•0 ^^^ ^- f.^^ °'<- *^ °^ % V -x'. ■, .;••• :■■■ -/, 2 ^O .# -^ .^^ uO" ' "-^ .-.^ .s ^. - ^, ri^: ^ •";<-.''''' ^'>^ ^. ", V o'< •^^ cO- ^AO^ I a ^ .\' .'i^ -. %. V » W; :^"'. .' Cl5 y^ ^?^ • , V . < A. But there is yet another answer. Admitting that it is an equivalent, still the colored children can- not be compelled to take it. Their rights are Equality before the law ; nor can they be called upon to re- nounce one jot of this. They have an equal right with white children to the general Public Schools. A sepa- rate school, though well endowed, would not secure to them that precise Equality, which they would enjoy in the general public schools. The Jews in Rome are confined to a particular district, called the Ghetto. In Frankfort they are condemned to a separate quarter, known as the Jewish quarter. It is possible that the 366 ARGUMENT AGAINST CONSTITUTIONALITY accommodations allotted to them are as good as they would be able to occupy, if left free to choose through- out Rome and Frankfort ; but this compulsory segre- gation from the mass of citizens is of itself an inequal- ity which we condemn with our whole souls. It is a vestige of ancient intolerance directed against a de- spised people. It is of the same character with the separate schools in Boston. Thus much for the doctrine of equivalents, as a sub- stitute for equality. In determining that the Committee have no jpoicer to make a discrimination of color or race, we are strengthened by yet another consideration. If the power exists in the present case, it must exist in many others. It cannot be restrained to this alone. The Committee may distribute all the children into classes — merely according to their discretion. They may establish a separate school for the Irish or the Germans, where each may nurse an exclusive spirit of nationality alien to our institutions. They may separate Catholics from Protestants, or, pursuing their discretion still further, they may separate the different sects of Protestants, and establish one school for Unitarians, another for Presbyterians, another for Baptists, and another for Methodists. They may establish a separate school for the rich, that the delicate taste of this favored class may not be offended by the humble garments of the poor. They may exclude the children of mechanics from the Public Schools, and send them to separate schools by themselves. All this, and much more, can be done by the exercise of the high-handed power which can make a discrimination on account of color OF SEPARATE COLORED SCHOOLS. 367 or race. The grand fabric of our Public Schools, the pride of Massachusetts — where, at the feet of the teacher, innocent childhood should meet, unconscious of all distinctions of birth — where the Equality of the Constitution and of Christianity should be inculcated by constant precept and example — may be converted into a heathen system of proscription and Caste. We may then have many different schools, the representa- tives of as many different classes, opinions, and preju- dices ; but we shall look in vain for the true Public School of Massachusetts. Let it not be said that there is little danger that any Committee will exercise their discretion to this extent. They must not be intrusted with the power. In this is the only safety worthy of a free people. VII. The Court will declare the by-law of the School Committee of Boston, making a discrimination of color among children of the Public Schools, to be unconsti- tutional and illegal, although there are no express words of prohibition in the constitution and laws. It is hardly necessary to say any thing in support of this pro})osiiion. Slavery was abolished in Massachu- setts, by virtue of the declaration of rights in our Con- stitution, without any specific words of abolition in that instrument, or in any subsequent legislation. ( Common- wealth V. Aves, 18 Pick. R. 210.) The same words, which are potent to destroy slavery, must be equally potent against any institution founded on inequality or Caste. The case of Boston v. Shaw, ( 1 Metcalf 130,) to which reference has been already made, where a by-law of the city was set aside as unequal and unrea- sonable, and therefore void, affords another example of 3G8 ARGUMENT AGAINST CONSTITUTIONALITY the power which I (low invoke the Court to exercise. But authorities are not needed. The words of the Con- stitution are plain, and it will be the duty of the Court to see that these are applied to the discrimination of color now in question. In doing this, the Court might justly feel great delica- cy, if they were called upon to revise a law of the legis- lature. But it is simply the action of a local committee that they are to overrule. They may also be encour- aged by the fact, that it is only to the Schools of Boston that their decision can be applicable. The other towns throughout the Commonwealth have already voluntarily banished Caste. In removing it from the schools of Boston, the Court will bring them into much-desired harmony with the schools of other towns, and with the whole system of Public Schools in Massachusetts. 1 am unwilling to suppose that there can be any hesitation or doubt in coming to this conclusion. But if any should arise, there is a rule of interpretation which may be our guide. It is according to familiar practice that every interpretation is made always in favor of life or liberty. So here, the Court should incline in favor of Equality, that sacred right which is the companion of these other rights. In proportion to the importance of this right, will the Court be solicitous to vindicate and uphold it. And in proportion to the opposition which it encounters from the prejudices of society, will the Court brace themselves to this task. It has been point- edly remarked by Rousseau, that " It is precisely be- cause the force of things tends always to destroy Equality, that the force of legislation ought always to tend to maintain it." {Contrat Social^ liv. 2, chap. 11.) OF SErAKATE COLORED SCHOOLS. 3C9 In a similar spirit, apd for the same reason, tlie Court should always tend to maintain it. There are some other matters not strictly helonging to the juridical aspect of the case, and yet of impor- tance to its clear comprehension, upon which I shall touch briefly before I close. It is sometimes said, in extenuation of the present system in Boston, that the separation of the white and black children was originally made at the request of the colored parents. This is substantially true. It appears from the interesting letter of Dr. Belknap, in reply to Judge Tucker's queries respecting Slavery in Massachusetts, written at the close of the last century, (4 Mass. Hist. Coll. 207,) that no discrimination on account of color was at that time made in the Public Schools of Boston. " The same provision," he says, " is made by the public for the education of the children of the blacks, as for those of the whites. In this town, the Committee who superintend the free schools, have given in charge to the schoolmasters to receive and instruct black children as well as white." Dr. Belknap adds, however, that he has not heard of more than three or four who have taken advantage of this priv- ilege, though the number of blacks in Boston probably exceeded one thousand. It is to be feared that the inhuman bigotry of Caste — sad relic of the servitude from which they had just escaped ! — was at this time too strong to allow colored children a kindly welcome in the free schools, and that, from timidity and igno- rance, they shrank from taking their places on the same benches with the white children. Perhaps the VOL. II. 24 370 ARGUMENT AGAINST CONSTITUTIONALITY prejudice against them was so inveterate that they could not venture to assert their rights. It appears that in 1800, a petition was presented to the School Committee from sixty-six colored persons, praying for the establishment of a school for their benefit. Private munificence came to the aid of the city, and the present system of separate schools was brought into being. These facts are interesting in the history of the Boston Schools, but they cannot in any way affect the rights of the colored people, or the powers of the Committee. These rights and these powers stand on the Constitution and Laws of the Commonwealth. Without adopting the suggestion of Jefferson, that one generation cannot by legislation bind its successors, all must agree that the assent of a few persons, nearly half a century ago — at a time when their rights were imperfectly understood — to an unconsthutional and illegal course, cannot alter the Constitution and the Laws, and bind their descendants forever in the thrall of Caste. Nor can the Committee derive from this assent, or from any lapse of time, powers in derogation of the Constitution and the Rights of Man. It is clear that the sentiments of the colored people have now changed. The present case, and the deep interest which they manifest in it, thronging the court to hang on this discussion, attest the change. Wiih increasing knowledge, they have learned to know their rights, and to feel the degradation to which they have been doomed. Their present effort is the token of a manly character which this Court will cherish and res{)ect. The spirit of Paul now revives in them, even as when he said, " I am a Roman citizen." OF SEPARATE COLORED SCHOOLS. 371 But it is said that these separate schools are for the mutual benefit of children of both colors, and of the Public Schools. In similar spirit, Slavery is sometimes said to be for the mutual benefit of master and slave, and of the country where it exists. In the one case there is a mistake as great as in the other. This is clear. Nothing unjust, nothing ungenerous, can be for the benefit of any person, or any thing. Short-sighted mortals may, from some seeming selfish superiority, or from a gratified vanity of class, hope to draw a per- manent good ; but even-handed justice rebukes these eflTorts, and with certain power redresses the wrono;. The whites themselves are injured by the separation. Who can doubt this ? With the law as their monitor, they are taught to regard a portion of the human family, children of God, created in his image, co-equals in his love, as a separate and degraded class ; they are taught practically to deny that grand revelation of Christianity — the Brotherhood of Mankind. Their hearts, while yet tender with childhood, are necessarily hardened by this conduct, and their subsequent lives, perhaps, bear enduring testimony to this legalized uncharilablencss. Nursed in the sentiment of Caste, receiving it with the earliest food of knowledge, they are unable to eradicate it from their natures, and then weakly and impiously charge upon their Heavenly Father the prejudice which they have derived from an unchristian school, and which they continue to embody and perpetuate in their institutions. Their characters are debased, and they become less fit for the man-, nanimous duties of a good citizen. The Helots of Sparta w^ere obliged to intoxicate 372 ARGUMENT AGAINST CONSTITUTIONALITY themselves, that they might teach to the children of their masters the deformity of intemperance. In thus sacrificing one class to the other, both were degraded — the imperious Spartan and the abased Helot. But it is with a similar double-edged injustice that the School Committee of Boston have acted, in sacrificing the col- ored children to the prejudice or fancied advantage of the white. It is fit that a child should be taught to shun wicked- ness, and, as he is yet plastic to receive impressions, to shun wicked men. Horace was right, when speaking of a person morally wrong, false and unjust, he called him black, saying, hie niger est, hunc tu, Romane, cavelo. The Boston Committee adopt the warning, but apply it, not to those black in heart, but only black in skin. They forget the admonition addressed to the prophet : " But the Lord said unto Samuel, look not on his coun- tenance^ for the Lord seeth not as man seeth ; for man looketh at the outward appearance, hut the Lord lookcth at the hearty (1 Samuel, chap. 16, v. 7.) Who can say, that this does not injure the blacks? Theirs, in its best estate, is an unhappy lot. Shut out by a still lingering prejudice from many social advan- tages, — a despised class, — they feel this proscription from the Public Schools as a peculiar brand. Beyond this, it deprives them of those healthful animating influ- ences, which would come from a participation in the studies of their white brethren. It adds to their dis- couragements. It widens their separation from the rest of the community, and postpones that great day of reconciliation which is sure to come. OF SEPARATE COLORED SCHOOLS. 373 The whole system of Public Schools suffers also. It is a narrow perception of their high aim, which teaches that they are merely to furnish to all the scholars an equal amount in knowledge, and that, therefore, pro- vided all be taught, it is of little consequence where, and in what company, it be done. The law contem- plates not only that they shall all be taught, but that they shall be taught all together. They are not only to receive equal quantities of knowledge, but all are to receive it in the same way. All are to approach to- gether the same common fountain ; nor can there be any exclusive source for any individual or any class. The school is the little world in which the child is trained for the larger world of life. It must, therefore, cherish and develop the virtues and the sympathies employed in the larger world. And since, according to our institutions, all classes meet, without distinction of color, in the performance of civil duties, so should they all meet, without distinction of color, in the school — beginning there those relations of Equality which our Constitution and Laws promise to all. As the State receives strength from the unity and solidarity of its citizens, without distinction of class, so the school receives new strength from the unity and solidarity of all classes beneath its roof. In this way, the poor, the humble, and the neglected, .share not only the companionship of their more favored brethren, but enjoy also the protection of their presence, in drawing towards the school a more watchful superintendence. A degraded or neglected class, if left to themselves, will become more degraded or neglected. To him that hath shall be given ; and the world, true to these words, 374 ARGUMENT AGAINST CONSTITUTIONALITY turns from the poor and outcast to the rich and fortunate. It is the aim of our system of Pubhc Schools, by the blending of all classes, to draw upon the whole school the attention which is too apt to be given only to the favored few, and thus secure to the poor their portion of the fruitful sunshine. But the colored children, placed apart in separate schools, are deprived of this blessing. Nothing is more clear than that the welfare of classes, as well as of individuals, is promoted by mutual ac- quaintance. The French and English, for a long time regarded as natural enemies, have at last, from a more intimate communion, found themselves to be natural friends. Prejudice is the child of ignorance. It is sure to prevail where people do not know each other. Society and intercourse are means established by Providence for human improvement. They remove antipathies, promote mutual adaptation and conciliation, and establish relations of reciprocal regard. Whoso sets up barriers to these, thwarts the ways of Provi- dence, crosses the tendencies of human nature, and directly interferes with the laws of God. May it please your Honors : Such are some of the things which it has occurred to me to say in this impor- tant cause. I have occupied much of your time, but I have not yet exhausted the topics. Still, which way soever we turn, we are brought back to one single proposition — the Equality of mtn lefore the law. This stands as the mighty guardian of the rights of the colored children in this case. It is the constant, ever- present, tutelary genius of this Commonwealth, frown- ing upon every privilege of birth, upon every distinction of race, upon every institution of Caste. You cannot OF SEPARATE COLORED SCHOOLS. 375 slight it, or avoid it. You cannot restrain it. God grant that you may welcome it. Do this, and your words will be a " charter and freehold of rejoicing " to a race which, by much suffering, has earned a title to much regard. Your judgment will become a sacred land- mark, not in jurisprudence only, but in the history of Freedom, giving precious encouragement to all the weary and heavy-laden wayfarers in this great cause. Massachusetts will then, through you, have a fresh title to regard, and be once more, as in times past, an exam- ple to the whole land. You have already banished Slavery from this Com- monwealth. I call upon you now to obliterate the last of its footprints, and to banish the last of the hateful spirits in its train, that can be reached by this Court. The law, interfering to prohibit marriages between blacks and whites, has been abolished by the Legisla- ture. The railroads, which, imitating the Boston schools, placed colored people apart by themselves, have been compelled, under the influence of an awakened public sentiment, to abandon this regulation, and to allow them to mingle with other travellers. Only recently I have read that his Excellency, the present Governor of Mas- sachusetts, took his seat in a train by the side of a negro. It is in the Caste schools of Boston that the prejudice of color has sought its final legal refuge. It is for you to drive it forth. You do well when you rebuke and correct individual offences ; but it is a higher office far to rebuke and correct a vicious institution. Each indi- vidual is limited in his influence ; but an institution has the influence of numbers organized by law. The charity of one man may counteract or remedy the un- 3T6 ARGUMENT AGAINST CONSTITUTIONALITY charitableness of another ; but no mdividual can coun- teract or remedy the uncharitableness of an established institution. Against it private benevolence is powerless. It is a monster which must be hunted down by the public, and by the constituted authorities. And such is the institution of Caste in the Public Schools of Boston, which now awaits its just condemnation from a just Court. The civilization of the age joins in this appeal. It is well known that this prejudice of color is peculiar to our country. You have not forgotten that two youths of African blood only recently gained the highest hon- ors in the college at Paris, and dined on the same day with the King of France, the descendant of St. Louis, at the Palace of the Tuileries. And let me add, if I may refer to my own experience, that in Paris, I have sat for weeks, at the School of Law, on the same benches with colored persons, listening, like myself, to the learned lectures of Degerando and of Rossi — the last is the eminent minister who has unhappily fallen beneath the dagger of a Roman assassin ; nor do I re- member observing in the throng of sensitive young men by whom they were surrounded, any feeling towards them except of companionship and respect. In Italy, at the Convent of Pallazuola, on the shores of the Alban Lake, and on the site of the ancient Alba Longa, I have seen, for several days, a native of Abyssinia, only recently conducted from his torrid home, and igno- rant of the language that was spoken about him, yet mingling with the Franciscan friars, whose guest and scholar he was, in delightful and affectionate familiarity. In these examples may be discerned the Christian spirit. OF SEPARATE COLORED SCHOOLS. 377 And, finally, this spirit I invoke. Where this prevails, there is neither Jew nor Gentile, Greek nor barbarian, bond nor free ; but all are alike. From this we derive new and solemn assurances of the Equality of mankind, as an ordinance of God. The bodies of men may be unequal in beauty or strength ; these mortal cloaks of flesh may differ, as do these worldly garments ; these intellectual faculties may vary, as do the opportunities of action and the advantages of position ; but amidst all unessential differences there is an essential agreement and equality. Dives and Laza- rus were equal in the sight of God. They must be equal in the sight of all just institutions. But this is not all. The vaunted superiority of the white race imposes upon it corresponding duties. The faculties with which they are endowed, and the advan- tages which they possess, are to be exercised for the good of all. If the colored people are ignorant, de- graded, and unhappy, then should they be the especial objects of your care. From the abundance of your possessions you must seek to remedy their lot. And this Court, which is as a parent to all the unfortunate children of the Commonwealth, will show itself most truly parental, when it reaches down, and, with the strong arm of the law, elevates, encourages, and pro- tects its colored fellow-citizens. REPORT ON THE LAW SCHOOL OF HARVARD UNIVERSITY; MADE IN BEHALF OF THE , COMMITTEE OF THE OVERSEERS, FEB. 7, 1850. In Board of Overseers, February 1, 1849. Voted, That Hon. Peleg- Spkague, Hon. Simon Greenleaf, Charles Sumner, Esq., Hon. Albert H. Nelson, and Pele& "VV. Chandler, Esq. be a Committee to visit the Law School during the ensuing year. [Hon. William Kent was after- wards substituted for Mr. Greenleaf, who declined.] In Board of Overseers, February 7, 1S50. Ordered, That the Report of the Committee appointed to visit the Law School be printed. Attest ALEXANDER YOUNG, Secretary. The Committee, appointed by the Overseers of Har- vard University to visit the Law School, performed that service, Nov. 7, 1849. Among their number present on the occasion was Hon. William Kent, of New York, who gratified his associates very much by coming a long distance to join in this duty. The attention of the Committee was first directed to the actual condition of the School, and its advantages REPORT ON LAW SCHOOL OF HARVARD, ETC. 379 as a place of legal education. Here there was occa- sion for lively satisfaction. The number of students was one hundred, assembled from all parts of the Union, and constituting a representation of the whole country. Their attendance upon the lectures and other exercises, though entirely voluntary, had been full and regular ; while their industry, good conduct, and intel- ligent reception of instruction, had been a source of peculiar pleasure to their professors. Lectures had been given, during the current term, by Professor Parker, upon Equity Pleadings, Bail- ments, and Practice ; by Professor Parsons, upon Blackstone's Commentaries, the Admiralty Jurisdic- tion, Shipping, Bills and Notes; and by Professor Allen, upon Real Law and Domestic Relations. In treating most of these branches, the professors adopted certain text-books, of acknowledged authority, — to which the attention of the students was especially directed, — as the basis of their remarks. They also examined the students in these books, and in the lead- ing cases illustrating the subject. This system of instruction, which, with substantial uniformity, has been continued in the School since its earliest nofndation, has shown itself well adapted to the end in view. It is essential that the student should be directed to certain text-books. These he must study carefully, devotedly ; nor can he properly omit to go behind these, and verify them by the decided cases — letting no day pass without its fulfilled task. In this way he will be prepared for the examinations, and will be enabled to appreciate the explanations and illus- trations of the lecture-room, throwing light upon the 380 REPORT ON THE LAW SCHOOL text, and showing its application to practical cases. The labors of the student will qualify him to compre- hend the labors of the instructor. Still further, exami- nations in the text-books, accompanied by explanations and illustrations, help to interest the student in the sub- ject, and to bring his mind directly in contact with the mind of his instructor. These same purposes are also promoted by the favorite exercise of moot-courts, which are held twice a week, by the different professors in succession. A case, involving some unsettled question of law, is argued by four students, who have been designated so long previously as to allow time for careful preparation ; and at the close of the arguments, an opinion is pronounced by the presiding professor, commenting upon the doc- trines maintained on each side, and deciding between them. These occasions are found to enlist the best attention, not only of those immediately engaged in them, but of the whole school ; while some of the efforts they call forth are said to show distinguished research and ability. Here, on this mimic field, are trained those forensic powers which are destined to be the pride and ornament of the bar. We should not neglect to notice the advantages for study afforded by the extensive library of the Law School. This is separate from the Public Library of the University, and contains about fourteen thousand volumes. Here are found all the American Reports, and the Statutes of the United States, as well as those of all the States, a regular series of all the English Reports, including the Year-books, and also the English Statutes, as well as the principal treatises in American OF HARVAKD UNIVERSITY. 381 and English law ; also a large body of works in the Scotch, French, German, Dutch, Spanish, Italian, and other foreign law ; and an ample collection of the best editions of the Roman or Civil Law, with the works of the most celebrated commentators upon that ancient law. This library is one of the largest and most valua- ble, relating to law, to be found in the country. As an aid to study, it cannot be estimated too highly. Here the student may range at will through all the demesnes of jurisprudence. Here he may acquire a knowledge of the books of his profession, — learning their true character and value, — which will be of incalculable service to him in his future labors. Whoso knows how to use a library possesses the very keys of knowledge. Next to knowing the law, is knowing where the law is to be found. There is another advantage of a peculiar character, afforded by the Law School, in the opportunity of kindly and instructive social relations among the students, and also between the students and their instructors. Young men, engaged in similar pursuits, are professors to each other. The daily conversation concerns their common studies, and contributes some new impulse. Mind meets mind, and each derives strength from the con- tact. But the instructor is also at liand. In the lec- ture-room, and also in private, he is ready to afford counsel and help. The students are not alone in their labors. They find an assistant at every step of their journey, ready to conduct them through its devious and toilsome passes, and to remove the diiTicultics wiiich throng the way. This twofold companionship of the students with each other, and of the students with their 332 REPORT ON THE LAW SCHOOL instructors, is full of beneficent influences, not only in the cordial intercourse which it begets, but in the posi- tive knowledge which it diffuses, and in its stimulating effect upon the minds of all who enjoy it. In dwelling on the advantages of the Law School, as a seat of legal education, the Committee place side by side with the lectures and exercises of the professors, the profitable opportunities afforded by the library, and by the fellowship of persons engaged in the same pur- suits ; all echoing to the heart of the pupil, as from the genius of the place, constant words of succor, encour- agement, and hope. From the present prosperity of the School, the Com- mittee have been led to look back to its early begin- nin*'-, to observe its growth, and to commemorate with gratitude its benefactors. It need hardly be added, that a Law School was not embraced by our forefathers in the original design of the College, and that it was ingrafted upon the ancient stock at quite a late period. The College was first planted at a time when the law was not treated, even in England, as a part of academic instruction. The first settlers of our country could not be expected to establish professorships unknown in the land from which they had parted ; nor, indeed, in those early days, and for some time later, does there appear to have been occasion for instruction in the law. Indeed, the law, as a science, as a profession, or as a practical instrument of government, was scarcely observed. Law- yers were not known as a class, nor was their business respected. Mr. Lechford, of Clement's Inn, who had OF IIARVAKD UiMVERSITY. 383 emigrated not long after the foundation of the College, — hoping to gain a livelihood as an attorney, — being cautioned at a quarter court " not to meddle with con- troversies," — returned again to England. But, as the Colony grew, it gradually laid hold of the common law, and, for some time before the Revolution, claimed this law as a birthright of the inhabitants. The history of the Library of the University exposes the poverty of the means afforded in those early days for the study of the law. In its Catalogue, pub- lished in 1727, we find but seven volumes of the com- mon law. These are Spel man's Glossary, Pulton's Collection of Statutes, Keble's Statutes, Coke's First and Second Institutes, and a couple of odd volumes of the Year-books. These were the means afforded for the study of our law by the library which Cotton Mather described, some time before the publication of this cat- alogue, as the " best furnished that could be shown any where in all the American regions." Since books are the very instruments of learning, it must follow, if these were wanting at Harvard College, that the study of the law could make little advance. Happily all this is now changed. The first professorship of law in the University was established in 1815, upon a foundation partly supplied by an ancient devise of Isaac Royall, Esq. ; — a mu- nificent gentlemen of ample fortune, who, being con- nected by blood and marriage, as well as by political opinions, with the principal royalists of Massachusetts, forsook the country v/ith them at the commencement of the Revolution, and died at Kensington in England, about the year 1781. Though an exile, he did not 384 REPORT ON THE LAW SCHOOL forget the land he had left. Thither " his heart un- travelled fondly turned," before his death. By his will, recorded at the Probate Office in Boston, he devised to the town of Medford in Massachusetts, where he had resided, certain lands in Granby, for the support of schools. The residue of his estate in that town, and certain other lands in the county of Worcester, he devised to the Overseers and Corporation of Harvard College, " to be appropriated towards the endov.-ing a Professor of Laivs in the said College.^ or a Professor of Physic and Anatomy, whichever the said Overseers and Corporation shall judge to be best for the benefit of the said College." The capital, with its accumulation resulting from the property thus devised, is ^7,943-63, yielding an annual income of about four hundred dol- lars. It is believed that the University and the lovers of the law are indebted to the late Hon. John Lowell, while a member of the Corporation of the University, for calling these funds — as yet unappropriated to either object of the devise — from their sleep in the treasury, by procuring the establishment of a professorship of law in 1815, which v/as ordered, for the present, to bear the name of Royall, in honor of him whose will was now first executed in this regard. The residue of the funds for its support have been hitherto supplied by the University, mainly from the fees paid by students of law. The Hon. Isaac Parker, late Chief Justice of this Commonwealth, was appointed the first professor. In 1817, the Hon. Asahel Stearns was placed upon another foundation, established by the University. The statutes of this professorship required him to open and keep a School in Cambridge, for the instruction of the OF HARVARD UNIVERSITY. 385 graduates of the University, and of others prosecuting the study of the law; and, besides prescribing to his pupils a course of study, to examine and confer with them upon the subjects of their studies, to read to them a course of lectures, and generally to act the part of a tutor, so as to improve their minds, and assist their acquisitions. From this time may be dated the estab- lishment of the Law School in the University. Chief Justice Parker never resided at Cambridge, but in the performance of his duties as professor, was in the habit of reading a course of lectures every summer to the students of the Law School, and to the senior class of under-graduates. These were of an elementary nature, adapted to the youthful minds of his audience — the larger part of which belonged to the under-graduates — and were characterized by that free and flowing style which so eminently marks the judicial opinions of this Judge. They comprised a view of the Constitutions of the United States and of Massachusetts, with a particular notice of the early juridical history of New England, explaining the origin of its laws and institutions. Professor Stearns, who resided in Cambridge, was occupied more immediately with the duties of instruction in law. He was accus- tomed to hear recitations from the students of the School in the more important text-books, to preside in moot-courts, and to read lectures on various interesting titles of law. The valuable work on Real Actions, so well known by the lawyers of the country, was pre- pared by him in the discharge of his duties as professor, and read to his pupils in a course of lectures. The first edition was dedicated by the author " To the VOL. II. 25 386 REPORT ON THE LAW SCHOOL Students of Harvard University, as a testimonial of his earnest desire to aid them in the honorable and laborious study of American jurisprudence." The number who resorted to the Law School at this period was comparatively small. From 1817 to 1830, the largest class for any single year was eighteen, and the average annual number was not more than eight. The first important step, however, was taken. The law was admitted within the circle of University studies ; while, by the learning and reputation of its professors, the cause of legal education was commended, and the idea of a Law School was shown to be practicable. In 1829, Chief Justice Parker and Professor Stearns resigned their places, and a new epoch in the history of the School began. The Hon. Nathan Dane, emulating the example of Viner in England, from the profits of his extensive Abridgment and Digest of American Law, established a new professorship, still called from his name ; to which, according to his request, the late Joseph Story, at that time a resident of Salem, and an Associate Justice of the Supreme Court, was appointed. In his communication to the University, appropriating the funds for this endowment, the venerable founder marked out the duties of the new station as follows : " It shall be the duty of the professor to prepare and deliver, and to revise for publication, a course of lectures on the five following branches of law and equity, equally in force in all parts of our Federal Republic, — namely, the law of nature, the law of nations, commercial and maritime law, federal law, and federal equity, — in such wide extent as the same branches now are, and from time to time, shall be, administered in the Courts of the OF HARVARD UNIVERSITY. 387 United States, but in such compressed form as the pro- fessor shall deem proper ; and so to prepare, deliver, and revise lectures thereon, as often as tlie said Corpora- tion shall think proper." The funds originally given by Mr. Dane amounted to 810,000, to which were added 85,000 on his death, making the sum total of his donation 815,000. Mr. Justice Story removed to Cam- bridge, and commenced his new career, as Dane Pro- fessor of Law, in August, 1829, with an inaugural discourse, in which the honorable nature of legal stud- ies, the arduous labors required in their pursuit, and the duties upon which he was about to enter, were reviewed with singular power and beauty. At the same time, John Hooker Ashmun, Esq., a lawyer of remarkable acuteness and maturity, who, though young, had shown already the capacity of a great jurist, was associated with him as Royall Professor of Law. The Law School, from the exertions of the new pro- fessors, received a fresh impulse. The number of students increased, and the fame of the institution was extended. Professor Story, though necessarily absent much in the discharge of his judicial labors, yet found time to take an active part in the duties of teaching. He presided in the moot-courts and lecture-rooms, and, by his earnest encouragements and profuse instructions, not less than by his illustrious example, warmed the classes with ardor in their studies. He continued in this sphere, giving and receiving happiness from his labors, for a period of sixteen years ; when, desirous as age advanced to lay down some of his cares, he proposed to resign his seat on the bench, and dedicate the remainder of his days to his professorship. As he 388 REPORT ON THE LAW SCHOOL was about to make this change, he was arrested by death, Sept. 10, 1845. Professor Ashmun had already fallen, much regret- ted, by his side, in 1833, at the early age of thirty-three. Besides the moot-courts, the examinations in the text- books, and oral expositions of the law, this learned teacher had occasionally read written lectures. Among these was a valuable course on Medical Jurisprudence, Equity, and the Action of Assumpsit. His place was supplied by an eminent jurist, Professor Greenleaf, who labored for a long period with rare success, be- loved by a large circle of grateful pupils, and by his associates in instruction, till 1848, when he was com- pelled by ill health to resign his connection with the Law School. Among his distinguished labors, in the discharge of his duties as professor, is a work on the Law of Evidence, which is now a manual in the courts of our country, and one of the classics of the common law. Professor Greenleaf, on the death of Professor Story, was made Dune Professor. Hon. William Kent, of New York, occupied for a year the place of Royall Professor, when he felt constrained by circumstances beyond his control, to return to New York. Since then, Hon. Theophilus Parsons has been Dane Professor; and Hon. Joel Parker, late Chief Justice of New Hampshire, Royall Professor. Hon. Franklin Dex- ter, for a brief period, has lectured on the Constitution of the United States, and the Law of Nations ; and the Hon. Luther S. Gushing, on Parliamentary Law and Criminal Law. Hon. Frederick H. Allen, late a Judge in Maine, as University Professor, without any OF HARVARD UNIVERSITi\ 389 permanent foundation, is at present cooperating with Professor Parsons ai duties of the School. Professor Parsons and Professor Parker in the general In reviewing the history of the School, the Com- mittee, while remembering with grateful regard all its instructors, pause with veneration before the long and important labors of Story. In the meridian of his fame as a Judge, he became a practical teacher of jurisprudence, and lent to the University the lustre of his name. The Da7ie Professorship, through him, has acquired a renown which places it on the same eleva- tion with the Vinerian Professorship at Oxford, to which we are indebted for the Commentaries of Sir William Blackstone. These "twin stars" shine each in different hemispheres, but with rival glories. Nor is this the only parallel ; for Viner, like our Dane, endowed the professorship, which bears his name, from the profits of his immense Abridgment of the Law. In the performance of his duties. Professor Story pre- pared and published the most important series of jurid- ical works which have appeared in the English lan- guage in our age, embracing a comprehensive treatise on the Constitution of the United States, a masterly exposition of that portion of International Law known as the Conflict of Laws, and Commentaries on Equity Jurisprudence, Equity Pleading, and various branches of Commercial Law. The character of his labors, and their influence upon the School, will appear from an interesting passage in his last will and testament, bearing date Jan. 2, 1842. After bequeathing to the University several valuable 390 REPORT ON THE LAW SCHOOL pictures, busts, and books, he proceeds as follows : "I ask the President and Fellows of Harvard College to accept them as memorials of my reverence and respect for that venerable institution at which I received my education, I hope it may not be improper for me here to add, that I have devoted myself as Dane Professor for the last thirteen years * to the labors and duties of instruction in the Law School, and have always performed equal duties and to an equal amount with my excellent colleagues, Mr. Professor Ashmun and ]\Ir. Professor Greenleaf, in the Law School. When I came to Cambridge, and undertook the duties of my professorship, there had not been a single law student there for the preceding year. There was no law library, but a few old and imperfect books being there. The students have since increased to a large number, and, for six years last past, have exceeded one hundred a year. The Law Library now contains about six thousand volumes, whose value cannot be deemed less than twenty-five thousand dollars. My own salary has constantly remained limited to one thousand dollars, — a little more than the interest of Mr, Dane's dona- tions. I have never asked or desired an increase thereof, as I was receiving a suitable salary as a Judge of the Supreme Court of the United States ; while m^" colleagues have very properly received a much larger sum, and of late years more than double my own. Under these circumstances, I cannot but feel that I have contributed towards the advancement of the Law School a sum out of my earnings, which, with my * At the time of his death it was sixteen years. OF HARVARD UNIVERSITY. 891 moderate means, will be thought to absolve me from making, what otherwise I certainly should do, a pecu- niary legacy to Harvard College, for the general ad- vancement of literature and learning therein." It appears from the books of the Treasurer, that the sums received from students in the Law School, during the sixteen years .of his professorship, amounted to 8105,000. Of this sum, only 847,200 were spent in salaries, and other current expenses of the School. The balance, amounting to 857,200, is represented by the following items, viz, : — Books purchased for the Library and for students, including about Si, 950 for binding, and deducting the amount re- ceived for books sold 829,000 For the enlargement of the Hall, containing the library and lecture-rooms, in 1844-45 12,700 The Fund remaining to the credit of the School in August, 1845 15,500 So7,200 Thus it appears that the Law School, at the time of Pro- fessor Story's death, actually possessed, independent of the somewhat scanty donations of Mr. Royall and Mr. Dane, funds and other property, including a large library and a commodious edifice, amounting to up- . wards of Jifty-seven thousand dollars, all of which had been earned during Professor Story's term of service. As he declined, during this time, to receive a larger annual salary than 81O0O, and as his high character and the attraction of his name doubtless contributed to swell the income of the School, it will be evident that a considerable portion of this large sum may justly be re- garded as the fruit of his bountiful labors contributed to the University. 392 REPORT ON THE LAW SCHOOL The Committee, while calling attention to the extent of the pecuniary benefaction which the Law School has received from Professor Story, have felt it their duty to urge upon the Government of the University the pro- priety of recpgnizing the benefaction in some suitable form. The name of Royall, attached to one of the professorships, keeps alive the memory of his early beneficence. The name of Dane, attached to the pro- fessorship on which Story taught, and sometimes to the edifice, containing the library and lecture-rooms, and also to the Law School itself, attests, with triple aca- demic voice, a well-rewarded donation. But the contri- butions of Royall and Dane combined — important as they have been, and justly worthy of honorable men- tion — do not equal what has been contributed by Story. At the present moment, Story must be regarded as the largest pecuniary benefactor of the Law School, and one of the largest pecuniary benefactors of the Univer- sity. In this respect, he stands before Hollis, Alford, Boylston, Hersey, Bowdoin, Erving, Eliot, Smith, M'Lean, Perkins and Fisher. His contributions have this additional peculiarity, that they were munificently afTorded, — from his daily earnings, — not after death, but during his own life ; so that he became, as it were, the executor of his own will. In justice to the dead, as an example to the living, and in conformity ^v'n\\ established usage, the University should enroll his name among its founders, and inscribe it, in some fit manner, upon the School which he has helped to rear. Three different courses have occurred to the Com- mittee. The edifice containing the library and lecture- rooms may be called after him. Story Hall. Or the OF HARVARD UNIVERSITY. S93 branch of the University devoted to law may be called the Story Law School ; as the other branch of the Uni- versity devoted to science is called, in gratitude to a distinguished benefactor, Lawrence Scientific School. Or, still further, a new and permanent professorship in the Law School may be created, bearing his name. If the latter suggestion should find acceptance, the Committee recommend that the professorship be of Commercial Law and the Law of Nations. It is well known to have been the earnest desire of Professor Story, often expressed, in view of the increasing means of the Law School, and of the necessity of meeting the increasing demands for education in the law, that pro- fessorships of both these branches should be established. He regarded that of Commercial law as most needed. His own preeminence in this department is shown in his works, and especially in his numerous judicial opin- ions. And only a few days before his death, in con- versation with one of this Committee, hearing that it had been proposed by some of the merchants of Boston, on his resignation of the seat which he had held on the bench for thirty-four years, to cause his statue in mar- ble to be erected, he said, " If the merchants of Boston wish to do me honor in any way on my leaving the bench, let it not be by a statue, but by founding in the Law School a professorship of commercial law,*" With these generous words he embraced in his vows at once his favorite law, and his favorite University. The subject of commercial law is of great and grow- ing practical importance. Every new tie of commerce, in the multiplying relations of mankind, gives new occasion for its application. Besides the general prin- 394 REPORT ON THE LAW SCHOOL ciples of the law of Contracts, it comprehends the law of Bailments, Agency, Partnership, Bills of Exchange and Promissory Notes, Shipping and Insurance; — branches of inexpressible interest to the lawyer, the merchant, and indeed to every citizen. The main features of this law are common to all commercial nations : they are recognized with substantial uniform- ity, whether at Boston, London, or Calcutta ; at Ham- burg, Marseilles, or Leghorn. In this respect, they may be regarded as a part of the 'private Law of Na- tions. They would be associated naturally with the Public Law of Nations ; embracing, of course, the Law of Admiralty, and that other branch which, it is hoped, will remain for ever, a dead letter, — the Law of Prize. The Committee believe that all who hear this state- ment will agree, that something ought to be done to commemorate the obligation of the University to one of its most eminent professors and largest pecuniary bene- factors. They have ventured to make suggestions with regard to the manner in which this may be accom- plished, not with any pertinacious confidence in their own views, but simply as a mode of opening the sub- ject, and bringing it to your best attention. In dwelling on the propriety of creating a new and permanent pro- fessorship, they do not wish to be understood as express- ing a preference for this form of acknowledgment. It may well be a question, whether the services of Pro- fessor Story, — important in every respect, — shedding upon the Law School a lasting fame, and securing to it pecuniary competence, an extensive library, and a com- modious hall, — can be commemorated with more appro- priate academic honors, than by giving his name to that OF HARVARD UNIVERSITY. 395 department in the University of which he has been the truest founder. The world, in advance of any formal action of the University, has already placed the Law School in the illumination of his name. It is by the name of Story that this seat of legal education has be- come known wherever jurisprudence is cultivated as a science. By his name it has been crowned abroad. For the Committee, Charles Sumner. To the Overseers of Harvard University. SPEECH ON OUR PRESENT ANTI-SLAVERY DUTIES, AT THE FREE SOIL STATE CON- VENTION IN BOSTON, OCT. 3, 1850. Mr. President : I HAD hoped to-day to mingle in the business of the Convention, and to listen to others, without occupying your time by any words of mine. Indeed, when I left our meeting at its adjournment this forenoon, I did not count upon being here this afternoon ; but let me say frankly, I was uneasy away — I felt that I ought to be with you — I yielded to the attractions of the cause, which has drawn us together, and here I am, answering to your call, and most grateful for this kind reception. Let me, without delay, touch upon some topics which seem important to be borne in mind. The session of Congress, so long drawn out, has at last closed ; and its members are now hurrying to their homes, to taste a brief respite from legislative labors. It becomes us to consider what has been done, and to endeavor, by an inquiry into the existing state of things, to discern our present duties. " Watchman, what of the night ? " And well may the question be asked, ••' What of the SPEECH ON OUR ANTI-SLAVERY DUTIES. 397 night ? " For things have occurred, and measures have passed into laws, which, to my mind, fill the day itself with blackness. And yet there are streaks of light — an unwonted dawn — in the distant West, out of which a full-orbed sun is beginning to ascend, rejbicing like a strong man to run his race. Video sohm orientem in occidente. By an Act of the recent Congress, California, with a Constitution forbidding Slavery, adopted in the exercise of its sovereignty as a State, has been admitted into the Union. For a measure like this, required not only by the simplest justice, but by the uniform practice of the country, and the constitutional principles of the slave-holders themselves, we may well be ashamed to confess our gratitude ; and yet I cannot but rejoice in this great good accomplished. A hateful institution, which thus far, without check, had travelled with the power of the Republic, westward, is bidden to stop, and a new and rising State guarded from its contami- nation. Freedom — in wdiosc hands is the divining rod, of magical power, pointing the way, not only to wealth untold, but to every possession of virtue and intelli- gence — whose presence is better far than any mine of gold — is now at last established in an extensive re- gion on the distant Pacific, between the very parallels of latitude so long claimed by Slavery as its peculiar home. Here is a moral and political victory ; a moral vic- tory, inasmuch as Freedom has secured a new foot- hold, where to exert her far-reaching influence ; a political victory also, inasmuch as by the admission of 398 SPEECH ON OUR PRESENT California, the Free States have obtained a majority of votes in the Senate, and the balance ofpower^ between Freedom and Slavery — so preposterously claimed by the Slave States, in forgetfulness of the true spirit of the Constitution, and in mockery of Human Rights — has been overturned. May free California, and her Senators in Congress, never fail hereafter, amidst the trials before us, in loyalty to Freedom ! God forbid that the daughter should turn, with ingratitude or ne- glect, from the mother that bore her ! Besides this Act, there are two others of this long session, which may be regarded with satisfaction, and which I mention at once, before considering the reverse of the picture. The Slave trade has been abolished in the District of Columbia. This measure, though small in the sight of Justice, is most important. It banishes from the National Capital an odious traffic. But this is its least office. It practically affixes to the whole traffic, wherever it exists — not merely in Wash- ington, within the immediate sphere of the legislative act — but every where throughout the Slave States, whether at Richmond, or Charleston, or New Orleans, the brand of Congressional reprobation. Yes ! The people of the United States, by the voice of Congress, have solemnly declared the domestic traffic in slaves to be otfensive in their sight. The Nation has judged this traffic. The Nation has said to it, " Get thee be- hind me, Satan." It is true that Congress has not, as in the case of the foreign slave trade, stamped it as piracy^ and awarded to its perpetrators the doom of pirates ; but it condemns the trade, and gives to gen- eral scorn those who partake of it. To this extent the ANTI-SLAVERY DUTIES. 399 Federal Government has spoken for Freedom. And, in doing this, it has asserted, under the Constitution of the United States, legislative jurisdiction over the sub- ject of Slavery in the District ; thus preparing the way for that complete act of Abolition, which is necessary to purge the National Capital of its still remaining curse and shame. The other measure, which I must hail with thankful- ness, is the Abolition of Flogging in the Navy. Beyond the direct reform thus accomplished — after much effort, finally crowned by encouraging success — is the indi- rect influence of this law, especially in rebuking the use of the lash, wheresoever and by whomsoever em- ployed ! Thus two props and stays of Slavery, wherever it exists in our country, have been weakened and under- mined by Congressional legislation. Without the slave- trade and the Zas/i, Slavery must fall to the earth. By these, the whole hideous monstrosity is upheld. If I seem to exaggerate the consequence of these meas- ures of Abolition, let it be referred to my sincere con- viction of their powerful, though subtle and indirect influence, and also to my desire to find something of good in a Congress which has furnished occasion for so much of disappointment. There are other measures, which must be regarded, not only with regret, but with indignation and disgust. Two broad territories. New Mexico and Utah, under the exclusive jurisdiction of Congress, have been or- ganized without any proliibition of Slavery. In laying the foundation of their governments, destined hereafter 400 SPEECH ON OUR PKESENT to control the happiness of innumerable multitudes, Congress has omitted the Great Ordinance of Freedom, first suggested by Jefferson, and consecrated by the ex- perience of the North-Western Territory ; it has neg- lected to recognize those principles of Human Liberty, which are enunciated in our Declaration of Indepen- dence, — which are essential to every Bill of Rights — and without which a Republic is a name, and nothing more. Still further, a vast territory, supposed to be upwards of seventy thousand square miles in extent, larger than all New England, has been taken from New Mexico, and with ten million dollars besides, given to slave- holding Texas ; thus, under the plea of settling the Western boundary of Texas, securing to this State a large sum of money, and consigning to certain Slavery an important territory. And still further, as if to do a deed, which should " make heaven weep, all earth amazed," this same Con- gress, in disregard of all the cherished safeguards of Freedom, has passed a most cruel, unchristian, devilish law to secure the return into Slavery of those fortunate bondmen, who have found shelter by our firesides. This is the Fugitive Slave Bill — a bill which despoils the party claimed as a slave — whether he be in reality a slave or a freeman — of the sacred right of Trial by Jury, and commits the question of Human Freedom — the highest question known by the law — to the unaided judgment of a single magistrate, on ex parte evidence it may be, by affidavits, without the sanction of cross- examination. Under this detestable, heaven-defying bill, not the slave only, but the colored freeman of the ANTI-SLAVERY DUTIES. 401 North, may be swept into ruthless captivity ; and there is no white citizen, born among us, bred in our schools, partaking in our afiairs, voting in our elections, whose Liberty is not assailed also. Without any dis- crimination of color, the Bill surrenders all, who may be claimed as " owing service or labor," to the same tyrannical judgment. And mark once more its hea- thenism. By unrelenting provisions it visits, with bitter penalties of fine and imprisonment, the faithful men and women, who may render to the fugitive that counte- nance, succor and shelter, which Christianity expressly requires ! Thus, from beginning to end, it sets at naught the best principles of the Constitution, and the very laws of God ! I might occupy your time by exposing the unconsti- tutionality of this act. In denying the Trial by Jury, it is three times unconstitutional; first, as the Constitu- tion declares " The right of the people to be secure in their persons agamst unreasonable seizures ; '''' secondly, as it further declares, that " No person shall be deprived of life, liberty^ or property without due process of law ;" and, thirdly, because it expressly declares, that " In suits at common law, where the value in contro- versy shall exceed twenty dollars, the right of trial by jury shall be preserved.'''' By this triple cord did the framers of the Constitution secure the Trial by Jury in every question of Human Freedom. That man can be little imbued with the true spirit of American insti- tutions — he can have little sympathy with Bills of Rights — he must be lukewarm for Freedom, who can hesitate to construe the Constitution so as to secure this safeguard. VOL. II. 26 402 SPEECH ON OUR PRESENT The act is again unconstitutional in the unprecedented and tyrannical powers which it confers upon Commis- sioners. These officers are appointed, not by the Presi- dent with the advice of the Senate, but by the Courts of Law ; they hold their places, not during good be- havior, but at the will of the Court ; and they receive for their services, not a regular salary, but fees in each individual case. And yet in these officers, — thus appointed and compensated, and holding their places by the most uncertain tenure — is vested a portion of that "judicial power," which, according to the express words of the Constitution, can be in " Judges " only, who hold their offices " during good behavior," who, " at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office," and, it would seem also, who are appointed by the President and confirmed by the Senate. And, adding meanness to the violation of the Constitution, the Commissioner is bribed by a double fee, to pronounce against Freedom. If he dooms a man to slavery, he receives ten dollars ; but if he saves him, his fee is five dollars. But I will not pursue these details. The soul sickens in the contemplation of this legalized outrage. In the dreary annals of the Past, there are many acts of shame — there are ordinances of monarchs, and laws, which have become a bye-word and a hissing to the nations. But, when icc consider the country and the agCy I ask fearlessly. What act of shame, what ordi- nance of monarch, what law can compare in atrocity, with this enactment of an American Congress ? I do not forget Appius Claudius, the tyrant decemvir of ANTI-SLAVERY DUTIES. 403 ancient Rome, condemning Virginia as a slave ; nor Louis XIV. of France, letting slip the dogs of religious persecution by the revocation of the edict of Nantes ; nor Charles I. of England, arousing the patriot rage of Hampden, by the extortion of Ship-money ; nor the British Parliament, provoking, in our own country, spirits kindred to Hampden, by the tyranny of the Stamp Act and Tea Tax. I would not exaggerate ; I wish to keep within bounds ; but I think no person can doubt that the condemnation now affixed to all these transactions, and to their authors, must be the lot here- after of the Fugitive Slave Bill, and of every one, accord- ing to the measure of his influence, who gave it his support. Into the immortal catalogue of national crimes this has now passed, drawing with it, by an inexorable necessity, its authors also, and chiefly him, who, as President of the United States, set his name to the Bill, and breathed into it that final breath, without which it would have no life. Other Presidents may be forgotten ; but the name signed to the Fugitive Slave Bill can never be forgotten. There are depths of infamy, as there are heights of fame. I regret to say what I must ; but truth compels me. Better far for him had he never been born ; better far for his memory, and for the good name of his children, had he never been President ! 1 have already likened this Bill to the Stamp Act, and I trust that the parallel may be continued yet further by a burst of popular feeling against all action under it, similar to that which glowed in the breasts of our fothers. Listen to the words of John Adams, as written in his Diary for the time : — 404 SPEECH ON OUR PRESENT The year 1765 has been the most remarkable year of my life. That enormous engine, fabricated by the British Parlia- ment, for battering down all the rights and liberties of America, — I mean the Stamp Act, — has raised and spread through the whole continent a spirit that will be recorded to our honor with all future generations. In every colony, from Georgia to New Hampshire inclusively, the stamp distributors and inspectors have been compelled by the unconquerable rage of the people to renounce their offices. Such and so universal has been the resentment of the people, that every man w-ho has dared to speak in favor of the stamps, or to soften the detestation in which they are held, how great soever his abilities and virtues had been esteemed before, or whatever his fortune, connections, and influence had been, has been seen to sink into universal contempt and ignominy. Surely the love of Freedom cannot have so far cooled among us, the descendants of those who opposed the Stamp Act, that we are insensible to the Fugitive Slave Bill. The unconquerable rage of the people, in those other days, compelled the stamp distributors and inspectors to renounce their offices, and held up to detestation all who dared to speak in favor of the stamps. And shall we be more tolerant of those who volunteer in favor of this Bill — more tolerant of the Slave-Hunter, who, under its safeguard, pursues his prey upon our soil ? The Stamp Act could not be executed here. Can the Fugitive Slave Bill ? And here. Sir, let me say, that it becomes me to speak with peculiar caution. It happens to me to sus- tain an important relation to this Bill. Early in professional life 1 was designated by the late IVJr. Jus- tice Story one of the Commissioners of the Courts of the United States, and, though I have not very often ANTI-SLAVERY DUTIES. 405 exercised the functions of this post, yet my name is still upon the lists. As such I am one of those before whom, under the recent Act of Congress, the panting fugitive may be brought for the decision of the question, whether he is a freeman or a slave. But while it be- comes me to speak with caution, I shall not hesitate to speak with plainness. T cannot forget tliat I am a man^ although I am a Commissionpr. Did the same spirit which inspired the fathers inspire our community now, the marshals — and every magis- trate who regarded this law as having any constitutional obligation — would resign rather than presume to exe- cute it. This, however, is too much to expect from all at present. But I will not judge them. To their own con- sciences I leave them. Surely, no person of humane feelings, and with any true sense of justice — living in a land "where bells have knolled to church" — what- ever may be the apology of public station, could fail to recoil from such service. For myself let me say, that I can imagine no ofnce, no salary, no consideration, which I would not gladly forego, rather than become in any way an agent in enslaving my brother-man. Where for me would be comfort and solace, after such a work ! In dreams and in waking hours, in solitude and in the street, in the meditations of the closet, and in the affairs of men, wherever I turned, there my victim would stare me in the face ; from the distant rice-fields and sugar plantations of the South, his cries beneath the vindictive lash, his moans at the thought of Liberty once his, now alas! ravished from him, would pursue me, repeating the tale of his fearful doom, and sounding, forever sounding, in my ears, " Thou art the man ! " 406 SPEECH ON OUR PRESENT The magistrate who pronounces the decree of slavery, and the marshal who enforces it, act in obedience to law. This is their apology ; and it is also the apology of the masters of the Inquisition, as they ply the torture amidst the shrieks of their victim. But can this weaken our accountability for an act of wrong ? Disguise it, excuse it as you will, the fact must glare before the world and penetrate the conscience too, that the fetters and chains, by which the unhappy fugitive is bound, are riveted by their tribunal — that his second life of wretch- edness dates from their agency — that his second birth as a slave proceeds from them. The magistrate and marshal of the United States do for him here, in a country, which vaunts a Christian civilization, what the naked, barbarous Pagan chiefs, beyond the sea, did for his grandfather in Congo ; they transfer him to the Slave- Hunter ^^nd for this service receive the very price paid for his grandfather in Congo — ten dollars ! Gracious Heaven ! Can such things be on our Free Soil ! Shall the evasion of Pontius Pilate be enacted anew, and a Judge vainly attempt, by wash- ing his hands, to excuse himself for condemning one in whom he can "find no fault!" Should any Court, sitting here in Massachusetts, for the first time in her history, become the agent of a Slave- Hunter, the very images of our fathers would frown from the walls ; their voices would cry from the ground ; their spirits would hover in the air, pleading, remonstrating, protesting, against the cruel judgment. There is a legend of Venice, consecrated by the pencil of one of her greatest artists, that the Apostle St. Mark suddenly descended into the public square, ANTI-SLAVERY DUTIES. 407 and broke the manacles of a slave, even before the Judge who had decreed his doom. Should Massachu- setts be ever desecrated by such a judgment, may the good Apostle, with valiant arm, once more descend to break the manacles of the Slave ! Sir, I will not dishonor this home of the Pilgrims, and of the Revolution, by admitting — nay, / cannot helieve — that this Bill will be executed here. Indi- viduals among us, as elsewhere, may forget humanity in a fancied loyalty to law ; but the public conscience will not allow a man, who has trodden our streets as a freeman, to be dragged away as a slave. By his escape from bondage, he has shown that true man- hood, which must grapple to him every honest heart. He may be ignorant, and rude, as he is poor, but he is of a true nobility. The Fugitive Slaves of the United States are among the heroes of our age. In sacrificinfT them to this foul enactment of Congress, we should violate every sentiment of hospitality, every whispering of the heart, every dictate of religion. There are many who will never shrink at any cost, and, notwithstanding all the atrocious penalties of this Bill, from efforts to save a wandering fellow-man from bondage ; the^/ will offer him the shelter of their houses, and, if need be, will protect his liberty by force. But let me be understood ; I counsel no vio- lence. There is another power — stronger than any individual arm — which I invoke ; I mean that invinci- ble Public Opinion, inspired by love of God and man, which, without violence or noise, gently as the oj)era- tions of nature, makes and unmakes laws. Let this opinion be felt in its Christian might, and the Fugitive 408 SPEECH ON OUR PRESENT Slave Bill will become every where upon our soil a dead letter. No lawyer will aid it by counsel ; no citizen will become its agent ; it will die of inanition — like a spider beneath an exhausted receiver. Oh ! it were well the tidings should spread throughout the land, that here in Massachusetts this accursed Bill has found no servants. " Sire, I have found in Bayonne honest citizens and brave soldiers only ; hut not one executioner^^'' was the reply of the governor of that place, to the royal mandate from Charles IX. of France, ordering the Massacre of St. Bartholomew. But it rests with you, my fellow-citizens, by your words and your example, by your calm determina- tions, and your devoted lives, to do this work. From a humane, just, and religious people, shall spring a Pub- lic Opinion, to keep perpetual guard over the liberties of all within our borders. Nay, more, like the flaming sword of the cherubim at the gates of Paradise, turn- ing on every side, it shall prevent any SLAVE- HUNTER from ever setting foot in this Common- wealth. Elsewhere, he may pursue his human prey ; he may employ his congenial bloodhounds, and exult in his successful game. But into Massachusetts he must not come. And yet again I say, I counsel no violence. I would not touch his person. Not with whips and thongs would I scourge him from the land. The contempt, the indignation, the abhorrence of the community shall be our weapons of offence. Wherever he moves, he shall find no house to receive hiin — no table spread to nourish him — no welcome to cheer him. The dismal, lot of the Roman exile shall be his. He shall be a wanderer, without roof^ fire^ or water. ANTI-SLAVERY DUTIES. 409 Men shall point at him in the streets, and on the high- ways ; Sleep, shall neither night nor day, Hang' upon his pent-house lid ; He shall live a man forbid. Weary seven nights, nine times nine, Shall he dwiiulle, peak and pine. The villages, towns and cities shall refuse to receive the monster ; they shall voiTiit him forth, never again to disturb the repose of our community. The feelings, with which we regard the Slave-Hunter, will soon be extended also to all the mercenary agents, and heartless minions, who, without any positive obliga- tion of law, became a part of his pack. They are volunteers^ and, as such, should share the ignominy of the chief Hunter. I have dwelt thus long upon the Fugitive Slave Bill, chiefly in the hope of contributing something to the creation of that Public Opinion, which in the Free States is destined to be the truest defence of the slave. I now advance to our more general duties. We have seen what Congress has done. And yet in the face of these enormities of legislation — of this organization of the territories without the prohibition of Slavery ; of the surrender of a large province to Texas and Slavery ; and of this execrable Fugitive Slave Bill ; in the face also of Slavery still sanctioned in the Dis- trict of Columbia ; of tlie Slave-trade between domestic ports under the flag of the Union ; and in the face of the Slave Power still dominant over the Government of 410 SPEECH ON OUR PRESENT the country, we are told that the Slavery Question is settled. Yes: settled — settled — that is the word. Nothings Sir, can he settled, which is not right. Nothing can be settled, which is adverse to Freedom. Nothing can be settled, which is contrary to the precepts of Christianity. God, nature, and all the holy sentiments of the heart, repudiate any such false seeming settle- nient. Amidst the shifts and changes of party our Duties remain, pointing the way to action. By no subtle com- promise or adjustment can men suspend the command- ments of God. By no trick of managers, no hocus- pocus of politicians, no " mush of concession " can we be released from this obedience. It is, then, in the light of our duties, that we are to find true peace, at once for our country, and ourselves. Nor can any settle- ment promise peace, which is not in harmony with those divine principles from which our duties spring. In unfolding these I shall be brief Slavery is wrong. It is the source of unnumbered woes ; not the least of which is its influence on the Slave-holder himself, in rendering him insensible to its outrage. It overflows with injustice and inhumanity. Language toils in vain to picture the wretchedness and wickedness, which it sanctions and perpetuates. Reason revolts at the im- pious assumption, that man can hold property in man. As it is our perpetual duty to oppose wrong, so must we oppose Slavery ; nor can we ever relax in this opposi- tion so long as the giant evil continues any where within the sphere of our influence. Especially must we oppose it, 2vherever we are responsible for its existence, or are in any 2vay parties to it. ANTI-SLAVERY DUTIES. 411 And now mark the dislinction. The testimony which we bear against Slavery, as against all other wrong is, in different ways, according to our position. The Slavery, which exists under other governments — as in Russia or Turkey ; or in other States of our Union — as in Virginia and Carolina — we can oppose only through the influence of morals and religion, without in any may invoking the Political Power. Nor do we propose to act otherwise. But Slavery, wherever we are responsible for it, wherever we are parties to it, must be opposed, not only by all the influences of morals and religion, but directly by every instrument of Political Power. As it is sustained by law, it can only be overthrown by law ; and the legislature, in which is lodged the jurisdiction over it, must be moved to under- take the work. I am sorry to confess that this can be done, only through the machinery of politics. The politi- cian, then, must be summoned. The moralist, the phi- lanthropist must become for this purpose a politician ; not forgetting his morals or his philanthropy, but seek- ing to apply them practically in the laws of the land. It is a mistake to say, as is often charged, that we seek to interfere, through Congress, with Slavery in the States, or in any way to direct the legislation of Con- gress upon subjects not within its jurisdiction. Our politiral aims, as well as our political duties, are co- extensive with our political responsibilities. And since we at the North are responsible for Slavery, wherever it exists under the jurisdiction of Congress, it is unpar- donable in us not to exert every power we possess to enlist Congress against it. Looking at details ; — 412 SPEECH ON OUR PRESENT We demand, first and foremost, the instant Repeal of the Fugitive Slave Bill. We demand the Abolition of Slavery in the District of Columbia. We demand the exercise by Congress, in all Terri- tories, of its time-honored power to prohibit Slavery. We demand of Congress to refuse to receive into the Union, any new Slave State. We demand the Abolition of the domestic slave-trade, so far as it can be constitutionally reached ; but partic- ularly on the high seas under the National Flag. And, generally, we demand from the Federal Gov- ernment the exercise of all its constitutional power to relieve itself from responsibility for Slavery. And yet one thing further must be done. The Slave Power must be overturned ; so that the Federal Gov- ernment may be put openly, actively and perpetually on the side of Freedom. In demanding the overthrow of the Slave Power, we but seek to exclude from the operations of the Federal Government a political influence, — having its origin in Slavery, — which has been more potent, sinister, and mischievous, than any other in our history. This Power, though unknown to the Constitution, and exist- ing in defiance of its true spirit, now predominates over Congress, gives the tone to its proceedings, seeks to control all our public affairs, and humbles both the great political parties to its will. It is that combina- tion of Slave-Masiers, whose bond of union is a common interest in Slavery. Time would fail me in exposing the extent to which its influence has been felt — the undue share of offices which it has enjoyed, — and ANTI-SLAVERY DUTIES. 418 the succession of its evil deeds. Suffice it to say, that, for a long period, the real principle of this union was not observed by the Free States. In the game of office and legislation, the South has always won. It has played with loaded dice — loaded luith Slavery. Like the Automaton Chess-Player, it has never failed to be conqueror. Let the Free States make a move on the board, and the South has said " Check." Let them strive for Free Trade, as they did once, and the cry has been " Check." Let them jump towards Protection, and it is again " Check." Let them move towards Internal Improvements, and the cry is still " Check." Whether forwards or backwards, to the right or left, wherever they moved, the Free States have been pursued by an inexorable " Check." But the secret is now discovered. Amidst the well-arranged machinery, which seemed to give motion to the victorious chess-player, there was concealed a motive force ., which has not been estimated — the Slave Power. It is the Slave Power, which has been the perpetual victor, saying always " Check " to the Free States. As this influence is now disclosed, it only remains that it should be openly encountered in the field o^ jjolitics. Such is our cause. It is not sectional ; for it simply aims to establish under the Federal Government the great principles of Justice and Humanity, which are as broad and universal as man. It is not aggressive, for it does not seek in any way to interfere, through Con- gress, with Slavery in the States. It is not contrary to the Constitution ; for it recognizes this instrument, and, in the administration of the Government, invokes the spirit 414 SPEECH ON OUR PRESENT of its founders. It is not hostile to the quiet of the country ; for it proposes the only course by which agi- tation can be allayed, and quiet be permanently estab- lished. And yet the attempt is made to suppress this cause, and to stifle its discussion. Vain and wretched attempt! The important subject, which more than all other subjects needs careful, conscientious and kind consideration in the national counsels — which will not admit of postponement or hesitation — which is connected with most of the great interests of the country — which controls the tariff, and causes war — which concerns alike all parts of the land, the North and the South, the East and the West — which affects the good name of the United States in the family of civilized nations — the subject of subjects — has been now at last, after many strug- gles, admitted within the pale of legislative discussion. From this time forward it will be entertained by Congress. It will be, as it were, one of the orders of the day. It cannot be passed over or forgotten. It cannot be blinked out of sight. The combinations of party cannot remove it. The intrigues of politicians cannot jostle it aside. There it is, in its colossal pro- portions, in the very Halls of the Capitol, overshadowing and darkening all other subjects. There it will con- tinue, till driven into oblivion by the irresistible Genius of Freedom. I am not blind to the adverse signs. The wave of reaction, which, during the last year swept over Europe, has reached our shores. The very barriers of Human Rights have been broken down. Statesmen, writers, scholars, speakers.^ once their uncompromising profes- ANTI-SLAVERY DUTIES. 415 sors, have became the professors of compromise. All this must be changed. Keaction must be stayed. The country must be aroused. The cause must again be pressed — with the avowed purpose never to moderate our efforts until crowned by success. The Federal Gov- ernment, every where within its proper constitutional sphere, must be placed on the side of Freedom. The policy of Slavery which has so long prevailed, must give place to the policy of Freedom. The Slave-Power, the fruitful parent of national ills, must be driven from its supremacy. Until all this is done, the friends of the Constitution and of Fluman Rights cannot cease from their labors ; nor can the country hope for any repose, but the repose of submission. Let men of all parties and pursuits, who wish well to their country, and would preserve its good name, join in these labors. Welcome here to the Conservative and to the Reformer ; for our cause stands on the truest Conservatism and the truest Reform. In seeking the reform of existing evils, we seek also the conservation of the principles of our fathers. "\\'elcome especially to the young. To you I appeal with confidence. Trust to your generous impulses, and to that reasoning of the heart, which is often truer, as it is less selfish, than the calculations of the brain. Do not exchange your aspirations for the skepticism of age. Yours is the better part. In the Scriptures it is said, that " the young men shall see visions, and the old men shall dream dreams ; " on which Lord Bacon has aptly remarked, that the palm is given to the young men, inasmuch as it is higher to see visions than to dream dreams. 416 SPEECH ON OUR PRESENT It is not uncommon to hear persons declare that they are against Slavery, and are willing to unite in any practical efforts to make this opposition felt. At the same time they pharisaically visit with condemnation, with reproach, or contempt, all the earnest souls that for years have striven in this struggle. To such I would say, if you are sincere in what you declare ; if your words are not merely lip-service ; if in your heart you are entirely willing to join in any practical efforts against Slavery, then, by your lives, by your conversa- tion, by your influence, by your votes — disregarding " the ancient forms of party strife " — seek to carry the principles of Freedom into the Federal Government, wherever its jurisdiction is acknowledged, and its power can be felt. Thus, without any interference with the States, which are beyond this jurisdiction, may you help to erase the blot of Slavery from our National brow. Do this, and you will most truly promote that har- mony, which you so much desire. You will establish tranquillity throughout the country. Then at last the Slavery Question will be settled. Banished from its usurped foothold under the Federal Government, Slav- ery will no longer enter, with distracting force, into the national politics — making and unmaking laws, making and unmaking Presidents. Confined to the States, where it was left by the Constitution, it will take its place as a local institution, for which we are in no sense responsible, and against which we cannot justly exert any political power. We shall be relieved from our present painful and irritating connection with it ; the existinji; antagonism between the South and the ANTI-SLAVERY DUTIES. 417 North will be softened ; crimination and recrimination will cease ; the wishes of our fathers will be fulfilled; and this Great Evil will be left to the kindly influences of morals and religion. To every laborer in a cause like this, there are satis- factions unknown to the common political partisan. Amidst all apparent reverses — notwithstanding the hatred of enemies, or the coldness of friends — he has the consciousness of duty done. Whatever may be existing impediments, his also is the cheering con- viction, that every word spoken, every act performed, every vote cast for this cause, helps to swell those quickening influences by which Truth, Justice and Humanity will be established upon earth. He may not live to witness the blessed consummation. But it is none the less certain. Others may dwell on the Past, as secure. Under the laws of a beneficent God, the Future also is secure — on the single condition that we labor for its great objects. The language of jubilee, which, amidst reverses and discouragements, burst from the soul of Milton, at the thought of sacrifices for the Church, will be echoed by every one w^ho toils and suffers for Freedom. " Now by this little diligence," says the great patriot of the English Commonwealtli, " mark what a privilege with good men and saints, to claim my right of lamenting the tribulations of the Church, if it should suffer, tvhen others, that have ventured nothing for her sake, have not the honor to he admitted mourners. But if she lift up her drooping head and prosper, among those that have something more than wished her well, I VOL. n. 27 418 SPEECH ON OUR PRESENT have my charter and freehold of rejoicing to me and my heirs." I have spoken of votes. Living in a community where political power is lodged with the people, and where each citizen is an elector, the vote is an impor- tant expression of our opinions. The vote is the cut- ting edge. It is well to have correct opinions ; hut the vote must follow. The vote is the seed planted ; with- out it there can be no sure fruit. The winds of heaven may in their beneficence scatter the seed in the furrow ; but it is not from such accidents that our fields wave with the golden harvest. He is a foolish husbandman who neglects to sow his seed ; and he is an unwise citizen, who, desiring the spread of certain principles, neglects to deposit his vote for the candidates who are the representatives of those principles. Admonished by experience of the timidity, the irreso- lution, the want of firmness in our public men, particu- larly at Washington, amidst the temptations of ambition and power, the friends of Freedom cannot lightly be- stow their confidence. They can put trust in men only of tried character and inflexible will. Three things at least they must require ; the first is hack-hone ; the second is back-hone; and the third is hack-hone. My language is homely ; I hardly pardon myself for using it ; but it expresses an idea which I would not have for- gotten. When T see a person of upright character and pure soul, yielding to a temporizing policy, I cannot but say, he wants a hack-hone. When I sec a person, talking loudly in private against Slavery, but hesitating in public, and failing in the time of trial, I say he ivanis ^ ANTI-SLAVERY DUTIES. 419 a hack-hone. When I see a person, who cooperated with Anti-Siavery men, and then deserted them, I say he wants a hack-hone. When I see a person, leaning implicitly upon the action of a political party, and never venturing to think for himself, 1 say he wants a hack- hone. ^A^hcn I see a person, careful always to be on the side of the majority, and unwilling to appear in a small minority, or, if need be, to stand alone, I say also, he toants a hack-hone. Wanting this, they all want that courage, constancy, firmness, which arc essential to the support of PRINCIPLE. Let no such men be trusted. For myself, fellow-citizens, my own course is deter- mined. The first political convention which I ever attended was in the spring of 1845, against the annex- ation of Texas. I was at that time a silent and passive Whig. I had never held any political ofBce, nor been a candidate for any. No question had ever before drawn me to any active political exertions. The strife of politics had seemed ignoble to me. My desire to do what I could against Slavery, led me subsequently to attend two different State Conventions of Whigs, where I cooperated with several eminent citizens in en- deavors to arouse the party in Massachusetts to its duties on this subject. A conviction of the disloyalty of the Whig party to Freedom, and an ardent aspira- tion to contribute something to the advancement of this great cause, led me to leave that party, and to dedicate what of strength and ability I could command to the present Movement, To vindicate Freedom, and to oppose Slavery, so far as I might constitutionally — with earnestness, and yet, I trust, without any personal unkindness on 420 SPEECH ON OUR ANTI-SLAVERY DUTIES. my part — has been the object near my heart. Would that I could impress upon all who now hear me some- thing of the strength of my own conviction of the im- portance of this work ! Would that my voice, leaving this crowded hall to-night, could traverse the hills and valleys of New England, — that it could run along the rivers and the lakes of my country, — lighting in every humane heart a beacon-flame to arouse the slumberers throughout the land. In this cause I care not for the name by which I may be called. Let it be democrat, or " loco-foco," if you please. No man who is in earnest will hesitate on account of a name. I shall rejoice in any associates from any quarter, and shall ever be found with that party which most truly represents the principles of Freedom. Others may become indifferent to these principles, bartering them for political success, vain and short-lived, or forgetting the visions of youth in the dreams of age. Whenever I shall forget them, whenever I shall become indiffer- ent to them, whenever I shall cease to be constant in maintaining them, through good report and evil report, in any future combinations of party, then may my tongue cleave to the roof of my mouth, may my right hand forget its cunning ! THREE TRIBUTES OE FRIENDSHIP. HON. JOSEPH STORY. [from the BOSTON DAILY ADVERTISKR, SEPT. 16, 1845.] I HAVE just returned from the last sad ceremony of the interment of this great and good man. Under that roof, where I have so often seen him in health, buoyant with life, exuberant in kindness, happy in family and friends, I gazed upon his mortal remains, sunk in eternal rest, and hung over those features, to which my regards had been turned so fondly, and from which even the icy touch of death had not effaced all the living beauty. The eye was quenched, and the glow of life extinguished ; but the noble brow seemed still to shelter, as under a marble dome, the spirit that had fled. And is he, indeed, dead, I asked myself, — he whose face was never turned to me, except in kindness ; who has filled the civilized world with his name ; who has drawn to his country the homage of foreign nations ; who was of activity and labor that knew no rest ; who was connected by duties of such various kinds, by official ties, by sympathy, by friendship and love, with so many circles ; who, according to the beautiful expression of Wilbcrforce, 424 HON. JOSEPH STORY. "touched life at so many points," — has he, indeed, passed away ? Upon the small plate, on the coffin was inscribed, " Joseph Story, died September 10th, 1845, aged 66 years." These few words might apply to the lowly citizen, as to the illustrious Judge. Thus is the coffin-plate a register of the equality of man. At the house of the deceased we joined in religious worship. The Rev. Dr. Walker, the present head of the University, in earnest prayer, commended the soul of the departed to God, who gave it, and invoked a consecration of their afflictive bereavement to his family and friends. From this service we followed the body, in mournful procession, to the resting-place which he had selected for himself and his family, amidst the beautiful groves of Mount Auburn. As the procession filed into the cemetery I was touched by the sight of the numerous pupils of the Law School, with uncovered heads and countenances of sorrow, ranged on each side of the road within the gate, testifying by this silent and unexpected homage their last respects to what is mortal in their departed teacher. Around the grave, as he was laid in the embrace of the mother earth, was gathered all in our community that is most distinguished in law, in learning, in literature, in sta- tion — the Judges of our Courts, the Professors of the University, surviving class-mates of the deceased, and a thick cluster of friends. Me was placed among the children taken from him in early life, whose faces he is now beholding in heaven. " Of such is the king- dom of heaven," are the words he had inscribed over their names, on the simple marble which now commemorates alike the children and their father. HON. JOSEPH STORY. 425 Nor is there a child in heaven, of a more childlike innocence and purity, than he, who, full of years and worldly honors, has gone to mingle with these children. Of such, indeed, is the kingdom of heaven. There is another sentence, inscribed by him on this family stone, which speaks to us now with a voice of consolation. " Sorrow not as those without hope," are the words which brought a solace to him in his bereave- ments. From his bed beneath he seems to whisper them among his mourning family and friends ; most especially to her, the chosen partner of his life, from whom so much of human comfort is apparently removed. He is indeed gone ; but we shall see him once more forever. In this blessed confidence, we may find happiness in dwelling upon his virtues and fame on earth, till the great consoler Time shall come with healing on his wings. From the grave of the Judge, I walked a few short steps to that of his classmate and friend, the beloved Channing, who died less than three years ago, aged sixty-three. Thus these companions in early studies — each afterwards foremost in the high and important duties which he assumed, pursuing divergent paths, yet always drawn towards each other by the attractions of mutual friendship, — again meet and lie down together in the same sweet earth, in the shadow of kindred trees, through which the same birds shall sing their perpetual requiem. The afternoon was of unusual brilliancy, and the full-orbed sun gilded with mellow light the funereal stones through which I wound my way, as I sought the grave of another friend of my own, the first associate 426 HON. JOSEPH STORY. of the departed Judge in the duties of the Law School, — Professor Ashmun. After a life crowded with use- fulness, he laid down the burden of ill health which he had long borne, at the early age of thirty-three. I remember listening, in 1833, to the flowing discourse which Mr. Justice Story pronounced, in the college chapel, over the remains of his associate ; nor can I forget his deep emotion, as we stood together at the foot of the grave, while the earth fell, dust to dust, upon the coffin of his friend. Wandering through this silent city of the dead, I called to mind those words of Beaumont on the tombs in Westminster : Here's an acre sown indeed, Wiih the richest, royall'st seed That the earth did e'er suck in Since the first man died of sin, Here are sands, ignoble things, Dropt from the ruined sides of kings. The royalty of Mount Auburn is of the soul. The kings that slumber there were anointed by a higher than earthly hand. Returning again to the grave of the departed Judge, I found no one but the humble laborers, who were then smoothing the sod over the fresh earth. It was late in the afternoon, and the upper branches of the stately trees that wave over the sacred spot, after glistening for a while in the golden rays of the setting sun, were left in the gloom which had already settled on the grass beneath. I hurried away, and as I reached the gate the porter's curfew was tolling, to forgetful musers like myself, the knell of parting day. HON. JOSEPH STORY. 427 As I left the consecrated field, I thought of the pilgrims that would come from afar, through long successions of generations, to look upon the last home of the great Jurist. From all parts of our own country, from all the lands where law is taught as a science, and where justice prevails, they shall come to seek the grave of their master. Let us guard, then, this precious dust. Let us be happy, that though his works and his example belong to the world, his sacred remains are placed in our peculiar care. To us, also, who saw him face to face, in the performance of all his various duties, and who sustain a loss so irreparable in our own circle, is the melancholy pleasure of dwelling M'ith household affection upon his transcendent excel- lencies. His death makes a chasm which I shrink from con- templating. He was the senior Judge of the highest Court of the country, an active Professor of Law, and a Fellow in the Corporation of Harvard University, He was in himself a whole triumvirate ; and these three distinguished posts, now vacant, will be filled, in all probability, each by a distinct successor. It is, however, as the exalted Jurist, that he is to take his place in the history of the world, high in the same firmament whence beam the mild glories of Tribonian, of Cujas, of Hale, and of Mansfield. It was his fortune, unlike many who have cultivated the law with signal success on the European continent, to be called as a Judge practically to administer and apply it in the actual business of life. It thus became to him not merely a science, whose depths and intricacies he 428 HON. JOSEPH STORY. explored in his closet, but a great and god-like instru- ment, to be employed in that highest of earthly- functions, the determination of justice among men. While the duties of the magistrate were thus illumined by the studies of the Jurist, the latter were tempered to a finer edge by the experience of the bench. In attempting any fitting estimate of his character as a Jurist, he should be regarded in three different aspects ; as a Judge, an Author, and a Teacher of jurisprudence, exercising in each of these characters a peculiar influence. His lot is rare who achieves fame in a single department of human action ; rarer still is his who becomes foremost in many. The first impres- sion is of astonishment that a single mind, in a single life, should be able to accomplish so much. Indepen- dent of the incalculable labors, of which there is no trace, except in the knowledge, happiness, and justice which they helped to secure, the bare amount of his written and printed works is enormous beyond all precedent in the annals of the common law. His written judgments on his own circuit, and his various commentaries, occupy twenty-seven volumes, while his judgments in the Supreme Court of the United States form an important part of no less than thirty-four vol- umes more. The vast professional labors of Coke and Eldon, which seem to clothe the walls of our libraries, must yield in extent to his. He is the Lope de Vega, or the Walter Scott of the common law. We are struck next by the universality of his juridical attainments. It was said by Dryden of one of the greatest lawyers in English history, Heneage Finch, HON. JOSEPH STORY. 429 Our law, that did a boundless ocean seem, Were coasted all and fathomed all by him. But the boundless ocean of that age was a mare clausum compared with that on which the adventurer embarks in our day. We read, in Howell's Familiar Letters, the saying of only a few short years before the period of Finch, that the books of the common law might all be carried in a wheelbarrow ! To coast such an ocean were a less task than a moiety of his labors whom we now mourn. Called to administer all the different branches of law, which are kept separate in England, he showed a mastery of all. His was Universal Empire ; and wherever he set his foot, in the wide and various realms of jurisprudence, it was as a sovereign ; whether in the ancient and subtle learning of real law ; in the criminal law ; in the nice- ties of special pleading ; in the more refined doctrines of contracts ; in the more rational systems of the commercial and maritime law ; in the peculiar and interesting principles and practice of Courts of admiralty and prize ; in the immense range of chancery ; in the modern but important jurisdiction over patents ; or in that higher region, the great themes of public and con- stitutional law. There are judgments by him in each of these branches, which will not yield in value to those of any other Judge in England or the United States, even though his studies and duties may have been directed to only one particular department. His judgments are remarkable for their exhaustive treatment of the subjects to which they relate. The common law, as is known to his cost by every student, is to be found only in innumerable " sand-grains " of 430 HON. JOSEPH STORY. authorities. Not one of these is overlooked in his learned expositions, while all are comhined with care, and the golden cord of reason is woven across the ample tissue. Besides, there is in them a clearness, which flings over the subject a perfect day ; a severe logic, which, by its closeness and precision, makes us feel the truth of the saying of Leibnitz, that nothing approached so near the certainty of geometry, as the reasoning of the law ; a careful attention to the discus- sions at the bar, that the Court may not appear to neg- lect any of the considerations urged ; with a copious and persuasive eloquence which invests the whole. Many of his judgments will be land-marks in the law; they will be columns, like those of Hercules, to mark the progress in jurisprudence of our age. I know of no single Judge who has established so many. 1 think it may be said, without fear of question, that the Re- ports show a larger number of judicial opinions, from Mr. Justice Story, which posterity will not willingly let die, than from any other Judge in the history of English and American law. But there is much of his character, as a Judge, which cannot be preserved, except in the faithful memories and records of those whose happiness it was to enjoy his judicial presence. I refer particularly to his mode of conducting business. Even the passing stranger bears witness to his suavity of manner on the bench, while all the practitioners in the Courts, over which he presided so long, attest the marvellous quickness with which he habitually seized the points of a case, often anticipating the slov/er movements of the counsel, and leaping, or, I might almost say, flying to the conclusions HON. JOSEPH STORY. 431 souglit to be established. Napoleon's perception in military tactics was not more rapid. Nor can I forget the scrupulous care with which he assigned reasons for every portion of his opinions, showing that it was not he who thus spoke with the voice of authority, but the Jaw^ whose organ he was. In the history of the English bench, there are but two names with combined eminence as a Judge and as an Author — Coke and Hale; — unless, indeed, the Orders in Chancery, from the Verulamian pen, should entitle Lord Bacon to this distinction ; and the judg- ments of Lord Brougham should vindicate the same for him. Blackstone's character as a Judge is lost in the fame of the Commentaries. To Mr. Justice Story belongs this double glory. Early in life, he compiled an important professional work ; but it was only at a com- paratively recent period, after his mind had been disci- plined by the labors of the bench, that he prepared those elaborate Commentaries, which have made his name a familiar word in foreign countries. They, who who knew him best, observed the lively interest which he took in this extension of his well earned renown. And truly he might ; for the voice of distant foreign nations seems to come as from a living posterity. Ills works have been reviewed with praise in the journals of England, Scotland, Ireland, France, and Germany. They have been cited as authorities in all the Courts of Westminister Hall ; and one of the ablest and most learned lawyers of the age, whose honorable career at the bar has conducted him to the peerage. Lord Camp- bell, in the course of debate in the House of Lords, characterized their author as " The first of living writers on the law." 432 HON. JOSEPH STORY. To complete this hasty survey of his character as a Jurist, I should allude to his excellencies as a Teacher of law, that other relation which he sustained to juris- prudence. The numerous pupils reared at his feet, and now scattered throughout the whole country, diffusing, each in his circle, the light which he obtained at Cam- bridge, as they hear that their beloved master has fallen, will feel that they individually have lost a friend. He had the faculty, rare as it is exquisite, of interesting the young, and winning their affections. I have often seen him surrounded by a group, — the ancient. Romans would have aptly called it a corona of youths, — all intent upon his earnest conversation, and freely interro- gating him on any matters of doubt. In his lectures, and other forms of instruction, he was prodigal of ex- planation and illustration ; his manner, according to the classical image of Zeno, was like the open palm, never like the closed hand. His learning was always over- flowing, as from the horn of abundance. He was earnest and unrelaxing in his efforts, patient and gentle, while he listened with inspiring attention to all that the pupil said. Like Chaucer's Clerk, And gladly wolde he Icrne, and gladly teche. Above all, he was a living example of a love for the law, — supposed by many to be unlovely and repulsive — which seemed to grow warmer under the snows of accumulating winters ; and such an example could not fail, with magnetic power, to touch the hearts of the young. Nor should I forget the lofty standard of professional morals, which he inculcated, filling his discourse with the charm of goodness. Under such HON. JOSEPH STORY. auspices, and those of his learned associate. Professor Greenleaf, large classes of students of law, larger than any in England or America, have been annually gath- ered in Cambridge. The Law School is the golden mistletoe ingrafted on the anci<3nt oak of tho University ; Talis erat species auri frondeniis opaca nice. The deceased was proud of his character as Pro- fessor. In his earlier works he is called on the title- page, " Dane Professor of Law." It was only on the suggestion of the English publisher, that he was pre- vailed upon to append the other title, " Justice of the Supreme Court of the United States." He looked for- ward with peculiar delight to the time which seemed at hand, when he should lay down the honors and cares of the bench, and devote himself singly to the duties of his chair. I have merely glanced at his character in his three different relations to jurisprudence. Great in each of these, it is on this unprecedented combination that his peculiar fame will be reared, as upon an immortal tripod. In what I have written, I do not think I am biased by the partialities of private friendship. I have endeavored to regard him, as posterity will regard him ; as they must regard him now, who know him in his various works. Imagine for one moment the irrepara- ble loss, if all that he has done were blotted out forever. As I think of the incalculable facilities afforded by his labors, I cannot but say with Racine, when speaking of Descartes : Nous courons ; mais, sans lui, nous ne marcherions pas. Besides, it is he who has inspired in VOL. II. 28 434 HON. JOSEPH STORY. many foreign bosoms, reluctant to perceive aught that is good in our country, a sincere homage to the Ameri- can name. He has turned the stream of the law- refluent upon the ancient fountains of Westminster Hall; and, stranger still, he has forced the waters above their sources, up the unaccustomed heights of countries, alien to the common law. It is he also who has directed, from the copious well-springs of the Roman law, and from the fresher currents of the modern continental law, a pure and grateful stream, to enrich and fertilize our domestic jurisprudence. In his judgments, in his books, and in his teachings always, he drew from other systems to illustrate the doctrines of the common law^ The mind naturally seeks to compare him with the eminent Jurists, servants of Themis, who share with him the wide spaces of fame. In genius for the law, in the exceeding usefulness of his career, in the blended character of Judge and Author, he cannot yield to our time-honored master. Lord Coke ; in suavhy of man- ner, and in silver-tongued eloquence, he may compare with Lord Mansfield, while in depth, accuracy and vari- ety of juridical learning, he surpassed him far; if he yields to Lord Stowell in elegance of diction, he excels even his excellence in the curious exploration of the foundations of that jurisdiction which they administered in common, and in the development of those great princi- ples of public law, whose just determination helps to preserve the peace of nations ; and, even in the peculiar field illustrated by the long career of Eldon, we find him a familiar worker, with Eldon's profusion of learn- ing, and without the perplexities of his doubts. There are many who regard the judicial character of the late HON. JOSEPH STORY. 435 Chief Justice Marshall as at an unapproachable height. I revere his name, and have ever read his judgments, which seem like " pure reason," with admiration and gratitude ; but I cannot disguise, that even these noble memorials must yield in high juridical character, in learning, in acutencss, in fervor, in the variety of topics which they concern, as they are far inferior in amount, to those of our friend. There is still spared to us a renowned Judge, at this moment the unquestioned living head of American jurisprudence, with no rival near the throne, — Mr. Chancellor Kent, — whose judgments and whose works always inspired the warmest eulogies of the departed, and whose character as a Jurist furnishes the fittest parallel to his own in the annals of our law. It were idle, perhaps, to weave further these vain comparisons ; particularly to invoke the living. But busy fancy recalls the past, and persons and scenes renew themselves in my memory. I call to mind the recent Chancellor of England, the model of a clear, grave, learned and conscientious magistrate, — Lord Cot- tenham. I call to mind the ornaments of Westminster Hall, on the bench and at the bar, where sits Denman, in manner, in conduct, and character " every inch " the Judge ; where pleaded only a few short months ago the consummate lawyer Follet, whose voice is now hushed in the grave ; their judgments, their arguments, their conversation, I cannot forget ; but thinking of these, I feel new pride in the great Magistrate, the lofiy Judge, the consummate Lawyer, whom we now mourn. It has been my fortune to know or to see the chief Jurists of our times, in the classical countries of juris- prudence, France and Germany. I remember well the 436 HON. JOSEPH story. pointed and effective style of Dupin, in the delivery of one of his masterly opinions in the highest Court of France ; I recall the pleasant converse of Pardessus — to whom commercial and maritime law is under a larger debt, perhaps, than to any other mind — while he descanted on his fVivorite theme. I wander in fancy to the gentle presence of him with flowing silver locks, who was so dear to Germany — Thibaut, the expounder of the Roman law, and the earnest and successful advocate of a just scheme for the reduction of the un- written law to the certainty of a written text. From Heidelberg I fly to Berlin, where I listen to the grave lecture, and mingle in the social circle of Savigny, so stately in person and peculiar in countenance, whom all the continent of Europe delights to honor; but my heart and my judgment untravelled fondly turn with new love and admiration to my Cambridge teacher and friend. Jurisprudence has many arrows in her golden quiver, but where is one to compare with that which is now spent in the earth ? The fame of the Jurist is enhanced by the various attainments superinduced upon his learning in the law His " Miscellaneous Writings " show a thoughtful mind imbued with elegant literature, warm with kindly senti ments, commanding a style of rich and varied eloquence There are many passages from these which have be come the common-places of our schools. In early life he yielded to the fascinations of the poetic muse ; and here the great lawyer may find companionship with Selden, who is introduced by Suckling into the " Session of Poets," as " close by the chair " ; with Blackstone, whose " Farewell to the Muse " shows his fondness for HON. JOSEPH STORY. 437 poetic pastures, even while liis eye was directed to the heights of the law; and also with Mansfield, of whom Pope has lamented in familiar words. How sweet an Ovid was in Murray lost ! I have now before me, in his own hand-writing, some verses written by him in 1833, entitled, " Advice to a Young Lawyer." As they cannot fail to be read with interest, I introduce them here. Whene'er you speak, remember every cause Stands not on eloquence, but stands on laws — Pregnant in matter, in expression brief, Let every sentence stand with bold relief; On trifling points, nor time, nor talents waste, A sad offence to learning, and to taste; Nor deal with pompous phrase ; nor e'er suppose Poetic flights belong to reasoning prose. Loose declamation may deceive the crowd, And seem more striking, as it grows more loud ; But sober sense rejects it with disdain, As naught but empty noise, and weak as vain. The froth of words, the schoolboy's vain parade Of books and cases — all his slock in trade — The pert conceits, the cunning tricks and play Of low attorneys, strung in long array. The unseemly jest, the petulant reply. That c!iatters on, and cares not how, nor why, Studious, avoid — unworthy themes to scan. They sink the Speaker and disgrace the Man. Like the false lights, by flying shadows cast. Scarce seen when present, and forgot when past. Begin with dignity; expound with grace Each ground of reasoning in ils lime and place ; Let order reign throughout — each topic touch, Psor urge ils power too little, or too much. Give each strong ihought ils most attraclive view, In diction clear, and yet severely irue. 438 HON. JOSEPH STORY. And, as the arguments in splendor grow. Let each reflect its light on all below. When to the close arrived, make no delays, By petty flourishes, or verbal plays, But sum the whole in one deep, solemn strain, Like a strong current hastening to the main. But the Jurist, rich with the spoils of time, the exalted magistrate, the orator, the writer, all vanish when I think of the friend. Much as the world may admire his memory, all who knew him shall love it more. Who can forget his bounding step, his contagious laugh, his exhilarating voice, his beaming smile, his counte- nance that shone like a benediction .'' What pen can describe these — what artist can preserve them on canvas or in marble ? He was always the friend of the young, who never tired in listening to his flowing and mellifluous discourse. Nor did they ever leave his presence without feeling a warmer glow of virtue, a more inspiring love of knowledge and t^'uth, more gen- erous impulses of action. I remember him in my child- hood ; but I first knew him after he came to Cambridge, as Professor, while I was yet an undergraduate, and re- member freshly, as if the words were of yesterday, the eloquence and animation, with which, at that time, -to a youthful circle, he enforced the beautiful truth, that no man stands in the way of another. The world is wide enough for all, he said, and no success, which may crown our neighbor, can affect our own career. In this spirit he run his race on earth, without jealousy, without envy ; nay more, overflowing with appreciation and praise of labors which coinpare humbly with his own. In conversation, he dwelt with fervor upon all the topics which interest man ; not only upon law, but HON. JOSEPH STORY. 439 upon literature, history, the characters of men, the affairs of every day ; above all, upon the great duties of life, the relations of men to each other, to their country, to God. High in his mind, above all human opinions and practices, were the everlasting rules of Right ; nor did he ever rise to a truer eloquence, than when condemning, as I have more than once heard him recently, that evil sentiment, — "Our country, Zie she right or wrong,'*'' — which, in whatsoever form of lan- guage it may disguise itself, assails the very founda- tions of justice and virtue. He has been happy in his life ; happy also in his death. It was his hope, expressed in health, that he should not be allowed to linger superfluous on the stage, nor waste under the slow progress of disease. He was always ready to meet his God. His wishes were an- swered. Two days before his last illness, he delivered in Court an elaborate judgment on a complicated case in equity. Since his death, another judgment in a case already argued before him, has been found among his papers, ready to be pronounced. I saw him for a single moment on tl>e evening pre- ceding his illness. It was an accidental meeting away from his own house — the last time that the open air of heaven fanned his cheeks. His words of familiar, household greeting, on that occasion, still linger in my ears, like an enchanted melody. The morning sun saw him on the bed from which he never again rose. Thus closed, after an illness of eight days, in the bosom of his family, without pain, surrounded by friends, a life, which, through various vicLisitudes of disease, had been 440 HON. JOSEPH STORY. spared beyond the grand climacteric, that Cape of Storms in the sea of human existence : MuUis ille bonis flebilis occidit, Nulli flebilior qaam mihi. He is gone^ and we shall see him no more on earth, except in his works, and in the memory of his virtues. The scales of justice, which he had so long held, have fallen from his hands. The untiring pen of the Author rests at last. The voice of the Teacher is mute. The fountain, which was ever flowing and ever full, is now stopped. The lips, on which the bees of Hybla might have rested, have ceased to distil the honeyed sweets of kindness. The manly form, warm with all the aflJec- tions of life, with love for family and friends, for truth and virtue, is now cold in death. The justice of nations is eclipsed ; the life of the law is suspended. But let us listen to the words, which, though dead, he utters from the grave : " Sorrow not as those without hope." The righteous judge, the wise teacher, the faithful friend, the loving father, has ascended to his Judge, his Teacher, his Friend, his Father in Heaven. HON. JOHN PICKERING. [from the law reporter of JUNE, 1846.] • It was the remark of Lord Brougham, illustrated by his own crowded life, that the complete performance of all the duties of an active member of the British parlia- ment might be joined with a full practice at the bar. The career of the late Mr. Pickering illustrates a more grateful truth : that the mastery of the law as a science, and the constant performance of all the duties of a prac- titioner, are not incompatible with the studies of the most various scholarship, — that the lawyer and the scholar may be one. He dignified the law by the successful cultivation of letters, and strengthened the influence of these elegant pursuits by becoming their representative in the concerns of daily life, and in the common-places of his profession. And now, that this living example of excellence is withdrawn from our personal regard, we feel a sorrow which words can only faintly express. Let us devote a few moments to the contemplation of what he did, and what he was. The language of exaggeration is forbidden by the 442 HON. JOHN PICKERING. modesty of his nature, as it is rendered unnecessary by the multitude of his virtues. John Pickering, whose recent death we now de- plore, was born in Salem, February 17th, 1777, at the period of the darkest despondency of the revolution. His father, Col. Pickering, was a man of distinguished character, and an eminent actor in public affairs, whose name is one of the household words of our history. Of his large family of ten children, John was the eldest.* His diligence at school was a source of early gratifica- tion to his friends, and gave augury of future accom- plishments. An authentic token of this character, higher than any tradition of partial friends, is afforded by a little book, entitled " Letters to a Student in the University of Cambridge,, Mass., by John Clarke, Min- ister of a Church in Boston," printed in 1796 ; and which in reality were addressed to him. The first letter begins with an honorable allusion to his early improvement. " Your superior qualifications for admis- sion into the University give you singular advantages for the prosecution of your studies. . . . You are now placed in a situation to become, what you have often assured me is your ambition, a youth of learning and virtue.'''' The last letter of the volume concludes with benedictions, which did not fall as barren words upon the heart of the youthful pupil. " May you," says Dr. Clarke, " be one of those sons who do honor to their literary parent. The union of virtue and science * The reporter, Odavius Pickering-, was the eighth child, which was the reason of his name. HON. JOHN PICKERING. 443 will give you distinction at the present age, and will tend to give celebrity to the name of Harvard. You will not disappoint the friends who anticipate your im- provement." They who remember his college days still dwell with fondness upon his exemplary character, and his remarkable scholarship, at that period. He received his degree of Bachelor of Arts at Cambridge in 1796. On leaving the university, he went to Philadelphia, at that time the seat of government, where his father resided as Secretary of State. Here he commenced the study of the law under Mr. Tilghman, afterwards the distinguished Chief Justice of Pennsylvania, and one of the lights of American jurisprudence. But his pro- fessional lucubrations were soon suspended by his appointment, in 1797, as Secretary of Legation, under Mr. Smith, to Portugal. He resided, in this capacity, at Lisbon for two years, during which period he became familiar with the language and literature of the country. Later in life, when his extensive knowledge of foreign tongues opened to him, it might almost be said, the literature of the world, he recurred with peculiar pleas- ure to the language of Camoens and Pombal. From Lisbon he passed to London, where, at the close of the last century, he became, for about two years, the private secretary of our Minister, Mr. King, residing in the family, and enjoying the society and friendship of this distinguished man. Here he was happy in meeting with his classmate and attached friend. Dr. James Jackson, of Boston, who was then in London, pursuing those professional studies, whose ripened autumnal fruits of usefulness and eminence he 444 HON. JOHN PICKERING. Still lives to enjoy. In pleasant companionship they walked through the thoroughfares of the great metropo- lis, enjoying together its shows and attractions ; in pleasant companionship they continued ever afterwards, till death severed the ties of a long life. Mr. Pickering's youth and inexperience in the pro- fession to which he afterwards devoted his days, pre- vented his taking any special interest, at this period, in the courts or in parliament. But there were several of the Judges who made a strong impression on his mind ; nor did he ever cease to remember the vivacious elo- quence of Erskine, or the commanding oratory of Pitt. Meanwhile his father, being no longer in the public service, had returned to Salem ; and thither the son followed, in 1801, and resumed the study of the law, under the direction of Mr. Putnam, afterwards a learned and beloved Judge of the Supreme Court of Massachu- setts, whose rare fortune it has been to rear two pupils, whose fame will be among the choicest possessions of our country, — Story and Pickering. In due time, he was admitted to the bar, and commenced the practice of the law in Salem. Here begins the long, unbroken series of his labors in literature and philology, running side by side with the daily untiring business of his profession. It is easy to believe that, notwithstanding his undissembled fond- ness for jurisprudence as a science, he was drawn towards its practice by the compulsions of duty rather than by any attractions which it possessed for him. Not removed by fortune from the necessity, to which Dr. Johnson so pathetically alludes, of providing for the day that was passing over him, he could indulge his HON. JOHN PICKERING. 445 tastes for study only in hours secured by diligence from the inroads of business, or the seductions of pleas- ure. Perhaps no lawyer has lived, since the days of the Roman Orator, who could have uttered, with greater truth, those inspiring words, confessing and vindicating the cultivation of letters : " Me autem quid pudeat, qui tot annos ita vivo, judices, ut ab nullius unquam me tempore aut commodo — aut otium meum abstraxerit, aut voluptas avocarit, aut denique somnus retardarit ? Quare quis tandem me reprehendat, aut quis jure, suc- censeat, si, quantum cseteris ad suas res obeundas, quantum ad festos dies ludorum celebrandos, quantum ad alias voluptates, et ad ipsam requiem animi et corporis conceditur lemporis; quantum alii tribuunt tempestivis conviviis, quantum denique alea^, quantum pilae ; tantum mihi egomet ad haec studia recolenda sumpsero ? " * In his life may be seen two streams, flowing, side by side, as through a long tract of country ; one of which is fed by the fresh fountains far in the mountain tops, whose waters leap with delight on their journey to the sea ; while the other, having its sources low down in the valleys, among the haunts of men, moves with reluctant, though steady, current onward. Mr. Pickering's days were passed in the perform- ance of all the duties of a wide and various practice, first at Salem, and afterwards at Boston. He resided at Salem till 1829, when he removed to the latter place, where he was appointed, shortly afterwards, city solicitor; an office, whose arduous labors he continued * Pro Archia, § 6. 446 HON. JOHN PICKERING. to perform until within a few nr»ontbs of his death. There is little worthy of notice in the ordinary inci- dents of professional life. What Blackstone aptly calls " the pert debate," renews itself in infinitely varying forms. Some new turn of litigation calls forth some new effort of learning or skill, calculated to serve its temporary purpose, and like the manna, which fell in the wilderness, perishing on the day that beholds it. The unambitious labors of which the world knows nothing, the counsel to clients, the drawing of con- tracts, the perplexities of conveyancing, furnish still less of interest than the ephemeral displays of the court room. The cares of his profession, and the cultivation of letters, left but little time for the concerns of politics. And yet, at different periods, he filled offices in the legislature of Massachusetts. He was three times representative from Salem, twice senator from Essex, once senator from Suffolk, and once a member of the executive council. In all these places, he commended himself by the same diligence, honesty, learning and ability which marked his course at the bar. The care- ful student of our legislative history will not fciil to perceive his obligations to Mr. Pickering, as the author of several important reports and bills. The first bill, providing for the separation of the District of Maine from ]\lassachusetts, was reported by him to the senate, in 1816. Though this failed to bo adopted by the people of Maine, it is characterized by the historian of that State, as '^ drawn with great ability and skill." * The report * Willuimson's History of Maine, Vol. II. p. 663. HON. JOHN PICKERING. 447 and accompanying bill, in 1818, on the jurisdiction and proceedings of the Courts of Probate, in which the whole system is discussed and remodelled, is from his hand. In 1833, he was appointed to the vacancy, occasioned by the death of Professor Ashmun, in the commission for revising and arranging the statutes of Massachu- setts, being associated in this important work with those eminent lawyers, Mr. Jackson and Mr. Stearns. The first part, or that entitled Of the Internal Adminis- tration of the Government, corresponding substantially with Blackstonc's division Of Persons, was executed by him. This alone would entitle him to be gratefully remembered, not only by those who have occasion to refer to the legislation of JMassachusetts, but by all who feel an interest in scientific jurisprudence. His contributions to what may be called the litera- ture of his profession were frequent. The American Jurist was often enriched by articles from his pen. Among these is a Review of tlie valuable work of Williams on the Law of Executors ; and of Curtis's Admiralty Digest, in which he examined the interesting history of this jurisdiction ; also an article on the Study of the Roman Law, in which he has presented, within a short compass, a lucid sketch of the history of this system, and of the gro»th, in Germany, of the his- torical and didactic schools, " rival houses," as th.ey may be called, in jurisprudence, whose long and un- pleasant feud has only recently subsided. In the Law Reporter for July, 1841, he published an article of singular merit, on National Rights and State Rights, being a Review of the case of Alexander 448 HON. JOHN PICKERING. McLeod, recently determined in the Supreme Court of Judicature of the State of New York. This was after- wards republished in a pamphlet, and extensively circu- lated. It is marked by uncommon learning, clearness and ability. The course of the Courts of New York is handled with freedom, and the supremacy of the Federal Government vindicated. Of all the discussions elicited by that interesting question, on which, for a while, seemed to hang the portentous issues of peace and war between the United States and Great Britain, that of Mr. Pickering will be admitted to take the lead, whether we consider its character as an elegant com- position, or as a searching review of the juridical as- pects of the case. In dealing with the opinion of Mr. Justice Cowen, renowned for black-letter and the bibliography of the law, he shows himself more than a match for this learned Judge, even in these unfre- quented fields, while the spirit of the publicist and jurist gives a refined temper to the whole article, which we seek in vain in the other production. In the North American Review, for October, 1840, is an article by him, illustrative of Conveyancing in Ancient Eg//pt, being an explanation of an Egyptian deed of a piece of land in hundred-gated Thebes, writ- ten on papyrus, more than a century before the Christian era, with the impression of a seal or stamp attached to it, and a certificate of registry on its margin, in as regular a manner as the keeper of the registry in the county of Suflxjlk would certify to a deed of land in the city of Boston, at this day. Here jurisprudence is gilded by scholarship. There is another production, which, like the latter, HON. JOHN PICKERING. 44§ belongs to the department of literature as well r^s of jurisprudence ; his Lecture on the Alleged Uncrrlainty of the Laiv, delivered before the Boston Society for the Diffusion of Useful Knowledge. Though originally written for the general mind, which it is calculated to interest and instruct in no common degree, it will be read with equal advantage by the profound lawyer. It would not be easy to mention any popular discussion of a juridical character, in our language, deserving of higher regard. It was first published in the American Jurist, at the solicitation of the writer of these lines, who has never been able to refer to it without fresh admiration of the happy illustrations and quiet reason- ing by which it vindicates the science of the law. In considering what Mr. Pickering accomplished out of his profession, we shall be led over wide and various fields of learning, where we can only hope to indicate his footprints, without presuming to examine or explain the ground. One of his earliest cares was to elevate the character of classical studies in our country. His own example did much in this respect. From the time he left the university, he was always regarded as an authority on topics of scholarship. But his labors were devoted especially to this cause. As early as 1805, he pub- lished, in conjunction with his friend, the present Judge White, of Salem, an edition of the Histories of Sallust, with Latin Notes, and a copious Index. This is one of the first examples, in our country, of a classic edited with scholarlike skill. The same spirit led him, later in life, to publish in the North American Review, and VOL. II. 29 450 HON. JOHN PICKERING. afterwards in a pamphlet, " Observations on the Impor- tance of Greek Literature, and the Best Method of Studying the Classics," translated from the Latin of Professor Wyttenbach. In the course of the remarks, with which he introduces the translation, he urges with conclusive force the importance of raising the standard of education in our country. " We are too apt," he says, " to consider ourselves as an insulated people, as not belonging to the great community of Europe ; but we are, in truth, just as much members of it, by means of a common public, commercial intercourse, litera- ture, a kindred language and habits, as Englishmen or Frenchmen themselves are ; and we must procure for ourselves the qualifications necessary to maintain that rank, which we shall claim as equal members of such a community." His " Remarks on Greek Grammars," which ap- peared in the American Journal of Education, in 1825, belong to the same field of labor, as does also his admirable paper, published in 1818, in the Memoirs of the j\merican Academy,* on the proper pronunciation of the ancient Greek language. He maintained that it should be pronounced, so far as possible, according to the Romaic or modern Greek, and learnedly and ably exposed the vicious usage which had been introduced by Erasmus. His conclusions, though controverted when they were first presented, are now substantially adopted by scholars. We well remember his honest pleasure * " Observations upon Greek Accent " is the title of an Essay, in the Royal Irish Transactions, Vol. Yll., by Dr. Browne, which was suggested, like Mr. Pickering's, by conversation with some modern Greeks, and which touches upon kindred topics. Dr. Browne is the author of the well known and somewhat antediluvian book on the Civil and Admiralty Law. HON. JOHN PICKERING. 451 in a communication received within a few years from President Moore, of Columbia College, in which that gentleman, who had formerly opposed his views, with the candor that becomes his honorable scholarship, vol- unteered to them the sanction of his apj)robalion. But the " Greek and English Lexicon " is his work of Greatest labor in the department of classical learnincr. This alone would entitle him to regard from all who love liberal studies. With the well thumbed copy of this book, used in our college days, now before us, we feel how much we are debtors to his learned toils. This was plaimed early in Mr. Pickering's life, and was begun in 1814. The interruptions of his profes- sion induced him to engage the assistance of the late Dr. Daniel Oliver, Professor of Moral and Intellectual Philosophy at Dartmouth College. The work, pro- ceeding slowly, was not announced by a prospectus until li:?20, and not finally published until 1826. It was mainly founded on the well known Lexicon of Schrevelius, which had received the emphatic commen- tion of Vicesimus Knox, and was generally regarded as preferable to any other for the use of schools. When Mr. Pickering commenced his labors, there was no Greek Lexicon with explanations in our own tongue. The English student obtained his knowledge of Greek through the intervention of Latin. And it has been supposed by many, who have not sufficiently regarded, as we are inclined to believe, other relations of the subject, that this circuitous and awkward practice is a principal reason why Greek is so much less familiar to us than Latin. In the honorable elForts to remove this difficulty, our countryman took the lead. Shortly before 452 HON. JOHN PICKERING. the last sheets of his Lexicon were printed, a copy of a London translation of Schrevelius reached this country, which proved, however, to be " a hurried performance, upon which it would not have been safe to rely."* Since the publication of his Lexicon, several others in Greek and English have appeared in England. The example of Germany and the learning of her scholars, have contributed to these works. It were to be wished that all of them were free from the suggestion of an unhandsome appropriation of the labors of others. The Lexicon of Dr. Dunbar, Professor of Greek in the University of Edinburgh, published in 1840, contains whole pages, taken bodily — " convey, the wise it call " — from that of Mr. Pickering, while the Preface is content with an acknowledgment in very general terms to the work which is copied. This is bad enough. But the second edition, published in 1844, omits the acknowledgment altogether ; and the Lexicon is wel- comed by an elaborate article in the Quarterly Review, t as the triumphant labor of Dr. Dunbar, " well known among our northern classics as a clever man and an acute scholar. In almost every pnge^'^'' continues the reviewer, " we meet loith something ivhich bespeaks the pen of a scholar ; and we, every now and then, stumble on explanations of words and passages, oc- casionally fanciful, but always sensible, and sometimes ingenious, which amply repay us for the search. . . . They provc^ moreover^ that the Professor is possessed of one quality, which we could wish to see more gen- eral ; he does uot see with the eyes of others — he * Preface to Pickering's Lexicon, t Vol. LXXV. p. 299. HON. JOHN PICKERING. 453 thinks for himself, and he seems well qualified to do so." Did he not see with the eyes of others ? The reviewer hardly supposed that his commendation would reach the production of an American lexicographer. In the general department of Languages and Plii- lology, his labors have been various. Some of the pub- lications already-mentioned mi^ht be ranged under this head. But there are others still w'hich remain to be noticed. The earliest of these is the work generally called " The Vocabulary of Americanisms ^'^'^ being a collection of v/ords and phrases, supposed to be pecu- liar to the United States, with an Essay on the State of the English Language in the United States. This was originally published in 1815, in the Memoirs of the American Academy, and was republished in a separate volume in 1816, with corrections and additions. It was the author's intention, had his life been spared, to pub- lish another edition, with the important gleanings of subsequent observation and study. It cannot be doubted that this work has exerted a beneficial influence over the purity of our language. It has promoted careful habits of composition, and, in a certain sense, helped to guard the " wells of English undefiled." Some of the words, found in this Vocabulary, may be traced to an- cient sources of authority ; but there are many which are, beyond question, provincial and barbarous, although much used in our common speech, fcEX quoque quutidi- ani sermonis,fcBda et pudenda vitia* In 1818 appeared in the Memoirs of the American Academy his " Essay on a Uniform Orthography of the Indian Languages^ The uncertainty of their * De Orator. Dialogus, § 32. 454 HON. JOHN PICKERING. orthography arose from the circumstance that the words were collected and reduced to writing by schol- ars of different nations, who often attached different values to the same letter, and represented the same sound by different letters; so that it was impossible to determine the sound of a written word, without first knowing through what alembic of speech it had passed. Thus the words of the same language or dialect, as written by a German, a Frenchman, or an English- man, would seem to belong to languages as widely dif- ferent as those of these different people. With the hope of removing from the path of others the perplexities which had beset his own, Mr. Pickering recommended the adoption of a common orthography, which would enable foreigners to use our books without dif^culty, and, on the other hand, make theirs easy of access to us. For this purpose, he devised an alphabet, to be applied practically to the Indian languages, which con- tained the common letters of our alphabet, so far as it seemed practicable to adopt them, a class of nasals, of diphthongs, and, lastly, a number of compound charac- ters, which, it was supposed, would be of more or less frequent use in different dialects. With regard to this Essay, Mr. Duponceau said, at an early day, " If, as there is great reason to expect, Mr. Pickering's orthog- raphy gets into general use among us, America will have had the honor of taking the lead in procuring an important auxiliary to philological science." * Perhaps * Notes on Eliot's Indian Grammar, Mass. Hist. Coll., Vol. XIX. p. 1 1. I cannot forbear adding, that, in the correspondence of Leibnitz, there is a proposition for a new alphabet of the Arabic, yEthiopie, Syriac, and other lani!;uages, which may remind the reader of that of Mr. Pickering. Leibnitz, Opera, (ed. Dutens,) Vol. VI., p. 88. HON. JOHN PICKERING. 455 no single paper on languages, since the legendary labors of Cadmus, has exercised a more important in- fluence than this communication. Though originally composed with a view to the Indian languages of North America, it has been succesfully followed by the mis- sionaries in the Polynesian Islands. In harmony with the principles of this Essay, the unwritten dialect of the Sandwich Islands, possessing, it is said, a more than Italian softness, was reduced to writing according to a systematic orthography prepared for them by ]\Ir. Pick- ering, and is now employed in two newspapers pub- lished by the natives. Thus he may be regarded as one of the contributors to that civilization, under whose gen- tle influence those islands, set like richest gems in the bosom of the sea, have been made to glow with the eff'ulgence of Christian truth. The Collections of the Massachusetts Historical So- ciety contain several important communications from him on the Indian languages; in 1822, (Vol. 19,) an editi4)n of the Indian Grammar of Eliot, the St. Augus- tine of New England, with Introductory Observations on the Massachusetts Language by the editor, and Notes by Mr. Duponceau, inscribed to his "learned friend, Mr. Pickering, as a just tribute of friendship and respect ;" in 1823, (Vol. '20,) an edition of Jonathan Edwards's " Observations on. the Mohegan Language," with Intro- ductory Observations, and Copious Notes on the Indian Languages, by the editor, and a Comparative Vocabu- lary, containing Specimens of some of the Dialects of the Lenape, or Delaware Stock ; in 1830, (Vol. 22.) an edition of Cotton's " Vocabulary of the Massachusetts Language." These labors were calculated, in no ordi- 456 HON. JOHN PICKERING. nary degree, to promote a knowledge of the aboriginal idioms of our country, and to shed light on that impor- tant and newly attempted branch of knowledge, the comparative science of languages. Among the Memoirs of the American Academy, published in 1833, (New Series, Vol. I,) is the '' Die- tionary of the Abenaki Language, in North America," by Father Sebastian Rasles, with an Introductory Me- moir, and Notes, by Mr. Pickering. The original manuscript of this copious Dictionary, commenced by the good and indefatigable Jesuit in l()iJl, during his solitary residence with the Indians, was found among his papers after the massacre at Norridgewalk, in which he was killed, and, passing through several hands, at last came into the possession of Harvard College. It is considered one of the most interesting and authentic documents in the history of the North American languages. In the Memoir accompanying the Dic- tionary, Mr. Pickering, with the modesty which marked all his labors, says, that he made inquiries for memorials of these languages, " hoping to render some small service, by collecting and preserving these valuable materials for the use of those persons whose leisure and ability would enable them to employ them more advantageously, than it was in his power to do, for the benefit of philological science." The elaborate article on the " Indian Languages of America,'^'' in the Encyclopaedia Americana, is from his pen. The subject was considered so interesting, in regard to general and comparative philology, while so little was generally known respecting it, that it was allowed a space more than proportionate to the usual length of philological articles in that work. HON. JOHN PICKERING. 457 The forthcoming volume of the Memoirs of the American Academy contains an interesting paper of a kindred character, one of his latest productions, on the Language and Inhabitants of Lord North's Island, in the Indian Archipelago, with a Vocabulary. The Address before the American Oriental Society, published in 1843, as the first number of the Journal of that body, is a beautiful contribution to the history of languages, presenting a survey of the peculiar field of labor to which the Society is devoted, in a style which attracts alike the scholar and the less careful reader. Among his other productions in philology, may be mentioned an interesting article on the Chinese Lan- guage, which first appeared in the North American Review, and was afterwards dislionesthj reprinted, as an original article, in the London Monthly Review for December, 1840 ; also an article on the Cochin- Chinese Language, published in the North American Review for April, 1841 ; another on Adelung's " Survey of Lan- guages," in the same journal, in 1822 ; a Review of Johnson's Dictionary, in the American Quarterly Review for September, 1828 ; and two articles in the New York Review for 1826, being a caustic examination of Gen- eral Cass's article in the North American Review, respecting the Indians of North America. These two articles were not acknowledged by their author at the time they were written. They purport to be by Kass- ti'ga-tor-skee, or the Feathered Arrow, a fictitious name from the Latin CAs4igator, and an Indian termination skee or ski. But even this enumeration does not close the cata- logue of Mr. Pickering's labors. There are still others, 458 HON. JOHN PICKERING. — to which, however, we shall refer by their titles only, — that may be classed with contributions to general literature. Among these is an Oration deliv- ered at Salem, on the Fourth of July, 1804; an article in the North American Review, ( Vol. 28,) on Elemen- tary Instruction ; a Lecture on Telegraphic Language, delivered before the Boston Marine Society, and pub- lished in 1833 ; an article on Peirce's History of Har- vard University, in the North American Review for April, 1834; an article on Prescott's History of the Reign of Ferdinand and Isabella, in the New York Review for April, 1838 ; the noble Eulogy on Dr. Bovvditch, delivered before the American Academy, May 29, 183S ; and Obituary Notices of Mr. Peirce, the Librarian of Harvard College ; of Dr. Spurzheim ; of Dr. Bowditch ; and of his valued friend and correspond- ent, the partner of his philological labors, Mr. Dupon- ceau ; also, an interesting Lecture, still unpublished, on the Origin of the Population of America, and two others on Languages. The reader will be astonished at these various contri- butions to learning and literature, which we have thus hastily reviewed, particularly when he regards them as the diversions of a life, filled in amplest measure by other pursuits. Charles Lamb said that his real works were not his published writings, but the ponderous folios copied by his own hand, in the India House. In the same spirit, Mr. Pickering might point to the multitudinous transactions of his long professional life, the cases argued in Court, the conferences with clients, and the deeds, contracts, and other papers, in that clear, HON. JOHN nCKERING. 459 legible autograph, which is a fit emblem of his transpa- rent character. Flis professional life, then, first invites our attention. And here it should be observed, that he was a thorough, hard-working lawyer, for the greater part of his days in full practice^ constant at his ofiice, attentive to all the concerns of business, and to what may be called the humilities of the profession. He was faithful, con- scientious and careful in all that he did ; nor did his zeal for the interests committed to his care ever betray him beyond the golden mean of duty. The law, in his hands, was a shield for defence, and never a sword with which to thrust at his adversary. His preparations for arguments in Court were ir.arked by peculiar care ; his brief was very elaborate. On questions of law he was learned and profound ; but his manner in Court was excelled by his matter. The experience of his long life never enabled him to overcome the native childlike diffidence, which made him shrink from public diplays. He developed his views with clearness, and an invari- able regard to their logical sequence ; but he did not press them home by energy of manner, or any of the ardors of eloquence. His mind was rather judicial than forensic in its cast. He was better able to discern the right than to make the wrong appear the better reason. He was not a legal athlete, snufiino; new vigor in the hoarse strifes of the bar, and regarding success alone ; but a faithful counsellor, solicitous for his client, and for justice too. It was this character that led him to contemplate the law as a science, and to study its improvement and ele- vation. He could not look upon it merely as the means 460 HON. JOHN PICKERING. of earning money. He gave much of his time to its generous culture. From the walks of practice, he as- cended to the heights of jurisprudence, embracing within his observation the systems of other countries. His contributions to this department illustrate the spirit and extent of his inquiries. It was his hope to accom- plish some careful work on the law, more elaborate than the memorials he has left. The subject of the Practice and Procedure of Courts, or what is called by the civilians Stylus Curi(B, had occupied his mind, and he had intended to treat it in the light of the foreign authorities, particularly the German and French, with the view of determining the general principles or natural law, common to all systems, by which it is governed. Such a work, executed in the fine, juridical spirit in which it was conceived, would have been welcomed wherever the law is studied as a science. It is, then, not only as a lawyer, practising in Courts, but as a jurist, to whom the light of jurisprudence shone gladsome, that we are to esteem our departed friend. As such, his example will command attention, and exert an influence, long after the paper dockets, in blue covers, chronicling the stages of litigation in his cases, shall be consigned to the oblivion of dark closets, and cobwebbed pigeon-holes. But he has left a place vacant, not only in the halls of jurisprudence, but also in the circle of scholars throughout the world, and it may be said, in the Pan- theon of universal learning. In contemplating the variety, the universality, of his attainments, the mind invohmtarily exclaims, "The admirable Pickering!" He seems, indeed, to have run the whole round of HON. JOHN PICKERING. 461 knowledge. His studies in ancient learning had ])een profound ; nor can we sufficiently admire the facility with which, amidst other cares, he assumed the task of lexicographer. Unless some memorandum should be found among his papers, as was the case with Sir William Jones,* specifying the languages to which he had been devoted, it may be difficult to frame a list with entire accuracy. It is certain that he was familiar with at least nine^ — the English, French, Portuguese, Italian, Spanish, German, Romaic, Greek, and Latin ; of these he spoke the first five. He was less familiar, though well acquainted, with the Dutch, Swedish, Danish, and Hebrew ; and had explored, with various degrees of care, the Arabic, Turkish, Syriac, Persian, Coptic, Sanscrit, Chinese, Cochin-Chinese, Russian, Egyptian hieroglyphics, the IMaylay in several dialects, and particularly the Indian languages of America and of the Polynesian Islands. The sarcasm of Hudibras on the " barren ground," supposed to be congenial to " Hebrew roots," is refuted by the richness of his accomplishments. His style is that of a scholar and man of taste. It is simple, un- pretending, like its author, clear, accurate, and flows in an even tenor of elegance, which rises at times to a suavity, almost Xcnophontean. Though little adorned * Sir William Jones had studied g\v;\\1 languages, criiically, — English, Latin, French, Italian, Greek, Arahic, Persian, Sanscrit ; eight others less perfectly, but all intelligible, with a dictionary, — Spanish, Portuguese, German, Runic, Helirew, Bengali, Hindi, Turk- ish; twelve studied less perfectly, but all attainable,— Tibetian, Pali, Phalari, Deri, Russian, Syriac, -'Elhiojjic, Coptic, Welsli, Swed- ish, Dutch, Chinese ; in all twenty-eight languages. — Teignmouth's Life of Jones. 462 HON. JOHN PICKERING. by flowers of rhetoric, it shows the sensibility and re- finenaent of an ear attuned to the harmonies of lan- guage. He had cultivated music as a science, and in his younger days performed on the flute with Grecian fondness. Some of the airs, which he had learned in Portugal, were sung to him by his daughter, shortly before his death, bringing with them, doubtless, the pleasant memories of early . travel, and the "incense- breathing morn " of life. A lover of music, he was naturally fond of the other fine arts, but always had particular happiness in works of sculpture. Nor were those other studies, which are sometimes regarded as of a more practical character, alien to his mind. In college days he was noticed for his attainments in mathematics ; and later in life, he pe- rused with intelligent care the great work of his friend, Dr. Bowditch, the translation of the Mecanique Celeste. He was chairman of the committee which recom- mended the purchase of a telescope of the first class, to be used in the neighborhood of Boston, and was the author of their interesting report on the uses and im- portance of such an instrument. He was fond of natural history, particularly of botany, which he him- self taught to some of his family. In addition to all this, he possessed a natural aptitude for the mechanic arts, which was improved by observation and care. Early in life he learned to use the turning lathe, and, as he declared, in an unpublished lecture before the Mechanics' Institute of Boston, made toys and playthings tvhich he bartered among his schoolmates. The latter circumstance gives singular point to the parallel, already striking in other respects, between him HON. JOHN PICKERING. 463 and the Greek orator, the boast of whose various know- ledge is preserved by Cicero. " Nihil esse ulla in arte rerum onnnium, quod ipse ncsciret ; nee solum has artes, quibus liberales doctrina3 atque ingenua; contine- rentur, gcoinotriam, musicam, literarum cognitioncm, et poetarum, atque ilia qucc de naturis rerum, qute de hominum moribus, qupe de rebuspublicis di.ccrcntur; sed annulum^ quern haheret^ se sua manu confecissey * It is, however, as the friend of classical studies, and as a student of language, or philologist, that he is enti- tled to be specially remembered. It is impossible to measure the influence which he has exerted upon the scholarship of the country. His writings and his ex- ample, from early youth, have pleaded its cause, and will plead it yet, now that his living voice is hushed in the grave. His genius for languages was profound. He saw, with intuitive perception, their structure and affinities, and delighted in the detection of their hidden resemblances and relations. To their history and char- acter he devoted his attention, more than to their litera- ture. It would not be possible for our humble pen to attempt to determine the place which will be allotted to him in the science of philology; but the writer cannot forbear recording the authoritative testimony, which it was his fortune to hear, from the lips of Alexander von Humboldt, to the rare merits of Mr. Pickering in this department. With the brother, William von Humboldt, that great light of modern philology, he maintained a long correspondence, particularly on the Indian lan- guages; and the letters of our countryman will be * De Oratore, Lib. III. § 32. 464 HON. JOHN PICKERING. found preserved in the royal library at Berlin. With- out rashly undertaking, then, to indicate any scale of preeminence or precedence among the cultivators of this department, at home or abroad, it may not be improper to refer to his labors, as evidence in the words of Dr. Johnson, with regard to his own,* " that we may now no longer yield the palm of philology, without a con- test, to the nations of the continent." If it should be asked, by what magic Mr. Pickering was able to accomplish these remarkable results, it must be answered, by the careful husbandry of time. His talisman was industry. He was pleased in referring to those rude inhabitants of Tartary who placed idle- ness among the torments of the world to come, and often remembered the beautiful proverb in his Oriental studies, that by labor the leaf of the mulberry tree is turned into silk. His life is a perpetual commentary on those words of untranslatable beauty in the great Italian poet : t seggendo in piuma III fama non si vien, ne sotto coltre : Sanza la qual, chi sua vita consuma Colal vesligio in terra di se lascia, Q,ual fumo in aere od in acqua la schiiima. With a mind, thus deeply imbued with learning, it will be felt that he was formed less for the contentions of the forum than the delights of the academy. And yet, it is understood that he declined several opportuni- ties, which were afforded him, of entering its learned retreats. In 1806, he was elected Hancock Professor * Preface to Dictionary, t Dante, Inferno, Canto 25. HON. JOHN PICKERING. 465 of Hebrew, and other Oriental languages, in Harvard University ; and, at a later day, he was invited to the chair of Greek literature, in the same place. On the death of Professor Ashmun, many eyes were turned towards him, as a proper person to occupy the profes- sorship of law in Cambridge, since so ably filled by Mr. Greenleaf; and on two different occasions, his name was echoed by the public prints as about to re- ceive the dignity of President of the University. But he continued, as we have seen, in the practice of the law to the last. He should be claimed by the bar with peculiar pride. If it be true, as has been said, that Sergeant Talfourd has reflected more honor upon his profession, by the successful cuhivation of letters, than any of his con- temporaries by their forensic triumphs, then should the American bar acknowledge their obligations to the fame of Mr. Pickering. He was one of us. He was a regular in our ranks ; in other services, only a voliin' teer. The mind is led, instinctively, to a parallel between him and that illustrious scholar and jurist, one of the ornaments of the English law, and the pioneer of Ori- ental studies in England, Sir William Jones. Both confessed, in early life, the attractions of classical studies ; both were trained in the discipline of the law; both, though engaged in its practice, always delighted to contemplate it as a science ; both surrendered them- selves, with irrepressible ardor, to the study of langua- ges, while the one broke into the unexplored fields of Eastern philology, and the other devoted himself more especially to the native tongues of his own Western VOL. II. 30 466 HON. JOHN PICKERING. continent. Their names are, perhaps, equally conspic- uous for the number of languages which had occupied their attention. As we approach them in private life, the parallel still continues. In both there were the same truth, generosity and gentleness, a cluster of noble virtues ; w^iile the greater earnestness of the one, is compensated by the intenser modesty of the other. To our American jurist-scholar, also, may be applied those words of the Greek couplet, borrowed from Aris- tophanes, and first appropriated to his English proto- type : " The Graces, seeking a shrine that would not decay, found the soul of Jones." While dwelling with admiration upon his triumphs of intellect, and the fame he has won, let us not forget the virtues, higher than intellect or fame, bj^which his life was adorned. In the jurist and the scholar let us not lose sight of the rnan. So far as is allotted to a mortal to be, he was a spotless character. The rude tides of this world seemed to flow by without soiling his gar- ments. He was pure in thought, word and deed. He was a lover of truth, goodness and humanity. He was the friend of the young, encouraging them in their studies, and aiding them by his wise counsels. He was ever kind, considerate and gentle to all ; towards children, and the unfortunate, full of tenderness. He was of modesty " all compact." With learning to which all bowed with reverence, he walked humbly alike before God and man. His pleasures were simple. In the retirement of his study, and in the blandishments of his music-loving family, he found rest from the fatigues of the bar. He never spoke in anger, nor did any hate find a seat in his bosom. His placid life was. HON. JOHN nCKERING. 467 like law, in the definition of Aristotle, " Mind without passion." Through his long career, extending to the extreme limit of that length of days which is allotted to man, he was hlessed with unbroken health. He walked on earth with an unailing body and a serene mind. And at last, in the fullness of time, when the garner was overflowing with the golden harvests of a well-spent life, in the bosom of Iiis family, the silver cord was gently loosened. He died at Boston, May 5th, 1846, in the seventieth year of his age, — only a few days after he had prepared for the press the last sheets of a third and enlarged edition of his Greek Lexicon. His wife, to whom he was married in 1805, and three children, survive to mourn their irreparable loss, and to rejoice in his good name on earth, and his immortality in heaven. The number of societies, both at home and abroad, of which he was an honored member, attest the wide- spread recognition of his merits. He was President of the American Academy of Arts and Sciences ; Presi- dent of the American Oriental Society; Foreign Secre- tary of the American Antiquarian Society ; Fellow of the Massachusetts Historical Society ; of the American Ethnological Society ; of the American Philosophical Society ; Honorary Member of the Historical Societies of New Hampshire, of New York, of Pennsylvania, of Rhode Island, of Michigan, of Maryland, of Georgia; of the National Institution for the Promotion of Science ; of the American Statistical Association ; of the North- ern Academy of Arts and Sciences, Hanover, N. H. ; of the Society for the Promotion of Legal Knowledge, 468 HON. JOHN PICKERING. Philadelphia ; Corresponding member of the "Ro3^aI Academy of Sciences at Berlin ; of the Oriental Soci- ety of Paris ; of the Academy of Sciences and Letters at Palermo ; of the Antiquarian Society at Athens ; of the Royal Northern Antiquarian Society at Copenha- gen ; and Titular Member of the French Society of Universal Statistics. For many years he maintained a copious correspond- ence, on matters of jurisprudence, science and learning, with distinguished names at home and abroad ; especi- ally, with Mr. Duponceau, at Philadelphia; with Wil- liam von Humboldt, at Berlin ; with Mittermaier, the jurist, at Heidelberg; with Dr. Pritchard, author of the Physical History of Mankind, at Bristol ; and with Lepsius, the hierologist, who wrote to him from the foot of the pyramids in Egypt. The death of one, thus variously connected, is no common sorrow. Beyond the immediate circle of family and friends, he will be mourned by the bar, amongst whom his daily life was passed ; by the muni- cipality of Boston, whose legal adviser he was ; by clients, who depended upon his counsels ; by all good citizens, who were charmed by the abounding virtues of his private life ; by his country, who will cherish his name more than gold or silver ; by the distant islands of the Pacific, who will bless his labors in every written word that they read ; finally, by the company of jurists and scholars throughout the world. His fame and his works will be fitly commemorated, on formal occasions, hereafter. Meanwhile, one who knew him at the bar and in private life, and who loves his memory, lays this early tribute upon his grave. fCf HON. HENRY AYHEATON, [from the boston daily advertiser, march 16, 1848.] The death of a person like Mr. Whcaton naturally arrests the attention, — even at this period of funereal gloom, when the Angel of Death seems to have over- shadowed the whole country with his wings. He was long and widely known in various official relations ; devoted for many years to the service of his country ; studious always of literature and jurisprudence ; illus- trious as a diplomatist and expounder of the Law of Nations ; with a private character so pure as to incline us to forget, in its contemplation, the public virtues by which his life was filled. He died after a brief illness, accompanied by a dis- ease of the brain, on Saturday evening, March 11th, 1848, at Dorchester. On that day the remains of John Quincy Adams, who, as President of the United States, had first advanced Mr. Wheaton to a diplomatic place in the service of his country — after a long procession through mourning towns and cities from the capito^ which had been the scene of his triumphant death — 470 HON. HENRY WHEATON. were laid in their final resting-place in the adjoining town of Quincy. The faithful friend and servant has thus early followed his venerable chief to the fellowship of another world. The principal circumstances in Mr. Wheaton's life may be briefly told. He was born at Providence on the 27th November, 1785. He was a graduate of Brown University, in that place, in 1802. After his admission to the bar, he visited Europe, particularly the Continent, where his mind thus early became im- bued with those tastes which occupied so much of his later years. Some time after his return — finding little inducement to continue the practice of the law at Provi- dence — he removed to New York. This was in 1812. Here he became the editor of an important journal, the National Advocate — a paper which, it is believed, was afterwards merged in The Courier and Inquirer. His experience in this character closed May loth, 1815. As a journalist, he is reputed to have been uniformly discreet, decorous and able, at a time when the fearful trials of war, in which the country was engaged, added to the responsibilities of his position. But his labors as editor did not estrange him from the law. It was about this period that he became for a short time one of the Justices of the Marine Court, a tribunal which is said now to be shorn of something of its early dignity. In 1815, he appeared as an author of a Treatise on Jurisprudence. This was a Digest of the Law of Maritime Captures and Prizes. In the judi- cial inquiries incident to the administration of the laws of loar — still maintained by the Christian world — such a treatise was naturally of much practical utility. It HON. HENRY WHEATON. 471 may also claim the palm of being among the earliest juridical productions of our country. Nor, indeed, has it been without the disinterested praise of foreign na- tions. Mr. Reddie, of Edinburgh, in his recent work on Maritime International Law, says, " That although it cannot be strictly called a valuable accession to the legal literature of Britain, it gives us much pleasure to record our opinion, that, in point of learning and me- thodical arrangement, it is very superior to any treatise on this department of the law which had previously appeared in the English language." No American contribution to jurisprudence so early as 1815 has re- ceived such marked commendation abroad. Kent and Story had not then produced those works which have secured to them their present freehold of European fame. In 1816 he became the Reporter of the Decisions of the Supreme Court of the United States, which office he held till 1827. His Reports are in twelve volumes, and embody what may be called the golden judgments of our National Judicature, from the lips of Marshall, Livingston, Washington, Thompson, and Story. It appears, however, that Mr. Wheaton's time was not absorbed by these official duties to the exclusion of other labors. He entered much into the practice of his profession. His name appears as counsel in important causes heard at Washington. He was the editor of divers English law books, republished in our country with valuable notes. On several literary occasions he pronounced discourses of signal merit. One of these, in 1820, before the Historical Society of New York, touches upon his favorite theme, — with which his 472 HON. HENRY WHEATON. name is now so firmly connected, — the Law of Na- tions ; another in 1824, at the opening of the New York Athenjeum, takes a rapid survey of American literature. In 1826, he published his Life of that great lawyer, William Pinkney. It is also understood, that, during all this period, he was a frequent contributor to the North American Review. Nor did these accumulated literary and juridical labors detain him from yet other services. He was a member of the Legislature of New York ; and in 1821 held a seat in the Convention, which remodeled the Constitution of that State. In 1825, he was placed on the commission for revising the statutes of New York. It will be remembered, that this was the first effort by any State professing the common law, to reduce its disconnected and diffusive legislation to the unity of a code. It is thus that Mr. Wheaton's name is connected with one of the most important landmarks in the his- tory of American law. All these duties and callings he relinquished in the summer of 1827, when he entered upon the diplomatic service, which then opened before him a new career of usefulness. It was then that he was made Charge dM^fl ires at Copenhagen, where he continued till 1834, when he was transferred by President Jackson to Ber- lin, as Minister Resident. In 1837, he was raised by President Van Buren to the rank of Minister Plenipo- tentiary and Envoy Extraordinary at the same court. On 22d July, 1846, he had his audience of farewell from the King of Prussia, having been recalled by President Polk. This long period of service was passed abroad with the intermission of a brief passage of time HON. HENRY WHEATON. 473 in 1834, when he revisited his country on leave of absence. During this protracted career in foreign countries, charged with responsible negotiations, he was not lost in the toils of office, or in the allurements of courdy life. He was always a student. At Copenhagen he prepared his History of the Northmen^ or Danes and Normans, from the earliest times to the Conquest of England by William of Normandy. This was pub- lished in 1831, both in London and in our country. In 1836, it was much enlarged, and translated into French. At the time of his death he was occupied in preparing another edition for the press in our country. In 183S, he contributed to the Edinburgh Cabinet Li- brary a portion of the volumes entitled Scandinavia. By these works he has earned a place among the his- torical writers of the country. It will be observed that his History of the Northmen preceded, in time, the productions of Bancroft and Prescott, which have since achieved so much renown. From literature he passed again to jurisprudence, where he has \vDn his surest triumphs. His Elements of International Law appeared in London and the United States in 1836 ; and again in 1846, much en- larged. This was followed by a History of the Law of Nations in Europe and A?neri':a,fro?n the Earliest Times to the Treaty of Washington, which first appear- ed in French, at Leipzig, in 1844, under the title of Histoire des Progrcs du Droit des Gens en Europe depiiis la Paix de Westphalie jusqu^au Congres de Viennc, avec un precis hislorique du Droit des Gens Europeen avant la Paix de Westphalie. This was origi- 474 HON. HENRY WHEATON. nally written for a prize offered by the French Insti- tute. Though it received what was called " viention honor able,'''' it failed to obtain the prize, which was awarded to a young Frenchman, whose production, as I have been informed, has never been published. It is possible that the constraint of a foreign language, in which Mr. Wheaton wrote, may have so far influenced his style as to place his work at a disadvantage before the polished French tribunal. But an enlightened public opinion has already awarded to it the crown of merit. It has been much enlarged by the author, and published in the English language in an octavo volume of eight hundred pages. Besides these classical treatises, Mr. Wheaton pub- lished an able and thorough Inquiry into the Validity of the Right of Visitation and Search, particularly as re- cently claimed by Great Britain. On this occasion he upheld the views which had been put forth by the American Government. The acknowledged weight of his opinion in the science of law gave to his conclu- sions a commanding influence. On his recent return to his country h^ was welcomed by many manifestations of regard, both public and private, in the principal places which he visited. Wherever he appeared, he was a favored guest. At the last Commencement of Brown University, he de- livered the Address before the Phi Beta Kappa Society. His subject was " Germany." The various depart- ments of thought and conduct, which have been suc- cessfully occupied by the " many-sided" mind of this country, were sketched with singular ability. His voice was feeble ; and, as he spoke, large numbers of the HON. HENRy WIIEATON. 475 audience drew near to tlie pulpit, filling the neighbor- ing aisles, and standing in respectful attention, that they might better catch his learned discourse. Such were the important and diversified labors of Mr. VVheaton's valuable life. Without any of the adven- thious aids of fortune, or of special favor, he achieved an eminent place before the civilized world. By virtue of his office, he lived as an equal among nobles and princes, while his rare endowments opened to him, at will, the fraternities of learning and science. And yet his qualities were not those of the courtier. Nor did any heaven-descended eloquence lend its fire to his conversation or his style. Both were simple, grave, reserved, like his manners, attractive rather from their clearness and matter, than their brilliancy or point. His career as a Diplomatist abroad has been one of the longest in our history — longer even than that of Mr. Adams. It was not his fortune to affix his name to any treaty, like that of 1783, which acknowledged our Independence, or that of Ghent in 1815, which re- stored peace to England and the United States. But his extended term of service was filled by a succession of wise and faithful labors, which have rendered incal- culable good to his own country, while they have im- pressed his character upon the public mind of Europe. His negotiation with Denmark was important. His careful management of the interests of our country, in connection with the German Zoll Verein, was more important still. But besides these conspicuous acts, with which all are familiar, there is his long and con- stant correspondence with the Department of State at Washington, the true character of which is, probably, known to comparatively few. 4T6 HON. HENRY WHEATON. It was his habit, contrary to the usage of many Min- isters of the United States abroad, by regular authentic communications, to keep our Government at home ap- prised of the true posture of foreign affairs, as observed by him. It is beheved, that all the matters which prom- inently occupied the Continental nations during his residence abroad — particularly those two disputes, sometimes known as the Belgian question^ and the Egypticm question^ which seemed for a while to fill with " portents dire," the firmament of Europe — were discussed in these dispatches with instructive fullness. These may be found in the archives of his legation, and in the Department of State at Washington — " en- rolled in the Capitol," — where they will doubtless be studied by the future historian. His familiarity with the Law of Nations, derived from his position as a Diplomatist, was enhanced by his mature and thorough study of it as a science. For this he had been prepared by his training at the bar,, the influence of which may be discerned in some of his discussions. He was master alike of its learning and its dialectics. It happened to him in Berlin to be called to defend the rights of ambassadors against an injurious usage established or recognized by the Prussian Government. His paper on this occasion, I believe, is still unpublished. All who have read it will attest the force and the sharpness of his unanswered argumetn. Stranire that this task should have devolved upon an American Minister ! Strange that the privi- leges of ambassadors should have found their defender in a Cis-Atlantic citizen ! His, defence drew the regard of the diplomatic body of Europe. Copies of it were HON. HENRY WHEATON. 477 transmitted to the difTcrent courts, where it was, as I have understood, discussed, and generally if not univer- sally sanctioned. Justly eminent as a practical diplomatist, his ^vorks derived new value from the high place of their author, while even his official position was aided hy his works. His was a solitary example in our age — perhaps the only instance since Grotius — of an eminent minister, who was also an expounder of the science of the Law of Nations. His works, therefore, have been received with peculiar respect. They may be said already to have become authorities. Such they seem to be re- garded by the two British writers on this subject, who have since appeared, Mr. Manning and Mr. Reddie. The former, in his interesting Commentaries, says, " Dr. Wheaton's work is the best elementary treatise on the Law of Nations that has appeared ; " while Mr. Reddie declares, in his Treatise on Maritime Interna- tional Law, that " This work, although not by a British author, was certainly, at the date of its publication, the most able and scientific Treatise on International Law, which had appeared in the English language." It is admitted that the arrangement is superior to that of Martens, Chitty, Schmalz, or Kluber. It cannot be disguised, however, that both of his works, in this department, are remarkable rather for their careful statement and arrangement of the subject, than for that elegance, or glow, or freedom of discus- sion, by which the reader is carried captive. It will not be questioned that his Elements afford the best view^, which has yet been presented, of the Law of Nations, as practically illustrated in the adjudged cases of Eng- 478 HON. HENRY WHEATON. land and the United States, and in recent diplomacy. But we miss in them the fullness and variety of illustration which characterize some of the earlier writers, and especially that genial sentiment which in- terests us so warmly in Vattel. The History^ which first appeared in French^ is not less important than the Elements. Here the field is more clearly his own. This work supplies a place never before filled in the literature of the English language, if it had been in that of any language. To all students of jurisprudence — nay more, to all students of history, who ascend above the descriptions of wars and battles, to the grand principles, which in a certain sense are at once the parents and the offspring of events — this view of the Progress of the Law of Nations will be an important guide. Had Mr. Wheaton's life been longer spared, he would have found it his province, in the discharge of his recently assumed office as Lecturer on the Civil [Ro- man] and International Law at Harvard University, to survey again the wide field of the Law of Nations. What further harvests he might then have gathered, it is impossible now to estimate. He never entered upon these labors. The reaper was removed, before he began to use his sickle. Such was his life, — passed not without well deserved honor at home and abroad. In those two great depart- ments of labor, history, and the Law of Nations, he is among the American pioneers. Through him, the literature and jurisprudence of our country have been commended in foreign lands ; Fluminaque in foiites cursu rcdilura supino. HON. HENRY WHEATON. 481 Others may have clone better in the high art of history ; but no American historian has, like him, achieved Euro- pean eminence as a writer on the Law of Nations ; nor has any other American writer on the last great theme been recognized abroad as an historian. He was a member of the Institute of France ; and I cannot for- get, that, at the time of his admission, the question — so honorable to the double fame of Mr. Whcaton — was entertained, by the late Baron Dcgerando, the jurist and philanthropist, whether he should more properly be received into the section of History or of Jurisprudence. To the latter he was finally attached. Prescott and Bancroft belong to the former. It is, however, as an expounder of the Puhlic Inter- national Law that his name will be most widely cher- ished. In the progress of Christian civilization, many of the rules, now sustained by learned subtlety or un- questioning submission — shaping the public relations of States — may pass away. The Institution of War, with its complex code, now sanctioned and legalized by nations, as a proper mode of adjusting their disputes, may yield to some less questionable Arbitrament. But a profound interest will always attach to the writings of those great masters who have striven to explain, to advance, and to refine that system, which, though in- complete, has helped to constrain in the bonds of Peace the wide Christian Commonwealth. Among these, Mr. Wheaton's place is conspicuous. His name is already inscribed on the same table with that of Grotius , Putjenr dorf, and Vattel. It were wrong to close this imperfect tribute, without a renewed testimony to the purity of his life. From 482 HON. HENRY WHEATON. youth to age his career was marked by integrity, temperance, frugality, modesty, industry. His quiet unostentatious manners were the fit companions of his virtues. His countenance, which is admirably pre- served in the portrait by Healy, wore the expression of thoughtfulness and repose. Nor station, nor fame made him proud. He stood with serene simplicity in the presence of kings. In the social circle, when he spoke, all drew near to listen — sure that, what he said would be wise, tolerant, and kind. END OF VOLUME II. 4 AY 27194^ ^ 0^ x^^ ,<> 9^ .•^'^ ^ ^v <;>^'^. - ^..4'^^ '-mil'- <-.%^ %; :. '%o .<^ °^ r- ^ C-. » V* .^^^^ V s ■clI> 0° ^. .V cS^i rO .r. . iV* ■<<'> ■> w ^^ ,,. ^ (vv o- \> .-^ ^-'. ^^ ■"" V ^lT' . - .^G' ^^'' .0^ . '^O^ o<> ■''%. 0^ f.- ..,;<. 'O^. * - o.. V■•'•^^><•••.V■~■'■>'^■- \. i s / ,4"^ 0°^.' % '■ ■'•<> < .0^ , '"f^^S- ^^o< .s^ % ^^^°'^ \ »A '^ N>^ ^^ .^V^--^^ , >^^. ./ \ ^ K-f^ ^- "Q.. .'c?' *:. •I-^- >' % '. <*.