will be bound by what the Gov- 
 ernment and people of the United States have done in 
 their absence ; and they can never plead their own 
 wrong as a bar to the validity of such action. They 
 might as well complain that the amendment was not 
 presented to them for their ratification when they had 
 armies in the field to prevent any intercourse with 
 them ! For, if they are to be reckoned as States, 
 
THE CONSTITUTIONAL AMENDMENT. 163 
 
 whose approval or rejection is necessary, they could 
 logically argue that a failure to propose to them a 
 contemplated amendment would be a fatal objection 
 to its vaHdity. 
 
 At the present time eleven States are in a state of 
 secession de facto (or rebellion, if that expression is 
 preferred), and twenty-five States remain true to the 
 Government and Constitution. Therefore, the ratifi- 
 cation of the amendment in question by nineteen States 
 not in secession will make it vaHd as a part of the Con- 
 stitution. This is the clear dictate of Constitutional 
 law^. 
 
 I do not know^ that the present exigencies of the 
 country render this view of the subject practically 
 important. Both Houses of Congress virtually assumed 
 it as the true one w^hen they declared that a majority 
 of the Senators and Representatives elected to each 
 House respectively w^as sufficient to form a quorum ; 
 thus obviating one of the difficulties which a contrary 
 doctrine w^oidd create. The great desideratum of the 
 present hour is to insure the success of our arms in 
 quelling the rebellion. That once quelled, there is little 
 doubt that three-fourths of all the States, including 
 those which have no Constitutional claim to be treated 
 as such, but which will undoubtedly be w^elcomed 
 back to their allegiance, will readily be found to 
 approve of the proposed amendment. The recruiting 
 of the army with stalwart and honest men is at present 
 the great and absorbing duty of the nation. 
 
 I am, as ever, yours, 
 
 JOSEPH P. BRADLEY. 
 Charles Knap, Esq., 
 
 Washington. 
 
OPINIONS AND REMARKS 
 
 OF 
 
 MR. COMMISSIONER BRADLEY 
 
 IN THE CONSULTATIONS OF THE 
 
 ELECTORAL COMMISSION 
 
 UPON THE 
 
 ELECTORAL VOTES OF FLORIDA, LOUISIANA AND OREGON. 
 
 The following opinions and remarks have been somewhat abbreviated, 
 and repetition of the same arguments in the different cases has been 
 omitted. 
 
 THE FLORIDA CASE. 
 
 In this case the objectors to the Certificate No. 1 
 (which was authenticated by Governor Steams, and 
 contained the votes of the Hayes electors) proposed 
 to prove by the papers accompanying the certificates, 
 that a writ of quo warranto had been issued from a 
 district court in Florida against the Hayes electors on 
 the 6th day of December, before they gave their votes 
 for President and Vice-President, which on January 
 26, 1877, resulted in a judgment against them, and in 
 favor of the Tilden electors ; also an act of the Legis- 
 lature passed in January, in favor of the Tilden elec- 
 tors ; and also certain extrinsic evidence described by 
 the counsel of the objectors as follows : 
 
 "Fifthly. The only matters which the Tilden 
 electors desire to lay before the Commission by evi- 
 dence actually extrinsic will now be stated. 
 
166 MISCELLANEOUS WRITINGS. 
 
 " I. The Board of State Canvassers, acting on 
 certain erroneous views when making their canvass, 
 by which the Hayes electors appeared to be chosen, 
 rejected wholly the returns from the county of Manatee 
 and parts of returns from each of the following coun- 
 ties : Hamilton, Jackson, and Monroe. 
 
 " In so doing the said State board acted without 
 jurisdiction, as the Circuit and Supreme Courts in 
 Florida decided. It was by overruling and setting 
 aside as not warranted by law^ these rejections, that 
 the courts of Florida reached their respective conclu- 
 sions that Mr. Drew^ was elected Governor, that the 
 Hayes electors w^ere usurpers, and that the Tilden 
 electors were duly chosen. 
 
 " II. Evidence that Mr. Humphreys, a Hayes 
 elector, held office under the United States. 
 
 The question was argued as to the admissibility 
 of this evidence. 
 
 Substance of Justice Bradley's Opinion, Delivered 
 February 9, 1877. 
 
 I assume that the powers of the Commission are 
 precisely those, and no other, which the two Houses 
 of Congress possess in the matter submitted to our 
 consideration ; and that the extent of that power is 
 one of the questions submitted. This is my interpre- 
 tation of the act under which we are organized. 
 
 The first question, therefore, is, whether and how 
 far, the two Houses, in the exercise of the special 
 jurisdiction conferred on them in the matter of coimt- 
 ing the electoral votes, have power to inquire into the 
 validity of the votes transmitted to the President of 
 
OPINIONS IN ELECTORAL COMMISSION. 167 
 
 the Senate. Their power to make any inquiry at all 
 is disputed by, or on behalf of, the President of the 
 Senate himself But, I think the practice of the Gov- 
 ernment, as well as the true construction of the Con- 
 stitution, have settled, that the powers of the President 
 of the Senate are merely ministerial, conferred upon 
 him as a matter of convenience as being the presiding 
 officer of one of the two bodies which are to meet for 
 the counting of the votes, and determining the election. 
 He is not invested with any authority for making any 
 investigation outside of the joint meeting of the two 
 Houses. He cannot send for persons or papers. He 
 is utterly without the means or the power to do any- 
 thing more than to inspect the documents sent to him ■ 
 and he cannot inspect them until he opens them in 
 presence of the tw^o Houses. It wotdd seem to be 
 clear, therefore, that if any examination at all is to be 
 gone into, or any judgment is to be exercised in relation 
 to the votes received, it must be performed and exer- 
 cised by the two Houses. 
 
 Then arises the question, how far can the two 
 Houses go in questioning the votes received without 
 trenching upon the power reserved to the States 
 themselves ? 
 
 The extreme reticence of the Constitution on the 
 subject leaves wide room for inference. Each State 
 has a just right to have the entire and exclusive con- 
 trol of its own vote for the Chief Magistrate and head 
 of the republic, without any interference on the part 
 of any other State, acting either separately or in 
 congress with others. If there is any State right of 
 which it is and should be more jealous than of any 
 other, it is this. And such seems to have been the 
 
168 MISCELLANEOUS WRITINGS. 
 
 spirit manifested by the framers of the Constitution. 
 This is evidenced by the terms in which the mode of 
 choosing the President and Vice-President is expressed. 
 "Each State shall appoint— in such manner as the 
 legislature thereof may direct — a number of electors 
 equal to the whole number of Senators and Represent- 
 atives to which the State may be entitled in the Con- 
 gress : — but no Senator or Representative, or person 
 holding an office of trust or profit under the United 
 States, shall be appointed an elector. The electors 
 shall meet in their respective States and vote by ballot, 
 etc." Almost every clause here cited is fraught with 
 the sentiment to which I have alluded. The appoint- 
 ment and mode of appointment belong exclusively to 
 the State. Congress has nothing to do with it, and 
 no control over it, except that, in a subsequent clause. 
 Congress is empowered to determine the time of 
 choosing the electors, and the day on which they shall 
 give their votes, v(rhich is required to be the same day 
 throughout the United States. In all other respects 
 the jurisdiction and pow^er of the State is controlling 
 and exclusive until the functions of the electors have 
 been performed. So completely is Congressional and 
 Federal influence excluded that not a member of Con- 
 gress or an ofiicer of the general Government is 
 allowed to be an elector. Of course, this exclusive 
 power and control of the State is ended and deter- 
 mined when the day fixed by Congress for voting has 
 arrived, and the electors have deposited their votes 
 and made out the lists and certificates required by 
 the Constitution. Up to that time the whole proceed- 
 ing (except the time of election) is conducted under 
 State law and State authority. All machinery, 
 
OPINIONS IN ELECTORAL COMMISSION. 169 
 
 whether of police, examining boards or judicial tribu- 
 nals, deemed requisite and necessary for securing and 
 preserving the true voice of the State in the appoint- 
 ment of electors, is prescribed and provided for by the 
 State itself and not by Congress. AH rules and regu- 
 lations for the employment of this machinery are also 
 within the exclusive province of the State. All over 
 this field of jurisdiction the State must be deemed to 
 have ordained, enacted, and provided all that it con- 
 siders necessary and proper to be done. 
 
 This being so, can Congress, or the two Houses, 
 institute a scrutiny into the action of the State 
 authorities, and sit in judgment on what they have 
 done ? Are not the findings and recorded determina- 
 tions of the State board, or constituted authorities, 
 binding and conclusive, since the State can only act 
 through its constituted authorities ? 
 
 But, it is asked, must the two Houses of Congress 
 submit to outrageous frauds and permit them to pre- 
 vail vrithout any efibrt to circumvent them ? Certainly 
 not, if it is within their jurisdiction to inquire into such 
 frauds. But there is the very question to be solved. 
 Where is such jurisdiction to be found ? If it does not 
 exist, how are the two Houses constitutionally to 
 know^ that frauds have been committed ? It is the 
 business and the jurisdiction of the State to prevent 
 frauds from being perpetrated in the appointment of 
 its electors, and not the business or jurisdiction of the 
 Congress. The State is a sovereign power within its 
 own jurisdiction, and Congress can no more control or 
 review^ the exercise of that jurisdiction than it can 
 that of a foreign government. That which exclusively 
 
170 MISCELLANEOUS WRITINGS. 
 
 belongs to one tribunal or government cannot be 
 passed upon by another. The determmation of each 
 is conclusive within its own sphere. 
 
 It seems to me to be clear, therefore, that Congress 
 cannot institute a scrutiny into the appointment of 
 electors by a State. It would be taking it out of the 
 hands of the State, to which it properly belongs. 
 This never could have been contemplated by the people 
 of the States w^hen they agreed to the Constitution. 
 It w^ould be going one step further back than that 
 instrument allows. Whilst the two Houses of Con- 
 gress are authorized to canvass the electoral votes, no 
 authority is given to them to canvass the election of 
 the electors themselves. To revise the canvass of that 
 election, as made by the State authorities, on the sug- 
 gestion of fraud, or for any other cause, wotdd be 
 tantamount to a recanvass. 
 
 The case of elections of Senators and Representa- 
 tives is different. The Constitution expressly declares 
 that " each House shall be the judge of the elec- 
 tions, returns and qualifications of its own mem- 
 bers." No such power is given, and none ever would 
 have been given if proposed, over the election or 
 appointment of the Presidential electors. Again, 
 whilst the Constitution declares that " the times, 
 places and manner of holding elections of Senators 
 and Representatives shall be prescribed in each State 
 by the legislature thereof," it adds, " but the Congress 
 may at any time by law make or alter such regula- 
 tions, except as to the places of choosing Senators." 
 No such power is given to Congress to regulate the 
 election or appointment of Presidential electors. Their 
 appointment, and all regulations for making it, and 
 the manner of making it, are left exclusively with the 
 States. 
 
OPINIONS IN ELECTORAL COMMISSION. 171 
 
 This waxit of jurisdiction over the subject makes it 
 clear to my mind that the two Houses of Congress 
 cannot institute any scrutiny into the appointment of 
 Presidential electors, as they may and do in reference 
 to the election of their own members. The utmost 
 they can do is to ascertain whether the State has 
 made an appointment according to the form prescribed 
 by its laws. 
 
 This view receives corroboration from the form of 
 a bill introduced into Congress in 1800 for prescribing 
 the mode of deciding disputed elections of President 
 and Vice-President, and which was passed by the 
 Senate. It proposed a grand committee to inquire 
 into the Constitutional qualifications of the persons 
 voted for as President and Vice-President, and of the 
 electors appointed by the States, and various other mat- 
 ters with regard to their appointment and transactions; 
 but it contained a proviso, in which both Houses 
 seem to have concurred, that no petition or exception 
 should be granted or allowed which should have for 
 its object to draw into question the number of votes 
 on virhich any elector had been elected. 
 
 This bill was the proposition of the Federal party 
 of that day, which, as is well known, entertained 
 strong views with regard to the power of the Federal 
 Government as related to the State governments. It 
 viras defeated by the opposition of the Republican 
 side, as being too great an interference with the inde- 
 pendence of the States in reference to the election of 
 President and Vice-President. And taken even as the 
 Federal view^ of the subject, it only shows what mat- 
 ters were regarded as subject to examination under 
 the regulation of law, and not that the two Houses 
 
172 MISCELLANEOUS WRITINGS. 
 
 of Congress, when assembled to count the votes, cotild 
 do the same without the aid of legislation. The bill 
 was rather an admission that legislation was neces- 
 sary in order to provide the proper machinery for 
 making extrinsic inquiries. 
 
 It is unnecessary to enlarge upon the danger of 
 Congress assuming pow^ers in this behalf that do not 
 clearly belong to it. The appetite for power in that 
 body, if indulged in without great prudence, would 
 have a strong tendency to interfere with that freedom 
 and independence which it was intended the States 
 should enjoy in the choice of the national Chief Magis- 
 trate, and to give Congress a control over the subject 
 which it was intended it should not have. 
 
 As the power of Congress, therefore, does not 
 extend to the making of a general scrutiny into the 
 appointment of electors, inasmuch as it would thereby 
 invade the right of the States, so neither can it draw 
 in question, nor sit in judgment upon, the determina- 
 tion and conclusion of the regularly constituted 
 authorities or tribunals appointed by the laws of the 
 States for ascertaining and certifying such appoint- 
 ment. 
 
 And here the inquiry naturally arises, as to the 
 manner in which the electors appointed by a State are 
 to be accredited. What are the proper credentials by 
 which it is to be made known who have been 
 appointed. Obviously if no provision of law existed 
 on the subject, the proper mode would be for the 
 Governor of the State, as its political head and chief, 
 through whom its acts are made known, and by 
 whom its external intercourse is conducted, to issue 
 such credentials. But we are not without law on the 
 
OPINIONS IN ELECTORAL COMMISSION. 173 
 
 subject. The Constitution, it is true, is silent; but 
 Congress, by the act of 1792, directed that " it shall 
 be the duty of the executive of each State to cause 
 three lists of the names of the electors of such State 
 to be made and certified and to be delivered to the 
 electors on or before the day on which they are 
 required to meet "; and one of these certificates is 
 directed to be annexed to each of the certificates of the 
 votes given by the electors. And if it should be con- 
 tended that this enactment of Congress is not binding 
 upon the State executive, the laws of Florida, in the 
 case before us, impose upon the Governor of that 
 State the same duty. I think, therefore, that it can- 
 not be denied that the certificate of the Governor is the 
 proper and regular credential of the appointment and 
 official character of the electors. Certainly it is at 
 least prima facie evidence of a very high character. 
 
 But the Houses of Congress may undoubtedly 
 inquire whether the supposed certificate of the execu- 
 tive is genuine ; and I think they may also inquire 
 w^hether it is plainly false, or whether it contains a 
 clear mistake of fact, inasmuch as it is not itself the 
 appointment, nor the ascertainment thereof, but only 
 the certificate of the fact of appointment. Whilst it 
 must be held as a document of high nature, not to be 
 lightly questioned, it seems to me that a State ought 
 not to be deprived of its vote by a clear mistake of 
 fact inadvertently contained in the Governor's certifi- 
 cate, or (if such a case may be supposed) by a willfully 
 false statement. It has not the fall sanctity which 
 belongs to a court of record, or which, in my judgment, 
 belongs to the proceedings and recorded acts of the 
 final board of canvassers. 
 
174 MISCELLANEOUS WRITINGS. 
 
 In this case, it is not claimed that the certificate of 
 the Governor contains any mistake of fact, or that it 
 is willfully false and fraudulent. It truly represents 
 the result of the State canvass, and if erroneous at all, 
 it is erroneous because the proceedings of the canvass- 
 ing board were erroneous or based on erroneous prin- 
 ciples and findings. 
 
 It seems to me that the two Houses of Congress, 
 in proceeding with the count, are bound to recognize 
 the determination of the State Board of Canvassers 
 as the act of the State, and as the most authentic 
 evidence of the appointment made by the State ; and 
 that whilst they may go behind the Governor's certifi- 
 cate, if necessary, they can only do so for the purpose 
 of ascertaining whether he has truly certified the results 
 to which the board arrived. They cannot sit as a 
 court of appeals on the action of that board. 
 
 The law^ of Florida declares as follows : 
 
 On the thirty-fifth day after the holding of any general or special 
 election for any State officer, member of the legislature, or Repre- 
 sentative'in Congress, or sooner, if the returns shall have been received 
 from the several counties wherein elections shall have been held, the 
 Secretary of State, Attorney-General and the Comptroller of Public 
 Accounts, or any two of them, together with any other member of the 
 Cabinet who may be designated by them, shall meet at the office of 
 the Secretary of State, pursuant to notice to be given by the Secretary 
 of State, and form a Board of State Canvassers, and proceed to can- 
 vass the returns of said election and determine and declare who shall 
 have been elected to any such office or as such member, as shown by 
 such returns. 
 
 The Governor's certificate is prima facie evidence 
 that the State canvassers performed their duty. 
 Indeed, it is conceded by the objectors that they made 
 a canvass and certified or declared the same. It is 
 not the failure of the board to act, or to certify and 
 
OPINIONS IN ELECTORAL COMMISSION. 175 
 
 declare the result of their action, but an illegal can- 
 vass, of which they complain. To review that can- 
 vass, in my judgment, the Houses of Congress have 
 no jurisdiction or power. 
 
 The question then arises, whether the subsequent 
 action of the courts or legislature of Florida can 
 change the result arrived at and declared by the Board 
 of State Canvassers, and consummated by the vote of 
 the electors, and the complete execution of their func- 
 tions ? 
 
 If the action of the State Board of Canvassers 
 were a mere statement of a fact, like the certificate of 
 the Governor, and did not involve the exercise of 
 decision and judgment, perhaps it might be contro- 
 verted by evidence of an equally high character. Like 
 the return to a habeas corpus, which could not in for- 
 mer times be contradicted by parol proof, but might 
 be contradicted by a verdict or judgment in an action 
 for a false return. 
 
 Looking at the subject in this point of view, I w^as, 
 at one time, inclined to think that the proceedings on 
 quo warranto in the Circuit Court of Florida, if still 
 in force and effect, might be sufficient to contradict the 
 finding and determination of the board of canvassers — 
 supposing that the court had jurisdiction of the case. 
 But the action of the board involved more than a mere 
 statement of fact. It was a determination, a decision 
 quasi judicial. The powers of the board as defined 
 by the statute which created it are expressed in the 
 following terms : " They shall proceed to canvass the 
 returns of said election and determine and declare who 
 shall have been elected to any office"; and " if any such 
 returns shall be shown or shall appear to be so irregu- 
 
176 MISCELLANEOUS WRITINGS. 
 
 lar, false, or fraudulent that the board shall be unable 
 to determine the true vote for any such officer or mem- 
 ber, they shall so certify, and shall not include such 
 return in their determination and declaration." This 
 clearly requires quasi judicial action. To controvert 
 the finding of the board, therefore, would not be to 
 correct a mere statement of fact, but to reverse the 
 decision and determination of a tribunal. The judg- 
 ment on the quo warranto was an attempted reversal 
 of this decision, and the rendering of another decision. 
 If the court had had jurisdiction of-the subject-matter, 
 and had rendered its decision before the votes of the 
 electors were cast, its judgment, instead of that of the 
 returning board, w^ould have been the final declaration 
 of the result of the election. But its decision being 
 rendered after the votes w^ere given, it cannot have 
 the operation to change or affect the vote, w^hatever 
 effect it might have in a future judicial proceeding in 
 relation to the Presidential election. The official acts 
 of officers de facto until they are ousted by judicial 
 process or otherwise are valid and binding. 
 
 But it is a grave question vrhether any courts can 
 thus interfere with the course of the election for Presi- 
 dent and Vice-President. The remarks of Mr. Justice 
 Miller on this subject are of great force and weight. 
 
 The State may, undoubtedly, provide by law for 
 reviewing the action of the board of canvassers, at 
 a!ny time before the electors have executed their func- 
 tions. It may provide any safeguard it pleases to 
 prevent or counteract fraud, mistake, or illegality on 
 the part of the canvassers. The legislature may pass 
 a law requiring the attendance of the Supreme Court, 
 or any other tribunal, to supervise the action of the 
 
OPINIONS IN ELEdTORAL COMMISSION. 177 
 
 board, and to reverse it if wrong. But no such pro- 
 vision being made, the final action of the board must 
 be accepted as the action of the State. No tampering 
 with the result can be admitted after the day fixed by 
 Congress for casting the electoral votes, and after it 
 has become manifest where the pinch of the contest for 
 the Presidency lies, and how it may be manipulated. 
 
 I am entirely clear that the judicial proceedings in 
 this case were destitute of validity to affect the votes 
 given by the electors. Declared by the board of can- 
 vassers to have been elected, they were entitled, by 
 virtue of that declaration, to act as such against all 
 the w^orld until ousted of their office. They proceeded 
 to perform the entire ftmctions of that office. They 
 deposited their votes in a regular manner, and on the 
 proper and only day designated for that purpose, and 
 their act could not be annulled by the subsequent pro- 
 ceedings on the quo warranto, how^ever valid these 
 might be for other purposes. When their votes were 
 given, they w^ere the legally constituted electors for 
 the State of Florida. 
 
 The Supreme Court of Florida said, in the Drew 
 case, it is true, that the board of canvassers exceeded 
 their jurisdiction, and that their acts w^ere absolutely 
 void. In this assertion I do not concur ; and it was 
 not necessary to the judgment, w^hich merely set aside 
 the finding of the board and directed a new canvass. 
 Under the Florida statute the board had power to 
 cast out returns. They did so. The court thought 
 they ought to have cast out on a different principle 
 from that which they adopted. This was at most 
 error, not w^ant or excess of jurisdiction. They cer- 
 tainly acted within the scope of their power, though 
 
178 MISCELLANEOUS WHITINGS. 
 
 they may have acted erroneously. This is the most 
 that can be said in any event ; and of this the Houses 
 of Congress cannot sit in judgment as a court of 
 appeal. 
 
 The question is asked, whether for no cause what- 
 ever the declaration and certificate of the board of 
 canvassers can be disregarded — as, if they should certify 
 an election when no election had been held, and other 
 extreme cases of that sort ? I do not say that a clear 
 and evident mistake of fact inadvertently made, and 
 admitted to have been ma.de, by the canvassers them- 
 selves, or that such a gross fraud and violation of duty 
 as that supposed, might not be corrected, or that it 
 might not affect the validity of the vote. On that 
 subject, as it is not necessary in this case, I express no 
 opinion. Such extreme cases, w^hen they occur, gener- 
 ally suggest some special rule for themselves without 
 unsettling those general rules and principles which are 
 the only safe guides in ordinary cases. The difficulty 
 is, that the two Houses are not made the judges of 
 the election and return of Presidential electors. 
 
 I think no importance is to be attached to the acts 
 performed by the board of canvassers after the sixth 
 day of December ; nor to the acts of the Florida legis- 
 lature in reference to the canvass. In my judgment 
 they are all unconstitutional and void. To allow^ a 
 State legislature in any way to change the appoint- 
 ment of electors after they have been elected and 
 given their votes, would be extremely dangerous. It 
 would, in effect, make the legislature for the time being 
 the electors, and would subvert the design of the Con- 
 stitution in requiring all the electoral votes to be 
 given on the same da}-. 
 
OPINIONS IN ELECTORAL COMMISSION. 179 
 
 My conclusion is that the validity of the first cer- 
 tificate cannot be controverted by evidence of the 
 proceedings had in the courts of Florida, by quo war- 
 ranto ; and that said evidence should not be received. 
 
 It is farther objected that Humphreys, one of the 
 Hayes electors, held an office of trust and profit under 
 the Government of the United States at the time of 
 the general election, and at the time of giving his 
 vote. I think the evidence of this fact should be 
 admitted. Such an office is a Constitutional disquali- 
 fication. I do not think it requires legislation to 
 make it binding. What may be the effect of the evi- 
 dence when produced, I am not prepared to say. I 
 should like to hear further argument on the subject 
 before deciding the question. 
 
 [It being shown that Humphreys resigned his ofiice 
 before the election, the question of inehgibility became 
 unimportant. Justice Bradley held, however, that the 
 Constitutional prohibition, that no member of Con- 
 gress, or officer of the Government, should be appointed 
 an elector is only a form of declaring a disqualification 
 for the electoral office, and does not have the efiect of 
 annulling the vote given by one who, though disquali- 
 fied, is regularly elected, and acts as an elector ; likening 
 it to the case of other officers de facto.] 
 
180 MISCELLANEOUS WRITINGS. 
 
 II.— THE LOUISIANA CASE. 
 
 The objections to the votes of the electors certified 
 by Kellogg, as Governor of Louisiana, being condensed, 
 are in substance as follows : 
 
 First. — That the government of Louisiana is not 
 republican in form. 
 
 Second. — That Kellogg was not Governor. 
 
 Third. — That at the time of the election, in Novem- 
 ber last, there was no law of the State directing the 
 appointment of electors. 
 
 Fourth. — That so much of the election law w^hich 
 was in force as relates to the returning board was 
 unconstitutional and void. 
 
 Fifth. — That the board was not constituted 
 according to the law ; having only four members of one 
 political party, when there should have been five 
 members of different political parties. 
 
 Sixthly. — That they acted fraudulently and without 
 jurisdiction in casting out and rejecting the returns or 
 statements of various commissioners of election, with- 
 out having before them any statement or affidavit of 
 violence or intimidation as required by law to give 
 them jurisdiction to reject returns ; that they neglected 
 to canvass the returns of the commissioners and can- 
 vassed those of the supervisors of registration — that 
 is, the parish abstracts instead of the precinct returns ; 
 that they did not canvass all of these (which would 
 have elected the Tilden electors), but falsely and fraud- 
 ulently counted in the Hayes electors, knowing the 
 count to be false ; and that they offered to give the 
 votes the other w^ay for a bribe ; and that the certifi- 
 cate given by Kellogg to the Hayes electors was the 
 result of a conspiracy between Kellogg and the return- 
 
OPINIONS IN ELECTORAL COMMISSION. 181 
 
 ing board and others to defraud their opponents of 
 their election and the State of her right to vote ; and 
 that the Hayes electors were not elected, but their 
 opponents were. 
 
 Seventhly.— That two of the electors certified by 
 Kellogg were ineligible at the time of the election by 
 holding office under the Government of the United 
 States ; and that others were ineligible by holding 
 State offices ; and that Kellogg could not legally certify 
 himself as an elector. 
 
 February 16, 1877. 
 Justice Bradley:— 
 
 The first two objections, that the State is without a 
 republican form of government, and that Kellogg was 
 not Governor, are not seriously insisted upon. 
 
 The question whether the State had any law 
 directing the appointment of electors of President and 
 Vice-President, and regulating their proceedings, 
 depends on w^hether the Presidential electoral law of 
 1868 w^as or was not repealed by the general election 
 law of 1872, which is admitted to have been in force 
 at the time of the last election. 
 
 The repealing clause relied on is in the last section 
 of the act, and is in these words : " That this act shall 
 take effect from and after its passage, cuid that all 
 others on the subject of election laws be and the same 
 are hereby repealed." The question is, whether the 
 act relating to Presidential electors is an act " on the 
 subject of election laws^' within the meaning of this 
 repealing clause. I am entirely satisfied that it is not, 
 and that no part of it is repealed by the act of 1872, 
 except one section w^hich relates to the mode of 
 returning and ascertaining the votes for electors. My 
 reasons are these : 
 
182 MISCELLANEOUS WRITINGS. 
 
 In the session of 1868, an act was passed, 
 approved October 19, 1868, which professed to be a 
 general election law, regulating the mode of holding 
 and ascertaining the result of all elections in the State, 
 making provision for preserving order thereat, and for 
 executing generally the one hundred and third article 
 of the Constitution, which declares that " the privilege 
 of free suffrage shall be supported by laws regulating 
 elections and prohibiting under adequate penalties all 
 undue influence thereon from power, bribery, tumult, 
 or other improper practice." A distinct act was 
 passed at the same session, approved October 30, 1868, 
 w^hich is the act relating to Presidential electors, before 
 referred to. It certainly was not supposed that one 
 of these acts conflicted with the other. The one regu- 
 lated the manner of holding and ascertaining the 
 results of elections generally ; the other prescribed the 
 mode of appointing the Presidential electors to which 
 the State was entitled, namely, that they should be 
 elected on the day fixed by Congress, two for the State 
 at large, and one in each Congressional district ; pre- 
 scribed their qualifications, and the time and place of 
 their meeting to perform their duties ; authorized 
 them w^hen met to fill any vacancies caused by the 
 failure of any members to attend ; and regulated their 
 pay. One section, it is true, directed the manner in 
 which the returns should be canvassed, namely, by 
 the Governor in presence of the Secr'etary of State, 
 the Attorney General, and a district judge ; and the 
 first section directed that the election for electors 
 should be held on the day appointed by the act of 
 Congress, and that it should be held and conducted in 
 the manner and form proA'ided by law for general 
 State elections. 
 
OPINIONS IN ELECTORAL COMMISSION. 183 
 
 At the same session (1868) provision was made 
 for revising all the general statutes of the State tmder 
 the direction of a committee appointed for that pur- 
 pose. This committee appointed Mr. John Ray to 
 make the revision. It was duly reported, and adopted 
 during the session of 1870. It contained, under the 
 title of " Elections," the act of October 19, 1868 ; 
 and under the title " Presidential Electors," the act of 
 October 30, 1868 ; showing conclusively that at that 
 time the tw^o acts w^ere not deemed incompatible with 
 each other. 
 
 A new^ election law was passed at the same session 
 as a substitute for that of October 19, 1868, repeal- 
 ing all conflicting laws ; but it was not inserted in the 
 revised statutes, because they did not contain any of 
 the laws of that session. A law^ was passed, however, 
 authorizing the reviser (Mr. Ray) to publish a new 
 edition, under the name of a Digest, which should 
 embrace the acts of 1870. This was done, and the 
 new^ election law was inserted under the title, " Elec- 
 tions," in place of the old law. The act relating to 
 Presidential electors was untouched, except to insert 
 in it the new^ method of making the returns of the 
 elections by the returning board, which was the only 
 part of the new^ law^ which conflicted with it. It is 
 apparent, therefore, that the election law of 1870 was 
 not deemed repugnant to the law relating to " Presi- 
 dential Electors," except in the one particular men- 
 tioned. 
 
 Now, the act of 1872, which it is alleged does 
 repeal the law relating to Presidential electors, is sim- 
 ply a substitute for the general election law of 1870, 
 going over and occupying exactly the same ground, 
 
184 MISCELLANEOUS WRITINGS. 
 
 and no more, and making very slight alterations. 
 The principle of these is the reconstruction of the 
 returning board. With this exception it does not in 
 the least conflict, any more than did the act of 1870, 
 with the provisions of the law relating to " Presidential 
 electors." And as the repealing clause therein (before 
 referred to) is expressly confined to " acts on the sub- 
 ject of election laws," it seems to me most manifest 
 that the intent was to repeal the election law^ only, 
 and not that relating to " Presidential electors." This 
 view is corroborated by the sixty-ninth section, which 
 has this expression : " The violation of any provision 
 of the act, or section of the act, repealed by this act, 
 shall not be considered," etc. Repealing clauses should 
 not be extended so as to repeal law^s not in conflict 
 with the new law, unless absolutely necessary to give 
 effect to the w^ords. And when we consider the con- 
 sequences w^hich a repeal of the law^ relating to Presi- 
 dential electors w^ould have, in depriving the State of 
 its power to have vacancies in its electoral college 
 filled, in introducing confusion and uncertainty as to 
 the districts they should be chosen from, and by leav- 
 ing no directions as to the time and place of their 
 meeting, it seems clear that it could never have been 
 in the mind of the legislature to repeal that law^. 
 
 There is a section in the act of 1872 relating to 
 vacancies w^hich it has been suggested is repugnant to 
 the authority of the electoral college to fill vacancies 
 in that body. It is section 24, which enacts, " that 
 all elections to be held in this State to fill any vacan- 
 cies shall be conducted and managed and returns 
 thereof shall be made, in the same manner as is pro- 
 vided for general elections." But this is explained by 
 
OPINIONS IN ELECTORAL COMMISSION. 185 
 
 the fact that both the Constitution and the election 
 law itself direct vacancies in certain offices named 
 (including that of members of the legislature) to be 
 filled by a new election. The twenty-fourth section 
 means only, that where elections are to be held to fill 
 vacancies, they shall be held in the usual manner. It 
 cannot mean that all vacancies shall be filled by another 
 election ; because the Constitution expressly gives to 
 the Governor the power to fill vacancies in certain 
 cases. 
 
 I am clearly of opinion, therefore, that the law 
 relating to Presidential electors has not been repealed, 
 except as to the mode of canvassing the returns ; and 
 that that is to be performed by the returning board 
 created by the act of 1872, in lieu of the Lynch 
 returning board created by the act of 1870, and in 
 Heu of the method originally prescribed in the law 
 relating to Presidential electors. 
 
 This disposes of the objection that the electoral 
 college had no power to fill vacancies in its own body, 
 since the electoral law has a section which expressly 
 authorizes the college to fill any vacancy that may 
 occur by the non-attendance of any of the electors 
 by four o'clock in the afternoon of the day for giving 
 their votes. 
 
 But it is insisted that that part of the election 
 law of 1872 w^hich re-establishes the returning board, 
 and gives it its powers, is unconstitutional. The act 
 declares " that five persons, to be elected by the Senate 
 from all political parties, shall be the returning officers 
 for all elections. In case of any vacancy by death, 
 resignation or otherwise, by either of the board, then 
 the vacancy shall be filled by the residue of the board 
 of returning officers. " 
 
186 MISCELLANEOUS WRITINGS. 
 
 The powers and duties of the board are, to meet in 
 New Orleans within ten days after the election, canvass 
 and compile the statement of votes made by the com- 
 missioners of election, and make returns of the election 
 to the Secretary of State, and publish a copy in the 
 public journals, declaring the names of all persons and 
 officers voted for, the number of votes for each person, 
 and the names of the persons who have been duly and 
 lawfully elected. It is declared that the returns thus 
 made and promulgated shall be prima facie evidence 
 in all courts of justice and before all civil officers, until 
 set aside after contest according to law^, of the right 
 of any person declared elected. On receiving notice 
 from any supervisor of election supported by affidavits, 
 and being convinced by examination and testimony, 
 that by reason of riot, tumult, acts of violence, intim- 
 idation, armed disturbance, bribery, or corrupt influ- 
 ences, the purity and freedom of election at an)"^ voting 
 place were materially interfered with, or a sufficient 
 number of qualified voters to change the result w^ere 
 prevented from registering and voting, it is made the 
 duty of the board to exclude from their returns the 
 votes given at such voting place. 
 
 Why this law is unconstitutional, I cannot perceive. 
 The powers given may be abused, it is true ; but that 
 is the case with all powers. The constitutionality of 
 the board has been considered by the Supreme Court 
 of Louisiana, and has been fully sustained. It is said 
 that the term of office is indefinite, and might continue 
 for life. But w^here no period is fixed for the tenureof 
 an office, it is held at the will of the appointing power, 
 which may, at any time, make a new appointment. 
 So that no evil consequences can ensue from this cause. 
 
OPINIONS IN ELECTORAL COMMISSION. 187 
 
 If the members of the board were appointed for a term, 
 the Senate could re-appoint them. Allowing them to 
 remain, w^hen power exists to remove them at will, is 
 substantially the same thing. 
 
 The objection that there were only four members 
 constituting the board at the canvass in December last 
 is met by the general rule of the law in regard to 
 public bodies, that the happening of a vacancy does 
 not destroy the body if a quorum still remains. The 
 Supreme Court consists of nine Justices ; but the 
 court may be legally held though there are three 
 vacancies, only six being required for a quorum. A 
 vacancy in a branch of the legislature, in the board of 
 supervisors of a county, in the commissioners or select- 
 men of a town, in the trustees of a school district, 
 does not destroy the body, nor vitiate its action, unless 
 there be an express law to make it do so. 
 
 But it is said that the power given to the board 
 to fill vacancies in its own body is mandatory. It is 
 in exactly the same terms as those contained in the 
 election law of 1870 on the same subject. In several 
 cases, arising under that act, the Supreme Court of 
 Louisiana decided that this language was not com- 
 pulsory, or, at least did not aifect the legal constitu- 
 tion of the board if not complied with ; but that the 
 board w^as a legal board, though only four members 
 remained in it. Had the board never been filled at all 
 it might be urged with more plausibility that it was 
 never legally constituted. If a court be created to 
 consist of five judges, although, if once legally organ- 
 ized, a single judge might hold the court in the absence 
 of the others; yet if only one judge were ever 
 appointed it might very properly be said that no legal 
 
188 MISCELLANEOUS WRITINGS. 
 
 organization had ever taken place. In this case the 
 vacancy in the board occurred after it had been duly- 
 constituted by the appointment of the full number of 
 members. Afterwards the vacancy occurred. And if 
 it be the correct view, as was decided by the Supreme 
 Court of Louisiana in regard to the Lynch board, 
 that the power given to the remaining members to fill 
 the vacancy is not mandatory, a neglect on their part 
 to fill it does not, it seems to me, destroy the existence 
 of the board, oi deprive it of power to act. If it be 
 true, as alleged, that members of only one political 
 party remained on it, it may have been an impropriety 
 in proceeding without filling the vacancy, and the 
 motives of the members may have been bad motives, 
 corrupt, fraudulent, what not ; but with improprieties 
 and with the motives of the members we have noth- 
 ing to do. We are not the judges of their motives. 
 The question with virhich we have to do is a question 
 of power, of legal authority in four members to act. 
 And of this I have no doubt. The board was directed 
 " to be elected by the Senate from all political parties," 
 it is true. It does not appear that this was not done. 
 Can it be contended that the resignation or death 
 of one of the members, who happened to be alone in 
 his party connections, deprives the remainder of the 
 power to act ? I think not. If the four members 
 remaining were all of different politics, the objection 
 would lose all its force. So that it is resolved to this ; 
 that the pow^er to fill a vacancy is mandatory w^hen 
 any political party ceases to be represented by the 
 death or resignation of a member ; and is not manda- 
 tory in any other case. Suppose, instead of dying or 
 resigning, the member changes his party affiliations ; 
 
OPINIONS IN ELECTORAL COMMISSION. 189 
 
 is there a vacancy then ? Can the other members 
 oust him, or can he oust them ? The Senate, with 
 whom resides the power of appointing a new board 
 whenever it sees fit, might be in duty bound to act ; 
 but the same cannot be said of the board itself. If 
 this were not Louisiana, but some State in which no 
 charges of fraud and disorder were made, the objec- 
 tion would hardly be thought of as having any legal 
 validity. 
 
 The next question relates to the alleged illegality 
 and fraud in the proceedings of the returning board. 
 Can the two Houses of Congress go behind their 
 returns and certificate and examine into their conduct ? 
 I have already discussed this subject to some extent in 
 the Florida case. I shall now only state briefly the 
 conclusions to which I have come in this case. 
 
 First. I consider the Governor's certificate of the 
 result of the canvass as prima facie evidence of the 
 fact ; but subject to examination and contradiction. 
 This point has already been considered in the Florida 
 case. 
 
 Secondly. The finding and return of the State 
 canvassers of the election are, in their nature, of 
 greater force and effect than the Governor's certificate, 
 being that on which his certificate is foimded, and 
 being the final result of the political machinery estab- 
 lished by the State to ascertain and determine the very 
 fact in question. " Each State shall appoint," is the 
 language of the Constitution. Of course the two 
 Houses must be satisfied that the State has appointed, 
 and that the votes presented were given by its 
 appointees. The primary proof of this, as prescribed 
 by the laws of the United States, is the certificate of 
 the Governor. But, as before stated, I do not deem 
 
190 MISCELLANEOUS WRITINGS. 
 
 that conclusive. It may be shown to be false or 
 erroneous in fact, or based upon the canvass and 
 return of a board or tribunal that had no authority 
 to act. This was conceded in the proceeding which 
 took place with regard to the votes of Louisiana in 
 1873. 
 
 Was the returning board of Louisiana a tribunal, 
 or body, constituted by the laws of the State, with 
 pow^er to ascertain and declare the result of the elec- 
 tion, and did that board, in the exercise of the juris- 
 diction conferred upon it, ascertain and declare that 
 result ? This, it seems to me, is the point to be 
 ascertained. 
 
 This involves an examination of the law^s of the 
 State to ascertain what that tribunal is and what 
 general powers it is invested with, not for the purpose 
 of seeing w^hether all the proceedings of the board, or 
 of the election officers whose action preceded theirs, 
 were in strict compliance with the law, but for the 
 purpose of seeing whether the result comes from the 
 authorities provided by the State, acting substantially 
 within the scope of their appointment. This is neces- 
 sary to be done in order to see whether (-whatever 
 irregularities may have occurred) it w^as the State which 
 made the appointment, or some usurping body not 
 authorized by the State at all. 
 
 The examination to be made is somewhat analo- 
 gous to that made into the jurisdiction of a court 
 when its judgment is collaterally assailed. If the 
 board declared the result of the election, and, in so 
 doing acted within the general scope of its powers, it 
 seems to me that the inquiry should there end. The 
 Constitutional power of the two Houses of Congress 
 does not go further. 
 
OPINIONS IN ELECTORAL COMMISSION. 191 
 
 On the question of jurisdiction, I think it compe- 
 tent for the Houses to take notice of the fact (if such 
 was the fact) that the returning board had no returns 
 before it at all, and, in effect (to speak as -nre do of 
 judicial proceedings), without having a case before it to 
 act on ; or of the fact (if such was the fact) that the 
 board which pretended to act was not a legal board. 
 This view was taken by both Houses, if I understand 
 their action aright, in the count of 1873 in rejecting 
 the electoral votes from Louisiana on that occasion. 
 (Document on Electoral Cotmts, 407). Anything 
 w^hich shows a clear want of jurisdiction in the return- 
 ing board divests its acts of authority, and makes it 
 cease to be the representative of the will of the State. 
 But it must appear that there was a clear and most 
 manifest w^ant of authority ; for, otherwise the State 
 might be deprived of its franchise by mere inadvert- 
 ence of its agents, or an honest mistake made by 
 them as to the law. 
 
 In the case before us the board had ample powers, 
 as w^e have seen. These powers have frequently been 
 sustained by the Supreme Court of the State. The 
 law of Louisiana not only gives the board power to 
 canvass the returns, but to reject returns whenever in 
 their opinion, upon due examination had, they are 
 satisfied that the vote was affected by violence and 
 intimidation. They did no more in this case, suppos- 
 ing them to have done all that is alleged. It is said, 
 that they proceeded without jurisdiction, because they 
 did not canvass the statements of the commissioners 
 of election, but only the abstracts of the parish super- 
 visors of registration. It is not denied that they had 
 both and all of these statements before them. If they 
 
192 MISCELLANEOUS WRITINGS. 
 
 acted wrongfully in relying on the abstracts and not 
 examining the original statements, it may have been 
 misconduct on their part, but it cannot be said that 
 they were acting beyond the scope of their jurisdiction. 
 If, in a single case, and without coming to an erron- 
 eous result, they took the abstracts instead of the 
 original returns, it would be just as fatal as a matter 
 of jurisdiction (and no more so), as if they relied on 
 the abstracts in all cases. It would only be error or 
 misconduct, and not want of jurisdiction. And the 
 Houses of Congress, as before said, are not a court of 
 errors and appeals, for the purpose of examining regu- 
 larity of proceedings. 
 
 It is also said, that they acted without jurisdiction 
 in rejecting returns without having before them certifi- 
 cates of violence or intimidation. It is admitted that 
 they took a large quantity of evidence themselves on 
 the subject ; but it is contended that they had no 
 jurisdiction to enter upon the inquiry without a 
 supervisor's certificate first had. Is this certain ? 
 The one hundred and third article of the Constitution 
 made it the duty of the legislature to pass laws regu- 
 lating elections, to support the privilege of fi-ee suffrage, 
 and to prohibit undue influence thereon firom power, 
 bribery, tumults, or other improper influences. The 
 election law w^as passed to carry out this article. As 
 one means of carrying it out in spirit, the returning 
 board were prohibited from counting a return if it 
 was accompanied by a certificate of violence, until 
 they had investigated the matter by examination and 
 proof. Receiving such a certificate they could not 
 count a return if they wanted to. Now, is it certain, 
 that under such a law, if the board had knowledge 
 
OPINIONS IN ELECTORAL COMMISSION. 193 
 
 from other sources than a certificate, that violence and 
 intimidation had been exercised and had produced the 
 result, they could not inquire into it ? And more, is 
 their -whole canvass to be set aside because they made 
 an investigation under such circumstances ? There is 
 no other tribunal in Louisiana for making it. The 
 Supreme Court has decided that the courts cannot go 
 behind these returns. In my judgment we have no more 
 authority to reject their canvass for this cause than 
 for that of not using the original statements. It is as 
 if a court having jurisdiction of a cause, used a piece 
 of evidence on the trial -which it had no jurisdiction 
 to take. It -would be mere irregularity at most, and 
 -would not render its judgment void in any collateral 
 proceeding. 
 
 I cannot bring my mind to believe that fraud and 
 misconduct on the part of the State authorities, con- 
 stituted for the very purpose of declaring the final 
 -will of the State, is a subject over -which the t-wo 
 Houses of Congress have jurisdiction to institute an 
 examination. The question is not -whether frauds 
 ought to be tolerated, or -whether they ought not to 
 be circumvented ; but -whether the Houses of Congress, 
 in exercising their po-wer of counting the electoral votes, 
 are entrusted by the Constitution -with authority to 
 investigate them. If in any case it should clearly and 
 manifestly appear, in an unmistakable manner, that 
 a direct fraud had been committed by a returning 
 board in returning the electors they did, and if it did 
 not require an investigation on the part of the t-wo 
 Houses to ascertain by the taking of evidence the 
 truth of the case, I have no doubt that the Houses 
 might rightfully reject the vote — as not being the vote 
 
194 MISCELLANEOUS WRITINGS. 
 
 of the State, But where no such manifest fraud 
 appears, and fraud is only charged, how^ are the two 
 Houses to enter upon a career of investigation ? If 
 the field of inquiry were once opened, where is its 
 boundary ? Evidently no such proceeding was in the 
 minds of the framers of the Constitution. The short 
 and explicit directions there given, that the votes 
 should first be produced before the Houses when met 
 for that purpose, and that "the votes shall then be 
 counted," is at variance with any such idea. An 
 investigation beforehand is not authorized and was 
 not contemplated, and w^ould be repugnant to the 
 limited and special power given. What jurisdiction 
 have the Houses on the subject until they have met 
 under the Constitution, except to provide by law for 
 facilitating the performance of their duties ? An inves- 
 tigation afterwards, such as the question raised might 
 and frequently would lead to, would be utterly incom- 
 patible with the performance of the duty imposed. 
 
 At all events, on one or two points I am perfectly 
 clear. First, that the two Houses do not constitute 
 a canvassing board for the purpose of investigating 
 and deciding on the results of the election for electors 
 in a State. The proposed act of 1800 carefully 
 excluded any inquiry into the number of votes on 
 which any elector was elected ; and I think it cannot 
 well be pretended that the Houses have power to go 
 further into the inquiry than was proposed by that 
 bill. Secondly, that the two Houses are not a tribunal, 
 or court for trying the validity of the election returns 
 and sitting in judgment on the legality of the proceed- 
 ings in the course of the election. The two Houses, 
 with only their Constitutional jurisdiction, are neither 
 
OPINIONS IN ELECTORAL COMMISSION. 195 
 
 of these things ; though as to the election, qualifica- 
 tions, and returns of their own members, they are 
 certainly the latter, having the right to judge and 
 decide. 
 
 I have thus far spoken of the power of the two 
 Houses of Congress as derived from the Constitution. 
 "Whether the legislative power of the Government 
 might not, by law, make provision for an investigation 
 into frauds and illegalities, I do not undertake to 
 decide. It cannot be done, in my judgment, by any 
 agency of the Federal Government without legislative 
 regulation. The necessity of an orderly mode of tak- 
 ing evidence and giving opportunity to cross-examine 
 witnesses, would require the interposition of law. 
 The ordinary power of the two Houses as legislative 
 bodies, by w^hich they investigate facts through the 
 agency of committees, is illy adapted to such an 
 inquiry. 
 
 It seems to me, how^ever, the better conclusion, 
 that the jurisdiction of the whole matter belongs 
 exclusively to the States. Let them take care to pro- 
 protect themselves from the perpetration of frauds. 
 They need no guardians. They are able, and better 
 able than Congress, to create every kind of political 
 machinery which human prudence can contrive, for 
 circumventing fraud, and preserving their true voice 
 and vote in the Presidential election. 
 
 In my judgment, the evidence proposed cannot be 
 received. 
 
 Then, as to the alleged ineligibility of the candidates. 
 First, their alleged ineligibility under the laws of the 
 State, I think we have nothing to do vnth. It has 
 been imposed for local reasons of State policy, but if 
 
196 MISCEI^LANEOUS WRITINGS. 
 
 the State sees fit to waive its own regulations on this 
 subject it is her own concern. If the State declares that 
 no person shall hold two offices, or that all oiEcers 
 shall possess an estate of the value of a thousand dol- 
 lars, or imposes any other qualification, or disqualifica- 
 tion, it is for the State to execute its own laws in this 
 behalf At all events, if persons are appointed electors 
 without having the qualifications, or having the dis- 
 qualifications, and they execute the function of casting 
 their votes, their acts cannot be revised here. 
 
 Tw^o of the electors, however, Levisee and Brew^ster, 
 are alleged to have held offices of trust and profit 
 under the United States, when the election was held 
 on the 7th of November. It is not alleged that they 
 did so on the 6th of December, when they gave their 
 votes. Being absent when the electoral college met, 
 their places were declared vacant, and the college itself 
 proceeded to re-appoint them under the law, and sent 
 for them. They then appeared and took their seats. So 
 that, in point of fact, the objection does not meet the 
 case, unless their being federal office-holders at the 
 time of the election affects it. 
 
 Though not necessary to the decision of this case, 
 I have re-examined the question of Constitutional 
 ineligibility since the Florida case w^as disposed of, 
 and must say that I am not entirely satisfied with the 
 conclusion to which I then came, namely, that if a dis- 
 qualified elector casts his vote when disqualified, the 
 objection cannot be taken. I still think that this dis- 
 qualification at the time of his election is not material, 
 if such disqualification ceases before he acts as an 
 elector. But, as at present advised, I am inclined to 
 the opinion that if constitutionally disqualified when he 
 casts his vote, such vote ought not to be counted. 
 
OPINIONS IN ELECTORAL COMMISSION. 197 
 
 I still think, as I thought in discussing the Florida 
 case, that the form of the Constitutional prohibition 
 is not material ; that it is all one, whether the prohibi- 
 tion is that a federal officer shall not be an elector, or, 
 that he shall not be appointed an elector. The spirit 
 and object of the prohibition is, to make office-holding 
 under the Federal Government a disqualification. 
 That is all. And this is the more apparent when we 
 recollect the reasons for it. When the Constitution 
 was framed, the great object in creating the office of 
 electors to elect the President and Vice-President, was 
 to remove this great duty as far as possible from the 
 influence of popular passion and prejudice, and to 
 place it in the hands of men of wisdom and discretion, 
 having a knowledge of public affairs and public men. 
 The idea was that they were to act with freedom and 
 independence. The jealousy which w^as manifested in 
 the convention, against the apprehended influence and 
 pow^er of the general Government, and especially of 
 the legislative branch, induced the prohibition in ques- 
 tion. It was feared that the members of the Houses 
 of Congress and persons holding office under the Gov- 
 ernment would be peculiarly subject to these influences 
 in exercising the power of voting for Chief Magistrate. 
 It was not in the process of appointment that this influ- 
 ence was dreaded ; but in the effect that it would have 
 on the elector himself in giving his vote. 
 
 It seems to me, therefore, that if a person appointed 
 an elector has no official connection with the Federal 
 Government when he gives his vote, such vote cannot 
 be justly excepted to. And that substantial effect is 
 given to the Constitutional disqualification if the 
 electoral vote given by such officer is rejected. And 
 my present impression is that it should be rejected. 
 
198 MISCELLANEOUS WRITINGS. 
 
 Circumstances, it is true, have greatly changed 
 since the Constitution was adopted. Instead of elect- 
 ors being, as it was supposed they would be, invested 
 with power to act on the dictates of their own judg- 
 ment and discretion in choosing a President, they have 
 come to be mere puppets, elected to express the pre- 
 ordained will of the political party that elects them. 
 The matter of ineligibility has come to be really a 
 matter of no importance, except as it still stands in 
 the Constitution,, and is to be interpreted as it was 
 understood when the Constitution was adopted. 
 Hence, w^e must ascertain, if we can, -what was its 
 original design and meaning, without attempting to 
 stretch or enlarge its force. 
 
 [It may be proper that I shotdd here add, that I con- 
 cede that there is great force in what is urged by other 
 members of the Commission, respecting the diffictdty 
 which still remains, of the two Houses, when assem- 
 bled to count the votes, undertaking an investigation 
 of facts to determine a question of ineUgibility, which 
 might be extended in such a manner as materially to 
 interfere with the main duty for which they assemble. 
 This was probably seen when the law of 1800 was 
 proposed for the purpose of having such matters 
 determined by a grand committee preparatory to the 
 meeting of the two Houses in joint convention. The 
 passage of some law regulating the matter is on all 
 accounts desirable.] 
 
OPINIONS IN ELECTORAL COMMISSION. 199 
 
 III.— THE OREGON CASE. 
 
 The laws of Oregon do not provide for a Board of 
 
 State Canvassers, but direct as follows : 
 
 It shall be the duty of the Secretary of State, in presence of the 
 Governor, to proceed within thirty days after the election, and sooner, 
 if the returns be all received, to canvass the votes given for Secretary 
 and Treasurer of State, State printer. Justices of the Supreme Court, 
 members of Congress and district attorneys. 
 
 And then, vnth regard to State officers, directs : 
 " The Governor shall grant a certificate of election to 
 the person having the highest number of votes, and 
 shall also issue a proclamation declaring the election 
 of such person." 
 
 But with regard to Presidential electors, it directs : 
 " The votes for the electors shall be given, received, 
 returned, and canvassed as the same are given, 
 returned, and canvassed for members of Congress. The 
 Secretary of State shall prepare two lists of the names 
 of the electors elected, and affix the seal of the State 
 to the same. Such lists shall be signed by the Governor 
 and Secretary, and by the latter delivered to the college 
 of electors at the hour of their meeting on such first 
 Wednesday of December." 
 
 When the electors are met on the day for casting 
 their votes, the law directs : " If there shall be any 
 vacancy in the office of an elector, occasioned by 
 death, refusal to act, neglect to attend, or otherwise, 
 the electors present shall immediately proceed to fill, 
 by viva voce and plurality of votes, such vacancy in 
 the electoral college." 
 
 Watts, one of the electors having the highest num- 
 ber of votes, was a postmaster at the time of the 
 election, November 7, 1876 ; but resigned that office 
 during the month. 
 
200 
 
 MISCELLANEOUS WRITINGS. 
 
 On the 4th of December, the Secretary of State, in 
 presence of the Governor, canvassed the votes for 
 Presidential electors, made a statement of the result, 
 authenticated it under the seal of the State, and filed 
 it in his office. The follov^ring is a copy of this docu- 
 ment : 
 
 Abstract of votes cast at the Presidential Election held in the 
 State of Oregon November 7, 1876, foe Presidential Electors. 
 
 Counties. 
 
 O 
 
 a 
 
 (0 
 
 4J 
 
 % 
 
 U 
 
 u 
 
 n 
 U 
 
 6 
 
 t 
 
 3 
 
 g 
 
 
 u 
 O 
 
 -i 
 
 
 O 
 
 d 
 
 3 
 
 O 
 
 ai 
 
 Baker.. 
 
 318 
 615 
 949 
 432 
 157 
 571 
 131 
 1,002 
 315 
 585 
 209 
 949 
 173 
 1,323 
 1,780 
 2,124 
 607 
 119 
 486 
 366 
 491 
 693 
 811 
 
 319 
 615 
 950 
 432 
 156 
 571 
 131 
 1,002 
 314 
 585 
 209 
 949 
 173 
 1,324 
 1,782 
 2,122 
 608 
 119 
 486 
 366 
 491 
 692 
 810 
 
 319 
 615 
 950 
 432 
 157 
 571 
 131 
 1,003 
 316 
 586 
 209 
 949 
 173 
 1,323 
 1,781 
 2,122 
 608 
 119 
 486 
 366 
 493 
 693 
 812 
 
 549 
 567 
 734 
 386 
 179 
 512 
 124 
 847 
 279 
 827 
 252 
 946 
 258 
 1,404 
 1,154 
 1,525 
 542 
 76 
 742 
 525 
 631 
 433 
 674 
 
 550 
 567 
 734 
 385 
 179 
 516 
 134 
 847 
 279 
 840 
 252 
 946 
 258 
 1,404 
 1,154 
 1,528 
 542 
 76 
 742 
 525 
 621 
 42^ 
 674 
 
 549 
 567 
 724 
 386 
 179 
 515 
 124 
 847 
 377 
 840 
 353 
 946 
 358 
 1,404 
 1,155 
 1,535 
 542 
 76 
 742 
 525 
 619 
 433 
 674 
 
 1 
 
 77 
 17 
 
 1 
 
 77 
 17 
 
 
 
 
 Clackamas.... 
 Clatsop 
 
 17 
 
 Columbia 
 
 Coos 
 
 33 
 
 33 
 
 22 
 
 Curry 
 
 3 
 
 43 
 
 3 
 
 5 
 
 4 
 33 
 
 3 
 
 43 
 3 
 5 
 4 
 
 33 
 
 3 
 43 
 3 
 5 
 4 
 33 
 
 
 
 Josephine 
 
 Lake 
 
 
 140 
 34 
 
 2 
 54 
 
 1 
 43 
 33 
 
 141 
 33 
 
 o 
 
 55 
 
 1 
 
 42 
 
 32 
 
 140 
 22 
 
 n 
 
 54 
 
 1 
 
 42 
 
 32 
 
 Marion 
 
 Multnomah .. 
 Polk 
 
 Tillamook 
 
 Umatilla 
 
 Wasco 
 
 Washington .. 
 
 
 
 
 Yamhill.. . 
 
 6 
 
 6 
 
 
 
 
 Total 
 
 15,306 
 
 15,206 
 
 15,214 
 
 14,136 
 
 14,157 
 
 14,149 
 
 509 
 
 510 
 
 507 
 
 
 Simpson, 1; Gray, 1; Saulsbury, 1 ; McDowell, 1. 
 
 Salem, State of Oregon : 
 
 I hereby certify that the foregoing tabulated statement is the 
 result of the vote cast for Presidential electors at a general election 
 held in and for the State of Oregon on the 7th day of November, 
 A. D.I 876, as opened and canvassed in the presence of his excellency, 
 L. F. Grover, Governor of said State, according to law, on the 4th 
 day of December, A. D. 1876, at 2 o'clock P, M. of that day, by the 
 Secretary of State. 
 
 [SEAL.] S. F. CHADWICK, 
 
 Secretary of State of Oregon. 
 
OPINIONS IN ELECTORAL COMMISSION. 201 
 
 The statute of Oregon declares : "In all elections 
 in this State the person having the highest number of 
 votes for any office shall be deemed to have been 
 elected." 
 
 On the 6th of December, when the electors met to 
 give their votes for President and Vice-President, 
 Watts resigned as elector, and was re-appointed by 
 Odell and Cartwright to fill the vacancy. The Governor 
 refused them the usual certificate, but certified that 
 Odell, Cartwright and Cronin received the highest 
 number of votes cast for persons eligible under the 
 Constitution of the United States, and declared them 
 duly elected. As Odell and Cartwright refused to meet 
 with Cronin, he assumed to fill two vacancies. This 
 proceeding of the Governor and Cronin raised the prin- 
 cipal question in the Oregon case. 
 
 February 23, 1877. 
 Justice Bradley:— 
 
 This case differs from the two cases already heard 
 in this : By the laws of both Florida and Louisiana, 
 the final determination of the result of the election 
 was to be made by a board of canvassers invested 
 w^ith power to judge of the local returns and to reject 
 them for certain causes assigned. In Oregon, no such 
 board exists. The general canvass for the State is 
 directed to be made by the Secretary of State in pres- 
 ence of the Governor, from the abstracts sent to him 
 by the County Clerks. This canvass having been 
 made, the result is declared by the law. The canvass 
 is the last act by which the election is decided and 
 determined. This canvass was made in the present 
 case on the 4th day of December (1876) ; the result 
 
202 MISCELLANEOUS WRITINGS. 
 
 was recorded in a statement in writing made by the 
 Secretary and filed by him in his office. This state- 
 ment or abstract thus became the record evidence of 
 the canvass. It remains in the Secretary's office to-day, 
 as the final evidence and determination of the result. 
 
 We have before us, under the great seal of the State, 
 a copy of this statement, which shows the result to 
 have been a clear plurality of over a thousand votes 
 in favor of the three electors, Odell, Cartwright and 
 Watts ; and there is added thereto a list of the votes. 
 
 This document, after exhibiting a tabulated state- 
 ment of the votes given for each candidate in each 
 county of the State, footing up for Odell, 15,206 ; 
 Watts, 15,206 ; Cartwright, 15,214 ; Klippel, 14,136 ; 
 Cronin, 14,157 ; Laswell, 14,149, and a few scattering 
 votes, was certified and authenticated at the end, as 
 follows : 
 
 Salem, State of Oregon : 
 
 I hereby certify that the foregoing tabulated statement is the 
 result of the vote cast for Presidential electors at a general election, 
 held in and for the State of Oregon on the 7th day of November 
 A. D. 1876, as opened and canvassed in the presence of his excellency, 
 L. F. Grover, Governor of said State, according to law, on the 4th 
 day of December, A. D. 1876, at 2 o'clock P. M. of that day, by the 
 Secretary of State. 
 
 [SEAL.] S. F. CHADWICK. 
 
 Secretary of State of Oregon. 
 
 This document, with this certificate and authenti- 
 cation upon it, w^as filed by the Secretary in his office 
 on the 4th day of December. 
 
 To the exemplified copy of it, which was sent to 
 the President of the Senate (and which we have before 
 us), is added another document, entitled "List of 
 votes cast at an election for electors of President and 
 
OPINIONS IN ELECTORAL COMMISSION. 203 
 
 Vice-President of the United States in the State of 
 Oregon, held on the 7th day of November, 1876," 
 T?ehich contains the votes given for each candidate (the 
 same as in the canvass) written out in words at 
 length, and certified by the Secretary of State, also 
 under the great seal of the State, to be the entire vote 
 cast for each and all persons for the office of electors 
 as appears by the returns of said election on file in his 
 office. 
 
 Having made this canvass, recorded it, and filed 
 it in his office, the Secretary of State was functus 
 o£Bcio w^ith regard to the duty of ascertaining the 
 result of the election. He could not change it ; he could 
 not tamper with it in any way. By his act, and by 
 this record of his act, the ascertainment of the election 
 in Oregon was closed. Its laws give no revisory 
 pow^er to any other functionary ; and give none to the 
 Secretary himself. And this, as we have seen, was 
 done and completed on the 4th day of December, 
 at 2 o'clock in the afternoon, in the presence of the 
 Governor, according to the law of Oregon. 
 
 Now^, w^hat is the decree of the law on this trans- 
 action ? It is clear and unmistakable. " In all elec- 
 tions in this State the person having the highest num- 
 ber of votes for any office shall be deemed to be 
 elected." It is not left for any fimctionary to say 
 that any other person shall be deemed to be elected. 
 No discretion, no power of revision is given to any 
 one, except as the general law of the State has given 
 to the judicial department power to investigate the 
 right of persons elected to hold the offices to which 
 they have been elected. 
 
 Now, what is the next step to performed ? It is 
 this : " The Secretary of State shall prepare two lists 
 
204 MISCELLANEOUS WRITINGS. 
 
 of the names of the electors elected, and affix the seal 
 of the State to the same. Such lists shall be signed 
 by the Governor and Secretary, and by the latter 
 delivered to the college of electors at the hour of their 
 meeting on such first Wednesday of December." This 
 direction seems to be intended as a compliance with 
 the act of Congress of 1792. It is true, that this act 
 requires three lists instead of two to be delivered to 
 the electors ; but the number required by the State 
 law was probably an inadvertence. Be this, how^ever, 
 as it may ; w^hat names w^as the Secretary required by 
 law to insert in his certificate ? 
 
 He made out his certificate on the 6th day of 
 December, two days after his canvass had been com- 
 pleted, recorded, and deposited in the pubHc archives. 
 In making this certificate he was performing a mere 
 ministerial duty. It was his clear duty to insert in 
 his certificate the names of the persons w^hom the law 
 declared to be elected. Doing otherwise w^as not only 
 a clear violation of duty, but he made a statement 
 untrue in fact ; and the Governor putting his name to 
 the certificate, joined in that misrepresentation. It 
 may not have been an intended misrepresentation, and 
 the use of the word " eligible " may have been thought 
 a sufficient qualification ; nevertheless it was a mis- 
 representation in fact and in law, and it all appears 
 from the record itself It needs no extrinsic evidence. 
 
 But it is said that the Governor has the power to 
 disregard the canvass, and to reject an elector whom he 
 is satisfied is ineligible. There is no law of Oregon 
 which gives him this power. In my judgment, it was 
 a clear act of usurpation. It was tampering with an 
 election which the law had declared to be closed and 
 ascertained. 
 
OPINIONS IN ELECTORAL COMMISSION. 205 
 
 It is said, however, that he may refuse a commis- 
 sion to an ineligible person elected to a State office. 
 If so, it does not decide this case. And it seems to me 
 that such an act, even with regard to State officers, 
 would be an encroachment on the judicial power. A 
 case is referred to as having been decided in Oregon, in 
 which the appointment by the Governor to fill a 
 vacancy in a State office caused by the incumbent 
 being appointed to a United States office, was sus- 
 tained. But surely the judgment in that case must 
 have been based on the f^ct that there Avas a vacancy 
 and not on the fact that the Governor assumed to 
 judge whether there w^as a vacancy or not. His exec- 
 utive act, whether in determining his own action he 
 had the right to decide the question of eligibility or 
 not, w^as valid or not according as the very truth of 
 the fact w^as. 
 
 But in the case before us he had a mere ministerial 
 act to perform. He had no discretionary pow^er. 
 
 If anyone could have taken notice of the question 
 of supposed ineligibility it was the Secretary of State 
 when making his canvass. Had he taken it upon 
 himself to throw out the votes given for Watts, he 
 would have had a much more plausible ground of 
 justification for his act than the Governor had, to 
 whom no power is given on the subject. 
 
 But it is said, no matter whether the Governor and 
 Secretary acted right or wrong ; they were the func- 
 tionaries designated for giving final expression to the 
 will of the State, and their certificate must be received 
 as such, under the decision in the cases of Florida and 
 Louisiana. To this view, however, there is a conclu- 
 sive answer. As I said before, the certificate to be 
 
206 MISCELLANEOUS WRITINGS. 
 
 given by the Secretary and Governor to these electors 
 was not intended as any part of the machinery for 
 ascertaining the result of the election ; but as a mere 
 certificate of the fact of election, as a credential to be 
 used by the electors in acting as such and transmit- 
 ting their votes to the President of the Senate of 
 the United States, as required by the act of Con- 
 gress of 1792. As such it is prima facie evidence, 
 it is true ; but no person has contended that it cannot 
 be contradicted and shown to be untrue, especially by 
 evidence of equal dignity. We did not so decide in 
 the other cases. We held that the final decision of the 
 canvass by the tribunal or authority constituted for 
 that purpose could not be revoked by the two Houses 
 of Congress, by going into evidence behind their action 
 and return. 
 
 The only remaining question is, whether there was 
 a vacancy in the college at the time w^hen Odell and 
 Cartwright assumed to fill a vacancy on the 6th day 
 of December, 1876. It seems to me, that there was, 
 whether there was a failure to elect on account of the 
 ineligibiUty of Watts, or on account of his resignation 
 afterwards. 
 
 It is agreed by a large majority of the Commission, 
 that Cronin w^as not elected. Some of this majority 
 take the ground that Watts was duly elected, what- 
 ever effect his ineligibility, had it continued, might 
 have had on his vote. Others of them take the ground 
 that there was no election of a third elector. It seems 
 to me that it makes no difierence in this case which of 
 these views is the correct one ; there w^as a clear 
 vacancy in either case. 
 
 The act of Congress of 1845 declares that "each 
 
OPINIONS IN ELECTORAL COMMISSION. 207 
 
 State may by law provide for the filling of any vacan- 
 cies which may occur in its college of electors when 
 such college meets to give its electoral vote "; and also, 
 " that whenever any State has held an election for the 
 purpose of choosing electors, and has failed to make a 
 choice on the day prescribed by law, the electors may 
 be appointed on a subsequent day in such a manner as 
 the legislature of such State may direct." 
 
 The first contingency w^ould occur when some of 
 the electors were elected and could meet and fill any 
 vacancy in their number. The second contingency 
 would occur w^hen no electors were appointed, and, 
 therefore, no meeting could be held. It is evident that 
 these are two very different cases ; and that the one 
 before us does not belong to the latter, but to the 
 ormer. It is the difierence betw^een a college w^hich is 
 not full, and no college at all. In Oregon, according 
 to the exigency supposed, the case belonged to that of 
 a vacancy under the act of 1845. 
 
 The act of Oregon in relation to vacancies in the 
 electoral college was evidently passed in view^ of the 
 act of Congress upon which it was based ; and its 
 terms are so broad and comprehensive that I cannot 
 doubt that it was intended to apply to every case of 
 vacancy. The words are that " if there shall be any 
 vacancy in the office of an elector, occasioned by 
 death, refusal to act, neglect to attend, or otherwise, 
 the electors present shall immediately proceed to fill," 
 etc. This clearly covers every supposable case, and 
 must be intended to be as broad as the corresponding 
 section of the act of Congress. It is more general in 
 its terms than the act relating to vacancies in State 
 oflices, which specifies only certain classes of cases. 
 
208 MISCELLANEOUS WRITINGS. 
 
 As the electors Odell and Cartwright filled the 
 vacancy in a regular manner, I cannot avoid the con- 
 clusion that they, together with Watts, were the true 
 electors for the State of Oregon on the 6th day of 
 December, and that their votes ought to be counted. 
 
 Their credentials are not signed by the Governor, 
 it is true ; but that is not an essential thing ; and 
 was not their fault. They have presented the records 
 of the State found in its archives ; and these show 
 that the act of the Governor was grossly wrong ; and 
 they have also presented the certificate of the Secretary 
 of State under the great seal of the State, conclusively 
 showing their election. They have also shown by 
 their own afiidavit, that they applied to the Governor 
 for his certificate and that he refused it. I think their 
 credentials, under the circumstances, are sufficient. 
 
 It is urged that the distinction made between this 
 case, and that of Florida and Louisiana is technical 
 and will not give public satisfaction. My belief is that 
 when the public come to understand (as they will do 
 in time) that the decision come to is founded on the 
 Constitution and the laws, they will be better satisfied 
 than if we should attempt to follow the clamor of the 
 hour. The sober second thought of the people of this 
 country is in general correct. But, whilst the public 
 satisfaction is always desirable, it is a poor method of 
 ascertaining the law and the truth, to be alert in 
 ascertaining what are the supposed wishes of the pub- 
 lic. And as to deciding the case on technicalities, I do 
 not know that technicalities are invoked on the one 
 side more than on the other. In drawing the true 
 boundary line between conflicting jurisdictions and 
 establishing certain rules for just decision in such cases 
 
OPINIONS IN ELECTORAL COMMISSION. 209 
 
 as these, it is impossible to avoid a close and search- 
 ing scrutiny of written constitutions and laws. The 
 weight due to words and phrases has to be observed, 
 as well as the general spirit and policy of public docu- 
 ments. Careful and exact inquiry becomes a necessity. 
 And in such a close political canvass as this, in which 
 the decision of a Presidential election may depend not 
 only on a single electoral, but a single individual 
 vote, the greatest strain is brought to bear on every 
 part of our Constitutional machinery, and it is impos- 
 sible to avoid a close examination of every part. 
 There is a natural fondness for solving every doubt 
 on some "broad and general view" of the subject 
 in hand. " Broad and general views " when entirely 
 sound, and clearly applicable, are undoubtedly to be 
 preferred ; but it is extremely easy to adopt broad and 
 general views that -will, if adhered to, carry us into 
 regions of error and absurdity. The only rule that is 
 aWays and under all circumstances reliable is to ascer- 
 tain, at whatever cost of care and pains, the true and 
 exact commands of the Constitution and the laws, 
 and implicitly to obey them. 
 
210 MISCELLANEOUS WRITINGS. 
 
 IV.— SOUTH CAROLINA CASE. 
 
 It is not pretended that the votes of the Tilden 
 electors as presented in certificate No. 2, in this case, 
 are legal. The entire controversy arises upon the 
 objections to certificate No. 1, containing the votes for 
 Hayes and Wheeler. 
 
 These objections are — 
 
 First.— That the November election in South Caro- 
 lina -was void because the legislature of that State has 
 never passed a registration la-w as required by the 
 constitution of the State, Article YIII., Section 3, 
 which is as follows : " It shall be the duty of the gen- 
 eral assembly to provide from time to time for the 
 registration of all electors." This constitution w^as 
 passed in 1868, and from that time to this, elections 
 have been held, and the various elective officers of the 
 State, as w^ell as the office of Representatives in Con- 
 gress, have been filled without a registration law hav- 
 ing been passed. If the effect of the omission has 
 been to render all these elections absolutely void, 
 South Carolina has, for some years, been without any 
 lawfal government. But if the effect has only been to 
 render the elections voidable, without affecting the 
 validity of the acts of the government in its vari- 
 ous departments, as a government de facto, then 
 the election of Presidential electors and their giv- 
 ing their votes, have the same validity as all other 
 political acts of that body politic. But, in my 
 opinion, the clause of the constitution in question 
 is only directory, and cannot affect the validity of 
 elections in the State, much less the official acts of 
 the officers elected. The passage of a registration law 
 
OPINIONS IN ELECTORAL COMMISSION. 211 
 
 was a legislative duty which the members on their 
 oaths were bound to perform. But their neglect to 
 perform it ought not to prejudice the people of the 
 State. 
 
 The objection that it does not appear by the cer- 
 tificate that the electors voted by ballot, or that they 
 took an oath of office as required of all officers in 
 South Carolina are so formal and manifestly frivolous, 
 that I shall not discuss them. The presumption is 
 that all due formalities were complied with. 
 
 The only objections of any weight are those which 
 charge that there was such anarchy and disturbance 
 in the State during the elections, and such interference 
 of United States troops and others therewith, that no 
 valid election was held in the State, and it is impossi- 
 ble to know^ what the will of the State w^as. This is 
 placing the objections and the offer of proof to sup- 
 port them, in their strongest light. 
 
 I think it is unquestionably true, that such a state 
 of things as the objection contemplates ought to exclude 
 any vote purporting to come from the State ; for no 
 such vote can be regarded as expressing the will of the 
 State. But that is not the only question to be consid- 
 ered. 
 
 The first and great question is, as to the Constitu- 
 tional power of the two Houses of Congress, when 
 assembled to count the votes for President and Vice- 
 President, to institute an investigation by evidence 
 such as is necessary to determine the facts to be 
 proved. This power of canvassing the electoral votes 
 is constantly confounded with that of canvassing the 
 votes by which the electors themselves were elected — 
 a canvass with which Congress has nothing to do. 
 
212 MISCELLANEOUS WRITINGS. 
 
 This belongs to the jurisdiction of the States them- 
 selves, and not to Congress. All that Congress has 
 to do with the subject is, to ascertain whether the 
 State has, or has not, appointed electors — an act of the 
 State which can only be performed by and through its 
 own constituted authorities. 
 
 It seems to be also constantly overlooked or for- 
 gotten, that the two Houses, in their capacity of a 
 convention for counting the electoral votes, have only 
 a special and limited jurisdiction. They are not at all 
 invested with that vast and indefinite power of inquisi- 
 tion which they enjoy as legislative bodies. Until met 
 for the specific purpose of the count, they have no 
 power over the subject, except to pass such laws as it 
 is competent for the legislative branch of the Govern- 
 ment to pass. The electoral votes are in sealed 
 packages, over which the two Houses have no control. 
 They have not, constitutionally, any knowledge of 
 these until they are opened in their presence. Their 
 jurisdiction over the subject of the count, and the 
 votes and the appointment of electors, commences at 
 that moment. They have no po-wer before this to 
 make investigations affecting the count. Could it 
 have been in the contemplation of the Constitution 
 that the two Houses, after commencing the coimt, 
 should institute such an investigation as the objectors 
 propose — involving (as it would be likely to do) many 
 weeks in the process ? It seems to me impossible to 
 come to such a conclusion. 
 
 When the state of things in a State is of such a public 
 character as to be within the judicial knowledge of the 
 two Houses, of course, they may take notice of it, 
 and act accordingly — as was done in the times of 
 
OPINIONS IN ELECTORAL COMMISSION. 213 
 
 secession and the late civil war — or as might have been 
 done at any time, so long as the seceding States were 
 not in harmonious relations with the genered Govern- 
 ment. But when a State is in the enjoyment of all 
 those relations, w^hen it is represented in both Houses 
 of Congress, is recognized by the other departments of 
 the Government, and is knowti to have a government 
 republican in form— in other words, when all the public 
 relations of the State are the same as those of aU the 
 other States, how can the two Houses in convention 
 assembled (and assembled for such special purpose), go 
 into an investigation for the purpose of ascertaining the 
 exact state of things within the State, so as to decide 
 the question (perhaps a very nice question to be 
 decided), whether the tumults and disorders existing 
 therein at the time of the election, or the presence of 
 the troops sent there by the President for the preser- 
 vation of the public peace, had such an influence as to 
 deprive the State of its autonomy and the power of 
 expressing its will in the appointment of electors ? 
 Such an investigation, or one of any such character 
 and extent, was surely never contemplated to be made 
 whilst the votes were being counted. 
 
 That South Carolina is a State, and that she has 
 a republican form of government, are public facts of 
 which the two Houses (and we in their stead) must 
 take judicial notice. We know that she is such a State. 
 That she is capable of preserving the public order, 
 either with or without the aid of the federal authority ; 
 and that the executive interference, if made at all, was 
 made in the exercise of his proper authority, for the 
 reasons set forth in his public proclamations and 
 orders, are facts to be presumed. At all events, the 
 
214 MISCELLANEOUS WRITINGS. 
 
 two Houses, under their special authority to count 
 the electoral votes, are not competent to take evidence 
 to prove the contrary. 
 
 I do not doubt that Congress, in its legislative 
 capacity, with the President concurring, or by a two- 
 thirds vote after his veto, could pass a law by which 
 investigation might be had in advance, under proper 
 regulations as to notice and evidence and the cross- 
 examination of witnesses ; the results of which could 
 be laid before the two Houses at their meeting for the 
 count of votes, and could be used by them as a basis 
 for deciding -whether such a condition of anarchy, dis- 
 turbance and intimidation existed in a State at the 
 time of the election of its electors, as to render its vote 
 nugatory, and liable to be rejected. But without the 
 existence of a law^ of this sort, it is, in my judgment, 
 impracticable and unconstitutional for the two Houses 
 to attempt the decision of such a question. The 
 investigations made by legislative committees, in the 
 loose manner in which they are usually made, are 
 not only not adapted to the proper ascertainment of 
 the truth for such a purpose, but are totally unauthor- 
 ized by the Constitution. As methods of inquiry for 
 ordinary legislative purposes, or for the purpose of 
 laying the foundation of resolutions for bringing in an 
 impeachment of the President for unconstitutional 
 interference, of course they are competent ; but not for 
 the purpose of receiving or rejecting the vote of a 
 State for the Presidential office. They are not made 
 such by any Constitutional provision or by any law. 
 Legislation may be based on the private knowledge of 
 members, and a resolution to bring in an impeachment 
 may rest on ex-parte d,ffidavits or on general informa- 
 
OPINIONS IN ELECTORAL COMMISSION. 215 
 
 tion ; and, therefore, the evidence taken by a commit- 
 tee cannot be decreed incompetent for such a purpose ; 
 but is often of greats service in giving information to 
 the Houses as legislative bodies, and to the House of 
 Representatives as the grand inquest of the nation. 
 But the decision to receive or reject the vote of a 
 State, is a final decision on the right of the State in 
 that behalf, and one of a most solemn and deUcate 
 nature ; and cannot properly be based on the deposi- 
 tions of witnesses gathered in the drag-net of a Con- 
 sional committee. 
 
 For these reasons I am clear that the evidence 
 oflfered in support of the objections made to the elec- 
 toral votes of South Carolina cannot be received. 
 
 These are, in brief, the views which I entertain in 
 reference to "this case ; and under them, I am forced to 
 the conclusion that the objections made to the votes 
 given by the electors certified by the Governor of the 
 State, and the evidence ofiered in support of the same, 
 are insufficient ; and that the said votes ought to be 
 counted. 
 
ELECTORAL COMMISSION. 
 
 Mr. Black's article in the North American Re- 
 rievir on the Electoral Commission of 1877 is per- 
 vaded by an entire disregard of two fundamental 
 truths, •which furnish a complete answer to his argu- 
 ment. The first is, that the United States is a 
 government of law^ and not a democracy. The second 
 is, that the several States, and not the general Gov- 
 ernment, have the appointment of electors of President 
 and Vice-President, and are the sole judges of their 
 appointment. 
 
 Mr. Black assumes that the popular vote was in 
 favor of Tilden and Hendricks and against Hayes and 
 Wheeler. Conceding that this may have been true, 
 yet if a majority of the electors were in favor of 
 Hayes and Wheeler, the latter were constitutionally 
 elected. 
 
 If the United States w^ere a pure democracy, the 
 mere count of hands w^ould decide all questions abso- 
 lutely, without regard to the -wisdom or justice of 
 the decision. It w^ould make laws as well as elect 
 officers. It would be an absolute test of civil right 
 and w^rong, and, of course, what is right and wrong 
 would depend on the absolute truth of the count. If 
 the vote of one Louisiana negro, or of one New York 
 rough, w^ere omitted, it might wholly turn the scale. 
 The discovery of such an omission at any time would 
 change the result. A law^ might stand for a year and 
 
218 MISCELLANEOUS WRITINGS. 
 
 then be subverted ; a President migbt act as such for 
 three years, and then be unseated on the discovery of 
 the supposed mistake. Such discovery, it is true, 
 would depend on human testimony, which is some- 
 times fallible and sometimes corrupt ; no matter for 
 that, as it is the only guide, the consequence must 
 follow. The principles of pure democracy would 
 demand it. 
 
 A government regulated by law is conducted on 
 different principles. Under such a government a mat- 
 ter sometimes becomes settled. If a court of last 
 resort decides a controversy the decision stands. If 
 an election is held and decided according to law, theye 
 is an end of the matter. In the one case, as in the 
 other, mistakes may be made in fact. But the law 
 does not tolerate a change. It deems certainty, security 
 and peace preferable to eternal contention. It regards 
 some things as settled and not to be disturbed. It pro- 
 vides all reasonable opportunities of scrutiny and 
 review, but imposes an end to controversy somewhere. 
 It recognizes fallibility and mistake to a certain extent, 
 but beyond all that, demands that its decisions shall 
 be accepted as infallible. 
 
 Again, in gathering up the, results of the public 
 will, it proceeds by rules adopted and laid down before- 
 hand. These rules are regarded as wholesome restraints 
 on faction, and on corrupt influences of all kinds. To 
 carry out these rules, it appoints public agents, officers 
 and tribunals. Their action, subject to regular pro- 
 cesses of correction (which are also prescribed) are 
 received as definitive. With all its imperfections, this 
 system is regarded better than anarchy, which would 
 follow the want of it. 
 
ELECTORAL COMMISSION. 219 
 
 It cannot be doubted that the division of a State 
 into small constituencies, each acquainted with its 
 own wants and its own men, is a wise feature in a 
 constitution. These constituencies often choose a 
 different majority of representatives from that which 
 would be chosen by a general vote of the whole popu- 
 lation. The State of New York has one hundred and 
 twenty-eight legislative districts, each entitled to a 
 representative. A majority of these constituencies 
 may be republican, -whilst a majority of all the voters 
 in the State may be democratic. This w^ould arise 
 from a large body of democratic voters being crowded 
 into a locality— say the City of New York. Still the 
 arrangement of constituencies is a wise one, though 
 an artificial one. There is no reason to suppose that 
 the State would be any better governed if the Irish 
 vote of the city should control the policy of the whole 
 State, than it would if the majority of the constituen- 
 cies controlled it. 
 
 Our whole governmental system is an artificial 
 one, regulated and controlled by law ; and it is this 
 very feature of our government which secures public 
 safety and order, and which, if anything can, will give 
 perpetuity to our republican institutions. It is not 
 the roar of mere numbers, but the still, strong voice 
 of an organized community, w^hich expresses the pow^er, 
 the wisdom and the dignity of a people. 
 
 Stowe, 1877. 
 
220 miscellaneous writings. 
 
 Reply to Charges as to Conduct as Member of 
 . ELECTORAL COMMISSION. 
 
 [Newarfc Daily Advertiser, Wednesday Evening, September 5, 1877.] 
 JUSTICE BRADLEY SPEAKS. 
 
 We have just received the following prompt and 
 manly letter from Mr. Justice Bradley, which so fully 
 and completely explains itself that it needs no further 
 comment. It comes from his summer retreat at Stowe, 
 Vt., and though no vindication of his course in the Elec- 
 toral Commission, of which he was the most conspic- 
 uous member, seemed called for by those w^ho were 
 familiar with all the facts, yet the injustice of the 
 rumor that has recently been circulated, has prompted 
 him to stamp it as basely false, and he does so with 
 an emphasis of conscious rectitude that leaves no 
 ground for mistake. His statement confirms vehat we 
 took occasion to say on authority of almost equal 
 responsibility as his own. 
 
 Stowe, Vt., Sept. 2, 1877. 
 Editor of the Advertiser : — I perceive that the 
 New^ York Sun has reiterated its charge that after 
 preparing a written opinion in favor of the Tilden 
 electors in the Florida case, submitted to the Electoral 
 Commission, I changed my views during the night 
 preceding the vote, in consequence of pressure brought 
 to bear upon me by Republican politicians and Pacific 
 Railroad men, whose carriages, it is said, surrounded 
 my house during the evening. This, I believe, is the 
 important point of the charge. Whether I wrote one 
 opinion, or twenty, in my private examination of the 
 
KLECTORAL COMMISSION. 221 
 
 subject, is of little consequence, and of no concern to 
 anybody, if the opinion which I finally gave was the 
 fair result of my deliberations, without influence from 
 outside parties. The above slander was published 
 some time since, but I never saw it until recently, and 
 deemed it too absurd to need refutation. But as it is 
 categorically repeated, perhaps I ought to notice it. 
 The same story about carriages of leading Republi- 
 cans, and others, congregating at my house, w^as cir- 
 culated at "Washington at the same time, and came to 
 the ears of my family, only to raise a smile of con- 
 tempt. The w^hole thing is a falsehood. Not a single 
 visitor called at my house that evening ; and during 
 the whole sitting of the Commission, I had no private 
 discussion whatever on the subjects at issue v^rith any 
 person interested on the Republican side, and but very 
 few w^ords with any person. Indeed, I sedulously 
 sought to avoid all discussion outside the Commission 
 itself. The allegation that I read an opinion to 
 Judges Clifford and Field is entirely untrue. I read 
 no opinion to either of them, and have no recollection 
 of expressing any. If I did, it coidd only have been 
 suggestively, or in a hypothetical manner, and not 
 intended as a committal of my final judgment or 
 action. The question was one of grave importance, 
 and, to me, of much difficulty and embarrassment. I 
 earnestly endeavored to come to a right decision, free 
 Irom all political or other extraneous considerations. 
 In my private examination of the principal question 
 (about going behind the returns), I wrote and re- wrote 
 the arguments and considerations on both sides as 
 they occurred to me, sometimes being inclined to one 
 view of the subject, and sometimes to the other. But 
 
222 MISCELLANEOUS WRITINGS. 
 
 finally I threw aside these lucubrations, and, as you 
 have rightly stated, wrote out the short opinion which 
 I read in the Florida case during the sitting of the 
 Commission. This opinion expresses the honest con- 
 clusion to which I had arrived, and which, after a full 
 consideration of the whole matter, seemed to me the 
 only satisfactory solution of the question. And I 
 may add, that the more I have reflected on it since, 
 the more satisfied have I become that it was right. 
 At all events, it was the result of my own reflections 
 and consideration, without any suggestion from any 
 quarter, except the arguments adduced by counsel in 
 the public discussion, and by the members of the Com- 
 mission in its private consultations. 
 
 As for the insinuations contained in a recent article, 
 published in a prominent periodical by a noted politi- 
 cian,* implying that the case was decided in conse- 
 quence of a political conspiracy, I can only say (and 
 from the peculiar position I occupied on the Commis- 
 sion I am able positively to say) that it is utterly 
 devoid of truth, at least, so far as the action of the 
 Commission itself was concerned. In that article the 
 writer couples my name with the names of those whom 
 he supposes obnoxious to public odium. The decencies 
 of public expression, if nothing more, might w^ell have 
 deterred so able a w^riter from making imputations 
 which he did not know to be well founded. 
 
 Yours respectfully, 
 
 (Signed) JOSEPH P. BRADLEY. 
 
 * Judge Jeremiah S. Black. 
 
ELECTORAL COMMISSION. 223 
 
 ELECTORAL COMMISSION. 
 
 The abuse heaped upon me by the Democratic press, 
 and especially the New York Sun, for the part I took 
 in the Electoral Commission, appointed to decide the 
 controverted questions which arose upon the Presi- 
 dential election of 1876-7, is almost beyond concep- 
 tion. Malignant falsehoods of the most aggravated 
 character were constantly published. I bore these 
 things in silence until it was stated that Judge Field 
 had said, in conversation, that I had changed my 
 mind during the sitting of the Commission, and that 
 I had first w^ritten an opinion in favor of Tilden, and 
 had read it to him and Judge Clifford. When this 
 story appeared the Judge was in California and I w^as 
 spending my vacation at Stow^e, Vt. I immediately 
 wrote to him, calling his attention to these charges. 
 He replied, denying that he used the expressions attrib- 
 uted to him, and had said nothing derogatory to my 
 honor or integrity. 
 
LAW, 
 
 NATURE AND OFFICE 
 
 BOND AND BASIS OF CIVIL SOCIETY. 
 
 INTRODUCTORY LECTURE 
 
 TO THE 
 
 l^SLW^ Department of the University of Pennsylvania, 
 Wednesday, October 1st, 1884, 
 
 BY 
 
 JOSEPH P. BRADLEY, 
 
 Justice of the Supreme Court of the United States. 
 
 Quare quum lex sit civilis societatis vinculum, jus autem legis aequale, 
 quo jure societas civium teneri potest, quum par nou sit condicio civium ? 
 Quid est enim civitas nisi juris societas? — Cic. de Repub. I. 32. 
 
LECTURE ON LAW. 227 
 
 Philadelphia, October ii, 1884. 
 Hon. Joseph P. Bradley. 
 
 Dear Sir : — The committee appointed for that purpose by the 
 Students of the Law Department of the University of Pennsylvania, 
 wish to express to you their appreciation of the address delivered 
 before them on the ist instant, and also to respectfully request that you 
 will lend to them your manuscript in order that it may be printed. 
 Hoping that you will give this request a favorable consideration, we 
 are. 
 
 Very respectfully yours, 
 
 Joseph S. Clark, Chairman, 
 Luke D. Bechtel, 
 George H. Chesterman, 
 F. S. Phillips, 
 Henry C. Todd, 
 
 Comvtitiee. 
 
 Washington, October 13, 1884. 
 Gentlemen : 
 
 I have duly received your kind letter written as a committee of 
 the Students of the Law Department of the University of Pennsyl- 
 vania, asking for a copy, for publication, of the lecture delivered by me 
 before them on the ist instant. Duly acknowledging this mark of 
 their appreciation of the lecture, I would say that I have no desire to 
 withhold it from publication, though it was not prepared under circum- 
 stances to render it fit for the test of criticism. In the hope, however, 
 that its suggestions may lead the thoughtful to a fuller and more 
 mature consideration of the subject discussed, I submit it to your dis- 
 posal. With kind wishes for the success of yourselves and those 
 whom you represent, in the study and pursuit of the noble profession 
 you have chosen, I am. 
 
 Respectfully and truly yours, 
 
 JOSEPH P. BRADLEY. 
 
 Messrs. Joseph S. Clark, Chnin, Luke D. Bechtel, George H. Ches- 
 terman, F. S. Phillips, Henry C. Todd, Committee. 
 
228 MISCELLANEOUS WRITINGS. 
 
 LECTURE. 
 
 Young Gentlemen : An introductory lecture to a 
 course of law is not unnaturally directed to a general 
 view of the subject, its nature, the principles on w^hich it 
 is founded, its relations to other departments of knowl- 
 edge, the proper methods of its study, and the aims 
 which the student should have in view. To these 
 heads, or some of them, I shall endeavor to direct 
 your attention on this occasion. 
 
 First of all, we ought to have a clear conception 
 of the subject itself— law — what it is, and what is its 
 office and use in human affairs. Perhaps the imagina- 
 tion w^ould be more impressed by picturing to our- 
 selves the absence of law, than by attempting to 
 describe its operation and effect. Suppose an omnip- 
 otent edict should presently go forth, abolishing all 
 law ; what would be the condition of things in this 
 city ? A would w^alk into B's banking house and take 
 from his box or safe any amount of money that his fancy 
 dictated, unless B, by superior strength, could protect 
 his possesions. In like manner, C w^ould enter D's 
 store, and take such articles as he chose, unless D 
 could prevent him by force. Your neighbor, being in 
 want of books for his library, could take from yours 
 whatever he needed, and any clothes from your ward- 
 robe which might strike his fancy. The first bully you 
 might meet on the sidewalk could strike you down 
 with impunity, either for the purpose of indulging in 
 sheer malice and wickedness, or of possessing himself 
 of any valuables about your person. You might, at 
 any moment, be turned out of house and home by 
 a stronger person who fancied your luxurious and 
 
LECTURE ON LAW. 229 
 
 elegant surroundings. There would be no such thing 
 as property, or debts, or securities. Everything would 
 lie in possession, and that would go to the strongest. 
 Any association of good men, entered into for mutual 
 protection, would be so far the establishment of law, 
 and w^ould be contrary to the supposed edict aboKsh- 
 ing it. Society would be dissolved and ended. Society 
 cannot exist without law. Law is the bond of society ; 
 that which makes it; that which preserves it and 
 keeps it together. It is, in fact, the essence of civil 
 society. 
 
 DEFINITION OF LAW. WHAT IT IS. 
 
 And now that we see what law accomplishes, and 
 what w^ould be the effect of its abolition, we may pro- 
 ceed to a definition of it. Blackstone says that 
 municipal or civil law^ is a rule of civil conduct, pre- 
 scribed by the supreme power in a State, commanding 
 what is right and prohibiting what is wrong. I would 
 rather say that it is those rules and regulations which 
 the inhabitants of a particular country or territory 
 adopt and enforce for the establishment and main- 
 tenance of civil government, the preservation of 
 social order, the distribution of justice, and the 
 advancement of the general good ; or, it is that body 
 of rules which a political society enforces by physical 
 power for the protection of its members, in their per- 
 sons and property, and the promotion of their happi- 
 ness. Whatsoever rule of conduct is not enforced by 
 the physical power of society is not law^. It may be a 
 rule of morals, or of courtesy, or of honor ; but it is 
 not law. That conduct which the State requires of 
 its citizens, or those within its jurisdiction (who are 
 
230 MISCELLANEOUS WRITINGS. 
 
 guasi citizens for the time being), and which it regards 
 as of sufficient consequence to enforce by its physical 
 power, is civil conduct, and the rules by which it is 
 prescribed constitute the law of that State. It matters 
 not how it came to be the law, whether it was pre- 
 scribed by an autocrat or a legislative body, or arose 
 from mere custom and usage, or the decrees of the 
 courts — if the physical power of society, that is, the 
 State, is put forth for its vindication, it is law ; if not, 
 it is not law. Sometimes popular opposition to a law 
 may prevent its execution and paralyze the power of 
 the State. This produces, so far as it extends, a relax- 
 ation of the bonds of society and a return to a lav\rless 
 condition, but as soon as the public power can be 
 restored, the reign of law returns. 
 
 With the exception of omitting that distinguishing 
 characteristic of law, its enforcement by the physical 
 power of the State, Blackstone's definition may be 
 logically correct. The law making power is necessarily 
 the supreme power in a State ; the rules it enforces are 
 presumed to be known, and may therefore be said to 
 be prescribed ; and that they command what is right 
 and prohibit what is wrong is a legal truism, though 
 it is also true in a moral sense, inasmuch as the laws 
 of a State are the final expression of the nation's sense 
 of justice and political wisdom, developed from its his- 
 tory and experience, and formulated by its highest 
 intelligence. So much, at least, may be said of the 
 law, viewed in its most mundane and prosaic aspect, 
 as practically exhibited in human affairs, without 
 attempting to scale those sublime heights from which 
 philosophy may take even a more ennobling view of 
 the subject. Ulpian defines justice (or law in its 
 
LECTURE ON LAW. 231 
 
 essence), as " Constans et perpetua voluntas jus suum 
 cuique tribuendi." And Richard Hooker, a writer of 
 great power and elegance, sums up his conclusion on 
 the subject as follows : " Of law there can be no less 
 acknowledged than that her seat is the bosom of 
 God, her voice the harmony of the world ; all things 
 in heaven and earth do her homage, the very least as 
 feeling her care, and the greatest as not exempted 
 from her povirer ; both angels and men, and creatures 
 of what condition soever, though in different sort and 
 manner, j-^et all with uniform consent, admiring her 
 as the mother of their peace and joy." 
 
 GENERAL DIVISION OF LAW. 
 
 The law extends not only to the relations and con- 
 duct of individuals towards each other, but to the 
 organization of society itself, its form of government, 
 its public institutions and w^orks, and even to the 
 mutual relations between the State and other States. 
 The different subjects to which it is thus extended 
 renders its division natural into public law and pri- 
 vate LAW ; and that of public law into international 
 law^ and Constitutional law^. 
 
 The laws relating to crimes are generally regarded 
 as public law ; but it seems to me that they might 
 properly be considered as belonging respectively to 
 that branch of the laws, public or private, which is 
 violated by the commission of the crimes. A man who 
 takes my property may be a mere trespasser or a 
 thief, according to the manner and intent with which 
 he takes it, but it is equally a private injury to me ; pun- 
 ishable in the one case by damages for the injury, and 
 in the other by imprisonment or corporal chastisement, 
 
23 2 MISCELLANEOUS WRITINGS. 
 
 with a return of the goods, if they can be found. The 
 reason for calling the crime a public offence, committed 
 against society itself, has always seemed to me too 
 metaphysical. It is said that a crime, especially if 
 it reaches the grade of felony, is a violation of the 
 social compact, and tends to dissolve society ; or that 
 it is an insult to the majesty of the sovereign ; but 
 this is only in degree ; every violation of law may be 
 characterized in the same manner, and the statement 
 would be true to a certain extent. 
 
 International law consists of those rules dictated 
 by natural justice, by long usage, or by treaties, which 
 form the law^ of intercourse betw^een the State or nation, 
 and other States or nations. Though international, 
 it is enforced by each individual nation as its own law, 
 there being no common judge to enforce it. And each 
 nation, on its owti responsibility, puts its own con- 
 struction upon the law, at the risk of a conflict with 
 other nations, if they should construe it differently. 
 This law^ is to be found in the w^orks of those sages of 
 the law who have made international law their special 
 study, and who have become generally recognized as 
 authorities. They are sometimes called publicists, 
 because international law is regarded as public law 
 par excellence. Of this class are Grotius, Puffendorff 
 Bynkershock, Vattel, Wheaton, Phillimore, and others. 
 
 There is a branch of international law, which 
 is called private international law, which has respect 
 to the rights and duties of persons who have rela- 
 tions personal, or by means of property or contract 
 with different countries, whose laws conflict with each 
 other in reference to the matter in hand ; and it is the 
 oflfice of private international law to determine, a;ccord- 
 
LECTURE ON LAW. 233 
 
 ing to the principles of justice, what rule should be 
 followed. Ordinarily every man's rights and duties 
 are determined by the law of the place where he resides. 
 But he may be the subject of some other sovereign 
 claiming his allegiance, or he may own property located 
 in another country, or he may have contracts made 
 or to be performed there ; and it is the province of 
 private international law to determine his rights and 
 duties in all these cases. The validity and effect 
 which shall be accorded in one country to acts done in 
 another, such as transferring property, recovering 
 judgments, constituting executors, guardians, etc., is 
 a matter of comity between the tw^o countries and 
 their tribunals ; and private international law^ deter- 
 mines when this comity should be exercised. A num- 
 ber of eminent writers have treated of this subject, 
 sometimes under the title of Conflict of Law^s, and 
 sometimes under that of Private International Law ; 
 such as Savigny, Story, and your own learned towns- 
 man, Mr. "Wharton. Chancellor Kent, in his Commen- 
 taries, touches briefly, but with masterly precision, 
 the subject of International Law in both of its aspects. 
 
 In this age, when the Atlantic Ocean has become a 
 mere ferry, and foreign intercourse is so common, and 
 in this country, where forty independent commun- 
 ities are so closely related by business connections of 
 every kind, this branch of intemationl law is of the 
 greatest importance, and should be carefully studied 
 by every American lawyer. 
 
 Constitutional law prescribes the form of gov- 
 ernment of a State, its general departments and their 
 functions ; the political divisions of its territory, and 
 the duties and powers assigned to each; the various 
 
234 MISCELLANEOUS WRITINGS. 
 
 kinds of delegates and officers to consult for the pub- 
 lic good and execute the public will, and the modes of 
 appointing them ; in other words, the framework of 
 civil society, and the functions of its several parts 
 The Constitutional law of a country is sometimes 
 written, sometimes unwritten, and sometimes partly 
 the one and partly the other. In this country it is 
 mostly w^ritten, partly in a direct and formal act of 
 the people, under the name of a Constitution, and 
 partly in organic laws passed by the legislature. The 
 general grant of legislative power is deemed sufficient 
 to authorize the legislative department to extend the 
 organization of civil society to details which are not 
 provided for in the outline drawn by the Constitution 
 itself. Whatever law relates to a public function is 
 Constitutional in its character, whether it defines the 
 power of a governor or a constable, or directs the 
 mode of passing laws or of exercising the elective 
 franchise. It touches the organization of the body 
 politic, and that organization is, subjectively, the Con- 
 stitution of the State. 
 
 An appendix to Constitutional law, not generally 
 regarded as belonging to it, though relating to the 
 duties and powers of public functionaries, is Adminis- 
 trative Law, which presides over the establishment 
 and execution of those public institutions and works 
 which are created or carried on for the benefit and pro- 
 tection of society, such as armies, navies, fortresses, sea- 
 walls, light-houses, harbors, piers, bridges, highways, 
 railroads, canals, mails, prisons, hospitals, poor-houses, 
 asylums, universities, schools, and benevolent corpora- 
 tions, all of which, when emanating from public 
 authority (as they mostly do), exhibit the majesty of 
 
LECTURE ON LAW. 235 
 
 the body politic in the energy of beneficent action, 
 aiding, protecting and benefiting all its members and 
 advancing human civilization. This subject is largely 
 discussed by the French lawyers as a separate branch 
 of public law, and some of their works are well worth 
 the students' consideration. Ferriere's Treatise on 
 Public and Administrative Law is a model of clear 
 analysis, and is well w^orthy of being done into English, 
 and studied in our legal institutions. 
 
 Private Law consists of those civil rules and reg- 
 ulations which govern the private actions and mutual 
 relations and dealings of all citizens, and of all other 
 persons subject to the jurisdiction of the State. 
 When w^e consider the innumerable relations and trans- 
 actions which take place amongst men in society, it is 
 apparent that the laws must necessarily be extensive 
 and voluminous. In the simple times of old a few 
 rules might have been sufficient, but in the present 
 complex state of society, having so many industries, 
 occupations and interests, and presenting so many 
 phases of human life, all requiring the protection of 
 the law^s, it is indeed w^onderful that the civil law can 
 be so all-embracing and omnipresent as to reach and 
 provide for every exigency that can arise. But it does 
 this and does it perfectly. It does it by means of a 
 rigid and accurate classification of human relations 
 and acts — a classification based partly on nature, 
 partly on custom, and partly on instituted or volun- 
 tary conditions. The most striking natural relations 
 are those of husband and wife and parent and child ; 
 custom early established those of master and servant 
 and guardian and ward, and that of magistrate and 
 people grows out of the very construction of society. 
 
236 MISCELLANEOUS WRITING. 
 
 But there are innumerable relations -which men volun- 
 tarily or involuntarily assume towards each other, 
 either by conduct or by contract. If one injures 
 another in person, reputation or property, the relation 
 of injurer and injured is established between them, 
 imposing upon one the duty of satisfaction for the 
 injury, and giving to the other the right to demand it. 
 If two or more enter into a contract (permitted by 
 the law) they mutually assume a contractual relation 
 towards each other, binding each to the others, for 
 the performance of his part of the contract, and a 
 failure to perform involving the duty of satisfaction 
 and the right to demand it. This is a mere general 
 statement of what occurs every moment ; but the 
 variations of right and duty growing out of the 
 infinite variety of facts and shades of difference in 
 the many cases that occur, render the complicated 
 mass of rules and principles necessary to meet and 
 provide for all, forbidding to the beginner. He must 
 learn w^ell the great principles of justice, and the sys- 
 tem of legal analysis and classification, and then light 
 will begin to break in upon the chaos, and all things 
 will at last become easy and plain. 
 
 THE SUBJECT MATTER OF LAW, AND THE PLACE WHICH 
 ITS STUDY OCCUPIES AMONG THE SCIENCES. 
 
 Having now described in a general way, what law 
 is, and what are its objects and uses, and its general 
 divisions, let us stop a moment and take a little more 
 accurate survey of it as a whole, as a subject of 
 learned study, and as to the place it holds amongst 
 the other studies to which men devote themselves, 
 particularly those of a professional character. 
 
LECTURE ON LAW. 237 
 
 Every science, or branch of human knowledge, has 
 a subject matter which it scrutinizes, studies, analyzes 
 and expounds, as to its substance, its accidents, its 
 relations, causes and effects, and the natural laws 
 which govern its manifestations. The subject matter 
 of mathematical science is number and figure ; the 
 subject matter of astronomy is the heavenly bodies, 
 and it explores their nature, their appearances, their 
 positions, their motions, and the relations which they 
 have to each other ; the subject matter of geology is 
 the structure of the earth, which is explored in its 
 various strata of rocks, their relative super-position 
 and age, their composition and contents, the remains 
 of ancient vegetable and animal life embedded in 
 them, and the causes which have led to their produc- 
 tion ; the subject matter of natural philosophy is the 
 mechanical forces of nature, and the phenomena which 
 they produce ; of botany, the vegetable kingdom ; of 
 natural history, the animal kingdom. Man himself 
 forms a subject of profound study ; his body, with its 
 sustentation and preservation, forms the subject of 
 physiology and medical science ; his mind and its oper- 
 ations, form the subject of mental philosophy, includ- 
 ing metaphysics ; his language forms the subject of 
 philology, grammar and rhetoric ; his relations to his 
 Maker, and the unseen world, including his moral 
 relations to his fellow-men, form the subject of religion, 
 or religious philosophy and ethics. All these subjects 
 present vast and important fields of inquiry, worthy 
 of profound study ; but none of them exceeds in 
 importance the subject matter of the science of law — 
 CIVIL SOCIETY — that highest phase and outgrowth of 
 humanity, without which men would be but savages ; 
 
238 MISCELLANEOUS WRITINGS. 
 
 without which, unless hedged about by divine influ- 
 ences in some garden of Eden, none of the sweet and 
 beautiful manifestations of human life could possibly 
 exist. 
 
 CIVIL SOCIETY FORMED AND SUSTAINED BY LAW ; WHICH 
 IS ITS REAL OFFICE AND PURPOSE. 
 
 No doubt man is naturally a social being. Certain 
 individuals, it is true, for the sake of wild freedom, or 
 from some acquired disgust, may prefer to wander away 
 from their fellows, and lead isolated lives ; but take 
 them as a race, men love company, and the mutual 
 support and aid, sympathy, affection, and communi- 
 cation by language, which company gives. They pos- 
 sess, however, selfish passions, which are often fierce 
 and ungovernable ; and, under the most favorable 
 circumstances in which they can be placed, society 
 could not, for any length of time, be maintained on 
 the voluntary principle, or under the influence of 
 mere moral restraints. There must be government, 
 there must be force, there must be a civil organization 
 of some kind — that is, the organization of a civitas 
 or State, wielding the concentrated power of the 
 community. To this, if not naturally led by their 
 instincts, men are compelled by necessity, as soon as 
 they increase in numbers and possessions. They can- 
 not separate. They must remain together, not only 
 in obedience to their instincts of aflection, communi- 
 cation and sympathy, bvit for their mutual protection 
 against other bodies of men, who would otherwise 
 drive them from their seats, or make them captives 
 to their w^ill. So that civil society is a necessity of 
 our nature and of the conditions by which we are 
 
LECTURE ON LAW. 239 
 
 surrounded. And this is the subject matter of our 
 science, taken in its broadest sense. It is true that 
 the political philosopher, the political economist, the 
 statesman, and the legislator, as well as the lawyer, 
 finds in civil society the subject of their studies and 
 investigations ; but what, after all, is the object of 
 their studies, but to ascertain what are the best and 
 most beneficial laws, and how the existing la-ws may 
 be improved for better promoting human happiness ? 
 and -what is this but taking a more lofty and extended 
 view^ of the la-w itself ? looking at it in reference to its 
 objects and uses ; and thereby comprehending more 
 perfectly its spirit, its essence and its application ? In 
 other words, it shows us that the profound student 
 of law can never feel satisfied with his acquirements 
 in the science until he is able to take philosophic and 
 statesmanlike views of the subject to which it relates — 
 the order of civil society — and of its bearings on 
 human happiness. 
 
 We see, then, that in approaching the study of the 
 law we approach a subject of living interest and 
 importance, independently of its attractions as a pro- 
 fessional calling. It is not merely dead books, and 
 their contents, that we set about to learn, but a living 
 thing — civil society — ^in its organization and its rules, 
 under all phases of human experience, human inter- 
 course, human activity, and human interest. 
 
 The student of medicine examines with minutest 
 care the subject matter of his science, namely, the 
 human body ; he scrutinizes it in all its parts ; the 
 functions of each part and its relations to the other 
 parts ; the things that effect it beneficially, and those 
 that affect it hurtfully. It is his study from morning 
 
240 MISCELLANEOUS WRITINGS. 
 
 to night to ascertain its functions, its needs, its dan- 
 gers, its injuries, and the modes and means of repair- 
 ing them. So the student of law, in order to obtain 
 a profound conception of his science, must, in like 
 manner, study deeply the subject matter of it — civil 
 society — in its construction, its workings, its rules ; in 
 the solution of all questions of civil right or duty that 
 arise in every situation in which a man can be placed, 
 in every transaction in which he may be concerned ; 
 in the prescription of the proper remedy for the asser- 
 tion of every right, and for the prevention or redress 
 of every w^rong. For the law is everywhere, and 
 extends to everything of human interest. 
 
 At first view when w^e walk about amongst our 
 fellow-men, we may not observe the omnipotent influ- 
 ence and controlling effect of the law. Its power is so 
 subtle and all-pervading that everything seems to take 
 place as the spontaneous result of existing conditions 
 and circumstances. It is like gravitation in the natu- 
 ral -world, which, whilst it governs and controls every 
 movement, and produces all the order of the universe, 
 is itself unseen. It must be studied in its effects in 
 order to understand its power. So with law in civil 
 society. It is over, under, in and around, every 
 action, that takes place. Its silent reign is seen in the 
 order preserved, the persons and property protected, 
 the sense of security manifested ; in the freedom of 
 intercourse, in the cheerful performance of labor, in the 
 confidence with which business is transacted, and trust 
 is reposed by one man in another ; in the peaceful and 
 contented pursuit of trades and occupations, and the 
 bestowal of services ; all goes on cheerfiiUy and 
 smoothly, working out and interworking the constant 
 
LECTURE ON LAW. 241 
 
 evolution of human happiness — because of the ever- 
 existing (though generally unrecognized) conscious- 
 ness of the presence, the watchfulness, and the 
 all-sufficient protection of the law. In ordinary con- 
 duct, conformity to its rules and requirements is pur- 
 sued almost as a second nature ; but in transactions 
 requiring authentic evidence, greater knowledge, per- 
 haps professional skill, is required ; and when questions 
 of ambiguity, complexity and difficulty arise, which 
 the parties themselves cannot amicably solve, then, of 
 course, the skill of the lawyer, and perhaps the wis- 
 dom and authority of the judge, must be resorted to. 
 But compared with the millions of transactions which 
 take place, these ripples on the surface, do not often 
 occur. The mighty river of things generally moves 
 on with an undisturbed current ; but only because it 
 is kept in its banks and regulated in its course by 
 the poAver of law^. 
 
 THE ANALYSIS OF CIVIL SOCIETY AND OF THE TRANSAC- 
 TIONS THAT TAKE PLACE THEREIN, FURNISHES THE 
 MOST PRACTICAL GROUND OF ANALYSIS OF THE LAWS. 
 
 Since law is the bond and basis of civil society, 
 and the platform on which, and according to which, 
 all civil transactions are conducted and regulated, it 
 follows, that the only analytical division of the science 
 which is practically useful is, and must be, largely 
 based upon an analysis of civil society, the transac- 
 tions that take place in it, and the relations of its 
 various members to the whole and to each other. 
 
 Law itself, in its essence, cannot be analyzed ; it 
 is simply the dictates of justice in the varied circum- 
 stances and relations of life. Those circumstances 
 
242 MISCELLANEOUS WHITINGS. 
 
 and relations may be analyzed and classified, and the 
 dictates of justice in each case or class of cases may 
 be ascertained and enunciated. In other words, not 
 the law^, but the subjects to which it is applied, are 
 arranged into classes and under heads, and, having 
 found the law applicable to each class or head, we 
 speak as if we had analyzed the law itself. 
 
 Ulpian, the great Roman lawyer, said (as Cicero 
 had, substantially, said before him), that the law 
 itself has only three commands, " honeste virere, 
 alterum non Isedere, suum cuique tribuere ;" "live 
 rightly, do no w^rong to another, give to every one 
 his own "; leaving it to be inferred that all the rest 
 consists in the application of these fundamental prin- 
 ciples to particular cases. 
 
 True, there are certain general rules and maxims 
 of extensive application, each of which may furnish 
 the subject of a chapter of law, showing how and in 
 what cases and circumstances it is to be applied. 
 Thus, the rule, "sic utere tuo, utnon alienum laedas" 
 is constantly applied to hundreds of cases which it 
 would be tedious to enumerate, but the nature of 
 which could be indicated by a few examples, such as 
 this : If you conduct a stream on to your own land 
 for the purpose of irrigation, you have no right to 
 allow it to wet and injure the land of your neighbor 
 lying below yours. The rule is a rule of justice and 
 may be treated of under a head or chapter of its own. 
 But a collection of such general rules or maxims would 
 not present a scientific arrangement of the law. They 
 would stand isolated from each other, without com- 
 pleteness or symmetry, or any proper relation to, or 
 connection with each other. Several authors, as Noy, 
 
LECTURK ON I.AW. 243 
 
 Wyngate, Francis and Broom, have made collections 
 of these maxims, and have commented upon them by 
 showing the manner in which, and the kind of cases to 
 which, they are severally applied ; and these books 
 are very useful in their w^ay, and worthy of study ; 
 but they exhibit no analysis or arrangement of the 
 law, or the science of law^. To make such an analysis 
 or arrangement, w^e must resort, as before stated, to 
 the subject matter of the law, civil society and the 
 various relations and transactions which it exhibits. 
 
 There is one general division, how^ever, w^hich runs 
 through all the departments and branches of the law, 
 w^hich is not based on the subject matter, but rather 
 on the nature of things ; it is that which considers the 
 law^ under the three heads of Jura, Injurise, Remedia — 
 Rights, Injuries and Remedies. They might be con- 
 sidered together, for every injury is the violation of 
 some right, and has its appropriate remedy, or choice 
 of remedies. But there are many injuries, or wrongs, 
 which are deprivations of mere negative rights, and 
 the injuries themselves assume a distinctive and promi- 
 nent importance, making it desirable to subject them 
 to a separate consideration ; such as most torts, 
 including trespasses, assaults, libels, slander, etc. 
 And, again, the remedies of the law have such a gen- 
 eral similitude, and are governed by such peculiar 
 regulations, that they need to be distinctly and sepa- 
 rately considered. 
 
 Another division, independent of the subject matter, 
 is that between law and equity — the latter being a 
 particular modification of the law in many cases 
 where its strict general rules would be inadequate to 
 the purposes of justice. The system of rules and pro- 
 
244 MISCELLANEOUS WRITINGS. 
 
 ceedings which are adopted by courts of equity for 
 effecting the desired modification, is treated of sepa- 
 rately from the general system of the law^. 
 
 With these exceptions, and perhaps one or tw^o 
 others that have escaped me, the study and science of 
 the law^ is divided and subdivided, according to the 
 subjects to which it is applied, and these embrace all 
 the transactions and relations of society. 
 
 In the consideration of rights the principle of 
 analysis to which I have referred is at once rendered 
 manifest. First comes the Constitution and order of 
 the Commonwealth itself ; then, proceeding to private 
 law, we first take up the personal rights and duties of 
 individuals, their status as free or servile, as husbands 
 and wives, parents and children, guardian and ward, 
 corporations, etc.; then comes up the consideration of 
 property ; and this we divide into, first, real or 
 immovable, as land, and, second, personal, including 
 chattels and contracts ; and every contract famishes 
 a distinct head of law, so that w^e have the law of 
 sale, of loan, of partnership, of bills of exchange, of 
 promissory notes, of suretyship, of insurance, etc. 
 And when we come to the department of injuries, or 
 w^rongs, w^e find it divided in like manner into many 
 different heads, according to the nature of the wrong 
 committed, each of w^hich famishes a distinct subject 
 of investigation, and is treated of in separate books, 
 as the law of libel, the law^ of slander, the law of 
 assault and battery and trespass, the law of collisions, 
 etc. In other words, we find (what, from the nature 
 of law, as we have considered it, we should naturally 
 expect to find) that the analysis of the laws is based 
 upon an analysis of civil society, and the transactions 
 which take place in it. 
 
LECTURE ON LAW. 
 
 245 
 
 IS THE KNOWLEDGE OF LAW, OR JURISPRUDENCE, A 
 SCIENCE ? 
 
 A question often mooted is whether law (meaning, 
 of course, the knowledge of law, or jurisprudence) is 
 a science. If it is a science, it must have some neces- 
 sary and fixed principles, different from the mere arbi- 
 trary regulations of a despotic will, which may be one 
 thing or another, according to the legislator's whim. 
 The knowledge of such an accidental set of rules could 
 certainly never be elevated to the dignity of science. 
 And if law is of that arbitrary and empirical charac- 
 ter, jurisprudence, or the knowledge of law, is clearly 
 not a science. But law is not arbitrary and empirical 
 any more than justice itself is so. Ulpian declares 
 jurisprudence to be " divinarum atqne hatnanarum 
 reram notitia ; justi atque injusti scientia." 
 
 JURISPRUDENCE A SCIENCE, BECAUSE LAW IS A NATURAL 
 OUTGROWTH OF HUMANITY, AND NOT A MERE ARBI- 
 TRARY SET OF RULES. 
 
 In view^ of what has already been said with regard 
 to the nature of law, it seems to me clear that it is 
 one of the natural and inevitable outgrowths of 
 humanity, like language, like the family relation, like 
 clanship ; I do not say like society, because society 
 and law^ are so intimately connected that the hypoth- 
 esis of one is the hypothesis of the other. Justice 
 and right, like truth, are the same in all countries and 
 amongst all peoples ; and as law is the expression by 
 any particular people of its sense of justice, it must 
 have a natural law of origin and growth, similar in 
 all States. Civil society is substantially the same 
 
246 MISCELLANEOUS WRITINGS. 
 
 thing in all countries, and law being the basis and 
 exponent of civil society, must exhibit substantially 
 the same general principles and the same features in 
 all States. Each people may have some peculiar insti- 
 tutions of its own, arising from its peculiar circum- 
 stances or genius ; as, among the warlike tribes of 
 Europe, in the middle ages, land was distributed and 
 held upon the tenure of military service, and was made 
 to descend to the eldest son as the person most capable 
 of performing the service required. Of course, it will 
 be expected that the peculiar genius of a people will 
 find expression in their laws ; but human nature and 
 the great mass of human actions are essentially the 
 same amongst all peoples ; and the dictates of justice 
 under like circumstances are ever the same. Therefore, 
 a system of laws growing out of the experience and 
 exigencies of one people may be adopted with but 
 slight alterations to the experience and exigencies of 
 another. The laws of any State in this confederacy 
 might easily be adapted to the wants of the people of 
 any other State. As a matter of fact, the laws of 
 England were adopted by all the old States and by 
 most of the new ones, subject to such slight alterations 
 as their condition and circumstances rendered neces- 
 sary. And also, as a matter of fact, the laws of the 
 Roman empire have again and again been drawn 
 upon for supplying the imperfect system of English 
 law with those rules of justice and right which had 
 been educed and sanctioned by ages of Roman civiliza- 
 tion. If we once concede that law is the voice of 
 Justice, regulating the affairs of men in civil society, 
 we cannot deny that it is, and must be, based upon 
 uniform and permanent principles, and that it will be 
 
LECTURE ON LAW. 247 
 
 evolved in substantially the same manner, and in sim- 
 ilar formulas, in every community. And such is, 
 indeed, the fact. In hardly any community on the 
 face of the earth is it necessary for a person to 
 be learned in its laws in order to live a peace- 
 able and quiet life ; aU he has to do is to follow the 
 dictates of his conscience, and endeavor to do right, 
 and he will be pretty sure to commit no offence 
 against the laws. If there is one thing that mankind 
 w^ill have it is just law^s. Society can no more subsist 
 with unjust law^s than it can without any laws. Even 
 arbitrary and despotic sovereigns, however lawless 
 themselves, generally take good care that the people 
 shall have the benefit of good laws for the regulation 
 of their domestic affairs. 
 
 Law^, then, being the expression of man's sense of 
 ustice in the regulation of civil society, is not an 
 arbitrary and empirical set of rules ; but is founded 
 upon immutable and eternal principles — ^the immutable 
 and eternal principles of justice and right. It may 
 differ in mere form and detail in different countries ; 
 but it is essentially the same in all wherever civiliza- 
 tion prevails. 
 
 It seems to me, therefore, that there cannot be a 
 doubt that jurisprudence is a science, and one of the 
 grandest sciences upon w^hich the human mind can be 
 employed. At the same time, it must be acknowl- 
 edged that the light of that science is but faintly 
 revealed, and only in obscure glimmerings, to those 
 who do not gaze profoundly into its depths, and 
 acquire that legal insight w^hich only deep study and 
 reflection can give. 
 
248 MISCELLANEOUS WRITINGS. 
 
 THE ELASTICITY AND EXPANSIBILITY OF LAW TO MEET 
 THE GROWING WANTS OF SOCIETY, ANOTHER PROOF 
 THAT JURISPRUDENCE IS A SCIENCE. 
 
 Another proof that law is not an arbitrary set 
 of rules, but is an emanation of human nature, and 
 subject to immutable laws of development, is the fact 
 that it keeps pace with the growth and advancement 
 of society, and expands and adapts itself to every 
 phase of social progress, whether in a moral or a 
 material direction. The law of to-day is as adequate 
 to the w^ants of our advanced social and material 
 condition as the law of five centuries ago was to the 
 restricted life and simpler habits of that period. And 
 this principle of adaptation and expansion is inherent 
 in the nature of law and does not depend upon, and 
 does not generally wait for, specific legislation, though 
 often aided and supported by legislation. It arises 
 from the fact that law is the expression of justice as 
 applied to the transactions of society. As those trans- 
 actions increase and mtdtiply, they constantly demand 
 the application of the rules of justice, or, as it is some- 
 times termed, the extension of old principles (which 
 are nothing but the principles of justice) to their 
 peculiar conditions, and hence arises a new expres- 
 sion of justice and a new rule of law^. For it is a 
 primary and fundamental rule, that law is founded 
 on reason and justice, and that if no exact precedent 
 can be found for deciding a case, it must be decided 
 according to reason and justice and the analogy of 
 previous cases most nearly resembling it. If a new 
 instrument of trade comes into vogue, for example, a 
 promissory note, it will not be long before general 
 
LECTURE ON LAW. 249 
 
 usage and convenience will originate rules and regula- 
 tions as to its use and as to the rights and obliga- 
 tions arising upon it, which the courts (if wise and 
 liberal in their views) will sanction as just and 
 equitable, and w^hich will soon acquire the force of 
 law. If a new mode of conveyance and transpor- 
 tation is invented, for example, a railroad, with its 
 steam locomotives and cars, it will not be many years 
 before, by the judicial application of the principles of 
 justice, already to some degree exemplified in other 
 modes of travel and transportation, a code of railroad 
 law "mil be built up, answerable to all the requirements 
 of the new circumstances. We elder members of the 
 profession have seen this very thing take place in our 
 own time, and could now exhibit to the astonished 
 eyes of our great predecessors, Coke and Hale and 
 Holt, if they were permitted to revisit the earth, 
 almost entire systems of law^ which they never 
 dreamed of as lying in undeveloped germ in the bosom 
 of that common law^ w^hich they loved so well ; unde- 
 veloped then, because the exigencies of society had 
 not yet arisen which required their elimination and 
 announcement. And this is the way that the common 
 law of any country arises and is developed. It is the 
 intellectual form, the specific idea and counterpart of 
 the progress of society. To stop this expansion of 
 the law w^ould be equivalent to stopping the growth 
 and advancement of society, and the very pulse of 
 humanity. 
 
 When this judicial adaptation and expansion of 
 the law^ becomes too slow for the progress of events, 
 or would require too violent a change, the legislature 
 interposes and enacts a new law amendatory of or 
 
250 MISCELLANEOUS WRITINGS. 
 
 additional to the old. Statute law and the natural 
 growth of the common law go hand in hand to meet 
 the new exigencies of life and business that are con- 
 stantly manifesting themselves. 
 
 THE GROWTH OF LAW NOT TO BE SUPPRESSED BY CODES : 
 — USE OF CODES. 
 
 This law of development is universal. No matter 
 w^liat codes may be devised for the purpose of fixing 
 the law, and making it unalterable, in the nature of 
 things it cannot stay fixed. Frederick the Great, of 
 Prussia, was the originator of codes in modem 
 Europe. He supposed that he could settle the law as 
 easily as he could control his legions. He had a con- 
 temptuous regard for lawyers and civilians ; and he 
 directed his Chancellor to draw up a code, in which 
 the whole law^ should be expressed in plain and terse 
 propositions, w^hich might be understood by all, and 
 which w^ould need no lawyer to explain them. Such 
 a code he intended to establish as the perpetual and 
 unchangeable law of Prussia. Accordingly, a code 
 w^as prepared ; but its imperfections prevented its 
 adoption in Frederick's day. It was only adopted in 
 the reign of his successor, after providing for the appli- 
 cation of the principles of justice to new cases that 
 might arise. This is the famous Landrecht of Prussia, 
 which has produced innumerable commentaries for its 
 explanation and application, and which, with all its 
 pretensions, could not stop the progress of law, any- 
 more than it could stop the progress of human affairs. 
 
 The Civil Code of France was adopted in 1804, 
 
LECTURE ON LAW. 251 
 
 and at this day there are probably a thousand vol- 
 umes of adjudged cases and commentaries on the code, 
 ■which have all to be consulted in order to know what 
 the law really is. 
 
 Codes are undoubtedly useful for the purpose of 
 settling disputed and doubtful points, and giving to 
 the citizens the ordinary rules of law in a compact 
 and intelligible form ; but they should not be allowed 
 to usurp the prerogatives of justice itself, seated in 
 man's bosom, by giving to the letter of the code the 
 inexorable fixity of a statute, and thus reducing the 
 exposition of the law^ to a question of philology and 
 verbal criticism, instead of a question of reason and 
 justice. Used as a statement of principles and rules 
 applicable to cases clearly within their scope, and not 
 as restraints upon the judge in reference to other cases 
 w^hich are not provided for, and which require a new 
 application of principles, i. e., the principles of right 
 and justice governing analogous cases, codes may not 
 only be admissible, but may be of great service in 
 systematizing and perfecting the law. They should 
 never be employed for the purpose of giving to the law 
 a cast-iron fixity of form, and thereby repressing all 
 progress and imposing a deleterious and smothering 
 restraint upon society itself 
 
 THE ROMAN LAW NOT A CODE, AS OFTEN SUPPOSED. 
 
 It has been supposed by some that the Roman law, 
 as it has been transmitted to us, being in writing, is 
 in the form of a code ; but this is a mistake. The 
 Roman, like the English and our own law, consisted 
 of comom aud statute law. The former w^as a 
 growth of time, exactly like that of England, with 
 
252 MISCELLANEOUS WRITINGS. 
 
 small beginnings, and gradually expanding to meet the 
 wants of civilization. It was fotmded on old consti- 
 tutions, on the Twelve Tables, on Plebiscita, Senatus 
 Consulta, edicts of the Prjetors, responses of the 
 juris-consults, Imperial rescripts, and long usage and 
 custom. The only codes ever adopted in Rome were 
 the Twelve Tables, adopted about 450 years before 
 Christ, and the Perpetual Edict of Hadrian, adopted 
 131 years after Christ, 400 years before the time of 
 Justinian. The Edict, like the French Code, was the 
 occasion of innumerable books of commentaries ; 
 and it w^as in these commentaries, and other treat- 
 ises on the law composed by the great juris- 
 consults of Rome, that the common law of Rome was 
 to be found. A great body of statute law grew up 
 at the same time, consisting mostly of Imperial Con- 
 stitutions. The two made up the whole law of Rome. 
 Justinian appointed a commission of able lawyers, 
 with Tribonian, his Minister of Justice, at its head, to 
 make, not a code, but a digest of the writings of the 
 juris-consults, which had much the same authority as 
 our volumes of adjudged cases. This was done by 
 making extracts from the best writers, and arranging 
 them into a system, under different heads or titles, and 
 dividing the whole into fifty books. This is the Digest, 
 or Pandect, equal in bulk, if translated, to about three 
 volumes of Bacon's Abridgment, w^hich it resembles 
 more in character than any other book of our law^. 
 It contains the common law of Rome in the verj- 
 words of her great jurists, w^ith all their reasonings 
 and illustrations ; and if we except the Holy Scrip- 
 tures, it is the greatest monument of wisdom which 
 antiquity has bequeathed to us. 
 
LECTURE OK LAW. 253 
 
 The next work of Justinian's Commissioners was 
 what is called the Code (Codex) ; but it is not a code 
 in our sense of the word ; it is a mere compilation of 
 the existing statutes of the empire arranged in sys- 
 tematic order, according to the plan of the Digest, and 
 divided into twelve books. 
 
 The Institutes is a small book altered from the 
 Institutes of Gains (which had been in use for four 
 hundred years) and prepared for the use of students. 
 It is divided into four books, and contains a summary 
 of the law exhibited in the Digest and Code. 
 
 The Novels, or novellae constitutiones, axe later 
 statutes, mostly adopted during the reign of Justinian, 
 for supplying deficiencies found to exist in the Digest 
 and Code, or making amendments in the law. One of 
 these novels, the 118th, is celebrated as being the law 
 from w^hich our statute of distribution of the personal 
 estates of deceased persons w^as taken. 
 
 These four works, the Digest, Code, Institutes and 
 Novels constitute the Corpus Juris Civilis of Rome. 
 They exhibit precisely the same characteristics pre- 
 sented by our own laws as regards the gradual 
 growth and progress of the law, and its adaptation 
 to the changing circumstances and conditions of 
 society. 
 
 It is to be hoped that you will some day make the 
 acquaintance of this splendid system of law, not 
 merely as a matter of curiosity, but as the source and 
 fountain from which much of the common law has 
 been drawn, as well as an inexhaustible storehouse of 
 principles, rules and distinctions, which are succeptible 
 of constant application to the circumstances of modem 
 societv, and the knowledge of which will be of signal 
 
254 MISCELLANEOUS WRITINGS. 
 
 advantage in the pursuit of your profession. Hitherto 
 these magnificent monuments, except the Institutes, 
 have remained untranslated into English, although 
 the civilians of Oxford and Cambridge are now begin- 
 ning the herculean task. But to read them in their 
 original terse and forcible Latin will, of itself, be 
 accompanied with the great advantage of perfecting 
 your familiarity with that tongue, which an accom- 
 plished lawyer cannot well be w^ithout. 
 
 But my object in referring to the Roman law is to 
 show that it is not, as some have supposed, an excep- 
 tion to the general rule, that law^ is an outgrowlh of 
 human nature, and is subject to immutable law^s of 
 development according to the progress and necessities 
 of civil society. From this general character of law, 
 as before stated, I deduce an additional argument to 
 those already advanced, that the knowledge of law, 
 or jurisprudence, may justly be called a science. 
 
 AS A SCIENCE THE LAW CAN ONLY BE ACQUIRED BY LONG 
 AND PATIENT STUDY. 
 
 But it is necessary to warn you that as a science 
 it is not to be acquired in a day, nor in a year, but 
 only by the " lucubrationes riginti annorum." As in 
 the creation, we may suppose that the light of the 
 stars did not all burst upon man at a single moment, 
 but came upon him from their distant chambers in 
 successive beams one after another, according to their 
 recondite stations in space ; so in the study of law, 
 one great principle after another comes to the yearn- 
 ing mind, and overspreads it with light and gladness ; 
 and many long yeai's may elapse before one can feel 
 that he has really mastered the law, and fuller obtained 
 
LECTURE ON LAW. 255 
 
 that "gladsome light of jurisprudence," spoken of by 
 Lord Coke. There may be one or two men in a gen- 
 eration, of startling genius, who by some natural 
 inspiration or instinct, become great lawyers at a 
 bound and achieve a glorious career without any great 
 study or seeming effort. But they appear like the sum- 
 mer tornado, without observation or premonition. 
 They are a law unto themselves alone, and furnish no 
 guide or example for others. Ordinary men are not 
 thus inspired ; it will not be safe for you to hope for 
 any such inspiration. You must calculate on travel- 
 ling the old dusty road which we have all travelled 
 before you. You must look forward to hard toil and 
 slow and steady acquirement. Unless you can make 
 up your mind to this, you had better undertake some 
 other pursuit. I do not wish to discourage you, but 
 to set before you the truth. The reward of persever- 
 ance is sufficiently splendid to give you courage and 
 hope ; but you cannot expect to reahze it for many 
 years to come ; and those must be years of labor and 
 study and patient expectation. 
 
 SOME SUGGESTIONS ON THE MODE OF STUDYING LAW. 
 
 It would be out of place for me to attempt to 
 prescribe for you a routine of studies ; your learned 
 and able professors are much more competent to do 
 this than I am. But I may, without impropriety, 
 make a suggestion or two as to the mode and manner 
 of study which seem to me to be entitled to your 
 consideration. 
 
 Of course the matter and substance of your text 
 books are to be fully mastered and impressed upon the 
 memory. This is taken for granted. The best mode 
 
256 MISCELLANEOUS WRITINGS. 
 
 of doing this undoubtedly is the constant use of the 
 pen in making full abstracts, and often reviewing 
 what is thus written, as well for the purpose of aid- 
 ing the memory as for that of getting a clear view 
 of the subject in all its relations. But what I would 
 particularly impress upon you is the habit of master- 
 ing the language and forms of expression of your 
 author. In mathematics a mental conception of signs 
 and diagrams is chiefly important in the acquisition 
 of geometrical truth ; the exact language of the propo- 
 sitions and demonstrations is not of vital import- 
 ance. A mathematical professor will be satisfied with 
 his student if he finds that he comprehends the math- 
 ematical ideas, without scrutinizing his style of expres- 
 sion. But it is not so in the law^. Here it is not only 
 necessary to know the rule, but to know how to express 
 it in appropriate language. There is no science in which 
 the words and forms of expression are more important 
 than the law. Precision of definition and statement 
 is a sine qua non. Possessing it, you possess the law ; 
 not possessing it, you do not possess the law^, but 
 only the power of vainly beating the air writh uncer- 
 tain words which impress nobody, instruct nobody, 
 convince nobody. In the law all the knowledge in the 
 world without the power of expressing it in apt 
 formulas and correct diction, is useless to the possessor. 
 This language may seem hyperbolical, but it is true. 
 A lawyer without the power of clear and accurate 
 expression is like a seventy-four gun ship grounded on 
 a sand-bar, unwieldy, unmanageable, and the easy 
 victim of any small craft of the enemy that happens 
 to be abroad. I wish this sentence could be deeply 
 lodged in your minds, to wit : It is of the utmost 
 
LECTURE ON LAW. 257 
 
 importance to a student of the laws to acquire 
 besides a knowledge of the law itself, the power of 
 expressing it in correct and appropriate language, 
 such as is found in books of authority. For coiTect 
 and appropriate diction is as necessary to the lawyer 
 as a knoAvledge of the law. 
 
 Some men have a natural gift of recalling the exact 
 language of the books they read and master. Their 
 word memory is exceptional, sometimes almost mirac- 
 ulous. But there are few who are thus gifted, and to 
 most persons it is a laborious task to store up in their 
 minds the accurate terms, phrases and definitions of 
 the law^. The treasure to be secured, however, is 
 worthy of the greatest pains. 
 
 Perhaps one of the best aids to the accomplishment 
 of w^hich I speak is to choose some author of pure 
 and accurate diction, and make his works a vade 
 mecum, until you have become so familiar with its 
 contents that, although not absolutely committed to 
 memory, the words and forms of expression will 
 spontaneously suggest themselves whenever you begin 
 to speak or write on the subject. Of course, there 
 can be no doubt what book should be chosen for 
 this purpose. There is nothing to compare with the 
 Commentaries of Sir William Blackstone in complete- 
 ness of scope, purity and elegance of diction, and 
 appositeness, if not always absolute accuracy, of 
 definition and statement. One of the greatest, if not 
 the greatest of forensic speakers, as ■well as lawyers, 
 that I ever knew, was the late Mr. George Wood, of 
 New^ York — ^in his early days a leader of the Bar of 
 New Jersey. His discourse to the Court was always 
 grave, dignified and commanding ; his diction was 
 
258 MISCELLANEOUS WRITINGS. 
 
 chaste and pure, and his style was rich in correct 
 legal phraseology ; so that he seemed, when speaking, 
 to be the personification of the law itself. He made 
 no gestures, and but few references to authorities ; he 
 did not need authorities ; you knew, as he spoke, that 
 what he spoke was the law. All was reduced to such 
 plain and simple principles, and enforced with such 
 logical clearness of argument, in the chastest as well 
 as the richest and most appropriate legal diction, 
 that he compelled the closest attention and carried 
 conviction along -with him to the end. I have often 
 hung upon his lips with chained attention, even 
 when opposed to him in the case, and can truly 
 say that I never enjoyed a greater intellectual treat 
 than in listening to his arguments. Now, I happen 
 to have heard from one of Mr. Wood's contemporaries 
 an account of the method which he pursued for 
 acquiring his wonderful command of choice juridical 
 diction. 
 
 It was his custom for many years, in the earlier part 
 of his professional life, w^hen not overburthened with 
 business, to read a chapter of Blackstone of a morn- 
 ing and then to take a long w^alk, and repeat to him- 
 self all that he cotild remember of what he had read, 
 even to the very words and phrases in those parts 
 that were important, such as definitions and the like. 
 If not satisfied with the first trial, he would repeat 
 the process on the succeeding day, and in this manner, 
 chapter after chapter, he went through the commen- 
 taries, until they were so perfectly mastered, both in 
 matter and form, that he became almost a w^alking 
 commentary himself. 
 
 His case illustrates the oft repeated injunction, to 
 
LECTURE ON LAW. 259 
 
 "Beware of the man of one book." This injunction 
 is based on a truth of much importance to the profes- 
 sional student. Perfect familiarity, perfect mastery of 
 any one good book is a mine of intellectual wealth 
 not merely, not so much, for the matter which is thus 
 made one's own, as for the vocabulary, the diction, 
 the style and manner of expression which is mastered 
 and indelibly fixed in the mind. How many pulpit 
 orators, and even secular speakers, have become noted 
 for their eloquence by their familiarity with, and 
 ready use of, the language of sacred scripture ! And 
 when the one book mastered in this way is such a 
 book as Blackstone's Commentaries, it is easy to com- 
 prehend what power and beauty may be acquired and 
 laid by for future use in the display of forensic elo- 
 quence. 
 
 This method of constant and repeated study of 
 a few^ good books, gives one also a firm grasp of the 
 principles of the law, as well as of the forms of 
 expression. The particular books are not essential, if 
 they are good books, and by authors of original 
 authority. When a student at law I took up, out of 
 the regular course, Gilbert on Evidence, the original 
 edition, a small book, but full of principles and grounds 
 of the law, after the manner of the great Chief Baron. 
 I studied it carefully over and again, and I believe 
 that I derived as much benefit from that little old book 
 as from any I ever read, except, perhaps, Stephens on 
 Pleading, which I studied in much the same manner. 
 I conclude that it was not so much the particular 
 books, as the manner of study, which produced a 
 beneficial result. 
 
 Another branch of reading, not comprised in the 
 
260 MISCELLANEOUS WRITINOS. 
 
 regular course, and which is productive of the greatest 
 benefit, is that of great leading cases in the reports— 
 here and there one — like that of Twyne's Case and 
 Shelley's Case, in Coke, Coggs v. Bernard, in Lord 
 Raymond, Miller v. Race, in Burrow, etc., not forget- 
 ting the great Constitutional cases decided in this 
 country, in which Chief Justice Marshall delivered 
 those profound opinions which have immortalized his 
 name. The careful reading of a case — the whole of it — 
 including the arguments of counsel, will enlarge one's 
 knowledge of the law, strengthen the understanding 
 and famish a key to the methods of juridical discussion 
 in the courts. 
 
 THE STUDENT OF LAW MUST BECOME ACQUAINTED WITH 
 THE STRUCTURE OF CrVTL SOCIETY, AND WITH HUMAN 
 AFFAIRS AND BUSINESS. 
 
 But if I have succeeded in my object, I have im- 
 pressed upon you the conviction that the law is not 
 to be studied and learned like a dead language, in 
 books only ; but that it is a living subject, embodied in 
 and sustaining that civil society of which you are 
 members, and manifested in its organic form, and in 
 the rules and regulations by which it is ordered and 
 made harmonious and conducive to the greatest 
 human happiness. 
 
 All this may seem to be very common knowledge — 
 almost home-spun truth. But home-spun truths often 
 need to be impressed upon the attention. Their 
 importance is frequently overlooked. One deduction 
 to be drawn from the truth which I have endeavored 
 to present is, the importance, to a student of law, of 
 
LECTURE ON LAW. 261 
 
 having a kno'wledge of aflfairs, a knowledge of civil 
 society, its constitution and doings ; a knowledge of 
 what is taking place around him. He should know, 
 as far as possible, the reason of everything. In other 
 words, he should be wide awake, and, with open eyes, 
 should w^atch this great drama of human life which 
 is being acted in his presence ; and not go dreaming 
 around, with his head down, dwelling only and always 
 upon the metaphysical quiddities of the law. These 
 quiddities may be very good in their place ; but they 
 should not be allowed to absorb the whole attention 
 of the student, and entirely divert it from the fresh, 
 green views presented by that living law which he is 
 to apply to actual life around him, and w^hich he can 
 only understand in its true spirit by a wide and varied 
 knowledge of that life as the material and ground 
 work of civil society. Of what use will it be to him 
 to know all about the British Constitution, for exam- 
 ple, if he does not understand our own Constitution, 
 Federal and State ? Of what use to know the organi- 
 zation of the government and the courts of England, 
 if he does not know that of our own government and 
 courts ? Probably you all know^ the number, the 
 names and boundaries of the counties in your own 
 State ; but do you know what are the officers of each 
 county, and what are their powers ? Can you tell by 
 what authority roads are laid out and bridges are built ? 
 Can you tell by what authority a telegraph pole is 
 erected in front of your door ? Are you acquainted 
 with the powers of the Common Council of the city in 
 which you live ? A man of ordinary good intelligence 
 finds out many of these things without suspecting 
 that he is learning something of the law. He picks 
 
262 MISCELLANEOUS WRITINGS. 
 
 them up from the newspapers, from conversation, from 
 everything that aflfords him information. He is wide 
 awake to what is going on around him. His eyes are 
 open. He takes in knowledge at every pore. So the 
 law student should be. To put it in a homely manner, 
 he should have " an inquiring mind." Ulpian, as before 
 stated, says that jurisprudence is the knowledge of 
 things human and divine, as well as the science of 
 what is just and what is unjust. This is a broad 
 definition, but it is suggestive. The lawyer ought, 
 indeed, to know^ almost everything, for there is noth- 
 ing in human affairs that he may not, some time or 
 other, have to do with. At least, he ought to be 
 acquainted with all those things which go to make up 
 the form and body, the life and order of the society in 
 which he lives. He ought to know its civil institu- 
 tions and their several functions. He ought to know 
 all those things about his country and his State which 
 would enable him to speak intelligently of their insti- 
 tutions, their policy, and their public proceedings. He 
 ought to know^ how ordinary matters of business are 
 transacted ; the forms and meaning of bonds, promis- 
 sory notes, bills of exchange, bank checks, drafts, 
 leases, releases, ordinary deeds, policies of insurance, 
 agreements. He ought to interest himself to learn the 
 actual methods of doing business, not only in private 
 counting houses, in the market and in the exchange, but 
 also in the halls of city. State and Federal legislation. A 
 great mass of this sort of general knowledge and infor- 
 mation can be acquired by one anxious to learn, without 
 interfering with the general course of his studies ; and 
 it will throw great light on his studies. It will often 
 enable him to understand and apply them when other- 
 
LECTURE ON LAW. 263 
 
 wise their use and application would not be recognized. 
 The sort of knowledge to which I refer is largely 
 to be found in the statute-book, and that, however 
 much despised, is a book which ought always to be 
 ■within the student's reach. It should be his vade 
 mecam, not to the exclusion of scientific text books, 
 but as an adjunct and interpreter of them. The 
 statute-book exhibits the actual institutions and regu- 
 lations prevailing in the State at the present time. 
 
 One of the advantages of studying law in the 
 office of a practitioner is the acquisition, to some 
 extent, of the kind of knowledge to which I have 
 referred. The student is there brought in contact with 
 the business world, and the practical application of 
 the law to actual cases. He copies deeds, agreements, 
 documents of every kind, as well as legal papers, and 
 is often charged with business transactions that 
 increase his general knowledge. 
 
 I do not underrate the study of law by scientific 
 methods, as it is pursued in this and other schools. 
 This method of study is of the greatest value. It 
 makes scientific lawyers. It gives general and har- 
 monious views of the law. It awakens an interest 
 for its profound depths. But whilst the science is 
 studied here, its application to the status, the exigen- 
 cies and the w^ants of society may be learned, and 
 best learned, by a study of the living subject itself— 
 civil society — and the transactions that prevail in it ; 
 everything that exists and every thing that passes 
 about one in the social state. 
 
 I have urged this view upon your attention because 
 I have often seen young men settle down into mere 
 book worms of the law, losing their interest in passing 
 
264 MISCELLANEOUS WRITINGS. 
 
 events and -what is going on around them, and thereby 
 becoming unadapted to the active professional duties 
 of the lawyer, which exhibit him in his most useftil 
 character, and bring him the richest rewards. 
 
 THE lawyer's studies FIT HIM TO TAKE A LEADING 
 PART IN THE STATE. 
 
 These considerations lead us to another interesting 
 view of our profession. The subject of the lawyer's 
 studies necessarily makes him intimately acquainted 
 with all the duties of the magistrate, as well as all 
 the duties of the citizen ; with the rules of conduct that 
 actually prevail, and with the wants and necessities 
 of the body politic requiring any change or modifica- 
 tion of these rules. Of course with this species of 
 study and training, no class of the commimity is so 
 well qualified as the law^yer to take a leading part in 
 the affairs of the community, in the making and in the 
 administration of its law^s, and in the execution of the 
 powers of government. It is the legitimate and 
 proper result of his studies and training. This is only 
 true, how^ever, when the lawyer takes a broad and 
 liberal view of his profession, and regards it, as it 
 should be regarded, as ancillary to the promotion of 
 justice and right amongst men, and the general good 
 of the State. The merely technical pettifogger, the 
 leguleius cautus, is more unfitted than other men to 
 counsel and govern the State, because the narrow 
 and incorrect views which he takes of his profession 
 rather lead him astray, to the promotion of mischiev- 
 ous devices and expedients, than to wise and prudent 
 measures. He knows both too much and too little ; 
 
LECTURE ON LAW. 
 
 265 
 
 too much to be modest, prudent and conservative, too 
 little to take wise and enlightened view^s. Hence it 
 often happens, as the result of such unfortunate 
 examples, that a popular jealousy and distrust of 
 lavsryers prevails in keeping them out of places of 
 public trust. 
 
 How important, therefore, it is to themselves as a 
 class, as well as to society at large, that the students 
 of justice and right, should be imbued with the prin- 
 ciples of justice and right, so that the profession may 
 take that high and noble position in the community 
 which, w^hen it is faithful to itself, is its just preroga- 
 tive. 
 
 CONCLUSION. 
 
 The few suggestions that I have made vsrith regard 
 to the range of inquiry desirable in the study of law 
 must not be taken as complete. In a single lecture 
 I can only set forth a few^ things to be acquired or 
 done that strike me as important, and that may not 
 be obvious to the student. There are, of course, 
 many others which I cannot dwell upon, such as 
 general history, the history of the law, legal biogra- 
 phy, poHtical philosophy, political economy, and many 
 more, which the student must in time acquire, in order 
 to become an accomplished lawyer. To sum up all in 
 one word, in order to be an accomplished lawyer, it 
 is necessary, besides having a knowledge of the law^, 
 to be an accomplished man, graced with at least a 
 general knowledge of history, of science, of philos- 
 ophy, of the useful arts, of the modes of business, 
 and of everything that concerns the well-being and 
 intercourse of men in society. He ought to be a man 
 
266 
 
 MISCELLANEOUS WRITINGS. 
 
 of large understanding ; he must be a man of large 
 acquirements and rich in general information ; for, he 
 is a priest of the law, which is the bond and support 
 of civil society, and w^hich extends to and regulates 
 every relation of one man to another in that society, 
 and every transaction that takes place in it. 
 
 Trained in such a profession, and having these 
 acquirements, and two things more (which can never 
 be omitted from the category of qualifications), incor- 
 ruptible integrity and a high sense of honor, the true 
 lawyer cannot but be the highest style of a man, fit 
 for any position of trust, public or private ; one to 
 whom the community can look up as to a leader and 
 guide ; fit to judge and to rule in the highest places of 
 magistracy and government ; an honor to himself, an 
 honor to his kind. 
 
Proceedings at the Organization 
 
 OP THB 
 
 UNITED STATES 
 
 CIRCUIT COURT OF APPEALS 
 
 FOR THB 
 
 THIRD CIRCUIT, 
 
 AT PHILADELPHIA, 
 
 ON TUESDAY, JUNE 16, 1891, 
 AT 12 o'clock, noon. 
 
 The follo-wing Judges -were on the bench : 
 
 Mr. Justicb Bradley, of the Supreme Court of the United States. 
 
 Hon. Marcus W. AcaBSON, Judge of the United States Circuit Court 
 for the Third Circuit. 
 
 Hon. William Butlbr, Judge of the United States District Court for 
 the Eastern District of Pennsylvania. 
 
 Hon. Leonard E. Wales, Judge of the United States District Court 
 for Delaware. 
 
 Hon. Edward T. Green, Judge of the United States District Court for 
 Ne-w Jersey. 
 
 Hon. James H. Reed, Judge of the United States District Court for the 
 Western District of Pennsylvania. 
 
 A large number of the members of the Bar of the Circuit were present. 
 
 MR. JUSTICE BRADLEY SPOKE AS FOLLOWS : 
 
 This being the day appointed for the first meeting 
 of the Circuit Court of Appeals, we have met for the 
 purpose of organizing the Court. According to the 
 Act of Congress, the Court is to consist of three 
 Judges — the Associate Justice of the Supreme Court, 
 together with a Circuit Court Judge and such District 
 Judge as may be assigned for the purpose. 
 
 We have agreed upon a general order, which I will 
 read and which will be adopted by the Court. 
 
268 MISCELLANEOUS WRITINGS. 
 
 " United States Circuit Court of Appeals for the 
 Third Circuit, at the City of Philadelphia, this third 
 Tuesday of June, 1891. 
 
 "It is Ordered that, when it shall be necessary in 
 order to make a full court that a District Judge should 
 be assigned for that purpose, the District Judges of the 
 Circuit shall be assigned in rotation according to the 
 date of their commissions respectively, beginning at 
 this present term with Hon. William Butler, the Judge 
 oldest in commission ; and each Judge shall be assigned 
 for an entire term ; and if at any time during the 
 term, two District Judges shall be required, then the 
 Judge next in order to the one already assigned shall 
 be assigned for the purpose ; and so in like manner if 
 three of such Judges shall be required ; and if any Judge 
 assigned to sit in the Court shall be incompetent to 
 sit in a particular case, the Court may assign any 
 other District Judge to take his place for the hearing 
 of such case, and the cases on the docket in which any 
 Justice or Judge of the Court is incompetent to 
 sit may be arranged in a separate docket, to be heard 
 when the Court is properly constituted for the purpose. 
 And if at any time, in consequence of the absence of 
 any member of the Court, an additional Judge is 
 required to make a full Court, the Court may assign 
 and call in any District Judge to sit for the time being 
 in place of the member so absent. 
 
 " It IS Further Ordered, that there shall be two 
 stated terms of this Court in each year, to commence 
 axid be held respectively on the third Tuesday of 
 March and the third Tuesday of September, at the 
 City of Philadelphia. 
 
 " It IS Further Ordered that William V. William- 
 
U. S. CIKCUIT COURT OF APPEALS. 269 
 
 son be, and he is hereby appointed the Clerk of this 
 Court, and that Abram D. Harlan be, and he is hereby 
 appointed the Marshal of this Court. 
 
 "It is Further Ordered that the rules hereto 
 annexed shall be the general rules of the Court." 
 
 This order is agreed to by the other members of 
 the Court, and will be recorded by the Clerk in the 
 minutes. 
 
 It is unnecessary for me to read the general rules 
 adopted by the Court. They are modelled upon the 
 rules of the Supreme Court of the United States, and 
 will be changed should circumstances require. The name 
 adopted for the Court is " The United States Circuit 
 Court of Appeals for the Third Circuit." The terms 
 have already been referred to, two terms a year to be 
 held at this city. I may add that the law constitut- 
 ing the Court authorizes it to be held at other places 
 than Philadelphia, but this being a very compact circuit, 
 and there being always inconveniences attending the 
 removal of the minutes of the Court and in travelling 
 about with the records to other places, it seemed to us 
 best for the public interests, and quite as much for the 
 public convenience, to have the Court alw^ays held 
 here. 
 
 There are two or three rules to which I will call 
 your attention. One is of most interest to members 
 of the Bar, and is as follows : " All attorneys and 
 counsellors admitted to practice in the Supreme Court 
 of the United States, or in any Circuit Court of the 
 United States, shall become attorneys and counsellors 
 of this Court on taking an oath or afBrmation in the 
 form prescribed by rule of the Supreme Court of the 
 United States, and on subscribing to the rule, but no 
 
270 MISCELLANEOUS WRITINGS. 
 
 fee shall be charged therefor, and all attorneys and 
 counsellors of the Circuit Court of the United States 
 for the Third Circuit shall be attorneys and counsellors 
 of this Court without taking any further oath." 
 
 Therefore the attorneys and counsellors of the 
 Circuit Court may consider themselves as attorneys 
 and counsellors of this Court. It would be a useless 
 ceremony to require a further oath or affirmation 
 from them. 
 
 There are rules with regard to bills of exception. 
 Of course, these will be in the hands of the attor- 
 neys and will be carefully examined by them. 
 
 The rules which are here appended are adopted by 
 the Court, and they will be recorded in the minutes. 
 
 Mr. Justice Bradley then administered the oath to 
 William V. Williamson, Clerk, and to Abram D. Har- 
 lan, Marshal. 
 
 Mr. Justice Bradley then spoke as follows : 
 
 It must he conceded that the organization of this 
 Court and similar Courts in the other circuits is a 
 very important event in the history of the jurispru- 
 dence of the United States. This Court is clothed 
 by the statute creating it with a large portion of the 
 appellate jurisdiction heretofore exercised by the 
 Supreme Court, and, in some cases, in fact, in the 
 majority of cases, the decision of this Court is to be 
 final, with the exception of the right of the Court 
 to certify any questions of law to the Supreme 
 Court for its instruction, and with the further excep- 
 tion that if this Court does not make such certificate 
 when it is applied to for it, the Supreme Court may 
 issue a certiorari to this Court requiring causes to 
 be certified to it for hearing on appeal. This last 
 
U. S. CIRCUIT COURT OF APPEALS. 271 
 
 power given to the Supreme Court will probably be 
 a cause of considerable anxiety to that Court, for, 
 in most of the cases where this Court shall refuse to 
 grant a certificate, application will probably be made 
 to the Supreme Court for a certiorari, unless by the 
 consideration and fair judgment of counsel the multipli- 
 cation of such applications is avoided. 
 
 The cases in which the decision of this Court is 
 to be final are, first, all the cases that arise under 
 the State laws, that is to say, all the cases in which 
 the jurisdiction of the Federal Court depends on the 
 citizenship of the parties. In all such cases it is the 
 State law that applies, and not the Federal law. 
 Heretofore that department of the jurisdiction of the 
 Supreme Court has been very extensive, and com- 
 plaints have sometimes been made that the Supreme 
 Court has not followed the line of decisions of the 
 State Courts, which are generally the primary expo- 
 nents of the State law. I think, however, that the 
 Supreme Court has generally, if not always, mani- 
 fested a strong desire to follow the lead of the State 
 Courts with regard to State jurisprudence where it 
 could do so without what appeared to it an obvious 
 departure from sound law. The rule by which the 
 Federal Courts are governed in this respect was 
 attempted to be laid down by the Supreme Court 
 in the case of Burgess v. Seligman, in which it w^ag 
 held that where the local law had become settled 
 by a reasonably uniform line of decisions, the Federal 
 Courts would not, and indeed could not, depart from 
 them, because it is their duty to administer the law 
 as it is, and the law, when it has become settled by a 
 course of decisions in the State Courts, must be 
 
272 MISCELLANEOUS WRITINGS. 
 
 accepted according to those decisions. But -where the 
 State Courts have not come to any definite conclusion 
 upon a particular point of law, or where there have 
 been vacillating decisions on the subject, the Federal 
 Courts have felt it to be their duty and their preroga- 
 tive to judge for themselves what the State law is, 
 because the clause of the Constitution which extends 
 the judicial power of the Federal Government to con- 
 troversies between citizens of different States was 
 intended to give them an impartial tribunal for the 
 decision not only of the facts, but of the law ; and, 
 therefore, it is the duty of the Federal Courts to 
 judge for themselves what the law is in all cases 
 where they have jurisdiction by virtue of the divers 
 citizenship of the parties, as well as in other cases. 
 
 Now, this Court will be the tribunal for the final 
 determination of all such cases, unless questions arise 
 which the Court may deem it right and proper to 
 certify to the Supreme Court for its instruction ; and 
 it will undoubtedly be governed by the same principles 
 which have been adopted and followed by that Court. 
 
 The finality of the decisions of the Court is 
 extended, also, to all cases arising under the patent 
 laws, under the revenue laws, under the criminal laws 
 (that is to say, in cases of inferior crimes w^hich cannot 
 be carried dii^ectly to the Supreme Court), and in 
 admiralty cases. These branches of jurisprudence 
 embrace almost all the jurisdiction of the Court. Very 
 little is left of the class of cases that will come to it 
 which can be carried to the Supreme Court except by 
 certificate or certiorari. 
 
 Of course we cannot forecast the rules by which 
 the Court will be governed in making such certificates, 
 
U. S. CIRCUIT COURT OF APPEALS. 273 
 
 but we can say that it ought to be cautious about 
 making them, and counsel ought to be considerate in 
 demanding them, for the Court must, in the end, 
 depend very much upon the Bar for the manner in 
 ■which justice shall be administered. 
 
 I look upon this as a very important period in 
 our history with regard to the administration of jus- 
 tice in the Courts. When we see the turbulence that 
 exists in some portions of the community, people tak- 
 ing the law into their own hands and exercising what 
 is called Lynch law, without reference to the Courts of 
 Justice or to the Government of the country, it is a sad 
 spectacle to every man who has the good of the 
 country at heart. Why is it ? Does it arise from the 
 nature of our population or government, or does it 
 arise from defects in the administration of justice by 
 the Courts ? In my judgment, it is greatly due to the 
 latter. If the laws were administered with firmness 
 and promptness, there would not exist such a strong 
 disposition on the part of the people to take the law 
 into their own hands. There would be two reasons 
 to prevent it ; their fear of the law against themselves 
 for the unlawful act, and the fact that justice would 
 be done by the Courts without their interference. 
 
 How, then, can this evil be remedied by the Courts 
 so far as it depends on their mode of administering 
 justice ? There is only one way, and that is to be 
 more firm and prompt in its administration. We have 
 an example before, us in the administration of justice 
 in England by which we might well profit. There we 
 do not see, as with us, such endless controversies 
 raised out of a particular case and carried through all 
 the Courts. This is not the fault of the Courts alone. 
 
274 MISCELLANEOUS WRITINGS. 
 
 There is ground for condemning the Bar for insisting 
 upon minute points and refusing to accept the decisions 
 of the Courts of first instance, and seeking an appeal 
 to the Court of last resort in every case on every 
 trivial question. The Bar, in justice to itself, should 
 seek reform in this regard. Could such a state of 
 things exist in England ? Assuredly not. The bar- 
 risters of England would feel a blush of shame to 
 carry before the Courts of Appeal such cases as are 
 constantly urged before the Courts of Appeal in this 
 country. Why ? Because there is in them a love of 
 justice created either by their education or their sur- 
 roundings that makes them more regardful of the 
 honor of the Court and their own. 
 
 We can, if we please, through our Bar Associations 
 and other influences, reform this evil, and it ought to 
 be reformed. 
 
 The Courts themselves are not free from blame in 
 contributing to produce the evil complained of. They 
 betray a want of firmness and of loyalty to the 
 demands of justice. In criminal cases they give way 
 too much to their sympathies. They partake too 
 much of the feeling of the community, which, after a 
 time, always sympathizes with the guilty instead of 
 sympathizing with those who have been injured by 
 them. And in civil cases there is often a want of 
 conscientious performance of duty. It not infrequently 
 happens that important cases are submitted without 
 argument, or only formally argued, before an inferior 
 Court, and formally decided by that Court, for the 
 mere purpose of carrying them up to the Court of last 
 resort. This is all wrong. It turns the Court of 
 Appeal into a Court of original jurisdiction. It takes 
 
U. S. CIRCUIT COURT OF APPEALS. 275 
 
 from the inferior Court that sense of responsibility 
 which it ought to possess, and lowers it in the esti- 
 ination of the Bar and the public. Every Court 
 ought to give to each case presented to it as fall and 
 as grave consideration as if no right of appeal existed. 
 This would often, and should much oftener than it 
 does, end the litigation ; and if an appeal is taken, it 
 would give the Court of Appeal the benefit of a fall 
 consideration of the subject by the inferior Court. 
 
 Perhaps in these remarks there is too great an 
 appearance of what might be called judicial scolding, 
 but it seems to me, and it has long seemed to me, that 
 they are founded in truth. 
 
 This Court and the other Courts of Appeal organized 
 to-day are destined to exercise an important influence 
 on the jurisprudence of the country ; for notwith- 
 standing the occasional supervising influence which 
 may be exercised by the Supreme Court, practically 
 these Circuit Courts of Appeal will be the courts of 
 final resort in all cases of Federal jurisdiction, except 
 those directly appealable from the District and Circuit 
 Courts directly to the Supreme Court. 
 
 It w^ill not probably be my lot to continue long in 
 assisting to carry on the business of the Court, but 
 I hope and believe that by the aid of an intelligent 
 and honorable Bar, the Court will be a blessing to 
 this community and to the country. 
 
 I believe we have no business before us to-day, 
 and when we adjourn we shall probably adjourn for 
 the term. Any business required to be done during 
 the vacation can be done by a single Justice or Judge. 
 
 Hon. "Wayne MacVeagh then spoke as follows : 
 
 May it please your Honors : The Bar of this city, 
 
276 MISCELLANEOUS WRITINGS. 
 
 and our brethren of other districts who are to be asso- 
 ciated with us hereafter as practitioners at the Bar of 
 this Court, felt that it was due to testify, at least 
 by our presence if nothing more, the profound inter- 
 est we feel in the Court which has just been organ- 
 ized and the expectation of great good which 
 we cherish from its future history. No assurance 
 of mine of the extent of the interest of the Phil- 
 adelphia Bar in the organization of the Court 
 which has just taken place could equal the assurance 
 given by this very large and representative assembly 
 of its members. And I know I speak for every one 
 of them in saying that they have been thrice repaid for 
 coming here if nothing else had been offered them 
 but the privilege of listening to the remarks of the 
 Associate Justice of the Supreme Court of the United 
 States, who is, by law, the presiding officer of this 
 Circuit Court of Appeals of the United States for 
 the third Circuit. 
 
 There has, indeed, been nothing in what he has said 
 which does not meet with the hearty approval of 
 this Bar, I am sure, except one thing, and against 
 that we enter our vigorous, our united, our earnest 
 protest : that there shall be a long period yet in 
 which justice in this Circuit Court will be adminis- 
 tered, by the favor of God, with his assistance. 
 
 Your Honors may be sure that the Bar of Phil- 
 adelphia has never for a single day since the organ- 
 ization of the Federal Judiciary, been in the slightest 
 danger of undervaluing it. It began its life here. 
 Some of its most illustrious members had previously 
 given the benefit of their learning and character to 
 this Bar. We have contributed to its distinction 
 
U. S. CIRCUIT COURT OF APPEALS. 277 
 
 and honorable histoty ; and in all that long period 
 of more than a hundred years there has never been an 
 hour when a member of the Federal Judiciary con- 
 nected with the administration of justice in this Circuit 
 has not had, not only the respect, but the affectionate 
 reverence of the members of the Philadelphia Bar ; and 
 they quite agree with Mr. Justice Bradley in thinking 
 that there never were days in the past more likely to 
 ascertain and establish the tdtimate value of the Fed- 
 eral judicial system than the days of the immediate 
 future. And w^e know^ very w^ell that if justice is to 
 be adtninistered in America hereafter to the satisfaction 
 of the great body of our fellow^-men, it must be prompt 
 and certain and pure, all within reasonable limits of 
 human infirmity, and that in the securing of such 
 promptness and certainty and purity, the Bench must 
 almost entirely rely upon the Bar; and, for one, I 
 have no doubt that the Bar will answ^er the demand 
 upon it in the future as it has answered it in the past. 
 No doubt, in the hurry and turmoil of professional 
 business, we have fallen away somewhat from our 
 former high estate. We are more commercial and less 
 judicial ; we are not quite up to the standard even of 
 our own selves of thirty years ago ; but that is because 
 in the great material development of a great and 
 growing country, standards not quite as worthy as 
 the old ones have, to some extent, displaced them. 
 That is only a passing phase of American history, 
 and will disappear with other evils which have marred 
 our progress. As that phase disappears, the members 
 of the Bar of America will be w^orthy of the illustri- 
 ous names which gave such distinction to its past his- 
 tory ; and, in the meantime, speaking for the Bar, 
 
278 MISCELLANEOUS WRITINGS. 
 
 may I venture to suggest that there is one way in 
 which the Bench can greatly help us to be more w^orthy 
 of our opportunities and our traditions ? and that is 
 by a little more endeavoring to recognize us as barris- 
 ters, and a little less regarding us as attorneys only. 
 If you would think of us a little more as we really 
 are, your brothers, sworn to the same fealty to justice 
 as you are, w^hose time is as valuable to us as yours 
 can be to you, w^hose opportunities of knowing -when 
 and how justice can be properly administered are at 
 least as great in any particular case which we have 
 studied long as yours can be hearing of it at the moment. 
 If you will only consider that a lawyer is a sw^om 
 oflScer of justice and not likely to disregard his oath, 
 and that, therefore, when w^e come before you, the 
 humblest and the youngest, especially the humblest 
 and the youngest, we ask you to receive us upon the 
 presumption that we will not waste a moment of 
 your time or of our own ; that w^e w^ill not trifle with 
 any of the rights belonging to anybody else any more 
 than we will willingly suffer our own to be betrayed ; 
 and that in all ways we are your helpers as w^ell as 
 your brothers in the administration of justice. 
 
 And, then, too, we must ask you occasionally to 
 forget that you are upon the Bench, and to remember 
 that you are living in America and at the close of the 
 nineteenth century, with the telegraph, with the tele- 
 phone, with all the innumerable activities of modem 
 life pressing upon everybody, and, therefore, when no 
 lawyer competent for important legal business can 
 always be at your call. He wishes to be, but if in 
 any important question he is competent to advise you, 
 he owes his first allegiance to the Supreme Court of 
 
U. S. CIRCCIT COURT OF APPEALS. 279 
 
 the United States ; he owes his second allegiance, in 
 my theory, to the Supreme Court of his own State ; 
 and his third allegiance he owes, I admit, to the Cir- 
 cuit Court of Appeals for the Third Circuit. Now, if 
 you will recognize the order of these obligations, and 
 if you will have patience w^ith us, we will endeavor 
 to be a little more worthy of your confidence and 
 regard. 
 
 I listened with great pleasure to what Mr. Justice 
 Bradley said when contrasting the English Bar with 
 ours ; but I could not help thinking while he w^as 
 speaking, that a recent judicial experience in England 
 could have no parallel here. We have no court of 
 justice, which, if any man was on trial for his honor, 
 could be changed into a pleasure ground, as was done 
 there ; and no ladies, high bom or otherwise, would 
 be allowed to amuse themselves w^hile a tragedy was 
 being enacted which possibly w^as to doom many 
 people to misery and one to dishonor. And yet we 
 have many things to learn here ; many changes we 
 hope to make ; many improvements we hope to wit- 
 ness. In them all we will never lose sight of the 
 inexpressible debt of gratitude we owe to the Federal 
 Judiciary, for to it we signally owe, in my judgment, 
 and especially in the last twenty-five years of its his- 
 tory, the final establishment of the true doctrine that 
 the American Government is "an indestructible Union 
 of indestructible States." That Court and this Court 
 and our own State Courts will all, I trust, in the 
 future as in the past, continue to teach the American 
 people the one lesson they need always to gamer in 
 their hearts— and that is, that the only liberty worth 
 having is liberty regulated by law. 
 
280 MISCELLANEOUS WRITINGS. 
 
 Hon. Anthony Higgins, Senator of the United 
 States from Delaware, then spoke as follows : 
 
 With submission to your Honors, I have been 
 requested to say a word on this interesting occasion 
 on behalf of my brethren of the Bar of the District 
 of Delaware, some of whom are here in person, to 
 testify to that deep interest which all feel on this 
 most important occasion, one which has been truly 
 said by his Honor, Judge Bradley, to be an event of 
 the first moment. 
 
 It will not be out of place to recall a w^ord of the 
 history of the enactment of the statute under which 
 this Court has been organized. As the bill passed the 
 House of Representatives, it was structurally different 
 from its final shape. The Judiciary Committee of the 
 Senate entertained profound differences of opinion as 
 to the true form that the act shotdd take, and it ended 
 in being left substantially with Mr. Evarts and Mr. 
 Hoar to determine what that should be, and especially 
 to Mr. Evarts ; and the bill in the shape as they 
 approved of it with the minor amendments w^as 
 adopted by the Senate, and then through circum- 
 stances that are measureably obscure and need not 
 farther be referred to, final action was postponed until 
 a few days before the end of the session, when the 
 only possibility of the bill becoming an act rested in 
 the adoption of the bill as it passed the Senate by the 
 House, and in that form it was passed, and so it 
 came about that this most important act received its 
 final shape from the hands of one of the most emi- 
 nent members of the American Bar. 
 
 The action thus at last taken by the Government 
 for the relief of the suitors in its Courts was in 
 
U. S. CIRCUIT COURT OF APPEALS. 281 
 
 great measure due to the agitation of the subject 
 by the American Bar Association, upon whose com- 
 mittee were, among others, Mr. Francis Rawle, of 
 Philadelphia, and Mr. George H. Bates, of Delaware ; 
 and a large part of this honorable effort was made 
 by other members of the Bar of this Circuit, who 
 w^ere upon the committee in charge of it, and espec- 
 ially, Hon. Henry Reed, and Mr. Samuel G. Thomp- 
 son, of Philadelphia. 
 
 The idea that impresses me most to day is that, 
 during the judicial history of this country, the Supreme 
 Court of the United States has discharged the great 
 function of being the governor, the directing agency, 
 in the final determination of the law on that wide 
 scope of commercial and other questions, questions 
 not of Constitutional law, which have now been 
 taken from that jurisdiction and conferred upon the 
 Circuit Courts of Appeal. The momentous considera- 
 tion resting before the members of these Courts 
 throughout the country is that this great function, 
 this great discretion, this great power, is now vested 
 with them very largely, subject, of course, to cases 
 being carried by certificate to the Supreme Court either 
 upon the initiative of the Circuit Court or by the order 
 of the Supreme Court itself, but as that can only 
 happen in a few cases in the substantial administra- 
 tion of justice, this great power is now w^ith this 
 Court. 
 
 As we look back over one hundred years, and in our 
 imaginations bring up the day when the Supreme Court 
 was first organized, and then go along through these 
 hundred years and realize that the history of America, 
 more than in the story of its politics, of its wars, of 
 
282 MISCELLANEOUS WRITINGS. 
 
 its territorial aggrandizement, has been in the judicial 
 evolution of its domestic and Constitutional law, we 
 stand with reverence here to-day at the opening of this 
 new chapter of our national and our judicial history, 
 and I can only speak for myself and my brethren of 
 this Bar in our feeling of absolute confidence in the 
 honor, in the capacity, and in the respect for the great 
 traditions of the law, that we feel are held by the 
 members of this Bench. 
 
 Mr. Justice Bradley then adjourned the Court until 
 the Third Tuesday of September, 
 
THOMAS HOBBES. 
 
 Bom at Melmesbury, April 5, 1588. Died Decem- 
 ber, 1679, in his 92d year. 
 
 I bought his -works December, 1879. For his auto- 
 biography in Latin, see Vol. I, Latin Works and 
 " Auctarium " thereto by R. Blackboume, and an auto- 
 biography in Latin verse. Also see Appleton's Ency- 
 clopedia of Biography, Art. Hobbes, by Professor 
 Nichol, 1854, highly appreciative. 
 
 Allibone's Diet, of Authors, where is a list of his 
 works, and quotations from a catena of authors 
 respecting Hobbes and his writings. To AUibone, a 
 free-thinker is like a red rag to a bull. 
 
 Hobbes w^as acquainted w^ith Lord Bacon, and 
 assisted him, as Aubrey says Hobbes told him, in 
 taking dow^n his notions, and turning some of his 
 essays into Latin. This must have been about 1620, 
 when Bacon was Chancellor, and Hobbes 32 years 
 old. (Montague's Life of Bacon, Vol. I, p. 257. 
 Note 3 I to life). 
 
 Amongst his friends were also Ben Johnson, 
 Edward, Lord Cherbury, Lord Clarendon, Gallileo, 
 Mersenne, Gassendi, Des Cartes, Selden, Harvey Chil- 
 lingworth, Cowley, Chief Just. Yaughan, Sir W. Dave- 
 nant, Sam Butler, Auth. A. Wood and Aubrey. 
 
 When Bacon's sixtieth birthday was celebrated, 
 22d January, 1620, at York House, Ben Johnson 
 wrote a poem on the occasion, and, no doubt, Hobbes 
 was present. (Montague's Life of Bacon 259). Bacon 
 must have been surrounded by a galaxy of young men 
 
284 MISCELLANEOUS WRITINGS. 
 
 of genius. He liked to have Hobbes' assistance because 
 he could understand him better than the others could. 
 At 20, Hobbes, after graduating at Oxford, went as 
 tutor and companion to the son of Wm. Cavendish, 
 Lord Barkley, afterwards, Earl of Devonshire, and 
 remained in the family for the greater part of his 
 long life. He travelled in France and Italy in 1610 
 with his pupil, and again in 1634 w^ith his son. 
 
 In 1640, after the action of the Long Parliament 
 indicated the approach of the civil w^ar, he returned to 
 Paris and staid their until 1652, part of the time 
 mathematical tutor to Charles II. He returned to 
 England, however, in 1652, because Charles withdrew 
 from him his protection on the appearance of the 
 Leviathan. 
 
 His life in the Devonshire family, when not engaged 
 in the duties of tutor, was spent in study and philoso- 
 phizing in the summer at their country seat, in winter, 
 at their house in London. 
 
 His principal works are : 
 
 Translation of Thucydides, published 1628. 
 
 De Cive, Paris, 1642. 
 
 De Natura Hominis, London, 1650. 
 
 De Corpore, politico, London, 1650, English. 
 
 Leviathan, London 1651. 
 
 De Corpore, 1655. 
 
 De Homine, 1657. 
 
 Liberty and Necessity, 1654. 
 
 Translations of Homer, 1674, 1675. 
 
 Behemoth, 1679. 
 
 And many pieces on Mathematics and Rational 
 Philosophy. He was undoubtedly the most original 
 thinker of England in his time. His style is perspic- 
 
ESSAYS AND HISTORICAL NOTES. 285 
 
 uous and free from ornamentation, exactly suited to 
 philosophical disqtdsition. His notions are regarded 
 as very heterodox, for he acknowledged no authority 
 but reason. 
 
 AGE OF EGYPTIAN CIVILIZATION. 
 
 In the years 1851-1854 Mr. Leonard Homer 
 (brother of Francis Homer), under the patronage of 
 the Royal Society of London, made a series of exca- 
 ■vations across the valley of the Nile in the latitudes 
 of Memphis and HeliopoKs, to discover, if possible, 
 the character and age of the alluvial deposit. He 
 found that the base of the Colossal Statue of Rameses 
 II, which was erected about B. C. 1360, was covered 
 by nine feet four inches of the regular accumulation 
 of alluvium, making for the average from B. C. 1360 
 to A. D. 1854 (or 3,214 years) SVz inches for each 
 century. His excavations near the same spot showed 
 that the deposit of mud below the base of the statue 
 w^as 30 feet, and he found fragments of pottery, and 
 other works of man, to the very bottom. This would 
 indicate the presence of human civilization in the Nile 
 valley for a period of 10,300 years before Rameses II, 
 or 11,600 years before the Christian era ; for 30 feet 
 contains 360 inches, and this divided by 3% inches 
 gives 103 centuries. Homer's Report was published 
 in the Transactions of the Royal Society for the year 
 1858, pp. 53-92. The results are stated in Bunsen's 
 "Egypt's Place in History," Vol. III. Preface, pp. 
 xxiii, etc. 
 
 (See also Baldwin's " Prehistoric Nations," 303). 
 
286 MISCELLANEOUS WRITINGS. 
 
 Bunsen deduces the same result, as to the antiquity 
 of the early inhabitants of Egypt from the form of 
 the Egyptian language as compared with other lan- 
 guages to which it is related. 
 
 For a flippant review of Homer's report in connec- 
 tion with Bunsen's " Egypt's Place in History," see 
 Quarterly Review for April, 1859 (Vol. CV, pp. 230- 
 232, Amer. Ed.), and see Bunsen's reply in Yol. V of 
 "Egypt's Place in History," p. 122. See also "Wil- 
 kinson's Egypt," Vol. I, p. 8, note. 
 
 MACAULAY. 
 
 They say Macaulay w^as not a critic ; that he had 
 great memory, but little of the reasoning faculty-. Is 
 not he the best critic who can analyze without rules ? 
 Who sees through a thing, and reports its essence 
 without taking it up by parts and pieces ? As Carlyle 
 said of Miribeau, " A man not with logic spectacles, 
 but with an eye "; or as Coleridge said of Wads- 
 worth, " His soul seems to inhabit the universe like 
 a palace, and to discover truth by intuition, rather 
 than by deduction." 
 
 The greatest critic of modem times was Lessing, 
 whose logical faculty and power of analysis, as well 
 as healthy, sound judgment, were of the highest order, 
 and whose ideas have laid the fotmdation of the best 
 modem criticism. 
 
ESSAYS AND HISTORICAL NOTES. 287 
 
 HISTORY. 
 
 Macaulay's " History of England " from the acces- 
 sion of James II (1685), which, in its unfinished state, 
 as he left it, extends only to 1700, makes us wish that 
 a complete history of England could have come from 
 his hands. So far as he went, his work is so com- 
 plete, so picturesque, so entertaining, and so instruc- 
 tive, that it has all the charm of romance with all the 
 accuracy of annals. A tolerably continuous history 
 of England and portions of Europe may be made up 
 from his reviews, written in a style equally animated, 
 and perhaps, somewhat more rhetorical. I have made 
 an arrangement of these so as to present in chrono- 
 logical order the periods discussed, with the exception 
 of one on the papal history, which may be regarded 
 as an appendix to the rest. Some of the articles have 
 relation to literature ; but they illustrate the periods 
 to which they relate. Of course, this list does not 
 contain all Macaiday's reviews, but only such as con- 
 stitute monographs on important epochs or leading 
 events in English History. 
 
 Macaulay's historical articles in the Edinburgh 
 Review. 
 
 Review of " History,'' 
 
 Hallam's Constitutional History of Eng' 
 
 land, .... 
 Burleigh and His Times, 
 Lord Bacon, 
 
 Hampden (Memorials of H.), . 
 Milton (Puritan and Cavalier), 
 Cowley and Milton (Dialogue on the 
 
 Rebellion), Essays. 
 
 PERIOD. 
 
 Wkittbn. 
 
 
 1828 
 
 
 Sept. 1828 
 
 Elizabeth, 
 
 Apl. 1832 
 
 James I, 
 
 July 1837 
 
 Charles I, 
 
 Dec. 1 83 1 
 
 Commonwealth, 
 
 Aug. 1825 
 
288 MISCELLANEOUS WRITINGS. 
 
 Period. Wkittek. 
 
 Sir William Temple, . Charles II, Oct. 1838 
 Revolution of 1688, by Mcintosh. (Here 
 
 read Macaulay's history itself). . James II, 1838 
 
 The Spanish Succession, . . William III, Jan. 1833 
 
 Addison, . . , • Anne, July, 1843 
 Atterbury's Life (Encyclopedia Brit., 8th ed,) 
 
 Horace Walpole, George I, Oct. 1833 
 
 Lord Chatham, . . . George II, 
 
 I July 1835 
 ( Oct. 1844 
 
 Frederick the Great, . , George III, Apl. 1842 
 
 Dr. Johnson (Boswell's Life, by "Croker,") George III, Sept. 1831 
 Dr. Johnson, Life in Encyclo. Brit., George III. 
 Lord Clive (Establishment of Indian 
 
 Empire), .... George III, Jan. 1840 
 
 Warren Hastings (Enlargement of do.), George III, Oct. 1841 
 William Pitt. Life (Ency. Brit., 8th Ed.), George III. 
 
 Mirabeau. French Revolution, . George III, 1832 
 
 Barere's Memoirs, . . . George III, Apl. 1844 
 
 Madam D'Arblay, . . . George III, Jan. 1843 
 
 Sir J. Mcintosh, . . . XIX Century, July 1835 
 
 Lord Holland, . . XIX Century, July 1 841 
 
 Leigh Hunt, .... XIX Century, Jan. 1841 
 
 Ranke on the Popes, . . Appendix, Oct. 1840 
 
 Whoever will read these articles, generally more 
 interesting than a novel, keeping before him any com- 
 mon outline School History of England, for the pur- 
 pose of keeping right in dates, reigns and principal 
 events, and personages, will master English History 
 in the most charming way, and will have such strik- 
 ing pictures of those events stamped upon his mind, 
 that he can never forget them. Of course, the formal 
 work quoted at the head of this memorandum should 
 also be read at the proper place, after reading the 
 review on Sir James Mcintosh's History of the Revo- 
 lution. 
 
 I earnestly recommend this course to my children. 
 To it should be added " Green's History of the Eng- 
 
ESSAYS AND HISTORICAL NOTES. 289 
 
 lish people," and " Molesworth's History of England 
 from 1830 to 1874." (Instead of Molesworth, there is 
 now a more entertaining book — McCarthy's History 
 of Our Own Times.) 
 
 For American history, Hildreth's is the most com- 
 plete, as to the time covered by it. After reading 
 Hildreth, Bancroft's more elaborate work, as recently 
 condensed in six volumes, should be read. Bancroft 
 has taken infinite pains to be accurate, and has altered, 
 added and corrected every successive edition. But 
 his work only comes to the close of the Revolutionary 
 war. (1882. It now embraces the History of the 
 Constitution). 
 
 For general history, I still adhere to Tytler; 
 though he must be dull to a young person, and read 
 as a task. How^ever, I know of no other original 
 vrork comparable to his. There is a pictorial " History 
 of the World," in one large, thick volume, which is 
 very full and complete. 
 
 Dr. Russell's Ancient and Modern Europe is very 
 readable and usefal. 
 
 Of course, no person can claim to be inteUigent 
 without reading the great standard works on history 
 v^rhich adorn English literature ; such as Hume, Rob- 
 ertson and Gibbon. Clarendon and Burnet are com- 
 plete as to the seventeenth century, Grote, Ferguson, 
 Merivale on Greece and Rome, and Froude on Eliza- 
 beth, and Allison on the French Revolution, among 
 English writers, and Prescott, Motley and Irving 
 among Americans ; with good translations of Hero- 
 dotus, Thucydides, Polybius, Livy, Tacitus and Csesar 
 among the Greeks and Romans ; and of Father Paul, 
 Davilo, Sully, Voltaire and Thiers among the Italians 
 
290 MISCELLANEOUS WRITINGS. 
 
 and French. Of course, this enumeration is very- 
 incomplete, and does not include many masterpieces 
 which any one laying any claim to scholarship should 
 read and master. 
 
 (Note.— A good consecutive History of England, 
 elegant and entertaining, will be found by reading 
 successively, 1st, Hume ; 2d, Macaulay ; 3d, Stanhope 
 (Anne), Mahon (1713-1783), McKnight and Mc- 
 Carthy). 
 
 CARLYLE'S "FRENCH REVOLUTION." 
 
 Carlyle's " French Revolution," is wrongly entitled, 
 "The French Revolution," a "History," it should 
 have been entitled, " The French Revolution," a 
 "Poem"; not because it is a fiction, or a romance 
 in the sense of fiction, but because its whole frame 
 and cast and filling-in are poetical and nothing else. 
 All it w^ants is the common poetical garb of verse 
 to make it a complete poem in form as w^ell as sub- 
 stance. Look at that incomparable vision described 
 in the fourth chapter of book IV, entitled " The Pro- 
 cession of the States-General." Is there anjrthing 
 more poetic in Homer or Virgil ? 
 
 LELAND ON THE GYPSIES. 
 
 September 12, 1878. 
 
 I have just read Leland's " English Gypsies and 
 
 Their Language," and his article in the Edinbnrgb 
 
 Review on the same subject. He is about to publish 
 
 a vocabulary. His conclusions are, that the Gypsies 
 
ESSAYS AND HISTORICAL NOTES. 291 
 
 were originally pariahs of the Natt and Dom tribes in 
 the West of India, who were encouraged to emigrate 
 to Persia to furnish amusements to the people, and 
 who, being expelled thence for their thieving propensi- 
 ties, moved westward through Armenia, Syria, Asia 
 Minor, Greece and Hungary, to Western Europe. 
 Here they first appeared ia the Hanse Towns A. D. 
 1417. Their language shows traces of the countries 
 through which they passed, though its groundwork is 
 " Hindustani," or an old cognate dialect coming from 
 the " Sanskrit." Many words are pure " Sanskrit," and 
 they still retain many customs, notions, proverbs and 
 sayings that betray "Sanskrit" or "Hindu" origin. 
 The names " Rom " and " Romany," by which they 
 call themselves, Mr. L. thinks, are derived from " Dom," 
 " Dommany," being a mere corruption of pronuncia- 
 tion, common among them. They call Europeans 
 " Gorgios," which may be a corruption of " Georgi"; 
 the first Christians, perhaps, whom they met in their 
 progress westward. And is not their custom of 
 eating the flesh of animals, w^hich have died a natural 
 death, derived from the institutes of Buddhism, by 
 which the killing of animals is forbidden. Driven to 
 great straits for food, may they not have comprom- 
 ised with a principle inherited from of old and deemed 
 it advisable to eat the flesh which had not been killed, 
 but had died from natural causes ? Subsequent inter- 
 course Avith other nations, it is true, may have caused 
 them to forget the original institute, and to eat meat 
 however killed ; but the remaining custom of eating 
 the flesh of animals, dying a natural death, may be 
 indicative of experiences through which they had 
 passed. 
 
292 MISCELLANEOUS WRITINGS. 
 
 STOWE. 
 
 The first settlement in Stowe, Vt., was made by 
 Oliver Luce, April 16, 1794, a mile north of the vil- 
 lage, on the west side of the road leading to Morris- 
 ville, a little south of the fork made by the road 
 that leads to Morrisville and that which continues 
 northerly. 
 
 Oliver Luce was bom in Martha's Vineyard, July 5, 
 1765, and died at Stowe, December 2, 1852. His 
 monument was erected by the town over his grave 
 in the old burying ground. His wife, Susannah, lies 
 buried by his side. She was bom at Plainfield, N. H., 
 March 29, 1764, and died August 9, 1826. Their son 
 was the first child bom in Stowe. Joseph Fuller, now 
 (1875) 82 years old, residing at Stowe Hollow, 
 informs me that he came to Stowe 1809, twelve years 
 of age. At that time there were only three houses in 
 the village, viz.: a log house at the comer, opposite 
 Squire Butler's, a frame house opposite the hotel, and 
 one further down near the Methodist Church. Four 
 farm lots, of one hundred acres each, originally centered 
 
 at a common * ^ point about thirty feet w^est of the 
 
 hotel, thus : s 1 2 1 and 2 belonged to Dr. Thomas 
 B. Downer ; 3, to William Utley ; 4, to Nathaniel Russell. 
 Dr. D.'s monument states that he was bom at Coventry, 
 Conn., in 1773, and died at Stowe, 1851. His lots em- 
 braced the Butler cottage and Sunset Rock, which was 
 called Dr. Downer's ledge. He practised physic at Stowe 
 to the close of his life. When Fuller first came to the 
 place (1809) the grist mill was owned by Asa Ray- 
 mond, w^ho built it. His tombstone states that he 
 was bom at Middlebury, Mass., in 1772, and died in 
 
ESSAYS AND HISTORICAL NOTKS. 293 
 
 1843. Several of the early settlers came from that 
 place. Raymond bought out Caleb George, who built 
 the first mill in the lo-wer village, near where Pike's 
 saw-miU now stands. Lemuel Thomas had built and 
 was running the carding and fulling mill in the lower 
 village. Fuller says Capt. Robinson (now 90 years 
 old) came to Stowe before he did. Mrs. Raymond 
 tells me that Asahel Raymond, a cousin of Asa, built 
 the old hotel, near the present hotel, w^hich still forms 
 one of the back buildings ; and that the present hotel 
 w^as built in 1863, an addition being made in 1874 or 
 1875. Asahel's sons conducted it a while after his 
 death, and then sold out to the Mount Mansfield 
 Hotel Co., got up by Bingham and others. A man 
 by the name of Peter C. Lovejoy built the brick 
 hotel below (now owned by the company), which was 
 afterwards purchased by a Mr. Churchill and converted 
 into a tavern. Churchill formed the design of a road 
 to the top of the mountain, and an auxiliary hotel 
 there, and commenced the work, but, failing in busi- 
 ness, his property w^as sold under mortgage and pur- 
 chased by the Mt. Mansfield Hotel Company. She 
 says that Bingham (W. H. H.) was brought up by 
 Asa Raymond and studied law^ with Mr. Butler and 
 became Raymond's executor, who left half of his estate 
 to the Methodist Church, the other half to his wife's 
 relations. Mrs. Raymond's husband was a nephew, 
 and son of William Raymond. Asa left no children. 
 Bingham's mother and Mrs. Bingham's mother (she 
 was Alice Camp) were sisters of Capt. Robinson. 
 
294 MISCELLANEOUS WHITINGS. 
 
 HISTORY OF WASHINGTON PARK, NEWARK, N.J. 
 
 The mistake made by those who claim Washington 
 Park for a market place is in supposing that it was 
 a gift from the Proprietors to the town. It was no 
 such thing. The patent of December 10, 1696, grant- 
 ing to the town the "training place," the "market 
 place," the "watering place," the " burying ground," 
 the "parsonage lands" and "all the streets of the 
 town," was dated thirty years after the settlement of 
 the town, and after all these portions of land had been 
 laid out and set apart by the town people themselves. 
 The Newark settlers bought the land from the Indians 
 with the license of the Proprietors, and laid out the 
 city and outlands to suit themselves. After they had 
 been several years in possession, the Proprietors set 
 up a claim to quit-rents, and denied that the people 
 had any title. The controversy lasted a long time 
 and w^ith great acrimony. Finally, the people, one 
 by one, in order to have no doubt resting on the 
 title of their lands, began to take patents (no quit- 
 rents, however), and as this w^as an admission, in form, 
 that the title must emanate from the Proprietors, the 
 latter were satisfied to get out of the scrape in that 
 way. Near the end of the century, it was also 
 thought best to have a sw^eeping patent for the general 
 balance of land that belonged to nobody in particu- 
 lar ; and hence the patent of 1696 to trustees named 
 by the town. 
 
 This historical review evinces this fact ; that the 
 common lands (embraced in the patent) belonged, in 
 truth, to the town, as much after as before, and as 
 much before as after, the grant, and, when not affect- 
 
ESSAYS AND HISTORICAL NOTES. 295 
 
 ing private rights, such as adjacency to streets and 
 highways, the town could dispose of them for such 
 purposes as it saw fit. The action of the town has 
 always been in accordance with this view. The 
 w^atering place which lay on the south side of 
 Market street between Harrison street and the 
 foot of the hill, and extending nearly to WiUiam 
 street, but somewhat gore shaped, being no longer 
 needed for its original use, was left out and finally 
 sold to the tanners of the town for the location 
 of the tanneries ; and in that way has contrib- 
 uted immensely to the prosperity of the town. The 
 burying-ground, not being all needed for that purpose, 
 and the north-east comer being a pond, or marsh, 
 and unstiitable for it, the town and church let out 
 lots around the margin, w^hich greatly benefited the 
 appearance of that part of the town, multiplied busi- 
 ness facilities, and contributed to the public finances ; 
 without any public detriment. The court-house and 
 jail were erected on lots granted to the county along 
 Broad street, south of the old church, which stood 
 about where the engine-house now is, and neat and 
 tasteful stores w^ere erected between the meeting-house 
 and Market street. Nobody was injured ; the town 
 w^as benefited ; the public good was furthered. Then 
 the training place, being no longer wanted for that 
 use, as there w^ere hundreds of places in the vicinity 
 much better fitted for it, was converted into a public 
 park, and planted with the beautifiil trees that adorn 
 it ; first, those grand old elms were planted about the 
 beginning of the present century, and the interior 
 trees were set out in 1838, many of them being 
 brought from Prince's nursery, on Long Island, and 
 
296 MISCBLLANEOUS WRITINGS. 
 
 finally, the park was enclosed with an iron fence. No- 
 body has been injured by it; everybody has been 
 benefited ; the beauty of the city and the public good 
 of the town have been subserved. And as the land 
 really belonged to the city, that is, to the town people 
 in common, no man, no court, had a right to interfere 
 with this modified use of it, deleterious to no one, and 
 more subservient to the public interest. The Chan- 
 cellor would be very prettily engaged, to be sure, in 
 ordering the fence and all the trees to be taken away, 
 and Trinity Church, too, in order that companies of 
 soldiers could have a little better room for evolutions ! 
 Then, again, the market place, Washington Park, was 
 deemed to be of more use to the health and beauty of 
 the city by making a public park of it, than by using 
 it for a market. It never has been used for a market 
 for now two hundred and twenty years. The first 
 market that was built for the town was not built on 
 Washington Park, but in Market street, on the margin 
 of the burying-ground, in a low spot w^here no graves 
 could be dug. It was the only market that the town 
 had for many years. It had a hall above in which 
 meetings were held, and when the old court-house at 
 the comer of Broad and Walnut streets was burnt, the 
 courts were held in the upper part of the old market- 
 house. They were held there in 1835, 1836 and 1837, 
 whilst the present court-house was being built. When 
 this old market became too small, what next ? Did 
 the city authorities (the collective representatives of 
 all the town's people) go uptown and take Washington 
 Park for a market place ? No. They purchased the 
 present site over the Morris Canal because it was 
 more central and more convenient to the people, and 
 
ESSAYS AND HISTORICAL NOTES. 297 
 
 because Washington Park had been converted into, or 
 rather, had never been used for anything else than a 
 public park, and property had been purchased and 
 residences built around it on the faith of that appro- 
 priation. An Academy ("a fine two-story stone 
 building ") w^as erected on it in 1774, which w^as 
 burnt and destroyed as far as it could be, by the 
 British and Tories in their savage raid of January 25, 
 1780. From that time to this the planting of trees, 
 the erection of fences, the laying of vvralks have been in 
 accord with the actual uninterrupted appropriation of 
 this ground to the uses of a public ornamental park, 
 during the entire history of the town. The courts, or 
 the City Council itself, would have no more right, now, 
 to deface it, and convert it into a market place, than 
 they would to sweep away all trees and structures 
 from Military Common, or from the Watering Place. 
 And why ? Simply because, upon the faith of the acts 
 and conduct of the town for over two hundred years, 
 rights have grown up w^hich cannot be disregarded 
 and overthrown. The plea that these acts and con- 
 duct are in violation of the Patent of 1696 has been 
 already considered. It is based on a false idea, namely, 
 that the public lands, commons and streets of Newark 
 were the free donation of the Proprietors ; w^hereas 
 historic truth is different, and shows that this common 
 property belongs to the town's people themselves, to 
 be disposed of by them for the public good as they 
 deem best, and not to the private injury of the citisens. 
 This is the sound, sensible view of the subject, and 
 law is never found, in the end, to be at war with 
 sound sense and reason. 
 
298 MISCELLANEOUS WRITINGS. 
 
 TRUTH. 
 
 1 . Statement of truth is brief. Demonstration of 
 truth is long. Confutation of error is both long and 
 arduous. 
 
 2. The masters of philosophy, those who propound 
 the great thoughts on which human conduct hinges, 
 are never prolix, never discursive. They are usually 
 sententious, epigrammatic, delivering their lessons in 
 aphorisms, proverbs or parables. They see truth so 
 clearly, and value it so highly, that their principal 
 anxiety is to announce it, and impress it upon man- 
 kind. They have not the time or patience to stop 
 and argue. 
 
 3. The most solemn and profound truth that 
 man can utter, and which has the greatest influence 
 on his life, is expressed in four w^ords. There is a God. 
 
 4. All the great lessons of life may be compre- 
 hended in a few simple propositions, understood by the 
 simple, whilst the wise are lost in the maze of their 
 own discussions. 
 
 5. The true oflSce of discussion is to clear away 
 error and establish truth. 
 
 6. Truth is simply that which is ; error is the 
 affirmation, or belief, of that w^hich is not. 
 
 7. That which is may be either an existence, or 
 an event. The former continues ; the latter happens 
 and is ended, becoming a thing of the past. 
 
 8. But existences, as well as events, may belong 
 to the past, the present, or the future ; to the natural, 
 or to the spiritual (or moral) world. 
 
 9. He who sees through the phenomena of being 
 most clearly, and appreciates that which is most sub- 
 stantial and enduring, most essential and important, 
 has the clearest view of Truth. 
 
ESSAYS AND HISTORICAL NOTES. 299 
 
 VARIETY OP INTELLECTUAL CAPACITIES. 
 
 There is nothing more true than that to different 
 persons the same -words suggest different ideas. 
 Words are used by men of all descriptions, characters 
 and habits of association, and the peculiar circum- 
 stances of each man go to stamp the complexion 
 of the ideas he attaches to words. Men of genius, 
 who have many more ideas than other men, yet hav- 
 ing only the same words to convey them, or represent 
 them w^hich tbey have, must necessarily attach many 
 more ideas to the same term than others do. Some 
 of these ideas are perhaps so evanescent and refined 
 that other men are incapable of comprehending them. 
 It is the prerogative of the man of enlarged capacity 
 and ready wit, to comprehend and enjoy the most 
 deUcate and refined touches of sentiment, w^hich the 
 writings of genius contain, as well as the more gross 
 and obvious conceptions of ordinary men. 
 
 There is, perhaps, not so much difference between 
 educated minds as is generally estimated. A peculiar 
 kind of talent or tact is required to succeed in the 
 accumulation of wealth, honor and pow^er. Not an 
 extraordinary share of mind. Yet the possession of 
 one or other of these external accidents is one of 
 the commonest principles from w^hich the world judges 
 of the extent of a man's capacities. The truth is that 
 every educated mind contains, in itself, a world of 
 wondrous powers and capacities. The principles and 
 springs of humanity, possessed in common by enlight- 
 ened men, are in themselves an ocean, compared with 
 w^hich the differences between them dwindle into insig- 
 nificance. Like the arms and inlets of the sea, which 
 
300 MISCELLANEOUS WRITINGS. 
 
 compared with each other may seem to present wide 
 disparities, but each, in turn, claims to be connected 
 with, and but a part of the boundless main. So with 
 the differences between men. They may seem great, 
 until we reflect that each is connected with the ocean 
 depths of a common humanity, which, all alike, enjoy. 
 The Andean summits do not all peer above the obscur- 
 ations of clouds and storms, but all rise far beyond 
 the reach of animate nature. There is so much to 
 admire and venerate in the resources of every immortal 
 spirit that I dare not speak disparaging of any. 
 The humblest son of science has so much in common 
 with the most successful suitor of renown, that I dare 
 not speak of the difference between them as worthy of 
 comparison with the vastness of the mental capacities 
 and resources of either. 
 
 WILL: SELF-CONTROL. 
 
 It is said by some philosophers that " the will is 
 the man." It is this that determines our actions. 
 Our actions determine our characters and destinies. 
 What we are is answered by what "we do. This dis- 
 tinguishes men from each other, the wise and prudent 
 from the unwise and volatile — this distinguishes men 
 from brutes. 
 
 The highest ofiice of the will is self-control. Brutes 
 are governed by their appetites and impulses. Sav- 
 ages are but little removed in this respect from brutes. 
 Brutish men and coarse natures are mostly led by 
 their impulses, appetites and passions. The true 
 nobility of our nature is evinced by self-control, which 
 restrains, governs and subdues the impulses, appetites, 
 passions and desires. 
 
ESSAYS AND HISTORICAL NOTES. 301 
 
 Self-control, under the names " EyipaUia " and 
 "2wq>poffvvy" in Greek and Temperentia, Continentia, 
 Modestia in Latin, is ranked as one of the four cardi- 
 nal virtues. Justice, Temperance, Courage and Forti- 
 tude. Of these the parent virtue is temperance, or 
 self-control. 
 
 He that best controls himself in all things is most 
 noble and God-like. " He that is slow to anger is 
 better than the mighty, and he that ruleth his spirit 
 than he that taketh a city." (Pro. 16: 32). "He 
 that hath no rule over his own spirit is like a city 
 that is broken down and without walls." (Pro. 
 25: 28). 
 
 EXPERIENCE, OR SELF-IMPROVEMENT. 
 
 It is the duty and high privilege of every human 
 being to endeavor to improve himself. Effort at self- 
 improvement is the definition sometimes given for 
 religion. It may relate to our actions or to our con- 
 victions. In our actions we should aim at goodness ; 
 in our convictions, at truth. (This is the essence of 
 the teachings of Confucius). 
 
 One of the best means of arriving at just conclu- 
 sions, or truth, is to record our best thoughts. By 
 clothing them in words w^e make them more precise, 
 determined and fixed. For this purpose it is a good 
 plan to keep a set of books somewhat analogous 
 to the Journal, Day Book and Ledger of the trades- 
 man. The Journal should be alw^ays at hand for 
 recording the first rough form of our thoughts, 
 including the suggestions, reasons and conclusions 
 
302 MISCELLANEOUS WRITINGS. 
 
 which occur to our minds on any subject in w^hich w^e 
 take an interest, which may thus be caught and 
 secured whilst fresh and before they are dissipated 
 and forgotten, and perhaps forever lost. In certain 
 moods and frames of mind we have glimpses of 
 truth, which, followed out, may lead us to interest- 
 ing conclusions, but which, once displaced by other 
 things, can never again be recalled — at least, not 
 w^ith the same vividness and strength. The second 
 book, analogous to the Day Book, is to be used 
 for copying out, w^ith abridgements or improvements, 
 such of the rough entries in the Journal as, on subse- 
 quent reflection, seem to be worthy of the labor, col- 
 lecting together under a single head all the observations 
 which we have made on one subject. The third 
 book, analogous to the Ledger, should be employed 
 for a last and final recording, in the most accurate 
 and finished form, of the thoughts and conclusions at 
 which we ultimately arrive on a given subject or 
 point, after having read and re-read the previous 
 entries, and sought such other information and light 
 from books and men as our opportunities have per- 
 mitted. 
 
 By proceeding in this manner, and drawing the 
 pen across the entries in the Journal and Day Book 
 respectively as fast as they are used and carried for- 
 ward into the succeeding book, a man of ordinary 
 reading and reflection will, in the course of a few^ 
 years, find that he has amassed a rich fund of exper- 
 ience, which, to him at least, will be of inestimable 
 value. The result will be as near an approach to wis- 
 dom and truth as his opportunities and talents are 
 capable of. 
 
ESSAYS AND EQSTOKICAL NOTES. 303 
 
 PRINCIPLES SHOULD BE FIXED. 
 
 When a young man arrives at the age of twenty 
 he looks around him in the wide worid and discovers 
 that opinions, sentiments and principles of action 
 are very various and different. With respect to each 
 subject presented to his consideration, and each course 
 of conduct offered to his choice, he can take but one 
 course, or else he must remain in a wavering, undecided 
 state. Indecision is the bane of healthy conduct. 
 Hence it behooves every one to choose some particular 
 course to pursue -with regard to his opinions and sys- 
 tems of conduct as they individually present them- 
 selves. And, if, by further investigation, he finds that 
 he has adopted the w^rong course, let him choose the 
 right one. In order to make a proper choice of the 
 stand which he will take, much research and reflection 
 will be necessary. Let him, therefore, examine one 
 subject at a time, and having made his decision 
 respecting that, let him go on to the consideration of 
 something else. 
 
 For example, let him investigate the subject of 
 Slavery and its influence upon our country, etc., until 
 by a careful comparison of the arguments that each 
 sect and party on the subject of Slavery bring forward, 
 he is able to decide according to the merits of the 
 case w^hat ought to be done in relation to Slavery. 
 Then, having once satisfied himself, he will always be 
 ready with a reason for the opinions, to urge upon 
 those who may differ from him, and if he is ever called 
 upon to act in relation to the subject, he will know 
 how to act, and will not act blindly. Truth and 
 utility combined ought to be the object for which we 
 
304 MISCELLANEOUS WRITINGS. 
 
 seek in every investigation. Many have an opinion 
 respecting such subjects, but do not know how they 
 came by it — possibly their father or friends think 
 so— and, therefore, they think so also ; possibly their 
 own interest is concerned and biased their judgment ; 
 possibly they have latent prejudices that decide them, 
 but whatever it be, unless they have carefully investi- 
 gated and impartially judged the subject, they are not 
 fitted to converse on it in promiscuous society, nor are 
 they safe in adopting the conduct which their opinions 
 shall at any time dictate. 
 
 After having examined and disposed of one subject, 
 let him proceed with another, until the more important 
 of those which are agitated in the society of -which he 
 is a member have been canvassed by him. 
 
 He will generally be able to find materials and facts 
 to guide his investigations in the publications that 
 the subject elicit and in the perusal of history. With 
 these data and sound sense for his guides, he will gen- 
 erally deviate very little from the road to truth, safety 
 and ultimate honor. (October 17, 1835). 
 
 P. S. — I might add a list of subjects on which a 
 young man w^ould do Avell to decide in the present 
 times. Some follow Abolitionism, Colonization, Con- 
 solidation in Policy, Democracy, Intemperance, Benev- 
 olent Associations individually. Methods of Education, 
 Religious equality. Extension of Liberty of the Press, 
 Utility of Monopolizing Associations, Lotteries, etc., 
 etc. 
 
ESSAYS AND HISTORICAL NOTES. 305 
 
 FAMILY HAPPINESS. 
 
 How^ much the happiness of life depends on refine- 
 ment in taste, and the cultivation of those accomplish- 
 ments which gives a charm to the domestic circle ! If I 
 wished to depict a happy family, I would describe it 
 as one, not only in which general intelligence and 
 virtue prevails, but in w^hich the arts of taste are suffi- 
 ciently cultivated to be appreciated and enjoyed ; in 
 which vocal and instrumental music are practised, and 
 conversation is varied by narration and discussion, 
 and ever improves in expression and tone ; in which 
 poetry, painting, sculpture and architecture are sub- 
 jects of intelligent study and comment ; in which the 
 courtesies and amenities of life are never forgotten, 
 and religion and morality are never slightingly men- 
 tioned, and in which affection, mutual forebearance and 
 gentleness form the habitual atmosphere. How can 
 anything bad or deformed come from such a source ? 
 It is the seat and fountain of social order and good- 
 ness ; of noble character and honorable achievement. 
 
 (1875). 
 
 HOME, DEFINED. 
 
 The English word " Home " cannot be fully defined 
 by a single word or phrase. The following is an 
 attempt at a definition made forty years ago, which I 
 find on the fly leaf of one of my old hymn books. 
 
306 MISCELLANEOUS WRITINGS. 
 
 Home, the house and place where a family perma- 
 nently dwells ; where t]bey bring together the comforts 
 they can command, and w^here their family attachments 
 and memories center. 
 
 The language is not precisely accurate, and may be 
 modified thus : 
 
 Home, the house where a family permanently 
 dwells, collects its comforts, and forms its attachments 
 and memories. 
 
 November 14, 1876. 
 
 HAPPINESS. 
 
 Happiness is the result of the harmony of all the 
 faculties in their co-existence and operation. It is thus 
 in the animal ; it is thus also in the moral nature of 
 man. Discord in the operation of the animal functions 
 produces pain ; in the moral, dissatisfaction, mental 
 uneasiness — ^greater or less in proportion to the disor- 
 der that prevails. Perfect health is the perfection of 
 animal nature, and the basis of the greatest physical 
 enjoyment. Perfect harmony of the mental faculties 
 produces contentment, peace of mind, happiness. In 
 this the whole moral nature must combine — the intel- 
 lect, the affections and passions, and the conscience. 
 If either is disturbed, the man is disturbed. As in the 
 body, if every organ is perfect, except the heart, and 
 that is disordered, the whole system suffers. So in 
 the soul. If every part is in perfect activity except 
 one of the passions, and that is disturbed by imdue 
 excitement or improper exercise, the whole man is dis- 
 tressed and unhappy. 
 
ESSAYS AND HISTORICAL NOTES. 307 
 
 The principle is universal and invariable in its 
 application. Like gravity in the physical world, 
 which pervades the universe, and is always felt and 
 only felt when resisted. 
 
 A man is most happy when he is most perfect, and 
 he is most perfect when all his faculties are propor- 
 tionately and harmoniously developed. Thus devel- 
 oped, nature and art and society supply him with a 
 thousand sources of enjoyment. Neither his taste nor 
 his moral feelings, any more than his intellectual fac- 
 ulties, can be neglected without detriment, and with- 
 out diminishing his enjoyment of existence. The ear 
 should be tuned to harmony, the eye educated to the 
 perception of beauty and grace, and the heart instructed 
 in the precepts of duty and religion ; and these should 
 all be graduated and correlated to each other. With 
 a body well developed and trained to healthy exercise 
 and agreeable recreations, a mind cultivated and 
 stored with useful and various knowledge, an educated 
 taste and a heart formed to love and follow all that 
 is good and generous and exalted, the result is physi- 
 cal and moral health, and the purest and most perfect 
 happiness which the earth aifords. 
 
 The acquisition of an accurate and easy conversa- 
 tion, of some skill in music, and in pure and healthful 
 diversions, are of great benefit in fitting one for social 
 intercourse, in which one of the greatest sources of 
 pleasure is found. 
 
 The active and cheerful performance of every duty, 
 the assumption and discharge of every proper relation 
 in life, are also njecessary to the perfection of the man. 
 
 Such a man brings with him and spreads around 
 
308 MISCELLANEOUS WRITINGS. 
 
 him, wherever he goes, a glow of cheerfulness and 
 welcome, and the production of happiness in others 
 reacts in multiplying his own. 
 
 His home should be the center of this beneficent 
 influence, and from thence it should spread to every 
 portion of the society in which he is known, and which 
 forms the sphere of his activities. 
 
 February 11, 1877. 
 
 TIME. 
 
 The immense importance of time in all human 
 aflairs and human experience can never be fully appre- 
 ciated. One man, by order and diligence, may almost 
 be said to command time and become its master. 
 Another, by negligence and procrastination, becomes 
 time's slave, and finds his afiairs in confusion, his 
 opportunities lost and his purposes unaccomplished. 
 The former leads fortune by the hand, and partakes 
 her choicest favors. The latter, with weary steps and 
 flagging spirits, finds himself far in the rear of for- 
 tune, and the victim of discouragement or despair. 
 This is one instance of the importance of time. 
 
 But it affects us in ten thousand ways, and often 
 without any ability on our part to prevent it. It 
 affects men's characters, talents and destinies. In 
 studying closely the laws which govern observations 
 in astronomy, and other professions which require 
 an accurate note of phenomena, it has been discov- 
 ered in the last half century that every man has 
 what is called a personal equation, which defines his 
 capacity for accurate observation. No man can 
 
ESSAYS AND HISTORICAL NOTES. 309 
 
 instantaneously perceive what passes before his senses, 
 as, for example, the conjunction of two planets, or 
 the first contact of two heavenly bodies. It w^ould 
 seem that this belongs to omniscience alone. And no 
 two men have exactly the same capacity for imme- 
 diate perception. The difference between them depends 
 on their respective organization of brains, nerves and 
 organs of sense. This equation has been found so 
 important in observations requiring the greatest 
 accuracy as to render it necessary to ascertain by 
 experiment, and to record, the relative personal equa- 
 tions of the different employes of our Coast Survey. 
 The fraction of a second, which each requires for 
 perception, is measured, and is always deducted from 
 his recorded observations. Wonderful as this discov- 
 ery is, it is not more wonderful than other things in 
 human experience to which attention has not yet been 
 directed. For example, a certain instant of time 
 (almost infinitesimal, it is true), occurs between the 
 conception of an idea, and for the w^ord which stands 
 for and represents it. The ease and fluency with 
 which one man can express his ideas, and the difficulty, 
 tardiness and hesitation which is experienced by 
 another, depends respectively on the infinitesimal 
 instant, in each case, required for calling up the words 
 which represent their ideas ; in other words, they 
 depend upon the rapidity of association which the 
 two men respectively possess. Other circumstances, 
 of course, contribute largely to make up the difference 
 between them. The different degrees of familiarity 
 which they have with the forms of expression, depend- 
 ent upon their relative culture, education and exper- 
 ience, have much to do with it. One man may have 
 
310 MISCELLANEOUS WRITINGS. 
 
 cultivated the use of language all his life ; and the 
 other may have negkcted it. But supposing them to 
 be equal in this respect, there will still be all the differ- 
 ence in the w^orld between them in their respective 
 powers of expression and utterance. One -will be 
 brilliant, ready and interesting ; the other tedious and 
 drawling. The one will hold crowds hanging on his 
 lips with bated breath ; the other will disperse them 
 with equal facility. 
 
 In all things, time is an essential element. Electricity 
 requires time to execute its effects. Light requires 
 time to traverse the regions of space. Thought 
 requires time to grasp its objects, and time again to 
 clothe them w^ith expression. And he, w^ho, in all 
 things is most nearly the master of time is master of 
 the world. 
 
 February 10, 1877. 
 
 THE TEACHING OF CHILDREN. 
 
 In teaching, regard must be had to the faculties 
 possessed by the pupil. In childhood, memory ; in 
 youth, the understanding ; in mature life, the reason, is 
 the predominating faculty. If either of these is unduly 
 exercised out of season, injury is sustained by the 
 violence, ajid the powers in condition for exercise are 
 unjustly repressed and never regain their proper tone. 
 Modem school books and methods of teaching often 
 disregard these fundamental principles of our nature. 
 The attempt to teach spelling and etymology, and even 
 natural philosophy at the same time, and in the same 
 lessons, to a child of eight or ten years, is absurd, and 
 
ESSAYS AND HISTORICAL NOTES. 
 
 311 
 
 will fail ia every direction. The rules of arithmetic, 
 to be properly and usefully learned, must be learned by 
 heart, without attempting to stuff the mind with their 
 reasons. But memory may be aided by mechanical 
 means. Spelling may be fixed in the mind by the chimes 
 of sound, and the harmony of rhythm striking on the 
 drum of the ear. By this means, long columns of 
 words having the same number of syllables, the same 
 accent and a succession of Hke vowel sounds, will 
 become indelibly fixed on the sensorium so that the 
 slightest deviation in letter or sound will send a repul- 
 sive thrill through the nervous system. Rational 
 spelling — that is, spelling by reason and rules — can 
 never compare in practical accuracy with this mechan- 
 ical spelling printed upon the memory and the brain 
 in childhood. 
 
 FIT EXPRESSIONS. 
 
 Solomon says, "An apple of gold in a cushion of 
 silver, is a w^ord spoken in season." Prov. XXV, 2. 
 The translation of this proverb has had many varia- 
 tions. The " Septuagint " says, "A golden apple in a 
 setting of cornelian, is a sentence well spoken." The 
 Latin Vulgate, " It is apples of gold on beds of silver, 
 when one speaks a word in due season." " Coverdale," 
 "A w^ord spoken in due season, is like apples of gold 
 in a silver dish." " Cranmer," "A word spoken in 
 due season is like apples of gold in a graved w^ork of 
 silver." " The Geneva," "A word spoken in his place 
 is like apples of gold with pictures of silver." " The 
 Bishop," "A word spoken in due season is Kke apples 
 
312 MISCELLANEOUS WRITINGS. 
 
 of gold in a graved work of silver." " The Author- 
 ized," "A word fitly spoken is like apples of gold in 
 pictures (or baskets) of silver." In another passage, 
 Solomon breaks forth in this -wise : "A word spoken 
 in due season, how^ good is it !" Proverbs, XV, 23. 
 Here is an attempt to express an important truth — ^to 
 wit, the masterly power and beauty of fit expression. 
 The great truths of humanity only require proper 
 enunciation to secure acceptance. No labored proof is 
 necessary. When clothed in exact and appropriate 
 expression, they address themselves to the intuitive 
 consciousness and are recognized. Like a w^ell fitting 
 garment which reveals the graces of the person, and is 
 itself unnoticed, so apt and proper expression carries 
 truth home to the understanding and heart without 
 diverting the fancy. But it must be clear, perfect and 
 free from redundancy. It must also be striking ; tame 
 words are unheeded, and leave no impression. The 
 strong, nervous forces of the language are requisite. 
 
 A truth sometimes lies on the mind for years before 
 it can find fit utterance, but when at last fitly uttered, 
 it tells. The word then spoken cannot be forgotten. 
 It finds a lodgment in every heart. 
 
 This power of fit expression is a wonderful moral 
 force. It moves senates ; it moves nations ; it moves 
 the world. A mistake is often made by the young in 
 neglecting its cultivation. They cannot duly appre- 
 ciate its value. Only the experienced can fully do so. 
 They are apt to suppose that the thought, facts, ideas, 
 are the main thing to acquire, and that words will 
 come of themselves. Facts and ideas are essential, 
 but no more so than the power of correct and forcible 
 expression. They are like unemployed capital ; like 
 
ESSAYS AND HISTORICAL NOTES. 313 
 
 arms laid up in store, until the power to use and wield 
 them has been acquired. They may benefit their pos- 
 sessor individually, but they give him no power over 
 others until he has learnt the art of communicating 
 them in strong and beautiful language. 
 
 An art, it certainly is, requiring for its acquisition 
 careful study and constant exercise; and this study 
 can never be remitted. It is as necessary at fifty 
 as at twenty-five ; in a speech to the senate, as in a 
 Sunday school address ; but w^hen acquired, how 
 transcendent is its power; how glorious its effects! 
 
 This study and constant use are as necessary to a 
 writer as to a speaier. Nothing tells but excellence ; 
 nothing is excellent but what is the result of labor. 
 
 Stowe, 1877. 
 
 ELOQUENCE.* 
 
 " The impression which every person, w^hether on 
 the platform or in conversation, makes on his fellows, 
 is the moral resultant, not of what be says, but of 
 what he has grown up to be ; of his manhood, w^eak 
 or strong, sterling or counterfeit; of a funded but 
 unreckoned influence accumulated unconsciously and 
 spending itself according as the man is deep or shal- 
 low, like a reservoir, or like a spout, or an April 
 shower." Prof. Matthews, in " Getting On in the 
 World." 
 
 The above observation is so true that the wonder 
 is, it has never been made before. We have approaches 
 to it in such proverbs as " Actions speak louder than 
 
 • See Bolingbroke's ''Spirit of Patriotism," Works, Vol. IV, p. 234. 
 Bd. 1809. DcKiiptlott of Demosthenes and Cicero. 
 
314 MISCELLANEOUS WEITINGS. 
 
 words," etc. I would make but one alteration in it, 
 namely, by adding the words "so mucb" after the 
 word "not," so as to read "not so much of what he 
 says, as of what he has grown up to be," etc. An 
 insignificant man may utter w^ords as w^ise as even 
 Solomon uttered without producing the slightest 
 impression; whilst the same w^ords spoken by one 
 "whom w^e have learned to reverence and look up to, 
 will be drunk in with delight, and produce a lasting 
 influence upon our lives. The one is not preceded by 
 any preparation on our part to appreciate him ; whilst 
 the character of the other has already made a lodg- 
 ment in our minds which disposes us to pay the strict- 
 est attention to his speech, and to give it the fallest 
 effect. It is in us, not in the speaker, that the cause 
 of the difference of impression lies. The effective 
 speaker has already, by his previous reputation, 
 affected us in his favor. We listen to him as a master, 
 because we have come to regard him as such before- 
 hand. This weight of character which thus fills out 
 and gives due effect to a man's utterances, may be 
 partially, though but partially, supplied by the favor- 
 able presumptions which arise from his appearance, 
 air and manner, w^hich presuppose, or give reason to 
 presuppose, those characteristics which command our 
 confidence, when we know, or believe them to exist. 
 
 STYLE. 
 
 The perfection of style consists in the use of the 
 exact speech necessary to convey the sense in the 
 fewest words consistent with perspicuity, at the same 
 time having regard to appropriateness and harmony 
 
ESSAYS AND HISTORICAL NOTES. 315 
 
 of expression. Its greater excellencies are directness, 
 accuracy, appropriateness and perspicuity. When 
 these qualities are accomplished with a clear and well 
 modulated enunciation, the thoughts of the speaker 
 go straight to the understanding of his hearers, keep 
 their attention fixed, and leave no time for inclination 
 to wander, criticise, or even to notice the manner in 
 which they are conveyed. The desired effect necessarily 
 foUow^s, w^hether it be conviction or the excitement of 
 the emotions or passions. When mind speaks directly 
 to mind, spirit to spirit, it gives to the communication 
 the greatest possible power. Redundancy, circumlo- 
 cution, inappropriate diction, cloud the senses, divert 
 the attention, produce weariness and deprive the 
 effort of any useful effect. 
 
 In a public speaker, besides the above qualities of 
 style, fluency is also necessary, by which I mean the 
 power of readily calling up the exact w^ords which the 
 style requires. When these excellencies are all com- 
 bined and the thoughts are vigorous and impressive, the 
 effect is irresistible. The mind is carried along, as vnth 
 a whirlwind to the point which the speaker desires. 
 
 This talent of effective speaking was possessed in 
 an eminent degree by Lord Bacon, by Vice-President 
 Burr, and by Mr. Judah P. Benjamin. The secret lies, 
 not in fluency merely, but also in the exact and appro- 
 priate selection of w^ords and phrases to convey the 
 whole sense and nothing more. Of course the thoughts 
 must be vrorthy of the occasion. 
 
 " When Atreus' son harangued the hstening train, 
 Just was his sense, and his expression plain. 
 His words succinct, yet full without a fault. 
 He spoke no more than just the thing he ought." 
 
 Pope's Iliad, III, ^/j, 
 
 August 21, 1879. (Stowe). 
 
316 MISCELLANEOUS WRITINGS. 
 
 METAPHYSICS. 
 
 " He knows ^That's what, and that's as high as metaphysic's ^t can 
 ay."—Hudibras. 
 
 Metaphysics. Metaphysical writers do not seem to 
 me to be exact enough in their accounts of the Human 
 Mind. Locke refers the origin of all our ideas to Sen- 
 sation and Refection. Stewart, meaning the same 
 things, to Perception and Consciousness. They tell 
 us that the mind is conversant about no other ideas 
 than what these two sources furnish. But is it so ? 
 Let us see. We have a know^ledge of eternal things 
 by perception, and a know^ledge of Perception by con- 
 sciousness. Thus one faculty of the mind contem- 
 plates the load-stone, and is itself immediately reviewed 
 by another faculty of the mind. Now, in contemplat- 
 ing the load-stone, we cannot expect that w^e are 
 acquainted with all its properties, or know all about 
 it, and so, by analogy, we would immediately be led 
 to suppose that in contemplating the power by w^hich 
 we perceived the load-stone, I would rather say the act 
 of the mind in perceiving the load-stone, we are unable 
 to grasp all the properties that appertain to that act. 
 By consciousness we know^ there was a battle at 
 Bunker's Hill ; perhaps we know the number of killed 
 and wounded, yet ten thousand little circumstances of 
 valor and distress, which we have every reason to 
 believe happened to individuals in that battle are 
 known nothing of. I say by analogy we would be 
 led to suppose that many things appertaining to the 
 operations of the mind wholly escape our observation 
 or elude the grasp of consciousness. But I think that 
 
ESSAYS AND HISTORICAL NOTES. 
 
 317 
 
 we have more than analogy to support this. When 
 I have stood on a mountain and witnessed the setting 
 of a calm summer's sun— the waters irradiating differ- 
 ent parts of the wide landscape, and the fields, some 
 yellow, some green, some brown, checkering the view 
 like a rich carpet of nature ; the gently nodding trees, 
 the songs of evening birds, the lowing of cattle in the 
 distance, and the bleating of flocks, all conspiring to 
 enchantment, my emotions for a brief hour have been 
 indescribable, and, in any other circumstances, incon- 
 ceivable. My spirit so rapt, my enjoyment so exquisite, 
 my thoughts so sublimated, that I would give myself 
 up to the torrent flow of those intoxicating ideas. At 
 such times I am sure that I have passed many min- 
 utes without a thought of watching the operations of 
 my mind or emotions — my mind ? That was quite 
 absorbed in drinking delight from the exhilarating 
 draught, and after the spell had passed away, I had 
 but a faint idea, an indistinct recollection of the 
 enchanting dream. I did not make the attempt to 
 grasp the feelings of my mind, or to w^atch them by 
 the power of consciousness. I had no time to watch 
 the workings of my mind. So completely absorbed 
 was I in feeling the enjoyment of the scene, that I had 
 no opportunity of watering' that feeling. I afterwards 
 knew in general, that I had &lt, and that I had felt 
 indescribable — nay — almost inconceivable sensations. 
 But to endeavor, then, to get up such a conception of 
 those sensations from the scattered fragments of con- 
 sciousness w^hich I did exercise at the time, would 
 have been as vain as an attempt to cut a robe 
 from the sky and trim it with the rainbow. And 
 yet, in the case both of perceiving the load-stone 
 
318 MISCELLANEOUS WRITINGS. 
 
 and of feeling the delights of the evening scenery, 
 every modification, quality and property of such 
 perception and of such feeling ; in short, every 
 mental circumstance by which they were attended, 
 was an idea of the mind, however many of them may 
 have escaped the notice of consciousness, and many of 
 them, in my opinion, did so escape. If so, then we cer- 
 tainly have ideas which do not owe their origin imme- 
 diately to perception or consciousness. As there are 
 many external objects which we do not perceive, so 
 there are many internal workings of the mind of 
 which we may not be conscious. If w^e say that we have 
 no ideas except what we perceive, or are conscious of, 
 we make the perception or consciousness of our idea 
 necessary to its existence, which I do not believe. 
 
 UPHAM ON THE MIND AND ITS DISORDERS. 
 
 Professor Upham, in his treatise on " Imperfect and 
 Disordered Mental Action," arranges his subject 
 according to the analysis of the mind in its natural 
 state and operations — considering, in order, the imper- 
 fections and diseases which affect each faculty. 
 
 His classification of mental operations coincides in 
 the main, with the old division of the mental capaci- 
 ties, into the understanding, the affections and the 
 will. The nomenclature which he adopts is intellect, 
 sensibilities and will. The intellect he subdivides into 
 exterior and interior, corresponding, in most respects, 
 with Locke's division into sensation and reflection. 
 The exterior intellect derives knowledge from the out- 
 ward world through the medium of the senses ; the 
 interior derives it from a consciousness of the mind's 
 own operations, from original suggestion, relative 
 
ESSAYS AND HISTORICAL NOTES. 319 
 
 suggestion or judgment, and reasoning. To original 
 suggestion, he assigns the origin of our notions of 
 time, number, motion, memory, sameness, personal 
 identity, present existence, etc., which Stewart, after 
 Dr. Reid, attributes to common sense. 
 
 Now, it seems to me that a more simple analysis 
 may be made of the operations of the mind. I find no 
 fault with the general division into understanding, 
 affections and will. The mental operations, or states 
 indicated by these three designations, are entirely dis- 
 tinct in their nature, and seem to comprehend all of 
 which the human mind is capable. We perceive things, 
 facts, truths. This is the operation of the understand- 
 ing; and is a matter of pure intellection. We can 
 conceive of beings purely intellectual, ■who might be 
 endowed with this capacity, without being subject to 
 any emotions or affections. But we are differently 
 constituted. We are also affected by our perceptions. 
 Hence the affections or sensibilities, which form a dis- 
 tinct and component part of our mental structure. 
 The understanding and the affections constitute us 
 perceptive and passive or affective beings. We are 
 thus rendered capable of knowledge and emotion. But 
 our nature does not end here. We are not only per- 
 ceptive and passive, but active. We are capable not 
 only of knowledge and emotion, but of volition. We 
 not only understand and feel, but we will. Hence the 
 third and last great division of mental operations — 
 the will. 
 
 When we come to subdivide the operations of the 
 understanding, it seems to me that the perception of 
 the ideas of time, space, number, motion, etc., belongs 
 to precisely the same category as the perception of 
 outward objects does. It is true we do not perceive 
 
320 MISCELLANEOUS WRITINGS. 
 
 these things immediately by one of the five external 
 senses, but there is a sixth sense by -which we do per- 
 ceive them. They belong to the framework and con- 
 stitution of this outward world into which our Maker 
 has placed us, and I consider the formation in the mind 
 of a comprehension of this outer world and the things 
 therein contained, of its constitution, its manner of 
 existence, as a source of knowledge, homogeneous 
 in its character, and appreciable by a department 
 of the understanding vrhich is one and indivisible. 
 Call this the exterior intellect if you will. Names are 
 not things, but I think the understanding is a better 
 word to denote the power or capacity of the mind to 
 comprehend the world as it is, nature, or the exterior 
 tmiverse, than any other that can be chosen. 
 
 There is an exterior or more transcendental intel- 
 lect, I admit, w^hich is cognizant of ideas that the 
 senses do not reveal, and that the outer world does 
 not even suggest. Those ideas are the spiritual ones 
 on w^hich our moral nature depends — such as justice, 
 purity, faith, sincerity, generosity, or, perhaps, personal 
 identity, present existence, etc., belong to this class. 
 (Memo.— Think farther on this subject.) 
 I think Prof. Upham's arrangement of the subject 
 of mental disorder very philosophical and correct. 
 Disorder is the correlative of order in all departments 
 of nature and life. The physician considers the human 
 system under three aspects— that of physiology, path- 
 ology and therapeutics. The lawyer divides his science 
 into rights, wrongs and remedies. The divine treats 
 of religion under the heads of holiness, sin and redemp- 
 tion. In like manner, the true division of mental 
 philosophy is into mental physiology, pathology and 
 treatment of the insane, etc., etc., etc. 
 
ESSAYS AND HISTORICAL NOTES. 321 
 
 THE HUMAN MIND. 
 
 The mind of man may be compared to a bird 
 ascending with her eye fixed upon the sun. Her light 
 form is successively borne in contrary directions by the 
 shifting winds as she passes onward and upward 
 through the various strata of the atmosphere. So, 
 the mind, as it rises in its progress tow^ard fixed and 
 eternal truth, the centre and ultimate object of all its 
 inquiries, is, at first, borne along with the various 
 prejudices and opinions of the w^orld, often in conflict 
 with each other. At one stage of its progress, it 
 adopts notions and views that are often modified or 
 entirely changed by more information, or an acquaint- 
 ance w^ith new or more plausible expositions, and it is 
 only -when it acqtiires sufficient strength and courage 
 to mount above the floating current of popular 
 thoughts, and out of the reach of the breath of public 
 opinion, that it can pursue, w^ith eagle speed and 
 tmflinching eye, that straight and luminous path w^hich 
 leads to the pure and immutable sources of intellectual 
 and moral perfection. 
 
 The general influence which the several sciences 
 naturally exert upon each other, is a truth too com- 
 monly known to merit a remark here. But some of 
 the particular instances of this influence are striking 
 and worthy of a passing notice. I was lately forcibly 
 struck with the influence of the discovery of the art of 
 making paper in the eleventh century, and the art of 
 painting in the fifteenth century, on all the departments 
 of literature and science. There had been giant minds 
 in the darkest ages, but their wisdom could never be 
 
322 MISCELLANEOUS WRITINGS. 
 
 recorded— perhaps they themselves were ignorant of 
 letters, and so all died with them that might have 
 benefited and enlightened the w^orld. 
 
 May we not also compare a man's individual mind 
 to the literary and scientific mind. A man may be 
 possessed of a large and capacious mind, may start 
 many brilliant thoughts, and give great promise of 
 becoming useful and great, but if he sufiers his mind 
 to rest on its own extemporaneous energies — never 
 exerting himself to store his memory vnth formulae of 
 truth — that man vnll be like the dark ages. His start- 
 ling thoughts will be lost in the flux of events — ^he 
 makes no progress in the net amount of knowledge at 
 his command, but as fast as he receives knowledge, he 
 negligently permits it to pass out of his mind. This, I 
 fear, is in some measure the case with . 
 
 September 9, 1837. 
 
 THE ENGLISH GUTTURAL U, AS HEARD IN 
 BUT, HUT. 
 
 To show the procUvity of English-speaking people 
 to drop into this guttural, the following sentence will 
 show every vow^el pronounced in that w^ay : 
 
 " The Editor vrill insert the burning of the Martjrs 
 in his next circular." 
 
 Here -we have ar er ir or ur and yr, all pronounced 
 in the same way ; and indeed, it is almost impossible 
 for an English speaker to pronotmce er or ir otherwise 
 than if spelled ilr. And yet we have great difficulty 
 in learning to pronounce the German o, as in Gcethe, 
 although it has nearly the same sound as the English 
 
ESSAYS AND HISTORICAL NOTES. 323 
 
 short u, though more prolonged. One not accustomed 
 to German, would come very near to the true pro- 
 nunciation of 6 in Gcethe, if he should pronounce it as 
 though it were spelled Gurty, leaving out the sound of 
 r. The difficulty is in prolonging the sound sufli- 
 ciently to give it the true German effect. With us the 
 sound is always, or generally, short. We give it 
 greater length in hurt and worth than we do in put 
 and but. Accustoming ourselves to uttering the long 
 sound without pronouncing the r, w^e could soon very 
 nearly acquire the German 6. 
 December, 1880. 
 
 ER, BY, NEAH. 
 
 Er and Ere is the Saxon termination from wer, 
 were, a man, equivalent to the German pronoun er, he. 
 As a termination, it signifies an agent, or actor. Thus, 
 bake, baker ; dig, digger ; sing, singer ; train, trainer, 
 etc., meaning respectively a man who bakes, digs, 
 sings, trains, etc., as much as to say, bake-man, dig- 
 man, sing-man, train-man, etc. We naturally and 
 almost unconsciously add this termination w^hen we 
 wish to express the actor who does anything ; thus, 
 we naturally say dynamiter, photographer, when w^e 
 wish to denote a person who use^ the new substance 
 dynamite, or w^ho performs the new^ process of photo- 
 graphing. 
 
 By, Bye, is the Danish for town, village, etc. Hence 
 in that part of England where the Danes settled, we 
 find plenty of towns ending with that termination, as 
 Wetherby, Thirkleby, Selby; in Yorkshire, Derby, 
 Denby ; in Derbyshire, and perhaps a hundred places 
 
324 MISCELLANEOUS WRITINGS. 
 
 in Lincolnshire, the local map being filled with them. 
 It may come from Bya, Byan, to inhabit, or from Bi, 
 near, in the vicinity of. For, as the people lived" in 
 towns, or vills, those who were collected together, Bi 
 each other, always made a vill. 
 
 Neah, Anglo-Saxon for near. Neah-bi-er would be 
 the near-by-man, hence, our word, " neighbor." 
 
 FREEDOM OF THOUGHT. 
 
 In scientific and historical, especially archaeological 
 investigations, the mind should be free from all bias 
 and open to the reception of truth and the exact 
 result of the evidence presented, no matter what idols 
 are overthrown by it. " Bacon," in his Novum 
 Organum (B. L. XXXIX-XLIY), says there are four 
 species of idols which beset the human mind — Idols of 
 the tribe, Idols of the Den, Idols of the Market and 
 Idols of the Theatre. 1. Idols of the Tribe are 
 inherent in human nature, and the very tribe or race 
 of man — the tendency to look at all things from the 
 central stand point of self and the senses. 2. Idols 
 of the Den are the peculiar mental obliquities of the 
 individual, arising from his disposition, education and 
 circumstances. 3. Idols of the Market are those 
 erroneous impressions derived from intercourse with 
 other men, from the loose conceptions attached to 
 words and common speech. 4. Idols of the Theatre 
 are the dogmas and theories of sects and parties in 
 religion and philosophy which attract us, or fetter the 
 operations of our minds. The influence of these Idols 
 constantly operates to cloud the understanding and to 
 
ESSAYS AND HISTORICAL NOTES. 325 
 
 shut out the rays of truth. If the remains of a human 
 being are found in a geological stratum, or locality 
 which indicates the lapse of many ages since that 
 being lived, and if those remains show a low type, 
 pointing to a great intermediate development of the 
 race, the whole religious w^orld, frightened at the bear- 
 ing the discovery may have on the accuracy of the 
 book of Genesis, bears down upon the obvious deduc- 
 tions of the evidence, with indiscriminate and blind 
 denunciation. But the man of true scientific instincts 
 will regard this commotion virith contempt, and will give 
 full play to his reason, and accept the teachings which 
 the dicovery suggest. He will not shut his eyes to the 
 evident facts, but will regard them with fairness and 
 candor, as if the book of Genesis had never been written. 
 This freedom of thought is repulsive to ninety-nine 
 hundredths of men, because it sets at naught their 
 cherished opinions, prejudices or dogmas. 
 
 Freedom of thought was the great object for which 
 Spinoza contended, and many other great men. 
 
ASTRONOMICAL, 
 SCIENTIFIC 
 
 AND 
 
 MATHEMATICAL. 
 
tLETTER OF HON. JOSEPH P. BRADLEY, 
 
 ONE OF THE JUSTICES OF THE SUPREME COURT OF THE 
 
 UNITED STATES, GIVING A HISTORY OF THE FIRST 
 
 STEAM ENGINE INTRODUCED INTO THE 
 
 UNITED STATES OF AMERICA. 
 
 Washington, September 20th, 1875. 
 
 David M. Meeker, Esq. 
 
 Dear Sir : The steam engine of which you possess 
 a relic* was, as you suppose, the first ever erected on 
 this continent. It was imported from England in the 
 year 1753, by Col. John Schuyler, for the purpose of 
 pumping water from his copper mine opposite Belle- 
 ville, near Newark, New Jersey. The mine was rich in 
 ore, but had been w^orked as deep as hand and horse 
 pov\rer could clear it of water. Col. Schuyler, having 
 heard of the success with v\rhich steam engines (then 
 called fire engines) v^ere used in the mines of Comw^all, 
 determined to have one in his mine. He accordingly 
 requested his London correspondents to procure an 
 engine, and to send out with it an engineer capable of 
 putting it up and in operation. This -was done in the 
 year named, and Josiah Homblower, a young man, 
 then in his tw^enty-fifth year, was sent out to superin- 
 tend it. The voyage v(ras a long and perilous one. 
 Mr. Homblower expected to return as soon as the 
 engine was in successful operation. But the proprietor 
 induced him to remain, and in the course of a couple 
 
 t An enlarged photograph of this letter exhibited at the Centennial 
 Bxposltion at Philadelphia in 1876, is now deposited with the New Terser 
 Historical Society In Newark, N. J. 
 
 • Deposited in the " National Museum," Washington, U. C. 
 
330 MISCELLANEOUS WRITINGS. 
 
 of years he married Miss Kingsland, whose father 
 owned a large plantation adjoining that of Col. 
 Schuyler. The late Chief Justice Homblower was the 
 youngest of a large family of children which resulted 
 from this marriage. Mr. Hornblower's father, whose 
 name w^as Joseph, had been engaged in the business of 
 constructing engines in Cornwall from their first intro- 
 duction in the mines there, about 1740 ; and had been 
 an engineer and engine builder from the first use of 
 steam engines in the arts, about 1720. The engines 
 constructed by him and his sons were the kind known 
 as Newcomen's engines, or Cornish engines. That 
 brought to America by Josiah was of this description. 
 Watt had not then invented his separate condenser, 
 nor the use of high pressure. But it is generally con- 
 ceded that, for pumping purposes, the Cornish engine 
 has still no superior. 
 
 After 1760 the Schuyler mine was w^orked for sev- 
 eral years by Mr. Homblower himself. The approach of 
 the -war, in 1775, caused the operations to cease. Work 
 was resumed, however, in 1792, and Avas carried on 
 for several years by successive parties. It finally 
 ceased altogether early in this century, and the old 
 engine was broken up and the materials disposed of. 
 The boiler, a large copper cylinder, standing upright, 
 eight or ten feet high, and as much in diameter, with 
 a flat bottom and a dome-shaped top, was carried to 
 Philadelphia. The relic in your possession was a por- 
 tion of the cylinder, and was purchased by some per- 
 son in Newark. 
 
 In 1864, I met an old man named John Van 
 Emburgh, then a hundred years old, who had worked on 
 the engine when it was in operation in 1792. He 
 described it very minutely and, I doubt not, accurately. 
 
SCIENTIFIC, "studies," LETTERS, ETC. 331 
 
 It is from his description that I happened to know the 
 kind of engine it was ; although from the date of its 
 construction, and the use to w^hich it was put, there 
 could have been but little doubt on the subject. 
 
 "What changes have been wrought in one hundred 
 and twenty-two years ! What mighty power has been 
 created on this continent, in that time, by the multi- 
 plication and improvement of the steam engine ! We 
 may well look upon this relic with a sort of supersti- 
 tious veneration, and looking -forward as w^ell as back- 
 ward, w^onder what another century will bring forth. 
 Respectftdly, your obedient servant, 
 
 (Signed) JOSEPH P. BRADLEY. 
 
 EASTER DAY AND COURT TERMS. 
 
 Easter Day is the first Sunday after the first full 
 moon that happens after or upon the 21st day of 
 March, vernal equinox. Easter Day cannot possibly 
 happen earlier than the 22d of March, nor later than 
 the 26th of April. 
 
 Lent is a solemn fast of the English and Roman 
 churches, called Lent because it is in the spring, that 
 being the Saxon name for spring. It is composed of 
 forty week days, immediately preceding caster, Sundays 
 not being reckoned fast days because they are com- 
 memorative of our Saviour's resurrection. Hence 
 Lent begins on Wednesday, six w^hole w^eeks and four 
 days before Easter. This is called Ash Wednesday. 
 On that day they formerly wore sack-cloth and ashes, 
 hence its name. It can never happen earlier than the 
 4th day of February, nor later than the 11th of 
 March. The first Sunday before Lent, being the seventh 
 
332 MISCELLANEOUS WRITINGS. 
 
 before Easter, is called Quinguagesima, being the 
 fiftieth day before Easter inclusive. The Sabbath 
 preceding that is called Sexagesima, and the preceding 
 one, Septuagesima. 
 
 The fortieth day after Easter inclusive is called Ascen- 
 sion Day, coming always on Thursday. The fiftieth day 
 inclusive — the old Pentecost — is called Whit Sunday, or 
 White Sunday, because catechumens on the eve of 
 that day were admitted to the Sacrament of Baptism 
 clothed in white robes. The Sunday after White Sun- 
 day, being eight weeks after Easter, is Trinity Sunday, 
 which can never happen earlier than the 17th of May, 
 or later than the 21st of June. 
 
 Now, the Easter Term always commences on 
 the Wednesday fortnight after Easter (which is never 
 earlier than the 8th of April, nor later than the 13th 
 of May), and continues till the Monday three weeks 
 after beginning (which is never earlier than 4th May, 
 nor later than 8th June), being in all twenty-seven 
 days, Sundays included, or twenty-three days besides 
 the Sundays. 
 
 The Trinity Term always commences on the Friday 
 after Trinity Sunday (which cannot be earlier than 
 22d May, nor later than 26th June), and continues 
 till Wednesday fortnight after it begins (which is never 
 earlier then 10th June, nor later than 15th July), 
 being in all twenty days, Sundays included, or seven- 
 teen days besides the Sundays. 
 
 The Michaelmas Term always commences on the 
 6th of November and continues to the 28th of that 
 month, being in all twenty-three days. 
 
 The Hilary Term always commences on the 23d of 
 January and continues to the 12th of February, being 
 in all twenty-one days. 
 
SCIENTIFIC " STUDIES," LETTERS, ETC. 
 
 333 
 
 PERPETUAL CALENDAR 
 
 FOR FINDING THE DAY OF THE WEEK ON WHICH ANY 
 
 DAY OF ANY MONTH FALLS IN ANY YEAR BEFORE 
 
 OR AFTER CHRIST, OLD STYLE OR NEW. 
 
 
 
 
 
 
 Feb 
 
 
 
 
 
 
 Jan 
 
 Apr 
 
 Sep 
 
 
 Mar 
 
 
 
 
 
 Oct 
 
 July 
 
 Dec 
 
 Jun 
 
 Nov 
 
 Aug 
 
 May 
 
 
 
 1 
 
 2 
 
 3 
 
 4 
 
 5 
 
 6 
 
 7 
 
 
 Centuries — Old 
 
 8 
 
 9 
 
 10 
 
 11 
 
 12 
 
 13 
 
 14 
 
 Centuries- 
 
 Style or Julian. 
 
 15 
 
 16 
 
 17 
 
 18 
 
 19 
 
 20 
 
 21 
 
 New Style. 
 
 
 22 
 29 
 
 23 
 30 
 
 24 
 31 
 
 25 
 
 26 
 
 27 
 
 28 
 
 . 
 
 B.C 
 
 A. D. 
 
 A. D. 
 
 7 
 
 1 
 
 8 
 
 15 
 
 Sat 
 
 Sun 
 
 Mo 
 
 Tue 
 
 Wed 
 
 Thu 
 
 Fri 
 
 
 18 
 
 22 
 
 26 
 
 6 
 
 2 
 
 9 
 
 16 
 
 Fri 
 
 Sat 
 
 Sun 
 
 Mo 
 
 Tue 
 
 Wed 
 
 Thu 
 
 
 
 
 
 5 
 
 3 
 
 10 
 
 17 
 
 Thu 
 
 Frl 
 
 Sat 
 
 Sun 
 
 Mo 
 
 Tue 
 
 Wed 
 
 
 19 
 
 23 
 
 27 
 
 4 
 
 4 
 
 11 
 
 18 
 
 Wed 
 
 Thu 
 
 Fri 
 
 Sat 
 
 Sun 
 
 Mo 
 
 Tue 
 
 
 
 
 
 3 
 
 5 
 
 12 
 
 19 
 
 Tue 
 
 Wed 
 
 Thu 
 
 Fri 
 
 Sat 
 
 Sun 
 
 Mo 
 
 16 
 
 20 
 
 24 
 
 28 
 
 2 
 
 6 
 
 13 
 
 20 
 
 Mo 
 
 Tue 
 
 Wed 
 
 Thu 
 
 Fri 
 
 Sat 
 
 Sun 
 
 17 
 
 21 
 
 25 
 
 29 
 
 1 
 
 7 
 
 14 
 
 21 
 
 Sun 
 
 Mo 
 
 Tue 
 
 Wed 
 
 Thu 
 
 Fri 
 
 Sat 
 
 
 
 
 
 
 1 
 
 2 
 
 3 
 
 4 
 
 4 
 
 5 
 
 6 
 
 EXPLANATION OF 
 
 
 7 
 
 8 
 
 8 
 
 9 
 
 10 
 
 11 
 
 12 
 
 THB CALBNDAS. 
 
 
 12 
 
 13 
 
 14 
 
 15 
 
 16 
 
 16 
 
 17 
 
 
 Years of the 
 
 18 
 
 19 
 
 20 
 
 20 
 
 21 
 
 22 
 
 23 
 
 The days of the 
 
 Century. 
 
 
 
 
 
 
 
 
 different months, as 
 
 24 
 
 24 
 
 25 
 
 26 
 
 27 
 
 28 
 
 28 
 
 given above, fall, in 
 
 
 29 
 
 30 
 
 31 
 
 32 
 
 32 
 
 33 
 
 34 
 
 any year, on the 
 
 
 35 
 
 36 
 
 36 
 
 37 
 
 38 
 
 39 
 
 40 
 
 week-day found op- 
 posite the century 
 
 N. B.— Leap 
 
 40 
 
 41 
 
 42 
 
 43 
 
 44 
 
 44 
 
 45 
 
 (Old or New Style) 
 
 years being In- 
 
 46 
 
 47 
 
 48 
 
 48 
 
 49 
 
 50 
 
 51 
 
 in which the year 
 
 serted twice, tbe'i 
 
 52 
 
 52 
 
 53 
 
 54 
 
 55 
 
 56 
 
 56 
 
 occurs, and over 
 
 first number is 
 
 
 
 
 
 
 
 
 the year thereof. 
 
 used when the 
 
 57 
 
 58 
 
 59 
 
 60 
 
 60 
 
 61 
 
 62 
 
 The line of week- 
 
 given date is in 
 
 63 
 
 64 
 
 64 
 
 65 
 
 66 
 
 67 
 
 68 
 
 days in which that 
 
 January or Feb- 
 
 68 
 
 69 
 
 70 
 
 71 
 
 72 
 
 72 
 
 73 
 
 day is found under 
 
 ruary; the second 
 
 
 
 
 
 
 
 
 any month (with 
 
 for the other 
 
 74 
 
 75 
 
 76 
 
 76 
 
 77 
 
 78 
 
 79 
 
 the month-day 
 
 months. 
 
 80 
 
 80 
 
 81 
 
 82 
 
 83 
 
 84 
 
 84 
 
 numbers above) 
 
 
 85 
 
 86 
 
 87 
 
 88 
 
 88 
 
 89 
 
 90 
 
 forms the entire 
 Calendar for that 
 
 
 91 92 
 
 92 
 
 93 
 
 94 
 
 95 
 
 96 
 
 month and year. 
 
 I 
 
 96 97 
 
 98 
 
 99 
 
 100 
 
 100 
 
 
 
 Example 1. To find the day of the week for July 4th, 1881. Opposite 
 Century 19, New Style, and over year 81, is Saturday. Therefore, July 2d 
 is Saturday ; and the line of week-days in which Saturday falls under July 
 (which is the second line), with the days of the month above, constitutes 
 the entire Calendar for July, 1881, according to which the 4th falls on 
 Monday. 
 
 Example 2. To find the day of the week on which Columbus discov- 
 ered America, October 12, 1492, Old Style. Opposite Century 15, Old Style, 
 and over 92 in black letter (it being leap year). Is Monday. Therefore, 
 October 8th was Monday ; and the line of week-days in which Monday 
 falls under Mondays (which is the sixth), with the days of the month 
 above, constitutes the entire Calendar for October, 1492, Old Style, and 
 the 12th, as seen falls on Friday. 
 
 Copyright, 1875, by Jos. P. Bradley 
 
334 
 
 MISCELLANEOUS WRITINGS. 
 
 TABLE 
 
 FOR FINDING MEAN TIME OF NEW MOON FOR ANY MONTH 
 AND YEAR IN A PERIOD OF THIRTY CENTURIES. 
 
 B. C 
 
 D. 
 
 H. 
 
 M. 
 
 Years of each century 
 
 Moon's 
 
 Moon's retarda- 
 tion in each 
 
 
 
 
 
 800 
 
 7 
 
 18 
 
 31 
 
 arranged in Metonic 
 
 advance in 
 
 mouth, except 
 March, in which 
 it advances. 
 
 700 
 
 12 
 
 2 
 
 55 
 
 Cycles of 19 years 
 each. 
 
 each year. 
 
 600 
 
 16 
 
 11 
 
 19 
 
 
 
 
 500 
 
 20 
 25 
 
 19 
 4 
 
 42 
 4 
 
 
 
 
 400 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 300 
 
 29 
 
 4 
 
 12 
 8 
 
 26 
 3 
 
 I. 
 
 n. 
 
 m. 
 
 IV. 
 
 V, 
 
 VI. 
 
 D. 
 
 H. 
 
 M. 
 
 
 D. 
 
 H. 
 
 M. 
 
 200 
 
 1 
 
 20 
 
 39 
 
 58 
 
 77 
 
 96 
 
 
 
 
 
 
 
 Jan. 
 
 
 
 
 
 
 
 100 
 
 8 
 
 16 
 
 23 
 
 2 
 3 
 
 21 
 22 
 
 40 
 41 
 
 59 
 60 
 
 78 
 79 
 
 97 
 98 
 
 18 
 8 
 
 31 
 6 
 
 33 
 21 
 
 Feb. 
 Mar. 
 
 1 
 + 
 
 11 
 
 1 
 
 16 
 
 
 28 
 
 A. D. O. S 
 
 4 
 
 23 
 
 42 
 
 61 
 
 80 
 
 99 
 
 27 
 
 3 
 
 54 
 
 Apr. 
 
 1 
 
 9 
 
 48 
 
 
 5 
 6 
 
 24 
 25 
 
 43 
 
 4.4 
 
 62 
 63 
 
 81 
 82 
 
 100 
 
 15 
 
 4 
 
 12 
 21 
 
 42 
 31 
 
 May 
 June 
 
 1 
 3 
 
 21 
 8 
 
 4 
 
 1 
 
 13 
 
 
 
 43 
 
 20 
 
 101 
 
 17 
 
 9 
 
 2 
 
 7 
 
 26 
 
 45 
 
 64 
 
 83 
 
 
 23 
 
 19 
 
 4 
 
 July 
 
 3 
 
 19 
 
 36 
 
 201 
 
 21 
 
 17 
 
 21 
 
 8 
 
 27 
 
 46 
 
 65 
 
 84 
 
 
 13 
 
 3 
 
 52 
 
 Aug. 
 
 5 
 
 6 
 
 52 
 
 301 
 
 26 
 
 1 
 
 38 
 
 9 
 
 28 
 
 47 
 
 66 
 
 85 
 
 
 1 
 
 12 
 
 41 
 
 Sep. 
 
 6 
 
 18 
 
 8 
 
 401 
 
 30 
 
 9 
 
 55 
 
 10 
 
 29 
 
 48 
 
 67 
 
 86 
 
 
 20 
 
 10 
 
 13 
 
 Oct 
 
 7 
 
 5 
 
 24 
 
 501 
 
 5 
 
 5 
 
 28 
 
 11 
 
 30 
 
 49 
 
 68 
 
 87 
 
 
 9 
 
 19 
 
 2 
 
 Nov. 
 
 8 
 
 16 
 
 40 
 
 601 
 
 9 
 
 13 
 
 44 
 
 12 
 
 31 
 
 50 
 
 69 
 
 88 
 
 
 28 
 
 16 
 
 34 
 
 Dec. 
 
 9 
 
 3 
 
 55 
 
 701 
 
 13 
 
 21 
 
 59 
 
 13 
 
 32 
 
 51 
 
 70 
 
 89 
 
 
 17 
 
 1 
 
 23 
 
 
 
 
 
 801 
 
 18 
 
 6 
 
 13 
 
 14 
 
 33 
 
 52 
 
 71 
 
 90 
 
 
 6 
 
 10 
 
 12 
 
 In Leap-year, re- 
 
 901 
 
 22 
 
 14 
 
 27 
 
 15 
 
 34 
 
 53 
 
 72 
 
 91 
 
 
 25 
 
 7 
 
 44 
 
 tardation 1 day 
 
 1001 
 
 26 
 
 22 
 
 40 
 
 16 
 
 35 
 
 54 
 
 73 
 
 92 
 
 
 14 
 
 16 
 
 33 
 
 more after Feb- 
 
 1101 
 1201 
 
 1 
 6 
 
 18 
 2 
 
 8 
 20 
 
 17 
 18 
 
 36 
 37 
 
 55 
 56 
 
 74 
 75 
 
 93 
 94 
 
 
 3 
 
 21 
 
 1 
 '22 
 
 21 
 
 ruary. 
 
 
 54 
 
 
 1301 
 
 10 
 
 14 
 
 io 
 
 18 
 
 31 
 41 
 
 19 
 
 38 
 
 57 
 
 76 
 
 95 
 
 
 11 
 
 7 
 
 43 
 
 N. B. Columns 
 
 1401 
 
 
 2, 3, 4 show the 
 
 1501 
 1601 
 
 19 
 23 
 
 2 
 10 
 
 51 
 59 
 
 CORRECTION. 
 
 firstNewMoonin 
 the century, in 
 January; 11, 12, 
 13 show Moon's 
 
 1701 
 
 27 
 
 19 
 
 8 
 
 
 
 a. M. 
 
 advance in each 
 
 
 
 Cycle II. Bissextile ... + 16 31 
 
 year; 15, 16, 17 
 
 A. D. N. S. 
 
 1, 2, 3 after Bis. — 7 29 
 III. Bis. & 3 after Bis. + 92 
 
 show Moon's re- 
 tardation in each 
 
 1501 
 
 29 
 
 2 
 
 51 
 
 month. Correc- 
 
 1, 2 after Bis. . — 14 58 
 
 tions for irregu- 
 
 1601 
 1701 
 
 3 
 9 
 
 22 
 6 
 
 15 
 24 
 
 lY. Bis. & 2, 3 after Bis. + 1 34 
 
 larities of Moon's 
 motion would not 
 
 1801 
 
 14 
 
 14 
 
 31 
 
 1 after Bis. . —22 26 
 V. All years . . — 5 55 
 
 vary the result 1 2 
 hours either way. 
 
 1901 
 2001 
 
 19 
 24 
 
 22 
 6 
 
 38 
 
 47 
 
 VI. Bissextile . . . +10 36 
 
 Time : Washing- 
 ton — reckoned 
 
 2101 
 
 29 
 
 14 
 
 54 
 
 1, 2, 3 after Bis. —13 24 
 
 from midnight. 
 
 DiRBCTiONS — Add together time of Centurial New Moon and Moon's 
 advance for the year, applying correction: deduct retardation for the 
 month, adding a lunation (29d. 12h. 44m.) if necessary; or casting out a 
 lunation if the result exceeds the number of days in the mouth ; the re- 
 mainder will be the time of mean New Moon for the month required. 
 For mean Full Moon, add or subtract half a luuatiou (14d. 18h 22m.) 
 BXAMPI.B: Required mean New Moon for October, 1879. Here, Centurial 
 New Moon for 1801 N. S. is 14d. 14h. 31m.; Moon's advance for 79, 8d, 6h. 
 21m.: sum, 22d. 20h. 52m. Correction for Cycle V., — 5h. 65m.; remainder, 
 22d. 14. 57m. Retardation for October, 7d. 6h 24m.; which deducted, 
 leaves 15d. 9h. 33m. That is, Mean New Moon October 15, at 9h. 33m.A.M. 
 
SCIENTIFIC " STUDIES," LETTERS, ETC. 335 
 
 THE NEW CALENDAR PROPOSED. 
 
 [From Tie Nation of April 29, 1875.] 
 
 The National Academy of Sciences has just con- 
 cluded its April meeting in Washington, which was 
 held at the Smithsonian Institution, under the presi- 
 dency of Professor Henry. The attendance w^as not 
 large, either of members or of the public, but a respect- 
 able number of papers were read, of -which a very full 
 report has been given by the Tribune. Of the more 
 strictly scientific papers that of Professor Loomis of 
 Yale College on the results to be reached from a dis- 
 cussion of the signal service maps, and Professor 
 Langley's account of Solar phenomena observed at 
 Allegheny Observatory, w^ere of most general interest 
 w^hilst President Barnard's Report for the Committee 
 on Weights, Measures and Coinage, and Mr. Justice 
 Bradley's (of the Supreme Court) proposal for a 
 reform of the Gregorian Calendar, referred most 
 directly to practical questions. The reform of the 
 calendar has been somewhat fully discussed lately, and 
 a bill setting forth that " the Gregorian year pays no 
 proper respect to the cardinal points in the earth's 
 orbit," and proposing to secure such respect, was laid 
 before the House of Representatives at its last session. 
 Mr. Justice Bradley's plan proposes to fix the begin- 
 ning of the year at the winter solstice (December 21) 
 and to divide it into four unequal parts of 90, 93, 93 
 and 89 days. In leap years the last part is to have 
 90 days. In the remarks on this paper a much better 
 plan w^as mentioned, which had been previously dis- 
 cussed by the Philosophical Society of Washington. 
 This was to begin the year with 21st December, and 
 
336 MISCELLANEOUS WRITINGS. 
 
 to divide it into six parts of two months each, each 
 part to have sixty-one days in leap years, and the last 
 part to have but sixty days in common years. 
 
 The scheme would be somewhat as follows for a 
 common year of both systems : 
 
 Jan. Feb. Mch. Apl. Ma^ Jun. July Aug. Sep. Oct. Nov. Dec. 
 Gregorian 31 28 31 30 31 30 31 31 30 31 30 31 
 Ideal 31 30 31 30 31 30 31 30 30 31 30 30 
 
 Thus, only February, August and December w^ould 
 be altered by this ingenious plan, which is due to Mr. 
 E. B. ElHott, the statistician. 
 
 [Prom The Nation, May 13, 1875]. 
 
 An esteemed correspondent writes us from Wash- 
 ington : "In noticing Mr. Justice Bradley's proposed 
 arrangement of the calendar, you did not explain the 
 manner in w^hich, by his plan, the year w^ould be 
 divided into four quarters of three months each, 
 exactly corresponding with the four natural divisions 
 of the year made by the sun's arrival at the two 
 equinoxes and two solstices. Thus, beginning at the 
 winter solstice, when the sun is at the extreme southerly 
 point reached by him, where he commences his return 
 to the north. Judge Bradley would place the new year, 
 or January 1st, on the present 21st day of December. 
 Then giving to January, February and March each 
 thirty days, the 1st of April, or beginning of the 
 second quarter, will, in common years, fall on the 21st 
 of March, and in leap year, on the 20th of March, or 
 exactly at the vernal equinox, when the sun is on the 
 equinoctial line and the days and nights are equal. 
 Then, giving to the next six months, each thirty-one 
 
SCIENTIFIC "studies," LETTERS, ETC. 337 
 
 days, the 1st of July, or the beginning of the third 
 quarter will fall in common years on the present 22d 
 of June, and in leap years on the 21st, which is the 
 summer solstice, when the sun is at his farthest point 
 north, and the days are longest ; and the 1st of Octo- 
 ber, or beginning of the fourth quarter, will fall in 
 common years on the 23d September, and in leap 
 years on the 22d, which is the autumnal equinox, 
 when the sun recrosses the line and the days and 
 nights are equal again. Then giving to October and 
 November each thirty days, and to December twenty- 
 nine in common years and thirty in leap years, the 1st 
 of January will again fall on the present 21st of Decem- 
 ber in all cases. This allotment of days to each 
 month is easy to remember; is as convenient as 
 any, and makes them correspond to the great natural 
 phenomena of the sun's annual circuit. It is a lesson 
 in astronomy in itself, and is generally approved as the 
 best plan that has been proposed. The placing of the 
 intercalary day of leap year at the end of the year 
 would be a great advantage in all astronomical calcu- 
 lations and arrangements of the calendar. And the 
 conformity of the entire civil year to the natural year 
 w^ould, of course, be an advantage amply sufficient to 
 compensate for any temporary inconvenience arising 
 from the change. No alteration in the recurrence of 
 leap years from the arrangement of the Gregorian 
 Calendar is proposed. That is sufficiently accurate 
 for many centuries to come. The law prepared by 
 Judge Bradley to effect the proposed change, and 
 •which w^as read to the National Academy of Science, 
 is extremely simple and comprehensive, and w^ould 
 obviate all inconveniences of a business character that 
 could possibly arise. 
 
338 MISCELLANEOUS WRITINGS. 
 
 NEW CALENDAR PROPOSED. 
 
 Washington, April 17, 1875. 
 J. E. HiLLGARD, Esq. 
 
 Dear Sir : Allow me to recur to the subject of a 
 natural and a scientific year. This year ought to 
 correspond with the natural Solar year. In the 
 northern hemisphere the natural commencement of the 
 year is at the time of the sun's station in the winter 
 solstice. Then he commences his return to warm and 
 vivify the w^orld and reclothe it with vegetation. 
 Every rustic, by noting the sun mark in his doorway, 
 can tell when the old year ends and the new begins. 
 
 The average time of the winter solstice is December 
 22d, at 1 A. M. From the winter solstice to the 
 vernal equinox is about eighty-nine days, one hour; 
 from thence to the summer solstice is about ninety- 
 three days, less three and one-half hours ; thence to 
 the autumnal equinox, about ninety-three days, four- 
 teen and three-quarter hours ; thence to the w^inter 
 solstice again, about ninety days, less six and one-half 
 hours. 
 
 By commencing the year on December 21st and 
 giving to the winter ninety days, spring ninety-three, 
 summer ninety-three, and fall eighty-nine in common 
 years, and ninety in leap years, w^e shall have for 
 January, February and March thirty days; April, 
 May and June each thirty-one days ; July, August and 
 September each thirty-one days; October, November 
 and December each thirty days, in leap year— December 
 one less other years ; and the seasons will commence 
 very nearly at the equinoxes and solstices. The first 
 days of January, April, July and October would then 
 
SCIENTIFIC "studies, LETTERS, ETC. 
 
 fall, according to the present calendar, on the 21st of 
 December, the 21st of March, 22d of June and 23d of 
 September. The cardinal points would occur on these 
 days in the majority of cases. 
 
 No change would be required except that of 
 advancing the year eleven days and placing the inter- 
 calary day of leap year at the end of the year. Sup- 
 posing the change to be made in December of this 
 year, 1876, the year 1877 would commence December 
 21 and end December 20, and contains 365 days; 
 1878 ditto, 1879 ditto; 1880 would commence 
 December 21, 1879, and end December 20, 1880, and 
 contain 366 days, the 29th February making the 
 additional day. The calendar wotdd continue to 
 follow the Gregorian style. The same years would be 
 leap year as now. 
 
 This arrangement would correspond with nature 
 and would be attended with many advantages. The 
 placing the intercalary day at the end of the year 
 would be worth the trouble. 
 
 The following bill w^ould effect the change and 
 obviate all civil inconveniences : 
 
 BILL. 
 
 A BILL TO REFORM THE CIVIL YEAR. 
 
 1. Be it ENACTED, that, after proclamation shall 
 be made as hereinafter provided, the civil year shall 
 commence -with the 21st day of December, according 
 to the present reckoning, and the month of January 
 shall be advanced so as to begin with that day ; and 
 the months shall follow each other in the same order 
 as heretofore, and shall have the following number of 
 days, respectively, to wit: January, February and 
 
3'iO MISCELLANEOUS WRITINGS. 
 
 March, each thirty ; April, May and June, each thirty- 
 one ; July, August and September, each thirty-one ; 
 October and November, each thirty, and December 
 thirty in leap years and twenty-nine in common years. 
 
 2. And be it enacted, that the President of the 
 United States be, and he is hereby requested to instruct 
 the Ministers and other representatives of the Govern- 
 ment of the United States in foreign countries where 
 the Christian year is used, to lay before the respective 
 governments to which they may be accredited the plan 
 for rearranging the civil year, as presented in the first 
 section of this act, and to endeavor to procure their 
 co-operation therein ; and as soon as, in the judgment 
 of the President, a sufficient number of said govern- 
 ments shall consent to join in such new arrangement, 
 the President is hereby authorized and directed by 
 public proclamation to declare when the said arrange- 
 ment shall commence ; and the year which shall pre- 
 cede the commencement of said arrangement, shall 
 terminate at the end of the 20th day of December 
 instead of the 31st day of said month, and the next 
 civil year shall commence on the next following day. 
 
 3. And be it enacted, that the change of the 
 civil year, herein provided for, when the same shall 
 take place, shall not have the effect of shortening or 
 anticipating any period of time provided for in any 
 contract, or the period of arriving at any year of age, 
 or the period provided for the running of any statute 
 of limitations, or for the publication of any notice or 
 order, or for the doing of any act, matter or thing, 
 except, however, and it is provided, that in all cases 
 where nominal days of any months or year are, or 
 shall be fixed, prescribed or allotted by law, custom. 
 
SCIENTIFIC "studies," LETTERS, ETC. 341 
 
 usage, by-law or regulation for the meetings of any 
 public or private bodies whatever, or for the com- 
 mencement of the terms of any courts, or for the 
 commencement or termination of any term of office, 
 or for the acts of any officers or persons whatever, the 
 said meetings, terms and acts respectively, shall be 
 held, commenced, terminated, and performed respect- 
 ively on the same nominal days in the civil month or 
 year as newly arranged. 
 
 A LETTER FROM JUDGE BRADLEY, OF THE 
 
 SUPREME COURT OF THE UNITED STATES 
 
 TO THE SECRETARY OF THE 
 
 TREASURY. 
 
 Washington, April 15, 1872. 
 Hon. George S. Boutwell, 
 
 Secretary of the Treasury. 
 
 Sm: For the purpose of promoting the object 
 of a large number of engineers and others inter- 
 ested in steam transportation, who desire that 
 Congress should authorize experiments to be made to 
 ascertain, with greater certainty, the cause of explo- 
 sions and the best means of preventing them, and at 
 the instance of persons speaking in their behalf, I have 
 taken the liberty of addressing you the following 
 letter. I hope that the intrinsic importance of the 
 subject -will be my excuse for troubling you with its 
 perusal. 
 
 After the lapse of more than fifty years, the subject 
 of explosions of steam boilers has lost none of its interest 
 
342 MISCELLANEOUS WRITINGS. 
 
 or importance. They recur as frequently as ever, and 
 are attended with frightful results to persons and 
 property. Legislation has hitherto w^hoUy failed to 
 correct the evil. The cause of this failure has been 
 the ignorance which has existed (and which stiU exists) 
 with regard to the precise causes by w^hich explosions 
 are produced. The want of proper experiments on 
 real boilers has left the matter open to speculation ; 
 and the result is a wide diversity of opinion amongst 
 even skillful engineers as to the true causes of these 
 disasters. With such a diversity of opinion, it is 
 impossible to procure verdicts against those who are 
 really guilty of negligence. In nearly all cases that 
 have occurred since the passage of the first law^ in 
 1838, the guilty party has been shielded by the uncer- 
 tainty and doubt that has prevailed as to the causes 
 of the explosion. The notion has become prevalent 
 that these accidents (as they are called) are the result 
 of some mysterious cause — the production of an 
 unknown gas, the combination of electrical and chem- 
 ical forces, against w^hich no foresight can guard. 
 Such notions have a tendency to stop inquiry, as well 
 as to relax the attention and watchftdness of engineers 
 in charge. A series of experiments, conducted on a 
 proper scale, and in a proper method, would undoubt- 
 edly tend to dispel such illusions and to reveal the 
 exact causes of explosion, against which it is necessary 
 to guard. And whatever diversity of opinion exists 
 among engineers as to these causes, it is believed that 
 they are quite unanimous as to the necessity of direct 
 proof, by experiments on actual boilers, on the follow- 
 ing points : first, the comparative strength of old and 
 new boilers, of boilers differently constructed, and of 
 
SCIENTIFIC "studies," LETTERS, ETC. 343 
 
 boilers constructed of different kinds of iron; and, 
 secondly, the methods of reUeving them of too great 
 pressure. 
 
 But the experiments that are requisite for attain- 
 ing these ends require too great an outlay of money 
 to be maintained at private expense. They need, and 
 should have, the support of Government, especially as 
 the Government attempts (veiy properly) to regulate 
 the subject. 
 
 Experiments on the causes of boUer explosions 
 were made about thirty-five years ago by the Franklin 
 Institute of Philadelphia, and a report was made to 
 the Secretary of the Treasury, who had furnished the 
 funds. These experiments were made by a very able 
 board, of which Prof. A. D. Bache was chairman. The 
 results obtained and the deductions from them consti- 
 tute nearly all that is now known on the subject of 
 explosions and of the means of preventing them. This 
 report has been published all over Europe, and forms 
 the standard of reference. (See Report E, Doc. 162, 
 1st Sess., 24th Cong.) But these experiments were 
 made upon model boilers of small dimensions, for the 
 purpose of obtaining theoretical results as to the 
 behavior of the structure under certain pre-conceived 
 conditions. The trial of real boilers and the careful 
 examination of boilers actually burst, and especially 
 the reconstruction and testing of them under various 
 conditions, was not attempted. 
 
 There have been as yet, in no country, any serious 
 attempts made by trials and experiments on steam 
 boilers of the size and kind generally used, to find the 
 laws governing explosions ; or to find the means of 
 preventing them. From their dangerous nature, 6uch 
 
y-i^ MISCELLANEOUS WRITINGS. 
 
 experiments cannot be made upon boilers in use ; and 
 the examination of the debris of an explosion generally 
 adds nothing to our knowledge. The necessity of 
 such experiments has been acknowledged in all coun- 
 tries where steam is employed ; but the expense and 
 difficulty of making them on actual boilers have pre- 
 vented their being made. From a few experiments 
 made at Sandy Hook in November last, upon boilers 
 of different ages, in the presence of a large number of 
 engineers, it became perfectly apparent that much is 
 yet to be learned on the entire subject, and that intel- 
 ligent and efficient legislation cannot be devised in 
 reference to it until the investigation is prosecuted 
 much farther than it has yet been. The probability is 
 very great that, contrary to opinions frequently 
 advanced, there are no forces acting in the explosions 
 of steam boilers but such as can be controlled, and 
 that in every instance, by proper experimental inquiry, 
 the true cause can be ascertained. 
 
 The principal objects of a proper system of experi- 
 ments would be the following : 
 
 1. To detect the faults in the ordinary construction 
 of boilers. 
 
 2. To adopt more perfect means of preventing 
 dangerous pressure. 
 
 3. To acquire such certainty as to the true causes 
 of disasters by explosions that the penal laws on the 
 subject may be strictly and intelligently enforced, and 
 that thereby owners, constructors and those having 
 charge of boilers may be more careful and diligent in 
 the performance of their duties to the public. 
 
 In view of these considerations, it seems to me that 
 Congress would do veiy •wisely to authorize the Gov- 
 
SCIENTIFIC " STUDIES," LETTERS, ETC. 345 
 
 emment to have a series of experiments made, under 
 the charge of a board of skillful engineers, for the 
 purpose of ascertaining those results, which the 
 increased facilities of the engineering art would now 
 render attainable. 
 
 I have the honor to forward with this a copy of 
 the report made by Chief Engineer Isherwood and 
 others of the experiments made at Sandy Hook in 
 November last, to which allusion has been made. A 
 more full report by Professor Thurston, illustrated by 
 drawings, has been published in the Franklin Institute 
 Journal. 
 
 I also forward the draft of law, or joint resolution, 
 which would enable the President, through either of 
 the executive departments, to institute the experiments 
 w^hich I have indicated. 
 
 I have taken an interest in this subject, and have 
 presumed to address you upon it, under the belief that 
 the experitnents proposed would have more effect in 
 producing the adoption of safeguards against the 
 disasters continually occurring from boiler explosions 
 than any regulations which can at present be made. 
 The whole steam transportation of the country and 
 of the world, and, indeed, the entire commerce of 
 the world, is deeply interested in the ascertainment of 
 the precise laws and exact data on which to calculate 
 and provide for these disasters. 
 
 Respectfully, your obedient servant, 
 
 (Signed) JOS. P. BRADLEY. 
 
346 MISCELLANEOUS WRITINGS. 
 
 AN ACT TO AUTHORIZE INQUIRIES INTO THE 
 CAUSES OP STEAM BOILER EXPLOSIONS. 
 
 Be it enacted, etc. 
 
 Section 1. That the President of the United 
 States be, and he is hereby, authorized to cause such 
 experiments to be made and such information to be 
 collected as, in his opinion, may be useful and important 
 to guard against the bursting of steam boilers ; and 
 that he be required to communicate the same to Con- 
 gress ; and that the sum of one hundred thousand 
 dollars be appropriated for the purpose of this act. 
 
 RECURRENCE OP ICE PERIODS IN THE 
 NORTHERN HEMISPHERE. 
 
 The absolute zero of temperature is — 459.13 Pahr- 
 enheit, or 491.13 below the freezing point. This fact 
 is deduced, amongst other things, from the law of 
 expansion of gases, which is jgois part of their 
 volume at 32 ° Fahrenheit for each additional degree 
 of temperature. Therefore the freezing point, or 32° 
 Fahrenheit, is 491.13° above absolute zero. Suppos- 
 ing this to be the mean temperature, in New Jersey, on 
 the first of January, when the earth is now in its 
 perihelion, what would it be if the earth were in its 
 aphelion instead of its perihelion on the first of 
 January ? This would depend on the relative distance 
 of the earth from the sun at its perihelion and 
 aphelion, and would be inversely as the squares of 
 those relative distances. These relative distances are, 
 
SCIENTIFIC " STUDIES," LETTERS, ETC. 347 
 
 for perihelion 89,897,000 miles, and for aphelion 
 92,963,000 miles, so that the absolute heat derived 
 from the sun in those two positions would be as 
 (92,963)' to (89,897)'. Thus, (92,963)' (89,897)'; 
 491.13° : 459.27°, showing a difference of 31.86°. 
 
 This would make the temperature of our winters 
 about 32° less than at present. Ten thousand five 
 hundred years ago the earth was in aphelion on the 
 1st of January. 
 
 STANDARD OF WEIGHTS AND MEASURES. 
 
 The English yard is the standard of measure in 
 the British Empire and in the United States. The 
 metre is the standard in France and in several Euro- 
 pean countries. The ratio between them is as 1 to 
 1.093633 ; or as 36 inches to 39.370791 inches. The 
 yard is the more convenient of the two, corresponding 
 better to the natural pace, and to the height and 
 fathom of a man, tw^o yards being equal to the height 
 and to the fathom (or extension of the arms ) of a man of 
 full height. It can also be more easily reconstructed 
 if the standard measuring rod should be lost. By 
 Act of ParUament of Great Britain, it is declared 
 that if the standard yard shall be lost, or destroyed, 
 it shall be restored by making a new standard yard, 
 bearing the proportion to a pendulum vibrating 
 seconds of time in the latitude of London, in a vacuum, 
 and at the level of the sea, as 36 inches to 39.1393 
 inches. This is the actual relation between them, and 
 a new standard yard exactly equal to the present one 
 could be constructed from a pendulum. But if the 
 
348 MISCELLANEOUS WRITINGS. 
 
 standard metre should be lost or destroyed, it could 
 not possibly be re-constructed, except in the same -way. 
 In theory it is supposed to be one ten millionth part 
 of the length of the meridian passing through Paris 
 from the equator to the pole. The length of this 
 meridian was ascertained by estimation in French 
 toises, made from several measurements of arcs in 
 different countries. There is no certainty that a new 
 estimation would be the same. Besides, the estimation 
 itself is based on an old standard — the toise. The 
 standard metre w^as made up of so many parts of a 
 toise. It depends on the toise, and that has gone into 
 disuse, and had no natural standard to govern its 
 length. The certainty and uniformity of the metre, in 
 fact, depends upon some one metalic bar in Paris, just 
 as the certainty and uniformity of the yard depends, 
 in practice, on another metalic bar in London. Destroy 
 those metalic bars, and both the yard and the metre 
 vsrould have to be reproduced in precisely the same w^ay. 
 The best standard, after all, would be the distance 
 between two bolts driven into the face of some rock, 
 and repeating the process in every civilized country, and 
 in many places. These bolts being faced with a non- 
 corroding metal, and having fine lines drawn perpen- 
 dicularly through the centres, each country could 
 measure the distance between these Knes with its 
 own standards. The distance might be sufficiently 
 large to avoid the multiplication of errors, say ten, 
 twenty or thirty feet, so as easily to be transferred 
 from one country to another by means of a single rod. 
 In this way a uniform measure could be preserved in 
 the world for many ages ; and each nation could, as 
 occasion required, correct its owti standard thereby. 
 
SCIENTIFIC " STUDIES," LETTERS, ETC. 349 
 
 It wotdd undoubtedly be a matter of great con- 
 venience to have uniform weights, measures and money 
 throughout the world, but it is a thing of very 
 difficult accomplishment, each nation being wedded to 
 its own long-used standards. There is no reason on 
 earth why the English-speaking world should abolish 
 their standards and adopt the French. For me, it 
 excites my disgust and indignation to see our sciolists 
 in their written articles using the metre instead of the 
 foot and yard. Our literature and our statistics for a 
 thousand years are pervaded with references to our 
 own standards. Our ideas are all graduated to them 
 by habit and usage. Why should we be frightened 
 from our propriety by a set of French enthusiasts, 
 who wish to have the general regulation of all things ? 
 If their metre had anything on earth to recommend it 
 as a standard in preference to our yard, there might 
 be some reason for joining in the cry for the Metric 
 System. But it has not a single thing to give it such 
 a recommendation. The decimal division, if that is 
 thought desirable, is as applicable to our standards as 
 to the metre. We all use decimals every day of our 
 lives. I concur entirely in the views expressed by Sir 
 John Herschel in his essay on the Yard, the Pendulum 
 and Metre, and I hope that our volatile and change- 
 loving people will never consent to the adoption of 
 the French System. 
 
 July 3d, 1880. 
 
350 MISCELLANEOUS WRITINGS. 
 
 THE FORCE OF WATER AS USED IN HYDRAULIC 
 MACHINERY IN MINING. 
 
 The circumstances which led to this publication 
 are detailed in the following letter from Mr. Justice 
 Field to ex-United States Senator James G. Fair : 
 
 Washington, D. C, February 23, 1891. 
 Hon. James G. Fair. 
 
 Dear Sir : Last evening I dined at General Scho- 
 field's and met the President. There were a number of 
 distinguished people present besides the President, 
 among w^hom w^ere the Chief Justice, the Speaker of the 
 House of Representatives, Senators Sherman, Stanford 
 and McMillen, Secretary of the Treasury, Windom 
 and Mr. McKinley and Mr. Wheeler of the House. 
 During the evening the conversation turned upon 
 California and her wonderful products and mining 
 operations. I took occasion to speak of hydraulic 
 mining and the wonderful manner in which the hills 
 are torn down by hydraulic machinery. I stated that 
 I had understood you to say that such was the force 
 of the water thrown through a hose, when it came 
 from one to two hundred feet in height, that boulders 
 weighing half a ton could be held* (moved) by streams 
 playing upon them, and that the force was sometimes 
 so great that it would be impossible to cut the stream. 
 At this statement much surprise was manifested, and 
 I thought a smile of incredulity passed over the 
 features of the guests. Seeing this, I said that I would 
 prove the facts stated in a communication to them. 
 
 Now, I write to you for the information desired. 
 Please send me some carefully prepared statistics as to 
 
SCIKNTIFIC "studies," LETTERS, ETC. 351 
 
 hydraulic mining, particularly as to the power exerted 
 by a column of water thrown by such machinery, and 
 as to how large boulders can be held* (moved) by the 
 force of the stream, and on the point whether it is true 
 that the force of the stream is sometimes so great that it 
 cannot be cut. I would be much obliged if you could 
 give me full particulars in regard to these matters in a 
 communication that I can use, if necessary. I propose 
 to send a letter to each one of the guests, stating the 
 facts, and thus remove the incredulity which they 
 evinced when the statement was made by me. I want 
 to show that it was only the result of a want of 
 experience in hydraulic mining, their situation being 
 somewhat like that of the King of Siam, w^ho was 
 oflfended when an English visitor told him that in his 
 country w^ater was often so hard that he could w^alk 
 upon it. 
 
 Please let me hear from you at your earliest con- 
 venience, and believe me to be, 
 
 Very sincerely yours, 
 
 (Signed) STEPHEN J. FIELD, 
 
 Not having received an answer from Mr. Fair, on 
 account of his illness, Mr. Justice Field wrote a similar 
 letter of enquiry to Augustus I. Bowie, Esq., of San 
 Francisco, the author of a work of great learning and 
 merit on "Hydraulic Mining"; and also another 
 letter of the same character to Mr. Christy, Professor 
 of Mining and Metallurgy in the University of Cali- 
 fornia. 
 
 • "Moved" instead of "held" was what was meant; as the very 
 force striking the boulder -would put It in motion instead of keeping it in 
 repose, unless special preparation were made for the Impact, as stated in 
 the letter of Prof. Christy. 
 
352 MISCELLANEOUS WRITINGS. 
 
 Subsequently a letter was received from Mr. Fair, 
 enclosing one on the subject from Mr. Glass, who for 
 sixteen years had been superintendent of a hydraulic 
 mine in that State, and also the following 
 
 LETTER FROM MR. JUSTICE BRADLEY OF THE U. S. 
 SUPREME COURT. 
 
 Washington, D. C, March 5, 1891. 
 Dear Judge Field : 
 
 The velocity of water issuing from a pipe is, of 
 course, due to the pressure it receives — natural or 
 artificial. If derived from a natural head of w^ater, it 
 is proportional to the square root of such head or 
 height. If it were not for the resistance from the 
 friction of the pipe and contraction of the vein as it 
 issues from it, the velocity would be eight times the 
 square root of the height in feet, or, more accurately, 
 8.025 times. The resistance varies according to circum- 
 stances. If the water has to be carried a long distance 
 in the pipe, or if the pipe is rough or crooked, it is 
 considerable. Supposing the reservoir near, and the 
 pipe favorably arranged, the velocity will be 75 per 
 cent, of the theoretical amount, or six times the square 
 root of the height. Thus, suppose the head to be 
 450 feet ; its square root is 21.2, multiplied by 6, it 
 equals 127.2 feet velocity per second. If the cross- 
 section of the pipe w^ere equal to one square foot, this 
 velocity would produce a discharge of 127.2 cubic 
 feet per second. A round pipe, 6 inches in diameter, 
 having a cross-section of only .19635 square feet, 
 would discharge only 24'.975 (say 25) cubic feet per 
 second. 
 
SCIENTIFIC " STUDIES," LETTERS, ETC. 353 
 
 But this 25 cubic feet issues with a velocity of 
 127.2 feet. Multiplied together, it shows an effective 
 force, or momentum, of 3,180 cubic feet moving at 
 the rate of 1 foot per second. As each cubic foot of 
 water weighs 62% pounds, the above result is equiva- 
 lent to 198,750 pounds, moving 1 foot per second. 
 This is what is meant by foot pounds. 
 
 A horse-pow^er is equal to 33,000 foot pounds per 
 minute, or 550 per second. Therefore, dividing 
 198,750 by 550, we have 461i*t horse-power. 
 
 The force of soft substances, when thrown vrith 
 great velocity, almost exceeds belief. A gun w^adding 
 may be made to perforate a plank. An injector has 
 been invented (by a Mr. Jeffards, I believe) for injecting 
 water into a locomotive boiler, in which the pressure 
 often exceeds 100 pounds to the square inch ; and yet, 
 by this instrument, a small, swift stream of water is 
 injected into the boiler with perfect ease. I can w^ell 
 believe all that you say with regard to the tremendous 
 force of streams issuing from the pipes of the miners 
 under a large head of water. Of course they would 
 produce instant death if directed against a man stand- 
 ing near, and would probably cut his body in two. 
 
 Yours sincerely, 
 
 (Signed) JOSEPH P. BRADLEY. 
 
RELIGIOUS AND MORAL. 
 
ESSAYS AND LETTERS. 357 
 
 JUDGE BRADLEY ON RELIGION IN THE CONSTI- 
 TUTION. 
 
 Among the letters received by Rev. Mr. McAlister, 
 Secretary of the Association -which recently held a 
 convention in Cincinnati for the purpose of urging an 
 amendment to the Constitution, which shall acknowl- 
 edge God, w^as the following from Judge Bradley, of 
 the U. S. Supreme Court. It shows his own convic- 
 tion of the necessity of religion as the basis of civil 
 government, but it must reside not in the written 
 Constitution, but in the people themselves, and cannot 
 be forced into them by legislation : 
 
 Washington, December 7, 1871. 
 Rev. D. McAlistek. 
 
 Dear Sir : Yours of the 2d instant has been 
 received, requesting me to unite in the call of a conven- 
 tion favorable to an amendment of the Constitution 
 of the United States, which shall acknowledge God as 
 the author of the nation's existence and the source 
 of its authority, Jesus Christ as its Ruler, and the 
 Bible as the foundation of its laws and the supreme 
 rule of its conduct. As you have done me the honor 
 of writing me a special letter on the subject, I feel 
 bound in courtesy to answer it. 
 
 I have never been able to see the necessity or 
 expediency of the movement for obtaining such an 
 amendment. The Constitution was evidently framed 
 and adopted by the people of the United States with 
 the fixed determination to allow absolute religious 
 freedom and equality, and to avoid all appearance 
 even of a State religion, or a State endorsement of 
 
358 MISCELLANEOUS WRITINGS. 
 
 any particular creed or religious sect. Various oaths 
 of office and of fidelity to the Constitution are pre- 
 scribed in the instrument itself, but always coupled 
 with an alternative privilege of making an affirmation 
 instead of an oath. And after the Constitution in 
 its original form was adopted, the people made haste 
 to secure an amendment that Congress shall make 
 no law respecting an establishment of religion, or 
 prohibiting the free exercise thereof. This shows the 
 earnest desire of our Revolutionary fathers that religion 
 should be left to the free and voluntary action of the 
 people themselves. I do not regard it as manifesting 
 any hostility to religion, but as showing a fixed 
 determination to leave the people entirely free on the 
 subject. 
 
 And it seems to me that our fathers were wise ; 
 that the great voluntary system of this country is 
 quite as favorable to the promotion of real religion as 
 the systems of governmental protection and patronage 
 have been in other countries. And whilst I do not 
 understand that the association which you represent 
 desire to invoke any governmental interference, still 
 the amendment sought is a step in that direction 
 which our fathers (quite as good Christians as our- 
 selves) thought it wise not to take. In this country 
 they thought they had settled one thing at least, 
 that it is not the province of government to teach 
 theology. 
 
 Therefore, whilst no person in your association 
 places a higher estimate than I do on the great 
 importance and absolute necessity of religious training 
 and religious convictions to the stability of any gov- 
 ernment ; I do not believe that the end will be at all 
 
ESSAYS AND LETTERS. 359 
 
 subserved by the proposed Constitutional amendment. 
 Religion, as the basis and support of civil government, 
 must reside, not in the written Constitution, but in 
 the people themselves. And we cannot legislate religion 
 into the people. It must be infused by gentler and 
 wiser methods. 
 
 Respectfully, your obedient servant, 
 
 JOSEPH P. BRADLEY. 
 
 CHRISTIANITY, ITS IMMORTALITY. 
 
 A noble evidence of the living and inextinguishable 
 truth of Christianity is the fact of the Reformation. 
 That Reformation was but an emanation of the spirit 
 of Christianity itself. Other religions have forever 
 gone on in the accumulation of ceremonies and super- 
 stitious observances, and never exhibited any innate 
 principle of life sufficient to throw off the deformities 
 so superinduced upon them. If they have felt the 
 benefit of a correcting hand, that hand has been 
 directed and applied by the progressive influence of 
 the sciences and civilization. But the Christian religion, 
 kindled by the fire of its own never-dying truth as 
 preserved in the Holy Scriptures, the flame that rose 
 so luminously over the nations of the West in the 
 middle of the sixteenth age. 
 
 December 2, 1838. 
 
360 
 
 MISCELLANEOUS WRITINGS. 
 
 NOAH'S ARK. 
 
 This structure was 500 feet long and 75 in width, 
 and consisted of three stories. This would admit on 
 each story four rows of stalls lengthwise of the ark, 
 each 14 feet in depth, leaving two passages the whole 
 length 9% feet in width, according to the annexed 
 figure. 
 
 
 
 
 
 
 
 
 
 
 
 500 Pebt in 
 
 Length 
 
 . 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Passage 9V4 Fbet. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Passage 9% Feet. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 500 Peet in Length. 
 
 14 Ft. 
 
 91/2 Ft. 
 
 14 Ft. 
 
 14 Ft. 
 9% Ft. 
 14 Ft. 
 75 Ft. 
 
 Each row divided into 62 stalls would give them 8 
 feet in -width — this w^ould be sufficient for each species 
 of animal on an average, and consequently would 
 accommodate 248 species of animals. Gleig says that 
 there have been estimated from 200 to 250 different 
 species of quadrupeds. The Editor of Buffon's Nat. 
 Hist, says that some minute philosophers even go so 
 far as to make 400 species. This appears to be extrav- 
 agant. See Raleigh's History of the World. Raleigh, 
 following Budaen's, makes only 264 individual animals 
 in the ark, 89 species — but this was in the beginning 
 of the nineteenth century. 
 
 Now, we may suppose that the contents of the 
 ark were distributed somewhat in this way. The 
 
ESSAYS AND LETTERS. 361 
 
 reptiles and the provisions for the beasts in the lower 
 story, the beasts on the second story, and the birds 
 and Noah's family in the third story, together -with 
 their provisions. It is supposed that there were only 
 three kinds of beasts which went in by sevens — cows, 
 sheep and goats, and two kinds of birds — turtles and 
 pigeons, as these w^ere the only animals used in sacri- 
 fices. Vid. Brown's Diet., Title " Beast," and Bokart's 
 Hierozoicon, in which latter w^ork the Zoology of the 
 Bible is ably discussed. 
 
 Noah went into the ArK aoout the 1st of November. 
 The Hebrew^ year for civil purposes commenced with 
 the month Tisri, w^hich w^as the month or moon that 
 commenced nearest to the Autumnal Equinox. 
 
 THE MORAL FACULTY. 
 
 The Moral Faculty is that power of the mind 
 which perceives, approves and obeys the right as dis- 
 tinguished from the wrong in actions. It has three 
 distinct ftmctions, as indicated by the definition — ^per- 
 ception of what is right ; approval of it ; and deter- 
 mination to follow it. 
 
 The first of these, perception, is sometimes called 
 the moral sense, moral consciousness, or, simply con- 
 science ; the second, approval, is called moral disposi- 
 tion or rectitude, the third is called the will. 
 
 A highly civilized and Christian society, like ours, 
 possesses so many means of moral instruction, and so 
 much moral light, that it is not difficult in most cases 
 to know what is right and what is wrong. The 
 
362 MISCELLANEOUS WRITINGS. 
 
 conscience becomes insensibly educated to a high 
 standard. The lessons of the Bible as expounded in 
 religious assemblies, in schools and in families ; the 
 ethical teachings of our laws and literature ; of our 
 daily intercourse with others and our own experience, 
 leave little to be sought in the way of instruction, 
 except amongst the very poor and destitute classes. 
 Still, some men are gifted with a keener sense of right 
 and wrong than others. 
 
 The second function, moral approbation or inclin- 
 ation, is not so generally depraved as some imagine. 
 Most men approve right rather than wrong ; would 
 rather do right than wrong, if other motives did not 
 intervene. A pure love of evil is not an innate senti- 
 ment of the human heart. Men do evil not for the 
 love of evil, but because seduced by appetites and 
 passions. Wealth, power, sensual pleasure often 
 present strong temptation to adopt devious w^ays for 
 their attainment. 
 
 And here comes in the proper ofl&ce of the will, the 
 third function of the moral faculty. It is not so much 
 for lack of knowledge of what is right, nor of 
 appreciation of the right, that men do wrong ; but 
 the great source of evil-doing lies in the will. The 
 will is not strong enough to resist temptation ; to 
 wrestle w^ith the appetites and passions. Here is the 
 weak point of human nature — the strength of the 
 passions and the feebleness of the will to resist them. 
 With the strongest desire to do right, with even a love 
 of the right, the will often weakens before temptation, 
 like wax before fire, and straightway wrong is com- 
 mitted, followed by sorrow and remorse of conscience. 
 
 The great problem, therefore, for every one to solve 
 
ESSAYS AND LETTERS. 363 
 
 is, how to subdue his passions and strengthen his will 
 to act rightly. The two things, though mutually 
 concerned in the formation of the moral character, are 
 not reciprocal. A strong will may co-exist with 
 fierce passions, and keep them in subjection, but the 
 true Christian soldier will guard well both sides of the 
 fort. He will endeavor to subdue his passions, and, 
 at the same time, to strengthen his will power. 
 
 The power of the will is very different in different 
 persons by natural constitution. The will is as 
 much a natural faculty in each individual as memory 
 or imagination or any other innate pow^er, in which 
 men differ as much as they do in stature and features. 
 Hence, if the will is naturally weak, or inclined to 
 weakness, it requires great and continued attention 
 and habitual effort to bring it to a condition of per- 
 manent improvement in strength and firmness. Lax 
 measures will never succeed. The least indulgence of 
 weakness throws all back again to be recovered by 
 repeating the same painful efforts as before. In this 
 respect a naturally weak will is like drunkenness, 
 which, when it has once subdued a man to its bondage, 
 cannot be thrown off by fitful efforts at reformation ; 
 but must be utterly crushed out and destroyed by a 
 firm and persistent rejection of every solicitation and 
 approach. 
 
 An indispensable means of fortifying the will is the 
 adoption of fixed principles of action, to be adhered 
 to without swerving ; principles based on truth and 
 right. Anything that for an instant solicits, or even 
 suggests, a departure from these principles should be 
 instantly repelled without allowing the indulgence of 
 
364 MISCELLANEOUS WRITINGS. 
 
 a thought that it can be entertained for a moment. 
 The importance of having settled in one's mind a 
 system of fixed principles of conduct cannot be over- 
 estimated. 
 
 PRECEPT AND EXAMPLE. 
 
 1. In morals, precept is nothing, example is every- 
 thing. A really good and noble character once clearly 
 discerned in its living active force, is a better incentive 
 to virtue than all homilies. But as such a vision is 
 not often vouchsafed ; as men do not thus ordinarily 
 reveal themselves to others ; the nearest approach to 
 the same thing is the daily and hourly life and conduct 
 of such a person ; by which, as by letters and signs, 
 the true character is gradually revealed and made 
 known, imprinting itself, like a portrait, upon the 
 minds and hearts of others. 
 
 2. In human life opportunity is everything. Suc- 
 cess depends upon opportunity. Acquirements, learn- 
 ing, aptitude, practical ability, greatness, depend on 
 opportunity. A library placed away in a dark or 
 cold room, or on inaccessible shelves, will benefit a 
 man or his family but little. But if ranged around 
 the family rooms, where all is cheerful and pleasant, 
 where the family live, and within reach of the hand, it 
 will become a rich treasure and an indispensable 
 luxury. 
 
 The best legal talents, without opportunity for 
 their exercise, will rust and decay ; without oppor- 
 tunity for their display, they will disgust their 
 
ESSAYS AND LETTERS. 365 
 
 possessor. Life consists in hope, and a consciousness 
 of being of some use in the world. Without these it 
 is a living death. Without opportunity, hope and joy 
 are strangers to the yearning soul. 
 
 3. The active employment of the faculties alone 
 can make us useful or happy. Hence it is that 
 adversity is a rich soil which ever produces fruitful 
 results in character and ability. It puts a young man 
 upon his mettle, brings out what is excellent and good in 
 him, and makes him a really great and noble character. 
 But prosperity is attended with ease and indolence as 
 inseparably as the shadow^ follows the sun. Thus it 
 happens that our greatest and best men, as well as 
 our most wealthy and successful, are constantly 
 springing up from the lower or middle classes of 
 society. Thus it also happens that troublous times 
 in the history of a nation almost invariably produce 
 examples of great talent and heroism. And nothing, 
 on the other hand, is more sure to sap the foundations 
 of national strength than habits of luxury and ease 
 indulged in by its young men. Every American, as a 
 matter of honor and just pride, ought to have a call 
 ing — a something to do ; and he ought conscientiously 
 to foUow^ it, not only on account of the example, but 
 on his own accont. 
 
 4. Those who place religion in the belief of certain 
 theological dogmas mistake its true character. Christ 
 placed it in love to God and man. John held these to 
 be inseparable. " If a man say he loves God and 
 hateth his brother, he is a liar." James declared that 
 pure religion is this, to visit the fatherless and widow 
 in their affliction and to keep himself from the world. 
 Paul said, " There are three things, faith, hope and 
 charity, and the greatest of these is charity." 
 
366 MISCELLANEOUS WRITINGS. 
 
 5. The Greek expression for human perfection, To 
 KaAor, is full of deep meaning. To say and to do just 
 what is proper on every occasion of life is indeed per- 
 fection, if not greatness. It implies being equal to 
 every occasion, and meeting it accordingly. If this is 
 not true greatness, what is ? He who is competent to 
 the age and country in which he lives; silent when 
 silence is proper ; eloquent, when eloquence is needed ; 
 energetic in action, when action is required ; always 
 accomplishing, always meeting the demands of the 
 time ; is either the truly great man, or better than a 
 great man. 
 
 6. It is the duty and should be the pride of every 
 American to have an honest and useful calling, and to 
 pursue it. I care not what it is ; be it honorable and 
 faithfully pursued. This is necessary to the interest of 
 the Commonwealth, and to the happiness and virtue 
 of the individual. It should also be necessary to the 
 entr6 of society. Elegant lotmgers should be as coldly 
 received as tipplers and gamblers. But w^hilst this is 
 our beau-ideal of a healthy social life, it is perhaps too 
 much to expect of ordinary human nature. 
 
 EXAMPLE. 
 
 An act of kindness to another does more to produce 
 a kind feeling on his part than the finest lesson in 
 words. Kindness produces kindness ; sympathy, sym- 
 pathy ; anger, anger ; and every emotion felt and 
 exhibited is met responsively by corresponding emo- 
 tions in others. This is the sentiment which the Jewish 
 
ESSAYS AND LETTERS. 367 
 
 interpreters attribute to the proverb : "As in water 
 face answereth to face, so the heart of man to man." 
 The facts of human consciousness and experience are 
 the safest interpreters of religious and moral formulas. 
 For those formulas have generally been attempts to 
 express such consciousness and experience. And actual 
 manifestations of character make a far deeper impres- 
 sion than set moral phrases or the best composed 
 lessons. Actions speak louder than words. Just as 
 in the natural world, or in matters of science, a fact 
 actually observed is rarely forgotten, whilst verbal 
 lessons conveying the same facts pass unheeded, so in 
 the moral world, real exhibitions of character, dispos- 
 ition or principle affect the heart more deeply, and the 
 conduct more durably, than any verbal teachings 
 can do. Hence Christ profoundly enjoins, " Let your 
 light so shine before men that they may see your good 
 works, and glorify yotir Father wrhich is in heaven." 
 
 REFORMERS. 
 
 Great Reformers are such because they are great 
 thinkers, and hence, in advance of their times. A few 
 great seminal thoughts affecting practical life generally 
 characterize their teachings. These are often repeated 
 in conversations and presented in different points of 
 view, until their hearers become perfectly imbued with 
 their spirit. Their written works are generally the 
 least important part of their power, which arises 
 more from their personal influence, and the intensity 
 of their conceptions and utterances. Their most pow- 
 
368 MISCELLANEOUS WRITINGS. 
 
 erful and influential sayings are recorded by devoted 
 followers, and tlius preserved for the guidance of future 
 ages. Witness the remains of Confucius, which 
 were collected and preserved by his disciples. " The 
 Master said," thus and so, is the style in which 
 they read. Socrates wrote no book. His scholars 
 reported his conversations. Jesus Christ's discourses 
 are all that we have of him. Mahomet's chapters of 
 the Koran were oracular discourses uttered at various 
 times. Luther wrote, it is true, but his great pow^er 
 lay in his talking and preaching, and in his bold 
 enunciations of grand truths. His " Table Talk," so 
 assiduously preserved by his companions, show the 
 man and his power far better than any of his treatises. 
 The Reformer was not Luther, the man of the closet, 
 but Luther, the man of the world. The secondary 
 spirits of the Reformation, Melancthon, Calvin, etc., 
 wrote and acquired greatest repute by their writings. 
 And so I might go on with the list. 
 
 THE LORD'S PRAYER. 
 
 The Lord's Prayer is an Epitome of Christianity, 
 as taught by Jesus Christ. " Our Father in Heaven" 
 teaches us to address our petitions immediately to the 
 Supreme Being, without intervention or mediation — 
 without the aid of Priest or intercessor. Whether poor 
 or rich, wise or foolish, we are all equal before him 
 whom we address. It teaches that He is One ; that 
 He is our Father, consequently, that He cares for us, 
 and will protect and bless. 
 
ESSAYS AND LETTERS. 369 
 
 Where, when or by whom, before Jesus Christ, was 
 it taught thus? Fatherhood of God— Brotherhood 
 of Men. " Hallowed be thy name." That is, may 
 we be imbued with the deepest reverence for Thy 
 being and character. 
 
 " Thy Kingdom come, Thy will be done on earth 
 as it is in heaven." 
 
 This is an aspiration for God's reign in earth — over 
 the hearts and lives of all men ; a longing for universal 
 truth, justice and love. 
 
 " Give us this day our daily bread," that is all, not 
 Power, Wealth, Glory, but that which suffices for our 
 sustenance and comfort and elevation in knowledge 
 and usefulness. 
 
 "Forgive us our debts as we forgive our debtors." 
 
 " Lead us not into temptation, but deliver us from 
 evil." 
 
 That is, remit, overlook, forgive, our past ofiFences, 
 and help us to offend no more. Remove temptation 
 from us. Keep us from falUng. 
 
 Here is the whole essence of the Christian religion. 
 
 1. God's existence, fatherhood and loving kind- 
 ness to all, and hence His attention to our wants and 
 prayers. 
 
 2. The equaHty and brotherhood of all men, and 
 hence the duty of Universal Charity. 
 
 3. The prime importance of our spiritual nature, 
 and hence the secondary importance of sensuous and 
 material things. 
 
 4. The need of God's forgiveness and help, and 
 hence the hopelessness of an unforgiving spirit. 
 
 In reason w^e can only ask forgiveness as we for- 
 give. 
 
370 MISCELLANEOUS WRITINGS. 
 
 THE BIBLE. 
 
 As a book of pious meditation and exercitations 
 on morality and religion, the Bible is a valuable repos- 
 itory. The Jewish intellect was ever keen and its 
 religious insight profound, tracing with remarkable 
 accuracy the springs of action and the respective con- 
 sequences of immoral and virtuous conduct. 
 
 The devotional fervor of the Psalms, the senten- 
 tious wisdom of the book of Proverbs, and the pro- 
 found reflections of Ecclesiastes on the vanity of life 
 are, in their several ways, superior to any similar 
 productions of other nations. The sublime emotions 
 of the soul when conscious of a Divine Presence 
 and the stem conclusions of Reason on human char- 
 acter and destiny, cannot be fitted to more beautiful 
 or expressive forms of imagery and speech. The 
 prophetical writings also abound with sublime pas- 
 sages of exalted moral exhortation and instruction, as 
 well as vehement denunciations of vice. Add to these 
 the simple and searching lessons of faith, sincerity, 
 purity of heart and universal charity of the New 
 Testament, and we shall find sufficient foundation for 
 the moral power exerted by the Christian religion 
 upon the nations which have been subjected to its 
 influence. The theological dogmas and articles of 
 faith which have been attached to it, whether from 
 the first, or by subsequent ecclesiastical authority, 
 have not affected its genuine power over the hearts 
 and lives of men as an instrument of moral elevation, 
 civilization and refinement. 
 
 This much may be said of the value and influence of 
 the Bible, without entering into the question of special 
 
ESSAYS AND LETTERS. 371 
 
 revelation and miracles, which have so much agitated 
 both the curious inquirers and the superstitious 
 devotees of the Christian -world. And this view of 
 its office and mission is consistent with the free and 
 intelligent use of all similar aids to virtue and spiritual 
 elevations to be found in the sayings of the great 
 and good of all nations and times. It is an undue 
 exaltation of a single book which places all others in 
 the background as utterly worthless. The Caliph 
 Omar committed this error when he ordered the burn- 
 ing of the Alexandrian library, on the ground that if 
 it contained more than was in the Koran it could not 
 be true, and if it contained less, it was useless. The 
 gathered wisdom of the ages is the common inherit- 
 ance of mankind, and every scattered ray contributes 
 to the full blaze of modem enlightenment. The skil- 
 ful eclectic will find many gems of truth in the utter- 
 ances of Menu, Boudha and Confucius, and much 
 soTind ethics in the Greek and Roman philosophies. 
 To despise them is to throw away a large portion of 
 the legacy of antiquity. It w^ould be equal folly to 
 reject the wisdom of the modems. 
 
 The difiictdty is, that there is a strange tendency in 
 human nature to adopt some one authoritative stand- 
 ard and blindly to rest on that, rejecting everything else. 
 This tendency sometimes goes so far as to adopt some 
 man or class of men to decide all matters of faith and 
 duty. The generality of mankind prefer implicitly to 
 follow ; and hence they are ever ready to worship 
 some saint in religion and hero in power, or some one 
 or more whom they imagine to be such. But a wise 
 man is he who tries all things and holds fast to that 
 which is good. 
 
 July 7, 1.875. 
 
372 MISCELLANEOUS WRITINGS. 
 
 TRANSLATIONS, 
 
 Translations are made upon different principles ; 
 some are very literal, preserving the idioms and 
 arrangement of the original text ; others are so free 
 and paraphrastic that the original work is hardly 
 recognized. It is singular that the two greatest Bible 
 translators in modem times, Luther and Tyndale, 
 adopted, independently of each other, a most excellent 
 principle, which greatly contributed to the popularity 
 of their respective works ; and this was, to render the 
 Bible into pure vernacular speech adapted to the com- 
 mon understanding, and avoiding all idiomatic pecul- 
 iarities of the original tongues, and all unnecessary 
 ecclesiastical and scholastic terms. They thus produced 
 for their respective nations, German and English, the 
 People's Book, which not only addressed itself to the 
 popular heart, but became the standard of the lan- 
 guage. "If God spare my life," said Tyndale, "ere 
 many years I will cause a boy that driveth the plow 
 to know more of the Scriptures than the Pope does." 
 "The words of the Hebrew tongue," said Luther, 
 " have a peculiar energy. To render them intelligently 
 w^e must not attempt to give them word for word, 
 but only aim at the sense and idea. In translating 
 Moses I made it my effort to avoid Hebraism ; it was 
 an arduous business." The revisers of King James's 
 time strove to make the translation more literal, and 
 in doing so often injured its beauty and force. 
 
ESSAYS AND LETTERS. 373 
 
 THE ENGLISH TRANSLATION OP THE BIBLE. 
 
 HISTOBUCAL LECTURE BY JOSEPH P. BRADLEY. 
 
 Joseph P. Bradley, Esq., delivered an interesting 
 lecture on the " History of the English Translation of 
 the Bible," in the lecture room of the North Reformed 
 Dutch Church, last evening (December 26, 1867). The 
 easy colloquial style which the lecturer assumed gave 
 additional interest to his discourse and made the enter- 
 tainment thoroughly enjoyable. He first stated, by way 
 of introduction, that it w^as undoubtedly the intention 
 of the Almighty that the Bible shotdd be given to 
 every people in their own language, that they might be 
 fiilly able to understand it. This, certain orders of the 
 clergy for ages refused to acknowledge, being desirous 
 of making their professional class necessary as inter- 
 preters between God and the people and of preserving 
 the mystery w^hich w^as necessarily connected with the 
 Word of God in an unknown tongue. He then briefly 
 considered the history of the English language and 
 from w^hat dialects it was formed, and what progress 
 had been made in the Anglo-Saxon literature, in the 
 Norman, and finally in the two combined, or the 
 Enghsh. In the Saxon, there were five or six transla- 
 tions of the four gospels, in the Norman there was 
 only one. 
 
 The latter was not much used, as the lower class 
 of the people knew^ but little of what was to them a 
 foreign dialect. In the century in which the Norman 
 and Saxon became united, John Wicklifie lived. To him 
 belongs the honor of the first English translation. By 
 
374 MISCELLANEOUS WRITINGS. 
 
 his own labors in 1360 he had completed the New 
 Testament ; in 1380, with the aid of others, the whole 
 Bible was completed. Printing not having been 
 invented, the circulation of this was of necessity very 
 slow^. There are now extant over one hundred copies 
 of the manuscript in different parts of England ; and 
 the Bible has been printed within a few years past as a 
 literary curiosity to show the condition of the language 
 in the fourteenth centuiy. Mr. Bradley read the fifth 
 chapter of Matthew and the Lord's Prayer from 
 Wickliffe's translation. 
 
 During the fifteenth century England w^as under 
 Popish influence, and attempts were made to repress 
 the translations which had already been made. About 
 the middle of the century, in 1452, the Greeks were 
 driven from Constantinople and the learning which 
 they had centered there was spread over the w^estem 
 world. English literature received new accessions by 
 the settlement of some of the Greek scholars as pro- 
 fessors in their institutions of learning. This, vrith 
 other favoring causes, gave an impetus to mind, and 
 produced a general awakening of the nations — called 
 by the French, the Renaissance, and by the English and 
 Germans, the Reformation. In 1517 Luther set in 
 motion the ball which never rested in its course till 
 the thralldom of the dark ages was broken. William 
 Tjmdale was one of those men in England in whose 
 breast the fire of pure religion burned. 
 
 He was a profound scholar, and felt an ardent desire 
 to give to his countrymen the unadulterated word of 
 God, which he loved so much ; and in 1520 he declared to 
 an eminent divine of the old school, " Ere many years 
 I will cause a boy that driveth a plow to know more 
 
ESSAYS AND LETTERS. 375 
 
 of the Scripture than you do." And he lived to make 
 his prophecy good. He soon afterwards commenced 
 the work of translating the Scriptures, as WickliflFe's 
 translation w^as almost unintelligible to the common 
 people at that time, owing to the changes in the lan- 
 guage. In 1525 the New Testament w^as completed. 
 Tyndale w^as compelled to go to Germany to have it 
 printed, as any attempt at that time in England to 
 circulate the Scriptures w^ould have been punished with 
 martyrdom. In Germany he commenced a translation 
 of the old Testament, and had proceeded as far as to the 
 end of Chronicles w^hen he was apprehended and put 
 to death. John Rogers, an Englishman residing in 
 Antwerp (the same who afterwards suffered martyr- 
 dom under Queen Mary), undertook the work of revis- 
 ing and printing the translation. When he had 
 completed Tyndale's work — the whole of the New^ 
 Testament and the Old as far as Chronicles — he 
 depended on Coverdale's translation for the remainder, 
 which had been printed but not yet published. Cover- 
 dale had made free use of Tyndale's translation as far 
 as it had been published, in making his own, and 
 Rogers procured the use of his (Coverdale's) in those 
 portions of the Bible which Tyndale had not translated. 
 Coverdale's version was published in England about 
 the same time that Tyndale's was, but never obtained 
 the public favor. 
 
 In 1537 Rogers completed his work, and some 
 London publishers had the good fortune to get the 
 royal license for its dissemination in England. But 
 Tyndale, its author, had in the previous October 
 suffered martyrdom for his glorious work. His Bible, 
 however, thus introduced into England, not under his 
 
376 MISCELLANEOUS WRITINGS. 
 
 name, but under the fictitious name of Thomas 
 Matthew, met an auspicious reception, and became 
 widely circulated. It has always gone by the fictitious 
 name of Matthew's Bible, and hence the true author 
 has never received the credit due for such a noble 
 legacy to the people and language of England. This 
 is the Bible which, with slight revision, we have at 
 this day, and w^hich is generally accredited to King 
 James's translators. Their work, however, though a 
 good w^ork (as we shall see hereafter) w^as a mere 
 work of revision, and not translation, and the great 
 body of the English Bible, as they left it, was given to 
 the English nation by William Tyndale, and in a subor- 
 dinate degree, by Coverdale, it is but just to assign to 
 them the credit of the translation. Other nations had 
 the Bible translated into their languages at nearly the 
 same time. A German translation was made in 1480 ; 
 it was not, however, a perfect one, and in 1532 their 
 present translation, made by Luther, appeared. A 
 Dutch translation was made in 1526, a Low^er Saxon 
 in 1533 and a German Swiss in 1529. 
 
 At the conclusion of the address the audience 
 requested that the history of the translations be con- 
 tinued at an early day. Mr. Bradley consenting, 
 Thursday, the 9th of January, was appointed. 
 
 ENGLISH TRANSLATION OF THE BIBLE (II). 
 
 The history of this translation by Christopher 
 Anderson is exhaustive of the subject, except in regard 
 to the sources of the various revisions. A critical 
 
ESSAYS AND LETTERS. 377 
 
 examination of the original translation and of each 
 revision thereof, compared with the critical apparatus 
 which each editor had to aid him, would reveal not 
 only the progress made at each step, but the sources 
 from which every improvement or change w^as derived. 
 The article "Version Authorized," in Smith's Bible 
 Dictionary, is also very full on the subject. 
 
 The Anglo-Saxons had several different versions 
 of the Gospels, the Psalms, some of the Epistles and 
 other parts of the Bible. But no trace has been found 
 of a version of the entire Bible. These versions w^ere 
 made from the Latin Vulgate, which was then the 
 only text in general use in Western Europe, and w^ere 
 made from the ninth to the twelfth centuries. 
 
 John Wickliffe completed an English version of the 
 Vulgate New Testament in 1360, and with the aid of 
 Nicholas de Hereford and Richard Purvey completed 
 the entire Bible in 1380 or 1382. Wickliffe died 1384. 
 A large number of the Wickliffe Bibles are extant in 
 manuscript. 
 
 MODERN ENGLISH VERSIONS. 
 
 1. Tyndale's 
 
 New Testament, 1526. 
 
 Pentateuch, 1531. 
 
 Book of Jonah. 
 
 Historical Books 0. T. not published but 
 
 used by John Rogers in Matthew's Bible> 
 
 1537. 
 
 2. Coverdale's, 1535, printed (i. e., dated) but not 
 published until 1537. 
 
378 MISCELLANEOUS WRITINGS. 
 
 3. Matthew's, 1537. Edited byjohn Rogers under 
 the fictitious name of Thomas Matthew, and composed 
 of Tyndale's as far as translated by him, and the 
 balance of CoTerdale's, all somewhat revised and 
 corrected. 
 
 4. Taverner's, 1539. 
 
 5. Cranmer's, 1540. 
 
 6. Genevan, 1557, 1560. 
 
 7. Bishop's, 1568. 
 
 8. Thomson's New Testament, 1576. 
 8a. Rheimish New Testament, 1587. 
 8b. Douay Bible, 1609. 
 
 9. Authorized Version, 1611. 
 
 JUDGE BRADLEY ON THE OLD ENGLISH BIBLE. 
 
 [The Evangelist, Thursday, May 3, 1883.] 
 
 [Mr. Justice Bradley, of the Supreme Court of the 
 United States, is not only a distinguished Judge but 
 an eminent scholar as well. Master of several lan- 
 guages, his familiarity with them has taught him to 
 appreciate the more the good old Saxon, which is the 
 basis of our mother tongue. This leads him to prize 
 and cherish the old English Bible without any of the 
 modem " revisions " or improvements. The following, 
 which a friend has kindly obtained for us, with per- 
 mission to use it, was written years ago, before the 
 recent Revision was entered upon, and had reference 
 to some versions prepared by individuals, which had 
 a very limited circulation. The observations, there- 
 fore, were not intended to apply to the recent Revision 
 prepared by the best Biblical scholars in England and 
 
ESSAYS AND LETTERS. 
 
 379 
 
 America. No one would appreciate more highly the 
 results of modem learning which might throw light 
 on the word of God. And yet the bearing of what 
 is said here would be against any attempt at revisions ; 
 and without his positive statement on this point, we 
 are inclined to think that if he were asked to form his 
 opinion as a Judge between the two versions— that of 
 King James and the late Revision— he would say : The 
 old is the better.— £cf. Ev.] 
 
 The Enghsh Bible taken altogether is a book which 
 the English-speaking race should love and reverence. 
 It is certainly inspired now if it were not at first. 
 Spiritual meanings, hallowed associations, sacred 
 memories, lurk on every page, in every passage. That 
 which w^as coarse has become chaste ; that v\rhich had 
 little meaning has become big with meaning; that 
 which w^as commonplace has become divine. It is 
 pervaded with the odor of human sanctity, like a 
 garment enclosed in a chest of sandal-wood. It is 
 invested with a halo produced by reverential regard, 
 which ever reacts upon itself, transfiguring that which 
 it gazes upon. Generation after generation has 
 brought to it each its contributions of inspired mean- 
 ings, and it is consecrated by the divinest yearnings of 
 humanity. Add to this its pure archaic English, the 
 very form and body of which has become sacred to 
 the national taste and dear to the national pride, and 
 we may account, in some degree, for the talismanic 
 effect produced by this book of books, which no irrev- 
 erent hand should touch and no irreverent tongue 
 defame. Properly appreciated and wisely used it is 
 the most valuable aid and support to piety and virtue. 
 
380 MISCELLANEOUS WRITINGS. 
 
 I have no patience with the constant attempts to 
 change the common version of the Bible, When it 
 expresses the sense of the original, why change it ? Is 
 it to avoid archaisms ? I like them. They are gener- 
 ally pure old English, which it is well to preserve. In 
 addition to its intrinsic beauty, it serves as an intro- 
 duction to our earlier literature. Besides, we become 
 attached to words that have become sanctified by 
 long use. They often have associations for us that no 
 affected elegance of diction can supply. For example, 
 Noyse and others use the auxiliary verb will for shall. 
 " Blessed are the pure in heart for they will see God." 
 What is gained by this change ? It seems made for 
 the sake of change. Campbell and Boothroyd retain 
 "shall" but discard "blessed" for "happy," and the 
 former discards "pure" for "clean." Thus, "Happy 
 the clean in heart for they shall see God." Is the 
 sense made more perspicuous by these changes ? Not 
 a particle. An old familiar expression is exchanged 
 for a new one, which serves no better purpose in any 
 point of view. Exactly the same moral thought is 
 conveyed to the mind as by the old version ; and that 
 version has been the possession of English readers— 
 not from the time of James, but from the time of 
 Henry VIII, the time of Tyndale and Coverdale. It 
 has been our inheritance for three centuries and a half 
 I may be over-nice, but I confess that such verbal 
 changes in our sacred and venerable classic are offen- 
 sive to my ears. 
 
 The moral lessons of the Bible relate to facts in 
 our experience and to phases of our moral nature. 
 Our own consciousness recognizes their application. 
 Trifling variations of diction can make no alteration 
 
ESSAYS AND LETTERS. 381 
 
 in their substantial sense. That is determined by the 
 real facts of thought, propensity, life. Some human 
 characteristic is the object of each uttered formula of 
 truth or precept, and fixes its true interpretation. 
 Without this objective basis of fact for its application 
 the formula would be meaningless. With it the mean- 
 ing is definite and unchangeable. This is the great 
 conservative element -which makes the Bible a practical 
 book and restrains all fanciful expositions of its 
 language. Therefore it is, that even apologues and 
 parables go straight to their mark and are rarely 
 misunderstood. Conscience, seated in the inner recesses 
 of the human bosom, is quick to perceive and under- 
 stand -what is meant. Some sore spot of guilt or 
 sorrow is instantly touched and responds to the rebuke 
 or the promise. The facts of human nature are the 
 exponents of reUgious teaching. It is here, and here 
 alone, that the teaching finds its application, just as 
 the definitions of science find their true interpretation 
 in the things themselves sought to be defined. No 
 fanciful variations of phraseology in the definition or 
 lesson can alter its substantial significance. When it 
 is said, " Blessed are the pure in heart, for they shall 
 see God," we know^ as well what is meant by the 
 annunciation as if Greek or Syriac w^ere our vernacular 
 tongue and we had heard the original w^ords uttered 
 by the Saviour himself. No exposition can make it 
 clearer. No choice modem phrases can make it better 
 understood. Purity of heart is a spiritual fact, which, 
 Hke a straight line, is always the same under every 
 change of description, and the happiness that springs 
 from it is as aptly suggested by the word " blessed " as 
 by any other. It is a happiness that has a moral 
 
382 MISCELLANEOUS WKITINGS. 
 
 reality, and is not modified or changed by the choice 
 of the words used to describe it. The words we have 
 are good enough, and being hallow^ed by long and 
 devout use, are better than any new-fangled diction 
 that can be devised. 
 
 This instance is but one of ten thousand to which 
 the remarks would apply. I concur in changes that 
 are necessary to correct manifest errors, and in 
 omissions of spurious readings when clearly shown to 
 exist. But in no other case should we alter or touch the 
 venerable fabric of pure, even though archaic, English 
 which we have so long possessed in our standard 
 version of the Bible. It is the poorest pedantry to 
 attempt a correction of either the language or the 
 grammar. Both in their time w^ere as well understood 
 by the translators as they are by modem pedagogues. 
 
 EASTER DAY. 
 
 April 9, 1882. This is Easter day, and, by a 
 coincidence w^hich does not often occur, it is the chron- 
 ological anniversary of Christ's resurrection, which 
 took place April 9, A. D. 30. Last Friday, being Good 
 Friday, was the like anniversary of his crucifixion. 
 The coincidence generally occurs only three times in a 
 century, and sometimes not so often. Thus, it 
 occurred last century in the years 1719 and 1730 ; in 
 the present century in the years 1871, 1882, and will 
 again in 1893, and in the next century it will 
 occur in the years 1939 and 1950. It is observable 
 that when it does occur it is repeated at intervals of 
 
ESSAYS AND LETTERS. 383 
 
 eleven years — ^which arises from the fact that eleven 
 years (three being leap years) contain 4018 days, 
 which taake an exact number of -weeks and nearly an 
 exact number of lunar months, the number of weeks 
 being 574 and the number of lunar months being 136, 
 with a surplus of one day, twenty hours and ten 
 minutes. If, therefore, the fall moon happens on 
 Saturday, 8th April, Easter day will be on the 9th. 
 Eleven years afterward the full moon w^ill occur on 
 Thursday, the 6th April, and Easter on the 9th; 
 eleven years after that full moon will occur on Tuesday, 
 the 4th April and Easter on the 9th. Thus three of 
 these instances may occur successively at intervals of 
 eleven years ; but it would not occur a fourth time, 
 because there can only be three successive eleven year 
 periods, each having three bissextile years ; and if the 
 9th of April happens on Sunday three times successively, 
 yet it cannot do so the fourth time. 
 
 THE WORLD IS NOT ETERNAL. 
 
 That the material world is not eternal is very 
 clearly proved by the progressive changes w^hich it 
 undergoes. It seems clear that worlds are now in the 
 process of formation. Some of the nebulae at least, 
 are agglomerating into revolving spheres, and the 
 solar system presents every indication of having gone 
 through the same process. The sun itself and all the 
 planets have passed through a process of condensation, 
 and are still subject to that process. The billions of 
 years of duration through which the formation and 
 
384 MISCELLANEOUS WRITINGS. 
 
 organizing process has been going on may appall the 
 mind when it attempts to comprehend it ; but were it 
 a billion times longer than it has been, it would still 
 be limited duration, and could constitute no conceiv- 
 able comparison with eternity. We are necessarily 
 carried back, therefore, to a period when the matter 
 of the Solar Universe, and of all other universes, was 
 in a gaseous, chaotic and dispersed state, and when 
 its revolutions, the effect of gravitation, and the cause 
 of distinct formation into spheres, had not begtm. 
 And yet the matter of these universes, if endowed 
 with this gravitating power, must necessarily have 
 begun to move and to revolve as soon as it commenced 
 to exist. If it existed from eternity, its development 
 into spheres must have existed from eternity, and their 
 ultimate state of unchangeable solidity w^ould have 
 been reached before the commencement of time. But 
 we see that this state is not yet reached, and, therefore, 
 it is demonstrable either that the particles of water 
 had a beginning, or that the gravitation of matter 
 had a beginning. But we cannot separate the one 
 from the other. For if the particles themselves are 
 eternal, and gravity had a beginning, what gave it 
 that beginning ? The particles themselves could not 
 evolve it, because having existed eternally without 
 this pow^er, they must have acquired it by its being 
 superinduced from some cause foreign to themselves ; 
 and the creation of this power (gravitation) w^ould 
 be as fatal to the idea of the eternity of the universe 
 as the creation of the particles of matter would be. 
 
 It follows, therefore, as a necessary result, that 
 matter cannot be eternal. And if matter is not eternal, 
 then we are landed upon the necessity of some other 
 eternal existence which has produced matter and its 
 
ESSAYS AND LETTERS. 385 
 
 laws. For the human mind cannot conceive a begin- 
 ning to duration nor the absolute non-existence of 
 some being from eternity. 
 
 The overwhelming law of our own nature there- 
 fore drives us to the belief, nay, to the absolute 
 certainty, of the existence of an eternal and infinite 
 Being who has created all things and given them their 
 laws. 
 
 The fact of progression in the order of nature is 
 abundantly proved by the phenomena exhibited by the 
 planet w^hich we inhabit. The successive geologic 
 periods show the progress from a molten metallic mass 
 on which no life or vegetation could exist, through all 
 the stages of change and development, the origin of 
 vegetable and animal life, the production and disap- 
 pearance of extinct organisms, down to the earth of 
 to-day, on which man and new races of animals find 
 a congenial home. Man himself has passed through 
 changes and progressions. The evidences of his exist- 
 ence grow fainter and fainter as we travel back into 
 the past history of the earth ; and after they begin 
 to show^ themselves, we find on our return upon the 
 track of time that the manifestations of his ctdture 
 and civilization increase age after age until w^e reach 
 the dawn and afterwards the broad dayHght of human 
 history. 
 
 All that is revealed to us in the universe betokens 
 constant change and constant progression. It is this 
 law^ of change and progression on which is based the 
 absolute demonstration that the visible universe had 
 a beginning, and that the only occupant of eternity 
 and immensity was and is and must be its Creator 
 and Governor. 
 
 February 22d, 1883. 
 
386 MISCELLANEOUS WRITINGS. 
 
 [New York Evangelist, June 28, 1883.] 
 
 YEAR AND DAY OF CHRIST'S CRUCIFIXION. 
 
 BY HON. JOSEPH P. BRADLEY, ASSOCIATE JUSTICE OF THE 
 SUPREME COURT OF THE UNITED STATES. 
 
 The exact time of Christ's crucifixion may be 
 approximately demonstrated by astronomical calcula- 
 tion, after paying due regard to the historical data 
 \7e possess. The cardinal conditions required by these 
 data are, first, that the time must be brought within 
 the procuratorship of Pontius Pilate ; secondly, it must 
 be after the fifteenth year of the reign of Tiberius, and 
 after the thirtieth of Christ's age ; thirdly, it must 
 occur on the 15th of the Je-wish month Nisan (or Abib) 
 and on the sixth day of the week, or Friday. 
 
 1. Pilate's procuratorship is fixed as follow^s: 
 From Josephus we learn that Gratus w^as appointed 
 Procurator of Judea by Tiberius, after the death of 
 Augustus (which occurred August 19, A. D. 14) and 
 continued eleven years, and then returned to Rome ; 
 and that Pontius Pilate w^ent out as his successor, and 
 continued ten years, and was then recalled, and started 
 for Rome, but before he arrived Tiberius was dead. 
 As the death of Tiberius happened March 16, A. D. 37, 
 and as it probably took Pilate several months to 
 make his preparations and complete his journey to 
 Rome in the winter, it is apparent that the last year 
 of his administration was A. D. 36, and that his 
 entire administration extended from A. D. 26 to A. D. 
 36 (Josephus' Antiq., b. XVIII, c. H, sec. 2; c. IV, 
 sec. 2). 
 
ESSAYS AND LETtERS. 387 
 
 2. Luke in his Gospel, Chap. Ill, says that the 
 preaching and baptism of John commenced in the 
 fifteenth year of Tiberius Caesar, Pontius Pilate being 
 Governor of Judea; and that Jesus was baptized 
 beginning to be about thirty years of age ; and that 
 immediately afterwards He was tempted, and then 
 returned to Nazareth, and commenced pubHcly to teach 
 the people (Luke, Chaps. Ill, IV). As it is generally 
 agreed that Christ's public ministry continued some 
 three years, the crucifixion must have occurred within 
 three or four years of the above date. 
 
 Now, vrhat year was the fifteenth of Tiberius ? and 
 vyhat year was it in which Jesus began to be thirty 
 years of age ? The years of Tiberius' reign were 
 reckoned from two different epochs ; one, his admission 
 as joint Emperor with Augustus over all the provinces 
 and armies, which took place in the year 12, and the 
 other, his accession to the entire government on the 
 death of Augustus, which occurred in the year 14. 
 The first of these w^ould naturally be used in Judea, 
 and the fifteenth from this epoch would be the year 26, 
 the year in w^hich Pilate's procuratorship commenced. 
 We are confirmed in supposing that this was the year 
 meant when we take into consideration the age of 
 Jesus at that time. We know that he w^as bom in the 
 reign of Herod — ^probably in the last year of his reign, 
 because he is spoken of as still "the yotmg Child" 
 when he was brought back from Egypt on the death 
 of Herod and the accession of Archelaus (Matt, ii, 20). 
 Josephus gives us the materials for fixing the date of 
 Herod's death. He tells us that he was made King 
 by vote of the Roman Senate, with the consent of 
 Augustus, in the 184th Olympiad, when Caius Domitius 
 
388 MISCELLANEOUS WRITINGS. 
 
 Calvinus was Consul the second time, and Caius 
 Asinius PoUio the first time. Their Constdate was 
 in the year of Rome 714 and B. C. 40, and the 184th 
 Olympiad ended July 1, B. C. 40. Therefore, Herod 
 must have been made King before July 1, B. C. 40, 
 and he reigned from that time thirty-seven years ; so 
 that he must have died B. C. 3, and the last year of 
 his reign was B. C. 4-3 (Josephus Antiq., b. XIV, c. 
 XIV, ss. 4, 5 : b. XVII, c. VIII, s. 1 ; Prideaux's Con- 
 nection tmder B. C. 40 and B. C. 4. Therefore, Christ 
 entered upon His thirtieth year in A. D. 26. and com- 
 pleted it in A. D. 27. Therefore, whether he was 
 baptized in the latter part of 26 or the beginning of 27, 
 it would be correctly said that He " began to be about 
 thirty years of age." It seems very clear, therefore, 
 that John's preaching commenced in the year 26, and 
 that Jesus was baptized and commenced preaching at 
 the end of 26 or beginning of 27. His first passover, 
 after He commenced His public ministry, would be 
 either that which took place in the spring of 27 or that 
 which took place in the spring of 28. It is certain 
 that the crucifixion could not have taken place earlier 
 than A. D. 28, and it is not probable that it took 
 place later than A. D. 31, unless the period of His 
 public ministry lasted longer than has usually been 
 supposed. 
 
 And now comes in the astronomical argument 
 depending on the question, was there a year from 28 
 to 31, inclusive, or near that period, in which the 15th 
 of Nisan fell on the sixth day of the week, or Friday ? 
 I have assumed that the crucifixion took place on the 
 15th of Nisan. It seems to me there can be no doubt 
 about it. The Passover was to be killed on the 14th 
 
ESSAYS AND LETTERS. 389 
 
 of Nisan, "between the two evenings" (Ex. XII, 6)— 
 1. e., in the middle of the afternoon, as was always 
 understood and practiced by the Jews. (See Ains- 
 worth's Commentary on the passage). It was to be 
 eaten the same evening. This was also the first day 
 of tmleavened bread. " This day shall be unto you 
 for a memorial, and ye shall keep it a feast to the 
 Lord throughout your generations. Seven days shall 
 you eat unleavened bread ; even the first day ye shall 
 put away leaven out of your houses." (Ex. XII, 
 14^15). Matthew tells us; "Now the first day of 
 the feast of the Unleavened Bread the disciples came to 
 Jesus saying unto Him, Where wilt Thou that w^e 
 prepare for Thee to eat the passover ?" etc. (Matt. 
 XXYI, 17). Luke says: "Then came the day of 
 unleavened bread, when the Passover must be killed, 
 and He sent Peter and John, saying. Go and prepare 
 us the Passover, that we may eat," etc. (Luke XXII, 
 7-8). Then followed the Last Supper and Gethsemane, 
 and the next morning (the 15th of Nisan, of course) 
 Jesus w^as condemned and crucified. I shall assume 
 that that w^as the day, without entering into the 
 controversy about the apparent discrepancy betw^een 
 John and the other Evalgelists. Of course the 15th 
 of Nisan was on the same day of the w^eek as the 1st 
 of Nisan. 
 
 Again, I will assume that the day w^as the sixth 
 day of the w^eek, or Friday — the day preceding the 
 Sabbath, the preparation day. That is almost the 
 universal understanding of Christendom. There are 
 some, it is true, who contend for some other day ; just 
 as there are some who say that Shakespeare did not 
 write the plays that go by his name. But I will not 
 stop to argue the point. 
 
390 MISCELLANEOUS WRITINGS. 
 
 We are to find, then, a year, from 26 to 31 inclusive, 
 in which the 15th, and, of course, the 1st, Nisan fell 
 on Friday. 
 
 The Jewish year was a lunar year, consisting of 
 twelve, and sometimes thirteen, lunar months, and 
 Nisan w^as the first month of the ecclesiastical year. , 
 It will be necessary to fix the true commencement of 
 this month for the years in question. 
 
 As bearing on this subject, the learned Selden, 
 brimful of ancient learning of every kind, in his Disser- 
 tation on the Jewish year, tells us several important 
 things — things that are told by many others, it is true, 
 but by no one of higher authority. We learn from 
 him, first, that the new moon, by which the com- 
 mencement of the Jewish month was fixed, was the 
 visible new moon, or actual phasis, and not the astro- 
 nomical or mathematical new moon ; secondly, that 
 the moon is not visible until after it has passed the 
 sun at least nine degrees, or about eighteen hours, 
 and under some conditions not so soon ; thirdly, that 
 the Jewish year was made to keep approximately 
 abreast the natural year by occasionally adding 
 an additional month — Ve Adar — to the outgoing year ; 
 fourthly, that the first month, Nisan, must come in 
 the spring, so as to make the first ripening grain, 
 or first fruits (according to the course of vegetation 
 in Judea) available for the feast of the Passover; 
 fifthly, that the month commencing with the new 
 moon nearest to the vernal equinox was normally 
 the first month, or Nisan ; for it w^as a rule, derived 
 from old tradition, that the fall moon of the first month 
 must never occur before, but might occur on or after 
 
ESSAYS AND LETTERS. 391 
 
 the vernal equinox ; and if it would otherwise occur 
 before, an intercalary month must be inserted, so as to 
 lengthen the outgoing year; sixthly, that if vegeta- 
 tion w^as very late, or the spring backward, so as to 
 prevent the grain from ripening or to make the roads 
 leading to the city impassable, the Sanhedrim had the 
 po-wrer to insert an intercalary month even when it 
 was not regularly required by the time of the equinox. 
 These things render the Jewish year somewhat less 
 certain than the Greek year, w^hich w^as governed by 
 the fixed cycle of nineteen years invented by Meton. 
 Nevertheless, as this cycle brought the beginning of 
 the year as it should be, so far as the equinox w^as 
 concerned, it was probably rarely departed from. 
 Dean Prideaux is of an opinion that the Jews in the 
 time of our Saviour, observed the Metonic cycle, or 
 a larger one of eighty-four years, w^hich included it, 
 and did not differ from it during the first forty years 
 of the first century (Prideaux's, Anno. 162 B. C). 
 
 Now, taking the roman calendar as the standard of 
 comparison, and the longitude of Jerusalem (35 deg. 
 18 min. 30 sec. E.) as the point for regulating time, 
 and midnight as the commencement of the day, it is 
 found by calculation, based on the ordinary astro- 
 nomical tables, that the vernal equinox in the former 
 half of the first century occurred in the afternoon or 
 evening of 22d March. Therefore, the full moon of 
 Nisan ought not to happen before that day, and the 
 preceding full moon ought not to happen before the 
 7th of March. Therefore, the new moon, marking 
 the 1st of Nisan, must happen between the 7th of 
 March and the 7th of April. 
 
392 MISCELLANEOUS WRITINGS. 
 
 Next it is found by like calculations, that the 
 astronomical new moons nearest to the vernal equinox 
 for the years 27 to 35, inclusive, were respectively as 
 follows : 
 
 A. D. 27. Wednesday, March 26, at 7 h., 47 m. A. M. 
 
 28. Sunday, March 14, at 2 h., 12 m. P. M. 
 
 29. Saturday, April 2, at 7 h., 32 m. A. M. 
 
 30. Wednesday, March 22, at 7 h. , 51 m. A. M. 
 
 31. Sunday, March 11, at h., 26 m. P. M. 
 
 32. Saturday, March 29, at 10 h., 2 m. A. M. 
 
 33. Thursday, March 19, at h., 38 m. A. M. 
 
 34. Monday, March 8, at 5 h., 24 m. P. M. 
 
 35. Sunday, March 27, at 5 h., 53 m. P. M. 
 
 From this table it is apparent that in A. D. 27 the 
 new^ moon which occurred on the 26th March was 
 first visible (according to Selden's rule) on Thursday 
 evening, March 27th, when the first of Nisan com- 
 menced and continued until sunset of Friday evening, 
 March 28th. For our purpose the first of Nisan was 
 Friday, March 28th. And in like manner, attending 
 to the respective times of new moon in the other years 
 contained in the table, it is equally apparent that the 
 1st of Nisan occurred in A. D. 28, Tuesday, March 16th ; 
 in A. D. 29, Monday, April 4th, in A. D. 30, Friday, 
 March 24th ; in A. D. 31, Tuesday, March 13th ; in 
 A. D. 32, Monday, March 31st ; in A. D. 33, either 
 Friday, March 20th, or Saturday, March 21st (un- 
 certain which) ; in A. D. 34, Wednesday, March 10th 
 and in A. D. 35, Tuesday, March 29th. The moons 
 here taken for the month Nisan exactly agree with the 
 cycle before referred to. 
 
 Thus we see that there were only three years from 
 A. D. 27 to A. D. 35 inclusive, in which the first of 
 
ESSAYS AND LETTERS. 393 
 
 Nisan, and consequently the fifteenth of Nisan, hap- 
 pened on Friday ; and these were A. D. 27, 30 and 33, 
 the last of which is very doubtfiil. But we have seen 
 that the Crucifixion could not have happened before 
 A. D. 28, and probably not later than A. D. 31. 
 Therefore, the year 30 is the only one which satisfies 
 all the conditions of the problem; it does satisfy 
 them, because it gives opportunity for Jesus to teach 
 pubUcly for about three years, and to attend three 
 Passovers during his ministry, or four, according as 
 it commenced before or after April, A. D. 27. 
 
 Now, since in A. D. 30, the first of Nisan fell on 
 Friday, the 24th of March, the 15th fell on Friday, 
 the 7th of April, which, therefore, was the day of the 
 Crucifixion. 
 
 This conclusion is adopted by the majority of 
 writers of authority, amongst others by Dr. William 
 Thompson, in the article "Jesus Christ " in Smith's 
 Bible Dictionary — an article prepared with much care 
 and learning. Some years ago I arrived at a different 
 conclusion, in favor of the year 33 ; but whilst it is 
 very doubtful whether the 15th of Nisan fell on Friday 
 of that year, it does not agree with Christ's age and 
 ministry. I w^as misled by overlooking the double 
 reckoning of the years of Tiberius. 
 
394 MISCELLANEOUS WRITINGS. 
 
 [New York Evangelist, October 18, 1883.] 
 
 THE DATE OF THE CRUCIFIXION. 
 
 BY HON. JOSEPH P. BRADLEY, ASSOCIATE JUSTICE OF 
 THE SUPREME COURT OF THE UNITED STATES. 
 
 Mr. Editor :— Will you please insert the following 
 correction of my article, published in your paper on 
 the 28th of June last, on the date of Christ's Cruci- 
 fixion ? On re-examining my calculations of the time 
 of New Moon in March and April, A. D. 27-35, to as- 
 certain the first Nisan of these years, I find that I 
 committed a slight error in not adjusting astronomi- 
 cal time (which begins at 12 noon) to civil time, by 
 adding 12 hours in each case, as I should have done. 
 This would make the true time of New Moon for the 
 several years twelve hours later, as follows : 
 
 A. D. 27. Wednesday, March 26, at 7 h., 47 m. P. M. 
 
 28. Monday, March 15, at 2 h., 12 m. A. M. 
 
 29. Saturday, April 2, at 7 h., 32 m. P. M. 
 
 30. Wednesday, March 22, at 7 h., 51 m. P. M. 
 
 31. Monday, March 12, at h., 26 m. A. M. 
 
 32. Saturday, March 29, at 10 h., 3 m. P. M. 
 
 33. Thursday, March 19, atO h., 38 m. P. M. 
 
 34. Tuesday, March 9, at 5 h., 24 m. A. M. 
 
 35. Monday, March 28, at 5 h., 53 m. A. M. 
 
 This correction does not alter the result, except to 
 make it certain that the first of Nisan (and conse- 
 quently the 15th) could not have happened on Friday, 
 in the year 33, which was before stated as uncertain ; 
 so that the years 27 and 30 were the only years in 
 Pilate's time in which the 15th of Nisan fell on Friday. 
 I assume now, as I did then, that the moon must be 
 at least eighteen hours old before it can be seen by the 
 naked eye. 
 
ESSAYS AND LETTERS. 395 
 
 [New York B-rangelist, November 1, 1883.} 
 
 DAY OF THE CRUCIFIXION. 
 
 BY HON. JOSEPH P. BRADLEY, ASSOCIATE JUSTICE OF 
 THE SUPREME COURT OF THE UNITED STATES : 
 
 Mr. Editor :— I am constantly receiving newspaper 
 articles to prove that the Crucifixion took place on 
 Thursday, the 14th of Nisan instead of Friday, the 
 15th, and a challenge to discuss the subject. But I 
 have neither the time nor the inclination for any con- 
 troversy on the point. I assume that it occurred on 
 Friday the 15th, in deference to the almost unanimous 
 traditions of the Church (on which the fast of Good 
 Friday is fotmded), and on what I conceive to be the 
 plain meaning of the Gospel account. But it is in- 
 different to me which theory is adopted. It is as true 
 of the one as the other, that (leaving out the year 27, 
 which is inadmissible on historical grotmds) there was 
 only one year in PUate's administration in which the 
 event could occur, and that was the year 30, for it is 
 as true that in that year only the 14th of Nisan fell 
 on Thursday, as that the 15th fell on Friday. The 
 astronomical argument is equally demonstrative of 
 both hypotheses. I entered into no argument of the 
 subject and shall enter into none. Those who are 
 convinced that the day was Thursday the 14th, are 
 entirely welcome to their opinion as far as I am con- 
 cerned. If they could prove that it was Wednesday 
 the 13th, it would be equally satisfactory to me. 
 What I attempted to show was that according to the 
 Jewish Calendar, as regulated by the New Moons and 
 the Equinox, there was a year in Pilate's administra- 
 tion, consistent with all the historical dates, in which 
 
396 MISCELLANEOUS WHITINGS. 
 
 the 15th of Nisan fell on Friday, the day commonly 
 understood as that on which Christ was crucified, and 
 that year was A. D. 30. This I think was proven to 
 a demonstration. If this position is established, it 
 follows as a corollary, that in the same year the 14th 
 of Nisan fell on Thursday. My object in making use 
 of astronomical data, was to bring the Jewish Calen- 
 dar and the succession of weeks into co-relation with 
 the Roman Calendar within the period in which the 
 Crucifixion could possibly have taken place. That co- 
 relation is independent of any theories as to the parti- 
 cular day on which the event occurred. I do not 
 think that any w^riter has attempted what seemed to 
 me to be a very necessary w^ork — indeed the grand 
 work of all theories on the subject, namely, the con- 
 struction of a comparative calendar for the periods 
 embracing the possible epoch of the Crucifixion, and 
 an explanation of the principles on which such a 
 Calendar is to be constructed. Having this basis and 
 ground w^ork to go upon, any number of theories may 
 be built upon, but no theory is of the slightest value 
 w^hich does not conform to it, as some w^hich I have 
 seen do not. 
 
 From the data already given in my previous com- 
 munications such a Calendar for the middle of Nisan 
 in each of the years 27-35 can easily be constructed ; 
 but for the convenience of those who are not familiar 
 with such things, I give it below in proper form, from 
 which it will be seen that those persons who maintain 
 that Crucifixion occurred on the 14th of Nisan, may 
 still place it on Friday by adopting the year 33 in- 
 stead of 30, as the year of the Crucifixion. 
 
 This would, however, postpone that commence- 
 
ESSAYS AND LETTERS. 
 
 397 
 
 ment of Christ's ministry to a date which would not 
 agree with His age at that time, as stated by Luke, 
 namely, that He "began to be about 30 years of age," 
 though it might agree approximately with the "fif- 
 teenth year of the reign of Tiberius Caesar" (the other 
 date mentioned by Luke), by counting the years of 
 that reign from the death of Augustus. 
 
 COMPARATIVE CALENDAR FOR 13-17 NISAN, A. D. 27-35. 
 
 [The Hebrew days commence 
 the Roman at midnight.] 
 
 at sunset, preceding 
 
 
 A. D. 27. 
 
 
 
 
 A. D. 32. 
 
 
 Nisan 13 
 
 Wednesday, 
 
 April 9 
 
 Nisan 
 
 13 
 
 Saturday, 
 
 April 12 
 
 H 
 
 Thursday, 
 
 " 30 
 
 
 14 
 
 Sunday, 
 
 " 13 
 
 15 
 
 Friday, 
 
 " II 
 
 
 IS 
 
 Monday, 
 
 " 14 
 
 16 
 
 Saturday, 
 
 " 12 
 
 
 16 
 
 Tuesday, 
 
 " 15 
 
 17 
 
 Sunday, 
 A. D. 28: 
 
 " 13 
 
 
 17 
 
 Wednesday, 
 A. D. 33- 
 
 •' 16 
 
 Nisan 13 
 
 Monday, 
 
 March 29 
 
 Nisan 
 
 13 
 
 Thursday, 
 
 April 2 
 
 14 
 
 Tuesday, 
 
 " 30 
 
 
 14 
 
 Friday, 
 
 " 3 
 
 IS 
 
 Wednesday, 
 
 " 31 
 
 
 15 
 
 Saturday, 
 
 " 4 
 
 16 
 
 Thursday, 
 
 April I 
 
 
 16 
 
 Sunday, 
 
 " S 
 
 17 
 
 Friday, 
 A. D. 29. 
 
 " 2 
 
 
 17 
 
 Monday, 
 A. D. 34. 
 
 " 6 
 
 Nisan 13 
 
 Saturday, 
 
 April 16 
 
 Nisan 
 
 13 
 
 Tuesday, 
 
 March 23 
 
 14 
 
 Sunday, 
 
 " 17 
 
 
 14 
 
 Wednesday, 
 
 " 24 
 
 15 
 
 Monday, 
 
 " 18 
 
 
 15 
 
 Thursday, 
 
 " 2S 
 
 16 
 
 Tuesday, 
 
 " 19 
 
 
 16 
 
 Friday, 
 
 " 26 
 
 17 
 
 Wednesday, 
 A. D. 30. 
 
 " 20 
 
 
 17 
 
 Saturday, 
 A. D. 35- 
 
 " 27 
 
 Nisan 13 
 
 Wednesday, 
 
 April S 
 
 Nisan 
 
 13 
 
 Monday, 
 
 April II 
 
 14 
 
 Thursday, 
 
 " 6 
 
 
 14 
 
 Tuesday, 
 
 " 12 
 
 15 
 
 Friday, 
 
 " 7 
 
 
 15 
 
 Wednesday, 
 
 " 13 
 
 16 
 
 Saturday, 
 
 " 8 
 
 
 16 
 
 Thursday, 
 
 " 14 
 
 17 
 
 Sunday, 
 
 " 9 
 
 
 17 
 
 Friday, 
 
 * '5 
 
398 MISCELLANEOUS WMTINGS. 
 
 A.D. 31. A. D. 36. 
 
 Nisan 13 Sunday, March 25 Nisan 13 Saturday, March 31 
 
 14 Monday, " 26 14 Sunday. April I 
 
 15 Tuesday, "27 15 Monday, " 2 
 
 16 Wednesday, " 28 16 Tuesday, " 3 
 
 17 Thursday, " 29 17 Wednesday, " 4 
 
 INSPIRATION. 
 
 PROPHESYING— "Speaking by the Spirit of God." (I Corinth, c. iIt ; 
 c. xM:3.) Teaching of the Xir Apostles, c. xi. 
 
 "speaking in the spirit." 
 
 We can well imagine that in the early Christian 
 Societies of Asia Minor, Greece, and even Italy, the 
 mystic doctrines of Christianity, combined with the 
 principles of unselfishness and high moraUty and 
 charity taught as a" part of the new system must 
 have had a profound eflfect upon the souls of those 
 impassionable people, and that in their religious as- 
 semblies extatic conditions of the mind should have 
 often supervened, as indeed, is witnessed in our own 
 times, amongst certain classes of religionists. Persons 
 thus possessed with extatic feeling would naturally 
 indulge in prophetic deliverances, more or less, elevated 
 and captivating — as the subject of the possession 
 was w^ell or only partially instructed, and imbued with 
 high and ennobling spiritual convictions. Such per- 
 sons w^ould be regarded as "prophesying in the spirit" 
 and under proper restraints, their influence w^ould 
 greatly redound to the edification of the church and to 
 the impression of those not yet connected with it. 
 This class of persons had become well defined in the 
 Apostolic age, as may be gathered from the chapters 
 
ESSAYS AND LETTERS. 399 
 
 referred to. They were still prevalent in the second 
 century as we learn from the Teaching of the XII 
 Apostles, lately discovered by the Metropolitan 
 Bryennios. 
 
 Were not the ancient prophets gifted by a like in- 
 spiration ? No one acquainted with the manifesta- 
 tions of the human mind in religious, and even in 
 poetical directions, can fail to have observed that an 
 illuminated and highly susceptible soul is capable of 
 great reaches of spiritual intuition and inspired sub- 
 limity which far outstrip the ordinary operations of 
 the human understanding. Is not this inspiration ? 
 Inspiration par excellence ? When the mind is in this 
 condition it is less affected by sordid and worldly 
 motives and sees, as is seen on a death-bed, all spirit- 
 ual things in a clear and steady light. The results of 
 a Kfe of reading, study, observation and reflection, 
 produce a capacity of conceiving truth in its essence, 
 morality in its principles, religion in its highest efiiil- 
 gence — which capacity may be brought into activity 
 by an elevation of mind induced by temporary enthu- 
 siasm, and extatic feeUng. This inspiration is seen in 
 all branches of human thought. In the science of law 
 the responses of a Papinian are an illustration of it in 
 a certain degree. 
 
 April 13, 1890. 
 
400 MISCELLANEOUS WRITINGS. 
 
 LETTER TO AMZI DODD. 
 
 January 23, 1891, 
 
 Dear Amzi : Yours received, with the editorial on 
 the Transubstantiation controversy — which is very 
 good and just. Our Puritan prejudices against Roman- 
 ism are so strong that we are apt to forget that it was 
 the only form of Christianity in the West (with a few 
 exceptional protests) for twelve hundred years. 
 
 As to supernaturalism, there are only three forms 
 of belief— three distinct theories on the subject, those of 
 1. A personal God. Creator of, but distinct from, 
 the World or Universe, exercising a superintending care 
 over it, with occasional manifestations (for moral 
 purposes) of miraculous interference with the general 
 laws of nature. 
 
 2. Such a Divine Creator, w^ho has implanted His 
 laws of physical and spiritual being in the system of 
 things created, and leaves them to their own opera- 
 tion without supernatural interference. 
 
 3. Pantheism, which affirms a Divine Being whose 
 only manifestation is in the Laws of Nature, productive 
 of all the phenomena of the World or Universe, as its 
 Soul or formative principle ; in other words, that the 
 World is God. Atheism is but another form of this 
 theory, affirming that Nature alone, or an unconscious 
 omnipotent force, with fixed eternal laws, is its own 
 cause, and that of all phenomena. 
 
 Christianity, as an institutive religion, adheres to 
 the first theory ; as a purely spiritual religion, it 
 admits also the second. 
 
 Yours sincerely, 
 
 J. P. B. 
 
ESSAYS AND LETTERS. 401 
 
 INERRANT OR INFALLIBLE BIBLE. 
 
 In a letter to Amzi Dodd, who inquired as to the 
 distinction between an inerrant Bible and an infallible 
 Bible, taken in some of the debates in the Presby- 
 terian General Assembly in discussing the Briggs case, 
 I said that the distinction was an arbitrary one, prob- 
 ably to designate the tw^o great theories of inspiration, 
 the Theophrastic and the spiritual, the former being that 
 every word of Scripture was inspired ; the latter, that 
 sacred writers were only inspired with spiritual truth, 
 and used their own w^ords and illustrations to express 
 it, tinged by their environment. The inspiration of 
 each word could only refer to the original Hebrew and 
 Greek, and not to versions in the other languages, and 
 the original texts were liable to errors in transcription 
 as well as in translation, so nothing was gained by 
 verbal inspiration unless we suppose that the copyists 
 as well as translators were also inspired. He who 
 inspired the letter (if it was so inspired) implanted 
 the principle of lingual diversity in the different tribes 
 of men and defeated His own object. Jerome, the 
 greatest translator that ever lived, whose attention 
 must have been frequently given to the subject, said 
 that " Inspiratio non constat in verbo sed in sensu." 
 But I take little interest in the discussion, my views 
 on the subject having been long settled and fixed. 
 According to my view, the manner of revelation may 
 be expressed as follows : 
 
 The Spirit of God moves upon the ocean of human 
 thought, ever evolving light and truth, which con- 
 creted in words of immortal power, becomes stereo- 
 typed upon the consciousness of the nations, consecrated 
 
402 MISCELLANEOUS WRITINGS. 
 
 by antiquity into the forms of sacred learning, and 
 hallowed by all holy and religious associations. (End 
 of letter.) 
 
 This view supposes that the inspiration of the 
 Creator never ceases. The soul of man, whenever 
 created, whether at conception or birth, or at a distant 
 past, proceeds from the Divine Spirit, the fountain of 
 all life and intelligence, and derives all its powers and 
 capabilities from that source. Its spiritual knowledge, 
 developed much more in some than in others, comes 
 gradually to be expressed in golden sentences -which 
 address themselves to the universal consciousness and 
 acquire general recognition and belief. 
 
 June, 1891. 
 
 SERMONS. 
 
 A series of interesting sermons might be vmtten 
 upon texts of sacred writ, w^hich have a suggestive 
 significance or a far-reaching application. Thus : 
 
 " One day is, with the Lord, as a thousand years, 
 and a thousand years as one day." (II Pet. 3-8.) 
 
 This thought receives a wonderful illustration in 
 considering the immense periods of geological time 
 and the various phases which have been assumed by 
 the earth, under the successive epochs of palaeonto- 
 logical history. To the Creator it is only a moment ; 
 to our finite comprehension it seems an eternity. 
 
 "He w^atereth the hills from his chambers; the 
 earth is satisfied with the fruit of thy works. He 
 causes the grass to grow^ for the cattle and herb for 
 the service of man ; that he may bring forth food out 
 of the earth." (Ps. CIV, 13-14.) 
 
ESSAYS AND LETTERS. 403 
 
 Who can look at the hills and plains of the earth, 
 covered with grass and trees, all clothed -with beauty 
 and richness, springing with life and freshness and sup- 
 porting flocks and herds and tribes of men ; who can 
 look at all this glorious envelopment without a feeling 
 of w^onder and adoration ? If our sense of time 
 could be quickened so as to make the duration of a 
 year seem but an hour, or a minute, the earth and its 
 vesture would appear a living thing ; coming and 
 departing vegetation would appear to move rapidly 
 before our eyes, the assuming and putting off 
 annual verdure, the grass of the fields and the leaves 
 of the trees, would seem like the peaceful breathing of 
 a person in sleep ; the earth would appear a gigantic 
 living being, invested with life and all vital motions 
 and forces. 
 
 Litchfield, July 5, 1891. 
 
 RELIGIOUS FORMS. 
 
 Whilst believing in the infinite mercy and goodness 
 of God, and being confidently willing to trust to that 
 alone, I entertain profound respect and consideration for 
 those who trust in dogmas and theories of atonement 
 and in church organizations and religious observances, 
 and I would not for the world discourage them from 
 performing their pious work. They do great good to 
 those who cannot be affected by religious principles in 
 any other way. Churches and preaching and prayers, 
 and worship in every form, have wonderfully effective 
 uses ; and those who minister therein should be treated 
 with all courtesy and respect for their sincere efforts 
 
404 MISCELLANEOUS WRITINGS. 
 
 to benefit others and for the great good they do. " Do 
 not wonder at these amulets," said Pericles on his sick- 
 bed to Alcibiades, " above all do not order them to be 
 removed. The kind old nurses who has been carefully 
 watching over me day and night are persuaded that 
 they will save my life. Superstition is rarely so kind - 
 hearted ; w^henever she is unable, as we are, to rever- 
 ence, let us at least respect her." I would not only 
 respect, I would reverence the kind intentions of a 
 sincere minister, and of all others who have a firm 
 conviction in a religious creed. Whatever may be our 
 own views, and however well settled and grounded, 
 we cannot, without danger to society and its dearest 
 interests, turn our backs upon the religious institutions 
 which play so important a part in humanizing and 
 refining mankind. No other religious belief, or disbelief, 
 could have done so much for the elevation and refine- 
 ment of the human race as Christianity has done 
 during the last eighteen hundred years. 
 
 If we do not believe in miracles, we may w^ell believe 
 in the vast importance and benefit of those hoary 
 traditions of Divine influence which have become as 
 efiective for good with the great mass of mankind as 
 if they were based on the most certain deductions of 
 reason and experience. When they become merged 
 into idle superstition and the plea for cruel and pro- 
 scriptive intolerance, they may be justly opposed ; but 
 when only employed for the promotion of religious and 
 pious affections, they are of incalculable value to 
 society. It will only be when men become perfect that 
 positive institutions of religion can be safely dispensed 
 with. 
 
 But there is no reason why a man of superior 
 intelligence should allow his own spiritual equanimity 
 
ESSAYS AND LETTERS. 405 
 
 and calm trust in the Divine goodness to be disturbed. 
 His accounts between him and his Maker are, of all 
 things, his own aflFair, not to be meddled with by- 
 others. If meddled with from good or kindly motives, 
 he can afford to indulge the intrusion with kind and 
 grateful acquiescence. At the same time, when called 
 to approach the presence of his infinite and beneficent 
 Creator, he can do so with a feeling of sure dependence 
 on His paternal love. He may have been erratic and 
 offending, but he is a child, and may at last rely on 
 his Heavenly Father's paternal love. 
 June, 1889. 
 
 DANGER OF ABROGATING RELIGIOUS FORMS. 
 
 Suppose the guesses of Science are true, and that 
 creation has proceeded by a process of development for 
 coimtless ages, producing species and genera one after 
 another, and proceeding gradually from rude to high and 
 delicate organizations — according to laws implanted 
 in the system which we call nature and the world — 
 without any direct intervention of a separate intelli- 
 gence and without any direct communication from 
 such intelligence of the principles of knowledge or duty ; 
 these being left, like all else, to be developed by natural 
 causes, by reason and experience. Suppose all this to 
 be true. Is the world ripe for such knowledge ? 
 Evidently not. Ages must yet transpire. Too many 
 are interested in the support of existing systems, and 
 the masses are too little developed in moral perception 
 and principle to make it safe to abandon the artificial 
 methods and sanctions by which order is maintained. 
 Resistance to the prejudices of mankind only injures 
 
406 MISCELLANEOUS WRITINGS. 
 
 him who offers it. If a community imposed the 
 penalty of death for wearing scarlet, none but a fool 
 would put it on. Until the world is ready for the truth, 
 it is not safe to communicate it, except to the select few 
 who can be trusted to embrace and guard it ; that 
 select few who are governed by inherent and unbend- 
 ing rectitude. The wise man will continue to respect 
 and observe the laws, usages and modes w^hich prevail, 
 and which society regards as essential to the conserva- 
 tion of order and morality. Mankind in general can 
 only be gradually awakened to truth. The light of 
 science will, in the end, quench the farthing candles of 
 error and superstition. But the time cannot be 
 hastened by violence. So long as the moral and social 
 habiliments which men choose to wear are productive 
 of good and not of evil, it is not necessary for one to 
 seek martyrdom by a bold declaration of the whole 
 truth. Let such cherish it in his own bosom without 
 thrusting it offensively upon others. Like the little 
 leaven hidden by the housewife in the meal, it will 
 gradually, but surely, permeate the whole lump. At 
 present, how^ever, the existing institutions are pro- 
 ductive of good, and therefore necessary. To over- 
 throw^ them would be to overthrow morality. In 
 cutting loose from established forms, one is apt to cut 
 loose from the standards of duty themselves, and is in 
 danger of running into wild and fathomless specula- 
 tion. These standards are the result of ages of human 
 experience, and ought to be regarded as sacred as if 
 directly communicated by a personal Deity. The fiction 
 that they were so communicated may give them addi- 
 tional power over feeble intellects, and should not be 
 rudely dispelled from their imaginations. A wise man. 
 
THE SABBATH AND SUNDAY. 407 
 
 therefore, will not only tolerate, but continue to 
 observe, the forms of religious and moral practice — 
 not because founded on supernatural sanctions, as is 
 pretended, but because they have been found of great 
 use in preserving and inculcating the principles of order 
 and duty, on which all human happiness is based. 
 
 THE SABBATH AND SUNDAY. 
 
 The injunction to keep holy the Sabbath, though 
 included in the ten commandments, is not an obligation 
 of natural law, but was a special regulation imposed 
 upon the Israelites as a nation ; and, therefore, it is 
 not of perpetual or universal obligation. It was not 
 adopted as an institution of Christianity, but was 
 expressly repudiated as such. The early Christians, 
 desirous of having a set day for religious assembUes, 
 as well as for a festival, selected the first day of the 
 week ; first, in order to show their repudiation of the 
 Sabbath ; secondly, as a memorial of Christ's resur- 
 rection. But, aside from meeting together for wor- 
 ship, and enjoying the day as a festival, they attached 
 no religious sanctity to it inconsistent with the pursuit 
 of their ordinary avocations and amusements. It 
 was not until later times, when the ecclesiastical spirit 
 became more dominant, that it was enforced as a 
 Sabbath. 
 
 In support of these propositions w^e might rely on 
 the authority of the learned Selden, who treats of the 
 Sabbath in Book III, cc. 19-23 of his work, Dejure 
 Naturas et gentium apud Hebrseos ; also of MUton in 
 his posthumous publication, De Doctrina Christiana. 
 
408 MISCELLANEOUS WRITINGS. 
 
 But it is more satisfactory to refer to the original 
 sources of authority. Let us look first at the original 
 institution of the Sabbath amongst the Israelites, We 
 hear nothing of its observance as a religious day until 
 the fall of manna in the desert of Sinai, related in 
 Exodus, c. XYI. The people were told to gather 
 enough on the sixth day of the w^eek to sufiice for the 
 seventh, on w^hich day they w^ere directed to rest, 
 (vs. 22-30.) The Egyptians, it is true, had used the 
 hebdomas, or seven-day division of time for ages prior 
 to this period, as shown by hieroglyphical inscriptions, 
 and as testified by Dio Cassius ; it being a quarter of 
 the period taken by the Moon in passing through the 
 signs or Chambers of the Zodiac ; and they called this 
 quarter, or hebdomas Uc, nearly the same as the old 
 Saxon Wuc (week) ; and they had named the days 
 of the week from the planets. Sun, Moon, Mars, 
 Mercury, Jupiter, Venus and Saturn, in the order here 
 given, being the same order afterwards adopted by 
 the Hindoos, and still later by the Romans, and ■which 
 still prevails with us. The Israelites rejected these 
 names as savoring of idolatry, and designated the 
 days by number only, except the seventh, which they 
 called the Sabbath. But there is no evidence that 
 either of these days of the hebdomas had been set 
 apart for religious purposes, or as a Sabbath, until it 
 w^as so done amongst the Israelites ; although Hesiod, 
 in enumerating the days of the lunar month, calls the 
 seventh day " the sacred seventh," which may be an 
 allusion to some archaic traditions on the subject. 
 
 A short time after the fall of manna had com- 
 menced, the ten commandments were given to the 
 Israelites at Mount Sinai ; but they were given to them 
 
THE SABBATH AND SUNDAY. 409 
 
 as a national written law, and were of no further 
 obligation upon other nations than as they embodied 
 or expressed the natural law. With the exception of 
 the injunction to keep holy the Sabbath, they are of 
 this character, and as such were summarized by Christ 
 (quoting Deut. YI, 5 and Levit. XIX, 19) in the two 
 great fundamental precepts — to love God supremely, 
 and our neighbor as ourselves. Matt. XXII, 37 ; Mark 
 X, 19-20 ; Luke X, 27. That the law of the Sabbath 
 w^as special and national is shown in Deut., c. 
 Y, where the ten commandments are recapitulated ; 
 and where the reason given (v. 15) for the institution 
 of the Sabbath is peculiarly national : " Remember 
 that thou wast a servant in the land of Egypt, and 
 the Lord thy God brought thee out hence through a 
 mighty hand and a stretched out arm ; therefore, the 
 Lord thy God commanded thee to keep the Sabbath 
 day." In Exodus, c. XXXI, v. 13, w^hen the keeping 
 of the Sabbath is enjoined, the reason given is, "for it 
 is a sign between me and you throughout your gener- 
 ations," and in verse 16 it is added, " wherefore the 
 children of Israel shall keep the Sabbath, etc., for a 
 perpetual covenant." 
 
 When Christ commenced preaching the new dispen- 
 sation for all mankind, he evidently repudiated the 
 Jewish idea of the Sabbath. When he enumerated the 
 commandments which the young rtder was to keep in 
 order to have eternal life, the command to keep the 
 Sabbath was not mentioned. And that this is no slip 
 of the pen, or omission of the historian, is evinced by 
 the concurrent relation of three Evangelists (Matt. 
 XIX, 18 ; Mark X, 19 ; Luke XYIII, 20). Christ 
 also availed himself of repeated opportunities of 
 
410 MISCELLANEOUS WRITINGS. 
 
 showing His opinion of the Sabbath. Notwithstand- 
 ing the disapprobation of the Jews, He, on that day, 
 healed the sick, cured the blind, and allowed His 
 disciples to gather food, telling His hearers that it was 
 lawful to do good (that is, any good act) on the 
 Sabbath day ; that the Sabbath was made for man 
 and not man for the Sabbath ; and that He, the Son 
 of Man, the Representative of Humanity, w^as Lord 
 even of the Sabbath day, thereby clearly indicating 
 that the institution, so far as mankind in general are 
 concerned, was subject to Human regulation and sub- 
 servient to human happiness. (See Matt. XII, 1-13 ; 
 Mark II, 23, III, 5 ; Luke YI, 1-10, XIII, 11-17, XIY, 
 1-6; John VH, 23, IX, 13-16.) 
 
 About eighteen or twenty years after Christ's 
 death, w^hen large numbers of Gentiles had been 
 added to the church, the question came squarely up, 
 whether the laws and observances of Moses w^ere to 
 be binding on Christians. (Acts c. XY.) A solemn 
 Assembly, or Synod, was held on the subject in 
 Jerusalem, and after speeches from Peter, Barnabas, 
 Paul and James, it was finally settled that none of 
 such laws or observances were to be binding except 
 in four specified matters, of which the Sabbath is 
 not one. The Christians in Judea, it is true, being 
 mostly Jew^s and always accustomed to conform to 
 those laws, still observed them, and were even zealous 
 about them. (Acts XXI, 17-18.) And many Jewish 
 converts in other countries endeavored to inculcate 
 the obligation of these laws, which would have had 
 the effect of reimposing the yoke of servitude, in 
 ordinances, from which Christians had been authori- 
 tatively freed. This became the occasion of frequent 
 
THE SABBATH AND SUNDAY. 411 
 
 and vehement animadTersions on the part of Paul, 
 and constituted the burden of several of his epistles. 
 Thus, in his Epistle to the Colossians, writing on this 
 subject, he conjures them not to let any man beguile 
 them with enticing words (II, 4) ; that, as they had 
 received Christ (that is, the doctrine of Christ), so 
 they should w^alk therein (v. 6) ; reminding them that 
 Christ had blotted out the handwriting of ordinances 
 (v. 14) ; and he enjoins them to let no man judge 
 them (that is, call them to account) on the subject of 
 meats, drink or bolydays, or new-moons or Sabbaths, 
 which he declared were mere shadows of things to 
 come, Christ being the body or substance (vs. 16-17). 
 Again, in Romans, c. XIV, 1, he inculcates the utterly 
 unessential character of these ordinances — " Him that 
 is w^eak in the faith, receive ye, but not to doubtful 
 disputation. For one believeth that he may eat all 
 things ; another, who is -weak, eateth herbs. Let not 
 him that eateth despise him that eateth not, and let 
 not him which eateth not judge him that eateth," 
 etc. One man esteemeth one day above another; 
 another esteemeth every day alike. Let every man 
 be fully persuaded in his own mind." These passages 
 show^ that the observances of Sabbaths and holy days 
 was reckoned in the same category as the prohibition 
 to eat certain meats. The principal burden of the 
 Epistle to the Galatians is this very subject of Mosaic 
 ordinances and the abolition thereof by the death of 
 Christ. The Judaizing teachers had produced a sen- 
 sible impression upon the Galatean converts. It is 
 in reference to this that Paul bursts out in that 
 notable exclamation, " foolish Galatians, who has 
 bewitched you ? " etc. The great lesson of the Epistle 
 
412 MISCELLANEOUS WRITINGS, 
 
 is, that Christ had freed his followers from the law 
 of Moses and had established a spiritual and practical 
 religion whose essence consisted in faith, Iotc and 
 good works. (See the whole of the fifth chapter). 
 
 It seems clear, therefore, that the great leaders 
 of the Christian movement regarded the Sabbath as 
 no longer a binding institution. 
 
 The question remains as to the rule and practice of 
 the early church with regard to the first day of the 
 week, or Sunday. 
 
 It is certain that from the earliest times (after 
 Christ's death) the Christians w^ere in the habit of 
 meeting together on this day for worship, and also of 
 keeping it as a festival in remembrance of Christ's 
 resurrection. But it is equally certain that the day 
 was not kept as a Sabbath. To have kept it as such 
 would have been repugnant to the Christian idea of 
 freedom from Mosaic burdens and ordinances. Subject 
 to the duty, or privilege, of meeting for worship, there 
 is no evidence that the early Christians did not feel 
 authorized to pursue their ordinary avocations and 
 amusements on that day. Its dedication to pubHc 
 worship and festal enjoyment was not by command- 
 ment, but by choice and general consent. In later 
 times its more stringent observance was inculcated by 
 ecclesiastical authority or by civil law^s enacted under 
 ecclesiastical influence. 
 
 A reference to some Scripture passages will show 
 how its use probably originated. Christ, as before 
 stated, rose on the first day of the week ; and that 
 evening He appeared to the Apostles, who were 
 assembled together in a closed apartment for fear of 
 the Jews. (John XX, 19.) A week later they were 
 
THE SABBATH AND SUNDAY. 413 
 
 again assembled, and Christ again appeared to them, 
 on the occasion when He upbraided Thomas for his 
 want of faith. (John XX, 26.) It is probable 
 that the Apostles and more prominent disciples 
 continued to meet on this day, since we find that a few 
 weeks later they were so met on Pentecost (which 
 occurred on the first day of the week) (Levit. XXIII, 
 16), on which occasion the Spirit w^as miraculously 
 communicated to them. This appears to have been 
 the remote origin of the Christian use of the day. 
 The Apostles often frequented the synogogues on the 
 Sabbath, it is true, because it gave them an oppor- 
 tunity of addressing the Jews ; but the general 
 practice of the Christians themselves undoubtedly was 
 to meet for worship on the first day. Thus w^e are 
 told that Paul, on one of his missionary tours, came 
 to Troas and tarried there seven days, and "upon the 
 £rst day of the w^eek, w^hen the disciples w^ere together 
 to break bread, Paul preached unto them." (Acts 
 XX, 7). About the same time, writing to the 
 Corinthian Christians, and amongst other things 
 urging them to contribute to the donations being 
 made for the sufiering Christians in Judea, he 
 said : " On the first day of the w^eek let every one of 
 you lay by him in store, that there be no collections 
 when I come." (I Corinth. XVI, 2.) In fine, before 
 the completion of the New Testament Canon, the 
 day had become so marked by custom and usage 
 that it received the appellation of " Our Lord's Day " 
 {Dies Dominicus. ) The author of the book of Revela- 
 tions uses the expression " I was in the Spirit on the 
 Lord's day." (Rev. L, 10.) 
 
 The general testimony of antiquity and tradition 
 of the Fathers of the Church are to the effect that the 
 
414 MISCELLANEOUS WRITINGS. 
 
 day was habitually used as above stated. I think 
 Tacitus says that the Christians were in the habit of 
 meeting together and singing divine hymns on that 
 day. 
 
 The first civil regulation on the subject of the 
 observance of Sunday was made by Constantine in 
 the year A. D. 321. As this Ordinance, or Constitu- 
 tion, as it is called, probably shows the general 
 Christian sentiment at that period with regard to the 
 proper mode of observing the day, a translation of it 
 is appended, together -with a second ordinance by the 
 same Emperor, and an abstract of subsequent Roman 
 laws. It will be perceived that after Christianity 
 became the reHgion of the state, and the power of the 
 Ecclesiastics consequently increased, the regulations 
 grew more and more strict. 
 
 IMPERIAL CONSTITUTIONS. 
 
 1. By Constantine, March, A. D. 321. "All judges, 
 inhabitants of cities and artisans shall rest on the 
 sacred day called Sunday {die Solis). But those in 
 the country may freely and lawfully attend to the 
 culture of the land, since it often happens that com 
 cannot be committed to the furrows, nor vines to the 
 ditches, so well on any other day ; and we should not 
 permit the blessings of heaven to fail by neglecting 
 the favorable moment." 
 
 (Code Justinian, B. Ill, tit. 12). 
 
 2. By the same, June, 321. " Though we have 
 deemed it improper that Sunday, a holiday of pectdiar 
 sanctity, should be occupied in contentious litigation 
 between parties ; yet it is our pleasure that on that 
 day those things may be concluded which are, in 
 
THE SABBATH AND SUNDAY. 415 
 
 themselves, highly desirable; and, therefore, on this 
 festival all persons shall have liberty of emancipation 
 and manumission ; and no legal proceedings to that 
 end shall be prohibited. (Codex Theodos. II, 8). 
 
 WESTERN EMPIRE. 
 
 3. Valentinian the Elder, A. D. 368, decreed that 
 no taxes should be collected from Christians on Sunday. 
 (Codex Theodos. VHI, 8). 
 
 Valentinian the Younger, A. D. 386, decreed that 
 all legal proceedings whatever and all business gener- 
 ally should cease on Sunday, which (it is added) " Our 
 ancestors properly called the Lord's day." (Code 
 Theod. Vin, 8-3). 
 
 EASTERN EMPIRE. 
 
 4. Theodosius the Great, A. D. 379, forbade the 
 exhibition of shows on Sunday. (Codex Theodos. XV, 
 5-2). And Theodosius the Younger, A. D. 425, 
 extended this prohibition to all the cities of the Empire. 
 (Code Theod. XV, 5.) 
 
 As a matter of general histoiy, it may be asserted 
 that the practice of Christendom, as to the observance 
 of Sunday, corresponded for the most part with the 
 character of the day which we have endeavored to 
 describe. It w^as always the practice to celebrate 
 public worship on Sunday and to devote the rest of 
 the day to festal purposes, amusements and social 
 gatherings. It was only at a late period, after the 
 rise of Puritanism in England and Presbyterianism in 
 Scotland, that in those countries the day w^as converted 
 into a strict Sabbath. This resulted from the Puritan 
 theory that the Old Testament church, by w^ay of 
 
416 MISCKLLANEOUS WRITINGS. 
 
 symbol or type, contained within it all the essential 
 elements of the New Testament church, and that all 
 precepts and observances not expressly abrogated are 
 still binding. Hence they recognized the perpetual 
 obligation of the fourth commandment, respecting the 
 Sabbath, as well as of the other commandments, 
 admitting only the change of the day from the seventh 
 day of the week to the first. The Continental theolo- 
 gians called this theory the English Fiction {Figmentum 
 Anglicanum). It was carried to a greater extent, if 
 possible, in New England than it was in the mother 
 country. Cotton Mather refers to a correspondence 
 on the subject between Rev. John Howe, the great 
 Puritan divine and the Apostle Elliott, in which the 
 latter complained of the laxity which prevailed in 
 England in the observance of the Sabbath. He con- 
 tended that it was not enough to devote the day to 
 religion in the same manner as the other days are 
 devoted to labor and worldly pursuits; but the 
 Christian's whole being should be consecrated to 
 holiness continually on that day, without even per- 
 mitting the thoughts to wander upon secular subjects. 
 One of the charges against Archbishop Laud was 
 advising the King to publish his declaration for the 
 use of sports on the Lord's day. His answer was 
 (inter-alia) that the " declaration only allowed lawful 
 recreation, which is no more than is practiced at 
 Geneva." (Neal's Hist. Puritans, Vol. II, 146). The 
 Commons replied, that though Calvin differs from our 
 Protestant writers about the morality of the Sabbath, 
 yet he expressly condemns dancing and pastimes. (lb. ) 
 We are fond of condemning Catholics and others 
 for subverting the express commands of Christ and 
 
THE SABBATH AND SUNDAY. 417 
 
 his Apostles by their traditions and ceremonies. Per- 
 haps a Httle more candor would reveal a very large 
 mote, if not an actual beam, in our own eyes. 
 
 PART II. 
 
 What has thus far been said on the subject of the 
 Sabbath and on the observance of Sunday, presents 
 but one side of the question ; it shows us what is not 
 the true Christian idea on the subject, but does not 
 show w^hat the positive duty of the Christian is. In 
 order that the conclusions arrived at may not be 
 misunderstood, it is proper to look for a moment at 
 the other side of the question ; for it is of great 
 importance, both to ourselves and in reference to our 
 influence upon others, that we should clearly settle in 
 our own minds what are the proper duties of that day 
 which even in Apostolic times, as we have seen, was 
 called "the Lord's day." Paul said, "Let everyone be 
 fully persuaded in his own mind " on this very point, 
 intimating that w^e should have fixed convictions in 
 relation to it. 
 
 What conclusion, then, ought we to form with 
 regard to the mode in w^hich Christians ought to keep 
 the day ? Are they, in view of what has been said, to 
 disregard it altogether and make no distinction of days, 
 as some did not in Paul's time ? This by no means 
 follows. It is true, as we have shovrai, that its 
 observance is not imposed upon us as a Sabbath, by 
 which is to be understood a day so sacred that no 
 secular work or act whatever can be done, and 
 no diversions can be indulged in on that day 
 without sin. But v\rithout making it such a burden 
 as this, so utterly inconsistent with the idea of 
 
418 MISCELLANEOUS WHITINGS. 
 
 Christian liberty, we are nevertheless bound to 
 regard with the greatest deference the practice of the 
 early church and of common Christendom. We cannot 
 cut ourselves loose from all ecclesiastical usages and 
 order without repudiating the organized form of the 
 Christian society. Whilst it is not only lawful, but a 
 duty, to scrutinize the foundation of the observance, 
 and to show, if such be the fact, that it is not by 
 Divine command, but the result of the consentaneous 
 act of the early Christians, and whilst we may properly 
 reject the Judaical notions which have been attached 
 to it by Puritanical zealots, utterly at war as they are 
 with Christ's and Apostolic ideas, there stiU remain 
 strong reasons why, as a Christian people, w^e should 
 set the day apart for public worship, for rest from the 
 toils and cares of ordinary life, and for purposes of 
 social and festal enjoyment. Thus observed it is 
 indeed a blessing, as well as the means of promoting 
 civilization and Christianity. It is a most gladsome 
 sight to the philanthropist, as well as the Christian, to 
 see all people of every degree, the poor as well as the 
 rich, cease from sordid and worldly occupations on 
 one day of the w^eek, and come forth, old and young, 
 in clean and holiday attire, and with glad faces go 
 together to the house of prayer and perform their devo- 
 tions ; and it is but a surly sort of piety that grudges 
 to see them spend the balance of the day in harmless 
 festivity and neighborly sociability. The Lord's day 
 thus obseirved is a bright spot in human life. It 
 elevates the moral character and susceptibilities ; it 
 humanizes, it civilizes, it refines. It teaches to think, 
 it promotes social intercourse, it takes away the 
 coarseness, the roughness, the rusticity of those who 
 would otherwise be secluded from softening influences. 
 
THE SABBATH AND SUNDAY. 419 
 
 As a means of social elevation and progress, as well 
 as of religious improvement, its influence cannot be 
 adequately estimated. I yield the precedence to no 
 champion of sabbatical ideas in imputing to the due 
 observance of Sunday as a holyday, such as described, 
 the most important part in the cultivation and support 
 of virtue, intelligence and refinement and in the 
 discouragement and suppression of vice. 
 
 To the sanctions and usages of the church must be 
 added, in estimating the question of duty, the regula- 
 tions on the subject which are made by the law^ of the 
 land. These, at the present time, are generally in 
 accord with the true character of the day. Whilst 
 imposing no positive act to be done, the law simply 
 requires the cessation of ordinary employments and of 
 those diversions and practices which would disturb 
 the peace and quiet of the day (so essential to the 
 value and beauty of the institution), or which lead 
 directly to the practice of vice. If the laws attempt 
 more than this, they generally but express the unwise 
 zeal of those who made them, and by being unnec- 
 essarily severe, defeat their own purpose. 
 
 That civil society has a right to enact wholesome 
 laws on the subject is manifest both from the sayings 
 of Christ and from the incalculable benefits which 
 society derives from the institution. The sayings of 
 Christ referred to are those which have been quoted in 
 the first part of this essay : " It is lawful to do good 
 on the Sabbath day ;" " the Sabbath was made for 
 man, and not man for the Sabbath ;" " The Son of 
 Man is Lord even of the Sabbath day." Applying the 
 spirit of these remarks to the institution of Sunday, and 
 they express all that I contend for on this subject. 
 
420 MISCELLANEOUS WHITINGS. 
 
 The conclusion, therefore, is, that as an institution 
 of the church and of civil society, we cannot afford to 
 ignore as a duty the observance of Sunday, in the 
 manner above described, not making it like the Jewish 
 Sabbath, a burden upon our consciences and our liberty. 
 Having performed the religious duties of the day, 
 according to ancient Christian usage, w^e are free to 
 enjoy social converse and harmless festivity, or the 
 beauties of nature or art ; and if imminent cause 
 requires, we may rightfully do those things which are 
 necessary to prevent the destruction or injury of life 
 or property. To enjoin the contrary would be to put 
 a strain upon the conscience which would restdt in 
 greater harm than good. 
 
 The question has often been raised whether the 
 observance of Sunday as a day of rest is a precept of 
 the common law. In Hawkes' Grounds of the Laws 
 of England (1657) is laid down this maxim : Dies 
 Dominicus non est dies juridicns. The Sabbath 
 day is no day for the law ; as upon a Fine levied 
 by Proclamations according to the statute of 4 H. 
 7, c. 24. If any of the proclamations be made on 
 the Sabbath day, all the proclamations be erroneous, 
 for the Justices must not sit upon that day, but it is 
 a day exempted from such businesses by the common 
 law, for the solemnity of it, to the extent that the 
 people may apply themselves that day to the service 
 of God. (5 Cru. Dig. 99.) 
 
 " No plea shall be holden quindenae Pasche, because 
 it is always the Sabbath, but shall be Crastino quin- 
 denae Pasche. Fit. Nat., fo. 17 f. 
 
 " Teste of Sci. Fa. upon Sunday is error. Dyer 
 168. 
 
THE SABBATH AND SUNDAY. 421 
 
 "No sales upon a Sunday shall be said to be a 
 sale in market overt to alter the property. 12 E. 4.8. 
 
 " Ministerial acts are allowed, as to arrest or serve 
 process, otherwise peradventure they should not be 
 executed, and God forbid that things of necessity 
 should not be done on that day, for bonum est bene 
 facere die Sabbati." 
 
 "Dies Dominicus non est juridicus." Co. Lit. 135. 
 2 Saund 291. Wingate's Max. 5. Noys' Max. 2 (5th 
 Ed.) Exercising trade of butchers no offence at com. 
 mon law. I Stra. 702. Noy. 2 (Ed. 5). Finch's 
 Law, 3 b. No proceedings in a suit can be entered as 
 done on a Sunday without making all void. 2 Inst. 
 264. 3 Buv. 159. 
 
 (See further as to English Law on the subject, 11 
 Rep. 65. Finch L. 7 ; 1 Atk. 58 ; IT. R. 265 ; Com. 
 Dig. Temps (B. 3) 20 Yin. Abr. 61 ; 4 Bl. com. 65 ; 1 
 Hawk P. C. 11 ; 3 Bums Just. 106 ; Broom's Max. 
 21, 3 D. & L. 328, 330 Docd. Williamson vs. Roe, 3 
 D. & L. 328). 
 
 The question whether Christianity is part of the 
 common law is discussed by Mr. Jefferson in an 
 appendix to his reports, and rediscussed in a letter to 
 John Adams dated January 24, 1814 (Works, Vol. 
 VI, 302-305), and in a letter to Ed. Everett, Oct. 
 15, 1824 (Works, Vol. VII, 380-383) ; also, in Blakely's 
 "State Papers on Sunday Legislation," 127-141. 
 
 Mr. Jefferson says that all the dicta that Chris- 
 tianity is part of the common law take their origin 
 from an observation of Judge Prisot in a case in C. B. 
 34 H. 6, fo. 38, in which it was a question how far 
 the case (being up on a right of presentation) was 
 to be governed by the Eccl. Law, and he said : " To 
 
422 MISCELLANEOUS WRITINGS. 
 
 such laws as they of the Holy Church have in ancient 
 writing (ancient scripture) we ought to give credence ; 
 for so is the common law^ on w^hich all manner of law^s 
 are founded." The Judge here did not refer to the 
 Bible or Holy Scripture, but to the ancient writ- 
 ings by which the Ecclesiastical Law w^as known, yet 
 by a strange misinterpretation it w^as supposed that 
 the Holy Scriptures, and hence the whole Christian 
 religion was meant; and subsequent writers and 
 judges refer to Prisot as laying down this doctrine, 
 which is totally without foundation. 
 
 ON THE EXISTENCE OF A GOD. 
 
 Is, or can there be, such a thing as a principle 
 without a subject ? And as we know from the testi- 
 mony of our own consciousness that there are such 
 principles as justice, truth, equality, etc., without and 
 independent of ourselves, is not this the reason why 
 the mind cUngs to the idea of a God— a substance (to 
 speak figuratively) to support and give existence to 
 these spiritual qualities ? We cannot conceive of their 
 existing independently of any subject. That great 
 Being from whom we spontaneously infer that they 
 flow, we call God. 
 
 [As touching the above reasoning, we give the fol- 
 lowing unknown quotation — with Judge B.'s com- 
 ment] : 
 
 "Since there must have been something from eter- 
 nity because there is something now, the Eternal Being 
 must be intelligent because there is intelligence now 
 (for no man will venture to assert that nonentity can 
 
ESOTERIC THOUGHTS ON RELIGION. 423 
 
 produce entity, or nonintelligence, intelligence), and 
 such a Being must exist necessarily, for it is no more 
 possible to conceive of an infinite than a finite progres- 
 sion of effects without a cause." 
 
 " Did you ever see anything more perfect that this ?" 
 
 J. P. B. 
 
 ESOTERIC THOUGHTS ON RELIGION AND 
 RELIGIONISM. 
 
 On this subject my views have undergone consider- 
 able modification -within a few years past. The dis- 
 coveries of modem science have rendered some of our 
 orthodox notions untenable. But I feel that it is 
 necessary to guard against that laxity of principle 
 which is too apt to follow an abandonment of former 
 convictions. When the mind becomes unsettled with 
 regard to its traditionary forms of faith and observ- 
 ance, the danger is that it may cast loose from the 
 principles of morality itself. This gives rise to the 
 argumentutn ab inconvenienti which constitutes the 
 strongest bulwark of dogmatism against the assaults 
 of truth. I, therefore, once for all, protest that what- 
 ever modifications my views of the theoretical and 
 speculative part of religion may have undergone, I do 
 not abate one jot or tittle from the claims of religion 
 as a principle of action, the sanctity of the moral law^, 
 or the necessity of aids and appUances for cultivating 
 the moral nature and promoting moral purity. The 
 result of the ethical consciousness in man, no matter 
 by -what sanctions encouraged and enforced, has been 
 the construction of a profound system of moral and 
 
424 MISCELLANEOUS WRITINGS. 
 
 social laws, which is to be held sacred and inviolable. 
 This may justly be deemed the expression of Divine 
 Law, because evolved from the Spiritual exercise of a 
 being proceeding from the Divine hand and informed 
 by Divine gifts, although engaged in an arduous 
 struggle with sordid and deteriorating in£uences. 
 Whilst this law is enforced with terrible directness and 
 uncompromising earnestness in the Holy Scriptures, a 
 large portion of its code is also found in the recorded 
 thoughts of the nations called heathen. 
 
 But, first of all, we should aim to get clear notions 
 of what the essence of religion is. 
 
 We have been taught that the chief end of religion 
 is to avoid eternal misery and obtain eternal happi- 
 ness. But, in my judgment, its true object is to make 
 men better, or rather, to make them good — a w^ord 
 which includes every virtue. If this is attained, the 
 future may be left to take care of itself, and should, at 
 least, excite no fears. Religion inculcates piety towards 
 God and man, and is summed up by Jesus Christ in love 
 to God and man. It has been well defined as the recog- 
 nition of God as an object of worship, love and obedi- 
 ence, and, secondly, as the state of mind resulting 
 from and in harmony with such recognition. Some 
 have called it the effort of man to perfect himself. But 
 the word "religion" is used in many senses : First, 
 for the bond of relationship between God and man, 
 and the duty of man arising therefrom. This is 
 religion considered objectively, but still apart from 
 outward observances. Secondly, it is used to express 
 the condition of the human heart and life when in 
 harmony w^ith this relationship ; or religion considered 
 subjectively in man. St. James speaks of this when 
 
ESOTERIC THOUGHTS ON RELIGION. 425 
 
 he says, " Religion (religio) pure and undefiled before 
 God the Father is this : to visit the fatherless and 
 widows in their afflictions, and to keep himself 
 unspotted from the w^orld." And Yerrius Flaccus, 
 before James, had said, " The religious man not only 
 reverences the Gods, but is kind and obliging to 
 men." (Deorumsanctitatemmagni aestimaus-officiosus 
 adversushominus) (Festus, verb. ReHgiosus). Thirdly, 
 The word religion is used to designate the systems of 
 faith and worships adopted and used by different people 
 and sects. These are the formulas and ceremonies bv 
 which men have endeavored to preserve and promote 
 religious and moral culture in the world. They may 
 often have been perverted to subserve private interests, 
 avarice or ambition, but they have no doubt had a 
 beneficial effect in impressing the body of mankind 
 with religious convictions more or less useful. 
 
 There is hardly a people on earth so degraded as 
 not to have some religion. A recognition of some 
 Superior Being w^ho controls human affairs and whose 
 favor is desirable is indigenous in the human breast. 
 It seem to be the inference w^hich the reason of man 
 draws from the felt necessity of a primary cause and 
 from his longing for something better, more stable 
 and more just than what he sees. The notions enter- 
 tained about the character of this Being, his relations 
 to us, and the means of appeasing him, are as various 
 as the circumstances w^hich have surrounded the differ- 
 ent races and nationalities. In all, however, the 
 general idea is that of one to be worshipped, obeyed 
 and propitiated. 
 
 Without some notion of an ideal of goodness 
 represented in a Superior who observes and approves 
 
426 MISCELLANEOUS WRITINGS. 
 
 or disapproves our actions, it is difficult to keep up 
 any sustained effort at self-improvement. The indul- 
 gence of appetite, passion, dominion and ease is the 
 strongest and most constant tendency of our nature. 
 An innate struggle after perfection is the gift of but a 
 few noble and exceptionable mortals. When they 
 arise it is their mission to elevate the race. But they 
 can only lead upward the common herd by pointing 
 to the Divine Powers which bring the morning sun 
 and the refreshing shower, the terrible thunder, the 
 awful earthquake. A belief in an officious God is 
 absolutely necessary to elevate and purify the masses. 
 
 Whilst, therefore, we believe that the essence of 
 religion consists in goodness, virtue, and moral perfect- 
 ness, we must still recognize the abxHty, if not the 
 necessity, of a concrete form of faith and worship for 
 mankind in general. To an individual man it may 
 not be necessary. A creed, a dogma, an article of 
 faith is no more of the essence of religion than a prop- 
 osition of geometry is such. Both may be expressions 
 of abstract truth, well to know and profitable to 
 believe. But whether, for example, I, as an individual, 
 believe, or do not believe, in the existence of a personal 
 devil, or a burning hell, does not touch my religious 
 character. I may be just as religious subjectively, 
 just as reverent toward God and benevolent toward 
 men, with or without this belief. 
 
 The dogmas which one religion requires us to accept 
 may be nearer the exact truth than those of another ; 
 and yet the purpose of religion may be better sub- 
 served by the latter than the former; though, of 
 course, this would be an exceptional result. It is best 
 to believe what is true, as well as desire what is good. 
 
ESOTERIC THOUGHTS ON RELIGION. 427 
 
 But we must not suppose that a particular religion 
 is useless or pernicious because it inculcates some 
 errors. What religion is free from errors ? As no 
 two religions are entirely alike in their articles of faith, 
 it would be great arrogance for any one to set itself 
 up as absolutely infallible. I know that the devotees 
 of each think theirs is so, but no sensible or thinking 
 man admits the justness of such bigoted notions. We 
 will find some bad as well as some good in all religions ; 
 and we will also find that almost all subserve a usefiil 
 purpose in preserving amongst mankind a sense of 
 Divine Presence, Power and Goodness, and of some- 
 thing to Uve for superior to the sordid objects of 
 vulgar life. 
 
 But as the reUgions of different people in the same 
 age greatly differ in the moral effects which they pro- 
 duce, so it is most natural to suppose that, in differ- 
 ent ages, as men rise in the scale of intelligence and 
 refinement, reUgious ideas, as w^ell as other depart- 
 ments of thought, become more elevated and enlarged. 
 It cannot be that this department of human conscious- 
 ness should be forever fixed in a cast-iron vesture 
 incapable of development or change. The great variety 
 of excellence which prevails in actual religions is 
 proof to the contrary. 
 
 In every other science there is progress, why should 
 there not be progress in religious science ? Are we 
 forever to look for our models of faith and duty in 
 the patriarchs, vrho believed God to be the special 
 guardian of Palestine and of a particular family, and 
 to have corporeal limbs and features ; and who 
 thought it pleasing to him to cut off the hands and feet 
 of their enemies, and to rob them of their possessions 
 
428 MISCELLANEOUS WRITINGS. 
 
 without provocation ? Yet we must do this if we 
 accept the theory that revelation of Divine truth was 
 miraculously made to these men at first hand and has 
 never been made except through Hebrew prophets and 
 seers. Is it not more consonant to the Divine benefi- 
 cence, to its manifestations in the natural world, and 
 to what w^e know of the facts in the progress of 
 humanity itself, to look for this revelation on every 
 hillside and in every valley where wells of moral purity 
 and freshness have sprung up ; and in the accumula- 
 tions of spiritual wisdom which have been gathered 
 together in all lands ? Is God the loving father of only 
 a single tribe, and a stepfather to the rest of his 
 creatures, or may we not rather expect the influence 
 of His Spirit to be breathed upon all ? 
 
 The same narrow theory was once applied to nature 
 herself. It was boldly asserted and, indeed, not to be 
 gainsaid, that all things were made by one creative 
 feat about six or seven thousand years ago — stratified 
 rocks, veins of ore, growing trees with perfect annular 
 rings, and all things else as we now see them ; and 
 that the present animal and vegetable kingdoms are the 
 results of direct lines of ordinary generation and ger- 
 mination from the original forms ! as though creative 
 energy never stirred but on a single occasion, and is 
 not always in active operation, constantly producing 
 by the eternal and slowly grinding mills of Omnipo- 
 tence endless varieties of organism exhibited in geolog- 
 cal successions of being here, and in cosmic successions 
 in the regions of space. But this narrow theory of a 
 six-day's creation, the logical inference of an anthrop- 
 omorphic God, has given way before the strong and 
 
ESOTERIC THOUGHTS ON RELIGION. 429 
 
 indelible characters of truth which are inscribed on 
 every page of Nature's great Book, from the fossils of 
 the earth to the flaming orbs and fading nebulse of 
 heaven. 
 
 There is in fact and in truth a strong analogy 
 between the progress of material and spiritual philos- 
 ophy. In the spiritual world, as in the material, it 
 was but natural for the infant understanding to limit 
 the first Cause and Governor of the Universe by the 
 limited conceptions which it had of the Universe itself, 
 and to make Him altogether such an one as man, only 
 with enlarged powers and presence. No one can read 
 the Book of Job without feeling that he introduced to 
 the spiritual longings and gropings of a primative age, 
 when the elements of known religious truth were few 
 and simple. He recognizes the same fact in reading 
 Homer, Hesiod and the early Greek dramatists. Com- 
 paring these with the luminous teachings of a Paschal, 
 or Fenelon, or a Leighton, he would have a demon- 
 stration of progressive enlargement in the scope of 
 spiritual insight, and would clearly see that in religious 
 things, as in scientific, the w^orld moves. 
 
 How^ prolific in spiritual discoveries and results a 
 single germinal thought has often proved, evolved 
 almost unconsciously, perhaps, in the sublime throes 
 of a great spirit in a state of exaltation. "Do unto 
 others as ye would that they should do unto you." — 
 "Love is the fulfilling of the law," are instances. 
 Dropping like prolific seed into the receptive conscious- 
 ness of the seekers of truth, they have expanded in 
 the next age into broader and more elevated views of 
 life and destiny. Of this character are many of the 
 utterances so sublimely expressed in the old Jewish 
 
430 MISCELLANEOUS WRITINGS. 
 
 prophets. In spiritual elevation and discernment the 
 Orientals, and especially the Hebrew prophets, were 
 far in advance of the Greeks ; whilst the latter excelled 
 in metaphysical speculation and logic. When these 
 two systems of thought came in contact, each found 
 excellencies in the other which could not fail to pro- 
 duce useful results. It needed a seer of deep spiritual 
 insight and great breadth of view, caught only by 
 soaring aloft above the influences of passion and 
 selfishness, to eliminate from the existing systems some 
 new and better philosophy than the world had yet 
 seen. The outw^ard forms of the Jewish religion had 
 become burdensome and useless. The heathen religions 
 had ceased to command respect, even in their own 
 seats. A new religion, more spiritual, more catholic, 
 and better, adapted to all forms of social life, and to 
 all degrees of civilization, became a necessity of the 
 advancing ages, and of the amalgamation of the 
 difierent nationaHties. Hence arose Christianity. 
 
 The foundations of such a religion as the world then 
 wanted were laid by Jesus of Galilee, aptly called by his 
 followers, familiar with Jewish conceptions, Messiah, 
 Christ, the Anointed or Sanctified One. He enunciated 
 and strikingly enforced the great central reHgious 
 truth — that the heart, or the spiritual centre of man, is 
 the place where righteousness, or true religion, must 
 begin and end. If that is right, all is right. This is 
 what is meant by Faith. The life will be evolved 
 accordingly. The life is, and always will be, the out- 
 growth of the true inward nature. They are related 
 as cause and effect and cannot be dissevered. He also 
 taught the other great fundamental religious truth, 
 that this inner righteousness, or true religion, consists 
 
ESOTERIC THOUGHTS ON RELIGION. 431 
 
 of love— loYC to God and man. The essential condi- 
 tion of religion, namely, sincerity, or faith, by which 
 it is grounded in the inner heart of man ; and the 
 essential nature of rehgion, namely, love ; these con- 
 stituted the chief comer stones of the ne-w religion of 
 Christ. These are seminal truths, if not discovered, 
 certainly placed in bold relief by Jesus of Nazareth. 
 
 It is plain that such a religion must have involved 
 antagonism to superstitious observance. But it was 
 only relatively, not absolutely, hostile to observances 
 and rites. It demanded to stand first, and that 
 observances and ceremonies (if used) shotdd occupy 
 but a secondary place ; of no value, excepts as helps 
 and aids of inward purity and holiness. 
 
 This was Christ's great work, sealed with his 
 blood. He taught no dogmas but one — that God is 
 our Father and that we are all brethren. The work 
 of communicating the new^ religion to the western 
 world fell upon Paul, a scholar versed in both learn- 
 ings. He became the great Apostle of the Gentiles. 
 By his zeal, his learning and his prudence, he laid the 
 foundations of the Christian Church as it remains to 
 the present day. 
 
 Paul adopted a few simple dogmas as the theory 
 or skeleton around which he built up the wonderful 
 structure of spiritual life and grow^th and moral power 
 which so commended Christianity to the nations, and 
 so elevated them in the scale of civihzation and refine- 
 ment. The principal of these dogmas were the atone- 
 ment and the resurrection. 
 
 The necessity of atonement or conciliation of the 
 Divine anger was so deeply rooted in the minds of all 
 nations that no propounder of a new religion would 
 
432 MISCELLANEOUS WRITINGS. 
 
 have been listened to for a moment who had not 
 something of the kind to offer to sin-conscious mortals. 
 Paul offered it in a way that secured the abolition of 
 the old disgusting and expensive sacrifices, and, at the 
 same time, an increased veneration for the founder of 
 his religion. To meet the vast demands of propitia- 
 tion for the sins of a w^orld required an exaltation of 
 the Person of this Pounder above the state of ordinary 
 humanity ; though it cannot be justly said that Paul 
 taugjit the essential Divinity of Christ in the modem 
 sense of that term. 
 
 The resurrection was a Je-wish dogma adopted not 
 long before the Christian era. It supposed that men 
 will rise out of their graves in bodily form, and thus 
 have a renewed life. The Old Testament did not teach 
 a future state. The Greeks had borrowed the idea of 
 Hades and the Shades from the Egyptians, and the 
 separate existence and indestructibility of the soul 
 from the metempsychosis of the Brahmins. Refining 
 upon these notions, they deduced the immateriality of 
 the Spirit and the immortality of the soul. When the 
 Greek philosophy became the basis of all learning 
 among Christian scholars, this vieve was adopted in 
 connection with that of the resurrection, and is, at 
 present, the prevailing doctrine of the Church. But 
 Paul, a good Grecian, was compelled to admit that 
 the body which would reappear would be a " spiritual 
 body," rather a contradiction in terms. 
 
 Whatever dogmas, from time to time, may have 
 prevailed as matters of voluntary or compulsory 
 belief, the great central truth taught by Christ and 
 reiterated and enlarged by His Apostles— that true 
 religion dwells in the heart by faith, and that it con- 
 
ESOTERIC THOUGHTS ON RELIGION. 433 
 
 •sists of love — ^has never been entirely lost sight of, and 
 has acted as a perpetual leaven, imparting moral life 
 to the Church and to Christendom. 
 
 Meantime, human thought has not been at a 
 stand-still. Whilst endless webs of fine-spun and 
 ingenious theories have been -woven by theologians 
 and scholars, embracing the nature and mode of 
 existence of God and all things, most of which have 
 been consigned to the lumber garret of oblivion, 
 thoughtful minds have continued to explore the 
 hidden laws of our own spiritual nature, and the 
 motives and forces by w^hich it is moulded and 
 swayed, and have bestowed profound study on human 
 life and destiny. As a result we have a grand system 
 of true spiritual philosophy by the light of which 
 w^e may be unerringly guided to good and noble 
 ends and to the formation of good and noble characters. 
 To this end, w^ithout giving ourselves up to childish 
 superstitions, we may reverently study the more 
 highly inspired portions of the sacred volume, espe- 
 cially the Psalms, the Proverbs, the Prophets and the 
 New Testament, and also the standard works of 
 religious instruction and piety. To this end, also, we 
 may profitably study the w^orks of the Wise and Good 
 of all ages and nations, using at all times the lights 
 of reason and conscience in judging what is good 
 and rejecting what is bad or useless. Nor ought we 
 to abandon the institutions of religions and the moral 
 and religious teachings of the church. If we do not 
 assent to all the theological dogmas which we hear, 
 we can extract much of spiritual good ; and we must 
 remember that the mass of mankind have no other 
 resource for edification and comfort. We should treat 
 
434 MISCELLANEOUS WRITINGS. 
 
 their weaknesses with tenderness and their prejudices 
 with respect. It would be worse than useless to fly 
 in the face of the conscientious convictions and cher- 
 ished hopes of those with whom it is our lot to live. 
 We should only lose their friendship and respect with- 
 out conferring upon them any benefit. 
 
 Much has been said of the efficacy of prayer. 
 Those like Professor Tyndal, who considered the world 
 to be governed by unchangeable laws, cannot conceive 
 any advantage to arise from applications to the 
 Supreme Being. But the effort made by the soul to 
 lift itself up into close communion with the Almighty 
 Spirit of Holiness and Purity has a purifying influence 
 on the soul itself, repressive of the gross and animal 
 nature, and of all pride and vain conceit, and attract- 
 ing to it for the time being a portion of that sanctity 
 which it adores. In this, undoubtedly, consists the 
 true value of prayer. I would, by all means, urge the 
 continuance of this elevating and purifying exercise in 
 connection with the other means employed for the 
 edification of the spiritual nature. 
 
 Pursuing the course indicated, with a sincere desire 
 for spiritual and practical improvement, and a mind 
 lifted up with a yearning for communion with that 
 Divine Being w^ho is, who must be, our loving Father 
 (or he w^ould not have created us), the soul will become 
 purified and gloriously prepared for all the duties and 
 trials of life and death, and for the vmkno-wn issue of 
 the w^orld to come. 
 
 My conclusion, then, is this : God is everyw^here, 
 and always the same. He forms and informs all 
 things visible and invisible. His creative power has 
 not ceased to operate, but is w^orking now and will 
 
ESOTERIC THOUGHTS ON RELIGION. 435 
 
 always work by eternal laws. His spirit still inspires, 
 and it has always inspired, elevated and spiritual souls 
 with thoughts far above and beyond the reach of 
 ordinary mortals. He breathes through their minds 
 those Divine strains which seem like the far oflf harmony 
 of the other worlds. But this is no greater display of 
 His infinite and all-pervading energy than the growing 
 of the blade of grass or the forming of the snowflake. 
 It is for us to adore and love ; to be humble and trust- 
 fill ; to be pure and good ; to be just and loving and 
 kind. It is for us to work and labor in our lot, pro- 
 ducing sunshine and gladness v^rherever we go. It is 
 for us to love our country and to sustain its institu- 
 tions and laws ; to conform as far as we can to the 
 religious forms and customs which prevail and with 
 w^hich w^e can best sympathize, remembering that to 
 most people those things are vital supports of their 
 moral nature. It is for us to build up and not to pull 
 down ; to be a blessing in our day and not a curse ; 
 to seek truth wherever it is to be found, and to advo- 
 cate it at all times when its advocacy will be tolerated, 
 but not to allow our confidence in our opinions to 
 interfere with our usefulness to others. Finally, it is 
 for us, through all difficulties and temptations, to 
 pursue an honorable, dignified, truthful and loving life, 
 so that w^henever our task is done, we may depart 
 amidst the blessings of mankind and be remembered 
 for our good deeds. 
 This is my religion. 
 
 July 4, 1876.