THIE
AIISCELLANEOUS WRITINGS
or
JOSEPH STORY,
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES,
AND DANE PROFESSOR OF LAW AT HARVARD UNIVERSITY.
EDITED BY HIS SON,
WILLIAM W. STORY.
BOSTON:
CHARLES C. LITTLE AND JAMES BROWN.
1852.




Entered according to Act of Congress, in the year 1851,
By WILLIAM W. STORY,
In the Clerk's Office of the District Court of the District of Massachusetts.
CAI BP IDGE:
PFRINTED BY HOUGHTON AND I-AYWOOD.




ADVERTISEMENT.
MOST of the papers contained in this volume were printed in
a previous collection, which was prepared by my father in 1835,
and which has been long out of print.
In the present edition a different arrangement has been adopted, and some new pieces have been added. The original Dedication by my father, to the Honorable Josiah Quincy, has been
preserved.
W. W. STORY.
BOSTON, October, 1851.








TO
THE HONORABLE
JOSIAH QUINCY, L.L.D.,
PRESIDENT OF HARVARD UNIVERSITY.
SIn,
In dedicating this volume to you, I may, not unnaturally, be
thought to indulge a wish in some sort to discharge the debt of gratitude, which I owe to the institution, over which you preside, for the
many favors bestowed upon me. But, gratifying as such an expression of reverent regard for our Parent University would at all times
be to me, I confess, that I seek on the present occasion rather to offer
it as a testimony of my deep sense of the worth of your personal
character. Few men have acquired so just a distinction for unspotted integrity, fearless justice, consistent principles, high talents, and
extensive literature. Still fewer possess the merit of having justified
the public confidence by the singleness of heart and purpose, with
which they have devoted themselves to the best interests of society.
In every station, to which you have been called by the free suffrages
of the people, you have discharged its duties with the most exemplary
ability, fidelity, and conscientiousness. In your present exalted
station, to which you were invited by the combined voice of the
guardians of the University, under the most flattering circumstances,
every act of your life has conduced to establish the importance and
wisdom of the choice. May you long continue to wear its honors
with unsullied dignity. In the language of your own favorite Poet,
I may say, Cura Patrum... tuas virtutes in cevum per titulos
memoresque fastos eternet.
I have the honor to remain, most truly,
Your obliged friend,
JOSEPH STORY.
CAMBRIDGE, Massachusetts, October, 1835.








CONTENTS.
PAGE
AUTOBIOGRAPHY.                                                    1
LITERATURE AND JURISPRUDENCE.
INFRINGEMENT OF THE NEUTRAL TRADE OF THE UNITED STATES.
A Memorial addressed to the President and Congress of the United
States in behalf of the Inhabitants of Salem, Massachusetts..   43
REPORT ON THE SALARIES OF THE JUDICIARY.
In favor of increasing the Salaries of the Justices of the Supreme Court
of Massachusetts, made to the House of Representatives of that State,
in June, 1806.                                                 58
ADDRESS ON RESIGNING THE SPEAKER'S CHAIR,
Delivered in the House of Representatives of Massachusetts, January,
17, 1812.                                                      63
COURSE OF LEGAL STUDY.
An Article written for the North American Review, in 1817, on "A
Course of Legal Study, addressed to the Students of Law in the
United States, by David Hoffman, Professor of Law in the University of Maryland.".66
LITERATURE OF THE MARITIME LAW.
An Article written for the North American Review, in 1818, on a WVork
entitled, " The Laws of the Sea with reference to Maritime Commerce during Peace and War," from the German of Frederick J.
Jacobsen, Advocate, Altona, 1815.                              93




Viii                       CONTENTS.
PIRACY AND THE SLAVE TRADE.
A Charge to the Grand Jury, first delivered in the Circuit Court of the
United States, for the Judicial District of Maine, at its First Session
in Portland, May 8, 1820.                                    122
CHANCERY JURISDICTION.
An Article written for the North American Review, in 1820, on the
Reports of Mr. Johnson.                                     148
SPEECH ON THE APPORTIONMENT OF SENATORS,
Delivered in the Convention of Massachusetts, assembled to amend the
Constitution, in November, 1820..                          180
PROGRESS OF JURISPRUDENCE.
An Address delivered before the Members of the Suffolk Bar, at their
Anniversary, September 4, 1821, at Boston.....  198
MEMORIAL AGAINST RESTRICTIONS ON COMMERCE,
Addressed to the Congress of the United States, June, 1820, in behalf
of the Merchants and Others, interested in Commerce in Salem and
its vicinity, on the discontinuance of Credits on Revenue Bonds, the
Abolition of Drawbacks, and other Restrictions on Commerce proposed in Congress.                                          242
GROWTH OF THE COMMERCIAL LAW.
An Article written for the North American Review, in 1825, on "A
Treatise on the Law of Insurance, by Willard Phillips."..  262
RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY.
An Argument delivered before the Board of Overseers of Harvard
College, in January, 1825, upon the discussion of the Memorial of
the Professors and Tutors of the College, claiming a Right that none
but Resident Instructors in the College should be chosen or deemed
"Fellows" of the Corporation......  295
CHARACTERISTICS OF THE AGE.
A Discourse pronounced at Cambridge, before the Phi Beta Kappa
Society of Harvard University, August 81, 1826..  340




CONTENTS.                          ix
DIGESTS OF THE COMMON LAW.
An Article written for the North American Review, in 1826, on a
General Abridgment and Digest of American Law, with occasional
Notes and Comments, by Nathan Dane, LL. D., Counsellor at Law  379
HISTORY AND INFLUENCE OF THE PURITANS.
A Discourse pronounced at the Request of the Essex Historical Society,
September 18, 1828, in Commemoration of the First Settlement of
Salem, Mass..........  408
DEVELOPMENTS OF SCIENCE AND MECHANIC ART.
A Discourse delivered before the Boston Mechanics' Institute, at the
Opening of their Annual Course of Lectures, November, 1829.. 475
VALUE AND IMPORTANCE OF LEGAL STUDIES.
A Discourse pronounced at the Inauguration of the Author, as Dane
Professor of Law in Harvard University, August 25, 1829..  503
INFLUENCE OF SCIENTIFIC STUDIES.
A Discourse introductory to a Course of Lectures before the Families
of the Professors in Harvard University, delivered in Holden Chapel,
December, 23, 1830...549
CONSECRATION OF THE CEMETERY AT MOUNT AUBURN.
An Address delivered at the Consecration of Mount Auburn, as a Cemetery, September, 24, 1831........  565
LAW RELATING TO CAPTURE.
A Memorial in the Case of the Schooner Reward, William Goss, Master,
addressed to the Commissioners for the Settlement of Claims, &c. 1832. 580
EULOGY ON PROFESSOR ASHMUN,
Pronounced at the Obsequies of John Hooker Ashmun, Royall Professor of Law, in Harvard University, April 5, 1833... 599
THE SCIENCE OF GOVERNMENT.
A Lecture read before the American Institute of Instruction in August,
1834...    e   e.......  614




x                          CONTENTS.
LIFE, CHARACTER, AND SERVICES OF CHIEF JUSTICE MARSHALL.
A Discourse pronounced on the 15th of October, 1835, at the request
of the Suffolk Bar....                 639
CODIFICATION OF THE COMMON LAW.
A Report of the Commissioners appointed to consider and report upon the
Practicability and Expediency of reducing to a Written and Systematic Code the Common Law of Massachusetts, or any part thereof,
made to his Excellency the Governor, January, 1837...  698
SPEECH AT THE CENTENNIAL CELEBRATION OF HARVARD UNIVERSITY.                                                 735
LITERARY TENDENCIES OF THE TIMES.
A Discourse pronounced before the Society of the Alumni of Harvard
University, at their first Anniversary, August, 23, 1842...  740
SKETCHES OF JUDGES AND LAWYERS.
SAMUEL DEXTER.........              781
WILLIAM PINKNEY........  794
ROBERT TRIMBLE..........  801
THOMAS A. EMMET.........  804
BUSHROD WASHINGTON.......  808
ISAAC PARKER...........  812
JOHN TODD.........    817
HUGH S. LEGAR:i.........  820
PHILIP P. BARBOUR.......  825




AUTOBIOGRAPHY.








MIISCELLANEOUS WRITINGS.
AUTO;BIOGRAPH'Y.
Washington, 23d January, 1831.
MY DEAR SON:
I have often resolved to write down for your use a brief
memoir of my life; and having leisure at this time, I have determined not to omit it any longer. You are too young now
to think much about it; but if you should live, and grow up
to manhood, as I pray God you may, I am sure that it cannot fail to be of interest to you. I shall write, too, very
frankly and freely, and in a manner which would not be justifiable, if this were designed for the public, or even for the eyes
of a friend. But between a parent and child all forms may
be dropped, and we may write as we feel; and if here and
there a spice of personal vanity should appear, it would be
but as the small talk of the fireside, where mutual confidence
allows us to think aloud, and tell our honest thoughts as they
arise. Perhaps, when I am in my grave you will take comfort in these little details, and say with the poet, - Forsan et
hcc olim meminisse juvabit.
I was born at Marblehead, in the county of Essex, on the
18th of September, 1779. Mly father's name was Elisha Story;
my mother's Mehitable Pedrick. My father was a native
of Boston, and born in 1743. He was the son of William




2               MISCELLANEOUS WRITINGS.
Story of that place, who held, I believe, the office of Registrar
in the Court of Admiralty at the beginning of the Revolution.
My grandfather was, in fact, a Whig, but holding office
under the British government, he was subjected to the common odium of the times. His house was assailed by the
mob, and considerably injured.  My father was a sturdy
Whig, and took a very early and active part in all the revolutionary movements. He was one of the Indians who helped
to destroy the tea in the famous Boston exploit. He did not
receive a public education, owing, I believe, to his father's
very rigid religious opinions, which would not suffer him to
go to Harvard College, lest he should there imbibe those heretical tenets, which, in the form of Arminianism, were then
supposed to haunt those venerable shades. He, however, was
educated in the Public Latin School in Boston, then under the
government of the celebrated master Lovell. After receiving
the usual classical instruction there, he studied medicine with
a very eminent physician, Dr. Sprague of Boston. He married, for his first wife, Miss Ruth Ruddock, daughter of John
Ruddock, Esq., a man who had accumulated a considerable
property in the ship-building business in Boston. She died
in the year 1777, leaving seven children. In the autumn of
1778, my father married Miss Pedrick, whom you know as
your grandmother still living, and by her had eleven children,
of whom I am the eldest. Your grandmother's father was
an opulent merchant of Marblehead, and, indeed, for that
day, a very opulent merchant. HIe inclined, as many men of
property did, to the Tory side, but never took any step except
in favor of his countrymen. A considerable portion of his
property being in shipping, was lost by rotting at the wharves
during the war. He died in the year after I was born; and
finding that like himself I was left-handed, he was extremely
anxious to give me a proof of his regard by presenting me
with a small messuage; but my mother, with great good
sense, for the purpose of avoiding all family disagreements,
declined the offer; and thus I was probably saved from the




AUTOBIOGRAPHY.                  3
mischievous notion, that I had property in my own right, a
notion with which servants are apt to fill young minds to
their positive injury.
My father, soon after the commencement of the Revolution,
entered the army as a surgeon, and continued in it until the
close of the year 1777, when he retired, being disgusted with
the management or rather mismanagement of the medical
department. I am told that there is still extant a correspondence with the head of that department on the subject, somewhat excited, but I have never seen it. He was with General
Washington during the campaign of 1777 in the Jerseys;
and I remember to have heard him speak, in my early youth,
with great enthusiasm on the subject. To the very close of
his life he entertained the highest admiration of General
Washington, and of John Adams, though in the political
controversies between the latter and Mr. Jefferson he took
side with Mr. Jefferson. He was, in a just sense, a disciple
of the school of Washington, a lover of the Union, and devotedly attached to a republican government. In the party
divisions of the times succeeding Washington's administration, he was a very decided Republican, and continued so to
his death. But his natural moderation of character, combined
as it was with great firmness and amenity, saved him from
those extravagancies which but too often disgrace the history
of parties.
And now that I am upon the subject of my father, I must
indulge myself in a few remarks upon his character and person. He was not so tall as I am, and rather of a stronger
and fuller build. He must have been an uncommonly handsome man in his youth, (and indeed so I have always heard,)
for when I first recollect him with distinctness, though then
quite bald, his face was still of great masculine beauty and
attractiveness.  His eyes were blue and of singular vivacity and sweetness, his eyebrows regularly arched, and a fine
nose, and an expressive mouth, gave a perfect harmony to his
features. There was, too, a slight smile which occasionally




4               MISCELLANEOUS WRITINGS.
played about his face, and a general cheerfulness and ease
in his conversation, which won every person who came near
him. His manners were bland and approaching to elegance;
modest, but at the same time with a conscious bearing of
character; and there was just enough of the pride of person
about him to make him solicitous to dress well, but not in
showy apparel - with neatness, and yet not with too scrupulous care. My father was not a man of genius, but of plain,
practical sense, and a quick insight into the deeds:of men.
He possessed great natural tact and sagacity, with little pretension to learning. As a physician, he was eminently successful in practice, as was established by the constant increase
of his business to the very time of his decease. In one branch
of it he was eminent, perhaps more so than any individual in
the neighboring towns. I mean in obstetrics. In cases of this
sort he was often sent for into the -neighboring towns, and
I remember that on several occasions, Dr. Holyoke, then very
eminent in the same branch, was in the habit of requiring his
presence and assistance in difficult cases.
But what I delight to dwell on with most sincere satisfaction, is my father's domestic character. He was one of the
most amiable men I ever knew; kind and indulgent to his
children,.partaking of all their pleasures, and busy in promoting their innocent amusements. His home was full of cheerfulness. No one came there who did not receive a hearty
welcome; no one departed without feeling as if leaving a
home. He was liberal, ~charitable, and full.of sympathy for
the poor and afflicted. There was so:much of gentleness
about him, that his children felt him to be more of a companion than of a parent. His temper was very uniform, and
almost an unclouded sunshine. I do not remember more than
once in my whole life that he was angry with me. I have
forgotten the -occasion, but I know that I was quite in the
wrong. I have heard him often say that his temper was naturally hasty and irascible; but that he had by perseverance
and attention obtained the mastery over it. And he gave me




AUTOBIOGRAPHY.                  5
very strong advice with parental tenderness to acquire a like
mastery by the same method. I hope I have profited by that
advice. I am sure that his recommendation was founded in
a just observation of our power over ourselves.
I remember, that on Thanksgiving, Christmas, and New
Year, my father was in the habit of joining in all the merriment and sports of his children. On some of those occasions
he usually played blind-man's-buff with us, and he was really
the most adroit of all the company in escaping detection.
The last time he ever played with us in this manner, he could
not have been far from fifty-five years of age; and upon the
close of it, he said, in a manner which affected us all nearly
to tears: " My children, this is the last time I shall ever play
with you in this game." The remark struck us dumb; and for
a few minutes we were wrapt in melancholy.
My father was a religious man, liberal and charitable in
all his views. He was an Arminian in principle. My uncle,
who was the minister of the church to which he belonged, was
a warm, and indeed, over-zealous Calvinist. Between him
and my father there were often disputes on the points of their
faith, but these occasioned no alienation. One of the earliest
impressions that I have, is of a conversation in which he spoke
with great kindness and charity of the Roman Catholics,
among whom he said there were many pious and excellent
men. I was too young at the time to know who Roman
Catholics were, or what was their creed. But toleration of
Popery was at that time almost a deadly sin among the good
old Calvinistic Puritans, and I honored his opinion the more,
because it formed such a contrast to that of others who were
about him. I trace back to this source my early and constant
hatred of religious persecution, and my love, my inextinguishable love of freedom of opinion and inquiry in matters of religion. They have now become the guiding maxims of my life.'My father was for the last fifteen years of his life accustomed to have family prayers in the morning and evening.
On Sunday, after the public afternoon service was over, all




6              MISCELLANEOUS WRITINGS.
the family, including the servants, were assembled in one
room, and he then read a printed sermon of some English
divine, and concluded the day with reading a portion of
the New Testament, and with prayer. I still remember
those meetings with great pleasure. My father read with
remarkable clearness and propriety, and it was a treat to sit
under him, while he gave us specimens of the best eloquence
of popular divines. The flexible tones of his voice, the graceful modulation, the animated zeal, and the patriarchal simplicity of his utterance on those occasions, gave me a taste for
serious reading and touching eloquence, which turned my
thoughts even in youth to the sober realities of life. I am
sure that I was greatly a gainer by those domestic services.
And when in after life I read Burns's beautiful poem of the
Cotter's Saturday Night, I felt, a thousand times, that it portrayed scenes familiar to my thoughts and dear to my recollections.
I have many reasons to believe that I was somewhat
of a favorite with my father from an early period. He
gave me his confidence while I was yet a boy, and talked
to me of his business and his situation in a manner belonging to persons of mature years and reflection. I was
sensible of the value of this confidence, and retained it
through his whole life. Peace to the memory of so good a
man. It is still very dear to the aged inhabitants of my
native town, among whom he enjoyed a singular and enviable respect and attachment. He was among them a general
favorite, and often performed the truly important office of
peacemaker and restorer of broken friendships and family
harmony.
Marblehead is, as you know, a secluded fishing town, and
having no general connection with other towns, it has not, as
a thoroughfare, much of that intercourse which brings strangers to visit it, or to form an acquaintance with its inhabitants. When I was young there were many discouragements
under which it was laboring. Its whole business was annihi



AUTOBIOGRAPHY.                  7
lated during the Revolutionary war. Many of its inhabitants
entered the army and navy or served on board of privateers;
and from the various calamities incident to such situations,
the close of that war found the town with upwards of nine
hundred widows whose husbands had perished in the contest.
It was greatly impoverished, and indeed in my earliest recollection seemed struck with a premature and apparently irretrievable decline. The general poverty, combined with other
circumstances, made the resources of education narrow; and
few books were to be found, and few scholars were nurtured
on its rocky shores.
The inhabitants of a town so situated, and especially of a
town almost wholly engaged in the fisheries, whose voyages
began and ended in the same port, and whose occupation
when abroad is in sounding the depth of the ocean, and
drawing their lines upon the stormy waves of the Banks of
Newfoundland, have little variety in their thoughts or conversation. Their lives have few incidents but those perilous adventures which everywhere belong to a seafaring life.
Their habits are necessarily plain, their morals pure, and
their manners, if not rough, at least generally unpolished and
unpretending. Their very equality of condition as well as
uniformity of pursuit bring them all into the same circle, and
there is little room for the pride of scholarship, or the triumph
of superior knowledge.
The people of Marblehead are a peculiar race; and as
utterly unlike their neighbors as though they belonged to
another age or country.  The lines of their character are
perhaps a little less marked than formerly, from their wider
intercourse in later years with other places, but still they are
deep and permanent, strong and full of meaning.  They
are a generous, brave, humane, honest, straightforward people; sagacious in their own affairs, but not wise beyond
them; confiding and unsuspecting; hospitable by nature,
though stinted in means; with a love of home scarcely paralleled, and an indifference to the show and splendor of




8              MISCELLANEOUS WRITINGS.
wealth, which cannot easily be imagined; frugal and laborious; content with their ordinary means, neither rejecting
learning nor over anxious for its attainment. The very rocks
of their shores, the very barrenness of the strand on which
their buildings rest, the very scantiness of the mother soil on
which they were born, and in which they expect to lie buried
when they are dead, have to them an indescribable charm.
They love it with an intensity of interest which neither time
nor distance can control. They seem perpetually to exclaim,
" This is my own, my native land."
It was among these people that I passed my early days;
and as my father was the physician of a very large number
of their families, I was familiar with them all from my
youth. And if at any time in my life you have seen me
sympathize with the poor, the lowly, the humble, and the unfortunate, depend upon it I learned the first lessons of charity
in my father's house, and from my daily participation in the
feelings and wants of those who were my daily associates.
From the circumstances to which I have above alluded,
you will readily understand that, in my early days, I gathered
very little from general society, or even from books, to stimulate my ambition or awaken my curiosity. I was, therefore,
left very much to my own thoughts and amusements. My
delight was to roam over the narrow and rude territory of
my native town; to traverse its secluded beaches and its shallow inlets; to gaze upon the sleepless ocean; to lay myself
down on the sunny rocks and listen to the deep tones of the
rising and the falling tide; to look abroad, when the foaming
waves were driven with terrific force and uproar against the
barren cliffs or the rocky promontories, which everywhere opposed their immovable fronts to resist them; to seek, in the
midst of the tremendous majesty of an eastern storm, some
elevated spot where, in security, I could mark the mountain
billow break upon the distant shore, or dash its broken waters
over the lofty rocks which here and there stood along the
coast naked and weather-beaten.  But still more was I




AUTOBIOGRAPHY.                  9
pleased, in a calm summer day, to lay myself down alone
on one of the beautiful heights which overlook the harbor of
Salem, and to listen to the broken sounds of the hammers in
the distant ship yards, or to the soft dash of the oar of some
swift moving boat, or to the soft ripple of the murmuring
wave; or to gaze on the swelling sail, or the flying bird, or
the scarcely moving smoke, in a reverie of delicious indolence.
The establishment of an academy in the town was quite
an era, and gave a new turn to my thoughts and occupations.
I was among the earliest scholars that belonged to it; and
began there to learn the rudiments of Latin and Greek. It
was for a considerable time under the superintendence of the
Rev. William Harris, who was afterwards President of Columbia College, in New York. It was at this school that I
first became acquainted with those admirable works, Dr.
Vicesimus Knox's Elegant Extracts in.Prose and Verse, an
epitome of which was used daily in the exercises, and the
large works were occasionally resorted to. To this source I
trace back my earliest knowledge of English Literature, and
my inextinguishable love of the writings of the great masters
of that literature in former times. The public are almost
overwhelmed by the inundation of school books in our day;
but notwithstanding all our boasted improvements, there are
not, in my opinion, any works so well adapted to cultivate a
pure and elegant taste, and so full of excellent instruction
as these. We are impatient of the old, and forever on the
search for the new; and therefore Knox's compilations are
now scarcely known beyond the shelves of some library
formed in other days, and are deemed too antiquated for the
march of modern intellect.
At school, I was diligent and ambitious, my natural ternperament being cheerful, and my activity in athletic exercises
great. I was generally among the foremost in our sports,
and selected, if not for superior skill, at least for promptitude
and strength. It is somewhat singular, however, that though




10             MISCELLANEOUS WRITINGS.
I had a good deal of the vivacity of youth, I was much
given to private and contemplative reading. I had been bred
up in a church, which inclined strongly to Calvinism, and my
uncle (who, as I have stated, was the minister of it,) was
much inclined in his preaching to dwell on the terrors of the
law, upon man's depravity, and eternal torments; and he felt
no scruple in mentioning hell, even to ears polite. My earliest impressions, therefore, of God were those of terror, and
not of love - of awe, but not of filial affection; and in my
secret devotions I approached him as a being whom I was to
propitiate, rather than a parent of whom I was to ask blessings. My thoughts were on this account often gloomy; and
I know not how it happened, but so the fact was, that topics
respecting death, and the grave, and eternity, became more
familiar with my thoughts than any other. I owned a little
pocket volume of Young's Night Thoughts, which I used to
carry about in my solitary rambles, and read with intense
interest, I should not say with pleasure, for it was rather
darkness visible.
My native town, like all other fishing towns, as I believe,
was full of all sorts of superstitions; ghosts, hobgoblins,
will-o'-wisps, apparitions, and premonitions were the common, I might almost say the universal subject of belief;
and numberless were the stories of haunted houses, and
wandering spirits, and murdered ghosts, that were told at
the fire-side, and filled my imagination with all sorts of preternatural fears. It is to this circumstance that I principally
owe my strong love of the marvellous in novels, and that I
yet read with delight the Romances of Mrs. Radcliffe, which
always appear to me to be realities with which I have been
long familiar.
There is one circumstance connected with my studies at
the Marblehead Academy, which has probably given a turn
to my thoughts which you may easily trace. Girls as well
as Boys went to the same school at the same hours, and
were arranged on opposite sides of a large hall in their ap



AUTOBIOGRAPHY.                   11
propriate forms. In the simplicity of those days, it was not
thought necessary to separate the sexes in their studies.
Generally we studied the same books, and as we recited our
lessons in the presence of each other, there was a mutual
pride to do our best, and to gain an honest portion of flattery
or of praise. I was early struck with the flexibility, activity,
and power of the female mind. Girls of the same age were
on an average of numbers quite our equals in their studies
and acquirements, and had a much greater quickness of perception and delicacy of feeling than the boys. Remaining
thus at school with them until I was about fifteen years old, I
could not be mistaken as to their powers; and I then imbibed
the opinion, which I have never since changed, that their
talents are generally equal to those of men, though there are
shades of difference in the character of their minds resulting
from several causes. Mly impression is, that the principal
difference in intellectual power, which is marked in after
days, results not so much from their original inferiority of
mind, as from the fact that education stops with females
almost at the time it effectively begins with men; and that
neither their habits nor pursuits in life enable them  afterwards to cultivate science or literature with much diligence
or success. They have no professions which constantly require, and constantly encourage them to master new sources
of knowledge.
Just as I was fifteen years of age, in the autumn of 1794,
an event occurred, which had some influence upon my character and destiny. I was preparing to enter Harvard College
the next year, and having mastered the usual preparatory
studies in Latin, and that most discouraging book, the Westminster Greek Grammar, I was beginning to study the Gospel of John, with a view to make an easy transition into
Greek. Some boyish affair, I have quite forgotten what, induced me to chastise a lad belonging to the school, who
boarded with my instructor, and this reaching the ears of the
atter, he determined, under another pretence, to seek an occa



`12             MISCELLANEOUS WRITINGS.
sion in school to punish me for the transaction. It is very
easy to find such an occasion when we are determined on it.
Some very slight peccadillo occurred on my part. I was,
called up in the presence of the whole school and beaten very
severely with a ferule on my hands. I bore it without shrinking, and submitted without resistance, being at that time too
old to cry like a little boy, and having some pride to meet the
punishment manfully. The schoolmaster was a man of violent and irascible temper when aroused, and seeing my calmness and firmness lie struck me in his rage, I believe, as
many as a hundred blows on my hands, until the agony was
so great that I could no longer restrain myself from crying
aloud. I was then ordered to my seat, and remained there
suffering much pain until the school was dismissed. I never
can think of this brutal and coarse treatment by this man,
who was a clergyman, without a feeling of resentment and
disgust. A few years after, when I had arrived at manhood,
he took occasion to express his regret at the transaction, his
consciousness, that he was in the wrong, and my total guiltlessness of any thing to justify the punishment. He admitted
that it was a retaliation for the chastisement I had inflicted
on his boarder, and that his passions had carried him beyond
the bounds of moderation. I forgave him, heartily forgave
him. But though in other respects a deserving man, I never
desired to have any communion with him beyond the mere
formalities of common respect.
With the approbation of my father, I immediately left the
academy. But it was a case full of embarrassment. There
was no other school in the town in which the learned languages were taught; and with so large a family the expenses
attendant upon an education at a distance were not to be
overlooked.  Fortunately, the principal town schoolmaster
(whom I shall always remember with gratitude and respect)
was acquainted with Latin, and the Greek of the New Testament, and he undertook to superintend my studies in those
languages in the common books. It was in the autumn, and




AUTOBIOGRAPHY.                 13
I formed the sudden resolution to prepare myself so as to
be offered for admission at Harvard College in the ensuing
January vacation as a Freshman. To do this was no small
labor, and required extraordinary diligence and exertion.
My master had not much time to assist me, and undertook
little beyond merely hearing my recitations. My pride was
roused, and my ambition stimulated. I determined to go
through the labor; and though I was then but just in the
beginning of Greek, and had considerable in Latin as well as
in other departments to master, I was not discouraged. In
the course of two short months, I had not only gone over all
these studies with care, but I had several times reviewed
them, and I felt confident that I could pass the necessary
examinations.
Accordingly, just as the winter vacation was about to
commence, (it was then a vacation of six weeks) I was taken
by my uncle to Cambridge for examination, and I felt the
flush of hope play on my cheeks. Great was my disappointment upon being told by the president on my arrival there,
that I must be examined, not merely in the previous preparatory studies, but in all the studies which the freshman
class had been pursuing for the last six months. I was completely overwhelmed. I was dumb, disconsolate, and mortified. In one moment, at a single blow, all my hopes were
demolished and my labors lost.  I scarcely spoke a word
during my whole homeward journey. My uncle, however,
had taken the precaution to ascertain to what extent the class
had gone, and what were the books which I must study.
I returned home in great dejection. My father asked me
what I intended to do? I replied, after some hesitation, that
there were six weeks of vacation, and if he pleased, I would try
to fit myself in that period for examination in the prescribed
studies. I told him I could but fail, and if so, I must wait
patiently until the next commencement. I went to bed, and
got up the next morning with a determination to go on. All
the books were obtained that day, by purchase or borrowing.
2




14             MISCELLANEOUS WRITINGS.
But here a new difficulty presented itself. I had no knowledge of the Greek dialects, and unluckily my master was in
the same predicament; while the Iliad (which was one of
the books to be studied) was full of them. All he could promise was, that he would hear me recite in Homer as well as he
could. But he promised no aid in mastering these difficulties.
My task was now before me. I have a distinct recollection of the main parts. Sallust was to be read through, the
Odes of Horace, two books of Livy, three books, I think, of
Xenophon's Anabasis, and two books of Homer's Iliad, besides English Grammar and Rhetoric, and, I think, Logic, and
some other studies. I sat down boldly to the task, reciting
every morning five lessons, which I mastered during the preceding evening, and five or six more in the course of the day.
It was intense labor, but I found no great difficulty except in
Homer. The dialects puzzled me exceedingly, and my treacherous memory failed in preserving them accurately, so that I
was often obliged to go over the same ground. For my first
lesson in Homer I got five lines well; for my second, ten; for
my third fifteen; and then the mystery dissolved apace. In
the course of the first three weeks I had gone through all the
requisite studies. I could look back upon my past labors
with the silent consciousness of victory. There is nothing
to a young mind, unaccustomed to the exercise of its powers,
so gratifying as this. The hero who conquers in battle,
the orator who triumphs in the senate or the forum, feels
not a more intense delight, than the youth first perceiving,
that though born of the dust he is not altogether' earth, but
that there is something within him of an ethereal and intellectual nature. The remaining three weeks I passed in reviewing all these studies, which I did in the most difficult, more
than once, and could say without a boast, at the end of the
time, that I could go through two hundred lines of Homer at
a recitation. At the end of the vacation I was.again offered
for examination, and without difficulty obtained my matriculation.




AUTOBIOGRAPHY.                 15
I have forgotten to mention a circumstance which occurred at an earlier period of my life, and which had wellnigh
proved fatal to me. I slept in a small chamber over the front
entry of my father's house, and the bed had curtains to it. I
went to bed at my usual hour, and set the candle on a
chest, which was at the bottom of the bed, and so near that it
touched it. From carelessness, I placed the candle close by
the curtains, and being very sleepy I forgot to put it out. By
some accident it afterwards fell over and the curtains and bed
caught fire. I was asleep. The family were not yet retired
to rest. My door was shut; but my mother, sitting in a distant room, smelt something burning. Immediate search was
made in that room and in those adjoining, but nothing was
found. It then occurred to her that I had gone to bed about
half an hour before with a light, and she instantly exclaimed,
that it must be in my chamber. My father ran up over one
flight of stairs, and my mother over another.  My father
arrived first, opened the door, and the smoke was so intense
and suffocating that he fell back breathless. My mother at
this moment arrived, rushed in, and with that intrepidity
and presence of mind which never desert a woman on such
occasions, she caught me from the blazing clothes and carried me down stairs in her arms. I was not sensible of any
thing until I was below, and then found myself in my rnother's arms. She was very severely burnt. I suppose that
I was nearly suffocated when I was seized. The fire was
stopped, and thus my life, when in the most imminent
jeopardy, was saved. This admonition was sufficient to
guard me at all times from indulging in that most dangerous
practice of reading by candle-light in bed.
My entrance into Harvard College gave an entirely new
course to my thoughts. Every thing was new to me. I
seemed to breathe a higher atmosphere, and to look abroad
with a wider vision and more comprehensive powers. Instead of the narrow group of a village, I was suddenly
brought into a large circle of young men engaged in literary




16              MISCELLANEOUS WRITINGS.
pursuits, and warmed and cheered by the hopes of future
eminence.
It was a considerable time, however, before I could acquire
any familiar acquaintance with my classmates. One of the
disadvantages of entering at an advanced standing is, that
the associations of your class are already selected and fixed;
and that you enter as a mere stranger, without rights and
without sympathy. Your rank is not fixed; your scholarship is not known; your character is not ascertained; and
you are viewed with a coldness and reserve peculiarly painful
to the frankness of youth. I had the good fortune to chum
with a young man who saw my embarrassment and gave me
a kind welcome. From the first moment of my acquaintance up to this hour there has been a most unreserved friendship between us. Not a shadow has ever obscured it; not
a chill has ever passed over it. I owe him much. He is one
of the best and worthiest of men, and the lapse of thirty-five
years enables me now to speak of him as a bosom friend, in
whom I repose unlimited confidence and to whom I owe
much of the truest happiness of life. May God preserve the
blessing to me even to the close of my life.
Of course, on entering my class, I had no rank, and therefore silently stood at the fag-end of it. It was for me to
prove that I had a title to a better place in the estimate of
my judges, who were also my peers. It was some time before my classmates were inclined to form a favorable judgment, but by degrees I began to rise, and before I left college
I had attained a high rank (it is not for me to say how high)
for scholarship. Indeed, I was most thoroughly devoted to
all the college studies, and scarcely wasted a single moment
in idleness. I trace back to this cause a serious injury to my
health. When I entered college I was very robust and muscular, but before I left I had become pale and feeble and was
inclining to dyspepsia.
From my early years I had an inclination for poetry. I
wrote verses, when I was not more than twelve years old,




AUTOBIOGRAPHY.                 17
though I cannot say with Pope, " I lisped in numbers, for the
numbers came." On the contrary, it was an exercise of skill
with me, not as I imagine very successful or very attractive. One of my earliest efforts in college was a translation
of an ode of Horace; of which I have now no other remembrance, than that it was thought well of by those about
me.  I received the usual rewards of good scholarship at
the public exhibitions; delivering a poem at one exhibition, and a mathematical exercise at another in my senior
year; and at the commencement at which I was graduated, I
delivered the poem immediately before the closing English
oration. It was received with much applause; but I burned
it with some other early efforts a few years afterwards; and
my memory retains no traces of it.
My college life was to me very delightful as well as instructive. I there formed several intimate friendships, which
have been continued with unabated sincerity down to the
present day. I believe that those friendships were highly
useful to me, not merely as sources of private gratification
and social intercourse; but they gave a vigor to my moral
feelings, and strengthened those religious impressions of duty
and those sentiments of honor, which are so important at the
critical moment when a lad is passing from the feverish
restlessness and unbridled passions of youth to the verge
of manhood.  I have some pride in saying, that I passed
through this dangerous period, without a stain or reproach.
I quitted college with regret; and shed many bitter tears in
parting from scenes which I could never revisit with the
same familiar pleasure, and classmates, whom in the future
I could never expect to see again gathered in the same
groups, with the buoyancy of hope, and the vivacity of unsuspecting confidence about them. I have never since read
Gray's beautiful Ode on a Distant View of Eton College,
without having my thoughts called back to the associations
of those days with a deep and saddened feeling. I am now
again an inhabitant of Cambridge; and I never pass the
2*




18             MISCELLANEOUS WRITINGS.
walls within which I spent so many happy hours, without
a mixed sensation of tenderness and melancholy; for they
speak to me in the voice of departed times, " departed never
to return," and in the spirit of admonition of the sad inroads
made by death among those who then graced its halls and
guided the instructions of our Alma Mater.
Upon quitting college I returned to Marblehead, and began
the study of law, under Mr. Samuel Sewall, then a distinguished counsellor at the bar, and a member of Congress,
and afterwards a Judge, and finally Chief Justice of the
Supreme Court of Massachusetts. With him I remained
until his appointment as a Judge; and in December, 1801, I
entered the office of Mr. Putnam, now Mr. Justice Putnam,
in Salem, with whom I completed my preparatory studies,
and was admitted to the bar at July term of the Common
Pleas in Essex County, 1801.
From the causes to which I have already alluded, during
my professional studies in Mr. Sewall's office, I was left very
much alone, and with no literary associate in my native
town. I was driven, therefore, back upon my own resources,
and I not unfrequently devoted for months more than fourteen hours a day to study. Mr. Sewall's absence in Congress for about half the year also was a serious disadvantage
to me, for I had no opportunity to ask for any explanation
of difficulties, and no cheering encouragement to light up the
dark and intricate paths of the law.
Beginning my studies in this recluse and solitary manner,
I confess that I deeply felt the truth of Spelman's remarks,
when he was sent to the Inns of Court for a similar purpose; my heart, like his, sunk within me, and I was tempted
several times to give up the science from the firm belief that I
could never master it. The case was very different then from
what it is now, in respect both to the plan of studies and the
facilities to acquire the elements. Then there were few elementary books; now the profession is inundated with them.
Then the student, after reading that most elegant of all




AUTOBIOGRAPHY.                 19
commentaries, Mr. Justice Blackstone's work, was hurried at
once into the intricate, crabbed, and obsolete learning of
Coke on Littleton. Now there are many elementary works
which smooth the path towards the study of this great master of the Common Law. Then, there were scarcely any
American Reports (for the whole number did not exceed five
or six volumes) to enable the student to apply the learning
of the Common Law to his own country, or to distinguish
what was in force here, from what was not. Now, our shelves
are crowded with hundreds.
Hitherto my pursuits had been wholly of a literary and
classical character. I loved literature, and indulged freely
in almost every variety of it to which I had access, from the
profound writings of the great historians, metaphysicians,
scholars, and divines, down to the lightest fiction, the enticing novel, the still more enticing romance, and the endless
pageantries and imaginings of poetry.  You may judge,
then, how I was surprised and startled on opening works
where nothing was presented but dry and technical principles, the dark and mysterious elements of the feudal system,
the subtle refinements and intricacies of the middle ages of
the Common Law, and the repulsive and almost unintelligible
forms of processes and pleadings, for the most part wrapped
up in black-letter, or in dusty folios. To me the task seemed
Herculean. I should have quitted it in despair, if I had
known whither to turn my footsteps, and to earn a support.
My father had often told me, in the sincerity of his affection,
that he should leave little property; that the most I could
expect would be my education; and that I must earn my
livelihood by my own labors. I felt the truth of the admonition; and it was perpetually whispered into my secret soul
whenever I felt the overpowering influence of any discouragement.  My destiny was to earn my bread by the sweat
of my brow; and I must meet it or perish.
I shall never forget the time, when having read through
Blackstone's Commentaries, Mr. Sewall, on his departure for




20              MISCELLANEOUS WRITINGS.
Washington, directed me next to read Coke on Littleton, as
the appropriate succeeding study. It was a very large folio,
with Hargrave and Butler's notes, which I was required to
read also. Soon after his departure, I took it up, and after
trying it day after day with very little success, I sat myself
down and wept bitterly. My tears dropped upon the book,
and stained its pages. It was but a momentary irresolution.
I went on and on, and began at last to see daylight, ay, and
to feel that I could comprehend and reason upon the text
and the comments. When I had completed the reading of
this most formidable work, I felt that I breathed a purer air,
and that I had acquired a new power. The critical period
was passed; I no longer hesitated. I pressed on to the severe
study of special pleading, and by repeated perusals of Saunders's Reports, acquired such a decided relish for this branch
of my profession, that it became for several years afterwards
my favorite pursuit. Even at this day I look back upon it
with a lingering fondness, although many years have elapsed
since I ceased to give it an exclusive attention. It is, in my
judgment, the best school for the discipline of an acute and
solid lawyer.  While in Mr. Sewall's office, I also read
through that deep and admirable work upon one of the most
intricate titles of the law, Fearne on Contingent Remainders
and Executory Devises, and I made a manuscript abstract of
all its principles. I am not quite sure that it may not yet be
found among my manuscripts.
Upon my admission to the bar I was at a loss where to
open an office, and indeed sat down in Salem, rather because
I knew not where to go, than because I thought there was
any real prospect of success. To young men with my political opinions the times were very discouraging. My father
was a Republican, as contradistinguished from a Federalist,
and I had naturally imbibed the same opinions. In Massachusetts, at that period, an immense majority of the people
were Federalists.  All the offices (with scarcely an exception,
I believe,) were held by Federalists.  The governor, the




AUTOBIOGRAPHY.                 21
judges, the legislature, were ardent in the same cause. It
cannot be disguised, too, that a great preponderance of the
wealth, the rank, the talent, and the civil and literary character of the state, was in the same scale. Almost all the profession of the law were of the party. I scarcely remember
more than four or five lawyers in the whole state, who dared
avow themselves Republicans. The very name was odious,
and offensive epithets (such as Jacobins) were familiarly
applied to them.  The great struggle was just over between Mr. Jefferson and Mr. Adams, and the former had
been chosen to the Presidency. The contest had been carried on with great heat and bitterness; and the defeated
party, strong at home, though not in the nation, was stimulated by resentment, and by the hope of a future triumph.
Under such circumstances, there was a dreadful spirit of persecution abroad.  The intercourse of families was broken
up, and the most painful feuds were generated. Salem was
a marked battle ground for political controversies, and for
violent struggles of the parties. The Republican party was
at first very small there; and its gradual growth and increasing strength, so far from mitigating, added fuel to the flame.
Such was the state of things at the time when I came to
the bar. All the lawyers and all the judges in the county of
Essex were Federalists, and I was the first who was obtruded
upon it as a political heretic. I was not a little discouraged
by this circumstance, and contemplated a removal as soon as
I could find a better position or prospect elsewhere. For
some time I felt the coldness and estrangement resulting
from this known diversity of opinion; and taking, as I did,
a firm and decided part in politics, it was not at all wonderful that I should be left somewhat solitary at the bar. Gradually, however, to my surprise, business flowed in upon me;
and as I was most diligent and laborious in the discharge of
my professional duties, I began in a year or two to reap the
reward of my fidelity to my clients. From that time to the
close of my career at the bar, my business was constantly on




22             MISCELLANEOUS WRITINGS.
the increase, and at the time when I left it, my practice was
probably as extensive and as lucrative as that of any gentleman in the county. Indeed, I contemplated a removal to
Boston, as a wider sphere, in which I might act with more
success; and I was encouraged to this by retainers from that
city in very important causes.
Let me here do justice to a gentleman, whom I have
always respected with the most unfeigned sincerity. I have
spoken of my peculiar situation at the bar, by which I do
not mean that I was treated by any one with harshness or
unkindness; far from it. But I was solitary in my political
opinions, and therefore in a good measure excluded from
those intimacies, which warm and cheer the intercourse of
the profession. I wish to speak of one then very eminent
at the bar, and still, I thank God, living in the maturity of
his reputation. I mean Mr. William Prescott. He was a
decided Federalist, and at all times one of the ablest and
most accomplished of the Federal leaders. A man of more
chivalric honor, of more probity, sound sense, and discretion, I scarcely know. From the moment I came to the bar,
he treated me with unhesitating kindness and respect; and
when such occurrences were rare from other quarters, I constantly received from him invitations to the parties at his
house, as if I belonged to the circle of his own friends. This
was kindness when it was useful, and when it was felt, and
when, to say the least, it would in public estimation, have
been quite as much to his advantage, if he had abstained
from such civilities. I have never since ceased to remember
this unsought and unbought token of his respect. And I
have never since had occasion, even in the bitterest periods of
party spirit, to know any diminution of his regard or friendship. It is my pride to count him among those choice friends,
whose regard would flatter my pride, and whose censure
would infuse the most serious doubts into the estimate of my
own conduct.
And this reminds me of another not unimportant circum



AUTOBIOGRAPHY.                 23
stance in my professional life. I had not been more than
three or four years at the bar, when I was engaged as junior
counsel in an insurance cause then pending in the Superior
Court of New Hampshire. This was an unexpected honor,
and I gladly embraced the retainer. I accordingly went to
New Hampshire at the term when the cause was to be tried,
having prepared myself as well as I could upon a subject
with which my professional experience had as yet furnished
me with few practical materials. I there had the pleasure of
becoming acquainted with Mr. Jeremiah Mason, then the
most eminent counsellor at the bar of New Hampshire, and
still maintaining, with undiminished reputation, that proud
eminence. He is, as every one acquainted with him knows,
a laborious, acute, learned, sagacious, and accurate lawyer,
whose mind is capable of the highest reaches of reasoning,
and whose comprehensiveness of view rarely leaves any
thing untouched or unseen, belonging to the subject which
he investigates. HIe and another distinguished gentleman
were our adversaries, and we had the advantage of being for
the plaintiff, and of course the right to open and close the
cause. My leader I knew little of, but understood that he
was ingenious and eloquent, and the cause had many materials for a display of this sort; for one of the vital questions
was, whether there had been a fraudulent concealment of the
loss before the insurance was effected; and upon the facts, it
turned on the nice consideration, whether a letter coming by
the mail was received on the day when the insurance was
made, or on the succeeding day. Behind this, there were
some difficult questions of law in respect to the liability for
the loss. It was not until the day before the trial was to
take place, that from causes, which it is unnecessary to mention, my leader declined the task, and left me alone in the
cause under circumstances of the greatest embarrassment.
A stripling, as I was, I had not the rashness to encounter
such fearful odds. But it was too late to engage new counsel, and the only alternative was to consent to a verdict




24             MISCELLANEOUS WRITINGS.
against my client, and take the then common remedy of a
review or second trial, or to go on and lose the verdict after
a struggle for victory. My client's reputation being at stake
(and he was a gentleman of fair character) he thought the
former course would cast an imputation upon it, and he
insisted, against all my remonstrances, upon going on. I
yielded, sensible of the rashness of the undertaking, and,
ambitious as I was, still too sensible of my own deficiencies
to hope for victory in such a struggle. By great good fortune, for I ought not to call it skill, I succeeded. This
achievement gave me considerable eclat, and I was immediately retained in other causes, and for four or five years
afterwards, I continued to practise at the Superior Court of
New Hampshire, Rockingham County, with unabated reputation; and then left it, because my home business rendered
such absences inconvenient.
But to conclude my story. The cause in which I was
successful was tried again upon what is called a review in the
local practice. Not choosing to hazard the little I had gained,
I made an express stipulation with my client that other counsel should be engaged for the next trial to act as leader. But
when the cause at the next term came on for trial, I was
astonished to find, that instead of elder counsel, my juniors
only were retained. There seemed to be a recklessness of
consequences, and a confidence in results in this proceeding,
which both alarmed and mortified me; and my fears were excited to a greater height, when, on entering the court, I found
that Mr. Dexter, of Boston, then at the head of the Massachusetts Bar, and truly princeps inter pares, was to assist Mr.
Mason on the other side. I utterly refused to go on; and
made a motion for a continuance to the next term, alleging
the facts in vindication of it. The motion was overruled;
but the court thought I was entitled to the poor indulgence of
two days delay to send to Massachusetts for other counsel.
A messenger was accordingly despatched for Mr. Prescott,
and on returning brought the information, that he was then




AUTOBIOGRAPHY.                 25
engaged in a cause at Boston, and that it was impossible
to procure his aid. This was on the evening before the day
assigned for trial. I was now in utter despondency, and peremptorily declined doing any thing in the cause. My client
was an aged man, and wept bitterly, and entreated me not
to desert him, assuring me that if with such odds against
me I lost the cause, he should be satisfied with my efforts.
His tears and entreaties at last brought me over. I moved a
second postponement and failed. The cause came on, and I
told the real tale of my misfortunes to the jury. I was contending against talents, learning, character, experience, against
my will, and conscious of my inability. I asked their indulgence, and I demanded the patient protection of the court.
The cause went on, and as might be expected, my learned
opponents brought a weight of eloquence and argument,
which seemed destined to crush me. Fortunately, I had the
reply; and being as well prepared on the law as I could be, I
spoke to the matter firmly and closely, with all the vigor I
could command, and all the sincerity which I felt. I was
again victorious. The jury, rather against the charge of the
court, found a verdict in my favor. I have ever thought that
the jury felt some sympathy for me in this embarrassed situation and listened to my appeals, as one strong in faith, however wanting in professional skill. My argument, I believe,
was thought well of by the bar. At all events, it was a
feather in my cap. I learned, indeed, on this occasion, that
the race is not always to the swift, nor the battle to the
strong, nor yet favor to men of skill; but that time and
chance happen unto them all.
I have dwelt longer on this circumstance than I intended:
but as it had some influence on my professional career, I
thought it might not be uninteresting to you. From that
period I was honored with the friendship of Mr. Mason, and
that friendship has continued with unabated confidence and
cordiality down to the present hour.
In December, 1804, I was married to Miss Mary Lynde
3




26             MISCELLANEOUS WRITINGS.
Fitch Oliver, the daughter of the Rev. Thomas F. Oliver,
then deceased, (who was the son of the Hon. Andrew Oliver,)
and of Mrs. Sarah Oliver, his wife, who was the daughter of
William Pynchon, Esq., an eminent ante-revolutionary lawyer. I will not speak to you of this marriage, from which
I anticipated so much happiness. Miss Oliver, at the time
of our marriage, was about twenty-two years of age, was
an elegant and accomplished woman, full of fine sense, and
interesting in her person and manners; most persons would
have called her beautiful.  We were married but a short
time; she was taken suddenly ill and died, after a very
short sickness on the 22d of June, 1805. This blow I felt
with great severity at the time, and it quite unmanned me.
It was soon followed by another which completed the prostration of my dearest hopes.  My father died within two
months afterwards, (in August, 1805.) I never look back
upon this period of my life without feeling a sense of desolation. It left a dark and melancholy train of thoughts behind.
I was new to sorrow, full of hope and ambition, with an
ardent enthusiasm, and, perhaps, an almost romantic wildness of imagination. All my hopes were at once cut down
and crushed. I remained for a long time like one in a painful dream, and there ever since has been at times on my
mind a cloud of gloom, which sorrow, probably, always
gathers, and which even the very sunshine of life does not
wholly dissolve.
It was in this year, 1805, that I was first elected a member
of the Legislature of Massachusetts, as a representative from
Salem. I was annually rechosen until I was appointed to
my present judicial office at the close,of the year 1811. I
was at that time Speaker of the House, having been elected
to the station on the resignation of the Hon. Perez Morton,
when he was appointed Attorney-General of the State.
Of my legislative career I will say a few words. Though
I was a decided member of what was called the Republican
party, and of course a supporter of the administration of Mr.




AUTOBIOGRAPHY.                  27
Jefferson and Mr. Madison, you are not to imagine that I
was a mere slave to the opinions of either, or that I did not
exercise an independent judgment upon public affairs. The
Republican party then and at all other times embraced men
of very different views on many subjects. A Virginia Republican of that day, was very different from a Massachusetts Republican, and the anti-federal doctrines of the former
state then had and still have very little support or influence
in the latter State, notwithstanding a concurrence in political
action upon general subjects.  I was at all times a firm
believer in the doctrines of General Washington and an
admirer of his conduct, measures, and principles during his
whole administration, though they were to me mere matters of history. I read and examined his principles, and
have made them in a great measure the rule and guide
of my life. I was and always have been a lover, a devoted
lover, of the Constitution of the United States, and a friend
to the union of the States. I never wished to bring the
government to a mere confederacy of States; but to preserve the power of the General Government given by all the
States, in full exercise and sovereignty for the protection and
preservation of all the States. I never made any concealment
of these opinions, and on more than one public occasion I
avowed them with a firm and unfaltering explicitness, when
silence might perhaps have been deemed more prudent in
point of policy. I remember that on one occasion in particular, in the debate on the celebrated resolutions of Mr. Gore,
(afterwards Governor,) in 1808, it falling to my lot as a
leader in opposition to them to close the debate, I avowed
and vindicated my admiration of General Washington's
administration in an elaborate review of it.
While a member of the legislature, though I was quite
young, I was compelled, from causes to which I have already
alluded, to take an important part, and generally a leading
part, in every debate which brought the parties into conflict.
There were few Republican lawyers in the State, and but




28             MISCELLANEOUS WRITIN'GS.
few of them in the legislature; and in the Republican ranks,
the number of good speakers, or even of tolerable speakers, was small. I thus was pushed forward to a prominence
in debate, and in measures, which usually does not fall to
the share of a young man in the New England States. I
look back to that period of my life with some honest pride,
in recollecting that I was not betrayed into any departure
from a just moderation of conduct, though my party from
being a minority, in the progress of events, obtained a
triumphant possession of all the legislative and executive
departments. The odious measures of proscription and removals I steadily opposed, and the unjustifiable districting
the State into senatorial districts in 1812, which was one of
the causes that precipitated the fall of the Republicans from
power, I neither aided nor approved; and indeed I ceased to
belong to the legislature before it passed.
There is one measure, however, which I ought to mention,
because it in fact originated with me, and which without my
earnest and resolute support, against the wishes of my friends,
would not have passed. I refer to the Act of June, 1806,
which raised the salaries of the Judges of the Supreme
Court to $2400, and of the Chief Justice to $2500 per annum. Before that Act the salary was for the Chief Justice
$1250 (~375) and for the other Judges $11662, and the
Judges annually petitioned the legislature for an annual
grant, which was usually given, of about $600. This kept
them in a perpetual state of dependence upon the legislature,
and contributed in no small degree to the retardation of any
solid growth of our Jurisprudence. All the Judges of the
Supreme Court were Federalists; and this constituted with
many of my political friends a decided objection to the measure, as it gave independence to their enemies. I believed
the measure right; and stood forth as its advocate at a time
when it was unpopular even with many of our political opponents. It was carried. In June, 1809, finding that the salary
was still inadequate, and having learned from Mr. Chief Jus



AUTOBIOGRAPHY.                    29
tice Parsons (a most eminent and accomplished Judge) that
he should be compelled to resign unless it was raised, I
made another effort to procure an increase.  Whether I
moved the resolution for the Committee' or not, I do not
now remember. But the measure was mine; and a favorable
report having been made, in the subsequent debate I was left
by all those, who were its friends, to conduct, and, indeed, to
lead the debate. It encountered great opposition from several quarters, and I bore the brunt and burden of the day. It
was triumphant; and the salaries fixed by the Act of June,
1809, for the Chief Justice $3500, and for the associates
$3000, still remain the glory of my native State. The measure has secured to her the services of some of her ablest
lawyers; and in my humble judgment has contributed more
to give permanence to her institutions, dignity to her jurisprudence, and steadiness to her prosperity, than any one
single measure of the State during the last forty years.
This achievement, however, cost me some political friendships; and it was a long time before I recovered the popularity, which was lost by a measure so odious to some of the
Republican leaders of that day.
In the autumn of 1808 I was chosen a member of Congress
to fill the vacancy occasioned by the death of my honored and
lamented friend, Mr. Jacob Crowninshield, a man of excellent
understanding, of manly feeling, and incorruptible integrity.
I remained in Congress only during one session, (that of
1808-09,) and declined being a candidate for reelection.  I
have no reason to doubt that my reelection would have been
sure, for I was originally chosen without opposition; but considerations of prudence in reference to my profession induced
me to withdraw. Indeed I had been long satisfied that a
1 The Committee who reported the Act of June, 1806, were, -Messrs.
Story of S., Mr. Slocum, Mr. Wheaton of N., Mr. Kinsley, Mr. Parsons of
Chesterfield, Mr. Perry, and Mr. Mason of B. The Committee who reported
the Act of 1809, - Mr. Phelps of B., Mr. Foster of B., Mr. Story, Mr. Jackson, and Mr. Wheeler of Lanesborough. The names of the Committee will
at once show who were the supporters and opponents of the measure.




30              MISCELLANEOUS WRITINGS.
continuance in public life was incompatible with complete
success at the bar; and the few, though brilliant exceptions,
which I have since known to the truth of the remark, and the
many confirmations of it, have made me resolute at all times
in my advice to ambitious young lawyers never to seek public
life, if they mean to be eminent at the bar. Besides, I cannot disguise that I had lost my relish for political controversy,
and I found an entire obedience to party projects required
such constant sacrifices of opinion and feeling, that my solicitude was greatly increased to withdraw from  the field,
that I might devote myself with a singleness of heart to the
study of the law, which was at all times the object of my
admiration and almost exclusive devotion.
During my short career in Congress I did not take any
active part in the public measures. One proposition, however, I ventured to move; and as it forms a striking proof
of the mutations of party opinion, I will now refer to it.
Believing that we were approaching a state of things, which
would probably terminate in a war with England, and that
the unprotected situation of our commerce, and our want of
an effective navy, was an inducement to the continual aggressions of foreign powers, I was anxious for a gradual
increase of our naval establishment. I had pondered upon
the subject with a good deal of care, and had derived some
aid from the experience and knowledge of those most conversant with the subject, and I was led to believe that a force of
ten ships of the line, and of thirty frigates would, in a war
of defence, be an adequate protection to our coast.  I considered that Great Britain could not maintain a hostile fleet
on our coast, unless at nearly triple our expense, and triple
our force; that she must employ at least two squadrons, each
of which, to bar accidents, ought to be superior in point of
force to our whole armament; and one to relieve the other in
rotation, It occurred to me, that the expense of such large
fleets would be wholly disproportionate to any naval objects
which Great Britain could have in view for conquest or de



AUTOBIOGRAPHY.                  31
predations on our coast.  Under these impressions, I prepared a motion, which I offered on the fourth day of January,
1809, in the following words:"' That the committee, &c., be directed to inquire into the
expediency of increasing the naval establishment of the
United States, with leave to report by bill or otherwise."
I supported the motion in a speech of about an hour and
a half in length, with all the ability and resources I possessed; and, without attempting any flights of eloquence, endeavored to demonstrate the propriety of an inquiry into the
subject.  The proposition was virtually negatived, by an
almost universal vote of the Republican party in the House
to lay the same on the table, with an avowed determination
to defeat it. And some of the gentlemen who spoke in opposition to it, denounced the Navy, and did not hesitate to
say that my support of it was pure Federalism, and utterly
inconsistent with the known policy of the Republican party.
This, I well knew, was true at Washington; but it was not
true in respect to Republicanism in Massachusetts. On the
seaboard in that State, we were friendly to a naval establishment. Mr. Jefferson was believed to be hostile to such an
establishment; and the whole policy of the then administration was so notoriously against it, that I incurred no small
share of odium for broaching such a heretical project.  I
have lived to see the time when our gallant Navy, having
fought itself into favor, has become the idol of the nation,
and compelled many of its most strenuous opponents to avow
themselves friends. Yet its early and its true friends have
been forgotten, in the general eagerness to be enrolled among
its advocates, at a time when there is no longer any reproach,
except in being lukewarm in its praise. Such is the mutability of public opinion!
There is one other act of my brief career, which I notice,
only because it has furnished an occasion for a remark of
Mr. Jefferson in the recent posthumous publication of his
Correspondence, (4th vol. p. 148.) It was during the session




32            iMISCELLANEOUS WRITINGS.
of 1808 - 1809 that the embargo, unlimited in duration and
extent, was passed, at the instance of Mr. Jefferson, as a retaliatory measure upon England. It prostrated the whole commerce of America, and produced a degree of distress in the
New England States greater than that which followed upon
the war. I always thought that it was a measure of doubtful policy, but I sustained it, however, with all my little
influence for the purpose of giving it a fair experiment. A
year passed away, and the evils, which it inflicted upon ourselves, were daily increasing in magnitude and extent; and
in the mean time, our navigation being withdrawn from the
ocean, Great Britain was enjoying a triumphant monopoly
of the commerce of the world. Alive to the sufferings of
my fellow-citizens, and perceiving that their necessities were
driving them on to the most violent resistance of the measure, — and, indeed, to a degree which threatened the very
existence of the Union, — I became convinced of the necessity of abandoning it, and as soon as I arrived at Washingington I held free conversations with many distinguished
members of the Republican party on the subject, which were
soon followed up by consultations of a more public nature.
I found that as a measure of retaliation the system had not
only failed, but that Mr. Jefferson, from pride of opinion, as
well as from that visionary course of speculation, which often
misled his judgment, was resolutely bent upon maintaining
it at all hazards.  He professed a firm belief that Great
Britain would abandon her orders in council, if we persisted
in the embargo; and having no other scheme to offer in
case of the failure of this, he maintained in private conversation the indispensable necessity of closing the session of
congress without any attempt to limit the duration of the
system. The consequence of this would be an aggravation
for another year of all the evils which then were breaking
down New England. I felt that my duty to my.country
called on me for a strenuous effort to prevent such calamities. And I was persuaded that if the embargo was kept on




AUTOBIOGRAPHY.                   33
during the year, there would be an open disregard and resistance of the laws. I was unwearied, therefore, in my endeavors to impress other members of Congress with a sense of
our common dangers. Mr. Jefferson has imputed mainly to
me the repeal of the embargo, in a letter to which I have
already alluded, and has stigmatized me on this account
with the epithet of " pseudo-republican."  "Pseudo-republican," of course, I must be; as every one was in Mr. Jefferson's opinion, who dared to venture upon a doubt of his
infallibility. But Mr. Jefferson has forgotten to mention the
reiterated attempts made by him through a committee of his
particular adherents (Mr. Giles, Mr. Wilson, Mr. C. Nicholas,
and Mr. G. W. Campbell,) to detach me from my object.
In the course of those consultations, I learned the whole
policy of Mr. Jefferson; and was surprised as well as grieved
to find, that in the face of the clearest proofs of the failure of
his plan, he continued to hope against facts. Mr. Jefferson
has honored me by attributing to my influence the repeal of
the embargo. I freely admit that I did all I could to accomplish it, though I returned home before the act passed. The
very eagerness with which the repeal was supported by a
majority of the Republican party ought to have taught Mr.
Jefferson that it was already considered by them as a miserable and mischievous failure. It is not a little remarkable,
that many years afterwards, Mr. Jefferson took great credit
to himself for yielding up, sua sponte, this favorite measure,
to preserve, as he intimates, New England from open rebellion.1 What in me was almost a crime, became, it seems,
in him an extraordinary virtue. The truth is, that if the
measure had not been abandoned when it was, it would have
overturned the administration itself, and the Republican
party would have been driven from power by the indignation
of the people, goarded on to madness by their sufferings.
1 See his letter to General Dearborn, dated July 16th, 1810, and his letter
to William B. Giles, dated December 25th, 1825. Jefferson's Correspondence, vol. iv. pp. 148, 419.




34             MISCELLANEOUS WRITINGS.
I have ever considered the embargo a measure which went
to the utmost limit of constructive power under the Constitution. It stands upon the extreme verge of the Constitution, being in its very form and terms an unlimited prohibition, or suspension of foreign commerce. If I were disposed
to impute to Mr. Jefferson unworthy views, or unconstitutional objects, (which he so liberally attributes to others,) it
would not be difficult to select from his life very strong proofs
to justify them, after his manner. Who, for instance, can
remember, without regret, his conduct in relation to the battue
of New Orleans? Who can reconcile his treaty with France,
by which Louisiana was adopted into the Union, with his
acknowledged opinion, that it was beyond the reach of the
Constitution? I speak not my own opinion on the latter
point, but his. I never have entertained a doubt of the constitutionality of that treaty.
But I pass from these ungracious topics, to which I should
not have alluded, if it had not been in self-defence. You are
too young to know the real facts; and when I am dead, you
may feel an interest not to have your father's character sullied
by the pen of Mr. Jefferson.
In August, 1808, I was married to your mother, (then Miss
Sarah Waldo Wetmore,) the daughter of Judge Wetmnore.
Her father was a distinguished counsellor-at-law, and her
mother the granddaughter of the Brigadier General Waldo,
who is so well known in our provincial annals.
Your mother was the intimate friend of my first wife, and
related to her by marriage. We had the misfortune to lose
all our elder children in succession. We buried three daughters and one son before either of them attained seven years
of age.  They were all very promising children, and our
repeated losses almost broke our hearts. Your brother was a
boy of very uncommon talents, and bore my name. He
died in a decline, after having had the whooping cough,
which entirely prostrated him. I have many agonizing recollections on this subject, and some truly pathetic touches of




AUTOBIOGRAPHY.                 35
tenderness to tell, but I have neither the heart nor the power
to go over them. You will one day learn how difficult it is
to bury our sorrows, when they have struck deep into our
souls.
In November, 1811, I was appointed one of the Associate
Justices of the Supreme Court of the United States, by
President Madison, being then thirty-two years of age, and
the youngest judge that ever came on that bench. The office
was conferred on me without any solicitation on my part,
and came upon me quite unexpectedly. I have always supposed that my excellent friend, Mr. Ezekiel Bacon, then of
Massachusetts, and now of New York, recommended the
appointment.
Being at this time Speaker of the House of Representatives
of Massachusetts, (a station to which I was first appointed
in January, 1811,) in the following January session I took
leave of the House, on resigning my place, in a short address,
a copy of which is among my printed papers and pamphlets.
I hope you will read it. At this day I do not feel ashamed
of it.
I shall not dwell upon the circumstances attending my
judicial life, because they are open to you in the decisions as
well on my circuit as in the Supreme Court, in the published
Reports. The time, however, when I came upon the Bench
was quite unpropitious. The docket was then (owing to the
protracted infirmity of my predecessor) crowded with penal
actions and cases of seizure, arising under the embargo and
non-intercourse systems; and in the then excited state of the
people, it was no easy matter to administer the law with
firmness, and at the same time without offence. The war
followed close upon the heels of these measures, and New
England was roused into still greater excitement by this new
calamity, which seemed in her view to threaten the entire
desolation of all her commercial and agricultural interests.
In my circuit the principal questions of prize law were of
more frequent occurrence than in any'other parts of the




36             WMISCELLANEOUS WRITINGS.
Union; and I need scarcely inform you that the task of performing it was ungracious and full of delicate considerations.
How it was performed it is not for me to say. Let the
printed decisions speak for me on this subject.
The return of peace brought with it, among the public
blessings, that which was most welcome to me, the discharge
of the ordinary duties of judicial life in the common course
of business, free from popular prejudice and party spirit. I
labored in my vocation with assiduity, never expecting again
to be called into public political scenes. But in the year
1820, there being a convention called to revise the Constitution of Massachusetts, I was elected a member from Salem,
and attended during the whole session. You will have an
opportunity of reading, in the printed debates, the part which
I took on that occasion. But my principal labors were in
another body, the great committee on the subject of the
representation in the House, whose debates were necessarily
private. I there advocated the district system and apportionment of representatives according to population, so as to reduce the representatives to a comparatively moderate number.
The plan, though supported by some of the ablest of the
Committee, and particularly by Mr. Prescott, failed in Committee, and we agreed to support the next best plan, which
should reduce the representation.  It was that which was
afterwards adopted by the Convention, but which failed with
the people from causes wholly accidental, and aside from its
merits. I now regret that I did not write out the substance
of the speeches which I delivered in the Convention. Except in a single instance I never furnished even a note; and
the best speech which I delivered (I do not mean to state
what its merits were) is scarcely touched in the printed debates. I mean the speech on the question of amending the
Constitution so as to allow the Legislature the power to
diminish, as well as increase the salaries of the Judges. This
proposition I opposed totis viribus in an elaborate argument;
and obtained a triumphant vote in the negative, after it had




AUTOBIOGRAPHY.                  37
been carried the other way by a very large majority.  From
accidental circumstances, this speech was reported less fully
than any other; and indeed I may say, that not a single
speech of mine is given with any thing like fulness or accuracy. Mr. Webster, with great propriety and foresight, corrected all his own. I now regret that I did not undertake a
similar labor; sedpereunt labores.
Since that period nothing of a peculiar nature has occurred
in the even tenor of my life, except my removal from Salem
to Cambridge, upon being appointed Dane Professor at Law,
a place to which I was carried by the voluntary and unbiased choice of that learned gentleman.
I have not said much to you in these brief memoirs about
my own studies, opinions, or pursuits; perhaps at a time of
more leisure I shall write some sketches to you which may
lead you more thoroughly into the feelings and lucubrations of
my early and my later life. In my youth I was smitten with
a love of poetry, and I had the rashness to print in a first,
and afterwards, in 1804, in a revised edition, a poem called
the Power of Solitude, and some other poems. All except
two, short and unimportant poems, were written by me.1
Those two (I have marked them in my own copy) were
written by my first wife. The work had very little success.
The critics spoke unfavorably of it; and what was a little
remarkable, finding from my preface that some of the minor
poems were not written by me, they praised highly those
which they supposed were not mine (and which in fact were
mine) and censured all the others. Such is critical praise,
and such critical sagacity. Henceforward I dropped poetry,
except as an occasional amusement of a leisure hour; and I
departed from its fairy realms with a humble belief that I
was not destined to live even at the outskirts of her enchanted scenery. I took a lawyer's farewell of the Muse, and
1 In a letter to S. P. P. Fay, dated December 26, 1798, at which time he
was engaged in the composition of this poem, he speaks of it as "the sweet
employment of my leisure hours."
4




38                 MISCELLANEOUS WRITINGS.
following out the precepts of Blackstone, plunged at once
into the dark labyrinths of the ancient learning of the law.
Yet I cannot say, even at this distance of time, that
"The dreams of Pindus and the Aonian maid
Invite no more."
For though no longer a votary, I delight to visit the haunts
of poetry, to listen to the lofty strains of the great masters of
the lyre, to gaze on the magnificent structures reared by her
worshippers, and to catch a transient inspiration, while roaming abroad through nature.
I feel the gales that round me blow,
A momentary bliss bestow,
As waving wide their gladsome wing
My weary soul they seem to soothe;
And redolent of joy and youth
To breathe a second spring.
But to drop metaphor. I still continue to relish poetry and
fiction with a warm and vigorous love; not, indeed, in the
daily outpourings of modern poets, but in the works of the
great Classics of our language, of Milton, and  Shakspeare,
and Dryden, and Pope, and Thomson, and Gray, and Goldsmith, and others, of that true school of immortal verse.
Of the more modern poets, my principal favorites are Cowper
and Crabbe; the former for his singular beauty and simplicity
of thought and language, and severe truth of morals; the
latter for his almost supernatural illttstations of the human
character in all its nicest shades and most'secret workings.
But I forbear, for I have wandered from my purpose. As
an appropriate close of these slight sketches, I shall subjoin
a list of my literary and professional labors.l Some of them
1 The accompanying list is by no means a complete one. There are other
compositions (particularly legal) of which at present I shall say nothing,
though the time may arrive in which it will be proper to disclose them. J. s.
[This list is so incomplete that it is here omitted.. -EDITOR.]




AUTOBIOGRAPHY.                39
are scarcely worth your examination, except as matters of
filial curiosity; and some are in bad taste, but such as belonged to the day when they were written; others, perhaps,
you may find not wholly without interest or use. Such as
they are, my dear son, I commend them to your kindness.
May God in his good providence grant you many years of
happiness; may your attainments far outreach those of your
parent; and your genius, matured by the masculine study of
the best writers, give you a just claim on the gratitude of
your country, as one of its ornaments and its protectors.
I am, most affectionately,
Your father,
JOSEPH STORY.
MR. WILLIAM W. STORY.








LITERATURE AND JURISPRUDENCE.








INFRINGEMENTS OF THE NEUTRAL TRADE OF
THE UNITED STATES.
A MEMORIAL ADDRESSED TO THE PRESIDENT AND CONGRESS OF THE
UNITED STATES IN BEHALF OF THE INHABITANTS OF SALEM, MASSACHUSETTS.
THE Memorial of the Inhabitants, &c., humbly showeth,
That on ordinary occasions they have deemed it unnecessary
to apply for redress of grievances to the Government of their
country, confiding in the rectitude and wisdom of its councils; and, though their confidence in this respect is undiminished, yet, as questions of national moment are now agitated, and aggressions committed on our commerce in a
manner unprecedented, they deem it their duty to approach
the constituted authorities, and express their sentiments with
fidelity and deliberation.
It has been a source of the purest satisfaction to your
Mlemorialists, that, while foreign nations have been engaged
in wars, which in their nature and consequences have transcended the limits of human foresight, the United States
have, under the benign care of Providence, been preserved in
the enjoyment of peace and liberty. They have beheld with
pleasure our commerce, at first feeble and confined, gradually
expanding with awakened enterprise, until it has reached the
farthest shores, and embraced the most inhospitable climes.
This commerce, prosecuted with increasing vigor, and fostered by new aids, has continually brought to our ports the
wealth of all nations, and, by opening a liberal intercourse,
added fresh zeal to foreign industry and domestic labor.




44             MISCELLANEOUS WRITINGS.
Your Memorialists, considering war an evil, which cannot
be confined in its consequences to belligerents, even when
prosecuted with good faith and amicable intentions towards
neutrals, and believing it the sound policy of the United
States to avoid every entanglement in it, as injurious to
internal improvement and external interests, have witnessed
with unhesitating approbation the disposition to neutrality
patronized by the General Government, at times when national wrongs have been pressed upon us with peculiar aggravations, and seemed to point to a summary redress. Firmness and moderation have happily secured all the advantages
of successful war; and the sober appeal of reason has carried conviction to foreign nations. From considerations of
a similar nature, your Memorialists have submitted to the
injuries of belligerents during the late European war, and
awaited with confidence the decisions of prize tribunals, instituted to adjust national rights, and afford a fair, though tardy,
redress to grievances. To these tribunals, elevated in the
presence of the world, as the learned and impartial courts of
nations, they have hoped, that all parties might appeal for
justice, and receive a righteous reward. In some instances
they have been disappointed; in others they have realized
their expectations. And even when they could not admit
the correctness of some decisions, principles of national law
have been expounded, and rules prescribed, which might
serve as polestars for their future direction.
Your Memorialists, however, have witnessed, with deep
regret and deep anxiety, that to some of these tribunals they
can no longer appeal for safety. New interpretations, of old
rules, and new glosses on ancient doctrines, have been put
forth to control the course of neutral commerce, and restrain,
if not annihilate, its most beneficial operations. Their surprise has been greater in this respect, because the nation,
which has adopted them, is one from which we had a right
to expect the most conciliatory conduct; since with her ultimately centre the proceeds of our commerce, and from her




MEMORIAL RELATIVE TO BRITISH AGGRESSIONS.    45
we purchase the greatest portion of her staple manufactures.
The interests of Great Britain and the United States seem
in this respect mutual. We consume the products of her
industry, and give her in return, besides large sums of money,
raw materials, by which she may levy new contributions
upon us.  Similarity of manners and habits, of language
and education, have added artificial inducements for intercourse, and gained for her among us a respect not slightly to
be viewed, or inconsiderately forfeited. On all occasions, the
United States have exhibited towards her an amicable disposition, and a just, and, it may be added, a generous, policy.
If, therefore, we had favors to ask or receive, our claims
would be peculiarly strong upon her, because we have been
emphatically the sinews of her opulence. But it is believed,
that the United States never asked of any nation more than
justice, and are willing to be bound by the established rules
of commerce.  Your Memorialists, therefore, express deep
regret, because the public confidence has been shaken, which
may not easily be restored; and deep anxiety, because the
principles alluded to, if conceded, must eventually prostrate
our trade, or leave it at the arbitrary discretion of the belligerents. Whether peace or war prevail, the baneful influence
of these principles will everywhere be felt; and in the latter
predicament we shall, as neutrals, share the mischiefs of the
war, without the chances of the benefits of it.
With these impressions, your Memorialists respectfully
submit some observations on the nature and importance of
the principles avowed by the British High Court of Admiralty. On the present occasion they would avoid the discussion of contested points respecting the freedom of commerce, on which civilians have entertained different opinions.
They would avoid the question, how far even a direct trade,
carried on by neutrals between the colony and mother country, with bonti fide neutral property, is protected by the law
of nations, though it may justly be a ground of national
investigation. They are willing to avoid these extrinsic,




46              MISCELLANEOUS WRITINGS.
though important, subjects, and meet the principle of the
English courts upon the laws and usages sanctioned by the
practice of nations.
The principle recently established by Great Britain is, as
your Memorialists understand it, that it is not competent for
a neutral to carry on in war any trade, which he is not accus.
tomed to do in peace; and that he shall not be permitted to
effect that in a circuitous, which is inhibited in a direct, trade.
As corollaries from this principle, she insists, that the colonial
trade, exercised by neutrals, shall not extend beyond the ac.
customed peace establishment; and that whenever the neu,
tral imports into his own country colonial produce, with the
intention to transship it to the mother country, if a direct
intercourse be interdicted in peace, the circuity of the route
shall not protect the property from confiscation. It seems
admitted, that such circuitous route, with such intention, is
not considered as evidence of enemy's property, confiscable
within ordinary rules; but as a distinct, substantial, principle
of condemnation, independent of the other both in efficacy
and application. For it yields not to the most clear proof of
neutral property, or innocent, though misdirected, conduct.
The unaccustomed trade, or the importation with specific
intentions, are the tests, by which every voyage is to be tried.
If these doctrines form a part of the law of nations, how-,
ever mischievous they may be in operation, the United States
must submit to them, until they are relaxed by particular
conventions. Though our commerce should be oppressed,
and our enterprise crushed, yet we are bound to acquiesce, if
the sanction of universal justice require it.
Your Memorialists, however, beg leave, before they consider the law of nations in this particular, to advert to a fewv
of the consequences resulting from this rule; and, if they do
not greatly mistake, from thence will arise a strong argument
of its inadmissibility.
In the first place, great evils must, in the nature of things,
result from the indefiniteness of what is the accustomed




MEMORIAL RELATIVE TO BRITISH AGGRESSIONS.    47
trade. Nations are continually changing their policy, their imports and exports, their manufactures, their staples, and their
commercial connections. In peace, as well as in war, peculiar circumstances induce them to open or close a traffic; and
these circumstances arise as often from accidental caprice as
from political wisdom. Besides these, the silent operation of
time, by destroying old sources of revenue, and developing
new wants, and in a more important view, by erecting the
grandeur of one state on the destruction of another, with
secret fatality changes the channels of commerce, and forbids
it to flow in a uniform course. It seems conceded on all
sides, that the rule shall not apply to every case; and that
those changes, which seem not to be the result of a necessity
imposed by an enemy, are exempted from its operation. But
how shall these limits be defined? Every nation varies its
policy in this respect in time of war; and even Great Britain
relaxes her navigation acts to meet the ordinary exigencies of
it. On such occasions she admits neutrals to import into her
dominions articles not the growth of their own country. She
admits foreigners into her mercantile, as well as her military,
marine. She opens her colonies to importations strictly forbidden in peace; and allowed with jealous caution, even
under the pressure of war. To changes of this nature, if
they do not arise out of the predominance of the enemy's
force, or out of any necessity resulting therefrom, her own
civilians avow, that the rule of accustomed trade ought not
to extend. According to them, it is not every convenience,
or even every necessity, arising out of the state of war, but
that necessity, which arises out of the impossibility of otherwise providing against the urgency of the distress, inflicted
by the hand of a superior enemy, that can be admitted to
produce such an effect. But in what manner shall this
impossibility be determined?   How  shall we distinguish
between the ordinary and the extraordinary necessities of
war? - between those evils inflicted by a superior force, and
those resulting from general embarrassment?  How shall we




48              MISCELLANEOUS WRITINGS.
distinguish, which is the predominant power, when one may
be conqueror at one point, and conquered at another? -one
all-powerful by sea, another all-powerful by land?  How
shall we provide for, or foresee, the changes of the day, when
time with unmeasured rapidity retrieves losses in the hour of
defeat, and destroys power in the hour of victory? In the
opinion of your Memorialists, there is but one test of such
predominancy, and that is within the old law of nations. It
is, when the belligerent is able to blockade the ports of his
enemy; and then his right to exclude neutrals is coextensive
with this ability to blockade. If any other test be resorted
to.; if the unlimited ingenuity of the discretion of courts of
admiralty be exercised in the application or denial of the
rule; the rights of neutrals will change with the policy of
every administration, and rise and fall with the pressure of
hostilities, and the safety of depredation. Surely, no principle of the law of nations can be bottomed on so fluctuating
a basis. It would reverse the nature of all law, which is
fixed and determinate, and substitute a discretion little less
injurious than despotism.
In another view, the rule appears to your Memorialists not
less untenable and unjust. It is stated, as a part of it, that,
if colonial produce be imported by any person with an intention to transship it oa his own account to the mother country,
it is subject to confiscation; but if imported for the purpose
of general commerce, and thrown into the market for general
transshipment, it is within the exception. To distinguish
between general and particular intentions, and to separate
things so subtile in their own natures, and almost incapable
of proof, for the purposes of national decisions, seems a refinement reserved for the present age. In the nature of
things it can hardly be possible to determine the intention of
a merchant in importation. These may be formed and fixed
at one moment, and abandoned from a change of circumstances at another. The fluctuations of foreign markets, the
plenty or deficiency of the supply at home, the nature of the




MEMORIAL RELATIVE TO BRITISH AGGRESSIONS.    49
funds, the success of the incipient voyage, and numerous
other accidents, must continually change the destination of
importations, and divert them into various channels. In no
case, therefore, can there arise an indisputable presumption,
that a merchant imports with a determination to export.
Indeed, as his intention must frequently be ambulatory, the
presumption lies as strongly the other way. And even if in
a few instances that intention could be ascertained, thousands
of cases must arise in which it would be impossible to form
a criterion for judgment. All must be doubt, caprice, or speculative construction.
These objections apply to the embarrassments attending
the exercise of the rule respecting intentions of merchants.
But a more serious one may be urged against it, grounded
upon its inefficacy, as it respects both neutral and belligerent.
As it respects the neutral, if the rule is once known, transfers of property will be immediately made. There will be
an impossibility of preventing frauds in these transfers, (if
they deserve the name,) by any tests applicable to them,
unless restrictions are imposed, or evidence required, which
no authorities could procure, and no independent nation
ought to submit to. As it respects the belligerent, the same
produce after sale would, according to his own principles, be
admissible into the ports of his enemy; and in that way the
same assistance would be supplied, and the same embarrassments be prevented. The importer will communicate a title
to his vendee, which he does not himself possess, and clothe
his agent with an authority, which he cannot exercise at his
own hands.  The rule, therefore, would require the mere
formality of a sale; but it would effect none of the objects
which it professes to value; and its foundation would be
shaken by the extent of its exceptions. Considered in this
view, your Memorialists cannot but suppose, that no such
modification will ultimately prevail; but by degrees the
restriction will become absolute against all neutral carriage
of colonial produce to the mother country under every variety
5




50              MISCELLANEOUS WRITINGS.
of intention. In any other way the rule might be nugatory,
and with this unmeasured influence, it must be ruinous.
The foundation of this modern doctrine is laid in this principle, that the neutral has no right by an extension of this
trade to afford supplies to the belligerent; because by such
trade he assists the belligerent to ward off the blows of his
enemy, and to oppose for a longer period the dominion of his
force. But to this your Memorialists deem it a conclusive
answer, that the proposition proves too much; that, if true,
it is a foundation for a far more broad and sweeping principle; namely, that every commerce with a belligerent is inhibited to neutrals; for every commerce assists him in resistance, and diminishes his necessities. A doctrine thus comprehensive has never yet been avowed; and it is presumed
never will be. Yet such must be the logical conclusion; and
it shows irresistibly the absurdity of the assumed premises.
The accustomed, as well as unaccustomed, trade, is within
the terms of the principle, and must stand or fall together.
Either the doctrine is unsound, and assumed as a mere pretext for predatory seizures, or neutrals have no rights as such,
and must endure the calamities inflicted by belligerents in a
contest, in which they have no voice, and from which they
can reap only injury.
Other considerations add force to the preceding remarks.
It is well known, that in time of war neutrals cannot carry
on even their accustomed trade in its full extent. They are
prohibited from trading in contraband goods, and to blockaded ports. Variations necessarily arise in the relations of
the hostile powers, which the neutral ought to possess a right
to turn to his profit, as an indemnity for the obstructions of
his old trade. These obstructions are of a very serious nature. When exercised in the mildest form, they produce
oppressive searches and delays, expensive litigation, and
often total failure of an otherwise lucrative voyage. Reason
would therefore seem to declare, that for hazards of this nature the benefits arising to neutrals from war are not more




MEMORIAL RELATIVE TO BRITISH AGGRESSIONS.    51
than a just equivalent. But if the obstructions be enforced,
and no new channels permitted, it seems hardly too much to
say, that they must lead to an extinction of all neutral commerce. If one belligerent adopt the rule, another has the
same right; and regulations of colonial monopoly would
then serve as false lures, only to ensnare and betray neutral
navigation.  It is somewhat singular, that a belligerent
should invite a trade with itself, which it declares fraudulent
with its enemy; and should lift the arm of power to crush
the neutral, whose conduct is criminal only when it ceases to
be partial.
Such are the remarks, which your Memorialists respectfully
submit upon the rule considered in itself. On this examination they confess it appears to them fundamentally incorrect.
It subjects commerce to fluctuating decisions, overthrows the
ordinary rules of evidence, and places an immense power to
be wielded at the uncontrollable discretion of magistrates
appointed by a single party.  It therefore wants all the
discriminative features of a fundamental proposition of the
law of nations, - uniformity, precision, and general applicability. It would, in their opinion, if established, create
greater evils than it professes to redress, by perpetuating
strife, destroying the emoluments of trade, embarrassing
commercial intercourse, and letting loose the passions to
prey on the miseries and plunder the property of the innocent. It would subject neutrals to hazards nearly as perilous, as those of actual hostilities; and, independently of its
influence in stimulating to revenge and retaliation, it would
transfer the benefits of peace to any victorious usurper of the
ocean.
But your Memorialists are unwilling to rest the question
on the preceding grounds, however supported by reason.
They appeal to higher considerations, and deny, that the rule
is, or ever has made a part of the public law, or is recognized
by usage or prescription among nations. They admit, that
uninterrupted and general usage, fortified by open acquies



52              MISCELLANEOUS WRITINGS.
cence, forms a strong argument, perhaps a conclusive proof,
of the adoption of any rule; that, if such usage had existed
in the present case, and had been invariably pursued, the
presumption would have been violent, that the doctrine is
just, and ought not now to be shaken. But your Memorialists have in vain sought in ancient jurists, universally consulted and approved, any principle, that bears in its bosom
the present. On the contrary, every page appears to give a
direct contradiction to it. They adhere to the ancient interpretation of the law of nations, which pronounces, that the
goods of an enemy are lawful prize, and those of a friend
are free; that the neutral, except in cases of blockade and
contraband, has a right to the uninterrupted pursuit of his
commerce, when carried on with his own property, at all
events in a direct trade from his own country. Such your
Memorialists deem to have been the incontestable rights of
neutrals, established for more than two centuries by universal
acknowledgment, and acted upon, while a flourishing intercourse subsisted among all maritime nations. During the
same period, Great Britain, France, Spain, Portugal, and
Holland, have possessed extensive colonies, and engaged in
commercial enterprises with an uncommon spirit of rivalry.
If, therefore, any such rule, as is now claimed, had existed,
innumerable cases must have occurred in the controversies of
these nations to legitimate its introduction, and authorize its
application. Yet no instance has been adduced in diplomatic or admiralty annals, which savors of a reference to
such a rule. The approved publicists, to whom in national
contests appeals are made, intimate none, and lay down the
law in as broad and satisfactory terms, as your Memorialists.
Your Memorialists are aware, that even the advocates of
Great Britain have not pretended to ascertain the existence
of the pretended rule previous to the year 1756. To this
period they refer for its first establishment, and from this origin deduce its universal reception. They pretend not to
quote any foreign adjudications as in point; but rest satis



MEMORIAL RELATIVE TO BRITISH AGGRESSIONS.    53
fled, that their own courts were competent to establish the
law, and to give it binding efficacy over all nations. To
such conclusions vour Memorialists confess themselves unable
to bow. They conceive, that it is not within the authority
of any one nation to legislate for the rest; and that the law
of nations, being founded on the tacit convention of the nations that observe it, can be binding only on those nations,
which have adopted it. Any other conclusion would lead to
the most mischievous consequences, and oblige every nation
to vindicate every other against aggressions, though its own
rights might be undisputed. To give any precedent, therefore,
a binding authority among nations, it must have been recognized as such by them; and no argument of its admission
can be drawn from their silence, when the subject did not
necessarily engage their immediate interest. An injurious
pretension, when not applied to a particular state, might be
easily dismissed without consideration.
But your Memorialists, after all the inquiry, which they
have been able to make, confess themselves wholly ignorant
of any precedent of the present rule in the year 1756. The
cases of that period, which are relied on as proof, seem to
them wholly inadequate for the purpose. As far as their
researches extend, those cases respected the Dutch, and proceeded on a principle entirely different. They were cases, in
which Dutch vessels became the carriers of colonial produce,
the property of the enemies of Great Britain. This trade
was vindicated on the ground of a special treaty between
Great Britain and Holland, which provided, that free ships
should make free goods; and it was ultimately declared
illegal, because enemies' goods were protected by that treaty
only in the accustomed trade. No controversy appears to
have been raised as to the security of neutral property under
similar circumstances. Nor should it be forgotten, that the
Dutch protested, in terms of the warmest reprobation, against
those condemnations, and asserted them to be contrary to
the general law, as well as to the faith of treaties. Those




54              MISCELLANEOUS WRITINGS.
cases seem, therefore, certainly to fail in analogy to those
which they are cited to govern. In the one class, the property is neutral; in the other, hostile; in the one, the trade is
for the sole benefit of the neutral; in the other, for the sole
benefit of the belligerent. In a word, the one respects the
rights of peaceful nations according to the public law; the
other, the construction of particular treaties. The precedent
seems, therefore, to want every essential similitude; and is
traversable in every variety of its application.
Yet, admitting the precedent to be in point, if it stands
solitary, if it has subsequently slumbered during nearly fifty
years, unacknowledged abroad, and unenforced at home; it
surely cannot weigh on the present occasion. It is conceded
by the British civilians, that during the American Revolution
the doctrine was entirely pretermitted, and the commerce of
neutrals was pursued according to the ancient code.  Many
cases of this period might be cited from the admiralty records,
which overthrow the rule, and expressly vindicate the opposite rule. If precedents are to decide, the judgments of a
tribunal established in Great Britain under her sole appointment, and acting with open powers, must surely, when acquiescence creates the law, completely establish the renunciation
of the contested rule. It is in vain to resort to conjectures
or ingenious subtilties to fritter away authorities. The faith
of the nation has been pledged by its tribunals; and it is too
late now to travel out of the record. Place the whole argument of precedent in its strongest light, and it will appear,
that in the year 1756 the doctrine was first assumed, and in
the year 1801 was first executed.
So far, however, from being recognized, this pretended rule
of the year 1756 was pointedly denied, at the moment of its
introduction, by the power affected by it; and on its late
resuscitation it has met the determined reprobation of the
United States. Our minister at the Court of London, on
the development of it in the year 1801, remonstrated against
it in a spirited memorial. Indeed, Russia, France, Sweden,




MEMORIAL RELATIVE TO BRITISH AGGRESSIONS.    55
Denmark, Prussia, Portugal, and Austria, in the celebrated
League of the armed neutrality in the year 1780, expressly
declared, and Great Britain was then compelled to admit, as
the law of nations, that all neutrals may freely navigate from
port to port, and on the coasts of the nations at war. Contraband articles and blockaded ports were the only admitted
exceptions. This solemn protest of Europe, after an elaborate discussion, in which all neutral nations assisted, is singly
opposed by the instructions of Great Britain, and is to be
outweighed by an obscure and resisted precedent.  Nay
more, the united voice of the maritime world, and the practice of ages, must yield to the interested decisions of a single
state, and change with the varying policy of its cabinet.
There is, indeed, no difficulty in referring principles to former
times, when it suits the public convenience; and as the
argument of ancient usage is of deep concern in national
pretensions, it is too often a cover for unjustifiable spoliations.
With these preliminaries, your Memorialists feel confidence in asserting, that goods not contraband, fairly purchased by the neutral, are free to the market of every country, and protected from seizure, except in cases of blockade.
Guided by these principles, they perceive a plain and honorable path for commerce. Beyond them all is involved in
uncertainty.
It is not the least singularity att6nding the conduct of the
present war, that Great Britain has licensed her own subjects
in a trade, which she declares fraudulent in others; that she
admits them unmolested to supply her enemy with means of
resistance, when she declares, that confiscation is the penalty
of neutral succor. Were the rule ever so just in itself, it certainly demands relaxation, when the belligerent partakes the
profits, and connives at the breach. If its foundation be the
unlawfulness of affording assistance to a distressed enemy,
surely it ought not to be enforced, when that assistance is an




56             MISCELLANEOUS WRITINGS.
authorized object of speculation with the distressing belligerent.
Your Memorialists heartily concur with their fellow-citizens in repelling with indignation the imputation of fraud,
attached by Great Britain to our colonial commerce. They
conceive it to be a fair, lawful, and honorable traffic, cherished
by the resources of our own country, independent of all
foreign succor. Fraud may occasionally contaminate the
transactions of all nations. But no one, who has estimated
the extent of our resources, or the respectability of our merchants, could for a moment believe them subservient to the
fraudulent purposes of any nation. It is our pride to believe,
that the American merchants, with very few exceptions, are
as distinguished for good faith as any on earth. The imputation thrown on them is a masked pretence to repel the
odium of vexatious injuries, and to excuse violations of law,
which cannot be justified.
Your Memorialists are sorry, that other instances of hostile
conduct have been manifested by Great Britain,. less direct in
their nature, but not less derogatory to our sovereignty, than
those above enumerated. The impressment of our seamen,
notwithstanding clear proofs of citizenship, the violation of
our jurisdiction by captures at the mouths of our harbors,
and the insulting treatment of our ships on the ocean, are
subjects worthy the serious consideration of our national
councils, and will, we have no doubt, receive an early, prompt,
and decisive attention.
Complaints also of a serious nature have arisen against
other nations, on account of the conduct of piratical depredators, and the lawless plunderings by privateers on our
coasts. From whatever authority these evils proceed, whether from the secret connivance of foreign powers, or the
baneful machinations of individuals, we trust, that our national honor will not long be unsupported by a national naval
force.




MEMORIAL RELATIVE TO BRITISEI AGGRESSIONS.    57
These are the considerations, which your Memorialists beg
leave to submit to the wisdom of the General Government.
Though they have not suffered very greatly in their individual interests, they feel deeply impressed with the opinion,
that the cause is national, and the feelings should be the
same. They cherish the hope, that a sense of mutual interest and good faith will successfully terminate the present
embarrassments. They wish for peace, for honorable peace.
They ask for no measure, but what justice approves, and
reason enforces. They claim merely to pursue a fair comnmerce with its ordinary privileges, and to support the independence of their country by the acquisitions of lawful industry. They wish to take no part in the contests, which
now convulse the world; but, acting with impartiality towards all nations, to reap the fruits of a just neutrality. If,
however, conciliation cannot effect the purpose of justice,
and an appeal to arms be the last and necessary protection
of our honor, they feel no disposition to decline the common
danger, or shrink from the common contribution.
Relying on the wisdom and firmness of the General Government in this behalf, they feel no hesitation to pledge
their lives and property in support of the measures which
may be adopted to vindicate the public rights, and redress
the public wrongs. And, as in duty bound, will every pray.
Signed in behalf of the said Inhabitants by their authority.
JOHN HATHORNE,
JOSEPH SPRAGUE,
JONATHAN MASON,             Committee,
BENJAMIN CROWNINSHIELD, JR.
JOSEPH WHITE, JR.
JOSEPH STORY,




REPORT ON THE SALARIES OF THE JUDICIARY.
IN FAVOR OF INCREASING THE SALARIES OF THE JUSTICES OF THE
SUPREME COURT OF MASSACHUSETTS, MADE TO THE HOUSE OF
REPRESENTATIVES OF THAT STATE, IN JUNE, 1806.1
THE Committee, to whom was referred the order of the
House of Representatives, "to consider, whether any addition is necessary to be made to the salaries of the Judges of
the Supreme Judicial Court of this Commonwealth," report:
That the constitution of this Commonwealth has provided,
" that permanent and honorable salaries shall be established
by law for the Justices of the Supreme Judicial Court; and
that if it shall be found, that any of the salaries aforesaid, so
established, are insufficient, they shall, from time to time, be
enlarged, as the General Court shall judge proper."
By an Act of February, 1781, soon after the constitution
was adopted, the salary of the chief justice was fixed at
$1066.66, and of the other justices of said court at $1000
each, per annum. These continued to be their salaries, until,
by an Act of February, 1790, that of chief justice was fixed
at $1233.33, and of the other justices at $1166.66. These
last have ever since continued to be, and still are, the only
permanent compensations of the said justices, they being
debarred by law from  receiving any fees or perquisites.  By
1 " Permit me to recommend to your consideration the contents of a letter,
addressed to me by Theophilus Parsons, Esq., Chief Justice of the Supreme
Judicial Court, relating to the compensation allowed to justices of that court,
and particularly to the grants made by the legislature in part of it, which
are not permanent." - Extract from Governor Strong's Message, June, 1806.




REPORT ON THE SALARIES OF T~I JUDICIARY.    59
occasional resolves, from  1794 to 180Q4, temporary grants
have been made to the said justices, of sums, varying from
$166.66 to $600; but these grants have been limited to one
year. By a resolve of March, 1804, a grant was made to
the said justices of $800 annually for three years, cownmencing in January, 1804, which, of course, expires with the
present year.
The Committee further report, that, although it would be
unbecoming in them to decide, that the acts of the legislature are in any manner a violation of the constitution; yet,
they respectfully submit, whether the temporary grants aforesaid can be considered such a permanent compensation, as is
within the purview of the article of the constitution above
recited, and consistent with the clause in the Declaration of
Rights, that the Justices of the Supreme Judicial Court
"should have honorable salaries ascertained and established
by standing laws."
Whatever may be the correct opinion on this subject, the
Committee entertain great doubts of the policy of any measure, which has the immediate tendency to place the judicial
department at the footstool of the legislature.  They beg
leave to quote for this purpose the words of the constitution,
applied to the salary of the governor, and which seem, from
their connection with the clause relative to the salaries of the
judges, as well as from their forcible expression, to be peculiarly directed to this principle: "As the public good requires, that the governor should not be under the undue influence of any of the members of the General Court, by a
dependence on them for a support; that he should in all
cases act with freedom for the benefit of the public; that he
should not have his attention necessarily directed from that
object to his private concerns; and that he should maintain
the dignity of the Commonwealth in the character of its
chief magistrate; it is necessary he should have an honorable stated salary, of a fixed value, amply sufficient for those
purposes, and established by standing laws."




60              MISCELLANEOUS WRITINGS.
These reasons, so applicable to a chief magistrate, certainly
lose none of their force when considered in reference to courts
of law. Before these tribunals, the property, the reputation,
the rights and liberties, and, above all, the life, of every individual citizen of this Commonwealth, are subjects of decision.
On the inflexible integrity, the profound knowledge, and strict
impartiality, of the Justices of the Supreme Judicial Court,
who are arbiters in the last resort, assisted by intelligent
jurors, rests every thing, which is dear to us in life, and which
can affect us with posterity; every thing, which is honorable
in character, or valuable in enjoyment; in one word, every
thing, which renders society a blessing, and secures its continuance.
The Committee would therefore inquire, whether it be not
of the last importance, that judges should be elevated above
the hope of reward, the influence of affection, or the fear of
censure?  Whether they should not be wholly exempt froi
any consideration of immediate support, and placed as a
refuge and protection in times of political heat, beyond the
necessity of bending to the changes of those times, in order
to gather favor, or avert calamity? Whether they should
not be placed beyond even the temptation of accommodating
the law to present purposes; and, by gratifying ambition or
interest, to break down the rules, that guard the security of
property and the safety of rights? Whether, indeed, their
compensation ought not to be such, as to command the first
talents in the community, and insure to those, who are
learned and honest, as well as those who are great and rich,
the participation of those juridical honors, to which the lucubrations of twenty laborious years are scarcely adequate?
The Committee beg leave to submit, as their opinion, that
these inquiries must lead to a conclusion, that independence
in compensation, as well as in tenure of office, is essential to
the permanent respectability of the judicial department.
The Committee further report, that, since the year 1790,
the business of the Justices of the Supreme Judicial Court




REPORT ON THE SALARIES OF THE JUDICIARY.      61
has increased at least fourfold.  They are obliged to travel
into many counties twice a year, where formerly they travelled but once; and in some counties terms of the said Court
are now held, where formerly there was none. The great
extension of population and agriculture, the variety and intricacy of a new and continually increasing commerce, and
the almost endless other subjects of litigation, consequent on
a flourishing domestic intercourse, have swelled, and are annually swelling, the already crowded dockets of every judicial
court. For six months every year the judges of the Supreme
Judicial Court are travelling the circuits of the Commonwealth, and their expenses on this account are great. The
other six months are absorbed in pursuits, not less fatiguing
to themselves, nor less important to the people. In the vacations, they are necessarily engaged in forming and digesting
opinions on special verdicts, reserved cases, cases on demurrer,
and other questions of law, referred solely to the Court for
decision, which are too intricate for judgment on the circuits,
and require deep and minute investigation in the closet.
Their whole time, therefore, both for their own reputation
and for the despatch of justice, must be devoted to the public. Domestic concerns, and, much more, the active pursuit
of property, are, in a great degree, inconsistent with their
duties; and, as they are thus shut out from the acquisition
of wealth, it would seem to be the proper office of the legislature to become the guardians of their families, and the supporters of their independence.  Considering, therefore, the
salaries established in 1790, either in regard to the increased
duties of the judges, the greater number of circuits, and the
vast addition of business in the courts, or the great depreciation of money, and consequent higher price of the necessaries of life, the Committee cannot but think, that double
those salaries at the present time would hardly be a compensation equivalent to those permanently established in 1790;
which, from grants almost immediately succeeding, seem to
have been then deemed insufficient by the legislature.
6




62                MISCELLANEOUS WRITINGS.
With these views, the Committee respectfully report, that
in their opinion it is necessary to make an addition to the
salaries of the judges of the Supreme Judicial Court of this
Commonwealth; and they report a bill accordingly.1
By order of the Committee.
JOSEPH STORY, Chairman.
The bill passed into a law; and the salaries were again increased by
another act, passed in 1809.




ADDRESS ON RESIGNING THE SPEAKER'S CHAIR,
DELIVERED IN THE HOUSE OF REPRESENTATIVES OF MASSACHEUSETTS, JANUARY 17, 1812.
" COMMONWEALTH  OF MASSACHUSETTS,.
"In the House of Representatives.
" Thursday, 16th January, 1812.
" The Speaker signified that his duty elsewhere would not permit him to officiate
in the House, after to-morrow.
" Friday, 17th January, 1812.
"On motion of the Hon. Mr. Bigelow, of Medford, —
" Resolved unanimously, That the thanks of this House be presented to the Hon.
JOSEPH STORY, Esq., for his able, faithful, and impartial discharge of the duties
of the chair, during the present year.
" The foregoing Resolution being passed in a very full House, and by the Clerk
declared to be unanimous, the Speaker rose and addressed them as follows:"
GENTLEMEN OF THE HOUSE OF REPRESENTATIVES:
THE  flattering commendations, recorded  in  your recent
vote, claim, in return, the most sincere expressions of my
gratitude. To the good opinion of my fellow-citizens I
could never pretend an indifference; and I am free to confess, that the approbation of the Representatives of an enlightened people could not have been conveyed in a manner
better calculated to excite my highest sensibility.
The time has now arrived, when it becomes necessary for
me to ask your indulgence to retire from the chair, which
your suffrages heretefore assigned  me.  On  this  occasion,
which is probably the last, on which I shall ever have the
privilege to address you, I feel an unusual interest mingled




64              MISCELLANEOUS WRITINGS.
with inexpressible melancholy. I have to bid farewell to
many distinguished friendships, which have been the pride
and pleasure of my life. With many of you I have, for a
series of years, shared the labors and the duties of legislation,
sometimes with success, and sometimes with defeat. With
all of you I have rejoiced to cooperate in support of the
character and principles of our native state - a state, which
was the cradle, and, I trust in God, will be the perpetual
abode, of liberty.
May I be permitted to add, that, during the period, in
which I have had the honor to preside over your deliberations, the manly confidence, the elevated candor, and the
invariable decorum of the House, have smoothed a seat,
which, though adorned with flowers and honors, is to the
ingenuous mind the thorny pinnacle of anxiety and toil.
Cheered, indeed, by your kindness, I have been able, in controversies marked with peculiar political zeal, to appreciate
the excellence of those established rules, which invite liberal
discussions, but define the boundary of right, and check the
intemperance of debate. I have learned, that the rigid enforcement of these rules, while it enables the majority to
mature their measures with wisdom and dignity, is the only
barrier of the rights of the minority against the encroachments of power and ambition. If any thing can restrain the
impetuosity of triumph, or the vehemence of opposition - if
any thing can awaken the glow of oratory, and the spirit of
virtue - if any thing can preserve the courtesy of generous
minds, amidst the rivalries and jealousies of contending parties, -it will be found in the protection with which these
rules encircle and shield every member of the legislative
body. Permit me, therefore, with the sincerity of a parting
friend, earnestly to recommend to your attention a steady
adherence to these venerable usages.
Called, as I now am, to act in other scenes, I cannot but
feel the deepest humility in weighing my own deficiencies
and the new responsibility imposed upon me; at the same




ADDRESS ON RESIGNING THE SPEAKER'S CHAIR.    65
time I cannot but recollect, that I leave my legislative associates amidst perils which may truly be said to try men's
souls. I am not unconscious of the difficulties which surround the public councils; nor of the gloom and the silence
which presage approaching storms. Many of the Revolutionary worthies of our native State, to whom we might look for
support, are gathered to their fathers. I might mention the
names of Bowdoin, Hancock, Adams, and Sumner, and embrace no very distant period. Within my own short political
life, the tomb has closed over the generous Knox, the intrepid
Lincoln, the learned Dana, and the accomplished Sullivan.
But the fame of their achievements has not passed away;
the laurels yet freshen and repose on their sepulchres; and
the memory of their deeds will animate their children boldly
to dare, and gloriously to contend for their injured country.
I persuade myself, that the flame kindled in the Revolution
will burn with inextinguishable splendor; that, when the
voice of the nation shall call to arms, this hall will witness
a heroic firmness, an eloquent patriotism, and a devotion to
the public weal, which have not been exceeded in the annals
of our country.




COURSE OF LEGAL STUDY.
AN ARTICLE WRITTEN FOR THE NORTH AMERICAN REVIEW, IN 1817,
ON "A COURSE OF LEGAL STUDY, ADDRESSED TO THE STUDENTS
OF LAW IN THE UNITED STATES, BY DAVID HOFFMAN, PROFESSOR
OF LAW IN THE UNIVERSITY OF MARYLAND."
THE great progress which has been made in mathematical and physical science during the last two centuries, has
attracted the attention, not only of philosophers, but of men
of business. So intimately, indeed, has this progress connected itself with the immediate wants and comforts of mankind, that it can scarcely escape the most careless observer.
But the progress of moral, political, and juridical science
during the same period, though less perceptible to the common eye, is not less wonderful; and has, quite as much, contributed to the improvement of the human race, and to the
development and security of their most important rights and
interests. Few persons, indeed, are sufficiently aware, how
forcible, though silent, is the operation of laws upon our
manners, habits, and feelings; and how much of our happiness depends upon a uniform and enlightened administration
of public justice. Whatever of rational liberty and security
to private rights and property is now enjoyed in England,
and in the United States, may, in a great degree, be traced
to the principles of the common law, as it has been moulded
and fashioned, from age to age, by wise and learned judges.
Not that the common law, in its origin, or early stages, was
peculiarly fitted for these purposes; for the feudal system,




COURSE OF LEGAL STUDY.             67
with which it originated, or at least, became early incorporated, was a system, in many respects, the very reverse; but
that it had the advantage of expanding with the improvements of the age, and of continually enlarging itself by an
adoption of those maxims of civil right, which, by their
intrinsic justice and propriety, commend themselves to the
bosoms of all men. The narrow maxims of one age have
not been permitted to present insurmountable obstacles to
the improvements of another; but they have become gradually obsolete, or confined to a very insigificant range.
If it were not beside our present purpose, we might illustrate these remarks, by calling the attention of our readers to
the fact, that, since the reign of Queen Elizabeth, nearly the
whole system of equity has been created; and that the commercial contracts, which form so great a portion of the business of our courts, were, before that period, either wholly
unknown, or, at the most, but very imperfectly understood.
In respect to insurance, we may almost say, that the law has
grown up within the latter half of the eighteenth century.
Previously to the time of Lord Mansfield, there are but few
cases in the reports, which are entitled to much respect,
either for their sound interpretation of principles, or general
applicability. It is to his genius, liberality, learning, and
thorough understanding of the maritime jurists of the continent, of Cleirac, and Roccus, and Straccha, and Santerna,
and Loccenius, and Casaregis, and Valin, and to his ardent
attachment to the equitable doctrines of the civil law, that
we are chiefly indebted for that beautiful and rational system,
which now adorns this branch of the common law. The
doctrine of bailments too, (which lies at the foundation of
the law of shipments,) was almost struck out at a single
heat by Lord Holt,1 who had the good sense to incorporate
into the English code that system, which the text and the
commentaries of the civil law had already built up on the
1 The case of Coggs v. Bernard, 2 Ld. Raym. R. 909.




68             MISCELLANEOUS WRITINGS.
continent of Europe. What remained, to give perfect symmetry and connection to all the parts of that system, and to
refer it to its principles, has been accomplished, in our times,
by the incomparable Essay of Sir William Jones, a man of
whom it is difficult to say, which is most worthy of admiration, the splendor of his genius, the rareness and extent of
his acquirements, or the unspotted purity of his life. Had
he never written any thing but his Essay on Bailments, he
would have left a name, unrivalled in the common law, for
philosophical accuracy, elegant learning, and finished analysis.  Even cold and cautious, as is the habit, if not the
structure, of a professional mind, it is impossible to suppress
enthusiasm, when we contemplate such a man.
We recall ourselves to the more immediate topics on
which we have already touched. Of the law of bills of exchange and promissory notes, how little can be gleaned from
works before the reign of William  and Mary! And how
many of its most useful principles are younger than the
days (as Swift calls her)- of good Queen Anne! In the
reign of George III., more has been done to give a scientific
cast to these doctrines than in all the preceding ages. And
here, again, we may remark, how much has been gained by
the accessions and alluvions of the civil law. It is impossible to read the older decisions, without reviving the memory.of Marius and Casaregis; or the later, without perceiving
their general coincidence with the summary, but profound
treatise of Pothier. If we pass to the other branches of
commercial law, we shall find the improvements not less
striking, nor less important.- Molloy and Ma4ynes, feeble and
inaccurate as their treatises are now confessed to be, were,;
until comparatively a recent period, the principal, though
erring guides of the profession, in questions respecting the
rights and duties of owners, masters, and mariners, of shippers and freighters, of average, salvage, and contribution.
In what part of either of these writers, or of any contemporary, or more ancient reporters, shall we. find the doctrines




COURSE OF LEGAL STUDY.               69
relative to the earning and loss of freight and wages, or telative to eharter-parfies, bills;6f lading, stoppage in transitu;
and liens, so familiar to the modern merchant'and lawyer,
traced out with the important practical distinction's belonging
to them?  What was then despatched in a few pages would
now require a large volurrie.  Much might, even at that
period, have been acquired by a diligent study of the maritime jurists of the continent; but they Were either unknown,
or, with one or two exceptions, passed over in silent neglect.
The truth is, that maritime law had then but little attracted
the attention of the Courts of coinmon law; and the only
court in which the subject was much considered (we mean
the Admiralty) labored under the severe hostility of these
courts, and had to maintain an arduous struggle even for
existence. Under such circumstances, its judgments and
opinions carried little weight in Westminster HIall; for few
wrere willing to listen to principles which had no authority
beyond the narrow walks of Doctors Commons. If we except the aid borrowed from the civilians of the continent, the
masterly treatise of Mr. Abbott on the law of shipping is
principally founded on the adjudicationis since the elevation
of Lord Mansfield to the Bench; anli in these adjudications,
the general consistency with principle is as distinguishable,
as their practical importance.
We have the rather dwelt upon these improvements in
maritime law, because they are most obvious to the general
observer, and, therefore, most readily admitted. In the several branches of this law, instead of a few elemenitary priinciples, and a few decisions, turning upon nice distinctions, we
have now a regular system; which, though not entirely perfect, exhibits Fitch a scientific arrangement and harmony of
principles, that in rtiost of the questions arising in pra8ctice,
the profession are erabled to relieve themselves from those
distressing doubts, which never fail to bring discredit uponr
the law for its supposed uncertainty. Birt improvement has
not been confined to commercial law. A spirit of scientific




70              MISCELLANEOUS WRITINGS.
research has diffused itself over the other departments of the
common law; contested questions are now, and for a long
time have been, sifted with the most laborious diligence, and
the limits of principles established, with a philosophical precision and accuracy, which is rarely observable in the old
reports. The doctrines of uses and trusts, of last wills and
testaments, of contingent remainders, of executory devises,
and of legacies, although resting on ancient and immovable
foundations, are reduced to a very high degree of exactness
and consistency, and followed out into their regular results
with a truly logical conformity to principles, for which we
might search in vain in the annals of former times.
But although much has been done in modern times, to
methodize the common law, and give it a systematic character, so that we may not only arrive at its principles by regular analysis, but teach its elements and distinctions by an
enlarged synthesis; yet it is not to be imagined, that the
profession have to encounter less labor, or to exercise less
diligence, than formerly, in order to obtain a mastery of the
science; or that there is little uncertainty in applying it to
the solution of those questions which perpetually arise in
human transactions. To a certain extent, law must forever
be subject to uncertainty and doubt; not from the obscurity
and fluctuation of decisions, as the vulgar erroneously suppose, but from the endless complexity and variety of human
actions. However certain may be the rules of the statute or
common law, they must necessarily be general in their language, and incapable of a minute and perfect application to
the boundless circumstances of life, which may modify, limit,
or affect them. It is impossible to provide by any code,
however extensive, for the infinite variety of distinctions, as
to civil justice, arising from the imperfection of human language and foresight, from the conflict of opposing rights,
from the effect of real or apparent hardships, and from those
minute equities, which are often found in different scales,
adding somewhat to the weight of each, but rarely forming




COURSE OF LEGAL STUDY.             71
an exact equipoise. Until human actions are capable of
being limited on every side to a definite range of circumstances, the permutations and combinations of which may
be perfectly ascertained and enumerated; until there shall be
an entire separation of right from wrong in all the business
of life, and the elements of each shall be immiscible and
repulsive; until, in short, we shall become absolutely pure
and perfect in our actions, and perfectly conusant of all the
operations of the past, the present, and the future; there will
remain immeasurable uncertainties in the law, which will
call for the exercise of professional talents, and the grave
judgments of courts of justice. We must be content, since
we cannot hope to realize these Utopian dreams of human
excellence, to secure the upright and enlightened administration of justice, by encouraging learned advocates to fit themselves for eminence at the Bar, and by supporting with liberal
salaries the dignity, the virtue, and the independence of the
Bench.
We have already intimated an opinion, that the improvements in the various departments of law have in no degree
lessened the necessity of laborious study to qualify gentlemen for the higher walks of the profession. The changes of
two centuries have greatly facilitated the means of acquiring
a thorough knowledge of the science; but they have also
widened the circle to an almost incalculable extent. Sir
Henry Spelman has left us a striking picture of the difficulties and discouragements of the study, of his own time.
In his preface to his Glossary, he says, " Emisit me [mater]
tamen sub anno altero [1579] Londinum juris nostri capessendi gratia; cujus cum vestibulum salutassem, reperissemque linguam peregrinam, dialectum barbaram, methodum
inconcinnam, molem non ingentem solum, sed perpetuis
humeris sustinendam, excidit, fateor, animus, blandioribusque
subridens musis, rigidam hanc minervam, ferreis amplexibus
coercendam, leni molimine delibari." To be sure, the discouragements of that day were not inconsiderable; the




72.             MISCELLANEOUS WRITINGS.
whole of the law was locked up in barbarous Latin, and still
more barbarous Norman French. The doctrines of special
pleading were obscured by the shades of a dead language,
and by the embarrassing subtilties of scholastic refinement.
The great body of the law was to be principally extracted
from the Year Books, and the elaborate, though immethodical abridgments of Statham, Fitzherbert, and Brooke. The
only guides, whichcould be said to illumine the way, were
the brief, but profound text of Littleton on Tenures, the
authoritative and methodical sketch of Glanville, the comprehensive, exact, and learned treatise of Bracton, (whom Sir
William  Jones has justly characterized as the best of our.
juridical classics,) and the perspicuous and compact work of
Fleta, in which the unknown author follows with steady
footsteps the path of his master. If to these we add the old
Tenures, the old and the new Natura Brevium, the Register
of Original Writs, the works of Britton and Staundforde, the
very able dialogues of St. German between a Doctor and
Student, the acute and subtile notes of Perkins, and the diffuse, but accurate and learned, commentaries of Plowden,1
we have the bulk of juridical authors, which were to be mastered by the student at the time, to which Sir Henry Spelman
refers. We do not mean to undervalue the labor, which was
necessary to accomplish this arduous task; and we well know,
that, what works did not then supply, could be acquired only
by the dry practice of a black-letter office, and a constant and
fatiguing attention upon courts of justice. But adding every
thing, which the most strenuous advocate of the ancient law
would ask, we may safely pronounce, that the labors of a modern student, if he means to attain eminence, must be infinitely
greater.  To be a sound lawyer, he must not merely taste,
The other reporters of this period, Keilway, Anderson, Moore, &c.,
were not then published. The Mirror of Justices, though:. of. an earlier
time, did not appear until a half century afterwards. There are some few
other works of this period, but they were not thought worth a distinct enumeration.




COURSE OF LEGAL STUDY.             73
but drink deep at the ancient fountains of the law. He must
acquire an accurate knowledge of the feudal tenures, and of
the ancient doctrines connected therewith, because they constitute the rudiments of the law of real estates; and yet,
much of this learning is remote from common use, and lies
deep in the dark and uncouth text of the primitive writers.
He must be initiated into the mysteries of real actions, which
will at once carry him back three centuries; for, since the
days of Queen Elizabeth, these actions have gradually sunk
into neglect; and unless he thoroughly comprehends them, he
can hardly be master of the modern actions of trespass and
ejectment, not to speak of our own state, where real actions
exist in their vigor, and remain the great remedies for deciding titles. If we add to this the necessary learning of personal actions, founded on torts or contracts, which in modern
times have branched out into an almost endless variety, we
shall have some notion of the extent of the labor, which is
now requisite to the attainment of the first rank in the profession.
This view of the subject may appear appalling to young
gentlemen, who are just quitting our universities, with the
intention of devoting their lives to the science of jurisprudence. It ought, however, to be a great consolation to them,
that the elementary writers are more faithful, more accurate,
and more polished, than in former times. The paths may
not always be well cleared, nor the prospects interesting; but,
in almost every direction, there will be found learned guides,
who cannot fail to diffuse a bright and steady cheerfulness,
during the most rugged journeys.
The superior advantages, in this respect, of our own times
over the past, will be apparent upon the slightest reflection.
If we look back to the termination of the century, succeeding the period, to which Sir Henry Spelman alluded, we
shall find, that the student had comparatively few additional
elementary works to assist his progress. Lord Hale, in his
preface to Rolle's Abridgment, (in 1668) gives us a list of
7




74              MISCELLANEOUS WRITINGS.
those which were most useful, and he contents himself with
adding to those already named by us, Rolle's Abridgment,
Lord Coke's Institutes, and the intermediate reporters between his own time and Plowden.1 Not but that some other
elementary works had in the mean time been published; but
they were not deemed by him peculiarly useful to students.
We have also, yet remaining, a letter of Lord Chief Justice
Reeve, addressed to his nephew about seventy years later,
(9 Geo. II.) on the study of the law, by which we find, that,
in his opinion, (with which we do not coincide) Finch's
Law, Hale's History of the Common Law, and Wood's Institutes, were the most material elementary works, that had
been added to the old stock during this whole period.2
The publication of Blackstone's Commentaries (in 1765)
constituted a new epoch in the annals of the common law.
Previously to that period, the learned author had published
his Analysis of the Laws of England3 which exhibited the
outline of the method and principal divisions, which the
Commentaries were intended to fill up, in pursuance, indeed,
of the plan which had been previously sketched by the masterly pen of Lord Hale. Of a work, which has been so
long before the public as Blackstone's Commentaries, it cannot be necessary for us to utter one word of approbation.
For luminous method, for profound research, for purity of
diction, for comprehensive brevity, and pregnancy of matter,
for richness in classical allusions, and for extent and variety
of knowledge of foreign jurisprudence, whether introduced
for illustration, or ornament, or instruction, it is not too much
to say, that it stands unrivalled in ours, and, perhaps, in
every other language. There have not, however, been wanting, of late years, attempts to undervalue the importance of
1 Lord Hale's preface to Rolle is well worth the diligent perusal of students.
2 The letter of Lord Chief Justice Reeve is published in the Collectanea
Juridica, vol. i. p. 79.
3 The Analysis was first published in 1 756.




COURSE OF LEGAL STUDY.             75
these Commentaries. It has been suggested, that in some
parts the work is superficial, and in others, too general and
elementary; that it cannot be safely relied on as authority;
and that it teaches the science so imperfectly, that it has
almost as great a tendency to mislead as to'instruct. These
objections seem to us founded upon a total misconception of
the design of the work. The author did not undertake to
exhibit a full and perfect view of the common law, but
merely a summary sketch of its most important doctrines
and distinctions.
That some errors may be found by a strict scrutiny cannot
be denied; but, from the vast extent and variety of the materials, such errors were to be expected. The only wonder is,
that so much should have been accomplished, with so little
intermixture of false doctrine, and obscure and inaccurate
statement. We cannot express our own sentiments better
than in the language of that admirable ornament of juridical
literature, Sir William Jones: "His Commentaries are the
most correct and beautiful outline, that ever was exhibited of
any human science; but they alone will no more form a lawyer, than a general map of the world, how accurately and
elegantly soever it may be delineated, will make a geographer. If, indeed, all the titles, which he professed only to
sketch in elementary discourses, were filled up with exactness and perspicuity, Englishmen might hope at length to
possess a digest of their own laws, which would leave but
little room for controversy, except in cases depending on their
particular circumstances." — (Jones on Bailments, 3, 4.)
But the most incontestable proof of the excellence of the
work is to be found in the striking effects which its publication produced in every department of the common law. By
the elegance of its style, and the novel dress in which it
clothed the elements of law, it immediately attracted universal attention in England. It was soon considered as an indispensable part of the library of every statesman and private
gentleman.  It invigorated the ambition of students, and




76              MISCELLANEOUS WRITINGS.
relieved them at once from many of the discouragements and
difficulties, which previously embarrassed every step of their
progress. There are lawyers yet living, who can attest the
prodigious change, which it once produced in our country.
Law was no longer considered a dry and sterile study. It at,once became fashionable; and this circumstance, combining
with the nature of our political institutions, (which make a
legal education, if not a prerequisite, at least a very important qualification, for political distinction and public office,)
has contributed in a very high degree to that great increase
of the bar, and that ascendency in society, which distinguish
the profession, in this, more than in any other country.
It was almost impossible, that such a strong excitement
should not awaken the ardor of other gentlemen of juridical
learning and leisure, to follow out into its regular details a
design, which had been so nobly conceived and executed by
the illustrious commentator. Accordingly, there has been a
larger number of treatises on the leading topics of the common law produced within the last half century, than in all
preceding time. And these treatises are, in general, distinguished by a scientific distribution, exact method, propriety
of style, and clear exposition of principles and authorities,
which are rarely to be found in any of our older juridical
essays or dissertations. In fact, the bulk of former elementary works was little more than a collection of decisions
under general heads, without any successful attempt to systematize the matter, or subject it to a critical analysis.
Among the most striking exceptions to this remark (for some
exceptions exist) on the civil side, are the law tracts of Lord
Bacon, the profound, but imperfect treatises of Lord Chief
Baron Gilbert, the ingenious sketch of the Law of Tenures
by Sir Martin Wright, and the brief, but very exact treatise
on Equity, attributed to Mr. Ballow; and, on the criminal
side, the very learned and authoritative works of Lord Hale,
the copious digest of Mr. Serjeant Hawkins, and the truly
admirable discourses of Sir Michael Foster. We forbear to




COURSE OF LEGAL STUDY.              77
speak at present of Comyns's Digest, intending hereafter to
notice it in another place.
Among the modern works, of which we have been speaking, there are not a few on subjects of the very first importance, and of almost daily occurrence in practice, for exact
information in which the student would have searched in
vain in the abridgments and treatises of former ages. Where,
for instance, shall we look for a work, like Mr. Fearne's
Essay on Contingent Remainders and Executory Devises?
This subject, which constituted one of the most obscure, and
must forever remain one of the most intricate titles of the
common law, had been already sketched out by the masterly
hand of Lord Chief Baron Gilbert; I but, like all his other
writings, it was left in a detached and imperfect shape. It
was reserved for Mr. Fearne to honor the profession by a
treatise so profound and accurate, that it became the guide
of the ablest lawyers; yet so luminous in method and explanations, that it is level to the capacity of every attentive
student. He has, in fact, exhausted the subject; and this
chef d'oeuvre will forever remain a monument of his skill,
acuteness, and research.  All that the most accomplished
lawyer can reasonably hope, is to add a commentary of new
cases and principles, as they arise, without venturing to touch
the sacred fabric of his master. The treatise of Lord Redesdale on Pleadings in Chancery is of the same masterly and
original character. It has traced out the nature and extent
of the jurisdiction and practice of courts of chancery with
so much brevity, perspicuity, and analytical exactness, that
probably to this, more than any other work, we owe some of
the most valuable improvements in the principles, as well as
the proceedings, which regulate the administration of equity.
Later works on the same subject (such as Mr. Cooper's) have
added much valuable matter, founded on recent decisions;
but the basis of these, as well as of all future works, must' See Bacon's Abridgment, Guillim's Edition, title, Remainder and Reversion.
7*




78              MISCELLANEOUS WRITINGS.
rest on the solid foundations, laid by the noble Chancellor.
Lord Eldon pronounced its eulogy in his best manner, when
he declared, that " it is a wonderful effort to collect what is
deduced from authorities, speaking so little what is clear, that
the surprise is not from the difficulty of understanding all he
has said, but that so much can be understood."
There are many other treatises upon particular titles of the
law, which might properly be taken notice of in this place, in
vindication of the opinion we have expressed; but it is
beside our present purpose to analyze the merits of juridical
authors.  We cannot, however, close these brief remarks,
without calling the attention of our readers to the very excellent treatises of Mr. Park and Mr. Marshall on Insurance,
which have done so much towards giving a scientific cast to
doctrines so recently incorporated into the common law.
Their merit is unquestionably of a very high order; and yet,
probably, the most perfect theoretical work on Insurance is that
of the learned Emerigon, which (strange to tell) has never been
translated, although we have been almost overrun with transfisions from  German and French sciolists by the enterprise
or selfishness of English booksellers.  We trust, that the
time is not far distant, when Pothier and Emerigon and
Valin will be accessible in our native tongue to every lawyer, and will be as familiarly known to them as they now
are to the jurists of continental Europe.
It has been doubted by some persons, whether the present
facilities in the study of law have a tendency to make as
profound and accurate lawyers, as the old dry and desultory
course. It is supposed, that the comparative ease with which
the student may now advance into the most intricate doctrines, impairs, if it does not extinguish, that ardor of pursuit, which distinguished and disciplined the lawyers of the
black-lettered times. For ourselves, we do not perceive the
slightest foundation for the opinion, and we deem it radically
erroneous. It might as well be contended, that turnpikes
through every part of a thickly settled country have a ten



COURSE OF LEGAL STUDY.             79
dency to obliterate the knowledge of its surface or its cities.
It is true, that thereby the old roads are less known and less
travelled; but who can doubt, that by such means the facility
of intercourse and the interchange of every thing important
in the commerce of life, are greatly augmented, and that
public improvements circulate with tenfold rapidity and
force? Nor is it very easy to perceive, how any particular
science can be injuriously affected by the thorough development of its principles and practice. If the lucubrations of
twenty years were necessary in former times, (as Fortescue
informs us they were,) to acquire a competent knowledge of
the law for ordinary practice; and if the whole of that mass
can, by modern helps, be mastered in half that period, it is
certainly so much time gained in the business of life; and
time, in the science of law, as well as in almost every thing
else, is of incalculable importance. The modern works do
not teach the law in any new and superficial manner. There
is no royal road to this, any more than to the science of
mathematics. But the principles are now more closely investigated, the problems more fully enunciated, and the boundaries between the known and the unknown more exactly defined. Instead of sparse and scattered maxims, we have
regular systems, built up with general symmetry of parts;
and the necessary investigations in new and difficult cases
are conducted with more safety, because they are founded on
inductions from rules better established and more exactly
limited. Yet, with all these advantages, to become an eminent lawyer is now a task of vast labor and difficulty. The
business of the profession has extended itself, as we have
already intimated, incalculably, both in quantity and variety.
The most diligent study and practice of a long life are
scarcely sufficient to place any gentleman beyond the necessity of continual exertions to keep pace with the current of
new opinions and doctrines. It is true, that in the humbler
walks of the profession, men of feeble talents and acquirements may now obtain a maintenance, and sometimes, per



80              MISCELLANEOUS WRITINGS.
haps, accumulate a fortune; but this is no more than what
the experience of all ages has shown. There have always
been obscure attorneys, whose industry, or cunning, or patronage, has given them the command of that portion of
business, which is not without profit, if it be not attended
with honor. But the sphere of professional activity is now
greatly enlarged; and talents and acquirements are more
easily measured, since the mysteries of the science are
equally accessible to all; and little room is now left in the
obscurities of a barbarous language for imaginary excellence,
or for the concealment of quackery in the repetition of a technical jargon. That some titles of the common law are not
as well understood, as in former times, may be safely admitted; and it is because they are either obsolete, or their relative importance is greatly diminished. But as to all the law
in modern practical use, we are distinctly of opinion, that
the science is better understood than in any former age. A
philosophical spirit of investigation now pervades the bar
and the bench, and we are freed from the blind pedantry and
technical quibbles of the old schools. Many of the doctrines
relative to the feudal tenures, such as reliefs, premier seisin,
escuage, chivalry, villanage, grand sergeanty, homage, frank
marriage, profession, attaints, and others of a similar nature,
are now very little known; but, surely, it is not to be inferred,
because subjects so utterly insignificant have sunk into obscurity, that the law has lost its vigor, or the profession lack
learning. Probably few, if any, lawyers in our country are
intimately acquainted with the law of copyholds and advowsons; yet, it would be strange to assert, that the want of such
knowledge was a gross defect in professional education, when
the subject-matter, upon which it can operate, has no existence in the United States.
The same remarks are in a good degree applicable to real
actions, with all their accompaniments of process, essoins,
aid prayers, vouchers, receit, &c. The irresistible tide of time
has swept away the actions of assize, the writs of aiel, be



COURSE OF LEGAL STUDY.                   81
saiel, and mort d'ancestor, cessavit, quo jure, ne injuste vexes,
de rationabilibus divisis, secta ad molendinum, nuper obiit,
quod permittat, and the trial by battle; and though, in our
own state, writs of entry, formedon, and right still exist, yet
they have been moulded into so simple a form, that most of
the ancient peculiarities are utterly extinct;' and in England, as well as in most of the States of the Union, they are
gone with the years beyond the flood, and the action of ejectment has almost universally superseded all real actions. It
is, perhaps, just matter of regret, that real actions have so
entirely sunk into disuse; since many doctrines applicable to
modern remedies can scarcely be thoroughly understood,
without reference to this department of antiquated learning.
Many principles in every system of municipal law must be
purely technical, and sometimes of arbitrary regulation; and
the reason of them may be lost, long before the principles themselves disappear in practice. As long as such principles continue to exist, it is important to preserve the knowledge of the
original reasons, on which they are founded, and the limits
which regulate their application. An instance illustrative of
these remarks occurred in the modern case of Taylor v. Horde,
(1 Burr. R. 60.) It there became material to ascertain the
exact nature of disseisins in the ancient law. Lord Mansfield on that occasion said, " The precise definition of what
constituted a disseisin, which made the disseisor the tenant to
the demandant's precipe, though the right owner's entry was
not taken away, was once well known, but it is not now to
be found. The more we read, unless we are careful to distinguish, the more we shall be confounded."   We have
I We take this occasion to correct an error, into which Mr. Hoffman has
inadvertently fallen, in supposing (p. 144) that real actions are in daily
use in Massachusetts, with all their concomitants of voucher, counterplea of
voucher, &c. &c. Real actions are here in use, and with them all those
pleadings and proceedings, which are necessary for the furtherance of justice
between the parties. But all the pecularities of process, essoins, and vouchers, and counterpleas, &c., are obsolete, and superseded by a great simplicity
of proceeding, greater, perhaps, than attends even the formal proceedings
in ejectments.




82             MISCELLANEOUS WRITINGS.
heard it questioned by a late learned judge, whether Lord
Mansfield had gone to the bottom of this doctrine. But,
however this may be, the case abundantly instructs us, how
many distressing doubts may arise from the partial eclipse of
lights once so familiarly known. It ought not, however, to
be forgotten, that real actions have not gone into disuse by
any sudden and arbitrary abolition, but from the intricacies
and delays in the ancient proceedings therein, and from their
unfitness for a convenient investigation of numerous questions arising from the complicated conveyances of modern
times. For example, it is often a question of serious difficulty to decide, whether an estate be a fee simple, a fee tail,
or an estate for life; the limitations of estates are sometimes
very numerous, and the cases, in which they have lapsed,
and the links of descent and heirship, are often imperfectly
known. In all these cases there must be very great embarrassment thrown in the way of a demandant in a real action,
and he may be turned round several times before he can
obtain a decision upon his title. He may successively be
driven from writs of entry of every degree to a formedon, and
even to a writ of right; and, after all, he may be defeated by
a mistake in the pleadings, (which he will not be allowed to
amend,) having little or nothing to do with the merits of his
cause. So that, if something be lost by the disuse of real
actions, much (at least in England) has probably been gained
in substantial justice and convenience, and even certainty of
remedy.
It has been also suggested, that special pleading has suffered greatly by the modern changes in the study of law;
and that it is every day less and less understood. If this
were true, it might be satisfactorily accounted for upon
grounds altogether distinct from the decline of professional
learning. In most of the actions in modern use, special
pleading is rarely necessary or advisable. When the action
of assumpsit was first introduced, special pleas and issues
were very common; but for more than a century they have




COURSE OF LEGAL STUDY.               83
disappeared in practice; and almost every defence, except
that of the statute of limitations, is now determined under
the general issue. With the exception above stated, a special plea is never heard of in actions on promissory notes,
bills of exchange, policies of insurance, nor, indeed, any other
simple contracts; and these form by far the largest portion
of the business which at present occupies the attention of
courts of justice. In actions, too, for the recovery of real
estate, whether the ancient real actions, or the modern action
of ejectment, almost every defence is tried under the general
issue. The same remark applies to trover, and, in general,
all other actions on the case; and, with the exception of
actions of debt, covenant, trespass, slander, and replevin,
which are, comparatively speaking, infrequent, special pleading is entirely out of use. Even in these actions, by the
laxity of practice, and the provisions of statutes, the use of it
has been very much abridged.
These considerations disclose a sufficient reason, why special pleading may be less regarded in practice, than in former
times, and why its relative value may not always be duly
appreciated in the profession. It is unquestionably a branch
of learning of vast, nay, of indispensable, importance to every
lawyer. Without an accurate knowledge of its principles, it
is impossible to frame actions or declarations for a variety of
cases arising in common practice; and, if the foundations are
not well laid, the superstructure cannot stand. It is the best,
and perhaps the only, method to obtain a thorough and exact
knowledge of the proper boundaries of actions, upon which,
frequently, the success or loss of a cause may ultimately
depend. Lord Ashburton, in his celebrated letter to a student
of law, observes, " It is usual to acquire some insight into real
business under an eminent special pleader, previous to actual
practice at the bar. This idea I beg leave strongly to second;
and, indeed, I have known few great men, who have not
possessed this advantage." Nor should it be forgotten, that
special pleading has a most salutary effect in disciplining the




84               MISCELLANEOUS WRITINGS.
mind for an accurate investigation of principles, and accustoming it, by a sort of intellectual chemistry, to the most
subtile analysis and combinations. It has been truly asserted
by Lord Mansfield, that " the substantial rules of special
pleading are founded in strong sense and the soundest and
closest logic; and so appear, when well understood and explained; though, by being misunderstood and misapplied,
they are often made use of as instruments of chicane." We
remember to have heard the late Chief Justice Parsons (who
was an excellent special pleader) declare, that, in knotty and
difficult cases, he always found more certain and satisfactory
results in trying them by the rules of special pleading, than by
any other method. Sir William Jones, in his preface to the
speeches of Ismaus, has beautifully illustrated the same thought.
" Our science," says he, "of special pleading is an excellent
logic; it is admirably calculated for the purpose of analyzing
a cause, of extracting, like the roots of an equation, the true
points in dispute, and referring them, with all imaginable
simplicity, to the Court, or the jury. It is reducible to the
strictest rules of pure dialectic; and, if it were scientifically
taught in our public seminaries of learning, would fix the
attention, give a habit of reasoning closely, quicken the
apprehension, and invigorate the understanding, as effectually as the famed peripatetic system, which, how ingenious
and subtile soever, is not so honorable, so laudable, or so
profitable, as the science, in which Littleton exhorts his sons
to employ their courage and care." Such commendation
supersedes the necessity of all farther discussion of the
importance of pleading.
But we doubt the fact, that special pleading is not as well
understood as in former times. On the contrary, we incline
to believe, that by eminent lawyers its principles are now
more fully comprehended, and more philosophically examined,
than in any preceding period. The age of scholastic quibbling and petty subtilty has passed away, and the quaint
trifling, which disfigured and disgraced the science, is no




COURSE OF LEGAL STUDY.              85
longer in fashion. Special pleading is now applied to its
original and proper purpose, the attainment of substantial
justice and the introduction of certainty of remedy.  The
good sense and sound logic of modern times has substituted
for the artificial pedantry and narrow maxims of the dark
ages of the law, rules which'commend themselves to all
men by their intrinsic propriety and excellence for deciding
contested rights. The best ancient treatise on the subject is
Mr. Euer's Doctrina Placitandi, a book which Lord Chief
Justice Willes pronounced, in his time, to contain more law
and learning than any other book he knew (2 Wils. R. 88);
yet what is this, when compared with the finished elementary
and practical treatises of Mr. Lawes or Mr. Chitty? It were,
indeed, desirable that modern pleaders should endeavor to
imitate more generally the pointed brevity and precision of
Rastall's Entries, and waste fewer words in their drafts of
declarations, which,
" Like a wounded snake, drag their slow length along."
It might not be useless for them to consider, that the great
aim ought to be, not how much, but how little, may be
inserted with professional safety. Here, at least, the study
of the ancients would amply repay all their toil, and subserve
essentially the public interests.  There is certainly some
danger, that the current of public opinion, aided by legislative
enactments, and not a little accelerated by a distaste for the
prolixity of modern pleading, may bring the science itself
into disrepute and neglect. If such an event should happen,
it will be matter of most serious regret. We hope, that the
few observations, which we have hazarded, may attract the
attention of the rising generation, and call forth abler pens in
the vindication and support of its principles and practice.
There are some other topics upon which it was our intention to trouble our professional readers with a few observations, in proof of the opinion that the law, as a science, never
8




86             MISCELLANEOUS WRITINGS.
was so well understood, nor so well taught, as at the present
period, and yet that a profound and comprehensive knowledge of it never was of more difficult attainment. We may,
however, safely pass from general reasoning, and appeal to
facts within the reach of every professional gentleman. In
our own country the advancement of the knowledge of the
science has been truly wonderful. The Bar and the Benches
of almost every State in the Union have, within the last
twenty years, very strikingly improved. There are lawyers
and Judges amongst us, who would sustain the weight and
dignity of Westminster Hall. And some of our Reports
exhibit arguments and opinions, which, for propriety and
force and logic and acuteness and erudition, have not been
excelled in the proudest days of the law. This rapid improvement has, without doubt, been greatly aided by the invigorating influence of the modern treatises in almost every
branch of law; but it has also owed much to the increased
diligence, which a lofty ambition of excellence has stimulated
among the master spirits of the profession.
But it is time for us to call the attention of our readers to
the immediate subject of this article. Mr. Hoffman has published a Course of Legal Study, which he modestly addresses
to students, but which is well worthy the perusal of every
gentleman of the bar.  Many works have been heretofore
written, professedly for the direction of persons engaged in
the study of the law; but, for the most part, these works
have, in a didactic form, laid down elementary precepts for
the moral conduct, the preparatory attainments, or the style
of elocution and oratory proper for an eminent advocate.
Some, indeed, are little more than a distillation from Quinctilian's Institutes and Cicero's Orator, without preserving the
pungent essence or eloquence of the originals. Mr. Hoffman's
work, on the contrary, is almost entirely practical; and it
contains a complete course of legal study, with a catalogue
of the principal books to be consulted or read under all the
titles of the law. The introduction is written with a good




COURSE OF LEGAL STUDY.            87
deal of force and good taste, and in a tone of strong and sensible argumentation. In point both of matter and manner,
it is highly creditable to the talents and acquirements of the
author.
The general course of study, proposed by Mr. Hoffman, is
summed up in the following general syllabus: —
" I. Moral and Political Philosophy.
" II. The Elementary and Constitutional Principles of the
Municipal Law of Elgland; and herein,
"1st. Of the Feudal Law.
" 2d. The Institutes of the Municipal Law generally.
"3d. Of the Origin and Progress of the Common Law.
" III. The Law of Real Rights and Real Remedies.
"IV. The Law of Personal Rights and Personal Remedies.
"V. The Law of Equity.
"VI. The Lex Mercatoria.
"VII. The Law of Crimes and Punishments.
"VIII. The Law of Nations.
" IX. The Maritime and Admiralty Law.
"X. The Civil or Roman Law.
"XI. The Constitution and Laws of the United States
of America.
" XII. The Constitution and Laws of the several States
of the Union.
"XIII. Political Economy."  p. 32.
This is followed by a particular syllabus under every title
of the general syllabus, in which are collected the best works
on every successive subject belonging to the heads under
which they are arranged. Connected with these heads is a
series of notes, or perpetual commentary upon the character
and relative value of the authors, whose works are cited, or
the'history and relative importance of the topics, which they
discuss, interspersed with many judicious observations of a
more general nature, which exhibit to great advantage the




88            MISCELLANEOUS WRITINGS.
liberality, sound judgment, and juridical knowledge of the
author. As a specimen of the style and spirit of the work,
we subjoin the note on the reading of Reports, and particularly of leading cases.
These observations of Mr. Hoffman are perfectly practical,
and, for the most part, accurate and just. In respect to the
praise bestowed on Mr. Viner's Abridgment, we are constrained to differ from the learned gentleman. We are far
from thinking it the safest abridgment for reference. It is a
very irregular fabric, built up on the basis of Rolle's Abridgment, with an incorporation of the principal matter of Fitzherbert, and Brooke, and other old abridgers.  It abounds
with inaccuracies and repetitions; and it is quite obvious,
that the author more frequently consulted the works of other
abridgers, than the original reports, to abbreviate and digest
for himself. We agree, however, with Mr. Hargrave, (Co.
Litt. 9. a. note 3,) that "notwithstanding all its defects and
inaccuracies, it must be allowed to be a necessary part of
every lawyer's library. It is, indeed, a most useful compilation, and would have been infinitely more so, if the author
had been less singular and more nice in his arrangement and
method, and more studious in avoiding repetitions." Bacon's
(or, more properly, Gilbert's) Abridgment is more full in the
development of principles and the statement of cases; and,
in every respect but copiousness, is a superior production. It
is incomplete; but this was the hard fate of all the writings
of the most learned author, which were sent into the literary
world with all their original imperfections on their head.
For ourselves, we confess, that in our opinion every other
abridgment suffers greatly in comparison with the Digest of
Lord Chief Baron Comyns. For succinctness and brevity,
for exact method and arrangement, for perspicuity and accuracy, for copiousness in principles and illustrations, and for
comprehensive analysis, it stands unrivalled in the annals of
the law. On one occasion, Lord Kenyon (Pasley v. Freeman, 3 T. R. 51, 64,) said, " I find it laid down by the Lord




COURSE OF LEGAL STUDY.                  89
C. B. Comyns, &c. He has not, indeed, cited any authority
for his opinion; but his opinion alone is of great authority,
since he was considered by his contemporaries, as the most
able lawyer in Westminster Hall." In some other more
recent cases, the Court of King's Bench have proceeded to
adjudicate some very important questions, upon the sole
authority of his Digest,l an honor, which we believe, has
never been conceded to any other compiler. It has frequently
occurred to us, that our professional brethren of the South
did not sufficiently appreciate the merits of this work. They
appear to be devoted to Bacon's Abridgment, and pass over
Comyns's Digest, as a book merely of occasional reference,
entitled to little either of praise or blame. How, otherwise,
can we account for Mr. Hoffman's omission, under the article
of pleading, to recommend the admirable title, Pleader, in
the Digest, a title, which has collected and exhausted, in a
most scientific order, the whole principles of the science.
The title, " Pleas and Pleadings," in Bacon's Abridgment, is
an excellent sketch; but it is but a sketch, and, compared
with the title of Comyns, just mentioned, is but twilight to
the meridian day. We would respectfully ask the attention
of Mr. Hoffman, and of Southern lawyers in general, to the
following observations of Mr. Hargrave: "The whole of
Lord Chief Baron Comyns's work is equally remarkable for
its great variety of matter, its compendious and accurate
expressions, and the excellence of its methodical distribution;
but the title,'Pleader,' seems to have been the author's
favorite one, and that in which he principally exerted himself." (Co. Litt. 17, a. note 1.)
1 We take this opportunity to enter our protest against that book-making
spirit, which has disfigured all the modern editions of this incomparable
work. The original edition in folio (1762) is far superior to all the later
editions. These have the addition of the modern cases, it is true; but they
consist of the marginal notes of the reporters, thrust into the text without
order or propriety, and destroy its symmetry and connection. A supplement of modern cases and principles upon the plan of Comyns's Digest, in a
distinct work, would be an invaluable present to the profession.
8*




90              MISCELLANEOUS WRITINGS.
The remark, too, of Mr. Hoffman, that "the books of
reports contain the law in the precise phraseology, in which
it was administered by the judges," requires some qualification. With the exception of the Reports of Plowden,
Coke, and Vaughan, and a very few great cases in other
Reports, the remark can scarcely be said to be true of any
Reporter, before the time of Sir James Burrow. There are
some other unimportant particulars, in which we differ from
Mr. Hoffman; but, with these trifling exceptions, we entirely
agree in the opinions of Mr. Hoffman, as to the importance
and utility of reading the original Reports. We presume,
that the omission to notice the Massachusetts Reports, in
company with Mr. Johnson's, Mr. Binney's, and Messrs.
Henning and Munford's, was accidental; for, if we do not
deceive ourselves, in point of learning and accuracy they
yield to few, if any, in our country.
What particularly pleases us is the enlarged and liberal
view with which Mr. Hoffman recommends the student of
the common law to a full and careful study of the Admiralty, Maritime, and Civil Law. If the note on the excellence of the civil law (p. 254) were not too long, we should
gladly insert it in this place. We commend it, however, as
well as his observations on the law of nations and the admiralty law, most earnestly, to all those who aspire to eminence as statesmen, or scholars, or lawyers. To Mr. Hoffman's list of books, on these subjects, we beg leave to add
Heineccius's Elements of the Civil Law, according to the
order of the Institutes and the Pandects, whom Sir James
Mackintosh has not scrupled to pronounce " the best writer
of elementary books, with whom he is acquainted on any
subject."! We also recommend Ferriere's Dictionnaire de
Droit et de Pratique, Calvinus's Lexicon Juridicum, M.
1 Sir James Mackintosh's Introductory Discourse on the Study of the
Law of Nature and Nations, is a most finished composition, abounding in all
the graces of juridical eloquence, and pregnant with most important and
edifying learning.




COURSE OF LEGAL STUDY.             91
Dessaules' Dictionnaire du Digeste, Exton and Zouch and
Spelman on the Admiralty Jurisdiction, Cleirac's Us et Couturnes de la Mer, Emerigon Trait6 des Assurances, Pothier's
Works, and particularly his Treatises on Maritime Contracts,
Boucher's Translation of the Consolato del Mare, Peckius ad
Rem Nauticum, D'Abreu sur les Prises, and though last, not
least, Casaregis's Discursus de Commercio.
We must now hasten to a close, although there are some
discussions, which the perusal of Mr. Hoffman's work has
suggested, which we very reluctantly pass over. In quitting
the work, we have not the slightest hesitation to declare, that
it contains by far the most perfect system for the study of
the law which has ever been offered to the public. The
writers whom he recommends are of the very best authority; and his own notes are composed in a tone of the most
enlarged philosophy, and abound in just and discriminating
criticism, and in precepts calculated to elevate the moral as
well as intellectual character of the profession. The course
proposed by him is very ample, and would probably consume seven years of close study. But much may be omitted, where time and opportunity are wanting to exhaust it.
We cordially recommend it to all lawyers, as a model for the
direction of the students who may be committed to their
care; and we hazard nothing in asserting, that if its precepts are steadily pursued, high as the profession now stands
in our country, it will attain a higher elevation, an elevation which shall command the reverence of Europe, and
reflect back light and glory upon the land and the law of our
forefathers.
We have another motive, besides the intrinsic value of the
work, for commending it earnestly to the perusal of our
readers. It will demonstrate to the understanding of every
discerning man the importance, nay, the necessity, of the
law-school, which the Government of Harvard College have,
so honorably to themselves, established at Cambridge. No
work can sooner dissipate the common delusion, that the




92             MISCELLANEOUS WRITINGS.
law may be thoroughly acquired in the immethodical, interrupted, and desultory studies of the office of a practising
counsellor. Such a situation is indispensable after the student shall have laid the foundation in elementary principles,
under the guidance of a learned and discreet lecturer. He
will then be prepared to reap the full benefits of the practice
of an attorney's office. But, without such elementary instruction, he will waste a great deal of time in useless and
discouraging efforts; or become a patient drudge, versed in
the forms of conveyancing and pleading, but incapable of
ascending to the principles which guide and govern them;
or sink into a listless indolence and inactivity, waiting for
the arrival of the regular period for his admission to the bar,
without one qualification to justify the honor which he
receives. One year passed at the University, in attendance
upon the lectures of the very respectable gentleman, who has
recently been appointed to preside over the law-school there,
would lay a foundation of solid learning, upon which our
ingenuous and ambitious youth might confidently hope to
build a fabric of professional fame, which would carry them
to the first honors of the bar, and make them, on the bench,
the ornaments of their country.




LITERATURE OF THE MARITIME LAW.
AN ARTICLE WRITTEN FOR THE NORTH AMERICAN REVIEW, IN 1S19,
ON A WORK ENTITLED, " THE LAWS OF THE SEA WITH REFERENCE TO MARITIME COMMERCE DURING PEACE AND WAR," FROM
THE GERMAN OF FREDERICK J. JACOBSEN, ADVOCATE, ALTONA, 1815.
THE Ancients have left us but little on the subject of commercial law; and that little has lost much of its value in
modern times. It may, perhaps, be supposed, that a great
deal has perished amidst the ruins of the dark ages; or has
been swallowed up in the desolations of conquest, or the
overwhelming obliterations of time. Much splendid declamation has been employed in describing the maritime glory
of the Phoenicians, and the Cretans, and the Rhodians, and
the Egyptians, and the Greeks, and the Carthaginians, and
the Romans. Without question, the coasts of the Mediterranean were, from early times, inhabited by warlike, enterprising, and industrious races of people. They had different
commodities to exchange, adapted to the natural and artificial wants, the necessities and the luxuries of the different societies, into which they were divided. It was, of course, that
ambition and enterprise, the love of wealth, and the desire of
gratifying curiosity, should create an active interchange of
these commodities, both by sea and land.  The spirit of
commerce, once excited, is not easily extinguished or controlled. It is a useful spirit, which imparts life and intelligence to the body politic, increases the comforts and enjoyments of every class of people, and gradually liberalizes and
expands the mind, as well as fosters the best interests of hu



94             MISCELLANEOUS WRITINGS.
manity. Many usages must necessarily grow up in such a
state of things, where many independent nations are engaged
in trade with each other; which usages, at first determined
by accident, or convenience, or the dictates of common sense,
must gradually ripen into rights and duties, and thus regulate the concerns of commerce. It is not, therefore, to be
supposed, that the nations of whom we have spoken were
wholly without any principles of maritime law. But there
are many reasons for believing, that nothing like an enlarged
and general system of that law was ever adopted by any of
them.
In the first place, the business of their commerce was extremely simple, their voyages were short, and their shipping
was adapted to small cargoes and narrow reaches. They
were obliged to ply the shores; and neither their interest nor
their means, in the then state of navigation, allowed them to
plan or execute the complicated voyages of modern times.
The coasting trade of a single modern maritime power is
probably far more extensive than the whole trade of many
flourishing states of antiquity; at least, the operations of that
trade were far less complicated; and yet the coasting trade
has given rise to comparatively few of the questions of modern maritime law. In the next place, most of the ancient
governments, whether despotic or free, seem to have devoted
themselves more to the profession of arms, and the increase
of their military and naval power, than to the encouragement of peaceful commerce. In the despotic governments,
almost every thing was left to the undefined discretion of
the sovereign, who would not easily be induced to circumscribe the limits of his own authority. In the free governments, the jarring of discordant interests, and the impatience
of legislative control, manifested by the mass of the people,
combined with the almost continual foreign warfare, in which
they were engaged, to prevent any effort to systematize their
civil polity. Under such circumstances, it is not very probable, that any public regulations could be framed in respect to




LITERATURE OF THE MARITIME LAW.        95
maritime contracts, exeept in some few cases of extraordinary
occurrence, or peculiar difficulty.  The Romans, indeed,
seem to have been the only people who attempted to methodize the principles even of their municipal law. It has been
remarked by Dr. Adam  Smith, (Wealth of Nations, b. 5,
ch. 1, part 3, art. 2,) that " Though the laws of the Twelve
Tables were many of them copied from those of some ancient Greek republics, yet law never seems to have grown up
to be a science in any republic of ancient Greece. In Rome,
it became a science very early." Nor do we recollect, that it
ever has been pretended, at least in respect to maritime law,
that any of the ancient nations, except the Rhodians, had
formed any thing like a commercial code; and that the extent, as well as the importance, of this code has been greatly
overrated, we think there are very strong reasons to believe.
Whatever was most valuable in that code was, without
doubt, well known to the Romans; and, so far as it suited
their own more enlarged commerce, was probably transfused
into their own jurisprudence. And we shall hereafter see,
what have been the value and extent of the obligations of
the Romans to the Rhodian Laws in this particular.
As to the manuscript, found in the library of Francis
Pithou, a celebrated jurist of the sixteenth century, which
was published, first at Basle, in 1561, by Simon Scardius,
and afterwards at Frankfort, in 1596, by Marquardus Freer
and Leunclavius, as genuine fragments of the Rhodian Laws,
it may be observed, that, if their genuineness were completely established, they would not increase our veneration
for the wisdom, or the commercial polity of the nation whose
name they bear. But the critical sagacity of modern civilians has not hesitated to reject these fragments, as more than
apocryphal, as the fictions of some jurist, as late, at least, as
the middle ages. It is true, that they have been silently
quoted or directly asserted as genuine, by Cujas, by Selden,
Godefroi, Vinnius, and other eminent jurists. Bynkershoek
first boldly denied their authenticity; the cautious and ac



96             MISCELLANEOUS WRITINGS.
complished Heineccius followed in the same path; and their
opinion has been generally adopted by the learned of the
eighteenth century. Rejecting, therefore, as we do, the Fragments of the Rhodian Laws, as a modern fraud, there is
nothing which has reached us, except the codes and the
compilations of the Roman emperors, which even wears the
habiliments of ancient maritime jurisprudence; and so far
are we from thinking, that any thing material has been lost,
that we consider the substance of all ancient maritime jurisprudence, as embraced in the titles of the Corpus Juris Civilis. The circumstances under which the Roman codes
were compiled, do, as we think, fully justify these remarks.
At the period when Justinian meditated the great works,
which have immortalized his memory — a monument of
fame more desirable than all that conquest can bestow, and
which seems destined to endure to the end of time — the
Roman empire had passed through its brightest ages of military, civil, and commercial grandeur.  She had been for
centuries as renowned for her jurisprudence, as for her arms.
A succession of learned men had adorned her courts, as
judges or as lawyers, who had left behind them their arguments, opinions, and commentaries, upon most of the important branches of her law.  Besides these, there were the
honorary law, and edicts of her praetors, the plebiscita and
senatus consulta of the days of the republic, the imperial
constitutions and rescripts of her emperors, the collection of
the honorary law, or perpetual edict of Julian, and the successive codes of Gregorius, Hermogenes, and Theodosius.
From these materials were composed the Institutes, the Code,
and the Pandects of Justinian. So that they may be truly
considered, as the depository of the collected wisdom of all
her sages, and as a most authentic transcript of her municipal law, in its most perfect state. Nor is this all. She had
successively conquered, and incorporated into her domain,
almost all the other civilized nationsof the Eastern continent,
including those, which had been most distinguished in com



LITERATURE OF THE MARITIME LAW.           97
merce; and it can scarcely be doubted, that whatever was
excellent in their maritime police, had been, from time to
time, adopted into her own jurisprudence by the rescripts of
her emperors, or by the more salutary decisions of her courts,
guided by the principles of equity, and selecting, with true
national comity, from the usages and the learning of foreign
countries. We have direct evidence of this position in the
fourteenth book of the Pandects, title second, ad Legem
Rhodiam de Jactu, where, in a case of maritime law, put to
the emperor Antoninus, he answered " Lege id Rhodia, qua
de rebus nauticis prascripta est, judicetur; " plainly importing, that the doctrines of the Rhodian Laws on this subject
had been recognized and incorporated into the Roman jurisprudence. As to the manner in which they were incorporated, it is highly probable, that it was not by any imperial
edict, but by the gradual operation of judicial decisions,
adopting them as rules, founded in general convenience, and
fitted to the commercial transactions of Rome itself. What
strengthens this supposition is the fact, that the Rhodian
Laws are not to be found in the text of any of the Roman
codes; and the very title of the Pandects, where we should
expect to find them, if they had been adopted in mass, contains nothing but the commentaries and opinions of Roman
lawyers, on the principles, which regulate the application of
the law of jettison, and some few other nautical questions of
a kindred nature. If this be a just view of the case, and we
have no doubt it is, the Roman law, as collected by Justinian,
contains in itself the substance of all the maritime law of all
antiquity, improved by the philosophy and the learning of
Roman jurisconsults.  Yet, how narrow  is the compass,
within which the whole maritime law of Rome is compressed!
It scarcely fills a half dozen short titles in the Pandects, and
about as many in the Justinian Code,' mixed up with matter
properly appertaining to other subjects.
The principal titles in the Pandects are, Lib. 4, tit. 1. Nautae, caupones,.
stabularii, ut recepta restituant. Lib. 14, tit. 1. De exercitoria actione.
9




98                MISCELLANEOUS WRITINGS.
The most interesting and important are the titles in the
Pandects; three of which treat of the responsibility of the
owners and employers (exercitores) of ships for the safe keeping and delivery of goods shipped on freight, for the contracts
of the master in respect to the employment, repairs, and concerns of the ship, and for the acts and defaults of the agents
and mariners of the ship; one treats of bottomry and maritime loans, one of jettisons, and one of shipwrecks. Whoever expects to find, even under these heads, the minute details and practical principles of modern times, will certainly
be disappointed. He will, however, find the elements of our
own law on this subject, expressed with excellent sense, and
often illustrated by apt examples.  And brief, indeed, as are
these texts of the civil law, the whole maritime world has
paid them a just and voluntary homage, by adopting them
as the nucleus, around which to gather their own commercial regulations. But the very circumstance, that so little is
here to be found, after Rome had been for so many ages the
mistress of the world in commerce and in arms, seems a decisive proof, that neither she, nor any more ancient nation,
on the shores of the Mediterranean, had ever digested at any
period a general system of maritime law.
The glory of having reduced the principles of maritime
law to a science belongs to later times; but no one of competent judgment can doubt, that much of its intrinsic equity,
as well as comprehensive liberality, is owing to a familiarity
with the Roman digest, with that beautiful distribution of
civil justice, which the labors of Labeo, Capito, Proculus,
Gaius, Papinianus, Paulus, and Ulpianus, so much contriLib. 14, tit. 2. Ad legem Rhodiam de jactu. Lib. 22, tit. 2. De nautico
f~enore. Lib. 47, tit. 5. Furti adversus nautas, caupones, stabularios. Lib.
47, tit. 9. De incendio, ruina, naufragio, rate, nave expugnata. In the
Code, Lib. 4, tit. 25. De institoria et exercitoria actione. Lib. 4, tit. 33.
De nautico fcenore. Lib. 6, tit. 62. De hkereditatibus decurionum, naviculariorum, cohortalium militum et fabricensium. Lib. 11. De naviculariis
seu naucleris publicas species transportantibus. Variis titulis. There are a
few supplementary regulations in the Novels and Authentics of Justinian, on
the subjects of maritime loans and the plunder of wrecks.




LITERATURE OF THE MARITIME LAW.         99
buted to perfect and adorn. The whole of our own law of
contracts rests upon Roman foundations; and we daily feel,
how much of the enlarged equity which pervades the doctrines relative to navigation, charter-parties, liens, and shipments, is deduced by a regular descent from the times of
Tribonian.
Let it not, therefore, be imagined, that the maritime law
as acknowledged and practised upon by the most enlightened
nations of the present day, was produced per sallum - by the
sudden start of a single mind or nation, generalizing and
analyzing the principles at a single effort. Far different is
the case. It arrived at its present comparative perfection by
slow and cautious steps; by the gradual accumulations of
distant times, and the contributions of various nations. Industry and patience first collected the scattered rays, emitted
from a thousand points through the dim vista of past ages;
and philosophy reflected them back with tenfold brilliancy
and symmetry. If, indeed, a professional mind might indulge
in a momentary enthusiasm, it would perceive, that in this
process had been realized the enchantment and wonders of
the kaleidoscope, where broken and disjointed materials, however rude, are shaped into inexhaustible varieties of figures,
all perfect in their order and harmonies, by the adjustment of
reflected light under the guidance of philosophy.
The irruptions of the northern Barbarians over the western
Empire, and the introduction of the feudal system, seem for
a while to have suspended the operations of commerce. But
as soon as mankind began to shake off the drowsiness of the
Dark Ages, commerce revived upon the same shores of the
Mediterranean, which had long been her favorite abodes. As
it extended its vivifying effect, every state became sensible of
the importance of collecting its own mercantile usages into
some regular system, at least for its own government. One
of the earliest, if not the earliest, and, considering its age, the
most extraordinary collection of this kind, is the Consolato
del Mare.  The question, what country is entitled to the




100               MISCELLANEOUS WRITINGS.
honor of its origin, has been contested with as much warmth
and zeal, as the birthplace of Homer; and the exact time of
its first publication has been enveloped in the like obscurity.
It has been variously assigned to a date, as early as the tenth
century, and as late as the fourteenth. Vinnius and Crusius
appear to have thought that it was composed in the time of
St. Louis, King of France. Grotius and Marquardus assign
it to the age of the Crusades, and assert that it was collected
by order of the ancient kings of Arragon. In this latter
opinion they are followed by Targa and Casaregis. Azuni,
in a very elaborate essay, endeavors to establish, that it is a
revision of the maritime code, which existed in very early
times in the republic of Pisa. On the other hand, Capmany,
an eminent Spanish jurist, asserts that the compilation was
first made at Barcelona; and in this opinion he is followed
by Boucher, the learned editor of a late French translation.
The earliest edition of the work, which can be traced by the
diligence of its editors, is admitted on all sides to be that
published by  Celelles, at Barcelona, in  1494.   This, as
Boucher informs us, is the original of all editions and translations, that have subsequently appeared in the Castilian, the
Italian, the Dutch, and French languages. The English language has not as yet been honored by any translation, except
of two chapters on prize law by Dr. Robinson.1
The title of this curious collection, Consolato del Mare,
(Consulate of the Sea,) is derived from the name consolato,
(consulate or consular court,) which was, by almost all the
commercial nations of the Mediterranean, given to their
The principal editions, as they are collected by the best authors, are, the
edition of 1494, by Celelles, printed at Barcelona in the Catalonian dialect;
of 1502, at the same place; of 1539, by Francisco Romano, at Valentia, in
Castilian; of 1544, by N. Pedrozano, at Venice, in Italian; of 1567, by
Zeberti, in Italian; of 1576, by Zaneti & Co., in Italian; of 1577, by Mayssoni, at Marseilles, in French; of 1579, at Venice, in Italian; of 1584, in
Italian; of 1592, at Barcelona, in Catalonian; of 1599, at Venice, in Italian;
of 1635, at Aix, in French; of 1696 and 1720, by Casaregis, in Italian;
of 1704, by Westerveen, in Italian and Dutch; of 1732, by Cayetano de
Tallega, in Castilian; of 1791, by Capmany, in Castilian, at Madrid; of
1808, by Boucher, in French.




LITERATURE OF THE MARITIME LAW.        101
maritime courts.  The value of this collection has been
differently estimated in modern times by learned men. Hubner, with his usual petulance, has treated it as an ill-chosen
mass of maritime usages and positive ordinances of the Middle Ages, or of timesd very little enlightened, which are now
obsolete, and of no authority. Bynkershoek, in his usual
bold and determined manner, treats it with as little ceremony. After approving of its decision in a particular case,
he adds, " Vellem omnia, quee in illa farragine legum nauticarum reperiuntur, taque proba et recta essent, sed non omnia
ibi sunt tam bonae frugis." To these opinions we might
justly oppose the discreet yet liberal praise of Casaregis,
Em6rigon, Valin, Vinnius, and Lubeck. But in our judgment it is not necessary to resort to the testimonia eruditorum.
The fact that the substance of its regulations was eagerly
embraced, and immediately incorporated into the usages and
the ordinances of all the maritime nations of the continent,
pronounces a eulogy on its merits, which no formal vindication can surpass. Emerigon very justly states, that its decisions have united the suffrages of all nations; and it has furnished ample materials for the maritime ordinance of France
of 1681, an ordinance, which has immortalized the ministry
of Louis XIV., and which, perhaps, more than the maritime
code of any other nation, deserves the praise of philosophic
jurists. Nay, more, the Consolato del Mare contains the rudiments of the law of prize, as it is at present administered;
and its authority has, perhaps, weighed more than any other,
in settling the great controversy of our own times, relative to
the question, whether free ships make free goods. England,
in asserting the negative, (as we think with vast force of
reasoning,) has reposed on this venerable monument, as
affording the surest proof of the antiquity and the general
recognition of the rule, which she has so justly sought to
establish, and which has stood approved to the good sense of
the three greatest civilians of modern times, Grotius, Bynkershoek, and Heineccius.
9*




102             MISCELLANEOUS WRITINGS.
As the Consolato del Mare is a rare work in our country,
it may not, perhaps, be useless to give a general outline of its
method and contents. The whole work, as we now find it
in the edition of Casaregis, is contained in two hundred and
ninety-four chapters.l Of these the first forty-three chapters
do not, properly speaking, belong to the original collection,
but treat of the jurisdiction and forms of proceeding in the consular court of Valentia. The forty-fourth chapter is the proper
commencement of the work; which contains, not as is often
supposed, the positive institutions of any particular maritime
nation, promulgated by its sovereign; but a collection of the
general usages and customs of the sea, as approved and practised upon in the most enlightened ages. The forty-fourth
chapter, which is in fact the proem of the work, states, —
"These are the good institutions and good customs, which
relate to the sea, which the wise men, who went abroad,
began to give to our ancestors, which form the book of the
knowledge of good customs in the course of which will
be found the duty of the master of the ship towards the
merchants, mariners, passengers, and all other persons, who
go in the ship, and also the duty of the merchants, mariners,
passengers, &c. towards the master of the ship; for whoever
pays frieght for his person, as well as merchandise, is denominated a passenger." The work then proceeds, in an order,:not very exact or methodical, to state the doctrines relative
to the ownership, building, and equipment of ships; the,authorities and duties of the master and owner; the rights
and duties of the mariners; the responsibility of the masters,
owners, and mariners, in cases of the shipment of goods, in
a general ship, or under charter-parties; the earning, payment, and loss of freight and wages; and incidentally treats
of ransoms, salvage, average, jettisons, and captures, and
recaptures.
1 In the edition of Boucher, which is a translation from the original edi-'tion of Celelles, the whole number of chapters is 297.




LITERATURE OF THE MARITIME LAW.             103
Such is the Consolato del Mare, the grand reservoir, from
which, as we have already intimated, have been drawn the
principal ordinances of modern maritime nations. It is remarkable, that the laws of Oleron and Wisbuy (which are of
so great antiquity, that they dispute precedency with the Consolato, and by many learned men are assigned to an earlier
age,) contain nothing on the subject of the law of prize; and
that the Consolato stands alone, as the earliest expounder of
the law of nations.  In neither of them, if we except a single
article (art. 66) of the laws of Wisbuy, is there the slightest
allusion to the contract of insurance. There is, therefore,
some reason to believe, either that the laws of Wisbuy, as
we now have them, belong to a later date, than is generally
assigned to it, or that the article in question is an addition to
the original code.1
The history of commercial jurisprudence, since the publication of the Consolato, including therein also the law of
bills of exchange and promissory notes, would be very interesting and instructive, at least to the professional reader.
He would there have an opportunity to trace the numerous
rivulets, which, in different ages and nations, have contributed to form the vast and perpetually increasing stream of
commercial law.  He would there learn the slow and almost
imperceptible manner, in which its principles have, from
minute origins, expanded to their present comprehensive and
systematical equity. He would look back with admiration and
surprise upon the patience, public spirit, and scientific enthusiasm of those learned men, who devoted themselves, with
such unremitted labor, to the development of those principles
of moral propriety and justice, which distinguished this
1 Stypmannus, Gibalinus, Ausaldus and Casaregis suppose, that the contract of insurance was introduced in the fifteenth century. Em~rigon relies
on this article in the laws of Wisbuy to establish the contrary. Marshall, in
his Insurance, (p. 18) doubts, whether the latter part of this article, as it
stands in Cleirac, be not a mere comment upon the original text. If so, the
other part of the article may well admit of an explanation, foreign from any
notion of insurance. Malyne omits this clause.




104               MISCELLANEOUS WRITINGS.
branch of the law. Above all, he would, perhaps, catch a
spark from the altar, which would light him on still farther
in the paths of virtuous glory, and would stimulate him still
more to enlarge the boundaries of the science, and vindicate
to himself that immortality, which Cicero was not ashamed
to court, and from which even the modesty of Sir William
Jones did not retire.
But we have no space or leisure for such interesting inquiries. They belong to some philosophic spirit, who, free
from the bustle and the toils of professional life, may indulge
himself in juridical speculations in learned ease. Such a
one may, without rashness, undertake the task, and encourage his heart with the consideration, Numina nulla premunt.
It may not, however, be uninstructive to review, in a rapid
sketch, the merits of some of the most eminent writers, who,
in different ages, from the early twilight of maritime law,
contributed to give the public mind that rational direction,
which has made even the technical rules of that law the dictates of philosophy itself.
About the middle of the sixteenth century, Peckius, a distinguished civilian of Belgium, published an edition of the
principal texts in the Pandects and Code, on nautical affairs,
and enriched them with an ample commentary, in which he
has brought together all the valuable remarks of preceding
jurists on this subject, and explained the reasons of the principles stated in the texts.  At the distance of about a century, this work was reidited with supplementary comments
by Vinnius, who, in his best manner, has added illustrations
from the maritime laws of other nations, and thereby supplied the deficiencies of his master.1 Vinnius himself complains of these deficiencies: " Apparetque ex toto illo Peckii
1 The works of Peckius were first collected and published together in
1646; but the edition before us was published at Antwerp in 1679. His
treatise, Ad Rem Nauticam, was first published in 1556; and republished,
with the commentary of Vinnius, in 12mo, at Leyden, in 1647. Vinnius
died in 1657.




LITERATURE OF THE MARITIME LAW.            105
opere, non vidisse eum ullas alias leges de rebus maritimis
quam  quve in Corpore Juris Justiniani continentur."   He
then very justly reproves the long digressions, in which
Peckius had indulged; but concludes: " Ostendit sane in
hoc opere Peckius sibi non defuisse justam  eruditionem
solidamque juris et multarum rerum scientiam." The work,
however, such as it is, with its double commentaries, is more
frequently quoted than read, in our own times.
About the same period, the work on averages of Quintin
Weytsen, a counsellor of Holland, is supposed to have been
first published. In the body of the work there is no reference to any decision posterior to 1551, soon after which time,
it was, therefore, most probably compiled; and the editor of
the edition of 1651 speaks of it, as a work which had appeared in Holland a long time before. It is certainly not
without merit; and Casaregis thought so well of it, that he
translated it into Latin, and put it at the beginning of the
third volume of his works with the notes of Van Leeuwen
and Mathieu de Vicq.
Straccha and Santerna, the first an Italian, and the last a
Portugese jurist, adorned the latter part of the sixteenth century. Their works are found collected in a large work, De
Mercatura, which was first published at Cologne, in 1623,
and subsequently at Amsterdam in 1679.1 The principal
tracts of Straccha are De Mercatura, De Nautis, De Navibus,
De Navigatione, and De Assecurationibus. In the first (De
Mercatura) he treats in separate parts of the following topics:
1. who is a merchant, and what is merchandising; 2. of the
condition of merchants, and things appertaining to that condition; 3. of those who are prohibited from being merchants;
4. in respect to what things (causis) merchandising may be;
1 The title of the work is, "Benevenuti Stracchao aliorumque clarissimorum jurisconsultorum de mercatura, cambiis, sponsionibus, creditoribus,
fidejussoribus, debitoribus, decoctoribus, navibus, navigatione, assecurationibus, subhastionibus. aliisque mercatorum nogotiis, rebusque ad mercaturam
pertinentibus, decisiones et tractatus varii."




106             MISCELLANEOUS WRITINGS.
5. of the contracts of merchants; 6. of mandates, or orders
on commission; and 7. of some miscellaneous questions
relative to merchandise. In the second tract (De Nautis) he
treats generally of the rights, duties, and responsibility of the
masters and mariners of ships, arising from their contracts or
their defaults. In the third (De Navibus) he treats of the
ownership, building, repairing, and freighting of ships, and
other contracts relative to shipments.  In the fourth (De
Navigatione) he discusses some points not embraced in the
preceding. In the fifth, (De Assecurationibus) after a very
elaborate preface, he introduces the form of the policy of
insurance used in Ancona in 1567; and taking up the several
matters, in the order of the policy, he examines every sentence by itself, and in a perpetual gloss, or commentary,
explains the doctrines of insurance applicable to the contract.
The treatise of Santerna, which is entitled De Assecurationibus et Sponsionibus Mercatorum, is, on the other hand, a
systematic treatise upon the same subject. Both of these
writers draw their doctrines from the usages of merchants,
from general reasoning, and above all, from the law of contracts in the Roman Code, wherever it is applicable. Considering the age in which they wrote, they are very respectable authorities; and Valin has pronounced the eulogy of
Straccha, when he declares him "an author truly estimable."
(Auteur vraiment estimable.)
The seventeenth century was distinguished by the labors
of a great many illustrious writers on maritime law. To
the beginning of that century, or, to the latter part of the
preceding, is to be referred the work, entitled " Le Guidon,
utile et necessaire pour ceux qui font merchandise et qui
mettent a la mer." This is an ancient French treatise on
the law of insurance and bottomry, in which the various
doctrines are examined in a very scientific manner, and with a
practical accuracy, greatly surpassing all preceding works on
the same subject. The author of the work, and the exact
time of its first publication, are unknown. In 1647, Cleirac




LITERATURE OF THE MARITIME LAW.             107
published a new edition of it, with an excellent commentary,
in his "Les Us et Coutumes de la Mer." The account, he
gives of it, is, that it was an old French work, drawn up for
the use of the merchants of Rouen; and he adds, " Ce avec
tant d'adresse et de subtilite tant d6liae, que l'auteur d'icelui,
en explicant les contrats ou polices d'assurance, a insinue et
fait entendre avec grande facilit6 tout ce qu'est des autres
contrats maritimes, et tout le gen6ral du commerce naval; de
sorte qu'il n'a rien omis, si ce n'est seulement d'y mettre son
nom pour en conserver la memoire et l'honneur qu'il merite,
d'avoir tant oblig6 sa patrie, et toutes les autres nations de
l'Europe; lesquelles peuvent trouver en son ouvrage l'accomplissement de ce qui manque, ou la correction de ce qui est
mal ordonn6 aux reglemens, qui chacune a fait en particulier
sur semblable sujet." This is high praise; but Cleirac was
a very competent judge. His own commentary on this work,
and on the laws of Oleron, establishes his reputation as a
maritime jurist, in the very first rank.1 And to his collections and commentaries Lord Mansfield was unquestionably
indebted for many of the best principles of commercial law,
which he has infused into the English system. It is most
obvious, from his decisions, that he had studied Cleirac with
extraordinary attention.2 And we may add, upon the authority of Valin, that Le Guidon formed a part of the immense
compilation of law, from which was drawn the famous ordinance of 1681..
About the middle of the seventeenth century, appeared the
works of Stypmannus, of Loccenius, of Kuricke, and of Roccus, on maritime law.3 Stypinannus, in his treatise, entitled
Jus Maritimmin, discusses in a prolix manner most of the
There have been many editions of Cleirac's work, the earliest of which
is of 1647, and the latest, we believe, is the one now before us, of 1788.
2 See, among other cases, Luke v. Lyde, 2 Burr. R. 882.
3 Stypmannus was first published, as Valin says, at Stralsund in 1661.
Westerveen, in his edition of Roccus, refers to an earlier edition, printed at
Gryphiswaldia in 1652. Loccenius was first published at Stockholm in
1652; Kuricke, at Hamburg in 1667; and Roccus, at Naples in 1655.




108              MISCELLANEOUS WRITINGS.
questions of maritime law. Loccenius is more condensed,
and more narrow in his range. The subject of insurance is
treated by him in a very slight and careless manner. In
other respects, the work is quite as useful as Stypmannus.
There are three treatises by Kuricke. The first, Jus Maritimum  Hanseaticum, contains an elaborate commentary on
the several articles composing the Hanseatic ordinance of
1614. The second, Diatriba de Assecurationibus, is a very
short discussion on the law of insurance. The third, Resolutio Questionum Illustrium ad Jus Maritimum pertinentium, is a collection of miscellaneous questions on maritime
law, which the author is pleased to call "Illustrious Questions," but which, in our humble judgment, contain a great
deal of learned trifling, and insignificant criticism. One of
these "illustrious questions" is, whether a journey by sea is
preferable to a journey by land; and another, whether a ship
repaired is the same ship which she was before the repairs
were made. From this specimen, we might, perhaps, be
induced to turn with contempt from such an author.  But it
was the misfortune of the age, in which Stypmannus, and
Loccenius, and Kuricke lived, that jurists employed a great
deal of their time and talents in idle discussions upon unimportant topics, and buried matter of more worth and virtue
under a cumbrous load of scholastic learning and metaphysical subtilties. Far different is the character of Roccus.
He was an eminent jurist and judge at Naples, and published
two tracts, (one, De Navibus et Naulo, the other, De Assecurationibus, which he modestly terms Notabilia,) which deserve, and have received the approbation of all Europe.
They consist of a series of texts, remarkable for their brevity,
accuracy, sound exposition of maritime law, and practical
utility even in our days.  His learned Dutch editor, Westerveen, has justly observed of these treatises, "Jisque casus
These works, except Roccus, were collected and published by Heineccius,
with a learned preface, in a single volume, at Magdeburg in 1740, under the
title of Scriptorum de Jure Nautico et MIaritimo Fasciculus.




LITERATURE OF THE MARITIME LAW.              109
quotidianos tam breviter et absolute complexus est [Roccus]
tam luculenter proposuit, tam dilucide explicavit, ut omnium
Scriptorum indicem seu compendium fecisse videatur." 1 Roccus has, indeed, drawn liberally from his predecessors, and
from none more frequently, or more correctly, than from Juan
de Hevia Bolaios,2 a most learned and excellent Spanish
writer of his own age, whose works deserve to be better
known. But Roccus was himself endowed with a clear and
comprehensive mind, and, as his select responses show, with
a most acute and sound judgment. His works are of more
practical use to an English lawyer, than all the other maritime works, if we except Cleirac, which had been previously
published. Lord Mansfield is under no inconsiderable obligations to them, and can be traced, in some of his most celebrated decisions, back to the pages of the Neapolitan.
We have now approached the times of Bynkershoek and
Casaregis, two of the most eminent civilians that ever adorned
the courts of any nations. In the short review already made
of maritime writers since the days of the Consolato, we have
purposely omitted to speak of those, who professedly wrote
on the law of prize, or the more general doctrines of the law
of nations. We have the more readily done this, not because
there are not very ample materials for historical and critical
disquisition, but because war, and conquest, and national
calamity, have but too frequently brought them before the
public.  Who, indeed, is there, that is ignorant of the fame,
or the writings, of Grotius and Puffendorf? Bynkershoek
has immortalized himself by his treatise De Foro Legatorum,
1 The works of Roccus were collected and published at Naples, in a large
folio volume. They consist of the tracts above mentioned, and two centuries
of answers to select questions. WVesterveen selected the treatises and
responses on maritime law, and published them in 12mo, at Amsterdam, in
1708. An excellent translation has been recently published of the tracts De
Navibus et Naulo, and De Assecuratione, by Joseph R. Ingersoll, Esq. of
Philadelphia.
2 Mr. Duponceau, in his most valuable notes to his translation of Bynkershoek on the Law of War, has spoken with becoming praise of De Hevia.
The tracts referred to are those published by De Hevia, on commercial contracts, in his institute of the law of Spain, called Curia Philippica.
10




110              MISCELLANEOUS WRITINGS.
and his Questiones Publici Juris de Rebus Bellicis.l  It is
not, perhaps, as generally known, that he has written a very
neat sketch of the law of bottomry, and some very excellent
dissertations on the subject of commercial law, and particularly of insurance. Every thing which came from this great
man bears the marks of an original, vigorous, and independent mind. He often expresses himself with boldness
and vehemence, and sometimes also with a lofty contempt
for the opinions of others. But his learning, sagacity, and
sound judgment, rarely if ever desert him.  Alluding to
Adrian Verwer, a Dutch writer on bottomry and average, he
says, " Hme etiam adhibuit, qui ante aliquot annos hunc contractum commentariolo illustrate conatus est; sed, sat scio,
manes ejus non offendam, si et ipse ex penu meo aliquid
proferam; ille mercatorem egit, ego cum maxime jurisconsulturn agam, et sine jurisprudentia etiam hme sacra non constant." He was conscious of his own strength, and, while
acting the part of a jurisconsult in expounding doctrines, he
speaks in a tone, which indicates the judge from whose
sentence no appeal is permitted. Of his works it may be
asserted without rashness, that the more they are studied, the
more they will be admired and respected.
Casaregis was born at Genoa in 1670, and died in 1737.
He was appointed a judge of the Supreme Tribunal of Tuscany; and in that office, as his biography states, he discharged
the duties with great assiduity, integrity, prudence, and universal approbation, for more than twenty years. His works
have been collected and published in four folio volumes, and
consist of two hundred and twenty-six discourses on various
topics of commercial law, of a Latin translation of Weytsen
on Averages, as already mentioned, of a new edition of the
1 Mr. Duponceau has prefixed to his translation of this last work a short but
very satisfactory account of the life and writings of Bynkershoek. Why will
not Mr. Duponceau increase the public gratitude by translating the works of
other learned foreigners, and by a critical account of the writings of those
civilians who are best entitled to the attention and study of American lawyers?




LITERATURE OF THE MARITIME LAW.            111
Consolato del Mare, with an excellent explanation or commentary (Spiigazione) of his own and a treatise, entitled
4'I1 Cambista istruito," upon bills of exchange, and other
commercial securities, and of a few tracts upon municipal
law.' His commercial discourses are by far the most valuable of all his works to a modern lawyer. They embrace the
whole circle of commercial law, including the law of prize,
and are written in a plain, clear style, abounding in just and
practical remarks and sound learning. All that is most useful in the works of former jurists is collected and commented
on with acuteness and accuracy; and for the most part the
topics are examined until the whole subject-matter is exhausted. Rarely have we looked into his works upon any
contested question without rising instructed and enlightened
by the perusal. Higher praise cannot be bestowed upon him
than the fact affords, that he is quoted by all subsequent
writers on commercial law, as a leading and safe authority;
and Valin does not scruple to affirm, that he is beyond all
contradiction the best of all the maritime authors. In recommending him, therefore, to the diligent study of our own
lawyers, we are confident that we do them a substantial
service, which will be estimated the more, as familiarity with
his works makes his merits more extensively known.
We had almost forgotten to speak of an author who was
a countryman and contemporary of Casaregis, and is often
cited by him with great respect and approbation. We allude
to Targa, who, in his Reflections on Maritime Contracts,
(Ponderazioni sopra la Contractazione Marittima,) has drawn
from the civil and canon law, the Consolato del Mare, the
usages of maritime nations, and preceding writers, the most
useful learning on all the subjects of maritime law except
insurance; and has adapted his work to practice by collect1 The best edition of Casaregis's works is that printed at Venice in 1740,
(which is now before us,) in four vols. folio. The two first volumes contain
his Discursus de Commercio, in Latin; the third, Tractatus de Avariis, Cambista instruito, and Consulatus Maris; the fourth, Elucubrationes ac Resolutiones ad Statuta Janure de Decretis ac de Successionibus ab intestateo.




112             MISCELLANEOUS WRITINGS.
ing the forms of the various contracts, with hints for their
proper application. He is generally esteemed as an industrious and correct author; but his fame seems lost in the superior blaze of his illustrious countryman.'
France was, during the seventeenth century, behind Italy,
in her attention to the great interests of commerce; and her
truly admirable ordinance of 1681 afforded the most ample
materials for the employment of the best talents of her bar
and bench.  Of this masterly code, Mr. Marshall, in his
Treatise on Insurance, has spoken with bare justice, when he
says, " It forms a system of whatever experience and the wisdom of ages had pronounced to be most just and convenient
in the marine institutions of the maritime States of Europe.
And though it contains many new regulations, suggested by
motives of national interest, yet it has hitherto been esteemed
a code of great authority upon all questions of maritime jurisprudence." Excellent, however, as this code is, it stood in
need of a philosophical commentator to explain its principles,
to follow them out into all their minute consequences, and to
illustrate and strengthen them by the lights borrowed from
the whole body of maritime jurisprudence. The middle of
the eighteenth century witnessed the perfect accomplishment
of this great task after the failure of other attempts had
almost extinguished every hope. Valin has the singular
merit of having produced a commentary which, in celebrity,
has eclipsed even the text itself, and in authority stands
equally high with the positive regulations of the royal ordinance.
The illustrious author published his great work in 1760,
and it immediately circulated over all Europe. He has justly
observed, " Un commentaire sur l'ordonnance de la marine
est un de ces projets hardis, dont le succes peut seul justifier
l The works of Targa are not very common in our country. A good edition was published at Genoa in 1750, and we have before us a Spanish
translation, by Juan Manuel Giron, printed at Madrid in 1753, in which the
author is highly praised.




LITERATURE OF THE MARITIME LAW.             113
P'entreprise. L'auteur des notes (imprimees in 1714) sur
cette ordonnance, loin d'en avoir compris la difficult6, il ne l'a
pas meme soupgonnee, et j'avoue qu'elle ne m'a 6te bien
connue, que lors qu'il n'6toit plus temps de reculer." Never,
indeed, was success better earned, or more completely attained. The work is a perpetual commentary upon every
article of the ordinance, and contains within itself the body
of maritime jurisprudence, expounded with a philosophical
precision and depth of learning, which have rarely been
equalled, and can scarcely be surpassed. It is to be lamented,
that the author scarcely lived long enough after the publication, to enjoy the reward of his labors.' His fame — it
may perhaps perish - but it will cast the last stream of its
light upon the last ruins of time.
England had hitherto made but slow advances in commercial law. The laws of Oleron, the articles preserved in the
Black Book of the Admiralty, and the treatises of Molloy,
Malynes, and Marius, formed nearly the whole stock of her
written maritime jurisprudence.  But the period was now
arrived, when a different state of things was to be presented.
The dawn of a brighter day had already diffused its pale, but
increasing light, round her wide domain, and it burst upon
us, with inextinguishable glory, when Lord Mansfield ascended the bench.2 This was an epoch in English juridical
history, since which the grandeur of her naval power has
scarcely been more universally felt, or acknowledged, than
her commercial jurisprudence has been admired and respected,
for its solid principles and equity. Lord Mansfield was an
accomplished scholar, whom Pope has elegantly praised in
lamenting,
"How sweet an Ovid in a Murray lost! "
1 Monsieur Valin died in 1765. His works are 1. "Nouveau Commentaire sur l'Ordonnance de la Marine," in 2 vols. 4to, first printed in 1760;
the edition before us is 1766. 2. Trait8 des Prises, in 2 vols. 8vo, printed
in 1763. 3. Commentaire sur la Coutume de la Rochelle, in 3 vols. 4to,
printed in 1768.
2 Lord Mansfield came upon the bench on the 11th of November, 1756.




114            MISCELLANEOUS WRITINGS.
He was an excellent civilian, and, from his Scotch education,
he was early imbued with a reverence for the civil law. He
was thoroughly versed in the maritime literature of the day,
and had studied all the best works, from the Consolato del
Mare to Valin. To the latter, indeed, he owes deep obligations. Mr. Marshall has observed, that " He appears to
have taken much pains to possess himself of the soundest
principles of marine law, and of the law of insurance; and
that he seems to have drawn much of his knowledge upon
these subjects from the ordinance of Louis XIV., and from
the elaborate and useful commentary of Valin." With all
these advantages he possessed liberal and enlarged views,
a sagacious and penetrating spirit of inquiry, an unwearied
diligence, a solid judgment, and a most persuasive flow of
spontaneous and glowing eloquence. Whatever subject he
touched was touched with a master's hand and spirit. He
employed his eloquence to adorn his learning, and his learning
to give solid weight to his eloquence. He was always
instructive and interesting, and rarely without producing an
insiantaneous conviction. He broke down the narrow barrier
of the common law against the prejudices of the age, and
infused into it an attractive equity, which it seemed to all his
predecessors incapable of sustaining. All Westminster Hall
listened with admiration and delight to his judgments, and
stood astonished at the extent and variety of his attainments;
and, if he ever removed from the temple of English jurisprudence a single pillar of Gothic structure, it was, that he
might replace it with the exquisite finish of the Corinthian
order, carved in Parian marble. In short, he was one of
those great men raised up by Providence, at a fortunate
moment, to effect a salutary revolution in the world. If he
had never existed, we should still have been in the trammels
and the quibbles of technical refinements. He has lived;
and the law is redeemed from feudal selfishness and barbarity. A lofty ambition of excellence, that stirring spirit,
which breathes the breath of heaven and pants for immor



LITERATURE OF THE MARITIME LAW.             115
tality, sustained his genius in its perilous course. He became,
what he intended, the jurist of the commercial world, the
judge for every polished nation whose code is built upon
virtue and principle. He lived to a good- old age,' and could
look back upon a long track illumined with glory. But even
that track is but a point, compared with the splendor of his
fame, as it will be seen ascending and widening by distant
ages.  Is it most for the honor of Valin, or of Lord Mansfield, that the commentary of the former has furnished the
principal materials, or that the latter has wrought those
materials with such exquisite skill, that they now form the
most polished structure of commercial law that the world
has ever beheld?
It is not a little remarkable, that, while Lord Mansfield
was running his splendid career, two eminent scholars on the
continent were devoting themselves with equal ardor to the
pursuit of commercial jurisprudence. We allude to Pothier
and Emerigon; the one, the author of the most finished
treatise upon insurance which has yet appeared; the other,
the author of distinct treatises upon almost all the branches
of the law of contracts, including maritime contracts, equally
remarkable for their brevity, luminous method, and apposite
illustrations.2 Whether Lord Mansfield was acquainted with
the works of either of these illustrious writers is uncertain. The
probability is, that he was not. Emerigon's treatise was not
published until near the close of his judicial career; and we
gather, from an intimation of Sir William Jones, in his Essay
on Bailments, that, at the time of the publication of that
work, in 1781, Pothier was unknown in England.  " For my
own part," says he, " I am so charmed with them [Pothier's
1 Lord Mansfield died on the 20th of March, 1793, in the 89th year of
his age.
2 The treatise of Em6rigon is entitled Trait6 des Assurances et des Contracts a la Grosse, and was first printed at Marseilles in 1783. The treatises
of Pothier were published at different times, between 1761 and 1772, in
which last year the author died. The best edition of his works is that printed
at Paris in 8 vols. 4to, 1781. We have not been able to find any account
of Emnrigon.




116            MISCELLANEOUS WRITINGS.
treatises] that, if my undissembled fondness for the study of
jurisprudence were never to produce any greater benefit to
the public than barely the introduction of Pothier to the
acquaintance of my countrymen, I should think, that I had
in some measure discharged the debt, which every man,
according to Lord Coke, owes to his profession." If, however, Em6rigon and Pothier were unknown to Lord Mansfield, they have since his time instructed both the lawyers
and the judges of Westminster Hall. But there is yet wanting a judge of the generalizing genius and enterprise of Lord
Mansfield, or the classical enthusiasm of Sir William Jones,
to naturalize them in that forum. To the honor of America,
there is one man, once a chief justice, and now a chancellor,
(need we name him?) whose acknowledged learning has
taught us, how much judicial judgments may be enriched by
the manly sense of Pothier, and the acute investigations of
Emerigon.
We had intended to say something more in relation to
the merits of these authors, and to have sketched a critical
analysis of their works. But we are admonished, that we
have already exhausted more time than we can properly
devote to such speculations. We quit them with regret;
but there are younger and abler pens, that can do them
justice; and we trust, that it is no idle dream to anticipate,
that the next age of the law will find our accomplished
lawyers consulting the continental jurists with the same
familiarity, with which we now cite Blackstone and Marshall.
The work which stands at the head of these remarks, and
from a review of which we have been so long detained, is, as
the title-page purports, a translation from the German. We
have not seen the original, and, therefore, cannot speak of the
exactness of the translation. But we have no reason to
doubt its accuracy. Mr. Frick appears to be perfectly competent to his task, both in learning and diligence; and, so far
as he has permitted himself to appear in the notes, he has
acquitted himself in a manner very creditable to his talents




LITERATURE OF THE MARITIME LAW.        117
and his acquirements. We should, indeed, have been better
pleased, if the notes had been more extensive, and had
embraced the various commercial decisions, and particularly
the prize decisions, which have been recently made in the
United States, on the various topics discussed in the text of
Mr. Jacobsen. We have no right, however, to complain of
this omission; and, when a gentleman offers a really valuable present to the profession, it seems hardly justice or
civility to insist, that he ought to have made it still more
valuable.  Mr. Frick will please, therefore, to accept our
thanks for the book, such as it is; and if, as we hope, it
should be favorably received by the public, and a new edition
be called for, we think our hint will not be unworthy of his
consideration; and, from the ability of the present specimen,
we are sure, that he will command the public confidence in
his enlarged annotations.
We will now proceed to give some account of the work
itself. We learn from the preface, that Mr. Jacobsen is himself a lawyer; and that, " Whatever practical jurists, among
the Italians, French, English, Dutch, Danes, and Germans
have written and suggested upon the subject, applicable to
these times; whatever is contained in the sea-laws, yet in
force on the subject; whatever was to be gathered from
numerous legal decisions [in England]; whatever was to be
gained by a correspondence for years with men who have
made the subject of maritime law the study of their lives;
whatever, in sixteen years' professional experience in maritime affairs, has suggested itself to the author as useful or
desirable, he here proffers as a part of the debt, which every
one owes to the country of his birth, and to mankind in
general." And he adds, " How inconsiderable, as yet, is our
proficiency in the science of maritime law, compared to our
treatises of municipal law! The present, perhaps, is the first
attempt to offer any thing, in a systematic form, relative to
ships' papers, on which depend the fortune and the peace of
so many families; for the ships' papers, with reference to the




118            MISCELLANEOUS WRITINGS.
maritime laws of war, have hitherto never been treated of in
any language."
Prefixed to each chapter is a catalogue of the authorities
and editions of the several authors, who have discussed the
subject-matter of that chapter, and from whose writings the
doctrines have been drawn; and to the whole work is prefixed a catalogue of the authors, who have treated of the
subject generally, or of the literature connected with it, with
short comments upon their merits. This, we think, is a very
useful addition; and in this catalogue we notice a number of
works, which have never reached us through any English
publication. It is some consolation, however, that, as far as
the contents of these works are disclosed to us, they do not
contain any very considerable accession to the learning
already within our reach; and Mr. Jacobsen has incorporated whatever seemed most useful into his own treatise.
What struck us with some degree of surprise, on the first
examination, was the heavy contributions, which Mr. Jacobsen had levied from the English authorities. He appears perfectly familiar with the recent decisions in the courts of
Westminster Hall, and the commercial treatises of Abbott,
Lawes, Park, and Marshall; and has manifestly adopted their
doctrines, from a thorough conviction of their soundness and
equity. This is a flattering distinction; and is repaying to
continental Europe the obligations which England, in the
earliest stages of her law, owed to the enterprise and wisdom
of the civilians. As to the law of prize, it is almost entirely
borrowed from the Reports of the decisions of the High Court
of Admiralty since the time of Sir William Scott. For this
the author himself offers a very striking reason. "If," says
he, "in the subsequent part of his work, he [the author] has
confined himself somewhat more exclusively to the doctrines
and opinions of that celebrated man, whose unrivalled decisions on maritime law, like the judgments and opinions of the
Roman jurists in the civil law, will constitute an essential
part of maritime law for centuries to come; it was because




LITERATURE OF THE MARITIME LAW.         119
the continental jurisprudence is barren of examples in those
branches of the subject.  As the commercial law of Great
Britain received much of its perfection through the decisions
of Lord Mansfield, so the maritime laws of war of that
country have attained their maturity through the decisions of
Sir William  Scott."  This acknowledgment is extremely
honorable to English jurisprudence; but it is also honorable
to our author, who shows in this, as in other parts of his
work, that he is far removed from the prejudices of his continental contemporaries, and that he breathes the genuine spirit
of a universal jurist. It is no small praise, that he is so far
above the visionary doctrines of Hubner and Schlegel, and
the French and German theorists. Nor is this the least valuable portion of the work to an English lawyer. It is a
remarkable fact, that no systematic treatise upon the law of
prize has, as yet, appeared in England. The very superficial,
hasty, and imperfect sketch of Mr. Chitty does not deserve
the title which it bears, and has been egregiously overrated.
Our own country has been honored with a Treatise on Captures, by Mr. Wheaton, which is, in every respect, far superior to Mr. Chitty's; and, taken in connection with his extensive notes on prize law in his Reports, it approaches very
near to a complete body of this important branch of law.
Are not the merits of our own authors, and especially of our
own juridical authors, very slowly appreciated? In what
respect is Mr. Livermore's learned Treatise, on the Law of
Principal and Agent, inferior to those recently sent from the
English bar?
What, however, constitutes the principal value of Mr. Jacobsen's work to an American lawyer, is the minute accuracy and fulness, with which it gives us the positive and customary law of all the maritime nations of the continent.
And this, in our judgment, is a most interesting, and, in a
practical view, a most important accession to our juridical
literature. Of the maritime law of Russia, Prussia, Denmark, Sweden, and Germany, we have hitherto known very




120             MISCELLANEOUS WRITINGS.
little. Yet with all of them we carry on an extensive trade;
and the principles, of their jurisprudence as to maritime
affairs, both in peace and in war, are of incalculable importance to our merchants; nay more, to our government. This
is not all. A great variety of curious and difficult questions
are perpetually arising in our judicial tribunals, where the
positive regulations or usages of other commercial nations
would greatly assist us in forming decisions which should
comport with general convenience, as well as with the general principles of law. Many are the cases, in which the
reasoning is so nicely balanced on each side, that a settled
foreign usage ought to incline the scale. We owe, indeed, a
full moiety of our present commercial law to the positive
ordinances or usages of France, Italy, and Spain, as they
have been delivered to us by their eminent jurists.  They
seem now inclined to borrow from us in return; and thus,
perhaps, national comity may gradually establish a nearly
uniform system of commercial jurisprudence throughout the
whole civilized world.
We have no hesitation, therefore, to recommend Mr. Jacobsen's treatise to the favorable attention of our lawyers and
merchants. They cannot fail to be greatly instructed by the
perusal. The learned author has prepared his work from
very ample materials, and with the most laborious diligence,
and, in general, with sound discrimination and impartiality.
If Mr. Abbott's treatise were not in existence, Mr. Jacobsen's
would be indispensable for every lawyer's library. As it is, it
will reflect great light on points, where Mr. Abbott is deficient or unsatisfactory; and no gentleman ought to consider
himself thoroughly read, who has not mastered its learning.
We notice in the translation some Germanisms, which it
was not, perhaps, easy, without an awkward circumlocution
or paraphrase, to avoid. There are also some words, which
have not yet acquired a legitimate use in our language, such
as "endorsation " and " bottomried."  There may be some
reason to adopt the latter word, though innovations are dan



LITERATURE OF THE MARITIME LAW.        121
gerous; but there can be no such apology for the former,
since we have a genuine English word (endorsement) of the
same signification. There are also some errors of the press;
one, (in p. 556) which is important to the sense, and where
the words should be, "the shadow of partiality," in lieu of
" the shadow  of impartiality."  These, however, are but
specks, which we have no inclination to magnify, and Mr.
Frick can have no reason to wish to have concealed.
it




PIRACY AND THE SLAVE TRADE.
A CHARGE TO THE GRAND JURY, FIRST DELIVERED IN THE CIRCUIT
COURT OF THE UNITED STATES, FOR THE JUDICIAL DISTRICT OF
MAINE, AT ITS FIRST SESSION IN PORTLAND, MAY 8, 1820.
GENTLEMEN OF THE GRAND JURY:
ON this, the first occasion, that I have had the pleasure of
meeting you, permit me to congratulate you on the favorable
auspices, under which we are assembled.  Our country
enjoys a state of profound peace, under the guidance of wise
and moderate councils; and though our foreign commerce is
considerably abridged, both in its enterprise and prosperity,
and our domestic intercourse is thus sensibly diminished; yet
we have abundant reason to rejoice, as well in our exemption from the calamities, which have visited and oppressed
many other nations, as in our own positive good fortune.
Our agriculture yields us the most abundant products, cheapening thereby the fruits of the earth to the poor and necessitous; our really useful manufactures are increasing with a
slow but solid growth; and our industry and sound morals
are maturing a hardy population, which is spreading with
unexampled rapidity into the wilderness, and making our
forests resound with the cheering sounds of the axe and the
hammer. In addition to these substantial comforts, we are
indulged by a kind Providence with the blessings of civil,
political, and religious liberty — blessings of inestimable value, without which life loses half its charms, property all its




PIRACY AND THE SLAVE TRADE.          123
security, and patriotism itself sinks back from a virtue into
a gross and venal prejudice.
The circumstances under which I address you at the present moment, are, perhaps, without a parallel in the annals
of the other quarters of the world. This district has just
been admitted into the Union, as a free, sovereign, and independent state, possessing, in common with all the others, an
equality of national rights and honors, and protected by an
excellent constitution, framed by its own deliberations upon
principles of justice and equity.
And in what manner has this been accomplished? Not
by the course, in which the division of empires has been
usually sought and obtained; by civil dissension and warfare; by successful resistance, wading through the blood of
friends and foes to its purpose; or by the terror of the sword,
whose brightness has been stained by the sacrifice of innocence, or rusted by the tears of suffering and conquered virtue. Unhappily for mankind, a change of government has
rarely taken place without involving evils of the most serious
nature. It has been but the triumph of tyranny in the overthrow of the liberties of the people; or the sudden reaction
of popular resentment, indignant at wrongs, and stimulated
to criminal excesses.
Here a different scene, a scene of peace and good order,
has been presented. The separation has been the result of
cool deliberation, and cautious examination of the interests
of both parties. It has been conducted in a spirit of mutual
conciliation and friendship, with an anxious desire to promote the real happiness and prosperity of the people. It has
been emphatically, and by no fanciful analogy, like the separation of a parent from his child, when the latter has attained
maturity of years and experience. And, like that separation,
I trust, it will only lay more surely the foundation of a mutual respect, sustained by the sense of independence, and
chastened by grateful recollections of the past, and an earnest
solicitude for the solid glory of the future.




124          - MISCELLANEOUS WRITINGS.
At this new starting-point of your political existence, it
cannot be disguised, that much of your future character and
prosperity will depend upon the wisdom and moderation of
your public councils. The great system of your government
is to be put into operation, and your laws remoulded and
adapted to your own peculiar circumstances. May I venture
to suggest, that a liberal and comprehensive policy, in respect
to your public institutions and judicial establishments, cannot
fail to produce the happiest effects, by creating confidence at
home and distinction abroad. Let your laws be framed for
the permanent welfare of all the people, for the security of
private rights and private property, and for the promotion of
good education, and learning, and religion. No system, that
aims merely at temporary, or party, or local objects, or that
bends the great interests of the whole to the partial benefit of
the few, ever was, or ever can be, salutary. Such a system
is not only unworthy of a free and enlightened people; but
brings disgrace and ruin wherever it is established. It is the
harbinger of faction and discontent; and leads to animosities, from which the people can derive nothing, but bad laws,
bad morals, and bad government.
May I venture, also, to add, that nothing can be of more
consequence to youselves and to our common country, than
that you should cherish an habitual devotion to the constitution and government of the United States. I look upon
that constitution as the great security of all our most valuable political and civil rights. It is the only effectual barrier
against foreign conquest and domestic feuds, against the inroads of military ambition, and the more subtile, though not
less dangerous, designs of civic demagogues. It will always
be the determined, though concealed, purpose of the latter,
to undermine the foundations of the national government, by
stirring up jealousies of its legitimate powers; and, under
an affected devotion to popular rights, to take advantage of
temporary prejudices, and thereby gradually withdraw the
affections of the people from those principles, which the




PIRACY AND THE SLAVE TRADE.          125
wisdom of our fathers has consecrated as the keystones of
the Union. I know not, indeed, how it is possible better to
express the opinion, which every sound patriot and statesman ought to entertain on this subject, than in the language
of that Farewell Address, which the great and good WASHINGTON has left as his last benediction to his country.
" The unity of government, which constitutes you one
people, is also now dear to you. It is justly so; for it is a
main pillar in the edifice of your real independence; the
support of your tranquillity at home, your peace abroad; of
your safety, of your prosperity, of that very liberty, which
you so highly prize. But as it is easy to foresee, that, from
different causes, and from different quarters, much pains will
be taken, many artifices employed, to weaken in your minds
the conviction of this truth; as this is the point in your
political fortress, against which the batteries of internal and
external enemies will be most constantly and actively (though
often covertly and insidiously) directed; it is of infinite moment, that you should properly estimate the immense value
of your national union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think
and speak of it, as of the palladium of your political safety
and prosperity; watching for its preservation with jealous
anxiety; discountenancing whatever may suggest even a
suspicion, that it can in any event be abandoned.
1" For this you have every inducement of sympathy and
interest. Citizens, by birth, or choice, of a common country,
that country has a right to concentrate your affections. The
name of American, which belongs to you in your national
capacity, must always exalt the just pride of patriotism,
more than any appellation derived from local discriminations.
With slight shades of difference, you have the same religion,
manners, habits, and political principles. You have, in a
common cause, fought and triumphed together. The independence and liberty you possess are the work of joint coun11'




126           MISCELLANEOUS WRITINGS.
cils, and joint efforts, of common dangers, sufferings, and
successes."
Such is the language, now speaking, as it were, from the
grave of him who was " first in war, first in peace, and first
in the hearts of his countrymen."
Having premised these remarks, which are drawn from me
by a sense of duty, and a sincere regard to the welfare of
your rising state, and which, I trust, will be received in the
spirit of candor, in which they have been delivered, permit
me now to call your attention to the subjects, which more
immediately belong to your cognizance, as a Grand Jury of
the United States.
You are impanelled to make due inquiry and presentment of all crimes, which have been committed against the
United States within the judicial district of Maine. The
oath of office, which has been administered to you, contains
a general outline of the duty required of you. You are to
inquire with diligence, and to make true and faithful presentments, unaffected by any motives, but those, which should
influence conscientious and rational minds.  You are to
inquire without fear, favor, affection, or hope of reward, on
the one side; and without the prejudices arising from hatred,
envy, or malice, on the other. I am sure, that I need hardly
press upon your attention the solemnity, dignity, and importance of your office. You are selected to guard the public
peace, and to maintain the public laws; to accuse the guilty,
and to protect the innocent. What higher objects can engage the attention of men, looking to the great interests of
society? What nobler ends can be proposed, than those,
which administer to the tranquillity and happiness of our
friends and fellow-citizens?  What can be more acceptable
to God, or more conformable to the dictates of religion, than
the promotion of justice, the succor of virtue, and the relief
of the injured and oppressed? Nor can any one, who seriously reflects upon the invaluable blessings of a free government, hesitate to give all his aid to the due and regular




PIRACY AND THE SLAVE TRADE.            127
administration of public justice. It is utterly impossible,
that real liberty can long remain among a people sunk in
vice and indifferent to crimes. The forms and shadows of
its institutions may remain, to deceive the idle spectator; but
that spirit, which can alone quicken into life the principles of
freedom, is gone forever. The history of other nations is
full of melancholy instruction on this subject. The mockery
and parade of the symbols of liberty long survived the desolation of their rights. It was the amusement of their tyrants
to trick out the republic in its ancient, and venerable, and
tattered habiliments, when all its virtue, and its glory, and
its patriotism, had passed through the last offensive stages of
mortality, and dissolved into dust in its ruined sepulchres.
The temples of religion, indeed, remained in their majesty;
but, instead of that charity, which "believeth all things,
hopeth all things, endureth all things," the sullen spirit of
persecution inhabited there. The halls of legislation resounded with the voices of eloquence and learning; but they
were employed to justify laws written in blood, or to wring
from an afflicted and humbled people the last relics of their
liberty. The courts of justice, too, entertained within their
walls the grave controversies of poor and suffering suitors;
but corruption deposited its deadly poison upon their ermine,
and bought the patrimony of orphans and widows with
bribes, and left them to perish at the very doors of the sanctuary. These are no idle pictures of the fancy. They are
written on the records of many a nation, once ennobled by
its freedom and enlightened policy, and now existing, only
the sad monument of its own wretchedness.
Nor let us indulge the vain hope, that we shall escape a
like fate, if we neglect to preserve those institutions in their
purity, which sustain the great interests of society. If we
grow indifferent to the progress of vice; if we silently wink
at violations of the laws; if we habitually follow the current
of public opinion, without pausing to consider its direction;
if we cherish a sullen and irreverent disregard of the consti



128            MISCELLANEOUS WRITINGS.
tution of government, under which we live, or resign ourselves to factious discontent under the exercise of its legitimate powers; the time is not far distant, when we shall be
separated into rival states, engaged in furious contests for
paltry objects, and ultimately become the prey of some
unprincipled chieftain, who will first arrive at power by flattering popular prejudices, and then secure his bad eminence
by the destruction of the liberties of his country.
May this melancholy epoch never have an existence in our
history! Much, indeed, may be done under the indulgence
of a benign Providence, to avert such evils, if all our good
citizens will unite to enforce the laws, to cherish an habitual
obedience to their precepts, and to inculcate a reverence for
the administration of public justice. And you, Gentlemen of
the Grand Jury in particular, to whom is intrusted the high
responsibility of watching. over the public rights and suppressing public offences, you may do much to perpetuate our
liberties by an honest, zealous, and resolute discharge of your
duty.
The practice of the Court has ordinarily been to lay before
you an enumeration in detail of all the crimes of which you
are to take cognizance. But on the present occasion I shall
feel myself better employed by dwelling somewhat at length
on certain offences of a graver cast, which are unhappily but
too common in our age, and require the severe animadver-.sion of all good men from their manifest tendency to foster
the foulest passions and the most unnatural cruelties. As to
other crimes, as I am not aware that any of them require
your very particular examination, I shall leave them to your
general consideration; and if you shall have occasion for
more exact information, the learned counsel for the United
States, and the Court will most cheerfully aid your inquiries.
And first, gentlemen, let me call your attention to the
crime of Piracy. This offence has in former times crimsoned
the ocean with much innocent blood, and in its present
alarming progress threatens the most serious mischiefs to our




PIRACY AND THE SLAVE TRADE.         129
peaceful commerce. It cannot be disguised, that at the present times there are hordes of needy adventurers prowling
upon the ocean, who, under the specious pretext of being in
the service of the Patriot Governments of South America,
commit the foulest outrages. Being united together by no
common tie but the love of plunder, they assume from time
to time the flag of any nation which may best favor their
immediate projects, and depredate with indiscriminate ferocity upon the commerce of the neutral world, regardless
of the principles of law and the dictates of justice.  It
often too happens, as might well be expected in such wicked
associations, that, after their lawless designs are consummated, they quarrel among themselves about the division of
their spoils, and their quarrels end in irnvolving themselves in
the blood of their comrades. Persons of this description are,
in the most general sense of the term, pirates or freebooters,
and are aptly denominated the enemies of the human race,
and as such become amenable to the tribunals of all civilized
nations for their crimes, and by the laws of all, as I believe,
are punished with death.
While, therefore, we may properly indulge towards the
South Americans a reasonable sympathy in their struggle for
civil and religious liberty, and while we respect with the
most guarded caution the rights of the regular commissioned
ships of their governments, (as by law we are bound to do,)
we should take care that our feelings are not wasted upon
men who falsely assume the protection of their flag, and that
our judgments are not misled by framing apologies for depredations from which virtue and patriotism turn with disgust.
Piracy, according to the common law, consists in committing those acts of depredation and robbery at sea, which, if
committed upon land, would amount to felony there; and it
is piracy not only when a man robs without any commission
at all, but when having a commission he fraudulently, or
with a thievish intent, despoils those with whom he is not
warranted to fight or meddle; that is, such as are at peace




130             MISCELLANEOUS WRITINGS.
with the prince or state from which he derives his commission. Piracy at sea is indeed the same crime as robbery on
land at the common law. And robbery is the felonious
taking away of goods or money from the person or presence
of another against his will, by force or violence, or by putting
him in fear. It includes, therefore, the crime of theft, and
something more, namely, the taking with force or violence
from a person, or in his presence, or putting him in fear.
There must be either violence or putting in fear to constitute
the crime; but both need not concur. Such is the definition of piracy at the common law; and it does not differ in
any essential respect from that adopted in the law of nations;
for in this law piracy consists in unlawful and fraudulent
depredations with force upon the property of another at sea,
without authority from any prince or state. The essence of
the offence is the fraudulent subduction or theft of property
with violence from the persons in whose custody it lawfully
is. The act must be done, in the language of the law,
"' animo furandi," that is, with the intent to commit a theft;
and it is not committed by a mere excess of lawful authority,
unless combined with the intent of fraudulent gain. And,
indeed, Mr. Sergeant Hawkins has given an exact description
of the offence, according to the sense of the law of nations,
when he declares a pirate to be " one who, to enrich himself,
either by surprise or open force, sets upon merchants or others
trading by sea to spoil them of their goods and treasure."
By a recent statute of the United States, in order more
effectually to suppress this odious offence, it is enacted, that,
if any person shall, on the high seas, commit the crime of
piracy, as defined by the law of nations, and be afterwards
found in the United States, he shall, on conviction, suffer
death. This statute is manifestly designed to apply to all
cases, whether the crime be perpetrated on board of an American ship or a foreign ship, and whether the offender be a
foreigner or a citizen.
But there are other acts which the laws of the United




PIRACY AND THE SLAVE TRADE.          131
States have declared piracy, which are punishable as such,
only when committed on board of American ships, or by persons who are justly amenable to our criminal jurisdiction.
For no nation can have any right by its own legislation to
bind the subjects of foreign governments as to offences,
which fall within the exclusive cognizance of such governments.
The acts to which I have alluded I will now proceed to
enumerate.
1. The first act is, the perpetration of murder, robbery, or
any other offence on the high seas, which, if committed on
land, would, by the laws of the United States, by punishable
with death.
The crime of robbery here referred to is that crime, as
defined by the common law, which we have already considered.
Murder consists in the unlawful killing of any reasonable
creature in being, under the peace of the government, with
malice aforethought. It is this malice which essentially distinguishes murder from every other kind of homicide; and it
may be express, as when the crime is perpetrated with a
sedate and deliberate mind and formed design; or it may be
implied, as when the fact is attended with such circumstances
as are the ordinary symptoms of a wicked, depraved, and
malignant spirit. It matters not how sudden the transaction
may have been, nor whether there was a particular malevolence or spite to the deceased or not; it is sufficient if there
be either deliberate malice, or circumstances of cruelty and
depravity, carrying in them " the plain indications of a heart
regardless of social duty, and fatally bent on mischief."
In all charges of murder, the fact of killing being first
proved, all the circumstances of accident, necessity, or infirmity, which may justify or excuse it, are to be satisfactorily
proved by the prisoner at his trial unless they arise out of the
evidence produced against him; for the law presumes the
fact to be founded in malice, until the contrary appears.




132             MISCELLANEOUS WRITINGS.
2. A second act declared piracy by our laws, is the piratically and feloniously running away with any ship or vessel,
or any goods or merchandise to the value of fifty dollars, or
the voluntarily yielding up any ship or vessel to any pirate.
To constitute the offence within this clause, the crime
must be committed by the captain or a mariner of the ship,
and with a piratical and felonious intent; that is, with an
intent fraudulently to convert the property to their own use,
in violation of their trust, and against the will of the owner;
and, where the piratical act is the taking of goods or merchandise, the taking must be on board a ship or vessel.
3. A third act of piracy by our laws, is the laying of violent hands by any seaman upon his commander, thereby to
hinder and prevent his fighting in defence of his ship or the
goods committed to his trust.
It must be understood, as a restriction upon the generality
of this clause, that the fighting of the commander would be
lawful; for, if it would be unlawful, as in defiance of public
authority, in resistance of the right of search, or of a justifiable seizure, so far from the seamen's being guilty of a crime,
they would be doing no more than their duty, and could
incur no blame whatever.
4. A fourth act of piracy by our laws, is the making of a
revolt by a mariner on board of the ship to which he belongs.
It is not easy to enumerate all the various circumstances
which constitute " a revolt," a word, which in this clause is
used in the sense of mutiny or rebellion. A mere act of disobedience to the lawful commands of the officers of the ship
by the crew does not of itself constitute a revolt. But if
there be a general combination of the crew to resist the lawful commands of their officers, or to usurp their authority on
board of the ship; and any overt acts are done by the crew
in pursuance of such design; such as the confinement of
their officers, or depriving them of the control and management of the ship; these and the like acts seem properly to
constitute a revolt.




PIRACY AND THE SLAVE TRADE.           133
5. A fifth and last act of piracy, by our laws, is, when any
citizen commits any piracy or robbery aforesaid, or any act
of hostility against the United States or any citizens thereof,
upon the high seas, under color of any commission or authority from any foreign prince or state, or on pretence of authority from any person.
From this clause it is apparent how deeply involved in
guilt are those of our citizens who enlist themselves in the
armed ships of foreign states, and commit hostilities upon
their countrymen, or plunder their property; since the law
declares that they shall be " adjudged and taken to be pirates,
felons, and robbers," and shall, on conviction, suffer death.
And I may add, that all accessories before the fact, to any
of the piracies before mentioned are liable to the same capital
punishment; and accessories after the fact are visited with
exemplary penalties.
Another class of kindred offences to which, Gentlemen, I
beg to call your particular attention, is that which respects
our relations with foreign states. It has at all times been
the wise determination of our government to endeavor, amidst
the contests of belligerent nations, to preserve its own peace
by a strict and impartial neutrality. This course, so just and
reasonable in itself, and founded in the soundest, and, I may
add, the noblest policy, is so intimately connected with our
best interests, in a moral, commercial, and political view, that
our laws have most anxiously provided for the due observance of all our neutral duties. And yet I know not how it
has happened, but so the fact is, many of our citizens have
been deluded by the glare of a false and hollow patriotism,
deliberately to violate these laws and to engage in enterprises
not only unjust, but in many instances accompanied with the
most shocking barbarities. What authority have we to become the general champions of the violated rights of the
human race, and to march in a general crusade for the defence of the liberties of mankind where every footstep must
be traced in the mingled blood of the oppressor and the
12




134            MISCELLANEOUS WRITINGS.
oppressed? With what justice can we complain of the
wrongs of other nations if we assume the character of neutrality and yet violate all its most sacred obligations? if we
present that monstrous anomaly in the history of the world,
of a nation at peace and its citizens at war? Let not our
honor be sullied by the just accusation, that we want the virtue to enforce our laws, or are guilty of a mean hypocrisy in
suffering a collusive evasion of them. Let it be the pride of
our country to preserve an honest fame without reproach;
and to claim from foreign nations an observance of our own
rights, only when the claim can be enforced with clean hands
and pure hearts. If motives like these, so elevated and so
honorable, cannot bind us to our duty, as I confidently trust
they always will, let us at least take counsel of our fears and
our interests, and learn the wholesome lesson, that, as good
faith is the only sure foundation of national prosperity, so the
breach of it will be visited sooner or later with national degradation and ruin. And, gentlemen, I entreat you, as guardians of the laws, to endeavor, by your own presentments, as
well as by your counsels, to bring to punishment all persons
who violate our neutrality, however specious their pretexts
may be, and thus to do your part to arrest those calamities
which war, even in its mildest shape, never fails to inflict
upon its innocent sufferers.
Our laws have expressly prohibited our citizens from accepting and exercising, within our jurisdiction, a commission
to serve any foreign state, colony, or people, in war, by land
or by sea, against any other state, colony, or people. They
have also prohibited any person whatsoever, within our jurisdiction, from enlisting or entering himself, or hiring or retaining another person to enlist or enter himself, or to go beyond
our jurisdiction, with intent to be enlisted or entered, in the
service of any foreign state, colony, or people, as a soldier, or
as a mariner, or marine, in any armed ship. They have also
prohibited any person whatsoever, within our jurisdiction,
from fitting out and arming, or attempting to fit out and arm,




PIRACY AND THE SLAVE TRADE.           135
or procuring to be fitted out and armed, or being knowingly
concerned in the furnishing, fitting out, or arming, of any
ship, with intent that such ship shall be employed in the
service of any foreign prince or state, colony or people, to
cruise or commit hostilities against the subjects or property
of any foreign state, colony, or people, with whom we are at
peace; and from issuing or delivering a commission for any
such ship, to the intent that she shall be employed as above
mentioned. They have further prohibited our citizens, without
our jurisdiction, from fitting out and arming, or attempting to
fit out and arm, or procuring to be fitted out and armed, or
knowingly aiding or being concerned in the furnishing, fitting
out, or arming, any private ship of war or privateer, with
intent that such ship shall be employed to cruise or commit
hostilities upon our citizens or their property; or from taking
command of, or entering on board of any such, for the intent
aforesaid; or from purchasing any interest in any such ship,
with a view to share in the profits thereof. They have also
prohibited any person whatsoever, within our jurisdiction, from
increasing or augmenting, or procuring to be increased or
augmented, or being knowingly concerned in increasing or
augmenting the force of any ship of war or cruiser, in the
service of any foreign state, colony, or people, at war with
any foreign state, colony, or people, by adding to the number
of her guns, or by changing those on board for guns of
a larger calibre, or by the addition of any equipment solely
applicable to war. And lastly, our laws have prohibited any
person whatsoever, within our jurisdiction, from beginning, or
setting on foot, or providing, or preparing, the means for any
military expedition or enterprise, to be carried on from thence
against the territory or dominions of any foreign state, colony,
or people, with whom we are at peace.
Such are the prohibitions of our laws, enforced with suitable penalties, against violations of our neutrality; and so
extensive are their reach, that, if our good citizens will aid
the officers of the government in a vigilant discharge of their




136             MISCELLANEOUS WRITINGS.
duties, and grand juries will act with the firmness befitting
their office, there is little doubt, that we shall be able effectually to suppress unlawful enterprises and combinations, and
to restore the brightness of our national reputation, over
which the impunity of recent outrages has somewhat contributed to cast a temporary shade. Nor ought it to be
forgotten, that, by a faithful performance of our duty in
suppressing these offences, we shall contribute, in a very great
degree, to preserve the good habits and sound morals of our
seamen — a class of men of inestimable importance to our
commerce, and the bulwark of our naval glory. When once
they become contaminated by participating in unlawful plunder, the property of our merchants, as experience has but too
fully proved, can no longer be safely confided to their care.
So true is it, that the first step in vice costs us most; and we
thence slip easily downward into the gulf of infamy and
crime. He, who is in the pursuit of guilty plunder by violations of the laws, soon ceases to discriminate between friends
and foes; and silences the voice of his conscience, by an
appeal to the cravings of avarice, stimulated by a self-created
necessity.
In the next place, Gentlemen, let me call your attention to
that most detestable traffic, the Slave Trade. The existence
of slavery, under any shape, is so repugnant to the natural
rights of man and the dictates of justice, that it seems difficult to find for it any adequate justification. It undoubtedly
had its origin in times of barbarism, and was the ordinary lot
of those, who were conquered in'war. It was supposed, that
the conqueror had a right to take the life of his captive, and
by consequence might well bind him to perpetual servitude.
But the position itself, on which this supposed right is
founded, is not true. No man has a right to kill his enemy,
except in cases of absolute necessity; and this absolute
necessity ceases to exist, even in the estimation of the conqueror himself, when he has spared the life of his prisoner.
And even if in such case it were possible to contend for the




PIRACY AND THE SLAVE TRADE.           137
right of slavery, as to the prisoner himself, it is impossible
that it can justly extend to his innocent offspring through the
whole line of descent. I forbear, however, to touch on this
delicate topic, not because it is not worthy of the most
deliberate attention of all of us; but it does not properly fall
within my province on the present occasion. It is to be
lamented, indeed, that slavery exists in any part of our
country; but it should be considered, that it is not an evil
introduced in the present age. It has been entailed upon
a part of our country by their ancestors; and to provide
a safe and just remedy for its gradual abolition is, undoubtedly, as much the design of many of the present owners of
slaves, as of those philanthropists, who have labored with so
much zeal and benevolence to effect their emancipation. It
is, indeed, one of the many blessings, which we have derived
from Christianity, that it prepared the way for a gradual
abolition of slavery, so that, at the close of the twelfth century, it was greatly diminished in the west of Europe; and
it is one of the stains on the human character, that the
revival of letters and of commerce brought with it an unnatural lust of gain, and with it the plunder and'slavery of the
wretched Africans.
To our country belongs the honor, as a nation, of having
set the first example of prohibiting the further progress of
this inhuman traffic.  The constitution of the United States
having granted to Congress the power to regulate foreign
commerce, imposed a restriction, for a limited period, upon
its right of prohibiting the migration or importation of slaves.
Notwithstanding this, Congress, with a promptitude, which
does honor to their humanity and wisdom, proceeded, in
1794, to pass a law to prohibit the traffic of slaves by our
citizens, in all cases not within the reach of the constitutional
restriction; and thus cut off the whole traffic between foreign
ports. In the year 1800 an additional law was passed to
enforce the former enactments; and in thb year 1807 (the
epoch when the constitutional restriction was to cease,
12'




138             MISCELLANEOUS WRITINGS.
beginning with the ensuing year,) a general prohibition of
the traffic, as well in our domestic as foreign trade, was
proudly incorporated into our statute-book. About the same
period the British Government, after the most severe opposition from  slave-dealers and  their West Indian friends,
achieved a similar measure, and enacted a general prohibition of the trade, as well to foreign ports, as to their colonies. This act was, indeed, the triumph of virtue, of reason,
and of humanity, over the hard-heartedness of avarice; and,
while it was adorned by the brilliant talents of Pitt, Fox,
Romilly, and Wilberforce, let us never forget that its success
was principally owing to the modest, but persevering labors
of the Quakers, and, above all, to the resolute patience and
noble philanthropy of a man immortalized by his virtues, the
intrepid Thomas Clarkson.
It is a most cheering circumstance, that the examples of the
United States and Great Britain, in thus abolishing the slave
trade, have, through the strenuous exertions of the latter,
been generally approved throughout the continent of Europe.
The Government of Great Britain has, indeed, employed the
most indefatigable and persevering diligence to accomplish
this desirable object; and treaties have been made by her
with all the principal foreign powers, providing for a total
abolition of the trade within a very short period. May
America not be behind her in this glorious work; but, by
a generous competition in virtuous deeds, restore the degraded
African to his natural rights, and strike his manacles from the
bloody hands of his oppressors.
By our laws it is made an offence for any person to import
or bring, in any manner whatsoever, into the United States,
or its territories, from any foreign country, any negro, mulatto,
or person of color, with intent to hold, sell, or dispose of him
as a slave, or to be held to service or labor. It is also made
an offence for.any citizen or other person, as master, owner,
or factor, to build, fit, equip, load, or otherwise prepare, any
vessel in any of our ports, or to cause any vessel to sail from




PIRACY AND THE SLAVE TRADE.            139
any port whatsoever, for the purpose of procuring any negro,
mulatto, or person of color, from any foreign country, to be
transported to any port or place whatsoever, to be held, sold,
or disposed of, as a slave, or to be held to service or labor.
It is also made an offence for any citizen, or other person
resident within our jurisdiction, to take on board, receive, or
transport in any vessel from the coast of Africa, or any other
foreign country, or from sea, any negro, mulatto, or person of
color, not an inhabitant of, or held to service in, the United
States, for the purpose of holding, selling, or disposing of,
such person as a slave, or to be held to service or labor. It is
also made an offence for any person within our jurisdiction
to hold, purchase, sell, or otherwise dispose of any negro,
mulatto, or person of color, for a slave, or to be held to service
or labor, who shall have been imported into the United States
in violation of our laws; and, in general, the prohibitions in
these cases extend to all persons who shall abet or aid in
these illegal designs. These offences are visited, as well with
severe pecuniary and personal penalties, as with the forfeiture
of the vessels and their equipments, which have been employed in the furtherance of these illegal projects; and, in
general, a moiety of the pecuniary penalties and forfeitures is
given to any person who shall inform against the offenders,
and prosecute them to conviction. The President of the
United States is also authorized to employ our armed vessels
and revenue cutters to cruise on the seas, for the purpose of
arresting all vessels and persons, engaged in this traffic in
violation of our laws; and bounties, as well as a moiety of
the captured property, are given to the captors to stimulate
them in the discharge of their duty.
Under such circumstances, it might well be supposed that
the slave trade would in practice be extinguished; that virtuous men would, by their abhorrence, stay its polluted march,
and wicked men would be overawed by its potent punishments. But, unfortunately, the case is far otherwise.  We
have but too many melancholy proofs, from unquestioned




140            MISCELLANEOUS WRITINGS.
sources, that it is still carried on with all the implacable ferocity and insatiable rapacity of former times. Avarice has
grown more subtile in its evasions; and watches and seizes
its prey with an appetite, quickened, rather than suppressed,
by its guilty vigils.  American citizens are steeped up to
their very mouths (I scarcely use too bold a figure) in this
stream of iniquity.  They throng to the coasts of Africa
under the stained flags of Spain and Portugal, sometimes
selling abroad "their cargoes of despair," and sometimes
bringing them into some of our Southern ports, and there,
under the forms of the law, defeating the purposes of the
law itself, and legalizing their inhuman, but profitable, adventures. I wish I could say, that New England and New
England men were free from this deep pollution. But there
is reason to believe that they, who drive a loathsome traffic,
" and buy the muscles and the bones of men," are to be found
here also. It is to be hoped the number is small; but our
cheeks may well burn with shame, while a solitary case is
permitted to go unpunished.
And, Gentlemen, how can we justify ourselves or apologize
for an indifference to this subject? Our constitutions of government have declared that all men are born free and equal,
and have certain unalienable rights, among which are the
right of enjoying their lives, liberties, and property, and of
seeking and obtaining their own safety and happiness. May
not the miserable African ask, " Am I not a man and a
brother? " We boast of our noble struggle against the encroachments of tyranny; but do we forget, that it assumed
the mildest form, in which authority ever assailed the rights
of its subjects; and yet that there are men among us, who
think it no wrong to condemn the shivering African to perpetual slavery?
We believe in the Christian religion. It commands us to
have good-will to all men; to love our neighbors as ourselves;
and to do unto all men as we would they should do unto us.
It declares our accountability to the Supreme God for all




PIRACY AND THE SLAVE -TRADE.           141
our actions, and holds out to us a state of future rewards and
punishments, as the sanction, by which our conduct is to be
regulated. And yet there are men, calling themselves Christians, who degrade the negro by ignorance to a level with
the brutes, and deprive him of all the consolations of religion.
He alone, of all the rational creation, they seem to think, is
to be at once accountable for his actions, and yet his actions
are not to be at his own disposal; but his mind, his body,
and his feelings, are to be sold to perpetual bondage. To
me it appears perfectly clear, that the slave-trade is equally
repugnant to the dictates of reason and religion, and is an
offence equally against the laws of God and man.  Yet,
strange to tell, one of the pretences upon which the modern
slavery of the Africans has been justified, is the " duty of
converting the heathen."
I have called this an inhuman traffic; and, Gentlemen, with
a view to enlist your sympathies, as well as your judgments,
in its suppression, permit me to pass from these cold generalities, to some of those details, which are the ordinary attendants upon this trade. Here, indeed, there is no room for
the play of imagination. The records of the British Parliament present us a body of evidence on this subject, taken
with the most scrupulous care, while the subject of the abolition was before it; taken, too, from persons who had been
engaged in, or eye-witnesses of the trade; taken, too, year
after year, in the presence of those whose interests or passions were most strenuously engaged to oppose it. That it
was not contradicted or disproved can be accounted for only
upon the ground that it was the truth, and nothing but the
truth. What, therefore, I shall briefly state to you on this
subject, will be drawn principally from those records; and I
am free to confess that, great as was my detestation of the
trade, I had no conception, until I recently read an abstract
of this evidence, of the vast extent of misery and cruelty occasioned by its ravages. And if, Gentlemen, this detail shall
awaken your minds to the absolute necessity of constant




142             MISCELLANEOUS WRITINGS.
vigilance in the enforcement of the laws on this subject, we
may hope that public opinion, following these laws, will very
soon extirpate the trade among our citizens.
The number of slaves taken from Africa in 1768 amounted
to one hundred and four thousand; and though the numbers
somewhat fluctuated in different years afterwards, yet it is in
the highest degree probable, that the average, until the abolition, was not much below one hundred thousand a year.
England alone, in the year 1786, employed one hundred and
thirty ships, and carried off about forty-two thousand slaves.
The unhappy slaves have been divided into seven classes.
The most considerable, and that which contains at least half
of the whole number transported, consists of kidnapped people. This mode of procuring them includes every species
of treachery and knavery. Husbauds are stolen from their
wives, children from their parents, and bosom friends from
each other. So generally prevalent are these robberies, that
it is a first principle of the natives not to go unarmed, while
a slave ship is on the coast, for fear of being stolen. The
second class of slaves, and that not inconsiderable, consists
of those whose villages have been depopulated for obtaining
them. The parties employed in these predatory expeditions
go out at night, set fire to the villages which they find, and
carry off the wretched inhabitants, thus suddenly thrown into
their power as slaves. The practice is, indeed, so common,
that the remains of deserted and burnt villages are everywhere to be seen on the coast. The third class consists of
such persons as are said to have been convicted of crimes,
and are sold on this account for the benefit of their kings;
and it is not uncommon to impute crimes to them falsely,
and to bring on mock trials, for the purpose of bringing them
within the reach of the royal traders. The fourth class includes prisoners of war, captured sometimes in ordinary wars,
and sometimes in wars originated for the very purposes of
slavery. The fifth class comprehends those who are slaves
by birth; and some traders on the coast make a practice of




PIRACY AND THE SLAVE TRADE.          143
breeding from their own slaves, for the purpose of selling
them, like cattle, when they are arrived at a suitable age.
The sixth class comprehends such as have sacrificed their
liberty to the spirit of gaming. The seventh and last class
consists of those who, being in debt, are seized according to
the laws of the country, and sold to their creditors. But the
two last classes are very inconsiderable, and scarcely deserve
mention.
Having lost their liberty in one of the ways already mentioned, the slaves are conveyed to the banks of the rivers or
sea-coast.  Some belong to the neighborhood; others have
lived in distant parts; and others are brought a thousand
miles from their homes. Those who come from a distance,
march in droves, or caufles, as they are called.. They are
secured from rising or running away by pieces of wood,
which attach the necks of two and two together; or by
other pieces, which are fastened by staples to their arms.
They are made to carry their own water and provisions; and
are watched and followed by drivers, who by force compel
the weak to keep up with the strong.
They are sold, immediately upon their arrival on the rivers
or coasts, either to land factors, at depots for that purpose, or
directly to the ships engaged in the trade. They are then carried in boats to the various ships whose captains have purchased them. The men are immediately confined two and
two together, either by the neck, leg, or arm, with fetters of
solid iron. They are then put into their apartments, the men
occupying the forepart, the women the after-part, and the
boys the middle of the vessel. The tops of these apartments
are grated, for the admission of light and air; and the slaves
are stowed like any other lumber, occupying only an allotted
portion of room. Many of them, while the ships are waiting for their full lading, in sight of their native shore, manifest great appearance of distress and oppression; and some
instances have occurred where they have sought relief by
suicide, and others, where they have been afflicted with de



144             MISCELLANEOUS WRITINGS.
lirium and madness. In the daytime, if the weather be fine,
they are brought upon deck for air. They are placed in a
long row of two and two together, on each side of the ship,
a long chain is then made to pass through the shackles of each
pair, and by this means each row is secured to the deck. In
this state they eat their miserable meals, consisting of horsebeans, rice, and yams, with a little pepper and palm  oil.
After their meals, it is a custom to make them jump for
exercise as high as their fetters will allow them; and if they
refuse, they are whipped until they comply. This the slave
merchants call dancing, and it would seem literally to be the
dance of death.
When the number of slaves is completed, the ships begin
what is called the middle passage, to transport them to the
colonies. The height of the apartments in the ships is different, according to the size of the vessel, and is from six
feet to three feet; so that it is impossible to stand erect in
most of the vessels, and in some scarcely possible to sit down
in the same posture. If the vessel be full, the situation of
the slaves is truly deplorable.  In the best-regulated ships a
grown person is allowed but sixteen inches in width, thirtytwo inches in height, and five feet eleven inches in length;
or, to use the expressive language of a witness, not so much
room  as a man has in his coffin.  They are, indeed, so
crowded below, that it is almost impossible to walk through
the groups without treading on some of them; and if they
are reluctant to get into their places, they are compelled by
the lash of a whip.  And here their situation becomes
wretched beyond description.  The space between decks,
where they are confined, often becomes so hot that persons
who have visited them there, have found their shirts so wet
with perspiration, that water might be wrung from them;
and the steam from their confined bodies comes up through
the gratings like smoke from a furnace. The bad effects of
such confinement and want of air are soon visible in the
weakness and faintness, which overcome the unhappy vic



PIRACY AND THE SLAVE TRADE.          145
tims.  Some go down apparently well at night, and are
found dead in the morning. Some faint below, and die from
suffocation before they can be brought upon deck. As the
slaves, whether well or ill, always lie upon bare planks, the
motion of the ship rubs the flesh from the prominent parts of
their body, and leaves their bones almost bare. The pestilential breath of so many, in so confined a state, renders them
also very sickly, and the vicissitudes of heat and cold generate a flux. When this is the case (which happens frequently)
the whole place becomes covered with blood and mucus, like
a slaughter-house; and as the slaves are fettered and wedged
close together, the utmost disorder arises from endeavors to
relieve themselves in the necessities of nature; and the disorder is still further increased by the healthy being not unfrequently chained to the diseased, the dying, and the dead.
When the scuttles in the ship's sides are shut in bad weather,
the gratings are not sufficient for airing the room; and the
slaves are then seen drawing their breath with all that anxious and laborious effort for life, which we observe in animals
subjected to experiments in foul air, or in an exhausted receiver of an air-pump. Many of them expire in this situation, crying out in their native tongue, " We are dying."
During the time that elapses from the slaves being put on
board on the African coast to their sale in the colonies, about
one fourth part, or twenty-five thousand per annum, are destroyed; a mortality which may be easily credited after the
preceding statement.
At length the ship arrives at her destined port, and the unhappy Africans, who have survived the voyage, are prepared
for sale. Some are consigned to brokers, who sell them for
the ships at private sale. With this view, they are examined
by the planters who want them for their farms; and in the
selection of them friends and relations are parted without
any hesitation; and when they part with mutual embraces,
they are severed by a lash. Others are sold at public auction,
and become the property of the highest bidder. Others are
13




146            MISCELLANEOUS WRITINGS.
sold by what is denominated a " scramble." In this case the
main and quarter decks of the ship are darkened by sails
hung over them at a convenient height. The slaves are then
brought out of the hold and made to stand in the darkened
area. The purchasers, who are furnished with long ropes,
rush, at a given signal, within the awning, and endeavor to
encircle as many of them as they can. Nothing can exceed
the terror which the wretched Africans exhibit on these occasions. A universal shriek is immediately heard - all is consternation and dismay - the men tremble - the women cling
together in each other's arms - some of them faint away,
and others are known to expire.
About twenty thousand, or one fifth part of those who are
annually imported, die during the " seasoning," which seasoning is said to expire when the two first years of servitude
are completed; so that of the whole number about one half
perish within two years from their first captivity. I forbear
to trace the subsequent scenes of their miserable lives - worn
out in toils, from which they can receive no profit, and oppressed with wrongs from which they can hope for no relief.
The scenes which I have described are almost literally
copied from the most authentic and unquestionable narratives published under the highest authority. They present a
picture of human wretchedness and human depravity, which
the boldest imagination would hardly have dared to portray,
and from which (one should think) the most abandoned
profligate would shrink with horror. Let it be considered,
that this wretchedness does not arise from the awful visitations of Providence, in the shape of plagues, famines, or
earthquakes, the natural scourges of mankind; but is inflicted by man on man, from the accursed love of gold. May
we not justly dread the displeasure of that Almighty Being,
who is the common Father of us all, if we do not, by all
means within our power, endeavor to suppress such infamous
cruelties? If we cannot, like the good Samaritan, bind up
the wounds and soothe the miseries of the friendless Africans,




PIRACY AND THE SLAVE TRADE.         147
let us not, like the Levite, pass with sullen indifference on
the other side. What sight can be more acceptable in the
eyes of Heaven than that of good men struggling in the
cause of oppressed humanity? What consolation can be
more sweet, in a dying hour, than the recollection that at
least one human being may have been saved from sacrifice
by our vigilance in enforcing the laws?
I make no apology, Gentlemen, for having detained you so
long upon this interesting subject. In vain shall we expend
our wealth in missions abroad for the promotion of Christianity; in vain shall we rear at home magnificent temples
to the service of the Most High. If we tolerate this traffic,
our charity is but a name, and our religion little more than a
faint and delusive shadow.




CHANCERY JURISDICTION.
AN ARTICLE WRITTEN FOR THE NORTH AMERICAN REVIEW, IN 1920, ON
THE REPORTS OF MR. JOHNSON.
MR. CHANCELLOR KENT was appointed a puisne Judge of
the Supreme Court of New York, on the 6th of February,
1798; Chief Justice of the same court, on the 2d of July,
1804; and, upon the resignation of Mr. Chancellor Lansing,
succeeded to the distinguished station of Chancellor of New
York, on the 25th of February, 1814. He has been long,
therefore, before the public in a judicial character, which he
has sustained with increasing reputation, a reputation, as
pure as it is bright; and he is, at the very moment we are
writing, devoting himself to the labors of jurisprudence with
a diligence and enthusiasm, which excite the admiration of
the veteran counsellor at the bar, even more than of the
ambitious student just struggling for distinction. He has
always been remarkable for an unwearied attention to business, a prompt and steady vigilance, and a sacred reverence
for juridical authorities. For him the easy course of general
reasoning, popular analogies, and fanciful theories, has no
charms. He does not believe that judicial discretion is the
arbitrium boni judicis, much less boni viri; or, that he is at
liberty to promulgate rules, either of law or equity, measured
by his own abstract notions of what is fit or reasonable. He
contents himself with administering the common law, as he
finds it, without the rashness to presume himself wiser than
the law, or the vanity of distinguishing himself by innovations. His life has been devoted, sedulously and earnestly,




CHANCERY JURISDICTION.           149
to professional studies. He has fathomed the depths and
searched the recesses of the ancient law, the black-lettered
relics of former times, so much disparaged, and yet of such
inestimable value. He has traced back the magnificent
streams of jurisprudence to their fountains, lying dark and
obscure amidst the rubbish of monkish retreats, or stealing
silently from the chivalric heights of feudal grandeur. His
researches have been, amidst the dust and the cobwebs of
antiquated lore, pursued in the unfashionable pages of the
Year Books, and Glanville, and Fleta, and Britton, and the
almost classical Bracton. He has dared to examine the
Abridgments of Brooke, and Fitzherbert, and Statham; books,
from which the modern student starts back with doubt and
apprehension, as the great reservoirs, whence have been
drawn the best principles of modern times, and whence must
be drawn the body and the soul of that learning, which distinguishes the professor from the sciolist. He has not stopped
short at a survey of the mere Gothic structures of the law;
but has examined, with eager and enlightened curiosity, the
beautiful systems with which the commercial law has been
adorned in our day. He has mastered all their refinements,
and has, in no small degree, contributed to their beauty and
perfection. He has drawn deeply from the commercial law
of foreign nations; the works of Straccha, and Roccus, and
Valin, and Pothier, and Emerigon are familiar to his thoughts
and his writings. He has there found the principles, by
which our own jurisprudence is to be illustrated; and one is
at a loss which most to admire, the incomparable discernment of the judge, or the attractive excellence of the materials. If his attainments had found their boundary here, they
would have entitled him to great praise; but he has nobly
extended his inquiries beyond the common and commercial
law, and explored the Roman jurisprudence through its texts
and commentaries with uncommon acuteness and accuracy.
This has been done with no idle view, to gratify a merely
speculative curiosity, or to- gather up the fragments of anti13 *




150             MISCELLANEOUS WRITINGS.
quarian fame. Like all his other studies, this has been made
subservient to the great purposes of his life, the promotion of
justice, and the establishment of a solid jurisprudence, founded
in the most enlightened policy. In his decisions, we can
every where trace the happy use of that marvellous system
of doctrines, which Justinian collected with so much care,
and which stands unrivalled in the world for its general
equity, and nice adaptation to the necessities of mankind;
a system, which was gradually matured by the labors of
jurists and praetors, during centuries, in which Rome was the
mistress of the world; and which had the singular advantage
of being the combined results of experience, and general
reasoning, and judicial interpretation, aided very little by
imperial rescripts, and rarely marred by imperial interference.
Let those who now doubt the importance of the study of the
civil law by common lawyers, read diligently the opinions of
Mr. Chancellor Kent, and they will find all the objections
raised by indolence, and ignorance, and prejudice, practically
refuted, and the civil law triumphantly sustained. They will
perceive the vivid lights, which it casts on the paths of juridical science; and they will be instructed and cheered in the
pursuit, though they may not hope to move in the brilliant
career of such a judge with equal footsteps.
It required such a man, with such a mind, at once liberal,
comprehensive, exact, and methodical; always reverencing
authorities, and bound by decisions; true to the spirit, yet
more true to the letter of the law; pursuing principles with
a severe and scrupulous logic, yet blending with them the
most persuasive equity; — it required such a man, with such
a mind, to unfold the doctrines of chancery in our country,
and to settle them upon immovable foundations. Without
doubt, his learned predecessors had done much to systematize and amend the practice of the court. But it cannot be
disguised, that the general state of the profession was not
favorable to a very exact and well-regulated practice. There
were, comparatively speaking, few lawyers in the country,




CHANCERY JURISDICTION.              151
who had devoted themselves to courts of equity. In general,
the ablest men found the courts of common law the most
lucrative, as well as the most attractive, for the display of
their talents. They contented themselves with occasional
attendance at the chancery bar; and placed their solid fame
in the popular forum, where the public felt a constant
interest, and where the great business of the country was
done. In many of the states no court of chancery existed.
In others it was a mixed jurisdiction, exercised by courts of
common law. And in those where it was administered by
a distinct judicature, there is great reason to fear, that the
practice was very poor, and the principles of decision built
upon a rational equity, resting very much in discretion, and
hardly limited by any fixed rules. In short, the doctrines of
the courts depended much less upon the settled analogies of
the system, than upon the character of the particular judge.
If he possessed a large and liberal mind, he stretched them to
a most unwarrantable extent; if a cautious and cold one, the
system fainted and expired under his curatorship. This
description was applicable, perhaps, without any material
exceptions, to the equity jurisprudence of our country; and
New  York comes in, probably, for a full share of it. At
least, there are in the volumes now before us abundant proofs,
that neither the practice nor principles of the chancery of that
state had, previously to the time of Mr. Chancellor Kent,
assumed a steady and well-defined shape.  We see, for
instance, that points of practice are often most elaborately
reasoned out by this learned chancellor, in various opinions,
as if the case stood de novo before him, and he was called
upon for the first time to apply the English practice to our
own. This could hardly have occurred, if there had been
a constant, settled channel, in which it had previously flowed.
Nor is it difficult to account for this state of things, consistently with the highest deference for the learned judges,
who had administered equity. In England, the court of
chancery is, and for a long time has been, the most active,




152             MTISCELLANEOUS WRITINGS.
and most extensive judicature in the kingdom. From the
existence of a law of descents, which gives to the eldest son
the exclusive heirship of real estate, there arises a necessity
for complicated marriage settlements, apportioning the property among all the children, and looking to very remote
contingencies for their completion. The same circumstance
makes last wills and testaments extremely intricate and perplexed, and fills them with provisions for younger sons and
daughters, and remote relations, which may not be exhausted
in a century. Hence we find complex entails, springing uses,
contingent remainders, and express or resulting trusts, spreading over almost every estate in the kingdom, and weaving
a network, which at last becomes so close, and so embarrassing, that a private act of Parliament is the only effectual
remedy to disentangle the title. It is scarcely possible to
form the most simple marriage-settlement, without incorporating some trusts into it. And as to last wills, even if they
furnish no direct case for the application of chancery jurisdiction, which rarely happens, yet they almost invariably fall
within the cognizance of that court, in virtue of its general
jurisdiction as to legacies, or to compel a settlement of the
accounts, and a distribution of the estate. So that it has
been remarked, and probably with great correctness, that, in
the course of half a century, almost every estate in the kingdom passes under the judicial review of the chancellor.
Nor is this to be wondered at, when we consider, that no
trustees can safely act, without the direction of a court of
equity; and that, in complicated settlements and wills, there
must be a great variety of clauses, whose exact meaning and
extent can never be ascertained, until they receive a judicial
interpretation. This is an inexhaustible source of hostile or
amicable litigation; and of itself would create more business
than the diligence and talents of a half dozen chancellors
could despatch, within any reasonable time. And it often
happens, with all the exertions of the chancellor, the master
of the rolls, the vice-chancellor, the chancery court of the




CHANCERY JURISDICTION.             153
exchequer, and many local courts of equity, that suits of this
nature are still pending, after the lapse of twenty years, and
sometimes survive all the original parties, and their immediate descendants and representatives.
It is fortunate for our country, that the genius of our institutions, and the happy structure of our laws of descents, by
dividing and subdividing property among immediate and
remote relatives by equitable rules, silently provides for
ninety-nine cases out of a hundred of all the objects of an
anxious parent or friend. We hear, therefore, of few cases
of settlements, and comparatively few of wills, which are
not extremely simple, and are not exhausted with the breath
of the first limitations.  Entails have practically ceased
among us, from the facility, with which they may be turned
into a fee; and, indeed, under the present circumstances of
our country, they would be likely to generate family feuds
and difficulties, rather than to accomplish any valuable purposes. We may, therefore, easily see in the past circumnstances of our country, very strong reasons, why the chancery
jurisdiction has hitherto had but a limited scope for its
powers; and why its principles and practice have not hitherto assumed a very scientific cast in our own tribunals. It
is but a few years ago, that our common law courts were
governed by a very lax jurisprudence.  There are few reports
older than twenty years; and those few leave us little regret
for the total oblivion cast on all preceding times in our legal
annals. There were, without doubt, acute and able lawyers,
and learned judges; but they were few in number; and the
defects of the juridical system and practice, and the narrow
walks of business, precluded any great improvements. We
had scarcely any commercial law; and very few contracts, on
which it could operate; and the generalizing spirit of the
present day had scarcely shed a doubtful twilight over us.
Our suits principally respected titles or trespasses to land, or
personal wrongs, or penalties, or local topics, or debt, or
bonds, or assumpsits on contracts for labor, or services, or




154             MISCELLANEOUS WRITINGS.
goods sold in small parcels. Policies of insurance, bills of
exchange, and promissory notes, and shipping contracts, and
charter-parties, are the growth of a thriftier trade, and more
extensive mercantile enterprise. They have grown up among
us almost in our own day. Indeed, in England, they are not,
in a practical sense, much older than the days of Lord Holt;
and as to insurance law, it was almost contemporaneous
with the reign of George III. If, then, our courts of common
law were so limited and lax in their practice, it is not to be
supposed, that our chancery courts could have been very exact
or methodical. Their business was of a nature not to attract
the highest talents; and, before the revolution, in some of the
states, the office of chancellor was but a political appointment. We find it stated by Mr. Johnson, in the preface to
the present Reports, that in New York, "The erecting of
a court of chancery, by an ordinance of the 2d of September,
1701, to consist of the Governor and Council, rendered it
extremely unpopular; and frequent but fruitless attempts
were made by the Assembly to destroy the court. It continued to be held under that ordinance, though little business
appears to have been transacted in it, until its organization
in March, 1778, under the constitution of our state."  What
is true with respect to the chancery of New York, is probably
true with respect to most of the other equity courts in the
Union. They had little business before the Revolution. The
revolution itself was not a season for building up a judicial
establishment; and the times that succeeded, until after the
adoption of the constitution of the United States, were times
of so much difficulty, and distress, and want of capital, and
want of confidence, that there was little inclination to become
either an equity lawyer, or an equity judge. In better times,
many years must have elapsed before there was a regular
current of business; and that was, from obvious causes, slow
and uncertain, and not always the clearest. Without going
more into detail, it may at once be seen why, even in the
busy state of New York, we are driven almost to the times




CHANCERY JURISDICTION.             155
of Mr. Chancellor Kent, in our search for a systematic administration of equity. The fault was not in the learned chancellors, but in the materials, and in the organization of the
system, and the difficulties of the times, and the lax state of
the profession.
It may, perhaps, be asked, as it has been heretofore asked,
whether courts of equity be, on the whole, of any serious
importance in our country, considering that many of the
most fertile sources of litigation are here completely dried
up, or spring up in courts of common law? We have already
alluded to some of these sources. But, before we proceed to
answer this inquiry, it may not be improper to advert to a
few more of the subjects of chancery jurisdiction in England, which are not likely to have an extensive operation
here, or, at least, to be drawn here within the same jurisdiction. We may at once dismiss all consideration of the
common law jurisdiction of the chancellor, such as his
authority of granting writs of scire facias to repeal patents,
petitions and monstrans de droit, traverses of office, writs of
scire facias upon recognizances, &c.  These properly fall
within the cognizance of our courts of common law, and
are no appendages of chancery. In respect, also, to the
statutable jurisdiction of the chancellor, such as that under
the bankrupt laws, little need be said; because it must
depend upon the will of the legislature, to whom shall be
intrusted the summary powers exercised in such cases.
Another important branch of the chancellor's jurisdiction is
exercised partly under statutes, and partly under his general
chancery authority, and partly under his special authority, as
the immediate delegate of the crown, acting as parens patrice.
We allude to his jurisdiction in cases of charitable uses, a
subject of great extent and difficulty, and of the deepest
interest to the whole commnuity. The English system, on
this subject, has been built up with wonderful ingenuity;
and the statute regulations are entitled to our most serious consideration. Mr. Wheaton, in his valuable reports,




156            MISCELLANEOUS WRITINGS.
adorned, as they are, with much of his own exact learning,
has given us a sketch of the English law of charities in the
appendix to his fourth volume. We merely mention the
fact, with the recommendation to all our legal readers, and
particularly to those who are, or expect to be, legislators, to
peruse it with the utmost diligence, as worthy of their most
serious reflection. Having alluded to the great statute of
charitable uses of 9 Geo. II., ch. 36, he emphatically concludes with the following remarks:-" And it deserves the
consideration of every wise and enlightened American legislator, whether provisions similar to those of this celebrated
statute are not proper to be enacted in this country, with a
view to prevent undue influence and imposition upon pious
and feeble minds, in their last moments, and to check that
unhappy propensity, which sometimes is found to exist under
a bigoted enthusiasm, the desire to gain fame, as a religious
devotee and benefactor, at the expense of all the natural
claims of blood and parental duty to children." Already
charitable donations, to an immense extent, have been bestowed in our country, without any check being interposed
by the legislature. We are in some danger, and from the
same natural causes, which are forever at work in all ages,
and in all countries, of having our most valuable estates
locked up in mortmain, and our surplus wealth pass away in
specious or mistaken charities, founded upon visionary or
useless schemes, to the impoverishment of friends, and the
injury of the poor and deserving of our own countrymen.
Let us but look for a moment at England, where, notwithstanding all the legislative and judicial guards, interposed
from time to time, abuses of the most disgraceful and dangerous nature have grown up, under the administration of
their charities by trustees and by corporations, and which
parliament are now seeking to redress; and let us ask ourselves whether we can hope for a better state of things, when
we have not a single guard, legislative, executive, or judicial,
either to check improper donations, procured by fanatical or




CHANCERY JURISDICTION.              157
other delusions, or to secure the just administration of them
from the most gross abuses. We are not aware, that any
adequate authority at present exists in any of the United
States for such purposes;' and, certainly, in our own state
there is not a pretence to say, that we have any real substantial security. A chancery jurisdiction on this subject, to the
fullest extent, seems indispensable to insure justice, as well
to the intentions of the benevolent donors, as to the objects
of the donations. Remedies, in courts of common law, are,
and must forever be, utterly inefficient and illusory.
We have been unexpectedly led to these remarks by a
deep sense of their immediate and pressing importance, and
we quit the subject with great reluctance, believing, that a full
development of it could not fail to be interesting to all wellwishes to our country, to statesmen, to lawyers, to pious and
benevolent men, and to those who love, and those who cultivate literature, the arts, or the sciences. But this is not the
time or occasion for such a discussion. At present we must
go dryly on with our examination of the chancery jurisdiction.  We may, however, say, that as long as charitable uses
shall exist, (and in a pious, refined, and elegant society, they
must always be cherished,) there is a necessity to follow up
their administration with the cogent process of chancery
visiting them, to quicken their diligence and their virtue.
There is another authority, which has been, from time
immemorial, or at least for several hundred years, exercised
by the chancellor, which is said to belong to him, not in his
official capacity, but as personal delegate of the crown. We
allude to his jurisdiction in the cases of idiots and lunatics,
as to the guardianship of their persons, and the management of their estates, and the protection of their rights. Of
an analogous character is the authority of the chancellor, as
to the care of infants.  The king, as parens patrice, is entitled to the care of infants; and this care is delegated by him
to the court of chancery, and, as it seems, to this court alone.
The court of chancery, therefore, exercises a most extensive
14




158             MISCELLANEOUS WRITINGS.
jurisdiction, as to the custody of the person and estates of
infants, their maintenance, and marriages. In our country,
as well from  public convenience, as from  considerations
drawn from a respect for private interests, this jurisdiction
generally belongs to probate and orphans' courts, which are
instituted in every small district or county, for the purpose of
granting administrations, guardianships, &c. These tribunals
are so domestic, and popular, and convenient, that it is highly
probable they will always retain, if not an exclusive possession of this jurisdiction, at all events, such a concurrent
jurisdiction, as will absorb the great mass of cases, and, for
general purposes, be as efficacious and salutary as a court of
chancery. In New York, however, it appears that the chancery exercises a general superintending authority in these
cases, in many respects analogous to that in England. In
New England we believe the probate courts exercise an exclusive authority as to the appointment and removal of
guardians, and a concurrent, and sometimes an exclusive,
authority in the settlement of their accounts.
There is another class of cases, of every day's occurrence
in England, which belongs exclusively to the court of chancery, and must probably have an existence in every court of
chancery acting ex cequo et bono. We allude to bills for specific performance of contracts, in contradistinction to mere
actions for damages for the breach of such contracts. The
doctrines of courts of equity on this head have spread into
numerous branches; and the system itself has become not a
little complex and unsatisfactory. The notion, that a court
of equity is at liberty to dispense with a strict compliance
with the terms of the contract, when no accident, mistake, or
fraud, in a strict sense, has intervened to prevent an exact
compliance by the parties; and that the court may interfere
with these terms, and, as to time, dispense with them altogether, upon the footing of mere discretion; is so repugnant
to a just conception of the obligation of contracts, and of
the right of the parties to stand upon their own stipulations,




CHANCERY JURISDICTION.             159
as well as to general convenience and justice, that one wonders, that such an extraordinary authority should have ever
been assumed or tolerated. Yet it has become an inveterate
rule in equity, that time is not, or at least may not be, of the
essence of a contract; and, consequently, that a party may
be entitled to relief and a specific performance, if a contract
for the sale of lands be decreed, although he has utterly
failed to comply with the conditions of sale, within the
period stipulated by the express letter of his contract; and
this, too, to make the case stronger, rests not on a notion
that there has been fraud, or circumvention, or inevitable
accident, (casus fortuitus,) or mutual and innocent mistake,
but upon the mere will, we had almost said caprice, of chancery, acting upon a thousand fancies of imaginary hardship.
The old doctrine on this subject was most extravagant; and
it seems the inclination of the present times to narrow the
ground, and reduce it more to principles of common reason
and convenience. But still, there is enough of difficulty and
doubt in the cases that arise, to make us wish for a thorough
reformation of the whole doctrine; and to put it upon this
intelligible ground, that, where the party seeks a specific performance, he must show a strict compliance with the terms
of the contract, or stand for relief upon some other real principle of equity. We ourselves have known specific performance decreed of purchases of real estate after twenty years
from the time of the contract, when the property had changed
its value exceedingly, three or four times in opposite ways,
during the intervening period. We have also known specific
performance sought, and reluctantly denied, after the lapse of
more than thirty years, when all the original parties were
dead, and the land, which was a wilderness, was become a
settled and cultivated country. If there ever was a case for
a statute prohibition of suits, except they are brought within
a very short period, as a lawyer might say, by journeys' accounts, bills of this nature would furnish the most striking
occasion for salutary legislation.




160             MISCELLANEOUS WRITINGS.
Still, it is not on the whole probable that this head of
~equity will, in our country, ever embrace a very extensive
jurisdiction. The reasons which in England have conduced
to raise up so many suits of this nature do not, and perhaps
never will, exist in a corresponding degree in our country.
In England, from causes already attended to, conveyancing
has become extremely complicated; titles are buried under
loads of parchment; and the intricacies of the trusts and
uses, present and future, springing and resulting, of powers,
gross or appurtenant, of entails, and contingent provisions,
(especially if the estate has passed through two or three great
landholders' hands, or has been linked to a marriage-settlement,) become so perplexing that it requires a vast deal of
time and money to evolve its material muniments, and arrive
at any thing like certainty, even as to the transmission of the
title. Now and then to be sure, a fine or a common recovery
cures all latent defects, and gives a new start to the title.
But in many cases these remedies are impracticable, and
sometimes they fail, (as unfortunately happens in respect to
remedies administered for physical diseases,) even in the
most skilful hands, and a latent taint first infects, and in the
hands of a cunning solicitor soon eats up or destroys the title,
though cased as it were in its triple mail of parchment, and
surrounded by its concords and its vouchers. Hence, it
rarely happens upon the purchase of an estate in England, if
it be of any considerable value, that conveyances are immediately executed. The title-deeds are first to be thoroughly
examined through perhaps a century; and diligent search
made, not as we might hastily imagine, into a few short
deeds of a folio page in length, but into volumes of dark and
mouldy parchment, rolled up like ancient manuscripts, and
requiring as much time to unravel and study them. Abstracts of these titles are to be made out and laid before
counsel for their consideration and opinion. If a doubt of
fact or law occurs the search is to be renewed; outstanding
terms of years are to be ascertained to be either satisfied and




CHANCERY JURISDICTION.            161
attendant on the inheritance, or to be subsisting for trusts,
which are exhausted or still to be fulfilled; mortgages are to
be traced, either as dead or living fungi on the trunk of the
title, through one or two generations; the records of courts
are to be searched for liens of judgments and conveyances;
and it is to be ascertained what limitations have taken effect
or failed, and at what time and under what circumstances.
It is to be considered, too, that in general deeds of lands are
not recorded as in our country; so that it is not easy to trace
even the deeds through the various depositories. And finally,
a suit in chancery for a discovery often becomes necessary
to compel a reluctant or obstinate party to discover the title
by which he claims an interest in the land, or which he
unjustly withholds from the legitimate owner. These are
not exaggerations of the actual state of things, though perhaps
to a careless observer, or a young lawyer accustomed merely
to our local practice, it might seem otherwise. A treatise has
already appeared, or is just about appearing, (and a most
important one in a practical sense it must be,) on the mere
subject of abstracts of titles, showing what a purchaser has a
right to require, and what a vendor is bound to give, as to
the history of his title to the land, before he can call on the
former for payment or specific performance. From these
remarks it must abundantly appear how it happens, that in
England few important purchases are made except by an
executory contract, or, in other words, a contract of sale, in
which there are covenants to give a good title on one side,
and on the other, to accept and pay the purchase-money at a
stipulated period. From unforeseen difficulties, from unexpected occurrences, and from indolence or a lax reliance upon
the redeeming power of chancery, it frequently happens that
the conditions of the sale are not complied with; and thus
the parties are prepared for a suit in chancery. In due time
it comes, when the parties are a little quickened in their
course, and after reference to a master in chancery to report
upon the title, and other interlocutory proceedings, a decree
14'




162            MISCELLANEOUS WRITINGS.
in the course of four or five years is obtained requiring that
to be done, which some or all of the above causes had contributed to leave utterly undone.
Many of our readers, we dare say, remember the following remarks of Tristram Shandy: " Upon looking into my
mother's marriage-settlement, in order to satisfy myself and
reader in a point necessary to be cleared up before we could
proceed any farther in this history - I had the good fortune
to pop upon the very thing I wanted before I had read a day
and a half straight forwards — it might have taken me up a
month." If we have at all impressed our readers with our
own views they will begin to perceive that what they took
for the coloring of romance, a bright and beaming fiction,
was, or at least might have been, like many of Sterne's
most beautiful and touching sketches, a mere matter of fact.
There are without doubt many titles in England that could
not be thoroughly investigated even upon parchment without
months of close and vigorous study.
Now the state of things is, as we all know, very different
in our own country. Titles are generally very simple, and
from obvious causes will probably always remain so, among
the bulk of our landholders. A few hours or days of diligent
study will generally give us all that is worth knowing as to
the titles of estates offered for sale. In cases of sales, the
deeds of conveyance are usually contemporaneous with the
contract of sale. In cases where it is otherwise, the contract
contains few provisions, and the period for its fulfilment is
rarely distant; and at the stipulated period it is usually either
fulfilled or abandoned altogether, or a new contract is substituted. This is so generally true, or at least a specific performance is so little insisted on, that bills for this purpose are
of not very frequent occurrence in States accustomed to the
exercise of chancery jurisdiction. And we believe and hope
that this happy state of things will long continue. A strict
equity on this subject is the best equity. It discourages
sloth, and chicanery, and management; compelling parties




CHANCERY JURISDICTION.              163
to forego the unjust advantage of speculating on the future
chances of a profitable rise in the value of estates, contracted
to be purchased; if they rise, then at the fortunate moment,
long after the time fixed for the performance of the contract
is gone by, to insist upon a specific performance; if they fall,
then to leave the property to the owner with a claim for
damages, or a suit in chancery on his hands. There is so
much good sense in the remarks of Mr. Justice Livingston
on this subject, in Hepburn v. Auld, (5 Cranch, R. 262,) that
we cannot forbear to quote them. The learned Judge on
that occasion said,-" The remedy by a decree for the specific
performance is a departure from the common law, and ought
to be granted only in cases where the party who seeks it has
strictly entitled himself to it. It is said, that by the English
authorities, the lapse of time may be disregarded in equity,
in decreeing a specific execution of a contract for land. But
there is a vast difference between contracts for land in that
country and in this. There the lands have a known, fixed,
and stable value. Here the price is continually fluctuating
and uncertain. A single day often makes a great difference;
and, in almost every case, time is a material circumstance."
Having glanced, in a cursory manner, at some of the subjects of equity jurisdiction, which will be found of but limited
application in the United States, we may now turn to other
subjects in which it will forever operate with a constant and
salutary influence. These are cases where relief becomes
necessary from accident or mistake of the parties; cases of
complicated accounts, whether between partners, or factors,
or merchants, or assignees, or executors and administrators,
or bailees, or trustees; cases of fraud, assuming myriads of
vivid or of darkened hues, and as prolific in their brood, as
the motes floating in sunbeams; cases of trust and confidence, spreading through all the concerns of society, and
sinking their roots deep and firm through all the foundations
of refined life and domestic relations; cases where bills of
discovery are indispensable to promote public justice; and




164             MISCELLANEOUS WRITINGS.
lastly, cases where bills of injunction are the only solid security against irreparable mischiefs and losses. Some other
cases might be mentioned; but those above named must constitute the body of every equity jurisprudence adapted to our
country. And in the times to come they will probably give
ample employment for all the learning, and acuteness, and
diligence of the ablest chancellors in States where courts of
equity are established.
The inquiry, then, whether courts of equity are, on the
whole, of any serious importance to our country, is, in some
measure, answered by a mere reference to the subjects of its
jurisdiction. Are these of any serious concern to societies
organized as ours are? Is it important to administer substantial justice, to suppress frauds, to relieve against inevitable casualties, to succor the injured, to interpose preventive
checks against malice and oppression, or mistaken claims of
rights?
But it may be asked why all these objects are not, and may
not be, as fully accomplished by courts of law? To a certain extent, they undoubtedly are accomplished by these
courts; for it would be strange if courts, created for the administration of justice, should wholly fail to answer the purposes of their institution. The true inquiry, therefore, is not
whether they are not of very great utility, which will be admitted by all persons of reasonable intelligence and honesty,
but whether they accomplish all that, in a refined and elevated system of jurisprudence, it is desirable to attain. Now
we venture to say that no person of competent skill in the
science of law, or of comprehensive knowledge as a statesman, can fairly answer in the affirmative. There are many
cases in which the parties are without remedy at law, or in
which the remedy is wholly inadequate to the attainment of
justice. Courts of law proceed by certain established forms,
and administer certain kinds of remedies; their judgments
are almost invariably general, for the plaintiff or for the defendant. If a case arise in which the remedy already exist



CHANCERY JURISDICTION.             165
ing at law is inapplicable, or the established forms cannot be
pursued, there is an end of relief. Now it is very easy to
see that such cases must frequently arise; for human actions,
and contracts, and torts, assume an infinite variety of shapes,
and become fashioned by an infinite variety of circumstances.
The relief must, in many of these cases, be necessarily upon
principles of equity of a mixed nature, and, to a certain degree, in favor of both of the parties. It may be wholly unjust to grant the plaintiff all that he asks, and as unjust to
dismiss his suit without any relief. The parties in the defence, too, may have different rights, and different equities;
and a judgment against them in the aggregate, or without
adjusting these equities, might lead to the most mischievous
results. Now a court of law cannot shape its judgments according to interfering equities of this sort. It cannot mould
them, so as to impose conditions and exceptions on the rights
of one party, and give effectual aid to the interests of the
other. It can only pronounce, whether the plaintiff has, or
has not, a legal cause of action, and sustain the suit, or dismiss it, accordingly. Further, a court of law cannot grant
specific relief. It can, with few exceptions, award damages
only. These are, in many cases, utterly worthless, as a cornpensation or a remedy. If in some cases, as in ejectments,
real actions, and replevins, it acts in 1rem, it touches only the
gross and palpable interests of property; but it cannot, and
does not pretend to reach the subtile rights growing out of
incidental trusts, or equitable claims and liens. If we are
still pursued by the inquiry, why courts of law may not do
all these things? we answer, that they may; but it must be
by a change of their organization and character; and by investing them in form and in fact with all the forms of a
court of equity.  While they remain with their present
powers and distinctive character, they are prohibited by the
cogent mandates of the law from such unhallowed usurpation. In short, such an inquiry might be at once stopped by
a question of another sort: "Why may not courts of equity




166            MISCELLANEOUS WRITINGS.
iperform all the functions of a court of law? But the true'answer is, that each is adapted to its own objects, and cannot accomplish the objects of the other, without breaking in
upon all the settled analogies of the common law, and shaking its oldest and most venerable foundations. He who is
bold enough for such an undertaking, may applaud himself
as possessing the temerity of Phaeton, with the perfect certainty of not escaping his fate.
We have yet a few words to say as to the question of the
general utility of courts of equity, which we the more readily
offer at the present moment, because, if a convention should
be called to revise the constitution of this State, it is not
improbable that a proposition will be made to provide for
the distinct and independent establishment of such a court.
At all events, the subject will more and more engage the
attention of the legislature, as well as of the profession of the
law; and it is very desirable, whatever may be the result, to
act on such subjects with all the light which experience or
general reasoning may throw in our path.
And we think, in the first place, that, if a system of equity
jurisprudence is to be introduced into this Commonwealth, its
utility will principally depend upon the nature of the system,
which we take for our guide. If, for instance, we take the
equity jurisprudence of England, or, which is the same thing,
of New York, so far as it is applicable to our situation, and
adhere to it with a rigid and undeviating firmness, following
closely its principles, and walking within its acknowledged
limits, there can be no doubt that it would be a real blessing.
But it cannot be disguised, that there is too strong a tendency,
not merely in the legislative bodies, but in some of the courts
of law, and still more in some of the courts of equity in the
United States, to give a popular cast to our jurisprudence;
to make it a sort of arbitration-law; or to decide cases upon
their own peculiar circumstances, without reference to any
general principles. Now, this is precisely the worst state of
things, both for the profession and for the public; and yet, in




CHANCERY JURISDICTION.            167
popular governments, the mass of the community are most
unaccountably wedded to it. The maxim of common sense,
as well as of profound investigation is, Misera est Asrits,
ubi jus est vag-um aut incertum. And yet, what can more
tend to perpetuate this uncertainty, than to escape from exact
and leading principles, and to plunge into decisions upon all
the circumstances of cases? It is a very easy, but a very
dangerous course, and often occasions apostasy from the law.
Mr. Justice Buller has, somewhere, emphatically said, that he
had a dread of hard cases; they were the shipwrecks of the
law. The same observation applies quite as forcibly to the
practice of mixing up all sorts of considerations and circumstances in judicial decisions. It confounds all clear distinctions of right and wrong, and bewilders and sometimes betrays us into unfrequented labyrinths, where there is not a
single thread of the law to guide us onwards, and a thousand
spectres prevent us from retracing our steps. In respect to
equity jurisprudence, where so much is necessarily left to discretion, (we mean to judicial, not to arbitrary discretion,) it
is of infinite moment that it be administered upon determinate
principles.  Lord Camden, on one occasion, protested in
strong and indignant eloquence against the exercise of such
discretion, which, he significantly observed, was the length of
my Lord Chancellor's foot. Without meaning to become
his followers in this protest, we have no hesitation in declaring our opinion, that the boundary cannot be too sedulously
marked out, or too watchfully guarded. If a court of chancery be at liberty to deal in all sorts of inquiries, as to mere
hardship, inconvenience, and conjectural imposition; if it
may indulge in notional equities, upon its own views of what
may be fair, and reasonable, and according to good morals
between the parties; if it may remove the barriers and bars of
the law, because there may not be much honor or honesty in
a party's availing himself of their protection; if it may cover
up deviations from settled rules, by encouraging lax practices, and aiming to cure all the blunders of unskilful or rash




168             MISCELLANEOUS WRITINGS.
persons;- we have as little hesitation in declaring, that we
think Massachusetts is better without such a court. We
have now, at least, the security of settled rules to guide us to
our claims of property. We are accustomed to considerable
exactness and regularity in the transaction of our business.
We know what our remedies are, if we pursue the usual
forms of completing contracts; and, what is a still more
powerful admonition, we know what they are not, if we
neglect to give certainty and accuracy to our contracts. If
we mean to be secure, we now take the proper steps to give
that security a tangible shape, such as the law may grapple
with and protect. We do not consider how little may be
done, and just save us by its grace; but how much ought to
be done, to make our sales and our purchases solid and safe.
There is now a wholesome thrift and accuracy about our
concerns that disciplines us to close attention, and gives us
an almost instantaneous perception of what is proper. We
have, at all times, and almost instinctively, the air, and character, and pride, of real business men, who look at their titledeeds before they lock them up, and, what is of quite as
much consequence, look at them diligently afterwards. We
do not slumber over our rights, but are instant in season and
out of season; and we do not awaken from the dreams of
indolence for the first time, after the lapse of twenty and
thirty years, and then consult a solicitor as to the best mode
of framing a bill that shall relieve us from all the ill effects of
delay, and forgetfulness, and hardship, and folly. Our laws,
hitherto, have secured only the vigilant, and not the sound
sleepers.  Vigilantibus, non dormientibus, leges subveniunt.
Now, it is most desirable to perpetuate this course of things,
to prevent litigation, and to encourage legal certainty. And
all this, a good court of equity, sustained by a learned, intrepid, and discriminating chancellor, such as Lord Eldon, or
Mr. Chancellor Kent, would accomplish; but all this would
be lost under different auspices, as may be seen in some parts
of the union. Without adverting to the learned judges of




CHANCERY JURISDICTION.             169
our State Bench, we could name a gentleman at the bar of
Massachusetts, whose cautious, well-instructed, modest, powerful mind, would adorn such an equity bench, and create an
equity bar.1
In the next place, we think, that the administration of
equity should be by a distinct court, having no connection
with, or dependence upon, any court of common law. There
are many reasons, which urge us to this conclusion.  The
systems of equity and law are totally distinct in their relations and objects. The practice and proceedings have little
or nothing in common. The principles of decision are, in
most cases, exceedingly different. A life, devoted to either
study, will not more than suffice to make an eminent judge;
a life, devoted to either, will be filled up with constant
employment. There is some danger, where both systems
are administered by the same court, that the equity of a case
will sometimes transfer itself to the law side of the court; or
the law of a case narrow down the comprehensive liberality
of equity. The mixture, whenever it takes place, is decidedly bad in flavor and in quality.  Tibi Doris amara suam
non intermisceat undamn. Besides, we all know, that nothing
is more distracting to the mind than a variety of pursuits.
A steady devotion to one gives great accuracy and acuteness,
and keeps the whole current of thought fresh and transparent.
We do not say, that a judge may not be, with great advantage, transferred from one bench to the other; for this has
been often done with splendid success. Witness the cases
of Lord Hardwicke, and Lord Kenyon, and Lord Eldon.
What we contend for is, that the same judge should not at
the same time administer both systems. In this, as in many
of the arts, the subdivision of labor gives greater perfection to
the whole machinery. A man may be a great common law
judge, but may have no relish for equity. The talents required for both stations are not necessarily the same; and
1 It need not now (1835) be concealed, that this allusion is to the Hon.
William Prescott, LL. D.
15




170             MISCELLANEOUS WRITINGS.
the cast of mind and course of study adapted to the one, may
not insure success in the other.
There is another reason of no inconsiderable weight, founded upon the nature of the duties to be performed in equity.
It is no small portion of the business of such a court to grant
injunctions upon judgments obtained at law. This is a delicate duty, and should be intrusted to an independent court,
which has as yet received no impressions of the cause, and to
whom its previous merits are unknown.
We might suggest many other reasons, but we have not
time for an ample discussion of such a subject. There is
one objection, however, which we have heard repeatedly
urged against these suggestions, which requires some answer.
It is stated, that the courts of the United States are examples
of the union of the powers of courts of law and equity, and
that hitherto no inconvenience has been felt from this circumstance. Without stopping to inquire into the accuracy of
this statement, we may be permitted to suggest, that there
are some distinctions in reference to those courts, which
deserve consideration. In the first place, those courts exercise but a limited jurisdiction in equity cases. This arises,
not from any restriction of their powers upon the subjectmatter, but from the qualified nature of their authority over
persons. They can, in general, take cognizance of suits in
equity, only where the United States, or aliens, or citizens of
other states, are parties. Now it must be obvious, that the
great mass of equity suits, in every state, must consist of
controversies between citizens and inhabitants of that state;
and that local laws will greatly swell that mass. Where
there are few cases, a court either of law  or equity may
transact the whole business, without any serious inconvenience. But it is far otherwise, where suits mix up with all
the concerns of society, and may have an indefinite multiplication. Besides, there is, or at least seems to be, under the
constitution of the United States, an inherent difficulty in
separating the supreme jurisdiction at law from that in




CHANCERY JURISDICTION.             171
equity. And precisely the same difficulty exists in the constitution of this state, and most urgently requires to be removed by an amendment. We hope that this subject will
not escape the attention of the convention, which may be
called to amend the constitution, whether it be thought best
to create, or not to create, a court of equity, at the present
time. If ever such a court be created, it should be capable
of having a distinct and independent existence given to it.
But to return. Another circumstance as to the courts of the
United States is, that, in six out of the seven circuits, state
courts of equity have an existence, either connected with the
courts of law, or with an independent organization. So that
the learned judges have the fullest opportunities of becoming
familiarly acquainted with the practice and principles of
equity through their whole professional career; and, thus,
may readily transfer into the circuit courts the local practice
of the states within their circuits. Such is not the case, in
general, in New England. These are considerations which,
in a combined view, ought very much to abate the strength
of the objection raised from the example of the judicial legislation of Congress on this subject.
In the next place, if a court of equity is to be established,
and appeals are to be allowed from its decrees, those appeals
ought not to be to any court of law, but to a distinct tribunal
created for the purpose. From causes, which will readily
suggest themselves to every juridical mind, and to which we
have, in some measure, already alluded, a court of law, as
such, cannot be presumed to be thoroughly conversant with
the doctrines and practice of equity. And, if it be intrusted
with a superintendence over that subject, it must happen,
that decrees will often be reversed without sufficient reasons,
and the court of equity sink from its natural elevation to the
level of the inferior courts in the state; and that the personal
character of the Chancellor will settle the authority of decisions, and thus open the path to personal influence and
judicial jealousies; or that the decrees will be affirmed with



172            MISCELLANEOUS WRITINGS.
out much consideration, leaving to the court of appeals little
more effective power than that of registering the decrees.
We are among those who believe, that the existence of rival
coordinate courts has the most salutary influence upon all
judicial proceedings. They act as checks and balances to
each other; and, if their judgments are to be reviewed, it
should be by a tribunal of a distinct organization, common,
if you please, to both, but sufficient in independence and
dignity to prevent any undue ascendency by either. England
owes much of the perfection of her jurisprudence to this
striking feature in the structure of her government. She has
rival tribunals of law and equity, where the pride and learning of the profession and the bench are stimulated to the
noblest purposes, the advancement of justice, and the redress
of injuries, by that perpetual watchfulness, which keen intelligence and sincere devotion to the law never fail to stir up in
ambitious minds.
While on this subject, we are disposed to recall the public
attention to a Report made to the legislature of Massachusetts, and printed by its order, in the year 1808, recommending the establishment of an independent court of equity. We
dare say this document is totally forgotten, as most of our
unsuccessful legislative proceedings are, by the public at
large, and perhaps by most of the committee who reported it.
It has been consigned, as most other state papers are, to
some dark and obscure corner of some lumber loft in the
State House, there to await the dissolution of their mortal
remains by the gradual operation of time, and moulds, and
vermin, "unwept, unhonored, and unsung."  Would it not
be for the reputation and dignity of our state government, if,
instead of leaving our public legislative documents to perish,
some pains and some money were employed to preserve
a number of copies bound and lettered in the state archives,
that posterity may know the progress of our legislation, and
find some public indexes to those subjects, which interested
the public mind, and gave a new direction to public inquiry?




CHANCERY JURISDICTION.              173
We doubt whether there exists, in the whole Commonwealth,
at this moment, a single regular series of the reports, bills,
and other proceedings of our legislature, which have been
printed at the expense of the government, even within the
last twenty years. Surely, this is a most wanton indifference
to our public concerns; and it will be regretted, deeply
regretted, when it can no longer be within the reach of common diligence to collect them. It should be made the special
duty of our Secretary of State, to have bound, and kept in
his office, at least twenty copies of all documents printed by
order of the legislature; and to have a transcript in bound
volumes of all manuscript proceedings, reports, bills, &c.,
acted upon in any shape by the legislature at every session,
with a suitable index for reference. In this way the next
generation would not be in utter and irretrievable ignorance
of our domestic legislative history, full of instruction, as it
must be, both as to what we ought to avoid, and what we
ought to cherish.
But to return to the Report,' to which we have alluded,
and which we accidentally found in searching our papers for
another purpose. It contains a summary of the practice and
principles of courts of equity, in some of the points most
applicable to our jurisprudence. Since the period in which
it was made the legislature has by law cured some of the
defects enumerated in the Report; but the substance of it is
just as true now, as it was at that time. We transcribe from
it the following paragraphs, which we commend to the careful perusal of our statesmen and jurists.
" Courts of equity, as contradistinguished from courts of
law, have jurisdiction in cases where the latter, from their
manner of proceeding, either cannot decide at all upon the
subject or cannot decide conformably with the principles of
substantial justiee. Whenever a complete, certain, and Gdequate remedy exists at law, courts of equity have generally
I This Report was made by a committee, of which the writer of this article
was chairman.
15'




174              MISCELLANEOUS WRITINGS.
no jurisdiction. Their peculiar province is to supply the
defects of law  in cases of frauds, accidents, mistakes, or
TRUSTS. In cases of fraud, where an instrument is fraudulently suppressed or withheld from the party claiming under
it; where an unconscientious advantage has been taken of
the situation of a party; where a beneficial property is injuriously misappropriated; equity interferes and compels comrnplete restitution.  In cases of accident or mistake where a
contract has been made respecting real or personal estate,
and by reason of death cannot be completed; or where, by
subsequent events, a strict performance has become impossible; where, in consequence of a defective instrument the
intention of the parties is in danger of being defeated; or
where a want of specific performance cannot be compensated
in damages; equity administers the proper and effectual
relief. In cases of trust, where real or personal estate by
deed, will, or otherwise, is confided to one person for the
benefit of another; where creditors are improperly preferred
or excluded; where numerous or discordant interests are created in the same subject-matter; where testamentary dispositions for want of a proper trustee are not fulfilled; and where
fiduciary estates are by connivance or obstinacy directed to
partial or unjust purposes; equity applies the principles of
conscience, and enforces the express or implied trusts according to good faith.
" Sometimes by fraud or accident a party has an advantage in proceeding in a court of ordinary jurisdiction, which
must necessarily make that court an instrument of injustice,
if the suit be suffered; and equity, to prevent such a manifest
wrong, will interpose and restrain the party from using his
unfair advantage.  Sometimes one party holds completely
at his mercy the rights of another, because there is no witness
-to the transaction, or it lies in the privity of an adverse interest; equity in such cases will compel a discovery of the facts
and measure substantial justice to all. Sometimes the ad~ministration of justice is obstructed by certain impediments




CHANCERY JURISDICTION.            175
to a fair decision of the case in a court of law; equity in
such cases as auxiliary to the law removes the impediments.
Sometimes property is in danger of being lost or injured,
pending a litigation; equity there interposes to preserve it.
Sometimes oppressive and vexatious suits are wantonly pursued and repeated by litigious parties; for the preservation
of peace and of justice, equity imposes in such cases an injunction of forbearance.
" These are a few only of the numerous cases in which
universal justice requires a more effectual remedy than the
courts of common law can give. In proportion as our commerce and manufactures flourish and our population increases, subjects of this nature must constantly accumulate;
and, unless the legislature interpose, dishonest and obstinate
men may evade the law and intrench themselves within its
forms in security. One or two striking instances applicable
to our present situation will illustrate these positions. In
this Commonwealth no adequate remedy exists at law to
unravel long and intricate accounts between merchants in general; and between partners the remedy is still less efficacious
to adjust the partnership accounts. A refractory or fraudulent partner may seize the books, papers, and effects of the
firm and cannot by any process be compelled to disclose or
produce them. In many instances, therefore, neither debts
can be recovered, nor accounts be adjusted by them unless
both parties are equally honest and equally willing. Great
evils have already arisen from this cause; and still greater
must arise unless equity be brought in aid of law. In cases
of pecuniary and specific legacies, no complete remedy lies to
compel a marshalling of the assets, or an appropriation of
them according to the intention of the testator; and where
the interests of the parties are complicated, great injustice
must often ensue. In cases of trusts, created by last wills
and testaments, which are already numerous, no remedy
whatsoever exists to compel the person on whom the fiduciary estate devolves to carry them into operation. He may




176             MISCELLANEOUS WRITINGS.
take the devised property, and, if his conscience will permit,
may defy all the ingenuity and all the terror of the law.
Mortgages afford a great variety of questions of conflicting
rights, which, when complicated, are beyond the redress of
the ordinary courts; nay, more, may often be the instruments
of iniquity under their judgments. A discovery on oath
seems the only effectual means of breaking down the barriers with which the cunning and the fraudulent protect their
injustice. The process by which the goods, effects, and credits of debtors are attached in the hands of their trustees, is
often inefficient, and sometimes made the cove of crafty chicanery. Perhaps, too, in assignments of dower and partition
of estates, where the titles of the parties are questionable and
intricate, or the tenants in possession are seized of particular
estates only; it will be found that courts of equity can administer the only safe and permanent relief.
" The Committee are not aware of any solid objection to
the establishment of a court of equity in this Commonwealth.
The right of trial by jury is preserved inviolate; and the decisions of the court must be governed as much by settled principles as courts of law. Precedents govern in each, and
establish rules of proceeding. The relief granted is precisely
what a court of law would grant if it could; for equity follows
the law. The leading characteristics of a court of equity are
the power to eviscerate the real truth by a discovery of facts
upon the oath of the party charged; the power to call all
parties concerned in interest, however remote, before it; and
the power to adapt the form of its judgments to the various
rights of the parties as justice and conscience may require."
We have yet many things more to say on this subject, but
time fails us, and we have wearied ourselves, and we fear
that our readers also are wearied with the length of this discussion. Perhaps at some future time we may resume it.
At present we are willing to pass the short remainder of our
journey in such good company as Mr. Chancellor Kent and
his excellent Reporter.




CHANCERY JURISDICTION.             177
Mr. Johnson, if we do not mistake, began the business of
reporting in February, 1806. Since that period he has published, in an uninterrupted series, all the decisions of the
Supreme Court of New York, down to the present time, in
sixteen volumes. He has also published three volumes of
reports of the cases in the period immediately preceding
Mr. Caines's Reports in the same court. Unwearied in his
labors, he has now added to our obligations to him, by presenting us the three volumes of chancery cases, whose title
is prefixed to this article.' He has been so long before the
public in this most respectable and useful character, that
perhaps it may be thought almost superfluous to say a word
upon the merits of his Reports. We will venture, however,
to give them a passing notice, at the hazard of repeating
what almost every body knows, and none would incline to
disbelieve. He is a gentleman, as we have the pleasure to
know, of great literary accomplishments, well-instructed in
the law, and of most comprehensive research. He loves, too,
- and it is no inconsiderable praise in what are called these
degenerate days, —he loves the law with all his heart, and
has a sincere and unaffected enthusiasm for its advancement.
His Reports are distinguished by the most scrupulous accuracy, good sense, and good taste. He gives the arguments
of counsel with force, precision, and fluency; transfusing the
spirit, rather than the letter, of their remarks into his pages.
One is never puzzled by unintelligible sentences, impertinent
sallies, or disproportionate reasoning in his volumes. There is
an exactness and symmetry about them that satisfies the judgment. His notes, too, are all good; so good, that we wish
we had a great many more of them. He leaves little causes
to take care of themselves, and assigns them a brief space.
But when he comes to great arguments, where research and
talent are brought out with vast power and authority, he
pours their whole strength before the reader, giving him all
I The Reports of lMr. Johnson are now (1835) completed, and embrace
thirty volumes, including those stated in the text.




178            MISCELLANEOUS WRITINGS.
the materials of an independent judgment. He can, if he
pleases, repeat such cases for himself, by the aid of the
reporter. As to the opinions of the court, we have not any
necessity to say much. It is, and always has been, a very
able court, whose decisions any man might be proud to
report; and the highly commendable diligence of the judges,
in committing all their important opinions to writing, while
it gives the impress of authority, at the same time secures
the court from the inaccuracies and mistakes of oral opinions.
It gives dignity to the Bench, and certainty to the law.
Who, but must read with delight and instruction the opinions of such men as Mr. Chief Justice Spencer, to say nothing
of his learned coadjutors and predecessors? For ourselves,
we have no hesitation in avowing the opinion, that the New
York Reports, for the last twenty years, will bear comparison
with those of an equal period in the best age of the English
law, begin the selection where you may; and this, whether
we examine the well-considered and ingenious arguments of
the bar, or the deep reasoning and learning of the bench, or
the accuracy and ability of the reporter. And as to the
chancery decisions of Mr. Chancellor Kent, they are as full of
learning, and painstaking research, and vivid discrimination,
as those of any man that ever sat on the English woolsack.
Enough has been said, and more than enough, to attract
the attention of our professional readers to the volumes, referred to at the beginning of this article. If we had room, we
might be tempted to extract a case or two-for perusal, on
account either of its general interest, or the acute and learned
discussion it contains. There may be some few cases in
which jurists might venture to hesitate, as to the extent of
the Chancellor's decision; at least where there might be a
measuring cast in mooting the law. But these cases (if any
such exist) are so few and so unimportant, that they are lost
in the bulk of the volumes; and criticism is never employed
to so little advantage as in attempting to revise the sentences
pronounced by courts of justice. The only fit and efficient




CHANcERY JURISDICTION.             179
tribunal, except in very gross cases, seems to be that provided
by the law itself, an appeal to a higher tribunal to review
the sentence, or to the same court to reconsider, to another
time, its own judgments. We cannot quit these volumes,
however, without expressing our gratitude to Mr. Johnson for
presenting them to the public. No lawyer can ever express
a better wish for his country's jurisprudence, than that it may
possess such a Chancellor and such a Reporter.




SPEECH ON THE APPORTIONMENT OF SENATORS,
DELIVERED IN THE CONVENTION OF MASSACHUSETTS, ASSEMBLED TO
AMEND THE CONSTITUTION, IN NOVEMBER, 1S20.1
WE are at length arrived at the discussion of those questions, which it was easy to foresee would be attended with
the most serious interest and difficulty — questions, which,
indeed, were the principal causes of assembling this convention. Nor do I regret it. The great powers of eloquence
and argumentation, which have already been displayed in
the debate, I trust will do good here, and ultimately reach
the homes of our constituents. I cannot hope, after the very
ample discussion, which the subject has undergone, to add
much to the arguments, and shall content myself with such
illustrations of my own views, as have not been completely
presented by others.
If it were necessary for my purpose, I might say with the
gentleman from Worcester, that I come here pledged to no
man or set of men, or to any settled course of measures. I
come merely as the delegate of one town, to cooperate with
other gentlemen, the delegates of other towns, in such measures, as the public good may require; and in their wisdom
and discretion I place entire confidence. I might add, also,
what my eloquent colleague has already remarked, that, upon
this particular topic, and upon the grounds which we take,
we are not in a situation even to be suspected of interested
1 This is a mere sketch, taken principally by the reporter, and was not
written out at large by the speaker.




SPEECH ON THE APPORTIONMENT OF SENATORS.   181
motives. The county of Essex is safe at present, and would
have a fair and equal representation in the senate, whether
the principle of population or that of valuation were adopted
as a basis. If population were assumed as a basis, and no
restriction were interposed, it is highly probable, that the
county of Essex might hereafter be a loser; but upon the
principle of valuation it could never be a gainer, since it
would now have the whole number, to which it could ever
be entitled. But I throw away all narrow considerations of
this kind, and consider myself as a delegate of the Commonwealth, bound to consult for the interests of the whole, and
to form such a constitution as shall best promote the interests
of our children and of all posterity.
It is necessary for us, for a moment, to look at what is the
true state of the question now before us. The proposition
of my friend from Roxbury is, to make population the basis
for apportioning the senate; and this proposition is to be
followed up, as the gentleman with the candor and frankness
which have always marked his character has intimated, by
another to apportion the house of representatives in the
same manner. The plan is certainly entitled to the praise
of consistency and uniformity. It does not assume in one
house a principle which it deserts in another. Those who
contend on the other hand for the basis of valuation, propose
nothing new; but they stand upon the letter and spirit of
the present constitution.
Here, then, there is no attempt to introduce a new principle in favor of wealth into the constitution. There is no
attempt to discriminate between the poor and the rich.
There is no attempt to raise the pecuniary qualifications of
the electors, or the elected; to give to the rich man two
votes, and to the poor man but one. The qualifications are
to remain as before; and the rich and the poor, and the high
and the low, are to meet at the polls upon the same level of
equality.  And yet, much has been introduced into the
debate about the rights of the rich and the poor, and the
16




182             MISCELLANEOUS WRITINGS.
oppression of the one by the elevation of the other. This
distinction between the rich and poor, I must be permitted
to say, is an odious distinction, and not founded in the merits
of the case before us. I agree, that the poor man is not to
be deprived of his rights, any more than the rich man; nor
have I as yet heard of any proposition to that effect; and
if it should come, I should feel myself bound to resist it.
The poor man ought to be protected in his rights, not merely
of life and liberty, but of his scanty and hard earnings. I
do not deny, that the poor man may possess as much patriotism as the rich; but it is unjust to suppose that he necessarily possesses more. Patriotism and poverty do not necessarily march hand in hand; nor is wealth that monster,
which some imaginations have depicted, with a heart of
adamant and a sceptre of iron, surrounded with scorpions,
stinging every one within its reach, and planting its feet of
oppression upon the needy and the dependent. Such a
representation is not just with reference to our country.
There is no class of very rich men in this happy land, whose
wealth is fenced in by hereditary titles, by entails, and by
permanent elevation to the highest offices. Here, there is a
gradation of property from the highest to the lowest, and all
feel an equal interest in its preservation. If, upon the principle of valuation, the rich man, in a district which pays a
high tax, votes for a larger number of senators, the poor man
in the same district enjoys the same distinction. There is
not, then, a conflict, but a harmony of interests between
them. Nor under the present constitution has any discontent or grievance been seriously felt from this source.
When I look round, and consider the blessings which property bestows, I cannot persuade myself, that gentlemen are
serious in their views that it does not deserve our utmost
protection. I do not here speak of your opulent and munificent citizens, whose wealth has spread itself into a thousand
channels of charity and public benevolence. I speak not of
those who rear temples to the service of the Most High




SPEECH ON THE APPORTIONMENT OF SENATORS.   183
God. I speak not of those who build your hospitals, where
want, and misery, and sickness, the lame, the halt, and the
blind, the afflicted in body and in spirit, may find a refuge
from their evils, and the voice of solace and consolation, and
food, and medicine, and kindness.  I speak not of those
who build asylums for the insane; for the ruins of noble
minds; for the broken-hearted and the melancholy; for those
whom Providence has afflicted with the greatest of calamities, the loss of reason, and too often the loss of happiness;
within whose walls the screams of the maniac may die away
in peace, and the sighs of the wretched be soothed into tranquillity. I speak not of these; not because they are not
worthy of all praise; but because I would dwell rather on
those general blessings, which property diffuses through the
whole mass of the community. Who is there, that has
not a friend or a relative in distress, looking up to him for
assistance? Who is there, that is not called upon to administer to the sick and the suffering; to those who are in the
depth of poverty and distress; to those of his own household, or the stranger beside the gate? The circle of kindness
commences with the humblest, and extends wider and wider,
as we rise to the highest in society; each person administering in his own way to the wants of those around him. It is
thus, that property becomes the source of comforts of every
kind, and dispenses its blessings in every form. In this way
it conduces to the public good by promoting private happiness; and every man, from the humblest, possessing property, to the highest in the state, contributes his proportion
to the general mass of comfort. The man without any property may desire to do the same; but he is necessarily shut
out from this most interesting charity. It is in this view,
that I consider property as the souree of all the comforts and
advantages we enjoy; and every man, from him who possesses but a single dollar, up to him who possesses the greatest fortune, is equally interested in its security and its preservation.




184            MISCELLANEOUS WRITINGS.
Government, indeed, stands on a combination of interests
and circumstances. It must always be a question of the
highest moment, how the property-holding part of the community may be sustained against the inroads of poverty and
vice. Poverty leads to temptation, and temptation often
leads to vice, and vice to military despotism. The rights of
man are never heard in a despot's palace. The very rich
man, whose estate consists in personal property, may escape
from such evils, by flying for refuge to some foreign land.
But the hardy yeoman, the owner of a few acres of the soil,
and supported by it, cannot leave his home without becoming a wanderer on the face of the earth. In the preservation
of property and virtue, he has, therefore, the deepest and
most permanent interest.
Gentlemen have argued, as if personal rights only were
the proper objects of government. But what, I would ask,
is life worth, if a man cannot eat in security the bread earned
by his own industry? if he is not permitted to transmit to
his children the little inheritance which his affection has
destined for their use? What enables us to diffuse education among all the classes of society, but property? Are
not our public schools, the distinguishing blessing of our
land, sustained by its patronage?
I will say no more about the rich and the poor. There is
no parallel to be run between them founded on permanent
constitutional distinctions. The rich help the poor, and the
poor in turn administer to the rich. In our country, the
highest man is not above the people; the humblest is not
below the people. If the rich may be said to have additional
protection, they have not additional power. Nor does wealth
here form a permanent distinction of families. Those, who
are wealthy to-day, pass to the tomb, and their children
divide their estates. Property is thus divided quite as fast as
it accumulates. No family can, without its own exertions,
stand erect for a long time under our statute of descents and
distributions, the only true and legitimate agrarian law. It




SPEECH ON THE APPORTIONMENT OF SENATORS.   185
silently and quietly dissolves the mass heaped up by the toil
and diligence of a long life of enterprise and industry. Property is continually changing like the waves of the sea.
One wave rises, and is soon swallowed up in the vast abyss
and seen no more. Another rises, and having reached its
destined limits, falls gently away, and is succeeded by yet
another, which in its turn, breaks and dies away silently
on the shore. The richest man among us may be brought
down to the humblest level; and the child, with scarcely
clothes to cover his nakedness, may rise to the highest office
in our government. And the poor man, while he rocks his
infant on his knees, may justly indulge the consolation, that,
if he possess talents and virtue, there is no office beyond
the reach of his honorable ambition. It is a mistaken theory, that government is founded for one object only. It is
organized for the protection of life, liberty, and property, and
all the comforts of society; to enable us to indulge in our
domestic affections, and quietly to enjoy our homes and our
firesides.
It has been said that the senate, under the present constitution, is founded on the basis of property. This I take to
be incorrect.  It is founded on the basis of taxation. It
gives no particular privileges to the rich; all have equal rights
secured by it. The gentleman from Worcester, to show the
injustice and inequality of the present system, has alarmed
us with a reference to the town of Hull. Suppose, said he,
five of the richest men in Boston should remove to Hull, that
removal would enable Hull to have six senators.  Is this the
case?  Is Hull a county?  Does it constitute a senatorial
district? No; the property, thus carried from Suffolk, would
be transferred to the county of Plymouth, and would increase
the representation of that county proportionately in the Senate under a new valuation. If, instead of going to Hull, the
same persons should remove to Salem, their property would
not produce the slightest effect; for Essex, without it, possesses a right to as many senators as the constitution allows
16 *




186             MISCELLANEOUS WRITINGS.
to any district. The case supposed by the gentleman is so
extreme, that it could scarcely be supposed to exist; and, if
it did, no such consequences could arise as have been stated.
It has been also suggested, that great property, of itself,
gives great influence; and that it is unnecessary that the
constitution should secure to it more. I have already stated
what I conceive to be the true answer; that a representation
in the senate, founded on a valuation of property, is not a
representation of property in the abstract. It gives no greater
power in any district to the rich than to the poor. The poor
voters in Suffolk may, if they please, elect six senators into
the senate; and so, throughout the Commonwealth, the
senators of every other district may, in like manner, be chosen
by the same class of voters. The basis of valuation was
undoubtedly adopted by the framers of our constitution, with
reference to a just system of checks and balances, and the
principles of rational liberty. Representation and taxation
should go hand in hand, was the doctrine of those days; a
doctrine for which our fathers fought and bled in the battles
of the Revolution. Upon the basis of valuation, property is
not directly represented; but property in the aggregate, combined with personal rights. Where the greatest burden of
taxation falls there the largest representation is apportioned.
But still the choice depends upon the will of the majority of
voters, and not upon that of the wealthier class within the
district. There is a peculiar beauty in our system of taxation, and equalizing the public burdens.  Our governor,
counsellors, senators, judges, and other public officers are
paid out of the public treasury; our representatives by their,respective towns. The former are officers for the benefit of
the whole Commonwealth. But the right of sending representatives is a privilege granted to corporations; and, as the
more immediate agents of such corporations, they are paid
by them. The travel, however, of the representatives is paid
out of the public treasury; with the view, that no unjust advantage should arise to any part of the Commonwealth from




SPEECH ON THE APPORTIONMENT OF SENATORS.   187
its greater proximity to the capital. Thus, the principle of
equalizing burdens is exemplified. But even if it were true,
that the representation in the senate is founded on property,
I would respectfully ask, gentlemen, if its natural influence
would be weakened or destroyed by assuming the basis of
population? I presume not. It would still be left to exert
that influence over friends and dependents, in the same
manner, that it now does. So that the change would not
in the slightest degree aid the asserted object; I mean the
suppression of the supposed predominating authority of
wealth.
Gentlemen have argued, as though it was universally conceded, as a political axiom, that population is, in all cases
and under all circumstances, the safest and best basis of representation. I beg leave to doubt the proposition. Cases
may be easily supposed, in which, from the peculiar state of
society, such a basis would be universally deemed unsafe
and injurious. Take a State where the population is such
as that of Manchester, in England, (and some States in our
Union have not so large a population,) where there are five
or ten thousand wealthy persons, and ninety or one hundred
thousand artisans, reduced to a state of vice, and poverty, and
wretchedness, which leave them exposed to the most dangerous political excitement. I speak of them, not as I know,
but as the language of British statesmen and parliamentary
proceedings exhibit them. Who would found a representation on such a population, unless he intended, that all property should be a booty to be divided among plunderers?  A
different state of things exists in our happy Commonwealth;
and no such dangers will here arise from assuming population as the basis of representation. But still the doctrine, in
the latitude now contended for, is not well founded. What
should be the basis on which representation should be founded,
is not an abstract theoretical question; but it depends upon
the habits, manners, character, and institutions of the people
who are to be represented.  It is a question of political




188            MISCELLANEOUS WRITINGS.
policy, which every nation must decide for itself, with reference to its own wants and circumstances.
The gentleman from Worcester has asserted, that intelligence is the foundation of government. Are not virtue and
morality equally so? Intelligence without virtue is the enemy most to be dreaded by every government. It might make
men despots, or bandits, or murderers, if their interests pointed
in such directions.  While, therefore, it may be admitted
that intelligence is necessary for a free people, it is not less
true, that sound morals and religion are also necessary.
Where there is not private virtue, there cannot be public
security and happiness.
The proposition of the gentleman from Roxbury is, to
assume population for the basis of both houses. That of the
gentleman from Worcester is to assume population for the
senate, and corporate representation for the house.  The
latter gentleman wishes his last proposition to be considered
distinctly from the first. It might suit the purposes of the
gentleman's argument so to separate them. But in the nature of things, with reference to the doctrine of checks and
balances, avowed and supported by the gentleman himself,
they are inseparable. I feel myself constrained so to consider them, as parts of a system, the value of which must be
ascertained by examining the effects of the whole combination. I am not opposed in principle to population as a basis
of representation. There is much to recommend it.  It has
simplicity, and uniformity, and exemption from fraud in its
application; circumstances of vast importance in every practical system of government. In the Select Committee, I was
in favor of a plan of representation in the House founded on
population, as the most just and equal in its operation. I
still retain that opinion.  There were serious objections
against this system, and it was believed by others, that the
towns could not be brought to consent to yield up the corporate privileges of representation, which had been enjoyed so
ong, and was so intimately connected with their pride and




SPEECH ON THE APPORTIONMENT OF SENATORS.   189
their interests. I felt constrained, therefore, with great reluctance to yield up a favorite plan. I had lived long enough to
know that, in any question of government, something is to
be yielded up on all sides. Conciliation and compromise lie
at the origin of every free government; and the question
never was, and never can be, What is absolutely best? but,
What is relatively wise, just, and expedient? I have not
hesitated, therefore, to support the plan of the Select Committee, as one that, on the whole, was the best, that, under
existing circumstances, could be obtained.
To the plan of the gentleman from Roxbury two objections exist. The first is, that it destroys the system of checks
and balances in the government; a system which has been
approved by the wisdom of ages. The value of this system
has been forcibly illustrated by the gentleman from Boston,
in the extract, which he read from the remarks of Mr. Jefferson on the constitution of Virginia. I will not, therefore,
dwell on this objection. The next objection is, that it destroys all county lines and distinctions; and breaks up all
habits and associations connected with them. They might
thus be broken up; but it would be by tearing asunder some
of the strongest bonds of society. The people of each county
are drawn together by their necessary attendance upon the
county courts, and by their county interests and associations.
There is a common feeling diffused among the mass of the
population, which extends to, but never passes, the boundary
of each county; and thus these communities become minor
States. These are valuable associations;'and I am not prepared to say, that they ought to be given up altogether.
The system of the gentleman from Roxbury, however, not
only obliterates them; but, at the same time, is supposed to
affect the interests and corporate representation of the towns;
a representation which, with all its inconveniences, possesses
intrinsic value. It appears to me, that the system of the Select Committee, combining valuation of property, as the
basis of the senate, with corporate representation of the




190             MISCELLANEOUS WRITINGS.
towns, as the basis of the house, has, both as a system of
checks and balances, and convenient and practical distribution of powers, some advantages over that now under discussion.
It has been said that the system of valuation is novel, and
cannot be traced beyond the era of the formation of our
present constitution. It may be so; though the venerable
gentleman from Quincy has endeavored to show that it is in
principle as old as the republics of Greece and Rome. But
be it novel; it is no objection to it. Our whole system of
government is novel. It is a great experiment in the science
of politics.  The very principle of representation, and the
theory of a division of powers are of modern origin, as are
many of our dearest and most valuable institutions.
It is asked, too, why, if the principle of valuation be a just
one, there is a restriction, that no district shall send more than
six senators. A sufficient reason has been already given;
that it was a compromise to silence any jealousy of an undue exercise of power by any particular district abounding in
wealth. My answer is, that it is also for the purpose of
equalizing the fractions of the smaller districts with the great
districts. The same principle of equalization was provided
for in forming the house of representatives, and is now
more completely observed in the system of the Select Committee.
After all, what will be the effect of changing the basis of
the senate from valuation to that of population?  It will
take three senators from Suffolk, give two more senators to
the old county of Hampshire, leave Berkshire and Plymouth
to struggle for one more, and Norfolk and Bristol to contend
for another, the disposition of which may be doubtful.  All
the rest of the Commonwealth will remain precisely in the
same situation as at present, whether we adopt the one basis
or the other. Yet even this change will not produce any
serious practical result, if we look forward twenty years.
Suffolk has increased, within the last ten years, ten thousand




SPEECH ON THE APPORTIONMENT OF SENATORS.   191
in the number of its inhabitants, that is to say, one quarter
part of its population; a much greater ratio of increase than
the rest of the State. Population will probably, from the
like causes, continue to increase on the seaboard, or at least
in the capital, from its great attractions, in a ratio quite as
great beyond that of the interior. So that in a short time,
the difference of the two systems will be greatly diminished;
and perhaps finally, the inland counties will gain more by the
restriction of the districts to six senators, than they will now
gain by the basis of population.  In fifty years, Suffolk,
upon this basis, may entitle itself not to six only, but to
eight senators.
Now I would beg gentlemen to consider, if, in this view
of the subject, a change in the basis of the senate can be
useful? The constitution has gone through a trial of forty
years in times of great difficulty and danger. It has passed
through the embarrassments of the revolutionary war; through
the troubles and discontents of 1787 and 1788; through collisions of parties unexampled in our history for violence and
zeal; through a second war, marked with no ordinary scenes
of division and danger; and it has come out of these trials,
pure, and bright, and spotless. No practical inconvenience
has been felt, or attempted to be pointed out by any gentleman, in the present system, during this long period. Is it,
then, wise, or just, or politic to exchange the results of our
own experience for any theory, however plausible, that stands
opposed to that experience? for a theory, that possibly may
do as well?
A few words as to the proposition of the gentleman from
Worcester for representation in the house. It seems to me,
I hope the gentleman will pardon the expression, inconsistent, not only with his own doctrine, as to the basis of population; but inconsistent with the reasoning by which he has
endeavored to sustain that doctrine. The gentleman considers population as the only just basis of representation in
the senate. Why, then, I ask, is it not as just as the basis




192             MISCELLANEOUS WRITINGS.
for the house?  Here, the gentleman deserts his favorite
principle; and insists on representation of towns, as corporations. He alleges, that in this way the system of checks and
balances (which the gentleman approves) is supported. But
it seems to me, that it has not any merit as a check; for the
aggregate population of the county will express generally
the same voice as the aggregate representatives of the towns.
The gentleman has said, that the poor man in Berkshire
votes only for two senators, while the poor man in Suffolk
votes for six. Is there not the same objection against the
system of representation now existing as to the house; and
against that proposed by the gentleman himself? A voter
in Chelsea now votes for but one representative, while his
neighbor, a voter in Charlestown, votes for six. Upon the
gentleman's own plan there would be a like inequality. He
presses us also, in reference to his plan of representation in
the house, with the argument, that it is not unequal, because
we are represented, if we have a single representative; and,
he says, he distinguishes between the right to send one, and
to send many representatives. The former is vital to a free
government, the latter not. One representative in the British Parliament would probably have prevented the American
Revolution. Be it so. But if the doctrine be sound, does it
not plainly apply as well to the senate as to the house?
If it be not unequal or unjust in the House, how can it be so
in the Senate? Is not Berkshire with its two senators, or
Barnstable with its one senator, or Worcester with its four
senators, upon this principle just as fully represented in the
senate, as Suffolk with its six senators?  The argument
of the gentleman may therefore be thrown back upon himself.
The gentleman from Worcester has illustrated his views,
by a reference to the structure of the two houses under the
constitution of the United States; and he conceives the Senate of the United States as analogous to his system of
representation in our house. a presentation of corporations.




SPEECH ON THE APPORTIONMENT OF SENATORS.   193
It certainly bears no analogy to his basis of representation
for the senate. I take it, that the Senate of the United
States is a representation of sovereignties, coordinate and
coequal, and in no respect like our system, either of the
house or senate; for neither towns nor districts have an
equal representation here, for the reason that they are not
independent sovereignties. But when we come to the House
of Representatives of the United States, which is founded
on the basis of population, we find, that it is accompanied
with another principle, that representation and direct taxation shall be apportioned according to population. Not that
population alone shall be the basis; but that they who enjoy
the right shall also bear the burden. I have no objection to
adopting this principle here. Let Worcester send her six
senators, and Berkshire three; and let them consent, also, to
bear a proportionable share of the public taxes; and then,
and then only, will there be a well-founded analogy to the
constitution of the United States. I thank the gentleman
for his illustration; an argument more pertinent to my purpose could not have been found.
I beg, however, for a moment to ask the attention of the
committee to the gross inequalities of the plan of the gentleman from Worcester, respecting the house of representatives. There are two hundred and ninety-eight towns in the
state, each of which is to send one representative.  And
upon this plan the whole number of representatives will be
three hundred and thirty-four. There are but twenty-four
towns, which would be entitled to send more than one representative. These twenty-four towns, with a population of
one hundred and forty-six thousand, would send fifty-eight
representatives, or only one, upon an average, for every two
thousand five hundred and twenty-six inhabitants; while the
remaining two hundred and seventy-four towns, with a population of three hundred and thirteen thousand, would send
two hundred and seventy-four representatives, or one for
every one thousand one hundred and forty-four inhabitants.
17




194            MISCELLANEOUS WRITINGS.
I lay not the venue here or there in the Commonwealth, in
the county of Worcester, or the county of Essex; but such
would be the result throughout the whole Commonwealth,
taken in the aggregate of its population. Salem would send
one representative for every three thousand one hundred
and thirty inhabitants; and Boston one for every four thousand two hundred inhabitants; while every town but the
twenty-four largest would send one for every one thousand
one hundred and forty-four inhabitants. What then becomes
of the favorite doctrine of the basis of population? I would
ask the gentleman, in his own emphatic language, Is not this
system unjust, unequal, and cruel? If it be equal, it is so
by some political arithmetic, which I have never learned, and
am incapable of comprehending.
A few words upon the plan of the Select Committee, and
I have done. Sir, I am not entitled to any of the merit, if
there be any, in that plan. My own plan was to preserve
the present basis of the senate, not because I placed any
peculiar stress on the basis of valuation; but because I
deemed it all-important to retain some element that might
maintain a salutary check between the two houses. My
own plan for the house of representatives was representation, founded on the basis of population in districts, according to the system proposed by the gentleman from Northampton. Finding that this plan was not acceptable to a
majority of the committee, I acquiesced in the plan reported
by it. I have learned, that we must not, in questions of
government, stand upon abstract principles; but must content ourselves with practicable good. I do not pretend to
think, nor do any of its advocates think, that the system of
the Select Committee is perfect; but it will cure some defects in our present system, which are of great and increasing importance. I have always viewed the representation in
the house under the present constitution, as a most serious
evil, and alarming to the future peace and happiness of the
state. My dread has never been of the senate; but of that




SPEECH ON THE APPORTIONMENT OF SENATORS.   195
multitudinous assembly, which has been seen within these
walls, and may again be seen, if times of political excitement should occur.  The more numerous the body, the
greater the danger from its movements, in times when it
cannot or will not deliberate. I came here, therefore, willing
and ready to make sacrifices to accomplish an essential reduction in that body. It was the only subject relative to the
constitution, on which I have always had a decided and earnest opinion. It was my fortune for some years to have a
seat in our house of representatives; and for a short time
to preside over its sittings, at a period when it was most
numerous, and under the most powerful excitements. I am
sorry to say it, but such is my opinion, that in no proper
sense could it be called a deliberative assembly. From the
excess of numbers deliberation became almost impossible;
and, but for the good sense and discretion of those, who
usually led in the debates, it would have been impracticable
to have transacted business with any thing like accuracy or
safety. That serious public mischiefs did not arise, from the
necessary hurry and difficulty of the legislative business, is
to be accounted for, only from the mutual forbearance and
kindness of those who enjoyed the confidence of the respective parties.  If the state should go on, increasing in its
population, we might hereafter have eight hundred or nine
hundred representatives according to the present system;
and, in times of public discontent all the barriers of legislation may be broken down, and the government itself be subverted. I wish most deeply and earnestly to preserve to my
native state a deliberative legislature, where the sound judgment, and discretion, and sagacity of its best citizens may
be felt, and heard, and understood, at all times, and under all
circumstances. I should feel the liberties of the state secure
if this point were once fairly gained. I would yield up the
little privileges of my own town, and of any others, that our
children may enjoy civil, religious, and political liberty, as
perfectly, nay, more perfectly than their fathers. With these




196            MISCELLANEOUS WRITINGS.
views I am ready to support the report of the Select Committee, not in part, but as a whole, as a system; and if part
is to be rejected, I do not feel myself bound to sustain the
rest. Indeed, upon no other ground than a great diminution
of the house of representatives, can I ever consent to pay
the members out of the public treasury. For this is now
the only efficient check against an overwhelming representation. By the plan of the Select Committee the small towns
are great gainers; a sacrifice is made by the large towns, and
by them only. They will bear a heavier portion of the pay
of the representatives, and they will have a less proportionate representation than they now possess. And what do
they gain in return? I may say, Nothing. All that is
gained is public gain; a really deliberative legislature; and
a representation in the senate, which is in fact a popular
representation, emanating from and returning to the people;
but so constructed, that it operates a useful check upon
undue legislation, and as a security to property.
I hope that this system will be adopted by a large majority,
because it can scarcely otherwise receive the approbation of
the people.  I do not know that it is even desirable, that
the people should, nay, I might go further and say, that
the people ought not to adopt any amendment which comes
recommended by a bare majority of this Convention. If we
are so little agreed among ourselves as to what will be for
the future public good, we had much better live under the
present constitution, which has all our experience in its favor.
Is any gentleman bold enough to hazard the assertion, that
any new measure we may adopt can be more successful?  I
beg gentlemen to consider, too, what will be the effect, if the
amendments we now propose should be rejected by the people, having passed by a scanty majority. We shall then
revert to the old constitution; and new parties, embittered
by new feuds, or elated by victory, will be formed in the
state, and distinguished as Constitutionalists, and Anti-constitutionalists; and thus new discontents and struggles for a




SPEECH ON THE APPORTIONMENT OF SENATORS.  197
new convention will agitate the Commonwealth. The revival of party animosities, in any shape, is most deeply to be
deprecated. Who does not recollect with regret the violence,
with which party spirit in times past raged in this state,
breaking asunder the ties of friendship and consanguinity?
I was myself called upon to take an active part in the public
scenes of those days. I do not regret the course which my
judgment then led me to adopt. But I never can recollect,
without the most profound melancholy, how often I have
been compelled to meet, I will not say the evil, but averted
eyes, and the hostile opposition of men, with whom, under
other circumstances, I should have rejoiced to have met in
the warmth of friendship. If new parties are to arise, new
animosities will grow up, and stimulate new resentments.
To the aged in this Convention, who are now bowed down
under the weight of years, this can of course be of but little
consequence; for they must soon pass into the tranquillity of
the tomb. To those in middle life it will not be of great
importance; for they are far on their way to their final repose; they have little to hope of future eminence, and are
fast approaching the period when the things of this world
will fade away. But we have youth who are just springing
into life; we have children whom we love; and families in
whose welfare we feel the deepest interest. In the name of
Heaven let us not leave to them the bitter inheritance of our
contentions. Let us not transmit to them enmities which
may sadden the whole of their lives. Let us not, like him
of old, blind, and smitten of his strength, in our anger seize
upon the pillars of the constitution, that we and our enemies
may perish in their downfall. I would rather approach the
altar of the constitution, and pay my devotions there; and, if
our liberties must be destroyed, I, for one, would be ready to
perish there in defending them.
17 




PROGRESS OF JURISPRUDENCE.
AN ADDRESS DELIVERED BEFORE THE MEMBERS OF THE SUFFOLK BAR,
AT THEIR ANNIVERSARY, SEPTEMBER 4, 1821, AT BOSTON.
IN comparing the present state of jurisprudence with that
of former times, we have much reason for congratulation.
In governments purely despotic, the laws rarely undergo any
considerable changes through a long series of ages. The
fundamental institutions, (for such there must be in all civilized societies,) whether modelled at first by accident or by
design, by caprice or by wisdom, assume a settled course,
which is broken in upon only by the positive edicts of the
sovereign, suited to some temporary exigency. These edicts
rarely touch any general regulation of the state, and still
more rarely attempt any general melioration of the laws.
For the most part they affect only to express the arbitrary
will of the monarch, stimulated by some pressing private
interest, or gratifying some temporary passion, or some fleeting state policy. There is in such governments, what may
be called a desolating calm, a universal indisposition to
changes, and a fearfulness of reform on all sides; on the part
of the people, lest it should generate some new oppression;
and on the part of the ruler, lest it should introduce some
jealousy or check of his arbitrary power. In such countries
the Law can scarcely be said to have existence as a science.
It slumbers on in a heavy and drowsy sleep, diseased and
palsied. It breathes only at the beck of the sovereign. It
assumes no general rules, by which rights or actions are to
be governed. Causes are decided summarily, and more with




PROGRESS OF JURISPRUDENCE.           199
reference to the condition and character of the parties than
with reference to principles; and judges are ministers of state
to execute the policy of the cabinet, rather than jurists to
interpret rational doctrines.
Under such circumstances the lapse of centuries scarcely
disturbs the repose of the laws, and men find themselves
standing in the same crippled posture which was forced upon
their ancestors long after their sepulchres have mouldered
into dust, and the names of the oppressor and the oppressed
are sunk into doubtful traditions.
The laws of the Medes and Persians were proverbially
immutable. The institutions of China have undergone no
sensible change since the discovery and doubling of the Cape
of Good Hope; and the pyramids of Egypt, lost as their
origin is in remote antiquity, are not perhaps of a higher age
than some of its customary laws and institutions. And it
may be affirmed of some of the.Eastern nations, that through
all the revolutions of their dynasties, it is difficult to point
out any fundamental changes in the powers of the government, the rights of the subject, or the laws that regulate the
succession to property, since the Christian era.
In free governments, and in those where the popular interests have obtained some representation or power, however
limited, the case has been far otherwise. We can here trace
a regular progress from age to age in their laws, a gradual
adaptation of them to the increasing wants and employments
of society, and a substantial improvement, corresponding
with their advancement in the refinements and elegancies of
life. In the heroic and barbarous ages, the laws are few and
simple, administered by the prince in person, assisted by his
compeers and council. But, as civilization advances, the
judicial powers are gradually separated from the executive
and legislative authorities, and transferred to men whose sole
duty it is to administer justice and correct abuses. The
punishment of crimes, at first arbitrary, is gradually moulded
into a system, and moderated in its severity; and property,




200            MISCELLANEOUS WRITINGS.
which is at first held at the mere pleasure of the chief,
acquires a permanency in its tenure, and soon becomes transmissible to the descendants of those, whose enterprise or
good fortune has accumulated it. Whoever examines the
history of Grecian, or Roman, or Gothic, or Feudal jurisprudence, will perceive in the strong lines, which may every
where be traced, the truth of these remarks. And it is a
matter of curious reflection, that, while the laws and customs
of the East seem in a great measure to have been stationary
since the Christian era, those of Europe have undergone the
most extraordinary revolutions; attaining, at one period,
great refinement and equity; then sinking from that elevation
into deep obscurity and barbarism, under the northern invaders; and rising again from the ruins of ancient grandeur
to assume a new perfection and beauty, which first softened
the features, and then extinguished the spirit of the feudal
system.
It is not, however, upon topics of this sort, suggested by a
broad and general survey of the past, however interesting to
the philosophical inquirer, that I propose to dwell at this
time. My purpose, rather, is to offer some considerations
touching the past and present state of the common law, and
to suggest some hints as to its future prospects in our own
country, and the sources from which any probable improvements must be derived. In doing this, I shall attempt nothing more than a few plain sketches, contenting myself with
the hope of being useful, and leaving to others, of higher
talents and attainments, the more ambitious path of eloquence and learning.
The history of the common law may be divided into three
great epochs; the first extending from the reign of William
the Conqueror to the Reformation; the second from the
reign of Elizabeth to the Revolution, which placed the house
of Brunswick on the throne; and the third including the
period, which has since elapsed, down to our own time.
The first of these epochs embraces the origin and complete




PROGRESS OF JURISPRUDENCE.           201
establishment of the feudal system, with all its curious burdens and appendages; its primer seisins, its aids, its reliefs,
its escheats, its wardships, its fines upon marriages and alienations, and its chivalric and soccage services. Connected
with these were the distinct establishment of tribunals of
justice, administered first by Judges in Eyre, and afterwards
by the Courts at Westminster; the introduction of assizes,
and writs of entry; and the perfecting of all those forms of
remedies, by which rights are enforced, and wrongs redressed.
Some of the most venerable sages of the law belong to this
period; the methodical and almost classical Bracton; the
neat and perspicuous Glanville; the exact and unknown
author of Fleta; the criminal treatise of Britton; the ponderous collections of Statham, Fitzherbert, and Brooke; and,
above all, the venerable Year Books themselves, the grand
depositories of the ancient common law, whence the Littletons and the Cokes, the Hobarts and the Hales, of later
times, drew their precious and almost inexhaustible learning.
Of these black-lettered volumes few in our days can boast
the mastery. Even in England they are suffered to repose
on dusty and neglected shelves, rarely disturbed, except
when some nice question upon an appeal of death, upon the
nature of seizin, or upon proceedings in writs of right, calls
them up, like the spirits of a departed age, to bear their testimony in the strife. This, too, was the age of scholastic
refinements, and metaphysical subtilties, and potent quibbles,
and mysterious conceits; when special pleading pored over
its midnight lamp, and conjured up its phantoms to perplex,
to bewilder, and sometimes to betray. This, too, was the
age of strained and quaint argumentation, when the discussions of the bar were perilously acute and cunning. And
yet, though much of the law of these times is grown obsolete,
and the task of attempting a general revival of it hopeless, it
cannot be denied, that it abounds with treasures of knowledge. It affords the only sure foundation in many cases, on
which to build a solid fabric of argument; and no one ever




202            MITSCELLANEOUS WRITINGS.
explored its depths, rough and difficult as they are, without
bringing back instruction fully proportioned to his labor.
The commencement of the second period is rendered remarkable by the enactment of two statutes, which have probably conduced more than any others to change the condition
of real property; and at the same time that they have facilitated its application to the business and the wants of real
life, they have in no small degree rendered its titles intricate.
I allude to the great statutes of Wills and of Uses, in the
reign of Henry VIII. The former statute has crowded our
books of reports with cases, more numerous and more difficult in construction than any other single branch of the law.
The latter, followed up by the statute of Elizabeth of Charitable Uses, is thought by many to have laid the foundation
of that broad and comprehensive judicature, in which equity
administers, through its searching interrogatories, addressed
to the consciences of men, the most beneficent and Iwholesome principles of justice. The whole modern structure of
Trusts, infinitely diversified as it is, by marriage settlements,
terms to raise portions or to pay debts, contingent and
springing appointments, resulting uses and implied trusts,
grew out of this statute, and the constructions put upon it.
And it is scarcely figurative language to assert, that the
scintilla juris of Chudleigh's case is the spark which kindled
the flame, which has burned so brightly and benignantly in
the courts of equity in modern times.
Two statutes, equally remarkable, adorned the close of this
second period; the one, the statute securing the writ of
Habeas Corpus, the great bulwark of personal liberty; the
other, the statute abolishing the burdensome tenures of the
Feudal Law. These were the triumphs of sound reason and
free inquiry over the dictates of oppression and ignorance.
They were the harbinger of better days, and gave lustre to
an age, which was scarcely redeemed from profligacy by the
purity of Lord Hale, and was deeply disgraced by the harsh
and vindictive judgments of Lord Jeffries. Yet through the




PROGRESS OF JURISPRUDENCE.           203
whole of this period we may trace a steady improvement in
the great departments of the law. Under the guidance of
Lord Bacon, the business of chancery assumed a regular
course; and, at the distance of two centuries his celebrated
Ordinances continue to be the pole-star, which directs the
practice of that court. A more noble homage to his memory,
or a more striking proof of the profoundness of his genius,
and of the wisdom and comprehensiveness of his views can
scarcely be imagined. And it may be truly affirmed, that
his Novuz Organum scarcely introduced a more salutary
change in the study of physics and experimental philosophy
than his Ordinances did in the practical adrninistration of
equity. The common law, too, partaking of the spirit and
enterprise of the times, gradually shifted and widened its
channels.  Courts of justice were no longer engaged in
settling ecclesiastical or feudal rights and services. The
intricacies of real actions were laid aside for the more convenient and expeditious trial of titles br ejectment. Assizes
and writs of entry fell into neglect, ard the subtilties of logic
were exchanged for the more useful inductions of common
sense. Arguments were no lo0er buried under a mass of
learning; and reports, instead of overwhelming the profession, as in the pages of the enerable Plowden, with a flood
of ancient authorities ant curious analogies, began to be
directed to the points i, controversy with brevity and exactness. Philosophy, too, lent its aid to illustrate the science;
and the criminal law, though occasionally disgraced by
abuses, was softened by the humanity, illustrated by the
genius, and rethodized by the labors of the great luminaries
of the law.
The tJd period may not inaptly be termed the Golden
Age of the law; since it embraces the introduction of the
principles of commercial law, and the application of them
with wonderful success to the exposition of the then comparatively novel contracts of bills of exchange, promissory notes,
bills of lading, charter-parties, and, above all, policies of insur.




204             MISCELLANEOUS WRITINGS.
ance. Lord Holt, with great sagacity and boldness, led the
way to some of the most important improvements, by his
celebrated judgment in Coggs v. Barnard, in which the law
of bailments is expounded with philosophical precision and
fulness. It is true, that the leading maxims are borrowed
from the Roman law, as the beautiful treatise of Sir William
Jones sufficiently explains to the humblest student. But the
merit of Lord Holt is scarcely lessened by this consideration,
since he had the talent to discern their value, and the judgment to transfer them into the English code. The modest
close of his opinion in this case shows, how little the law on
this subject was at that time settled, and how much we owe
to the achievements of a single mind. "I have said thus
much" (is his language) c" on this case, because it is of great
consequence, that the law should be settled on this point.
But I don't kno\-, whether I may have settled it, or may not
rather have unsetted it. But however that may happen,
I have stirred these toints, which wiser heads in time may
settle."  Wiser heads'ave not settled these points. This
branch of the law stands now, at the distance of more than
a century, on the immovaqle foundation, where this great
man placed it, the foundation %f reason and justice. And, if
he had left no other judgment ~n record, this alone would
justify the eulogy of an eminent mtdern judge, that " he was
as great a lawyer as ever sat in Westninster Hall."
The doctrines of the courts of equity Caring this last period
have attained a high degree of perfection, %ough the origin
of them must in many cases be admitted tGc belong to the
preceding age. Lord Nottingham brought tc the subject
a strong and cultivated mind, and pronounced his decrees
after the most cautious and painstaking study. Lard Cowper and Lord Talbot pursued the same career with the
genuine spirit of jurists. But it was reserved for Lord Hardwicke, by his deep learning, his extensive researches, and his
powerful genius, to combine the scattered fragments into
a scientific system; to define with a broader line the bound



PROGRESS OF JURISPRUDENCE.          205
aries between the departments of the common law and
chancery; and to give certainty and vigor to the principles,
as well as the jurisdiction, of the latter. Henceforth, equity
began to acquire the same exactness as the common law;
and at this moment there is scarcely a branch of its jurisprudence, that is not reduced to method, and does not in the
harmony of its parts rival the best examples of the common
law. Our own age has witnessed, in the labors of Lord
Eldon, through a series of more than twenty-five volumes of
reports, a diligence, sagacity, caution, and force of judgment,
which have seldom been equalled, and can scarcely be surpassed; which have given dignity, as well as finish, to that
curious moral machinery, which, dealing in an artificial system, yet contrives to administer the most perfect of human
inventions, the doctrines of conscience ex aequo et bono.
There is another great name which adorns this period,
respecting whom it is difficult to speak in terms of moderated
praise, and still more difficult to preserve silence. England,
and America, and the civilized world lie under the deepest
obligations to him. Wherever commerce shall extend its
social influences; wherever justice shall be administered by
enlightened and liberal rules; wherever contracts shall be
expounded upon the eternal principles of right and wrong;
wherever moral delicacy and juridical refinement shall be
infused into the municipal code, at once to persuade men to
be honest and to keep them so; wherever the intercourse of
mankind shall aim at something more elevated than that
grovelling spirit of barter, in which meanness, and avarice,
and fraud strive for the mastery over ignorance, credulity,
and folly; —the name of Lord Mansfield will be held in
reverence by the good and the wise, by the honest merchant,
the enlightened lawyer, the just statesman, and the conscientious judge. The maxims of maritime jurisprudence,
which he ingrafted into the stock of the common law, are
not the exclusive property of a single age or nation; but the
common property of all times and all countries. They are
18




206            MISCELLANEOUS WRITINGS.
built upon the most comprehensive principles, and the most
enlightened experience of mankind. He designed them to
be of universal application; considering, as he himself has
declared, the maritime law to be, not the law of a particular
country, but the general law of nations. And such under his
administration it became, as his prophetic spirit, in citing
a passage from the most eloquent and polished orator of
antiquity, seems gently to insinuate. "Non erit alia lex
Roma, alia Athenis; alia nunc, alia posthac; sed, et apud
omnes gentes et omni tempore, una eademque lex obtinebit."
He was ambitious of this noble fame, and studied deeply,
and diligently, and honestly to acquire it. He surveyed the
commercial law of the continent, drawing from thence what
was most just, useful, and rational; and left to the world, as
the fruit of his researches, a collection of general principles,
unexampled in extent and unequalled in excellence. The
law of insurance was almost created by him; and it would
be difficult to find a single leading principle in the beautiful
system, that surrounds and protects the commerce of our
times, which may not be traced back to the judgments of this
surprising man. Of him it cannot be said, " Stat magni nominis umbra."  His character as a statesman and an orator, as
the rival, and the equal, of Chatham and Camden, would immortalize him. But the proudest monument of his fame is in
the volumes of Burrow, and Cowper, and Douglas, which
we may fondly hope will endure as long as the language, in
which they are written, shall continue to instruct mankind.
I have been drawn into these remarks on the character of
Lord Mansfield, beyond the scope of my original intention,
by my extreme solicitude to impress the younger members of
the profession with a due sense of his learning and his labors.
It appears to me, that his judgments should not be merely
referred to and read, on the spur of particular occasions, but
should be studied, as models of juridical reasoning and eloquence. I know not where a student can learn so much, or
so well, as in the reports which I have named; and there is




PROGRESS OF JURISPRUDENCE.         207
scarcely a sentence which dropped from his lips, which may
not prove of permanent utility to the profession. Our young
men of the present day are apt to confine their reading too
much to elementary treatises. The utility of these cannot
be doubted. But the reports are the true repositories of the
law; and of these none are more interesting and convincing,
than those which are graced by the persuasive judgments of
Lord Mansfield.
The principal improvements in the law, during the period
which has last passed under review, may be summed up
under the following heads. 1. A more enlarged and liberal
interpretation of contracts. 2. The adoption of the great
principles of commercial law, borrowed from the usages of
merchants, the dissertations and commentaries of foreign
jurists, and the inductions of philosophical inquiry. 3. The
enlargement of the remedy by assumpsit, moulding it, as in
the action for money had and received, to the most important
purposes of a bill in equity. 4. The reduction of many doctrines of the law to systematical accuracy by rejecting anomalies, and defining and limiting their application by the test
of general reasoning.
Without doubt, many of these changes were brought about
by the enterprise of commerce and the philosophizing spirit
of the times. The former rendered indispensable the introduction of many general principles to regulate the complicated business of trade, and to protect and encourage navigation. The latter, by accustoming the profession to more
comprehensive argumentations and more perfect generalizations, gradually wore away that exclusive devotion to technical
rules and ancient practices, and the narrow policy of the old
law, which had been for ages the reproach of the benchers of
Westminster Hall. The common law had its origin in ignorant and barbarous ages; it abounded with artificial distinctions and crafty subtilties, partly from the scholastic habits
of its early clerical professors, and partly from its subserviency
to the narrow purposes of feudal polity. When this polity




208             MISCELLANEOUS WRITINGS.
began to decline, the mass of its principles was so interwoven
into the texture of the law, and so consecrated by authority,
that it became dangerous, if not impracticable, to disentangle
it. There was, therefore, a natural jealousy of changes, lest
they should work mischiefs in the venerable fabric. It was
not until the current of society had taken a new direction,
and commerce had worn its channels wide and deep through
the whole country, that the necessities of trade compelled the
profession to look abroad for doctrines of more general application. Yet it cannot be denied, that the progress of improvement was slow, and that the genius of Lord Mansfield,
by outstripping that of the age at least half a century, accomplished with brilliant success what a few may have ventured
to hope for, but no one before him was bold enough to
execute. The remarks of Mr. Justice Buller, a proud name
in the English law, in the case of Lickbarrow v. Mason,
fully confirm the views that I have attempted to unfold.
" Before that period," says he, " we find, that in courts of law
all the evidence in mercantile cases was thrown together;
they were left generally to the jury, and they produced no
established principle. From that time, we all know, the
great study has been to find some certain general principles,
which shall be known to all mankind, not only to rule the
particular case, but to serve as a guide for the future. Most
of us have heard these principles stated, reasoned upon,
enlarged, and explained, till we have been lost in admiration
of the strength and stretch of the human understanding."
Although the causes, to which I have alluded, contributed
in a high degree to the advancement of the law; yet there is
another, which, in my judgment, had a decided, though silent,
operation in its favor. I refer to the change in the tenure of
office, by which the judges, instead of being dependent on
the pleasure of the Crown, enjoyed their offices during good
behavior. This measure of consummate wisdom forms a part
of the solemn act of settlement which fixed the succession of
the throne of England in the house of Hanover, and was




PROGRESS OF JURISPRUDENCE.          209
adopted, not merely to secure the personal independence of
the judges, but the purity and independence of the law. The
first effect was to check the undue influence of the Crown,
through its judicial patronage; the next, and not least important, was to restrain the tumultuary excitements of the
people. Men, for the most part, are willing to submit to the
laws, when faithfully and impartially administered. If they
are satisfied, that the judges are incorruptible, they acquiesce
in their decisions, even when they may suspect them to be erroneous, as the necessary homage, by which their own rights and
liberties are permanently secured. But if the fountain of justice
is impure, and sends forth bitter waters, stained by influences
which are not avowed, and yet are scarcely covered; if judges
are removed at pleasure and appointed at pleasure, to gratify
a favorite or a faction, an arrogant minister or a violent
House of Commons; it is easy to foresee, that jealousy will
lead to distrust, and distrust to hatred, and hatred to disobedience, and disobedience to resistance, which, if it stops short
of treason, will yet utter itself in deep complaints, until public
confidence is universally shaken, and armies become necessary to support the execution of the laws. Considerations of
this sort have always impressed me with the belief, from the
first moment that I ventured into the deeper studies of the
law, that the independence of the judges is the great bulwark
of public liberty, and the great security of property; and that
the Revolution of 1688 would have been but a vain and
passing pageant, a noble but ineffectual struggle against
prerogative, if the triumph of its principles had not been
secured by this practical means of enforcing them. Throughout the reigns of both the Charleses and both the Jameses, it
is melancholy to remark the perpetual changes on the bench,
induced by favoritism, or discontent, or an attempt to overawe the courts. The noble answer of Lord Coke to the
inquiry of the king, in the dispute about commendams, what
he would do, if the Crown in any case before him required
the judges to stay proceedings, " that he would do that, which
18 *




210            MISCELLANEOUS WRITINGS.
would befit a judge to do," is worthy of everlasting remembrance. But it was his solitary answer. To the disgrace of
the age, all the other judges, intimidated by the king and his
haughty chancellor, "the wisest, brightest, meanest of mankind," promised implicit submission to the commands of the
Crown. And even Lord Coke, for his conduct on other
occasions, drew from the king the bitter, though perhaps
unjust, rebuke, "that he was the fittest instrument for a tyrant, that ever was in England." In the reign of Charles II.
the conduct of the Crown was more openly profligate, and its
influence was exerted to affect the judgments of the courts,
even in private suits. It is matter of history, that Sir Edmund
Saunders, after having advised the proceedings in the Quo
Warranto against the city of London was promoted to the
chief justiceship of the King's Bench, not on account of his
talents, his learning, or his virtues, (though great) but on
account of his known devotion to the interests of the Crown.
Such are some of the more offensive forms, under which
the tenure of offices during pleasure will sometimes exhibit
men, from whose elevation of character better things might be
expected. But the more silent and unobtrusive influence of
popular dependence, though less striking to the vulgar eye, is
not less subversive of the great purposes of justice. It is, indeed, more dangerous to the liberty and property of the people; since it assumes the attractive appearance of obedience to
the will of the majority; and thus, without exciting jealousy
or alarm, it tramples under foot all those who refuse to obey
the idol of the day. How can it be reasonably expected, that
the law should flourish as a science, when the judges are
doomed to resist the humors of the prince, or the clamors of
the populace, at the peril of those stations, which may constitute their only refuge from pecuniary distress? If the old
tenure of office had remained, we might still have possessed
many valuable judgments of the later common-law judges.
But we should have searched in vain for those bright displays of independence and virtue, for those beautiful argu



PROGRESS OF JURISPRUDENCE.           211
ments in defence of private rights, for those finished illustrations of pure and exalted equity, and for those comprehensive commentaries upon commercial law, which have immortalized their memories. If their places were of any value,
they must have resigned them, or remained the timid followers of the old law, without the ambition to improve its
doctrines, or the hardihood to encounter the alarm of innovation. Lord Mansfield would scarcely have sustained himself on the bench, in the midst of so many political and professional foes, to utter the thrilling declaration, " I wish for
popularity; but it is that popularity which follows, not that
which is run after. It is that popularity which, sooner or
later, never fails to do justice to the pursuit of noble ends by
noble means. I will not do that which my conscience tells
me is wrong upon this occasion, to gain the huzzas of thousands, or the daily praise of all the papers which come from
the press. I will not avoid doing that which I think is right,
though it should draw on me the whole artillery of libels, all
that falsehood and malice can invent, or the credulity of a
deluded populace can swallow.  I can say, with another
great magistrate, upon an occasion and under circumstances
not unlike,' Ego hoc animo semperfui, ut invidiam virtute partam, grloriam, non invidiam, putarem."'
The review, which has been hitherto sketched, of the history of the common law, however imperfectly, is confined
altogether to British jurisprudence.  Before the American
Revolution, from a variety of causes, which it is not difficult
to enumerate, our progress in the law was slow, though not
slower, perhaps, than in the other departments of science.
The resources of the country were small, the population was
scattered, the business of the courts was limited, the com.
pensation for professional services was moderate, and the
judges were not generally selected from those who were
learned in the law. The colonial system restrained our foreign commerce; and, as the principal trade was to or through
the mother country, our most important contracts began or




212            MISCELLANEOUS WRITINGS.
ended there. That there were learned men in the profession
in those times, it is not necessary to deny. But the number
was small. And from the nature of the business which occupied the courts, the knowledge required for common use
was neither very ample nor very difficult.  The very moderate law libraries then to be found in the country, would
completely establish this fact, if it could be seriously controverted. Our land titles were simple. Our contracts principally sprung up from the ordinary relations of debtor and
creditor. Our torts were cast in the common mould of trespasses on lands or to goods, or personal injuries; and the
most important discussions grew out of our provincial statutes.  Great lawyers do not usually flourish under such
auspices, and great judges still more rarely. Why should
one accomplish himself in that learning which is more of
curiosity than use? which neither adds to fame nor wealth?
which is not publicly sought for or admired? which devotes
life to pursuits and refinements not belonging to our own
age or country? The few manuscripts of adjudged cases
which now remain, confirm these remarks. If, here and there,
a learned argument appears, it strikes us with surprise, rather
from its rarity than its extraordinary authority. In the whole
series of our reports, there are very few cases in which the
ante-revolutionary law has either illustrated or settled an adjudication.
The progress of jurisprudence since the termination of the
War of Independence, and especially within the last twenty
years, has been remarkable throughout all America. More
than one hundred and fifty volumes of reports are already
published, containing a mass of decisions, which evince uncommon ambition to acquire the highest professional character. The best of our reports scarcely shrink from a comparison with those of England in the corresponding period;
and even those of a more provincial cast exhibit researches
of no mean extent, and presage future excellence. The danger, indeed, seems to be, not that we shall hereafter want




PROGRESS OF JURISPRUDENCE.             213
able reports, but that we shall be overwhelmed by their number and variety.
In this respect our country presents a subject of very serious contemplation and interest to the profession. There are
now twenty-four states in the Union, in all of which, except
Louisiana, the common law is the acknowledged basis of
their jurisprudence. Yet this jurisprudence, partly by statute,
partly by judicial interpretations, and partly by local usages
and peculiarities, is perpetually receding farther and farther
from the common standard.  While the states retain their
independent sovereignties, as they must continue to do under
our federative system, it is hopeless to expect that any
greater uniformity will exist in the future than in the past.
Nor do I know that, so far as domestic happiness and political convenience are concerned, a greater uniformity would in
most respects be desirable. The task, however, of administering justice in the state as well as national courts, from the
new and peculiar relations of our system, must be very laborious and perplexing; and the conflict of opinion upon general questions of law, in the rival jurisdictions of the different states, will not be less distressing to the philosophical
jurist, than to the practical lawyer.
It may not be without utility to glance, for a few moments,
at some of those circumstances, in which the coincidences
and differences are most striking and instructive.
1. And first, as to the regulation of the transfers of property. These are either by the descent and distribution of
estates, by conveyances inter vivos, or by testamentary dispositions. As to the first, so far as my knowledge extends, the
canons of descent in the direct line are the same in all the
states. In all the states the children and lineal descendants
inherit in coparceny, without any distinction as to primogeniture or sex. In descents in the collateral line, there are
some peculiar modifications in almost all the states.  In
some states there is a difference between the half and the
whole blood; in others, a difference between inheritances ex




214            3IISCELLANEOUS WRITINGS.
parte paterna' and ex parte mnaternd; in others, a difference in
the order of succession and representation. From the genius
of our political institutions, as well as the habits of the people, there is every probability that inheritances will continue
to descend substantially in the same manner, as long as our
free governments endure. An attempt to establish the English canons of descent could hardly succeed, but upon the
ruins of all those institutions, which are considered the best
protection of a republican government. Then, as to conveyances inter vivos. Lands are universally conveyed by a deed,
acknowledged by the parties before some competent magistrate, and recorded in some public records kept for the registry of conveyances of this nature. The ceremony of livery
of seizin is obsolete, if, indeed, it have any where a legal
entity. The common law forms of conveyance are in general
use, and the statute of uses being recognized as a part of
the common or statute law of the states, the English doctrines on these subjects are generally adopted. As to testamentary dispositions. Lands are universally disposable by
will. The ceremonies by which solemn testaments are evidenced in most of the states, do not materially differ from the
English statute on this subject. In Virginia and Kentucky,
however, a will wholly written and signed by the testator is
good, although there is no subscribing witness. In Louisiana the like provision exists; and it is to be observed, that
the preceding remarks are in general inapplicable to this latter state, whose jurisprudence being founded on the civil
law, the forms of conveyances, whether they be donations
inter vivos, or donations causd mortis, are regulated in general conformity to the rule of that law.
2. As to commercial law. From mutual comity, from the
natural tendency of maritime usages to assimilation, and
from mutual convenience, if not necessity, it may reasonably
be expected, that the maritime law will gradually approximate to a high degree of uniformity throughout the commercial world. This is, indeed, in every view exceedingly desira



PROGRESS OF JURISPRUDENCE.           215
ble. Europe is already, by a silent but steady course, fast
approaching to that state, in which the same commercial
principles will constitute a part of the public law of all its
sovereignties. The unwritten commercial law of England at
this moment differs in no very important particulars from the
positive codes of France and Holland. Spain, Portugal, and
the Italian States, the Hanseatic Confederacy, and the Powers of the North, have adopted a considerable part of the
same system. And the general disposition in the maritime
states, to acknowledge the superiority of the courts and code
of England, leaves little doubt that their own local usages
will soon yield to her more enlightened doctrines. What a
magnificent spectacle will it be, to witness the establishment
of such a beautiful system of juridical ethics; to realize, not
the oppressive schemes of holy alliances in a general conspiracy against the rights of mankind, but the universal empire of juridical reason, mingling with the concerns of commerce throughout the world, and imparting its beneficent
light to the dark regions of the poles, and the soft and luxurious climates of the tropics! Then, indeed, would be realized the splendid visions of Cicero, dreaming over the majestic fragments of his perfect republic; and Hooker's sublime
personification of the law would stand forth almost as embodied truth, for " all things in heaven and earth would do her
homage, the very least as feeling her care, and the greatest as
not exempted from her power."
The commercial law of the Atlantic states has, indeed,
already attained to a very striking similarity in its elements.
Upon the subject of insurance there is no known difference
founded on local usages or statutes. If the law be differently administered, it is not because there is any intention to
deviate from the general doctrines of that law, but because
the nature and extent of those doctrines have been differently
understood. In all the states the' same law prevails as to
contracts of shipping and affreightment.  In most of the
states bills of exchange and promissory notes are negotiable,




216              MISCELLANEOUS WRITINGS.
and rest upon the principles, which since the statute of Anne
have won their way into the common law. Virginia affords
the most striking exception to this remark; for, there, a limited negotiability only is recognized by law, and parties, who
are remote indorsers, have no remedy against remote indorsers, except by a suit in equity. Massachusetts, as far as
I know, stands alone in her local usage of denying days of
grace to promissory notes, unless expressed on the face of the
contract. And it is seriously wished, that by a legislative
act we might fairly get rid of this anomaly, which has not a
single ground, either of convenience, or policy, or antiquity,
to recommend it.1 There are some few other dissonances
from the general commercial law, which have existence in
some of the states; but it would serve no important purpose to explain them at this time.
3. As to remedies, it would be endless to point out the
coincidences and differences between the various states. Remedies are necessarily modified by the wants and manners
of the community; and processes, which from habit are
thought useful and convenient in one state of society, are
rejected as burdensome and injurious in another. In several
of the New England States the attachment of real and personal property is allowed upon mesne process, not merely to
coerce the appearance of the defendant, but to secure a final
satisfaction of the judgment, if the plaintiff recovers in the
suit. This process, except so far as it belongs to foreign
attachments, (analogous to our trustee process,) is utterly
unknown elsewhere; and the existence of it among ourselves is contemplated with surprise and regret by those who
are accustomed to the general processes of the common law.
It is thought a hardship that any person should be liable to
be stripped of his property, before it is ascertained judicially,
1 Since this address was delivered, a statute has been passed in Massachusetts, providing that grace shall be allowed on all promissory notes, orders,
and drafts, payable at a future day certain, in which there is not an express
stipulation to the contrary. St. Mass. 1824, c. 130.




PROGRESS OF JURISPRUDENCE.          217
that a good cause of action exists against him; and the
danger of abuse has been dwelt upon with much emphasis
and force. And yet, perhaps, the annals of no country present fewer instances of abuse than those of the New England States, which allow this mode of proceeding. Personal
arrests are rare here, even when property is not to be found;
and it is not perhaps hazarding too much to assert, that the
writ of capias has subjected more persons to wrongful imprisonment than the unjust attachment of property has to serious loss and inconvenience. Yet it cannot be denied that
the latter process is liable to great abuses, and that our
exemption from them has resulted principally from the sound
discretion and integrity of the Bar. And it is most desirable
that some summary practice. analogous to that of discharging on common bail, should be authorized by the legislature,
so that fraud, and circumvention, and oppression, may find
it more difficult to obtain undue advantages, and compel
undue compromises under the influence of this dreaded
process.
The remedy for trying land titles in all the states in the
Union, except Louisiana and some of the New England
States, is the English action of ejectment. It is scarcely
modified" even in its slightest forms; and John Doe and
Richard Roe are the familiar guests, hospites antiqui et constantes, of the courts on the picturesque banks of the Hudson, the broad expanse of the Delaware and Chesapeake, the
sunny regions of the South, and the fertile vales and majestic
rivers of the West. In Louisiana the civil law governs all
judicial proceedings, and administers all remedies in personam
and in rem. And I cannot help paying my humble homage
to the excellence of this code, which, adapting its remedies
to the exigency of the case, gives complete relief without
trammelling itself with prescribed forms, which often perplex,
and sometimes defeat the ends of justice. In one or two of
the adjoining states the old anomalous proceeding, known as
a plea in ejectment, still prevails. The use of writs of entry
19




218            MISCELLANEOUS WRITINGS.
for the trial of land titles is, I believe, unknown, except in
Massachusetts, Maine, and New Hampshire. Whether we
have derived any important benefit from the revival of the old
forms of proceeding in real actions, is a question upon which
wise men and sound lawyers may probably disagree. If we
have disembarrassed them of some troublesome appendages
and some artificial niceties, and rendered them more attractive by the simplicity of their structure; still it must be confessed, that they are not easily moulded to all the uses which
modern conveyances and devises render convenient and necessary. The abandonment of these forms in England, from
a general sense of their inadequacy to the purposes of justice, and the adoption there, as well as in most of the American States, of the action of ejectment, which has been
ascertained by experience to be a perfect and convenient
remedy, do certainly carry a weight of authority against our
own practice, which if it be not difficult to resist, it would at
least be safe to follow.
4. As to the structure of land titles, there is a considerable
diversity in the states, and in several of them a great departure from the simplicity and certainty of those derived
under the common law. I am not aware that in any part of
New England any serious difficulties are to be fount on this
subject, all titles having had their origin in separate grants,
derived directly from the government or confirmed by it, and
having the usual formalities and certainty of grants of the
crown at common law, or of grants by private legislative
acts. The only questions which have been much litigated,
are those of boundary which may and do ordinarily arise
under grants between private persons; and of these there
have been few of any considerable magnitude.
Far different has been the course of proceeding in some
other parts of the Union. Titles there have originated in
general laws, under which any person might appropriate the
property of the state, by following the regulations pointed
out by certain statutable provisions. These provisions are




PROGRESS OF JURISPRUDENCE.            219
very complex, and embrace a variety of stages of title, in
each of which the purchaser is obliged to observe great precision, or his rights may be postponed to a puisne holder or
claimant. As, therefore, the titles stand upon general laws,
and by taking steps to acquire them inchoate rights are obtained, or priorities secured, before the titles are consuinmated by grants from the government, many very difficult
questions have grown up as to the nature, extent, validity,
and priority of conflicting titles. A regular grant or patent
from the government is no security against other claimants,
although it should happen to be prior in point of date to all
others. It is liable to be overreached and defeated, sometimes at law and sometimes in equity, according to the local
jurisprudence by prior inchoate rights or equitable claims,
whether arising under preemptions, or settlements, or entries,
or other matters, which have been held to confer upon an
adverse claimant a legal preference.V
These remarks apply with considerable force to the land
laws of Pennsylvania, Maryland, North Carolina, and Tennessee. But it is in Virginia, and more especially in Kentucky, which derives its titles under the Virginia land laws,
that they are realized in their fullest extent. The system of
land titles in Kentucky is, indeed, one of the most abstruse
branches of local jurisprudence, built up on artificial principles, singularly acute and metaphysical, and quite as curious
and intricate as some of the higher doctrines of contingent
remainders and executory devises. It affords an illustrious
example of human infirmity and human ingenuity: of human infirmity in the legislative supposition, that the great
statute on which it rests, was so certain as in a great measure to preclude future litigation; of human ingenuity, in
overcoming obstacles apparently insurmountable, by devising approximations to certainty in descriptions strangely
vague and inaccurate, thus preserving the legislative intention, and yet promoting the great purposes of justice.
The vice of the original system consisted in enabling any




220             MISCELLANEOUS WRITINGS.
persons to appropriate the lands of the state by entries and
descriptions of their own, without any previous survey
under public authority, and without any such boundaries
as were precise, permanent, and unquestionable; and the
issuing of grants upon such entries, without any inquiry
as to the true nature, description, and survey of the lands,
and without any attempt to prevent duplicate grants of
the same property. If we consider that Kentucky was at
this time a wilderness, traversed principally by hunters; that
many places must have been but very imperfectly known
even to them, and must have received different appellations
from  occasional and disconnected visitants; if we consider
that the lands were rich, and the spirit of speculation was
pushed to a most extravagant extent, and that the spirit of
fraud, as is but too common, followed close upon the heels
of speculation; if we consider the infinite diversity, which,
under such circumstances, must unavoidably exist in the
descriptions of the appropriated tracts of land, arising from
ignorance, or carelessness, or innocent mistake, or fraud, or
personal rashness; —we ought not to be surprised at the
fact, that the best part of Kentucky is oppressed by conflicting titles, and that in many instances there are three layers
of them lapping on or covering each other. The statute to
which I have alluded, required, that the description in the
original entry should be so certain, that other purchasers
might be able to appropriate the adjacent residuum. The
description of the tract might fail in two particulars. 1. It
might be bounded by known objects or boundaries, but yet
so general and imperfect, that the description might equally
well suit different tracts of land, and thus want what has
been technically called "identity.?"  2. Or the boundaries
might refer to objects so universal as to defy all certainty, or
to objects not generally known at the time by the particular
names given to them, or known generally by another name;
and then the description would be fatally defective for want
of what is technically called " notoriety."  Time would fail




PROGRESS OF JURISPRUDENCE.           221
me to enumerate the doctrines which have started from this
origin, or to go over other peculiarities of the system. Perhaps human genius has been rarely more severely tasked, or
more fairly rewarded, than in its labors on this occasion.
The land law of Kentucky, while it stands alone in its subtile
and refined distinctions, has attained a symmetry which at
this moment enables it to be studied almost with scientific
precision. But ages will probably elapse, before the litigations founded on it will be closed. And so little assistance
can be gained from the lights of the common law for its
comprehension, that, to the lawyers of other states, it will
forever remain an unknown code with a peculiar dialect, to be
explored and studied, like the jurisprudence of some foreign
nation.. D. 
In order to avoid such serious evils, the government of the
United States, with a wisdom and foresight which entitle it
to the highest praise, has, in the system of land laws which
regulate the sales of its own territorial demesnes, given great
certainty, simplicity, and uniformity, to the titles derived
under it. With a few unimportant exceptions, all lands are
surveyed before they are offered for sale. They are surveyed
in ranges, and are divided into townships, each six miles
square, and these are subdivided into thirty-six sections, each
one mile square, containing six hundred and forty acres. All
the dividing lines run to the cardinal points, and of course
intersect each other at right angles, except where fractional
sections are formed by navigable rivers, or by an Indian
boundary line. The subdividing lines of quarter sections are
not actually surveyed, but the corners, boundaries, and contents of these, are designated and ascertained by fixed rules
prescribed by law; and regular maps of all the surveys are
lodged in the proper departments of the government. In this
manner, with some few exceptions, the public lands in Alabama, Mississippi, Louisiana, Ohio, Indiana, and Illinois,
have been sold; and the system applies universally to all our
remaining territorial possessions. The common law doc19 #




222             MISCELLANEOUS WRITINGS.
tines have, in respect to these titles, taken deep root and
flourished; and the waters, which divide the states on the
opposite banks of the Ohio, do not form a more permanent
boundary of their respective territorial possessions, than the
different origin of their land titles does in the character of
their local jurisprudence.  f
5. Another circumstance, which will probably continue to
form a leading diversity in the jurisprudence of the states, is
the existence of slavery. This condition of society must
necessarily involve a great variety of peculiar provisions, as
to domestic policy and foreign intercourse, and as to crimes,
rights, and duties, to which no parallel can be furnished in
states, whose constitutions or laws prohibit its introduction
and existence. The property in slaves, partaking as it does
of the double aspects of real and personal estate, being transmissible by descent, and being sold as personalty; being perpetually in demand and marketable, and of course affording
solid revenue and wealth; giving value to lands by increasing the culture of agricultural products; being also of intrinsic value and general necessity in climates where little or
nothing is accomplished by other labor; —it follows that
slavery and its appendages mustFs-inkEept into the mass of
jurisprudence of the slaveholding states, and furnish much
litigation in the shape of contracts, conveyances, torts, or
crimes, which other states are happily exempt from, and need
not study, either for admonition or instruction.
6. Another diversity which deserves attention is the equity
jurisdiction, which exists in complete operation in some
states, in partial operation in others, and in others again is
obsolete, or totally prohibited. In New England no such
establishment is known, as a separate, independent court of
equity. In Connecticut and Vermont, general equity powers
are exercised by the judges of their superior courts. But in
all the other New England States equity powers are confined
to a few cases, which are specified and limited by legislative
acts. In Pennsylvania a mixed system exists. No court of




PROGRESS OF JURISPRUDENCE.          223
chancery, or court exercising chancery powers according to
the forms and proceedings of that jurisdiction, is known.
But in cases where the parties possess rights, which a court
of equity would recognize and enforce, courts of law, following equity in this particular, endeavor to give efficacy to
these rights through the instrumentality of remedies at law.
Thus, a title to land merely equitable, or resting in a contract
of which a court of equity would compel a specific performance, is sufficient to sustain an ejectment at lawv. On the
other hand, in New York, New Jersey, Maryland, Virginia,
and South Carolina, courts of equity have a distinct existence and organization, independent of courts of common
law; and, as far as I have been enabled to learn, in the remaining states the equity jurisdiction is generally administered by the courts of common law. Where;er the equity
jurisdiction is exercised, its admitted basis is the general doctrines of the English chancery. But it is so modified by
local statutes, usages, and decisions, that it would be somewhat hazardous for a lawyer at the chancery bar of Westminster to form an opinion as to the authority to give, or to
deny relief, however unequivocally those guides might speak,
whom he was accustomed to consult. If I were obliged to
speak from my own very imperfect knowledge and experience, I should be compelled to declare, that the deviations in
America from the established principles of equity are far
more considerable than from those of the common law. A
more broad and undefined discretion has been assumed, and
a less stringent obedience to the dictates of authority. Much
is left to the habits of thinking of the particular judge, and
more to that undefined notion of right and wrong, of hardship and inconvenience, which popular opinions alternately
create and justify. There are, indeed, illustrious exceptions
to these remarks, which it would be invidious to point out,
though it would be of great importance to follow.
The slight sketches which I have thus ventured to draw of
some of the prominent features of state jurisprudence, do, as




22 4           MISCELLANEOUS WRITINGS.
I think, justify the suggestion already made, that American
jurisprudence can never acquire a homogeneous character;
and that we must look to the future rather for increasing discrepancies than coincidences in the law, and the administration of the law. This is a consideration of no small moment
to us all; lest, by being split up into distinct provincial Bars,
the profession should become devoted to mere state jurisprudence, and abandon those more enlightened and extensive
researches, which form the accomplished scholar, and elevate
the refined jurist; which ennoble the patriot, and shed a
never-dying lustre round the statesman. The establishment
of the National Government, and of courts to exercise its constitutional jurisdiction, will, it is to be hoped, in this respect,
operate with a salutary influence. Dealing, as such courts
must, in questions of a public nature; such as concern the
law of nations, and the general rights and duties of foreign
nations; such as respect the domestic relations of the states
with each other, and with the General Government; such as
treat of the great doctrines of prize and maritime law; such
as involve the discussion of grave constitutional powers and
authorities; —it is natural to expect that these courts will
attract the ambition of some of the ablest lawyers in the different states, with a view both to fame and fortune. And
thus, perhaps, if I do not indulge in an idle dream, the foundations may be laid for a character of excellence and professional ability, more various and exalted than has hitherto
belonged to any bar under the auspices of the common law;
- a character, in which minute knowledge of local law will
be combined with the most profound attainments in general
jurisprudence, and with that instructive eloquence which
never soars so high, or touches so potently, as when it grasps
principles which fix the destiny of nations, or strike down to
the very roots of civil polity.
In comparing the extent of American jurisprudence with
that of England, we shall find, that, if in some respects it is
more narrow, in others it is more comprehensive. The whole




PROGRESS OF JURISPRUDENCE.            225
ecclesiastical law of England, unless so far as it may operate
on past cases, is obsolete. The genius of our institutions
has universally prohibited any religious establishment, state
or national. Nor is there the slightest reason to presume,
that the imposition of tithes could ever be successfully introduced here except by the strong arm of martial law, forcing
its way by conquest. It was always resisted during our
colonial dependency; and would now be thought at war
with all that we prize in religion, or civil freedom. The
numerous questions respecting tithes and moduses, quare
impedits, and advowsons, and presentations, the fruitful progeny of that establishment, are gone to the same tomb where
the feudal tenures repose in their robes of state, in dim and
ancient majesty. In the next place, the right of primogeniture being abolished, and all estates descending in coparceny, and entails being practically changed into fee simple
estates, there is no necessity for those intricate conveyances,
settlements, and devises, with which the anxiety of parents
and friends to provide against the inconveniences of the law
has filled all the courts of England. Of this troubled stream
of controversy we may indeed say, " It flows, and flows, and
flows, and ever will flow on." In the next place, we are rid,
not only of the feudal services and tenures, but of all the
customary law, of our parent country, the ancient demesnes,
the copyholds, the manorial customs and rights, and the
customs of gavelkind, and borough English. The cases in
which prerogative or privilege can arise are few, and limited
by law. Long terms, and leases, and annuities, charged on
land, are rare among us; and the complicated questions of
contract and of rent, which fill the books, are of course
scarcely heard of in our courts. We have no game laws to
harass our peasantry, or to form an odious distinction for our
gentlemen; and the melancholy inventions of later times
connected with them, the spring-guns, and the concealed
spears, and the man-traps, never cross our paths, or disturb
our fancies. The penalties of a praemunire cannot be in



226             MISCELLANEOUS WRITINGS.
curred; for we neither court nor fear papal bulls or excommunications. Outlawry, as a civil process, if it have a legal
entity, is almost unknown in practice. An appeal of death
or robbery never drew its breath among us; nor can it now
be brought forth to battle in its dark array of armor, to astonish and confuse us, as it recently did all Westminster Hall.
These are no small departments of the common law. A few
of them, indeed, are almost obsolete in England; but the
residue form a body of principles so artificial, and so difficult,
that they leave behind them few which can in these respects
justly claim precedency.
With all these abridgments, however, our law is still sufficiently extensive to occupy all the time, and employ all the
talents, and exhaust all the learning of our ablest lawyers
and judges. The studies of twenty years leave much behind
that is yet to be grappled with and mastered. And if the
law of a single state is enough for a long life of labor and
ambition, the task falls still heavier on those who frequent
the national courts and are obliged to learn other branches of
law, which are almost exclusively cognizable there. When
it is considered, that the equity jurisprudence of the courts of
the United States is like that of England, with the occasional
adoption of the peculiar equities of local law; and that their
admiralty jurisdiction takes within its circuit not merely the
prize and maritime law, but seizures also for the breach of
municipal regulations; when to these are added the interpretation of the treaties and statutes of the United States, and
the still more grave discussion of constitutional questions,
and the relative rights of states and their citizens in respect
to other states; —it cannot well be doubted, that the administration of justice is there filled with perplexities, that strain
the human mind to its utmost bearings.
The most delicate, and at the same time the proudest
attribute of American jurisprudence, is the right of its judicial
tribunals to decide questions of constitutional law. In other
governments these questions cannot be entertained or decided




PROGRESS OF JURISPRUDENCE.           227
by courts of justice; and, therefore, whatever may be the
theory of the constitution, the legislative authority is practically omnipotent, and there is no means of contesting the
legality or justice of a law but by an appeal to arms. This
can be done only when oppression weighs heavily and grievously on the whole people, and is then resisted by all because
it is felt by all. But the oppression that strikes at a humble
individual, though it robs him of character, or fortune, or life,
is remediless; and, if it becomes the subject of judicial inquiry, judges may lament, but cannot resist, the mandates of
the legislature.
Far different is the case in our country; and the privilege
of bringing every law to the test of the constitution belongs
to the humblest citizen, who owes no obedience to any legislative act which transcends the constitutional limits. Some
visionary statesmen, indeed, who affect to believe that the
legislature can do no wrong, and some zealous leaders, who
affect to believe that popular opinion is the voice of unerring
wisdom, have, at times, questioned this authority of courts
of justice. If they were correct in their doctrine, we might
as well be without a written constitution of government,
since the minority would always be in complete subjection
to the majority; and it is to be feared, that the experience of
mankind has never shown, that the despotism of numbers
has been more mild or equitable than that swayed by a
single hand. This heresy, as questionable in point of sound
policy as it is unconstitutional in its language, has hitherto
made but little progress among us. The wise, and the
learned, and the virtuous, have been nearly unanimous in
supporting that doctrine, which courts of justice have uniformly asserted, that the constitution is not the law for the
legislature only, but is the law, and the supreme law, which
is to direct and control all judicial proceedings.
The discussion of constitutional questions throws a lustre
round the bar, and gives a dignity to its functions, which
can rarely belong to the profession in any other country.




228            MISCELLANEOUS WRITINGS.
Lawyers are here emphatically placed as sentinels upon the
outposts of the constitution; and no nobler end can be proposed for their ambition or patriotism, than to stand as faithful guardians of the constitution, ready to defend its legitimate powers, and to stay the arm of legislative, executive, or
popular oppression. If their eloquence can charm, when it
vindicates the innocent, and the suffering under private
wrongs; if their learning and genius can, with almost superhuman witchery, unfold the mazes and intricacies by which
the minute links of title are chained to the adamantine pillars of the law;-how much more glory belongs to them,
when this eloquence, this learning, and this genius, are employed in defence of their country; when they breathe forth
the purest spirit of morality and virtue in support of the
rights of mankind; when they expound the lofty doctrines
which sustain, and connect, and guide the destinies of nations; when they combat popular delusions at the expense
of fame, and friendship, and political honors; when they
triumph by arresting the progress of error and the march of
power, and drive back the torrent that threatens destruction
equally to public liberty and to private property, to all that
delights us in private life, and all that gives grace and authority in public office.
This is a subject, which cannot too deeply engage the most
solemn reflections of the profession. Our danger lies in the
facility, with which, under the popular cast of our institutions,
honest but visionary legislators and artful leaders may approach
to sap the foundations of our government. Other nations have
their security against sudden changes, good or bad, in the
habits of the people, or the nature of their institutions. They
have a monarchy gifted with high prerogatives; or a nobility
graced with wealth and knowledge and hereditary honors;
or a stubborn national spirit, proud of ancient institutions,
and obstinate against all reforms. These are obstacles, which
resist the progress even of salutary changes; and ages sometimes elapse before such reforms are introduced, and yet more




PROGRESS OF JURISPRUDENCE.           229
ages before they are sanctioned by public reverence. The
youthful vigor of our constitutions of government, and the
strong encouragements, held out by free discussion to new
inquiries and experiments, expose us to the opposite inconvenience of too little regard for what is established, and too
warm a zeal for untried theories. This is our weak point of
defence; and it will always be assailed by those, who pant for
public favor, and hope for advancement in political struggles.
Under the pressure of temporary evils, or the misguided
impulses of party, or plausible alarms for public liberty, it is
not difficult to persuade ourselves, that what is established is
wrong; that what bounds the popular wishes is oppressive;
and that what is untried will give permanent relief and
safety. Frame constitutions of government with what wisdom and foresight we may, they must be imperfect, and
leave something to discretion, rid much to public virtue. It
is in vain, that we insert billW of rights in our constitutions,
as checks upon legislative power, unless there be firmness in
courts, in the hour of trial, to resist the fashionable opinions
of the day. The judiciary in itself has little power, except
that of protection for others. It operates mainly by an
appeal to the understandings of the wise and good; and its
chief support is the integrity and independence of an enlightened bar. It possesses no control over the purse or arms of
the government. It can neither enact laws, nor raise armies,
nor levy taxes. It stands alone in its functions, without the
countenance either of the executive or the legislature to
cheer or support it. Nay, its duty sometimes arrays it in
hostility to the acts of both. But while, though few, our
judges shall be fearless and firm in the discharge of their
functions, popular leaders cannot possess a wide range of
oppression, but must stand rebuked in their ambitious career
for power. And it requires no uncommon spirit of prophecy
to foresee, that, whenever the liberties of this country are to
be destroyed, the first step in the conspiracy will be to bring
courts of justice into odium; and, by overawing the tifidi
20




230             MISCELLANEOUS WRITINGS.
and removing the incorruptible, to break down the last barrier between the people and universal anarchy or despotism.
These are dangers common to all the states of the Union;
but there are others, again, not less formidable to the National
Government. State jealousies and state excitements, arising
from accidental causes, or stimulated by local feelings or
political disappointments, will continually create a pressure
on the Constitution of the United States, or shake those provisions, which are destined to hold the state sovereignties in
check. We have lived to see the pointed prohibitions, that
no state shall coin money, emit bills of credit, make any thing
but gold and silver a tender in payment of debt, pass ex post
facto laws, or laws impairing the obligation of contracts,
receive, under the guidance of a spirit of over-refined speculation, or the pressure of public calamities, a construction,
which, if correct, will annihilate their supposed importance;
which will make them an unreal mockery; a false and hollow
sound; a dead and polluting letter; a letter which killeth,
when the spirit would make alive. We have lived to see
this constitution, the great bond and bulwark of the Union,
subjected to a minute and verbal criticism, which the common law repudiated even in its most rigorous construction
of the grants of kings; a criticism, which scarcely belonged
to the stinted charter of a petty municipality. Attempts
have been made, honestly if you please, but in the spirit of
over curious jealousy, to cripple its general powers, by denying the means, when the end is required; to interpret a form
of government, necessarily dealing in general expressions, if
it mean to deal with any thing except legal entities and
metaphysical notions, like the grant of a free fishery, or an
easement, or franchise against common right; instead of
interpreting it as a constitution to regulate great national
concerns, and to protect and sustain the citizens against
domestic misrule, as well as foreign aggression. Even its
enumerated powers have been strained into a forced and
unnatural posture, and tied down upon the uneasy bed of




PROGRESS OF JURISPRUDENCE.          231
Procrustes. And what, let me ask, with becoming solemnity,
what would be the consequence, if these attempts, repudiating the old and settled doctrines of the constitution, should
succeed? What but to subject it to the independent and
uncontrollable interpretation of twenty-four sovereign states;
to give it in no two states the same power and efficiency;
to weaken its salutary influences, and subdue its spirit; to
increase the discords and rivalries of contending states; to
surrender its supreme judicial functions into the hands of
those, who feel no permanent interest to exercise or support
them; in short, to drive us back to the old times, and the old
practices under the confederation, when the national powers
died away in recommendations, and solemn compacts and
pledges were forgotten and contemned, if it did not suit the
convenience of states to remember or to redeem them? If
the union of the states is to be preserved, (and most earnestly
must we all hope, that it may be perpetual,) it can only be
by sustaining the powers of the National Government in
their full vigor, and holding the judicial jurisdiction, as the
constitution holds it, coextensive with the legislative authority. If, by an adherence to some false and glossy theories of
the day, we yield up its powers, as victims on the altar of
public favor, or public necessity, the constitution will sink
into a premature and hopeless decline. It will add another,
and probably the last, to the long list of experiments to establish a free government, which have alternately illuminated
and darkened the annals of other nations, as renowned in arts
and arms, as they were for their advancement in literature
and jurisprudence.
Something more I would say on this subject; but time
fails me, and I feel, that I am entering on topics far too
grave, and solemn, and delicate, for occasions like the present'
May I be permitted, however, to say, that the duty devolved
upon the profession in these times is of deep responsibility and
interest. It depends upon the present age, whether the
national constitution shall descend to our children in its




232            MISCELLANEOUS WRITINGS.
masculine majesty, to protect and unite the country; or
whether, shorn of its strength, it shall become an idle mockery, and perish before the grave has closed upon the last of
its illustrious founders.
In looking to the future prospects of the jurisprudence of
our country, it appears to me, that the principal improvements must arise from a more thorough and deep-laid juridical education, a more exact preparatory discipline, and a more
methodical and extensive range of studies.
In the first place, it cannot be disguised, that we are far
behind the English Bar in our knowledge of the practice, and
of the elementary forms and doctrines of special pleading.
I do not speak here of the technical refinements of the old
law in special pleading, which the good sense of modern
times has suppressed; but of those general principles, which
constitute the foundation of actions, and of those forms, by
which alone rights and remedies are successfully pursued.
There is a looseness and inartificial structure in our declarations and other pleadings, which betray an imperfect knowledge both of principles and forms, an aberration from settled
and technical phraseology, and a neglect of appropriate averments, which not only deprive our pleadings of just pretension to elegance and symmetry, but subject them to the
coarser imputation of slovenliness. The forms of pleading
are not, as some may rashly suppose, mere trivial forms;
they not unfrequently involve the essence of the defence;
and the discipline, which is acquired by a minute attention
to their structure, is so far from being lost labor, that it,
probably more than all other employments, leads the student
to that close and systematical logic, by which success in the
profession is almost always secured. Of the great lawyers
and judges of the English forum one can scarcely be named,
who was not distinguished by uncommon depth of learning
in this branch of the law; and many have risen to celebrity
solely by their attainments in it. We should blush to be
accused of perpetual mistakes in grammatical construction,




PROGRESS OF JURISPRUDENCE.          233
or of a gross and unclassical style of composition. Yet these
are venial errors, compared with those, with which the law is
sometimes reproached. Diffuse and tedious as are the modern English pleadings, it cannot be denied, that they exhibit
a thorough mastery of the science. We miss, indeed, the
close, lucid, and concentrated vigor of the pleadings in the
days of Rastall, and Coke, and Plowden, and even of Saunders and Raymond. But our taste is not offended by loose
and careless phraseology, nor our understanding distressed
by omissions, which betray the genuine " crassa negligentia"
of the law, or by surplusage so vicious and irrelevant, that
one is at a loss to know at what point the pleadings aim, or
whether they aim at any. We ought not to rest satisfied
with mediocrity, when excellence is within our reach. The
time is arrived when gentlemen should be scrupulously precise in their drafts of pleadings, and when the records of our
courts should not be deformed by proceedings which could
not stand the most rigorous scrutiny of the common law, in
form as well as in substance. Exemplifications of our judgments may pass, nay, do already pass, to England; and it
ought to be our pride to know, that they will not be disgraced
under the inspection of the sober benchers of any Inn of
Court. We should study ancient forms and cases, as we
study the old English writers in general literature; because
we may extract fromn them, not only solid sense, but the best
examples of pure and undefiled language. There is a better
reason still, and that is, that special pleading contains the
quintessence of the law, and no man ever mastered it, who
was not by that very means made a profound lawyer.
Another source of improvement is in the more general
study of the doctrines of courts of equity. I do not here
address myself to those who expect to practise in such courts,
for to them it is almost unnecessary to say, that the study is
indispensable. But I address the remark to those who are
conversant only with courts of common law. The principles of equity jurisprudence are of a very enlarged and ele20 *




234            MISCELLANEOUS WRITINGS.
vated nature. They are essentially rational, and moulded
into a degree of moral perfection which the law has rarely
aspired to. The arguments in courts of this sort abound with
new views and elementary discussions. They present strong
and brilliant contrasts to some of the perplexed notions of
the old common law; and not unfrequently confirm and illustrate doctrines strictly legal, by unfolding new analogies, and
expounding the nature and limits of principles, in a manner
full of instruction and interest. It is a great mistake to confine our juridical researches to the narrow path, in which we
mean to tread. There is no great mind but feels itself
cramped and fettered by such a course; and no moderate
mind but becomes thereby ground up into the most dusty
professional pedantry. The great branches of jurisprudence
mutually illustrate and support each other. The principles
of one may often be employed with the most captivating
felicity in aid of another; and in proportion as the common
law becomes familiar with the lights of equity, its own code
will become more useful and more enlightened.  In our
country, the study of equity jurisprudence has not, until
within a few years, attracted general attention; and in New
England, from causes which have been already alluded to, it
has fallen into more neglect than our advances in other
branches of the law would justify or excuse.
Connected with this, and, as a mine abounding with the
most precious materials, to adorn the edifice of our jurisprudence, is the study of the foreign maritime law, and, above
all, of the civil law. Where shall we find more full and masterly discussions of maritime doctrines, coming home to our
own bosoms and business, than in the celebrated Commentaries of Valin? Where shall we find so complete and practical a treatise on insurance as in the mature labors of Emerigon? Where shall we find the law of contracts so extensively, so philosophically, and so persuasively expounded, as
in the pure, moral, and classical treatises of Pothier? Where
shall we find the general doctrines of commercial law so




PROGRESS OF JURISPRUDENCE.          235
briefly, yet beautifully, laid down, as in the modern commercial code of France? Where shall we find such ample general principles to guide us in new and difficult cases, as in that
venerable deposit of the learning and labors of the jurists of
the ancient world, the Institutes and Pandects of Justinian?
The.whole continental jurisprudence rests upon this broad
foundation of Roman wisdom; and the English common
law, churlish and harsh as was its feudal education, has condescended silently to borrow many of its best principles from
this enlightened code.1 The law of contracts and personalty,
of trusts, and legacies, and charities, in England, has been
formed into life by the soft solicitudes and devotion of her
own neglected professors of the civil law.
There is no country on earth which has more to gain than
ours by the thorough study of foreign jurisprudence. We
can have no difficulty in adopting, in new cases, such principles of the maritime and civil law, as are adapted to our
own wants, and commend themselves by their intrinsic convenience and equity. Let us not vainly imagine that we
have unlocked and exhausted all the stores of juridical wisdom and policy. Our jurisprudence is young and flexible;
but it has withal a masculine character, which may be refined and exalted by the study of the best models of antiquity. And the structure of our state and national governments, while it easily admits of the incorporation of foreign
maritime principles, at the same time makes it safe, useful,
and commendable.
There is yet another study which may well engage the
attention of American lawyers, and be, in the language of
Lord Coke, both honorable and profitable to them. I mean
the study of the law of nations. This is at all times the
duty, and ought to be the pride of all, who aspire to be
statesmen; and, as many of our lawyers become legislators,
it seems to be the study to which, of all others, they should
1 See 12 Mod. 482, by Lord Holt.




236             MISCELLANEOUS WRITINGS.
most seriously devote themselves. Independently of these
considerations, there is nothing that can give so high a finish,
or so brilliant an ornament, or so extensive an instruction, as
this pursuit, to a professional education. What, indeed, can
tend more to exalt and purify the mind, than speculations
upon the origin and extent of moral obligations; upon the
great truths and dictates of natural law; upon the immutable principles that regulate right and wrong in social and
private life; and upon the just applications of these to the
intercourse, and duties, and contentions of independent nations?  What can be of more transcendent dignity, or better fitted to employ the highest faculties of genius, than the
development of those important truths, which teach the duties of magistrates and people; the rights of peace and war;
the limits of lawful hostility; the mutual duties of belligerent and neutral powers; and which aim at the introduction
into national affairs of that benign spirit of Christian virtue,
which tempers the exercise even of acknowledged rights with
mercy, humanity, and delicacy? If the science of jurispru.
dence be, as it has been eloquently described to be, " the pride
of the human intellect," and "the collected reason of ages,
combining the principles of original justice with the infinite
variety of human concerns," where can we find more striking
proofs of its true excellence, than in the study of those maxims, which address themselves to the best interests and the
most profound reflections of nations, and call upon them, as
the instruments of Providence, to administer to each other's
wants, to check inordinate ambition, to support the weak,
and to fence in human infirmity, so that it can scarcely
transcend the bounds of established rules, without drawing
after it universal indignation and resistance? Yet, how few
have mastered the elementary treatises on this subject, the
labors of Albericus Gentilis, and Zouch, and Grotius, and
Puffenldorf, and Bynkershoek, and Wolfius, and Vattel?
How few have read with becoming reverence and zeal the
decisions of that splendid jurist, the ornament, I will not say




PROGRESS OF JURISPRUDENCE.         237
of his own age or country, but of all ages and all countries;
the intrepid supporter equally of neutral and belligerent
rights; the pure and spotless magistrate of nations, who has
administered the dictates of universal jurisprudence with so.
much dignity and discretion in the Prize and Instance Courts
of England? Need I pronounce the name of Sir William
Scott?  How few have aspired, even in vision, after those
comprehensive researches into the law of nations, which the
Introductory Discourse of Sir James Mackintosh has opened
and explained with such attractive elegance and truth?
Such are some of the studies from which American jurisprudence may, in my humble judgment, derive essential improvements; and I cannot but indulge the belief that they
will be eagerly sought and thoroughly examined by the good
and the wise of succeeding ages.
The mass of the law is, to be sure, accumulating with an
almost incredible rapidity, and with this accumulation, the
labor of students, as well as of professors, is seriously augmenting. It is impossible not to look without some discouragement upon the ponderous volumes, which the next half
century will add to the groaning shelves of our jurists. The
habits of generalization, which will be acquired and perfected
by the liberal studies, which I have ventured to recommend,
will do something to avert the fearful calamity, which threatens us, of being buried alive, not in the catacombs, but in
the labyrinths of the law. I know, indeed, of but one adequate remedy, and that is by a gradual digest, under legislative authority, of those portions of our jurisprudence, which,
under the forming hand of the judiciary, shall from time to
time acquire scientific accuracy. By thus reducing to a text
the exact principles of the law, we shall, in a great measure,
get rid of the necessity of appealing to volumes which contain jarring and discordant opinions; and thus we may pave
the way to a general code, which will present, in its positive
and authoritative text, the most material rules, to guide the
lawyer, the statesman, and the private citizen. It is obvious




238            MISCELLANEOUS WRITINGS.
that such a digest can apply only to the law, as it has been
applied to human concerns in past times. But by revisions
at distant periods it may be made to reflect all the light which
intermediate decisions may have thrown upon our jurisprudence. To attempt more than this would be a hopeless labor,
if not an absurd project. We ought not to permit ourselves
to indulge in the theoretical extravagances of some wellmeaning philosophical jurists, who believe that all human
concerns for the future can be provided for in a code, speaking a definite language. Sufficient for us will be the achievement, to reduce the past to order and certainty; and that
this is within our reach cannot be matter of doubtful speculation. It has been already accomplished in a manner so triumphant, that no cavil has been able to lessen the fame of
the authors. The Pandects of Justinian, imperfect as they
are, from the haste in which they were compiled, are a monument of imperishable glory to the wisdom of the age; and
they gave to Rome, and to the civilized world, a system of
civil maxims, which has not been excelled in usefulness and
equity. They superseded at once the immense collections of
former times, and left them to perish in oblivion; so that, of
all the ante-Justinianean jurisprudence, little more remains
than a few fragments, which are now and then recovered
from the dust and rubbish of antiquity, in the Codices Rescripti of some venerable libraries. The modern code of
France, - embracing, as it does, the entire elements of her
jurisprudence in the rights, duties, relations, and obligations
of civil life; the exposition of the rules of contracts of every
sort, including commercial contracts; the descent, distribution, and regulation of property; the definition and punishment of crimes; the ordinary and extraordinary police of the
country; and the enumeration of the whole detail of civil
and criminal practice and process, - is perhaps the most finished and methodical treatise of law, that the world ever saw.
This code forms also the law of Holland, and, with comparatively few alterations, has been solemnly adopted as its fun



PROGRESS OF JURISPRUDENCE.          239
damental law by the State of Louisiana. The materials of
it were to be sought for among an almost infinite variety of
provincial usages and customary laws; and were far more
difficult to reduce into system than any which belong to the
common law. It is left to the future jurists of our country
and England to accomplish for the common law, what has
thus been so successfully demonstrated to be a practical problem in the jurisprudence of other nations; a task which the
modest but wonderful genius of Sir William Jones did not
scruple to believe to be within the reach of a single mind
successfully to accomplish.
Gentlemen, — I have thus endeavored, not as I could wish,
but as I have been able, amidst the cares of private life, and
the distractions of official business, to lay before you some
imperfect sketches of the past history of the law, of its future
prospects, and of the sources, whence we may derive improvement. May I add, in the language of the eminent living
jurist (Sir James Mackintosh)' whom I have already cited,
that " there is not, in my opinion, in the whole compass of
human affairs, so noble a spectacle as that which is displayed
in the progress of jurisprudence; where we may contemplate
the cautious and unwearied exertions of a succession of wise
men through a long course of ages, withdrawing every case,
as it arises, from the dangerous power of discretion, and
subjecting it to inflexible rules; extending the dominion of
justice and reason; and gradually contracting, within the
narrowest possible limits, the domain of brutal force and of
arbitrary will."
If, in the discussion of these topics, I have suggested a
single hint, that may cheer the student in his laborious devotion to the elements of the law; or have awakened in the
mind of a single advocate another motive to quicken his eloquence or zeal, my humble labor will not be without its consolations. We are all bound by the strong ties of civil obli1 Introd. Disc. 62.




240             MISCELLANEOUS WRITINGS.
gation, by professional character, by patriotic pride, and by
moral feelings, to cultivate and extend this interesting science. No bar in America is more justly entitled to public
confidence than that of my native state; and none may
more justly claim respect for its moral, literary, and juridical
elevation, than that which I have now the honor to address.
Much, however, remains to be done, to satisfy a just ambition for excellence; and every day's experience admonishes
us, that life is short, and art is long, furnishing motives at
once to excite our diligence, and to restrain an undue ardor
in any human pursuit.
When, indeed, I look round, and contemplate the ravages
which death has made during my own brief career, not only
among the sages of the law, but among those in the fresh
bloom of youth, just struggling for distinction,-the consideration fills me with the most profound melancholy. Since
we were convened here on the last anniversary, the modest
and accomplished Gallison has closed his useful life, and
buried with him many a brilliant hope of his parents, friends,
and country. I will not dwell upon his distinguished talents
and virtues, his blameless innocence of life, his elevated
piety, his unwearied diligence, his extensive learning, his
ardent devotion to literature, his active benevolence, exhausting itself in good deeds, and "blushing to find it fame."
You knew him well, and your sympathies have mingled with
the tears and sorrows that embalm his memory. But I may
propose him as an example, polished, if not perfect, of that
excellence, which the studies I have this day ventured to
recommend, are calculated to produce. Tacitus has recorded
with affectionate solicitude the life and character of Agricola.
May I be permitted to borrow from his admirable page a
single passage, to grace the memory of my lamented friend
and pupil?  "Placide quiescas, nosque, domum tuam, ab
infirmo desiderio et muliebribus lamentis ad contemplationem
virtutum tuarum voces, quas neque lugeri, neque plangi fas
est; admiratione te potius quam temporalibus laudibus, et si




PROGRESS OF JURISPRUDENCE.         241
natura suppeditet, aemulatione decoremus. Is verus honos,
ea conjunctissimi cujusque pietas."
We, too, must soon pass away to the tomb, where our
friends and instructors, the Ameses, the Sullivans, and the
Dexters, the Lowells, the Danas, the Parsonses, and the Sewalls, are gone before us. We cannot be indifferent to the
fate of our children, or our country; and the happiness, as
well as the honor of both, is indissolubly connected with the
faithful administration of justice. Nor ought we to disguise,
that that science which has been the choice of our youth, and
the ambition of our manhood, has much in its milder studies
to soothe and cheer us in the infirmities of old age. Nor can
it be deemed a human frailty, if, when we take our last farewell of the law, we " cast one longing, lingering look behind,"
and bless those rising lights, which are destined to adorn our
juridical tribunals, however dimly they may be descried by
our fading vision.
May our successors in the profession look back upon our
times, not without some kind regrets, and some tender recollections. May they cherish our memories with that gentle
reverence which belongs to those who have labored earnestly,
though it may be humbly, for the advancement of the law.
May they catch a holy enthusiasm from the review of our
attainments, however limited they may be, which shall make
them aspire after the loftiest possessions of human learning.
And thus may they be enabled to advance our jurisprudence
to that degree of perfection, which shall make it a blessing
and protection to our own country, and excite the just admiration of mankind.
21




MEMORIAL AGAINST RESTRICTIONS ON COMMERCE,
ADDRESSED TO THE CONGRESS OF THE UNITED STATES, JUNE, 1820, IN
BEHALF OF THE MERCHANTS AND OTHERS, INTERESTED IN COMMERCE IN SALEM AND ITS VICINITY, ON THE DISCONTINUANCE OF
CREDITS ON REVENUE BONDS, THE ABOLITION OF DRAWBACKS, AND
OTHER RESTRICTIONS ON COMMERCE PROPOSED IN CONGRESS.
THE undersigned Memorialists, Merchants and Inhabitants
of Salem, in the Commonwealth of Massachusetts, and of the
towns in its vicinity, beg leave most respectfully to represent: — That they have seen, with unfeigned regret and surprise, some propositions recently brought forward in Congress,
and others advocated by respectable portions of the community, which, in their humble opinion, are calculated seriously
and certainly to injure, if not eventually to destroy, some of the
most important branches of the commerce and navigation of
the United States.
The Memorialists have not the slightest intention of casting any imputation of unworthy motives upon those, from
whom, on this occasion, they feel themselves compelled to
differ in the most decided manner. They are ready to admit,
that many of those who are inclined to revive commercial
prohibitions and restrictions, and to change some of the
fundamental rules of our financial policy, are governed by
motives solely suggested by their own views of the national
interests. They are free also to admit, that the manufacturing interests of the country deserve to receive the fostering care and patronage of the government. But, while they
make these admissions, they also beg leave to suggest, that




MEMORIAL AGAINST RESTRICTIONS ON COMMERCE.  243
the interests of commerce are not less vital to the welfare and
prosperity of the Union, than manufactures; and that it
never can be a souid or safe policy to build up the one upon
the ruins of the other. Under a wise and enlightened revenue
system, the commerce of our country has hitherto advanced
with a rapidity and force which have exceeded the most
sanguine expectations of its friends. This commerce has
contributed largely to the employment of the capital, the
industry, and the enterprise of our citizens. It has quickened
the march of agriculture; and by increasing the value, as
well as amount, of its products, has given to the planters
and husbandmen a reward in solid profit for their toils. It
has also materially sustained the credit and finances of the
nation, by insuring a regular and growing revenue, through
a taxation scarcely felt, and cheerfully borne by all classes of
our citizens. It has also given birth to our naval power, by
fostering a hardy race of seamen, and patronizing those arts,
which are essential to the building, preservation, and equipment of our ships. It has greatly enlarged, and, the Memorialists had almost said, created, the moneyed capital of the
country. And the Memorialists believe, that it cannot be
too frequently or deeply inculcated as an axiom in political
economy, that productive capital, in whatever manner added
to the stock of the country, is equally beneficial to its best
interests. Its real value can never be ascertained by the
sources, from whence it flows; but from the blessings which
it dispenses. A million of dollars added to the productive
capital by commerce, is at least as useful as the same sum
added by manufactures.
The benefits of the commerce of the United States which
have been enumerated are not deduced from theoretical
reasoning; they are established by thirty years' experience,
since the constitution was adopted. At that time our capital
was small, and had suffered for a series of years a continual
diminution. Our agriculture was depressed, and our finances
were embarrassed. The changes, which a thrifty commerce




244            MISCELLANEOUS WRITINGS.
during this period has contributed to produce, are so striking,
that they scarcely require to be stated. There is not a single
portion of the country, that has not felt its beneficial influence. On the seaboard, we have everywhere flourishing
towns and cities, the busy haunts of industry, where the
products of our soil are accumulated on their transit to
foreign countries. In the interior, hundreds of towns have
arisen in places, which but a few years since were desolate
wastes or dreary forests. The agriculture of the old states
has grown up, and spread itself in a thousand new directions;
and our cotton and our wheat, our tobacco and our provisions, are administering to the wants of millions, to whom
even our very name was but a short time ago utterly unknown.
The Memorialists would respectfully ask, if it be not a part
of the duty of a wise nation to profit by the lessons of experience? Is it just, is it salutary, is it politic, to abandon
a course, which has so eminently conduced to our welfare,
for the purpose of trying experiments, the effect of which
cannot be fully ascertained, which are founded upon merely
theoretical doctrines, at best complex and questionable, and,
it may be, in practice, ruinous as well to morals as to property? Suppose it were practicable to arrest the present
course of commerce, to narrow its limits, and even to reduce
it to the mere coasting trade of the nation, is it clear, that the
capital thus withdrawn from commercial pursuits could be
as usefully or as profitably employed in any other branch of
business? It is perfectly certain, that such a change must
be attended with severe losses to the merchants, and with
ruin to numerous classes of our citizens, to our seamen, and
shipwrights, and other artisans, whose business depends on,
or is connected with, commerce. Cases may possibly arise,
in which the interests of a respectable portion of the community may be justly sacrificed; but they are cases of extreme
public necessity; not cases, where the rivalry and the interests of one class of men seek to sustain themselves by the




MEMORIAL AGAINST RESTRICTIONS ON COMMERCE.  245
destruction of another. In a free country, too, it may well
be asked, if it be a legitimate end of government to control
the ordinary occupations of men, and to compel them to
confine themselves to pursuits, in which their habits, their
feelings, or their enterprise, forbid them to engage. While
the manufacturers are left free to engage in their own peculiar pursuits, enjoying in common with others a reasonable
protection from the government, the Memorialists trust, that
it is no undue claim on their own part to plead for the freedom of commerce also, as the natural ally of agriculture
and naval greatness. Nothing, however, can be more obvious, than that many of the maufacturers and their friends are
attempting, by fallacious staternents, founded on an interested
policy or a misguided zeal, or very short-sighted views, to
uproot some of the fundamental principles of our revenue
policy, and to compel our merchants to abandon some of the
most lucrative branches of commerce, —-branches, which alone
enable us to contend with success against the monopoly and
the competition of foreign nations.
It is not a little remarkable, too, that these attempts, to
which the Memorialists allude, are not only repugnant to
those maxims of free trade, which the United States have
hitherto so forcibly and perseveringly contended for, as the
sure foundation of national prosperity; but they are pressed
upon us at a moment, when the statesmen of the Old World,
in admiration of the success of our policy, are relaxing the
rigor of their own systems, and yielding themselves to the
rational doctrine, that national wealth is best promoted by a
free interchange of commodities upon principles of perfect
reciprocity. May the Memorialists be permitted to say, that
it would be a strange anomaly in America to adopt a system
which sound philosophy is exploding in Europe; to attempt
a monopoly of the home market, and yet claim an entire
freedom of commerce abroad; to stimulate our own manufactures to an unnatural growth by the exclusion of foreign
manufactures, and yet to expect that no retaliatory measures
21*




246           MISCELLANEOUS WRITINGS.
would be pursued by other nations. If we are unwilling to
receive foreign manufactures we cannot reasonably suppose
that foreign nations will receive our raw materials. WMe may
force other nations to seek an inferior market for their productions; but we cannot force them to become buyers when
they are not sellers, or to consume our cottons when they
cannot pay the price in their own fabrics. We may compel
them to use the cotton of the West Indies, or of the Brazils,
or of the East Indies, or the wheat of the Mediterranean, an
experiment in itself sufficiently dangerous to some of our
most vital interests; but we cannot expect them to carry on
with us a ruinous trade when the profit is all on one side.
Nations, like individuals, will pursue their own interests, and
sooner or later abandon a trade, however fixed may be its
habits, where there is no reciprocity of benefit.
There is another consideration which the Memorialists
would respectfully suggest, that is entitled, in their opinion,
to great weight on questions of this nature, and that is, the
dangers and inconveniences which fluctuations in the commercial policy of a natioh unavoidably produce. The trade
of a nation is of gradual growth, and forms its channels by
slow and almost imperceptible degrees. Time, and confidence, and protection, and experience, are necessary to give
it a settled course. It insinuates itself into the general commerce of the world with difficulty; and when incorporated
into the mass, its ramifications are so numerous and intricate
that they cannot be suddenly withdrawn without immense
losses and injuries. Even the temporary stoppage of but a
single branch of trade throws thousands out of employment;
and by pressing the mass of capital and shipping which it
held engaged in its service, into other branches, it is sure to
produce embarrassment and depression, and not unfrequently
ruin to the ship-holders and the merchants. Besides all this,
men are slow to engage their capital in new pursuits. They
have a natural timidity in embarking in enterprises to which
they are not accustomed; and, if the commercial policy of




MEMORIAL AGAINST RESTRICTIONS ON COMMERCE.  247
the nation is fluctuating, they feel so much insecurity in it
that they are unwilling to yield themselves up even to prospects apparently inviting. No nation ever prospered in commerce until its own policy became settled, and the channels
of its trade were worn deep and clear. It is to this state of
things that the capitalist looks with confidence; because he
may conclude, that if his profits are but small, they are subject to a reasonable certainty of calculation. Another state
of things may suit the young and enterprising speculators;
but it can never be safe for a nation to found its revenue
upon a trade that is not uniform in its operations. The
Memorialists most sincerely believe that it is a sound political maxim, that the more free trade is, and the more widely
it circulates, the more sure will be its prosperity, and that of
the nation. Every restriction which is not indispensable for
purposes of revenue, is a shoal which will impede its progress, and not unfrequently jeopard its security.
Having made these preliminary observations, which they
cannot deem unworthy of the serious attention of the national legislature, the Memorialists now beg leave more particularly to call the attention of Congress to the measures
which have been recently proposed and apparently approved,
for the purpose of prohibiting the introduction of foreign
woollen and cotton goods, and, as auxiliary thereto, the
abolition of drawbacks and credits upon the duties due upon
goods imported into the United States; measures, which, if
adopted, will, in the opinion of the Memorialists, bring a premature decay and a general distress upon the whole commercial and agricultural interests of the nation.
It has been suggested, both in and out of Congress, when
measures have been heretofore proposed, having a direct
bearing upon commercial interests, that the silence of merchants ought justly to be considered as an acquiescence in
the justice and policy of such measures. Truth compels the
Memorialists to say, that the reverse has generally been the
case. The merchants of our country have had a deep, and,




248            MISCELLANEOUS WRITINGS.
it is hoped, not an ill-founded confidence in the firmness, the
wisdom, and enlightened policy of Congress. They have
not been prepared to suppose that old and well-tried and
successful systems would be abandoned merely because they
were assailed by those whose interests or whose mistaken
zeal led them to plan their overthrow. They have believed,
(nor is it an idle or vain credulity,) that our statesmen,
selected from the whole community, would watch with
anxiety and diligence over the interests of all; and that they
would distinguish the natural biases of those whose judgments were blinded by a partial view of their own interests,
from the just influences of superior political foresight, aided
by the most comprehensive knowledge. On many occasions,
therefore, in which their interests have been assailed, and, as
the Memorialists think, injuriously assailed, the merchants
have been silent, not from indifference, but from confidence;
not from a sense of propriety and justice, but from a proud
belief, that their interests were safe when they were understood; and that the national legislature could not be presumed to want knowledge or inclination to protect them.
On the present occasion, however, so wide have been the
exertions of the manufacturers, so plausible some of their
statements, and so popular, though delusive, some of their
doctrines, that the Memorialists feel themselves called upon
to resist them in the most serious manner, as injurious to the
country, and to throw themselves upon the intelligence and
firmness of the representatives of the nation to vindicate their
rights.
The subjects of drawbacks, and of credit upon duties, are
intimately connected in their general aspects; but at the
same time admit of some distinct views, which may well
entitle them to separate consideration. Both of them originated at the earliest period of our government, and were
incorporated into our first revenue laws. Both of them had
the unequivocal approbation of our most enlightened statesmen of that day; and both of them  have the sanction of




MEMORIAL AGAINST RESTRICTIONS ON COMMERCE.  249
nearly thirty years of experience in their favor. At no period
of our political history, until the present, has any doubt been
publicly breathed, at least to the knowledge of the Memorialists, of their practical advantages; and during this whole
period, our commerce has been progressively increasing.
Almost all commercial nations, too, have a system, analogous to ours, ingrafted into their revenue regulations. In
all, it is believed, a discrimination is made between goods
imported for home consumption, and those designed for exportation; and the duties on the latter are very trifling, especially when compared with the duties usually paid on the
former. In respect to credit for duties, the known equivalent
is the deposit of the goods in entrepot; and the duties are
paid only after a limited period, or upon an eventual sale in
the domestic market. In Great Britain, to whose system of
revenue ours bears the strongest resemblance, imported goods
are warehoused under the joint direction and keys of the
government and the owner, and the duties are in general
paid when they are disposed of in the market. This system
of deposit is exceedingly expensive, and onerous, and complicated, and requires large stores in every commercial city, and
numerous officers, and is attended with injurious delay. Its
object is to give the benefit of credit to the merchant, and it
has that effect; but it is at a heavy expense to the government. In this country the same object is obtained at a very
small expense, in a much more simple way; and where the
officers of the customs act with prudence and vigilance, the
risk of loss to the government from the non-payment of the
bonds given with sureties for the duties is small, very small
indeed, compared with the expense of the other system. In
the district of Salem and Beverly, the whole amount remaining unpaid on bonds for goods imported, from the origin of
the government to the present time, deducting the debentures
due and unpaid on the same goods, is but $1562.46; yet
that district alone has furnished many millions to the revenue
of the United States.




250            MISCELLANEOUS WRITINGS.
The fact, however, that in all foreign commercial nations,
a credit is allowed for duties upon goods imported, and a
drawback is allowed directly or indirectly upon exportation,
seems to justify in an eminent degree the opinion, that the
system is useful to the public and salutary to commerce.
And the experience of this country is entirely in its favor. It
may then with some confidence be asked, Why should it be
changed? Why should we leave fact for conjecture, and
hazard new experiments in cases where the great objects of
the government have been already attained? Why should
we involve the immense manufacturing, agricultural, and
other interests, connected directly with commerce, in distress
or ruin, for the purpose of speculating in new schemes, ill
adapted to the state of our country, and whose success is yet
to be ascertained? It appears to the Memorialists, that it is
incumbent on those who would lead the nation into such
schemes, to demonstrate their wisdom and policy before they
are adopted; and not by arithmetical calculations bottomed
on visionary notions, to call upon the nation to reject the
lights already furnished by its own experience.
But it may perhaps be inquired, what are the benefits derived to commerce from a credit upon duties? The Memorialists are perfectly willing to state some of the leading
benefits, public as well as private; for in this as in almost all
the like cases, public and private interest go hand in hand.
It will not be denied that the United States, even at the
present time, does not, when compared with the great nations
in Europe, abound in moneyed capital. This is in almost
every nation a subject of slow accumulation, even under circumstances peculiarly favorable to its growth. But in a
young nation, the obstacles are generally great, from the character and various pursuits of the inhabitants, the extent of
their wants, and the rivalry and superior advantages for its
employment presented by flourishing nations. At the time
when the United States adopted its system of credits and
drawbacks on duties, its moneyed capital was very small; and




MEMORIAL AGAINST RESTRICTIONS ON COMMERCE.  251
the great policy of the government was to give every facility
for its full employment. It is obvious, that the more capital
is employed in commerce the more extensive will be its
reach, and the more revenue will be acquired by the government. Whatever of capital, naturally flowing in this channel, is withdrawn from it, and remains unemployed, is so
much lost to the commerce of the country. The duties upon
the importation of goods is on an average at least twentyfive per cent. of the value of those goods, or of the capital
employed. It follows, that, if this is immediately withdrawn
from the funds of the merchant, it is so much loss of his
commercial capital. A little detail will render this apparent.
Whenever a voyage is undertaken, the merchant invests as
much capital as he thinks necessary for the purchase of the
goods to be imported, and also as much more as will be
necessary to meet all the disbursements and expenses of the
voyage. All this is paid in advance. When the goods are
imported, they are not immediately sold. The market may
be depressed, or the goods be of slow consumption, or not be
adapted to the wants of this country, or be ultimately destined for a foreign market. In these cases, and these are
common cases, it is obvious, that no immediate sale can be
made without great sacrifices, which are wholly inconsistent
with any profitable commerce. Even when sales are effected,
they are rarely made for cash. A credit is almost universally
allowed to the purchaser, varying according to the nature of
the commodity and the demand in the market, from four to
eight, and even twelve months. Under such circumstances,
if a cash payment is required for the duties, it is obvious,
that the merchant must either, in anticipation of this demand
gradually withdraw from his other business a portion of his
capital equal to the duties; or he must divert an equal portion ready to be employed in another voyage; or he must
procure money upon credit from other sources, loaded with
the payment of interest; or he must consent to make enormous sacrifices by an immediate, forced sale. If he be a pru



252            MISCELLANEOUS WRITINGS.
dent, cautious merchant, this very circumstance will operate
to prevent him from employing his whole capital in commerce, lest he should be compelled to make ruinous sacrifices;
or, by a mere temporary depression of the market, be exposed
to the most painful embarrassments. It is with the express
view of preventing this palsy upon commercial operations,
that a credit upon duties has been allowed by the wise and
great men who have hitherto governed our country; and this
credit is carefully adjusted to the different portions of our
trade, so as to form a credit equal in a general view to the
time consumed and credit allowed before the merchant receives his money upon the sales of the goods upon which the
specific duties have accrued.
In confirmation of this general statement, the Memorialists
would respectfully call the attention of Congress to the East
India trade, a trade in which Salem has been long, and
deeply, and successfully engaged, a trade too which, however
decried by the misguided zeal of some, and the interested
suggestions of others, has largely contributed to the revenue
of the United States, and yields not in importance to any
other branch of commerce. Voyages to the East Indies are
undertaken at very heavy expense, and with proportionably
large capitals. The goods which are brought home consist
of articles either of such high prices, or such slow consumption, or of such bulk and quantity, as require a considerable
length of time before they can be sold at a reasonable profit,
and the money actually realized upon the sale. The home
market, too, for many of these goods is so limited, that ultimately a reexportation to Europe becomes indispensable;
and after a second voyage thus undertaken, the proceeds find
their way by a circuitous remittance to England; and then
again, before the merchant can realize his funds he must
have notice of the remittance, and be able to sell his exchange
at a reasonable rate in the market. It is not uncommon for
cargoes designed for home consumption, to remain on hand
for six months, and sometimes a twelvemonth; and, when




MEMORIAL AGAINST RESTRICTIONS ON COMMERCE.  253
sales are effected, the usual credit is from four to eight and
twelve months. So that, even with the credit for duties
allowed in this trade, it usually happens, that the first and
second instalments become due before the proceeds of the
sales have been realized, and not unfrequently before the
cargoes have been finally disposed of.  Yet the duties on
these voyages are exceedingly heavy, amounting in some
cases to $100,000, — a sum, which even our wealthiest
merchants could not readily advance, and which would rmaterially check even their commercial expeditions. It is not
too much to declare, that in all probability an abolition of
the credit on duties would immediately occasion a diminution of the East India trade one quarter part; and, of course,
it would occasion a proportionate diminution of our revenue,
and of employment to those whose bread is as hardly earned,
and whose lives are as dear, and whose welfare is as important to the country as those of the manufacturers, who seek
to found their own fortunes upon the ruins of this commerce.
Some of the ill effects which would result from the abolition of this credit will be obvious to the most careless observer. There is no pretence to say, that there is a superabundance of moneyed capital in our country. The universal
opinion proclaims in a manner too audible and too distinct
to be misunderstood, that much of the public distress arises
from a deficiency of capital. The first effect, therefore, of the
abolition of this credit would be a diminution of active
capital engaged in trade and yielding a profit. It would be
hoarded up to meet the anticipated demands of the government for accruing duties. The revenue would, as has been
already intimated, immediately suffer. But other evils of a
still graver cast would ensue. Men of small capitals could
no longer engage in trade; and, least of all in trade, where
the voyages are long and the returns slow. Capitalists, and
they alone, could successfully carry on the great branches of
commerce; and in their hands it would become a monopoly,
which they might wield and manage at their own pleasure.
22




254            MISCELLANEOUS WRITINGS.
The young and enterprising merchants would be crushed in
their attempts at competition, and would be compelled to
navigate only in those narrow channels where trade almost
stagnates or yields a scanty subsistence. Another necessary
result would be the enhancement of the prices of all foreign
articles of domestic consumption.  The merchant would
charge an interest and profit upon every advance made to the
government in the shape of duties; and thus the consumer,
upon whom all such charges ultimately fall, would pay these
additional charges, together with the enhanced price, which
a smaller importation, with an equal demand would necessarily produce. These are evils of no ordinary magnitude;
and it is confidently believed, that no wise legislature would
introduce them upon mere speculations, thus taxing the
whole for the conjectural benefit of the few.
In respect to drawbacks, some additional considerations
seem necessary to be stated, inasmuch as the subject has
been greatly misunderstood by some of those, who advocate
their abolition. The drawback of duties is allowed upon
importations of goods into the country, which are reexported
within a year from the time of their entry. The object of the
system is to increase the navigation and commerce of the
country, by securing to our citizens a carrying trade between
distant and foreign nations, in commodities, which are either
unsuitable to our market, or of which a great surplus is imported. In every such case, the government derives a direct
revenue of two and one half per cent. on the duties of the
reeixported goods, this amount being always retained. This
is a positive benefit to the government. It is obvious that, if
no drawback were allowed upon such reexportation, no surplus beyond the consumption would ever be imported. For,
upon such reixportation, the goods would be loaded with the
whole duty, and the merchant could not afford to sell them
so cheap in the foreign market by the full amount of that
duty, which would much exceed the whole profit reasonably
to be expected upon the goods. Under such circumstances,




MEMORIAL AGAINST RESTRICTIONS ON COMMERCE.  255
the shipping and capital of foreign merchants would be exclusively engaged in the carrying trade, and all the benefits
of an increased employment for our seamen, our shipwrights,
and our ships, including freight and profits, would be entirely
lost. This is stated upon the supposition that such a trade
could not be carried on, except circuitously, and after an
actual importation into the United States. And this is regularly true in respect to the whole trade with the British East
Indies, from which we are not permitted to carry on any
trade direct to Europe, but are compelled by treaty to land
the goods first in the. United States.
In respect to the other portions of the carrying trade, the
abolition of drawbacks would immediately lead to a direct
trade between foreign ports, whenever foreign nations would
permit our merchants to engage in it. This would compel
them to equip, repair, and mnan their ships in Europe, and
thus to give all their disbursements in this great trade to
foreigners. No goods would be imported into the United
States either from Europe or India, which were not indispensable for our consumption; and this diminished supply of
the home market would increase speculation, and tend to
produce, in a very great degree, alternating fluctuations from
a depressed to a high market.  Comnfercial adventures
would be thereby rendered more hazardous and precarious,
since the foreign market would be ordinarily cut off after an
importation into the United States; and if at any moment
the foreign market should happen to be so high, as to justify
an exportation, an artificial scarcity, far beyond what can
now ever arise, would immediately ensue in the United
States.  The abolition of drawbacks would, in this view,
operate as a direct tax upon the consumers in this country.
It would diminish the productive revenue, and give a foreign
character to our seamen and commerce, instead of concentrating both, as their home, in the bosom of the country.
Nor should it be forgotten how highly important the carrying
trade has hitherto been, and how much it has increased our




256             MISCELLANEOUS WRITINGS.
moneyed capital. During the years 1802, 1803, and 1804, the
drawbacks allowed on an average of these years considerably exceeded a quarter part of the duties secured to the government. In the succeeding years 1805, 1806, and 1807,
they constituted more than a third of the whole duties. So
that on an average of these six years, the last three of which
were the most prosperous years of our commerce, the carrying trade constituted nearly one third of our whole foreign
commerce. And although this carrying trade be now, from
the general state of the world, somewhat diminished, yet it
still remains one of the most lucrative branches of our commerce, and yields a steady revenue to the government.
Under this aspect of the subject, the Memorialists would
respectfully inquire whether the abolition of drawbacks would
not be disastrous to the most important interests of our
country, and dry up some of the best sources of our national
glory, as well as of our national wealth. Let it be considered, also, that the policy of all commercial nations has uniformly dictated the same course; and that drawbacks, or
their equivalent, are uniformly held out as an encouragement
to importations; and thus the supply is always kept considerably above the domestic consumption, and enterprise and
industry are protected and rewarded. Will America be the
first to abandon a policy by which she has so greatly profited?
At the very moment when her commerce is gasping for life,
from the accumulated competitions of foreign nations, zealous for their own interests, will she aid the blows aimed at
its existence, and consign it to a premature destruction?
The next subject to which the Memorialists would respectfully ask the attention of Congress, is a measure very pertinaciously and zealously advocated by manufacturers and
their friends - they mean, the entire prohibition, either directly or by duties equivalent to a prohibition, of the importation of cotton and woollen goods. That the tariff of duties
now existing is singularly favorable to manufacturers, the
Memorialists had supposed would have been freely admitted.




MEMORIAL AGAINST RESTRICTIONS ON COMMERCE.  257
Whatever articles are useful for domestic manufactures pay
but a trivial duty; whatever articles can be wrought here are
loaded with a heavy duty, varying from fifteen to thirty per
cent. ad valorem.  The duty upon East India cottons is
indeed enormous, and practically amounts to a total probibition. The coarser fabrics of cotton in the British East Indies
cost about six cents a square yard, and were formerly imported in large quantities into the United States, and supplied the poorer classes of citizens with necessary though
humble clothing. The tariff directs all such cottons to be
estimated at the cost of twenty-five cents per square yard,
and levies upon them, therefore, a duty of one hundred per
cent., or a sum equal to their original cost. During the years
1802, 1803, and 1804, the average imports from the British
East Indies were about $3,500,000, of which a little short of
$3,000,000 were goods paying ad valorem duties, being principally white cotton goods. In 1807 the goods paying ad
valorem duties, imported from the same places, had increased
to upwards of $4,000,000. In the same year fifteen ships
were employed in this trade from the town of Salem alone.
In the past year two ships only have been so employed; and
for the four years last past, no cotton piece goods have been
imported into this town for home consumption, the duty
alone amounting to a prohibition. The sacrifice of this
branch of our trade alone has very seriously affected the
whole mercantile community engaged in East India commerce, and has nowhere been more sensibly or injuriously
felt than in Salem. It has operated, too, as an excessive tax
upon the poorer classes of the community, who have been
compelled to buy domestic fabrics, to supply their wants at
higher prices, which their narrow means could ill afford. It
has also annually struck off from the revenue of the government the whole duty upon seven eighths of the importations
of East India cotton; that proportion having been absorbed
by the domestic consumption. The loss to our ship-owners,
and seamen, and commercial artisans, has been proportion22'




258             MISCELLANEOUS WRITINGS.
ately great. And the Memorialists cannot refrain from expressing their decided conviction that this sacrifice was not
called for by the public interests; but was a liberal indulgence granted for the exclusive benefit of the manufacturers,
and pressed upon the nation by their importunate solicitations. However painful this measure was, it was borne in
silence, under the hope, that experience would one day establish the propriety of its repeal; and that the zeal of the manufacturers would be satisfied with the destruction of one
branch of commerce, and the heavy duties imposed upon all
others. These expectations, however, have not been realized;
and the Memorialists now learn with regret that one sacrifice
is to be demanded after another, and one prohibition heaped
upon another, by the friends of manufactures, until all the
sources of foreign commerce are dried up, and domestic manufactures, sustained by enormous bounties, absorb the whole
moneyed capital of the nation. The Memorialists would most
respectfully, but most solemnly, protest against the policy and
the justice of such measures.
And what are the claims, the Memorialists beg leave
respectfully to ask, of any one class of our citizens, to throw
such enormous burdens upon the other classes of the community? Is the agricultural interest nothing? Is the commercial interest nothing? Is the interest of the public in its
revenues nothing? The cotton and woollen trade is already
loaded with twenty and twenty-five per cent. duties; and if
there be added the freight and charges upon importation, the
domestic manufacturers have now an encouragement of a
profit of from thirty to thirty-five per cent. more than the
European manufacturers possess, if the same articles can be
manufactured as cheap at home as they are abroad. In
respect to the East india cotton trade, the encouragement is
still more striking, the duties upon the coarsest fabrics in that
trade amounting, as has been already seen, to one hundred
per cent. upon the original cost. And if cotton and woollen
goods cannot be manufactured here, and sold as cheap, with




MEMORIAL AGAINST RESTRICTIONS ON COMMERCE.  259
all these differences of duty in their favor, does it not establish the conclusion, that such manufactures are not the natural
growth of our present situation, and are not adapted to the
physical, and moral, and happy condition of the people?
Why should the farmer, and the planter, and the merchant,
and the mechanic, and the laboring classes of the community,
be taxed for the necessaries of life a sum equal to more than
one quarter part of their whole expenditures on these objects,
that the manufacturers may put this sum into their own
pockets?
The Memorialists are no enemies to manufactures; but
they most sincerely express it as their deliberate judgment
that no manufactures ought to be patronized in the country
which will not grow up and support themselves, in every
competition in the market, under the ordinary protecting
duty; that the only manufactures which can ultimately
flourish here, are those which are of slow growth and moderate profit; such as can be carried on by capitalists with
economy and steadiness; and that a change of system, which
should suddenly introduce great profits, by encouraging undue speculation, and the expectation of inordinate gain would
end in the deepest injuries even to manufacturing establishments. The history of the cotton manufactories in New
England completely demonstrates the truth of these positions.
They grew up gradually under the protection of our ordinary
duties in a time of peace, and were profitable to those engaged in them. But when the embargo and non-importation systems produced a deficiency in the foreign supply, a
feverish excitement was produced; manufactories were established without sufficient capital; extravagant expenditures
in buildings and machinery followed. For a while the demand
was great and the profits high; but, upon the return of the
ordinary state of things, many of these establishments sunk,
one after another, and involved their owners in ruin. And
such, in the opinion of the Memorialists, would be the scene
acted over again in a few years if the manufacturers could




260            MISCELLANEOUS WRITINGS.
now succeed in accomplishing their present objects. For a
short time their establishments would flourish. But in a free
country like ours, there would be a reaction of the other
great interests of the community; and the national distress
and national policy would soon require a repeal of the monopolizing system. A moderate protecting duty is the best
support of domestic manufactures, for the very reason that it
may be safely calculated on as permanent. It may not encourage speculation; but it will encourage the employment
of capital, as fast as there is safety and a reasonable profit
connected with it.
Nor will the high prices and eventual insecurity to domestic manufactures be the only evils attendant upon this prohibitory system. It will encourage smuggling and frauds to
an extent truly formidable, and never yet practised in our
country; and the same effect will arise, though in a more
limited degree, from the abolition of drawbacks and credit on
duties. The utter impossibility of suppressing frauds and
smuggling, where the markets are very high, and the prohibitions very extensive, has been demonstrated by the experience of all Europe. During the most rigorous enforcement
of the continental exclusion of British manufactures, aided
by civil vigilance, and military bayonets, and despotic power,
these manufactures found their way into every part of Europe, from the cottage to the throne. Great Britain herself,
insulated as she is, and with a naval force adequate to every
object, has not been able to suppress smuggling. Prohibited
goods find their way into the United Kingdom, notwithstanding the vigilance of her custom-houses, and the unwearied
jealousy of her manufacturers. In the United States, with a
thousand miles of seacoast, indented with innumerable bays
and harbors, how can it be reasonably expected that the
temptations to illicit traffic will not soon outweigh the habits
of obedience to the laws, especially when those laws shall
become odious, as the supposed instruments of one class to
oppress another?  Hitherto our country has exhibited a




MEMORIAL AGAINST RESTRICTIONS ON COMMERCE.  261
spectacle not unworthy of a free people. Frauds upon the
revenue have been comparatively few; and smuggling has
been repressed by the general sense of the mercantile community. What system could be more disastrous than that
which should hold out permanent temptations to smuggling,
connected with a sense of the impolicy and injustice of the
laws? The Memorialists believe that one of the first objects
of legislation ought to be to make laws auxiliary to the preservation of the morals of the people, by interfering as little
as possible with pursuits consonant with their habits and
feelings, useful in their objects, and adapted to their wants.
Upon the whole, the Memorialists would respectfully state
their unequivocal opinion that all the measures to which they
have alluded, are calculated to impair our naval strength and
glory; to injure our most profitable commerce; to diminish,
in an alarming degree, the public revenue; to promote unjustifiable speculation; to enhance the prices of manufactures; to throw the great business and trade of the nation
into the hands of a few capitalists, to the exclusion of the
industrious and enterprising of other classes; to introduce
general distress among commercial artisans and agriculturists; to aggravate the present distress of the other classes of
the community; to provoke and extend an undue appetite
for fraud and smuggling; and, in fine, to destroy many of
the great objects for which the constitution of the United
States was originally framed and adopted.
The Memorialists, therefore, most respectfully ask the
interposition of Congress to prevent these great evils, and to
promote the general good by a perseverance in that system,
under the protection of which our commerce, and navigation,
and agriculture have flourished, — a system conceived in
political wisdom, justified by experience, and approved by
the soundest maxims of national economy.




GROWTH OF THE COMMERCIAL LAW.
AN ARTICLE WRITTEN FOR THE NORTH AMERICAN REVIEW, IN 1825,
ON "A TREATISE ON THE LAW OF INSURANCE, BY WILLARD PHILLIPS."
THE progress of commerce in modern times will appear
more surprising, the more minutely it is examined.  It
steadily advanced among the nations of Europe during the
whole of the eighteenth century; and in the latter half, notwithstanding occasional interruptions by war, it was probably double in extent and value, what it had ever attained in
any other equal period. Holland had, indeed, lost her maritime superiority by the destruction of her carrying trade.
But the Northern Powers, and particularly Russia, assumed a
highly commercial character. Italy was compelled to mourn
the departure of the times, when Venice, and Genoa, and
Leghorn, covered the Mediterranean with their wealth. But
France felt the invigorating influence of trade, and began to
court with respect what she had previously cherished only as
a source of revenue. Above all, British commerce during
this period enjoyed the most signal triumph. Her merchants
and mariners were familiar with the whole globe, with the
Baltic and the Levant, the Black and the White Sea, the
Atlantic and the Pacific, with the Americas and the Indies,
with the fisheries of Newfoundland and Greenland, with the
fur-trade of the Indians, the timber, hemp, and manufactures
of the North, the cottons, spices, and teas of the East, and
with the gums, drugs, ivory, and flesh of Africa. It is pro



GROWTH OF THE COMMERCIAL LAW.         263
bably short of the real state of the case to assert, that the
commercial capital of Great Britain was quadrupled during
the reign of George the Third. Of the causes of this vast
increase it is beside our present purpose to enter into an
examination. But there can be doubt that her navigation
has been essentially aided by the improved state of her manufactures, arising as well from superior skill and workmanship,
as from her wonderful inventions in cotton machinery. She
now exports to the East Indies and China cotton goods of
her own manufacture, to an immense value, which she formerly imported fiom those countries.  And the unrivalled
beauty and excellence of fabrics have not only suspended the
use of those of foreign origin within her own dorninions, but
have enabled her in a great measure, to command all the
open markets of the world.
Under such circumstances it would be a natural inference
that there had been a corresponding advancement of her
commercial law. The conclusion would seem natural, if not
irresistible, that a people distinguished for centuries by their
commercial activity and enterprise must have been under
the protection of a well-settled system of commercial jurisprudence. Philosophers and practical jurists would ask how
it would be possible for the infinite variety of business, growing out of an extensive foreign trade, to be adjusted, without
resort to some well-known rules and general principles.
Strange however, as it may seem, it is undeniable that England had made very little progress in commercial law, at so
late a period as the commencement of the reign of George
the Third. Yet she had been a commercial nation to a considerable extent, from the reign of Elizabeth; and for more
than a century had possessed plantations and colonies whose
population and trade perpetually invigorated her navigation.
A slight historical review will put this matter beyond any
reasonable controversy. One of the earliest English works
on maritime law is Malynes's Lex Mercatoria, published in
1622, in the reign of James the First. Welwood had a few




264             MISCELLANEOUS WRITINGS.
years before printed his Abridgment of the Sea Laws; but
it is principally a collection of the rules and ordinances of
foreign countries. It is remarkable that Malynes refers to no
antecedent English writer on the subject of his treatise, and,
except in a very few unimportant instances, to no English
adjudications. His work is principally a compendium  of
commercial usages not confined to England, but supposed
by him to be common to all the maritime states of Europe.
It is quite a meagre and loose performance, and contains few
principles that are now of any practical importance. He has
two or three short chapters upon bills of exchange, which
show that the doctrines upon that subject, then familiar on
the Continent, were not much known in England except as
usages among merchants. He laments, that negotiable promissory notes, which then circulated among all the commercial cities of the neighboring nations, were strangers to the
jurisprudence of England. In fact, they were not introduced
into general use, until near the close of the reign of Charles
the Second. Lord Holt, in the case of Buller v. Crisp, (6
Mod. Rep. 29,) decided in the second year of Queen Anne's
reign, said, " I remember when actions upon inland bills did
first begin; and there they laid a particular custom between
London and Bristol, and it was an action against the accepter. The defendant's counsel would put them to prove
the custom; at which Hale, Chief Justice, laughed and said,
they had a hopeful case of it." Lord Holt himself stubbornly
denied the negotiability of promissory notes; and, in this
very case of Buller v. Crisp, it was proved that these notes
had been "used for a matter of thirty years."  It is familiar
to the profession that an Act of Parliament was found necessary to put promissory notes upon the same footing as
inland bills of exchange, although "this laudable custom,"
as Malynes calls it, had been long established on the Continent. Malynes devoted five chapters, containing in all about
fifteen folio pages, to the subject of insurance. We do not
recollect, that in the whole of the discussion, a single refer



GROWTH OF THE COMMERCIAL LAW.           265
ence is made to any English adjudication. It is, indeed,
sufficiently apparent, that the author drew almost all his
materials from foreign sources. The earliest case, indeed,
that is to be found on a policy of insurance, is cited by Lord
Coke in Dowdale's case, (6 Co. 48,) as having been decided
in 30th and 31st Elizabeth; and from the manner in which
he refers to it, as well as from the point in judgment, it is
manifest that the action was then a novelty.
In 1651, Mr. Marius, a notary public, published his book,
entitled, "Advice concerning Bills of Exchange," which
went through several editions, and was the only work of
much reputation that appeared on this subject in England
until after the lapse of a century. It is altogether a practical
treatise, referring for authority to the common usages of merchants, and pretending to no aid from any acknowledged
doctrines of the English law. At the distance of fifty years
after Malynes, Mr. Molloy, a barrister-at-law, published his
work, De Jure Maritimo et Navali. The subject of insurance is despatched in one short chapter; and, though here
and there a few short notes of English cases are interspersed,
the substance is essentially what is found in Malynes. So
that it may be fairly inferred, that, during the intermediate
period little progress had been made in the true understanding of this branch of the law. Indeed, its real importance
was so imperfectly estimated by the common lawyers, that
Molloy triumphantly observes, " The policies now-a-days are
so large, that almost all those curious questions that former
ages and the civilians, according to the law marine, nay,
and the common lawyers too, have controverted, are now out
of debate.  Scarce any misfortune that can happen, or provision to be made, but the same is taken care for in the policies that are now used; for they insure against heaven and
earth, stress of weather, storms, enemies, pirates, rovers, &c.,
or whatever detriment shall happen or come to the thing
insured, &c., is provided for." This would be strong language to use even in our days, when the legal construction
23




266             MISCELLANEOUS WRITINGS.
Of the terms and the risks of policies has been settled, after
very numerous and expensive litigations. But for that day,
and from a lawyer too, the language is most extraordinary;
and could arise only from gross ignorance of the vast extent
and variety of the subject.
In respect to navigation and shipping, which now form so
large heads of commercial law, the information given by
these treatises is miserably defective. It is given in three or
four chapters containing little more than abstracts from the
laws of Oleron, and from the short maritime titles in the
civil law and its commentators. And yet these treatises, for
we need hardly advert to Mr. Magens's Essay on Insurances,
published so late as 1755, contain the substance of all English elementary collections of maritime jurisprudence, down
to the period when Lord Mansfield succeeded Sir Dudley
Ryder, as Chief Justice of the King's Bench. Nor was this
deficiency owing to the want of talents or industry on the
part of the compilers. They accumulated most of the valuable English materials within their reach. The reports furnished very few principles, and still fewer illustrations of
general application. It is true, that Lord Holt, in his famous
decision in the case of Coggs v. Barnard, in which per saltum
he incorporated the whole civil law of bailments into the
common law, led the way to a more exact understanding of
the law of shipping; but the actual application of his principles belongs to a later age.
That there is no exaggeration in this statement of the
uncertainty and defects of the English law on maritime subjects, will be still more fully evinced by reference to some of
the best authors. Mr. Justice Blackstone, in his very elegant
and classical Commentaries, a work professing to contain a
summary of the principles of English law, treats the subject
of insurance in a single paragraph; and, after defining the
contract, and showing it not to be usurious, briefly adds,
"The learning relating to these insurances hath, of late years,
been greatly improved by a series of judicial decisions, which




GROWTH OF THE COMMERCIAL LAW.         267
have now established the law in such a variety of cases, that,
if well and judiciously collected, they would form a very
complete title in a code of commercial jurisprudence. But
being founded on equitable principles, which chiefly result
from the special circumstances of the case, it is not easy to
reduce them to any general heads in mere elementary treatises." Such was the view of a very competent judge on
the state of the law in the year 1765. Mr. Park, in the introduction to his system, after adverting to the history of the
establishment of the court of policies of assurance in the
reign of Queen Elizabeth, and its having subsequently fallen
into disuse, and probably into disrepute, observes, " But,
though the court of' policies of assurance has been long disused, though it is near a century since questions of this nature became chiefly the subject of common law jurisdiction;
yet, I am sure I rather go beyond bounds, if I assert, that in
all our reporters, from the reign of Queen Elizabeth to the
year 1756, when Lord Mansfield became Chief Justice of the
King's Bench, there are sixty cases upon matters of insurance.
Even those cases which are reported are such loose notes
mostly of trials at nisi prius, containing a short opinion of a
single judge, and very often no opinion at all, but merely a
general verdict. From hence it must necessarily follow, that
as there have been but few positive regulations upon insurances, the principles on which they were founded could never
have been widely diffused, nor very generally known." Mr.
Marshall in general terms confirms these observations. After
referring to the establishment of the two great English insurance companies by the statute of 6th George I., ch. 18, he
proceeds to say, " From this time it may reasonably be supposed that all suits on policies of insurance were brought in
the courts of common law; and yet but few questions on
this subject appear to have been determined in the courts of
Westminster, before the middle of the last [eighteenth] century. Whether this arose from the number of insurances in
England being inconsiderable compared to what it has since




268             MISCELLANEOUS WRITINGS.
become, or from the parties being still in the habit of settling
their difference by arbitration, or from both these causes
united, it is not now easy to determine."  Mr. Miller gives a
similar view of the English law, and in marked terms attributes its great improvement to Lord Mansfield; and then,
speaking of his own country in 1787, adds the following
remarks: " In Scotland the improvements of this branch of
law have been still later than in England, as might be expected from the slower growth of its commerce. Although
the decisions of the principal court of justice have been
pretty regularly collected, for more than a century; yet the
first decisions, which, strictly speaking, relate to insurance,
are all, except one, within the course of the last ten years.
During this period, however, the trade of insuring has risen
to a very great height; and the decisions of the Court of
Session upon that subject have become proportionably comprehensive and systematic."
What renders this state of the English law the more
extraordinary, is the fact, that almost all the important general principles of commercial jurisprudence had, for more than
three quarters of a century, been reduced to a very clear and
practical code in France. The very early treatise on insurance, called Le Guidon, was republished by Cleirac, in his
Us et Coutumes de la Mer, in 1671. In 1673, Louis the
Fourteenth published his Ordinance upon Commerce, which,
among other things deals largely upon the doctrines of bills
of exchange and promissory notes and orders. This was
followed by the truly admirable Ordinance of 1681, in which
the whole law of navigation, shipping, insurance, and bottomry is collected in a most systematic and masterly manner.
It would be a very narrow and unjust view of these ordinances, to consider them as mere collections of the municipal
regulations of France. They are more properly collections of
those commercial principles and usages, which the experience
of merchants had found most wise and convenient in their
intercourse, and which the habits of business and the necessi



GROWTH OF TIIE COMMERCIAL LAW.        269
ties of trade, had gradually introduced into favor among all
modern maritime nations. Yet the English common lawyers,
if not profoundly ignorant of the value of this code, then passed
it by with obstinate indifference, and contented themselves
with a proud reliance on the old doctrines of Westminster
Hall, as adequate to all the exigencies of modern society.
It seems to have been thought somewhat difficult to account in a satisfactory manner for this state of things, especially as Mr. Magens, referring to the period when he wrote,
states, "It must be allowed, that the business of insurance is
carried to a much greater extent in London than in any
other country in Europe. Insurances are daily made here
on adventures by foreign ships, as well as others, whose risks
are wholly determinable in foreign dominions."  Mr. Park
and Mr. Marshall obviously consider the subject as involved
in much obscurity, and prudently, if not warily, abandon it
to the conjectures of the reader.
To us it appears to admit of a very simple solution,
although one which the pride of the profession might not
choose to point out, without confessing the fallibility of the
system. It is, that the common law was an utter stranger to
the principles of commercial jurisprudence, and slowly and
reluctantly admitted them into its bosom; so that the age
was always greatly in advance of the doctrines of the judicial tribunals. The ancient law dealt altogether in feudal
tenures and doctrines, abounding in scholastic subtilties and
refinements, and nice and curious distinctions, much better
fitted for the times of chivalry and feudal burdens, than for
the manhood of commerce. It had a narrow and technical
mode of expounding contracts, and a still more narrow and
unsatisfactory mode of enforcing them. Instead of widening its channels to accommodate the active business of life,
the whole was compelled to pass, as it might, within the ancient boundaries. The subtilties of pleading, the difficulty
of enforcing various defences, and the inconveniences of
screwing down general merits into established forms, embar.
23*




270             MISCELLANEOUS WRITINGS.
rassed every remedy upon contracts of a special nature, and
drove the parties to seek redress in the then infant, and of
course very imperfect, administration of equity.
When the spirit of English commerce had embarked vast
interests in trade, it found itself without any encouragement
from the law, and endeavored to work its way to its rights
and its duties, by the aid of lights reflected from other
countries. English merchants became familiar with foreign
usages, and soon adopted them into the habits of their business, for want of a more certain guide. These usages soon
became general; and, first, as a matter of honor, and, then
as a customary law they fastened themselves upon all the
transactions of trade. But it; was very gradually that the
common law recognized them in any shape, and always with
a cold, hesitating, and jealous caution. Slade's Case, in 4th
Coke's Reports, shows how unwilling the courts of common
law were to entertain the action of assumpsit in the plainest
cases. They clung with obstinate reverence to the old forms
of the action of debt, and found the Benchers of the Inns of
Court always ready to sound the alarm against innovations.
But the doctrine now universally admitted of giving equitable defences in evidence, and sustaining equitable claims in
the action of assumpsit, would have astonished Westminster
Hall, almost down to the period of the Revolution of 1688,
and encountered adversaries even in the days of Lord Mansfield. What would one say if he were now told, that, upon
a bargain to deliver, at a certain price, twenty quarters of
wheat every year, during the life of the party, no action
could lie for any breach of the annual delivery until the party
was dead? And yet this was certainly the law, while the
action of debt was the sole remedy, (as it was for ages,) for
debt did not lie for any breach, until all the days were incurred, that is, until the agreement was ended by the death
of the party, however inconsistent it might be with the intention of the contract. Nay, even now, the action of debt
stands on the same nicety, and cannot be brought upon a




GROWTH OF THE COMMERCIAL LAW.         271
note for money payable by instalments, until all the days of
payment are past. The sagacity of the old law discovered,
that a single action only ought to be brought upon a single
contract; and to support an action for each instalment would
be to make the contract divisible.  Such a conclusion,
though readily reconcilable with common sense and the intention of the parties, was abhorrent to the settled forms in
the Register. Such were the narrow views of the old lawyers; and the judges at length tasked their wits in supporting the new device of the action of general assumpsit, the
history of which has been given with great ability by Lord
Loughborough, in the case of Rudder v. Price, in Henry
Blackstone's Reports. How utterly inadequate must such a
system have been for the infinite diversity of contracts in our
day!
If the difficulties which have been adverted to applied to
contracts generally, they must have applied with far greater
force to commercial contracts, which are so mixed up with
usages and negotiations, unknown to the common law, and
are so loose in their terms and general in their obligations.
In fact, the Admiralty was the only court in which maritime
law was much understood or studied; and this court had the
misfortune to labor under the heavy displeasure of the courts
at Westminster. The civilians were always looked upon with
forbidding jealousy, and every effort was made to undervalue their learning, and depress the popularity of the civil
law. We know well, what were the causes of this conduct;
and do not mean to insinuate, that it was without a very
strong apology. But it is, nevertheless, true, that from this
very source, this disparaged civil law —this great fountain of
rational jurisprudence -the common law has borrowed, without acknowledgment, all that is most useful and important
in its own doctrines of contract.
It were easy to multiply these observations, and to demonstrate their correctness, by exhibiting in detail the manner, in
which the remedies upon commercial contracts were ham



272            MISCELLANEOUS WRITINGS.
pered by technical proceedings under the old law. But such
a detail would be very dry, and, though matter of curiosity,
would scarcely repay the labor of perusal, even to a professional reader. It has, indeed, often been said, that the lawmerchant is a part of the common law of England; and my
Lord Coke has spoken of it in this manner in his Institutes;
though it would be somewhat difficult to find out, what part
of the law-merchant, as we now understand it, existed at that
period. If the expression, that the lex mercatoria is a part of
the common law, be any thing more than an idle boast, it
can mean only, that the general structure of the common law
is such, that, without any positive act of the legislature, it
perpetually admits of an incorporation of those principles
and practices, which are from time to time established among
merchants, and which, from their convenience, policy, and
consonance with the general system, are proper to be recognized by judicial tribunals. In this sense, the expression is
perfectly correct; in any other sense, it has a tendency to
mislead.
Almost all the principles, that regulate our commercial
concerns, are of modern growth, and have been ingrafted
into the old stock of the law by the skill of philosophical, as
well as practical, jurists. One of the leading cases, in which
there is some flourish made about this maxim, that the lawmerchant is part of the common law, is Vanheath v. Turner,
in the nineteenth year of the reign of King James the First.
It is reported in Winch's Reports; and, as it happens now to
lie open before us, we will extract the substance of it, to show
how commercial contracts were dealt with at that period. It
was a special action, and Winch states it thus: " Peter Vanheath brought an action against Turner, and declared upon
the custom of merchants, that, if any merchant, over the sea,
deliver money to a factor, and make a bill of exchange under
his seal, and this is subscribed by the merchant, or by any of
the company of such merchants, that the merchant himself,
or all the company, or any one in particular, may be charged




GROWTH OF THE COMMERCIAL LAW.        273
to pay that; and he showed, that one merchant was factor of
the company, of which the defendant was one, and that merchant did substitute one G., to whom the plaintiff delivered
~100 upon a bill of exchange, to which bill one B., being one
of the company, set his hand in England, and so the action
accrued to the plaintiff. The defendant pleaded, nil debet per
legem; and upon that the plaintiff demurred in law, and the
question was, whether the defendant might wage his law."
This is Winch's statement of the case, very imperfect to be
sure, but by which it appears to have been the case of a bill
of exchange, drawn for money received of the payee, by the
agent of a factor of an English partnership on the company,
and accepted by one of the partners, and, upon that acceptance, the suit was brought against the defendant, who was
one of the partners. Now the first thing that strikes us, is,
that so little did the common law recognize the custom of
merchants, that it was necessary to set it forth specially in
the declaration, so that it might appear, how the custom
bound the party; and the court might decide, whether it was
good or not. After the argument, Lord Chief Justice Hobart
is reported to have delivered his opinion as follows: "If the
bailiff at the common law make a substitute, the substitute
is not chargeable, but here the custom will bind the law.
Secondly, he said, two or three merchants trade over the sea,
who made a factor there, who takes money there, and gives
a bill, and this is subscribed by one of the company; that
this should bind all or any of the company is not a good
custom; and the custom of merchants is part of the common
law of this realm, of which the judges ought to take notice;
and if any doubt arise to them about their custom, they may
send for the merchants to know their custom, as they may
send for the civilians to know their law; and he thought the
defendant ought to be admitted to wage his law." Now,
independently of the objection, that, if the defendant were
admitted to wage his law, that is to say, discharge himself
from the debt by taking his oath, that he did not owe it,




274             MISCELLANEOUS WRITINGS.
which of itself would almost extinguish the negotiability of
bills, it would sound very odd at this day to hear any such
doctrine assumed, as that respecting the badness of the custom. It is now the plain mercantile law, as it always was
common sense, that the acts of a factor within the scope of
his authority, whether done by himself or his substitute, bind
the partnership, for which he acts; and the acts of a partner
in the partnership business in like manner bind the whole.
Such was at that period, as it should seem, the custom of
merchants; but it was strange to the common lawyers, and
seems to have harmonized very little with the notions of the
court. Yet Lord Hobart was an eminent judge; and we are
to attribute his views, not to a want of sagacity, but to
a steady adherence to the rigid doctrines of the common law
as to bailiffs and customs, to which the old lawyers clung
with a pertinacious idolatry. The truth is, that these gentlemen were, from habit and professional feeling, wedded to the
artificial notions of the old system, and strenuously resisted
almost every innovation upon it, both in Parliament and out;
and every advance made in adopting the custom of merchants, until the days of Lord Mansfield, was a victory
gained, by the spirit of the age and the influence of commerce, over professional prejudices.
And this leads us to say a few words upon the actual
administration of insurance law, during the days of Lord
Mansfield, and of the improvements made by him. We do
not know, that it can be done with more brevity than by
quoting an extract from Mr. Park.
" In former times," says he, " the whole of the case was
left generally to the jury,1 without any minute statement
from the bench of the principles of law, on which insurances
were established; and, as the verdicts were general, it was
almost impossible to determine from the reports we now see,
1 Very much as it used to be within our early recollection in the courts of
Massachusetts.




GROWTH OF THE COMMERCIAL LAW.          275
upon what grounds the case was decided. Nay, even if a
doubt arose in point of law, and a case was reserved upon
that doubt, it was afterwards argued in private, at the chambers of the judge who tried the cause, and by his single decision
the parties were bound. Thus, whatever his opinion might
be, it was never promulgated to the world, and could never
be the rule of decision in any future case. Lord Mansfield
introduced a different mode of proceeding; for, in his statement of the case to the jury, he enlarged upon the rules and
principles of law, as applicable to that case, and left it to
them to make the application of those principles to the facts
in evidence before them. So that, if a general verdict were
given, the ground on which the jury proceeded, might be
more easily ascertained. Besides if any real difficulty occurred in point of law, his lordship advised the counsel to
consent to a special case, &c. &c. These cases are afterwards argued, not before the judge in private, but in open
court, before all the judges of the bench, from  which the
record comes. Thus, nice and important questions are now
not hastily and unadvisedly decided; but the parties have
their case seriously considered and debated by the whole
court; the decision becomes notorious to the world; it is
recorded for a precedent of law, arising from the facts found;
and serves as a rule to guide the opinion of future judges."
The commendation of Lord Mansfield, which this extract
implies, falls very far short of his real merits. The change
in the course of proceedings did much; but the genius, liberality, and extensive learning of this extraordinary man gave
a new and enduring vigor to the system itself. He may be
truly said to have created the commercial law of England;
and during his long, active, and splendid life, it attained a
maturity and perfection which, perhaps, no other nation can
boast, and which will transmit his name to posterity as one
of the greatest benefactors of jurisprudence. The achievement was not, indeed, the result of his own unassisted mind.
He read extensively the maritime laws of foreign countries,




276            MISCELLANEOUS WRITINGS.
and with an admirable mixture of boldness, discretion, and
sagacity, infused all their most valuable principles into the
municipal code of England. At the distance of half a century, one looks back with wonder upon the labors of this
single judge. His successors have here and there added
some pillars to the edifice; but the plan, the proportions, the
ornaments, the substructions, all that is solid, and fundamental, and attractive belong to him as the original architect.
Standing in the temple of commercial law, the most sober
jurist, while contemplating Lord Mansfield's labors, might
with enthusiasm exclaim, Si monumenturn quc3ris, circumspice.
Dropping, however, figurative language, we may with plain
gravity venture to suggest a doubt, whether the deviations
from his doctrines, introduced by his successors, have not
been inconvenient in practice, and mischievous in principle.
They partake too much of the subtilties and technical refinements of the common law, and stand little upon general
reasoning, and those analogies, which equity and a comprehensive view of the business of commerce would commend
for adoption. Lord Kenyon was an honest, intelligent, and
learned magistrate; but from habit, and education, and perhaps original cast of mind, he does not seem ever to have
entered into the true spirit of commercial jurisprudence. He
took no comprehensive principles in his range, and contented
himself by administering the maritime law as he found it,
without any ambition to extend its boundaries. Lord Ellenborough possessed a more powerful and vigorous mind.
But his early reading beyond the walks of the common law,
does not seem to have been very extensive; and he manifested on many occasions a desire to bring down the maritime doctrines to the standard of the common law, rather
than to give to the latter the expansion of universal jurisprudence. He was certainly a great judge, of a clear, decisive,
and rapid mind, but devoted to England, and feeling little
enthusiasm and less curiosity to embark in foreign studies.
The times, too, in which he lived were not propitious to any




GROWTH OF THE COMMERCIAL LAW.          277
extensive researches into continental jurisprudence.  They
were times of deep political and national struggles, when the
spirit of war and conquest attempted to overturn the established doctrines of public law; and those who clung to old
institutions felt, that resistance to innovation was safety, and
that dangers lurked in ambush under the cover of general
principles. Fortunate will it be, however, for England, if in
the present peaceful times there shall be found a successor of
Lord Mansfield who breathes his liberal spirit, and fills up
his splendid outline of principles.
It cannot, however, be disguised that there are a national
pride and loftiness of pretension occasionally mixed up in
the character of Englishmen which lead them, especially as
public men, to look down, sometimes with contempt, but
more generally with indifference upon the usages, laws, and
institutions of other countries. Nil admirari is not always a
safe or useful national motto. The English bar is not exempt
from this infirmity, and betrays it sometimes when it would
be more honorable to seek instruction from foreign sources.
It is curious to observe how little of foreign jurisprudence is
brought into the discussions of their courts of common law
(for it is far otherwise in their admiralty and civil law courts)
upon topics which seem most powerfully to demand its introduction. Even upon questions of the operation of the Lex
Loci, how rarely has continental or even Scottish jurisprudence been cited with effect in these tribunals! Ireland is
separated but by a narrow strait. Her jurisprudence is in
substance that of England. Het most distinguished lawyers
and judges have been bred in the English Inns of Court. In
eloquence, in learning, in general ability, they are inferior to
few in the united kingdom. Yet, who ever heard the citation in an English court of an Irish decision? With the
exception of a few of Lord Redesdale's, which probably owe
their admittance into English society to his elevated rank in
the House of Lords, we scarcely recollect any in the course
of our reading. Why should they not be cited? Was Sir
24




278             MISCELLANEOUS WRITINGS.
John Mitford, when he wrote his excellent Treatise on Equity
Pleadings, or held the office of Attorney-General of England,
superior to Lord Redesdale, when he held the seals of Ireland? Is Lord Manners less distinguished as an Irish chancellor than when he filled the office of a Baron of the English
Exchequer?
Perhaps it may be suggested, as an apology, that the English law is of itself so vast a field that it can scarcely be
mastered, and it is unnecessary to attempt any foreign conquests; that the decisions of English judges are alone of
authority; and it is unwise and impolitic to open wider
inquiries, which would perplex and obstruct the already
darkened and crowded avenues of professional studies.
There is something plausible in such a suggestion; but it
vanishes on a close examination of the subject. If the English common law were perfect in itself, and were susceptible
of no improvement, it might justly refuse any foreign admixture. But no one will be so rash as to advance a pretension
of this sort. The common law is gradually changing its old
channels and wearing new. It has continual accessions on
some sides; and on others leaves behind vast accumulations
which now serve little other purpose than to show what
were its former boundaries. What has become of the feudal
tenures, and the thousand questions of right and might which
formerly came home not merely to the lords of the manors
but to every thatched cottage of the kingdom? What has
become of real actions, with all the complicated apparatus of
proceedings with which they so much perplexed, not to say
confounded and overwhelmed the profession? More than
sixty years ago we were told, in the celebrated judgment of
Taylor v. Horde, that the precise definition of what constituted a disseisin was not then known, and could not be
traced in the books. And yet almost all the contests of the
old law were upon questions in which the law of disseisins
was a material ingredient. What has become of the nice
and curious distinctions in respect to uses and trusts, which,




GROWTH OF THE COMMERCIAL LAW.         279
in Lord Coke's time, and in earlier periods, exercised all the
ingenuity of the profession? In apractical sense they have
almost disappeared, or are felt to be of little value since the
courts of equity have exerted their most salutary jurisdiction
over this vast field of litigation. Where in the old law shall
we find principles to adjust the innumerable questions arising
in bankruptcy? Where shall we look for the doctrine of liens,
of stoppage in transitu, of marshalling assets, of the execution
of charities, in short, of the mass of business in which modern
legal and equitable jurisdiction is employed? It is obvious,
that the law must fashion itself to the wants, and in some
sort to the spirit of the age. Its stubborn rules, if they are
not broken down, must bend to the demands of society. A
merely written code must forever be inadequate to the business of a nation increasing in wealth and commerce, and
connecting itself with the interests of all the world. A
customary law, adopted in rude and barbarous times, must
melt away or mix itself with the new materials of more
refined ages. Human transactions are dividing and subdividing themselves into such innumerable varieties that they
cannot be adjusted or bounded by any written or positive
legislation. The law, to be rational and practicable, must,
as was finely said by Lord Ellenborough of the rules of evidence, expand with the exigencies of society. As new cases
arise, they must be governed by new principles; and though
we may not remove ancient landmarks, we must put down
new ones when the old are not safe guides and no longer
indicate the travelled road, or mark the busy, shifting channels of commerce.
It is most manifest, therefore, that the English law, working as it does, into the business of a nation crowded with
commerce and manufactures, must forever be in search of
equitable principles to be applied to the new combinations of
circumstances, which are daily springing up to perplex its
courts. In adopting new rules it is indispensable to look to
public convenience, mutual equities, the course of trade, and




280             MISCELLANEOUS WRITINGS.
even foreign intercourse. It is plain, that in such inquiries
the customary and positive law of foreign countries as the
result of extensive experience, must be of great utility. No
nation can be so vain as to imagine that she possesses all
wisdom and all excellence. No civilized nation is so humble that her usages, laws, and regulations do not present
many things for instruction, and some for imitation. In
respect to the general principles of jurisprudence, those which
are applicable to the ordinary concerns of human life in all
countries, and ought to be law in all, because they are
founded in common sense and common justice, it is undeniable that much light may arise from the investigations of
foreign jurists. Genius and learning can never fail to illustrate the principles of universal law, even when the primary
object is merely to expound municipal institutions. The
Dutch, the German, the Italian, the Spanish, or the French
civilian is not less a master of equity and rational jurisprudence, when he deals with the Roman law, colored, and it
may be shaded by his own local customs and ordinances,
than the Lord Chancellor on the woolsack, enforcing trusts
in foro conscientite, or the Lord Chief Justice when expounding commercial contracts at the Guildhall of London. The
truth is, that the common law, however reluctant it may be
to make the acknowledgment, and however boastful it may
be of its own perfection, owes to the civil law, and its elegant
and indefatigable commentators, (as has been already hinted,) almost all its valuable doctrines and expositions of the
law of contract. The very action of assumpsit, in its modern
refinements, breathes the spirit of its origin. It is altogether
Roman and Praetorian. And there never has been a period
in which the common lawyers, with all their hostility to the
civil law, have not been compelled to borrow its precepts.
The early work of Bracton shows how solicitous some of the
sages were, even in that rude age, to infuse into their own
code some of that masculine sense which found favor in the
days of Justinian.




GROWTH OF THE COMMERCIAL LAW.         281
What, indeed, should we think, in the present times, of
men, who affect to be indifferent to the writings of such authors as D'Aguesseau, Domat, Valin, Pothier, and Em6rigon?
Mr. Duponceau, in his late excellent Dissertation on the Jurisdiction of the Courts of the United States, - a work that
should be profoundly studied by all American lawyers, - has
said, that the works of Pothier were warmly recommended
by Sir William  Jones to his countrymen, " but without success." We hope his language is too strong. That such a
writer as Pothier should be neglected by Englishmen, would
be a disgrace to the learning and literature of the nation.
Who has written with so much purity of principle, such
sound sense, such exact judgment, such practical propriety,
on all the leading divisions of contracts? Who has treated
the whole subject of maritime law so fully, so profoundly, so
truly with a view to its equity and advancement, as Valin?
Who has equalled Emirigon, as a theoretical and practical
writer on the law of insurance?  He has exhausted every
topic, so far as materials were within his reach; and upon
all new questions his work, for illustration, and authorities,
and usages, is still unrivalled.
We think, indeed, that we perceive the dawn of a brighter
age in the English law, when the foreign lights, which have
been, slowly and by stealth, admitted into Westminster Hall,
will be hailed with a liberal spirit, and will irradiate its bar
and benches. Mr. Joy, in the case of M'Iver v. Henderson,
(4 M. and S. 576,) and Mr. Campbell and Mr. Bosanquet, in
the case of Bush v. the Royal Exchange Insurance Company,
(2 Barn. and Ald. 72,) showed a familiar acquaintance with
the foreign maritime jurists, and argued with great effect
from their authority; and on a comparatively recent occasion,
(5 M. and S. 436,) when Em.rigon was cited, Lord Ellenborough said," Emerigon, whose name has been so frequently
mentioned in the course of the argument, is entitled to all
the respect which is due to a very learned writer, discussing
a subject with great ability, diligence, and learning, and ad24 




282            MISCELLANEOUS WRITINGS.
verting to all the authorities relating to it."  Mr. Justice
Bailey and Mr. Justice Best, who are judges of uncommon
ability, have repeatedly, of late, adverted to the French maritime authors with discriminating accuracy, and in terms of
the most unreserved respect. We consider these indications
of a liberal study of foreign jurisprudence as extremely creditable to this age of the common law; and we augur from
them, for the future, a far more expanded view of commercial questions than has usually been encouraged since the
days of Lord Mansfield.
If we were disposed to recommend the study of public
and foreign law to common lawyers, we do not know how
we could better do it than by pointing out some illustrious
examples of its successful accomplishment in our own age.
Sir James Mackintosh, of late years so distinguished in Parliament, as a friend to liberty, to science, and liberal institutions, and who is, at the same time, a most humane and philosophical jurist, has, in his incomparable Introductory Discourse to his Lectures on the Law of Nations, given us a
finished specimen of the advantages resulting from the mastery of foreign public writers. It would, perhaps, be difficult
to select from the whole mass of modern literature a discourse of equal length which is so; just and beautiful, so accurate and profound, so, captivating and enlightening, so enriched with the refinements of modern learning, and the
simple grandeur of ancient principles. It should be read by
every student, for instruction and purity of sentiment; and
by lawyers of graver years, to refresh their souls with inquiries which may elevate them above the narrow influences of
a dry and hardening practice.
But a still more striking example is Lord Stowell, (better
known in this country as Sir William Scott,) the present
venerable Judge of the High Court of Admiralty, of whom
it may be justly said, in the language of Cicero, that he is
jurisperitorum eloquentissimus. This great man has presided
in the Court of Admiralty since the year 1798; and during




GROWTH OF THE COMMERCIAL LAW.         283
this period he has commanded the admiration of all Europe,
by the learning, acuteness, and finished elegance of his judgments. There was a time when it was somewhat the fashion
in this country to undervalue the solid excellence of his
opinions. Our commerce was brought so directly in conflict
with his administration of prize law, that it was difficult to
avoid prejudices on a subject in which, as neutrals, we had
so deep an interest, and were so liable to indulge strong animosities. But time has dissipated many delusions on this
subject; and we have had, in the late war, ample opportunity to try the accuracy of his principles, when we changed
the character of neutrals for that of belligerents. We can
now look back upon his decisions with somewhat of the
calmness and sobriety of a philosophical historian. With
the exception of the doctrines respecting the colonial trade,
in which it is but common justice to admit, that he either
acted upon public Orders in Council which he was bound to
obey, or upon the Rule of 1756, which his government had.
previously chosen to consider, as an established part of its
prize code, the differences between his decisions upon prize
law, and those promulgated by the Supreme Court of the
United States, are so few, as to be almost evanescent. After
the most powerful arguments under the highest political
excitements, and with the aid of the most striking eloquence,
there has been but a single principle adopted by him, which
has been deliberately overruled by the Supreme Court; and
on that occasion there was a serious difference of opinion
among the judges.
But it is not in respect to prize law that we intend to speak
of Lord Stowell, though he everywhere exhibits the most
profound and accurate knowledge of all the publicists of
continental Europe; but as a maritime judge, deciding, in
what is called the Instance Court, the great principles of
commercial jurisprudence.  His superiority in this department over the technical reasoning of the common lawyers is
most signal. He discusses every question with a persuasive




284             MISCELLANEOUS WRITINGS.
and comprehensive liberality, with a tone of general equity,
a knowledge of maritime usages, and a disposition to consider maritime jurisprudence as the unwritten law of the
world, rather than the municipal monopoly of a single nation;
and he draws from all sources, ancient and modern, the best
and purest principles, to aid, to illustrate, and to confirm his
own judgment. With him the grave learning of Grotius,
the acute, bold, and somewhat vehement discussions of Bynkershoek, the reverend testimonies of the Consolato del Mare,
the collections of Cleirac, the busy, practical sense of Roccus,
the brief but clear text of Heineccius, the various and
exhausting labors of Casaregis, the argumentative commentaries and luminous treatises of the French jurists, appear as
perfectly familiar as the writers of his own age and country.
He evidently reposes upon them, even when he does not cite
them; and transfuses into his own eloquent and impressive
judgments whatever they afford of general doctrine, or just
interpretation, upon all the doubtful questions of maritime
law. One scarcely knows which most to admire, the simplicity of his principles, the classical beauty of his diction, the
calm and dispassionate spirit of his inquiries, his critical but
candid estimate of evidence, his strong love of equity, his
deep indignation against fraud, chastened by habitual moderation, or that pervading common sense which looks into,
and feels, and acts upon the business of life with a discriminating but indulgent eye, content to administer practical
good without ostentation, and wasting nothing upon speculations, whose origin is enthusiasm, and whose end is uncertainty or mischief. Even when he deals with subjects of
another class, as in ecclesiastical causes in the Consistory
Court, one is surprised to see with what admirable propriety
he uses his knowledge of general jurisprudence and the civil
law, to give vigor to his decrees. And upon questions involving the lex loci, he has triumphantly shown that he can
master the results of foreign jurisprudence; and, as in the
very interesting case of Dalrymple v. Dalrymple, compose the




GROWTH OF THE COMMERCIAL LAW.         285
strifes of the learned advocates of the Scottish bar, and fix
forever upon an immovable basis a question which had vexed
the domestic forum of Scotland for a long period with its
doubts and difficulties. We say, without hesitation, that the
character of this eminent judge, whatever may have been
his original genius and ability, owes its present elevation, in
a great measure, to his enlarged studies, and his cultivation
of universal jurisprudence. Take, for instance, his celebrated
judgment in the case of the Gratitudine, in 1801, on the
right of the master to hypothecate the cargo, as well as the
ship and freight, for the necessities of the voyage; or the case
of the Julianna, in 1822, on the invalidity of a stipulation in
the shipping-paper to cut off the seamen from wages, unless
the voyage should be performed to the final port of destination; where shall we find in the annals of the common law,
except among the judgments of Lord Mansfield, cases argued
out upon such rational and enlightened principles, aided by
sober and various learning, and ending in conclusions so irresistible? One seems in them to be reading, not the law of
England merely, but the law of the world - the results of
human reason and human learning, acting on human concerns, with reference to principles absolutely universal in their
justice and convenience of application. We wish American
lawyers would study the fine models of this sagacious judge
with a diligence proportionate to their importance and utility.
We cannot quit this subject without recommending to our
brethren of the English Bar, if, perchance, these pages should
attract their notice, the study of American jurisprudence.
Of course we do not mean of our local laws and peculiar
systems; for we should as little advise this, as we should to
our own lawyers the study of the English law of tithes, and
moduses, and copyholds, from which we are separated toto
cadlo. What we do recommend is, the study of our commercial adjudications. This is not said, we hope they will believe, from vanity under a false estimate of our own attainments. American lawyers are in the constant habit of read



286             MISCELLANEOUS WRITINGS.
ing all the English Reports; and it would be worse than
affectation to attempt to disguise, that we are greatly instructed and improved by them. They present to us the
fruits of great experience, industry, intelligence, and ability.
But we " also are painters." The American Courts collectively considered, embrace a large proportion of talent and
learning, and they are perpetually engaged in many of the
discussions which perplex the English tribunals. Of course
there is a great diversity in the attainments of the judges
and lawyers in the different states composing the Union,
arising from local circumstances. But in the principal Atlantic States the system of maritime law is of daily application to business, and is studied with earnest diligence.
In one respect there is a striking contrast between the
state of the English and that of the American Bar. In
England, the profession is broken up into distinct classes.
The civilians engross exclusively the admiralty and ecclesiastical courts, and even these are separated into proctors and
advocates. The chancery courts have their own solicitors
and counsellors.  The barristers and sergeants of the common law generally confine themselves to the practice of their
own particular courts. The attorney is a being who deals
with processes and proceedings in suits, but is shut out from
the rights of arguing counsel. The conveyancer pores over
his own peculiar studies for chamber-practice; and the special pleader, if he wins his way to a lucrative practice, sits
under the bar a quiet spectator of forensic disputations, unless the niceties of his own craft come into play. In America all this is different. The same gentleman acts, or may
act, (with scarcely an exception,) in all these different capacities; and in the course of a single term of a court may
assume many of the functions of all of them. He is, or
may be, at once, proctor, advocate, solicitor, attorney, conveyancer, and pleader; he may draw libels and bills, frame pleas
and answers, direct process, prepare briefs, sketch drafts of
conveyances, argue questions of fact to the jury, and ques



GROWTH OF THE COMMERCIAL LAW.          287
tions of law to the court; and find himself quite at home in
all these various employments. If it should be thought that
this singleness of occupation and subdivision of labor give
to the English lawyer more accuracy, minute knowledge,
and perfect facility in the use of his materials, they carry
with them, on the other hand, some disadvantages. The
general tendency of such close pursuits is to narrow down
the mind to mere technical rules; to exhaust its powers upon
subtile distinctions and dull details; to make professional
life an affair of collections and recollections; to create an
acute and nice discrimination, rather than a solid and comprehensive understanding. What is gained by skill in the
manipulation is lost in the vigor of the blow.
The course of the American lawyer does not, it must be
confessed, generally lead to such exact inquiries, and such
perfect finish, although there have been eminent examples to
the contrary. But a survey of the whole structure of the
law conducts him to large and elevated views, to brilliant
and successful illustrations, to reasonings from various contrasts and analogies of the law, and to those generalizations
which invigorate eloquence, and shadow out the finer forms
of thought. His learning must be deep and various, even if
it is not in all respects exact; and will be tinctured with the
hues of all his studies. His law silently acquires the tone
and spirit of equity; and his commercial discussions urge
him to search for, and adopt in argument, whatever of excellence the genius and erudition of foreign jurists have brought
to his notice. He knows, too, that in the American courts
there is no disposition to discourage the study of foreign
jurisprudence.  There is a freedom from restraint, and an
habitual eagerness to expand our law, which favor every
attempt to build up commercial doctrines upon the most
liberal foundation. We do not mean to affirm, that American lawyers in general cultivate such extensive studies, or
are distinguished by such elevated attainments. What we
mean to assert is, that the general tendency of our system is




288            MISCELLANEOUS WRITINGS.
to excite an ambition for such studies and attainments, and
that the genius of the profession is perpetually attracted
in its researches and reasonings to those general principles which constitute the philosophy of the law. We could
point out living models who exemplify all that we have
suggested in commendation of the American system; and
among the illustrious dead, within our own brief career, we
fear no rebuke in naming Hamilton, Dexter, Pinkney, and
Wells. But it is unnecessary to trust to assertion. The
records are before us, and can be searched. Look to the
judgments of the supreme courts in the states of Pennsylvania, New York, and Massachusetts, upon questions of
maritime and commercial law, as they stand in the Reports
of Messrs. Tyng, Binney, Johnson, and Sergeant and Rawle.
It is impossible not to feel, that the arguments in these
causes, and the judgments which followed them, would do
credit to the tribunals of any country. They are full of
learning, fine reasoning, acute distinctions, and solid principles, such as might well guide the sober sense of Westminster Hall, and cast a strong light upon its oracles. Look to
the chancery decisions of New York. Where shall we find
in our times a more thorough mastery of the civil and maritime, of the common and equity law, where a more untiring
research, a more critical exactness, a more philosophical
spirit than is displayed in the elaborate arguments of her late
chancellor?
We think, therefore, that, in recommending the labors of
the American lawyers and judges to the attention of English
lawyers, we do them a service, by which they may greatly
profit; and in this manner we may make a suitable return
for the many aids which America received from the parent
country, when her own jurisprudence was loose, unformed,
and provincial.
The progress, indeed, that has been made in America, in
the knowledge and administration of commercial law, since
the Revolution, is very extraordinary; and in no branch




GROWTH OF THE COMMERCIAL LAW.         289
more striking than in that of Insurance. Before that event
policies of insurance were of rare use among us. Our intercourse with the mother country was so direct and so dependent, that most of the important risks were underwritten in
London, through the instrumentality of agents. Our printed
reports do not reach far back beyond the revolutionary period; but the manuscripts we have seen, and the absence of
references to cases, in the arguments even of ante-revolutionary lawyers, establish, to the satisfaction of all accurate observers, that the subject was new to the studies of the bar.
The earliest, and, indeed, the only case we recollect in any of
our books, before the Declaration of Independence, is that of
Story and Wharton v. Strettell, in 1764, reported by Mr. Dallas in the first volume of his Reports. It was not until the
French revolution, by opening new and extensive sources of
profitable trade, gave an impulse to our maritime enterprise,
that the contract struggled into notice from a state of languor,
and became common in our commercial cities. It immediately advanced with almost inconceivable rapidity, and
became so profitable that it may truly be said to have laid
the foundation of many fortunes in our country. The profession soon felt the necessity of an entire mastery of the
subject, and applied itself with a most commendable diligence to the study of all the English and other foreign
authorities. And within the last thirty years, probably as
large a number of cases of insurance have been contested
and decided in the American courts, upon points of difficulty
and extensive application, as in the courts of England in the
same period. We do not hesitate to assert, that these cases
have been argued with as much learning and ability, and
with as comprehensive a view of the true principles of the
contract, as any in the brightest days of the English law.
And we are greatly deceived, if, upon a general examination,
they will not be found by English lawyers and judges to
be full of useful instruction, and worthy of their deliberate
study. Many of them  discuss questions arising from the
25




290            MISCELLANEOUS WRITINGS.
complicated state of our commerce as a neutral nation, which
have not, as yet undergone any adjudication in the English
courts.
We will close this topic with a very short historical sketch
of the principal modern English treatises on insurance. We
pass over at once without any particular notice, the remarks
on the subject contained in the work on Bills of Exchange
and Insurance, ascribed to Mr. Cunningham, and in Mr.
Parker's Laws of Shipping and Insurance, as they were so
imperfect as to have sunk into obscurity. Mr. Weskett's
book is a mere collection in the form of a dictionary, of all
the heads of maritime law, and contains little more than an
index to foreign ordinances and usages. The title, Insurance, in the collections of Postlethwayte and Beawes are of
the same character. The first treatises, correctly speaking,
are those of Mr. Millar, a Scotch advocate, and Mr. Park,
(now Mr. Justice Park of the common pleas,) both published
in the year 1787. Mr. Millar's work is certainly creditable
to his talents and industry, and exhibits considerable research
and habits of observation. It has not, however, received a
great share of public favor, nor, as we believe, reached a
second edition, probably, because it has been superseded in
practice by the very superior treatise of his rival, both in
method and materials. Mr. Park, indeed, deserves much
praise for the judgment, accuracy, and general excellence of
his System of the Law of Insurance. The best testimony
to its value is the continued approbation of the profession,
which has already carried it through seven large editions.
As a collection of authentic cases in the fullest and most
accurate form, it still remains unrivalled. Although it professes to be principally "a collection of cases and judicial
opinions," the learned author occasionally discusses general
principles with a good deal of ability. In 1802 Mr. Sergeant
Marshall published his Treatise on the Law of Insurance,
and again in 1808 published a second and improved edition.
His work professes to be, not, like Mr. Park's, a collection of




GROWTH OF THE COMMERCIAL LAW.          291
cases, but an examination and collection of principles. It is
certainly a work of high merit, analyzing and criticizing the
cases with great acuteness and vigor; and citing the foreign
authorities with which the learned author appears familiar,
with a creditable liberality. Whenever he ventures to give
his own comments, they indicate perspicacity and closeness
of observation. But, after all, the work seems to promise
more than it performs. It contains little of doctrine or discussion, beyond what the English decisions exact or furnish.
We look in vain for any attempt to extend the boundaries of
the law beyond actual adjudications, and for any satisfactory
argument upon topics which yet remain unsettled by the
courts. And a great defect in the work, as indeed in all
others — a defect, which has been but imperfectly supplied
by the late treatise of Mr. Stevens - is the want of a practical treatise upon averages and the adjustment of losses. We
believe, that the learned author is now dead, so that there is
little probability that the work will be rendered more complete.
But, whatever may be the value of the English treatises on
insurance, it is most obvious, that they are inadequate to
supply the necessities of the American Bar. They embrace
no cisatlantic decisions; and every work for our use, which
does not contain them, is infected with a fatal infirmity.
From what has been already suggested, it is clear, that the
actual administration of commercial jurisprudence in our own
courts must, for argument, for authority, and for practice, be
far more important to us than any foreign opinions ever can
be. In respect to insurance, although the law in most commercial states rests on the same basis of general principles,
these principles admit of considerable diversity of judgment
in their application, and are often controlled by the known
policy or ordinances of each particular government. This is
so true, that there are probably no two civilized nations, in
which the law of insurance is exactly the same in all its
outlines and details. Although our own law of insurance




292            MISCELLANEOUS WRITINGS.
professes to be, and in fact is, the same in its general structure and principles, as that of England; yet, without any
statutable provisions, we already find many conclusions embodied in it, which are at variance with those of Westminster
Hall. In some of these cases the English decisions may be
more just and satisfactory than our own. In others we have
no hesitation in declaring the American more solid, rational,
and convenient. If it would not lead us into too prolix
a discussion, we should incline to enter on the task of enumerating the leading differences, in order to enable the profession to form an exact judgment on the subject. But we
must pass from these topics, and hasten to the close of an
article already extended far beyond the limits, which we had
originally intended. We will just mention, however, the
point, that the right of abandonment depends upon the state
of the fact at the time when it is actually made, and when
once legally exercised, it is not divested by any subsequent
change of the facts, as one, in which we differ from English
courts; and we are entirely satisfied, that our rule has the
justest foundation in principle, as well as in policy. The
same conclusion has been more than once intimated by the
great mind of Lord Chancellor Eldon.
From what has been said, our opinion may be readily
conjectured, as to the indispensable necessity of a new treatise
on insurance, for the use of American lawyers; and Mr. Phillips has done a most acceptable service to the profession by
the publication of that, the title of which stands at the head
of this article. One of two courses only could be pursued;
either to republish the best English work, and append the
American decisions in the shape of perpetual notes, which
would have formed a very inconvenient and bulky commentary, not easily reducible to specific heads; or to recast the
whole materials, and produce a new work, which should
contain in one text the mass of English and American authority. Mr. Phillips has chosen the latter course, and in our
opinion, with great sagacity and sound judgment; and he




GROWTH OF THE COMMERCIAL LAW.           293
has executed his task in a manner, which will obtain the
general confidence and respect of the profession. His work
is arranged in a very lucid method, and embodies in an accurate form the whole system of the law of insurance, as it is
actually administered in the courts of England and America.
It is eminently practical and compendious, at the same time
that it is full of information. Wherever he has introduced
any comments of his own, of which he has been somewhat
too sparing, he has shown sound sense, and a liberal juridical
spirit. In respect to America, his work will probably supersede altogether the use of Mr. Marshall's; but Mr. Park's, as
the fullest repertory of all the cases, will continue to retain
the public favor. The labor of such a compilation must
unavoidably have been great, and required the most patient
research and various study. The author, as a scholar, a gentleman, and a lawyer, has put himself before the public and
the profession, for their patronage of his labors; and we are
satisfied, that he will not be disappointed in the result. He
need not blush for his authorship, nor fear the scrutiny of
dispassionate criticism. His work has a solid character, and
will sustain itself the better, the more it is examined.
Of a work confessedly professional, it cannot be expected,
that we should enter upon a minute review, for the purpose
of detecting slight faults, or contesting particular opinions.
The task would be irksome to ourselves, and so heavy and
technical, as to afford very little satisfaction to our readers.
It is impossible to include in a single volume the opposite
qualities of brevity and copiousness, a condensed summary
of principles, and an elaborate discussion of the minute details
and distinctions of cases. Whoever writes a merely practical
treatise, must leave much matter worthy of observation to
more exhausting authors. In this age, books, to be read,
must be succinct, and direct to their purpose. The business
of commercial life will not stop, while lawyers plunge into
folios of a thousand pages, to ascertain a possible shade of,2,5 




294             MISCELLANEOUS WRITINGS.
distinction in the construction of contracts. If, therefore,
there should be any persons disposed to think, that cases and
comments should have been given more at large, the true
answer is, that such was not Mr. Phillips's plan; and that
his work is to be judged of, not by its adaptation to other
purposes, but by its actual execution of his own design. In
this respect it has our hearty approbation, and we sincerely
recommend it to all, who are interested in commercial jurisprudence, as merchants, lawyers, and judges. We think,
however, that in a future edition, Mr. Phillips will do well to
enrich his work with extracts from Valin, Emerigon, and
Pothier, upon points, which have not yet received any adjudication, and occasionally to introduce some of their speculative reasonings. We should be glad, also, to have more
full practical information upon the adjustment of averages
and losses, and the items, which are to be admitted or rejected; having had occasion to know, that nothing is more
various, uncertain, and anomalous, than the modes of settling
losses in different insurance offices. Even in the same office,
a departure from the principle assumed as to one subject of
insurance is not uncommon as to another, upon some fanciful
notion of its inapplicability. The form of Mr. Phillips's Index
also might be advantageously changed, so as to make it more
easy for consultation, by the use of a larger type, and breaking it up into more paragraphs, with short subordinate titles.




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY.
AN ARGUMENT DELIVERED BEFORE THE BOARD OF OVERSEERS OF
HARVARD COLLEGE, IN JANUARY, 1S25, UPON THE DISCUSSION OF
THE MEMORIAL OF THE PROFESSORS AND TUTORS OF THE COLLEGE,
CLAIMING A RIGHT THAT NONE BUT RESIDENT INSTRUCTORS IN THE
COLLEGE SHOULD BE CHOSEN OR DEEMED " FELLOWS" OF THE CORPORATION.
[The following statements, on the subject of the claim of the resident
Instructors, are chiefly borrowed from a pamphlet published in 1825, entitled
"Remarks on Changes lately proposed or adopted in Harvard University.
By George Ticknor, Smith Professor," &c.
" The management of the College at Cambridge has been heretofore in
the hands of three bodies of men, who hold their authority under an Act of
the General Court, passed in 1642; a Charter given in 1650, with an Appendix, dated in 1657; the fifth chapter of the Constitution of the Commonwealth, made in 1780, and revised, but not altered in relation to the College,
in 1821; and an Act passed in February, 1814, by the Legislature of the
Commonwealth.
1" The first of the bodies, who, under the provisions of these acts, or by
powers mediately derived from them, have had the management of the College, is, the Faculty or Immediate Government, consisting of the President,
and a part of the resident Instructors, amounting in all to from ten to thirteen
persons, who have the entire discipline of the students in their hands, and
have been obliged to meet together as an executive body, to decide on every
punishment above a small fine; a body, which, both in Cambridge and in
other colleges, is too large for the prompt, consistent, and efficient discipline
of such a collection of young men.
" Over the Faculty is the Corporation, which derives its powers from the
Charter of 1650, the Appendix of 1657, and the Constitution of 1780, and
consists of the President, the Treasurer, and five'Fellows,' as they are
technically called; and of the gentlemen, who now [1825] compose that
body, three, namely, Mr. W. Prescott, Judge Jackson, and the Rev. W. E.
Channing, reside in Boston; one, Mr. Justice Story, resides in Salem; and
one, Rev. E. Porter, resides in Roxbury. The Corporation have the management of the funds and revenues of the College: appoint its instructors
and other officers, and assign them their duties and pay; make laws for the
government of the instructors and the students; and fill vacancies in their




296                  MISCELLANEOUS WRITINGS.
own body; but are restricted in their powers, and can do almost nothing
without the expressed assent of the Overseers.
" The Overseers are the last and highest body for the government of the
College. They hold their power by virtue of the Act of 1642, the Constitution of 1780, and the Statutes of 1810 [&] 1814, and consist of the Governor
of the Commonwealth, the Lieutenant-Governor, the Council, the Senate,
~. and the Speaker of the House of Representatives; in all fifty-three
persons; together with the President of the College, and fifteen laymen and
fifteen clergymen, elected, and to be elected, from the community at large,
by the whole Board; so that out of eighty-four members of the upper Board
for the government of the College, fifty-three are annually elected by the
people, and, therefore, completely and truly represent the public interest in
the institution."
" On the 2d of April, 1824, eleven of the resident teachers, namely, five
Professors engaged in the instruction of undergraduates, two engaged in the
instruction of graduates, and four Tutors, offered a memorial to the Corpoporation," containing certain' statements and considerations relative to the
mode in which, according to the charter of the institution, the Corporation of
the same ought of right to be constituted,' (Memorial, p. 1,) and preferring to
the Corporation as'matter of chartered right,'' the claim of the resident
Instructors to be elected to vacancies in the Board of the President and
Fellows.' (Mem. p. 31.)
"To this memorial the Corporation returned no formal answer, on the
ground, as has been stated by the memorialists, that, if the claim were well
founded, the members of the Corporation, to whom it was sent, not being
rightfully' Fellows' of the College, were not competent to perform any act
in its government; and could only resign their seats. On the 1st of June,
nine of the same memorialists presented the same claim and memorial to the
Overseers; giving, as one reason for presenting it at that particular juncture,
that they understood the Overseers were then engaged in considering important measures relative to the organization of the College. This memorial
was by the Overseers referred to a committee, and so the matter rested for
some months." - Remarks, pp. 11, 12, 13.
"' After this memorial had been presented to the Overseers, a report on it
was made, January 6, 1825, by Mr. Hill, of the Council, on behalf of the
committee appointed to consider the subject, in which report it is maintained,
that it is not necessary, by the charter or otherwise, that the Fellows of Harvard College be either resident in Cambridge, Instructors, or Stipendiaries.
The memorialists desired to be heard in reply. They were so heard on the
4th of February; Professor Everett and Professor Norton appearing on their
behalf. The discussion was very interesting, and one of the most thorough
ever witnessed among us. It lasted three days. At the end of this time,
the following resolutions were unanimously adopted, at a remarkably full
meeting of the Overseers:' Resolved, That it does not appear in this Board,
that the resident Instructors in Harvard University have any exclusive right
to be elected members of the Corporation. Resolved, That it does not appear
to the members of this Board, that the members of the Corporation forfeit
their offices by not residing at College.'
"It may be added to this, that, as a legal question, few have ever been
examined among us with more laborious care, or by persons better qualified
to decide what is the law. In the Corporation, at the time, were Mr. W.
Prescott, Mr. H. G. Otis, and Mr. J. Davis, District Judge of the United
States. In the Board of Overseers, Mr. Justice Story, of the Supreme Court
of the United States, delivered his opinion against the memorial in a long
argument. He was succeeded, on the same side, by Chief Justice Parker,




RIGIITS OF THE FELLOWS OF HARVARD UNIVERSITY. 297
of the Supreme Court of Massachusetts, Mr. Justice Jackson, Mr. F. C. Gray,
and some other persons of distinguished talent. On the final question, not
a voice was raised in the Board, or elsewhere, I believe, in favor of the memorial. The profession, in particular, seemed unanimous on all the points;
and many years will probably elapse before any important question will be
decided with such a great weight of legal talent and learning, after so long,
so patient, and so interesting a discussion." - Remarks, pp. 25, 26.
"The charter of 1650, under which chiefly the Corporation hold their
powers, and the memorialists make their claim," (Remarlks, p. 13,) commences
as follows:" Whereas, through the good hand of God, many well devoted persons
have been, and daily are, moved and stirred up, to give and bestow sundry
gifts, legacies, lands, and revenues, for the advancement of all good literature,
arts, and sciences, in Harvard College, in Cambridge, in the County of
Middlesex, and to the maintenance of the President and Fellows, and for all
accommodations of buildings, and all other necessary provisions, that may
conduce to the education of the English and Indian youth of this country, in
knowledge and godliness; -
"It is therefore ordered and enacted by this Court, and the authority
thereof, for the furthering of so good a work, and for the purpose aforesaid,
from henceforth, that the said College in Cambridge, in Middlesex, in New
England, shall be a Corporation, consisting of seven persons, namely, a President, five Fellows, and a Treasurer or Bursar; and that Henry Dunster shall
be the first President, Samuel Mather, Samuel Danford, Masters of Arts,
Jonathan Mitchell, Comfort Starr, and Samuel Eaton, shall be the five Fellows, and Thomas Danford to be present Treasurer, all of them being inhabitants in the Bay, and shall be the first seven persons, of which the said Corporation shall consist; and that the said seven persons, or the greater number
of them, procuring the presence of the Overseers [rendered unnecessary by
the Appendix of 1657] of the College, and by their counsel and consent,
shall have power, and are hereby authorized, at any time or times, to elect
a new President, Fellows, or Treasurer, so oft, and from time to time, as any
of the said persons shall die or be removed; which said President and Fellows, for the time being, shall for ever hereafter, in name and in fact, be one
body politic and corporate in law, to all intents and purposes; and shall have
perpetual succession; and shall be called by the name of the President and
Fellows of Harvard College, and shall from time to time be eligible as aforesaid." — Mass. Col. Laws,,c. 78, 79.
Besides the Memorial, and the Remarks of Mr. Ticknor, several other
pamphlets have been published in relation to the claim of the resident Instructors, namely, " Remarks on a Pamphlet printed by the Professors and
Tutors of Harvard University, touching their Right to the exclusive Government of that Seminary." "A Letter to John Lowell, Esq., in Reply to
a Publication entitled, Remarks on a Pamphlet," &c. This letter is from the
Hon. Edward Everett, then a Professor in the College. " Speech delivered
before the Overseers of Harvard College, February 3, 1825, in behalf of the
Resident Instructors of the College; with an Introduction. By Andrews
Norton."  "Report of a Committee of the Overseers of Harvard College on
the Memorial of the Resident Instructors."
It will be at once perceived, that the argument is strictly confined to the
mere question of legal right. The author, in opening his speech, expressly
disclaimed any intention to inquire into the expediency of such a choice,
supposing it not a matter of right; considering that to be a topic of a very
large and comprehensive nature, and that no case was then before the
Board, which required or invited such a discussion.]




298            MISCELLANEOUS WRITINGS.
I REGRET that I am compelled, by a sense of duty, to enter
upon the discussion of the question presented by the Memorial, at the distance of more than a century and a half after
the foundation and charter of the college. I entertain a very
great respect for the Memorialists. Some of them were the
instructors of my youth, while I was a student at the university, and for them I feel much of filial reverence; others
of them I have the pleasure of being well acquainted with by
their literary and scientific acquirements; and others of them
I feel myself at liberty to name among the friends whom
I most honor. Under such circumstances, I should be glad,
if I could, to escape from the embarrassment and responsibility of a public discussion, in which my judgment requires
me to dissent from claims, which, whatever may be my personal respect for the Memorialists, I am convinced are utterly
unfounded in law.
Considerations of this nature have pressed upon my feelings; but I have yielded them up to a sense of duty. This
Board has a right to demand from the members of it, who
have been bred to the profession of the law, a clear view of
their own opinions upon the question as a matter of law;
and the suggestions of my friends have led me to believe, that
upon such an occasion, silence on my part would not be
deemed excusable.
But there is another matter of regret which I am bound to
acknowledge, and which I trust will be accepted as an apology for any imperfections and infirmities in my argument.
The question is one quite remote from the ordinary occupations and studies of lawyers in this country. It has not, as
far as I know, been stirred here for a century; and, unfortunately little or nothing of the grounds of the opinions and
reasonings of that distant period can be now gathered up to
aid or enlighten the present inquiry. It would have been
desirable on my own part to have consulted at large the
charters, foundations, and statutes of the colleges in the
English Universities; and to have fortified myself by an inti



RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY.  299
mate study of all the peculiarities as well of their language
and legal construction as of the usages under them, so that
I might have been better prepared to meet any objections.
But the best works on such subjects are not generally within
my reach or within that of my friends. I am obliged, there.
fore, to rely upon books and authorities, which, though perfectly satisfactory upon the leading principles, are less full
and exact in details than I could have wished. I have in
some instances been obliged to gather up fragments of facts,
and put them together in order to illustrate positions, which
appear to me in a legal view absolutely irresistible. Few
controversies of a nature like the present have ever come
before the English courts of justice; and where they have
been settled by the visitors of a college or their assessors
upon legal principles, they are either locked up in works not
generally accessible, or left merely upon the manuscript
records of the colleges to which we have no access.
Notwithstanding these disadvantages, I have an entire
confidence, that the conclusions to which I have arrived are
perfectly well founded in point of law. They rest upon
principles which, as a lawyer, I think either do not admit of
serious controversy, or, if controverted, can be satisfactorily
maintained. And I trust in many instances I shall be able
to establish, by suitable illustrations, that they are justified
by the highest authority.
I will now, after these prefatory remarks, beg the indulgence of the Board while I invite their attention, and particularly that of my legal friends who are members of it, to my
argument. Some of its details may be dry and uninteresting; some of them may be thought superfluous; and some
of them such as lawyers, at the first presentation of them,
would not deem necessary to be farther expounded. My
excuse must be sought in the great deference I feel for the
Memorialists themselves. I am unwilling to have it thought,
for a moment, that any thing which they deem in any degree
important as bearing upon their case, should not be met and




300            MISCELLANEOUS WRITINGS.
answered with directness and in a spirit of candor, whatever
may be the value which others may attribute to it.
I shall have occasion, in the course of the discussion, to
allude to a pamphlet containing a vindication of the doctrines of the Memorial, which has been attributed to one of
the learned professors, and which I shall the more freely
allude to because it purports to invite public discussion, and
its authorship is not attempted to be concealed. In so doing
I trust I shall not be suspected of feeling towards the learned
author any thing but respect and friendship.
The object of the Memorial is to show, that the Corporation of Harvard College, as at present organized, is not conformable to the charter of 1650. The proposition maintained
is, that, by " Fellows," in the charter, is meant a particular
description of persons, known in English colleges, and, at
the time of the charter, existing in Harvard College, and
having known rights and duties. The Memorial then asserts
and endeavors to prove, that "Fellow" imports a person
resident at the college, and actually engaged there in carrying on the duties of instruction or government, and receiving
a stipend from its revenues." 1 In the view of the Memorial,
each of these facts, residence, instruction or government, and
receiving a stipend, constitutes a necessary part of the definition of a " Fellow."  And it is contended by the Memorialists, that this is the meaning attached to the word in the
charters of the English colleges; that it was so actually
applied in Harvard College before 1650; and that, consequently, it is the true and only sense of the term in the charter of 1650. The Memorial seems to maintain, that no persons but such as have the necessary qualifications at the
time of the choice, are eligible as Fellows.2 But if it does not
go to this extent it maintains, that, after the choice, the party
must be a resident, an instructor or governor, and a stipendiary.
1 Page 2.            2 Pages 2, 4, 7, 30.




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY.  301
My first object will be to ascertain whether the above definition of " Fellow " be true and correct, as applied to English
colleges; for on this definition the whole argument rests. I
shall contend, and endeavor to show: 1. That the term,
"Fellow," when used in the charters of English colleges, has
no peculiar meaning, distinct from its ordinary meaning of
associate or socius: 2. That the qualifications of Fellows
are not the same in all the colleges; but vary according to
the requisitions of the charters, and the successive statutes of
the particular foundations: 3. That, as an enumeration of
the particular qualifications of Fellows in the colleges generally, the above definition is incomplete: 4. That the objects
of these Fellowships are very various; and generally, if not
universally, of a nature wholly distinct from any, which
the Memorial itself supposes to be the principal object of the
charter.
1. The meaning of the word, " FELLOW." - This word is
by no means confined to college charters. It occurs in charters of a very different description. Thus the Royal Society
is incorporated by the name of the " President and Fellows."
So the College of Physicians. So the American Academy of
Arts and Sciences. So the Medical Society of Massachusetts. In these and like cases, no person supposes, that the
word imports any thing more than member or associate.
Johnson, among his definitions of "Fellow," enumerates as
one, " a member of a college, that shares its revenues, or of any
incorporated society."  We also speak of the Chief Justice of
a court and his Fellows; of the Foreman of the Grand Jury
and his Fellows. The oath of the Grand Jury declares,
" The United States' counsel, your Fellows', and your own,
you shall keep secret."
In all these cases, the word companion, associate, or confrere, might be substituted indifferently for Fellow. If there
be any peculiar force in the term, it is, that it imports equality
in general rights. Why, then, should it be supposed to be
used in any other sense in a college charter? It cannot be
26




302             MISCELLANEOUS WRITINGS.
from the nature of the objects to be attained, for these might
be attained by persons under any other denomination; nor
from any peculiar structure of college institutions, for these
exist under very various charters at home and abroad. The
corporate name of Dartmouth College is, " The Trustees of
Dartmouth College." The ends can be obtained as well
without Fellows as with; as well by incorporating a distinct
body as by incorporating the college instructors. Many of
the trustees of Dartmouth College, in the original charter
were non-residents, and so described in the charter. Many,
who have been since elected, were non-residents, and continued such.
The sole ground of the memorialists must be, that the
word has a fixed meaning as to English colleges; and is, as
it were, so appropriated by art, as necessarily to import in a
college charter something more than associate. If so, then
the word would naturally be used in all English college
charters; and " Fellows" could not exist where the charter
did not create them  eo nomine. But how is the fact?  Let
us take a few of the colleges at Oxford.
Brazen Nose College; founded in 1509. Name-" Principal and Scholars of King's Hall and Brazen Nose College
in Oxford."  Yet there are in this college twenty fellows,
thirty-two scholarships, and fifteen exhibitions, on the foundation.
Trinity College; founded in 1554, by name of the " Master, Fellows, and Scholars of the College," &c. &c.2 There
are on the foundation, a president, twelve fellows, twelve
scholars, and four exhibitions.
St. John's College; founded in 1557. The charter is for a
president, and fifty fellows oR scholars.3
Christ Church College; founded by Cardinal Wolsey and
Henry VIII., 1532: a collegiate church. Name- -" Dean
1 Oxford Guide, ed. 1822, p. 67.
2 Oxf. Guide, 119. 2 Bro. Par. Cas. 221. 1 Ayliffe, Hist. Oxf. 40.
3 1 Aylh 418, 419.




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY.  303
and Chapter of the Cathedral Church, &c. in Oxford," &c.1
On the foundation are the dean, eight canons, eight chaplains, one organist, eight clerks, one hundred and one students, and a schoolmaster, and usher. This is a very material case. No Fellows are named. What says the Oxford
Guide?  In college phrase, "A  student is one of the one
hundred and one members of that name at Christ Church,
whose rank is similar to that of' Fellow' of other colleges."'" The number of members on the books is about seven hundred, amongst whom are three hundred and forty-five members
of convocation." 2 This college is governed solely by the laws
of the Dean and Chapter of the Cathedral Church.3
Corpus Christi College; founded 1516.  Name-" Collegium  Corpus Christi Oxonii."  It originally had on its
foundation a president, twenty scholars, and two chaplains:
it now has a president, twelve fellows, twenty scholars, four
exhibitions, two chaplains.4
Merton College; founded 1274.  Its name originally,
". Custos et Scholares Domus de Merton;" 5 and also, "Guardiani et Scholarium Domus, sive Collegii Scholarium de Merton in Universitate Oxonii." 6 The old colleges sometimes
used more than one name. This college has now a warden,
twenty-four fellows, fourteen postmasters (postrinistam), four
scholars, two chaplains, two clerks.
Peter House College, founded Cambridge, 1284. Name -
" The scholars of the Bishop of Ely."  " The number of
persons on the foundation, being the number mentioned in
the statutes, consisted of a master and fourteen fellows,
sometimes called perpetual scholars, eight poor scholars, and
two bibliotists. There had been other fellowships and scholarships annexed at different times and by different benefactors; but these had never been considered as conferring on
those who held them, any privileges as members of the so1 2 Ayl. 47. Oxf. Guide, 159.  2 Page 179, 180.
3 1 Ayl. 246.                 4 1 Ayl. 394. Oxf. Guide, 169.
5 1 Ayl. 273, 275.            6 2 Ayl.




304               MISCELLANEOUS WRITINGS.
ciety." l The statutes given by Simon de Montacute, Bishop
of Ely, 1344, are addressed " Magistro et Scholaribus domus
nostrae Sancti Petri. Cantab."; and he directs that these
fourteen " Scholares essent perpetui et studiosi," &c.2  The
statutes constantly designate what are now called " Fellows"
as scholares.3
From these citations it is apparent that there is nothing
technical in the word " Fellow," as applied to colleges; that
it is sometimes not found in the words of the charters, and
yet exists in the foundation; that it is sometimes used as
synonymous with student (studens), sometimes with scholar
(scholaris); while at other times it imports something different, depending upon the usages and statutes of the foundation.
Mr. Kyd views the word exactly in this light.  He says,
"' In the colleges of the Universities, there are, in general,
beside the head of the college,4 two classes, the scholars and
the fellows, each class having some rights and privileges.
distinct from the other; and where there are either only
scholars or only fellows, or where the terms scholars and fellows are synonymous, which is sometimes the case, there is
generally a distinction between junior and senior fellows, and
junior and senior scholars. Independent members, usually
called'fellow-commoners,' are mere boarders, and have no
corporate rights." 5
In corroboration of these remarks I may add, that the
Universities both of Oxford and Cambridge, which embrace
all the colleges, and in convocation all the members of the
government of the respective colleges are incorporated by the
name of " The Chancellor, Masters, and Scholars of the
University" of Oxford and Cambridge, respectively. 6
I Rex v. Bishop of Ely, 2 T. R. 290, 291.  2 Id. 296.
3 Id. 299, 302-305.
4 The head has different names in different colleges — Dean, Rector, Provost, Warden, President, Master, Principal.- Oxf. Guide, 179.
5 1 Kyd, Corp. 329, 330.
6 Stat. 13 Eliz. Prynne, Animad. 166; 1 Ayl. 197.




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY. 305
We may deceive ourselves by affixing to the words used
in English colleges the sense in which we are accustomed
to use them. Thus, scholar with us means an undergraduate,
who is taught; so does student. But in Oxford, " scholars,"
in some few colleges, are probationary fellows; in others,
they are mere beneficiaries, having an annual sum allowed
towards their education. The Oxford Guide says, (p. 180)
" Strangers are often perplexed with the terms scholar and
student, and sometimes apply them indiscriminately to all
members of the University.  By a scholar of a college is
meant the person who holds the rank above-mentioned, and
that of a student is one of the one hundred and one members
of that name at Christ Church, whose rank is similar to that
offellow of other colleges." It is plain, therefore, that scholar
and student do not import there, as with us, all undergraduates, who resort there for education; but fellows and scholars
on the foundation.
From the facts which I have stated, I derive the conclusion that, for all the purposes of a college charter, the terms
Fellow, Scholar, Socius, Associate, Student, may be used,
nay, are used, to indicate the same general thing; and that
the rights depend, not on the name, but singly and solely on
the government provided by the charter, and by the statutes of
the foundation. If so, the term " Fellow" imports no more
in a college charter, than in any other act of incorporation.
This, however, will be more clear as we advance in our discussion of some other points. Lord Mansfield, in Rex v.
Dr. Askew, 4 Burr. 2195, says, "I consider the words Socii,
Communitas, Collegium, Societas, Callega, and Fellows, as
synonymous; and every socius or collega as a member of
the society, or corporation, or college." So Plowden says,
(p. 103,) Master and Fellows "is the usual recital of a corporation." The case turned on the point.
II. The qualifications of Fellows are not the same in all
the colleges, but vary, being entirely governed by the charter
and statutes of the foundation.
26 




306              MISCELLANEOUS WRITINGS.
The Oxford Guide says, (p. 180,) " The qualifications for
fellowships vary in almost every society. The Fellows are,
according to the statutes of the college, elected from certain
public schools, and admitted on their arrival in Oxford; or
they are young men who, having studied and distinguished
themselves in other colleges, offer themselves as candidates,
and are selected by the votes of the Fellows. In some societies they are confined to the natives of particular counties, or
elected from the scholars; and in others the kindred of the
founder have peculiar privileges."  It adds, (p. 180) " The
Fellows, in conjunction with the head of the college are, in
all cases, the directors of the internal regulations of their
society, and the managers of its property and estates." In this
passage there is a slight mistake; it should be, in most cases.
Thus, in All-Souls College, Oxford, founded in 1437. The
college is composed of a warden and forty fellows, two chaplains, six clerks, of kin to the founder, or born in the province
of Canterbury. l_ New  College, founded in 1379.  The
foundation is seventy fellows from Winchester College,
ten chaplains, &c.-2 -Wadham  College, founded in 1613.
The fellows are chosen from the scholars of the college.3Corpus Christi College. The fellowships must be distributed
among natives of different counties.4  So, the Bishop of
Durham in 1403 gave a manor to University College, for the
maintenance of three fellows born in York or Durham, without respect to degrees, and though undergraduates. 5
It is remarkable that in no instance is previous residence
required, as a distinct qualification; though in some instances
it may be inferred, in connection with other qualifications;
as where the qualification is that the party, to be a Fellow,
must be elected from the scholars of the same college. There
are many other qualifications and limitations as to Fellows.
These will more properly fall under the subsequent heads.
III. The enumeration of qualifications in the Memorial is
1 Oxf. Guide, p. 58.     2 Id. 95.        3 Id. 101.
4 1 Ayl. 394.            5 Id. 152.




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY. 307
incorrect and incomplete. It refers to three things, as constituting necessary qualifications, viz.: Residence, Instruction,
and Government, in the college.
1. As to Residence. - This is often required; not by the
terms of the charter; not ex vi termini Fellow; but from the
statutes of the foundation.
But residence is not universally required. This may be
inferred from several authorities. Thus, in Rex v. Grundon,l
where a fellow-commoner was excluded from the college gardens of Queen's College, Cambridge, on an indictment, one
question was whether he was legally expelled, it having been
done by the Master and less than a majority of the Fellows.
The statute was, that it should be done, " de consensu Presidentis et majoris partis sociorum." It was said,'that this
had already been considered in construction as meaning, of
the Fellows resident in the college.2 Lord Mansfield and
the Court thought the construction right. Now, the question could not have arisen if there had not been non-resident
Fellows.
So Dr. Radcliffe's foundation in University College.3 It
is expressly for the support of two persons, elected out of the
physic line, for their maintenance for ten years in the study
of physic, and to travel half the time. Lord Hardwicke considered these as Fellows and members of the college, though
not required to be residents.
But what is decisive, as coming from the highest authority,
is what Lord Camden says, in Hayes v. Long.4 It was a
case against a non-resident Fellow of Christ Church College. It is to be remembered, that there are no Fellows, eo
nomine, in that college; but they are called Students. The
University of Oxford claimed cognizance of the law under
its charter. The Court denied it, holding that the party,
being a curate at Benson, (twelve miles south of Oxford,)
was a non-resident Fellow; and none but resident Fellows
Cowper, 315.                       2 Id. 322.
3 Atty. Gen. v. Stephens, 1 Atk. 358, 360.  4 2 Wils. 310.




308              MISCELLANEOUS WRITINGS.
were entitled to the benefit.  Lord Camden said, "Great
numbers of persons remain on the books, long after they have
left the University, on purpose to vote for members, &c.;
many who are Fellows of colleges never go thither at all. I
myself was one for a long time and never went there at all."
So Sir William Jones, (Oxford,)  Mr. Justice Blackstone,
(All-Souls College,) 2 were Fellows long after they ceased to
reside at college; Mr. Blackstone from 1743 to 1761; Sir
William Jones from 1766 to 1783. Johnson, in his Lives of
the Poets, states that Prior, the poet, at fifty-three years of
age had no resource but his fellowship (p. 340); yet Prior
was not a resident. It is clear, therefore, that residence is
not a universal qualification of a Fellow, though probably by
the statutes of a particular college it very often is made so.
2. As to Instruction. —I have no doubt, that the Fellows
are not ipso facto required to be Instructors or Tutors. In
none of the statutes or charters (summarily stated) that I
have seen, is such a qualification spoken of, as attaching to
Fellows necessarily. Can the one hundred and one Fellows
of Christ Church College be all Tutors in that college, when
the greatest number of members of all sorts are not more
than seven hundred, half of whom are not residents? I
think I shall by-and-by show, that, as Fellows, they never or
rarely are Tutors.
It is stated in the Oxford Guide generally, that " The Tutors [not the Fellows] undertake the direction of the classical,
mathematical, and other studies of the junior members [that
is, of the college.] Many of the undergraduates have also
private tutors." (p. 180.) This paragraph occurs in a gene.
ral description of the officers, &c, and after the description
of Fellows as a distinct class.
Trinity College, or Hall, Cambridge, has a foundation of a
Master and twelve Fellows.  "Ten of the Fellows were
usually laymen; and two were in holy orders, who performed
I See Lord Teignmouth's Life, 36, 93, 113, 142, 221.
2 Preface to W. Blackstone's Rep. 7, 9, 10., 13, 16.




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY. 309
the duty in the chapel, and were usually the college tutors." I
This shows, that the other ten were not.
Ayliffe, in his History of Oxford, says,2 that scholars in
every college are to have their tutors, till promoted to a degree; and no one may be a tutor, unless a graduate of some
faculty, of learning, and probity, and religion, to be approved
of by the head of the house wherein he lives. How can this
be, if the Fellows are ex officio " Tutors?"
The very case cited in page third of the Memorial, as to
Dr. E. Calamy, as Tanquam Socius of Pembroke Hall, is in
our favor. He was entitled to the society of the Fellows,
and had additional privileges, one of which was pupillos,
leave to take pupils. From which I should infer, that this
was a peculiar privilege of some, instead of a common duty
of all Fellows.
3. As to the government of the college. — This, probably,
more generally than. any other thing, attaches to the Fellows.
But it attaches to them, not as Fellows, but as corporators,
where the charter gives the authority.
But all Fellows do not participate in the powers or authorities of the college. It is manifest, that, whether they do or
do not, must depend upon the charter and statutes of the
founder. So Ayliffe says.3
The Oxford Guide says, " The members of the University
may be divided into two classes; those on the foundation,
commonly called dependent members; and those not on the
foundation, termed independent members.
" The independent members consist of such persons as repair
to the University for their education and degrees; but who,
as they have no claim on the estate of the society to which
they belong, so they possess no voice or authority in its
management; and during their residence in a college or hall,
they are supported at their own expense."4
"' The dependent members, or members on the foundation,
Ex parte Wrangham, 2 Ves. jr. 609.  2 2 Ayliffe, 115.
3 Ib. 29.                          4 Oxf. Guide, p. 179.




310             MISCELLANEOUS WRITINGS.
are as follows: - The head of the college, the fellows, (called
students at Christ Church,) the scholars, (called demies  at
Magdalen,) chaplains, and Bible clerks.
" The dependent members derive emolument from the
revenues of their societies; and on some of them the management and discipline of the whole body devolve." 2
"The independent members are noblemen, gentlemen-commoners, (at Worcester called fellow-commoners,) and commoners." 3
In Christ Church College we have already seen that there
are Fellows on the foundation; but the government of the
college belongs exclusively to the Dean and Chapter.4
In many of the colleges the original foundation provided
for a limited number of fellowships only. Where the charter
admitted of an increase of the number without violating its
provisions, new fellowships have from time to time been
ingrafted on the college; and in such cases the new ingrafted
Fellows enjoy the same privileges as the old, the corporators
only being increased.
The doctrine of law is, that, if the charter does not restrict
the number of Fellows, all new ones partake of the original
privileges and duties. So, in St. John's College v. Todington,5 it was held. So, in Attorney-General v. Talbot, 1 Ves.
78, 475; S. C. 3 Atk. 662.
But where the charter restricts the Fellows to a particular
number, there, though there may be new ingrafted fellowships, yet the latter have no privileges in the government, like
the old, but only partake of the bounty of their own founder.
They are no part of the collegiate body. It is so said by the
Attorney-General, in Attorney-General v. Talbot, 3 Atk. 662,
670, and admitted by the Court, Id. 674. The same doctrine
was held in Rex v. Bishop of Ely, 2 Term Rep. 290.
1 So called originally on account of their being entitled to half commons
only.
2 Oxf. Guide, 179.             3 Id. 183.
4 1 Ayliffe, 240.              5 1 Burr, 158.




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY. 311
Therefore, in Peter-House College, where the number of
Fellows is by the statutes of the foundation restricted to
fourteen, and other fellowships have been since ingrafted;
these latter, though called Fellows, have no corporate rights
or authorities.l
It seems clear, from the foregoing statements, that in the
English colleges the Fellows are not necessarily either residents, tutors, or governors. I imagine the only thing common to all (and that I only conjecture) is, that they are all
stipendiaries, or members on the foundation. And here I
might advert to some other circumstances respecting English
Fellows, which will show that other adjuncts, as well as residence, &c., attach to them. But I reserve them for the fourth
head.
IV. The original intention and objects of the English Fellowship are very materially different from those, which the
Memorial supposes to be the main objects of the same office
in our college.
I need not advert to the known fact, that all colleges are
eleemosynary corporations. Lord Holt says, " There is no
difference between a college and an hospital, except only in
degree. A hospital is for those that are poor, and mean, and
low, and sickly. A college is for another sort of indigent
persons; but it hath another intent, to study in, and breed up
persons in the world that have not otherwise to live." 2 What
I mean to assert is, that the sole scope and design of the
English colleges were to provide maintenance and funds to
educate persons; that the Fellows (by whatever name they
were called, whether Fellows, Scholars, Students, or otherwise,) were not intended to be instructors, but to be themselves instructed; that the object was to enable the Fellows
to go to the colleges to learn, and not to give learning to
others. If this be established, how will it be possible to
affirm, that the charter of Harvard College of 1650 could
1 2 T. R. 291.         2 Phillips v. Bury, 2 T. R. 291.




312             MISCELLANEOUS WRITINGS.
intend the same sort of persons? The whole Memorial disavows it.
Colleges were founded ad orandum  et studendum, says
Ayliffe,l for prayer and study. This is true; but it is also
true that the Fellows themselves were to pray and to study.
Let us recur to some of the foundations of the principal
colleges.
In All-Souls College, the statutes of the founder direct,
that twenty-four of the Fellows (the whole number being
forty) shall apply themselves to the study of philosophy and
divinity, and sixteen to the science of the civil and canon law.
The latter are called lawyers, the former artists.2
In Magdalen College some of the Fellows are expressly
required to be of a particular diocese, and educated in the
study of divinity only; as Mr. Ingledon's. The original
foundation was for poor and indigent clerks in the University,
studying the arts and sciences.3
In Brazen-Nose College, the original statutes confine the
Fellows to the study of divinity and philosophy: "For a
principal and sixty scholars to receive an education in philosophy and divinity here." 4
In University College, the Bishop of Durham founded
three fellowships, for the maintenance of three Fellows,
though undergraduates.5
In New College the founder divided his Fellows into artists
and lawyers; namely, ten civil law, ten canon law, and the
remaining fifty to study the arts and divinity.6
In Exeter College the original statutes direct, that the persons to live on this charity shall not exceed thirteen; namely,
one student in divinity, one in law, the other in philosophy.7
In Trinity College, (Oxford,) the original statutes direct
the college to be for poor and indigent scholars in the University; twelve are styled Fellows, to be educated in the study
1 2 Ayl. 3.    2 1 Ayl. 338.    3 Id. 347.    4 Id. 378.
5 Id. 152.     6 Id. 315, 319.  7 Id. 207.




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY. 313
of philosophy and divinity; eight called scholars, to be educated in logic, rhetoric, &c.1
In St. John's College the charter is for a president and
fifty Fellows or scholars; twelve to be lawyers, three chaplain priests, three lay clerks, to live unmarried, and sixty
choristers.2
In Pembroke College seven of the fourteen Fellows are to
be in holy orders.
In Christ Church College, originally, of the one hundred
students or Fellows, forty were required to be grammar
scholars; and Queen Elizabeth converted these forty into
students.3
And I believe it will be found that the object uniformly
was to educate the Fellows, so as to fit them for the learned
professions, and principally for the church. In 4 Mod. 84, it
was said by counsel, arguendo, " A fellowship of a college is
for a private design only,,to study."
Dr. Radcliffe's fellowships, already referred to, were of this
nature. They were for the maintenance of two persons, for
ten years, in the study of physic, to travel half the time.4
This leads me to another topic, the duration of fellowships. The English fellowships are not all perpetual, that
is, during life, if the party behaves well. Some undoubtedly
are; as in Peter-House, Cambridge; for the statutes of the
foundation are, that they shall be scholares perpetui et studiosi, insistentes studio literarum.5  But this is far from being
universal.  We see Dr. Radcliffe's are only for ten years.
In Wadham College, founded in 1613, by the statutes, the
Fellows are superannuated, and resign their fellowships, on
the completion of eighteen years from the expiration of their
regency.6
In Baliol College, founded in 1263, at first each Fellow
1 1 Ayl. 412.              2 Id. 418, 419.
3 Id. 440.                 4 1 Atk. R. 358.
5 2 T..L 296, 297.        6 1 Ayl. 434.
27




314             MISCELLANEOUS WRITINGS.
received only 8d. per week, and was under an obligation of
leaving the college, as soon as he had taken a master's degree.1
Probably most fellowships were not looked upon as permanencies, but merely as places before preferment. I observe that Mr. Brown, in arguing in 3 Atk. R. 669, says, that
the fellowships in the Universities, one with another, are not
of great value, perhaps not above ~24 or ~25 a year.
I believe it is agreed on all sides that the Fellows of Harvard College, under the charter of 1650, hold their offices
during good behavior. So Mr. Everett agrees in his pamphlet.
There are some other circumstances attached to fellowships
in England which deserve notice.
Ayliffe says, that the founders of the colleges have generally provided, not only, that the heads should be divines;
but that the Fellows also should in a competent time enter
into holy orders. This shows that Fellows were there to learn
and to qualify themselves for the church.
So " the Fellows cannot marry, nor succeed to a college
living, nor indeed to another, beyond a certain value, without
relinquishing their fellowships." 2
Probably there are many other peculiarities attached to
them, which a minute inspection of the charters and statutes
(which I regret are not within my reach) would exhibit.
To conclude this summary. From these remarks, we perceive that it cannot be maintained for a moment, that the
term " Fellow" necessarily imports a resident, an instructor,
a governor of a college, or a corporator, in England. Nor is
there any identity in the rights, duties, powers, privileges,
tenure of office, or qualifications of English Fellows. The
name itself is often away, when the party is still deemed,
though not styled, a Fellow. How, then, can it be correctly
1 Id. 263, 268.          2 Oxf. Guide, 190.




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY. 315
said, that a " Fellow " means in the charter of 1650 a certain
personage, whose duties and qualifications are well known
and fixed?
If it be said that Fellows must be residents; many of the
English Fellows are non-residents.
If it be said that they must be instructors; many (I presume most) of the English Fellows are not instructors.  So
far from it, the object in the original creation of most, if not
all, of the foundations, is charity, - to support the Fellows
in their own studies, and not in teaching others. They may
now teach; but it is a distinct business from their fellowships, for which, I doubt not, they receive a distinct compensation.
If it be said, that they must be Corporators, or members
of the Corporation, entitled to exercise the government, and
conduct the revenues of the government; there are many
English Fellows, who have no such authority, and are not
corporators. Even a part of the body named in the charter
may not have a title to such government. Some colleges
are incorporated as Master, Fellows, and Scholars.  Now,
though " scholars," as here used,'does not mean, what we call
" scholars," but beneficiaries of a certain grade; yet I do not
doubt, that in some cases the " scholars" are altogether
excluded from the government by the statutes or charters.
Traces are to be found in our books leading to this conjecture; but I affirm nothing positively, because I have not yet
seen a direct case. Where " scholars" are, or may be, undergraduates, or grammar scholars, (as some foundations are,) it
is presumable that they are not governors. Certain it is, that
such statutes may be made, and such charters granted.
So, many English Fellows are required to study particular
branches of science, as divinity, law, philosophy, the civil
law, the canon law; to be clerks; to be artists; to be medical students; to be poor and indigent; to be in holy orders;
as qualifications for the office.
Many English Fellows hold their places for life; some for




316              MISCELLANEOUS WRITINGS.
years; some merely until they graduate as masters. Acceptance of church livings, or possession of church livings of a
certain value, vacates some fellowships, and constitutes ineligibility. Livings of a less value constitute no vacancy or
ineligibility. Absence for six months vacates some fellowships.1 Travelling for five years is indispensable as a qualification in others, (Dr. Radcliffe's Fellowships.)
Some English Fellows are chosen from particular schools;
some from particular colleges, counties, dioceses; some from
inferior grades of persons in their own college, as scholars,
probationary Fellows; some from the University at large;
some must be graduates; some must be undergraduates.
It is said, "All fellows are bound not to marry." Celibacy
is, therefore, it seems, a universal qualification.
What qualifications, then, are we to take, or reject? Shall
we say, that all must be residents, because some are? that all
must be tutors, though all originally were pupils or students?
that all must be corporators, or collegiate governors, when a
part only are, or were? Why not take the opposite course;
and say, that all may be non-residents, because some are,
&c.?
If universality of qualification be the ground of adoption
of a similar qualification here, then all our Fellows ought to
be in celibacy. Who in America ever contended for that,
from the charter of 1650 downwards?
The truth is, the word "Fellow" has not, as to colleges,
any peculiar meaning.  The students at Christ Church; the
demies at Magdalen; the scholars in some other colleges, are
Fellows in fact, though not in name. Why? Because
they are known admitted members on the foundation. Ingrafted Fellows are not the less Fellows, because they constitute no part of the original or present college Corporation.  Why?  Because " Fellow" imports no particular
powers, authorities, or duties; but simply Socius, Associate,
1 2 Term Rep. 291.




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY. 317
or Member of the foundation, entitled to such privileges, and
such only as the charter or statutes define or admit.
When, therefore, we construe the charter of 1650, we must
construe it upon its own terms, and apply to the persons
named therein such powers, and authorities, and qualifications, as the charter itself provides, and no other. Where
the charter is silent, we are not at liberty to insert any limitations.
If I am right in this view of the case, the ground proposed
by the Memorial must be surrendered. If the main argument fail, there is an end of all that follows.
If there be not an identity between our Fellows and the
English Fellows, or between all of the latter, as to rights,
duties, and privileges, I do not see how any argument can be
bottomed on it. Conjectural similarity is of no importance.
Until we can definitely affirm, what ours are, and theirs are,
we cannot proceed; for until that is done we can institute no
process of comparison, as to similarity or dissimilarity. In
the order of things, therefore, the first point is to ascertain
what our Fellows are.
But I propose to notice some of the auxiliary grounds
stated to fortify the principal one.
V. It is said, that there were persons in the College at the
time of the charter: and previously, known -by the denomination of " Fellows."  This I freely admit., The preamble of
the charter states it; the form of admission states it; and
other college records recognize it. The Memorial does not
pretend that there is any thing in the college records before
the formula of admitting Fellows, that recognizes it. When
that formula was first adopted is not stated, or exactly
known. But it appears in the college records immediately
after " certain orders by the scholars and officers of the college
to be observed," under date of 28th March, 1650. The next
preceding entry in the book is the 26th of March, 1650.
President Leverett, in his Journal, states, that it was written
by the Rev. Jonathan Mitchell, one of the members of the
27'




318            MISCELLANEOUS WRITINGS.
Corporation. There is no evidence that it was ever, after the
charter of 1650, used upon the admission of any Fellow of
the Corporation under the charter.
There is reason to believe, that the word " Fellow" was
not used, or the person known in the College, in 1646. There
is an entry in the book entitled, " The laws, liberties, and
orders of the College, confirmed by the Overseers and President in the years 1642, 1643, 1644, 1645, 1646." In this
collection, consisting of nineteen articles, " Tutors" are frequently mentioned; "Fellows" are never mentioned. Yet
in some instances, if they then existed, there would be a propriety in naming them; as in the 7th article, which requires
of the scholars, that " they shall honor, as their parents, magistrates, elders, tutors, and aged persons."
In January 13, 1647, there is an agreement on the books
for a lease for years to Richard Taylor of a shop in Boston
belonging to the College, in which he covenants to leave it
in good repair, &c., " to Harvard College, the President and
Fellows thereof."
In an entry on 6th May, 1650, there is an order of the
Overseers directing that no scholar, "without the fore-acquaintance and leave of the president and his tutor, or, in
the absence of either of them, of two of the senior Fellows,'
should be present at any public meeting or concourse of people, "in the time or hours of the College exercise, public or
private." It is added, in the same orders, "' Neither shall any
scholar exercise himself in any military band, unless of known
gravity, and of approved sober and virtuous conversation,
and that with the leave of the president and his tutor." These
orders clearly show, that at this time Tutor and Fellow were.not identical in the College; and that there were " Senior
Fellows," who were not Tutors. How, then, can we say,
that " F'ellows'" in the charter meant Instructors?  So, in the
", Formula admittendi scholares wediles," the scholar is, by one
article, to show reverence to the President " una curn sociis
singulis," and, in the next article, to obey his tutor.




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY. 319
In such obscure transactions of so early a period, with so
few materials to give certainty, I may mistake in the view
that I take of these facts. But I feel great confidence in the
conjecture, that the " Fellows," here referred to, were graduates of the College, then resident there and pursuing their
studies, to qualify them for some profession, and probably
they were beneficiaries.  It would be natural, that there
should not be any such Fellows there until 1646, because
there were so few graduates, (the first being only four years
before,) who were not in fact tutors.
In respect to the words in Taylor's lease, either the word,
" Fellows," there used, is loosely used to designate the Immediate Government of the College; or, what is possible, the
shop may have been a donation for the benefit of the President and Fellows; and so the lease conformed to the words
of the grant, however inartificially drawn.
In respect to the Formula.1 It does not show, who the
socii were, or what was their occupation. The third article
requires them to instruct all the students committed to their
charge. But it does not prove, that they were the general
tutors. If they were beneficiaries, they might properly be
required, in the then infant state of the College, to perform
some duty there. But the preceding entry shows, that they
were not identical with tutors, whose duty it was to give
general instruction.
The 4th article proves nothing, as to these "Fellows"
having any particular office or government over the College,
or being the actual administrators of its funds. For, in
another article, a similar engagement is required of the
scholars, in the form entitled " In scholaribus admittendis,"
or, according to the record in Lib. 3, p. 9, " Formula admittendi scholares cediles." The words in the 4th article are,
"Sedulo prospicies ne quid detrimenti collegium  capiat,
quantum in te situm  est, sive in ejus sumptibus, sive in edi1 Memo, p. 4.




320             MISCELLANEOUS WRITINGS.
ficiis et structura, fundis, proventibus, fenestris, ceterisque
omnibus, quee nunc ad collegium  pertinent, aut dum egeris,
pertinere possint."l Besides; the article itself contains but
a very imperfect enumeration of the duties of Fellows of the
Corporation. Their duties extend to making laws, elections,
removals, investing funds, &c. The words may be construed,
as merely an engagement to prevent any wanton dilapidations or mischiefs.
It is also perfectly clear, that " Fellows" and " Tutors," or
general Instructors, were not used after the charter as identical terms; because, though there were five Fellows, there
never were but two tutors until 1703. One Tutor was added
in 1703, and another in 1720; and up to the year 1800 there
were not more than four tutors.
But further. There could not, in the English sense of the
term, " Fellow," (if by that is to be understood a collegiate
corporator,) be any such persons as Fellows in Harvard College before 1650; for the charter of 1642 did not authorize
any such officers to be created. That act (for it is a subsisting part of the chartered authority of the College) gives to
the governor, deputy governor, magistrates, and teaching
elders of the six neighboring towns, the powers of governing,
regulating, and managing the College and its members, its
revenues and concerns. And by implication they are created
a corporation, for they are made capable of taking bequests,
donations, revenues, &c., that had been, or might be, given to
the College; and they were to manage the same " to the use
and behoof of the College and the members thereof."
By Members of the College must have been meant all
persons connected with the institution; namely, the president, instructors, and other officers, and the students. But
they could not delegate their corporate powers to other persons. Nor could they make the president and instructors
corporators. Nor could the president, or instructors, or per1 College Records, under date December 10th, 1646.




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY. 321
sons called Fellows, take in succession by any bequest to them
as a corporate body; for they were not so incorporated. The
gifts and donations, given to the College, must have been
given, in legal construction, to the governor and magistrates
and elders.  They must comply with the wills of the donors;
and they only could take the donation. If any donor gave
a fund to support any poor persons in their studies at the
College, or any Fellows in the College, the words could
import no more than this, that persons residing there, and, in
a sense, members of the College, that is, beneficiaries upon
the foundation, should be so maintained. But tutors in no
exact sense could be considered as Fellows, ipso facto; but, as
beneficiaries, they might be both Tutors and Fellows, that is,
members on the foundation.
But I understand, that in point of fact the College records
do not show, that before the time of the charter of 16501 any
donations had been made for the maintenance of persons at
the College, answering the description of Fellows at the
English colleges, in the sense of the Memorial.2  Some indigent students were provided for; and probably also some
resident graduates, who received stipends. But as to Fellows
on permanent foundations, I am  not aware, that there now
are, or ever have been, any in Harvard College correspondent
to English Fellows. The only persons on permanent foundations are, as I believe, our Professors. The gifts of Glover,
Keyne, and Pennoyer, might have authorized such foundations; but none have be6n established.
To be sure, in a loose and general sense, almost all persons,
who are officers of the College, might be called Fellows, if by
that word we are to understand, not English Fellows, but
merely persons " resident at the College, and actually engaged
there in carrying on the duties of instruction or government,
and receiving a stipend for their services." Thus, Proctors
and Regents fall within the description, as well as Tutors
I See as to Tutor's Pasture, post.  2 Memo. p. 2.




322             MISCELLANEOUS WRITINGS.
and Professors. And the definition would apply as well to
any resident graduate at the College, who should be casually
intrusted with any instruction or government, however small,
as to any tutor or professor. But though such a definition
may exemplify what the Memorial now means by Fellows, it
would in no respect help us to an understanding of what
the charter meant by Fellows; for that is expressly argued
in the Memorial to be what is meant in English colleges by
Fellows.
It is incumbent on the Memorialists to show, that there
were in Harvard College, before 1650, fellowships on foundations, like the English, before we are called upon to admit,
that the charter used the word Fellows in that sense. They
have not shown that by any direct or positive evidence.
But it is said, that the preamble of the charter shows, that
there were such Fellows in the College previously. It may
be admitted, that whatever is recited in the preamble should
be assumed as facts at this period. What, then, are the facts
stated in the preamble? It recites, that many well-disposed
persons, &c., have given sundry gifts, &c., for the advancement of all good literature, arts, and sciences in Harvard
College, &c., " and to the maintenance of the President and
Fellows, and for all accommodations of buildings, and all
other necessary provisions, that may conduce to the education of the English and Indian youth of this country in
knowledge and godliness."
Now the sole question is, In what sense is the word " Fellows" here used?
The College charter was doubtless drawn under the direction of the college officers, as I shall show from a document
by-and-by. At that time there were persons known in the
college by the name of " Fellows." What were they? We
are certain they were not Fellows on any foundation like
those in English colleges, because none such then existed.
We have strong proof that they were not tutors, for they are
contradistinguished from tutors. They must, therefore, have




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY. 323
been some persons resident at the college, and beneficiaries
there; or graduates studying for the professions; or the term
must have been used in a general sense, as importing the
Associates of the President in the immediate business of the
college. It cannot be presumed that the word meant to
designate mere beneficiaries; for that would exclude tutors;
and yet, I presume, the main grants must have been for
instructors.  I conclude, then, the sense is general, that
grants had been made for the maintenance of the President
and his Associates, that is, the other officers in the college,
without designating them by any permanent or fixed character. The charter referred to the fact, and not to any particular quality in the parties.
The charter, then, declares that " the said college, &c., shall
be a corporation consisting of seven persons, to wit: a President,five Fellows, and a Treasurer, or Bursar." Now, pausing here, if the corporation were any other than a college,
could there be a doubt what the charter intended? If it had
been a charter of the American Academy, or of the Royal
Academy, or of a Bank, or of an Insurance Company, could
any one doubt that by " Fellows" was meant a mere designatio personarum as equals, and associates, and members of
the corporation?  If the word, Trustees, or Directors, or
Governors, or Members, had been inserted, would not the
sense have been complete, and the same?
If the charter meant to incorporate persons, who were then
acting officers, would it not have recited the fact? Were
there five Fellows at the college at the time?  Was there a
Treasurer or Bursar? We know there was a President; but
beyond that there is no certainty.
If the charter meant to incorporate certain persons then in
office, as the Memorial seems in some parts to suppose, there
was no need to designate any particular persons by name
afterwards.
If it meant to select from the " Fellows," &c., then existing, then it created the select few a corporation, and ascer



324            MISCELLANEOUS WRITINGS.
tained them to be the present incumbents, without providing
who should be the future incumbents.
If it is supposed, that the existing collegiate officers were
incorporated, because it is said, that " the college shall be a
corporation," the argument proves too much; for then it
means the aggregate of the institution, scholars and pupils,
as well as instructors and officers.
But the truth is, that the phrase is a very common one,
though not a very exact one. It is only saying, that thereafter the college shall be under a corporate government. AllSouls College in Oxford, 1437, was incorporated by the
name of " Collegium Animarum omnium defunctorum Oxonii." No one, however, supposes that the dead were incorporated. We well know that it is under the government of
a Warden and forty Fellows. These were appointed by or
after the act of incorporation.
The charter proceeds to name the persons who shall constitute the first corporation. This shows that they were not
incorporated ex officio. The words are, " And that Henry
Dunster shall be the first President, Samuel Mather, Samuel
Danforth, Masters of Arts, Jonathan Mitchell, Comfort Starr,
and Samuel Eaton, Bachelors of Arts, shall be the five Fellows, and Thomas Danforth to be present Treasurer; all of
them being inhabitants of the Bay." Now, why are not
these persons designated, instead of Masters and Bachelors
of Arts, as existing Instructors or Fellows of the college?
Why is it not said that they are, and shall continue to be,
Fellows, instead of, shall be Fellows?  Why are they described as " all of them being inhabitants of the Bay,"
instead of all of them being Fellows of the college?
The corporation are further by the charter "authorized, at
any time or times, to elect a new President, Fellows, or
Treasurer, so oft, from time to time, as any of the said persons shall die or be removed."  They are to elect " new Fel.
lows;" then the persons, who are to be successors, are not
Fellows until elected. And there is no restriction as to the




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY. 325
persons from whom they shall be chosen; of course they
may be chosen at large. Even in the English colleges new
Fellows may be chosen at large, unless the charter or statutes
of the foundation prohibit it.
No duties are prescribed to the Fellows, as distinct from
the duties of the corporation itself. It is not said they shall
be, before or after the choice, residents or instructors. But,
doubtless, they have authority as corporators to regulate the
college, because the charter confers it on the corporation.
The charter adds, "W hich said President and Fellows for
the time being shall forever hereafter, in name and in fact,
be one body politic and corporate in law to all intents and
purposes, and shall have perpetual succession, and shall be
called by the name of President and Fellows of Harvard
College, and shall from time to time be eligible as aforesaid."
As the corporation is designated as " President and Fellows,"
the Treasurer, though not so called, is properly, and in fact,
a Fellow, in the sense of law; but he is also something
more, namely, Bursar.
The President and Fellows are further authorized to " meet
and choose such officers and servants for the college, and
make such allowance to them, &c., as they shall think fit."
It seems to me clear, that this part of the charter contemplates, that the Officers may be different from the Corporators. There are other clauses to the same purpose.
There was an order of the General Court in May, 1650,
a few days only before the grant of the charter, which illustrates this subject. It is in these words: "In answer to the
petition of Henry Dunster, President of Harvard College, in
Cambridge, with relation to his desire in few particulars,
namely, for the grant of a corporation for the well ordering
and managing the affairs belonging to the college, the Court
is ready to grant a corporation to the college, so as meet
persons be presented to the Court, with a draft of their
power and ability, neither magistrates, who are to be judges
28




326            MISCELLANEOUS WRITINGS.
in point of difference, that shall or may fall out, nor ministers,
who are unwilling to accept thereof," &c.
Now this appears to me to show that the legislature did
not contemplate that none should be in the corporation, except residents and instructors. Why otherwise should the
exception be confined to magistrates, and to such ministers
as would not accept? Why not exclude all ministers not
resident in the college?  Why not exclude all persons not
then in office at the college?
Further. If there were Fellows in the college at the time
of the charter, they were then Fellows of the House or Academical Fellows; but they were certainly not corporate Fellows, that is, not Fellows of the existing corporation, for that
was by law composed only of the governor, &c., magistrates,
and elders.  If there were more than five, then those not
appointed of the corporation by the charter, remained simply
Academical Fellows. Whether there were any such, I know
not.
The Memorial lays stress on the supposed incongruity of
saying, that Fellow means only member or associate; because
it is said, that then the corporation consists of seven and not
offive Fellows.
To me it is clear, from the words of the charter, that the
Treasurer is necessarily a Fellow. The Treasurer is declared
one of the corporation; the corporate name is " President and
Fellows;" and it is said that the " President and Fellows "
shall be a corporate body. How can this be, unless under
the term " Fellows," is here included the Treasurer?  If he
is one of the corporation, and yet the corporation is comlposed of the President and Fellows, he must be a Fellow, or
nothing.
The Memorial, too, supposes that it would be absurd to
say a Fellow of the Corporation.
This is an extraordinary assertion.  The words of the
charter expressly declare that " The said college shall be a




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY. 327
corporation consisting of seven persons, to wit, a President,
five Fellows, and a Treasurer or Bursar." Observe, it does
not say the President, the five Fellows, the Treasurer, now in
office. Now of what were these five persons the Fellows?
- Of the college, says the Memorial.  The words of the
charter are not so; they are Fellows of the corporation; for
that is what the charter creates them.  The President is
President of the corporation; the Treasurer is Treasurer of
the corporation; the Fellows are Fellows of the corporation.
In common parlance we call them  President, Fellows, and
Treasurer of the college; but, strictly speaking, they are Fellows of the corporation. The Memorial confounds the corporate name of "President and Fellows of Havard College,"
with the character of the parties as resident members.
Nor is there any thing unusual or incorrect in the phrase.
In the English colleges there are fellows who are not corporators, in other words, who are not Fellows of the corporation;
and there are others, who are corporators. Thus, in Christ
Church College, the Dean and Chapter constitute the sole corporation. The Fellows of the college (one hundred and one
in number) are not members of the corporation. They are,
therefore, strictly, only Fellows of the House, or Academical
Fellows. So, in all those colleges, where the corporation
consists of a limited number of Fellows by the original
statutes, those Fellows, and those only, are Fellows of the
corporation, that is, corporators. And all the ingrafted Fellows, who are very numerous, are only Fellows of the House,
or Academical Fellows. In St. John's College, Cambridge,
there are thirty-two original Fellows, and twenty-seven Fellows upon ingrafted foundations.l So, in Peter House College, Cambridge, the original Fellows are restricted to fourteen. There are many ingrafted Fellows. The former are
Fellows of the corporation; the latter Fellows of the House
only. It is a real distinction; and the words are accurate in
1  Burr. R. 202.




328              MISCELLANEOUS WRITINGS.
indicating the thing meant.  Nay, more; if by " Fellows"
were meant resident instructors or governors, &c., as the Memorial asserts, there would now be many Fellows in Harvard College, (supposing the five Fellows were all resident
instructors,) who would be Fellows of the House, or Academical Fellows, and the five only would be Fellows of the
corporation. There are many traces in the public proceedings in relation to the college, showing this distinction. The
pretence of incongruity or absurdity, therefore, vanishes.
There must be some phrase to distinguish Members on the
foundation and Corporators, from resident students, whether
graduates or not. In many of the English colleges they are
called commoners, in some cases fellow-commoners, &c.
In this connection, I advert again to the formula for the
admission of Fellows.  I think I have shown what these
Fellows were; at all events, that they were not Corporators.
This formula never was used for the induction of fellows
after the charter. It really, therefore, has no bearing to prove
what sort of Fellows the Corporation was to be composed of
It is said, however, that this formula has not been repealed;
and, therefore, that it ought still to be considered as a subsisting regulation of the College. But it is a clear rule of
law, that a statute for the government of a college may be
presumed to be repealed from long disuse.l A disuse from
the period of the charter would be decisive on this head, that
it was then repealed. But it was in fact repealed by operation of law from the time the charter was granted; for, as the
Corporation had the sole power under the charter to make
laws and regulations, and the old regulations were not confirmed, either by the charter of 1650, or by any subsequent
order, they fell with the old establishment. This accounts,
and satisfactorily, why nothing was done about or under
them.
Attorney-General v. Middleton, 2 Yes. 330.
2 President Dunster, in his letter of 10th June, 1654, resigning his office,
states the fact, " that our former laws and orders, by which we have managed
our place, be declared illegal and null." College Charters, Ap. 17.




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY. 329
But, in point of fact, were the Fellows first named all
resident instructors at the time of the charter?  It seems
almost incredible, that they should all have been so; for the
College had not more than thirty scholars, and to have employed five tutors at that time, or before, would seem utterly
inconsistent with the acknowledged poverty of the College.
It is probable, that Samuel Mather was an instructor; Mitchell
may have been an instructor; Samuel Danforth was, probably, an instructor, or one of those, who were denominated
Fellows. Whether Eaton and Starr were, I have no means
of knowing. The probability is, that they were not. It is
asked, why persons so young were selected. The answer is,
that at that time the Colony was small, the charge burdensome, and the order of the General Court, in May, 1650,
agreeing to give a charter, shows, that there was a difficulty
in getting ministers to accept. They probably took men,
though young, who were disposed to be zealous in the College
affairs. If they were all Fellows, why were they not so
designated in the charter? It was the peculiar and appropriate name. Why are they designated as Masters, and
Bachelors, and Inhabitants of the Bay, and not as Fellows?
As to Samuel Danforth, there are some facts worthy of
notice. The charter was granted on the 31st of May, 1650.
The Roxbury records, under date of 12th May, 1650, have
the following clause: " Samuel Danforth recommended and
dismissed from Cambridge church, and admitted here."  This
shows, that he either had then removed, or contemplated a
removal, from Cambridge. On the 24th September, 1650,
Samuel Danforth was ordained pastor of the church in Roxbury. Now, it must be inferred from these facts, that his
intention to remove from Cambridge and settle at Roxbury
was known to the College officers. If residence and instruction were indispensable for a Fellow of the Corporation, would
his name, under these circumstances, have been inserted originally in the charter? He accepted the office. There is no
proof, that he ever resigned it, or was removed. If not, then
28 *




330            MISCELLANEOUS WRITINGS.
the legal presumption is, that he remained in office until his
death, which was on the 19th day of the 8th month, 1674.
In the charter of 1672, in which Samuel Danforth is named
as a Corporator, he is described as " Fellow of the said College," which certainly was meant to state his present designation; for the present designation of all the other Fellows is
given; as, " Minister of the church," " Teacher of the church,"
"Master of Arts," &c. In a note in the College Records,
(No. 3, p. 63,) stating his death, it is said, "This day died
Samuel Danforth, Senior Fellow of the College."
These facts would, probably, be thought decisive proof,
that, notwithstanding Danforth's non-residence, he remained a
member of the Corporation until his death. But there are
some circumstances, brought to discredit this conclusion by
the learned Professor, Mr. Everett, in the Pamphlet alluded to,
pp. 30 and 34. Thus, Dr. Hoar, writing to his nephew, in a
letter of 27th March, 1661, and speaking of Richardson's
Tables, says, " I know no way to recover them, but of some,
that were of that society in former times; I suppose Mr. Danforth, Mr. Mitchell, and others have them." 1
Now when was this letter written? Mr. Everett does not
give the date; but it was in 1661. Mr. Danforth had been a
student and a tutor at the College. What Dr. Hoar refers to
is, that when Danforth was there as a student or tutor, he
had these Tables transcribed. But this does not show, that
he was not a corporate Fellow at the time; but only not
then a resident of the society. It is common, but it is loose
language.
Another circumstance relied on is, what is stated in Johnson's Wonder-working Providence, in a passage of a letter in
1651. He writes, " Also the godly Mr. Samuel Danforth, &c.
He put forth many almanacs, and is now called to the office
of a teaching elder in the church of Christ at Roxbury, who
was one of the Fellows of this College." The only question
1 Hist. Collect. vi. 103.




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY. 331
is, what the writer means by " Fellow." If he meant a Fellow in the sense of Tutor, or resident instructor, and as a mere
synonyme, there is no difficulty; and if the Memorial is right,
that the instructors were so called, the writer is correct. But
the question is, did he mean to assert, that Danforth had then
resigned his seat as a Fellow of the Corporation, or only that
he had left the College? Surely, this language cannot overturn the strong presumption of law arising from the other
facts already mentioned.
But, for the purpose of argument, I am willing to concede,
(what has not been proved,) that all the persons named in
the charter were at the time Tutors and Fellows, in the sense
of the Memorial, in the College.  What then?  It proves,
that they were eligible as Fellows of the Corporation, not
that, ipso facto, they were under the charter the Corporators.
Much less does it prove, that they, and they alone, were eligible as members of the Corporation.
Mr. Everett now surrenders this point. He admits, that
any person may be elected as a Fellow into the Corporation,
whether a resident or non-resident instructor, or not. All he
now contends for is, that, after their election the Fellows
ought to be residents, and assist in the instruction or government of the College. This certainly surrenders much of the
original argument; for if prior residence and instruction were
not indispensable qualifications for the office, the charter did
not refer to the existing Fellows. It did not designate them;
it did not make it a condition precedent, that they should be
resident and instructors. But at most, ex vi termini, 1" Fellow" imported a subsequent obligation to reside and instruct.
This point has been already fully considered; and I leave
it, and proceed to notice some other documents, introduced
by the friends of the Memorial.
First. In August, 1652, two years after the charter, a collection was directed to be made for the maintenance of the
President and Fellows of the College. The Memorial and
the Argument of Mr. Everett suppose that by such a gift




332             MISCELLANEOUS WRITINGS.
after the charter the maintenance should be for the individual
Fellows of the College. I apprehend in law, that such a gift,
generally made, would be construed, as a mere gift to the
Corporation by its corporate name, and the maintenance to be
the general maintenance of the institution. The words of
this order are, " for the maintenance of the President, certain
Fellows, and poor scholars," and therefore may be construed
justly to apply to individuals. But what does this prove?
that all the Fellows were to be maintained? No; " certain
Fellows " only. At this very time, some of the Fellows,
named in the charter, were doubtless instructors; all of them
probably were not. This accounts for the distinction.s
The like remarks are generally applicable to the donation
of the General Court, in June, 1653, " for the more comfortable maintenance of the President, Fellows, and Students"
of the College.2 And the grant is made, in terms, " unto the
said Society and Corporation."  The charter then had an
existence, and the Corporation was recognized, as a subsisting body, governing the College. It might be proper to give
stipends even to the students at that time.
In August, 1653, the General Court ordered, that the
Cambridge rate should be paid to the College, for the discharge of any debt from the country to the College; and if
any surplus, it was "to be and remain for the College stock,
and for further clearing and settling all matters in the College,
in reference to the yearly maintenance of the President, Fellows, and necessary officers thereof, and repairing the houses." 3
Now this only shows, that there were Fellows at the College
at that time, who needed support. But the document goes
further. It shows that a committee was appointed for certain objects of inquiry, as to the expenditures of the College;
among them, to " consider what number of Fellows may be
necessary for carrying on the work in the College, and what
yearly allowance they shall have, and how to be paid." Now,
1 Letter to John Lowell, Esq., p. 62.   2 Ib.   3 Ibid. p. 63, 64.




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY. 333
this shows, that the General Court contemplated, that all the
Fellows would not be required for the purpose; that all might
not be resident, or maintained; leaving it, not on the charter,
but as a matter of policy and expediency.
The committee made a report. %We have not that report.
But in August, 1653, the General Court passed an order,
that the donations should be continued " to the care and trust
of the Overseers of the College;" and the produce was "to
be for the maintenance of the President, Fellows, and other
necessary charges of the College, and the several yearly
allowances of the President and Fellows; to be proportioned
as the said Overseers shall determine."  Now, this proves
no more than the fact, that there were then " Fellows " at
the College, who ought to be maintained; not that all the
Fellows ought to reside there, or that all were maintained,
and did reside there.
I observe, that, in President Dunster's resignation, on the
10th June, 1654, he speaks not only of new regulations having been imposed on the College, and the former laws annulled; [by whom?] but he says, "that, whatever we do is
to myself and the Fellows unwarrantable, and not secure."
Now, he cannot be supposed to speak of himself and the
Fellows of the Corporation; for the charter gave them express warrant to make by-laws, &c., the Overseers consenting
thereto. He probably, therefore, alludes to the Fellows of
the House, who had no authority at all, unless so far as the
Corporation gave them authority. But if he refers to the
Fellows of the Corporation, he then alludes solely to the
negative of the Overseers. It appears to me, therefore, that
the charter was really acted upon from its original grant,
though feebly.
The grant of Charlestown ferry, in 1654, &c., is to the
same effect.2
In respect to the Fellows' or Tutors' Lot, I can say but
1 Letter, p. 65.    2 Colony Laws, 1672, p. 30; Letter, p. 66.




334             MISCELLANEOUS WRITINGS.
little, as I have not seen the deed, which is said to be in
Latin.l I know not the terms of the grant, or the persons to
whom granted. It is said by Mr. Everett, in his Pamphlet,
that it was granted in 1645 (five years before the charter);
and from the Memorial and the Pamphlet I gather, that it
was given to the " Fellows" of the College, eo nomine.2  If
so, it was a void grant; for they were not at that time a
Corporation, capable of taking in succession by that or any
other name. If given to the existing Body or Corporation,
that is, to the governor, &c., for the use of the Fellows,
doubtless it referred to that class of persons known there at
that time by the name of Fellows, whether they were instructors or not. We have already seen, that in 1650, "Tutors"
and " Fellows" were contradistinguished in the College
orders. But I am given to understand, by those who are
acquainted with the terms of this deed, that they have been
totally misconceived by the writer of the Pamphlet; and
that the deed is a legal grant to the College itself by its corporate name. I dismiss this point, therefore, as one upon
which I am not sufficiently informed to risk an argument.
[Mr. JOHN LOWELL (one of the Overseers) here rose, and
stated, that the Pamphlet of Professor Everett had totally
mistaken the grant of the Tutors' Lot; that it was in fact a
grant to the College by its corporate name, and passed a
good title to it.]
As to Coggan's grant, in 1652, for the use of the President
and Fellows of Harvard College,3 I apprehend it is a grant
to the Corporation in its corporate character.
Glover's legacy, in 1653, to Harvard College, "for and
towards the maintenance of a Fellow there five pounds forever," 4 must be understood as referring not to the Fellows of 
the Corporation, but to a person approaching somewhat to
the description of an English Fellow; that is, to a person to
be taught, and not to teach.
1 Memo. 5.   2 Letter 25, 39, 69.  3 Id. 69.    4 Id. 70.




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY. 335
So, Keyne's legacy of ~320, in 1653, " for poor and
hopeful scholars, and for some addition yearly to the poorer
sort of Fellows." 1 This surely refers to a class of Fellows
resident at the College and not of the Corporation.
Pennoyer's fund, in 1670, is given, "that two Fellows and
two Scholars for ever should be educated, brought up, and
maintained in the College at Cambridge."2  This answers
exactly to the description of English Fellows. The gift was,
not to support teachers, but to educate persons. It is impossible to believe, that the Fellows of the Corporation were to
be educated.
But that after the charter there were Fellows not receiving
salaries, as well as Fellows who did receive them, is apparent
from an order of the Overseers, anno 1666. " It is ordered
by the Overseers, that such as are Fellows of the College and
have salaries paid them out of the treasury shall have their
constant residence in the College, and shall lodge therein, and
be present with the scholars at all times in the hall, and
have their studies in the College; so that they may be better
enabled to inspect the manners of the scholars, and prevent
all unnecessary damage to the society."
After the charter of 1672, there is no question that there
were non-resident Fellows as well as resident Fellows.
The passage cited from Randolph's Narrative, addressed
to the Privy Council, 12th October, 1676, contains this
clause:-" The allowance of the President is ~100 a year,
and a good house. There are but four fellowships; the two
Seniors have each ~30 per annum; the two Juniors ~15;
but no diet allowed.  These are tutors to all such as are
admitted students." 3
Now, if Randolph is accurate at all, it is clear, that all the
Fellows of the Corporation were not residents at that time;
for the Corporation consisted of five Fellows. In point of
fact we know, that three of the then existing Corporation, to
1 Letter, p. 70.                            2 Id. 170.
3 Id. 70. Hutch. Collect. of Papers, 477, 502.




336            MISCELLANEOUS WRITINGS.
wit, Mr. Shepard, Mr. Mather, and Mr. Oakes, were not
tutors, and two of them were non-residents.
This leads me to another consideration.
VI. The point of usage. —I agree to the doctrine stated
by Lord Mansfield, that, where the words of a charter are
doubtful, the usage is of great force. " Not," (as he says,)
"that usage can overturn the clear words of a charter; but,
if they are doubtful, the usage under the charter will tend to
explain the meaning of them." 1
But what was the case to which his remarks applied? It
was one respecting the borough of Portsmouth, a corporation
by presumption, and also by a charter of Charles I. The
corporation consisted of a Mayor, twelve Aldermen, and an
indefinite number of Burgesses. The charter declared, that
the election of Mayor should be thus: that the Mayor, Aldermen, and Burgesses, or the greater part of them, should
assemble and should there continue till they, or the greater
part of them then there assembled, should elect a Mayor.
The sole question was, whether the charter meant, that a
major part of the whole corporate body, or only a major part
of those assembled, were to choose the Mayor. The usage
had been for the latter to choose, and that usage was for one
hundred and seventy years. The court thought the usage
decisive; but they thought it also a right construction of the
charter.
But it is material to consider the effect of usage in cases of
this nature. A long uninterrupted usage in the affirmative
establishes nothing but its being rightful. For instance, if,
in the present case, there had been a long usage to elect the
tutors into the Corporation, that would certainly prove that
tutors were not ineligible. But if, from the first institution
of the College to this time, none but tutors had been chosen
Fellows, it would not prove, that no other persons were eligible. Why? Because the charter has not in terms confined
1 1 Cowper, R. 250.




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY. 337
the choice to tutors; and, therefore, all that can be affirmed
is, that there is no pretence to exclude them as a matter of
right or duty. On the other hand, if a tutor had never been
elected a Fellow to this day, it could afford no proof that the
charter excluded them; for it contains no disqualification of
tutors; and the exclusion might be merely from policy. Suppose every president of the College had been to our day a
minister of the Gospel, there would be no pretence to say,
that by the charter all other persons were ineligible. Why?
For the plain reason, that such an appointment is not
required by the charter; and the usage could affirm no more
than that it was not inconsistent with the charter.
Now, take the case in the most favorable view, which the
Memorial states, that for the space of twenty-two years
(namely, from 1650 to 1672,) the Fellows were residents and
instructors. A usage for twenty-two years is very short to
establish any construction of words of a doubtful nature in a
charter. But upon the words of the charter the construction
could not be doubtful; for, I repeat it, tutors, on our construction, are clearly eligible. The usage, then, establishes
only its own correctness.
But the Memorial contends that the charter excludes all
persons, if not from election at least from acting as Fellows
after election, unless they are or become residents and instructors. Now, what are the admitted facts on this point?
That the usage has been without interruption, from 1672 to
the present time, a period of one hundred and fifty-two years,
to have non-resident Fellows, and for a great length of time
a majority of the Fellows have been non-residents and not
instructors. Now, this usage, if usage is of any avail, is a
flat negative to the exclusion or qualification. It directly
contradicts it. If the words of the charter were doubtful on
this point it would settle it. An early usage for twenty-two
years cannot be permitted to prevail against a subsequent
usage of one hundred and fifty-two years. If the former
asserts an exclusive right in residents, the latter denies it, and
29




338             MISCELLANEOUS WRITINGS.
proves it founded in mistake, and becomes itself conclusive
the other way.
But it may be said, that the very point was contested in
1722. I admit it, and do not mean to enter into any consideration of the respectability, talents, or virtues of the different parties. It is clear, that there was a difference of opinion
among men of high standing. Upon full argument, and
after much excitement, the point was settled against the
exclusive right of the resident instructors; and for a century
past the Corporation has remained organized with non-residents in the Board. The usage of a century, after such a
controversy so ended, must be decisive, if any can be. If it
be not, then surely a short usage, not negativing any other
right for twenty-two years, can be of no weight.
VII. Then, let us consider, in the next place, the confirmation of the charter by the State constitution of 1780. It
must be deemed to act upon the known and settled state of
things then existing, as to the Corporation.  Four of the
Fellows were then non-residents. The Constitution declares,
that " The President and Fellows of Harvard College in their
corporate capacity, and their successors in that capacity, &c.,
shall have, &c., all the powers, &c., which they now have, or
are entitled to have, &c., and the same are hereby ratified
and confirmed unto them, the said President and Fellows of
Harvard College, and to their successors, &c., forever."
Now, for myself, I should be willing to rest the whole case
upon this single solemn act of ratification. It is the highest
sovereign sanction of the charter, and of the Corporation de
facto, as being then rightfully organized.
VIII. An argument, now greatly relied on in behalf of the
Memorialists, is, that as the College is by the charter required
to be at Cambridge, the Corporation must be local, and the
Corporators or Fellows must therefore be local residents.
This argument has no foundation in law. In general,
Corporations may be said to have no locality; though the
Corporators may be local, and entitled to be such only by




RIGHTS OF THE FELLOWS OF HARVARD UNIVERSITY. 339
locality; as, for instance, the inhabitants of a town or parish
are Corporators only during their residence. But the Corporation itself is not local. It exists only in intendment of
law. It is a mere legal entity, and can have no habitation,
though it has a nanme. It is itself but a shadow, though it
necessarily acts, and is brought into operation by living beings. A Corporation may be required to do its business at
a particular place, and there only; but this is a limitation of
its objects, and it does not give the Corporation locality.
This is frequently the case with regard to banks, insurance
companies, bridge and turnpike corporations, academies,
manufactories, &c. In Sutton's Hospital, 10 Co. 32 b., the
Court say, "A Corporation aggregate of many is invisible,
immortal, and rests only in intendment of law." So, in Inhabitants of Lincoln County v. Prince, 2 Mass. R. 544, Chief
Justice Parsons said, "A Corporation aggregate has in law
no place of commorancy, although the Corporators may
have." There is the same point in Taunton and South Boston Turnpike Corporation v. Whiting, 9 Mass. R. 321. And,
in general, when Corporations are created for local objects,
the Corporators are not to be deemed such, so long only as
they reside in the place, unless the charter expressly makes
such a qualification. The proprietors of a bank, insurance
company, bridge, turnpike, or manufactory, may reside anywhere, unless expressly prohibited by the charter. The law
never imputes locality to Corporators, simply because the
objects of the Corporatien are local.
Upon the whole, after examining all the grounds of legal
right assumed by the Memorialists, it appears to me, that
their case is wholly unsupported by any legal principles.
And I advise that the Overseers reject the Memorial accordingly.




CHARACTERISTICS OF THE AGE.
A DISCOURSE PRONOUNCED AT CAMBRIDGE, BEFORE THE PHI BETA
KAPPA SOCIETY OF HARVARD UNIVERSITY, AUGUST 31, 1826.
GENTLEMEN:
IF I had consulted my own wishes, I should not have
presumed to address you on the present occasion.  The
habits of professional employment rarely admit of leisure for
the indulgence of literary taste. And in a science, whose
mastery demands a whole life of laborious diligence, whose
details are inexhaustible, and whose intricacies task the most
acute intellects, it would be matter of surprise, if every hour
withdrawn from its concerns did not somewhat put at hazard
the success of its votary. Nor can it escape observation,
how much the technical doctrines of a jurisprudence, drawn
from remote antiquity, and expanding itself over the business
of many ages, must have a tendency to chill that enthusiasm
which lends encouragement to every enterprise, and to obscure those finer forms of thought, which give to literature
its lovelier, I may say, its inexpressible graces. The consciousness of difficulties of this sort may well be supposed to
press upon every professional mind. They can be overlooked
by those only, whose youth has not been tried in the hard
school of experience, or whose genius gives no credit to
impossibilities.
I have not hesitated, however, to yield to your invitation,
trusting to that indulgence, which has not hitherto been
withheld from well-meant efforts, and not unwilling to add




CHARACTERISTICS OF THE AGE.          341
the testimony of my own example, however humble, in favor
of the claims of this society to the services of all its members.
We live in an extraordinary age. It has been marked by
events, which will leave a durable impression upon the pages
of history by their own intrinsic importance, But they will
be read with far deeper emotions in their effects upon future
ages; in their consequences upon the happiness of whole
communities; in the direct or silent changes forced by them
into the very structure of society; in the establishment of a
new and mighty empire, the empire of public opinion; in
the operation of what Lord Bacon has characterized almost
as supreme power, the power of knowledge, working its way
to universality, and interposing checks upon government and
people, by means gentle and decisive, which have never
before been fully felt, and are even now, perhaps, incapable
of being perfectly comprehended.
Other ages have been marked by brilliant feats in arms.
Wars have been waged for the best and for the worst of purposes. The ambitious conqueror has trodden whole nations
under his feet, to satisfy the lust of power; and the eagles of
his victories have stood on either extreme of the civilized
world. The barbarian has broken loose from his northern
fastnesses, and overwhelmed in his progress temples and
thrones, the adorers of the true God, and the worshippers of
idols. l Heroes and patriots have successfully resisted the
invaders of their country, or perished in its defence; and in
each way have given immortality to their exploits. Kingdoms have been rent asunder by intestine broils, or by struggles for freedom. Bigotry has traced out the march of its
persecutions in footsteps of blood; and superstition employed
its terrors to nerve the arm of the tyrant, or immolate his
victims. There have been ancient leagues for the partition
of empires, for the support of thrones, for the fencing out of
human improvement, and for the consolidation of arbitrary
29 *




342            MISCELLANEOUS WRITINGS.
power. There have, too, been bright spots on the earth,
where the cheering light of liberty shone in peace; where
learning unlocked its stores in various profusion; where the
arts unfolded themselves in every form of beauty and grandeur; where literature loved to linger in academic shades, or
enjoy the public sunshine; where song lent new inspiration
to the temple; where eloquence alternately consecrated the
hall of legislation, and astonished the forum with its appeals.
We may not assert, that the present age can lay claim to
the production of any one of the mightiest efforts of human
genius.  Homer and Virgil, and Shakspeare and Milton
were of other days, and yet stand unrivalled in song. Time
has not inscribed upon the sepulchre of the dead any nobler
names in eloquence than Demosthenes and Cicero. Who
has outdone the chisel of Phidias, or the pencil of Michael
Angelo, and Raffaelle? Where are the monuments of our
day, whose architecture dares to contend with the Doric,
Ionic, or Corinthian of Greece, or even with the Composite
or Gothic of later times? History yet points to the pregnant
though brief text of Tacitus, and acknowledges no finer
models than those of antiquity., The stream of a century
has swept by the works of Locke and Newton; yet they still
stand alone in unapproached, in unapproachable majesty.
Nor may we pronounce, that the present age by its collective splendor in arts and arms casts into shade all former
epochs. The era of Pericles witnessed a combination of
talents and acquirements, of celebrated deeds and celebrated
works, which the lapse of twenty-two centuries has left unobscured. Augustus, surveying his mighty empire, could
scarcely contemplate with more satisfaction the triumph of
his arms, than the triumph of the philosophy and literature of
Rome. France yet delights to dwell on the times of Louis
the Fourteenth,las the proudest in her annals; and England,
with far less propriety, looks back upon the reign of Queen
Anne for the best models of her literary excellence. I
But, though we may not arrogate to ourselves the posses



CHARACTERISTICS OF THE AGE.           343
sion of the first genius, or the first era in human history, let
it not be imagined, that we do not live in an extraordinary
age. It is impossible to look around us without alternate
emotions of exultation and astonishment. What shall we
say of one revolution, which created a nation out of thirteen
feeble colonies, and founded the empire of liberty upon the
basis of the perfect equality in rights and representation of
all its citizens? which commenced in a struggle by enlightened men for principles, and not for places; and in its progress and conclusion exhibited examples of heroism, patriotic
sacrifices, and disinterested virtue, which have never been
surpassed in the most favored regions?  What shall we say
of this nation, which has in fifty years quadrupled its population, and spread itself from the Atlantic to the Rocky Mountains, not by the desolations of successful war, but by the
triumphant march of industry and enterprise? What shall
we say of another revolution, which shook Europe to its
centre, overturned principalities and thrones, demolished oppressions, whose iron had for ages entered into the souls of
their subjects; and, after various fortunes of victory and
defeat, of military despotism and popular commotion, ended
at last in the planting of free institutions, free tenures, and
representative government in the very soil of absolute monarchy? What shall we say of another revolution, or rather
series of revolutions, which has restored to South America
the independence, torn from her three centuries ago by the
force or by the fraud of those nations, whose present visitations bespeak a Providence, which superintends and measures
out at awful distances its rewards and its retributionsi She
has risen, as it were, from the depths of the ocean, where she
had been buried for ages. Her shores no longer murmur
with the hoarse surges of her unnavigated waters, or echo the
jealous footsteps of her armed oppressors. Her forests and
her table lands, her mountains and her valleys gladden with
the voices of the free. She welcomes to her ports the whitening sails of commerce. She feels, that the treasures of her




344            MISCELLANEOUS WRITINGS.
mines, the broad expanse of her rivers, the beauty of her
lakes, the grandeur of her scenery, the products of her fertile
and inexhaustible soil, are no longer the close domain of
a distant sovereign, but the free inheritance of her own children. She sees, that these are to bind her to other nations by
ties, which outlive all compacts and all dynasties, by ties of
mutual sympathy, mutual equality, and mutual interest.
But such events sink into nothing, compared with the
great moral, political, and literary revolutions, by which they
have been accompanied. Upon some of these topics; I may
not indulge myself even for a moment. They have been
discussed here, and in other places, in a manner, which forbids all hope of more comprehensive illustration. They may,
indeed, be still followed out; but whoever dares the difficulties of such a task, will falter with unequal footsteps.
What I propose to myself on the present occasion is of
a far more limited and humble nature. It is, to trace out
some of the circumstances of our age, which connect. themselves closely with the cause of science and letters; to sketch
here and there a light and shadow of our days; to look somewhat at our own prospects and attainments; and thus to lay
before you something for reflection, for encouragement, and
for admonition.
One of the most striking characteristics of our age, and
that, indeed, which has worked deepest in all the changes of
its fortunes and pursuits, is the general diffusion of knowledge. This is emphatically the age of reading. In other
times this was the privilege of the few; in ours, it is the
possession of the many. Learning once constituted the accomplishment of those in the higher orders of society, who
had no relish for active employment, and of those, whose
monastic lives and religious profession sought to escape from
the weariness of their common duties. Its progress may be
said to have been gradually downwards from the higher to
the middle classes of society. It scarcely reached at all, in




CHARACTERISTICS OF THE AGE.          345
its joys or its sorrows, in its instructions or its fantasies, the
home of the peasant and artisan. It now radiates in all
directions; and exerts its central force more in the middle
than in any other class of society. The means of education
were formerly within the reach of few. It required wealth to
accumulate knowledge. The possession of a library was no
ordinary achievement. The learned leisure of a fellowship
in some university seemed almost indispensable for any successful studies; and the patronage of princes and courtiers
was the narrow avenue to public favor. I speak of a period
at little more than the distance of two centuries; not of particular instances, but of the general cast and complexion of
life.
The principal cause of this change is to be found in the
freedom of the press, or rather in this, cooperating with the
cheapness of the press. It has been aided also by the system
of free schools, wherever it has been established; by that
liberal commerce, which connects by golden chains the interests of mankind; by that spirit of inquiry, which Protestantism awakened throughout Christian Europe; and above
all by those necessities, which have compelled even absolute
monarchs to appeal to the patriotism and common sentiments
of their subjects. Little more than a century has elapsed
since the press in England was under the control of a
licenser; and within our own days only has it ceased to be
a contempt, punishable by imprisonment, to print the debates
of Parliament.  We all know how it still is on the continent
of Europe. It either speaks in timid under-tones, or echoes
back the prescribed formularies of the government. The moment publicity is given to affairs of state, they excite every
where an irresistible interest. If discussion be permitted, it
will soon be necessary to enlist talents to defend, as well as
talents to devise measures. The daily press first instructed
men in their wants, and soon found, that the eagerness of
curiosity outstripped the power of gratifying it. No man




346            MISCELLANEOUS WRITINGS.
can now doubt the fact, that wherever the press is free, it will
emancipate the people; wherever knowledge circulates unrestrained, it is no longer safe to oppress; wherever public
opinion is enlightened, it nourishes an independent, masculine, and healthful spirit. If Faustus were now living, he
might exclaim with all the enthusiasm of Archimedes, and
with a far nearer approach to the truth, Give me, where I may
place a free press, and I will shake the world.
One interesting effect, which owes its origin to this universal love and power of reading, is felt in the altered condition of authors themselves. They no longer depend upon
the smiles of a favored few. The patronage of the great is
no longer submissively entreated, or exultingly proclaimed
Their patrons are the public; their readers are the civilized
world. They address themselves, not to the present generation alone, but aspire to instruct posterity; No blushing
dedications seek an easy passport to fame, or flatter the
perilous condescension of pride. No illuminated letters flourish on the silky page, asking admission to the courtly drawing-room. Authors are no longer the humble companions or
dependants of the nobility: but they constitute the chosen
ornaments of society, and are welcomed to the gay circles
of fashion and the palaces of princes. Theirs is no longer
an unthrifty vocation, closely allied to penury; but an elevated profession, maintaining its thousands in lucrative pursuits. It is not with them, as it was in the days of Milton, whose immortal "Paradise Lost" drew five sterling
pounds, with a contingent of five more, from the reluctant
bookseller.
My Lord Coke would hardly find good authority in our
day for his provoking commentary on the memorable statute
of the fourth Henry, which declares that " none henceforth
shall use to multiply gold or silver, or use the craft of multiplication," in which he gravely enumerates five classes of
beggars, ending the catalogue in his own quaint phraseology




CHARACTERISTICS OF THE AGE.             347
with "'poetasters," and repeating, for the benefit of young
apprentices of the law, the sad admonition,
" Spe pater dixit, Studium quid inutile tentas?
Mmeonidas nullas ipse reliquit opes."
There are certainly among us those, who are within the
penalty of this prohibition, if my Lord Coke's account of the
matter is to believed; for they are in possession of what he
defines to be "a certain subtil and spiritual substance extracted out of things," whereby they transmute many things
into gold. I am indeed afraid, that the Magician of Abbotsford is accustomed to " use the craft of multiplication;" and
most of us know, to our cost, that he has changed many
strange substances into the very gold and very silver. Yet,
even if he be an old offender in this way, as is shrewdly suspected, there is little danger of his conviction in this liberal
age; since, though he gains by every thing he parts with, we
are never willing to part with any thing we receive from him.
The rewards of authorship are now almost as sure and
regular as those of any other profession. There are, indeed,
instances of wonderful success and sad failure; of genius
pining in neglect; of labor bringing nothing but sickness of
the heart; of fruitless enterprise baffled in every adventure;
of learning, waiting its appointed time to die in patient suffering. But this is the lot of some in all times. Disappointment crowds fast upon human footsteps, in whatever paths
they tread.  Eminent good fortune is a prize rarely given
even to the foremost in the race. And, after all, he who has
read human life most closely, knows that happiness is not
the constant attendant of the highest public favor; and that
it rather belongs to those who, if they seldom soar, seldom
fall.
Scarcely is a work of real merit dry from the English
press before it wings its way to both the Indies and Americas. It is found in the most distant climates, and the most
sequestered retreats. It charms the traveller, as he sails over




348            MISCELLANEOUS WRITINGS.
rivers and oceans. It visits our lakes and our forests. It
kindles the curiosity of the thick-breathing city, and cheers
the log hut of the mountaineer. The Lake of the Woods
resounds with the minstrelsy of our mother tongue, and the
plains of Hindoostan are tributary to its praise. Nay more,
what is the peculiar pride of our age, the Bible may now
circulate its consolations and instructions among the poor
and forlorn of every land, in their native dialect. Such is
the triumph of letters; such is the triumph of Christian
benevolence.
With such a demand for books, with such facilities of
intercourse, it is no wonder that reading should cease to be a
mere luxury, and should be classed among the necessaries of
life. Authors may now, with a steady confidence, boast that
they possess a hold on the human mind, which grapples
closer and mightier than all others. They may feel sure that
every just sentiment, every enlightened opinion, every earnest
breathing after excellence, will awaken kindred sympathies,
from the rising to the setting sun.
Nor should it be overlooked what a beneficial impulse
has been thus communicated to education among the female
sex. If Christianity may be said to have given a permanent
elevation to woman, as an intellectual and moral being, it is
as true that the present age, above all others, has given play
to her genius, and taught us to reverence its influence. It
was the fashion of other times to treat the literary acquirements of the sex as starched pedantry, or vain pretensions;
to stigmatize them as inconsistent with those domestic affections and virtues, which constitute the charm of society.
We had abundant homilies read upon their amiable weaknesses and sentimental delicacy, upon their timid gentleness
and submissive dependence; as if to taste the fruit of knowledge were a deadly sin, and ignorance were the sole guardian of innocence. Their whole lives were " sicklied o'er
with the pale cast of thought; " and concealment of intel.
lectual power was often resorted to, to escape the dangerous




CHARACTERISTICS OF THE AGE.           349
imputation of masculine strength. In the higher walks of
life, the satirist was not'without color for the suggestion, that
it was
"A youth of folly, an old age of cards;"
and that elsewhere, " most women had no character at all,"
beyond that of purity and devotion to their families. Admirable as are these qualities, it seemed an abuse of the gifts of
Providence to deny to mothers the power of instructing their
children, to wives the privilege of sharing the intellectual
pursuits of their husbands, to sisters and daughters the delight of ministering knowledge in the fireside circle, to youth
and beauty the charm of refined sense, to age and infirmity
the consolation of studies, which elevate the soul and gladden
the listless hours of despondency.
These things have in a great measure passed away. The
prejudices which dishonored the sex have yielded to the influence of truth. By slow but sure advances education has
extended itself through all ranks of female society. There
is no longer any dread, lest the culture of science should foster that masculine boldness or restless independence, which
alarms by its sallies, or wounds by its inconsistencies. We
have seen that here, as everywhere else, knowledge is favorable to human virtue and human happiness; that the refinement of literature adds lustre to the devotion of piety; that
true learning, like true taste, is modest and iunostentatious;
that grace of manners receives a higher polish from the discipline of the schools; that cultivated genius sheds a cheering light over domestic duties, and its very sparkles, like
those of the diamond, attest at once its power and its purity.
There is not a rank of female society, however high, which
does not now pay homage to literature, or that would not
blush even at the suspicion of that ignorance which a half
century ago was neither uncommon nor discreditable. There
is not a parent whose pride may not glow at the thought
that his daughter's happiness is in a great measure within
30




850            MISCELLANEOUS WRITINGS.
her own command, whether she keeps the cool sequestered
vale of life, or visits the busy walks of fashion.
A new path is thus open for female exertion, to alleviate
the pressure of misfortune, without any supposed sacrifice of
dignity or modesty. Man no longer aspires to an exclusive
dominion in authorship. He has rivals or allies in almost
every department of knowledge; and they are to be found
among those whose elegance of manners and blamelessness
of life command his respect, as much as their talents excite
his admiration. Who is there that does not contemplate
with enthusiasm the precious Fragments of Elizabeth Smith,
the venerable learning of Elizabeth Carter, the elevated piety
of Hannah More, the persuasive sense of Mrs. Barbauld, the
elegant Memoirs of her accomplished niece, the bewitching
fictions of Madame D'Arblay, the vivid, picturesque, and
terrific imagery of Mrs. Radcliffe, the glowing poetry of Mrs.
Hemans, the matchless wit, the inexhaustible conversations,
the fine character painting, the practical instructions of Miss
Edgeworth, THE GREAT KNOWN, standing, in her own department, by the side of THE GREAT UNKNOWN?
Another circumstance, illustrative of the character of our
age is the bold and fearless spirit of its speculations. Nothing is more common, in the history of mankind, than a servile adoption of received opinions, and a timid acquiescence
in whatever is established. It matters not, whether a doctrine or institution owes its existence to accident or design,
to wisdom or ignorance, or folly, there is a natural tendency
to give it an undue value in proportion to its antiquity.
What is obscure in its origin warms and gratifies the imagination. What in its progress has insinuated itself into the
general habits and manners of a nation becomes imbedded
in the solid mass of society. It is only at distant intervals,
from an aggregation of causes, that some stirring revolution
breaks up the old foundations, or some mighty genius storms
and overthrows the intrenchments of error.  Who would
believe, if history did not record the fact, that the meta



CHARACTERISTICS OF THE AGE.          351
physics of Aristotle, or rather the misuse of his metaphysics,
held the human mind in bondage for two thousand years?
that Galileo was imprisoned for proclaiming the true theory
of the solar system? that the magnificent discoveries of Sir
Isaac Newton encountered strong opposition from philosophers? that Locke's Essay on the Human Understanding
found its way with infinite difficulty into the studies of the
English Universities? that Lord Bacon's method of induction never reached its splendid triumphs until our day? that
the doctrine of the divine right of kings, and the absolute
allegiance of subjects, constituted nearly the whole theory of
government, from the fall of the Roman Republic to the
seventeenth century? that Christianity itself was overlaid,
and almost buried, for many centuries, by the dreamy comments of monks, the superstitions of fanatics, and the traditions of the Church? that it was an execrable sin, throughout Christendom, to read and circulate the Holy Scriptures
in the vulgar tongue? Nay, that it is still a crime in some
nations, of which the Inquisition would take no very indulgent notice, even if the Head of the Catholic Church should
not feel that Bible Societies deserve his denunciation? Even
the great reformers of the Protestant Church left their work
but half done, or rather came to it with notions far too
limited for its successful accomplishment. They combated
errors and abuses, and laid the broad foundations of a more
rational faith. But they were themselves insensible to the
just rights and obligations of religious inquiry. They thought
all error intolerable; but they forgot, in their zeal, that the
question, what was truth, was open to all for discussion.
They assumed to themselves the very infallibility which they
rebuked in the Romish Church; and as unrelentingly persecuted heresies of opinion, as those who had sat for ages in
the judgment-seat of St. Peter.  They allowed, indeed, that
all men had a right to inquire; but they thought that all
must, if honest, come to the same conclusion with themselves; that the full extent of Christian liberty was the li



352             MISCELLANEOUS WRITINGS.
berty of adopting those opinions which they promulgated as
true. The unrestrained right of private judgment, the glorious privilege of a free conscience, as now established in
this favored land, was farther from their thoughts even than
Popery itself. I would not be unjust to these great men'
The fault was less theirs than that of the age in which they
lived. They partook only of that spirit of infirmity which
religion itself may not wholly extinguish in its sincere, but
over zealous votaries. It is their glory to have laid the deep,
and, I trust, the imperishable foundations of Protestantism.
May it be ours to finish the work, as they would have done
it, if they had been permitted to enjoy the blessed light of
these latter times. But let not Protestants boast of their
justice, or their charity, while they continue to deny an
equality of rights to the Catholics.
The progress of the spirit of free inquiry cannot escape
the observation of the most superficial examiner of history.
The press, by slow but firm steps, first felt its way, and began
its attacks upon the outworks of received opinions. One
error after another silently crumbled into the dust, until success seemed to justify the boldest experiments. Opinions in
science, in physic, in philosophy, in morals, in religion, in
literature, have been subjected to the severest scrutiny; and
many, which had grown hoary under the authority of ages,
have been quietly conveyed to their last home, with scarcely
a solitary mourner to grace their obsequies. The contest,
indeed, between old and new opinions has been, and continues to be, maintained with great obstinacy and ability on
all sides, and has forced even the sluggish into the necessity
of thinking for themselves. Scholars have been driven to
arm themselves for attack, as well as for defence; and in a
literary warfare, nearly universal, have been obliged to make
their appeals to the living judgment of the public for protection, as well as for encouragement.
The effects of this animated and free discussion have, in
general, been very salutary. There is not a single depart



CHARACTERISTICS OF THE AGE.        353
ment of life, which has not been invigorated by its influence, nor a single profession, which has not partaken of its
success.
In jurisprudence, which reluctantly admits any new adjunct,
and counts in its train a thousand champions ready to rise in
defence of its formularies and technical rules, the victory has
been brilliant and decisive. The civil and the common law
have yielded to the pressure of the times, and have adopted
much, which philosophy and experience have recommended,
although it stood upon no text of the Pandects, and claimed
no support from the feudal polity. Commercial law, at least
so far as England and America are concerned, is the creation
of the eighteenth century. It started into life with the genius
of Lord Mansfield, and gathering in its course whatever was
valuable in the earlier institutes of foreign countries, has
reflected back upon them its own superior lights, so as to
become the guide and oracle of the commercial world. If
my own feelings do not mislead me, the profession itself has
also acquired a liberality of opinion, a comprehensiveness of
argumentation, a sympathy with the other pursuits of life,
and a lofty eloquence, which, if ever before, belonged to it
only in the best days of the best orators of antiquity. It was
the bitter scoff of other times, approaching to the sententiousness of a proverb, that to be a good lawyer was to be an
indifferent statesman. The profession has outlived the truth
of the sarcasm. At the present moment England may count
lawyers among her most gifted statesmen; and in America,
I need but appeal to those who hear me for the fact, our most
eminent statesmen have been, nay, still are, the brightest
ornaments of our bar.
The same improving spirit has infused itself into the body
of legislation and political economy. I may not adventure
upon this extensive topic. But I would for a moment advert to
the more benignant character manifested in the criminal law.
Harsh and vindictive punishments have been discountenanced
or abolished. The sanguinary codes, over which humanity
30 *




354            MISCELLANEOUS WRITINGS.
wept and philosophy shuddered, have felt the potent energy
of reform, and substituted for agonizing terror the gentle
spirit of mercy. America has taken the lead in this glorious
march of philanthropy, under the banners of that meek sect,
which does good by stealth, and blushes to find it fame.
There are not in the code of the Union, and probably not in
that of any single State, more than ten crimes, to which the
sober judgment of legislation now affixes the punishment of
death. England, indeed, counts in her bloody catalogue
more than one hundred and sixty capital offences; but the
dawn of a brighter day is opening upon her. After years of
doubtful struggle, the meliorations suggested by the lamented
Sir Samuel Romilly have forced their way through Parliament to the throne; and an enlightened ministry is redeeming her from this reproach upon her national character.
In medicine, throughout all its branches, more extraordinary changes have taken place. Here, indeed, inductive philosophy looks for some of its fairest trophies. In anatomy,
in physiology, in pharmacy, in therapeutics, instructed skill,
patient observation, and accurate deduction have been substituted for vague conjecture and bold pretension. Instead
of mystical compounds, and nostrums, and panaceas, science
has introduced its powerful simples, and thus given energy
and certainty to practice. We dream no longer over the
favorite theories of the art, succeeding each other in endless
progression. We are content to adopt a truer course; to
read nature in her operations; to compel her to give up her
secrets to the expostulations of her ministers; and to answer
the persevering interrogatories of her worshippers. Chemistry, by its brilliant discoveries and careful analysis, has unfolded laws, which surprise us by their simplicity, as well as
by the extent of their operations. By its magic touch the
very elements of things seem decomposed, and to stand in
disembodied essences before us.
In theology a new era has commenced. From the days of
Grotius almost to our own, a sluggish indifference to critical




CHARACTERISTICS OF THE AGE.        355
learning fastened upon most of those who administered the
high solemnities of religion. Here and there, indeed, a noble
spirit was seen, like Old Mortality, wiping away the ancient
dust and retracing the fading lines, and in his zeal for truth,
undergoing almost a moral martyrdom. But the mass of
professed theologians slumbered over the received text in
easy security, or poured the distillations of one commentary
into another, giving little improvement to the flavor, and none
to the substance. They were at length roused by a spirit of
another sort, which by ridicule, or argument, or denunciation
of abuses, was attempting to sap the very foundations of
Christianity. It made its approaches in silence, until it had
attained strength enough for an open assault; and at last, in
a moment of political revolution, it erected the standard of
infidelity in the very centre of Christendom. Fortunately,
the critical studies of the scholars of the old world enabled
them to meet the difficulties of the occasion. The immense
collations of manuscripts and various readings by such men
as Mill, and Wetstein, and Kennicott, prepared the way for
a more profound investigation of the genuineness and authenticity of the Scriptures. And the sober sense and unwearied
diligence of our age have given to the principles of interpretation an accuracy and authority, to biblical researches a dignity
and certainty, to practical as well as doctrinal theology a logic
and illustration, unparalleled in the annals of the Church. If
Christianity has been assailed in our day with uncommon
ability, it has never been defended with more various learning.
If it has surrendered here and there an interpolated passage,
it has placed almost beyond the reach of doubt the general
integrity of the text. If it has ceased in some favored lands
to claim the civil arm for its protection, it has established
itself in the hearts of men, by all, which genius could bring
to illumine, or eloquence to grace its sublime truths.
In pure mathematics and physical science there has been a
correspondent advancement. The discoveries of Newton have
been followed out and demonstrated by new methods and




356            MISCELLANEOUS WRITINGS.
analyses, to an extent, which would surprise that great philosopher himself, if he were now living. I need but name
such men as La Grange and La Place. By means of observatories, the heavens have been, if I may so say, circumnavigated, and every irregularity and perturbation of the motions
of the heavenly bodies ascertained to depend upon the same
eternal law of gravitation, and to result in the harmonious
balance of forces. But it is in physical science, and especially
in its adaptation to the arts of life, that the present age may
claim precedence of all others. I have already alluded to
chemistry, which has enabled us to fix and discharge colors
with equal certainty; now to imitate the whiteness of the
driven snow, and now the loveliness of the Tyrian dyes.
But who can measure the extent of the changes in agriculture, manufactures, and commerce, produced by the steamengine of Watt, by the cotton-machinery of Arkwright, by
the power-looms of a later period, by the cotton-gin of Whitney, and though last, not least, by the steam-boat of Fulton?
When I name these, I select but a few among the inventions
of our age, in which nature and art minister alternately to the
wants and the triumphs of man.
If in metaphysics no brilliant discoveries have rewarded
the industry of its votaries, it may nevertheless be said, that
the laws of the mind have been investigated with no common success. They have been illustrated by a fuller display
of the doctrine of association of Hartley, by the common
sense of Reid, by the acute discrimination of Brown, and by
the incomparable elegance of Dugald Stewart. If, indeed,
in this direction any new discoveries are to be expected, it
appears to me, with great deference, that they must be sought
through more exact researches into that branch of physiology,
which respects the structure and functions of those organs,
which are immediately connected with the operations of the
mind.
I have but glanced at most of the preceding subjects, many
of which are remote from the studies, which have engaged




CHARACTERISTICS OF THE AGE.          357
my life, and to all of which I am conscious, that I am unable
to do even moderate justice.
But it is to the department of general and miscellaneous
literature, and above all, of English literature, that we may
look with pride and confidence. Here the genius of the age
has displayed itself in innumerable varieties of form and
beauty, from the humble page, which presumes to teach the
infant mind the first lines of thought, to the lofty works, which
discourse of history, and philosophy, and ethics, and government; from the voyager, who collects his budget of wonders
for the amusement of the idle, to the gallant adventurer to the
Pole, and the scientific traveller on the Andes. Poetry, too,
has dealt out its enchantments with profuse liberality, now
startling us with its visionary horrors and superhuman pageants, now scorching us with its fierce and caustic satire,
now lapping us in Elysium by the side of sunny shores, or
lovely lakes, or haunted groves, or consecrated ruins. It is,
indeed, no exaggeration of the truth to declare, that polite
literature, from the light essay to the most profound disquisition, can enumerate more excellent works, as the pro.
duction of the last fifty years, than of all former ages since
the revival of letters.
Periodical literature has elevated itself from an amusement
of cultivated minds, or a last resort of impoverished authors,
to the first rank of composition, in which the proudest are
not ashamed to labor, and the highest may gain fame and
consequence. A half century ago a single magazine and a
single review almost sufficed the whole reading public of
England and America. At present a host crowd round us,
from the gossamery repository, which adorns the toilet to the
grave review, which discusses the fate of empires, arraigns
the counsels of statesmen, expounds all mysteries in policy
and science, or, stooping from such pursuits, condescends
like other absolute powers, sometimes to crush an author to
death, and sometimes to elevate him to a height where he
faints from the mere sense of giddiness. We have our




358            MISCELLANEOUS WRITINGS.
journals of science and journals of arts; the New Monthly,
with the refreshing genius of Campbell, and the Old
Monthly, with the companionable qualities of a familiar
friend. We have the Quarterly Reviewers, the loyal defenders of Church and State, the laudatores temnporis acti, the
champions, ay, and exemplars too of classical learning, the
admirers of ancient establishments and ancient opinions.
We have, on the other hand, the Edinburgh, the bold advocates of reform, and still bolder political economists, hunting
out public abuses, and alarming idle gentlemen pensioners
with tales of misapplied charities; now deriding, with bitter
taunts the dull but busy gleaners in literature; now brightening their pages with the sunshine of wit; and now paying
homage to genius by expounding its labors in language of
transcendent felicity.  One might approach nearer home,
and, if it were not dangerous to arouse the attention of
critics, might tell of a certain North American, which has
done as much to give a solid cast to our literature, and a
national feeling to our authors as any single event since the
peace of 1783.
Another interesting accompaniment of the literature of the
age, is its superior moral purity over former productions.
The obscene jests, the low ribaldry, and the coarse allusions
which shed a disastrous light on so many pages of misguided
genius in former times find no sympathy in ours. He who
would now command respect must write with pure sentiments and elevated feelings; he who would now please
must be chaste as well as witty, and moral as well as brilliant. Fiction itself is restrained to the decencies of life;
and whether in the drama, or the novel, or the song, with a
few melancholy exceptions, it seeks no longer to kindle fires
which would consume the youthful enthusiast, or to instil
precepts which would blast the loveliness of the innocent.
But let it not be imagined, that in the present state of
things there is nothing for regret, and nothing for admonition. The picture of the age, when truly drawn, is not




CHARACTERISTICS OF THE AGE.          359
wholly composed of lights. There are shades which disturb
the beauty of the coloring and points of reflection, where
there is no longer harmony in the proportions.
The unavoidable tendency of free speculation is to lead to
occasional extravagances.  When once the reverence for
authority is shaken, there is apt to grow up in its stead a
cold skepticism respecting established opinions. Their very
antiquity, under such circumstances, betrays us into suspicion
of their truth. The overthrow of error itself urges on a
feverish excitement for discussion, and a restless desire for
novelty, which blind, if they do not confound, the judgment.
Thus the human mind not unfrequently passes from one
extreme to another; from one of implicit faith to one of absolute incredulity.
There is not a remark deducible from the history of mankind more important than that advanced by Mr. Burke, that
" to innovate is not to reform." That is, if I may venture to
follow out the sense of this great man, that innovation is not
necessarily improvement; that novelty is not necessarily
excellence; that what was deemed wisdom in former times,
is not necessarily folly in ours; that the course of the human
mind has not been to present a multitude of truths in one great
step of its glory, but to gather them up insensibly in its progress, and to place them at distances, sometimes at vast distances, as guides or warnings to succeeding ages. If Greece
and Rome did not solve all the problems of civil government,
or enunciate the admirable theorem of representative legislation, it should never be forgotten, that from them we have
learned those principles of liberty, which, in the worst of
times, have consoled the patriot for all his sufferings. If
they cannot boast of the various attainments of our days,
they may point out to us the lessons of wisdom, the noble
discoveries, and the imperishable labors of their mighty dead.
It is not necessarily error to follow the footsteps of ancient
philosophy, to reverence the precepts of ancient criticism, to




360             MISCELLANEOUS WRITINGS.
meditate over the pages of ancient exploits, or to listen to
the admonitions of ancient oratory.
We may even gather instruction from periods of another
sort, in which there was a darkness which might be felt as
well as seen. Where is to be found a nobler institution than
the trial by jury, that impregnable bulwark of civil liberty?
Yet it belongs to ages of Gothic darkness or Saxon barbarism. Where is there a more enduring monument of political wisdom than the separation of the judicial from the
legislative power? Yet it was the slow production of ages
which are obscured by the mists of time. Where shall we
point out an invention whose effects have been more wide, or
more splendid than those of the mariner's compass?  Yet
five centuries have rolled over the grave of its celebrated
discoverer. Where shall we find the true logic of physical
science so admirably stated, as in the Novum Organum of
him, who, more than two centuries ago, saw, as in vision,
and foretold, as in prophecy, the sublime discoveries of these
latter days?
This is a topic which may not wholly be passed over, since
it presents some of the dangers to which we are exposed,
and calls upon us to watch the progress of opinion and guard
against the seductive influence of novelties. The busy character of the age is perpetually pressing forward all sorts of
objections to established truths in politics, and morals, and
literature. In order to escape from the imputation of triteness some authors tax their ingenuity to surprise us with
bold paradoxes, or run down with wit and ridicule the doctrines of common sense, appealing sometimes to the ignorance and sometimes to the pride of their readers. Their
object is not so much to produce what is true as what is
striking; what is profound, as what is interesting; what will
endure the test of future criticism as what will buoy itself up
on the current of a shallow popularity. In the rage for originality the old standards of taste are deserted or treated with




CHARACTERISTICS OF THE AGE.           361
cold indifference; and thus, false and glittering thoughts,
and hurried and flippant fantasies are substituted for exact
and philosophical reasoning.
There is, too, a growing propensity to disparage the importance of classical learning.  Many causes, especially in
England and America, have conduced to this result. The
signal success which has followed the enterprises in physical
science, in mechanics, in chemistry, in civil engineering, and
the ample rewards both of fortune and fame attendant upon
that success, have had a very powerful influence upon the
best talents of both countries. There is, too, in the public
mind a strong disposition to turn every thing to a practical
account; to deal less with learning and more with experiment; to seek the solid comforts of opulence rather than the
indulgence of mere intellectual luxury. On the other hand,
from the increase of materials as well as of critical skill, high
scholarship is a prize of no easy attainment; and, when
attained, it slowly receives public favor, and still more
slowly reaches the certainty of wealth. Indeed, it is often
combined with a contemplative shyness and sense of personal independence, which yield little to policy, and with
difficulty brook opposition. The honors of the world rarely
cluster round it; and it cherishes with most enthusiasm
those feelings which the active pursuits of life necessarily
impair, if they do not wholly extinguish. The devotion to
it, therefore, where it exists, often becomes an exclusive passion; and thus the gratification of it becomes the end instead
of the means of life. Instances of extraordinary success by
mere scholarship are more rare than in other professions. It
is not then to be wondered at that the prudence of some
minds and the ambition of others, should shrink from labors
which demand days and nights of study, and hold out
rewards which are distant, or pleasures which are, for the
most part, purely intellectual.
Causes like these, in an age which scrutinizes and questions the pretensions of every department of literature, have
31




362             MISCELLANEOUS WRITINGS.
contributed to bring into discussion the use and the value of
classical learning. I do not stand up on this occasion to
vindicate its claims or extol its merits. That would be a fit
theme for one of our most distinguished scholars in a large
discourse. But I may not withhold my willing testimony to
its excellence, nor forget the fond regret with which I left its
enticing studies for the discipline of more severe instructors.
The importance of classical learning to professional education is so obvious, that the surprise is, that it could ever have
become matter of disputation. I speak not of its power in
refining the taste, in disciplining the judgment, in invigorating the understanding, or in warming the heart with elevated sentiments; but of its power of direct, positive, necessary instruction. Until the eighteenth century, the mass of
science, in its principal branches, was deposited in the dead
languages, and much of it still reposes there. To be ignorant of these languages is to shut out the lights of former
times, or to examine them only through the glimmerings of
inadequate translations. What should we say of the jurist,
who never aspired ito learn the maxims of law and equity
which adorn the Roman codes? What of the physician
who could deliberately surrender all the knowledge heaped up
for so many centuries in the Latinity of continental Europe?
What of the minister of religion, who should choose not to
study the Scriptures in the original tongue, and should be content to trust his faith and his hopes for time and for eternity
to the dimness of translations, which may reflect the literal
import, but rarely can reflect with unbroken force the beautiful spirit of the text?  Shall he whose vocation it is "to
allure to brighter worlds, and lead the way," be himself the
blind leader of the blind? Shall he follow the commentaries
of fallible man, instead of gathering the true sense from the
Gospels themselves? Shall he venture upon the exposition
of divine truths, whose studies have never aimed at the first
principles of interpretation? Shall he proclaim the doctrines
of salvation, who knows not, and cares not, whether he




CHARACTERISTICS OF THE AGE.         363
preaches an idle gloss or the genuine text of revelation? If
a theologian may not pass his life in collating the various
readings, he may and ought to aspire to that criticism which
illustrates religion by all the resources of human learning;
which studies the manners and institutions of the age and
country in which Christianity was first promulgated; which
kindles an enthusiasm for its precepts by familiarity with the
persuasive language of Him who poured out his blessings on
the Mount, and of him at whose impressive appeal Felix
trembled.
I pass over all consideration of the written treasures of
antiquity, which have survived the wreck of empires and
dynasties, of monumental trophies and triumphal arches, of
palaces of princes and temples of the gods. I pass over all
consideration of those admired compositions, in which wisdom speaks, as with a voice from heaven; of those sublime
efforts of poetical genius, which still freshen, as they pass
from age to age, in undying vigor; of those finished histories,
which still enlighten and instruct governments in their duty
and their destiny; of those matchless orations, which roused
nations to arms, and chained senates to the chariot wheels of
all-conquering eloquence. These all may now be read in our
vernacular tongue. Ay, as one remembers the face of a dead
friend by gathering up the broken fragments of his image -
as one listens to the tale of a dream twice told — as one
catches the roar of the ocean in the ripple of a rivulet - as
one sees the blaze of noon in the first glimmer of twilight.
There is one objection, however, on which I would for
a moment dwell, because it has a commanding influence over
many minds, and is clothed with a specious importance. It
is often said, that there have been eminent men and eminent
writers, to whom the ancient languages were unknown;
men, who have risen by the force of their talents, and writers,
who have written with a purity and ease which hold them
up as models for imitation. On the other hand, it is as often
said, that scholars do not always compose either with ele



364              MISCELLANEOUS WRITINGS.
gance or chasteness; that their diction is sometimes loose
and harsh, and sometimes ponderous and affected. Be it so.
I am not disposed to call in question the accuracy of either
statement. But I would nevertheless say, that the presence
of classical learning was not the cause of the faults of the one
class, nor the absence of it the cause of the excellence of the
other. And I would put this fact, as an answer to all such
reasonings, that there is not a single language of modern
Europe, in which literature has made any considerable advances, which is not directly of Roman origin, or has not
incorporated into its very structure many, very many, of the
idioms and peculiarities of the ancient tongues. The English
language affords a strong illustration of the truth of this
remark. It abounds with words and meanings drawn from
classical sources. Innumerable phrases retain the symmetry
of their ancient dress. Innumerable expressions have received
their vivid tints from the beautiful dyes of Roman and Grecian roots. If scholars, therefore, do not write our language
with ease, or purity, or elegance, the cause must lie somewhat deeper than a conjectural ignorance of its true diction.
But I am prepared to yield still more to the force of the
objection. I do not deny, that a language may be built up
without the aid of any foreign materials, and be at once
flexible for speech and graceful for composition; that the
literature of a nation may be splendid and instructive, full of
interest and beauty in thought and in diction, which has no
kindred with classical learning; that in the vast stream of
time it may run its own current unstained by the admixture
of surrounding languages; that it may realize the ancient
fable, Doris amara suam non intermisceat undam; that it
may retain its own flavor, and its own bitter saltness too.
But I do deny, that such a national literature does in fact
exist in modern Europe, in that community of nations of
which we form a part, and to whose fortunes and pursuits in
literature and arts we are bound by all our habits, and feelings, and interests. There is not a single nation, from the




CHARACTERISTICS OF THIE AGE.           365
North to the South of Europe, from the bleak shores of the
Baltic to the bright plains of immortal Italy, whose literature
is not imbedded in the very elements of classical learning.
The literature of England is, in an emphatic sense, the production of her scholars; of men, who have cultivated letters
in her universities, and colleges, and grammar schools; of
men, who thought any life too short, chiefly, because it left
some relic of antiquity unmastered, and any other fame
humble, because it faded in the presence of Roman and
Grecian genius. He, who studies English literature without
the lights of classical learning, loses half the charms of its
sentiments and style, of its force and feelings, of its delicate
touches, of its delightful allusions, of its illustrative associations.  Who, that reads the poetry of Gray, does not feel,
that it is the refinement of classical taste, which gives such
inexpressible vividness and transparency to his diction? Who,
that reads the concentrated sense and melodious versification
of Dryden and Pope, does not perceive in them the disciples
of the old school, whose genius was inflamed by the heroic
verse, the terse satire, and the playful wit of antiquity? Who,
that meditates over the strains of Milton, does not feel, that
he drank deep at' Siloa's brook, that flowed
Fast by the oracle of God" —
that the fires of his magnificent mind were lighted by coals
from ancient altars-?
It is no exaggeration to declare, that he, who proposes to
abolish classical studies, proposes to render, in a great measure, inert and unedifying the mass of English literature for
three centuries; to rob us of much of the glory of the past;
and much of the instruction of future ages; to blind us to
excellences, which few may hope to equal, and none to surpass; to annihilate associations, which are interwoven with
our best sentiments, and give to distant times and countries
a presence and reality, as if they were in fact our own.
31*




366            MISCELLANEOUS WRITINGS.
There are dangers of another sort, which beset the literature of the age. The constant demand for new works, and
the impatience for fame, not only stimulate authors to an
undue eagerness for strange incidents, singular opinions, and
vain sentimentalities, but their style and diction are infected
with the faults of extravagance and affectation. The old
models of fine writing and good taste are departed from, not
because they can be excelled, but because they are known,
and want freshness; because, if they have a finished coloring,
they have no strong contrasts to produce effect. The consequence is, that opposite extremes in the manner of composition prevail at the same moment, or succeed each other with
a fearful rapidity. On one side are to be found authors, who
profess to admire the easy flow and simplicity of the old style,
the naturalness of familiar prose, and the tranquil dignity of
higher compositions. But in their desire to be simple, they
become extravagantly loose and inartificial; in their familiarity, feeble and drivelling; and in their more aspiring efforts,
cold, abstract, and harsh. On the other side, there are those,
who have no love for polished perfection of style, for sustained and unimpassioned accuracy, for persuasive, but equable diction. They require more hurried tones, more stirring
spirit, more glowing and irregular sentences. There must be
intensity of thought and intensity of phrase at every turn.
There must be bold and abrupt transitions, strong relief, vivid
coloring, forcible expression. If these are present, all other
faults are forgiven, or forgotten. Excitement is produced,
and taste may slumber.
Examples of each sort may be easily found in our miscellaneous literature among minds of no ordinary cast. Our
poetry deals less than formerly with the sentiments and feelings belonging to ordinary life. It has almost ceased to be
didactic; and in its scenery and descriptions reflects too much
the peculiarities and morbid visions of eccentric minds. How
little do we see of the simple beauty, the chaste painting, the
unconscious moral grandeur of Crabbe and Cowper! We




CHARACTERISTICS OF THE AGE.            367
have, indeed, successfully dethroned the heathen deities. The
Muses are no longer invoked by every unhappy inditer of
verse. The Naiads no longer inhabit our fountains, nor the
Dryads our woods. The River gods no longer rise, like old
father Thames,
" And the hushed waves glide softly to the shore."
In these respects our poetry is more true to nature, and more
conformable to just taste. But it still insists too much on
extravagant events, characters, and passions, far removed
from common life, and farther removed from general sympathy. It seeks to be wild, and fiery, and startling; and sometimes, in its caprices, low and childish. It portrays natural
scenery, as if it were always in violent commotion. It describes human emotions, as if man were always in ecstasies
or horrors. Whoever writes for future ages, must found
himself upon feelings and sentiments belonging to the mass
of mankind. Whoever paints from nature, will rarely depart
from the general character of repose impressed upon her
scenery, and will prefer truth to the ideal sketches of the
imagination.
Our prose, too, has a tendency to become somewhat too
ambitious and intense. Even in newspaper discussions of
the merits or misdeeds of rulers, there is a secret dread of
neglect, unless the page gives out the sententious pungency
or sarcastic scorn of Junius.  Familiar, idiomatic prose
seems less attractive than in former times. Yet one would
suppose, that we might follow with safety the unaffected
purity of Addison in criticism, and the graceful ease of Goldsmith in narrative. The neat and lively style of Swift loses
nothing of its force by the simplicity with which it aims to
put" proper words in proper places."  The correspondence
of Cowper is not less engaging, because it utters no cant
phrases, no sparkling conceits, and no pointed repartees.
But these faults may be considered as temporary, and are
far from universal. There is another, however, which is more




368           MISCELLANEOUS WRITINGS.
serious and important in its character, and is the common
accompaniment of success. It is the strong temptation of
distinguished authors to premature publication of their labors,
to hasty and unfinished sketches, to fervid, but unequal efforts.
He who writes for immortality, must write slowly, and correct freely. It is not the applause of the present day, or the
deep interest of a temporary topic, or the consciousness of
great powers, or the striking-off of a vigorous discourse, which
will ensure a favorable verdict from posterity.  It was a
beautiful remark of Sir Joshua Reynolds, that " Great works,
which are to live, and stand the criticism of posterity, are
not performed at a heat."  "I remember," said he, "when I
was at Rome, looking at the fighting gladiator, in company
with an eminent sculptor, and I expressed my admiration of
the skill with which the whole is composed, and the minute
attention of the artist to the change of every muscle in that
momentary exertion of strength. He was of opinion, that a
work so perfect required nearly the whole life of man to perform." What an admonition! What a melancholy reflection to those who deem the literary fame of the present age
the best gift to posterity!  How many of our proudest
geniuses have written, and continue to write, with a swiftness which almost rivals the operations of the press! How
many are urged on to the ruin of their immortal hopes by
that public favor which receives with acclamations every
new offspring of their pen! If Milton had written thus, we
should have found no scholar of our day, no "Christian
Examiner," portraying the glory of his character with the
enthusiasm of a kindred spirit. If Pope had written thus,
we should have had no fierce contests respecting his genius
and poetical attainments, by our Byrons, and Bowleses, and
Roscoes. If Virgil had written thus, he might have chanted
his verses to the courtly Augustus; but Marcellus and his
story would have perished. If Horace had written thus, he
might have enchanted gay friends and social parties; but it
would never have been said of his composition, Decies repetita placebit.




CHARACTERISTICS OF THE AGE.           369
Such are some of the considerations, which have appeared
to me fit to be addressed to you on the present occasion. It
may be, that I have overrated their importance, and I am not
unconscious of the imperfections of my own execution of
the task.
To us, Americans, nothing, indeed, can, or ought to be
indifferent, that respects the cause of science and literature.
We have taken a stand among the nations of the earth, and
have successfully asserted our claim to political equality.
We possess an enviable elevation, so far as concerns the
structure of our government, our political policy, and the
moral energy of our institutions. If we are not without
rivals in these respects, we are scarcely behind any, even in
the general estimate of foreign nations themselves. But our
claims are far more extensive. We assert an equality of
voice and vote in the republic of letters, and assume for ourselves the right to decide on the merits of others, as well as
to vindicate our own. These are lofty pretensions, which
are never conceded without proofs, and are severely scrutinized and slowly admitted by the grave judges in the tribunal of letters. We have not placed ourselves as humble
aspirants, seeking our way to higher rewards under the
guardianship of experienced guides.  We ask admission
into the temple of fame, as joint heirs of the inheritance,
capable, in the manhood of our strength, of maintaining our
title. We contend for prizes with nations whose intellectual
glory has received the homage of centuries. France, Italy,
Germany, England can point to the past for monuments of
their genius and skill, and to the present, with the undismayed confidence of veterans. It is not for us to retire from
the ground which we have chosen to occupy, nor to shut our
eyes against the difficulties of maintaining it. It is not by
a few vain boasts, or vainer self-complacency, or rash daring,
that we are to win our way to the first literary distinction.
We must do as others have done before us. We must serve
in the hard school of discipline; we must invigorate our




370              MISCELLANEOUS WRITINGS.
powers by the studies of other times.  Wve must guide our
footsteps by those stars which have shone, and still continue
to shine, with inextinguishable light in the firmament of
learning.
Nor have we any reason for despondency. There is that
in American character, which has never yet been found unequal to its purpose. There is that in American enterprise,
which shrinks not, and faints not, and fails not in its labors.
We may say, with honest pride,
" Man is the nobler growth our realms supply,
And souls are ripened in our Northern sky."
We may not, then, shrink from a rigorous examination of
our own deficiencies in science and literature. If we have
but a just sense of our wants, we have gained half the victory. If we but face our difficulties, they will fly before us.
Let us not discredit our just honors by exaggerating little
attainments. There are those in other countries, who can
keenly search out, and boldly expose every false pretension.
There are those in our own country, who would scorn a
reputation ill-founded in fact, and ill-sustained by examples.
We have solid claims upon the affection and respect of mankind. Let us not jeopard them by a false shame, or an ostentatious pride. The growth of two hundred years is healthy,
lofty, expansive. The roots have shot deep and far; the
branches are strong and broad. I trust that many, many centuries to come, will witness the increase and vigor of the stock.
Never, never, may any of our posterity have just occasion to
speak of our country in the expressiveness of Indian rhetoric,
" It is an aged hemlock; it is dead at the top."
I repeat it, we have no reason to blush for what we have
been, or what we are. But we shall have much to blush for,
if, when the highest attainments of the human intellect are
within our reach, we surrender ourselves to an obstinate
indifference, or shallow mediocrity; if, in our literary career,
we are content to rank behind the meanest principality of




CHARACTERISTICS OF THE AGE.           371
Europe. Let us not waste our time in seeking for apologies
for our ignorance, where it exists, or in framing excuses to
conceal it. Let our short reply to all such suggestions be,
like the answer of a noble youth on another occasion, that
we know the fact, and are every day getting the better of it.
What, then, may I be permitted to ask, are our attainments in science and literature, in comparison with those of
other nations in our age? I do not ask, if we have fine
scholars, accomplished divines, and skilful physicians. I do
not ask, if we have lawyers who might excite a generous
rivalry in Westminster Hall.  I do not ask, if we have
statesmen, who would stand side by side with those of the
old world, in foresight, in political wisdom, in effective debate. I do not ask, if we have mathematicians, who may
claim  kindred with the distinguished of Europe. I do not
ask, if we have historians, who have told with fidelity and
force, the story of our deeds and our sufferings. I do not ask,
if we have critics, and poets, and philologists, whose compositions add lustre to the age. I know full well, that there are
such. But they stand as light-houses on the coasts of our
literature, shining with a cheering brightness, it is true, but
too often at distressing distances.
In almost every department of knowledge, the land of our
ancestors annually pours forth from its press many volumes,
the results of deep research, of refined taste, and of rich and
various learning. The continent of Europe, too, burns with
a generous zeal for science, even in countries, where the free
exercise of thought is prohibited, and a stinted poverty
presses heavily on the soul of enterprise. Our own contributions to literature are useful and creditable; but it can
rarely be said, that they belong to the highest class of intellectual effort. We have but recently entered upon classical
learning, for the purpose of cultivating its most profound
studies, while Europe may boast of thousands of scholars
engaged in this pursuit. The Universities of Cambridge and
Oxford count more than eight thousand students, trimming




372            MISCELLANEOUS WRITINGS.
their classical lamps, while we have not a single university,
whose studies profess to be extensive enough to educate a
Heyne, a Bentley, a Porson, or a Parr. There is not, perhaps, a single library in America sufficiently copious to have
enabled Gibbon to verify the authorities for his immortal
History of the Decline and Fall of the Roman Empire. Our
advances in divinity and law are probably as great as in any
branch of knowledge. Yet, until a late period, we never
aspired to a deep and critical exposition of the Scriptures.
We borrowed from Germany and England nearly all our
materials, and are just struggling for the higher rewards of
biblical learning. And in law, where our eminence is least
of all questionable, there are those among us, who feel that
sufficient of its learning, and argument, and philosophy
remains unmastered to excite the ambition of the foremost
advocates.
Let me not be misunderstood. I advert to these considerations, not to disparage our country, or its institutions, or its
means of extensive, I had almost said, of universal education. But we should not deceive ourselves with the notion,
that, because education is liberally provided for, the highest
learning is within the scope of that education. Our schools
neither aim at, nor accomplish such objects. There is not a
more dangerous error than that, which would soothe us into
indolence, by encouraging the belief, that our literature is all
it can, or ought to be; that all beyond is shadowy and unsubstantial, the vain theories of the scientific, or the reveries
of mere scholars. The admonition, which addresses itself to
my countrymen respecting their deficiencies, ought to awaken
new energy to overcome them. They are accustomed to
grapple with difficulties. They should hold nothing, which
human genius or human enterprise has yet attained, as beyond their reach. The motto on their literary banner should
be, Nec timeo, nec sperno. I have no fears for the future. It
may not be our lot to see our celebrity in letters rival that of
our public polity and free institutions. But the time cannot




CHARACTERISTICS OF THE AGE.          373
be far distant. It is scarcely prophecy to declare, that our
children must and will enjoy it. They will see, not merely
the breathing marble and the speaking picture among their
arts, but science and learning everywhere paying a voluntary
homage to American genius.
There is, indeed, enough in our past history to flatter our
pride and encourage our exertions. We are of the lineage of
the Saxons, the countrymen of Bacon, Locke, and Newton,
as well as of Washington, Franklin, and Fulton. We have
read the history of our forefathers. They were men full of
piety, and zeal, and an unconquerable love of liberty. They
also loved human learning, and deemed it second only to
divine. Here, on this very spot, in the bosom of the wilderness, within ten short years after their voluntary exile, in the
midst of cares, and privations, and sufferings, they found
time to rear a little school, and dedicate it to God and the
church. It has grown; it has flourished; it is the venerable
University, to whose walls her grateful children annually
come, with more than filial affection. The sons of such ancestors can never dishonor their memories; the pupils of such
schools can never be indifferent to the cause of letters.
There is yet more in our present circumstances, to inspire
us with a wholesome consciousness of our powers and our
destiny. We have just passed the jubilee of our independence, and witnessed the prayers and gratitude of millions,
ascending to heaven, for our public and private blessings.
That independence was the achievement, not of faction and
ignorance, but of hearts as pure, and minds as enlightened,
and judgments as sound, as ever graced the annals of mankind. Among the leaders, were statesmen and scholars, as
well as heroes and patriots. We have followed many of them
to the tomb, blessed with the honors of their country. We
have been privileged yet more; we have lived to witness an
almost miraculous event in the departure of two great authors of our independence on that memorable and blessed day
of jubilee.




374            MISCELLANEOUS WRITINGS.
I may not, in this place, presume to pronounce the funeral
panegyric of these extraordinary men. It has been already
done by some of the master spirits of our country, by men
worthy of the task, worthy as Pericles to pronounce the
honors of the Athenian dead. It was the beautiful saying of
the Grecian Orator, that " This whole earth is the sepulchre
of illustrious men. Nor is it the inscriptions on the columns
in their native soil alone, that show their merit; but the memorial of them, better than all inscriptions, in every foreign
nation, reposited more durably in universal remembrance
than on their own tomb."
Such is the lot of Adams and Jefferson. They have lived,
not for themselves, but for their country; not for their country alone, but for the world. They belong to history, as
furnishing some of the best examples of disinterested and
successful patriotism. They belong to posterity, as the instructors of all future ages in the principles of rational liberty
and the rights of the people. They belong to us of the present age, by their glory, by their virtues, and by their achievements. These are memorials, which can never perish. They
will brighten with the lapse of time, and, as they loom on
the ocean of eternity, will seem present to the most distant
generations of men. That voice of more than Roman eloquence, which urged and sustained the Declaration of Independence, that voice, whose first and whose last accents were
for his country, is indeed, mute. It will never again rise in
defeance of the weak against popular excitement, and vindicate
the majesty of law and justice. It will never again awaken
a nation to arms to assert its liberties. It will never again
instruct the public councils by its wisdom. It will never again
utter its almost oracular thoughts in philosophical retirement.
It will never again pour out its strains of parental affection,
and, in the domestic circle, give new force and fervor to the
consolations of religion. The hand, too, which inscribed the
Declaration of Independence is indeed laid low. The weary
head reposes on its mother earth.  The mountain winds




CHARACTERISTICS OF THE AGE.             375
sweep by the narrow tomb, and all around has the loneliness
of desolation. The stranger guest may no longer visit that
hospitable home, and find him there, whose classical taste
and various conversation lent a charm to every leisure hour;
whose bland manners and social simplicity made every welcome doubly dear; whose expansive mind commanded the
range of almost every art and science; whose political sagacity, like that of his illustrious coadjutor, read the fate and
interests of nations, as with a second sight, and scented the
first breath of tyranny in the passing gale; whose love of
liberty, like his, was inflexible, universal, supreme; whose
devotion to their common country, like his, never faltered in
the worst, and never wearied in the best of times; whose
public services ended but with life, carrying the long line of
their illumination over sixty years; whose last thoughts exhibited the ruling passion of his heart, enthusiasm in the
cause of education; whose last breathing committed his soul
to God, and his offspring to his country.
Yes, Adams and Jefferson are gone from us for ever —
gone, as a sunbeam to revisit its native skies -gone, as this
mortal to put on immortality. Of them, of each of them,
every American may exclaim,
"Ne'er to the chambers, where the mighty rest,
Since their foundation, came a nobler guest;
Nor e'er was to the bowers of bliss conveyed
A fairer spirit, or more welcome shade."
We may not mourn over the departure of such men. We
should rather hail it as a kind dispensation of Providence, to
affect our hearts with new and livelier gratitude. They were
not cut off in the blossom of their days, while yet the vigor
of manhood flushed their cheeks, and the harvest of glory
was ungathered. They fell not, as martyrs fall, seeing only
in dim perspective the salvation of their country. They lived
to enjoy the blessings, earned by their labors, and to realize
all, which their fondest hopes had desired. The infirmities




376            MISCELLANEOUS WRITINGS.
of life stole slowly and silently upon them, leaving still behind
a cheerful serenity of mind. In peace, in the bosom of domestic affection, in the hallowed reverence of their countrymen, in the full possession of their faculties, they wore out
the last remains of life, without a fear to cloud, with scarcely
a sorrow to disturb its close. The joyful day of our jubilee
came over them with its refreshing influence. To them,
indeed, it was "a great and good day."  The morning sun
shone with softened lustre on their closing eyes. Its evening
beams played lightly on their brows, calm in all the dignity of
death. Their spirits escaped from these frail tenements without a struggle or a groan. Their death was gentle as an
infant's sleep. It was a long, lingering twilight, melting into
the softest shade.
Fortunate men, so to have lived, and so to have died!
Fortunate, to have gone hand in hand in the deeds of the
revolution! Fortunate, in the generous rivalry of middle
life! Fortunate, in deserving and receiving the highest honors
of their country! Fortunate, in old age to have rekindled
their ancient friendship with a holier flame! Fortunate, to
have passed through the dark valley of the shadow of death
together! Fortunate, to be indissolubly united in the memory and affections of their countrymen! Fortunate, above
all, in an immortality of virtuous fame, on which history may,
with severe simplicity, write the dying encomium of Pericles,
" No citizen, through their means, ever put on mourning."
I may not dwell on this theme. It has come over my
thoughts, and I could not wholly suppress the utterance of
them. It was my principal intention to hold them up to my
countrymen, not as statesmen and patriots, but as scholars,
as lovers of literature, as eminent examples of the excellence
of the union of ancient learning with modern philosophy.
Their youth was disciplined in classical studies; their active
life was instructed by the prescriptive wisdom of antiquity;
their old age was cheered byits delightful reminiscences. To
them belongs the fine panegyric of Cicero, " Erant in eis




CHARACTERISTICS OF THE AGE.        377
plurimme litterm, nec eam vulgares, sed interiores quoedam, et
recondite; divina memoria, summa verborum et gravitas et
elegantia; atque haec omnia vitae decorabat dignitas et integritas."
I will ask your indulgence only for a moment longer.
Since our last anniversary, death has been annually busy in
thinning our numbers. I may not look on the right, or on
the left, without missing some of those, who stood by my
side in my academic course, in the happy days spent within
yonder venerable walls.
" These are counsellors, that feelingly persuade us, what
we are," and what we must be. Shaw and Salisbury are no
more. The one, whose modest worth and ingenuous virtue
adorned a spotless life; the other, whose social kindness and
love of letters made him welcome in every circle. But what
shall I say of Haven, with whom died a thousand hopes, not
of his friends and family alone, but of his country? Nature
had given him a strong and brilliant genius, and it was
chastened and invigorated by grave, as well as elegant
studies. Whatever belonged to human manners and pursuits,
to human interests and feelings, to government, or science,
or literature, he endeavored to master with a scholar's diligence and taste. Few men have read so much, or so well.
Few have united such manly sense with such attractive
modesty. His thoughts and his style, his writings and his
actions, were governed by a judgment, in which energy was
combined with candor, and benevolence with deep unobtrusive, and fervid piety. His character may be summed up in
a single line, for there
"was given
To Haven every virtue under Heaven."
He had just arrived at the point of his professional career, in
which skill and learning begin to reap their proper reward.
He was in possession of the principal blessings of life, of
fortune, of domestic love, of universal respect. There are
32*




378            MISCELLANEOUS WRITINGS.
those, who had fondly hoped, when they should have passed
away, he might be found here to pay a humble tribute to
their memory. To Providence it has seemed fit to order
otherwise, that it might teach us "what shadows we are, and
what shadows we pursue." We may not mourn over such
a loss, as those who are without hope. That life is not too
short which has accomplished its highest destiny; that spirit
may not linger here, which is purified for immortality.




DIGESTS OF THE COMMON LAW.
AN ARTICLE WRITTEN FOR THE NORTH AMERICAN REVIEW, IN 1S26,
ON A GENERAL ABRIDGMENT AND DIGEST OF AMERICAN LAW, WITH
OCCASIONAL NOTES AND COMMENTS, BY NATHAN DANE, LL. D., COUNSELLOR AT LAW.
THE utility of abridgments, in all departments of learning,
will scarcely be doubted by any person, who is accustomed
to due reflection on the subject. The vast extent and intricacy of some branches of knowledge, the minute distinctions
and details of others, and the perpetual accumulations of all,
present obstacles to a thorough mastery of them, which are
not easily overcome by the most powerful genius, or the most
retentive memory. Those who are to learn must be assisted
by steps, by general principles, by succinct elucidation, and
by compendious abstracts, before they are able to engage in
the task of comprehensive analogies; and those who are
themselves instructed, find that memory is often treacherous,
and that the constant demand for knowledge compels them
to use many helps, in order to facilitate their recurrence to
exact principles, or exact facts.  The details of a whole
science, at least in our day, are probably beyond the immediate grasp of any single mind, however gigantic.  Recollections must be constantly refreshed, and the obscure traces
of past acquirements carefully retraced, if we aspire to any
thing like a vigorous command of that department of knowledge to which we are most devoted. Dr. Priestley, whose
various scientific, as well as general knowledge, will scarcely
be questioned, has somewhere stated, that he made use of




380             MISCELLANEOUS WRITINGS.
many mechanical aids in the course of his own studies, some
of which might be thought so humble as to excite a smile,
or even a doubt of the abilities of the author. Indeed, the
general auxiliary of most students used to be a commonplace book, in which the various readings and accumulations
of their learned hours were collected, sometimes with, and
sometimes without method. In whatever shape these were
preserved, they had the good effect of fixing the impressions
of many important truths, and of saving many hours of
fruitless research, to regain what was lost from the memory.
Before the invention of printing, this labor must have been
very great among the learned; and it has been gradually
lessening, only because the press has, in the principal departments of learning, by means of indexes, digests, compends,
concordances, dictionaries, and other abridgments, supplied
their place, and brought within a reasonable compass the
mass of those references, which are most useful to the scholar,
the professional gentleman, and the scientific student. It is
true, therefore, what of old was said, Qui compendiariam
alicujus artis sive scientice viam indicat, is gemino beneficio
juvat studiosum; primum, ut maturius quo tendit pertingat,
deinde ut minori labore sumptuque quod sequitur assequatur.
But, whatever may be thought of other cases, it is certain
that, in the department of law, abridgments are indispensable. Before reports of adjudged cases were published, no
other adequate means existed of acquiring the science of
jurisprudence, except what were furnished by a faithful
attendance upon the courts, and a diligent collection of the
substance of their decisions.  The early professors of the
common law were compelled to resort to common-place
books, and personal reports of cases, falling under their own
observation. Many manuscripts of this description are still
extant, exhibiting a patient industry, care, and accuracy,
worthy of all praise. The labor, indeed, of these venerable
jurists almost transcends the belief of students of the present day. They noted every case in all its points and princi



DIGESTS OF THE COMMON LAW.            381
ples. They abstracted from records, and general treatises,
and private manuscripts, often obscure and crabbed, every
thing that could be found to aid them in study or in practice.  They gathered voluminous collections of special pleadings, and unusual writs and judgments, to suit the exigencies
of their possible avocations; and thought no labor too great
which brought any solid addition to their knowledge, or any
increased facilities to their clients.
The necessity was the more pressing in those days, from
the subtilties, and quibbles, and scholastic logic, which characterized every department of learning. The law then dealt
with forms, even more than with substances. The slightest
variance from the Registrum Brevium, the neglect of any
precise technical order, the most insignificant error in words,
the smallest mistake in the description of persons or things,
nay, the omission of a single letter was perilous, and brought
in its train an abatement of the suit, and sometimes, by consequence, an extinction of the remedy. The strictness observed
in England, in the present times, to discourage the use of
the writ of right, affords some feeble illustration of this misplaced ingenuity, in hunting up and sustaining objections.
The curious refinements, the nice distinctions, the quaint
conceits, the arbitrary formularies, and the stiff, unbending
roughness of the bar and bench in those days, made every
thing important, from the first rudiment of principle, to the
last ramification of practice. There were no public repositories, in which principles or practices could be ascertained
by a glance of the eye. They were to be learned from the
oral explanations of the ancient sages of the law, or the conversational debates of the judges, or the close lecture rooms
of the benchers, or the dry expositions of the titular readers
of the Inns of Court.
When Reports began to be published, the labor was not
materially diminished. The decisions were not uniformly
reported at stated times; and many cases were not reported
at all. The early Reports contain no indexes.  The Year




382            MISCELLANEOUS WRITINGS.
Books have not a single line to direct the student to their
contents, and leave their bulky and abbreviated text without
title or comment, so mixed up in one common mass that it
requires no small share of historical knowledge to ascertain
who, at any given period, speak as judges or as counsel.
When tables of contents came subsequently into fashion,
they were so incomplete and incorrect, that they were comparatively of little assistance. Ashe's Repertory, or Table to
the Year Books, large as it seems, in two ponderous folios,
does nothing more than put one upon inquiry, and condescends not to select a single proposition asserted by the
cases. Indeed, the original indexes to the old reporters are
almost useless, and, in some instances, serve only the bad
purpose of misleading the inquirer, by holding out hopes,
which vanish when he touches the adjudication.
The practice of keeping common-place books, which was
thus begun from absolute necessity by the old lawyers, was
afterwards continued from a sense of its convenience. Nor
was it generally discontinued by the profession until a late
period; and it is not, perhaps, without some examples, even
in the present age. In America, the ante-revolutionary lawyers were in the habit of compiling manuscript abridgments
for their private use, some of which have reached our times.
They also left behind them many notes of adjudications,
which are yet to be found in the hands of the curious and
the learned. And, probably, in most of the states the practice of preserving short notes of new cases was common
among the leaders at the bar, until the legislature provided
for the regular publication of reports.
It is to sources like those already adverted to, that we owe
the early, and perhaps all the abridgments hitherto made of
the common law. What was introduced originally, from the
mere scantiness of public materials, in process of time obtained a continued favor, from the unwieldy bulk of adjudications. Lord Coke poured the contents of his commonplace book into his Commentary upon Littleton, and his




DIGESTS OF THE COMMON LAW.           383
superabundant Reports. Plowden may well be suspected of
the same overlearned zeal; and Lord Hale has attested his
own unwearied diligence and antiquarian researches, by
manuscript collections, which yet surprise us by their variety
and comprehensiveness.
The earliest printed abridgment of the law is that of
Statham, (Nicholas,) who was appointed a baron of the
exchequer in the eighth year of the reign of Edward the
Fourth (146S.)  It is a very curious book, printed, as it
would seem, before title-pages were in use, for it is without
any title-page, or imprint, or date; and the only notice we
have of the printer is the following brief and modest remark,
at the end of a short table of contents: " Per me, R. Pynson." It has been conjectured from the type that it was
printed at Rouen, by William Le Tailleur, who printed Littleton's Tenures, for Pynson. The latter was bred in the
service of Caxton, the first printer with metal types in England, and he succeeded his master in the business.  Statham's Abridgment was published between the years 1470
and 1490, and is a remarkable specimen of the typography
of the age. It shows that there has been little substantial.
improvement in the art, during the three last centuries. The
art appears, indeed, to have reached perfection within the
first half century after its invention. The copy now before
us seems to have formerly belonged to Sir Heneage Finch,
afterwards the celebrated Earl of Nottingham. The paper
is of a very firm, silky texture, forming a strong contrast to
the sleazy linen and cotton of our day; the ink is of a bright
jetty and unfaded black; the type, though small, and partly
composed of abbreviated characters, has a sharp and distinct
face; and the mechanical execution is so exact, that scarcely
a letter exhibits a blur, and the surface of every page presents
a uniform appearance, putting to shame many of the standard volumes of our times. The work itself contains, under
appropriate heads, brief abstracts of the cases in the Year
Books, to the end of the reign of Henry the Sixth, as well




384             MISCELLANEOUS WRITINGS.
as some cases not elsewhere to be found. It has now very
little value, except occasionally to verify a quotation, or to
gratify the curiosity of a professed antiquary.
The next abridgment, in the order of time, is that of Sir
Anthony Fitzherbert, first printed by Pynson about 1516, and
afterwards reprinted in 1565 and 1577. The edition of 1565
is far the best, for size of type and general accuracy. Besides
many cases not reported at large, it contains an abstract of
all the cases in the Year Books, down to the twenty-first
year of the reign of Henry the Seventh. It has always been
deemed of very high authority, where the author states cases
solely on his own responsibility. The marginal titles and
numbers, in the common editions of the Year Books, refer to
the titles and numbers of this abridgment. The learned
author died in 1538, leaving behind him the reputation of a
very laborious and upright judge.
At the distance of half a century afterwards, followed the
Abridgment of Sir Robert Brooke, of which there have been
several reprints; but the best is that on royal paper by Tottell, in 1573. It contains the substance of Fitzherbert, together with a collection of the later authorities, some of which
are nowhere else extant.
The character of the Abridgments of Fitzherbert and Brooke
may be summed up in a few words. They are mere indexes,
under general heads, of the principal adjudged cases up to
their own times, in which the points are accurately stated,
but without any attention to order, or any attempt at
classification. As repositories of the old law, they now
maintain a very considerable value, and may be consulted
with advantage. Whoever examines them (for a thorough
perusal of them will be a mere waste of time) will probably feel inclined, when he can, to ascend to the original
sources; but if these should not be within his reach, he may
rely with confidence, that these learned judges have not indulged themselves in a careless transcription, or a loose statement, of the law. In our own practice we have frequently




DIGESTS OF THE COMMON LAW.           385
found them the safest guides to the old law, and particularly
to the contents of the Year Books. At the times, when these
Abridgments were originally published, they must have been
very acceptable presents to the profession. But many of the
titles are now obsolete; and the works lie on the dusty
shelves of our libraries, rarely disturbed, except upon some
extraordinary inquiry, touching the feudal tenures, or the
doctrine of seizin. The modest motto prefixed to both of
them deserves to be remembered: Ne moy reproves sauns
cause, car mon entent est de bon amour.
We pass over, without observation, Hughes's Abridgment,
printed in 1660, because it embraces but a short period, and
is a mere supplement to the earlier works; and also Sheppard's Abridgment, printed in 1675, because, though not disreputable in its execution, it scarcely struggled into existence
against the superior work of Lord Chief Justice Rolle, which
was published under the auspices of Sir Matthew Hale, in
1668. Lord Hale contributed to it a very able and learned
preface, in which he bestows just commendation on its execution; and of the author he says, " He was a man of very
great natural abilities, of a ready and clear understanding,
strong memory, sound, deliberate, and steady judgment; of
a fixed attention of mind to all business, that came before
him; of great freedom from passions and perturbations, of
great temperance and moderation, of a strong and healthy
constitution of body, which rendered him fit for study and
business, and indefatigable in it." The Abridgment itself is
a posthumous work, intended by the author for his own
private use, and not for the public; and Lord Hale says,
" Though it is of excellent use and worth, yet it comes far
short of the worth and abilities of him, that compiled it, and
therefore is an unequal monument of him." The chief advantage, that it possesses over the earlier compilations, is in
a more scientific arrangement of the materials, and a greater
subdivision of the general heads, so as to bring together
matters of the same nature or. relative to the same branch,
33




386             MISCELLANEOUS WRITINGS.
instead of heaping them up in one undistinguishing mass.
Mr. Hargrave, in his edition of Coke on Littleton (note 1 to
page 9,) speaks of it, as a "work most excellent in its kind;
and, in point of method, succinctness, legal precision, and
many other respects, fit to be proposed as an example for
other abridgments of law." In practice, however, it has been
in a great measure superseded by the later works, and is
resorted to, principally, to verify quotations, when the original authorities are not to be found reported at large, or when
Lord Rolle has stated circumstances, which are omitted by
other authors.
D'Anvers's Abridgment, printed early in the eighteenth
century, which Mr. Viner informs us was eighteen years in
passing through the press,1 is a mere translation of Rolle,
with the addition of more modern cases, and is incomplete,
extending only to the title " Extinguishmnent." Nelson's is
chiefly borrowed from Hughes; and though the author was
a very harsh and unsparing critic on the labors of others, his
own have a general character of incorrectness stamped upon
them, and have fallen into utter neglect.
Bacon's Abridgment, so well known to the profession, was
first published in 1736, and has passed through six large
editions. The contents of the work owe very little to the
nominal author, (Matthew Bacon, Esq., of the Middle Temple,) and were chiefly extracted from the manuscript collections of Lord Chief Baron Gilbert. Mr. Gwillim has well
observed, that " It was the hard fate of his excellent writings
to lose their author before they had received his last corrections and improvements, and in that unfinished state, to be
thrust into the world without even the common care of an
ordinary editor. Those invaluable tracts were, for the most
part, published, not only with their original imperfections,
without any attempt to supply their defects, or explain, or
correct what seemed in them perplexed or erroneous, but
1 Preface to the eighteenth volume of his Abridgment.




DIGESTS OF TIE COMMON LAW.          387
with all the improprieties and inaccuracies, which the ignorance and neglect of the amanuenses, whom the author's
infirmities compelled him to employ, could accumulate upon
them." Mr. Bacon deserves very little credit, in any view;
because he seems to have been willing to appropriate to himself the labors of another, without due acknowledgment, and
to have employed no diligence in correcting errors, and no
learning in supplying deficiencies. He died before the work
was completed; and the remainder, from the title, " Sheriff,"
was furnished by Mr. Sergeant Sayer, and Mr. Ruffhead.
Of this collection, which has been almost for a century
before the public, it seems scarcely necessary, at the present
time, to express any opinion. It consists of a series of tracts,
or dissertations, upon various topics of the law, generally
illustrated by adjudications, and, though incomplete, exhibiting a rare union of sagacity and industry. As a text-book
for students, it has long maintained an unrivalled reputation;
and, as the expositions of a very able and learned judge upon
a large survey of the law, dealing with its history and its
reasons, it must for ever hold a high rank among the treasures
of the profession. Mr. Gwillim's edition is far the best, which
has appeared in England, and is entitled to much praise for
the manner in which the duties of the editor have been performed. This edition has been republished in America, under the superintendence of Bird Wilson, Esquire, who has
enriched it with many valuable additions. Still it must be
admitted, that there is great awkwardness and inconvenience
in ingrafting such an abundance of marginal notes upon the
original text, threatening, in every new edition, to overlay, If
they do not bury it beneath their weight.
Mr. Viner's Abridgment was published between the years
1741 and 1751, and extending, as it does, over the space of
twenty-four folio volumes, may be thought by some not to
have a very apt title. The learned author passed a whole
life in compiling the work, and superintending the printing
of it, which, by the consent of the law patentees, was done at




388             MISCELLANEOUS WRITINGS.
his own house, in Aldershot in Hampshire. The basis of the
work is Rolle's Abridgment, with the addition of all the materials, which had accumulated in the intermediate period.
In the preface, (which appears in the thirteenth volume,1
occasioned by the author's having begun with the title "Factor," where D'Anvers ended his Abridgment,) he states, that
he commenced the undertaking with the eighteenth century,
and it was, of course, for nearly fifty years under his revising
hand. Mr. Hargrave (Co. Litt. 9, a, note 3,) calls it an immense body of law and equity, which, notwithstanding all its
defects and inaccuracies, must be allowed to be a necessary
part of every lawyer's library. He adds, that it is a most
useful compilation, and would have been infinitely more so,
if the author had been less singular and more nice in his
arrangement and method, and more studious in avoiding
repetitions. This praise, qualified as it is, seems to us rather
to go beyond, than to fall short of the real merits of the work.
It is a cumbrous compilation, by no means accurate or complete in its citations, and difficult to use, from the irregularity
with which the matter is distributed, and from the inadequacy, and sometimes the inaptness, of the subdivisions.
Indeed, every thing appears to have been thrown into it,
without any successful attempt at method or exactness. Almost every thing valuable in the older abridgments is, indeed,
to be found in it; but sometimes so ill arranged, that the
search is almost as troublesome, as it would be to run over
the whole title in Fitzherbert or Brooke. The author has
observed, in the preface to his thirteenth volume, that " The
study of the law is a very long journey, and the roads not
the plainest; in which they [abridgments] may serve as posts
and Mercuries to direct the students in their way, but ought
not by any means to be considered as their journey's end, or
place of their last resort and residence." What a pity, that
the author had not more diligently followed the directions,
I There is a second preface in the eighteenth volume.




DIGESTS OF THE COMMON LAW.            389
which he seems to approve by the above allusion! He has,
by no means, made the roads very plain or smooth; and the
sign-posts, which he has put up, do not always indicate either
the truest way, or the shortest distance, to the striking point
of the traveller's journey. Nor has he the satisfactory apology, Dum brevis esse laboro, obscurus fio; for his work is
both long and confused. It may, and, indeed, ought, to constitute a part of every law library, which aims to be tolerably
complete; for it embraces the body of the law antecedent to
the reign of George the Third. Its principal merit is its extent; and though in some parts it is redundant, in others
defective, and in all irregular, it is a vast index of the law,
which time and patience can master; and it often rewards
the labor, when all other resources have failed the diligent
searcher for authorities.
It is impossible, however, not to feel, that we owe to this
work a deep debt of gratitude, which should disarm criticism,
and almost extinguish every recollection of its infirmities.
To the establishment of the Vinerian professorship, at Oxford University, we are indebted for one of the most elegant
and classical works in our language, " The Commentaries on
the Laws of England," by Sir William Blackstone. From
a zeal for the study of the law, for "the benefit of posterity,
and the perpetual service of his country," Mr. Viner devoted
his property, and the proceeds of the sale of his great Abridgment, to the noble purpose of founding a professorship of the
common law. And we are informed, that the fund proved
sufficiently productive to enable the University, also, to establish some fellowships and scholarships for the study of the
law there.1
A work of a very different character, and almost perfect in
its kind, is the Digest of Lord Chief Baron Comyns. Though
a posthumous publication, it has been justly observed, that,
unlike most publications of that nature, it was left by its
1 1 Blackstoues Commentaries, 28.
33 *




390             MISCELLANEOUS WRITINGS.
learned author in a state very fit to meet the eye of the
public. Lord Chief Baron Comyns died sometime between
the years 1740 and 1743; the exact period, Mr. Rose, his late
editor, does not seem to have been able to ascertain. It is a
melancholy fact, that very few particulars of the lives even
of the most eminent lawyers reach posterity. Great as their
fame may be, and extensive as may be their professional
labors, while living, they rarely leave a permanent impression
upon the public mind; and after the lapse of a few years,
the most diligent search enables us to collect little more than
the facts of their birth, death, and parentage. This distinguished judge is a very striking illustration of the remark.
It was said by the late Lord Kenyon, that " Comyns's
opinion alone is of great authority, since he was considered
by his contemporaries as the most able lawyer in Westminster Hall." (3 T. R. 64.) There is no reason to doubt the
truth of this assertion; and yet, of such a man, nothing
more can now be gathered, than a few short dates of his
appointments to public stations. Mr. Rose says, " It was the
editor's wish, for the purpose of satisfying a laudable curiosity
in respect to so eminent a man, to have stated some particulars of the life of Sir John Comyns; but, after several inquiries, the following dates are all he has been able to collect." He then introduces the dates of his appointment as
a Baron of the Exchequer, and a Judge of the Common
Pleas.
Of the plan of this incomparable Digest, it is difficult to
speak in terms, which will do it justice, without seeming to
be extravagant. Mr. Hargrave (Co. Litt. 17, note 96,) says,
"The whole of Lord Chief Baron Comyns's work is equally
remarkable for its great variety of matter, its compendious
and accurate expression, and the excellence of its methodical
distribution." Our own opinion is, that, for the purpose it
proposes to accomplish, no plan could be more judicious, and
no execution more singularly successful. It does not, like
Bacon's Abridgment, affect to enter into disquisitions upon




DIGESTS OF TIIE COMMON LAW.          391
the various doctrines of the law, or to explain the reasons, on
which it is built. But, as the preface to the first edition
states, " The general plan of this Digest is, that the author
lays down principles or positions of law, and illustrates them
by instances, which he supports by authorities; and these are
trenched out and divided into consequential positions or
points of doctrine, illustrated and supported in the same
manner. By this means, each head or title exhibits a progressive argument upon the subject, and one paragraph, &c.
follows another in a natural and successful order, till the
subject is exhausted." It is a curious fact, that the original
text was composed in Law French, which it is conjectured,
the author chose on account of its apt expression and singular brevity.
The editors of the first edition translated the whole work
into English, which was, of itself, a prodigious undertaking,
and they declare that " The translation of the book has been
carefilly compared with, and corrected by, the original, and
with very great labor has also been compared with, and corrected by, the several books cited."  Who the gentlemen
were, to whose patient industry and accuracy we are indebted
for the publication of so choice a work, we have never been
able to ascertain.  They have modestly withdrawn their
names from the titlepage and preface, leaving the latter to
speak the extent and credit of their labors. We regret this
concealment; for never did a posthumous work fall into
more able hands, and never was the duty of an editor more
faithfully discharged. It is this consideration which gives to
the original edition so very distinguished a value, even in our
days. It was published between the years 1762 and 1767, in
five folio volumes, on excellent paper, with a large type, and
it stands unrivalled for the accuracy and beauty, with which
it came from the press. In 1776, a supplemental folio volume
was added, containing a digest of the recent cases, upon the
same plan as the original work.
Of the later editions, in octavo, we can say little by way




392             MISCELLANEOUS WRITINGS.
of commendation.  They have the gross fault of a total
departure from the style, brevity, accuracy, and simplicity of
Comyns; a departure which is utterly without apology; as
it exhibits, on the part of the editor, either an incapacity for
the task, or an indifference to the manner of executing it.
If, indeed, other authors have suffered from the posthumous
publication of their unfinished works, it has been the hard
fate of Comyns to have the symmetry and excellence of his
work essentially impaired by the unmerciful interpolations of
his later editors. Without any regard to the dependencies of
the original text, or the sequence of principles and illustrations, they have thrust in between the different paragraphs
their new matter, in a crude state, and often so little sifted,
that it is a mere copy of the marginal abstracts of the later
reports. The consequence is, that passages, which are connected in sense in the original text, are often separated by
these misshapen adjuncts; and sometimes a half page is to
be run over by the reader, before he can gather up the disjecta
membra, the scattered fragments, of the author.
In the art of bookmaking, there is scarcely any thing more
reprehensible than this practice, by which an author, singularly clear, exact, and methodical, is presented in the habiliments of a slovenly common-place man. The only rational
course to be pursued, in any new edition of Comyns, would
be to leave the text untouched, with all the authority belonging to it from the author's venerable character; and, by supplementary volumes, drawn up in the same method, to add
the new matter, which has accumulated from the litigation
of later times. The good example of the editors of the
Supplement, in 1776, seems, however, to have suited ill with
the notions of our age; and, from the rage for innovation, or
from the pitiful prevalence of a bookselling interest, every
successive edition, instead of being of a higher value, has
constantly diminished the real utility of the work. Mr.
Kyd's edition has the negative merit of having done but
little injury; Mr. Rose's, in 1800, has interwoven a miserable




DIGESTS OF THE COMMON LAW.          393
patchwork; and Mr. Hammond's, in 1824, has even less
merit, containing the substance of his indexes to the common law and chancery reports, thrown together with a
strange neglect of the symmetry of the original work. Indeed, this last edition deserves the severe rebuke of the profession, as its main object seems to be to swell the work to
ten ponderous volumes. If the new matter had been properly abridged, and reduced to simple principles and brief
illustrations, in the manner of Comyns, it might easily have
been compressed into two supplementary volumes. But the
last Supplement equals the original in size, and wants every
excellence, that characterizes it.
We hope to live long enough to see Comyns rescued from
the hands of such editors, and restored to his just value, by
an edition worthy of his labors. WTe are confident, that the
task of collecting and digesting the modern matter, however
operose it may seem, is within the power of any one learned
and diligent lawyer, and that its accomplishment would
receive an ample reward from the profession. Such an
achievement would lay the foundation of a most honorable
fame. As the case now is, he is the most fortunate jurist,
who possesses the earliest edition of the work. We have
been more emphatic in our remarks on this subjects, because
we perceive an increasing propensity, in our own country, to
load and overload new editions of professional works with
notes of little intrinsic value, or at most, with notes whose
value is materially diminished by the loose and unskilful
manner, in which they are introduced. There are, however,
some exceptions to this remark; and none are entitled to
more praise than the learned comments of Mr. Metcalf.
But we hasten from this digression to resume the subject
to which the work named at the head of this article immediately conducts us. Upon the appearance of a new abridgment of the law, the question naturally occurs, whether it be
necessary; and if necessary, what is the best plan, with a
view to comprehensiveness and convenience, on which it can
be formed?




394            MISCELLANEOUS WRITINGS.
In respect to England, there may perhaps be some doubt
whether such a work would be of any extensive utility. A
continuation of Comyns's Digest seems all that is necessary
for lawyers of advanced standing; and Bacon's Abridgment,
however imperfect, is perhaps sufficient, with Blackstone's
Commentaries and Cruise's Digest, as a general outline for
students. Indeed, most of the branches of law of great practical importance have in modern times been discussed in
independent treatises with much ability, and sometimes in
so masterly a manner as to exhaust the subject. What
could be added to Fearne's Essay on Contingent Remainders and Executory Devises? But we think the subject
admits of a very different consideration in relation to America. The learned author of the " General Abridgment and
Digest of American Law" has stated the reasoning in favor
of it with so much force and correctness that we transcribe
his remarks in the Introduction to his work rather than hazard our own.
" At the close of the American revolutionary war, when
the United States became an independent nation, it was very
material to inquire and to know what was law in them, collectively and individually; also to examine, trace, and ascertain what were the political principles on which their system
was founded; and their moral character, so essential to be
attended to in the support and administration of this system;
especially in selecting from the English laws in force in a
monarchy once feudal, those parts of them adopted here, and
remaining in force in our republic.'With such impressions
the author early turned his attention to these subjects, and
in good earnest engaged in collecting materials upon them:
and the more readily, as such a pursuit perfectly accorded
with his professional and political employments in which he
engaged in the spring of 1782. He early found there was in
the United States nothing like one collected body of American
law, or one collected system of American politics; but all was
found in scattered fragments. Scarcely any native American




DIGESTS OF THE COMMON LAW.           395
law was in print, but the colony statutes, charters, and some
of the constitutions. No judicial decisions made in America,
of any importance, had been published, and but very few
forms. The laws enacted here were found separately published in many states, in colony, province, and state statutes.
Our law labored under another material disadvantage; most
of it was found only in English books. These were written
and published to be used in England, not in America; a
a large part of which was of no real use here.
" No measures had ever been taken to ascertain with
any accuracy what part of English law our ancestors had
adopted in the colonies or provinces. The result was, our
ablest lawyers were often unable to decide what parts of the
English laws were inl use here; and our students at law
often studied as laboriously the useless as the useful parts of
those laws. No one had attempted to embody our laws or
political principles, dispersed in numerous local charters, constitutions, statutes, and also English books; many of which
laws and principles were to be traced to the free parts of the
British system, and even to the ancient Germans, in several
cases; and in some to the Hebrews, several of whose laws
some of our ancestors early adopted in America.
"' In this state of things a very important object naturally
presented itself to one who for several years had been in a
situation highly to appreciate American principles, especially
those of the American Revolution; which was a collected
body of American law, formed with a constant reference to
those principles, and to our character and situation. Forty
years ago the materials for such a work were but few in
comparison with what they now are; and then it was very
useful and even necessary to collect them for the lawyer's
private use; and to such purpose was the undertaking commenced and pursued many years. The title,'A General
Abridgment and Digest of American Law, with occasional
Notes and Comments,' is intended to give a clear and concise view of the nature of the work. Formerly the word,




396             MISCELLANEOUS WRITINGS.
Digest, in law-books, meant much more than an alphabetical
arrangement of marginal notes, or of several indexes. But,
as this seems to be nearly its modern meaning, it applies but
to an inconsiderable part of this work, the principal parts of
which are described by the other words in the title, to wit,'Abridgment, Notes, and Comments.' The first object has
been to abridge and compress cases within narrow limits, but
not so as to lose or obscure the law, decided or settled in
them.  Next, on proper occasions, by remarks, notes, and
comments, to examine and explain a few obscure points of
law, and sometimes to show the law is not as it has been in
some decisions stated to be.
" The work is calculated to consist of eight royal octavo
volumes, of about seven hundred pages each, to be purely
American, and, among other things, to supply the place
generally of the English abridgments and digests now read,
especially by students, very disadvantageously, because in
many respects inapplicable to our practice. As every lawyer
of experience must have found a common life too short to be
well read in the immense mass of law and equity, federal,
state, and territorial, really applicable to our affairs, it must
be in some degree a waste of time, especially for students
and some others, to spend a large part of their time in
reading English law as to tithes, forest, game prerogatives,
ancient demesne, advowsons, boroughs, English copyhold
estates, many parts of feudal tenures, most kinds of English
courts and customs, modes of punishments and forfeitures,
laws as to English religion, privileges, revenue, stamps,
modes of conveying and assuring property, and a vast many
other matters peculiar to England. In fact, near half the
English and Irish law we buy at a heavy expense, and read
often to the exclusion of reading our own laws, so useful, is
as inapplicable to our concerns as the laws of Germany or
Spain; and more so than the civil code of France, since it is
adopted in substance by Louisiana, one of our States."
Introd. pp. 3-5.




DIGESTS OF THE COMMON LAW.          397
Now we entirely agree with the author in his conclusion, that an American abridgment is indispensable both for
lawyers and students, at the present day. We can hardly
conceive of any thing more preposterous than to engraft on
such a work those titles of the English law. which have
nothing correspondent with them in our country to which
they can be applied. It is true, that decisions in those
branches of English law may sometimes furnish an illustration of a doubtful point, or an analogy to direct our researches. But these occasions must be of rare occurrence;
and the same inducements might be as well urged in favor
of the incorporation of the law of other foreign countries.
Abridgments can embrace only those portions of law which
are of most frequent and general use. English sources will
always be open to the curious who desire to explore the
more obscure doctrines; and the practising lawyer must, in
extraordinary cases, task his diligence to master what is
unknown, and to bring to light what is buried in dark and
remote antiquity.
In regard to the plan most proper for an American abridgment, various opinions will probably be entertained by the
profession. It is not, indeed, easy to say what plan would,
abstractedly speaking, be best. Much must depend upon
the extent and object of the work; and even here there is
sufficient room for diversity of judgment, without in the
slightest degree indulging in dogmatism. Whoever selects
must omit something; and what is proper to be omitted,
and what to be retained, is, of course, a matter for the exercise of much delicate discretion. If the object of the author
be to present to the learned in the profession a mere dry
abstract of principles, with cases to illustrate them, a more
perfect model than Comyns's Digest can scarcely be devised;
and an order, if not strictly alphabetical, at least nearly
approaching to it, will be naturally resorted to. If, on the
other hand, he wishes to expound the reasons of the law, or
to comment on cases with a view to try their accuracy, and
34




398              MISCELLANEOUS WRITINGS.
to deal with all parts of the same general subject in the mode
of dissertation, he will bring together all the incidental topics:
and then, of course, to some extent, he must desert an alphabetical arrangement. Again, if his object be to present matter of direct and positive authority only to assist experienced
advocates in their consultations, he may spare many explanations which are indispensable for students.  If, on the other
hand, his main object be to instruct students, and give collateral aids to the profession at large, he will begin with the
easier branches of the law, and gradually open upon those
which require more thought, sagacity, and experience. He
will, for instance, begin with the law of contracts, rather than
with the intricate distinctions of real estates. He will initiate
the student in matters of general observation and practice
before he deals with the more recondite portions of jurisprudence. He will embody, in some degree, the general principles with the remedies which accompany a violation of
them; so that the student may perceive that he is to practise, at the very outset, whatever he is taught.
It is manifest, that, under such circumstances, the whole
plan and method of a work must essentially deviate from an
alphabetical order; and that materials must often be separated, where, upon another plan, they would be joined, and
joined where they would otherwise stand af great distances.
The only rule then that can be laid down in cases of this
nature, is to judge of the work from the design of the author;
or, as Pope expresses it,
"In every work regard the writer's end,
Since none can compass more than they intend."
Mr. Dane, in his Introduction, has given very much at large
the plan and objects of his work. Its objects may be summarily stated to be, to frame an abridgment " to be useful to
American lawyers, especially to students, and those of the
profession, who cannot possess many books;" " to make our
American charters and constitutions, statutes and adjudged




DIGESTS OF TIIE COMMON LAW.           399
cases, the groundwork of each subject, and therewith to
incorporate that portion of the English law, recognized in
the United States, beginning with Magna Charta, and the
first charters and statutes in our colonies;" "to examine
such cases as are binding on all parts of the Union, and to
cite some of the most important verbatim, and abridge the
others;" to include as much of the local law of the different
states as is practicable; and to incorporate manuscript reports
of adjudications, not in print.
Thus far, as to the objects of the work. It appears to us,
that these objects are sufficiently comprehensive, and that
the principle of selection, which pervades the whole, is highly
creditable to the judgment of the learned author. In regard
to one point only will there probably be much difference of
opinion with the profession; and that is, whether local law
ought to find a place in the work; and if it ought, how far
the selection of the local law of Massachusetts, as a basis,
is judicious. On this point let Mr. Dane speak for himself;
and we think no one will deny, that his suggestions are of
very great weight. In enumerating the objects of the work,
he says, one is, -
"' To examine the charters, constitutions, and statutes of
the several colonies and states, of a public nature, and the
judicial decisions made in the highest courts in them, and
published, so far as to acquire correct ideas of such state
law; but so voluminous is it, and so much of it merely local,.
in small portions of the nation, that it has been deemed not
practicable or useful to include large portions of it in this
work, except in regard to a few of the states; and it has
been considered, that the judges and lawyers of any state
best understand its local laws; and it will be found, that the
courts in one state have not often noticed the laws and decisions in other states.
" This being the case in regard to state law, it was found
best to select the state law of some one state, to be included
much at large in this work. Accordingly, the laws of Mas



400             MISCELLANEOUS WRITINGS.
sachusetts, in substance including Maine, have been selected
for the purpose, and for the following reasons. 1. These
laws are, in fact, the laws of two large states. 2. With
these the author has long been well acquainted. 3. As the
other New England states were at first peopled from Massachusetts, her laws were the root of theirs. 4. Her laws, as to
the rights of persons, property, &c., were made the root or
germ of nearly all our territorial law east of the Mississippi,
by being made the material parts of the ordinance of Congress, passed July 13, 1787, for the government of the United
States' territories northwest of the Ohio, and from time to
time extended to their other territories, as will appear on
examining the ordinance itself. 5. Much the largest part of
the judicial decisions made in Massachusetts (and Maine)
have been made on those principles of law, which are common to all the states, except Louisiana. 6. Many of the
statutes of Massachusetts having been copied or formed in
substance from English statutes, and many others of our
colonies and states having done the same, her statutes in
these respects are substantially theirs; for instance, Massachusetts, Virginia, &c., nearly copied their statutes of limitations from the statutes of limitations of the 32d Henry
VIII., ch. 2, and hence, so far, the statutes of one are those
of all.
"However, there is embraced in this work much of the
local law of the other states in the Union in different ways,
especially of New York, Virginia, and Kentucky. The State
of Louisiana having, by statute, adopted the new French
civil code, with some variations, and made it, of course, a
part of our American system, many parts of this code have
been taken into this work. In fact, on a careful examination
it will be found, that more than four fifths of the decisions
made in Massachusetts, New York, and Virginia, stated in
this work, have been made on principles and authorities
common to twenty-three states, and so practised on in all.
Though in the statutes of the several states there is a same



DIGESTS OF THE COMMON LAW.            401
ness in principle, yet there is a vast variety in words and
detail, when not formed from one source, as above; but not
a tenth part of the law in a state is found in its statutebooks. Owing to this variety, the statutes of each state
must be used somewhat at large, in order to practise on
them safely." pp. 5, 6.
We would refer the reader to the fourteenth page of the
Introduction, for a more full exposition of the author's reasons for not inserting in his work more of the local law of
the several states. These reasons are, certainly, not without
considerable weight. Besides, such an enlargement of the
plan of the work would have occasioned an increase of its
cost, without conferring an equal value upon the work; for
it can hardly be supposed, that the profession, generally,
would find much local law of so many states useful to them.
We are next to consider the plan of the work.
[The author's plan was here stated in his own words.]
Now it seems to us, that, with reference to the leading
objects of the work, nothing could be more judicious than to
give a view of the general principles of each branch of the
law, and to illustrate them with cases, and then to proceed to
the more minute and subordinate particulars. The remarks
and comments, which accompany the leading doctrines and
cases, cannot fail to be useful to all the profession; for they
are the result of a half century's steady devotion to the law,
by one, whose diligence has never been weary, whose caution
has been disciplined by very patient investigations, and whose
learning has been matured by very extensive studies.
The plan has several peculiarities; but the principal distinction between this and other abridgments is, that in many
instances it treats the rights and remedies of parties in the
same connection, and consequently introduces, in no inconsiderable degree, in the discussions of remedies, the most
important rules of property. In this respect it pursues a
34*




402            MISCELLANEOUS WRITINGS.
method, not unlike that of Mr. Espinasse in his valuable
Digest of the Law of Actions at Nisi Prius.
That there are many advantages in this system of arrangement, especially for students, will be denied by few; that it
has some disadvantages ought not to be concealed. One
advantage is, that it keeps up in the student's mind a close
affinity between the right and remedy, and compels him to
make a practical application of his knowledge, as he advances
in his studies. On the other hand, one disadvantage is, that
it sometimes separates into distinct heads matters of the
same nature, which require different remedies in different
stages of title; and leads to extensive researches into collateral questions, which do not strictly touch the remedy.
Whichever way we look, there is some ground, on which the
advocates of different systems may rest plausible arguments.
The system, however, adopted by Mr. Dane, is not a rash
innovation; and, in our judgment, has much in it entitled to
commendation. If it do not unite the whole profession in
its favor, it will always count among its advocates many
enlightened jurists. The principal disadvantage, in a practical view, to which this method of arranging subjects is
liable, is, that it is not of so easy reference in the hurry of
consultation. But in Mr. Dane's work this disadvantage is
entirely overcome by a general Index to the whole work,
occupying, with the names of cases, a volume. This Index
we venture to pronounce absolutely unrivalled in fulness and
accuracy, bringing within the reach of the most ordinary diligence all the leading positions and doctrines of this extensive
compilation.
As to the execution of the plan, the nature of which we
have endeavored to explain in a succinct manner, it is difficult to give any but a very general sketch. It is obviously
impracticable to go into the details of a work, extending
through eight octavo volumes, with a crowded type and
margin, and embracing nearly six thousand pages. We
have no room to indulge in criticisms on particular passages.




DIGESTS OF THE COMMON LAW.            403
Even to examine the divisions and subdivisions of a single
title would be a most exhausting process, and occupy more
pages than belong to the review of any single work. In
general, it may be said, that the learned author has executed
his task with becoming diligence and ability. He has bestowed forty years of a most studious life in the labor; and
has here given the results of all his juridical reading in a
compendious and accurate form.  His comments exhibit
various learning and close reflection; and his illustrations
cannot fail to assist such as seek for aid in those obscurer
parts of the law, which perplex by their intricacy and equivocal direction. We choose rather to subjoin extracts exhibiting the actual execution of the work, from which the
reader will be able to form a fair judgment, than, by mere
general expressions of approbation, to hazard in any respect
the just reputation of the author.
Upon one or two topics, however, we wish to be indulged
in saying a few words, because they give a distinguishing
value to this Abridgment.
In the first place, it contains a full view of the doctrines,
which belong to subjects principally within the cognizance of
the Federal courts. Such are matters of admiralty jurisdiction and revenue seizures; the law of prize; the rights and
duties of neutral nations; the claims of foreign sovereignties
to immunities in our courts, and other topics connected with
the administration of public law; the equity system administered in the courts of the United States, in some respects,
necessarily varying from that, constituting a part of the local
law of the states; and, lastly, this local law itself, so far as
in these courts it regulates the rights and remedies of parties,
and is brought into discussion in cases between citizens of
different states. The complicated relations of the states with
each other make the administration of this branch of jurisprudence (which may, not unfitly, be denominated international private law) a task of no inconsiderable delicacy and
difficulty. Above all, it embraces the discussions of those




404             MISCELLANEOUS WRITINGS.
questions of constitutional law, which have, on various occasions, engaged the earnest attention of the different states in
the Union, and which have been so ably argued at the bar of
the Supreme Court of the United States.
In the next place, it devotes a whole chapter to the collection and arrangement of the laws of the several states
respecting titles to real estate, by grant, by devise, and by
descent and distribution. This, of course, must bring together
a very important mass of matters, not easily found in any
single private or public library, and furnish ample means not
only for professional instruction, but for the exercise of legislative discretion. The harmonies and discrepancies of the
different systems are thus presented in a single view; and
the best opportunity afforded of correcting errors, and introducing gradually homogeneous and consistent regulations on
these vital interests of the Union.
Moreover, it embraces a large collection of decisions, many
of which have never before appeared in print, and are valuable, from their general applicability, as well as the fidelity,
with which they are reported.  Before the publication of
regular Reports in our country, many questions of the highest
moment were litigated and decided in our courts, which form
rules of property; and it is no inconsiderable present to the
profession to embody these in an authentic form, as well as
to add to some of the cases now in print, reports more full,
exact, and satisfactory.
Again, large extracts are introduced from the civil, the
French, and other foreign law. The utility of this part of
the work cannot escape the observation of the profession.
The civil law, modified by French and Spanish ordinances
and usages, constitutes the basis of the law of Louisiana and
the territory of the Floridas. These portions of the Union
are daily becoming more and more interesting, in a commercial view, to all the states. The law, which there regulates
civil and commercial rights and remedies, is of great practical
importance to emigrants, to merchants, and to relatives




DIGESTS OF THE COMMON LAW.           405
residing in distant regions. Unlike the other states, in which
a common jurisprudence, that of the common law, prevails,
these territories are perpetually presenting unsuspected differences, not only in rights, but in the administration of remedies, which require to be accurately known, in order to avoid
embarrassing and often fatal mistakes.  Lawyers, therefore,
in every part of the Union, will gladly accept any means
of assisting their inquiries on these subjects, and will find
ready answers to many questions.  Fortunately for Louisiana, no inconsiderable portion of her civil jurisprudence has
been reduced into a systematic code, whose basis is that
admirable performance, the Napoleon Code. Mr. Livingston
is now executing, under her patronage, a Digest of her Criminal Jurisprudence; and from the portions which we have
been permitted to inspect, we have no difficulty in saying
that it is a work of singular acuteness and philosophical precision, and in the highest degree creditable to his genius and
industry. Such works have been occasionally disparaged by
the exclusive admirers of the common law, and still more so
by the overheated zeal and extravagance of some of the
advocates of codes; but we feel a confidence that they are
so useful and convenient, that they will, at no distant period,
attract the attention of the legislatures of other states, and
gradually lead to great improvements in the science of legislation, as well as in the actual administration of the law.
But it is not in this view alone that the civil and foreign
law have claims upon those, whose province it is to cultivate
the study of the common law. The civil law itself is an
inexhaustible treasury of general principles, solid distinctions,
and just doctrines, applicable to the concerns of a busy commercial age, and especially to every species of commercial
contracts. The common law has, indeed, appropriated to
itself, without a fair acknowledgment, many principles of this
admired jurisprudence. Our law of contracts rests on this
basis, and has become equitable only so far as it has ceased
to be feudal, and liberal so far as it has been drawn from




406             MISCELLANEOUS WRITINGS.
Roman fountains. The splendid panegyric of Gibbon, in
the forty-fourth chapter of his Decline and Fall of the Roman
Empire, is not a mere vainglorious boast, but is supported by
facts. " The vain titles of the victories of Justinian," says
the historian, " are crumbled into dust; but the name of the
legislator is inscribed on a fair and everlasting monument.
Under his reign, and by his care, the civil jurisprudence was
digested in the immortal works of the Code, the Pandects,
and the Institutes. The public reason of the Romans has
been silently or studiously transfused into the domestic institutions of Europe; and the laws of Justinian still command
the respect or obedience of independent nations." Dr. Brown,
a very competent judge, in one of the notes to his Brief
Sketch of the Civil Law, says, " I scarcely ever yet have met
with a point, not connected with the feudal law, in which, if
English books did not satisfy the doubt, I have failed to find
its resolution in the civil law." Can it, then, be doubted that
an incorporation of such of the civil law principles, as are
illustrative of the common law, into an abridgment, is of
great value to students, and especially to those who wish
to acquire philosophical views of jurisprudence, and aspire to
something beyond the reach of an ordinary attorney? The
author well remarks that," A complete system of law and equity, best calculated to
preserve the power of the magistrate and the rights of the
people, is the last thing men attain to in society. Peter the
Great soon understood every thing in the civilized parts of
Europe, but the laws; and because he could not understand
them, he never ceased to prefer the despotism of Turkey,,where the judges are not restrained by any methods, forms,
or laws.' Ancient Greece, though eminent in other sciences,
never had such a system. The reason is seen in the almost
infinite variety, extent, and combination of ideas, founded in
nature, experience, and cultivated morality, so essential in
forming and completing such a system. It is very clear that
a great republic, in which there is room for talents; in which




DIGESTS OF THE COMMON LAW.            407
thoughts and actions are not restrained by religious or political despotism; in which education is encouraged, and moral
character is esteemed; in which the law rules, and not the
sword; in which each one asserts his rights by law, and not
by force; and in which there is representation, jury-trial,
and a free press, is the natural field of law and equity; but
to produce these in perfection, there must be a national character. The rules of law and equity, in important matters,
must be uniform, and pervade the whole nation." Introd.
pp. 14, 15.




HISTORY AND INFLUENCE OF THE PURITANS.
A DISCOURSE PRONOUNCED AT THE REQUEST OF THE ESSEX HISTORICAL SOCIETY, SEPTEMBER 18, 182S, IN COMMEMORATION OF THE FIRST
SETTLEMENT OF SALEM, MASS.
THERE are certain epochs in the history of nations, which
always attract to themselves a lasting interest. They constitute steps in the progress or decline of empire, at which we
involuntarily pause to look back upon the past, or to spell
out the fortunes of the future. They become associated with
our inmost feelings and profoundest reflections. Our imaginations embody the time, the place, and the circumstances.
We drop the intermediate distances of space and years
which divide us from them. We breathe the very air and
spirit of the age itself. We gather up the fragments of
broken facts, as history or tradition has scattered them around
us. We arrange them with a fond solicitude; and having
dressed them out in all the pride and pomp of fair array, our
hearts kindle at the contemplation; and we exult or mourn,
glow with confidence or bow with humiliation, as they pass
before us, and we realize their connection with ourselves, the
glory of our country, or the fate of the world.
Of memorable events, few awaken a more lively curiosity
than the origin of nations. Whence we sprung, at what
period, from what race, by what causes, under what circumstances, for what objects, are inquiries so natural, that they
rise almost spontaneously in our minds; and scarcely less so
in the humblest than in the most exalted of society. They
are intimately connected with our pride, our character, our




HISTORY AND INFLUENCE OF THE PURITANS.     409
hopes, and our destiny. He, who may look back upon a long
line of illustrious ancestors, cannot forget that the blood,
stirring in his own veins, is drawn from a common source;
and that the light, reflected by their virtues, casts upon his
own path a cheering, even though it may be, a distant,
radiance. And he, who may not claim kindred with the
mighty dead, feels that they are the common inheritance of
his country, and that he has a right to share in their fame,
and triumph in their achievements.
Nor let it be supposed, that this strong propensity of our
nature is attributable to the indulgence of mere personal or
national vanity. It has a higher and better origin. It is
closely interwoven with that reverence and affection with
which we regard our parents, and the patriarchs of our own
times; with that gratitude, with which we follow the benefactors of our race; with that piety, which reads in every
event the superintendence of a wise and benevolent Providence; with that charity, which binds up our interests in
those of mankind at large; with that sympathy, which links
our fate with that of all past and future generations; and
with that sense of duty, which the consciousness of trusts of
unmeasured extent never fails to elevate and strengthen.
Above all, we are thus enabled to extract from remote events
that instruction, which the vicissitudes of human life should
press home to our own business and bosoms. The toils and
misfortunes incident to infant settlements; the slow progress
even of successful effort; the patience, fortitude, and sagacity,
by which evils are overcome or diminished; the fundamental
causes, which quicken or retard their growth; these all furnish
lessons, which improve the wise, correct the rash, and alarm
the improvident.
Two hundred years have just elapsed, since our forefathers
landed on these shores for the permanent plantation of New
England. I say, emphatically, for the permanent plantation
of New England. There had been, before that period, various




410             MISCELLANEOUS WRITINGS.
adventurers, who, from curiosity, or necessity, or hope of gain,
explored the coast; but their purposes were transient, or their
stay short. There had been here and there little establishments for fishery or trade, successively taken up and abandoned, from the rigors of the climate, the unprofitableness of
the employment, or the disappointments naturally following
upon such novel enterprises. Few persons, comparatively
speaking, had turned their thoughts to this, as a land favorable for the cultivation of the soil, or the arts of social life. It
promised little to the European, who should leave his native
country with a fancy warm with descriptions of the luxuriance of this western world, and hoping to pass the residue of
his life, as " one long summer day of indolence " and ease. It
offered no mines, glittering with gold and silver, to tempt the
avarice of the selfish, or to stimulate the hopes of the arnbitious. It presented an irregular and rocky front, lashed by
the waves of a stormy ocean, and frowning with dark forests
and bleak promontories. Its rough and stubborn soil yielded
with reluctance to the labors of the husbandman; and the
severities of a northern winter, for almost half the year,
stripped the earth of its vegetation by its bitter blasts or
drifting snows. It required stout hands and stouter hearts to
encounter such discouragements; to subdue the ruggedness
of nature, and to wait the slow returns, which perseverance
and industry alone could reasonably hope to obtain. Men
must have strong motives to lead them, under such circumstances, to such a choice. It was not an enterprise, which,
being conceived in a moment of rashness, might by its quick
success plead its own justification. It had none of the allurements of power, or the indulgences of pleasure, or the offerings of fame, to give it attractions. Higher motives and
deeper thoughts, such as engross the passions and the souls
of men, and sink into comparative insignificance the comforts
of social life, are alone adequate to produce such results.
One might well say, as Tacitus did of the Germany of his




HISTORY AND INFLUENCE OF THE PURITANS.        411
own times,1 " Quis porro, praster periculum  horridi et ignoti
maris, Asia aut Africa aut Italia relicta, Germaniam  peteret,
informem terris, asperam coelo, tristem cultu aspectuque, nisi
si patria sit? " Who, independently of the perils of a terrific
and unknown sea, would leave the soft climates of Asia,
Africa, or Europe, and fix his abode in a land rough and
uncultivated, with an inclement sky and a dreary aspect,
unless indeed it were his mother country?
It should excite no surprise, therefore, that a century had
passed away after the Cabots discovered the southern part of
this continent, and yet the Aborigines remained there in
undisturbed security. Even the neighboring colony of Plymouth, where the renowned Pilgrims, under Carver, Bradford, and Winslow, had already raised the standard of liberty
and the cross, was encountering the severest trials, and struggling almost for existence. There were not a few friends,
who began to entertain fears, that unless succors came in
from other quarters, this noble band of worthies, worn down
by hardships and discouragements, might be destined, at no
distant period, to follow the fate of other adventurers, or be
reduced to a narrow factory.2 Their original scheme of colonization involved in it some fatal defects, which were afterwards corrected by their own wisdom and experience. The
notion of a community of property and profits was utterly
incompatible with the growth of a state. It cut off, at a blow,
every excitement to individual enterprise; and, by its unequal
distribution of burthens and benefits, sowed far and wide the
elements of discord.  The followers of the excellent Robinson
might, indeed, comfort themselves with the present possession
of a refuge from religious oppression; but the possibility of
a dissolution of their connection at any period, however remote, must, whenever it was suggested, have filled their
I Hutchinson, in his History, (vol. i. p. 2,) cites this passage. It is from
Tacitus, De Germanid, c. 2.
2 2 Hutch. HIist. 468, 469, 470, 472, 476; Prince's Annals, 268; Robertson's America, book 10; 3 Hist. Collect. 417.




412             MISCELLANEOUS WRITINGS.
hearts with sorrow, and, even when least indulged, sometimes have disturbed their peace. Their own language, in
defence of their settlement at Hartford, affords a striking
picture of their situation. " They lived upon a barren place,
where they were by necessity cast; and neither they, nor
theirs, could long continue upon the same; and why should
they be deprived of that, which they had provided, and intended to remove to, as soon as they were able? "1  At the
distance of ten years from their first landing, the colony could
scarcely number three hundred inhabitants;2 a proof, at once,
of the magnitude of their difficulties, and of the heroic zeal
and perseverance, which met them without shrinking or
dismay.
By the blessing of God, however, our Fathers also came
hither, and, in connection with the good " Old Colony," fixed
henceforth, and as we fondly trust, for ever, the settlement and
destiny of New England. And we are met, on the very spot
first trodden by their footsteps, on the very day first welcoming their arrival, to celebrate this memorable event. It is fit,
that we should so do. What occasion could occur more
worthy of our homage? What recollections could rise up,
better adapted to awaken our gratitude, cheer our hearts, and
elevate our thoughts? Who is he that can survey this goodly
land, and not feel a present sense of its various blessings?
Let him cast his eyes over our mountains, or our valleys, our
deep forests, or our cultivated plains. Let him visit our villages, and hamlets, and towns, thickening on every side, and
listen to the sounds of busy, contented, thrifty industry. Let
him view the green meadows, and the waving fields, and the
rich orchards, rising under his eyes in alternate order, yielding
their products in profusion, and quickened into fertility by the
labors of man.  Let him hold communion with the inhabitants of these peaceful abodes, with the mountaineers, and
1 2 Hutch. Hist. 469, &c.
2 Robertson's America, book x. p. 267; Chalmers's Annals, p. 97. See
also the Commissioners' Report in 1665 (3 Hutch. Collect.) 417.




HISTORY AND INFLUENCE OF THE PURITANS.       413
peasants, and yeomen, the lords of the soil, the reapers of their
harvests, who look proudly down upon their own inheritance.
Let him learn from them the resolute spirit, the manly virtues,
the intelligence and piety, which pervade New England. Let
him glance at the neighboring metropolis; its splendid spires
glittering in the sun; its noble hospitals and public charities;
its crowded and well-built streets; its beautiful harbor, floating
on its bosom the commerce of the world, and reflecting on its
surface islands, and islets, and shores of ever-varying magnificence; its amphitheatre of hills, whose gentle slopes whiten
with neat mansions, or soften into shade, under the joint
ministry of nature and art; its lofty halls, where eloquence
has burst forth in strains of patriotism, which have made
captive the souls of thousands; its visible industry, and enterprise, and public spirit, gathering into the lap of a common
mother the products of all climates, and spreading out a
generous hospitality. Let him catch, in the distant reach,
the walls of our venerable University, cemented by the solid
strength of centuries, where learning and religion obtained
their early glory, and will, we trust, receive their latest praise.
Let him, I say, contemplate these scenes, and survey this
goodly heritage; and who is he, even though a stranger to us
and ours, whose voice shall not eagerly ask our lineage, our
ancestry, our age? Who is he, that here inhales his natal air,
and embraces his mother earth, and does not rejoice, that he
was born for this day, and is privileged to pour out his thanks,
and offer up his prayers at the home of his forefathers?
To us, indeed, who own the local genius, and feel the
inspirations of the place, the day may well be presumed to be
crowded with thick-coming fancies and joyance. We may
not turn our eyes on any side, without meeting objects to
revive the images of the primitive times. We can still realize the fidelity of the description of the voyager of 1629, who
said, " We passed the curious and difficult entrance into the
large, spacious harbor of Naimkeake; and, as we passed
along, it was wonderful to behold so many islands replenished
35 *




414              MISCELLANEOUS WRITINGS.
with thick wood, and high trees, and many fair green pastures."
The woods have disappeared; but the islands and the fair
green pastures remain with more than native beauty;. and
the rivers still meander in their early channels.  This " city of
peace," so called by our fathers, as significant of their enjoyment of civil and religious freedom, still boasts its ancient
name; still justifies the original allusion to the Scriptures,
" In Salem also is God's tabernacle, and his dwelling-place in
Zion."' The thin and scattered settlements can no longer
be traced. But in their stead, are found spacious streets, and
neat dwellings, and lively schools, and numerous churches,
and busy marts, and all the fair accompaniments of opulence
and knowledge, simplicity of life and manners, unobtrusive
refinement, and social kindness. Yet, in the midst of these
blessed changes, we can point out the very spot, where the
first flock was gathered, and the first church consecrated to
the service of the living God; where the meek and learned
Higginson (alas, how soon to perish!) first raised his voice in
prayer, and with trembling lips, and pale cheeks, where sorrow and sickness had worn many an early furrow, discoursed
most eloquently of life, and death, and immortality, the triumphs of faith, and the rewards of obedience. Yes, it is still
devoted to the same holy purpose. There, the voice of praise,
and thanksgiving, and prayer still ascends from pious hearts;
there, the doctrines of salvation are still preached with enlightened zeal and charity; there, the humble, the contrite,
and the pure still assemble in sweet communion, and worship
God in spirit and in truth.2 The sepulchres of our forefathers
are also among us. We can trace them through all their
various labors to their last appointed home; sedes ubifata
quietas ostendunt. Time has not yet levelled the incumbent
sod, nor the moss overgrown the frail memorials erected
to their worth. But their noblest monument is around us,.' Historical Collections, 117; Psalm lxxvi.
2 See the excellent dedication sermon of the Rev. IMr. Upham, one of the
pastors of this church, in November, 1826.




HISTORY AND INFLUENCE OF THE PURITANS.    415
and before us. Their deeds speak their eulogy in a manner,
which it requires no aid of language to heighten. They live
in their works; not, indeed, in the perishable structure of
human skill, in marble domes or triumphal arches, in temples
or in palaces, the wonders of art; but in the enduring institutions which they created, in the principles which they
taught, and by which they sought to live, and for which they
were ready to die. On these they laid the solid foundations
of our strength and glory; and on these, if on any thing human, may be written the words of immortality. Our graveyards offer no better epitaph for them than that, Here lie the
Founders of New England; and brief though it be, and of
simple phrase, it has a pregnant meaning, the extent of which
no human mind has yet grasped. It can be unfolded only
with the destiny of our latest posterity.
May I venture on some allusions not unbecoming this
occasion, and yet of a nature somewhat personal, though not,
I trust, obtrusive? I speak in the presence of the descendants of these men., Their names sound with familiar welcome in our streets, and greet us on every side, as we pass
along. They seem to live again in their offspring.j Their
images grace our processions, and throng our churches, and
enliven our festivals. We feel almost as in their conscious
presence, and listen to the voices of other days. When, in
the enthusiasm of poetry, we are asked, "And the pilgrims,
where are they?" Where are Winthrop, and Endicott, and
Higginson, and Dudley, and Saltonstall, and Bradstreet, and
Pickering, and Sprague, and Pynchon, and Hathorne, and
Conant, and Woodbury, and Palfrey, and Balch, and the
other worthies? we are ready to exclaim, — They are here.
This is their home. These are their children.
There is yet among us one, who brings their revered forms
before us with peculiar dignity, and is at once the representative of their age and our own. Generation after generation
has passed away, and yet he survives, the model, and the
monument of a century. His early youth almost clasped the




416            MISCELLANEOUS WRITINGS.
knees of the pilgrims. He was familiar with their sons, and
listened to their story from the lips of those, who painted
with the vividness of contemporaries and with the feelings of
Puritans. Standing upon the very verge of the first century,
he seems the living herald of the first settlers, breathing into
our souls their very words and sentiments, as one, who speaks
not for the dead, but for those, who yet sojourn on the earth.
Time in his favor has relaxed his wonted course, and touched
even the faded graces of the past with a kind and mellowing
charm. If one were to task his imagination to portray a
patriarch of primitive simplicity, warmed with the refinements
of these latter days, he could scarcely clothe the being of his
own creation with other qualities than we have seen. He
could not fail to point out to us a form, venerable for wisdom,
learning, and modesty, in which the spirit of philosophy and
benevolence was sustained by meekness and piety; in which
blamelessness of life, cheerfulness of heart, and gratitude for
past blessings, imparted solid lustre to a faith and hope, and
joy, resting upon immortality. Well may it be asked of such
a being, in the tender language of Scripture, "And the old
man, of whom ye spake, is he yet alive?"  Your own hearts
have already answered the question. We have seen this
centennial patriarch; and we count it among the triumphs of
this day, that he yet lives, the delight of his friends, the crown
of his profession, and the ornament of human nature.
Such are some of the circumstances and associations belonging to the festival, which has assembled us together. I
am but too sensible how utterly inadequate my own powers
are, to meet the exigencies of such a day. I have not been
unconscious of the difficulties of the task; and I now stand
here with sincere self-distrust, having yielded to a sense of
duty, what I should gladly have declined if left to my own
choice. After all, however, the occasion carries along with it
its own means of gratification, in the thoughts of home, and
kindred, and ancestry, and country, which rise in every heart,
and hang on every tongue. If I falter in the course, I may




HISTORY AND INFLUENCE OF THE PURITANS.    417
well share this consolation, since a common sympathy must
disarm the severity of criticism.
Many topics, appropriate to this celebration, have already
been discussed by others, in a manner which does not require,
even if it should admit of, farther illustration. The genius
of New England has employed some of its best efforts to
add dignity to the scene.  History and tradition have been
laid under contribution to adorn the narrative; and philosophy itself, while studying the events, has unfolded speculations, as profound and engrossing as any which can engage
the human mind. I profess not the rashness to follow in the
high course thus marked out; content to walk in the ancient
paths, and to gather, as I may, the gleanings of a harvest,
which has so amply rewarded the labors of my predecessors.
My object is to furnish you with a brief sketch of the
origin of the colony; of the motives which led to the enterprise; of the characters of the men who conducted it; of the
principles upon which it was established; and of the grand
results which it has hitherto developed. I shall also adventure upon some topics where the conduct of our ancestors
has been severely put to question; and, without attempting
to disguise their mistakes, I trust that something may be
said to rescue their memory from unmerited reproach.
If the origin of nations be, as it confessedly is, a source of
deep interest, there are circumstances connected with the
first settlement of New England peculiarly to gratify a national pride. We do not trace ourselves back to times of
traditionary darkness, where truth and fiction are blended at
every step, and what remains, after the closest investigation,
is but conjecture, or shadowy fact. We do not rely upon
the arts of the poet to give dignity to the narrative, and
invest it with the colorings of his imagination.  Greece
might delight to trace her origin up to the high renown and
antiquity of Egypt; and Rome soothe herself with her rise
from the smouldering ruins of Troy. We have no legends
which genius may fashion into its own forms, and crowd




418            MISCELLANEOUS WRITINGS.
with imaginary personages. Such as it is, our history lies
far within the reach of the authentic annals of mankind. It
has been written by contemporaries with a simplicity which
admits of no embellishment, and a fidelity which invites
scrutiny. The records are before us, sketched by the first
adventurers; and there we may learn all their wanderings,
and cares, and sufferings, and hopes, their secret thoughts,
and their absorbing motives. We can ask of the world no
credit for modern statements of old events. We can conceal
nothing; and our true glory is, that there is nothing which
we wish to conceal. And yet, I think, whoever shall read
these annals in their minute details; whoever shall bring
home to his thoughts the causes and consequences of these
events; whoever shall watch the struggles of conscience
against the seductions of affection, and the pressure of dangers; will feel his soul touched with a moral sublimity, which
poetry itself could not surpass. So mighty is truth; so irresistible is the voice of nature.
Take but a single passage in their lives, the opening scene
of that drama, on which we seem but just to have entered.
Go back and meet the first detachment, the little band,
which, under the guidance of the worthy, intelligent, and
intrepid Endicott, landed on the neighboring shore. It was
then, as it is now, the early advance of autumn. What can
be more beautiful or more attractive than this season in New
England? The sultry heat of summer has passed away;
and a delicious coolness at evening succeeds the genial
warmth of the day.  The labors of the husbandman approach their natural termination; and he gladdens with the
near prospect of his promised reward. The earth swells with
the increase of vegetation. The fields wave with their yellow
and luxuriant harvests. The trees put forth their darkest foliage, half shading and half revealing their ripened fruits, to
tempt the appetite of man, and proclaim the goodness of his
Creator. Even in scenes of another sort, where nature reigns
alone in her own majesty, there is much to awaken religious




HISTORY AND INFLUENCE OF THE PURITANS.    419
enthusiasm. As yet, the forests stand clothed in their dress
of undecayed magnificence. The winds that rustle through
their tops scarcely disturb the silence of the shades below1.
The mountains and the valleys glow in warm green, or lively
russet. The rivulets flow on with a noiseless current, reflecting back the images of many a glossy insect, that dips his
wings in their cooling waters. The mornings and evenings
are still vocal with the notes of a thousand warblers, which
plume their wings for a later flight, Above all, the clear blue
sky, the long and sunny calms, the scarcely whispering
breezes, the brilliant sunsets, lit up with all the wondrous
magnificence of light, and shade, and color, and slowly settling down into a pure and transparent twilight. These,
these are days and scenes which even the cold cannot behold
without emotion; but on which the meditative and pious
gaze with profound admiration; for they breathe of holier
and happier regions beyond the grave.,
But lovely as is this autumn, so finely characterized as the
Indian Summer of New England, and so favorably contrasting itself with the chills and moisture of the British Isles,
let us not imagine that it appeared to these Pilgrims, as it
does to us, clothed in smiles. Their first steps on this continent were doubtless with that buoyancy of spirit, which
relief from the tediousness and dangers of a sea voyage
naturally excites.  But, think you, that their first hasty
glances around them did not bring some anxieties for the
future, and some regrets for the past?  They were in the
midst of a wilderness untrodden by civilized man.  The
native forests spread around them, with only here and there
a detached glade, which the Indian tomahawk had levelled
or the fisherman cleared for his temporary hut. There were
no houses inviting to repose; no fields ripening with corn;
no cheerful hearths; no welcoming friends; no common
altars/ The heavens, indeed, shone fair over their heads;
and the earth beneath was rich in its beauties. But where
was their home? Where were those comforts and endear



420            MISCELLANEOUS WRITINGS.
ments, which that little word crowds into our hearts in the
midst of the keenest sufferings? Where were the objects to
which they might cling to relieve their thoughts from the
sense of present desolation? If there were some who could
say, with an exile of the succeeding year, " We rested that
night with glad and thankful hearts, that God had put an
end to our long and tedious journey through the greatest sea
in the world;" l there were many whose pillows were wet
with bitter though not repentant tears. Many a father offered
his evening prayer with trembling accents; many a mother
clasped her children to her bosom in speechless agony. The
morrow came; but it brought no abatement of anxiety. It
was rather a renewal of cares, of sad reminiscences, of fearful forebodings.
This is no idle picture of the fancy, tricked out for effect,
to move our sympathies, or blind us to the real facts. How
could their situation be otherwise? They were not fugitives
from justice, seeking to bury themselves and their crimes in
some remote corner of the earth. They were not prodigals,
endeavoring to retrieve their wrecked fortunes in distant adventures.  They were not idle and luxurious wanderers,
weary of society, and panting for unexplored novelties. They
had left a country full of the refinements of social life, and
dear to them by every human tie. There were the tombs of
their ancestors; there the abodes of their friends; of mothers,
who kissed their pale cheeks on the seashore; of sisters, who
wrung their hands in sharp distress; of children, who dropped
upon their knees and asked a blessing at parting, ay, at
parting for ever.  There was the last, lingering embrace;
there the last sight of the white cliffs of England, which had
faded from their straining gaze, for time, and for eternity.
There, for the last time, were uttered from their broken voices,
"Farewell, dear England; farewell, the church of God in
England; farewell, all Christian friends there." 2
1 3 Hutch. Collect. 44.    2 Eliot's Dictionary, Art. Iligginson, 252.




HISTORY AND INFLUENCE OF THE PURITANS.        421
They were now landed on other shores.  The excitements
of the voyage were gone. Three thousand miles of ocean
rolled between them and the country they had left; and
every illusion of hope had vanished before the sober realities
of a wilderness. They had now full leisure for reflection,
" While busy, meddling memory,
In barbarous succession mustered up
The past endearments of their softer hours,
Tenacious of its theme."
There is nothing so depressing in exile as that sickness of
the heart, which comes over us with the thoughts of a lost,
distant home. There is nothing which softens the harsh features of nature like the feeling that this is our country. The
exiles of New England saw not before them either a home,
or a country. Both were to be created.
If the past could bring few consolations, the future was
not without its embarrassments. The season was passed,
in which any addition could be made to their scanty stock
of provisions from  the produce of the soil.  No succors
could reach them until the ensuing spring; and even then,
they were subject to many contingencies.  The winter must
soon approach, with its bleak winds and desolating storms.
The wild beasts were in the woods; and the scarcely less
savage Indians lurked in the ravines, or accosted them with
questionable friendship. Trees were to be felled, and houses
built, and fortifications arranged, as well for shelter as for
safety; and brief was the space, and feeble the means, to
accomplish these necessary defences. Beyond these, were
the unknown dangers of change of climate, and new habits
of life, and scanty food; of the pestilence, that walketh in
darkness, and the famine, that wasteth at noonday. These
were discouragements, which might well appall the timid,
and subdue the rash. It is not, then, too much to affirm,
again, that it required stout hands, and stouter hearts, to
overcome such difficulties. But
"If misfortune comes, she brings along
The bravest virtues."
36




422             MISCELLANEOUS WRITINGS.
The men, who landed here, were no ordinary men; the
motive for their emigration was no ordinary motive; and
the glory of their achievement has few parallels in the history
of the world. Their perseverance in the midst of hardships,
their firmness in the midst of dangers, their patience in the
midst of sufferings, their courage in the midst of disasters,
their unconquerable spirit, their unbending adherence to their
principles, their steady resistance of all encroachments, surprise us even more than the wisdom of their plans, and the
success of their operations.
If we trace on the colony during the two or three next
succeeding years, in which it received an accession of almost
two thousand persons, we shall find abundant reason to distrust those early descriptions, of which the just complaint
was, that " honest men, out of a desire to draw over others
to them, wrote somewhat hyperbolically of many things here,"
and " by their too large commendations of the country, and
the commodities thereof, so strongly invited others to go
on;"1 and to express our astonishment, that the enterprise
was not instantly abandonecd, Many of those, who accompanied Endicott, died, in the ensuing winter, by disease from
exposure, and want of food and suitable medical assistance.
They were reinforced, the next summer, by new colonists
with fresh supplies; and again in the succeeding year, when
the Corporation itself was also removed, under the auspices
of Winthrop, Dudley, Johnson, Saltonstall, and others. What
was then the state of the Colony? We are told by a friend
and eye-witness2 - _. We found the Colony," says he, " in a
sad and unexpected condition; above eighty of them" (that
is, more than one quarter of the whole number) " being dead
the winter before; and many of those alive, weak and sick;
all the corn and bread amongst them all, hardly sufficient to
feed them a fortnight."  He adds, "If any come hither to
1 Governor Dudley's Letter, 3 Hist. Coll. 36, 38, 43.
2 Governor Dudley's Letter, 3 Hist. Coll. 38.




HISTORY AND INFLUENCE OF THE PURITANS.    423
plant for worldly ends, that can live well at home, he commits an error, of which he will soon repent him." -" In a
word, we have little to be envied; but endure much to be
pitied, in the sickness and mortality of our people." And
then, in the conclusion of this mem9rable letter, he breaks
out with the unconquerable spirit of Puritanism -" We are
left, a people poor and contemptible, yet such as trust in
God; and are contented with our own condition, being well
assured, that he will not fail us, nor forsake us." Men, who
were thus prepared to encounter such distresses, were prepared for every thing. The stake had no terrors for them;
and earth had no rewards, which could, for a moment,. withdraw them from the dictates of conscience and duty.
This year was, indeed, still more disastrous than the preceding, and robbed them of some of their brightest ornaments. Before December, the grave had closed upon two
hundred of their number; and among these were some of
the most accomplished of both sexes. It is impossible, even
at this distance of time, to contemplate their character and
fate, without the deepest sympathy. Higginson, the reverend and beloved teacher of the first flock, fell, an early victim,
in the forty-third year of his age, and the first of his ministry.
Let me pause, for a moment, to pay a passing tribute to his
worth. He received his education at Emanuel College in
Cambridge, where he was so much distinguished by his talents, acquirements, and scholarship, that he gained an early
introduction into a benefice of the church. The arguments
of Hildersham and Hooker, however, soon infused scruples
into his mind respecting the doctrines and discipline of the
establishment, and he was ejected for nonconformity. He
then taught a few pupils, for the maintenance of his family;
and having received an invitation to remove to New England,
in the hope of restoring his health, and animated by the glorious prospect of a free enjoyment as he expresses it, " of the
true religion and holy ordinances of Almighty God," he
embarked, with his family, in the Talbot, in 1629. In the




424             MISCELLANEOUS WRITINGS.
course of the voyage he had the misfortune to lose one of his
daughters, of whose death he gives us an account in his
journal, drawn up with a simplicity beautifully illustrative of
his own character. " And so," says he, " it was God's will
the child died about fiye o'clock at night, being the first in
our ship that was buried in the bowels of the great Atlantic
sea; which, as it was a great grief to us, her parents, and a
terror to all the rest, as being the beginning of a contagious
disease and mortality, so in the same judgment it pleased
God to remember mercy in the child, in forcing it from a
world of misery, wherein she had lived all her days." And,
after an allusion to her personal infirmities, he concludes,
" So that in respect of her, we had cause to take her death
as a blessing from the Lord to shorten her misery." 1 Alas!
he was destined too soon to follow her. Not many months
elapsed before a consumption settled on his cheeks, and by
its hectic flushes betrayed an irretrievable decline. He died
with the composure, resignation, and Christian confidence of
a saint; leaving behind him a character, in which learning,
benignity of manners, purity of life, fervent piety, and unaffected charity, were blended with most attractive grace; and
his name is enrolled among the earliest and truest benefactors
of New England.
A death scarcely less regretted, and which followed with a
fearful rapidity, was that of a lady of noble birth, elegant
accomplishments, and exemplary virtues. I speak of the
Lady Arabella Johnson,2 a daughter of the Earl of Lincoln
who accompanied her husband in the embarkation under
Winthrop, and in honor of whom, the admiral ship on that
occasion was called by her name. She died in a very short
time after her arrival; and lies buried near the neighboring
shore. No stone or other memorial indicates the exact place;
but tradition has preserved it with a holy reverence. The
1 3 Hutch. Collect. 32, 36.
2 Her name is commonly spelt in the records of that day, possibly as an
abbreviation, "Arbella."




HISTORY AND INFLUENCE OF THE PURITANS.    425
remembrance of her excellence is yet fresh in all our thoughts;
and many a heart still kindles with admiration of her virtues;
and many a bosom heaves with sighs at her untimely end.
What, indeed, could be more touching than the fate of such
a woman? What example more striking than hers, of uncompromising affection and piety? Born in the lap of ease,
and surrounded by affluence; with every prospect which
could make hope gay, and fortune desirable; accustomed to
the splendors of a court, and the scarcely less splendid hospitalities of her ancestral home; she was yet content to quit,
what has not inaptly been termed " this paradise of plenty
and pleasure," for "a wilderness of wants," and, with a fortitude superior to the delicacies of her rank and sex, to trust
herself to an unknown ocean and a distant climate, that she
might partake, with her husband, the pure and spiritual worship of God. To the honor, to the eternal honor of her sex,
be it said, that in the path of duty no sacrifice is with them
too high, or too dear. Nothing is with them impossible, but
to shrink from what love, honor, innocence, religion, requires.
The voice of pleasure or of power may pass by unheeded;
but the voice of affliction never. The chamber of the sick,
the pillow of the dying, the vigils of the dead, the altars of
religion, never missed the presence or the sympathies of woman. Timid though she be, and so delicate, that the winds
of heaven may not too roughly visit her; on such occasions
she loses all sense of danger, and assumes a preternatural
courage, which knows not, and fears not consequences. Then
she displays that undaunted spirit, which neither courts difficulties, nor evades them; that resignation, which utters neither
murmur nor regret; and that patience in suffering, which
seems victorious even over death itself.
The Lady Arabella perished in this noble undertaking, of
which she seemed the ministering angel; and her death
spread universal gloom throughout the colony. Her husband
was overwhelmed with grief at the unexpected event, and
survived her but a single month. Governor Winthrop has
36*




426             MISCELLANEOUS WRITINGS.
pronounced his eulogy in one short sentence. "He was a
holy man, and wise, and died in sweet peace." He was truly
the idol of the people; and the spot selected by himself for
his own sepulture became consecrated in their eyes; so that
many left it as a dying request, that they might be buried by
his side. Their request prevailed; and the Chapel Buryingground in Boston, which contains his remains, became, from
that time, appropriated to the repose of the dead.' Perhaps
the best tribute to this excellent pair is, that time, which,
with so unsparing a hand, consigns statesmen and heroes,
and even sages to oblivion, has embalmed the memory of
their worth, and preserved it among the choicest of New
England relics. It can scarcely be forgotten, but with the
annals of our country.
I have dwelt with some particularity, perhaps with undue
solicitude, upon some of the circumstances attending the
emigration of bur forefathers. They are necessary to a full
comprehension of the difficulties of the enterprise, and of the
sufferings, which they bore, I will not say with fortitude
merely, but with cheerful, unrepining resolution. It is not
by a few set phrases, or a few strong touches, that we can
paint their sorrows, or their struggles; their calmness, when
their friends were falling around them, and themselves were
placed at the
"dreadful post
Of observation, darker every hour;"
or their courage, at the approach of dangers of another sort.
Many of them went down to an early grave, without the
consolation, even in vision, of an ultimate triumph; and
many, who lived to partake it, grappled with hardships, the
plain recital of which would appall more than the most
studied exaggerations of rhetoric. But, let me repeat it,
thanks be to God, their efforts were successful. They laid
I 1 Hutch. Hist. 16; 1 Winthrop's Journal, 34; Eliot's Dictionary, Art.
Johnson.




HISTORY AND INFLUENCE OF THE PURITANS.    427
the foundations of empire in these northern regions with
slow and thoughtful labor. Our reverence for their services
should rest, not upon the fictions of fancy, but upon a close
survey of their means and their ends, their motives and their
lives, their characters and their actions. And I am much
mistaken, if that close survey does not invigorate our patriotism, confirm our principles, and deepen and widen the channels of our gratitude.
The history of colonies, both in ancient and modern times,
may be generally traced back to the ambition of princes, the
love of adventure or gain, the pressure of poverty, or the
necessity of a refuge from political oppressions. The ancient
nations, for the most part, transplanted colonies to distant regions, to extend the boundaries of their power, and consolidate
their strength. They were sometimes outposts of the empire, to
hold in check a conquered province; and sometimes military
stations, to overawe and watch a formidable rival. The beautiful regions of Asia Minor were peopled with Grecian tribes,
by the attractions of a fertile soil and delicious climate, by the
passion for conquest, by the temptations of eastern luxury,
and by the ostracisms of successive factions. Rome gathered
them within the folds of her ample domain, as the booty of
her arms; and pushed her own colonies only where tribute
was to be exacted, or distant conquests secured. The whole
line of her colonies in Gaul, Germany, and the North, was
but a chain of military communications, to intercept the
inroads of the barbarians, and furnish employment for leaders
and legions, too restless and too ambitious for civil life.
They were at once the sources of her power, and her weakness. To them Rome was every thing; and the colonies
they occupied, nothing, except as resources and depots to
command the republic, or dictate the succession to the imperial purple. The Capitol was but too often obedient to the
will of a provincial commander, and a licentious soldiery.
The colonies of modern nations owe their origin almost
exclusively to the spirit of commerce. If power has mixed




428             MISCELLANEOUS WRITINGS.
itself among the objects of their governments, it has rather
been, as a consequence of commerce, than an independent
motive. Ships, commerce, and colonies were so long associated in the minds of European statesmen, that they seemed
inseparable accompaniments. Hence arose that system of
monopoly, which narrowed down all trade to the mother
country; and stinted the growth and crippled the resources of
the colonies to the measure of the wants of the former. All
Europe, as if by a general conspiracy, acted up to the very
letter of this system for centuries. The general practice was,
like that attributed to the Dutch in respect to the Spice
Islands, to destroy all the surplus, beyond that which would
yield the established rate of profits. The South American
colonies of France, Spain, and Portugal were hermetically
sealed against the approach of foreign ships, until the mighty
revolutions of our day crumbled the whole system into dust,
and opened, almost like an earthquake, a pathway through
their interior.- Even England relaxed her grasp with a slow
and reluctant caution, yielding little, except to necessity,
indifferent to the colonial interests, and solicitous only that
the home market should gather up and distribute all the
profits and products of the Indies. Her famous navigation
acts, the boast of her statesmen from the times of Cromwell
down to ours, are an undisguised appropriation of the means
of the colonies to the policy of the mother country. She
generally left the plantations to the private enterprise of her
subjects, until their trade was worthy of her interference;
and she then assumed the government and regulation of
them  for her own, and not for their benefit.  Protection
became a duty only at the time when it seemed no longer a
burden. Her vast empire in the East, the wonder of our
day, whose fate furnishes a problem, not to be solved by any
former experience, is but the ill-managed contrivance of a
private corporation for trade. It affords a curious example of
the spirit of conquest ingrafted on the spirit of commerce;
of a government founded on calculations of profit; of a legis



HISTORY AND INFLUENCE OF THE PURITANS.      429
lation acting on the industry of sixty millions of subjects,
wholly without representation; of a judicial establishment
seeking to administer justice by appeals to an unknown code,
with entire good faith, but wholly inadequate means; of a
political superintendence, which guards against external violence, but which sits down contented, while provinces are
plundered, and thrones are overturned, in wars brought on by
the encroachments of commerce.
The colonies, planted on the continent of North America,
were in a great measure the offspring of private adventure and
enterprise, and, with a single exception, of the spirit of commerce. That exception is New England; and it is an exception as extraordinary as it is honorable. We owe our existence to the love of religion; and, I may say, exclusively to
the love of religion. I am aware, that the council of Plymouth had profitable objects in view, and that capital was
first embarked, and a charter obtained, to accomplish these
ends. But the scheme had little chance of success, and was
in fact suspended, if not entirely abandoned. The first settlement at Plymouth was made solely from motives of religion,
without any charter, and even without any title to the land.
And it was not until the charter of 1628 was obtained, by
men whose whole hearts were devoted to religion, that the
same impulse effected the colonization of Massachusetts.
This is not left to tradition; but it is the sober truth of history, unquestioned, because unquestionable. It has the highest record evidence in its support. It has, if possible, even
weightier proofs, in the public acts of the colony; in our past
and existing institutions; in the very errors, as well as the
virtues, of our forefathers. They were Christians; they were
Puritans; they were Christians persecuted by Christians; they
were Puritans driven into exile by the priesthood.
The influence of religion upon the human character is one
of the most interesting studies in the history of our race.
But the influence of Christianity, whether viewed in respect
to the extent of its reach, or the nature of its operations, is




430              MISCELLANEOUS WRITINGS.
the most instructive of all speculations, which can employ
the intellect of man. Paganism was indulgent in its general
policy; for it taught little of duty, and claimed no exclusive
possession of the oracles, or even of the favor of its divinities.
In truth, it floated round the mind with a loose and indeterminate credit, and easily admitted into its temples the worship of strange gods; sometimes because their favor might
be propitiated, or their vengeance averted; sometimes, perhaps, because the relative power, superiority, and office of
each might not be well adjusted in their mythology. Quarrels and divisions about faith and doctrines were of very rare
occurrence, in the heathen world; for their religion dealt more
in rites and ceremonies than in fixed belief.l There would be
little inclination for public struggles, where rewards and punishments were supposed to be administered, not according to
desert, but according to the favor, to the passions, and even
to the animosities of their divinities. There could be little
responsibility cherished, where acts, offensive to some, might
on that very account be grateful to others of their gods. Gibbon's splendid description of the Roman religion is true of
nearly the whole ancient world. " The various modes of
worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as
equally false; and by the magistrate, as equally useful. And
thus toleration produced, not only mutual indulgence, but
even religious concord." 2
Far different is the case with Christianity. It propounds
no equivocal doctrines. It recognizes no false or foreign gods.
It allows no idolatrous worship. It presents to all men one
Supreme Being the only proper object of worship, unchangeable, infinite, omniscient, all-wise, all-good, all-powerful, allmerciful, the God of all, and the Father of all. It develops
one complete system of duties, fit for all times, and all staI Bacon's Essays; 2 Bacon's Works, 257.
21 Gibbon's Hist. ch. 2, p. 46; Montesquieu's Spirit of Laws, b. 25,
ch. 15.




HISTORY AND INFLUENCE OF THE PURITANS.    431
tions; for the monarch on his throne, and the peasant in his
cottage. It brings all men to the same level, and measures
all by the same standard. It humbles in the dust the proud
and the arrogant; it gives no heed to the glory of princes, or
conquerors, or nobles. It exalts the lowly virtues, the love of
peace, charity, humility, forgiveness, resignation, patience,
purity, holiness. It teaches a moral and final accountability
for every action. It proposes sanctions for its precepts of no
earthly reach; but such as are infinite, unchangeable, and
eternal. Its rewards are the promises of immortal bliss; its
punishments a fearful and overwhelming retribution. It excuses no compromises of principle, and no paltering with sin.
It acknowledges no sacrifices, but of a broken and contrite
spirit; no pardon, but by repentance of heart and reformation
of life. In its view, this life is but the entrance upon existence; a transitory state of probation and trial; and the grave is
the portal to that better world, where " God shall wipe away
all tears from our eyes; and there shall be no more death, neither sorrow, nor crying, neither shall there be any more pain."
To minds engrdssed by such thoughts, and fixed in such
belief, what could there be seducing, or satisfying, in the
things of this world? It would be impossible for them, for
a moment, to put in competition the affairs of time with the
dazzling splendors and awful judgments of eternity. We
need not wonder, therefore, that Christianity has had, in all
ages, and in all sects, its devotees and martyrs, men who
would endure every evil, rather than renounce it, whether it
were exile, or forfeiture, or torture, or death; that persecution
should have been at no loss for victims, whenever she had
lighted her fires; and that in the very moment of her imagined
triumph, while her hands were yet reeking with blood, she
should have felt her own doom sealed, and her own power
withered.
The Reformation was the natural result of causes, which
had been silently working their way from the first dawn of
the revival of letters. Learning stimulated inquiry; inquiry




432             MISCELLANEOUS WRITINGS.
created doubt; and doubt brought on a feverish restlessness
for knowledge, which must sooner or later have corrected
abuses and errors, even if political causes had not hastened
the event. Fortunately for England, fortunately for the cause
of religion, in its most catholic sense, the passions of a sanguinary and sensual monarch effected, at a single blow, what
perhaps it would otherwise have required ages to accomplish.
The controversy of Henry the Eighth with the Papal See
arrested the attention of all Europe, and produced in England
a deep conviction of the necessity of some reformation in the
Church. It was of course, that parties should, upon such an
occasion, rally under different banners. Many of the dignitaries, both of the Church and state, resisted every innovation,
as fraught with evil; not merely from a blind reverence for
antiquity, but also from that sympathetic dread of change,
which belongs to the habits of mankind in all ages. Many
were ardently devoted to the cause of reform; but wished to
touch gross abuses only, and thus to pave the way for gradual, but solid improvements. Many, of deeper thought, and
warmer zeal, and bolder purposes, deemed it matter of conscience to root out every error, and to bring back Christianity
at once to what they esteemed the simplicity of the Gospel.
To this last class belonged the body of the Puritans, a class
as distinguished for learning, talents, probity, and disinterestedness, as any which adorned their own times. It is a mistake, commonly enough entertained, that they were, in the
modern sense, Dissenters; that they were hostile to episcopacy in every shape; and that they pushed their aims to the
overthrow of all church government.  The truth was far
otherwise. Many of the most distinguished among them
were reared in the bosom of the Church, and sincerely loved
its venerable forms. Their object was to reform such of its
rites and ceremonies only, as they deemed inconsistent with
the Scriptures. If, in the course of events, they arrived at
different conclusions, it was because prerogative pressed on
them with a heavy hand; because prelacy became the instru



HISTORY AND INFLUENCE OF THE PURITANS.    433
ment of persecution; because the laws respecting uniformity,
under the famous High Commission Court, trampled upon
their rights and consciences, and drove them to examine
into the scriptural foundations of the hierarchy. In all their
struggles, from the reign of Henry the Eighth, to that of
James the First, the Puritans clung to the Establishment
with a sincerity of affection, which, considering their sufferings from papacy and prelacy, is marvellous. In the farewell
address of our forefathers, at the very moment of their departure for America, it breaks out into expressions of warm and
filial attachment. We " esteem it our honor," say they, "to
call the Church of England, from whence we rise, our dear
mother; and cannot part from our native country, where she
specially resideth, without much sadness of heart, and many
tears in our eyes, ever acknowledging, that such hope and
part, as we have obtained in the common salvation, we have
received in her bosom, and sucked it from her breasts. We
leave it not, therefore, as loathing that milk, wherewith we
were nourished there; but, blessing God for the parentage
and education, as members of the same body, shall always
rejoice in her good, and unfeignedly grieve for any sorrow,
that shall ever betide her; and, while we have breath, sincerely desire and endeavor the continuance and abundance
of her welfare, with the enlargement of her bounds in the
kingdom of Christ Jesus." 1
The Puritans have been divided by an accomplished his.
torian into three parties; the political Puritans, who maintained the highest principles of civil liberty; the Puritans in
discipline, who were averse to the ceremonies and episcopal
government of the church; and the doctrinal Puritans, who
rigidly defended the speculative opinions of the first reformers.2 The remark, such as it is, is applicable to a later period;
for at the emigration of our ancestors, scarcely any divisions
in doctrine existed among the Protestants of England. The
I Hutch. Hist. Appendix, 487, 488,
2 6 Hume's Hist. ch. li. p. 272.
37




434             MISCELLANEOUS WRITINGS.
great controversies touched the rites and ceremonies, and the
fasts and feasts of the church, the vestments of the priesthood, kneeling at the altar, the sign of the cross, and the
manner of celebrating the ordinances. The usages of the
church, in some of these respects, were deemed by the Puritans unscriptural, the remnants of popery, and gross corruptions of religion. In the sincerity of their hearts they could
not practise them; in the scruples of their conscience they
felt bound to reject them. For this sincerity, for these scruples, they were expelled from their benefices; they were subjected to spiritual censures; they were loaded with temporal
punishments. They were even compelled, by penalties, to
attend upon a public worship which they abhorred, from the
time of Elizabeth down to the Revolution of 1688.1 The
language of the haughty James to them was, "I will have but
one doctrine and one discipline, one religion in substance and
in ceremony." 2 And he denounced them as "a sect unable
to be suffered in any well governed commonwealth." 3 As if
to ensnare their consciences, or to deride their scruples, Archbishop Laud enjoined the introduction of sports on Sunday,
a day which he knew they held consecrated solely to the
solemn services of religion. For nonconformity to these, and
other canonical injunctions of a like nature, four hundred
clergymen were ejected, suspended, or silenced, in one single
year of this reign.4 With an ill-omened perseverance in the
same bigoted system, Charles the Second, soon after his restoration, compelled two thousand clergymen, in a single day,
to relinquish their cures, presenting to a licentious court the
noble spectacle of men who resigned all earthly preferments
to their religious tenets.5 Yet Mr. Hume, in his eager apologies for royalty, could survey such scenes with philosophical
indifference, and intimate a doubt whether they deserved the
appellation of persecution, because the victims were Puritans 6
1 6 Hume's Hist. 163; 7 Hume's Hist. 41, 516.
2 Prince's Annals, 105.   3 Ibid. 107.      4 Ibid. 111.
5 6 Hume's Hist. 164.     6 Hume's Hist. 384.




HISTORY AND INFLUENCE OF THE PURITANS.    430
After all, it is not in the power of the scoffer, or the skeptic; of the parasite, who fawns on courts, or the proselyte,
who doats on the infallibility of his own sect, to obscure the
real dignity of the character of the Puritans.  We may
lament their errors; we may regret their prejudices; we may
pity their infirmities; we may smile at the stress laid by them
on petty observances and trifling forms. We may believe
that their piety was mixed up with too much gloom and
severity; that it was sometimes darkened by superstition,
and sometimes degraded by fanaticism; that it shut out too
much the innocent pleasures of life, and enforced too strictly
a discipline, irksome, cheerless, and oppressive; that it was
sometimes over rigid, when it might have been indulgent;
stern, when it might have been affectionate; pertinacious,
when concession would have been just as well as graceful;
and flashing with fiery zeal, when charity demanded moderation and ensured peace. All this, and much more, may be
admitted, for they were but men; frail, fallible men; and yet
leave behind solid claims upon the reverence and admiration
of mankind. Of them it may be said, with as much truth
as of any men that have ever lived, that they acted up to
their principles, and followed them out with an unfaltering
firmness. They displayed, at all times, a downright honesty
of heart and purpose. In simplicity of life, in godly sincerity,
in temperance, in humility, and in patience, as well as in
zeal, they seemed to belong to the apostolical age. Their
wisdom, while it looked on this world, reached far beyond it
in its aim and objects. They valued earthly pursuits no
farther than they were consistent with religion. Amidst the
temptations of human grandeur they stood unmoved, unshaken, unseduced.  Their scruples of conscience, if they
sometimes betrayed them into difficulty, never betrayed them
into voluntary sin. They possessed a moral courage which
looked present dangers in the face, as though they were distant or doubtful, seeking no escape, and indulging no terror.
When, in defence of their faith, of what they deemed pure




436            MISCELLANEOUS WRITINGS.
and undefiled religion, we see them resign their property,
their preferments, their friends, and their homes; when we;see them submitting to banishment, and ignominy, and even
-to death; when we see them in foreign lands, on inhospitable shores, in the midst of sickness and famine, in desolation
and disaster, still true to themselves, still confident in God's
providence, still submissive to his chastisements, still thankful for his blessings, still ready to exclaim, in the language of
Scripture -" We are troubled on every side, yet not distressed; we are perplexed, but not in despair; persecuted,
but not forsaken; cast down, but not destroyed;;" when we
see such things, where is the man whose soul does not melt
within him at the sight? Where shall examples be sought
or found, more full, to point out what Christianity is, and
what it ought to accomplish?
What better origin could we desire than from men of characters like these? Men, to whom conscience was every
thing, and worldly prosperity nothing. Men, whose thoughts
belonged to eternity rather than to time. Men who, in the
near prospect of their sacrifices, could say, as our forefathers
did say," When we are in our graves it will be all one
whether we have lived in plenty or in penury; whether we have
died in a bed of down, or locks of straw. Only this is the
advantage of the mean condition, THAT IT IS A MORE FREEDOM TO DIE. And the less comfort any have in the things of
this world, the more liberty they have to lay up treasure in
heaven." 1 Men who, in answer to the objection, urged by
the anxiety of friendship, that they might perish by the way,
or by hunger, or the sword, could answer, as our forefathers
did, "We may trust God's providence for these things.
Either he will keep these evils from us; or will dispose them
for our good, and enable us to bear them." 2 Men who, in
still later days, in their appeal for protection to the throne,
could say with pathetic truth and simplicity, as our fore1 3 Hutch. Collect. p. 29.     2 Ibid. 29, 30.




HISTORY AND INFLUENCE OF THE PURITANS.    437
fathers did, " That we might enjoy divine worship without
human mixtures, without offence to God, man, our own consciences, with leave, but not without tears, we departed from
our country, kindred, and fathers' houses into this Patmos; in
relation whereunto we do not say,' Our garments are become
old by reason of the very long journey,' but that ourselves,
who came away in our strength, are, by reason of long absence, many of us become grey-headed, and some of us
stooping for age." 1
If these be not the sentiments of lofty virtue; if they
breathe not the genuine spirit of Christianity; if they speak
not high approaches towards moral perfection; if they possess not an enduring sublimity; then, indeed, have I ill read
the human heart; then, indeed, have I strangely mistaken
the inspirations of religion.  If men, like these, can be
passed by with indifference, because they wore not the
princely robes, or the sacred lawn, because they shone not in
courts, or feasted in fashionable circles, then, indeed, is Christian glory a vain shadow, and human virtue a dream, about,
which we disquiet ourselves in vain.
But it is not so- it is not so. There are those around
me whose hearts beat high, and whose lips grow eloquent,
when the remembrance of such ancestors comes over their
thoughts; when they read in their deeds, not the empty
forms, but the essence of holy living and holy dying. Time
was when the exploits of war, the heroes of many battles,
the conquerors of millions, the men who waded through
slaughter to thrones, the kings whose footsteps were darkened
with blood, and the sceptred oppressors of the earth were
alone deemed worthy themes for the poet, and the orator, for
the song of the minstrel and the hosannas of the multitude.
Time was when feats of arms, and tournaments, and crusades, and the high array of chivalry, and the pride of royal
banners waving for victory, engrossed all minds. Time was
Hutch. Collect. p. 328.
37 *




438            MISCELLANEOUS WRITINGS.
when the ministers of the altar sat down by the side of
the tyrant and numbered his victims, and stimulated his
persecutions, and screened the instruments of his crimes,
-and there was praise, and glory, and revelry for these
things. Murder and rapine, burning cities, and desolated
plains, if so be they were at the bidding of royal or baronial
feuds, led on by the courtier or the clan, were matters of
public boast, the delight of courts, and the treasured pleasure
of the fireside tales. But these times have passed away.
Christianity has resumed her meek and holy reign. The
Puritans have not lived in vain. The simple piety of the
pilgrims of New England casts into shade this false glitter,
which dazzled and betrayed men into the worship of their
destroyers.
It has been said, in the wantonness of folly, or the presumptuousness of ignorance, that America was peopled
much in the same way as Botany Bay, with outcasts and
convicts. So far as respects New England, there could not
be a more flagrant violation of the truth of history. The
poor, the friendless, and the oppressed came,, indeed, hither..But their sole crime was, that they loved God more than
they feared man. They came, too, under the guidance of
men elevated by their rank, their fortune, and their learning,
in their own country. Some of them were allied to noble
families, whose graceful honors have descended to our days.
Many of them  were gentry of the realm, and possessed
public respect from their known virtues and opulence. Many
were distinguished for high attainments in literature and
science, and could trace back their matriculations to the Universities of Oxford and Cambridge.  Many of them were
ripe for public honors at home, if they had chosen to remain
there.  Many of them were the friends and compeers of
Cromwell, and Pym, and Hampden, and Milton, and other
illustrious men, who in the midst of all the changes of party
and all the studied disparagements of royalty, still continue
to attract the reverence of mankind. Need I name Winthrop,




HISTORY AND INFLUENCE OF THE PURITANS.    439
Dudley, Endicott, Humphrey, Saltonstall, Johnson, Nowel,
Bradstreet, and Pynchon? Or, among the clergy, Higginson, Skelton, Cotton, Eliot, Davenport, Williams, Wilson,
Norton, Rogers, and Hooker; to many of whom we may,
with the honest enthusiasm of Mather, apply the praise of
Salmasius, Vir nunquam  satis laudatus, nec temere sine
laude nominandus.1
But to us it would not be matter of regret, much less of
reproach, if the case were far otherwise; if we could count
among our ancestors only the humble, the poor and the forlorn. Rank, station, talents, and learning did indeed add
lustre to their acts, and impart a more striking dignity to
their sufferings, by giving them a bolder relief. But it was
the purity of their principles, their integrity, and devout piety,
which constituted the solid fabric of their fame. It was
Christianity, which cast over their character its warm and
glorious light, and gave it an everlasting freshness. It was
their faith in God, which shed such beauty over their lives,
and clothed this mortal with the form of immortality. In
comparison with these, the distinctions of this world, however
high or various they may be, are but evanescent points, a
drop to the ocean, an instant to eternity, a ray of light to the
innumerous fires, which blaze on unconsumed in the skies.
This is not the poor estimate of man, the being of a day; it
is the voice of that Revelation, which has spoken to our
hopes and fears with an authority, which rebukes, while it
convinces, our reason.
Let us rejoice, then, at our origin, with an honest joy. Let
us exultingly hail this day as one of glorious memory. Let
us proudly survey this land, the land of our fathers. It is
our precious inheritance. It was watered by their tears;
it was subdued by their hands; it was defended by their
valor; it was consecrated by their virtues. Where is the
1 See Eliot's Biog. Dictionary, Art. Davenport; 2 Hist. Collect. (2d
series) p. 260.




440             MISCELLANEOUS WRITINGS.
empire, which has been won with so much innocence? Where
is the empire, which has been maintained with so much
moderation?
I pass to other topics, where the task of vindication or
apology becomes a duty of the day; a task, which, I trust,
may be performed with due reverence to our forefathers, and
with a still greater reverence for truth.
It has been said, that our forefathers were bigoted, intolerant, and persecuting; that while they demanded religious
freedom for themselves, they denied it to all others; that in
their eyes even error in ceremony or mode of worship was
equally reprehensible with error in doctrine; and, if persisted
in, deserved the temporal punishments denounced upon heresy.
Mr. Hume 1 has dwelt with no small complacency upon the
fact, that the Puritans " maintained that they themselves were
the only pure Church; that their principles and practices
ought to be established by law; and that no others ought to
be tolerated."
I am not disposed to deny the truth of the charge, or to
conceal, or to extenuate the facts. I stand not up here the
apologist for persecution, whether it be by Catholic or Protestant, by Puritan or Prelate, by Congregationalist or Cove.
nanter, by Church or State, by the monarch or the people.
Wherever, and by whomsoever, it is promulgated or sup.
ported, under whatever disguises, for whatever purposes, at
all times, and under all circumstances, it is a gross violation
of the rights of conscience, and utterly inconsistent with the
spirit of Christianity. I care not, whether it goes to life, or
property, or office, or reputation, or mere private comfort, it
is equally an outrage upon religion and the unalienable rights
of man. If there is any right, sacred beyond all others,
because it imports everlasting consequences, it is the right
to worship God according to the dictates of our own consciences. Whoever attempts to narrow it down in any de1 6 Hume's I-Iist. 164.




HISTORY AND INFLUENCE OF THE PURITANS.      441
gree, to limit it by the creed of any sect, to bound the exercise
of private judgment, or free inquiry, by the standard of his
own faith, be he priest or layman, ruler or subject, dishonors,
so far, the profession of Christianity, and wounds it in its vital
virtues. The doctrine, on which such attempts are founded,
goes to the destruction of all free institutions of government.
There is not a truth to be gathered from history, more certain,
or more momentous, than this, that civil liberty cannot long
be separated from religious liberty without danger, and ultimately without destruction to both. Wherever religious
liberty exists, it will, first or last, bring in, and establish political liberty. Wherever it is suppressed, the Church establishment will, first or last, become the engine of despotism;
and overthrow, unless it be itself overthrown, every vestige of
political right. How it is possible to imagine, that a religion,
breathing the spirit of mercy and benevolence, teaching the
forgiveness of injuries, the exercise of charity, and the return
of good for evil; how it is possible, I say, for such a religion
to be so perverted, as to breathe the spirit of slaughter and
persecution, of discord and vengeance, for differences of opinion, is a most unaccountable and extraordinary moral phenomenon. Still more extraordinary, that it should be the
doctrine, not of base and wicked men merely, seeking to
cover up their own misdeeds; but of good men seeking the
way of salvation with uprightness of heart and purpose. It
affords a melancholy proof of the infirmity of human judgment; and teaches a lesson of humility, from which spiritual
pride may learn meekness, and spiritual zeal a moderating
wisdom.
Let us not then, in examining the deeds of our fathers,
shrink from our proper duty to ourselves. Let us not be untrue to the lights of our own days, to the religious privileges
which we enjoy, to those constitutions of government which
proclaim Christian equality to all sects, and deny the power
of persecution to all. Our fathers had not arrived at the
great truth, that action, not opinion, is the proper object of




442            MISCELLANEOUS WRITINGS.
human legislation; that religious freedom is the birthright of
man; that governments have no authority to inflict punishment for conscientious differences of opinion; and that to
worship God according to our own belief is not only our
privilege, but is our duty, our absolute duty, from which no
human tribunal can absolve us. We should be unworthy of
our fathers, if we should persist in error, when it is known to
us. Their precept, like their example, speaking, as it were,
from their sepulchres, is, to follow truth, not as they saw it,
but as we see it, fearlessly and faithfully.
Let us meet the charge against them of bigotry, intolerance,
and persecution, and gather from it instruction and admonition for our own conduct. Were our forefathers singular in
this respect? Does the reproach, if reproach it be, that men
do not live up to truths which they do not comprehend, rest
upon them alone?  So far from this being true, there was not,
at that time, in all Christendom, a single spot, however remote, in which the freedom  of religious opinion was supported by prince or people. Throughout all Europe, if we
except Holland, the practice of burning heretics still prevailed,
not only in Catholic but in Protestant countries. And even
in Holland, banishment was not an uncommon punishment
for those, who obstinately persisted in heresies of doctrine.l
What is it, then, that is required of our forefathers? That
they should have possessed a wisdom and liberality far superior to their own age; —that they should have acted upon
truths as clear and settled, of which faint glimmerings only,
or at least a brief and dubious twilight, had then shot up in
unsteady streams to direct their course; — that, learned as
they were, and wide as were their researches, and painful as
was their diligence, they should have outstripped all others in
the race, and surmounted the prejudices and prescriptions of
twelve centuries. It would be dealing out a hard measure
of justice to require perfect conformity under all circum6 Hume's Hist. 57, 163; 7 Hume's Hist. 20, 41, 515.




HISTORY AND INFLUENCE OF THE PURITANS.    443
stances to our own sense of duty. It would be dealing out
a still harder measure to press upon one poor, persecuted sect
the sins of all Christendom; to make them alone responsible
for opinions, which had become sacred by their antiquity, as
well as their supposed coincidence with Scripture. Uniformity of faith and intolerance of error had been so long the
favorite dogmas of all schools of theology and government,
that they had ceased to be examined. They were deemed
texts for the preacher, and not inquiries for the critic.
I am aware that in the writings of some of the early reformers there may be found, here and there, passages, which
recognize the principles of religious liberty. But, we must
remember, that they were uttered in the heat of controversy,
to beat down the authority of the Romish Church; and so
little were they sustained by public opinion, that they were
lamentably forgotten in the first moments of Protestant victory. They were mere outworks in the system of theological
opinions, which might form a defence against Catholic attacks; and were treated with contempt or indifference, when
heresies sprung up in the bosom of the new faith. My Lord
Bacon, in his discourse upon the unity of religion, written
with a moderation becoming his great mind, and with a
spirit of indulgence far beyond the age, has nevertheless
contended strenuously for the unity of faith, and declared,
that "heresies and schisms are of all others the greatest
scandals." At the same time, he boldly warns us not " to
propagate religion by wars, or by sanguinary persecutions to
force consciences."  At the distance of a century, the enlightened author of " The Spirit of Laws " avowed the doctrine,
that it is sound policy, when the state is already satisfied with
the established religion, not to suffer the establishment of
another. And while he declares, that penal laws, in respect
to religion, ought to be avoided, he paradoxically maintains
the doctrine, as a fundamental principle, that, when the state
1 2 Bacon's Works, 259.




444              MISCELLANEOUS WIRITINGS.
is at liberty to receive or reject a new religion, it ought to be
rejected; when it is received, it ought to be tolerated.' So
slowly does truth make its way, even among the most gifted
minds, in opposition to preconceived opinions and prejudices.
Nay, we need not go back to other times for illustrative
examples. Is it even now true, that the doctrine of religious
liberty is received with entire approbation in Christendom?
Where it is received with most favor, is it not recognized
more as matter of toleration and policy, than of right? suffered, rather than supported? connived at from fear, rather
than vindicated upon principle? Even in England, free and
enlightened as she is, how slow and reluctant has been the
progress towards a generous toleration! It is scarcely twelve
years since it ceased to be a crime, punishable with fine and
imprisonment, to deny the doctrine of the Trinity. The
Universities of Oxford and Cambridge are still, by their
statutes, closed against the admission of Dissenters from the
established Church. For more than a century and a half,
Protestant Dissenters of every description were excluded by
law from the possession of offices of trust or profit in the
kingdom. The repeal of the odious corporation and test acts,
by which this exclusion was guarded, was, after much resistance, accomplished only at the last session of Parliament;
and the celebrations of this event, of this emancipation from
thraldom of one third of her whole population, are just reaching our ears from the other side of the Atlantic. The Catholic yet groans under the weight of disabilities imposed upon
him by the unrelenting arm of power, and sickens at the
annual visitation of that hope of relief, which mocks him at
every approach, and recedes at the very moment when it
seems within his grasp. Even in our own country, can we
lay our hands upon our hearts, and say with sincerity, that
this universal freedom of religion is watched by none with
jealousy and discontent? that there are none, who would
I Montesquieu's Spirit of Laws, book 25, ch. 10, 12.




HISTORY AND INFLUENCE OF THE PURITANS.        445
employ the civil arm to suppress heresy, or to crush the
weaker sects?
With what justice, then, shall we require from the Puritans
of James's reign, lessons of Christian liberality, which, even
in the nineteenth century, are rejected by statesmen and
patriots, by laity and clergy, in regions adorned with all the
refinements of letters, and the lights of science? If they had
continued in the mother country, it is more than probable,
that persecution would have taught them, what reason and
revelation had failed to teach them.  They would have
reached the point, at which the Independents arrived in the
next reign, whose true glory it is, that, " of all Christian sects,
this was the first, which, during its prosperity as well as its
adversity, always adopted the principle of toleration." 1
But our forefathers acted far otherwise. The truth of history compels us to admit, that, from the first settlement down
to the charter of William and Mary, in 1692, in proportion as
they gathered internal power, they were less and less disposed
to share it with any other Christian sect. That charter contained an express provision, that there should be "a liberty of
conscience allowed in the worship of God to all Christians,
except Papists."  Objectionable as this clause would have
been under other circumstances, the recent attempts of James
the Second to introduce Popery, and the dread which they
entertained of being themselves the subjects of political, as
well as religious persecution, reconciled them to it, and they
hailed it almost as another magna charta of liberty."2  So
true it is, that accident or interest frequently forces men to
the adoption of correct principles, when a sense of justice has
totally failed to effect it. In the intermediate period, the
Quakers and Anabaptists, and, in short, all other Dissenters
from their creed, had been unrelentingly persecuted by fine,
imprisonment, banishment, and sometimes even by death
itself. Episcopalians, too, fell under their special displeasure;
1 7 Hume's Hist. 20.      2 1 Hutch. Hist. 75, and note.
38




446            MISCELLANEOUS WRITINGS.
and, notwithstanding every effort of the Crown, by threats
and remonstrance, they studiously excluded them from every
office, and even from the right of suffrage. No person but
a freeman was permitted to vote in any public affairs, or to
hold any office; and no person could become a freeman but
by being a member of their own church, and recommended
by their own clergy.1 In truth the clergy possessed a power
and influence in the state, as great as ever was exercised
under any church establishment whatsoever. There was not,
until after the repeal of the first charter, in 1676, a single
Episcopal society in the whole colony;2 and even the celebration of Christmas was punished as a public offence.3 In
this exclusive policy our ancestors obstinately persevered,
against every remonstrance at home and abroad. When Sir
Richard Saltonstall wrote to them his admirable letter, which
pleads with such a catholic enthusiasm for toleration, the
harsh and brief reply was, " God forbid our love for the truth
should be grown so cold, that we should tolerate errors."4
And Cotton himself, "whose praise is in all our churches,"
the man, who could, with a noble independence, address himself to the bishop of Lincoln in language like this: " However much I do highly prize, and much prefer other men's
judgment, and learning, and wisdom, and piety; yet in things
pertaining to God and his worship, still I must (as I ought)
live by my own faith, not theirs;" such a man, I say, could
meanly stoop, in the defence of persecution, to arguments not
unworthy of the worst ages of bigotry.5 They went farther,
imitating in this respect the famous act of uniformity of
Elizabeth, and compelled an attendance upon their own
mode of worship under a penalty. Yes, the very men did
this, who thought that paying one shilling for not coming to
prayers in England was an unsupportable tyranny.6 Yes,
1 3 Hutch. Collect. 478, 484, 520, note.  2 3 Hutch. Hist. 430, 431.
3 3 Hutch. Collect. 419, 482; Colony and Province Laws, edit. 1814,
p. 119, ch. 50.
4 3 Hutch. Collect. 401, 402.   5 Ibid. 403.
6 Ibid. 418, 419, 422; 1 Hutch. Hist. 75.




HISTORY AND INFLUENCE OF THE PURITANS.       447
the very men, who asked from Charles the Second, after his
restoration, liberty of conscience and worship for themselves,
were deaf, and dumb, and blind, when it was demanded by his
commissioners for Episcopalians and others. They silently
evaded the claim, or resolutely refused it, as the temper of
the times enabled them to act."l1
The very efforts, made in the colony to establish this
uniformity of faith, afford striking proofs of the utter hopelessness, as well as injustice of such attempts. Within ten
years after their first landing, the whole colony was thrown
into confusion by religious dissensions, by controversies about
faith, and about forms of church government; about the
covenant of grace, and the covenant of works; about liberty
of conscience, and exclusiveness of worship; about doctrines
so mysterious and subtle, as seem past all human comprehension, and customs so trifling and vain, as seem beyond
the reach of ecclesiastical censure. Who could imagine, that
the reveries of Mrs. Hutchinson, and the question, whether
ladies should wear veils, and the legality of bearing the cross
in a military standard, should have shaken the colony to its
foundations? So thickly sown were the seeds of spiritual
discord, that more than fourscore opinions were pronounced
heresies, by an ecclesiastical Synod convened in 1637.2 Yet
were the difficulties far from being removed, although fines
and imprisonment and banishment followed in the train of
the excommunications of the Church. The struggle for toleration was still maintained; the discontent with the laws
which confined political privileges to church members, constantly increased; and diversities of faith at last grew up, so
numerous and so formidable, that persecution became less
frequent, because it was less safe. The single fact, that,
under this exclusive system, not more than one sixth of the
qualified inhabitants were freemen in 1676, affords an ample
1 3 Hutch. Collect. 188, 191, 192, 193, 194, 418, 419, 422; 8 Hist. Collect.
(second series) pp. 76, 78; 1 Hutch. Hist. Appendix, 537; 3 Hutch. Collect.
478, 482, 484, 519, 520.
2 1 Hutch. Hist. 37, 55, 67, 73, 75, 430.




448             MISCELLANEOUS WRITINGS.
commentary upon its injustice and folly. Five sixths of the
colony were disfranchised by the influence of the ecclesiastical
power.'
The fundamental error of our ancestors, an error which
began with the very settlement of the colony, was a doctrine
which has since been happily exploded; I mean the necessity
of a union between church and state. To this they clung,
as the ark of their safety. They thought it the only sure way
of founding a Christian commonwealth. They maintained,
that " church government and civil government may very
well stand together; it being the duty of the magistrate to
take care of matters of religion, and to improve his civil
authority for observing the duties commanded by it." 2 They
not only tolerated the civil power in the suppression of heresy)
but they demanded and enjoined it. They preached it in the
pulpit and the synod. It was in their closet prayers, and in
their public legislation. The arm of the civil government
was constantly employed in support of the denunciations of
the Church; and, without its forms, the Inquisition existed in
substance, with a full share of its terrors and its violence.
There was, indeed, far more caution in shedding human
blood; but there was scarcely less indulgence for human
error. For such proceedings there was not the poor apology,
which has been sometimes suggested, that every religion,
which is persecuted, becomes itself persecuting, because it
attacks the religion which persecuted it, not as a religion,
but as a tyranny.3 Our ancestors could not frame such an
apology for themselves; for no ecclesiastical tyranny attempted to usurp authority over them within the colony. It had
a deeper origin, in that wretched doctrine of the union of
Church and state, by which Christianity has been made the
minister of almost every wrong in the catalogue of crimes.
It has been said, with as much truth as force, by one of the
most eloquent of modern divines, that " The boasted alliance
1 3 Hutch. Collect. 484.        2 1 Hutch. Hist. 434.
3 Montesquieu's Spirit of Laws, book 25, ch. 9.




IIISTORY AND INFLUENCE OF THE PURITANS.         449
between church and state, on which so many encomiums
have been lavished, seems to have been little more than
a compact between the priest and the magistrate to betray
the liberties of mankind, both civil and religious."l
To the honor of New England be it said, that if here
persecution obtained an early triumph, here also, for the first
time since the Reformation, was simultaneously proclaimed
the doctrine of liberty of conscience, - a doctrine which, I
trust, will, by the blessing of God, be maintained by us and,
our posterity at all hazards, and against all encroachments.
Here, on this very spot, in Naumkeag, in this "bosom of
consolation," 2 it was proclaimed by Roger Williams, in
1635; and for this, among other grave offences, he was sentenced to banishment. He fled to Rhode Island; and there,
in the code of laws for the colony, planted by his energy and
sagacity, we read for the first time since Christianity ascended
the throne of the Caesars, the declaration that " conscience
should be free, and men should not be punished for worshipping God in the way they were persuaded he required,"a declaration which, to the honor of Rhode Island, she has
never departed from, - a declaration which puts to shame
many a realm of wider domains and loftier pretensions. It
still shines among her laws, with an argument in its support
in the shape of a preamble, which has rarely been surpassed
in power of thought or felicity of expression.3   Massachusetts may blush, that the Catholic colony of Lord Baltimore,
and the Quaker, the blameless Quaker colony of Penn, were
originally founded on the same generous principles of Christian right, long before she felt or acknowledged them.4
1 Robert Hall; " Christianity Consistent with a Love of Freedom."
2 In " The Planter's Plea," published in London, in 1630, the writer says
that Nahum Keike is perfect Hebrew, and by interpretation means " The
bosom of consolation."
3 It is almost in totidem verbis with the act of Virginia, of 1 785, which has
been attributed to Mr. Madison. To which state the merit of the original
draft belongs, I am unable to say, as I have not the means of tracing it in
Rhode Island acts earlier than in the Digest of 1798.
4 1 Pitkin's Hist. 56, 67; Chalmers, p. 218; 2 Proud's Hist. Append.
38*




450             MISCELLANEOUS WRITINGS.
While, then, we joyfully celebrate this anniversary, let us
remember that our forefathers had their faults as well as
virtues; that their example is not always a safe pattern for
our imitation, but sometimes a beacon of solemn warning.
Let us do, not what they did, but what with our lights and
advantages, they would have done, must have done, from the
love of country, and the love of truth. Is there any one who
would now, for a moment, justify the exclusion of every
person from political rights and privileges who is not a Congregationalist of the straitest sect in doctrine and discipline?
Is there any one who would exclude the Episcopalian, the
Baptist, the Methodist, the Quaker, or the Universalist, not
merely from power and Christian fellowship, but from breathing the same air, and enjoying the same sunshine, and reaping the same harvest, because he walks not in the same faith,
and kneels not at the same altar with himself? Is there any
one who would bring back the bygone penalties, and goad
on tender consciences to hypocrisy or self-destruction? Is
there any one who would light the fagot to burn the innocent? who would stain the temples of God with the blood
of martyrdom? who would cut off all the charities of human
life, and, in a religious warfare, arm the father against the
son, the mother against the daughter, the wife against the
husband? who would bind all posterity in the fetters of his
own creed, and shipwreck their consciences? If any such
there be, whatever badge they may wear, they are enemies to us and our institutions. They would sap the foundations of our civil, as well as religious liberties. They would
betray us into worse than Egyptian bondage. Of the doctrines of such men, if any such there be, I would say, with
the earnestness of the apostolical exhortation," Touch not,
taste not, handle not."  If ever there could be a case in which
intolerance would rise almost into the dignity of a virtue, it
would be when its object was to put down intolerance. No
— let us cling with a holy zeal to the Bible, and the Bible
only, as the religion of Protestants. Let us proclaim, with




HISTORY AND INFLUENCE OF THE PURITANS.        451
Milton, that " Neither traditions, nor councils, nor canons of
any visible church, much less edicts of any civil magistrate,
or civil session, but the Scripture only, can be the final judge
or rule in matters of religion, and that only in the conscience
of every Christian to himself."  Let us inscribe on the walls
of our dwelling-houses, in our temples, in our halls of legislation, in our courts of justice, the admirable declaration of
Queen Mary, the consort of William the Third, —than which
a nobler precept of wisdom never fell from uninspired lips, -
" It is not in the power of men to believe what they please;
and therefore they should not be forced in matters of religion
contrary to their persuasions and their consciences." 1
I pass, with unmixed pleasure, to other and more grateful
topics, where approbation need not be slow, or praise parsimonious.  If, in laying the foundations of this Christian
commonwealth, our forefathers were governed, in respect to
religion, by a spirit unworthy of Protestantism, it was far
otherwise in respect to their civil institutions.  Here, a wise
forecast and sound policy directed all their operations; so
wise and so sound, that the lapse of two hundred years has
left unchanged the body of their legislation, and, in a general
sense, added little to their securities for public or private
rights. There is no reason to suppose that they were opposed
to monarchy, as a suitable form of government for the mother
country, or that opposition to the civil establishments mingled in the slightest degree with the motives of their emigration.2 There is just as little reason to suppose that they desired or would have acquiesced in the establishment of a
colonial monarchy or aristocracy. On the contrary, we know
that they refused to confer the magistracy for life; and that
they repelled every notion of an hereditary nobility, in their
celebrated answer to the propositions of Lord Say and
Seale.3 This attachment to the form of government of the
mother country was not only sincere, but continued down to
1 9 Hist. Collect. 251.      2 3 Hutch. Collect. 326.
3 1 Hutch. Hist, 490, 493, 494.




452             MISCELLANEOUS WRITINGS.
the Revolution. Their descendants took many opportunities
to evince it; and some of the most powerful appeals made
by the patriots of the revolution to the British Crown are
filled with eloquent professions of loyalty. The formation
of a Republic was the necessary result of the final separation from England. j The controversy was` then narrowed
down to the consideration of what form of government they
might properly adopt. All their habits, principles, and institutions prohibited the existence of a real to titular peerage.
They had no materials for a king. They were, as they had
been from the beginning, essentially republicans. They followed the lead of their existing institutions; and the most
striking change introduced by them was the choice of a
governor by themselves, as a substitute for the like choice by
the Crown.
Their connection with and dependence upon the mother
country grew up from their national allegiance, and was confirmed by the sense of their own weakness and the desire of
protection. In return for this protection, they were ready to
admit a sovereign right in Parliament to regulate, to some,
though to an undefined extent, their foreign intercourse, and
in the Crown to supervise their colonial legislation. But
they never did admit the right of Parliament or the Crown
to legislate generally for them, or to interfere with their domestic polity. On the contrary, from the first they resisted
it, as an encroachment upon their liberties. This was more
emphatically true of Massachusetts than of any other of the
colonies. i The commissioners of Charles the Second, in
1665, reported that " she was the last and hardliest persuaded
to use his majesty's name in the forms of justice;" -that
her inhabitants "proclaimed by sound of trumpet, that the
General Court was the supremest judicatory in all that
province;"  "that the commissioners' pretending to hear
appeals was a breach of their privileges;" " and that they
should not permit it." 1 In short, the commissioners well
1 3 Hlutch. Collect. 417, 418.




HISTORY AND INFLUENCE OF THE PURITANS.        453
described " their way of government as commonweallh like." 1
Even in relation to foreign commerce their strong sense of
independence was illustrated by the complaint that'" —o
notice was taken of the act of navigation, plantation, or any
other laws made in England for the regulation of trade; all
nations having free liberty to come into their ports, and vend
their commodities without any restraint." 2 These acts of
navigation and trade were never recognized as in force in the
colony, until their own legislature required their observance.3
So strenuous were our ancestors, even at this early period, in
maintaining the doctrine, that Parliament could not bind
them, because they were not represented there.  So jealous
were they to guard against every usurpation of the Crown.
He, indeed, must have read our annals with a very careless
eye, who does not perceive, at every turn, a constant struggle
for substantial independence.
The basis of their institutions was, from the first settlement,
republican. The people were the admitted source of all
power. They chose the magistrates and the executive. They
established a representative government; they created a colonial legislature, whose power to enact laws was, until the
overthrow of the first charter, deemed for most purposes absolute and supreme. Their earliest legislation recognized the
great rights secured by the Magna Charta of England: the
trial by jury; the free administration of justice; the equality
of freemen; the abolition of all slavish and feudal tenures;
and, above all, the distribution of intestate estates among all
the descendants of the deceased.-.This was indeed a signal
triumph over the prejudices in favor of primogeniture. It
constituted a fundamental principle in their policy; and, by
its silent, but irresistible influence, prevented the undue accumulation of estates in a few hands, so that the introduction of a colonial nobility became absolutely impracticable.
1 3 Hutch. Collect. 422.
2 Randolph's Letter in 1676; 3 Hutch. Collect. 496.
3 1 Hutch. Hist. 322; 3 Hutch. Collect. 521.




454             MISCELLANEOUS WRITINGS.
Henceforth, the partible nature of estates was so fixed in
public opinion, that it broke down every attempt to perpetuate entails; and left the mass of our landed interests, as we
now find them, in the possession of the yeomanry in fee
simple. While this great law of descents exists, it will forever prevent the establishment of any arbitrary power. The
government, that once admits it into its code, may remain in
form a monarchy, or an aristocracy; but it will follow the
impulses of public opinion, and find its surest protection in
the advancement of popular principles.
Thus broad, thus elevated, was the early legislation of our
forefathers. If we except from it that portion, which was
tinged by the bigotry and superstition of the times, we shall
find it singular for its wisdom, humanity, and public spirit;
and admirably adapted to the wants of a free, simple, and
intelligent people.
Among the most striking acts of their legislation are those,
which respect the cause of learning and education. Within
ten short years after their first settlement, they founded the
University at Cambridge, and endowed it with the sum of
four hundred pounds; a sum, which, considering their means
and their wants, was a most generous benefaction. Perhaps
no language could more significantly express the dignity of
their design, than their own words. " After God had carried us
safe to New England," said they, " and we had builded our
houses, provided necessaries for our livelihood, reared convenient places for God's worship, and settled the civil government; one of the next things we longed for, and looked after,
was to advance learning and perpetuate it to posterity, dreading to leave an illiterate ministry to the churches, when our
present ministers shall lie in the dust." 1 They were not disappointed in their hopes. By the blessing of Providence,
this little College, planted by their hands, and nursed by their
care, has flourished. Already she counts nearly six thousand
1 1 Hist. Collect. 240.




HISTORY AND INFLUENCE OF THE PURITANS.       455
in her matriculations. She still stands erect, in the midst of
her offspring, clothed with her ancient glory and matron dignity, and lovelier by her age. Our hearts still yearn towards
her; our thoughts still kindle at her praise; our prayers still
rise for her prosperity.  We may smile at the early charge
made by the royal commissioners, that " it may be feared this
College may afford us many schismatics to the Church."l
But we proudly proclaim their reluctant confession, that by
her means there was " a scholar to their minister in every
town or village" in Massachusetts.2
But the truest glory of our forefathers is in that system of
public instruction, which they instituted by law, and to which
New England owes more of its character, its distinction, and
its prosperity, than to all other causes. If this system be not
altogether without example in the history of other nations
(as I suspect it to be, in its structure and extent,) it is, considering the age and means of the projectors, an extraordinary instance of wise legislation, and worthy of the most profound statesmen of any times. At the distance of centuries it stands alone and unrivalled. Europe has not ventured
as yet to copy its outlines; nor could they be copied in a
despotism, without undermining its foundations. England
herself, where letters and learning have so long held the highest rank;, is but just beginning to think seriously of a system
of national instruction; and her statesmen are now gathering admiration at home from schemes of public education
far, very far short of what her own poor, feeble, neglected
colony established at the starting point of its political existence. Yes, it was in this system of public instruction that
our fathers laid the foundation for the perpetuity of our institutions, and for that growth of sound morals, industry, and
public spirit, which has never yet been wanting in New England, and, we may fondly hope, will forever remain her
appropriate praise. Yes, in the year 1647, they ordered every
1 3 Hutch. Collect. 421.             2 Ibid. 413.




456             MISCELLANEOUS WRITINGS.
township of fifty householders to maintain a public school at
public expense; and every township of one hundred householders to maintain in like manner a grammar school, to
instruct youth, and fit them for the University, " to the end,"
say they, in this memorable law, " to the end, that learning
may not be buried in the graves of our forefathers, in church
and commonwealth." And this was done by them, when
they had just made their first lodgment in the wilderness;
when they had scarcely found leisure to build, I do not say
fair dwellings, but humble cottages for their own shelter and
safety. When they were poor and unprotected, persecuted
and in peril — they could then look forward with a noble
disregard of present enjoyments, and forgetting themselves,
provide the bread of life for their posterity. This system
has never been broken in upon: it still stands, in its substance, on the pages of our statute book, an enduring record
of wisdom and patriotism. Under its blessed influence our
youth have grown up. They have received early instruction
in their rights and liberties, and, as the law itself requires,
"not only in sound literature, but in sound doctrine."  It is
here that industry has learned the value of its own labors;
that genius has triumphed over the discouragements of property; that skill has given polish, as well as strength, to
talent; that a lofty spirit of independence has been nourished
and sustained; that the first great lesson of human improvement has been taught, that knowledge is power; and the last
great lesson of human experience felt, that without virtue
there is neither happiness nor safety.
I know not what more munificent donation any government can bestow, than by providing instruction at the public
expense, not as a scheme of charity, but of municipal policy.
If a private person deserves the applause of all good men,
who founds a single hospital or college, how much more are
they entitled to the appellation of public benefactors who,
by the side of every church in every village, plant a school of
letters. Other monuments of the art and genius of man




HISTORY AND INFLUENCE OF THE PURITANS.    457
may perish; but these, from their very nature, seem, as far
as human foresight can go, absolutely immortal. The triumphal arches of other days have fallen; the sculptured
columns have crumbled into dust; the temples of taste and
religion have sunk into decay; the pyramids themselves seem
but mighty sepulchres, hastening to the same oblivion to
which the dead they cover have long since passed. But
here every successive generation becomes a living memorial
of our public schools, and a living example of their excellence. Never, never may this glorious institution be abandoned or betrayed by the weakness of its friends, or the
power of its adversaries. It can scarcely be abandoned or
betrayed, while New England remains free, and her representatives are true to their trust. It must for ever count in
its defence a majority of all those who ought to influence
public affairs by their virtues or their talents; for it must be
that here they first felt the divinity of knowledge stir within
them.  What consolation can be higher, what reflection
prouder, than the thought, that in weal and in woe our
children are under the public guardianship, and may here
gather the fruits of that learning, which ripens for eternity?
There is another topic connected with the settlement of
this country which may not be passed over upon this occasion. At the very threshold of the enterprise a nice question,
both in morals and public law, must have presented itself to the
consideration of conscientious minds. How far was it lawful
to people this Western world, and deprive the Indians of that
exclusive sovereignty over the soil which they had exercised
for ages beyond the reach of human tradition? Men of deep
reflection, and especially men who felt a serious, religious
accountability for their conduct, could not be presumed to
pass over such a subject without weighing it with scrupulous
delicacy. It did not escape the attention of our forefathers.
They met it, and discussed it with a manly freedom. They
sought neither to disguise their own opinions, nor to conceal
the real difficulties of the inquiry.
39




458             MISCELLANEOUS WRITINGS.
In ascending to the great principles upon which all human
society rests, it must be admitted that there are some which
are of eternal obligation, and arise from our relations to
each other, and our common dependence upon our Creator.
Among these are the duty to do justice, to love mercy, and
to walk humbly before God. There are others again which
are merely founded in general convenience, and presuppose
some regulations of society, or conventional law. The rights
belonging to this latter class are coextensive only with the
nations which recognize them; and, in a general sense, cannot be deemed obligatory upon the rest of the world. The
plain reason is, that no portion of mankind has any authority
delegated to it by the Creator, to legislate for, or bind all the
rest. The very equality of original rights, which every argument presupposes, excludes the notion of any authority to
control those rights, unless it is derived by grant or surrender,
so as to bind others in conscience and abstract justice.
We are told in the Scriptures, that in the beginning God
gave man dominion over the earth, and commanded him to
replenish and subdue it; and this has been justly said to be
the true and solid foundation of man's dominion over it.1
But this principle does not lead to the conclusion that any
particular person may acquire to himself a permanent and
exclusive interest in the soil; much less, that any single
nation may appropriate to itself as much of the surface as it
shall choose, and thus narrow down the common inheritance,
and exclude all others from any participation in its products
for the supply of their own wants.  If any right can be
deduced from this general grant of dominion to man, it is of
a far more limited nature; the right to occupy what we possess during the time of possession, the right of mere present
enjoyment; which seems to flow as much from the consideration that no one can show a better right to displace us, as
from the consideration, that it affords the only means of any
1 2 B1. Com. 2.




HISTORY AND INFLUENCE OF THE PURITANS.    459
enjoyment. But where shall we find, independently of maxims derived from society, the right of any nation to exclude
others from cultivating the soil, which it does not itself choose
to cultivate, but which may be indispensable to supply the
necessities of others? Where is the principle which withdraws from the common inheritance, and gives to a few
what the bounty of God has provided for all? The truth is,
(though it is a truth rarely brought into discussion among
civilized nations,) that exclusive sovereignty or ownership
of the soil is a derivative right, resting upon municipal regulations and the public law of society; and obtaining its
whole validity from the recognitions of the communities,
which it binds, and the arm of power, which encircles and
protects it. It is a right founded upon the soundest policy;
and has conduced, more than almost any human achievement, to create the virtues which strengthen, and the refinements which grace civilized life.  But if general consent
should abolish it to-morrow, it would be difficult to say that
a return to the patriarchal or pastoral state of nations, and
the community of property, would be any departure from
natural right.
When this continent was first discovered, it became an
object of cupidity to the ambition of many of the nations of
Europe.  Each eagerly sought to appropriate it to itself.
But it was obvious, that, in a mutual struggle for power,
contests of the most sanguinary nature would soon intervene,
if some general principle were not adopted, by the consent of
all, for the government of them all. The most flexible and
convenient principle, which occurred, was, that the first dis.
covery should confer upon the nation of the discoverer an
exclusive right to the soil, for the purposes of sovereignty and
settlement. This principle was accordingly adopted, and
became a fundamental doctrine in the code of legal ethics, by
which the European governments regulated their acquisitions.
No European subject was permitted to interfere with it; and
the possession -acquired under it was deemed absolute and




460             MISCELLANEOUS WRITINGS.
unquestionable. In respect to desert places, the principle,
as one of peace and equality of benefits, is not, perhaps,
obnoxious to censure. But in respect to countries already
inhabited, neither its general justice, nor its conformity to
public law, entitles it to commendation. If, abstractly considered, mere discovery could confer any title, the natives
already possessed it by such prior discovery. If this were put
aside, and mere possession could confer sovereignty, they had
that possession, and were entitled to the sovereignty. In
short, it is clear, that, upon the principles generally recognized
by European nations, as between themselves, the natives
could not be rightfully displaced. And if they were not entitled to the benefit of those principles, they might still stand
upon the eternal laws of natural justice, and maintain their
right to share in the common inheritance. Such a conclusion
could not escape the sagacity of the statesmen and princes of
the old world; but it was quite too refined to satisfy their
ambition and lust of dominion. It was easy to found an
argument for the expulsion of the natives upon their infidelity and barbarism, which allowed them to be treated as
the enemies of God. It was still more plausible to hold out
the prospect of converting them to the Christian faith, and
thus to secure a new triumph to civilization and the cross.
If their territory was invaded, and their governments were
overthrown, if they were compelled to yield to the superior
genius and power of Europe, they would still receive an
ample compensation, in their admission into the bosom of
European society, with its privileges and improvements.
Such were some of the suggestions by which royal ambition
sought to disguise its real objects, and to reconcile to religion
itself the spirit of conquest. It is but justice, however, to add,
that there was no public avowal, that the natives possessed
no right whatsoever. On the contrary, it was conceded, that
they possessed a present right of occupancy; temporary,
indeed, and limited; which might be surrendered to the discovering nation, and in the mean time was entitled to respect.




HISTORY AND INFLUENCE OF THE PURITANS.    461
Our forefathers did not attempt to justify their own emigration and settlement, upon the European doctrine of the
right of discovery. Their patent from the Crown contained a
grant of this right; but they felt that there was a more general question behind, "What warrant have we to take that
land, which is, and hath been of long time, possessed by
others, the sons of Adam?"  Their answer is memorable for
its clearness, strength, and bold assertion of principles. That
which is common to all, say they, is proper to none. This
savage people ruleth over many lands without title or property.  Why may not Christians have liberty to go and
dwell amongst them in their waste lands?  God hath given
to the sons of men a twofold right to the earth. There is a
natural right and a civil right. The first right was natural,
when men held the earth in common. When, afterwards,
they appropriated some parcels of ground, by enclosing and
peculiar manurance, this, in time, got them  a civil right.
There is more than enough land for us and them. God hath
consumed them with a miraculous plague, whereby the
greater part of the country is left void of inhabitants. Besides, we shall come in with the good leave of the natives.1
Such arguments were certainly not unworthy of men of scrupulous virtue. They were aided by higher considerations,
by the desire to propagate Christianity among the Indians;
a desire, which is breathed forth in their confidential papers,
in their domestic letters, in their private prayers, and in their
public devotions. In this object they were not only sincere,
but constant. So sincere and so constant, that one of the
grave accusations against them has been, that, in their religious
zeal, they compelled the Indians, by penalties, to attend public
worship, and allured them by presents, to abandon their
infidelity.2 In truth, the propagation of Christianity was a
leading motive with many of the early promoters of the settlement; and we need no better proof of it, than the esta1 3 Hutch. Collect. 30, 31.  2 3 Hutch. Collect. 28, 32, 420, 490.
39 *




462            MISCELLANEOUS WRITINGS.
blishment of an Indian school at Harvard College, to teach
them the rudiments of the Christian faith.
Whatever, then, may have been the case in other parts of
the continent, it is a fact, and it should not be forgotten, that
our forefathers never attempted to displace the Indians by
force upon any pretence of European right. They occupied
and cultivated what was obtained by grant, or was found
vacant. They constantly respected the Indians in their settlements and claims of soil. They protected them from their
enemies, when they sought refuge among them. They stimulated no wars for their extermination. During the space
of fifty years, but a single case of serious warfare occurred;
and, though we cannot but lament the cruelties then perpetrated, there is no pretence, that they were the aggressors
in the contest.  Whatever complaints, therefore, may be
justly urged by philosophy, or humanity, or religion, in our
day, respecting the wrongs and injuries of the Indians, they
scarcely touch the Pilgrims of New England. Their hands
were not imbrued in innocent blood. Their hearts were not
heavy with crimes and oppressions engendered by avarice.
If they were not wholly without blame, they were not deep
in guilt. They might mistake the time, or the mode, of
christianizing and civilizing the Indians; but they did not
seek pretences to extirpate them. Private hostilities and
butcheries there might be; but they were not encouraged or
justified by the government. It is not, then, a just reproach,
sometimes cast on their memories, that their religion narrowed down its charities to Christians only; and forgot, and
despised, and oppressed these forlorn children of the forest.
There is, indeed, in the fate of these unfortunate beings,
much to awaken our sympathy, and much to disturb the
sobriety of our judgment; much, which may be urged to
excuse their own atrocities; much in their characters, which'betrays us into an involuntary admiration. What can be
more melancholy than their history? By a law of their
nature, they seem destined to a slow, but sure extinction.




HISTORY AND INFUENCE OF THE PURITANS.    463
Everywhere, at the approach of the white man, they fade
away. We hear the rustling of their footsteps, like that of
the withered leaves of autumn, and they are gone forever.
They pass mournfully by us, and they return no more. Two
centuries ago, the smoke of their wigwams and the fires of
their councils rose in every valley, from Hudson's Bay to the
farthest Florida, from the ocean to the Mississippi and the
lakes. The shouts of victory and the war-dance rang through
the mountains and the glades. The thick arrows and the
deadly tomahawk whistled through the forests; and the
hunter's trace and the dark encampment startled the wild
beasts in their lairs. The warriors stood forth in their glory.
The young listened to the songs of other days. The mothers
played with their infants, and gazed on the scene with warm
hopes of the future. The aged sat down; but they wept not.
They should soon be at rest in fairer regions, where the Great
Spirit dwelt, in a home prepared for the brave, beyond the
western skies. Braver men never lived; truer men never
drew the bow. They had courage, and fortitude, and sagacity, and perseverance, beyond most of the human race. They
shrank from no dangers, and they feared no hardships. If
they had the vices of savage life, they had the virtues also.
They were true to their country, their friends, and their homes.
If they forgave not injury, neither did they forget kindness.
If their vengeance was terrible, their fidelity and generosity
were unconquerable also. Their love, like their hate, stopped
not on this side of the grave.
But where are they? Where are the villages, and warriors, and youth; the sachems and the tribes; the hunters and
their families? They have perished. They are consumed.
The wasting pestilence has not alone done the mighty work.
No, — nor famine, nor war. There has been a mightier
power, a moral canker, which hath eaten into their heartcores - a plague, which the touch of the white man communicated - a poison which betrayed them into a lingering ruin.
The winds of the Atlantic fan not a single region, which they




464            MISCELLANEOUS WRITINGS.
may now call their own. Already the last feeble remnants of
the race are preparing for their journey beyond the Mississippi. I see them leave their miserable homes, the aged, the
helpless, the women and the warriors, " few and faint, yet
fearless still." The ashes are cold on their native hearths.
The smoke no longer curls round their lowly cabins. They
move on with a slow, unsteady step. The white man is upon
their heels, for terror or despatch; but.they heed him not.
They turn to take a last look of their deserted villages. They
cast a last glance upon the graves of their fathers. They
shed no tears; they utter no cries; they heave no groans.
There is something in their hearts, which passes speech.
There is something in their looks, not of vengeance or submission; but of hard necessity, which stifles both; which
chokes all utterance; which has no aim  or method. It is
courage absorbed in despair. They linger but for a moment.
Their look is onward. They have passed the fatal stream.
It shall never be repassed by them, -no, never. Yet there
lies not between us and them an impassable gulf. They
know and feel, that there is for them still one remove farther,
not distant nor unseen. It is to the general burial-ground of
their race.
Reason as we may, it is impossible not to read in such
a fate much, that we know not how to interpret; much of
provocation to cruel deeds and deep resentments; much of
apology for wrong and perfidy; much of pity, mingling with
indignation; much of doubt and misgiving as to the past;
much of painful recollections; much of dark forebodings.
Philosophy may tell us, that conquest in other cases has
adopted the conquered into its own bosom; and thus, at no
distant period, given them the common privileges of subjects;
-but that the red men are incapable of such an assimilation.
By their very nature and character, they can neither unite
themselves with civil institutions, nor with safety be allowed
to remain as distinct communities. Policy may suggest, that
their ferocious passions, their independent spirit, and their




HISTORY AND INFLUENCE OF THE PURITANS.    465
wandering life disdain the restraints of society; that they
will submit to superior force only, while it chains them to
the earth by its pressure. A wilderness is essential to their
habits and pursuits. They can neither be tamed, nor overawed. They subsist by war or hunting; and the game of
the forest is relinquished only for the nobler game of man.
The question, therefore, is necessarily reduced to the consideration, whether the country itself shall be abandoned by
civilized man, or maintained by his sword, as the right of the
strongest.
It may be so; perhaps, in the wisdom of Providence, it
must be so. I pretend not to comprehend, or solve, such
weighty difficulties. But neither philosophy nor policy can
shut out the feelings of nature. Humanity must continue to
sigh at the constant sacrifices of this bold, but wasting race.
And Religion, if she may not blush at the deed, must, as she
sees the successive victims depart, cling to the altar with
a drooping heart, and mourn over a destiny without hope
and without example. Let our consolation be, that our forefathers did not precipitate the evil days. Their aim was
peace; their object was the propagation of Christianity.
There is one other circumstance in the history of the Colony, which deserves attention, because it has afforded a theme
for bitter sarcasm and harsh reproach; and, as the principal
scenes of the tragedy took place on this very spot, this seems
a fit occasion to rescue the character of our forefathers from
the wanton attacks of the scoffer and the satirist. I allude to
the memorable trials for witchcraft in this town, in 1692,
which terminated in the death of many innocent persons;
partly from blind credulity, and partly from overwhelming
fraud. The whole of these proceedings exhibit melancholy
proofs of the effect of superstition in darkening the mind, and
steeling the heart against the dictates of humanity. Indeed,
nothing has ever been found more vindictive and cruel than
fanaticism, acting under the influence of preternatural terror,
and assuming to punish offences created by its own gloomy




466             MISCELLANEOUS WRITINGS.
reveries. Under such circumstances it becomes itself the
very demon, whose agency it seeks to destroy. It loses sight
of all the common principles of reason and evidence. It sees
nothing around it but victims for sacrifice. It hears nothing
but the voice of its own vengeance. It believes nothing but
what is monstrous and incredible.  It conjures up every
phantom of superstition, and shapes it to the living form of
its own passions and frenzies. In short, insanity could hardly
devise more refinements in barbarity, or profligacy execute them
with more malignant coolness. In the wretched butcheries
of these times, (for so they in fact were,) in which law and
reason were equally set at defiance, we have shocking instances of unnatural conduct. We find parents accusing
their children, children their parents, and wives their husbands, of a crime, which must bring them to the scaffold.
We find innocent persons, misled by the hope of pardon, or
wrought up to frenzy by the pretended sufferings of others,
freely accusing themselves of the same crime. We find gross
perjury practised to procure condemnations, sometimes for
self-protection, and sometimes from utter recklessness of consequences. We find even religion itself made an instrument
of vengeance. We find ministers of the gospel and judges of
the land stimulating the work of persecution, until, at last, in
its progress, its desolations reached their own firesides.1
And yet, dark and sad as is this picture, it furnishes no just
reproach upon this ancient town, beyond what belongs to it
in common with all New England, and, indeed, with all
Christendom. Thirty years before this period there had been
executions for witchcraft in this and other colonies, in Charlestown, Boston, Springfield, and Hartford. It has been justly
observed, by an intelligent historian,2 that the importance
given to the New England trials proceeded more from the
general panic than from the number executed; " more having
been put to death in a single county in England, in a short
1 2 Hutch. Hist. 16 to 60, &c.  2 2 Hutch. Hist. 15, 16.




HISTORY AND INFLUTENCE OF THE PURITANS.     467
space of time, than have suffered in all New England, from
the first settlement to the present time."
Our forefathers were sincere believers in the reality of
witchcraft; and the same opinion then prevailed throughout
all Europe. The possibility, nay, the actual existence of
a commerce with evil spirits, has had in its support the belief
of many enlightened nations of the world. Mr. Justice Black-'
stone has not scrupled to declare, that to deny it " is at once
flatly to contradict the revealed word of God in various passages both of the Old and New Testament."' I meddle not
with this matter of controversial divinity. But it is certain,
that, from the earliest times, it has been punished as a crime
in all Christian countries, and generally, as a mark of peculiar
horror and detestation, with death. Such was its punishment
in England at the time of the emigration of our ancestors;
and such it continued to be until the reign of George the
Second. Surely, when we read of convictions before so mild
and enlightened a judge as Sir Matthew  Hale, it should
excite no surprise, that our own judges were not superior to
the delusion; that they possessed not a wisdom beyond the
law, nor a power to resist the general credulity. My Lord
Coke, in the simplicity of his own belief, loads witches with
the most opprobrious epithets, as "horrible, devilish, and
wicked offenders;"12 and the Parliament of King James the
First has enumerated, in studied detail, divers modes of conjuration and enchantment, upon which it has inflicted the
punishment of death.3 Lord Bacon has lent the credit of his
own great name to preserve some of the wonders and ointments of witchcraft, with sundry wholesome restrictions upon
our belief in their efficacy.4 And we have high authority for
saying, that " it became a science, everywhere much studied
and cultivated, to distinguish a true witch by proper trials
and symptoms."5
1 4 B1. Com. 60; 3 Inst. 43.    2 3 Inst. 44.    3 Ibid. 44, 45.
4 2 Bacon's Works, 27, 45, 69.   5 7 Hume's Hist, 186.




468             MISCELLANEOUS WRITINGS.
We may lament, then, the errors of the times, which led to
these persecutions. But surely our ancestors had no special
reasons for shame in a belief, which had the universal sanction of their own and all former ages; which counted in its
train philosophers, as well as enthusiasts; which was graced
by the learning of prelates, as well as the countenance of
kings; which the law supported by its mandates, and the
purest judges felt no compunctions in enforcing. Let Witch
Hill remain forever memorable by this sad catastrophe, not
to perpetuate our dishonor, but as an affecting, enduring
proof of human infirmity; a proof, that perfect justice belongs
to one judgment-seat only, that which is linked to the throne
of God.
Time would fail me to go at large into the history of New
England, and my own strength, as well as your patience, is
far spent. Yet it should not be concealed, that we have
a proud consciousness of the spirit and principles of our
fathers throughout every period of their colonial existence.
At no time were they the advocates of passive obedience and
non-resistance to rulers, at home or abroad. At all times
they insisted, that the right of taxation and the right of representation were inseparable in a free government; and that on
that account the power of taxation was vested exclusively in
their own colonial legislature. At all times they connected
themselves, with a generous fidelity, to the fortunes of the
mother country, and shared the common burdens, and bore
the common hardships, with cheerfulness. The sons of New
England were found in her ranks in battle, foremost in
danger; but, as is not unusual in colonial service, latest in
the rewards of victory. An ante-revolutionary historian, of
unquestionable accuracy, has said, that, "in the course of
sixty years, the Province of Massachusetts hath been at
a greater expense, and hath lost more of its inhabitants, than
all the other colonies upon the continent taken together." In
the Indian wars, in the successive attacks upon the French
colonies, and in the capture of Quebec and the Canadas,




HISTORY AND INFLUENCE OF THE PURITANS.    469
they bore an honorable and important part. Even when
their first charter was vacated, their resistance to the arbitrary
measures of Sir Edmund Andros was but a prelude to the
principles and practice of the Revolution.
Of the memorable events of a later period; of the resistance to British oppression; of the glorious war of Independence; of the subsequent establishment of the national government, I need not speak. They are familiar to all of us; but
though repeated for the thousandth time, they still possess an
animating freshness. In the struggle for independence, in
which all the colonies embarked in a common cause, and all
exhibited examples of heroism and public spirit, in which all
seemed to forget themselves, and remember only their country,
it would be invidious to draw comparisons of relative merit,
since the true glory of each is in the aggregate achievements
of all. Throughout the contest, the citizens of various states
fought side by side, and shared the common toils. Their
sufferings and their fame were blended at every step in the
hour of peril, and in the hour of triumph. Let not those be
separated in death, who in life were not divided.
But I may say, that New England was not behind the
other states in zeal, in public sacrifices, in contributions of
men and money, in firmness of resolve, or in promptitude of
action. The blood of her children was freely poured out, not
only on her own soil, but in every field, where armies met
in hostile array. It flowed not on the land alone; the ocean
received it into its swelling bosom. Wherever the battle
raged, they were found; and many a gallant spirit breathed
his last breath on the deck, with his thoughts still warm with
the love of his native New England. Let a single fact concerning Massachusetts suffice to establish no mean claim to
respect. Upon the final adjustment of the accounts of the
revolutionary war, although her own soil had been but for
a short period occupied by the enemy, she had expended
eighteen millions of dollars, and the balance then due to her
exceeded one million. One state only in the Union surpassed
40




470            MISCELLANEOUS WRITINGS.
her in expenditures, and none in the balance in her favor.'
But this would give a very inadequate view of her real efforts.
Her voluntary bounties upon enlistments, her town and
county contributions, are almost incredible, when we consider
the general poverty and distress. But I forbear. Much might
be urged in her favor, much in favor of her New England
sisters, which has been sometimes remembered, only to be
forgotten. Much might be said of the long array of statesmen and divines and lawyers and physicians, of the literature
and science, which have adorned our annals. Let it pass -
let it pass. Their works shall praise them. They cannot be
concealed, whenever the deeds of our country are recited.
The writer of the Declaration of Independence is not ours;
but the author of the act itself reposes among us. He, who
was " first in war, first in peace, and first in the hearts of his
countrymen," sleeps in his native soil by the side of the beautiful Potomac. But the colony of Roger Williams, of narrow
territory, yet of ample enterprise, may boast of one, second in
excellence only to Washington.
But while we review our past history, and recollect what
we have been, and are, the duties of this day were but ill
performed, if we stopped here; if, turning from the past, and
entering on the third century of our political existence, we
gave no heed to the voice of experience, and dwelt not with
thoughts of earnest, busy solicitude upon the future. What
is to be the destiny of this Republic? In proposing this
question, I drop all thought of New England. She has
bound herself to the fate of the Union. May she be true to
it, now, and for ever; true to it, because true to herself, true
to her own principles, true to the cause of religion and liberty
throughout the world. I speak, then, of our common country,
of that blessed mother, that has nursed us in her lap, and led
us up to manhood. What is her destiny?  Whither does
the finger of fate point? Is the career, on which we have
1 2 Pitkin's Hist. of United States, p. 538.




HISTORY AND INFLUENCE OF THE PURITANS.    471
entered, to be bright with ages of onward and upward glory?
Or is our doom already recorded in the past history of the
earth, in the past lessons of the decline and fall of other
republics? If we are to flourish with a vigorous growth, it
must be, I think, by cherishing principles, institutions, pursuits, and morals, such as planted and have hitherto supported
New England. If we are to fall, may she still possess the
melancholy consolation of the Trojan patriot:
"Sat patrime Priamoque datum; si Pergama dextr&c
Defendi possent, etiam hic defensa fuissent."
I would not willingly cloud the pleasures of such a day,
even with a transient shade. I would not, that a single care
should flit across the polished brow of hope, if considerations
of the highest moment did not demand our thoughts, and
give us counsel of our duties. Who, indeed, can look around
him upon the attractions of this scene, upon the faces of the
happy and the free, the smiles of youthful beauty, the graces
of matron virtue, the strong intellect of manhood, and the
dignity of age, and hail these as the accompaniments of peace
and independence; —who can look around him, and not at
the same time feel, that change is written on all the works of
man; that the breath of a tyrant, or the fury of a corrupt
populace, may destroy, in one hour, what centuries have
slowly consolidated? It is the privilege of great minds, that
to them " coming events cast their shadows before."  We
may not possess this privilege; but it is true wisdom, not to
blind ourselves to dangers, which are in full view; and true
prudence, to guard against those, of which experience has
already admonished us.
When we reflect on what has been, and is, how is it possible not to feel a profound sense of the responsibleness of
this Republic to all future ages? What vast motives press
upon us for lofty efforts! What brilliant prospects invite our
enthusiasm! What solemn warnings at once demand our
vigilance, and moderate our confidence!




472            MISCELLANEOUS WRITINGS.
The old world has already revealed to us, in its unsealed
books, the beginning and end of all its own marvellous struggles in the cause of liberty. Greece, lovely Greece, " the land
of scholars and the nurse of arms," where sister republics, in
fair processions, chanted the praises of liberty and the gods;
where, and what is she? For two thousand years, the oppressor has bound her to the earth. Her arts are no more.
The last sad relics of her temples are but the barracks of a
ruthless soldiery; the fragments of her columns and her
palaces are in the dust, yet beautiful in ruin. She fell not,
when the mighty were upon her. Her sons were united at
Thermopylae and Marathon; and the tide of her triumph
rolled back upon the Hellespont. She was conquered by her
own factions. She fell by the hands of her own people. The
Man of Macedonia did not the work of destruction. It was
already done, by her own corruptions, banishments, and dissensions. Rome, republican Rome, whose eagles glanced in
the rising and setting sun, where, and what is she? The
Eternal City yet remains, proud even in her desolation, noble
in her decline, venerable in the majesty of religion, and calm
as in the composure of death. The malaria has but travelled
in the paths worn by her destroyers. More than eighteen
centuries have mourned over the loss of her empire. A mortal
disease was upon her vitals before Caesar had crossed the
Rubicon; and Brutus did not restore her health by the deep
probings of the senate chamber. The Goths and'Vandals
and Huns, the swarms of the North, completed only what
was already begun at home. Romans betrayed Rome. The
legions were bought and sold; but the people offered the
tribute money.
And where are the republics of modern times, which clustered round immortal Italy? Venice and Genoa exist but
in name. The Alps, indeed, look down upon the brave and
peaceful Swiss in their native fastnesses; but the guaranty
of their freedom is in their weakness, and not in their strength.
The mountains are not easily crossed, and the valleys are not




HISTORY AND INFLUENCE OF THE PURITANS.    473
easily retained. When the invader comes, he moves like an
avalanche, carrying destruction in his path. The peasantry
sinks before him. The country is too poor for plunder; and
too rough for valuable conquest. Nature presents her eternal
barriers on every side to check the wantonness of ambition;
and Switzerland remains, with her simple institutions, a military road to fairer climates, scarcely worth a permanent possession, and protected by the jealousy of her neighbors.
We stand, the latest, and, if we fail, probably the last experiment of self-government by the people. We have begun
it under circumstances of the most auspicious nature. We
are in the vigor of youth. Our growth has never been checked
by the oppressions of tyranny. Our constitutions have never
been enfeebled by the vices or luxuries of the old world.
Such as we are, we have been from the beginning; simple,
hardy, intelligent, accustomed to self-government and selfrespect.. The Atlantic rolls between us and any formidable
foe. Within our own territory, stretching through many degrees of latitude and longitude, we have the choice of many
products, and many means of independence. The government is mild. The press is free. Religion is free. Knowledge reaches, or may reach every home. What fairer prospect of success could be presented?  What means more
adequate to accomplish the sublime end?  What more is
necessary than for the people to preserve what they themselves have created?
Already has the age caught the spirit of our institutions.
It has already ascended the Andes, and snuffed the breezes of
both oceans. It has infused itself into the life-blood of Europe, and warmed the sunny plains of France, and the low
lands of Holland. It has touched the philosophy of Germany
and the North; and, moving onward to the South, has opened
to Greece the lessons of her better days.
Can it be that America, under such circumstances, can
betray herself? that she is to be added to the catalogue of
republics, the inscription upon whose ruins is, " They were,
40*




474             MISCELLANEOUS WRITINGS.
but they are not"?  Forbid it, my countrymen; forbid it,
Heaven.
I call upon you, Fathers, by the shades of your ancestors,
by the dear ashes which repose in this precious soil, by all
you are, and all you hope to be; resist every project of disunion, resist every encroachment upon your liberties, resist
every attempt to fetter your consciences, or smother your
public schools, or extinguish your system of public instruction.
I call upon you, Mothers, by that which never fails in
-woman, the love of your offspring; teach them, as they climb
your knees, or lean on your bosoms, the blessings of liberty.
Swear them at the altar, as with their baptismal vows, to be
true to their country, and never to forget or forsake her.
I call upon you, Young Men, to remember whose sons you
are; whose inheritance you possess. Life can never be too
short, which brings nothing but disgrace and oppression.
Death never comes too soon, if necessary in defence of the
liberties of your country.
I call upon you, Old Men, for your counsels, and your
prayers, and your benedictions.  May not your gray hairs
go down in sorrow to the grave, with the recollection, that
you have lived in vain. May not your last sun' sink in the
west upon a nation of slaves.
No - I read in the destiny of my country far better hopes,
far brighter visions. We, who are now assembled here, must
soon be gathered to the congregation of other days. The
time of our departure is at hand, to make way for our children upon the theatre of life. May God speed them and theirs.
May he, who, at the distance of another century, shall stand
here to celebrate this day, still look round upon a free, happy,
and virtuous people. May he have reason to exult, as we do.
May he, with all the enthusiasm of truth, as well as of poetry,
exclaim, that here is still his country,'Zealous, yet modest; innocent though free;
Patient of toil; serene amidst alarms;
Inflexible in faith; invincible in arms."




DEVELOPMENTS OF SCIENCE AND MECHANIC ART.
A DISCOURSE DELIVERED BEFORE THE BOSTON MECHANICS' INSTITUTE,
AT THE OPENING OF THEIR ANNUAL COURSE OF LECTURES, NOVEMBER, 1829.
MucH has been said respecting the spirit of our age, and
the improvements by which it is characterized. Many learned
discussions have been presented to the public, with a view to
illustrate this topic; to open the nature and extent of our
attainments; to contrast them with those of former times;
and thus to vindicate, nay more, to demonstrate our superiority over all our predecessors, if not in genius, at least in
the perfection and variety of its fruits. There is, doubtless,
much in such a review to gratify our pride, national, professional, and personal.  But its value in this respect, if we
stop here, is but of doubtful, or, at most, of subordinate importance.  It is not the sum of our attainments, but the
actual augmentation of human happiness and human virtue
thereby, of which we may justly be proud. If every new
acquisition operates as a moving spirit upon the still depths
of our minds, to awaken new enterprise and activity, to
warm our hearts to new affection and kindness to our race,
and to enable us to add something to the capital stock of
human enjoyment, we may well indulge in self-congratulation. It has been said that he who makes two blades of
grass grow where only one grew before, deserves to be
reckoned among the benefactors of mankind. And it has
been justly said; because he has added so much means to
the support of life, and thus promoted the effective power




476            MISCELLANEOUS WRITINGS.
and prosperity of the whole community. The true test of
the value of all attainments is their real utility.
I do not mean by this remark to suggest that nothing is to
be esteemed valuable except its utility can be traced directly
home to some immediate benefit, in visible operation, as an
effect from a cause. Far otherwise. There are many employments whose chief object seems little connected with
any great ultimate benefit, which yet administer widely,
though indirectly, to the substantial good of society. There
are many studies which seem remote from any direct utility,
which yet, like the thousand hidden springs which form the
sources and streams of rivers, pour in their contributions to
augment the constantly increasing current of public wealth
and happiness. We must not, therefore, when we examine
an art, or an invention, a book, or a building, a study, or a
curiosity, measure its value by a narrow rule. We must not
ask ourselves, whether we could do without it; whether it be
indispensable to our wants; or whether, though missed, it
could yet be spared. But the true question in such cases
ought to be whether, in the actual structure of society, it
gratifies a reasonable desire, imparts an innocent pleasure,
strengthens a moral feeling, elevates -a single virtue, or
chastens or refines the varied intercourse of life. If it does,
it is still useful in the truest sense of the term, although it
may not seem directly to feed the hungry, cure the sick,
administer consolation to the afflicted, or even remove the
irksome doubt of a poor litigant, groping blindfold through
the dark passages of the law.
It is not easy, indeed, to name many pursuits of which
the inutility is so clearly made out that they may be parted
with without regret, or without disturbing the good order and
arrangements of society. Some that at a short sight seem,
if not frivolous, at least unnecessary, to men of narrow
capacities, will be found, on a larger survey, to be connected
with the most important interests. The fine arts, for instance,
painting, music, poetry, sculpture, architecture, seem almost




DEVELOPMENTS OF SCIENCE AND MECHANIC ART.   477
the necessary accompaniments of a state of high civilization.
They are not only the grace and ornament of society, but
they are intimately connected with its solid comforts. If
they did no more than gratify our taste, increase our circle of
innocent enjoyment, warm our imaginations, or refine our
feelings, they might fairly be deemed public blessings. But
who is so careless as not to perceive that they not only give
encouragement to men of genius, but employment to whole
classes in the subordinate arts? They not only create a
demand for labor; but make that very labor a means of subsistence to many, who must otherwise be idle and indolent,
or, by pressing upon other business, sink the compensation
for labor by a ruinous competition to its minimum price.
How many thousands are employed upon a single block of
marble before, under the forming hand of the artist, it breathes
in sculptured life! before it meets us in the surpassing beauty
of a Venus, or the startling indignation of an Apollo! Our
granite would have slumbered forever in its quarries if architecture had not, under the guidance of taste, taught us to
rear the dome, and the temple, the church of religion, and
the hall of legislation, the column of triumph, and the obelisk
of sorrow. To what an amazing extent are the daily operations of the press! With how many arts, with how much
commerce, with what various manufactures, is it combined!
The paper may be made of the linen of Italy, and the cotton
of Carolina, or Egypt, or the Indies; the type and ink of the
products of various climes; and the text must be composed,
and the sheets worked off; by the care and diligence of many
minds. And yet, if no books were to be printed, or no newspaper or pamphlet were to be struck off, but what were indispensable; if we were to deem all classical learning useless;
and all poetry, and fiction, and dissertation, and essay, and
history, a sad abuse of time and labor and ingenuity, because
we could do without them, and because they did not plant
our field's, or turn our mills, or sail our ships; I fear that the
race of authors would soon become extinct; and the press,




478             MISCELLANEOUS WRITINGS.
busy as it now is, with its myriads, would sink back into the
silence of the days of Faustus, and require no aid from the
supernatural arts of his suspected coadjutor.  Sure I am,
that the power-press of your own Treadwell, that beautiful
specimen of skill and ingenuity, would be powerless, and no
longer in its magical works delight us in our morning search,
or in our evening lucubrations.
I have made these suggestions, not so much as appropriate
to the objects which I have in view in this address, as to
guard against the supposition in what follows, that the liberal
arts are not worthy of our most intense admiration and
respect.
If I were called upon to state that which, upon the whole,
is the most striking characteristic of our age, that which in
the largest extent exemplifies its spirit, I should unhesitatingly
answer, that it is the superior attachment to practical science
over merely speculative science. Into whatever department
of knowledge we may search, we shall find that the almost
uniform tendency of the last fifty years has been to deal less
and less with theory, and to confine the attention more and
more to practical results. There was a period when metaphysical inquiries constituted the principal delight of scholars
and philosophers; and endless were the controversies and the
subtleties about which they distracted themselves and their
followers. The works of Aristotle, one of the greatest geniuses of all antiquity, were studied with a diligence which
will hardly be believed in our day; and exerted an influence
over the minds of men almost down to the close of the seventeenth century, as wonderful as it was universal. He was
read, not in what would now be deemed most important in
his researches into natural history, and the phenomena of the
external world, or in his dissertations on politics, and government, and literature; but in his metaphysics, and endless
inquiries into mind, and spirit, and essences, and forms, and
categories, and syllogisms.
Lord Bacon, two centuries ago, in some most profound




DEVELOPMENTS OF SCIENCE AND MECHANIC ART.   479
discourses, exposed the absurdity of the existing system of
study, and of its unsatisfactory aims and results. He vindicated the necessity of inquiring into mental, as well as natural
phenomena, by other means; by what is called the method of
induction, that is, by a minute examination of facts, or what
may properly be called experimental philosophy. This, in his
judgment, was the only safe and sure road to the attainment
of science; and, by subjecting every theory to the severe test
of facts, would save a useless consumption of time and thought
upon vague and visionary projects.
It may seem strange, that such wise counsels should not
have been listened to with immediate, if not universal approbation.  The progress, however, even of the most salutary
truths is slow, when there are no artificial obstacles in the
way.  But when men's minds are preoccupied by systems
and pursuits, which have received the sanction of many generations, every effort to overcome errors, is like the effort to
carry an enemy's fortress. It can rarely be accomplished by
storm. It must be subdued by patient mining, by a gradual
destruction of outposts, and by advances under cover of powerful batteries. Lord Bacon's admonitions can scarcely be said
to have gained any general credence until the close of the
seventeenth century; and their triumphant adoption was
reserved as the peculiar glory of our own day.
It is to this cause, that we are mainly to attribute the com.
paratively slight attention first paid to discoveries, which have
since become some of the most productive sources, not only
of individual opulence, but, in a large sense, of national wealth.
The history of the steam engine is full of instruction upon
this subject. The Marquis of Worcester, early in the reign
of Charles II. (1655), first directed the attention of the public
to the expansive power of steam, when used in a close vessel;
and of its capacity to be employed as a moving power in
machinery. The suggestion slept almost without notice, until
about the year 1698, when Captain Savary, a man of singular
ingenuity, constructed an apparatus, for which he obtained a




480                MISCELLANEOUS WRITINGS.
patent, to apply it to practical purposes. The invention of a
safety-valve soon afterwards followed; and that again was
succeeded by the use of a close-fitted piston, working in a
cylinder.   Still, however, the engine was comparatively of
little use, until Mr. Watt, a half century afterwards, effected
the grand improvement of condensing the steam in a separate
vessel, communicating by a pipe with the cylinder; and Mr.
Washbrough, in 1778, by the application of it to produce
a rotatory motion, opened the most extensive use of it for
mechanical purposes.
It was in reference to the astonishing impulse thus given to
mechanical pursuits, that Dr. Darwin, more than forty years
ago, broke out in strains equally remarkable for their poetical
enthusiasm, and prophetic truth, and predicted the future
triumph of the steam engine.
"Soon shall thy arm, unconquered steam, afar
Drag the slow barge, or drive the rapid car;
Or on wide waving wings expanded bear
The flying chariot through the fields of air;Fair crews triumphant, leaning from above,
Shall wave their fluttering kerchiefs, as they move,
Or warrior bands alarm the gaping crowd,
And armies shrink beneath the shadowy cloud."
What would he have said if he had but lived to witness the
immortal invention of Fulton, which seems almost to move
in the air, and to fly on the wings of the wind? And yet how
slowly did this enterprise obtain the public favor! I myself
have heard the illustrious inventor relate, in an animated and
affecting manner, the history of his labors and discouragements.  When (said he) I was building my first steamboat
at New York, the project was viewed by the public either
with indifference, or with contempt, as a visionary scheme.
My friends, indeed, were civil, but they were shy.  They
listened with patience to my explanations, but with a settled
cast of incredulity on their countenances. I felt the full force
of the lamentation of the poet,
"Truths would you teach, or save a sinking land?
All fear, none aid you, and few understand."




DEVELOPMENTS OF SCIENCE AND MECHANIC ART.  481
As I had occasion to pass daily to and from the building.
yard, while my boat was in progress, I have often loitered
unknown near the idle groups of strangers, gathering in little
circles, and heard various inquiries as to the object of this new
vehicle. The language was uniformly that of scorn, or sneer,
or ridicule. The loud laugh often rose at my expense; the
dry jest; the wise calculation of losses and expenditures; the
dull, but endless, repetition of the Fulton Folly. Never did
a single encouraging remark, a bright hope, or a warm wish,
cross my path. Silence itself was but politeness, veiling its
doubts, or hiding its reproaches. At length the day arrived,
when the experiment was to be put into operation. To me
it was a most trying and interesting occasion. I invited many
friends to go on board to witness the first successful trip.
Many of them did me the favor to attend, as a matter of
personal respect; but it was manifest, that they did it with
reluctance, fearing to be the partners of my mortification, and
not of my triumph. I was well aware, that in my case there
were many reasons to doubt of my own success.  The
machinery was new and ill made; many parts of it were
constructed by mechanics unaccustomed to such work; and
unexpected difficulties might reasonably be presumed to pre.
sent themselves from other causes. The moment arrived, in
which the word was to be given for the vessel to move. My
friends were in groups on the deck.  There was anxiety,
mixed with fear, among them. They were silent,. and sad,
and weary. I read in their looks nothing but disaster, and
almost repented of my efforts. The signal was given, and
the boat moved on a short distance, and then stopped, and
became immovable. To the silence of the preceding moment
now succeeded murmurs of discontent, and agitations, and.
whispers, and shrugs. I could hear distinctly repeated, " 1
told you it would be so - it is a foolish scheme - I wish we
were well out of it." I elevated myself upon a platform, and
addressed the assembly. I stated, that I Iknew not what was
the matter; but if they would be quiet, and indulge me for
41




482             MISCELLANEOUS WRITINGS.
a half hour, I would either go on, or abandon the voyage for
that time. This short respite was conceded without objection.
I went below, examined the machinery, and discovered that
the cause was a slight mal-adjustment of some of the work.
In a short period it was obviated. The boat was again put
in motion. She continued to move on. All were still incredulous. None seemed willing to trust the evidence of their
own senses. We left the fair city of New York; we passed
through the romantic and ever-varying scenery of the highlands; we descried the clustering houses of Albany; we
reached its shores; and then, even then, when all seemed
achieved, I was the victim of disappointment. Imagination
superseded the influence of fact. It was then doubted, if it
could be done again; or if done, it was doubted if it could be
made of any great value.
Such was the history of the first experiment, as it fell, not
in the very language which I have used, but in its substance,
from the lips of the inventor. He did not live, indeed, to
enjoy the full glory of his invention. It is mournful to say,
that attempts were made to rob him, in the first place, of the
merit of his invention, and, next;, of its fruits. He fell a victim
to his efforts to sustain his title to both. When already his
invention had covered the waters of the Hudson, he seemed
little satisfied with the results, and looked forward to far more
extensive operations. My ultimate triumph, he used to say,
my ultimate triumph will be on the Mississippi. I know,
indeed, that, even now, it is deemed impossible by many,
that the difficulties of its navigation can be overcome. But
I am confident of success. I may not live to see it; but the
Mississippi will yet be covered by steamboats; and thus an
entire change be wrought in the course of the internal navigation and commerce of our country.
And it has been wrought. And the steamboat, looking to
its effects upon commerce and navigation, to the combined
influences of facilities of travelling and facilities of trade, of
rapid circulation of news, and still more rapid circulation of




DEVELOPMENTS OF SCIENCE AND MECHANIC ART.   483
pleasures and products, seems destined to be numbered among
the noblest benefactions to the human race.
I have passed aside from my principal purpose, to give, in
this history of the steamboat, a slight illustration of the slow
progress of inventions. It may not be unacceptable, as a
tribute to the memory of a man, who united in himself a great
love of science with an inextinguishable desire to render it
subservient to the practical business of life.
But, perhaps, the science of chemistry affords as striking
an instance as any which can be adduced, of the value of
Lord Bacon's maxims, and of the paramount importance of
facts over mere speculative philosophy. It was formerly an
occult science, full of mysteries and unedifying processes,
abounding in theories, and scarcely reducible to any rational
principles. It is now in the highest sense entitled to the
appellation of a science. The laws of chemical action have
been examined and ascertained with great accuracy, and can
now be demonstrated with as much clearness and facility, as
any of the laws which belong to mechanical philosophy. It
has become eminently a practical science; and its beneficial
effects are felt in almost every department of life. The
apothecary's shop no longer abounds with villanous compounds and nostrums, the disgrace of the art. Chemistry
has largely administered to the convenience as well as the
efficacy, of medicines, by ascertaining their qualities and
component parts, by removing nauseous substances, simplifying processes, and purifying the raw materials. It has
secured the lives of thousands by its wonderful safety-lamps,
which prevent explosions from the invisible, but fatal firedamps of mines. It lights our streets and theatres by its
beautiful gas, extracted from coal. It enters our dye-houses,
and teaches us how to fix and discharge colors, to combine
and to separate them; to bleach the brown fibre, and impart
the never-fading tint. It discloses the nature and properties
of light and heat, of air and water, of the products of the
vegetable and animal kingdoms, of earths, and alkalies, and




484            MISCELLANEOUS WRITINGS.
acids, and minerals, and metals. And, though we have not
as yet discovered by it the philosopher's stone, or learned how
to transmute all other substances into gold; we have gained
by it a much more valuable secret, the art of improving our
agriculture, perfecting our manufactures, and multiplying all
our comforts, by giving new power to all the arts of life, and
adding new vigor to home-bred industry. It has indeed
conferred benefits, where they have been least expected. By
expounding the origin and causes of ignesfatui, it has put to
flight the whole host of goblins, and imps, and fairies, and
sprites, that inhabited our low grounds and wastes, and required some holy incantation to lay them, in the good old
days of superstition, and omens, and death-watches, and
ghosts, that vanished at the crowing of the cock. It may
not, indeed, be said to have given much aid to the law, except when some luckless inventor has been driven into a
tedious lawsuit by an infringement of his patent, and has
found his money melt away under its dissolving power.
Half a century ago the composition of the atmosphere and
ocean were unknown to philosophy. Theb identity' of the
electric fluid and lightning was scarcely established. The
wonders disclosed by the galvanic battery had not even entered into the imagination of man.
It is unnecessary for me to trace the causes, which gradually led to these changes in the objects and pursuits of science.
For a long period after the revival of letters, the minds of
educated men were almost wholly engrossed by classical
learning, and philology, and criticism, and dogmatical theology, and endless commentaries upon scanty texts, both in
law and divinity. The study of pure and mixed mathematics
succeeded; and astronomy, as it deserved, absorbed all the
attention and genius which were not devoted to literature.
But scholars of all sorts, by general consent, looked with
indifference or disdain upon the common arts of life, and felt
it to be a reproach to mingle in the business of the artisan.
One would suppose, that the alliance between science and




DEVELOPMENTS OF SCIENCE AND MECHANIC ART.  485
the arts was so natural and immediate, that little influence
would be necessary to bring about their union. But the
laboratory and the workshop, the study of the gometrician
and the shed of the machinist, were for ages at almost immeasurable distances from each other; and the pathways
between them were few, and little frequented.
It was not until some fortunate discoveries in the arts had
led to opulence, that scientific men began to surrender their
pride, and to devote themselves practically to the improvement of the arts. The first great step in modern science was
to enter the workshop, and superintend its operations, and
analyze and explain its principles. And the benefits derived
from this connection have already been incalculable both to
art and science. Each has been astonishingly improved by
the other; and a hint derived from one has often led on to
a train of inventions and discoveries, the future results of
which are beyond all human power to measure. Thus, dignity and importance have been added to both. The manufacturer, the machinist, the chemist, the engineer, who is
eminent in his art, may now place himself by the side of the
scholar, and the mathematician, and the philosopher, and find
no churlish claim for precedency put in. His rank in society,
with reference either to the value of the products of his skill,
or the depth of his genius, sinks him not behind the foremost
of those, who strive for the first literary distinctions. This
fortunate change in the public opinion, which has made it
not only profitable, but honorable, to pursue the mechanical
arts, is already working deeply into all the elements of modern society. It has already accomplished, what it is scarcely
a figure of speech to call, miracles in the arts. Who is there,
that would not desire to rival, if he does not envy, the inventions of Watt, of Arkwright, and Fulton? Who would ask
for a fairer reputation, or loftier or more enduring fame, than
belongs to them? And yet we have but just entered on the
threshold of the results, to which their labors must lead future
generations. We can scarcely imagine the number of minds,
41 *




486             MISCELLANEOUS WRITINGS.
which have been already stimulated to the pursuit of practical science by their successful example. Whichever way
we turn, we may see minds of the first class diverted from
the established professions of law, physic, and divinity, to
become the votaries, nay, the enthusiastic votaries, of the
arts. And we are beginning to realize the first effects of this
intense application and appropriation of the genius of our
age, in simultaneous and elegant inventions in various arts.
It is true, in the general progress of society, that art commonly precedes science. The savage first constructs his hut,
prepares his food, fashions his weapons of defence, and multiplies his power, by the application of the rudest materials.
His wants being supplied, he may next dream of luxuries.
But the road lies open to him, not by the investigation of
principles, but by the application of manual dexterity and
steady labor to acquire them. And this, for the most part,
continues, or rather has continued, to be the order of things,
until very late stages of civilization and refinement.  At
present, this order is almost entirely reversed. It may now
be said with truth, that, in a general view, science precedes
art; that is, the improvements which are made in art, arise
more often from an exact investigation of principles, than
from bare experiments, or accidental combinations. Principles suggest the experiment, rather than experiment the principles. In the most important branches of manufactures,
where skill is so constantly in demand, and economy in operation is so indispensable, and competition is universal, there
is now a perpetual tasking of the wit of man to invent some
cheaper, thriftier, or neater combination. Something to increase the velocity and uniformity of motion, the delicacy
and certainty of spinning, the beauty or fineness of fabrics,
the simplicity or directness in the application of power, or
something to ascertain and separate the worthless from the
valuable in materials, is the ambition of a thousand minds at
the same instant; and the project holds out ample rewards to
the fortunate discoverer. The result is, that the discovery is




DEVELOPMENTS OF SCIENCE AND MECHANIC ART.  487
often simultaneously made by different minds at great distances, and without the slightest communication with each
other. At other times, different inventions are at the same
moment employed, and work out with rival skill the same purposes by opposite means. In this way, and especially in manufactures, the most perfect existing machinery is perpetually
in danger of becoming useless, or at least unprofitable, by the
introduction of a single improvement, which gives it a superiority of one per centum upon the capital employed. An
instance, illustrative of these remarks, occurred in the course
of my own official duties, in a suit for the infringement of
a patent right. A beautiful improvement had been made in
the double-speeder of the cotton-spinning machine, by one of
our ingenious countrymen. The originality of the invention
was established by the most satisfactory evidence. The
defendant, however, called an Englishman, as a witness, who
had been but a short time in the country, and who testified
most explicitly to the existence of a like invention in the
improved machinery in England. Against such positive
proof there was much difficulty in proceeding. The testimony, though doubted, could not be discredited; and the
trial was postponed to another term, for the purpose of procuring evidence to rebut it. An agent was despatched to
England, for this and other objects; and, upon his return,
the plaintiff was content to become nonsuited. There was
no doubt that the invention'here was without any suspicion
of its existence elsewhere; but the genius of each country,
almost at the same moment, accomplished independently the
same achievement.
I have introduced these considerations to the view of those
who are engaged in the arts, and especially of those, whose
studies this society is designed to patronize, for the purpose
of leading them to the reflection, that, in the present state of
things, it is no longer safe to be ignorant; and that mere
dexterity and mechanical adroitness, expertness of hand, or
steadiness of labor, are not alone sufficient to guarantee to the




488             MISCELLANEOUS WRITINGS.
individual a successful issue in his business. Science is becoming almost indispensable, in order to master improvements as they occur, and to keep up, in some measure, with
the skill of the age. It will otherwise happen, that a mechanic, by the time he has arrived midway in life, will find
himself superseded by those, who, though much younger,
have begun life under more favorable auspices. But upon
this I may have occasion to enlarge a little more hereafter.
I have already, spoken of the advantages resulting from
scientific men's becoming familiar with the workshop, and
the operations of art. But a far more important object, and
the second great step in improvement, is to elevate mechanics and artisans to the rank of scientific inquirers.
It is singular, that no attempt was ever made to provide
systematically for such an object, until a period so recent, that
it seems but an affair of yesterday. The truth is so obvious,
that he, who is engaged in the practice of an art, must, with
equal advantages, be far better qualified to improve and
perfect its operations, than he, who merely theorizes, without
any knowledge of practical difficulties, that it is matter of
surprise, that it should have been so long overlooked. The
origin and history of Mechanics' Institutions were brought
before you, on the first opening of your own Institution, with
so much fulness and accuracy, by the learned gentleman who
addressed you on that occasion, that I may well be spared
any effort to retouch, what he has so faithfully delineated.
Until the nineteenth century, no one thought of a system of
scientific instruction, much less of mutual instruction, for
those who were to be bred in the arts. These institutions
began, as you know, under the auspices of Professor Anderson, at Glasgow, and so slowly worked their way into public
favor, that, ten years ago, they were unknxown in that city,
which boasts herself the modern Athens; and, seven years
ago, all the influence and reputation of Dr. Birkbeck were
requisite to introduce them into the reluctant circles of
London.




DEVELOPMENTS OF SCIENCE AND MECHANIC ART.  489
I look upon this, as a new era in the history of science;
and it may be safely predicted, that these establishments are
destined hereafter to work more important changes in the
structure of society, and in the improvement of the arts, than
any single event, which has occurred since the invention of
printing.
What I propose in the residue of this discourse is, to offer
some considerations in vindication of this opinion, and also
some considerations by way of encouragement to those, who,
as mechanics and artisans, are invited to devote themselves
to the pursuit of liberal science.
And, in the first place, I might remark that genius and
talent are limited to no rank or condition of life. They have
been distributed by the bounty of Providence, with an equal
hand through every class of society. They are among those
gifts, which poverty cannot destroy, or wealth confer; which
spring up in the midst of discouragements and difficulties,
and, like the power of steam, acquire new elasticity by pressure; which ripen in the silence of solitude, as well as in the
crowded walks of society; which the cottage may nourish
into a more healthy strength, than even the palace or the
throne. The most formidable enemy to genius is not labor,
but indolence; want of interest and excitement; want of
motive to warm, and of object to accomplish; ignorance of
means, leading to indifference to ends. Hence it is, that the
very highest and the very lowest orders of society often present the same mental phenomena - a fixed and languishing
disease of the intellectual powers, where curiosity wastes
itself in trifles, and a cold listlessness, brooding over the
thoughts, lets fall a preternatural stupor.  Their misfortune
is that, so beautifully touched by the poet,
"But knowledge to their eyes her ample age,
Rich with the spoils of time, did ne'er unroll."
I might remark, in the next place, that the rewards of
science are most ample, whether they be viewed in reference




490             MISCELLANEOUS WRITINGS.
to personal enjoyment, to rank in society, or to substantial
wealth. It is one of the wise dispensations of Providence,
that knowledge should not only confer power, but should also
confer happiness. Every new attainment is a new source of
pleasure; and thus the desire for it increases as fast as it is
gratified. It not only widens the sphere of our thoughts, but
it elevates them, and thus gives them a livelier moral action.
When one has seen an apple fall from a tree, and is told, for
the first time, that its fall is regulated by the law of gravitation, the simplicity of the truth may scarcely awaken his
curiosity. When he is told, that the same law regulates the
plumb line, and enables him unerringly to erect his house in
the true perpendicular, he perceives, with pleasure, a new
application of it. When he is further told, that there is a
constantly increasing rapidity in every descending body, by
the same law, so that it falls in the second instant double the
space it does in the first; and that the whole doctrine of projectiles, both in nature and art, depends upon it; that it
governs the flow of rivers, and the fall of cataracts, and the
gentle rains, and the gentler dews, and the invisible air; that it
guides the motion of the water-mill, the aim of gunnery, and
the operations of the steam engine;- he cannot but awaken
to some emotions of admiration. But when he has been
taught, that the same law regulates the ebb and flow of the
tide, the motions of the earth, and the planets, and the sun,
and the stars, and holds them in their orbits, and binds them
in an eternally revolving harmony; that to this he owes the
return of day and night, the changes of the seasons, seed-time
and harvest, summer and winter; if he be any thing, but a
clod of the valley, how can he but exclaim, in wonder and
amazement,
"These, as they change, Almighty Father, these
Are but the varied God. The rolling year
Is full of thee."
What can tend more to exalt the dignity of our nature,
than the consideration, that the mind of man has not only




DEVELOPMENTS OF SCIENCE AND MECHANIC ART.  491
been able to grasp and demonstrate this law, but to apply it
to the solution of an infinite number of questions, apparently
beyond the reach of his boldest efforts? He has been able to
ascertain the motions and size of the whole planetary system;
to calculate every perturbation, arising from the constant, but
changeful influence of mutual gravitation; to ascertain the
paths of comets; to calculate eclipses with unerring certainty;
and to foretell the very minute, nay, the very instant, of occultation of the most distant satellites. He can thus read, through
the past, as well as the future, all the various states of the
heavens for thousands of years. He has been able to apply
this knowledge to the noblest purposes; and the mariner, by
its aid, descries his home port with the same ease, on the dark
bosom of the ocean, as he points it out from the little hill-top,
that overlooks his native village.
If we pass from the contemplation of this sublime law of
nature to others, which belong to animal or vegetable life, to
those, which form and preserve the treasures of the earth, and
of the sea, even down to those, which regulate the minutest
particles of matter, the light of science will enable us every
where to behold new and increasing wonders, and to remark
the operations of infinite power, forever varied, and yet forever the same. It is impossible, that the mere perception of
such laws should not afford pleasure to every rational mind.
But when we further learn, that these very laws are made
continually subservient to the use of man; that, by the knowledge of them, he is enabled to create power, and perfect
mechanical operations; that he can make the winds and the
waves, the earth and the air, heat and cold, the ductile metals
and the solid rocks, the fragile flower and the towering forest,
minister to his wants, his refinements, and his enterprise; we
are compelled to admit, that the capacity to trace back such
effects to their causes must elevate, and enlarge, and invigorate the understanding.
There is also real dignity, as well as delight, in such studies;
and whenever they shall become the general accompaniment




492             MISCELLANEOUS WRITINGS.
of mechanical employments, they must work a most beneficial change in the general structure of society. The arts of
life are now so various and important, so intimately connected
with national prosperity and individual comfort, that, for the
future, a very large proportion of the population of every
civilized country must be engaged in them. The time is not
far distant, when the mechanic and manufacturing interest
will form the great balancing power, between the conflicting
interests of commerce and agriculture; between the learned
professions and the mere proprietors of capital; between the
day laborer and the unoccupied man of ease. In proportion
to: the degree of the knowledge, which shall belong to this collective interest, in proportion as its industry shall be combined with science, will be its influence on the wellbeing and
safety of society. It is of the first importance, therefore, that
education should here exert its most extensive power; and,
by elevating the morals, as well as stimulating the enterprise
of artisans, give a triumph to intellect over mere physical
force; and thus secure one of the most dangerous passes of
social life against the irruptions of ignorance and popular
fury. It is a truth not always sufficiently felt, that science,
while it elevates the objects of desire, has, in the same proportion, a tendency to restrain the outbreakings of the bad
passions of mankind.
I might remark, in the next place, that the pursuit of practical science is not only a source of inexhaustible pleasure,
opening new avenues to rank and reputation; but it is, at
the same time, one of the surest foundations of opulence.
Mere mechanical labor, from the perpetual competition arising
from an increasing population, has a natural tendency to
descend in the scale of compensation.  But this effect is
astonishingly increased by the constant application of machinery, as a substitute for the labor of man. The perfection
of machinery has, in this manner, at times, thrown whole
classes of artisans out of employment, and compelled them
to resort to new pursuits for support. Mere manual skill and




DEVELOPMENTS OF SCIENCE AND MECHANIC ART.  493
dexterity are nothing, when put in competition with the
regularity, rapidity, and economy of machinery, working
under the guidance of science. Now, it must be obvious,
that in proportion as an artisan possesses science, will be his
facility in passing from one branch of an art to another; and
his ability to command a higher price for his services. His
capacity, too, for adopting improvements, and keeping pace
with the genius of -the age, will (as has been already hinted)
be thus immeasurably increased. So that, in the narrowest
and most limited view, there is a positive certainty of gain,
by understanding the scientific principles of the art, which we
profess.
But this would be a very inadequate view of the benefits
arising from  this source.  It is the power of science, in
awakening the dormant energy of genius; in pointing out to
it the true means to arrive at great ends; in preventing it
from being wasted in visionary schemes, or retarded by clumsy
processes; in short, it is the power of science, in suggesting
the first hint, or striking out the first spark, or directing the
unsteady aim, or removing the intermediate obstacles, that
constitutes its true value, and perhaps its noblest excellence.
Even after the first step is taken, and the first development
of inventive genius assumes shape and body, how many
obstacles are to be overcome; how many unexpected difficulties are to be met; how many toilsome days and nights
are to be consumed, in nice adjustments and minute altera.
tions! It is here, that science may be said to foster and
nourish genius; to administer to its wants, and soothe its
disquietudes, and animate its inquiries. What logarithms
are to the mathematician, knowledge of principles is to the
mechanic. It not only abridges the processes of computation,
and thus diminishes labor, but it puts him in possession of
means and computations, otherwise absolutely beyond the
reach of human calculation. After Fulton had securely
achieved, in his own opinion, the invention of the steamboat, months were consumed by him, as I learned from his
42




494             MISCELLANEOUS WRITINGS.
own lips, in making the necessary calculations upon the
resistance of fluids, in order to ascertain what was the best
form for the boat, to ensure a successful issue to his experiment. I myself, in the course of my judicial life, have had
occasion to learn from witnesses the origin, and history, and
gradual formation, of two of the most elegant inventions in
our own country; and, in both instances, the original machine,
rude, and unsightly, and cumbrous enough, was brought into
court, as the best proof of the first sketch, compared with the
last labors of the admirable inventors. I have not the least
hesitation in saying, that, if either of those extraordinary
minds had been originally instructed in the principles of
mechanical science, half their labors would have been saved.
Sure I am, that one of them would not, with his later acquirements in science, have laid aside, for a long time, the creation
of his own genius, as if in despair, that it could ever attain
maturity.
I allude to the card machine of Whittemore, and the nail
machine of Perkins. Of the former it would not become me
to speak in terms of confident praise, from my own want of
the proper knowledge of machinery. But I must confess,
that, when I first saw it, it seemed to me to be almost an
intelligent being, and to do every thing but speak; and whether considered with reference to the simplicity of its means,
the accuracy and variety of its operations, or its almost universal capacity for common use, it deserves the highest commendation. Other inventions have since somewhat narrowed
the sphere of its operations, and made its celebrity less felt.
But I may quote the remark of one of our most ingenious
countrymen, who, to a question put to him, what, after two
months' examination of the patent office at Washington, and
his own surveys elsewhere, appeared to him the most interesting of American inventions, unhesitatingly answered, Whittemore's card machine. The remark was made by Perkins;
and perhaps no person, but himself, would have thought, that
his own nail machine, which with its toggle-joint consumes




DEVELOPMENTS OF SCIENCE AND MECHANIC ART.  495
bars of iron, and returns them in nails, with the tranquil
grandeur of a giant, conscious of superior power, might not
have borne the most strenuous rivalry.
And this leads me to remark, in the next place, as matter
of pride, as well as of encouragement, that to mechanics
themselves we are indebted for some of the most useful and
profitable inventions of the age. I have already adverted to
the perfection of the steam engine by Watt. The cottonmachine of Arkwright constitutes an era in inventions, and
has already thrown back upon Asia all her various fabrics,
and compelled her to yield up to European skill the cheapest
labor of her cheapest population. The inventions of Wedgewood have led to almost as striking a rivalry of the pottery
and wares of the East. The cotton-gin, which has given to
the cotton-growing States of the south their present great staple, is the production of the genius of Whitney.  In the year
1794, the Carolinas and Georgia were scarcely known to our
ablest diplomatists, as cultivators of the plant; so obscure
and unimportant were its results. The invention of Whitney
at once gave it the highest value; and laid the broad foundation of their present wealth and prosperity. At this very
moment, New England annually consumes, in her manufactories, more than one fifth part of the eight hundred and fifty
thousand bales of cotton, the annual produce of their soil;
which, but for him, would have had no existence. What
wonders were accomplished by the self-taught architect,
Brindley, himself a humble mill-wright; and yet of such vast
compass of thought, that to him rivers seemed of no use, but
to feed navigable canals, and the ocean itself but a large
reservoir for water-works! What effects is our own Perkins
producing, by one only of his numerous inventions, - the art
of softening steel, so as to admit of engraving, and then hardening it again, so as to retain the fine point and polish of
copper-plate, without the constant wear of the latter, and its
consequent tendency to depreciation!  He has enabled us,
as it were to stereotype, and multiply, to an almost incalcu



496             MISCELLANEOUS WRITINGS.
lable extent, the most beautiful specimens of some of the fine
arts; and cheapen them, so as to bring them within the
reach of the most moderate fortunes. Many other illustrious
instances of genius, successfully applied to the improvement
of the arts, might be selected from the workshops and common trades of life. But in most of these instances it will be
found, that the discovery was not the mere result of accident,
but arose from the patient study of principles, or from hints
gathered from a scientific observation of nice and curious
facts. And it may be added, that, in all these instances, in
proportion as the inventors acquired a knowledge of the
principles of the arts, their genius assumed a wider play, and
accomplished its designs with more familiar power and certainty. It is a subject of most profound interest, to observe
to what grand results a common principle in mechanics, or
an apparently insulated fact, may conduct us, under the;guidance of a man of genius. The rule, for instance, in
geometry, that the circumferences of circles are in proportion,to their diameters, lies at the foundation of most of the operations of practical mechanics, and has led to the means of
increasing mechanical power to an almost incalculable extent.
The lever, the pulley, and the wheel, are but illustrations of
it. So, too, the habit of nice observation of facts (the almost
constant attendant upon scientific acquirements) has led to
surprising conjectures. which have ended in the demonstration of equally surprising truths. Let me avail myself of one
or two illustrations, which have been already noticed by
others, as better to my purpose than any which my own
memory could furnish. In the course of Sir Isaac Newton's
experiments to ascertain the laws of optics, he was led, from
the peculiar action of the diamond upon light, to express an
opinion that it was carbon, and capable of ignition, and not
belonging to the class of crystals. That conjecture has in
our day been established, by chemical experiments, to be a
fact. He made the discovery, also, of the compound nature
of light, and that its white color arises from a mixture of all




DEVELOPMENTS OF SCIENCE AND MECHANIC ART.  497
the various colors. This has led to various ingenious improvements in the formation of the lenses of telescopes, by
which modern astronomy has been able to display the heavens in new beauty and order. When Franklin, by close
observation, had established the identity of lightning with the
electric spark, he was immediately led to the practical application of his discovery, by ascertaining the relative conducting power of various substances, so as to guard our dwellings
from its tremendous agency. The galvanic battery, to which
we are indebted for so many discoveries in chemistry, owes
its origin to an apparently trivial circumstance. The discoverer's attention was drawn to an investigation of the cause
of the twitching of a dead frog's leg; and by patient and
laborious experiments, he was at length conducted to the
discovery of animal electricity. The polarization of light, as
it is called, - that is, the fact, that rays of light have different
sides, which have different properties of reflection, -is a discovery in optics of very recent date, which, it is said, " is so
fertile in the views it lays open of the constitution of natural
bodies, and the minuter mechanism of the universe, as to
place it in the very first rank of physical and mathematical
science."  It was discovered by the French philosopher,
Malus, as late as in 1810, by various minute and delicate experiments, and has already led to very extraordinary results.
Indeed, such is the quickening power of science, that it is
scarcely possible that its simplest germ should be planted in
the human mind, without expanding into a healthy growth.
It generates, as it moves on, new thoughts, and new inquiries,
and is forever gathering, without exhaustion and without
satiety.  The curiosity which is once awakened by it never
sleeps; the genius which is once kindled at its altar, burns
on with an inextinguishable flame.
It has been remarked that such was the progress of astronomical science, and the number of minds engaged in it,
towards the close of the seventeenth century, that if Sir Isaac
Newton had never lived his splendid and invaluable discove42*




498             MISCELLANEOUS WRITINGS.
ries must have been in the possession of the succeeding age.
The approaches had been so near that they almost touched
the very verge of the paths which his genius explored, and
demonstrated with such matchless ability. If this be true
in respect to that branch of physical science, it is far more
strikingly true in respect to mechanics. The struggle here,
in respect to priority of inventions, is often so very close that
a single day sometimes decides the controversy.
It is from considerations of this nature; that what has
been must continue to be; that art is never perfect, and nature is inexhaustible; that science, while it is the master of
art, is itself ultimately dependent upon it; that the intellectual power grows up in all stations, and in all soils; that, all
other circumstances equal, he who knows and practises must
for ever take the lead of him who merely knows, and has
none of the skill to apply power, or the practical sagacity to
overcome difficulties; that he whose interest is indissolubly
connected with his science, and who feels at every turn the
animating impulse of reward, as well as the pleasure of speculation, and the desire of fame, has more enduring and
instant motives for exertion, than he who merely indulges his
leisure or his curiosity; — it is, I say, from these considerations that I deduce the conclusion that when artisans and
mechanics shall have become instructed in science, the inventions of this class will be more numerous, more useful, more
profitable, and more ingenious, than those of any other class,
and even perhaps of all other classes of society.
What an animating prospect does this afford! What noble ends to poor, neglected, suffering genius! What constant comfort, to cheer the hard hours of labor, and the
heavier hours of despondency! Much less of success in life
is in reality dependent upon accident, or what is called luck,
than is commonly supposed. Far more depends upon the
objects which a man proposes to himself; what attainments
he aspires to; what is the circle which bounds his vision and
his thoughts; what he chooses, not to be educatedfor, but to




DEVELOPMENTS OF SCIENCE AND MECHANIC ART.  499
educate himself for; whether he looks to the end and aim of
the whole of life, or only to the present day or hour; whether
he listens to the voice of indolence or vulgar pleasure, or to
the stirring voice in his own soul, urging his ambition on to
the highest objects. If his views are low and grovelling; if
the workshop, in its cold routine of duties, bounds all his
wishes and his hopes, his destiny is already fixed; and the
history of his whole life may be read, though the blush of
youth still lingers on his cheeks. It is not a tale merely
twice told; it has been told for millions. If, on the other
hand, he aspires to be a man, in dignity, independence,
spirit, and character, and to give his talents their full scope
and vigor; if, to a steady devotion to the practice of his art,
he adds a scientific study of its processes and principles, his
success is as sure as any thing on this side of the grave can
be. He may even go farther and dream of fame; and, if he
possess the sagacity of genius, may build a solid immortality
upon the foundation of his own inventions.
And why should it not be so? Why should not our youth,
engaged in the mechanic arts, under the auspices of institutions like this, reach such a noble elevation of purpose?
America has hitherto given her full proportion of genius to
the cultivation of the arts. She has never been behind the
most intelligent portions of the world, in her contribution of
useful inventions for the common good. There are some
circumstances in the situation and character of her population, which afford a wider range for talent and inquiry, than
in any other country. The very equality of condition; the
natural structure of society; the total demolition of all barriers against the advancement of talent from one department
of life to another; the non-existence of the almost infinite
subdivisions of labor by which, though more perfection in the
result is sometimes obtained, the process has an almost
uniform tendency to reduce human beings to mere machines;
the mildness of the government; the general facility of subsistence; the absence of all laws regulating trades, and




500            MISCELLANEOUS WRITINGS.
obstructing local competition;-these, and many other
causes, and especially our free schools, and our cheap means
of education, offer to ingenuous youth the most inviting
prospects to expand and cultivate their intellectual powers.
Under such circumstances is it too much to prophesy, that
hereafter America may take the lead in mechanical improvements, and give another bright example to the world, by the
demonstration of the truth, that free governments are as well
adapted to perfect the arts of life, and foster inventive genius,
as they are to promote the happiness and independence of
mankind?
There are no real obstacles in the way, which may not be
overcome by ordinary diligence and perseverance. A few
hours saved every week from those devoted to idle pleasure,
or listless indolence, would enable every artisan to master, in
a comparatively short time, the elementary principles of the
arts. He would have the constant benefit of refreshing his
recollection by the practical application of them, and receive
the demonstration at the same time that he was taught the
truth. He would find that the acquisitions of every day
added a new facility for future improvement; and that his
own mind, quickened and fertilized by various stores of
thought, would soon turn that into the truest source of enjoyment, which at first was the minister of toil and anxiety.
Consider, for a moment, what must be the immediate effects
of the general adoption of a system of mutual instruction.
How powerfully would it work by way of encouragement to
laudable ambition; how irresistibly to an increase of skill and
sagacity in the most common employments of life!  Ask
yourselves what would be the result of one hundred thousand minds engaged at the same moment in the study of
mechanical science, and urged on by the daily motives of
interest, to acquire new skill, or invent new improvements.
It seems to me utterly beyond the reach of human imagination to embody the results to which such a constant discipline
of the intellect, strengthened by the daily experience of the




DEVELOPMENTS OF SCIENCE AND MECHANIC ART.  501
workshop, would conduct us. The slightest spark of intelligence (if I may borrow a figure from the arts) would be
blown into a steady flame, and the raw material of genius
be kindled by a spontaneous combustion into the most intense light.
Gentlemen, I will detain you no longer.  The remarks
which I have addressed to you have been unavoidably of a
loose and desultory nature. They have been thrown together
not in the abundance of my leisure, but of my labors; in the
midst of private cares and many pressing public duties.
Such as they are, I trust they may receive your indulgence, if
not for their intrinsic value, at least as my small tribute to
the merit of this Institution. If I had possessed more leisure
I should have preferred to have given you, as a more suitable
topic for an introductory discourse, some account of the rise
and progress of the more important arts and inventions in
modern times. A close survey of the difficulties overcome,
and of the triumphs achieved by mechanical genius, would,
after all, constitute the most valuable commentary upon the
powers of the human mind, and the most encouraging lesson
in the study of science.
I conclude with the reflection naturally arising from the
subject, that as the true end of philosophy is to render us
wiser and happier, so its tendency is to warm our hearts, and
elevate our affections, and make us, in the highest sense,
religious beings. When we contemplate the physical creation, and observe, from the minutest atom up to the highest
intelligence, continual displays of infinite wisdom, power,
and goodness; when we trace out by the light of science the
laws which govern the material world, and observe the order,
and harmony, and wonderful adaptation of all, from those
which form the sparkling diamond in the mine, or prepare
the volleyed lightning, or generate the terrific earthquake, or
direct the motions of the ocean, up to those which hold the
planets in their spheres; when we turn our thoughts within
us, and endeavor to learn what we ourselves are, and consider




502            MISCELLANEOUS WRITINGS.
the nature and capacities of our minds, and feel the divinity,
as it were, stir within us; when we look abroad at the curious displays of human invention in the arts and arrangements of life, and see how man has acquired dominion over
the earth, and the sea, and the air, and the water; how is it
possible, I say, when we contemplate such things, not to look
up with awe, and admiration, and gratitude, to the First
Great Cause of all these blessings? How is it possible not
to feel that we are an emanation of that eternal Spirit which
formed and fashioned us, and breathed into us a rational
soul? How is it possible not to read for ourselves a higher
destiny, where our powers shall be permitted to expand in
endless progression, and continually witness new wonders of
the divine perfection?  Surely, in the contemplation of such
things, we may well exclaim,
" Great and marvellous are thy works, Lord God Almighty;
in wisdom hast thou made them all."




VALUE AND IMPORTANCE OF LEGAL STUDIES.
A DISCOURSE PRONOUNCED AT THE INAUGURATION OF THE AUTHOR
AS DANE PROFESSOR OF LAW IN HARVARD UNIVERSITY, AUGUST
25, 1S29.
IT has been customary in this University for professors,
upon their induction into office, to deliver a public discourse
upon some topics suitable to the occasion. Upon the establishment of a new professorship it may also be expected that
he, who for the first time fills the chair, should give some
account of the foundation, and of the studies which it proposes to encourage. I shall endeavor not wholly to disappoint the just expectations of my audience in both respects;
premising, however, that much reliance must be placed upon
their indulgence, since the subject affords little scope for elegant disquisition, and almost forbids those ornaments, which
gratify the taste, and warm the imagination of the scholar.
My plan is, in the first place, to lay before you some considerations touching the general utility of the study of the
law; and to address them with more pointed application to
those who propose to make it the business of their lives.
In the next place, I shall briefly unfold the nature and objects
of the professorship, which I have now the honor to occupy,
and the particular studies which it comprehends; so that the
noble design of the founder may be amply vindicated, and
receive, as it deserves, the public approbation. In proportion,
however, to the value and importance of these studies, I cannot but feel a diffidence, lest they should fail under my care
of becoming as attractive and interesting as they ought to




504             MISCELLANEOUS WRITINGS.
be; and lest my own imperfect execution of duty should cast
a shade upon the bright prospects, which the founder is opening to our view.
In the present state of knowledge, such a diffidence might
well become the teacher of any science; but the remark
applies with augmented force to a science so vast, so intricate,
and so comprehensive, as that of jurisprudence., In its widest
extent it may be said almost to compass every human action;
and in its minute details, to measure every human duty. If
we contemplate it in the highest order of subjects, which
it embraces, it can scarcely be surpassed in dignity. It
searches into and expounds the elements of morals and
ethics, and the eternal law  of nature, illustrated and supported by the eternal law of revelation. It is in this sense,
that it has constituted the panegyric of philosophers and
sages in almost every age. It is in this sense that Cicero
has spoken of it, in a passage, which is upon the lips of
every scholar: "Est quidem vera lex recta ratio, nature
congruens, diffusa in omnes, constans, sempiterna, quue vocet
ad officium jubendo, vetando a fraude deterreat, quae tamen
neque probos frustra jubet aut vetat, nec improbos jubendo
aut vetando movet.  Huic legi nec obrogari fas est, neque
derogari ex hac aliquid licet, neque tota abrogari potest. Nec
vero, aut per senatum aut per populum, solvi hae lege possumus."l It is in this sense, also, that the genius of Sir
William  Jones, rising into poetical enthusiasm, has proclaimed, that
"Sovereign law, the state's collected will,
O'er thrones and globes elate
Sits empress, crowning good, repressing ill."
But if we contemplate it in a narrower view, as a mere
system of regulations for the safety and harmony of civil
society; as the instrument of administering public and private justice; as the code, by which rights are ascertained,
1 Cic. de Repub. Lib. iii. ~ 22. See also, Cic. de Legg. Lib. i. ~ 6.




THE VALUE AND IMPORTANCE OF LEGAL STUDIES.  505
and wrongs redressed; by which contracts are interpreted,
and property is secured, and the institutions, which add
strength to government, and solid happiness to domestic
life, are firmly guarded; —if, I say, we contemplate it in this
narrower view, its dignity may in some measure be lessened,
but its design will yet appear sufficiently grand, and its execution sufficiently difficult, to have strong claims upon the
gratitude and admiration of mankind.
The common law purports to be such a system of jurisprudence. By the common law is sometimes understood that
collection of principles, which constitutes the basis of the
administration of justice in England, in contradistinction to
the maxims of the Roman code, which has universally received the appellation of the civil law. The latter has been
adopted, or, if I may say so, inosculated, into the juridical
polity of all continental Europe, as a fundamental rule. The
former is emphatically the custom of the realm of England,
and has no authority beyond her own territory, and the colonies, which she has planted in various parts of the world. It
is no small proof of its excellence, however, that where it has
once taken root, it has never been superseded; and that its
direct progress, or silent sway, has never failed to obliterate
the attachment to other codes, whenever the accidents of
conquest or cession have brought it within the reach of popular opinion. But there is another sense, (which is the most
usual sense,) in which it is called the common law, to distinguish it from the statute law, or the positive enactments of
the legislature. In this sense, the common law is the lex non
scripta, that is, the unwritten law, which cannot now be
traced back to any positive text; but is composed of customs, and usages, and maxims, deriving their authority from
immemorial practice, and the recognitions of courts of justice.
Thus, the right of primogeniture, which is a fundamental
rule of inheritances in England, does not depend upon any
known statute, but upon the simple custom of the realm, of
43




506             MISCELLANEOUS WRITINGS.
such high antiquity, that history does not reach its exact
origin. Much, indeed, of this unwritten law may now be
found in books, in elementary treatises, and in judicial decisions. But it does not derive its force from these circumstances. On the contrary, even judicial decisions are deemed
but the formal promulgation of rules antecedently existing,
and obtain all their value from their supposed conformity to
those rules.
When our ancestors emigrated to America, they brought
this common law with them, as their birthright and inheritancej and they put into operation so much of it, as was
applicable to their situation. It became the basis of the
jurisprudence of all the English colonies; and, except so far
as it has been abrogated or modified by our local legislation,
it remains to this very hour the guide, the instructor, the
protector, and the ornament of every state within this republic, whose territory lies within our boundaries settled by
the treaty of peace of 1783. May it ever continue to flourish
here; for it is the law of liberty, and the watchful and inflexible guardian of private property and public rights.
It is of this common law, in its largest extent, that the Law
Institution in this University proposes to expound the doctrines and diversities; and thus to furnish the means of
a better juridical education to those, who are destined for the
profession, as well as to those, who, as scholars and gentlemen, desire to learn its general principles.
Nor let any scholar or gentleman itnagine, that the study is
little worthy his attention, unless he is to engage in it for
professional objects. I do not exaggerate its value, when
I express the deliberate opinion, that there is not within the
compass of human attainment any science, which has so
direct a tendency as this, to strengthen the understanding,
to enlarge its powers, to sharpen its sagacity, and to form
habits of nice and accurate discrimination.) Sir James Mackintosh, an elegant scholar, as well as a very competent judge,




THE VALUE AND IMPORTANCE OF LEGAL STUDIES.  507
has said,1 that "More understanding has, perhaps, been in
this manner exerted to fix the rules of life, than in any other
science; and it is certainly the most honorable occupation of
the understanding, because it is the most immediately subservient to general safety and comfort." If this were a question dependent upon mere authority, perhaps testimony more
unexceptionable to the general scholar might be drawn from
other sources. Dr. Johnson, with his accustomed vigor of
expression has stated, that " Law is the science, in which the
greatest powers of the understanding are applied to the greatest number of facts." And Mr. Burke, himself an orator and
statesman of the most enlarged research, has not hesitated to
declare, that it is " One of the first and noblest of human
sciences; a science, which does more to quicken and invigorate the understanding than all other kinds of learning put
together." 2
But there is little need to appeal to the testimonies of the
living or the dead upon such a topic.  Whoever will take
the trouble to reflect upon the vast variety of subjects, with
which it is conversant, and the almost infinite diversity of
human transactions, to which it applies; whoever will consider, how much astuteness and ingenuity are required to
unravel or guard against the contrivances of fraud and the
indiscretions of folly, the caprices of the wise and the errors
of the rash, the mistakes of pride, the confidence of ignorance,
and the sallies of enterprise; will be at no loss to understand, that there will be ample employment for the highest
faculties. If he will but add to the account, that law is
a science, which must be gradually formed by the successive
efforts of many minds in many ages; that its rudiments sink
deep into remote antiquity, and branch wider and wider with
every new generation; that it seeks to measure the future by
approximations to certainty, derived solely from the experience
1 Introductory Discourse on the Study of the Law of Nature and Nations,
p. 62, (3d edition.)
2 Speech on American Taxation, 1774.




508             MISCELLANEOUS WRITINGS.
Of the past; that it must forever be in a state of progress, or
change, to adapt itself to the exigencies and changes of society; that, even when the old foundations remain firm, the
shifting channels of business must often leave their wonted
beds deserted and require new and broader substructions to
accommodalK and support new interest~slif, I say, he will
but add these things to the account, it will soon become
matter of surprise, that even the mightiest efforts of genius
can keep pace with such incessant demands/, and that the
powers of reasoning, tasked and subtilized, as they must be,
to an immeasurable extent, should not be absolutely overwhelmed in the attempt to administer justice.
From its nature and objects, the common law, above all
others, employs a most severe and scrutinizing logic. In
some of its branches it is compelled to deal with metaphysical
subtilties and abstractions, belonging to the depths of intellectual philosophy. From this cause it has sometimes been
in danger of being enslaved by scholastic refinements, by the
jargon of the old dialectics, and the sophisms of over-curious
minds. It narrowly escaped shipwreck in the hands of the
schoolmen of the middle ages; and for a while was almost
swallowed up in the quicksands of the feudal system/ If it
had not been, that the common law necessarily dealt with
substances, instead of shadows, with men's business, and
rights, and inheritances, and not with entities and notions, it
would have shared the fate, or justified the satire pronounced
upon metaphysical inquiries, that those, who have attempted
to sound its depths,
"In that unfathomable gulf were drowned."
But common sense has at all times powerfully counteracted
the tendency to undue speculation inthe common law, and
silently brought back its votaries to that, which is the end of
all true logic, the just application of principles to the actual
i See Lord Hale's noble Discourse on the Amendment of the Law, ch. 3.




THE VALUE AND IMPORTANCE OF LEGAL STUDIES.  509
concerns of human life. One cannot but smile, in the present
times, at some of the reasoning, and some of the fictions,
which spread themselves, here and there, in small veins in the
system. We are gravely told, for instance, by Bracton, in
which he is followed by Lord Coke, that the true reason,
why by the common law a father cannot inherit real estate
by descent from his son, is, that inheritances are heavy, and
descend, as it were, by the laws of gravitation, and cannot
reascend.1 We are again told, that, when the title to an
estate is suspended upon future contingencies@t inheritance
is in the mean time in, abeyance, that is, (as we are taught
by the accompanying explanations,) the inheritance is in
gr'emio legis, or in nubibus, in the bosom of the law, or in the
clouds, which seems to mend the matter exceedingly in point
of plainness. And, again, when an estate is conveyed to
trustees to serve existing uses, and future contingent uses
also, we are told, that though a seisin is necessary to feed
them, and it be nowv exhaustedJ>yet, happily for us, there
remains a possibility of seisin, a scintilla juris, which kindles
at the very moment the new uses spring into being, and by
its vital power executes at once the possession of the estate
to those uses, by some sort of legal legerdemain.2 Shakspeare
has immortalized by his genius the report of a case in that
book of painful learning, Plowden's Commentaries,3 in which
Lady Margaret Hales, by the suicide of her husband, lost an
estate by forfeiture to the crown, which she held jointly with
him. One of the learned judges upon that occasion, in order
to establish the legal conclusion, that the party killed himself
in his lifetime, reasoned in this manner: " The felony is attributed to the act, which act is always done by a living man,
and in his lifetime; for Sir James Hales was dead, and how
I ", Descendit itaque jus, quasi ponderosum quid cadens deorsum recta
linea, vel transversali, et nunquam reascendit eA via qua descendit." Bracton, lib. 2, ch. 29; Co. Litt. 11; 2 B1. Com. 212.
2 Chudleigh's case (1 Co. Rep. 120) contains some curious reasoning on
this subject.
3 Plowden's Com. 258, 262.
43'




510            MISCELLANEOUS WRITINGS.
came he to his death? It may be answered, By drowning.
And who drowned him? Sir James Hales. And when did
he drown him? In his lifetime. So that Sir James Hales,
being alive, caused Sir James Hales to die; and the act of
the living man was the death of the dead man. And then
for this offence it is reasonable to punish the living man, who
committed the offence, and not the dead man.) But how can
he be said to be punished alive, when the punishment comes
after his death?" &c. &c.
But, apart from a few blemishes of this sort, which belong,
indeed, rather to the studies of the age than to the law, and
are now so harmless, that they serve little more than to give
point to some sarcasm upon the profession, it is certain, that
the common law follows out its principles with a closeness
and simplicity of reasoning, which approach, as near as any
artificial or moral deductions can, to the rigor of demonstration.
How, indeed, can it be otherwise? It is not employed in
closet speculations, in the silence of the monastery, or in the
seclusion of private life. Every cause is heard in the presence
of men, whom practice and study have made singularly
acute and discriminating.LThe advocate is stimulated, not
merely by the hope of reward, and devotion to his client, but
by the love of fame, to exert all his talents in order to detect
fallacies and answer objections. if He is not at liberty, from
nmere courtesy or kindness, from private respect, or popular
feeling, to gloss over the mistakes, or conceal the blunders, or
suppress the inconsistencies of the argument of his adversary.
In such places, and on such occasions, the law expects every
man to do his duty, and his whole duty. He must search the
dark, explore the weak, clear the doubtful, or confirm the
strong points of his cause, as its exigencies may require. In
such contests, victory is rarely to be won, victory I had
almost said, is never won, without an arduous struggle.
Mere fanciful analogies, and set phrases, and fine turns of
expression, and plausible statements will not do. They are




THE VALUE AND IMPORTANCE OF LEGAL STUDIES.  511
but shadows or mists, which hover over the pathways to
truth, but do not impede them. They may blind the novice,
or betray the ignorant; but they do not deceive the wary and
experienced traveller.  There must be a firmer and closer
grapple with realities. The contest is fit for men of strong
sinews, and deep thoughts; and such men, in all ages, have
been found foremost in the ranks of the bar, and eager for its
distinctions. To the inquisitive scholar and gentleman, therefore, the law will be found a study full of instruction, and admirably adapted to brace his mind to a wholesome discipline.
lie will thus avoid what Lord Bacon considers some of the
greatest obstacles to knowledge. For, says he, "   baciliyto
believe  impatience.to_ do ubV- tem t  exbit-y ttyaQ..anmergloxry.to
know/doubt to contradict, end.to gai~,.stiearch,.seeking
thingsin r words, resting in part of nature; these, and the like,
have been the>t.lings, which have forbidden.t eh.Jpy nmatch
between the mind of man, and the nature of things." 1
I might commend the study of the law to American citizens
generally upon considerations of a broader cast. From the
structure of our institutions, there is much to provoke the
vigilance, and invite the leisure of all, and especially of educated men. Our government is emphatically a government
of the people, in all its departments. It purports to be a
government of laws, and not of men; and yet, beyond all
others, it is subject to the control and influence of public
opinion. Its whole security and efficiency depend upon the
intelligence, virtue, independence, and moderation of the
people. It can be preserved no longer than a reverence for
settled, uniform laws constitutes the habit, I had almost said
the passion, of the community. There can be no freedom,
where there is no safety to property, or personal rights.
Whenever legislation renders the possession or enjoyment of
property precarious; whenever it cuts down the obligation
and security of contracts; whenever it breaks in upon personal
1 Praise of Knowledge, 2 Bacon's Works, 125.




512             MISCELLANEOUS WRITINGS.
liberty, or compels a surrender of personal privileges, upon
any pretext, plausible or otherwise, it matters little, whether
it be the act of the many, or the few, of the solitary despot,
or the assembled multitude; it is still in its essence tyranny.
It matters still less, what are the causes of the change;
whether urged on by a spirit of innovation, or popular
delusion, or state necessity, (as it is falsely called,) it is still
power, irresponsible power, against right * and the more to be
dreaded, when it has the sanction of numbers, because it is
then less capable of being resisted or evaded.'nfortunately,
at such times the majority prevail by mere numrbers, and not
by force of judgment a numerantur, non ponderantur. I do not,
therefore, overestimate its value, when I say, that a knowledge
of the law and a devotion to its principles are vital to a
republic, and lie at the very foundation of its strength.
An American citizen has many political duties to performj;
and his activity is constantly demanded for the preservation
of the public interests. He must watch the exercise of power
in every department of government; and ascertain, whether
it is within the prescribed limits of the constitution.; He is
to study deeply and thoroughly the elements, which-ompose
that constitution; elements, which were the slow results of
genius and patriotism, acting upon the largest views of human
experience. The reasons, on which every part of this beautiful system is built, (may it be as durable as it is beautiful!)
are to be examined and weighed. Slight inconveniences are
not to overturn them; slight objections are not to undermine
them. Whatever is human is necessarily imperfect; whatever is practical necessarily deviates from theory; whatever
works by human agency works with some inequality of movement and result. It is easier to point out defects than to
devise remedies; to touch blemishes than to extract them;
to demolish an edifice than to erect a convenient substitute.
We may not say of forms of government, " Whate'er is best
administered is best."  But we may say, that that, which
generally works well, should rarely be hazarded upon the




THE VALUE AND IMPORTANCE OF LEGAL STUDIES.   513
chances of a better. It has been observed by a profound
statesman, that the abstract perfection of a government, with
reference to natural rights, may be its practical defect. By
having a right to do every thing, men may want every thing. 1
Great vigilance and great jealousy are therefore necessary in
republics, to guard against the captivations of theory, as well
as the approaches of more insidious foes.  Governments are
not always overthrown by direct and open assaults. They
are not always battered down by the arms of conquerors, or
the successful daring of usurpers. There is often concealed
the dry rot, which eats into the vitals, when all is fair and
stately on the outside. And to republics this has been the
more common and fatal disease. The continual drippings of
corruption may wear away the solid rock, when the tempest
has failed to overturn it. In a monarchy, the subjects may
be content to trust to the hereditary sovereign and the hereditary nobility the general superintendence of legislation and
property. But in a republic, every citizen is himself in some
measure intrusted with the public safety, and acts an important part for its weal or woe.
Our government also opens the widest field for talents and
exertion to every rank of life. Few men, comparatively speaking, may not indulge the hope, if they covet the distinction,
at some time to have a seat in the public councils, and assist
in the public legislation. What can be more important or
useful in such a station, than a knowledge of those laws,
which the legislator is called upon to modify, amend or repeal?
How much doubt may a single injudicious amendment introduce!  One would hardly trust to an unskilful artisan the
repairs of any delicate machine. There would be an universal
exclamation against the indiscretion of such an attempt.
Yet it would seem, that we are apt to think, that men are
1 Burke on the French Revolution. The whole passage is worthy of commendation. It begins thus: " Government is not made in virtue of natural
rights, which may and do exist in total independence of it, and exist in
much greater clearness, and in a much greater degree of abstract perfection.
But their abstract perfection is their practical defect."




514             MISCELLANEOUS WRITINGS.
born legislators; that no qualifications beyond plain sense
and common honesty are necessary for the management of
the intricate machine of government; and, above all, of that
most delicate and interesting of all machines, a republican
government. To adjust its various parts requires the skill of
the wisest, and often baffles the judgment of the best./ The
least perturbation at the centre may transmit itself through
every line of its movements; as the dip of a pebble on the
calm surface of a lake sends its circling vibrations to the
distant shore.
It is a fact well known, to professional gentlemen, that
more doubts arise in the administration of justice from the
imperfections of positive legislation, than from any other
source. The mistakes in the language of a deed, or a will,
rarely extend far beyond the immediate parties to the contract
or bounty. And yet innumerable questions of interpretation
have arisen from these comparatively private sources of litigation, to perplex the minds, and exhaust the diligence of the
ablest judges. But what is this to the sweeping result of an
act of the legislature, which declares a new rule for a whole
state, which may vary the rights, or touch the interests, or
control the operations, of thousands of its citizens? If the
legislation is designedly universal in its terms, infinite caution is necessary, to prevent its working greater mischiefs than
it purports to cure. If, on the other hand, it aims only at a
single class of mischiefs, to amend an existing defect, or provide for a new interest, there is still great danger, that its provisions may reach beyond the intent, and embrace what
would have been most sedulously excluded if it had been
foreseen or suspected. An anecdote of Lord Coke may
serve as an appropriate illustration. A statesman told him
that he meant to consult him on a point of law. " If it be
common law," said Lord Coke, " I should be ashamed if I
could not give you a ready answer; but if it be statute law I
should be equally ashamed if I answered you immediately." 1
I Teignmouth's Life of Sir W. Jones, 268.




THE VALUE AND IMPORTANCE OF LEGAL STUDIES.  515
What an admonition is this! And how forcibly does it teach
us the utility of a knowledge of the general principles of law
to persons who are called upon to perform the functions of
legislation!
But to gentlemen who contemplate public life with higher
objects, who indulge the ambition of being not silent voters,
but leaders in debate, and framers of laws, and guides in the
public councils, every consideration already urged applies
with tenfold force. I will not speak of the disgrace and
defeat which must in such stations follow upon the exposure
of ignorance; nor of the easy victory achieved by those who
bring to the controversy a ready knowledge over those who
grope in the dark and rely on their own rashness for success;
nor of the intrinsic difficulty, in times like the present, of commanding public confidence without bringing solid wisdom in
aid of popular declamation. But I would speak to the consciences of honorable men, and ask how they can venture,
without any knowledge of existing laws, to recommend
changes which may cut deep into the quick of remedial justice, or bring into peril all that is valuable in jurisprudence
by its certainty, its policy, or its antiquity. Surely, they need
not be told, how slow every good system of laws must be in
consolidating; and how easily the rashness of an hour may
destroy what ages have scarcely cemented in a solid form.
The oak, which requires centuries to rear its trunk, and stretch
its branches, and strengthen its fibres, and fix its roots, may
yet be levelled in an hour. It may breast the tempest of a
hundred years, and survive the scathing of the lightning. It
may even acquire vigor from its struggles with the elements,
and strike its roots deeper and wider as it rises in its majesty;
and yet a child, in the very wantonness of folly, may in an
instant destroy it by removing a girdle of its bark.
It has been said, that a spirit of innovation is generally
the result of a selfish temper and confined views.l Perhaps
this is pressing the reasoning too far. It is more often the
I Burke on the French Revolution.




516              MISCELLANEOUS WRITINGS.
result of a strong imagination and ardent temperament, working upon the materials of the closet. But it is well in all cases
to remember the wise recommendation of Lord Bacon, " that
men in their innovations would follow the example of time
itself; which, indeed, innovateth greatly, but quietly, and by
degrees scarce to be perceived." I And nothing can introduce
more sobriety of judgment than the experience derived from
the history of jurisprudence; and thus check what has been
so happily termed too great a fluidness, lubricity, and unsteadiness in the laws.2
It is not, therefore, from mere professional pride or enthusiasm, that I would urgently recommend to gentlemen, ambitious of public life, some devotion to the study of the law;
or suggest to scholars that their education still wants perfection and polish, unless they have mastered its elements. In
doing so, I do little more than adopt the precept of Mr. Locke,
who says it is so requisite, that he knows of no place, from a
justice of the peace to a minister of state, that can be well
filled without it.{ And in the days of Fortescue it was
esteemed almost a necessary accomplishment for a gentleman of rank.4
But my principal object in this discourse is, to address
myself to those who intend to make the law a profession for
life. To them it seems almost unnecessary to recommend
the study, or press the ancient precept,
"Versate diu, quid ferre recusent,
Quid valeant humeri."
To them the law is not a mere pursuit of pleasure or curiosity, but of transcendent dignity, as it opens the brightest
rewards of human ambition, opulence, fame, public influence,
and political honors. I may add, too, that if the student of
the law entertains but a just reverence for its precepts, it will
1 Essay, 24.             2 Lord Hale in Harg. Tracts, 255.
3 Locke on Education, p. 84.  4 Fortescue De Legg. ch. 49.




TIE VALUE AND IMPORTANCE OF LEGAL STUDIES.  517
teach him to build his reputation upon the soundest morals,
the deepest principles, and the most exalted purity of life and
character. One of the beautiful boasts of our municipal jurisprudence is, that Christianity is a part of the common law,
from which it seeks the sanction of its rights, and by which
it endeavors to regulate its doctrines. And, notwithstanding
the specious objection of one of our distinguished statesmen,
the boast is as true as it is beautiful. There never has been
a period in which the common law did not recognize Christianity as lying at its foundations.' For many ages it was
almost exclusively administered by those who held its ecclesiastical dignities. It now repudiates every act done in vio.
lation of its duties of perfect obligation. It pronounces illegal every contract offensive to its morals. It recognizes with
profound humility its holidays and festivals, and obeys them
as dies non juridici. It still attaches to persons believing in
its divine authority the highest degree of competency as witnesses; and, until a comparatively recent period, infidels and
pagans were banished from the halls of justice, as unworthy
of credit. The error of the common law was, in reality, of a
very different character. It tolerated nothing but Christianity,
as taught by its own established church, either Protestant or
Catholic; and with unrelenting severity consigned the conscientious heretic to the stake, regarding his very scruples as
proofs of incorrigible wickedness. Thus, justice was debased,
and religion itself made the minister of crimes, by calling in
the aid of the secular power to enforce that conformity of
belief, whose rewards and punishments belong exclusively to
God.
But, apart from this defect, the morals of the law are of the
purest and most irreproachable character. And notwithstand.
ing the sneers of ignorance and the gibes of wit, no men are
so constantly called upon in their practice to exemplify the
duties of good faith, incorruptible virtue, and chivalric honor,
1 See the remarks of Mr. Justice Park, in Smith v. Sparrow, 4 Bing. R.
84, 88.
44




518             MISCELLANEOUS WRITINGS.
as lawyers. To them is often intrusted the peace and repose
as well as the property of whole families; and the slightest
departure from professional secrecy, or professional integrity,
might involve their clients in ruin. The law itself imposes
upon them the severest injunctions never to do injustice, and
never to violate confidence. It not only protects them from
disclosing the secrets of their clients, but it punishes the
offenders by disqualifying them from practice. The rebuke
of public opinion, also, follows close upon every offence; and
the frown of the profession consigns to infamy the traitor and
his moral treason/ Memorable instances of this sort have
occurred in other ages as well as in our own. Even the lips
of eloquence breathe nothing but an empty voice in the halls
of justice, if the ear listens with distrust or suspicion. The
very hypocrite is there compelled to wear the livery of virtue,
and to pay her homage. If he secretly cherishes a grovelling
vice, he must there speak the language and assume the port
of innocence. IHe must feign, if he does not feel, the spirit
and inspiration of the place.
I would exhort the student, therefore, at the very outset of
his career, to acquire a just conception of the dignity and
importance of his vocation. Let him not debase it by a low
and narrow estimate of its requisites or its duties. Let him
consider it not as a mere means of subsistence, an affair of
petty traffic and barter, a little round of manoeuvres and contrivances to arrest some runaway contract, to disinter some
buried relic of title, or let loose some imprisoned wrong from
the vengeance of the law. Let him not dream that all is
well if he can weave an intricate net of special pleadings to
catch the unwary in its meshes; or hang a doubt upon a
subtile distinction; or quibble through the whole alphabet of
sophisms. Let him not imagine that it is sufficient if he be
the thing described by Cicero in his scorn; - "jurisconsultus
ipse per se nihil, nisi leguleius quidam  cautus et acutus,
praeco actionum, cantor formularum, auceps syllabarum;" 1
1 Cicero, De Orat. Lib. i. ~ 55.




THE VALUE AND IMPORTANCE OF LEGAL STUDIES.  519
"a sharp and cunning pettifogger; a retailer of lawsuits; a
canter about forms, and a caviller upon words;" - or one of
the tribe defined by a master-spirit of the last age, as the
ministers of municipal litigation, and the fomenters of the
war of village vexation.l God forbid that any man standing
in the temple and in the presence of the law, should imagine
that her ministers are called to such unworthy offices. No.
The profession has far higher aims and nobler purposes.2 In
the ordinary course of business, it is true, that sound learning, industry, and fidelity are the principal requisites, and
may reap a fair reward, as they may in any other employment of life. But there are some, and in the lives of most
lawyers many occasions, which demand qualities of a higher,
nay, of the highest order. Upon the actual administration of
justice in all governments, and especially in free governments,
must depend the welfare of the whole community. The
sacred rights of property are to be guarded at every point. I
call them sacred, because, if they are unprotected, all other
rights beconme worthless or visionary.  What is personal
liberty, if it does not draw after it the right to enjoy the fruits
of our own industry? What is political liberty, if it imparts
only perpetual poverty to us and all our posterity? What is
the privilege of a vote, if the majority of the hour may sweep
away the earnings of our whole lives, to gratify the rapacity
of the indolent, the cunning, or the profligate, who are borne
into power upon the tide of a temporary popularity? What
remains to nourish a spirit of independence, or a love of
country, if the very soil, on which we tread, is ours only at
the beck of the village tyrant?  If the home of our parents,
which nursed our infancy and protected our manhood, may
be torn from us without recompense or remorse? If the very
graveyards, which contain the memorials of our love and our
1 Burke's Reflections on the French Revolution.
2 I would commend to students the perusal of Mr. (now Judge) Hopkinson's Address before the Law Academy of Philadelphia, in 1826. It abounds
with just remarks, chaste diction, and unpretending eloquence. Its matters
and its style are excellent.




520             MISCELLANEOUS WRITINGS.
sorrow, are not secure against the hands of violence? If the
church of yesterday may be the barrack of to-day, and become the gaol of to-morrow? If the practical text of civil
procedure contains no better gloss than the Border maxim,
that the right to plunder is only bounded by the power?
One of the glorious and not unfrequently perilous duties of
the Bar is the protection of property; and not of property
only, but of personal rights, and personal character; of
domestic peace, and parental authority.  The lawyer is
placed, as it were, upon the outpost of defence, as a public
sentinel, to watch the approach of danger, and to sound the
alarm when oppression is at hand. I It is a post not only fall
of observation but of difficulty. It is his duty to resist
wrong, let it come in whatever form it may. The attack
is rarely commenced in open daylight; but it makes its
approaches by dark and insidious degrees. Some captivating
delusion, some crafty pretext, some popular scheme, generally
masks the real design. Public opinion has been already won
in its favor, or drugged into a stupid indifference to its
results, by the arts of intrigue. Nothing, perhaps, remains
between the enterprise and victory, but the solitary citadel of
public justice. It is then the time for the highest efforts of
the genius, and learning, and eloquence, and moral courage
of the Bar. The advocate not unfrequently finds himself, at
such a moment, putting at hazard the popularity of a life
devoted to the public service. It is then that the denunciations of the press may be employed to overawe or intimidate
him. It is then that the shouts of the multitude drown the
still, small voice of the unsheltered sufferer. It is then that
the victim is already bound for immolation; and the advocate stands alone, to maintain the supremacy of the law
against power, and numbers, and public applause, and private
wealth. If he shrinks from his duty, be is branded as the
betrayer of his trust.\ If he fails in his labor, he may be cut
down by the same blow which levels his client. If he succeeds, he may, indeed, achieve a glorious triumph for truth,




THE VALUE AND IMPORTANCE OF LEGAL STUDIES.  521
and justice, and the law. But that very triumph may be
fatal to his future hopes, and bar up for ever the road to
political honors  Yet what can be more interesting than
ambition thus nobly directed? that sinks itself, but saves the
state?  WVhat sacrifice more pure, than in such a cause?
What martyrdom more worthy to be canonized in our
hearts?
It may be, that his profession calls him to different duties.
He may be required to defend against the arm of the government a party standing charged with some odious crime, real or
imaginary. He is not at liberty to desert even the guilty wretch
in his lowest estate; but he is bound to take care that even
here the law shall not be bent or broken to bring him to
punishment. He will, at such times, from love of the law,
as well as from compassion, freely give his talents to the
cause, and never surrender the victim until the judgment of
his peers has convicted him upon legal evidence. A duty
not less common, or less interesting, is the vindication of
innocence against private injustice. Rank, and wealth, and
patronage may be on one side; and poverty and distress on
the other. The oppressor may belong to the very circle of
society in which we love to move, and where many seductive
influences may be employed to win our silence. The advocate may be called upon to require damages from the seducer
for his violation of domestic peace; or to expose to public
scorn the subtle contrivances of fraud. The ardor of youth
may have been ensnared by cunningly devised counsels to
the ruin of his estate. The drivelling of age may have been
imposed on to procure a grant or a will, by: which nature is
outraged and villany rewarded. Religion itself may have
been treacherously employed at the side of the death-bed to
devour the widow's portion, or plunder the orphan. In these
and many other like cases, the attempt'to unravel the fraud,
and expose the injury, is full of delicacy, and may incur
severe displeasure among friends, and yield a triumph to
enemies. But it is on such occasions that the advocate rises
44*




522             MISCELLANEOUS WRITINGS.
to a full sense of the dignity of his profession, and feels the
power and the responsibility of its duties. He must then lift
himself to thoughts of other days, and other times; to the
great moral obligations of his profession; to the eternal precepts of religion; to the dictates of that voice which speaks
within him from beyond the grave, and demands that the
mind, given by God, shall be devoted to his service, without
the fear, and without the frailty of man.
But, whatever may be the dignity and the brilliancy either
of fame or fortune, which the profession holds out to those
who strive for eminence in the law, the student should never
imagine that the ascent is easy, or the labor light. There
cannot be any delusion cherished more fatal to his ultimate
success than this. Young men of gay and ardent temperaments are apt to imagine, that little more is necessary than to
read a few elementary books with reasonable diligence, and
the rewards are already within their grasp. They fondly
indulge the belief that fluency of speech, a kindling imagination, ready wit, graceful action, and steady self-confidence
will carry them through every struggle. If they can but
address a court or jury without perturbation, and state their
points with clearness and order, the rest may fairly be left to
the workings of their own minds upon the excitements of the
occasion. That, because the hour is come, and the trial is
come, the inspiration for the cause will come also.
Whoever shall indulge in such visionary views will find
his career end in grievous disappointment, if not in disgrace.
I know not if among human sciences there is any one which
requires such various qualifications and extensive attainments as the law. While it demands the first order of
talents, genius alone never did, and never can, win its highest elevations. There is not only no royal road to smoothe
the way to the summit, but the passes, like those of Alpine
regions, are sometimes dark and narrow; sometimes bold
and precipitous; sometimes dazzling from the reflected light
of their naked fronts; and sometimes bewildering from the




THE VALUE AND IMPORTANCE OF LEGAL STUDIES.  523
shadows projecting from their dizzy heights. Whoever
advances for safety must advance slowly. He must cautiously follow the'old guides, and toil on with steady foot.
steps; for the old paths, though well beaten, are rugged;
and the new paths, though broad, are still perplexed. To
drop all metaphor, the law is a science, in which there is no
substitute for diligence and labor. It is a fine remark of one
who is himself a brilliant example of all he teaches, that " It
appears to be the general order of Providence, manifested in
the constitution of our nature, that every thing valuable in
human acquisition should be the result of toil and labor." I
But this truth is nowhere more forcibly manifested than in
the law. Here, moderate talents with unbroken industry
have often obtained a victory over superior genius, and cast
into shade the brightest natural parts.
The student, therefore, should, at his first entrance upon
the study, weigh well the difficulties of his task, not merely
to guard himself against despondency on account of expectations too sanguinely indulged, but also to stimulate his zeal
by a proper estimate of the value of perseveranc~  He who
has learned to survey the labor without dismay, fas achieved
half the victory. I will not say, with Lord Hale, that " The
law- will admit of no rival, and nothing to go even with it;"
but I will say, that it is a jealous mistress, and requires a
long and constant courtship. It is not to be won by trifling
favors, but by lavish homage.
Many causes combine to make the study of the common
law, at the present day, a laborious undertaking. In the first
place, it necessarily embraces the reasoning and doctrines of
very remote ages. It is, as has been elegantly said, " The
gathered wisdom of a thousand years; "2 or, in the language
of one of the greatest of English judges, it is not " the product
of the wisdom  of some one man, or society of men, in any
1 Chancellor Kent's Introductory Discourse, p. 8. Why has this finished
Discourse been withdrawn from his Commentaries?
2 Teignmouth's Life of Sir W. Jones, 100.




524             MISCELLANEOUS WRITINGS.
one age; but of the wisdom, counsel, experience, and observation of many ages of wise and observing men." 1  It is a
system having its foundations in natural reason; but, at the
same time, built up and perfected by artificial doctrines, adapted
and moulded to the artificial structure of society. The law,
for instance, which governs the titles to real estate, is principally derived from the feudal polity and usages, and is in a
great measure unintelligible without an intimate acquaintance
with the peculiarities of that system4 This knowvledge is not,
even now, in all cases easily attainable; but must sometimes
be searched out amidst the dusty ruins of antiquity, or traced
back through black-lettered pages of a most forbidding aspect
both in language and matter. The old law, too, is not only
of an uncouth and uninviting appearance; but it abounds
with nice distinctions, and subtile refinements, which enter
deeply into the modern structure of titles. No man, even in
our day, can venture safely upon the exposition of an intricate
devise, or of the effect of a power of appointment, or of a
deed to lead uses and trusts, who has not, in some good
degree, mastered its learning. More than two centuries ago,
Sir Henry Spelman2 depicted his own distress on entering
upon such studies, when at the very vestibule he was met by
a foreign language, a barbarous dialect, an inelegant method,
and a mass of learning, which could be borne only upon the
shoulders of Atlas; and frankly admitted, that his heart sunk
within him at the prospect. The defects of a foreign tongue,
and barbarous dialect, anl inelegant method, have almost
entirely disappeared, and no longer vex the student in his
midnight vigils. But the materials for his labor have in other
respects greatly accumulated in the intermediate period. He
may, perchance, escape from the dry severity of the YearBooks, and the painful digestion of the Abridgments of Statham, Fitzherbert, and Brooke. He may even venture to glide
1 Lord Hale in Preface to Rolle's Abridgment, 1 Coill. Jurid. 266.
2Preface to his Glossary. The passage is partially quoted in 1 Blackstone's Com. 31, note. See, also, p. 227, supra.




THE VALUE AND IMPORTANCE OF LEGAL STUDIES.  525
by the exhausting arguments of Plowden. But Lord Coke,
with his ponderous Commentaries, will arrest his course; and,
faint and disheartened with the view, he must plunge into
the labyrinths of contingent remainders, and executory devises,
and springing uses; and he may deem himself fortunate, if,
after many years' devotion to Fearne, he may venture upon
the interpretation of that darkest of all mysteries, a last will
and testament. So true it is, that no man knows his own
will so ill, as the testator; and that over-solicitude to be
brief and simple ends in being profoundly enigmatical, " Dum
brevis esse laboro, obscurus fio."
In the next place, as has been already hinted, every successive age brings its own additions to the general mass of
antecedent principles. If something is gained by clearing out
the old channels, much is added by new increments and
deposits. If here and there a spring of litigation is dried up,
many new ones break out in unsuspected places. In fact,
there is scarcely a single branch of the law, which belonged
to the age of Queen Elizabeth, which does not now come
within the daily contemplation of a lawyer of extensive practice.  And all these branches have been spreading to an
incalculable extent since that period, by the changes in society,
wrought by commerce, agriculture, and manufactures, and
other efforts of human ingenuity and enterprise.
We are, therefore, called upon at this moment to encounter,
ay, and to master, the judicial learning of the three'ast centuries, during which the talents of the Bar, and the researches
of the Bench are embodied in solid and enduring volumes.
Fortescue 1 has told us, that in his age the judges did not sit
in court but three hours in the day; and that, when they had
taken their refreshments, they spent the rest of the day in the
study of the law, reading of the Holy Scriptures, and other
innocent amusements, at their pleasure; so that it seemed
rather a life of contemplation than of much action; and that
I Fortescue, De Laud. Legum Anglie, cap. 51.




526             MISCELLANEOUS WRITINGS.
their tinle was spent in this manner, free from care and
worldly avocations. The case was greatly changed in the
succeeding century; and we need but examine the ample
reports and commentaries of Lord Coke, to perceive what a
prodigious influx of learning bore down the profession in his
day. At the distance of another century, Lord Hale was
compelled to admit the heavy and almost overwhelming
burdens of the law. And we in the nineteenth century may
well look with some apprehension upon the accumulations of
our own times. It is not an overstatement to declare, that
the labors of the profession now are ten times as great as they
were in the days of Lord Coke; and that they have been
quadrupled within the last century. The whole series of
English reports, down -to the Revolution of 1688, scarcely
exceeds one hundred volumes; while those since that period
fall little short of three hundred. To this goodly mass America has added, within the short space of twenty years, more
than two hundred volumes. If to these we add the excellent
elementary treatises, which have filled our libraries during
these latter periods, we shall find, that not merely the lucubrations of twenty years, but a long life, will scarcely suffice
to attain the requisite learning.
In truth, the common law, as a science, mlust be forever in
progress; and no limits can be assigned to its principles
or improvements. In this respect it resembles the natural
sciences, where new discoveries continually lead the way to
new, and sometimes to astonishing, results. To say, therefore, that the common law is never learned, is almost to utter
a truism., It is no imore than a declaration, that the human
mind cannot compass all human transactions. It is its true
glory, that it is flexible, and constantly expanding with the
exigencies of society; that it daily presents new motives for
new and loftier efforts; that it holds out forever an unapproached degree of excellence; that it moves onward in the
path towards perfection, but never arrives at the ultimate
point.




THE VALUE AND IMiPORTANOE OF LEGAL STUDIES.  527
But the student should not imagine, that enough is done,
if he has so far mastered the general doctrines of the common
law, that he may enter with some confidence into practice.
There are other studies, which demand his attention.  He
should addict himself to the study of philosophy, of rhetoric,
of history, and of human nature. It is from the want of this
enlarged view of duty, that the profession has sometimes
been reproached with a sordid narrowness, with a low chicane,
with a cunning avarice, and with a deficiency in liberal and
enlightened policy.  Mr. Burke has somewhat reluctantly
admitted the fact, that the practice of the law is not apt,
except in persons very happily born, to open and liberalize
the mind exactly in the same proportion as it invigorates the
understanding; and that men too much conversant in office
are rarely minds of remarkable enlargement.s  And Lord
Bacon complains, that lawyers have never written as statesmen.2  The reproach is in some measure deserved.  It is,
however, farless true in our age than in former times; and
far less true in America than in England.  Many of our most
illustrious statesmen have been lawyers; but they have been
lawyers liberalized by philosophy, and a large intercourse
with the wisdom of ancient and modern times. The perfect
lawyer, like the perfect orator, must accomplish himself for
his duties by familiarity with every study. It may be truly
said, that to him  nothing, that concerns human nature or
human art, is indifferent or useless. He should search the
human heart, and explore to their sources the passions, and
appetites, and feelings of mankind. He should watch the
motions of the dark and malignant passions, as they silently
approach the chambers of the soul in its first slumbers. He
should catch the first warm rays of sympathy and benevolence,
as they play around the character, and are reflected back from
its varying lines. He should learn to detect the cunning arts
1 See Burke's Reflections on the French Revolution, and( Speech on American Taxation.
2Lord Bacon on the Advancement of Learning, 1 Bacon's Works, 218.




528             MISCELLANEOUS WRITINGS.
of the hypocrite, who pours into the credulous and unwary
ear his leperous distilment. He should for this purpose make
the master-spirits of all ages pay contribution to his labors.
He should walk abroad through nature, and elevate his
thoughts, and warm his virtues, by a contemplation of her
beauty, and magnificence, and harmony. He should examine
well the precepts of religion, as the only solid basis of civil
society; and gather from them, not only his duty, but his
hopes; not merely his consolations, but his discipline and his
gloryj  He should unlock all the treasures of history for illustration, and instruction, and admonition. He will thus see
man, as he has been, and thereby best know what he is. He
will thus be taught to distrust theory, and cling to practical
good; to rely more upon experience than reasoning; more upon
institutions than laws; more upon checks to vice than upon
motives to virtue. He will become more indulgent to human
errors; more scrupulous in means, as well as in ends; more
wise, more candid, more forgiving, more disinterested. If the
melancholy infirmities of his race shall make him trust men
less, he may yet learn to love man more.
Nor should he stop here. He must drink in the lessons and
the spirit of philosophy.  I do not mean that philosophy
described by Milton, as
" A perpetual feast of nectared sweets,
Where no crude surfeit reigns;"
but that philosophy which is conversant with men's business
and interests, with the policy and the welfare of nations; that
philosophy, which dwells, not in vain imaginations, and Platonic dreams; but which stoops to life, and enlarges the
boundaries of human happiness; that philosophy, which sits
by us in the closet, cheers us by the fireside, walks with us in
the fields and highways, kneels with us at the altars, and
lights up the enduring flame of patriotism.
What has been already said rather presupposes than insists
upon the importance of a full possession of the general lite



THE VALUE AND IMPORTANCE OF LEGAL STUDIES.  529
rature of ancient and modern times. It is this classical learning alone, which can impart a solid and lasting polish to the
mind, and give to diction that subtile elegance and grace
which color the thoughts with almost transparent hues. It
should be studied, not merely in its grave disquisitions, but
in its glorious fictions, and in those graphical displays of the
human heart, in the midst of which we wander as in the
presence of familiar but disembodied spirits.
It is by such studies, and such accomplishments, that the
means are to be prepared for excellence in the highest order
of the profession. The student, whose ambition has measured them, if he can but add to them the power of eloquence,
(that gift, which owes so much to nature, and so much to
art,) may indeed aspire to be a perfect lawyer. It cannot be
denied, indeed, that there have been great lawyers who were
not orators; as there have been great orators who were not
lawyers. But it must be admitted at the same time, that,
when both characters are united in the same person, human
genius has approached as near perfection as it may.  They
are kindred arts, and flourish best in the neighborhood of
each other.l
The eloquence of the bar is far more various and difficult
than that which is required in the pulpit, in the legislative
hall, or in popular assemblies. It occasionally embraces all
that belongs to each of these places, and it has, besides, many
varieties of its own. In its general character it may be said
to be grave, deliberative, and earnest, allowing little indulgence to fancy, and less to rhetori    But, as it must necessarily change its tone, according to its subject, and the
tribunal, to which it is addressed, whether the court or the
jury, there is ample scope for the exercise of every sort of
talent, and sometimes even for dramatic effect. On some
occasions it throws aside all the little plays of phrase, the
vivid touches of the pencil, and the pomp and parade of dic1 " Prveclaras duas artes," says Cicero, " atque inter se pares, et ejusdem
socias dignitatis." Cic. de Oratore, Lib. i. ~ 55.
45




530             MISCELLANEOUS WRITINGS.
tion. It is plain, direct, and authoritative. Its object is to
convince the understanding, and captivate the judgment, by
the strength and breadth of its reasoning. Its power is in the
thought, and not in the expression; in the vigor of the blow
from the hand of a giant; in the weight of the argument,
which crushes, in its fall, what it has not levelled in its progress. At other times it is full of calm dignity and persuasiveness. It speaks with somewhat of the majesty of the law
itself, in strains of deep, oracular import. It unfolds its results with an almost unconscious elegance, and its thoughts
flash like the sparkles of the diamond. At other times it is
earnest, impassioned, and electrifying; awing by its bold
appeals, or blinding by its fiery zeal. At other times it is
searching, and acute, and rigorous; now brilliant in point,
now gay in allusion, now winning in insinuation. At other
times it addresses the very souls of men in the most touching
and pathetic admonitions. It then mingles with the close
logic of the law those bewitching graces which soothe prejudice, disarm resentment, or fix attention. It utters language,
as the occasion demands, which melts to pity, or fires with
indignation, or exhorts to clemency. 
But, whatever may be the variety of effort demanded of
forensic eloquence, whether to convince, or captivate, or persuade, or inflame, or melt; still its main character must for
ever be like the "grave rebuke," so finely sketched by our
great epic poet, "severe in youthful beauty," that it may
possess an "added grace invincible." 1 It may not stoop to
ribaldry, or vulgar jests, or sickly sentimentality, or puerile
conceits. It forbids declamation, and efflorescence of style.
There is no room for the loquacity of ignorance, or the insolence of pride. If wit be allowable, it must be chaste and
polished. The topics discussed in courts of justice are too
grave for merriment, and too important for trifling When
life, or character, or fortune, hangs on the issue, they must be
vindicated with dignity, as well as with force.
1 Paradise Lost, Book iv. line 844.




THE VALUE AND IMPORTANCE OF LEGAL STUDIES.  531
But I forbear. I seem, indeed, when the recollection of
the wonders wrought by eloquence comes over my thoughts,
to live again in scenes long since past. The dead seem
again summoned to their places in the halls of justice, and to
utter forth voices of an unearthly and celestial harmony. The
shades of Ames, and Dexter, and Pinkney, and Emmett pass
and repass, not hush as the foot of night, but in all the splendor of their fame, fresh with the flush of recent victory. I
may not even allude to the living. Long, long may they
enjoy the privilege of being nameless here, whose names are
everywhere else upon the lips of praise.
Enough has been said, perhaps more than enough, to
satisfy the aspirant after juridical honors, that the path is
arduous, and requires the vigor of a long and active life. Let
him not, however, look back in despondency upon a survey
of the labor. The triumph, if achieved, is worth the sacrifice.
If not achieved, still he will have risen by the attempt, and
will sustain a nobler rank in the profession. If he may not
rival the sagacity of Hardwicke, the rich and lucid learning
of Mansfield, the marvellous judicial eloquence of Stowell,
the close judgment of Parsons, the comprehensive reasoning
of Marshall, and the choice attainments of Kent;- yet he
will, by the contemplation and study of such models, exalt
his own sense of the dignity of the profession, and invigorate
his own intellectual powers. He will learn that there is a
generous rivalry at the bar; and that every one there has his
proper station and fame assigned to him; and that, though
one star differeth from another in glory, the light of each may
yet be distinctly traced, as it moves on, until it is lost in that
common distance, which buries all in a common darkness.
Having spoken thus much upon the dignity, the qualifications, and the duties of the profession, I trust it will not be
supposed that we have the rashness to indulge the belief that
the Law Institutions here, under the guidance of its present
Professors, can fill up the outline which has thus been traced.
My learned brother will, indeed, bring to the task of instruc



,532            MISCELLANEOUS WRITINGS.
tion, the ardor, the attainments, and the experience, which
elsewhere have given him such an elevated reputation.
Little, indeed, of what has been sketched out in this discourse, can be attained by any academical instruction during
the usual period assigned for the preparatory studies for the
bar. And of that little, we have not the presumption to
believe, that our method or efforts can reach even our own
wishes and opinions. What we propose is no more than
plain, direct, familiar instruction; something to assist the
student in the first steps of his studies; something to cheer
him in his progress; something to disencumber him of difficulties by the wayside; and something to awaken a sincere
ambition for professional excellence.
For myself, I am but too conscious how little I can bring
to the task, worthy of the occasion. The perpetual round of
judicial duties, full of anxious thoughts and anxious vigils,
might, even at an earlier period of my life, have repressed the
elasticity of hope. But in entering upon new duties at the
present time, I confess myself more fearful of failure than
ambitious of distinction. I may not say, with the enviable
self-satisfaction of an eminent judge, now reposing in leisure
sustained with dignity, that " Long absence from the bar,
the consequent want of practice, age, the enjoyment of repose, and the indolence which that repose often produces,
have increased my unwillingness to undertake a work of
labor." 1 But I may say, in the language of a kindred mind
to his, that, " After a certain age and portion of experience,
the sense of duty becomes a stronger principle of action than
the love of reputation."2 I shall be content, therefore, if,
able to meet the duties of the office, I shall not wholly disappoint the expectations of the founder, by whose kind solicitude I have been advanced to this chair. Indeed, I may
say, that but from a desire to justify his early friendship, (as
welcome as it was then unexpected,) and to express my own
sense of his liberal donation, I should have declined a post
1 Lord Resdesdale.             2 Chancellor Kent.




THE VALUE AND IMPORTANCE OF LEGAL STUDIES.  533
which others might fill with more undivided attention;
though not, perhaps, with more sincere zeal. Under such
circumstances, I hope that I may be permitted to occupy a
few moments more, in expounding the objects of this professorship, and thus demonstrate the wisdom and munificence of the founder.
The duties assigned to the Dane Professorship are, in the
first instance, to deliver lectures upon the Law of Nature, the
Law of Nations, Maritime and Commercial Law, Equity
Law, and, lastly, the Constitutional Law  of the United
States. No reflecting man can hesitate to admit the importance of these branches of jurisprudence, and their intimate connection with the best interests of civilized society.
To comment on either of them fully and worthily might well
employ the diligence of a long life, without exhaustion or
repetition. A course of lectures, therefore, which embraces
them all, must necessarily treat them in a brief, summary,
and imperfect manner. It must suggest matter for inquiry,
rather than expound principles with copiousness. It must
excite, rather than satisfy, curiosity. It must illustrate by
examples, rather than exhaust by analysis. It must display
the foundations, rather than the size or exact proportions, of
the edifice. It must, if I may venture upon such a metaphor, conduct the inquirer to the vestibule of the temple of
jurisprudence; and leave to his future curiosity the survey of
its magnificent halls, its decorated columns, its splendid porticos, its harmonized orders, its massive walls, its varied
crypts, its lofty domes, its "ever-during gates, on golden
hinges moving."
And first, the law of nature. This lies at the foundation
of all other laws, and constitutes the first step in the science
of jurisprudence. The law of nature is nothing more than
those rules which human reason deduces from the various
relations of man, to form his character, and regulate his conduct, and thereby insure his permanent happiness. It embraces a survey of his duties to God, his duties to himself,
45*




534             MISCELLANEOUS WRITINGS.
and his duties to his fellow men; deducing from those duties
a corresponding obligation. It considers man, not merely in
his private relations as a social being, but as a subject and
magistrate, called upon to frame, administer, and obey laws;
and owing allegiance to his country and government; and
bound, from the protection he derives from the institutions of
society, to uphold and protect them in return. It is, therefore,
in the largest sense, the philosophy of morals; what Justinian
has defined justice to be: " Constans et perpetua voluntas jus
suum cuique tribuendi;" or what may be denominated
national jurisprudence, as expounded by the same authority:
" Divinarum atque humanarum rerum notitia, justi atque injusti
scientia."  With us, indeed, who form a part of the Christian
community of nations, the law of nature has a higher sanction, as it stands supported and illustrated by revelation.
Christianity, while with many minds it acquires authority
from its coincidences with the law of nature, as deduced
from reason, has added strength and dignity to the latter by
its positive declarations.  It goes farther. It unfolds our
duties with far more clearness and perfection than had been
known before its promulgation; and has given a commanding force to those of imperfect obligatio4  It relieves the
mind from many harassing doubts and disquietudes; and
imparts a blessed influence to the peaceful and benevolent
virtues, to mercy, charity, humility, and gratitude. It seems
to concentrate all morality in the simple precept of love to
God and love to man. It points out the original equality of
all mankind in the eyes of the Supreme Being, and brings
down the monarch to the level of his subjects. It thus endeavors to check the arrogance of power, and the oppression
of prerogative; and becomes the teacher as well as the advocate of rational liberty. Above all, by unfolding, in a more
authoritative manner, the doctrine of the immortality of the
soul, it connects all the motives and actions of man in his
present state with his future interminable destiny. It thus
exhorts him to the practice of virtue by all that can awaken




THE VALUE AND IMPORTANCE OF LEGAL STUDIES.   535
hope or secure happiness. It deters him from crimes, by all
that can operate upon his fears, his sensibility, or his conscience. It teaches him that the present life is but the dawn
of being; and that in the endless progress of things the
slightest movement here may communicate an impulse which
may be felt through eternity. Thus, Christianity becomes,
not merely an auxiliary, but a guide, to the law of nature;
establishing its conclusions, removing its doubts, and elevat.
ing its precepts.
In this manner it is that the law of nature involves a consideration of the nature, faculties, and responsibilities of man.
From his intellectual powers, and the freedom of his will, it
deduces his moral perceptions and accountability. From his
love of happiness, as the end and aim of his being, it deduces
the duty of preserving that happiness. From his dependence
upon the Supreme Being, whose will has indissolubly connected virtue with happiness, it deduces the primary duty of
obedience to that will. From these simple elements, it proceeds to consider him in the various relations of life, in which
he may be placed, and ascertains in each his obligations and
duties. It considers him as a solitary being, as a member of
a family, as a parent, and lastly, as a member of the commonwealth.
The consideration of this last relation introduces us at
once to the most interesting and important topics; the nature,
objects, and end of government; the institution of marriage;
the origin of the rights of property; the nature and limits
of social liberty; the structure of civil and political rights;
the authority and policy of laws; and, indeed, all those institutions which form the defence and the ornament of civilized
society. I
Upon many of these topics, of which a very imperfect
1 Mr. Hoffman's Legal Outlines, of which the first volume only is yet pablished, contains some very interesting and valuable disquisitions upon several
of the topics belonging to this branch of law. I trust the learned author
will soon favor the public with the residue of his work.




536             MISCELLANEOUS WRITINGS.
sketch can here be given, I shall speak with much brevity and
reserve, for two reasons. In the first place, in the course of
the academical instruction in this University already provided
for, the subjects of ethics, natural law, and theology, are
assigned to other professors. In the next place, in the elementary education, everywhere passed through before entering upon juridical studies, they are usually taught with sufficient fulness and accuracy.
In the second place, the Law of Nations. By this we are
to understand, not merely that portion of public law which
is generally recognized among nations (as seems to have
been the prevailing sense of the phrase in the Roman code,)
but that portion of public law which regulates the intercourse,
adjusts the rights, and forms the basis, of the commercial
and political relations of states with each other. Perhaps
the most appropriate name would be, International Law, jus
inter gentes. It has in this view been very correctly subdivided into three sorts; first, the natural or necessary law
of nations, in which the principles of natural justice are applied to the intercourse between states; secondly, the customary law of nations, which embodies those usages which
the continued habit of nations has sanctioned for their mutual interest and convenience; and thirdly, the conventional
or diplomatic law of nations, which embraces positive compacts by treaties and conventions between nations, and
derives its sole obligation from the same sources as other
contracts3 Under this last head many regulations will now
be found which at first resulted from custom, or a general
sense of justice, and are now  made of positive obligation,
for the purpose of preventing national disputes and collisions.
Upon the general theory of the law of nations, much has
been written by authors of great ability and celebrity. At
the head of the list stands that most extraordinary man Grotius, whose treatise, de Jure Belli et Pacis, was the first
great effort in modern times to reduce into any order the
principles belonging to this branch of jurisprudence, by de



THE VALUE AND IMPORTANCE OF LEGAL STUDIES.   537
ducing them from the history and practice of nations, and
the incidental opinions of philosophers, orators, and poets.
His eulogy has been already pronounced in terms of high
commendation, but so just and so true that it were vain to
follow or add to his praise.1 Puffendorf, in a dry, didactic
manner, has drawn out, in the language of the times, much
to strengthen the conclusions of his master upon natural
law; and the sagacity of Barbeyrac, in his luminous Commentaries, has cleared away many obscurities, and vindicated
many positions. Wolfius, who is better known among us in
his elegant abridger, Vattel, has more elaborately discussed
the theory with the improved lights of modern days. And
Ward, in his unpretending, but exact, Inquiry into the Foundation and History of the Law of Nations in Europe, from
the time of the Greeks and Romans to the age of Grotius,
has afforded ample materials for illustration and profound
reflection. Bynkershoeck is a writer of a very different cast;
and in a clear, bold, and uncompromising manner, lays down
his principles, as practical results, with a brevity and vigor,
which give them almost the authority of a text-book. He is
not, however, a mere apologist, or collector of usages; but
he insists, with an animated vehemence, that reason is the
very soul of the law of nations.  " Ratio ipso, inquam, ratio
juris gentium est anima." 2
But I know not if there be in existence any treatise on
this subject which, in point of fulness and accuracy of principles, or copiousness of detail, is adapted to the exigencies
of modern society, or is calculated in any moderate degree
to satisfy the expectations of a scholar or a publicist. There
I Sir James Mackintosh, in his Introductory Discourse on the Law of
Nations.
2 Bynker. Quest. Pub. Jur. ch. 2. Mr. Du Ponceau's Translation of this
work is a most valuable present to the profession. Indeed, when one considers the liberal and acute spirit which pervades all the juridical publications of Mr. Du Ponceau, it is matter of universal regret that he has not
exclusively devoted his life to the exposition of law, and particularly of the
civil law.




538             MISCELLANEOUS WRITINGS.
is yet living a man 1 whose character, as a philosophical
moralist, enlightened statesman, and liberal jurist, commands
universal respect, who taught us in his early performances
that to his genius we might thereafter owe such an invaluable
donation. But the lapse of thirty years, and the seductive
influence of other studies, lead us now to fear that our hopes
will end in disappointment. Such a treatise should embrace,
among other things, a general view of the sovereignty, equality, and independence of nations; the rights of public domain, and territorial jurisdiction in rivers, bays, lakes, and
streams, and the ocean; the intercourse of nations in times
of peace in respect to commerce and navigation; the imnmunities, and liabilities, and privileges of foreigners; the rights
and duties of ambassadors and other ministers; the grounds
of just war; the rights and duties of belligerents and neutrals, and the limits of just hostilities; the rights of conquest;
the nature of piracy; the nature and effect of alliances,
armistices, passports, and safe-conducts; and the negotiation,
interpretation, and obligation of treaties of peace and other
treaties.
My object will be, in the discussion of these topics, to expound the general theory with as much conciseness as the
nature of the case will admit; and to devote my principal
labor to the development of those practical results, which are
of perpetual application in the common business of life, and
regulate the daily concerns of individuals and nations, in
peace and in war. For this purpose, I shall adventure far
more than has been usual with publicists, into an examination of those general principles of jurisprudence, which affect
the contracts, govern the titles, and limit the remedies of the
subjects of independent powers, who acquire rights, or contract obligations, or succeed to property, or are in any measure subjected to the municipal law in a foreign country.
This will include a variety of delicate and interesting topics
1 Sir James Mackintosh. [He is since dead.]




THE VALUE AND IMPORTANCE OF LEGAL STUDIES.  539
belonging to the operation of foreign jurisprudence, or, as it
is sometimes called, the lexfori et lex loci. Among these are
the law of foreign domicil and expatriation; of foreign marriages, divorces, and crimes; of foreign testaments, and successions ab intestato; of foreign grants and agreements; of
foreign prescriptions, limitations, presumptions, discharges,
and judgments; of foreign asylum to deserters and fugitives;
and, as incidental, the nature and extent of the jurisdiction,
exercised by courts of law in enforcing rights between
foreigners, or giving effect to the municipal prohibitions of
foreign countries. I shall also adventure upon an ample discussion of the law of prize, including therein the law of
captures, and recaptures, and reprisal, the law of postliminy,
and the law of contraband, and blockade, and illegal trade.
And, as a fit conclusion of such a discussion, I shall give a
summary view of the practice and jurisprudence of those
tribunals, emphatically called courts of the law of nations,
which in every country are ordained to administer this important branch of public law.  In England and America,
this jurisdiction is vested in the courts of admiralty. In this
part of my labors I shall freely use the materials, which have
been furnished by those distinguished civilians, who have
from time to time adorned the English and American courts
of admiralty. And, above all, I shall endeavor to avail myself of those masterly judgments, full of wisdom, and learning, and captivating eloquence, which have been pronounced
within the last thirty years by a man 1 to whom, in my deliberate opinion, the world is more indebted for a practical
exposition of the law of nations upon the eternal principles
of justice and reason, than to all the jurists of all former
ages.
In the next place, Equity Jurisprudence. This is a very
comprehensive head of our municipal law, and in its actual
administration probably embraces as great a variety and
I Lord Stowell, (late Sir William Scott.)




540             MISCELLANEOUS WRITINGS.
extent of learning, as the aggregate of all those, which now
fall within the jurisdiction of the courts of common law, in
the strict sense of the terms. The jurisdiction in equity is
sometimes concurrent with courts of common law, as in matters of account, partition, and dower; and sometimes it is
exclusive and paramount. Its exclusive jurisdiction covers
an immense mass of doctrines, relative to truths, frauds,
mistakes, and accidents, and other'cases, vWhich the remedial
justice of the common law courts cannot reach. It is a comrmon, but groundless notion, that equity consists in the administration of a sort of discretionary justice; and is not, like
the common law, built upon exact principles and settled rules;
that it is a transcendental power, acting above the law, and
superseding and annulling its operations, and resting in an
undefined and arbitrary judgment, at best the arbitrium boni
viri, rather than bonijurisconsulti.  There is, therefore, among
those, who have not cultivated it as a science, a spectral
dread of it, as if some unquiet spirit walked abroad to disturb
the repose of titles, and revive forgotten and dormant claims.
It is strange, that such a delusion should find countenance,
even within the pale of the profession itself. There is not, at
the present moment, a single department of the law, which
is more completely fenced in by principle, or that is better
limited by considerations of public convenience, both in
doctrine and discipline, than equity. It is an intricate, but
an exquisitely finished system, wrought up with infinite care,
and almost uniformly rational and just in its conclusions.
Indeed, that portion of the common law, which is now most
admired for its sound policy, derives its principal attraction
from its being founded in a large and liberal equity, and
therefore is assumed as a rule equally at Paris and at London,
at Rome and at Washington. If it would not occupy too
much space in an introductory discourse, I might vindicate
these assertions against every objection. But this is not the
time, or the occasion.
In the next place, Commercial and Maritime Law. By




THE VALUE AND IMPORTANCE OF LEGAL STUDIES.  541
commercial law, we are accustomed to understand those
branches of jurisprudence, which regulate the operations of
trade at home and abroad; and by maritime law, those,
which concern navigation, shipments, commerce, and other
transactions on the sea. In truth, they are perpetually running into each other, as the streams of many rivers flow into
the ocean, and form a part of its mass of waters, and are
almost incapable of an absolute separation. There can be
little need to descant upon the value and importance of this
part of our jurisprudence. It is the golden chain, which connects the nations of the earth, and binds them together in the
closest union. It comes home to every man's business and
bosom; and is as captivating by the philosophy of its doctrines, as it is comrnmendable for its sound morals, its flexible
adaptations, and its enlightened policy. Much of its excellence, it must be admitted, is the growth of modern times.
Its history may easily be traced back to the classical shores
of the Mediterranean, where maritime enterprise, upon the
revival of letters, spread itself with wonderful rapidity and
success. It succeeded the age of chivalry; and, by blending
the common interests of nations, it softened the manners, and
subdued the barbarous spirit of rivals and adversaries. The
customs of trade and navigation soon acquired the authority
of law; and assisted by the persuasive equity of the Roman
law of contract, (then much studied and admired, and still
entitled to profound admiration,) it silently pervaded all
Europe, from the farther Calabria to the frozen Baltic. The
Consolato del Mare, which still instructs us by the wisdom of
its precepts, is but a collection of the rules and maxims of this
voluntary international code. The celebrated Ordinance of
Louis the Fourteenth (which will be gratefully remembered,
when his ambitious projects are lost in the dimness of tradition) is little more than a text gathered from the civilians, and
the customs of commerce, by the genius of a minister, whose
life seemed devoted to the interests of posterity. England
was almost the last to receive into her bosom this beau46




542            MISCELLANEOUS WRITINGS.
tiful effort of human reason. Little more than a century has
elapsed, since she could scarcely be said to possess any commercial jurisprudence. The old common lawyers repelled it
with a sullen inhospitality and indifference. And, though it
cannot be doubted, that the spirit of commerce would, first
or last, have forced it into the courts of England, and compelled them to protect the interests, which the enterprise of
her subjects had created; it may be reasonably questioned,
whether, but for the extraordinary genius of Lord Mansfield,
she would not have been, at this very moment, a century
behind continental Europe in adopting its doctrines.  He
was in a great measure the author of the law of insurance;
and he gave to the other branches of commercial law a clearness and certainty, which surprise us more and more, as we
examine and study his decisions. That he borrowed much
from foreign jurisprudence is admitted; but he more than
repaid every obligation to these sources. He naturalized the
principles of commercial law, when he transplanted them
into the soil of England, and they have flourished with new
vigor in her genial climate. It is her just boast, that, having
been once a tributary, she has now in turn laid the whole
continent under contribution.  Her commercial law has
attained a perfection, order, and glory, which command the
reverence of the whole world. It is almost universally followed and obeyed; not, indeed, as of positive institution;
but as wisdom, practical wisdom, acting upon the results
of a large experience, in a government, where opinion is
free, and justice is administered without favor and without
reproach.
A treatise upon this branch of law must necessarily comprehend a wide range of subjects. It must discuss, among
other things, the law of principals and agents, brokers, factors,
and consignees; of partnerships, and other joint ownerships;
of negotiable instruments, such as bills of exchange, promissory notes, checks, and bills of lading; of contracts of bailment, shipments, and affreightment; and, as incidents, of




THE VALUE AND IMPORTANCE OF LEGAL STUDIES.  543
charter-parties, freight, demurrage, and stoppage in trhansitu'
of navigation and shipping, and, as incidents, the rights and
duties of owners, masters, and mariners; and of insurance,
bottomry, respondentia, salvage, and general average. My
object will be to deal as fully with these topics, as may consist with the limits, by which every system of lectures must
be circumscribed.
In the last place, the Constitutional law of the United
States. In the correct exposition of this subject there is not
a single American citizen, who has not deep stake and permanent interest. " In questions merely political," says Junius,
an honest man may stand neuterj  But the laws and constitution are the general property of the subject. Not to defend,
is to relinquish; and who is so senseless as to renounce his
share in a common benefit, unless he hopes to profit by a new
division of the spoil? " 1 The existence of the union of these
States does (as I think) mainly depend upon a just administration of the powers and duties of the national government;
upon the preservation of that nice, but ever-changing influence, which balances the state and general governments, and
tends, or should always tend, to bring them into a due equilibrium. There is no safety to our civil, religious, or political
rights, except in this union. And it is scarcely too much to
affirm, that the cause of liberty throughout the world is in no
small measure suspended upon this great experiment of selfgovernment by the people. I shall endeavor in my commentaries upon this important branch of political law, to discuss
it with all the delicacy and reserve becoming my official
station, and with all the sobriety appertaining to the fundamental law of organization of a free government. My object
will be to unfold its divisions, and explain its principles, as
far as practicable, by the lights of those great minds, which
fostered into being, and nourished its infancy. I shall deal
little with speculative discussions, and still less with my own
1 Letter 41, to Lord Mansfield.




544             MISCELLANEOUS WRITINGS.
personal opinions. But I shall rely with undoubting confidence upon the early commentaries of its framers, upon the
legislative recognitions of authority and duty, and the judicial
decisions of the highest courts, as safe guides for interpretation. Above all, I shall freely use the doctrines of the admirable production I of Hamilton, Madison and Jay, (patriots as
pure, and statesmen as wise as any, who have graced our
country,) which has already acquired the weight of an authority throughout America. If by such means I shall contribute
to fix in the minds of American youth a more devout enthusiasm for the constitution of their country, a more sincere
love of its principles, and a more firm determination to adhere
to its actual provisions against the clamors of faction, and the
restlessness of innovation, my humble labors will not be without some reward in the consciousness of having contributed
something to the common weal.
I have thus sketched a general outline of the course of
lectures which the founder of the Dane Professorship has in
the first instance assigned to this chair for the encouragement
of juridical learning. Imperfect as this outline is, it must
strike the most superficial observer, how rich and various are
the topics which it proposes to examine; how extensive is
the learning, and how exhausting the diligence, to accomplish
the design.:While it does honor to the public spirit, and
the sagacit  a d the enlightened zeal of the founder; while
it testifies his enthusiasm for the science in which he has so
deservedly attained eminence, it at the same time admonishes us, that he, who matured the plan, seems alone to possess the courage and ability to execute it with complete
success. In truth, the venerable founder has measured the
strength of others by his own; and scarcely seems to have
suspected the difficulties of the task, from the consciousness
of his own power to subdue them. The skilful guide in the
Alps walks with fearless confidence in the midst of dangers
1 The Federalist.




THE VALUE AND IMPORTANCE OF LEGAL STUDIES.  545
which appall the traveller who has never made trial of his
strength. Lord Coke, himself a prodigy of professional learning, has somewhere laid down, for the benefit of students,
the various employments for every day, and has assigned six
hours for the pursuit of the law.' Lord Hale has limited his
exactions to the same period;2 and Sir  1tr Jones, whose
early ambition thought that all the departments of law might
be mastered by a single mind in satisfactory commentaries,
has not ventured upon a different assignment of labor.3 I feel
justified in saying, that for more than fifty years our generous
patron has daily devoted to his favorite studies of politics
and jurisprudence more than double that number of hours.
I trust it will not be deemed an intrusion, if upon this
occasion I venture to speak somewhat of the public services
of this distinguished lawyer, which are already matter of
notoriety, and, considering his age and character, may almost
be deemed matter of history.
It is now more than fifty years since Mr. Dane first came to
the bar, and brought to its practice his varied stores of knowledge. He was almost immediately engaged in the duties
of legislation in this, his native state; and to him we are
chiefly indebted for the first general revisal of our Provincial
Statutes, as well as for other improvements in our code of
positive law. At the distance of thirty years, he was again
called by the voice of the legislature to a similar duty; and
to him, in a great measure, we owe the valuable collection of
our Colonial and Provincial Statutes, which now adorns our
libraries. In the intermediate period he served many years
I Co. Litt. 64 b.
" Sex horas somno, totidem des legibus Taquis,
Quatuor orabis, des epulis duas.
Quod superest, ultro sacris largire camoenis."
2 Boswell's Life of Johnson, iii. 398.
3 Teignmouth's Life of Sir William Jones, p. 257.
"Six hours to law, to soothing slumber seven,
Ten to the world allot, and all to Heaven."
See also, Law of Bailments, pp. 122, 123.
46'




546              MISCELLANEOUS WRITINGS.
in the Continental Congress, during some of its most difficult
operations, and there maintained a high reputation for sound
judgment, and an inflexible adherence to the best principles
of political polity. His advancement to public life was
always unsought for by himself; and his retirement from it
has always been matter of public regret. To him belongs
the glory of the formation of the celebrated Ordinance of
1787, which constitutes the fundamental law of the states
northwest of the Ohio. It is a monument of political wisdom, and sententious skilfulness of expression. It was
adopted unanimously by Congress, according to his original
draft, with scarcely the alteration of a single word. After
his retirement from public life he devoted himself with
matchless assiduity to the duties of the bar; and gradually
arriving at the first rank, he became the guide, the friend,
and the father of the profession in his own county. In the
midst of an extensive practice, he found leisure to compile
his Digest and Abridgment of American Law, which, in
eight large octavo volumes, comprehends a general survey of
all our jurisprudence, and attests the depth of his learning,
his unwearied industry, and his independent, but cautious,
judgment. It is now some years since he bade farewell to
the bar, but not to his favorite studies.1 In contemplating
his professional character, one is perpetually reminded of the
fine portrait of Lord Chief Justice Rolle, drawn by Lord
Hale, in his Preface to Rolle's Abridgment of the Law,
which has so close a resemblance, that it seems another, and
the same. " He argued frequently and pertinently," says
Lord Hale; "his arguments were fitted to prove and evince,
not for ostentation; plain, yet learned; short, if the nature of
the business permitted, yet perspicuous. His words few, but
significant and weighty. His skill, judgment, and advice, in
points of law and pleading, were sound and excellent.  In
1 A supplementary volume (now constituting the ninth) of his Digest and
Abridgment, was published by Mr. Dane a short time after this Discourse
was delivered, - which contains an abstract of thirty volumes of reports.




THE VALUE AND IMPORTANCE OF LEGAL STUDIES.   547
short, he was a person of great learning and experience in
the common law, profound judgment, singular prudence,
great moderation, justice, and integrity."   Mr. Dane has
nobly dedicated the whole proceeds of his great work to the
establishment of this professorship; and thus has become to
our parent University, in the highest sense, the American
Viner. I am but too sensible, that here the parallel must
stop; and that to pursue it farther would cover him with
humiliation, who now addresses you. To the liberal donation of Mr. Viner the world is indebted for the splendid Commentaries of Sir William Blackstone, a work of such singular exactness and perspicacity, of such finished purity and
propriety of style, and of such varied research, and learned
disquisition, and constitutional accuracy, that, as a textbook, it probably stands unrivalled in the literature of any
other language, and is now studied as a classic in America,
as well as in England. Perhaps when we are gathered in
the dust, some future Blackstone, nursed and reared in this
school, may arise; and by a similar achievement blend his
own immortality with the fame of the founder. Would to
God, that it may be so! Then would this fair seat of science
become the pride of the law, as it now is the pride of the
literature of our country.
When we look around us, and consider how much has
been done by this University for the glory and safety of the
Commonwealth; when we recollect how many distinguished
men have been nourished in her bosom, and warmed by her
bounty, and cheered by her praise;  it is impossible to sup1 The members delegated from Massachusetts to serve in the Revolutionary Congress between 1774 and 1789, (when the new Constitution was
adopted,) were in number twenty-one. Of these, seventeen were educated
in Harvard University. Their names are as follows: Samuel Adams,
Thomas Cushing, John Hancock, John Adams, Robert T. Paine, Francis
Dana, Elbridge Gerry, John Lowell, Samuel Osgood, Jonathan Jackson,
Artemas Ward, George Partridge, Rufus King, James Lovell, Samuel A.
Otis, George Thacher, and Nathan Dane. Mr. Dane, at the time of the
delivery of' this Discourse, was the sole survivor. He is since deceased,
having died on the 15th of February, 1833.




548              MISCELLANEOUS WRITINGS.
press the wish, the earnest wish, that this last triumph may
yet crown her matron dignity. ~What consolation could be
more affecting to her grateful children, than that in these
academical shades there should arise a temple, sacred to the
majesty of the law; where our future orators, and jurists,
and judges, and statesmen, might mature their genius, and
deepen their learning, and purify their ambition; where
future generations may approach, and read the wisdom of
the law, as it is personified in the glowing sketch of Algernon
Sidney: " It is void of desire and fear, lust and anger. It is
mens sine affectu, written reason, retaining some measure of
the divine perfection. It does not enjoin that which pleases
a weak, frail man; but, without any regard to persons, commands that which is good, and punishes evil in all, whether
rich or poor, high or low. It is deaf, inexorable, inflexible." i
1 Works of Algernon Sidney, sect. 15, p. 69.




INFLUENCE OF SCIENTIFIC STUDIES.
A DISCOURSE INTRODUCTORY TO A.COURSE OF LECTURES BEFORE THE
FAMILIES OF THE PROFESSORS IN HARVARD UNIVERSITY, DELIVERED
IN HOLDEN CHAPEL, DECEMBER 23, 1850.
I SHOULD have hesitated to address you on the present
occasion if it had been supposed to involve any peculiar or
extraordinary duties. I have not the leisure to mature a
discourse which should invite the attention of the learned by
the extent of its views, or the depth of its investigations.
The necessities arising from the constant pressure of professional engagements would alone be sufficient to induce me
to decline the task, even if more -obvious considerations did
not lead me to the same result. He who wouldaddress himself to those who have cultivated literature with eminent
success, or who have travelled, not merely through the broad
ways, but the intricate mazes of science, must feel that he
has many things to do, before he can suitably meet the just
expectations of his audience. It is not for him, under such
circumstances, to place entire reliance upon the resources of
his own mind, however comprehensive they may seem to be.
It is not for him, under such circumstances, to draw exclusively upon his own genius or imagination for views original
or attractive. He may not rest even on the powers of eloquence (if he should happen to possess them) to adorn his
topics with the beauties of an animated diction, or the graces
of a vivid style.  His thoughts may be brilliant, without
being just; or just, without being striking; so as to lead to
the bitter sarcasm, that his discourse contains many things




550            MISCELLANEOUS WRITINGS.
new, and many things true; but the new is not true, and the
true is not new. The least of his anxiety, however, should
be. under such circumstances, to be original; for who can,
without rashness, imagine that, after the lapse of so many
ages, in which the lives of so many of the brightest of human minds have been devoted to the cause of science; who,
I say, can, without rashness, imagine that little of truth has
hitherto been gathered, and that her ample stores are, for the
first time, about to be revealed to his sight? If he should
indulge in such a vain and dreamy self-complacency, he
would painfully learn that other minds had already anticipated almost all his peculiarities of opinion and comment;
that antiquity had exhausted them in its captivating literature, never yet excelled, and perhaps never to be excelled; or
that modern science, by its exact experiments, had put to
flight whatever of theory might float round his own physical
researches.
No - under such circumstances he could rely securely on
nothing but the results of deep and various study. He would
seek to fill his mind with the thoughts of others, and elevate
his own conceptions by making them the familiar spirits of
his hours. He would feel it necessary to invigorate his own
powers, by giving his early and his later vigils to the profound meditations of the great men of other days. He would
endeavor to comprehend the large conceptions of Lord Bacon, anld, by following the method of induction pointed out
by his wonderful mind, he would invite nature to disclose
her mysteries, and aid him in the analysis of her inexhaustible stores. He would meditate — but it is unnecessary to
dwell on such considerations. Enough has been said, and
more than enough to teach us the difficulties of such a task;
and to demonstrate that time as well as diligence, ana
patience as well as strength, are necessary to the successful
accomplishment of such an achievement.
As I comprehend it, the design of our meetings involves
no such complexity of effort or attainment. The lectures




INFLUENCE OF SCIENTIFIC STUDIES.        551
which belong to the brief course sketched out for these walls,
belong to a humbler and more facile duty. It is our design,
not to sound the depths of any portion of science or litera.
ture, but to bring together some of the truths which lie on
the surface; not so much to seek for buried treasures, as to
unfold those which are known and approachable; not so
much to display rarities, as to bring together the useful and
the simple; to present what may not be unworthy of the
contemplations of manhood, but yet may lie within the reach
of the playfulness of youth. In short, we are here to listen
to thoughts which are so familiar to the wise that they come
almost without bidding, and are dismissed without question
or criticism. The poet has told us in two lines of the masculine brevity and strength of the best days of English verse,
(borrowed indeed from classical sources,) the whole of our
case:"Content, if here the unlearn'd their wants may view,
The learn'd reflect on what before they knew."
And narrow and humble as such a scheme may seem to
those whose leisure can command the range of science, or
whose ambition would soar to the boundaries of literature,
there are some local considerations which render this not
undesirable or unimportant in the circle of our families and
friends. We live, indeed, in the midst of academical scenes,
where learning has for ages secured the public reverence.
We are encompassed with the means and the instruments of
science on every side. A noble library, the gift of the munificence of the living as well as of the dead, looks down upon
us with its ponderous and speaking volumes. A philosophical apparatus, which at once lifts our thoughts to the heavens,
ai:l busies us with the motions and the changes, the powers
and the laws of the material universe, is within our apparent
grasp. We need not call upon the earth to open upon us
her minerals and geological treasures; for our cabinets are
enriched with many of her most valuable, as well as most




552             MISCELLANEOUS WRITINGS.
attractive specimens. We seem as if within the very purlieus of the laboratory, where chemistry, no longer dealing
with occult arts and preternatural sorceries, contents herself
with solving and resolving bodies, with combining and separating the elements and the gases, and unfolding the phenomena of light and heat, and, as it were, giving a local habitation and a name to her endless wonders. The very bell
which so often rouses us in our morning slumbers, seems forever vocal with annunciations, inviting our presence to the
rooms where learned professors pour forth their stores upon
the interesting topics of divinity, and physics, and metaphysics, and rhetoric, and oratory, and botany, and anatomy, and
the philosophy of nature, and the mysteries of art. And
yet, in the midst of all this profusion, our families seem in
some danger of starving for want of intellectual food. If
they cannot count themselves among the matriculated; if
their age, their sex, their pursuits, or even their retiring modesty hrbid them from entering upon these scenes; they are
compelled to forego all that curiosity and taste would covet,
to nourish their home resources; and they are left to consume their time in the monotonous round of common duties.
In a larger society their very wants would soon work out a
remedy to relieve them  from  such embarrassments.  The
evil felt in the family circle would extend to the head; and
thus, as in large cities, public lectures would be multiplied,
at once to stimulate and to satisfy the desire for knowledge.
But here, if I may so say, the very evil has its origin in the
ample employments and devotion to science of the heads of
our families. They who labor abroad with so much success
and ability, require all their domestic leisure to recruit their
exhausted spirits, or to prepare themselves for ever-recurring
labors. I speak, therefore, to the sober sense of those whom
I address, when I say that there seems a peculiar duty on us
to give those of our families and friends, who are necessarily
precluded from the general cultivation of science, some
chance of understanding its elements, and relishing its truths




INFLUENCE OF SCIENTIFIC STUDIES.       553
by the only adequate methods - the demonstrations of the
laboratory, and the living examples of the lecture room.
Truth from the lips is often felt with double sway; but truth,
confirmed by experiment, is not only irresistible in its conviction, but in its permanent impression on the memory.
With reference, therefore, to our domestic circles, it is of no
small importance for us to enlarge the sphere of innocent pleasure, to instruct the inquisitive mind, and to furnish new
sources of thought and conversation, by observations drawn
from the processes of nature, and the elegant demonstrations
of art.
But I am far from considering this as the sole, though it may
well be deemed a sufficient motive to warm our hearts and
kindle our zeal. There are, to those professedly engaged in
a particular science, many motives for seeking some acquaintance with other sciences, even if they should not seem, at
first, of a kindred character. I do not here allude to those
motives which may be drawn from the abstract value of learning, or the practical benefits of its cultivation,. r  o not
address myself to the pride of scholars as sfich; or to the
ambition of those minds which deem nothing attained while
there yet remains any thing unattained; which, forgetting the
past, press onward and upward for the prize of glory. I do
not attempt to shadow forth, even in outline, the praises of
knowledge as they have been vindicated in ancient or in
modern times.  There are some places and some circumstances, in which such topics, if not matters of impertinent
detail, are, at least, matters of supererogation. The genius
of the place, the literary atmosphere which we breathe, the
very habits of our lives, presuppose that learning in its widest
sense, human and divine, is at once our pride and our guide,
the companion of our morning walks and of our evening
meditations; the instructive friend of our youth; the support and glory of our old age; the light that beams cheerfully
upon us in the noonday of hope and joy; and the polestar
that sets not and changes not and deceives not in the mid47




554             MISCELLANEOUS WRITINGS.
night hours of adversity, or in the heavier darkness whose
shadows brood over the valley of death. If I were called
upon, indeed, to intermingle in the argument of such topics,
I might well distrust my own resources; and I should repose
myself upon the sententious wisdom of the greatest of
modern philosophers.  " Studies," says my Lord Bacon,
"serve for delight, for ornament, and for ability.  Their chief
use for delight is in privateness and retiring; for ornament,
is in discourse; and for ability, is in the judgment andesposition of business. Histories make men wise; poets, witty;
the mathematics, subtile; natural philosophy, deep; morals,
grave; logic and rhetoric, able to contend.'Abeunt studia in
mores."'  To which he might have added, jurisprudence enlarges, invigorates, and chastens the judgment; and theology
fills the soul with thoughts of time and eternity, and,
"Letting down the golden chain from high,
Draws every mortal upward to the sky."
But one motive, upon which I would venture to insist, is
drawn from the very nature of academical studies, and the
exclusive zeal which they are calculated to nourish. No one
can fail to remark, that the subdivision of intellectual, as well
as of manual labor, though it tends greatly to the perfection
of the- workmanship, has, in quite as striking a degree, a tendency, if not to narrow the mind, at least to close its vision
to the value of surrounding objects. In proportion as our
attainments rise in a favorite pursuit, it grows in importance,
in intensity of attraction, and in variety of interest. We feel
our own minds expanding under its influence, and our own
curiosity enlivened and warmed by its developments. We
have the gratifying consciousness of difficulties overcome, of
intellectual wealth accumulated, and of honorable ambition
rewarded. A spirit of exclusiveness is thus awakened and
cherished; until, at last, the appetite increasing with what it
feeds on, our imaginations exaggerate the value of our peculiar labors to an alarming extent; and, in the extravagance of




INFLUENCE OF SCIENTIFIC STUDIES.       555
our attachment, we look down with utter indifference upon
every other department of learning, and deem all but our own,
weary, stale, flat, and unprofitable. This dangerous delusion
besets the scholar and, the devotee of science in every walk of
life. But it especially besets him in those academical scenes
where he becomes at once the teacher and the taught; where
he is perpetually pouring into other minds the streams of his
own knowledge, and at the same time, is as perpetually compelled to widen and deepen the channels of his own thoughts
to meet the constant demands of such an exhausting flow.
This error is not of a merely speculative nature, but is
often attended with practical mischiefs. The mere scholar,
intent upon the glorious products of classical literature, dwells
with a fond and overweening delight upon the wisdom and
the beauty, and the sublimity of the ancients, until modern
learning seems to him but the pastework of imitative jewelry,
compared with the pure sparkling of the diamond, or the
pellucid crystallizations of the emerald. He is content, if I
may so say, to dream with antiquity, and to live with past
ages; forgetful of the sober realities of his own life, and that
he yet walks this nether sphere. The devotee of physical
science, absorbed in its splendid discoveries, and in its new
and ever-varying details, compelling nature, as it were, to
expound her hidden contrivances to him, and to answer his
untiring interrogatories, delights in the consciousness of this
exercise of power, and looks with amazement on him, who,
with equal enthusiasm, traces out the laws of the mind, and
gathers up its finer filaments and associations, and touches
its secret springs, and unfolds its admirable faculties. The
mathematician, dealing with facts of another kind, which
rest on demonstrative evidence, and ascending by strict
analysis to the most extraordinary results, lying apparently
beyond the reach of human genius, acquires a preternatural
love for certainties of this sort, and feels, at times, almost as
if matter were made only to exercise his ingenuity in search.
ing out the laws of gravitation, and in subjecting the motions




556             MISCELLANEOUS WRITINGS.
of the earth and the heavens to his sublime calculus. On the
other hand, the votary of jurisprudence, absorbed in the
actual business of human life, and the administration of
human laws, in which probabilities and presumptions are the
principal instruments to arrive at his conclusions, is apt to
place all other sciences at an immeasurable distance below
his own, which deals with moral evidence, and to boast of
his common sense, which, though no science, is, in his estimate, fairly worth the seven.
Thus each, in his turn, from the common fascination of his
own peculiar profession or study, is but too apt to become
generally insensible or indifferent to all others. Instead of
gathering new strength from their invigorating truths, or
storing his mind with their treasures for use or illustration,
each is but too apt to walk in his own round of close and
solitary pleasure. If, therefore, no other motive could be
found for these lectures of mutual instruction, but the desire
to draw the sciences, as it were, in open contact and contrast
with each other, that alone, it seems to me, ought to furnish
a sufficient inducement, and should stimulate us to a sincere
encouragement of the design.
And this leads me to remark, in the next place, that the
sciences are of a social nature, and flourish best in the neighborhood of each other. They furnish literature with some of
its most engaging imagery, as well as with some of its most
effective instruction. In return, they receive an infinite variety of aids from literature, not merely by way of ornament,
but by profound reflection, and close and vigorous reasoning.
There is not, within the compass of human learning, a single
department which does not connect itself with every other;
which does not derive illustrations of its own truths, and
mingle its own results with every other. One of the admirable dispensations of Providence is, thus to make every human
attainment pour in its tribute to the common stream of
knowledge, so as to widen the common means of social intercourse and social happiness. Whatever be the science, it




INFLUENCE OF SCIENTIFIC STUDIES.         557
becomes cold and cheerless, when it casts around a sepulchral
light, in its own solitary and noiseless cell. It is when it
becomes connected with other sciences, reflecting its own
radiance on other objects, and receiving again from them
their own brilliant lights, that it warms and elevates, and
enlarges the human soul. A truth is but half felt, when it
stands alone. It is only when it belongs to a cluster, that it
incites the intellectual appetite, and gives a keener relish to
other food, by the richness as well as the delicacy of its
flavor.
One of the most popular journals of our day has lately
declared, in a bold and peremptory tone, that it had not "any
hesitation in adding, that, within the last fifteen years, not a
single discovery or invention of prominent interest has been
made in our colleges, and that there is not one man in all
the eight universities of Great Britain, who is at present
known to be engaged in any train of original research." 1
Without yielding to the truth of this unqualified remark, it
may be justly stated, that, if there be any color for it, it
arises from the dissociation of science and literature, which
is too apt to be nourished in those universities, by the single
pursuits of their eminent professors. They are not compelled
to think together, or to warm their genius by broad and comprehensive views of physical and intellectual science.
But there are other considerations, not of an academical
nature, and belonging to us, in common with all our race,
which ought not, on an occasion of this sort, to be wholly
passed over. We live in an age full of intellectual excitement. It is not with us, as it was in former times, when
science belonged to solitary studies, or philosophical ease, or
antiquarian curiosity. It has escaped from the closet, and
become an habitual accompaniment of every department of
life. It comes, emphatically, home to men's business and
bosoms. It accosts us equally in the highways and by-ways
1 Quarterly Review, October, 1830, p. 327.
47*




558             MISCELLANEOUS WRITINGS.
of life.  We meet it in the idle. walk, and in the crowded
street; in the very atmosphere we breathe, in the earth we
tread on, in the ocean we traverse, and on the rivers we
navigate. It visits the workshop of the mechanic, the laboratory of the apothecary, the chambers of the engraver, the
vats of the dyer, the noisy haunts of the spinning jenny, and
the noiseless retreats of the bleachery. It seenms a very spirit
of all work, assuming all shapes, and figuring out all sorts of
wonders, in that epitome of a world, a factory. It plays
about us in the very smoke of the glasshouse, in the gaslights of our shops and theatres, in the beautiful coruscations
of nature, and the exquisite imitations of art. It crosses our
paths- in the long, winding canal, in the busy railroad, in the
flying steamboat, and in the gay and gallant merchant ship,
wafting its products to every clime. It enters our houses,
and sits down at our firesides, and lights up our conversations, and revels at our banquets. Not an ice-cream meets
our lips, which has not felt the freezing coldness of its hand;
not a vapor ascends, which may not be perfumed by its cosmetics and essences. One is almost tempted to say, that the
whole world seems in a blaze; and that the professors of
science and the dealers in the arts surround us by their
magical circles, and compel us to remain captives in the,spells of their witchcraft.
Under such circumstances, we are scarcely permitted to
remain ignorant of principles, while we are encircled by
practical applications of them. If curiosity does not stimulate us to knowledge, we are almost compelled to ask it for
safety. Our very ignorance, if it does not betray us into
peril, meets us like a spectre, at every turn. We are liable to
be questioned on every side, and are not permitted to play
the part of mutes. In short, we are driven to the necessity,of confessing our ignorance, and avoiding the censure, or
manfully meeting the topic, we are obliged to redeem our.credit by syllabling out the first outlines of science.
And yet, with the busy employments and crowded inte



INFLUENCE OF SCIENTIFIC STUDIES.      559
rests of society, how few can find leisure for collateral studies!
There is not a single branch of science or literature, which is
not, at the present day, so extensive in its reach, that to
master it requires a long life of patient labor. Nay, when
such a life is at its close, the student seems but just arrived
on the threshold of learning. He has done little more than
to climb up a hillock, and look to the far distant valley,
beyond which lie the mountains he would ascend, that he
may survey a wider scene, and inhale a purer atmosphere.
We seem, therefore, to be surrounded on every side by difficulties. We must learn what belongs to our own vocation,
in order to attain the comforts and the honors of life. VVe
must learn enough of what belongs to other vocations, that
we may mingle in the interests, and partake the triumphs,
and relish the pleasures of society. We must read something
of other literature, besides that which belongs to our own
pursuits, that we may understand the daily, and the weekly,
and the monthly, and the quarterly journals, which crowd our
tables. We must gather up something of other sciences, that
we may not seem to belong to the class of mummies, or the
dead relics of former ages. We must learn how to thread
some of the labyrinths of knowledge, in which we are compelled to wander, lest we should be buried alive in its artificial catacombs. In short, we must be content to be superficial in many things, if we would be wise in the ways of this
world; and yet, without this wisdom, we shall scarcely find
ourselves, in a temporal sense, in the ways of pleasantness, or
the paths of peace.
It seems to me, that, under such circumstances, the delivery of public lectures, by concentrating what is most valuable in science, and most interesting in art and literature; by
gathering what comes home most closely to our common
wants, and illustrates our common pursuits, and varies our
common enjoyments, by shortening the road, and clearing
the obstructions, and smoothing the ruggedness of the journey, accomplishes a most valuable purpose. It has been very




560            MIISCELLANEOUS WRITINGS.
recently said, in the bitterness of sarcasm, that, " in this age
of extended and diluted knowledge, popular science has become the staple of an extensive trade, in which charlatans are
the principal dealers."1 If this be true, in any, however
qualified, sense, it only proves the intrinsic value of the genuine commodity; and the insatiable thirst for knowledge,
which is abroad in the whole community. It is a fact honorable to the spirit of the age, and brings neither our taste nor
our judgment into discredit. It is in vain to contend, that,
because we cannot find time to master all science, therefore
we should seek for none; that, because we cannot understand
all the details, we should never learn the elements; that we
should seek to know every thing, or know nothing; that one
should stop short at the first step in knowledge, because he
cannot compass the universe. The same line of argument
would go to the utter prostration of all intellectual attainments. It would furnish to ignorance its best vindication,
and to indolence its boldest excuse. We should not consult
a library, because it were a vain attempt to read all the
volumes; we should not hear a lecture, because it did not
embrace and exhaust all the science; we should disdain to
hear one, who taught important truths, because he had not
himself travelled round the farthest limits of human knowledge.
A just estimate of human life and human wants will lead
us to far different conclusions. We are perpetually admonished, that life is short, and art is long, and nature is inexhaustible.  Our destiny allows us, at best, but a narrow
choice of objects of pursuit; and our leisure, brief and transient as it is, admits of little variety of indulgence. We must
content ourselves with getting knowledge by snatches; with
gathering it up in fragments; with seizing on principles and
results.  We must welcome every mode, which abridges
labor, and supersedes personal search. We must take the
1 Quarterly Review, Oct. 1830, p. 326.




INFLUENCE OF SCIENTIFIC STUDIES.        561
easiest demonstrations and the most simple enunciations.
We must follow that, which is the ultimate object of all improved processes in the arts, to save labor, insure certainty,
and husband time and resources. More than this can belong
to the attainments of few, even of the most gifted minds.
Less than this ought not to satisfy any one, who is conscious
of the end and aim of his being; and who feels, that, in the
proper pursuit of happiness here, he begins the race of immortality.
I have thus far spoken principally of the advantages of
lectures upon the elements of science. But the same remarks
apply with equal force to select disquisitions upon literary
topics of general interest. In truth, literature is so abundant
in its products of all sorts, whether for instruction, or pleasure,
or ornament; whether to gratify the taste, or improve the
morals, or enlarge the understanding; whether for the purpose
of civil duties, or political education, or intellectual discipline;
that the task of selection is of itself not unattended with difficulties, and requires talents of no ordinary character. The
literature of a single language, ancient or modern, is perhaps
beyond the grasp of any single mind; but the literature of all
languages, or even of those within the pale of European fellowship, would require more than an Atlas to carry it on his
shoulders.  All that can be done, under such circumstances, tC>?
is to follow Lord Bacon's advice, and " read by deputy."
But what strikes me of quite as much value, in such enlarged
studies, as any which has been mentioned, is the delightful
contemplation it affords us of the successful labors of other
minds. We are brought into direct and active sympathy
with men of genius in every age. We become witnesses of
their toils, their disappointments, and their sufferings. We
learn the slow and tedious steps, by which eminence has been
acquired.  We see the result of patient investigation and
cautious sagacity.  We trace the progress of discovery and
invention, from the first clumsy process, or the first accidental
guess, to the last glorious result. We see how the slightest




562            MISCELLANEOUS WRITINGS.
incident leads gradually on to the most sublime truths; how
facts, apparently the most remote, converge to the same ultimate point; how human ingenuity conquers obstacles apparently insurmountable; and how human enterprise gathers
courage even from its very' defeats.  What can be more
curious, or more affecting, than the history of many discoveries?  In the midst of poverty and disappointment, the
discoverer is sometimes condemned to pursue his solitary
studies. He wastes his health and his resources in experimnents, which seem ever on the point of success, and yet mock
his toil and delude his hopes. At length the discovery comes.
But does it always reward his toil? No - it but too often
happens, that it is received by the public with a cold, reluctant
indifference; or is put in operation, to his ruin, by some more
thrifty competitor.  Sometimes, indeed, as in the case of
Galileo, it subjects him to a prison; sometimes it sends him,
like Dolland, to his grave, " unwept, unhonored, and unsung; "
sometimes it leaves him, like Fulton, to witness fortunes
reared by others upon his labors, and yet, to find himself
destined to fall a sacrifice to the vindication of his right to
his own discovery. These are some of the misfortunes which
affect us with lively sympathies for the benefactors of mankind. On the other hand, we are warmed, and sometimes
dazzled, by the brilliant successes of genius. Who has not
felt his soul melt within him, at the liberal ease and modest
competence, which crowned the life of Newton? Who has
not rejoiced in the opulence, which followed upon the labors
of Watt, and Arkwright, and Franklin, and Davy?
But that, which fills us with the deepest admiration, is the
wonderful workings of genius, in its own silent studies and
inmost feelings. We see how it learns to thread the mazes
of nature, and unfold her laws; at one time, tracing out the
hidden causes, which link time to eternity, and earth to
heaven; at another time, descending to the most minute
operations of her power, in -the dark mine, or the dripping
cave, or the invisible air; and, at still another time, applying




INFLUENCE OF SCIENTIFIC STUDIES.         563
its subtile analysis to the decomposition of bodies, until at
at last we seem in the very presence of the monads, whose
miraculous vitality startles us into terror of our own delicate
structure.
It is in the contemplation of such minds, and such discoveries, that we loose all grovelling thoughts and vulgar
passions. We rise into a higher moral grandeur of desire.
We relish holier views of our destiny. We see, that these
are but the first fruits, or rather buds, of immortality. We
enjoy the consciousness, that they are but emanations from
that Almighty Being, who has formed and fashioned us from
the dust, and breathed into us a portion of his own uncreated
and eternal spirit.
And this leads me to remark, in the last place, that there is
nothing so well adapted to make us feel a sincere and glowing
devotion, such a lively sense of a present Deity, as a wide
survey of the operations of nature. It is not by a few reflections alone, on the order and harmony of the visible universe,
that we are brought to a just conception of the existence or
attributes of God. It may even be doubtful, if the demonstrations of wisdom  and design are more affecting, or more
striking, in the power of the unsleeping ocean, or the rushing
cataract, or the terrific earthquake, or the blazing volcano,
than in the silent forms of crystallization, the infinite combinations of the gases, the microscopic perfection of the insect
tribes, or the almost superhuman contrivances, by which the
lowest order of beings builds up its coral continent for the
dwelling-places of man. Who would imagine, if he were not
told, that the very law which retains the planets in their
spheres, enables the fly, by means of the pressure of the
atmosphere, to walk securely on the ceiling over our heads,
by an artificial vacuum instinctively made by its feet? that
the very oxygen, which lights up and sustains the ignition of
matter, is the same admirable principle which carries on the
circulations of our own blood, and keeps up, in scarcely a
figurative sense, the steady flame of life? The truth is, that,




564             MISCELLANEOUS WRITINGS.
the farther our researches extend, the wider our philosophy
explores, the deeper our discoveries penetrate, the more are
we struck with the evidence of almighty contrivance, design
and power. If we take but a drop of water, we find it
crowded with myriads of beings, deriving life, and sustenance,
and pleasure, from its uncounted particles. If we take the
wing of the minutest insect, we know that its slender fibres
and its glossy down are perforated by thousands of vessels,
and nerves, and filaments, which convey its appropriate
nutriment, and impart to it its beautiful colors. Not a single
function is misplaced; not a single ligature is superfluous.
Nay, perhaps it is not too bold an assertion, which has sometimes been made, that such are the mutual ties and dependencies of things, such as the laws of action and reaction, of
attractive support and repulsive effort, that not a single atom
could be struck out of existence, without involving the destruction of the universe.
If these humble efforts should answer no other purpose,
than thus to draw us to a more enlarged and varied contemplation of our relations, to the first Almighty Cause, they
would not be without their reward. They would awaken a
livelier gratitude, and more cheerful confidence towards the
Author of our being. They would create a new sense of the
dignity of intellectual pursuits, and of the powers of human
genius. They would increase our aspirations after that better
world, where darkness shall no longer cover our paths, but the
light of truth shall break upon our souls with unclouded glory
and majesty.




CONSECRATION OF THE CEMETERY AT MOUNT
AUBURN.
AN ADDRESS DELIVERED AT THE CONSECRATION OF MOUNT AUBURN,
AS A CEMETERY, SEPTEMBER 24, 1.831.
MY FRIENDS:
THE occasion which brings us together has much in it
calculated to awaken our sensibilities, and cast a solemnity
over our thoughts.
We are met to consecrate these grounds exclusively to the
service and repose of the dead.
The duty is not new; for it has been performed for countless millions. The scenery is not new; for the hill and the
valley, the dark, silent dell, and the deep forest, have often
been devoted to the same pious purpose. But that which
must always give it a peculiar interest is, that it can rarely
occur, except at distant intervals; and whenever it does, it
must address itself to feelings intelligible to all nations, and
common to all hearts.
The patriarchal language of four thousand years ago is
precisely that to which we would now give utterance. We
are " strangers and sojourners" here. We have need of a
" possession of a burying-place, that we may bury our dead
out of our sight." Let us have " the field, and the cave,
which is therein; and all the trees that are in the field, that
are in all the borders round about;" and let them ".be made
sure for a possession of a burying-place."
It is the duty of the living thus to provide for the dead.
48




566                MISCELLANEOUS WRITINGS.
It is not a mere office of pious regard for others; but it
comes home to our own bosoms, as those who are soon to
enter upon the common inheritance.
If there are any feelings of our nature, not bounded by
earth, and yet stopping short of the skies, which are more
strong and more universal than all others, they will be found
in our solicitude as to the time and place and manner of our
death; in the desire to die in the arms of our friends; to
have the last sad offices to our remains performed by their
affection; to repose in the land of our nativity; to be gathered to the sepulchres of our fathers. It is almost impossible for us to feel, nay, even to feign, indifference on such
a subject.
Poetry has told us this truth, in lines of transcendent beauty
and force, which find a response in every breast:" For who, to dumb forgetfulness a prey,
This pleasing, anxious being e'er resigned,
Left the warm precincts of the cheerful day,
Nor cast one longing, lingering look behind?
"On some fond breast the parting soul relies;
Some pious drops the closing eye requires;
E'en from the tomb the voice of nature cries;
E'en in our ashes live their wonted fires."
It is in vain that philosophy has informed us that the
whole earth is but a point in the eyes of its Creator,-nay,
of his own creation; that, wherever we are, —abroad or at
home, on the restless ocean or the solid land, - we are still
under the protection of his providence, and safe, as it were,
in the hollow of his hand. It is in vain that religion has
instructed us that we are but dust, and to dust we shall return; that whether our remains are scattered to the corners
of the earth, or gathered in sacred urns, there is a sure and
certain hope of a resurrection of the body and a life everlasting. These truths, sublime and glorious as they are,




CONSECRATION OF THE CEMETERY AT MOUNT AUBURN. 567
leave untouched the feelings of which I have spoken, or
rather they impart to them a more enduring reality. Dust as
we are, the frail tenements which inclose our spirits but for
a season are dear, are inexpressibly dear to us. We derive
solace, nay, pleasure, from the reflection that when the hour
of separation comes, these earthly remains will still retain
the tender regard of those whom we leave behind; that the
spot where they shall lie will be remembered with a fond
and soothing reverence; that our children will visit it in the
midst of their sorrows; and our kindred in remote generations, feel that a local inspiration hovers round it.
Let him speak who has been on a pilgrimage of health to
a foreign land. Let him speak who has watched at the
couch of a dying friend, far from his chosen home. Let him
speak who has committed to the bosom of the deep, with a
sudden, startling plunge, the narrow shroud of some relative
or companion. Let such speak; and they will tell you that
there is nothing which rings the heart of the dying —ay,
and of the surviving - with sharper agony than the thought
that they are to sleep their last sleep in the land of strangers,
or in the unseen depths of the ocean.
" Bury me not, I pray thee," said the patriarch Jacob, " bury
me not in Egypt: but I will lie with my fathers. And thou
shalt carry me out of Egypt; and bury me in their buryingplace." " There they buried Abraham, and Sarah his wife;
there they buried Isaac, and Rebecca his wife; and there I
buried Leah."
Such are the natural expressions of human feeling, as they
fall from the lips of the dying. Such are the reminiscences
that forever crowd on the confines of the passes to the grave.
We seek again to have our home there with our friends, and
to be blest by a communion with them. It is a matter of
instinct, not of reasoning. It is a spiritual impulse which
supersedes belief, and disdains question.
But it is not chiefly in regard to the feelings belonging to
our own mortality, however sacred and natural, that we




568             MISCELLANEOUS WRITINGS.
should contemplate the establishment of repositories of this
sort. There are higher moral purposes, and more affecting
considerations which belong to the subject.  We should
accustom ourselves to view them rather as means than as
ends; rather as influences to govern human conduct, and to
moderate human suffering, than as cares incident to a selfish
foresight.
It is to the living mourner-to the parent, weeping over
his dear dead child -to the husband, dwelling in his own
solitary desolation -to the widow, whose heart is broken by
untimely sorrow -to the friend, who misses at every turn
the presence of some kindred spirit, -it is to these that the
repositories of the dead bring home thoughts full of admonition, of instruction, and slowly, but surely, of consolation
also. They admonish us, by their very silence, of our own
frail and transitory being. They instruct us in the true value
of life, and in its noble purposes, its duties, and its destination. They spread around us, in the reminiscences of the
past, sources of pleasing though melancholy reflection.
We dwell with pious fondness on the characters and virtues of the departed; and, as time interposes its growing
distances between us and them, we gather up with more
solicitude the broken fragments of memory, and weave, as
it were, into our very hearts the threads of their history. As
we sit down by their graves, we seem to hear the tones of
their affection whispering in our ears.  We listen to the
voice of their wisdom, speaking in the depths of our souls.
We shed our tears; but they are no longer the burning tears
of agony. They relieve our drooping spirits, and come no
longer over us with a deathly faintness. We return to the
world, and we feel ourselves purer, and better, and wiser, for
this communion with the dead.
I have spoken but of feelings and associations common to
all ages, and all generations of men — to the rude and the
polished - to the barbarian and the civilized - to the bond
and the free - to the inhabitant of the dreary forests of the




CONSECRATION OF THE CEMETERY AT MOUNT AUBURN. 569
north, and the sultry regions of the south - to the worshipper
of the sun, and the worshipper of idols —to the heathen,
dwelling in the darkness of his cold mythology, and to the
Christian, rejoicing in the light of the true God. Everywhere we trace them, in the characteristic remains of the
most distant ages and nations, and as far back as human
history carries its traditionary outlines. They are found in
the barrows, and cairns, and mounds of olden times, reared
by the uninstructed affection of savage tribes; and everywhere the spots seem to have been selected with the same
tender regard to the living and the dead; that the magnificence of nature might administer comfort to human sorrow,
and incite human sympathy.
The aboriginal Germans buried their dead in groves consecrated by their priests. The Egyptians gratified their pride,
and soothed their grief, by interring them in their Elysian
fields, or emnbalming them in their vast catacombs, or inclosing
them in their stupendous pyramids, the wonder of all succeeding ages. The Hebrews watched with religious care
over their places of burial. They selected, for this purpose,
ornamented gardens, and deep forests, and fertile valleys, and
lofty mountains; and they still designate them, with a sad
emphasis, as the "House of the Living." The ancient Asiatics
lined the approaches to their cities with sculptured sarcophagi,
and mausoleums, and other ornaments, embowered in shrubbery; traces of which may be seen among their magnificent
ruins. The Greeks exhausted the resources of their exquisite
art in adoring the habitations of the dead. They discouraged
interments within the limits of their cities; and consigned
their relies to shady groves, in the neighborhood of murmuring streams and mossy fountains, close by the favorite resorts
of those, who were engaged in the study of philosophy and
nature; and called them, with the elegant expressiveness of
their own beautiful language, CEMETERIES,1 or "Places of
1 xotL5 mta - literally, places of sleep.
48*




570            MISCELLANEOUS WRITINGS.
Repose." The Romans, faithful to the example of Greece,
erected the monuments to the dead in the suburbs of the
Eternal City (as they proudly denominated it,) on the sides
of their spacious roads, in the midst of trees, and ornamental
walks, and ever-varying flowers.  The Appian Way was
crowded with columns, and obelisks, and cenotaphs, in memory
of their heroes and sages; and, at every turn, the short, but
touching inscription met the eye, - Siste, Viator, - Pause,
Traveller, - inviting at once to sympathy and thoughtfulness.
Even the humblest Roman could read on the humblest gravestone the kind offering -" May the earth lie lightly on these
remains!" 1 And the Moslem successors of the emperors,
indifferent as they may be to the ordinary exhibitions of the
fine arts, place their burying-grounds in rural retreats, and
embellish them with studious taste, as a religious duty. The
cypress is planted at the head and foot of every grave, and
waves with a mournful solemnity over it. These devoted
grounds possess an inviolable sanctity. The ravages of war
never reach them; and victory and defeat equally respect the
limits of their domain. So that it has been remarked, with
equal truth and beauty, that while the cities of the living are
subject to all the desolations and vicissitudes incident to
human affairs, the cities of the dead enjoy an undisturbed
repose, without even the shadow of change.
But I will not dwell upon facts of this nature. They
demonstrate, however, the truth, of which I have spoken.
They do more; they furnish reflections suitable for our own
thoughts on the present occasion.
If this tender regard for the dead be so absolutely universal,
and so deeply founded in human affection, why is it not made
to exert a more profound influence on our lives? Why do
we not enlist it with more persuasive energy in the cause of
human improvement? Why do we not enlarge it as a source
of religious consolation?  WMhy do we not make it a more
1," Sit tibi terra levis."




CONSECRATION OF THE CEMETERY AT MOUNT AUBURN. 571
efficient instrument to elevate ambition, to stimulate genius,
and to dignify learning? Why do we not connect it indissolubly with associations, which charm us in nature, and
engross us in art? Why do we not dispel from it that unlovely gloom, from which our hearts turn, as from a darkness
that ensnares, and a horror that appalls our thoughts?
To many, nay, to most of the heathen, the burying-place
was the end of all things. They indulged no hope, at least,
no solid hope, of any future intercourse or re-union with their
friends. The farewell at the grave was a long, and an everlasting farewell. At the moment when they breathed it, it
brought to their hearts a startling sense of their own wretchedness. Yet, when the first tumults of anguish were passed,
they visited the spot, and strewed flowers, and garlands, and
crowns around it, to assuage their grief, and nourish their
piety. They delighted to make it the abode of the varying
beauties of nature; to give it attractions, which should invite
the busy and the thoughtful; and yet, at the same time,
afford ample scope for the secret indulgence of sorrow.
Why should not Christians imitate such examples?  They
have far nobler motives to cultivate moral sentiments and
sensibilities; to make cheerful the pathways to the grave;
to combine with deep meditations on human mortality the
sublime consolations of religion. We know, indeed, as they
did of old, that " man goeth to his long home, and the mourners
go about the streets." But that home is not an everlasting
home; and the mourners may not weep, as those who are
without hope. What is the grave to us, but a thin barrier,
dividing time from eternity, and earth from heaven? What
is it, but " the appointed place of rendezvous, where all the
travellers on life's journey meet," for a single night of'repose?
"'Tis but a night - a long and moonless night,
We make the grave our bed, and then are gone."
Know we not,
" The time draws on
When not a single spot of burial earth,




572             MISCELLANEOUS WRITINGS.
Whether on land, or in the spacious sea,
But must give up its long committed dust
Inviolate?"
Why, then, should we darken, with systematic caution, all
the avenues to these repositories? Why should we deposit
the remains of our friends in loathsome vaults, or beneath the
gloomy crypts and cells of our churches; where the human
foot is never heard, save when the sickly taper lights some
new guest to his appointed apartment, and " lets fall a super.
numerary horror" on the passing procession? Why should
we measure out a narrow portion of earth for our graveyards,
in the midst of our cities; and heap the dead upon each
other, with a cold, calculating parsimony, disturbing their
ashes, and wounding the sensibilities of the living? Why
should we expose our burying-grounds to the broad glare of
day, to the unfeeling gaze of the idler, to the noisy press of
business, to the discordant shouts of merriment, or to the
baleful visitations of the dissolute? Why should we bar up
their approaches against real mourners, whose delicacy would
shrink from observation, but whose tenderness would be
soothed by secret visits to the grave, and holding converse
there with their departed joys?  Why all this unnatural
restraint upon our sympathies and sorrows, which confines
the visit to the grave to the only time in which it must be
utterly useless —when the heart is bleeding with fresh
anguish, and is too weak to feel, and too desolate to desire
consolation?
It is painful to reflect, that the cemeteries in our cities,
crowded, on all sides, by the overhanging habitations of the
living, are walled in only to preserve them from violation;
and that in our country towns they are left in a sad, neglected
state, exposed to every sort of intrusion, with scarcely a tree
to shelter their barrenness, or a shrub to spread a grateful
shade over the new-made hillock.
These things were not always so among Christians. They
are not worthy of us. They are not worthy of Christianity




CONSECRATION OF THE CEMETERY AT MOUNT AUBURN. 573
in our day. There is much in these things, that casts a just
reproach upon us in the past. There is much, that demands
for the future a more spiritual discharge of our duties.
Our cemeteries, rightly selected, and properly arranged
may be made subservient to some of the highest purposes of
religion and human duty. They may preach lessons, to which
none may refuse to listen, and which all that live must hear.
Truths may be there felt and taught, in the silence of our
own meditations, more persuasive, and more enduring, than.
ever flowed from human lips. The grave hath a voice of
eloquence, ay, of superhuman eloquence, which speaks at
once to the thoughtlessness of the rash, and the devotion of
the good; which addresses all times, and all ages, and all
sexes; which tells of wisdom to the wise, and of comfort to
the afflicted; which warns us of our follies and our dangers;
which whispers to us in accents of peace, and alarms us in
tones of terror; which steals with a healing balm into the
stricken heart, and lifts up and supports the broken spirit;
which awakens a new enthusiasm for virtue, and disciplines
us for its severer trials and duties; which calls up the images
of the illustrious dead, with an animating presence, for our
example and glory; and which demands of us, as men, as
patriots, as Christians, as immortals, that the powers given
by God should be devoted to his service, and the minds created by his love, should return to him with larger capacities
for virtuous enjoyment, and with more spiritual and intellectual brightness.
It should not be for the poor purpose of gratifying our
vanity or pride that we erect columns, and obelisks, and monuments to the dead; but that we may read thereon much of
our own destiny and duty. We know that man is the creature of associations and excitements. Experience may instruct, but habit, and appetite, and passion, and imagination,
will exercise a strong dominion over him. These are the
Fates lwhich weave the thread of his character, and unravel
the mysteries of his conduct. The truth, which strikes home,




574             MISCELLANEOUS WRITINGS.
must not only have the approbation of his reason, but it
must be embodied in a visible, tangible, practical form.  It
must be felt, as well as seen. It must warm, as well as
convince.
It was a saying of Themistocles, that the trophies of Miltiades would not suffer him to sleep. The feeling thus expressed, has a deep foundation in the human mind; and, as
it is well or ill directed, it will cover us with shame, or exalt
us to glory. The deeds of the great attract but a cold and
listless admiration, when they pass in historical order before
us like moving shadows. It is the trophy and the monument
which invest them with a substance of local reality. Who,
that has stood by the tomb of Washington on the quiet Potomac, has not felt his heart more pure, his wishes more aspiring, his gratitude more warm, and his love of country touched
by a holier flame? Who, that should see erected, in shades
like these, even a cenotaph to the memory of a man like
Buckminster, that prodigy of early genius, would not feel
that there is an excellence, over which death hath no power,
but which lives on through all time, still freshening with the
lapse of ages?
But, passing from those who, by their talents and virtues,
have shed lustre on the annals of mankind, to cases of mere
private bereavement; who, that should deposit, in shades like
these, the remains of a beloved friend, would not feel a secret
pleasure in the thought that the simple inscription to his
worth would receive the passing tribute of a sigh from thousands of kindred hearts? that the stranger and the traveller
would linger on the spot with a feeling of reverence? that
they, the very mourners themselves, when they should revisit
it, would find there the verdant sod, and the fragrant flower,
and the breezy shade? that they might there, unseen except
of God, offer up their prayers, or indulge the luxury of grief?
that they might there realize, in its full force, the affecting
beatitude of the Scriptures: " Blessed are they that mourn,
for they shall be comforted? "




CONSECRATION OF THE CEMETERY AT MOUNT AUBURN. 575
Surely, surely, we have not done all our duty, if there yet
remains a single incentive to human virtue, without its due
play in the action of life, or a single stream of happiness
which has not been made to flow in upon the waters of affliction.
Considerations like those which have been suggested have,
for a long time, turned the thoughts of many distinguished
citizens to the importance of some more appropriate places of
sepulture. There is a growing sense in the community of the
inconveniences and painful associations, not to speak of the
unhealthiness, of interments beneath our churches. The tide
which is flowing with such a steady and widening current
into the narrow peninsula of our metropolis, not only forbids
the enlargement of the common limits, but admonishes us of
the increasing dangers to the ashes of the dead from its disturbing movements. Already, in other cities, the churchyards
are closing against the admission of new incumbents, and
begin to exhibit the sad spectacle of promiscuous ruins and
intermingled graves.
We are therefore but anticipating at the present moment
the desires, nay the necessities, of the next generation. We
are but exercising a decent anxiety to secure an inviolable
home for ourselves and our posterity. We are but inviting
our children and their descendants to what the Moravian
Brothers have, with such exquisite propriety, designated as
" The Field of Peace."
A rural cemetery seems to combine in itself all the advantages which can be proposed to gratify human feelings, or
tranquillize human fears; to secure the best religious influences, and to cherish all those associations which cast a cheerful light over the darkness of the grave.
And what spot can be more appropriate than this for such
a purpose? Nature seems to point it out with significant
energy as the favorite retirement for the dead. There are
around us all the varied features of her beauty and grandeur
-the forest-crowned height, the abrupt acclivity, the sheltered




576             MISCELLANEOUS WRITINGS.
valley, the deep glen, the grassy glade, and the silent grove.
Here are the lofty oak, the beach, that " wreaths its old fantastic roots so high," the rustling pine, and the drooping willow -the tree, that sheds its pale leaves with every autumn,
a fit emblem of our own transitory bloom; and the evergreen,
with its perennial shoots, instructing us that " the wintry blast
of death kills not the buds of virtue." Here is the thick
shrubbery, to protect and conceal the new-made grave; and
there is the wild flower creeping along the narrow path, and
planting its seeds in the upturned earth. All around us there
breathes a solemn calm, as if we were in the bosom of a wil.
derness, broken only by the breeze, as it murmurs through the
tops of the forest, or by the notes of the warbler pouring forth
his matin or his evening song.
Ascend but a few steps, and what a change of scenery to
surprise and delight us! We seem, as it were, in an instant
to pass from the confines of death to the bright and balmy
regions of life. Below us flows the winding Charles, with
its rippling current, like the stream of time hastening to the
ocean of eternity. In the distance the city — at once the
object of our admiration and our love - rears its proud eminences, its glittering spires, its lofty towers, its graceful mansions, its curling smoke, its crowded haunts of business and
pleasure, which speak to the eye and yet leave a noiseless
loneliness on the ear. Again we turn, and the walls of our
venerable University rise before us, with many a recollection
of happy days passed there in the interchange of study and
friendship, and many a grateful thought of the affluence of
its learning, which has adorned and nourished the literature
of our country. Again we turn, and the cultivated farm, the
neat cottage, the village church, the sparkling lake, the rich
valley, and the distant hills, are before us, through opening
vistas; and we breathe amidst the fresh and varied labors of
man.
There is, therefore, within our reach, every variety of
natural and artificial scenery, which is fitted to awaken emo



CONSECRATION OF THE CEMETERY AT MOUNT AUBURN. 57 7
tions of the highest and most affecting character. We stand,
as it were. upon the borders of two worlds; and, as the mood
of our minds may be, we may gather lessons of profound
wisdom by contrasting the one with the other, or indulge in
the dreams of hope and ambition, or solace our hearts by
melancholy meditations.
Who is there that, in the contemplation of such a scene, is
not ready to exclaim, with the enthusiasm of the poet,
"Mine be the breezy hill, that skirts the down,
Where a green, grassy turf is all I crave,
With here and there a violet bestrewn,
Fast by a brook, or fountain's murmuring wave;
And many an evening sun shine sweetly on my grave?"
And we are met here to consecrate this spot, by these
solemn ceremonies, to such a purpose. The legislature of
this Commonwealth, with a parental foresight, has clothed
the Horticultural Society with authority (if I may use its
own language) to make a perpetual dedication of it as a Rural Cemetery, or Burying-Ground, and to plant and embellish
it with shrubbery, and flowers, and trees, and walks, and
other rural ornaments. And I stand here by the order and
in behalf of this Society, to declare that by these services it
is to be deemed, henceforth and forever, so dedicated. Mount
Auburn, in the noblest sense, belongs no longer to the living,
but to the dead. It is a sacred, it is an eternal trust. It is
consecrated ground. May it remain forever inviolate!
What a multitude of thoughts crowd upon the mind in
the contemplation of such a scene! How much of the
future, even in its far distant reaches, rises before us with all
its persuasive realities! Take but one little narrow space of
time, and how affecting are its associations! Within the
flight of one half century how many of the great, the good,
and the wise will be gathered here! How many, in the loveliness of infancy, the beauty of youth, the vigor of manhood,
and the maturity of age, wxill lie down here, and dwell in the
49




578             MISCELLANEOUS WRITINGS.
bosom of their mother earth! The rich and the poor, the
gay and the wretched, the favorites of thousands and the
forsaken of the world, the stranger in his solitary grave, and
the patriarch surrounded by the kindred of a long lineage!
How many will here bury their brightest hopes or blasted
expectations!  How many bitter tears will here be shed!
How many agonizing sighs will here be heaved! How many
trembling feet will cross the pathways, and, returning, leave
behind them the dearest objects of their reverence or their love!
And if this were all, sad indeed, and funereal would be our
thoughts; gloomy, indeed, would be these shades, and desolate these prospects.
But, thanks be to God, the evils which he permits have
their attendant mercies, and are blessings in disguise. The
bruised reed will not be laid utterly prostrate. The wounded
heart will not always bleed. The voice of consolation will
spring up in the midst of the silence of these regions of
death. The mourner will revisit these shades with a secret
though melancholy pleasure.  The hand of friendship will
delight to cherish the flowers and the shrubs that fringe the
lowly grave, or the sculptured monument.  The earliest
beams of the morning will play upon these summits with a
refreshing cheerfulness; and the lingering tints of evening
hover on them with a tranquillizing glow. Spring will invite
hither the footsteps of the young by its opening foliage; and
autumn detain the contemplative by its latest bloom. The
votary of learning and science will here learn to elevate his
genius by the holiest studies. The devout will here offer up
the silent tribute of piety, or the prayer of gratitude. The
rivalries of the world will here drop from the heart; the spirit
of forgiveness will gather new impulses; the selfishness of
avarice will be checked; the restlessness of ambition will be
rebuked; vanity will let fall its plumes; and pride, as it sees
" what shadows we are, and what shadows we pursue," will
acknowledge the value of virtue as far, immeasurably far,
beyond that of fame.




CONSECRATION OF THE CEMETERY AT MOUNT AUBURN.  579
But that which will be ever present, pervading these shades
like the noon-day sun, and shedding cheerfulness around, is
the consciousness, the irrepressible consciousness, amidst all
these lessons of human mortality, of the higher truth, that
we are beings, not of time, but of eternity; that " this corruptible must put on incorruption, and this mortal must put
on immortality;" that this is but the threshold and starting
point of an existence compared with whose duration the
ocean is but as a drop, nay, the whole creation an evanescent
quantity.
Let us banish, then, the thought that this is to be the
abode of a gloom, which will haunt the imagination by its
terrors, or chill the heart by its solitude. Let us cultivate
feelings and sentiments more worthy of ourselves, and more
worthy of Christianity. Here let us erect the memorials of
our love and our gratitude, and our glory. Here let the brave
repose, who have died in the cause of their country. Here
let the statesman rest who has achieved the victories of peace,
not less renowned than war. Here let genius find a home,
that has sung immortal strains, or has instructed with still
diviner eloquence. Here let learning and science, the votaries of inventive art, and the teacher of the philosophy of
nature come. Here let youth and beauty, blighted by premature decay, drop, like tender blossoms, into the virgin
earth; and here let age retire ripened for the harvest. Above
all, here let the benefactors of mankind, the good, the merciful, the meek, the pure in heart, be congregated; for to them
belongs an undying praise. And let us take comfort, nay,
let us rejoice, that in future ages, long after we are gathered
to the generations of other days, thousands of kindling hearts
will here repeat the sublime declaration, " Blessed are the
dead that die in the Lord, for they rest from their labors; and
their works do follow them."




LAW RELATING TO CAPTURE.
A MEMORIAL IN THE CASE OF THE SCHOONER REWARD, WILLIAM GOSS,
MASTER, ADDRESSED TO THE COMMISSIONERS FOR THE SETTLEMENT
OF CLAIMS, UNDER THE TREATY WITH FRANCE, RATIFIED ON FEBRUARY 2, A. D. 1S32.
THE undersigned, claimant of the cargo of the Schooner
Reward, on behalf of himself and his co-claimants, having
learned, that the claim has been rejected by the Commissioners upon grounds which he deems incorrect and erroneous in point of law, respectfully submits the present Memorial
to the Commissioners, as the grounds of his prayer, that they
would review the award made by them rejecting his claim.
The facts of the case, as presented to the Commissioners,
are:- That the said Schooner Reward, (William Goss,
master,) being owned by American citizens, and belonging
to Marblehead, in the State of Massachusetts, on the 6th day
of December, 1807, sailed from that port on the same day
with a cargo on board consisting of codfish, cod oil, potashes, and cotton, of the invoice value of $7487 81; and was
then and there owned by the claimants, citizens of and residents in the United States, and bound on a voyage direct to
the port of Rochelle, in France. That in the course of the
voyage on the high seas near the coast of France, the said
Schooner, with her cargo, being wholly neutral property, and
neutral to both the belligerents, (France and Great Britain,)
was on the 1st day of January, 1808, captured by His Britannic
Majesty's armed Brig Conflict. That afterwards, on the 9th day
of the same January, the said Schooner was recaptured fromn




LAW RELATING TO CAPTURE.            581
the British possession by a French Privateer, and carried into
the port of Parros, in France. That the said Schooner and
cargo were afterwards sold by order of the French authorities,
and the proceeds deposited in the hands of the French government. That the claim of the French privateer to any
share of the proceeds, was rejected by the Council of Prizes.
That finally, about the 7th of November, 1810, the same proceeds were confiscated by the orders and authority of the then
Emperor of France, Napoleon; and that the same have
become thus totally lost to the owners of the same Schooner
and her cargo.
Such are the facts of the case. And, upon this state of the
facts, the Memorialist contends, that the original capture by
the British cruiser was illegal and wrongful; that their capture
was illegal, or at least conferred no title as prize upon the
recaptors; that the subsequent confiscation of the property
by the French government was a gross violation of the Law
of Nations, and a wrong to the neutral rights of the claimants;
and that, therefore, they are entitled to a full indemnity under
the treaty with France.
The claim has been rejected by the Commissioners (as the
Memorialist understands) upon the following grounds: —
First, That by the Law of France at the time of the
recapture, the property, so recaptured, though neutral to all
parties in the war, was not entitled to restitution; but was
good prize to the recaptors.
Secondly, That the Milan decree made this the law of
France in all cases of recapture from British cruisers, because
every such capture included a visit by such cruisers.
Thirdly, That the law of France on this subject of recapture
is in conformity to the Law of Nations; and consequently
obligatory upon all neutrals.
Fourthly, That the Act of Congress of the third of March,
1800, respecting salvage on recaptures, by adopting towards
all nations the rule of reciprocity on this subject, negatives all
right on our part to complain of the law of France.
49 *




582             MISCELLANEOUS WRITINGS.
The Memorialist respectfully submits to the Commissioners,
that the foregoing positions are essentially erroneous, both
upon principle and authority; and he trusts he shall be able
to satisfy the Commissioners of the truth of his statement.
And he does so the more fully and freely, because he shall
deem it his duty, in case his claim shall be finally rejected by
the Commissioners, to make a solemn appeal to his country,
and ask an indemnity from Congress for the losses sustained
by such a rejection, which, with all deference to the Commissioners, he deems neither warrantable by the Law of France,
nor the Law of Nations, nor the Laws of the United States.
He feels, therefore, an anxiety to present his own views deliberately to the Commissioners, so that in no possible event
there can be the least doubt, that the subject was fully brought
under the review of the Commissioners.
Before proceeding to the direct points in controversy, it may
be proper to state (and the Memorialist freely admits it) that
the Schooner Reward and her cargo were without question
captured by the British cruiser under the British Orders of
Council of November, 1807; and that the final confiscation
was made by the French government upon the principles of
the Milan Decree of the 17th of December, 1807. It requires
no argument, on the part of the Memorialist, to establish the
doctrine, that the British Orders in Council and the Milan
Decree above-mentioned, were gross violations of the Law of
Nations; and as such could furnish no just ground of capture
or condemnation of the Schooner or her cargo. This doctrine
has been so uniformly and publicly maintained by the American government, under all circumstances, that it would be
a mere waste of time to endeavor to establish it. It constituted the basis of all the hostile resistance and measures of
the American government against both those Powers, from
the moment of the first promulgation of those Orders and
that Decree, to their final repeal or abandonment. So far,
then, from the Milan Decree constituting any justification of,the confiscation of the Reward and her cargo, it is an aggra



LAW RELATING TO CAPTURE.            583
vation of the injustice of the French government; and so
indeed, all the confiscations under that Decree have been
treated by the American government. The British Orders in
Council of November, 1807, could furnish as little justification
for the original capture. And if the original British capture
was (as it certainly was) unjustifiable according to the Law
of Nations, it is impossible, that a wrongful capture of a
neutral by one belligerent could furnish any just title of prize
to the recaptors; for they could only succeed to the rights of
the original captors. No principle of the Law of Nations
countenances the idea, that a wrongful capture of an American vessel and cargo by a British cruiser can confer on the
French recaptors any title of prize, which shall take away
the original rights of American owners.
If, therefore, it could be shown, that by the laws of France,
neutral property, recaptured by France from her enemy,
became good prize to the recaptors, though the original
capture of such neutral property was wrongful and unlawful;
still, unless by the Law of Nations the neutral property would
upon such recapture be good prize, the laws of France
would be a violation of our neutral rights; and consequently
the condemnation and confiscation of the neutral property
would be as unjustifiable, as if it were made under any other
infraction of the Law of Nations; such, for instance, as the
Berlin and Milan. Decrees. There is no pretence to say, that
France, by her municipal laws, can change the Law of
Nations; or that she has a right to confiscate neutral property,
because her enemy has unjustly captured it. That would be
to add oppression to oppression, and to make the injustice of
one nation a foundation of similar injustice on the part of
another nation.  The United States have constantly and
indignantly rejected any such doctrine.
But let us see, whether the French laws do authorize any
such injustice, or have promulgated any such doctrine. The
Memorialist most sincerely and deliberately contends, that
the French laws nowhere assert any such doctrine.  But




584             MISCELLANEOUS WRITINGS.
the contrary has (as he will presently show) been constantly
and openly declared to be the law of France and the Law
of Nations, by the highest tribunals of France, upon all occasions, when the question has come before them. They have
treated the opposite doctrine as founded in the grossest injustice, and as incompatible with the unquestionable rights of
neutrals. The difficulty upon this subject has arisen from
the very imperfect view which has been taken of the existing
laws of France.
Before proceeding to state, what those laws are, it may
be proper to say a few words by way of explanation. It is
well known that it has been long a vexed question among
nations, as well as among writers on the Law of Nations,
when and at what time in cases of capture of property, confessedly belonging to an enemy, by one belligerent from
another belligerent, the captured property ceases to be that of
the original owners, and becomes the property of the captors
by a "firm possession."  Some writers and some nations
hold, that the property is changed immediately upon the
capture. Others hold, that twenty-four hours' possession after
the capture is indispensable to change the property. Others
hold, that the property is not changed until the property is
carried into the ports of the capturing power, or, as it is technically expressed, infra prcesidia of the ports of the captors.
Others again hold that the property is not changed until a
final sentence of condemnation as prize in a judicial tribunal.
This last doctrine is understood to be maintained for many
purposes in England and America. France, in common
with most of the continental nations of Europe, holds the
doctrine, that twenty-four hours' possession after capture constitutes a change of the property of the original owners, and
vests the title in the captors. She applies this rule in all
cases of capture of belligerent property by another belligerent;
and she applies it (as we shall presently see) as well to the
property of her own subjects, captured by her enemy, as to the
property of her allies captured by their enemy, and to the




LAW RELATING TO CAPTURE.             585
property of neutrals to her captured by their enemy. In
short, in all such cases, she treats the property of the original
owners as gone; and of course upon a recapture, she treats
it as to all intents and purposes that of her enemy. But this
rule has never been applied to any property, except that of
a belligerent, by France or any other Power. It has never
been applied to any property of a neutral to all the belligerents.
In whatever manner this rule, as to the time necessary for
"firm possession," or change of ownership, has been interpreted by different nations and different writers, it has never
been supposed, by any nation or any writer, to apply to any
cases, except where the capture is made by one belligerent of
property belonging to his enemy. It has never been supposed,
that the property of a party, neutral to all the belligerents, is
changed by the mere capture by a belligerent, with whom he
is at peace, until after a sentence of condemnation. For until
such a sentence is passed, the capture is necessarily deemed
to be merely made in order to bring the neutral in for adjudication, and to ascertain, whether the property is bona fide
neutral or not. This doctrine has been often recognized by
the Courts of the United States; and it was acted upon by
the American High Court of Appeals during the American
Revolution, as the clear result of the Law of Nations.1 Let
us, with these principles in view, examine the laws of France
on the subject of recaptures.
The Ordinance of Louis XIV., in the Title on Prizes,
(Book 3, tit. 9, art. 7,) enacts as follows: " If a vessel belonging to one of our subjects is recaptured from our enemies,
after she has remained in the hands of the enemy twenty-four
hours, she shall be good prize." This article is plainly inapplicable to neutrals. It is in terms confined to the property
of French subjects. It is founded wholly upon the French
doctrine already stated, that twenty-four hours' possession of
1 Miller v. The Resolution, 2 Dallas, Rep. 1, 2, 4.




586             MISCELLANEOUS WRITINGS.
French property by a belligerent enemy devests the title of
the French owners, and vests a title in the enemy captors; so
that upon a recapture by a French cruiser, after that time, the
property recaptured is deemed the property of the enemy;
and the title of the original French owners is lost.
It seems to have been thought, by the Commissioners, that
the French ordinance of 1779, cited by Azuni on Maritime
Law, (Vol. II. Part 2, ch. 4, article 5, ~ 5, p. 276,) had applied
the same rule to neutrals, that the Ordinance of Louis XIV.
already cited, applied to French subjects. But the truth is,
that the Ordinance of 1779 does not, in its terms or purport,
apply to the capture of neutral property at all. This Ordinance is given by Azuni; and in the American translation of
his work, (Vol. II. Part 2, ch. 4, art. 5, ~ 5, p. 277,) it is represented to be thus: " That vessels recaptured from privateers lawfully armed, after having been twenty-four hours in
their possession, shall wholly belong to the recaptors." Now,
the Ordinance is somewhat different in its terms; and purports on its face to be a nriere continuance of the old Law.
The words of the original will be here quoted, as they are
given in the second volume of the " Code des Prises," published by authority of the king of France in 1784, (p. 723.)
"'Elle (sa MajestY) a ordonne et ordonne; Que les Reglemens concernent la Recousse continueront d'6tre observ6s
suivant leur forme et teneur; En consequence, lorsque los
Navires de ses sujets auront 6t6 repris par les corsaires arm6s
en course contra les enemis de l'Etat, apres avoir et6 vingtquatre heures en leurs mains, ils leur appartiendront en
totalit6." The literal translation of which is, " His Majesty
has ordained and does ordain, that the rules concerning
recaptures shall continue to be observed according to their
form and tenor; and accordingly, when the vessels of his
subjects shall have been recaptured by privateers, armed for
the cruise against the enemies of the State, after having been
twenty-four hours in their hands, they shall entirely belong
to them." This, it will be at once seen, is a mere renewal of




LAW RELATING TO CAPTURE.            587
the Ordinance of 1681. It applies, in terms only, to the
property of French subjects, recaptured from the enemy by a
French cruiser. It seems, however, to have been applied, in
the tribunals of France, to the property of a co-belligerent
ally of France, recaptured from the common enemy of both,
as we are informed by the learned Editor of the Code des
Prises. In such a case France has applied to her ally the
same rule, which she applies to her own subjects. In such
cases the Ordinance treats the property of the original owner
as devested by the twenty-four hours' possession of the
enemy captor. But the Ordinance never has been applied to
cases of neutral property, captured by a belligerent, with
whom the neutral was at peace, and recaptured by a French
cruiser, with whom, also, the neutral was at peace. This is
expressly declared by the learned Editor of the Code des
Prises, in a note to the very Ordinance. " Sa Majest6," (says
he,) " a jug6 pendant la derniere guerre, que la Reprise d'une
navire Neutre faite par un Corsaire Francais (lorsque le
Navire neutre n'etoit pas charg6 de marchandises prohibees,
ni dans le cas d'etre confisque par l'Enemi) etoit ulle." (Code
de Prises, Tom. II., p. 725, edit. 1784.) " His Majesty
adjudged, during the last war, that a recapture of a neutral
ship, (when the neutral ship was not laden with prohibited,
(contraband) goods, or had not been confiscated (condemned)
by the enemy) was void."  And in proof of this, he states
four cases, two of Swedish ships, one of a Portuguese ship,
and one of an Imperial (Austrian) ship, decided upon that
very point. The reason is obvious. No belligerent can
acquire any title by a capture to bona fide neutral property.
And, therefore, he cannot confer any title on the recaptors.
The capture of such bona fide neutral property can be deemed
no more than a possession for the purpose of ascertaining
whether the neutral has been guilty of any violation of the
law of nations, or not. And so the doctrine is understood by
Azuni himself, who puts the very case of the recapture of
neutral property, (neutral to both of the belligerents) from




588             MISCELLANEOUS WRITINGS.
the possession of the enemy, by a French cruiser; and he
declares, that in such case the original capture being unlawful, cannot confer on the recaptor any right of property whatsoever.1 And he cites three decisions made by the French
Council of Prizes, in the year 1779 and 1781, on the very
point. " During the last American war," (says he) " when
Portugal was neutral (to all the belligerents) a ship of that
nation, the Nostra Senora d' Ovelle, captured by an English
cruiser, and recaptured within twenty-four hours after by the
French privateer Le Prince de Tingry, was restored by a
decree of the 29th of December, 1781; the French privateer
was condemed to pay 20,000 livres damages and costs to the
Portuguese owners; and the captors were refused any
salvage, upon the ground, that the law of recapture did not
apply, so as to allow salvage to French cruisers for recapturing a neutral vessel, which, it was presumed, would not be
condemned by the English: Besides, the vessel was captured
and recaptured on the same day; and of course within the
twenty-four hours."2  Now, if the Ordinance of 1799 had
had any application whatsoever to the case of neutral property recaptured from an enemy of France, this decree could
not have been made. The truth is, that the doctrine of this
case is the received doctrine of the Law of Nations everywhere. A belligerent, by recapturing neutral property, (neutral to all the belligerents,) has done no meritorious service;
and is not entitled even to any salvage. Nay, the recaptors
may be held responsible in damages for the act, unless there
was a real danger of condemnation to the neutral by the
original captors, from their lawless disregard of the laws of
nations; and if there was such danger, then the recaptors
are entitled to salvage only. So the doctrine has been uniformly held in England; and particularly by Sir William
Scott, in the case of The War Onskan, (2 Robin. Adm. R.
1 Azuni on Maritime Law, Part 2, ch. 4, art. 5, ~ 6, p. 277.
2 Azuni, Vol. II. Part 2, ch. 4, art. 5, ~ 12, p. 284, 285. The same case
is given at large in the Code des Prises, Tom. lI. p. 1021.




LAW RELATING TO CAPTURE.             589
299,) l and by the Supreme Court of the United States in
the case of Talbot v. Seeman, (1 Cranch, Rep. 1.)
The other cases cited by Azuni were as follows: " Sweden
being neutral (to all the belligerents) during the American
war. a Swedish ship, the Mercury, laden with hemp, captured
by an English cruiser, and recaptured by a French cruiser
within twenty-four hours, was ordered to be restored by a
decree of the Council of Prizes, the 14th of April, 1779, confirmed by an order of the King's Council, of the 27th December,
1779. A similar decree was made relative to the Swedish
ship Argos, laden with bar iron, taken by an English cruiser,
and recaptured nine days after by the French privateer Josephine." In this last case not only was a decree of restitution made, but the recaptors were decreed to pay damages,
costs, and expenses, on account of the recapture.2
These cases are all reported at large in the Code des
Prises; and the specific sentences therein rendered by the
King in Council upon the final hearing thereof, are set forth
verbatim; and they fully confirm the statement given by
Azuni.3 These cases do not stand alone. The same question
occurred during the late war between England and France,
(the war of 1793 to 1802) and it was decided in the same
manner and upon the same principles by the highest Courts
of Prize in France. And, what makes it a still more direct
and important authority, the question arose in the cases of
American ships captured by the English, and recaptured by
the French; so that they are cases exactly in point with the
present. The first case was that of the Statira, which was
an American ship recaptured from an English cruiser by a
French cruiser, (Le HazarU) and carried into the port of
Parros, Guirec. The question was, whether the American
ship so recaptured, being a neutral ship, (at peace both with
France and England,) was good prize to the recaptors, she
i See also, The Carlotta, 5 Robinson, Rep. 54.
2 2 Azuni, Maritime Law, Part 2, ch. 4, art. 5, ~ 13, p. 285, 286.
3 See Code des Prises, Tom. II. p. 787; Id. p. 1081; Id. p. 1044.
50




590              MISCELLANEOUS WRITINGS.
having been retaken from the enemy of France after having
been in the possession of the latter more than twenty-four
hours. It was expressly decided by the High Court of
Prizes, that the vessel was to be restored; the cargo being
condemned for other causes. The Court expressly declared,
that there was no pretence to say, that, by the Ordinance of
1681, or any subsequent Ordinance of France, a neutral, who
was neutral to all the belligerents, and recaptured from the
enemy by a French cruiser, (whether the latter was a ship
belonging to the government, or a privateer,) was good prize.
The language of the Court on that occasion was, that upon
general principles it was clearly otherwise. " A neutral ship
was entitled to be respected by all nations. If she is oppressed by one of the belligerents, that furnishes no reason why
the other belligerents should be accomplices in that oppression, or be authorized to turn that to their profit. Therefore,
a neutral ship, recaptured by a French cruiser from the
enemy, ought to be released, if her neutrality is established." 1
The same principles were adopted by the Council of Prizes
in the case of the American ship Kitty, (neutral to all the
belligerents,) which was recaptured from the enemy of France
by a French cruiser; and the vessel and cargo were accordingly restored. The doctrine of these decisions has never
been doubted, or denied in France, as matter of French law,
or of the Law of Nations.  And in confirmation of this assertion, the Memorialist would respectfully refer to the great
Work of that great French Jurist, Merlin, in his Repertoire
de Jurisprudence, (article, Prise Maritime, ~ 3, art. 4, n. 5, p.
107 to 111, edit. 1827,) where these cases, and the reasoning
in support of them, are given at large by the learned author,
from the decisions of the Court.
Upon this part of the case the Memorialist begs respectfully to state, that the established law of France is this,
1 Merlin, Repertoire, tit. Prise Maritime, ~ 3,art. 4, n. 5, Tom. 25, p. 107,
edit. 1827.




LAW RELATING TO CAPTURE.           591
First, that upon a recapture of a French vessel from the
enemy by a French cruiser, after she has been in the possession of the enemy more than twenty-four hours, the recaptors
are entitled to the property, as good prize, by the express provisions of the Ordinances of France. Secondly, that upon a
recapture of a ship belonging to an ally of France in the war,
(that is, an ally who is equally with France at war with her
enemy,) by a French cruiser, the same rule is, by the French
Ordinances, applied to such property of the ally as is applied
to the case of French property; that is, if it is recaptured,
after it has been more than twenty-four hours in possession
of the enemy, it is good prize. The reason is, that such property of an ally in the war, upon such capture by the enemy
of the ally, becomes, after twenty-four hours' possession, the
property of such enemy, upon the principles of the Law of
Nations as understood by France. Thirdly, that a neutral
ship, (that is, neutral to all the belligerents,) recaptured by a
French cruiser from the enemy of France, is to be restored,
because the neutral was not justly liable to capture by the
enemy, and could not lawfully be condemned as prize; and
therefore the recapture was unlawful.
These principles of the French law are in perfect consonance with the Law of Nations, and with the recognized law
of America. They were formerly promulgated and acted
upon by the American High Court of Appeals, in the case of
Miller v. The Ship Resolution, (2 Dall. R. 1,) during the
Revolution, and since that period by the Supreme Court of
the United States, in the case of Talbot v. Seeman, in 1801,
(1 Cranch, R. 1.) In both of these cases the very same
question arose; and it was decided in the same manner and
upon the same principles as it had been decided before by
the French tribunals.
If the Memorialist is right in this view of the law of
France, and of the Law of Nations, on the subject of the
recapture of neutral property; it is manifest, that the Commissioners are in error, and that their former award ought to




592            MISCELLANEOUS WRITINGS.
be reversed. Indeed, it is difficult to state the present case
without perceiving that any different doctine would involve
the grossest injustice, and abandonment of neutral rights.
Here is a case of an American vessel and cargo wrongfully
and unlawfully captured by a British cruiser under the British
orders in Council, which have been uniformly held by the
American government to be a gross violation of our neutral
rights, and on account of which we entered into a war with
Great Britain; and the original capture being thus wrongfully
and unlawfully made, a French cruiser (with whose nation
also we were at peace) recaptured the American vessel, and
instead of restoring her to her lawful owners, she is confiscated,
because she has been already captured by a British cruiser
without any default of her own. Thus, the recaptors are
permitted to assert in an American tribunal a claim to condemn neutral American property upon the mere ground, that
it was found in the possession of a wrongdoer. The French
government have never asserted any such right. They rejected the claim of therecaptors; and confiscated the property
solely and wholly under the Milan Decree; because the vessel had been visited and searched by a British cruiser. Now,
as the Memorialist has already remarked, that very decree
(the Milan Decree) has always been treated by the American
government as a gross violation of our neutral rights. How,
then, can it be held in an American tribunal to be a just
cause for denying damages to the injured American owners?
But the Memorialist understands, that the Commissioners
have founded their award upon a construction supposed to
have been put upon the act of Congress respecting recaptures,
passed the 3d of March, 1800. If the views already suggested by the Memorialist as to the law of France are, as
he humbly conceives them to be, irrefragably correct, it is
perfectly clear, that the Act of Congress of 1800 can have no
bearing on the cause; for the present case can in no just
sense be deemed within the letter or spirit of that Act. It is
not a case for the application of any rule of reciprocity; or,




LAW RELATING TO CAPTURE.           593
if it be, we must apply the rule which France ought to have
applied according to the Law of Nations.
The Memorialist, however, wishes now in further explanation of his own views, as well as to show the true interpretation of the case of the Adeline (9 Cranch, 244,) which is
founded on the Act of Congress of 1800, and has been erroneously supposed by the Commissioners to conflict with his
claim, to make some remarks upon the Act of Congress of
1800. That Act is entitled, " An Act providing for Salvage
in cases of Recapture." It must be presumed to apply to
such cases, and to such only in which, consistently with the
Law of Nations, salvage could be demanded upon a recapture.
It would be utterly unjustifiable to presume, that Congress
intended to provide a permanent law, applicable to all times
and all nations, which should provide for a compensation by
way of salvage in cases where such recapture would be
unlawful, and a violation of neutral rights under the Law of
Nations. That would be to presume that Congress meant
deliberately to violate the Law of Nations in regard to all
neutrals, and under all circumstances, in cases of recapture.
Now, such a violation of the Law of Nations would be a good
ground for neutral nations to claim indemnity from the American government; and if that should be refused, to declare
war against us. Now, the Supreme Court of the United
States, as has been already mentioned, have decided (in conformity to the prior decisions of the American Courts) in the
case of Talbot v. Seeman, that the recapture of a neutral from
our enemy is an unlawful act, unless the neutral be in real
danger of condemnation from the habitual disregard of the
Law of Nations by such enemy; and in such case the recaptors are entitled to salvage, and nothing more. Common
sense, therefore, as well as the rules of interpretation, adopted
by Courts of Justice, require, that such a construction should
not be given to the Act of Congress of 1800, as shall violate
the Law of Nations, unless that construction be inevitable.
It is clear, that no such construction is necessary; and that
5U*




594             MISCELLANEOUS WRITINGS.
the general language may well be restrained to the very class
of cases, for which provisions of this sort are usually made by
nations. The third section of the Act of 1800 in substance
declares, that when any vessel or goods, taken as prize by an
American cruiser from an enemy of the United States, shall
belong to foreign subjects, the same shall be restored to such
owners, upon the payment of such salvage, as by the law or
usage of the foreign government, to which such owners belong,
is required on the restoration of the property of American
citizens upon a recapture, made by the authority of such foreign government; and if no such restoration would be made
to American citizens by the laws or usage of such foreign
government on payment of salvage, then none shall be made
to such foreign owners on such recapture by American
cruisers. The rule here prescribed in cases of recapture by
American cruisers, is the rule of reciprocity; and it is the
very rule laid down by the British Courts of Admiralty as
the general Law of Nations. It was, without doubt, adopted
by the Act of Congress as affirmative of the general Law of
Nations. Now, to what cases has this rule of the Law of
Nations been applied? WVe have already seen, that it has
not been, and cannot be applied, consistently with the Law
of Nations, to cases of recaptures of neutrals strictly so
called, (that is, to neutrals to all the belligerents.) But, it has
been applied constantly, as the rule of reciprocity, to cases
of an ally in the same war, and to persons, who are neutrals
in respect to the recaptors, and yet are at war with one or
more of the belligerents. This will be apparent upon an
examination of the cases decided in the English Courts of
Admiralty, and especially in the cases of The Santa Cruz.
(1 Robinson, Rep. 50 to 80.) The War Onskan, (2 Robin.
R. 299.) The Eleanora Catharina, (4 Robin. R. 156.) The
Carlotta, (5 Robin. R. 59.) The Huntress, (6 Robin. R. 108,)
decided by Sir William Scott.
But it is to be understood that the Commissioners have
supposed that the third section of the Act of Congress, 1800,




LAW RELATING TO CAPTURE.           595
had been construed by the Supreme Court of the United
States, in the case of the Adeline, (9 Cranch, 244, &c.) to
apply to, and include all cases of neutrals, as well cases
where they are neutrals to all the belligerents, as cases where
they are neutrals to some only of the belligerents, or allies in
the war. A moment's consideration of the circumstances of
that case will demonstrate that no such decision could have
been made by the Supreme Court; for no such case was
before the court as that of a party neutral to all the belligerents. And, in referring to the language of the court in any
case, the universal rule is to consider that language with
reference to the particular facts of the case. The Adeline
was the case of an American letter of marque, sailing in
March, 1814, (during the late war between England and the
United States) from Bordeaux, in France, for the United
States, with a cargo on board, belonging partly to citizens of
the United States and partly to French subjects domiciled in
France. At this time there was open war between Great
Britain and France. The United States was not an ally
in this war on the part of France; but was simply a belligerent, neutral to France, and carrying on the war against Great
Britain without any cooperation with France. The Adeline.
was captured by a British squadron in the course of the
voyage; and, after being six days in the possession of the
British, she was recaptured by an American privateer, and
brought into New York for adjudication. One of the questions arising in the case was, whether the property of the
French subjects, domiciled in France, was good prize; or
ought to be restored under the Act of Congress, upon payment of salvage to the recaptors. And that question depended upon another, whether France would, upon principles of reciprocity, restore under the like circumstances, upon
the payment of salvage. The court decided that France
would not restore under the like circumstances, and therefore
that the property of the parties domiciled in France was
good prize. On that occasion the court said, " By the Act of




596             MISCELLANEOUS WRITINGS.
Congress, as well as by the general law in cases of recapture the rule of reciprocity is to be applied." Now this language is plainly applicable only to the case of a co-belligerent, or an ally in the war; for, as we have seen, by the general principles of the Law of Nations, in cases of the recapture of property strictly neutral to all the parties in the war,
no such rule exists; and the same court has held the recapture, under such circumstances, unlawful. The court go on
to say, " If France would restore in a like case, then are we
bound to restore. If otherwise, then the whole property
must be condemned to the recaptors." Now what was the
case before the court? It was the case of the capture of the
property of the subjects of one belligerent (France) by her
enemy (England.) It was not the case of the capture of
neutral property by England from French subjects, with
whom she was at peace. The court then proceed to say, " It
appears that, by the law of France in cases of recapture,
after the property has been twenty-four hours in possession
of the enemy, the whole property is adjudged good prize to
the recaptors, whether it belonged to her subjects, to her
allies, or to neutrals." Now the only possible question which
can arise, is from  the word "neutrals" in this sentence.
Does the word "neutrals" here refer to neutrals to all the
belligerents in the war; or to neutrals to France, though
belligerents in regard to other parties? Certainly, there can
be no doubt that a nation may be engaged in a war against
another nation, with which France is at the same time at
war, without being an ally of France. In such a case, she
is strictly neutral as to France, and a billigerent as to her
enemy. That was in fact our situation in our late war with
Great Britain. The United States were not allies of France
in that war; but merely co-billigerents. Each nation acted
without reference to, and independent of, the other in that
war. That also was the very case of the Adeline before the
Supreme Court. So that the language of the court, with
reference to the facts of the case, was strictly correct and




LAW RELATING TO CAPTURE.            597
appropriate. The case of a party neutral to all the belligerents was not before the court, and could not have been
intended to be decided. It is impossible that the court could
have intended deliberately to overrule their own decision in
Talbot v. Seeman, as to the Law of Nations on this very
subject, without discussing the point, or alluding to that
case. Now, as we have seen, France considers property captured by one belligerent from another, and in the possession
of the captors, twenty-four hours, to be absolutely vested in
the latter under the Law of Nations. She applies this rule
indiscriminately to her own subjects, to her allies, and to all
other belligerents, who are not her allies. But she does not
apply this rule to parties neutral to all the belligerents; nor
could she do so consistently with the Law of Nations, as
administered and understood in France or in America. The
language of the Supreme Court, then, interpreted in its genuine sense, does not in the slightest degree touch the present
case. Nor could it be intended to touch it.
What confirms this view of the subject is, that the argument for the recaptors, in the case of the Adeline, did not
pretend to state or contend for a broader doctrine. That
argument relies wholly upon the fact that the original capture was of French belligerent property, of which the enemy
of France had had more than twenty-four hours' possession,
which devested the property. And those recaptors relied
solely on the Ordinance of 1779, and the Commentaries of
Azuni, in the places referred to in this memorial, to establish
their conclusion. Now, as we have seen, Azuni points out
and sustains the very distinction for which the Memorialist
contends; and the argument of the recaptors, in the case of
the Adeline, admitted that distinction. (See the Adeline, 9
Cranch, p. 247, and especially p. 248, 249, and p. 276, 277.)
The argument for the French claimants did not attempt to
impugn that distinction or conclusion. It is plain, then,
that as neither the facts nor the arguments raised any doubt,
as to the rights of neutrals to all the belligerents; and as the




598            MISCELLANEOUS WRITINGS.
court took no notice of the exception, but decided the case
upon the general principle, admitted by the argument, the
court could not have intended to make the doctrine broader
than that contended for by the recaptors.
All of which is respectfully submitted by the Memorialist
for the consideration of the Commissioners.
WILLIAM FETTYPLACE,
In behalf of himself and the other Claimants.
BOSTON, December 16, 1835.




EULOGY ON PROFESSOR ASHMUN,
PRONOUNCED AT THE OBSEQUIES OF JOHN HOOKER ASHMUN, ROYALL
PROFESSOR OF LAW IN HARVARD UNIVERSITY, APRIL 5, 1833.
THE occasion, which has brought us together, is full of
melancholy interest. It is not, that it is new; for the annals
of time are crowded with memorials of the dead; with repetitions of sorrows, which know no end; and with renewals of
anguish, which continually find utterance upon the departure
of the good, the wise and the great. It is not, that there is
even any thing unusual in the present event, or beside the
general course of human experience; for when has the time
been, in which youth and manhood have not dropped into
the grave, in all the pride of their power, and the affluence of
their hopes?  We have seen the aged linger on to the last
syllable of their recorded time; and we have seen the bud of
beauty nipped and withered, in the first faint blushes of its
dawn. These are common events; so common, indeed, that
they scarcely attract more than a transient notice; and, so
that they strike not within our own immediate circle of friends,
we gaze on them, for a moment, with subdued thoughtfulness,
and then press on to our own accustomed duties; we return
to our homes, and the sadness has passed away from our
hearts.
Such is human life. I will not say, such is human infirmity.
It is, doubtless, in the wisdom of Providence, that it should
be so. If, with such constantly recurring scenes of death on
every side, our sympathy should always hover round the
mourners; if we should partake of all their agonized feelings,




600             MISCELLANEOUS WRITINGS.
and dwell, as they dwell, on the vanity of all human pursuits,
and the desolateness of all human hopes; if we should take
counsel, like them, only from our own dark meditations upon
the frail tenure of our existence, and the utter worthlessness
of every thing on this side of the grave; who does not perceive, that we should be unfit for all the active duties of life;
that we should be absorbed in one unchanging reverie; that
our affections would soon be exhausted, or extinguished; that
our families and friends would soon cease to be felt, as the
exciting source of our highest enjoyments; and that we should
fly to forests and caverns, to impenetrable shades, and secret
recesses, that we might bury ourselves from every thing but
our own thoughts, and become as unfit for this earth, as it
would then seem unfit for us?
On the other hand, we are not permitted to be insensible
to the dangers, that everywhere surround us. We become
daily touched with the sense of human infirmity. We learn
the salutary lesson, that Providence has allotted to each of
us his own sufferings; that there is no exemption of age, or
rank, or station; and that, however often we may have occasion to lift our souls in grateful prayer for past blessings, there
is a common doom appointed for all. The stream of time
has always flowed on, and ever will flow on, noiseless, but
irresistible, to the ocean of eternity.
Thoughts, like these, if rightly improved, have a natural
tendency to make us wiser, and holier, and better.  They
enable us to feel, as it were, the yet distant evils; to administer to the calamities of others with a soothing kindness;
to warm, as well as to exalt, our own virtues; and to cherish
habitually that compassionate tenderness, which, when the
day of our own visitation shall arrive, will be found one of
the surest sources of earthly comfort.  They prepare us also
for the higher consolations of religion; for those sublime
views of another and a better world, which Christianity has
unfolded with such inexpressible glory, — "When this corruptible shall put on incorruption, and this mortal shall put
on immortality."




EULOGY ~ON PROFESSOR ASHMUN.             601
And the day of our own visitation is arrived. Death has
entered into our little academical circle, and struck down one
of its choicest ornaments and supports. Iis cold and lifeless
remains are now before us. We are gathered, in this consecrated temple, to perform his obsequies; to devote a brief
space to the recollection of his character and virtues; and
then to consign these perishable relics to the home, where
they shall rest, until that hour, when
" The trumpet shall be heard on high;
The dead shall live- the living die."
I feel, my friends, how utterly inadequate I am, under such
circumstances, to the performance of the task assigned me.
What can I say, that has not been said a thousand times
before? What can I suggest, which has not already suggested itself to your own hearts in a more touching form,
and with a more homefelt pathos? Alas! the language of bereavement has long since rung out all its melancholy changes.
The mourners have daily woven anew the texture of their
sorrows, that they might more diligently employ their nightly
vigils in separating the threads, and moistening each with
their tears.
It has been said, with great force and truth, that
"Our dying friends come o'er us like a cloud,
To damp our brainless ardors, and abate
That glare of life, which often blinds the wise."
But they often subserve another, if it be not a holier purpose.
By severing every earthly tie, they compel us to rely wholly
on the past; to treasure up in our memories every little incident, that we may be enabled to preserve, however faintly,
some faithful resemblance of our departed friends. We are
thus driven back to trace out every striking feature of their
minds and characters; to recall every fleeting association;
and thus, by placing the lines in their due order, to draw out
a softened image of every excellence, until, at length, it seems
51




602             MISCELLANEOUS WRITINGS.
to breathe with the warmth and freshness of life. Painful as
is the first effort, the very employment soon becomes the
minister of good; -and, like an angel of mercy, it comes with
healing in its wings. It is one of the beautiful illustrations
of the compensatory power of Providence, that sorrow is thus
enabled to extract a secret cure from its own bitterest meditations.
And may I not say, how much there is in such a thought
peculiarly appropriate to the present occasion?  However
deep may be our affliction in our present loss, the past is full
of brightness, and the evening shuts not down in a settled
and appalling gloom. We can look back upon the life of our
departed friend with an approving consciousness. We can
see much to love, admire, and reverence in his character; and
nothing to awaken regret for error, or apology for frailty.
Such as he was, we can bear him in our hearts and on our
lips with a manly praise. We can hold him up as a fit example for youthful emulation and ambition; not dazzling,
but elevated; not stately, but solid; not ostentatious, but
pure.
Of his life there are but few incidents, and these may be
briefly told; for in a life not long, but uniform and consistent,
filled up in the regular discharge of duty, and in the quiet
occupations of a profession, little will be found to attract
notice, or invite curiosity. He, who has marked out for himself a course of habitual diligence and virtue; who has no
ambition, except for wisdom, and no love of power, that he
may reap the ordinary rewards of popular favor; even if he
does not pass his days along the sequestered paths of life with
a noiseless tenor, has little to engage the vulgar gaze, and
can furnish no eccentricities to gratify the idle, and no follies
to console the indolent. Such a man addresses himself to
higher objects and more enduring aims. He seeks to be what
he ought; and is not content to dream on through life, the
shadow of greatness, or the finger-point of scorn.




EULOGY ON PROFESSOR ASHMUN.         603
Our departed friend, John Hooker Ashmun, was born in
Blandford, in Massachusetts, on the third day of July, 1800.
His father was the Honorable Eli P. Ashmun, a distinguished
lawyer of the Hampshire bar, who for several years represented that county in our State Senate, and afterwards represented
this Commonwealth in the Senate of the United States. It
was my good fortune to know him in the latter station, which
he filled with great dignity, ability, and public respect.. He
retired voluntarily from public life, either from a superior attachment to his profession or from ill health, and died about
the year 1819. His mother was the daughter of the Reverend
John Hooker, a distinguished clergyman of Northampton,
from whom he derived his name. His mother died when he
was quite young; so that he early lost that maternal care
which is always deeply felt, and is so generally irreparable;
though it was in his case fortunately supplied by another,
towards whom he entertained during his whole life a very
tender regard. At an early age he was put under the instruction of a Mr. Grosvenor, who kept a private school at North.
ampton, with whom he made such proficiency that at nine
years of age he was deemed an extraordinary Latin scholar.
He was afterwards removed to Blandford, and was there fitted
for college by the Rev. Mr. Keep, of that town. At the age
of twelve he was deemed well qualified to enter upon the
usual collegiate studies; but he was kept back until the succeeding year by the prudence of his father. He was then
matriculated, and remained three years at Williamstown College, and then joined the Junior Class in Harvard University,
and took his first degree at the annual commencement in the
year 1818. During his residence at this University he does
not appear to have exerted himself with any uncommon ardor
in his studies. His own account of the matter seems to have
been, that, though the labors required of him would not have
cost him much effort, he had little relish for them; and his
extreme youth rendered them less attractive and less instructive than they would otherwise have been; so that much of




604            MISCELLANEOUS WRITINGS.
his time passed without any correspondent improvement, except in the department of mathematics. It is not improbable, too, that entering at an advanced standing, he did not
easily acquire that intimacy with his classmates which was
calculated to nourish his ambition; and that he felt something
of that estrangement which rarely fails to be the accompaniment of young persons engaging in new studies with those
who have already caught, as it were, the genius and inspiration of the place by an earlier union in common pursuits.
As soon as he was graduated, he entered upon the study
of the law in the office of his father, whom, however, he had
the misfortune, soon afterwards, to lose; and he then completed: his studies under the care of the Honorable Lewis
Strong, of Northampton. It was about this period that he
became intimately acquainted with the late Judge Howe, then
a resident in the same town, whose very high professional
attainments and untimely death are yet fresh in the memory
of all of us. In due time he was admitted to the bar; and
henceforth he devoted himself with intense zeal and strenuous
industry to the noble science of the Law - his favorite, and,
I had almost said, his all-absorbing study. His career was
soon marked by deserved success; and before he left the bar
at which he then was accustomed to practise, he stood in the
very first rank of his profession without an acknowledged
superior. It is well known that Judge Howe had established
a Law School at Northampton of very high character; and,
during the last year of his life, Mr. Ashmun, although quite
young, was associated in his labors; and, on his decease, in
connection with that accomplished statesman and jurist, the
late Mr. Mills, he continued the establishment with unabated
celebrity and success. In fact, from the ill health of Mr. Mills,
the principal instruction in the School devolved almost
entirely on Mr. Ashmun; and, with his characteristic vigor,
he rose in energy, as the pressure demanded more various and
exhausting labors.
Upon the reorganization of the Law Institution in this




EULOGY ON PROFESSOR ASHMUN.         605
University, in the year 1829, Mr. Ashmun was invited by the
unanimous vote of the Corporation, to the chair of the Royall Professorship of Law. This tribute to his extraordinary
merit occurred under circumstances as gratifying as any which
could well attend any similar appointment. The office was
not only unsought on his own part, but it was wholly unexpected. It was a spontaneous movement of the Corporation
itself, acting on its own responsibility, upon a deliberate review of his qualifications, and after the most searching inquiry
into the solidity of his reputation. The choice was fully justified by the event. The honors of the University were never
more worthily bestowed, never more meekly worn, and never
more steadily brightened. He remained in the conscientious
discharge of the arduous duties of this station with an unfaltering fidelity to the last. He might almost be said to have
died with his professional armor on him. Scarcely a fortnight
is now elapsed since his voice was heard in the forum, mastering a case of no inconsiderable nicety and importance;
and only on the day before his death he was meditating new
labors, and laying before me the scheme of our future juridi.
cal instructions.
I need hardly say, in this place, with what distinguished
ability he filled the professor's chair. His method of instruction was searching and exact. It disciplined, while it awakened the mind. It compelled the pupil to exert his own
powers; but it brought with it the conscious rewards of the
labor. His explanations were always clear, and forcible, and
satisfactory. Although his learning was exceedingly various,
as well as deep, he never assumed the air of authority. On
the contrary, whenever a question occurred, which he was not
ready to answer, he had no reserves and no concealments.
With the modesty, as well as the tranquil confidence, of a
great mind, he would candidly say, " I am not lawyer enough
to answer that." In truth, his very doubts, like the doubts of
Lord Eldon, and the queries of Plowden, let you at once into
the vast reach of his inquiries and attainments. There is not,
51 *




606            MISCELLANEOUS WRITINGS.
and there cannot be, a higher tribute to his memory than this,
that, while his scrutiny was severely close, he was most cordially beloved by all his pupils. He lived with them upon
terms of the most familiar intimacy; and he has sometimes,
with a delightful modesty and elegance, said to me, "I am
but the eldest boy upon the form."
He had for more than eight years been in a state of declining health, the victim of a constitutional disease, slow and
silent in its approaches, which deluded our hopes, and lulled
our fears, and was most insidious in the very hours, in which
it moved the heart with unusual cheerfulness. It may be
truly said, in the language of one of the most eloquent of
modern statesmen on a similar occasion, that it pleased the
Almighty "to make his shortened span one long disease." 
No man could have resisted it with a more firm yet gentle
spirit. He saw the danger without dismay, and struggled to
meet and overcome it. Whatever medical skill could bring
to his aid, to alleviate, or subdue it, was faithfully administered. Without being confident that he should triumph over
this constitutional infirmity, he seemed constantly encouraged
by the consciousness that it was worth the trial. No man
ever bore himself, through every change of its aspect, with a
more uncomplaining moderation, or more unshrinking fortitude. He sought concealment of his sufferings; and was
even sensitive to inquiries on the subject. He buried in his
own bosom both his hopes and his fears; and seemed, most
of all, anxious to avoid giving trouble and inconvenience to
others. There were periods when the disease seemed, in a
great measure, to have lost its potency; and there were other
periods in which it seemed to move on, with a hurried process, to an immediate catastrophe. Yet in every vicissitude
the same imperturbable resolution and the same unrepining
calmness marked his conduct. His intellectual energy seemed
rather heightened, than impaired, by the gradual diminution
1 The Right Honorable George Canning's Epitaph on his eldest son.




EULOGY ON PROFESSOR ASHMUN.            607
of his physical strength. Its activity seemed to furnish a
salutary stimulus, if it did not administer a necessary aliment
to his existence. I have sometimes been led to doubt whether,
if he had had less professional excitement, he would not earlier
have fallen a victim.
Although for the few last days it was obvious, to those of
us who had most intercourse with him, that he could not live
many weeks, or, at most, many months; yet the actual occurrence of his death was a calamity so sudden and startling
that all his friends were awakened, as it were from a dreadful
dream. He was himself without the slightest suspicion of
the impending event. He sought repose at the usual hour on
Sunday evening, being for the first time watched by the care
of an interesting friend, without any wish expressed on his
own part. He retained his senses almost to the last; and
sank away in a gentle, childlike sleep, without the smallest
struggle, and almost without observation.  At the very
moment when he was breathing his last breath, the first
beams of the morning were beginning to blend their beautiful
and softened lights. His spirit, as it bore itself away from
the earth, seemed almost to whisper in our ears the affecting
aspiration of the Psalmist, " O! that I had wings like a
dove; for then would I flee away, and be at rest." t
Such is the simple narrative of the life of Mr. Ashmun, and
such the enviable felicity of his death. Yet, brief as was his
career, there was much in it calculated to awaken our admiration, as well as to engage our affections. Few men have
impressed upon the memory of their friends a livelier sense of
excellence and unsullied virtue. Fewer have left behind them
a character so significant in its outlines, and so well fitted to
sustain an enduring fame.
My own acquaintance with him commenced only with his
residence in Cambridge. But ever since that period I have
counted it among my chief pleasures to cultivate his friend1 Mr. Ashmun died on Monday morning, the first day of April, 1833.




608             MISCELLANEOUS WRITINGS.
ship, and justify his confidence. Engaged, as we have been,
in kindred pursuits and duties, it has been almost of course
that our intercourse should be frank, as well as frequent; and
I feel a pride in declaring, that we have worked hand in hand
with the most cordial fellowship, and with a union of opinion,
which nothing but the strongest mutual attachment could
have successfully cherished. I can, therefore, with all sincerity
of heart, join the general voice of his afflicted relatives and
friends, in bearing testimony to his rare endowments and
exalted merits.
In the private and domestic circle he was greatly beloved,
as well as respected.  He was confiding and affectionate;
and, as an elder son, occupying the place of a parent, he
indulged a truly paternal kindness towards the younger
branches of the family, mixed up with the eager solicitude
and sympathy of a brother. In his feelings he possessed an
enlightened benevolence, and a warm sensibility; and was
gratified by an opportunity to advance those, who were
within the sphere of his influence. He was a main of the
most inflexible honor and integrity, a devout lover of truth,
conscientiously scrupulous in the discharge of his duties, and
constantly elevating the standard of his own virtue.  His
candor was as marked, as his sense of justice was acute and
vivid. He held in utter contempt that low and grovelling
spirit, which contented itself with common observances, so as
not to offend against the established decencies of life; which
was sordid, as far as it dared; and mean, as far as it was
safe. And yet the voice of censure rarely escaped from his
lips; and he seemed solicitous to moderate the language of
the sentence, even when truth demanded that he should not
withhold it. He habitually softened the lineaments of the
portraits, which he had no wish to gaze on, or to sketch.
He had also, as might easily be gathered from what has
been already said, a deep sense of the value and importance
of religion; though, from his ill health, he was of late years compelled to abstain a good deal from its public solemnities. In




EULOGY ON PROFESSOR ASHMUN.          609
his opinions he was unequivocally a Unitarian, without the
slightest propensity to proselytism or bigotry. His great aim
was to be good, and not merely to seem so. IHe had a profound feeling of his responsibleness to God for all his actions,
and clung with devout reverence to the doctrines of life and
immortality, as revealed in the Gospel. His opinions on
these subjects were not built upon transitory emotions; but
they grew up and mingled with all his thoughts, and gave to
them a peculiar transparency and force. They imparted a
serenity and confidence, which may be truly enumerated, as
among the choicest of human blessings.
In his general deportment, he was modest and reserved,
less desirous to please than his high powers would have justified, and never eager either for contest or victory. On this
account, as well as on account of his thoughtful aspect, he
was often supposed, on the first approaches, to be cold or
indifferent, having little relish for social scenes and the lighter
pleasures of life. This was far from being true; for among
those with whom he was intimate, no man was more social
in his temper, more indulgent in playful and delicate humor,
or more familiar in easy conversation. His abstinence from
general society was partly from choice, and partly from duty.
Besides ill health he felt another disadvantage from the
infirmity of a slight deafness, with which he had been long
afflicted. Time, also, was to him inestimable. It was a
prize not to be thrown away, but to be employed in intellect.
ual advancement, in widening and deepening the foundations
of his constantly accumulating knowledge. Though he read
much, he thought still more; and there was a freshness in all
his views, which stamped them at once with the impress of
originality.
But it is chiefly in a professional point of view, that he
should be remembered in this place, as at once an ornament
to be honored, and an example to be followed. If we look at
his years, it seems almost incredible, that he should have
attained so high a distinction in so short a period. Let it be




610             MISCELLANEOUS WRITINGS.
recollected, that he died before he had attained the age of
thirty-three; and that he had then gathered about him all the
honors, which are usually the harvest of the ripest life.
The law is a science of such vast extent and intricacy, of
such severe logic and nice dependencies, that it has always
tasked the highest minds to reach even its ordinary boundaries. But eminence in it can never be attained without the
most laborious study, united with talents of a superior order.
There is no royal road to guide us through its labyrinths.
They are to be penetrated by skill, and mastered by a frequent survey of landmarks. It has almost passed into a
proverb, that the lucubrations of twenty years will do little
more than conduct us to the vestibule of the temple; and
an equal period may well be devoted to exploring the recesses. What, then, shall we think of a man, who in ten
years had elevated himself to the foremost rank, and laid the
foundations of deep, various, and accurate learning? What
shall we think of a man, who, at that early period, was
thought as worthy as any one in the profession to fill the
chair just vacated by the highest judicial officer of the Commonwealth, in the full vigor of his own well-earned fame?
There were yet difficulties to be overcome in the case of
Mr. Ashmun, which bring out in stronger relief the traits of
his professional character, and invest it with a peculiar charm
and dignity. He was defective in some of the most engaging
and attractive accomplishments of the bar. Owing to ill
health, he could not be said to have attained either grace of
person, or ease of action. His voice was feeble; his utterance, though clear, was labored; and his manner, though
appropriate, was not inviting. He could not be said to possess the higher attributes of oratory, copiousness and warmth
of diction, persuasiveness of address, a kindling imagination,
the scintillations of wit, or the thrilling pathos which appeals
to the passions. Yet he was always listened to with the
most profound respect and attention. He convinced, where
others sought but to persuade; he bore along the court and




EULOGY ON PROFESSOR ASHMUN.          611
jury by the force of his argument; he grappled with their
minds, and bound them down with those strong ligaments of
the law which may not be broken and cannot be loosened.
In short, he often obtained a triumph where mere eloquence
must have failed. His conscientious earnestness commanded
confidence, and his powerful expostulations secured the
passes to victory. It has been said, and I doubt not with
entire correctness, that, in the three interior counties of the
State, to which his practice extended, he was, during the last
years of his professional residence, engaged on one side of
every important cause. Certain it is; that no man of his
years was ever listened to with more undivided attention by
the court and bar, or received from them more unsolicited
approbation. If, to the circumstances already alluded to, we
add his ill health and deafness, his professional success seems
truly marvellous. It is as proud an example of genius
subduing to its own purposes every obstacle opposed to its
career, and working out its own lofty destiny, as could well
be presented to the notice of any ingenuous youth. It is as
fine a demonstration as we could desire of that great moral
truth, that man is far less what nature has originally made
him, than what he chooses to make himself.
If I were called upon to declare what were the most characteristic features of his mind, I should say they were sagacity, perspicacity, and strength. His mind was rather solid
than brilliant; rather active than imaginative; rather acute
in comparing than fertile in invention. He was not a rapid,
but a close, thinker; not an ardent, but an exact, reasoner;
not a generalizing, but a concentrating speaker. He always
studied brevity and significance of expression. And hence
his remarks were peculiarly sententious terse, and pithy;
and sometimes quite epigrammatic. He indulged little in
metaphors; but when used, they were always direct, and full
of meaning. Few persons have left upon the minds of those
who have heard them so many striking thoughts, uttered
with so much proverbial point, and such winning simplicity.




612            MISCELLANEOUS WRITINGS.
They adhered to the memory in spite of every effort to banish
them. They were philosophy brought down to the business
of human life, and disciplined for its daily purposes. He
possessed, in a remarkable degree, the faculty of analyzing a
complicated case into its elements, and of throwing out at once
all its accidental and unimportant ingredients. He easily
separated the gold from the dross, and refined and polished
the former with an exquisite skill. He rarely amplified by
illustrations; but poured at once on the points of his cause
a steady and luminous stream of argument. In short, the
prevailing character of his mind was judgment, arranging all
his materials in a lucid order, moulding them with a masterly
power, and closing the results with an impregnable array of
logic.
I had almost forgotten to add, that when, about a year
ago, the legislature of this Commonwealth authorized the
formation of a new code of our laws, he was selected, in connection with two of our most distinguished jurists, to give it
its appropriate form and body. To such a task, what rare
qualifications must be brought! If I have but succeeded in
impressing upon others my own deep sense of his capacity
for the task, who is there that will not join* me in lamenting
his death as a public calamity?
I must close these hasty sketches, thrown together in the
midst of various cares, and with the languor of a drooping
spirit. And yet I would not close them in the language even
of gloom, and far less of discontent. In the natural course of
events, indeed, the thought might have been indulged, that
our respective places would be changed; and that he might
be called upon, at some future time, to perform a kindred
office for one who had cherished his friendship and partaken
of his labors. To Providence it has seemed fit to order otherwise. Nor can we justly mourn over the loss of such a man,
as those who are without hope or consolation. Thanks be
to God, in the midst of our sorrows there yet spring up in
our hearts the most soothing recollections, and the most




EULOGY ON PROFESSOR ASHMUN.         613
sublime contemplations. He is but removed before us to a
more exalted state of being, immortal and unchangeable.
We have nothing to regret but for ourselves. The tears that
fall upon his grave are unstained by any mixture of bitterness for frailty, or for vice. The circle of his life was not
large, but it was complete. If he had lived longer he might
have reared more enduring monuments of fame for posterity;
but his virtues could not have been more mature, or more
endeared. They are now beyond the reach of accident, or
question. They are treasured up among the records of eternity. He lived as a wise man would aspire to live. He
died as a good man would desire to die. Well may we
exclaim, " How beautiful is death, when earned by virtue! "
52




THE SCIENCE OF GOVERNMENT.
A LECTURE READ BEFORE THE AMERICAN INSTITUTE OF INSTRUCTION
IN AUGUST, 1834.
THE objects of the American Institute of Instruction are,
as I understand them, in great measure, if not altogether,
of a practical nature. Under such circumstances, the time
passed here might well be deemed ill employed, if any attempt
were now made merely to bring together topics for literary
amusement and recreation; or an elaborate discourse, designed to gratify the taste of scholars, should be substituted
for plain, direct, and grave discussion.  I shall, therefore,
proceed at once to the task, which has been assigned to me
on the present occasion, and endeavor to bring before you
such views as have occurred to me, touching " The Science
of Government, as a Branch of popular Education."
The subject naturally divides itself into three principal
heads of inquiry. In the first place, is the science of government of sufficient general importance and utility, to be taught,
as a branch of popular education? In the next place, if it
be of such importance and utility, is it capable of being so
taught? And, in the third place, if capable of being so
taught, what is the best or most appropriate method of instruction? My object is to lay before you some considerations on these topics, in the order in which they are stated;
and I think, that I do not overvalue them, when I assert, that
there are few questions of a wider or deeper interest, and few
of a more comprehensive and enlarged philosophy, so far as
philosophy bears upon the general concerns of human life.




THE SCIENCE OF GOVERNMENT.           615
First, then, as to the importance and utility of the science
of government. Of course, I do not intend here to speak of
the necessity of government in the abstract, as the only social
bond of human society. There are few men in our age, who
are disposed to engage in the vindication of what some are
pleased to call natural society, as contradistinguished from
political society; or to pour forth elaborate praises in favor of
savage life, as superior to, and more attractive than, social
life. There is little occasion now to address visionaries of
this sort; and if there were, this is not the time or the place
to meet their vague and declamatory asseverations. It is to
the science of government that our attention is to be drawn.
The question is not, whether any government ought to be
established; but what form of government is best adapted to
promote the happiness, and secure the rights and interests, of
the people, upon whom it is to act. VThe science of govern.
ment, therefore involves the consideration of the true ends of
government, and the means, by which those ends can be best
achieved or promoted. And in this view it may be truly said
to be the most intricate and abstruse of all human inquiries;
since it draws within its scope all the various concerns and
relations of man, and must perpetually reason from the imperfect experience of the past, for the boundless contingencies
of the future. The most that we can hope to do under such
circumstances, is, to make nearer and nearer approximations
to truth, without our ever being certain of having arrived at
it in a positive form.
This view of the matter is not very soothing to human
pride, or human ambition. And yet the history of human
experience, for four thousand years, has done little more than
to teach us the melancholy truth, that we are as yet but in
the infancy of the science; and that most of its great problems remain as yet unsolved; or have been thus far solved,
only to mortify human vanity, and disappoint the spirit of
political prophecy. Aristotle and Cicero, the great masters
of antiquity in political philosophy, exhausted their own




616           MISCELLANEOUS WRITINGS.
ample resources, rather in the suggestion of hints, than in the
formation of systems. They pointed out what had been, or
then were, the forms and principles of existing governments,
rather to check our ardor, than to encourage our hopes; rather
to instruct us in our duties and difficulties, than to inflame
our zeal, or confirm our theories. They took as little courage
from the speculations of Plato, pouring out his fine genius
upon his own imaginary republic, as modern times have from
examining the Utopia of Sir Thomas More, or the cold and
impracticable reveries of one of the most accomplished men
of the last age, David Hume.
The truth is, that the study of the principles of government
is the most profound and exhausting of any, which can engage the human mind. It admits of very few fixed and
inflexible rules; it is open to perplexing doubts and questions,
in most of its elements; and.it rarely admits of annunciations
of universal application. The principles, best adapted to the
wants and interests of one age or country, can scarcely be
applied to another age or country. without essential modifications, and perhaps even without strong infusions of opposite
principles.  The different habits, manners, institutions, climates, employments, characters, passions, and even prejudices
and propensities, of different nations, present almost insurmountable obstacles to any uniform system, independently of
the large grounds of diversity, from their relative intelligence,
relative local position, and relative moral advancement. Any
attempt to force upon all nations the same modifications and
forms of government, would be founded in just as little wisdom and sound policy, as to force upon all persons the same
food, and the same pursuits; to compel the Greenlanders to
cultivate vineyards, the Asiatics to fish in the Arctic seas, or
the polished inhabitants of the south of Europe to clothe
themselves in bear skins, and live upon Iceland moss and
whale oil.
Government, therefore, in a just sense, is, if one may so
say, the science of adaptations -variable in its elements, de



THE SCIENCE OF GOVERNMENT.             617
pendent upon circumstances, and incapable of a rigid mathematical demonstration. The question, then, What form of
government is best? can never be satisfactorily answered,
until we have ascertained, for what people it is designed;
and then it can be answered only by the closest survey of all
the peculiarities of their condition, moral, intellectual, and
physical. And when we have mastered all these, (if they are
capable of any absolute mastery,) we have then but arrived
at the threshold of our inquiries. For, as government is not
a thing for an hour or a day, but is, or ought to be, arranged
for permanence, as well as for convenience of action, the
future must be foreseen and provided for, as well as the present.
The changes in society, which are forever silently, but irresistibly, going on; the ever diversified employments of industry;
the relative advancement and decline of commerce, manufactures, agriculture, and the liberal arts; the gradual alterations of habits, manners, and tastes; the dangers, in one age,
from restless enterprise and military ambition, in another age,
from popular excitements and an oppressive poverty, and in
another age, from the corrupting influence of wealth and the
degrading fascinations of luxury; — all these are to be examined and guarded against, with a wisdom so comprehensive,
that it must task the greatest minds and the most mature
experience.
Struck with considerations of this sort, and with the difficulties inherent in the subject, there are not a few men among
those, who aim to guide the opinions of others, who have
adopted the erroneous and alarming doctrine, so forcibly expressed by Pope in a single couplet:
"For forms of government let fools contest;
What e'er is best administered is best."
As if every thing were to be left to the arbitrary will and
caprice of rulers; and the whole interests of society were to
be put at risk upon the personal character of those, who constitute the existing government. According to this theory,
52*




618              MISCELLANEOUS WRITINGS;
there is no difference between an absolute despotism, and a
well-organized republic; between the securities of a government of checks and balances, and a division of powers, and
those of a sovereignty, irresistible and unresisted; between
the summary justice of a Turkish sultan, and the moderated
councils of a representative assembly.
Nay, the doctrine has been pressed to a farther extent, not
merely by those who constitute, at all times, the regular
advocates of public abuses, and the flatterers of power; but
by men of higher characters, whose morals have graced, and
whose philosophy has instructed the age in which they lived.
The combined genius of Goldsmith and Johnson arrived at
the calm conclusion, that the mass of the people could have
little reason to complain of any exercises of tyranny, since
the latter rarely reached the obscurity and retirement of private life. They have taught us this great conservative lesson,
so deadening to all reforms and all improvements, with all
the persuasive eloquence of poetry.
"In every government, though terrors reign,
Though tyrant kings and tyrant laws restrain,
How small, of all, that human hearts endure,
That part, which laws or kings can cause or cure!"
If this were true, it would, indeed, be of very little consequence to busy ourselves about the forms or objects of government. The subject might amuse our leisure hours, but
could scarcely touch our practical interests. But the truth is
far otherwise.  The great mass of human calamities, in all
ages, has been the result of bad government, or ill-adjusted
government; of a capricious exercise of power, a fluctuating
public policy, a degrading tyranny, or a desolating ambition.
Bad laws and bad institutions have gradually sunk the peasantry and artisans of most countries to a harsh and abject
poverty; and involved them in sufferings, as varied and
overwhelming, as any inflicted by the desolating march of a
conqueror, or the sudden devastations of a flood.
But an error of an opposite character, and quite as mis



THE SCIENCE OF GOVERNMENT.            619
chievous in its tendency, is, the common notion, that government is a matter of great simplicity; that its principles are
so clear, that they are little liable to mistake; that the fabric
can be erected by persons of ordinary skill; and that, when
once erected upon correct principles, it will stand without
assistance,
"By its own weight made steadfast and immovable."
This is the besetting delusion (I had almost said the besetting sin) in all popular governments. It sometimes takes its
rise in that enthusiasm, which ingenuous minds are apt to
indulge in regard to human perfectibility. But it is more
generally propagated by demagogues, as the easiest method
of winning popular favor, by appeals, which flatter popular
prejudices, and thus enable them better to accomplish their
own sinister designs. If there be any truth, which a large
survey of human experience justifies us in asserting, it is,
that, in proportion as a government is free, it must be complicated. Simplicity belongs to those only, where one will
governs all; where one mind directs, and all others obey;
where few arrangements are required, because no checks to
power are allowed; where law is not a science, but a mandate to be followed, and not to be discussed; where it is not
a rule for permanent action, but a capricious and arbitrary
dictate of the hour.
But passing from these general considerations, (upon
which it is, at present, unnecessary to enlarge,) I propose to
bring the subject immediately home to our own business and
bosoms, by examining the importance and utility of the
science of government to Americans, with reference to their
own political institutions. And I do not hesitate to affirm,
not only that a knowledge of the true principles of government is important and useful to Americans, but that it is
absolutely indispensable, to carry on the government of their
choice, and to transmit it to their posterity.
In the first place, what are the great objects of all free




620            MISCELLANEOUS WRITINGS.
governments? They are, the protection and preservation of
the personal rights, the private property, and the public liberties of the whole people. Without accomplishing these ends,
the government may, indeed, be called free, but it is a mere
mockery, and a vain, fantastic shadow. If the person of any
individual is not secure from assaults and injuries; if his
reputation is not preserved from gross and malicious calumny;
if he may not speak his own opinions with a manly frankness; if he may be imprisoned without just cause, and deprived of all freedom in his choice of occupations and pursuits; - it will be idle to talk of his liberty to breathe the air,
or to bathe in the public stream, or to give utterance to articulate language. If the earnings of his industry may be
appropriated, and his- property may be taken away, at the
mere will of rulers, or the clamors of a mob, it can afford
little consolation to him, that he has already derived happiness from the accumulation of wealth, or that he has the present pride of an ample inheritance; that his farm is not yet
confiscated, his house has not yet ceased to be his castle, and
his children are not yet reduced to beggary. If his public
liberties, as a man and a citizen, his right to vote, his right to
hold office, his right to worship God according to the dictates
of his own conscience, his equality with all others, who are
his fellow-citizens; if these are at the mercy of the neighboring demagogue, or the popular idol of the day; —of what
consequence is it to him, that he is permitted to taste of
sweets, which may be wantonly dashed from his lips at the
next moment, or to possess privileges, which are felt more in
their loss, even, than in their possession? Life, liberty, and
property stand upon equal grounds in the just estimate of
freemen; and one becomes almost worthless without the
security of the others. How, then, are these rights to be
established and preserved? The answer is, by constitutions
of government, wisely framed and vigilantly enforced; by
laws and institutions, deliberately examined and steadily
administered; by tribunals of justice above fear, and beyond




THE SCIENCE OF GOVERNMENT.          621
reproach, whose duty it shall be to protect the weak against
the strong, to guard the unwary against the cunning, and to
punish the insolence of office, and the spirit of encroachment
and wanton injury. It needs scarcely be said, how much
wisdom, talents, discretion, and virtue, are indispensable for
such great purposes.
In the next place, the people have taken upon themselves,
in our free form of government, the responsibility of accomplishing all these ends; the protection and preservation of
personal rights, of property, and public liberty. Is it quite
certain, that we shall successfully accomplish such a vast
undertaking? Is any considerate man bold enough to venture such an assertion? Is not our government itself a new
experiment in the history of the world? Has not every other
republic, with all the wisdom, and splendor, and wealth, and
power, with which it has been favored, perished, and perished
by its own hands, through the might of its own factions?
These are inquiries, which may not be suppressed or evaded.
They must be met, and deliberately weighed. They press
upon the minds of thousands, who are most interested in our
destiny, as patriots and statesmen. They are not disposed of
by a few fine flourishes of rhetoric, or by a blind and boasting
confidence. They involve the hopes and happiness of our
whole posterity; and we must meditate on them, if we
would save either ourselves or them. One of the first lessons
of wisdom is to understand our dangers; and, when we understand them, we may then be prepared to meet the duties
and difficulties of our position.
In the next place, we have chosen for ourselves the most
complicated frame of republican government, which was ever
offered to the world. We have endeavored to reconcile the
apparent anomaly of distinct sovereignties, each independent
of the other in its own operations, and yet each in full action
within the same territory. The national government, within
the scope of its delegated powers, is, beyond all doubt,
supreme and uncontrollable; and the state governments are




622             MISCELLANEOUS WRITINGS.
equally so, within the scope of their exclusive powers. But
there is a vast variety of cases, in which the powers of each
are concurrent with those of the other; and it is almost impossible to ascertain with precision, where the lines of separation between them begin and end. No rulers on earth are
called to a more difficult and delicate task than our own, in
attempting to define and limit them. If any collision shall
happen, it can scarcely be at a single point only. It will
touch, or it will trench, upon jealousies, interests, prejudices,
and political arrangements, infinitely ramified throughout the
whole extent of the Union. The adjustments, therefore, to be
made from time to time, to avoid such collisions, and to carry
on the general system of movements, require a degree of forecast, caution, skill, and patient investigation, which nothing
but long habits of reflection, and the most mature experience,
can supply.
In the interpretation of constitutional questions alone, a
vast field is open for discussion and argument. The text,
indeed, is singularly brief and expressive. But that very
brevity becomes of itself a source of obscurity; and that very
expressiveness, while it gives prominence to the leading
objects, leaves an ample space of debatable ground, upon
which the champions of all opinions may contend, with alternate victory and defeat. Nay, the very habits of free inquiry,
to which all our institutions conduct us, if they do not urge
us, at least incite us, to a perpetual renewal of the contest.
So that many minds are unwilling to admit any thing to be
settled; and the text remains with them a doubtful oracle,
speaking with a double meaning, and open to glosses of the
most contradictory character. How much sobriety of judgment, solid learning, historical research, and political sagacity
are required for such critical inquiries! Party leaders may,
indeed, despatch the matter in a few short and pointed sen.
tences, in popular appeals to the passions and prejudices of
the day, or in harangues, in which eloquence may exhaust
itself in studied alarms, or in bold denunciations. But states



THE SCIENCE OF GOVERNMENT.           623
men will approach it with a reverent regard. They will meditate upon consequences with a slow and hesitating assent.
They will weigh well their own responsibility, when they
decide for all posterity. They will feel that a wound inflicted
upon the constitution, if it does not bring on an immediate
gangrene, may yet introduce a lingering disease, which will
weaken its vital organs, and ultimately destroy them.
But it is not in the examination and solution of constitutional questions alone, that great abilities, and a thorough
mastery of the principles of government, are required of
American statesmen. The ordinary course of legislation, in
the national councils, is full of intricate and perplexing duties.
It is not every man, who can make an animated address at a
popular meeting, or run through the common places of party
declamation at the hustings, with a fluent elocution and a
steady presence, who is qualified for a seat in the national
legislature. The interests of four-and-twenty states are there
represented, and are there to be scrupulously weighed and
protected.
Look, but for a moment, over the vast extent of our country; the varieties of its climates, productions, and pursuits;
its local peculiarities and institutions; its untiring enterprise,
and inexhaustible industry. Look to the ever-changing character of agriculture; the sugar, cotton, and rice of the South;
the wheat, corn, and tobacco of the Middle States; and the
stubborn, but thrifty growth of the North, yielding to culture
what seems almost denied to climate. Look to the busy
haunts of our manufactures, rising on a thousand hills, and
sheltered in a thousand valleys, and fed by a thousand
streams. Everywhere they are instinct with life, and noisy
or noiseless industry, and pouring forth their products to
every market with an unceasing flow, which gathers as it
goes. Look to the reaches of our foreign commerce through
every region of the globe. It floats on the burning breezes of
Africa; it braves the stormy seas of the Arctic regions. It
glides with a bounding speed on the weary coasts and broad




624             MISCELLANEOUS WRITINGS.
streams of Southern America. It doubles the Capes of the
Indies, and meets the trade-winds and monsoons in the very
regions of their birth. It gathers its treasures from the deep
soundings of the Banks of Newfoundland. It follows the
seal in his secret visits to the lonely islands of the Southern
Pacific. It startles the whale on his majestic march through
every latitude, from the hither Atlantic to the seas of Japan.
The sun shines not on the region where its flag has not
saluted the first beams of the morning. It sets not, where its
last lingering rays have not played on the caps of its masts{4
And then, again, look to the reaches of our internal commerce along the various inlets, and bays, and ports of the
seaboard, through the vast and almost interminable rivers
and valleys of the MWest; on the broad and restless lakes,
through the deep prairies, and up the steeps of the Rocky
Mountains, and onward to the far ocean which washes the
darkened shores of two continents. Look, I say, to these
extensive yet connected interests, and who but must admit
that to understand their intricate relations and dependencies,
to gather up even the fragments of that knowledge which it
is necessary to possess in order (I will not say to guide and
direct them, but) not to mar and destroy them, there must be
years of patient, thorough, and laborious research into the
true principles, and policy, and objects of government.
But it is not to rulers and statesmen alone that the science
of government is important and useful. It is equally indispensable for every American citizen to enable him to exercise
his own rights, to protect his own interests, and to secure the
public liberties and the just operations of public authority.
A republic, by the very constitution of its government, requires, on the part of the people, more vigilance and constant
exertion than all others. The American republic above all
others demands from every citizen unceasing vigilance and
exertion; since we have deliberately dispensed with every
guard against danger or ruin, except the intelligence and
virtue of the people themselves. It is founded on the basis,




THE SCIENCE OF GOVERNMENT.            625
that the people have wisdom  enough to frame their own
system of government, and public spirit enough to preserve
it; that they cannot be cheated out of their liberties; and
that they will not submit to have them taken from them by
force. We have silently assumed the fundamental truth,
that, as it never can be the interest of the majority of the
people to prostrate their own political equality and happiness,
so they never can be seduced by flattery or corruption, by the
intrigues of faction, or the arts of ambition, to adopt any
measures which shall subvert them. If this confidence in
ourselves be justified, (and who among Americans does not
feel a just pride in endeavoring to maintain it?) let us never
forget that it can be justified only by a watchfulness and zeal
proportionate to our confidence. Let us never forget that
we must prove ourselves wiser, and better, and purer, than
any other nation ever yet has been, if we are to count upon
success. Every other republic has fallen by the discords and
treachery of its own citizens. It has been said, by one of our
departed statesmen, himself a devout admirer of popular
government, that power is perpetually stealing from the
many to the few. It has been said, by one of the greatest
orators of antiquity, whose life was devoted to the republic
with a zealous but unsuccessful patriotism, that the bad will
always attack with far more spirit than the good will defend
sound principles. The republic, said he, with a melancholy
eloquence, the republic is assailed with far more force and
contrivances than it is defended, because bold and profligate
men are impelled by a nod, and move of their own accord
against it. But I know not how it happens, the good are
always tardy. They neglect the beginning of things, and
are roused only in the last necessityV So that sometimes, by
their delay and tardiness, while they wish to retain ease,
even without dignity, they lose both. Those who are willing
to be the defenders of the republic, if they are of the lighter
sort, desert; if they are of the more timid sort they fly.
Those alone remain and stand by the republic whom no
53




626            MISCELLANEOUS WRITINGS.
power, no threats, no malice can shake in their resolutions
Such is the lesson of ancient wisdom, admonishing us as
from the grave; and it was pronounced, as it were, at the
very funeral of Roman liberty.
Besides, in other countries, there are many artificial bar.
riers against sudden changes and innovations which retard,
if they do not wholly obstruct them. There are ecclesiastical
and civil establishments, venerable from their antiquity, and
engrafted into the very habits, and feelings, and prejudices of
the people. There are hereditary honors and privileges, the
claims of aristocracy, and the influences of wealth, accumulated and perpetuated in a few families. We have none of
these to embarrass or overawe us. Our statutes regulating
the descent of estates have entirely broken down all the
ordinary means of undue accumulation; and our just pride
is, that the humblest and highest citizens are upon a footing
of equality. Nothing here can resist the will of the people;
and nothing certainly ought to resist their deliberate will.
The elements of change are therefore about us in every direction, from the fundamental articles of our constitutions of
government down to the by-laws of the humblest municipality.
Changes, then, may be wrought by public opinion wherever
it shall lead us. They may be sudden, or they may be slow;
they may be for the worse as well as for the better; they
may be the solid growth of a sober review of public principles, and a more enlightened philosophy; or they may be the
spurious product of a hasty and ill-advised excitement, flying
from evils which it knows and feels, to those far greater,
which it sees not, and may never be able to redress. They
may be the artful delusions of selfish men, taking advantage
of a momentary popularity, or the deep-laid plan of designing
men to overthrow the foundations of all free institutions.
This very facility of introducing changes should make us
I Cicero, Oratio pro Sextio, ch. 47.




THE SCIENCE OF GOVERNMENT.           627
more scrupulous in adopting innovations; since they often
bring permanent evils in their train, and compensate us only
by accidental and temporary good. What is safe is not
always expedient; what is theoretically true is often practically false or doubtful; what at the first glance seems beneficial and plausible is, upon more mature examination, often
found to be mischievous or inefficient; what constitutes the
true policy and security of free governments lies not unfrequently so distant from immediate observation and experience, that it is rashly rejected or coldly received. Hence, it
has been remarked, that a free people rarely bestow on good
rulers the powers necessary for their own permanent protection, and as rarely withhold from bad ones those which may
be used for their own destruction.
Again, independently of the common causes which are
constantly at work in all governments founded upon the
common passions and infirmities of human nature, there are
in republics some peculiar causes to stimulate political dis.
contents, to awaken corrupt ambition, and to generate violent
parties. Factions are the natural, nay, perhaps the necessary
growth of all free governments; and they must prevail with
more activity and influence, just in proportion as they enlist
in their ranks the interest and power of numbers. Where all
the citizens are, practically spealing, voters, it is obvious that
the destiny of public men and public measures must essentially depend on the contest at the polls, and the wisdom of
the choice which is there made. We need not be told that
many other influences are present on such occasions besides
those which arise from talents, merit, and public services.
We need not be told how many secret springs are at work
to obstruct that perfect freedom and independence of choice
which are so essential to make the ballot-box the just index
of public opinion. We need not be told how often the
popular delusions of the day are seized upon to deprive the
best patriots of their just reward, and to secure the triumph
of the selfish, the cunning, and the timeserving. And yet,




628             MISCELLANEOUS WRITINGS.
unless the people do at all times possess virtue, and firmness,
and intelligence enough to reject such mischievous influences; unless they are well instructed in public affairs and
resolutely maintain the principles of the constitution, it is
obvious, that the government itself must soon degenerate
into an oligarchy; and the dominant faction will rule with
an unbounded and desolating energy. The external forms
of machinery of the republic may continue to exist, like the
solemn pageantry of the Roman Senate in the times of the
emperors; but the informing spirit will have departed, and
leave behind it only the faded and melancholy memorials of
irretrievable decay.
I have but glanced at these considerations, each of which
might well furnish a topic for a full discourse. If the remarks
already suggested are in any measure well founded, they
establish the great truth, that, as in the American republic,
the people themselves are not only the source of all power,
but the immediate organs and instruments of its due exercise
at all times, it is of everlasting importance to them to study
the principles of government; and thoroughly to comprehend
men as well as measures, tendencies, as well as acts, and
corrupting influences, as well as open usurpations.  To
whom can we justly look for the preservation of our public
liberties and social rights; for the encouragement of piety,
religion, and learning; for the impartial administration of
justice and equity; for wise and wholesome laws, and a
scrupulous public faith; but to a people who shall lay a solid
foundation for all these things in their early education; who
shall strengthen them by an habitual reverence and approbation; and who shall jealously watch every encroachment
which may weaken the guards or sap the supports on which
they rest?
And this leads me to the next topic upon which I propose
to address you; and that is, the practicability of teaching the
science of government as a branch of popular education. If
it be not capable of being so taught, then indeed well may




THE SOIENOE OF GOVERNMENT.           629
patriots and philanthropists, as well as philosophers, sink
into profound despair in regard to the duration of our republic. But it appears to me that we are by no means justified
in arriving at such a desponding conclusion. On the con.
trary, we may well indulge a firm and lively hope, that, by
making the science of government an indispensable branch
of popular education, we may gradually prepare the way for
such a mastery of its principles by the people at large as
shall confound the sophist, repress the corrupt, disarm the
cunning, animate the patriotic, and sustain the moral and
religious.
It is true, that a thorough mastery of the science of
government, in all its various operations, requires a whole
life of laborious diligence. But it is equally true that many
of its general principles admit of a simple enunciation, and
may be brought within the comprehension of the most common minds. In this respect it does not materially differ
from any of the abstract physical sciences. Few of the latter
are, in their full extent, within the reach of any but the
highest class of minds; but many of the elements are nevertheless, within the scope of common education, and are
attainable by ordinary diligence. It is not necessary that
every citizen should be a profound statesman. But it may
nevertheless be of vast consequence that he should be an
enlightened as well as an honest voter, and a disciplined
thinker, if not an eloquent speaker. He may learn enough
to guard himself against the insidious wiles of the demagogue, and the artful appeals of the courtier, and the visionary speculations of the enthusiast; although he may not be
able to solve many of the transcendental problems in political
philosophy.
In the first place, as to the constitution of the United
States; (and similar considerations will apply, with at least
equal force, to all the state constitutions,) the text is contained in a few pages, and speaks a language which is generally clear and intelligible to any youth of the higher classes
53*




630            MISCELLANEOUS' WRITINGS.
at our common schools, before the close of the usual academical studies. Nay, it may be stated with confidence, that any
boy of ordinary capacity may be made fully to understand
it, between his fourteenth and sixteenth year, if he has an
instructor of reasonable ability and qualifications. He may
become possessed of the actual organization and powers of
the government, under which he lives, to which he is responsible, and which he is enjoined, by every duty of patriotism
and interest, to transmit unimpaired to future generations.
He may practically learn the leading divisions of the great
powers of all governments, into legislative, executive, and
judicial. He may ascertain, in some general way, the definite boundaries and appropriate functions of each. He may
understand yet more; that there are checks and balances
everywhere interposed to limit power, and prevent oppression,
and ensure deliberation, and moderate action. He may perceive that the House of Representatives cannot make laws
without the cooiperation of the Senate; that the President
cannot make appointments without the consent of the
Senate; and yet, that the President can, by his qualified
veto, arrest the legislative action of both houses. He may
perceive that the judiciary, in many parts of its organization,
acts through, and by, and under the will of the legislature
and executive; and yet, that it stands in many respects independent of each; nay, that it has power to resist the combined
operations of both; and to protect the citizens from their unconstitutional proceedings, whether accidental or meditated.
He may perceive that the state governments are indispensable portions of the machinery of national government; that
they in some cases control it; and in others, again, are controlled by it; that the same supreme law which promulgates
prohibitions upon certain acts to be done by the states, at
the same time promulgates like prohibitions upon the acts of
the United States. He may perceive that there are certain
leading principles laid down as the fundamental rules of
government; and that they constitute a solemn bill of rights,




THE SCIENCE OF GOVERNMENT.            631
which must be obeyed and cannot be gainsaid. He may
perceive that the trial by jury is preserved, as a matter of
right, in all cases of crimes, and generally, also, in civil cases;
that the liberty of speech and of the press are constitutionally vindicated; that no national religion can be imposed
upon the community; that private property cannot be taken
away without adequate compensation; and that the inviolability of public and private contracts is strenuously enforced.
Having arrived at this clear and definite view of the distribution of the powers of government, with the appropriate
restrictions belonging to them, he can scarcely fail to ask,
What are the reasons which induced the framers of the constitution to adopt them?  It is scarcely possible that he
should be so dull as not to have some desire to gratify, or so
indifferent as not to have some curiosity to indulge such
inquiries. When he is told, on every side, that this is the
form of government best calculated to secure his personal
happiness, and animate his love of liberty, it would be incredible that he should feel no interest in ascertaining why
and wherefore it is so. Why, for instance, legislation may
not as well be confided to one body, as to two distinct bodies? Why unity in the executive is preferable to plurality
of numbers? Why the judiciary should be separated from
the other branches?  Why, in short, simplicity in government is destructive of public liberty; and a complex machinery of checks and balances is indispensable to preserve
it? Inquiries of this sort, if they do not spontaneously rise
up in his own mind, cannot be presented to it by his instructor without opening new and various sources of reflection. He will thus be conducted to the threshold of that
profound science which begins and ends with the proper
study of man in all his social relations.
And here, again, it may be confidently affirmed that there
is not the slightest difficulty in unfolding to our youth the
true nature and bearing of all these arrangements, and the




632            MISCELLANEOUS WRITINGS.
reasons on which they are founded. Although they are the
result of human wisdom, acting upon the most comprehensive human experience, and have tasked the greatest
minds to discover and apply them, they are, nevertheless,
capable of as exact a demonstration as any other problems
of moral philosophy applied to the business of human life.
It required the genius of Newton to discover the profound
mystery of the universal law of gravitation; but every
schoolboy can now reason upon it, when he bathes in the
refreshing coolness of the summer stream, or gazes with unmixed delight on the beautiful starlight of the wintry heavens. So it is with political philosophy. Its great truths
can be clearly taught and made familiar to the juvenile mind
at the same time that they may well employ the most exalted powers of the human understanding. What more difficulty, for instance, is there in a scholar's comprehending the
value of checks and balances, and divisions of power in a
government, than in comprehending the value of good order
and discipline in a school, or the propriety of trustees laying
down rules to regulate and control the head master, and he
other rules to guide and direct his ushers? The principles
may not, indeed, always be obvious to the narrow circle of
his thoughts; but they can be pointed out. They may lie
too remote for his immediate observation; but he may learn
the paths by which they may be explored. They may not,
as yet, be within his grasp; but he can be taught how they
may be reached by skill and diligence. He may not, as yet,
see their full extent and operation; but his vision will gradually expand, until he can seize on the most distant objects,
and bring them, as it were, under the eye of his mind with a
close and cloudless certainty. Every element of knowledge
which he thus gradually acquires will soon become incorporated into his former stock, until at last he has accumulated
a capital upon which he may safely set up for himself; and,
by widening, and deepening, and strengthening the foundations, he may, at length, acquire a character for political wis



THE SCIENCE OF GOVERNMENT.           633
dom and ability which shall make him at once an ornament
and a blessing to his country, even though he may never pass
beyond the precincts of his native village. He may there be
able to quiet the discontented murmurs of a misguided populace. He may there repress the inordinate love of innovation
of the young, the ignorant, and the restless. He may there
stand the unconquerable friend of liberty; recommending it
by his virtues, and sustaining it by his councils. He may
there withstand the village tyrant, too often disguised under
the specious character of the village demagogue. And he
may there close his life with the conscious satisfaction that,
as a village patriot, he has thus filled up the measure of his
duties; and has earned a far more enviable title to true glory
than the conqueror, who has left the dark impressions of his
desolations in the ruined hopes and fortunes of millions.
If, on the other hand, a higher destiny awaits him; if he
is called to take a part in the public councils of the state or
nation, what immense advantages must such preparatory
studies and principles give him over those who rise into public life by the accidents of the day, and rush into the halls of
legislation with a blind and daring confidence, equalled only
by their gross ignorance, and their rash ardor for reform!
For weal or for woe, our destiny must be committed to the
one or the other of these classes of rulers, as public opinion
shall decide. Who would willingly commit himself to the
skill of a pilot who had never sounded the depths, or marked
the quicksands of the coast? Who would venture to embark his all on board a ship on a short voyage, (far less on
the voyage of life,) when the crew have not learned how to
trim the sails, and there is neither chart nor compass on board
to guide the navigation?
I am not aware that there are any solid objections, which
can be urged against introducing the science of government
into our common schools as a branch of popular education.
If it should be said that it is too deep and difficult for the
studies of youth, that objection assumes the very matter in




634            MISCELLANEOUS WRITINGS.
controversy; and if the observations already made are well
founded, it is wholly indefensible. If it should be said that
it will have a tendency to introduce party creeds and party
dogmas into our schools, the true answer is, that the principles of government should be there taught, and not the creeds
or dogmas of any parl. The principles of the constitution
under which we live; the principles upon which republics
generally are founded, by which they are sustained, and
through which they must be saved; the principles of public
policy by which national prosperity is secured, and national
ruin averted; these, certainly, are not party creeds, or party
dogmas; but are fit to be taught at all times and on all occasions, if any thing which belongs to human life and our own
condition is fit to be taught. If we wait until we can guard
ourselves against every possible chance of abuse before we introduce any system of instruction, we shall wait until the current of time has flowed into the ocean of eternity. There is
nothing which ever has been, or ever can be taught, without
some chance of abuse, nay, without some absolute abuse.
Even religion itself, our truest and our only lasting hope and
consolation, has not escaped the common infirmity of our nature. If it never had been taught until it could be taught
with the purity, simplicity, and energy of the apostolic age,
we ourselves, instead of being blest with the bright and balmy
influences of Christianity, should now have been groping our
way in the darkness of heathenism, or left to perish in the
cold and cheerless labyrinths of skepticism.
If it be said, that there is not time, or means, suitable to
learn these principles in our common schools, the true answer
is, that, if the fact be so, (which is not admitted,) more time
should be given, and more ample means be supplied, for the
purpose. What is the business of education, but to fit men
to accomplish their duties and their destiny? And who is
there among Americans, that is not called to the constant
performance of political duties, and the exercise of political
privileges? He may perform, or use them, well or ill. But




THE SCIENCE OF GOVERNMENT.           635
the results of the use and abuse are, and ever will be, mixed
up with his own intimate interests. The perils, he may
choose that others shall encounter, he must share in common
with them. He is embarked in the same ship of state, and
the shipwreck, which shall bury the hopes of others, will not
spare his own. What blessings in human life can fairly be
put in competition with those derived from good government
and free institutions? What condition can be more deplorable than that, where labor has no reward, property no security, and domestic life no tranquillity? where the slave is
compelled to kiss the chain which binds him to wretchedness,
and smile upon his oppressor, while his heart is writhing in
agony?  Let not Americans forget, that Greece, immortal
Greece, has been free; and yet, that thousands of years have
already rolled over her servitude; that Italy, beautiful Italy,
has been free; but where is now her republican grandeur?
The Apennines still lift up their bold and rugged peaks; the
sun still looks down upon her plains with a warm and cloudless splendor; — but the spirit of liberty is not there; and
Rome has become, as it were, the vast sepulchre of her own
perished glory.
But, independent of the grave considerations already urged,
in favor of the introduction of political studies into our system
of popular education, there are other collateral advantages,
which should not be wholly passed by.
In the first place, there are no studies better fitted to discipline the mind, or to accustom it to severe and close investigation. They combine, in a very high degree, the speculations of philosophy with the varied events of history, and
increase the separate interest of each. They have a tendency to enlarge and liberalize the mind, by familiarizing it
with comprehensive views of men and things. They are
capable of an indefinite expansion and variety; such as may
employ the whole leisure of the most retired scholar, or suit
the short and hasty intervals of the man of business. They
gather up new materials in the daily intercourse of society;




636             MISCELLANEOUS WRITINGS.
and, at the same time, they enable us to expound its apparent
anomalies, and classify its varied results.
In the next place, they have a powerful tendency to counteract the rash and hasty judgments, which youth and inexperience naturally produce in ardent and inquisitive minds.
Nothing is so fascinating and so delusive, as the simplicity of
theory, in the earlier stages of life. It not only flatters that
pride of opinion, which results from a supposed mastery of
important truths; but it gratifies that fresh and vigorous
confidence, which hopeth all things, and believeth all things.
The severe lessons of experience do, indeed, generally, correct, or demolish these visionary notions. But they often
come so slow, that irreparable mistakes have been already
committed; and the party is left, to mourn over the blight of
his own prospects, or the impending dangers to his country.
Nothing can have a more salutary effect in repressing this
undue pride and confidence, than the study of the science of
government. The youth is there taught, how little reliance
can be placed upon mere abstract speculations; how often
that, which is theoretically true, becomes practically mischievous; how complicated is the machinery, necessary to
carry on the operations of a good government; how many
nice adjustments are required, to give full play and activity
to the system; how slow every change must be, to be safe,
as well as improving; and, above all, how often the wisest
statesmen, the truest patriots, and the most profound reasoners, find defects, where they had least suspected them; and
their labors, begun with energy and confidence, end in disappointment and mortification. Nay, systems of government,
which have been apparently reared with consummate skill
and solidity, have often been found buried in ruins, before
the capstone has been placed upon them; and, while the
architect has been still gazing on his own work, he has become the first victim of its ponderous magnificence.
Considerations of this sort cannot wholly escape an ingenuous youth, upon the most cursory examination of govern



SCIENCE OF GOVERNMENT.            63T
ment, as it is read by the lights of history. They will naturally inspire caution, if they do not awaken distrust; and
when, at every step of his advancement in political studies,
he finds himself compelled to surrender some imagined truth,
to discredit some popular dogma, and to doubt some plausible theory, he cannot but profit by the instructions which
they hold out, and the admonitions which they silently inculcate. A nation, whose citizens are habitually attentive to
the principles and workings of government, may sometimes
be betrayed; but it can scarcely be ruined. At least, it cannot be enslaved, until it has sunk so low in corruption, that it
will hail the presence of any tyrant, to escape from the terrible scourges of anarchy.
But it may be asked, and this is the last topic on which
I propose to address you, In what mode is the science of
government to be taught in our common schools? The
answer may be given in a few words. It is by the introduction and constant use of suitable elementary works, which
unfold the principles of government, and illustrate their application, and in an especial manner, with reference to the forms
of the American constitutions. Such works should not only
be read, but be studied as class-books. The instructor, if he
possesses common skill and ingenuity, may easily make
them, not a dry task, but an interesting exercise. By bringing constantly before the school, in the course of reading, and
recitation, and occasional explanations, the leading principles
of government, he will gradually make the pupils familiar
with their bearing and value. They may not at once arrive
at the various truths which are designed to be taught; but
they will silently master them. And by the time they have
passed through the usual preparatory studies of the' school,.
they will have acquired a stock of materials for future use, of
inestimable value —a stock, which will furnish perpetual
sources for meditation, and enable themn to lay a broad foundation for the due discharge of the duties of private citizens,
and the more arduous employments of public life.
54




638            MISCELLANEOUS WRITINGS.
Lord Brougham, one of the most powerful advocates of
popular education in our day, has made the following remarks, which cannot be more fitly addressed to the consideration of any other body than that, which I have now the
honor to address. " A sound system of government," says
he, " requires the people to read, and inform themselves upon
political subjects; else they are the prey of every quack, every
impostor, and every agitator, who may practise his trade in
the country. If they do not read; if they do not learn; if
they do not digest, by discussion and reflection, what they
have read and learned; if they do not qualify themselves to
form opinions for themselves, other men will form opinions
for them; not according to the truth and the interests of the
people, but according to their own individual and selfish
interest, which may, and most probably will, be contrary to
that of the people at large. The best security for a government, like ours, (a free government) and generally, for the
public peace and public morals, is, that the whole community should be well informed upon its political, as well as its
other interests. And it can be well informed only by having
access to wholesome, sound, and impartial publications."
I shall conclude this discourse with a single sentence,
borrowed from the great work of Cicero on the Republic, the
most mature, and not least important, of his splendid labors
— a sentence, which should always be present to the mind
of every American citizen, as a guide and incentive to duty.
" Our country," said that great man, " has not given us birth,
or educated us under her law, as if she expected no succor
from us; or, that, seeking to administer to our convenience
only, she might afford a safe retreat for the indulgence of our
ease, or a peaceful asylum for our indolence; but that she
might hold in pledge the various and most exalted powers of
our mind, our genius, and our judgment, for her own benefit;
and that she might leave for our private use such portions
only, as might be spared for that purpose." 
1 Cicero, de Republica, lib. i. cap. 4.




LIFE, CHARACTER, AND SERVICES OF CHIEF
JUSTICE MARSHALL.
A DISCOURSE PRONOUNCED ON THE 15TH OF OCTOBER, 1835, AT THE
REQUEST OF THE SUFFOLK BAR.
THE funeral obsequies have been performed; the long procession has passed by, and the earth has closed over the mortal remains of Chief Justice Marshall. Time has assuaged
the first agonies of grief of the immediate relatives who were.
called to mourn over so afflictive a loss; and others, who,
looking to the claims of private friendship or to the public
interests, were astounded at a blow, which, though not unexpected, came at last with a startling force, have had leisure to
recover from their perturbation, and may now contemplate
the event with a calm though profound melancholy.
It is under these circumstances that we are now assembled
together to devote a brief space of time to the consideration
of his life, character, and services; and then to return again
to the affairs of the world, edified, as I may hope, by what he
was, and warmed and elevated by a nearer approach to excel.
lences, which, if we may not reach, we may yet gaze on with
devout respect and reverence. I am not insensible of the.
difficulties of the task of worthily discharging the duties of
the present occasion. I am but too conscious how much more
successfully it would have been accomplished in other hands;
and how little is my own ability to do justice even to my own
feelings in attempting a sketch of such a man. I have not,
however, felt at liberty to decline the part which has been assigned to me in the commemorations of this day, lest I should




640             MISCELLANEOUS WRITINGS.
be thought wanting in readiness to do homage to one who
was the highest boast and ornament of the profession. There
is this consolation, nevertheless, in undertaking the task, that
it requires no labored vindication of motives or actions. His
life speaks its own best eulogy. It had such a simplicity,
purity, consistency, and harmony, that the narrative of the
events in their natural order invests it with an attraction
which art need not seek to heighten, and friendship may well
be content to leave with its original coloring.
Of the great men who have appeared in the world, many
have been distinguished by the splendor of their birth or station; many by the boldness or variety of their achievements;
and many by peculiarities of genius or conduct, which, from
the extraordinary' contrasts presented by them, have awakened
the curiosity, or gratified the love of novelty of the giddy
multitude. I know not, how it has happend, but so, I fear,
the fact will be found to be, that high moral qualities are
rarely the passport to extensive popular favor or renown.
Nay; a calm and steady virtue, which acts temperately and
wisely, and never plunges into indiscretion or extravagance,
is but too often confounded with dulness or frigidity of temperament. It seems as if it were deemed the prerogative, if
not the attribute, of genius, to indulge itself in eccentricities,
and to pass from one extreme to another, leaving behind it
the dark impressions of its vices or its follies. The deeper
movements of the soul in the inmost workings of its thoughts
are supposed to display themselves like volcanoes in the natural world, by occasional explosions which awe, but at the
same time excite the crowd of eager spectators. They are
struck with admiration of what they do, not comprehend; and
mistake their own emotions for the presence of superior
power. They are bewildered by the shifting exhibition, alternately of brilliant deeds and debasing passions, of intellectual
efforts of transcendent energy, and paradoxes of overwrought
ingenuity; and being unable to fathom the motives or sources
of anomalies, they confound extravagance with enterprise




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 641
and the dreams of wild ambition with lofty and well-considered designs.
And yet if there is any thing taught us, either by the precepts of Christianity, or the history of our race, it is, that true
greatness is inseparable from sound morals; that the highest
wisdom is but another name for the highest talents; that the
genius which burns with a pure and regulated flame throws
far and wide its beneficent light to guide and cheer us; while
occasional corruscations serve only to perplex and betray us,
or (to borrow the language of poetry) serve but to make the
surrounding darkness more visible. The calmn and patient
researches of Newton and Locke have conferred far mbre
lasting benefits on mankind, than all the achievements of all
the mere heroes and conquerors of ancient or modern times.
One patriot like Epaminondas, Scipio, or Washington, outweighs a host of Alexanders, Caesars, and Napoleons. The
fame of Justinian as a fortunate possessor of the imperial
purple, would have long since faded into an almost evanescent point in history, if his memorable Codes of Jurisprudence
had not secured him an enviable immortality by the instruction which they have imparted to the legislation of all succeeding times. He who has been enabled, by the force of his
talents and the example of his virtues, to identify his own
character with the solid interests and happiness of his country; he who has lived long enough to stamp the impressions
of his own mind upon the age, and has left on record lessons
of wisdom for the study and improvement of all posterity;
he, I say, has attained all that a truly good man aims at, and
all that a truly great man should aspire to. He has erected
a monument to his memory in the hearts of men. Their
gratitude will perpetually, though it may be silently, breathe
forth his praises; and the voluntary homage paid to his name
will speak a language more intelligible and more universal
than any epitaph inscribed on Parian marble, or any image
wrought out by the cunning hands of sculpture.
Reflections like these naturally crowd upon the mind upon
54 *




642            MISCELLANEOUS WRITINGS.
the death of every great man; but especially of every one
who may be justly deemed a benefactor and ornament of his
race. In the present case, there is little occasion to point out
the manner or the measure of their application.
JOHN MARSHALL was born on the 24th day of September,
r 17t, (a little more than eighty years ago,) in the county of
Fauquier, in the State of Virginia. His father was Thomas
Marshall, a native of the same State, and at the time of his
birth, a planter of narrow fortune and retired habits. Of this
gentleman, who afterwards served with great distinction
during the revolutionary war, having been appointed to the
-command of one of the Continental Regiments of Infantry,
it is proper to say a few words in this place. He was a man
of uncommon capacity and vigor of intellect; and though his
original education was very imperfect, he overcame this disadvantage by the diligence and perseverance, with which he
cultivated his natural endowments; so that he soon acquired,
and maintained throughout the course of his life, among
associates of no mean character, the reputation of masculine
sense, and extraordinary judgment and ability. No better
proof, indeed, need be adduced to justify this opinion than
the fact, that he possessed the unbounded confidence, respect,
and admiration of all his children at that mature period of
their lives, when they were fully able to appreciate his worth,
and to compare and measure him with other men of known
eminence. I have myself often heard the Chief Justice speak
of him in terms of the deepest affection and reverence. I do
not here refer to his public remarks; but to his private and
familiar conversations with me, when there was no other
listener. Indeed, he never named his father on these occasions without dwelling on his character with a fond and
winning enthusiasm. It was a theme, on which he broke
out with a spontaneous eloquence; and, in the spirit of the
most persuasive confidence, he would delight to expatiate
upon his virtues and talents. "M y father," would he say
with kindled feelings and emphasis, "my father was;a far




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 643
abler man than any of his sons. To him I owe the solid
foundation of all my own success in life." Such praise from
such lips is inexpressibly precious. I know not, whether it
be most honorable to the parent, or to the child. It warms,
while it elevates our admiration of both. What, indeed, can
be more affecting than such a tribute of filial gratitude to the
memory of a parent, long after death has set its seal upon his
character, and at such a distance of time, as leaves no temptation to pious sorrow to exaggerate what he was, or to excite
the imagination to paint what he might have been.
Colonel Marshall had fifteen children, several of whom are
still living. Some of them, besides the one of whom I am
mainly to speak, have attained high distinction as scholars
and statesmen; and one, whom I do not feel privileged to
name, enjoys the reputation of a thorough acquaintance with
that most difficult of all studies, the Philosophy of History.
John was the eldest son, and of course was the earliest to
engage the solicitude of his father. The means of obtaining
any suitable education at the family residence were at that
period scanty and inadequate. Fauquier was then a frontier
county in the State; and whoever will carry back his thoughts
to the dangers and difficulties of such a local position, far in
advance of the ordinary reach of compact population, will
readily comprehend the embarrassments and sacrifices, with
which it was attended. Colonel Marshall was thus compelled
exclusively- to superintend the education of all his children;
and perceiving the rapid development of the talents of his
eldest son, he gave him a decided taste for the study of English literature, and especially for poetry and history. At the
age of twelve, the latter had transcribed the whole of Pope's
Essay on Man, and some of his moral essays; and had conmmitted to memory many of the most interesting passages of
that distinguished poet.
The love of poetry, thus awakened in his warm and vigorous mind, soon exerted a commanding influence over it. He
became enamored of the classical writers of the old English




644             MISCELLANEOUS WRITINGS.
school, of Milton, and Shakspeare, and Dryden, and Pope;
and was instructed by their solid sense and beautiful imagery.
In the enthusiasm of youth, he often indulged himself in
poetical compositions, and freely gave up his leisure hours to
those delicious dreamings with the muses, which, say what
we may, constitute with many the purest source of pleasure
in the gayer scenes of life, and the sweetest consolation in the
hours of adversity. It has, indeed, been said by Sir James
Mackintosh, that all men of genius delight to take refuge in
poetry from the vulgarity and irritation of business. Without
yielding to so general and sweeping a conclusion, it may be
truly said, that it is not uncongenial with the highest attributes of genius, and is often found an accompaniment of its
nicer sympathies.
One of the best recommendations, indeed, of the early cultivation of a taste for poetry, and the kindred branches of
literature, is, that it does not expire with youth. It affords to
maturer years a refreshing relaxation from the severe cares of
business, and to old age a quiet and welcome employment,
always within reach, and always bringing with it, if not the
charm of novelty, at least the soothing reminiscences of other
days. The votary of the muses may not always tread upon
enchanted ground; but the gentle influences of fiction and
song will steal over his thoughts, and breathe, as it were, into
his soul the fragrance of a second spring of life.
Throughout the whole of his life, and down- to its very
close, Mr. Marshall continued to cultivate a taste for general
literature, and especially for those departments of it, which
had been the favorite studies of his youth. He was familiar
with all its light, as well as its more recondite, productions.
He read with intense interest, as his leisure would allow, all
the higher literature of modern times; and, especially, the
works of the great masters of the art were his constant delight.
While the common publications of the day fell from his hands
with a cold indifference, he kindled with enthusiasm at the
names of the great; novelists and poets of the age, and dis



CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 645
cussed their relative powers and merits with a nice and discriminating skill, as if he were but yesterday fresh from the
perusal of them.
To many persons it may seem strange, that such a love of
letters, and especially of works of imagination, should ever be
found combined with the severe logic and closeness of thought,
which belonged to his character, and gave such a grave cast
to all his juridical labors. But the truth is, that the union is
far less uncommon in the highest class of minds, than slight
observers are apt to suppose. There is not only no incompatibility in pursuits of such opposite tendencies; but men of
genius, more than any other persons, from their lively sensibility to excellence, are prone to have their curiosity awakened by any exhibition of it, in whatever department of knowledge or art it may be displayed. They feel the presence of
superior power; they are touched by the sublime reaches of
kindred spirits; they gaze on the wonders of that workmanship, whose exquisite proportions they understand, and whose
difficulties of execution they appreciate. They see the glory
of that eminence, which is so proudly won, and so bravely
maintained. But they can also measure what few other persons can, what vast resources and uncounted labors have been
exhausted in the attainment. Thus, their sympathies are excited by every triumph of the human intellect; and the very
contrast of their own favorite studies and pursuits with those
of others opens upon them new sources of pleasure, in surveying the variety, as well as the magnificence, of human
genius. But to return to my narrative.
There being no grammar school in the neighborhood, young
Marshall, at the age of fourteen, was sent for his education
about a hundred miles from his home, and was placed under
the tuition of Mr. Campbell, a clergyman of great respectability. He remained with him a year, and then returned
home, and was placed under the care of a Scotch gentleman,
who was just then inducted as pastor of the parish, and resided in his father's family. He pursued his classical studies




646            MISCELLANEOUS WRITINGS.
under the care of this reverend pastor, as long as he resided
in the family, which was about a year; and he had at that
time commenced the reading of Livy and Horace. After this
period, he was left to his own unassisted diligence; and his
subsequent mastery of the Classics was accomplished without any other aids than his Grammar and Dictionary. He
never had the benefit of any instruction in any college, or
other public institution; and his attainments in learning,
such as they were, were nourished by the solitary vigils of his
own genius. In English literature, he continued to receive
the fostering care and assistance of his father, who directed
his studies, and contributed, in an eminent degree, to cherish
his love of knowledge; to give a solid cast to his acquirements; and to store his mind with the most valuable materials. It is to this circumstance, that we are mainly to attribute
that decided attachment to the writers of the golden age of
English literature, which at all times he avowed, and vindicated with a glowing confidence in its importance, and its
superior excellence. His father, too, at this period, was not
only a watchful parent, but a most useful and affectionate
friend; and he became the constant, as he was also almost
the only intelligent, companion of his son. The time which
was not thus passed in the society of his father, he employed
in hardy, athletic exercises in the open air. He engaged in
field sports; he wandered in the deep woods; he indulged
his solitary meditations amidst the wilder scenery of nature;
he delighted to brush away the earliest dews of the morning,
and to watch the varied magnificence of sunset, until its last
beams ceased to play on the dark tops of the noiseless forest.
It was to these early habits in a mountainous region, that he
probably owed that robust and vigorous constitution, which
carried him almost to the close of his life with the freshness
and firmness of manhood.
It was about the time, when young Marshall entered on
the eighteenth year of his age, that the controversy between
Great Britian and her American Colonies, which ended in




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 647
the establishment of the independence of the latter, began to
assume a portentous aspect. It could not fail to engage the
attention of all the Colonists, whether they were young, or old,
in the retirement of private life, or in the exercise of public
political functions. It was a stirring theme of conversation,
involving interests of such vast magnitude, and consequences
of such enduring influence, that every patriot felt himself
called upon by a sense of duty to arouse himself for the approaching exigency. Young Marshall could not be indifferent to it. He entered into the controversy with all the zeal
and enthusiasm of a youth, full of the love of his country,
and deeply sensible of its rights and its wrongs. Partaking
of the spirit and energy of his father, he immediately devoted
his time, with a prophetic foresight, to the acquisition of the
rudiments of military manceuvres in an independent company
of volunteers, composed of gentlemen of the same county, to
the training of a company of the militia of the neighborhood,
and to the diligent reading of the political essays of the day.
For these animating pursuits he was quite content to relinquish all his literary studies; and the pages of Blackstone's
Commentaries, to which he had already begun to direct his
ambition, were forgotten amidst the din of arms, and the
preparations for open hostilities.
In the summer of 1775, he was appointed the first lieutenant of a company of minute men, who were enrolled for
active service, and assembled in battalion at the beginning of
the ensuing September. In a few days they were ordered to
march into the lower country, for the purpose of defending it
against a small predatory force of regulars commanded by
Lord Dunmore, and also of assisting in the relief of Norfolk,
with some other provincial troops. Hearing of their approach,
Lord Dunmore took an advantageous position on the north
side of Elizabeth, near the great bridge, and at a small distance
from Norfolk. A battle soon afterwards took place between
the opposing bodies, in which the British were repulsed with
great gallantry. On this occasion Lieutenant Marshall took




648            MISCELLANEOUS WRITINGS.
an active part, and had a full share of the honors of the day.
The provincials, immediately after the retreat of the British,
made their way to Norfolk; and Lieutenant Marshall was
present, when that city was set on fire by a detachment from
the British ships, then lying in the river.
In July, 1776, he received the appointment of first lieutenant in the eleventh regiment on the Continental establishment; and in the succeeding winter he marched with his
regiment to the Middle States, then the scene of an harassing warfare; and in May, 1777, he was promoted to the rank
of captain.  From this period he remained constantly in
service until the close of the year 1779. He was present at
the skirmish with the British light infantry at Iron Hill; and
he fought in the memorable battles of Brandywine, Germantown, and Monmouth. During this period of his military
life, he was often employed to act as Deputy Judge Advocate,
a situation, which brought him to a large acquaintance with
the officers of the army, by whom he was greatly beloved,
and among whom he deservedly acquired an extensive influence. I myself have often heard him spoken of by some
of these veterans in terms of the warmest praise. In an especial manner the Revolutionary officers of the Virginia Line
(now " few and faint, but fearless still,") appeared almost to
idolize him, as an old friend and companion in arms, enjoying
their unqualified confidence.
It was during his performance of the duties of Judge Advocate, that he for the first time (I believe) became personally
acquainted with General Washington, and (I am sure) with
Colonel (afterwards General) Hamilton; for both of whom, it
needs scarcely to be said, he always entertained the deepest
respect, and whose unreserved friendship, at a subsequent
period of his life, he familiarly enjoyed.  His opinion of
Washington is sufficiently manifested in his biography of that
great man. Of Hamilton he always spoke in the most unreserved manner, as a soldier and statesman of consummate
ability; and in a point of comprehensiveness of mind, purity




CHARACTER AND SERVICES OF CHIIEF JUSTICE MARSHALL. 649
of patriotism, and soundness of principles, as among the first,
that had ever graced the councils of any nation. His services
to the American Republic he deemed to have been of inestimable value, and such as had eminently conduced to its
stability, its prosperity, and its true glory.
There being, in the winter of 1779, a great surplus of
officers belonging to the Virginia line, beyond the immediate exigencies of the service, the supernumeraries, among
whom was Captain Marshall, were directed to return home,
in order to take charge of such men, as the state legislature
might raise for their command. It was in this interval of
military inactivity, that he availed himself of the opportunity
of attending at YWilliam and Mary's College the course of
law lectures of Mr. (afterwards Chancellor) Wythe, and the
lectures upon natural philosophy of the then president of the
college, Mr. (afterwards Bishop) Madison. He left that
institution in the summer vacation of 1780; and soon afterwards received the usual license to practise law. In October
of the same year he returned to the army, and continued in
active service until after the termination of Arnold's invasion
of Virginia. Finding, that the same redundancy of officers
in the Virginia line still continued, he then resigned his
commission, and addicted himself to the study of his future
profession. The courts of law were suspended in Virginia
until after the capture of Lord Cornwallis and his army at
the memorable siege at Yorktown. As soon as they were
reopened, Mr. Marshall commenced the practice of the law,
and soon rose into high distinction at the bar.
In the spring of 1782, he was elected a member of the
state legislature; and, in the autumn of the same year,
a member of the state executive council.  In January,
1783, he married Miss Ambler, the daughter of the then
Treasurer of the state, to whom  he had become attached,
before he quitted the army. With this lady he lived in a
state of the most devoted conjugal affection for nearly fifty
years; and her death, not quite three years ago, cast a gloom
55




650            MISCELLANEOUS WRITINGS.
over his thoughts, from which I do not think he ever fully
recovered. About the time of his marriage, he took up his
permanent residence in the city of Richmond. In the spring
of 1784, he resigned his seat at the council board, in order to
devote himself more exclusively to the duties of the bar. He
was immediately afterwards elected a member of the legislature by the county of Fauquier, a tribute of respect from the
spot of his nativity the more marked, because he had already
ceased to have any thing but a nominal residence there. In
1787, he was elected a member of the legislature by the
county of Henrico; and he soon embarked in all the perplexing political questions which then agitated the State.
It is to this period, - between the close of the war of the
Revolution, and the adoption of the present constitution of
the United States, - that we are to refer the gradual development and final establishment of those political opinions and
principles, which constituted the basis of all the public actions
of his subsequent life. He had entered the army with all the
enthusiasm of a young man, ardent in the cause of liberty,
devoted to his country, glowing with confidence in the waisdom and virtue of the people, and unsuspicious, that they
could ever be seduced or betrayed into any conduct, not warranted by the purest public principles. He knew the disinterestedness of his own heart; and he could not believe, nay,
he could not even imagine, that it was possible, that a republic, founded for the common good, should not, at all times
and under all circumstances, be exclusively administered for
this single purpose. The very suggestion of any doubt upon
the subject led him to distrust, not his own judgment, but the
intelligence or integrity of those, who ventured to breathe
that doubt, even in the softest whispers. He had never
heard of the profound remark of a great statesman, that a
young man, who was not an enthusiast in matters of government, must possess low and grovelling principles of action;
but that an old man, who was an enthusiast, must have
lived to little purpose.  He could have learned nothing




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 651
worth remembering; or remembered only what was fit to
be forgotten.  Like the shepherd in Virgil, in the simplicity of his heart he thought, that all things were at Rome,
as they were at Mantua; - Sic parvis componere mag( na solebat. Amidst the din of arms, he found no leisure to study
the science of government. He deemed it useless to consider, how liberty was to be enjoyed and protected, until it was
won. The contest for national existence was then instant
and pressing. The only lights which were on the paths of
the patriot, to guide or instruct him, were those which
glanced from the point of his sword. The midnight hours
were to be passed, not in the soft serenities of meditation,
but in mounting guard on the outposts; in stealthy patrols
along the lines of the enemy; or in repelling the deadly
attack in the midst of the flashes and the roar of well-directed
musketry and cannon.
"' When I recollect," (said he, in a letter written long afterwards to a friend,) " the wild and enthusiastic notions, with
which my political opinions of that day were tinctured, I am
disposed to ascribe my devotion to the Union, and to a government competent to its preservation, at least as much to
casual circumstances, as to judgment. I had grown up at
a time, when the love of the Union, and the resistance to the
claims of Great Britain, were the inseparable inmates of the
same bosom; when patriotism and a strong fellow feeling
with our suffering fellow-citizens of Boston were identical;
when the maxim,' United we stand, divided we fall,' was the
maxim of every orthodox A.meriean.  And I had imbibed
these sentiments so thoroughly, that they constituted a part
of my being. I carried them with me into the army, where
I found myself associated with brave men from different
States, who were risking life and every thing valuable, in a
common cause, believed by all to be most precious; and
where I was confirmed in the habit of considering America
as my country, and congress as my government."
But the times were now arrived, in which the dreams of




652            MISCELLANEOUS WRITINGS.
his early manhood were to be rigidly compared with the
sober realities about him. The Revolution, with its strong
excitements, and its agitations of alternate hopes and fears,
had passed away. The national independence bad been
achieved; and the feverish and restless activity of the past
had given place to a state of languor and exhaustion, which
made the advent of peace itself a period of renewed anxieties,
and heavier cares. What had been gained by the sword was
now to be secured by civil wisdom; by the establishment
of wholesome laws, sound institutions, and well-regulated
government. And deeply and painfully did every lover of
his country then feel the truth of the remark of Milton, —' Peace hath her victories, no less renowned than War."
Whoever is well read in our domestic history, cannot have
forgotten the dangers and difficulties of those days. The
close of the war of the Revolution found the whole country
impoverished and exhausted by the necessary expenditures of
the contest. Some of the States had made enormous sacrifices to provide their own just contributions for the public
service; and most of them had been compelled to resort to
the ruinous expedient of a paper currency, to supply their
own immediate wants. The national finances were at the
lowest ebb of depression. The continental congress had
issued more than three hundred millions of paper money,
purporting on its face to contain a solemn pledge of the faith
of the Union for its due redemption, which pledge had been
as notoriously violated. And, indeed, this paper money had
sunk to the value of one dollar only for one hundred; and at
last had ceased in fact to circulate at all as currency. The
national debt was not only not discharged; but was without
any means of being discharged, even as to the interest due
upon it. The army had been disbanded with long arrearages
of pay outstanding; and the discontents of those noble bands,
which had saved the country, were listened to, only to be
disregarded. The very magnitude of the public evils almost
discouraged every effort to redress them. The usual conse



CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 653
sequences of such a state of things had been fully realized.
Private, as well as public, credit was destroyed. Agriculture
and commerce were crippled; manufactures could not, in any
strict sense, be said to have an existence. They were in
a state of profound lethargy. The little money, which yet
remained in specie in the country, was subject to a perpetual
drain, to purchase the ordinary supplies from foreign countries. The whole industry of the country was at a stand.
Our artisans were starving in the streets, without the means,
or the habits of regular employment; and the disbanded
officers of the army found themselves, not only without resources, but without occupation. Under such circumstances,
the popular murmurs were not only loud, but deep; and the
general distress became so appalling, that it threatened a shipwreck of all our free institutions. In short, we seemed to
have escaped from the dominion of the parent country, only
to sink into a more galling domestic bondage. Our very
safety was felt to be mainly dependent upon the jealousy, or
forbearance of foreign governments.
What aggravated all these evils was the utter hopelessness
of any effectual remedy under the existing form of the national
government; if, indeed, that might be said to deserve the
name, which was but the shadow of a government. The
union of the States at the commencement of the revolutionary
contest was forced upon us by circumstances; and from its
nature and objects seemed limited to that precise exigency.
The Confederation, which was subsequently framed, was
conceived in a spirit of extreme jealousy of national sovereignty, and withal was so feeble and loose in its texture,
that reflecting minds foresaw, that it could scarcely survive
the revolutionary contest. Yet feeble and loose as was its
texture, it encountered the most obstinate opposition at every
step of its progress; and it was not finally adopted, until the
war was about to close, in 1781. The powers of congress,
under the Confederation, were, for the most part, merely
recommendatory, and to be carried into effect only through
55*




654            MISCELLANEOUS WRITINGS.
the instrumentality of the States. It conferred no power to
raise revenue, or levy taxes, or enforce obedience to laws, or
regulate commerce. or even to command means to pay our
public ministers at foreign courts. Congress could make
contracts; but could not provide means to discharge them.
They could pledge the public faith; but they could not redeem it. They could make public treaties; but every state
in the Union might disregard them with impunity. They
could enter into alliances; but they could not command men
or money to give them vigor. They could declare war; but
they could not raise troops; and their only resort was to
requisitions on the States. In short, all the powers given by
the Confederation, which did not execute themselves without
any external aid, were at the mere mercy of the States, and
might be trampled upon at pleasure. Even that miserable
fragment of sovereignty, the power to levy a tax of five per
cent. on imports, in order to pay the public debt, and until it
was paid, was solemnly rejected by the States, though asked
by congress in terms of humble entreaty, and the most affecting appeals to public justice.
The result was obvious. Without the power to lay taxes,
Congress was palsied in all their operations. Without the
power to regulate commerce, we were left to the capricious
legislation of every state. Nay, more; our trade was regulated, taxed, monopolized, and crippled at the pleasure of the
maritime powers of Europe. Every state managed its own
concerns in its own way; the systems of retaliation for real
or imaginary grievances were perpetually devised and enforced against neighboring States. So that, instead of being
a band of brothers, united in common cause, and guided by
a common interest, the States were everywhere secret or open
enemies to each other; and we were on the verge of a border
warfare of interminable irritation, and of as interminable
mischiefs.
Such was the state of things in the times of which I have
been speaking; and strong as the coloring may seem to those




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 655
whose birth is of a later date, it falls far short of a full picture of the actual extent of the evils which the details of the
facts would justify.
It was under these circumstances that the state legislatures
were constantly called upon by public clamor and private
sufferings, to interpose summary remedies to ward off the
hardships of the times. The people, loaded with debts, and
goarded on almost to madness by the thickening calamities,
demanded measures of relief of the most extravagant nature.
The relations of debtor and creditor, always delicate, became
every day more embarrassed and more embarrassing. Laws
suspending the collection of debts; insolvent laws; instalment laws; tender laws; and other expedients of a like
nature, which every reflecting man knew would only aggravate the evils, were familiarly adopted, or openly and boldly
vindicated. Popular leaders, as well as men of desperate
fortunes, availed themselves (as is usual on such occasions)
of this agitating state of things to inflame the public mind,
and to bring into public odium those wiser statesmen who
labored to support the public faith, and to preserve the inviolability of private contracts.
The whole country soon became divided into two great
parties, one of which endeavored to put an end to the public
evils by the establishment of an efficient national government; the other adhered to the state sovereignties, and was
determined at all hazards to resist the increase of the national
power. Virginia bore her full share in these political controversies. They were constantly debated in the halls of her
legislature; and whatever might be the fate of any particular
debate, the contest was perpetually renewed; for every
victory was but a temporary and questionable triumph, and
every defeat left still enough of hope to excite the vanquished
to new exertions. At this distance of time it is scarcely possible to conceive the zeal, and even the animosity, with which
the opposing opinions were maintained.  The question,
whether the Union ought to be continued, or dissolved by a




656            MISCELLANEOUS WRITINGS.
total separation of the States, was freely discussed; and
either side of it was maintained, not only without reproach,
but with an uncompromising fearlessness of consequences.
Those who clung to the supremacy of the States, looked
without dismay upon a dissolution of the Union; and felt
no compunctions in surrendering it. Those, on the other
hand, who deemed the Union the ark of our political safety,
without which independence was but a name, shrunk with
horror from the thought of its dissolution; and maintained
the struggle with a desperate valor, as the death-grapple for
constitutional liberty.
It was in such times and under such circumstances that
Mr. Marshall, while yet under thirty years of age, was called
upon to take an active part in the legislative deliberations, as
well as in the popular meetings in his native state. " My
immediate entrance," said he, in the letter already alluded to,
"into the state legislature opened to my view the causes
which had been chiefly instrumental in augmenting those sufferings, [meaning of the army]; and the general tendency of
state politics convinced me that no safe and permanent remedy
could be found, but in a more efficient and better organized
general government."  Mr. Madison was at that time, and
had for some years before been, a member of the state legislature; and stood forth on all occasions an inflexible and enlightened advocate for the Union; and General Washington
was the acknowledged head and supporter of the same principles. Mr. Marshall at once arrayed himself on the side of
these great leaders; and while Mr. Madison remained in the
legislature he gave him a bold and steady support in all the
prominent debates. The friendship which was thus formed
between them was never extinguished. The recollection of
their cooiperation at that period served, when other measures
had widely separated them from each other, still to keep up
a lively sense of each other's merits. Nothing, indeed, could
be more touching to an ingenuous mind than to hear from
their lips, in their latter years, expressions of mutual respect




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 65T
and confidence; or to witness their earnest testimony to the
talents, the virtues, and the services of each other.
It was by this course of action in state legislation at this
appalling period, that Mr. Marshall was disciplined to the
thorough mastery of the true principles of free government.
It was here that he learned and practised those profound
doctrines of rational, limited, constitutional liberty, from
which he never shrunk, and to which he resolutely adhered
to the end of his life. It was here that he became enamored,
not of a wild and visionary republic, found only in the imaginations of mere enthusiasts as to human perfection, or tricked
out in false colors by the selfish, to flatter the prejudices, or
cheat the vanity of the people; but of that well-balanced
republic, adapted to human wants and human infirmities, in
which power is to be held in check by countervailing power;
and life, liberty, and property are to be secured by a real and
substantial independence, as well as division of the legislative, executive, and judicial departments. It was here that
he learned to love the Union with a supreme, unconquerable
love; a love which was never cooled by neglect, or alienated
by disappointment; a love which survived the trials of adversity, and the still more dangerous trials of prosperity; a
love which clung more closely to its object, as it seemed less
dear or less valuable in the eyes of others; a love which faltered not, fainted not, wearied not, on this side the grave.
Yes; his thoughts ever dwelt on the Union, as the first and
best of all our earthly hopes. The last expressions which
lingered on his dying lips breathed forth a prayer for his
country.
"Such in that moment, as in all the past,' O, save my country, Heaven,' was then his last."
While these exciting discussions were absorbing the whole
attention of the state legislatures, the Confederation was obviously approaching its final dissolution. It had passed the
crisis of its fate; and its doom was fixed. As a scheme of




658             MISCELLANEOUS WRITINGS.
government it had utterly failed; and the moment was now
anxiously expected, when, from mere debility, it would cease
to have even a nominal existence, as it had long ceased to
have any substantial authority. The friends of the Union
determined to make one more and final effort. A convention
was called, which framed the constitution of the United
States; and it was presented to the people for their ratification or rejection. This measure at once gave rise to new
and more violent political controversies; and the whole current of popular opinion was impetuously hurried into new
channels. Parties, for and against the adoption of the constitution, were immediately organized in every state; and
the lines of political division were for the most part the same,
which marked the former parties. Virginia, as a leading
state, became the scene of the most active exertions; and, as
many of her gifted and eloquent men were arrayed against
the constitution, so its friends rallied for the approaching
struggle with a proportionate zeal and ability.
Mr. Marshall was chosen a member of the convention of
Virginia, which was called to deliberate upon the ratification
of the constitution, under circumstances peculiarly gratifying.
A majority of the voters of the county in which he resided,
were opposed to the adoption of it; and he was assured, that,
if he would pledge himself to vote against it, all opposition
to his election should be withdrawn; otherwise he would be
strenuously resisted. He did not hesitate for a moment to
avow his determination to vote for the constitution. To use
his own language -" The questions, which were perpetually
recurring in the state legislatures; and which brought annually into doubt principles, which I thought most sacred; which
proved, that every thing was afloat, and that we had no safe
anchorage ground; gave a high value in my estimation to
that article in the constitution, which imposes restrictions on
the States. I was consequently a determined advocate for
its adoption; and became a candidate for the convention."
The opposition to him rallied with great force; but such was




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 659
his personal popularity, and the sense of his integrity, or (as
in his modesty he chose to express it) " parties had not yet
become so bitter, as to extinguish the private affections, that
he was chosen by a triumphant majority.
Few assemblies have ever been convened under circumstances of a more solemn and imposing responsibility. It
was understood, that the vote of Virginia would have a
principal and perhaps decisive influence upon several other
States; and for some weeks the question of the adoption of
the constitution hung suspended upon the deliberations of
that body. On one side were enlisted the powerful influence
of Grayson, the strong and searching sense of George Mason,
and the passionate and captivating eloquence of Patrick
Henry. On the other side were the persuasive talents of
George Nicholas, the animated flow of Governor Randolph,
the grave and sententious sagacity of Pendleton, the masculine logic of Marshall, and the consummate skill and various
knowledge of Madison. Day after day, during the period of
twenty-five days, the debate was continued with unabated
ardor and obstinate perseverance. And it was not until it
was known that the constitution had already been adopted
by nine States, (which settled its fate) that Virginia, by the
small majority of ten votes, reluctantly gave her own voice in
its favor.
During the whole of this most arduous and interesting
contest the leading debates were principally conducted on
opposite sides by Henry and Madison. Mr. Marshall contented himself with a constant support of his leader. But on
three great occasions, the debate on the power of taxation,
that on the power over the militia, and that on the powers of
the judiciary, he gave free scope to his genius, and argued in
their favor with commanding ability. The printed sketches
of all these debates are confessedly loose and imperfect, and
do little justice to the eloquence or ability of the respective
speakers. Yet with all their imperfections the most careless
observer cannot fail to perceive, in what is attributed to Mr.




660            MISCELLANEOUS WRITINGS.
Marshall on these occasions, the closeness of logic, the clearness of statement, and the comprehensiveness of principles,
which characterized his labors in the maturer periods of his
life. I regret, that the brief space of time, allowed for the
present notices, does not justify me in the citation of some
passages to illustrate these remarks.
It is difficult, perhaps it is impossible, for us of the present
generation, to conceive the magnitude of the dangers which
then gathered over our country.  Notwithstanding all the
sufferings of the people, the acknowledged imbecility, nay the
absolute nothingness of the Confederation, and the desperate
state of our public affairs, there were men of high character, and
patriots, too, who clung to the Confederation with an almost
insane attachment. They had been so long accustomed to
have all their affections concentrated upon the state government, as their protection against foreign oppression, that a
national government seemed to them but another name for
an overwhelming despotism. We have lived to see all their
fears and prophecies of evil scattered to the winds. We have
witnessed the solid growth and prosperity of the whole country, under the auspices of the national government, to an
extent never even imagined by its warmest friends.  We
have seen our agriculture pour forth its various products,
created by a generous, I had almost said a profuse industry.
The miserable exports, scarcely amounting, in the times of
which I have been speaking, in the aggregate, to the sum
of one or two hundred thousand dollars, now almost reach to
forty millions a year in a single staple. We have seen our
commerce, which scarcely crept along our noiseless docks,
and stood motionless and withering, while the breezes of the
ocean moaned through the crevices of our ruined wharves
and deserted warehouses, spread its white canvas in every
clime; and, laden with its rich returns, spring buoyant on the
waves of the home ports; and cloud the very shores with
forests of masts, over which the stars and the stripes are
gallantly streaming. We have seen our manufactures, awak



CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 661
kening from a deathlike lethargy, crowd every street of our
towns and cities with their busy workmen, and their busier
machinery; and startling the silence of our wide streams, and
deep dells, and sequestered valleys. We have seen our wild
waterfalls subdued by the power of man, become the mere
instruments of his will, and under the guidance of mechanical
genius, now driving with unerring certainty the flying shuttle,
now weaving the mysterious threads of the most delicate
fabrics, and now pressing the reluctant metals into form, as if
they were but playthings in the hands of giants. We have
seen our rivers bear upon their bright waters the swelling
sails of our coasters, and the sleepless wheels of our steamboats in endless progress. Nay, the very tides of the ocean,
in their regular ebb and flow in our ports, seem now but
heralds to announce the arrival and departure of our uncounted navigation. We have seen all these things; and we
can scarcely believe, that there were days and nights, nay,
months and years, in which our wisest patriots and states,
men sat down in anxious meditations to devise the measures;
which should save the country from impending ruin. The
task was, indeed, most arduous; in which success was far
more desired than expected. Obstinate prejudices were to be
overcome; and popular influences were to be resisted. They
could scarcely hope for their just rewards, except from a distant posterity. But they were governed by a supreme love
of their country, and the consciousness of the inestimable
value of the objects, if achieved. Events, indeed, have far
outstripped their most sanguine imaginings. By the blessing
of Providence we have risen, under the auspices of the Fede,
ral Constitution, from a feebre republic to a wide-spreading
empire. MIany of these patriots and statesmen went down to
their graves without the consolation of having witnessed the
glorious results of their labors. WVe owe them a debt of
gratitude, which can never be repaid. They laid the broad
foundations of our government upon public justice, public
virtue, and public liberty. They reared: the superstructure
56




662             MISCELLANEOUS WRITINGS.
with consummate skill, and of the most solid materials. It
is for us to say, whether it shall remain through all ages an
enduring monument of political wisdom; or, toppling from
its height, shall bury under its ruins the glory of the past and
the hopes of the future. It can be preserved only by untiring
watchfulness. It may be destroyed by popular violence, or
the madness of party, or the deeper sappings of corruption.
It may, like the fragments of other great empires, (may Heaven avert the evil!) it may
"Leave a name, at which the world grew pale,
To point a moral, or adorn a tale."'
But these are topics, which, though not inappropriate upon
the present occasion, are of themselves of too absorbing an
interest to be discussed, as mere incidents in the life of any
individual. They may be glanced at in order to do justice to
eminent patriotism; but they essentially belong to that philosophy, which reads in the history of the past lessons of
admonition and instruction for the ascertainment of the future.
Tacitus in other days arrived at the melancholy conclusion,
Reipublice Forma laudari facilius, quam evenire; vel si evenit,
haud diuturna esse potest.1
As soon as the adoption of the Constitution had been
secured, Mr. Marshall immediately determined to relinquish
public life, and to confine his labors to his profession. To
this resolution, which was urged upon him by the claims of a
growing family and a narrow fortune, he was not enabled to
adhere with the steadfastness which he wished. The hostility already evinced against the establishment of the national
government, was soon transferred in Virginia to an opposition to all its leading measures. Under such circumstances,
it was natural for the friends of the Constitution to seek to
give it a strong support in the state legislature. Mr. Marshall was according compelled to yield to their wishes, and
served as a member from 1788 to 1792. From the time of
1 Tacitus, Annal. B. 4, n. 15.




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 663
the organization of the government under President Washington, almost every important measure of his administration
was discussed in the Virginia legislature with great freedom,
and no small degree of warmth and acrimony. On these
occasions, it fell to the lot of Mr. Marshall to defend these
measures, and to maintain the rights, duties, and powers of
the national government against every attack; and he performed the service with great zeal, independence, and ability.
In 1792, he again retired from the state legislature, and
returned to his professional labors with increased activity;
and soon found himself engaged in all the leading causes in
the state and national tribunals. The excellent Reports of
this period by my lamented friend, Mr. Justice Washington,
exhibit ample proofs of his success in argument. I
But, although Mr. Marshall was for some years withdrawn
from public life, yet he was still compelled to take an active
part in political discussions. The French Revolution, which
at its early dawn had been hailed with universal enthusiasm
throughout America, had now burst out into extravagancies
and butcheries, which disgraced the cause of liberty, and gave
an unbounded license to ferocious mobs and demagogues.
The monarchs of Europe, alarmed for their own safety, were
soon leagued in a mighty confederacy to crush a revolution,
dangerous to the claims of legitimacy, and the stability of
thrones. It was easy to foresee, that if their enterprises
against France were successful, we, ourselves, should soon
have but a questionable security for our own independence. It
would be natural, after their European triumphs were complete, that they should cast their eyes across the Atlantic, and
trace back the origin of the evil to the living example of constitutional liberty in this Western hemisphere. Under such
circumstances, notwithstanding all the excesses of the French
Revolution, the mass of the American people continued to
take the liveliest interest in it, and to cherish the warmest
1 See also Mr. Call's Reports.




604             MISCELLANEOUS WRITINGS.
wishes for its success. These feelings were heightened by
the grateful recollection of the services rendered to us by
France in our own Revolution; and the consideration, that
she was struggling to relieve herself from oppressions, under
which she had been groaning for centuries. In this posture
of affairs, there was infinite danger, that we should be driven
-from the moorings of our neutrality, and should embark in
the contest, not only as an ally, but as a party, foremost in
the fight, and in the responsibility. WVe were just recovering
from the exhaustion, and poverty, and suffering, consequent
upon our own struggle; and the renewal of war would be
fraught with immeasurable injuries, not only to our present
interests, but to our future national advancement. France
saw and felt the nature of our position; and partly by
blandishments, and partly by threats, endeavored to enlist our
fortunes, as she had already succeeded in enlisting our feelings, in her favor. The other powers of Europe were not less
eager in their gaze, or less determined in their future course.
England, herself, had already adopted precautionary measures
to compel us to support our neutrality in an open and uncompromising manner, or to assume the state of positive hostilities.
It was under these circumstances that President Washington, having determined to preserve our own peace, and to
vindicate our rights against all the belligerents with an evenhanded justice, issued his celebrated Proclamation of Neutrality. The whole country was immediately thrown into a
flame; and the two great parties, into which we were then
divided, engaged, the one in denouncing it, and the other in
supporting it, with intense zeal. On this occasion Mr. Marshall found himself, much to his regret, arranged on a different side from Mr. Madison. He resolutely maintained the
constitutionality, the policy, nay, the duty of issuing the Pro.
clamation, by oral harangues, and by elaborate writings.
For these opinions he was attacked with great asperity in
the newspapers and pamphlets of the day, and designated by




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 665
way of significant reproach, as the friend and coadjutor of
Hamilton, a reproach, which at all times he would have
counted an honor; but, when coupled (as it was) with the
name of Washington, he deemed the highest praise. He
defended himself against these attacks with an invincible
firmness and ability proportioned to the occasion. He drew
up a series of resolutions approving the conduct of the Executive, and carried them by a decided majority at a public
meeting of the citizens of Richmond.
The result of this controversy is well known. The administration was sustained in its course by the sober sense of the
majority of the nation; and the doctrine, then so strenuously
contested and boldly denounced, has ever since that time
been laid up as among the most undisputable of executive
rights and duties. Probably, at the present day, not a single
statesman can be found, of any influence in any party, who
does not deem the measure to have been as well founded in
constitutional law as it was in sound policy.
In the spring of 1795, Mr. Marshall was again returned as
a member of the state legislature, not only without his
approbation, but against his known wishes. It was truly an
honorable tribute to his merits; but it was demanded by the
critical posture of our public affairs. The treaty with Great
Britain, negotiated by that eminent patriot, Mr. Jay, was
then the subject of universal discussion. As soon as the
ratification of it was known to have been advised by the
Senate, the opposition to it broke out with almost unexampled violence. Public meetings were called in all our
principal cities for the purpose of inducing the President to
withhold his ratification; and if this step should fail, then to
induce congress to withhold the appropriations necessary to
carry the treaty into effect. Such a course, if successful, (it
was obvious) would at once involve us in a war with England, and an alliance with France. The denunciations of
the treaty were everywhere loud and vehement. The topics
of animadversion were not confined to the policy, or expedi56*




666             MISCELLANEOUS WRITINGS.
ency of the principal articles of the treaty. They took a
broader range; and the extraordinary doctrine was advanced
and vigorously maintained, that the negotiation of a commercial treaty by the Executive was an infringement of the
Constitution, and a violation of the power given to congress
to regulate commerce.
Mr. Marshall took an active part in all the discussions
upon this subject. Believing the treaty indispensable to the
preservation of peace, and its main provisions beneficial to
the United States, and consistent with its true dignity, he
addressed himself with the most diligent attention to an
examination of all the articles, and of the objections urged
against them. It was truly a critical period, not merely for
the country, but also in an especial manner for the administration. Many of its sincere friends, from the boldness and
suddenness of the attacks upon it, from the inflamed state of
the public mind, and from a natural distrust of their own
udgment upon topics full of embarrassment and novelty,
remained in a state of suspense, or timidly yielded themselves
to the prejudices of the times. It has been well observed in
the biography of Washington, that it is difficult now to
review the various resolutions and addresses to which this
occasion gave birth without feeling some degree of astonishment, mingled with humiliation, on perceiving such proofs of
the deplorable fallibility of human reason.
In no state in the Union was a more intense hostility
exhibited against the treaty than in Virginia; and in none
were the objections against it urged with more unsparing or
impassioned earnestness. The task, therefore, of meeting
and overturning them was of no ordinary magnitude, and
required the resources of a well-instructed mind. In some
resolutions, passed at a meeting of the citizens of Richmond,
at which Mr. Chancellor Wythe presided, the treaty was
denounced "as insulting to the dignity, injurious to the
interest, dangerous to the security, and repugnant to the
Constitution of the United States."  At a meeting of the




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 667
same citizens, subsequently held, Mr. Marshall introduced
certain resolutions in favor of the conduct of the Executive,
and supported them in a masterly speech; the best comment
upon which is, that the resolutions were approved by a flattering majority.
But a more difficult and important duty remained to
be performed. It was easily foreseen, that the controversy
would soon find its way into the state legislature, and
would there be renewed with all the bitter animosity of party
spirit. So odious was the treaty in Virginia, that Mr. Marshall's friends were exceedingly solicitous, that he should not
engage in any legislative debates on the subject, as it would
certainly impair his well-earned popularity, and might even
subject him to some rude personal attacks. His answer to
all such suggestions uniformly was, that he would not bring
forward any measure to excite a debate on the subject; but
if it were brought forward by others, he would at all hazards vindicate the administration, and assert his own opinions. The subject was soon introduced by the opposition;
and, among other things, the constitutional objections were
urged with triumphant confidence.  Especially was that
objection pressed, which denied the constitutional right of
the Executive to conclude a commercial treaty, as a favorite
and unanswerable position. The speech of Mr. Marshall on
this occasion has always been represented as one of the
noblest efforts of his genius. His vast powers of reasoning
were displayed with the most gratifying success. He demonstrated, not only from the words of the Constitution and
the universal practice of nations, that a commercial treaty
was within the scope of the constitutional powers of the
Executive; but that this opinion had been maintained and
sanctioned by Mr. Jefferson, by the Virginia delegation in
congress, and by the leading members of the Convention on
both sides. The argument was decisive. The constitutional
ground was abandoned; and the resolutions of the assembly




668            MISCELLANEOUS WRITINGS.
were confined to a simple disapprobation of the treaty in
point of expediency.
The constitutional objections were again urged in congress,
in the celebrated debate on the Treaty, in the spring of 1796;
and there finally assumed the mitigated shape of a right
claimed by congress to grant or withhold appropriations to
carry treaties into effect. The higher ground, that commercial treaties were not, when ratified by the Senate, the supreme law of the land, was abandoned; and the subsequent
practice of the government has, without serious question, been
under every administration, in conformity to the construction
vindicated by Mr. Marshall. The fame of this admirable
argument spread through the Union. Even with his political
enemies, it enhanced the estimate of his character; and it
brought him at once to the notice of some of the most eminent statesmen, who then graced the councils of the nation.
In the winter of 1796, Mr. Marshall visited Philadelphia,
to argue before the Supreme Court the great case of Ware
v. Hylton, which involved the question of the right of recovery of British debts which had been confiscated during the
revolutionary war. It is wvell known that the question was
decided against the side ont which Mr. Marshall was employed.
On this occasion he was opposed by three of the ablest lawyers then belonging to the Pennsylvania bar. This was, of
itself, under such circumstances, no small distinction. But
the sketch of the argument delivered by him, as we find it in
the printed Reports, affords conclusive evidence of his juridical learning. and the great skill with which he arranged his
materials and sustained the interests of his client.
It was during this visit that he became personally acquainted with the distinguished men who were then in congress,
as representatives from the Northern States.  "I then became acquainted," says he, in a letter to a friend, " with Mr.
Cabot, Mr. Ames, Mr. Dexter, and Mr. Sedgwick of Massachusetts, Mr. Wadsworth of Connecticut, and Mr. King of




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 669
New York. I was delighted with these gentlemen. The particular subject (the British Treaty) which introduced me
to their notice, was at that time so interesting, and a Virginian, who supported, with any sort of reputation, the measures of the government, was such a rara avis, that I was
received by them all with a degree of kindness which I had
not anticipated. I was particularly intimate with Mr. Ames,
and could scarcely gain credit with him, when I assured him,
that the appropriations would be seriously opposed in congress."  The event proved, that he was right. The high
opinion which he then formed of these gentlemen, continued
to be cherished by him through all his future life.
About this period President Washington offered him the
office of Attorney-General of the United States; but he declined it on the ground of its interference with his far more
lucrative practice in Virginia. He continued, however, in
the state legislature; but he rarely engaged in the debates,
except when the measures of the national government were
discussed, and required vindication. Nor were the occasions
few, in which this task was required to be performed with
a steady confidence. One of them shall be mentioned in his
own words. " It was, I think," said he, "in the session of
1796, that I was engaged in a debate, which called forth all
the strength and violence of party. Some federalist moved
a resolution, expressing the high confidence of the House in
the virtue, patriotism, and wisdom of the President of the
United States. A motion was made to strike out the word
wisdom. In the debate the whole course of the Administration was reviewed, and the whole talent of each party was
brought into action. Will it be believed, that the word was
retained by a very small majority? A very small majority
in the legislature of Virginia acknowledged the wisdom of
General Washington!"
Upon the recall of Mr. Monroe as Minister to France,
President Washington solicited Mr. Marshall to accept the
appointment, as his successor; but he respectfully declined it




670            MISCELLANEOUS WRITINGS.
for the same reasons as he had the office of Attorney General; and General Pinckney, of South Carolina, was appointed in his stead. " I then thought," said he, "my determination to remain at the bar unalterable. My situation at
the bar appeared to me to be more independent, and not less
honorable, than any other; and my preference for it was
decided."
But he was not long permitted to act upon his own judgment and choice. The French government refused to receive
General Pinckney; and Mr. Adams, (who had then succeeded
to the presidency,) from an anxious desire to exhaust every
measure of conciliation, not incompatible with the national
dignity, in June, 1797, appointed Mr. Marshall, General
Pinckney, and Mr. (afterwards Vice-President) Gerry, Envoys Extraordinary to the court of France. After no inconsiderable struggles in his own mind, (which are fully developed
in a paper now in my possession,) Mr. Marshall accepted the
appointment; and proceeded to Paris, and there, with his
colleagues, entered upon the duties of the mission. It is
well known, that the mission was unsuccessful; the French
government having refused to enter into any negotiations.
The preparation of the official despatches addressed to that
government upon this occasion was confided to Mr. Marshall;
and these despatches have been universally admired. They
are models of skilful reasoning, clear illustration, accurate
detail, and urbane and dignified moderation. They contain
a most elaborate review of all the principles of national law,
applicable to the points in controversy between the two
nations. As state papers, there are not in the annals of our
diplomacy any, upon which an American can look back with
more pride, or from which he can draw more various instruction.
On his return home Mr. Marshall resumed his professional
business, and had the best reasons to believe that it would be
increased rather than diminished by his temporary absence.
He was determined to pursue it with renewed ardor. But




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 671
from this determination he was again diverted by a personal
appeal made to him by General Washington, who earnestly
insisted, that he should become a candidate for congress.
After a conversation between them of the deepest interest
and animation, and breathing on each side a spirit of the
purest patriotism, Mr. Marshall reluctantly yielded to the
wishes of General Washington, and became a candidate, and
was elected after a most ardent political contest; and took
his seat in congress in December, 1799. While he was yet
a candidate, President Adams offered him the seat on the
bench of the Supreme Court, then vacant by the death of Mr.
Justice Iredell. He immediately declined it; and it was
conferred on that excellent magistrate, Mr. Justice Washington.
The session of congress in the winter of 1799 and 1800
will be forever memorable in our political annals. It was
the moment of the final struggle for power between the two
great political parties which then divided the country, and
ended, as is well known, in the overthrow of the federal
administration. Men of the highest talents and influence
were there assembled, and arrayed in hostility to each other;
and were excited by all the strongest motives which can
rouse the human mind, the pride of power, the hope of victory, the sense of responsibility, the devotion to principles
deemed vital, and the bonds of long political attachment and
action. Under such circumstances, (as might naturally be
expected,) every important measure of the administration
was assailed with a bold and vehement criticism; and was
defended with untiring zeal and firmness. Mr. Marshall
took his full share of the debates; and was received with
a distinction proportioned to his merits. Such a distinction,
in such a body, is a rare occurrence; for years of public service and experience are usually found indispensable to acquire
and justify the confidence of the House of Representatives.
It is not my intention to enter into a minute detail of the
debates, in which Mr. Marshall took a part, or to vindicate




672            MISCELLANEOUS WRITINGS.
his votes or opinions. The duty is more appropriate for a
different labor. On one occasion, however, he took a leading part in a most important debate, which acquired for him
a wide public fame, and therefore requires notice in this
place. I allude to the debate on the case of Thomas Nash,
otherwise called Jonathan Robbins, who had been surrendered to the British government for trial for a supposed
murder, committed by him on board of a British ship of war.
Certain resolutions were brought forward, censuring the conduct of the Executive for this act, in terms of decided disapprobation, as unconstitutional and improper. Mr. Marshall,
in the course of the debate, delivered a speech in vindication
of the right and duty of the Executive to make the surrender,
which placed him at once in the first rank of constitutional
statesmen. The substance of it is now in print. It is one
of the most consummate juridical arguments which was ever
pronounced in the halls of legislation; and equally remarkable for the lucid order of its topics, the profoundness of its
logic, the extent of its research, and the force of its illustrations. It may be said of that speech, as was said of Lord
Mansfield's celebrated Answer to the Prussian Memorial, it
was R.ponse sans replique, an answer so irresistible, that it
admitted of no reply. It silenced opposition, and settled then
and for ever, the points of national law upon which the controversy hinged. The resolutions did not, indeed, fall lifeless
from the Speaker's table, though they were negatived by a
large majority. But a more unequivocal demonstration of
public opinion followed. The denunciations of the Executive, which had hitherto been harsh and clamorous everywhere throughout the land, sunk away at once into cold and
cautious whispers only of disapprobation. Whoever reads
that speech even at this distance of time, when the topics
have lost much of their interest, will be struck with the prodigious powers of analysis and reasoning which it displays;
and which are enhanced by the consideration, that the whole
subject was then confessedly new in many of its aspects.




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 673
In May, 1800, President Adams, without any personal
communication with Mr. Marshall, appointed him Secretary
of War. Before, however, he was called to enter upon the
duties of that office, the known rupture took place between
the President and Colonel Pickering; and Mr. Marshall was
appointed Secretary of State in the stead of the latter. The
appointment was every way honorable to his merits; and no
one doubted, that he was eminently qualified for the discharge
of its arduous and important duties.
And, here, I cannot but take great pleasure in recording
a circumstance equally honorable to all the parties concerned.
Without intending in the slightest degree to enter upon the
discussion of the controversy between the President and
Colonel Pickering, I may be permitted to say, that the circumstances, necessarily attending the dismissal of the latter
from office, were calculated to awaken a strong sense of injustice in the mind of an officer of unquestionable integrity
and patriotism. The rupture grew out of a very serious
difference of opinion upon very grave political measures; and
Mr. Marshall entertained a decided attachment to the views
of the President. Under such circumstances, it would have
been not unnatural, that the late Secretary should have felt
some prejudices against his successor; and that there should
have been some withdrawal of mutual confidence and perhaps respect between them. No such event occurred. On
the contrary, each, to the day of his death, spoke of the other
in terms of enviable commendation; and their mutual frank
and familiar friendship was never in the slightest manner
interrupted. I have often listened to the spontaneous praise
bestowed on Mr. Marshall by Colonel Pickering, (a man to
whomr might justly be applied the character, - Incorruptafides
nudaque veritas, et mens conscia recti,) in his own peculiar
circle of friends with unmixed delight. It was full, glowing,
and affecting. It was a tribute from one of such sincerity of
thought and purpose, that praise, even when best deserved,
came from his lips with a studied caution of language. His




674             MISCELLANEOUS WRITINGS.
conversation, always instructive, on these occasions rose into
eloquence, beautiful, nay, touched with a moral sublimity.
When all the circumstances are considered, I think, that I do
not overestimate the value of this example of mutual confidence and friendship, when I pronounce it as gratifying as
it is rare. It prostrates in the dust all petty rivalry for public
distinction. It shows, that great minds (and perhaps great
minds only) fully understand that exquisite moral truth, that
no man stands in another man's way in the road to honor;
and that the world is wide enough for the fullest display of
the virtues and talents of all, without intercepting a single
ray of light reflected by any.
On the thirty-first of January, 1801, Mr. Marshall received
the appointment of Chief Justice of the United States. It is
due to his memory to state, that it was conferred on him, not
only without his own solicitation, (for he had in fact recommended another person for the office) but by the prompt and
spontaneous choice of President Adams upon his own unassisted judgment. The nomination was unanimously confirmed by the Senate; and the Chief Justice accordingly took
his seat on the bench at the ensuing term of the Supreme
Court. I trust, that I am not violating any private confidence, when I quote, from a letter of the distinguished son
of this distinguished patriot, a passage on this subject, to
which the whole country will respond without hesitation. It
inclosed a judicial commission to a gentleman, now justly
enjoying the highest professional reputation; and says with
equal felicity and truth -" One of the last acts of my father's
administration was the transmission of a commission to John
Marshall, as Chief Justice of the United States. One of the
last acts of my administration is the transmission of the
inclosed commission to you. If neither of us had ever done
any thing else to deserve the approbation of our country, and
of posterity, I would proudly claim it of both for these acts,
as due to my father and myself." The claim is, indeed, a
proud claim to distinction. It has received, as it deserved,




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 675
the approbation of the whole country. The gratitude of
posterity will also do just homage to the sagacity, foresight,
disinterestedness, and public spirit of the choice. It was in
moral dignity the fit close of a political life of extraordinary
brilliancy. In public importance it scarcely yielded to any
act of that life, except the motion for the Declaration of Independence. Such honor from such hands was felt to be doubly
dear. It was the highest praise from one, whose title to
confer it had been earned by long services in the cause of
liberty. The names of Adams and Marshall became thus
indissolubly connected in the juridical and constitutional
history of the country.
From this time until his death the Chief Justice continued
in the discharge of the duties of his exalted office with unsullied dignity, and constantly increasing reputation. Notwithstanding his advancing years, no sensible inroad had been
made upon his general health, until the last term of the Court,
when it was obvious, that his physical strength had passed
the utmost stretch of its vigor, and was in a state of rapid
decline. His intellectual powers still, however, retained their
wonted energy; and, though he was suffering under great
bodily pain, he not only bore it with an uncomplaining spirit,
but continued to take his full share of the business of the
Court.  No better proof need be required of his intellectual
ability than his opinions, which stand recorded in the last
volume of Reports.
At the close of the term he returned to his residence in
Virginia; and he was afterwards induced, by the solicitations
of his friends, to visit Philadelphia, in the expectation of receiving some aid from the distinguished medical skill of that
city. His constitution, however, had become so shattered,
that little more remained to be done, during the last weeks
of his life, than to smoothe the downward path towards
the grave. I-e died on the sixth day of July last past, about
six o'clock in the evening, in the arms of his children, without a struggle; and, to use the expressive language of one




676             MISCELLANEOUS WRITINGS.
who was present, his last breath was the softest whisper of a
zephyr.  Fortunately, by the considerate kindness of his
friends, he was spared the knowledge of the death of his
eldest son, who lost his life a few days before by a most
calamitous accident; an event, which, from the high charac-,ter of the son, and his strong affection for him, would have
filled his last hours with inexpressible anguish.
He was fully aware of his approaching end, and prepared
to meet it with a calmness built upon the fixed principles, by
which he had regulated his life. Two days only before his
death he wrote an inscription to be placed on his tomb, in the
following simple and modest terms: " John Marshall, son of
Thomas and Mary Marshall, was born on the 24th of September, 1755, intermarried with Mary Willis Ambler the 3d
of January, 1783, departed this life the -  of, 18 —."
What can be more affecting than these few facts, the only
ones, which he deemed in his last moments worth recording!
His birth; his parentage; his marriage; his death.  His
parents, to whose memory he was attached with a filial piety,
full of reverence; - his marriage to the being, whom he had
loved with a singleness and devotedness of affection never
surpassed; —his own birth, which seemed principally memorable to him, as it connected him with beings like these; -
his own death, which was but an event to re-unite him with
those, who had gone before, in a world, where there should
be no more suffering or sorrow; but kindred souls should
dwell together, even as the angels in heaven.
I have now finished the narrative of the life of Chief Justice Marshall, a life which, though unadorned by brilliant
passages of individual adventure, or striking events, carries
with it (unless I am greatly mistaken) that, which is the
truest title to renown, a fame founded on public and private
virtue. It has happened to him, as to many other distinguished men, that his life had few incidents; and those which
belonged to it were not far removed from the ordinary course
of human events. That life was filled up in the conscientious




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 677
discharge of duty. It was throughout marked by a wise and
considerate propriety. His virtues expanded with the gradual
development of his character. They were the natural growth
of deep-rooted principles, working their way through the
gentlest affections, and the purest ambition. No man ever
had a loftier desire of excellence; but it was tempered by a
kindness, which subdued envy, and a diffidence, which extinguished jealousy. Search his whole life, and you cannot lay
your finger on a single extravagance of design or act. There
were no infirmities, leaving a permanent stain behind them.
There were no eccentricities to be concealed; no follies to be
apologized for; no vices to be blushed at; no rash outbreakings of passionate resentment to be regretted; no dark deeds,
disturbing the peace of families, or leaving them wretched by
its desolations. If here and there the severest scrutiny might
be thought capable of detecting any slight admixture of
human frailty, it was so shaded off in its coloring, that it
melted into some kindred virtue. It might with truth be
said, that the very failing leaned to the side of the charities
of life; and carried with it the soothing reflection-Non
multum abludit imago.  It might excite a smile; it could
never awaken a sigh.
Indeed, there was in him a rare combination of virtues,
such only as belongs to a character of consummate wisdom;
a wisdom which looks through this world, but which also
looks far beyond it for motives and objects. I know not,
whether such wisdom ought to be considered as the cause, or
the accompaniment, of such virtues; or whether they do not
in truth alternately act upon, and perfect each other.
I have said, that there was in him a rare combination of
virtues. If I might venture, upon so solemn an occasion, to
express my own deliberate judgment, in the very terms most
significant to express it, I should say, that the combination
was so rare, that I have never known any man, whom I
should pronounce more perfect.  He had a deep sense of
moral and religious obligation, and a love of truth, constant,
57 7




678            MISCELLANEOUS WRITINGS.
enduring, unflinching. It naturally gave rise to a sincerity of
thought, purpose, expression, and conduct, which, though
never severe, was always open, manly and straightforward.
Yet it was combined with such a gentle and bland demeanor,
that it never gave offence; but it was, on the contrary, most
persuasive in its appeals to the understanding.
Among Christian sects, he personally attached himself to
the Episcopal Church. It was the religion of his early education; and bec~ame afterwards that of his choice. But he
was without the slightest touch of bigotry or intolerance.
His benevolence was as wide as Christianity itself. It embraced the human race. He was not only liberal in his feelings, and principles, but in his charities. His hands were
open upon all occasions to succor distress, to encourage enterprise, and to support good institutions.
He was a man of the most unaffected modesty. Although
I am persuaded, that no one ever possessed a more entire
sense of his own extraordinary talents and acquirements,
than he; yet it was a quiet, secret sense, without pride and
without ostentation. May I be permitted to say, that, during
a most intimate friendship of many, many years, I never upon
any occasion was able to detect the slightest tincture of personal vanity. He had no desire for display; and no ambition
for admiration. He made no effort to win attention in conversation or argument, beyond what the occasion absolutely
required. He sought no fine turns of expression, no vividness
of diction, no ornate elegancies of thought, no pointed sentences, to attract observation. What he said was always
well said, because it came from a full mind, accustomed to
deep reflection; and he was rarely languid, or indifferent to
topics which interested others. He dismissed them without
regret; though he discussed them with spirit.  He never
obtruded his own opinions upon others; but brought them
out only, as they were sought, and then with clearness and
ealmness. Upon a first introduction, he would be thought to,be somewhat cold and reserved; but he was neither the one




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 679
nor the other.  It was simply a habit of easy taciturnity,
waiting, as it were, his own turn to follow the line of conversation, and not to presume to lead it. Even this habit melted
away in the presence of the young; for he always looked
upon them with a sort of parental fondness, and enjoyed their
playful wit, and fresh and confident enthusiasm. Meet him
in a stage-coach, as a stranger, and travel with him a whole
day, and you would only be struck with his readiness to
administer to the accommodations of others, and his anxiety
to appropriate the least to himself. Be with him, the unknown guest at an inn, and he seemed adjusted to the very
scene, partaking of the warm welcome of its comforts, whenever found; and if not found, resigning himself without complaint to its meanest arrangements. You would never suspect,
in either case, that he was a great man; far less that he was
the Chief Justice of the United States.  But, if perchance
invited by the occasion, you drew him into familiar conversation, you would never forget that you had seen and heard
that "old man eloquent."
He had great simplicity of character, manners, dress, and
deportment; and yet with a natural dignity, that suppressed
impertinence, and silenced rudeness. His simplicity was
never accompanied with that want of perception of what is
right, and fit for the occasion; of that grace, which wins
respect; or that propriety, which constitutes the essence of
refined courtesy. And yet it had an exquisite ndiivete, which
charmed every one, and gave a sweetness to his familiar conversations, approaching to fascination. The first impression
of a stranger, upon his introduction to him, was generally
that of disappointment. It seemed hardly credible, that such
simplicity should be the accompaniment of such acknowledged greatness. The consciousness of power was not there;
the air of office was not there; there was no play of the lights
or shades of rank; no study of effect in tone or bearing. You
saw at once, that he never thought of himself; and that he
was far more anxious to know others, than to be known by




680             MISCELLANEOUS WRITINGS.
them. You quitted him with increased reverence for human
greatness; for in him it seemed inseparable from goodness.
If vanity stood abashed in his presence, it was not, that he
rebuked it; but that his example showed its utter nothingness.
He was a man of deep sensibility and tenderness; nay, he
was an enthusiast in regard to the domestic virtues. He was
endowed by nature with a temper of great susceptibility,
easily excited, and warm, when roused. But it had been so
schooled by discipline, or rather so moulded and chastened
by his affections, that it seemed in gentleness, like the distilling dews of evening. It had been so long accustomed to
flow in channels, where its sole delight was to give or secure
happiness to others, that no one would have believed, that it
ever could have been precipitate or sudden in its movements.
In truth, there was, to the very close of his life, a romantic
chivalry in his feelings, which, though rarely displayed, except
in the circle of his most intimate friends, would there pour
out itself with the most touching tenderness. In this confidenlial intercourse, when his soul sought solace from the
sympathy of other minds, he would dissolve in tears at the
recollection of some buried hope, or lost happiness.  He
would break out into strains of almost divine eloquence,
while he pointed out the scenes of former joys, or recalled the
memory of other days, as he brought up their images from
the dimness and distance of forgotten years, and showed you
at once the depth, with which he could feel, and the lower
depths, in which he could bury his own closest, dearest,
noblest emotions. After all, whatever may be his fame in
the eyes of the world, that which, in a just sense, was his
highest glory, was the purity, affectionateness, liberality, and
devotedness of his domestic life. Home, home, was the scene
of his real triumphs. There, he indulged himself in what he
most loved, the duties and blessings of the family circle.
There, his heart had its full play; and his social qualities,
warmed, and elevated, and refined by the habitual elegancies
of taste, shed around their beautiful and blended lights. There,




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 681
the sunshine of his soul diffused its soft radiance, and cheered,
and soothed, and tranquillized the passing hours.
May I be permitted also in this presence to allude to
another trait in his character, which lets us at once into the
inmost recesses of his feelings with an unerring certainty. I
allude to the high value in which he held the female sex, as
the friends, the companions, and the equals of man. I do
not here mean to refer to the courtesy and delicate kindness
with which he was accustomed to treat the sex; but rather
to the unaffected respect with which he spoke of their accomplishments, their talents, their virtues, and their excellencies.
The scoffs and jeers of the morose, the bitter taunts of the
satirist, and the lighter ridicule of the witty, so profusely,
and often so ungenerously, poured out upon transient follies
or fashions, found no sympathy in his bosom. He was still
farther above the commonplace flatteries, by which frivolity seeks to administer aliment to personal vanity, or vice
to make its approaches for baser purposes. He spoke to the
sex, when present, as he spoke of them, when absent, in
language of just appeal to their understandings, their tastes,
and their duties. He paid a voluntary homage to their
genius, and to the beautiful productions of it, which now
adorn almost every branch of literature and learning. He
read those productions with a glowing gratitude.  He
proudly proclaimed their merits, and vindicated on all occasions their claims to the highest distinction. And he did
not hesitate to assign to the great female authors of our day
a rank, not inferior to that of the most gifted and polished of
the other sex. But, above all, he delighted to dwell on the
admirable adaptation of their minds, and sensibilities, and
affections to the exalted duties assigned to them by Providence. Their superior purity, their singleness of heart, their
exquisite perception of moral and religious sentiment, their
maternal devotedness, their uncomplaining sacrifices, their
fearlessness in duty, their buoyancy in hope, their courage in
despair, their love, which triumphs most, when most pressed




682             MISCELLANEOUS WRITINGS.
by dangers and difficulties; which watches the couch of
sickness, and smooths the bed of death, and smiles even in
the agonies of its own sufferings;- These, these were the
favorite topics of his confidential conversation; and on these
he expatiated with an enthusiasm which showed them to be
present in his daily meditations.
I have hitherto spoken of traits of character, belonging in
a great measure to his private life. Upon his public life we
may look with equal satisfaction. It was without stain or
blemish. It requires no concealment or apology, and may
defy the most critical and searching scrutiny. He was never
seduced by the allurements of office to a desertion of his
principles. He was never deterred from an open vindication
of them by popular clamor, or party cabal; by the frowns of
power, or the fury of mobs. His ambition took a loftier
range. He aspired to that fame which is enduring, and may
justly be conferred by future ages; not to that fame which
swells with the triumphs of the day, and dies away, long
before it can reach the rising generation. To him might be
applied the language of another great magistrate — He
wished for popularity; that popularity which follows, not
that which is run after; that popularity which, sooner or
later, never fails to do justice to the pursuit of noble ends by
noble means. He would not do what his conscience told
him was wrong to gain the huzzas of thousands, or the
daily praise of all the papers which came from the press.
He would not avoid to do what he thought was right, though
it should draw on him the whole artillery of libels; all that
falsehood or malice could invent, or the credulity of a deluded
populace could swallow.
There was throughout his political life a steadfastness and
consistency of principle as striking as they were elevating.
During more than half a century of public service, he maintained with inflexible integrity the same political principles
1 Lord Mansfield, 4 Burr. R. 2562.




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 683
with which he begun. He was content to live by, with, and
for his principles. Amidst the extravagancies of parties at
different times, he kept on the even tenor of his way with a
calm and undeviating firmness, never bending under the
pressure of adversity, or bounding with the elasticity of success. His counsels were always the counsels of moderation,
fortified and tried by the results of an enlightened experience.
They never betrayed either timidity or rashness. He was,
in the original, genuine sense of the word, a federalist -a
federalist of the good old school, of which Washington was
the acknowledged head, and in which he lived and died.
In the maintenance of the principles of that school he was
ready at all times to stand forth a determined advocate and
supporter.  On this subject he scorned all disguise; he
affected no change of opinion; he sought no shelter from
reproach. He boldly, frankly, and honestly avowed himself,
through evil report and good report, the disciple, the friend,
and the admirer of Washington and his political principles.
He had lived in times when these principles seemed destined
to secure to the party to which he belonged an enduring
triumph. He had lived to see all these prospects blasted;
and other statesmen succeed with a power and influence of
such vast extent, that it extinguished all hopes of any future
return to office. Yet he remained unshaken, unseduced,
unterrified. He had lived to see many of his old friends
pass on the other side; and the gallant band, with which he
had borne the strife, drop away by death, one after another,
until it seemed reduced to a handful. Yet he uttered neither
a sigh, nor a complaint. When, under extraordinary excitements in critical times, others with whom he had acted,
despaired of the republic, and were willing to yield it up to a
stern necessity, he resisted the impulse and clung to the
Union, and nailed its colors to the mast of the Constitution.
It is no part of my duty or design upon the present occasion to expound or vindicate his political opinions. That
would of itself furnish ample materials for a discourse of a




684            MISCELLANEOUS WRITINGS.
different character. But it is due to truth to declare, that no
man was ever more sincerely attached to the principles of
free government; no man ever cherished republican institutions with more singleness of heart and purpose; no man
ever adhered to his country with a stronger filial affection;
no man in his habits, manners, feelings, pursuits, and actions,
ever exemplified more perfectly that idol of chivalry, a patriot
without fear and without reproach. But, on the other hand,
no man was ever more sensible of the dangers incident to
free institutions, and especially of those which threaten our
national existence. He saw and felt where the weaknesses of
the republic lay. He wished, earnestly wished, perpetuity to
the Constitution, as the only solid foundation of our national
glory and independence. But he foresaw what our course
would be; and he never hesitated to express what his fears
were, and whence the ruin of the Constitution must come, if
it shall come at all. In his view, the republic is not destined
to perish, if it shall perish, by the overwhelming power of the
national government; but by the resisting and counteracting
power of the state sovereignties. He thought with another
kindred mind, whose vivid language still rings in my ears
after many years, as a voice from the dead, that in our
government the centrifugal force is far greater than the centripetal; that the danger is not, that we shall fall into the
sun; but that we may fly off in eccentric orbits, and never
return to our perihelion. Whether his prophetic fears were
ill or well founded time alone can decide;- time, which
sweeps away the schemes of man's invention; but leaves
immovable on their foundations the eternal truths of nature.
Hitherto, I have spoken of the attributes belonging to
his moral character, and the principles, which governed his
life and conduct. On these, I confess, that I dwell with a
fond and reverential enthusiasm. There was a daily beauty
in these, which captivated the more, the nearer they were
approached, and the more they were gazed on. Like the
softened plays of moonlight, they served to illuminate all




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 685
objects, at the same time that they mellowed and harmonized
them. But, I am admonished, that the duties of the present
occasion require me to dwell rather on his intellectual, than
his moral qualities. He stands before us rather as the head
of a learned profession, than as a private citizen, or as a
statesman.
He was a great man. I do not mean by this, that among
his contemporaries he was justly entitled to a high rank for
his intellectual endowments, an equal among the masterspirits of the day, if not facile princeps. I go farther; and
insist, that he would have been deemed a great man in any
age, and of all ages. He was one of those, to whom centuries alone give birth; standing out, like beacon lights on the
loftiest eminences, to guide, admonish, and instruct future
generations, as well as the present. It did not happen to him,
as it has happened to many men of celebrity, that he appeared
greatest at a distance; that his superiority vanished on a close
survey; and that familiarity brought it down to the standard
of common minds. On the contrary, it required some degree
of intimacy fully to appreciate his powers; and those who
knew him best, and saw him most, had daily reason to wonder at the vast extent and variety of his intellectual resources.
His genius was rather contemplative, than imaginative. It
seemed not so much to give direction to his other intellectual
powers, as to receive its lead from them. He devoted himself principally to serious and profound studies; and employed
his invention rather to assist philosophical analysis, than to
gather materials for ornament, for persuasion, or for picturesque effect. In strength, and depth, and comprehensiveness
of mind, it would be difficult to name his superior. He
sought for truths far beyond the boundaries, to which inquisitive and even ambitious minds are accustomed to push their
inquiries. He traced them out from their first dim lights and
paly glimmers, until they stood embodied before him with a
clear and steady brightness. His sagacity was as untiring,
as it was acute; and he saw the conclusion of his premises at
58




686            MISCELLANEOUS WRITINGS.
such vast distances, and through such vast reaches of intermediate results, that it burst upon other minds as a sort of
instant, and miraculous induction. It was said, by a distinguished political opponent, who had often felt the power
of his reasoning, that he made it a rule in argument, never to
admit any proposition asserted by the Chief Justice, however
plain and unquestionable it might seem to be; for, if the premises were once admitted, the conclusion, however apparently
remote, flowed on with an irresistible certainty. His powers
of analysis were, indeed, marvellous. He separated the accidental from the essential circumstances with a subtilty and
exactness, which surprised those most, who were accustomed
to its exercise. No error in reasoning escaped his detection.
He followed it through all its doublings, until it became palpable, and stripped of all its disguises. But, what seemed peculiarly his own, was the power, with which he seized upon
a principle or argument, apparently presented in the most
elementary form, and showed it to be a mere corollary of
some more general truth, which lay at immeasurable distances
beyond it. If his mind had been less practical, he would
have been the most consummate of metaphysicians, and the
most skilful of sophists. But his love of dialectics was constantly controlled by his superior love of truth. He had no
vain ambition to darken counsel, or encourage doubt. His
aim was conscientiously to unfold truth, as it was, in its
simple majesty; to strengthen the foundation of moral, religious, social, political, and legal obligations; and to employ
the gifts, with which Providence had intrusted him, to augment human happiness, support human justice, and bind
together in an indissoluble union the great interests of human
society. In short, if I were called upon to say, in what he
intellectually excelled most men, I should say it was in wisdom, in the sense already alluded to; - a wisdom drawn from
large, extensive, sound principles and various researches;a wisdom, which constantly accumulated new materials for
thought and action, and as constantly sifted and refined the




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 687
old. He was not ambitious of literary distinction. But his
great work on the life of Washington shows his capacity for
historical composition in the most favorable light. It will
forever remain a monument of his skill, sound judgment, and
strict impartiality; and must in the future, as in the past, be
a standard authority for all other historians.
In contemplating his professional career it cannot for a
moment be doubted, that he must have occupied the foremost
rank among advocates. Such accordingly has been his reputation transmitted to us by his contemporaries at the bar.
From what has been already said, his powers of argument
must have ensured him entire success. In his manner he
was earnest, impressive, deliberative; but at the same time
far more intent on his matter than his manner. Never having known him, while he was at the bar, I should have silently
drawn the conclusion, that his forensic arguments were more
distinguished for masculine sense, solid reasoning, and forcible
illustration, than for impassioned appeals, or touching pathos,
even when the latter might fairly enlist the judgment of an
advocate. But there have been times in private conversations and conferences, in which he has been roused by the
interest of the subject to such a glowing strain of animated
reasoning, that I am convinced that he was no stranger to
appeals to the heart; and that when he chose, he could call
up from the very depths of the soul its most powerful feelings.
In regard to eloquence, if by that be merely meant an
ornamented diction, splendor of style, impassioned delivery,
and fine flourishes of rhetoric, it could scarcely be said to
belong to his forensic addresses. In the view of such a mind
as his, there were graver duties to be performed, and more
important interests to be secured. He loved the law as a
science, and not as a trade; and felt the full dignity of being
a minister at its altars. He deemed himself under deep responsibility, not to his client alone, but to the court, and to
the cause of public justice. He studied to know what the
precepts of the law were, that he might apply them to his




688             MISCELLANEOUS WRITINGS.
cause, and not to pervert them to aid the triumph of injustice, or to swell the trophies of cunning, or avarice, or profligacy. His notions of professional morals and obligations
were far different from such mean and debasing palterings
with conscience. He argued for the law, and with the law,
and from the law. He disdained to mislead the court or jury,
if he could; and he gave to both on all occasions the support
and the instruction of his ample studies.
But if by eloquence be meant the power to address other
men's minds in language expressive and luminous; to present
the proper topics of argument in their just order and fulness;
to convince the understanding by earnest and sententious
appeals; and, by the force of reasoning, to disarm prejudices,
to subdue passions, and to dissipate popular delusions; if
these be the attributes of eloquence, then, indeed, few men
might more justly aspire to such a distinction. I would not
claim for him, that he possessed the power to seduce men's
understandings by persuasive insinuations or honeyed accents;
but I affirm, that he withdrew their understandings from the
potency of such artifices, so that they fell lifeless at his feet;
-telumque imbelle sine ictu. To him  may unhesitatingly
be applied the language of Cicero, pronounced upon one of
the greatest lawyers of Rome, that he possessed a mastery of
the highest art of oratory; the art of analyzing, defining, and
illustrating a subject; separating the true from the false; and
deducing from each the appropriate consequences; — artem,
qua doceret rem universam tribuere in partes, latentem explicare definiendo, obscuram explanare interpretando; ambigua
primum videre, deinde distinguere; postremo, habere regulam, qua vera et falsa judicarentur; et quw, quibus positis,
essent, quaque non essent, consequentia. Hic enirn attulit
hanc artem, omnium artium  maximam, quasi lucem, ad ea,
qua confuse ab aliis aut respondebantur, aut agebantur.1
But it is principally upon his character as a Magistrate,
I Cicero De Clar. Orator. Cap. 14.




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 689
presiding over the highest tribunal of the nation, that the
solid fabric of his fame must rest. And there let it rest; for the
foundations are deep, and the superstructure fitted for immortality. Time, which is perpetually hurrying into a common
oblivion the flatterers of kings, and the flatterers of the people,
the selfish demagogues, and the wary courtiers, serves but to
make true greatness better known, by dissolving the mists of
prejudice and passion, which for a while conceal its true
glory. The life of the Chief Justice extended over a space
rare in the annals of jurisprudence; and still more rare is
such a life, with the accompaniment of increasing reputation.
There was nothing accidental or adventitious in his judicial
character. It grew by its own native strength, unaided by
the sunshine of power, and unchecked by cold neglect, or
unsparing indifference. The life of Lord Mansfield was one
of the longest and most splendid in the juridical history of
England. That of the Chief Justice was longer, and may
fairly rival it in the variety of its labors, in the glory of its
achievements, and in its rapid advancement of the science of
jurisprudence.
The Chief Justiceship of the United States is a station full
of perplexing duties, and delicate responsibilities, and requiring qualities so various, as well as so high, that no man,
conscious of human infirmity, can fail to approach it with
extreme diffidence and distrust of his own competency. It is
the very post, where weakness, and ignorance, and timidity
must instantly betray themselves, and sink to their natural
level. It is difficult even for the profession at large fully to
appreciate the extent of the labors, the various attainments,
the consummate learning, and the exquisite combination of
moral qualities, which are demanded to fill it worthily. It
has hitherto been occupied only by the highest class of minds,
which had been trained and disciplined by a long course of
public and professional service for its functions. Jay, Ellsworth, and Marshall, have been the incumbents for the whole
period since the adoption of the constitution; and their extra58 *




690             MISCELLANEOUS WRITINGS.
ordinary endowments have in a great measure concealed
from the public gaze the dangers and the difficulties of this
dazzling vocation.
There is nothing in the jurisprudence of the States, which
affords any parallel or measure of the labors of the national
courts. The jurisprudence of each state is homogeneous in
its materials. It deals with institutions of a uniform character. It discusses questions of a nature familiar to the
thoughts and employments of the whole profession. The
learned advocate, who finds himself transferred, by public
favor or superior ability, from the state bar to the state bench,
finds the duties neither new nor embarrassing in their elements or details. He passes over ground, where the pathways are known and measured; and he finds pleasure in
retracing their windings and their passages. He may exclaim
with the poet, Tuvat iterare labores; and he indulges a safe
and generous confidence in his own juridical attainments.
How different is the case in the national courts! With
whatever affluence of learning a judge may come there, he
finds himself at once in a scene full of distressing novelties
and varieties of thought. Instead of the jurisprudence of a
single state, in which he has been educated and trained, he is
at once plunged into the jurisprudence of twenty-four States,
essentially differing in habits, laws, institutions, and principles
of decision. He is compelled to become a student of doctrines, to which he has hitherto been an entire stranger; and
the very language, in which those doctrines are sometimes
expressed, is in the truest sense to him an unknown tongue.
The words seem to belong to the dialect of his native language; but other meanings are attached to them, either so
new, or so qualified, that he is embarrassed at every step of
his progress. Nay; he is required in some measure to forget
in one cause, what he has learned in another, from its inapplicability or local impropriety; and new statutes, perpetually
accumulating on every side, seem to snatch from his grasp
-the principles of local law, at the moment when he is begin



CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 691
ning to congratulate himself upon the possession of them.
Independent of this complicated intermixture of state jurisprudence, he is compelled to master the whole extent of Admiralty and Prize Law; the public and private law of nations; and the varieties of English and American Equity
jurisprudence.  To these confessedly herculean labors he
must now add some reasonable knowledge of the Civil Law,
and of the jurisprudence of France and Spain, as they break
upon him from the sunny regions of the farthest South. Nor
is this all; (though much of what has been already stated
must be new to his thoughts,) he must gather up the positive
regulations of the statutes and treaties of the national government, and the silent and implied results of its sovereignty and
action. He must finally expand his studies to that most
important branch of national jurisprudence, the exposition of
constitutional law, demanding, as it does, a comprehensiveness of thought, a calmness of judgment, and a diligence of
research, (not to speak of other qualities,) which cannot be
contemplated without the most anxious apprehensions of
failure. When these various duties are considered, it is
scarcely too much to say, that they present the same discouraging aspect of the national jurisprudence, which Sir Henry
Spelman has so feelingly proclaimed of the municipal jurisprudence of England, in his day; — Molem, non ingrentem
solum, sed perpetuis humeris sustinendam.
These, however, are but a part of the qualifications required
of the man, who holds the office of Chief Justice. He must
also possess other rare accomplishments, which are required
of one who, as the head of the Court, is to preside over its
public deliberations, and its private confidential conferences.
Patience, moderation, candor, urbanity, quickness of perception, dignity of deportment, gentleness of manners, genius,
which commands respect, and learning which justifies confidence;- These seem indispensable qualifications to fill up
the outlines of the character. While I was yet shadowing
them out in my own mind, my eyes insensibly turned (as it




692             MISCELLANEOUS WRITINGS.
were) to the Judicial Hall at Washington, and to the very
Chair appropriated to the office.  The venerable form of
Marshall seemed still seated there! It was but a momentary
dream; I awoke; and found that I had but sketched the
first lines of his portrait.
Yes, this great and good man was all, that we could ask,
or even desire for the station. He seemed the very personation of Justice itself, as he ministered at its altars —in the
presence of the nation-within the very walls, which had
often echoed back the unsurpassed eloquence of the dead, of
Dexter, and Pinkney, and Emmett, and Wrirt, and of the
living also, nameless here, but whose names will swell on the
voices of a thousand generations. Enter but that hall, and
you saw him listening with a quiet, easy dignity to the discussions at the bar; silent, serious, searching; with a keenness of thought, which sophistry could not mislead, or error
confuse, or ingenuity delude; with a benignity of aspect,
which invited the modest to move on with confidence; with
a conscious firmness of purpose, which repressed arrogance,
and overawed declamation.  You heard him pronounce the
opinion of the Court in a low but modulated voice, unfolding
in luminous order every topic of argument, trying its strength,
and measuring its value, until you felt yourself in the presence
of the very oracle of the law. You heard, (if I may adopt
the language applied to another great magistrate on a like
occasion) you " heard principles stated, reasoned upon, enlarged, and explained, until you were lost in admiration at
the strength and stretch of the human understanding." 1 Follow him into the conference room, a scene of not less difficult
or delicate duties, and you would observe the same presiding
genius, the same kindness, attentiveness, and deference; and
yet, when the occasion required, the same power of illustration, the same minuteness of research, the same severity of
logic, and the same untiring accuracy in facts and principles.
1 Mr. Justice Buller, speaking of Lord Mansfield, in Lickbarrow v. Mason,
2 Term Rep. 73.




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 693
It may be truly said of him, as it was of Lord Mansfield,
that he excelled in the statement of a case; so much so, that
it was almost of itself an argument. If it did not at once
lead the hearer to the proper conclusion, it prepared him to
assent to it, as soon as it was announced. Nay, more; it
persuaded him, that it must be right, however repugnant it
might be to his preconceived notions.  Perhaps no Judge
ever excelled him in the capacity to hold a legal proposition
before the eyes of others in such various forms and colors.
It seemed a pleasure to him to cast the darkest shades of
objection over it, that he might show how they could be dissipated by a single glance of light. He would by the most
subtile analysis resolve every argument into its ultimate principles, and then with a marvellous facility apply them to the
decision of the cause.
That he possessed an uncommon share of juridical learning,
would naturally be presumed, from his large experience and
inexhaustible diligence. Yet it is due to truth, as well as
to his memory to declare, that his juridical learning was not
equal to that of many of the great masters in the profession,
living or dead, at home or abroad. He yielded at once to
their superiority of knowledge, as well in the modern as in
the ancient law. He adopted the notion of Lord Bacon, that
" studies serve for delight, for ornament, and for ability," —
"'in the judgment and disposition of business." The latter
was his favorite object. Hence he "read not to contradict
and confute; nor to believe and take for granted; nor to find
talk and discourse; but to weigh and consider."  And he
followed another suggestion of that great man, that "Judges
ought to be more learned than witty; more reverend than
plausible; and more advised than confident." The original
bias, as well as the choice, of his mind was to general principles, and comprehensive views, rather than to technical, or
recondite learning. He loved to expatiate upon the theory of
equity; to gather up the expansive doctrines of commercial
jurisprudence; and to give a rational cast even to the most




694             MISCELLANEOUS WRITINGS.
subtile dogmas of the common law. He was solicitous to
hear arguments; and not to decide causes without them.
And no judge ever profited more by them. No matter,
whether the subject was new or old; familiar to his thoughts,
or remote from them; buried under a mass of obsolete learning, or developed for the first time yesterday; whatever was
its nature, he courted argument, nay, he demanded it. It
was matter of surprise to see how easily he grasped the leading principles of a case, and cleared it of all its accidental
incumbrances; how readily he evolved the true points of the
controversy, even when it was manifest that he never before
had caught even a glimpse of the learning upon which it
depended. He seized, as it were by intuition, the very spirit
of juridical doctrines, though cased up in the armor of centuries; and he discussed authorities, as if the very minds of the
Judges themselves stood disembodied before him.
But his peculiar triumph was in the exposition of constitutional law. It was here, that he stood confessedly without a
rival, whether we regard his thorough knowledge of our civil
and political history, his admirable powers of illustration and
generalization, his scrupulous integrity and exactness in interpretation, or his consummate skill in moulding his own genius
into its elements, as if they had constituted the exclusive
study of his life. His proudest epitaph may be written in a
single line - Here lies the Expounder of the Constitution of
the United States.
I am aware of the force of this language; and have no
desire to qualify it. The task which he had to perform, was
far different from that which belongs to the debates in other
places, where topics may be chosen, and pressed, or avoided,
as the occasion may require. In the forum there is no choice
of topics to be urged; there are no passions to be addressed;
there are no interests to be courted. Critical inquiries, nice
discriminations, severe inductions, and progressive demonstrations are demanded upon the very points on which the controversy hinges. Every objection must be met, and sifted,




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 695
and answered, not by single flashes of thought, but by the
closest logic, reasoning out every successive position with a
copious and convincing accuracy.
Let it be remembered, that, when Chief Justice Marshall
first took his seat on the bench, scarcely more than two or three
questions of constitutional law had ever engaged the attention
of the Supreme Court. As a science, constitutional law was
then confessedly new; and that portion of it, in an especial
manner, which may be subjected to judicial scrutiny, had
been explored by few minds, even in the most general forms
of inquiry. Let it be remembered, that in the course of his
judicial life, numerous questions of a practical nature, and
involving interests of vast magnitude, have been constantly
before the court, where there was neither guide, nor authority;
but all was to be wrought out by general principles. Let it
be remembered, that texts, which scarcely cover the breadth
of a finger, have been since interpreted, explained, limited,
and adjusted by judicial commentaries, which are now expanded into volumes. Let it be remembered, that the highest learning, genius, and eloquence of the bar, have been
employed to raise doubts, and fortify objections; that state
sovereignties have stood impeached in their legislation; and
rights of the most momentous nature have been suspended
upon the issue; that under such circumstances, the infirmities of false reasoning, the glosses of popular appeal, the
scattered fire of irregular and inconclusive assertion, and the
want of comprehensive powers of analysis, had no chance to
escape the instant detection of the profession. Let these
things (I say) be remembered; and who does not at once
perceive, that the task of expounding the constitution, under
such circumstances, required almost superhuman abilities?
It demanded a mind, in which vast reaches of thought should
be combined with patience of investigation, sobriety of judgment, fearlessness of consequences, and mastery of the principles of interpretation, to an extent rarely belonging to the
most gifted of our race.




696            MISCELLANEOUS WRITINGS.
How this gigantic task of expounding the Constitution was
met and executed by Chief Justice Marshall, let the profession, let the public, decide. Situated as I am, I may not
speak for others upon such an occasion. But having sat by
his side during twenty-four years; having witnessed his various constitutional labors; having heard many of those exquisite judgments, the fruits of his own unassisted meditations,
from which the court has derived so much honor; — et nos
aliquod nomenque decusque gessimus; — I confess myself unable to find language sufficiently expressive of my admiration
and reverence of his transcendent genius. While I have
followed his footsteps, not as I could have wished, but as I
have been able, at humble distances, in his splendid judicial
career, I have constantly felt the liveliest gratitude to that
beneficent Providence, which created him for the age, that
his talents might illustrate the law, his virtues adorn the
bench, and his judgments establish the perpetuity of the
Constitution of the country. Such is my humble tribute to
his memory. His saltemn accumulem donis, et fungar inani
munere. The praise is sincere, though it may be perishable.
Not so his fame. It will flow on to the most distant ages.
Even if the Constitution of his country should perish, his glorious judgments will still remain to instruct mankind, until
liberty shall cease to be a blessing, and the science of jurisprudence shall vanish from the catalogue of human pursuits.
And this great magistrate is now gone - gone, as we trust,
to the high rewards of such eminent services. It is impossible to reflect, that the places which once knew him, shall know
him no more, without a sense of inexpressible melancholy.
When shall we look upon his like again? When may we
again hope to see so much moderation with so much firmness;
so much sagacity with so much modesty; so much learning
with so much purity; so much wisdom with so much gentleness; so much splendor of talent with so much benevolence;
so much of every thing to love and admire, with nothing,
absolutely nothing to regret?




CHARACTER AND SERVICES OF CHIEF JUSTICE MARSHALL. 697
And yet there are some consolations even in so great a
loss. Cicero, in mourning over the death of his friend, the
great Roman lawyer, Hortensius, did not hesitate to pronounce his death fortunate; for he died at a moment happy
for himself, though most unfortunate for his country. Quoniarn perpetua quadam felicitate usus ille, cessit e vita, suo,
magis quam suorum civium, tempore. Vixit tam diu quamr
licuit in civitate bene beateque vivere.l We may well apply
the like remark to Chief Justice Marshall. He was not cut
off in middle life, in the early maturity of his faculties, while
he was yet meditating new plans of usefulness or glory. He
lived to the very verge of that green old age, after which the
physical strength sensibly declines, and the intellectual powers
no longer reach their accustomed limits. He retained, to the
very last hour of his life, the possession of all these powers
in full perfection, without change - nay, without the shadow
of change. Such had been his hope, earnestly and frequently
expressed to his confidential friends, with deep solicitude;
for no man more than he dreaded to add another to the
melancholy lessons:
"In life's last scenes, what prodigies surprise,
Tears of the brave, and follies of the wise."
We may well rejoice, therefore, that a life, so long and so
useful, should have come to its close without any exhibition
of human infirmity. The past is now secure. It is beyond
the reach of accident. The future cannot be disturbed by
error, or darkened by imbecility. His setting sun loomed out
in cloudless splendor, as it sunk below the horizon. The last
lights shot up with a soft and balmy transparency, as if the
beams, while yet reflected back on this world, were but ushering in the morn of his own immortality.
1 Cicero De Clar. Orator. Cap. 1.
59




CODIFICATION OF THE COMMON LAW.
A REPORT OF THE COMMISSIONERS APPOINTED TO CONSIDER AND
REPORT UPON THE PRACTICABILITY AND EXPEDIENCY OF REDUCING
TO A WRITTEN AND SYSTEMATIC CODE THE COMMON LAW OF MASSACHUSETTS, OR ANY PART THEREOF; MADE TO HIS EXCELLENCY
THE GOVERNOR, JANUARY, 1837.
THE three leading questions presented for the consideration of the Commissioners are:
1. The practicability of reducing to a written and systematic Code the Common Law of Massachusetts, or any part
thereof.
2. The expediency of such a reduction, if practicable.
3. The plan or plans, by which the same can be best
accomplished, if expedient.
Before proceeding to a direct examination of these questions, it seems proper to make some preliminary remarks,
which may serve to explain the exact state of these questions,
and to guard against any erroneous inferences, as to the
nature and limits of the inquiries which they involve.
When our ancestors first emigrated to this country, then a
wilderness, inhabited only by the Indians, who possessed no
regular government or administration of laws, they brought
with them the common law of the mother country, (England,) so far, as from its nature and objects, it then was or
might be applicable to their situation, as colonists, distant
from and possessing institutions and political arrangements
varying from those of the parent country. It is obvious, that
they could not bring with them the whole body of the Eng



CODIFICATION OP THE COMMON LAW.        699
lish law then in force; for much of it must have been wholly
inapplicable to their situation, and some of it was inconsistent with their policy and prosperity as colonies. Thus, for
example, many of the feudal tenures, then in force in England, were never known here, all tenures of land here being
from the beginning in free and common socage. So, the
whole common law, applicable to the ecclesiastical establishment of England, never had an existence here, for a similar
reason.
Nor was this an artificial principle assumed for the occasion to govern the colonies. It was a part of the general
law of the land, at the time of the emigration of our ancestors, that all new settlements made by Englishmen, in desert
and uncultivated regions, were to be governed by the law of
England, subject to the qualifications already stated. It
was also a principle, fully recognized in the charters granted
to the colonies, either in direct terms, or by necessary implication. In most, if not in all of them, there will be found an
express declaration, that no laws shall be made repugnant to
those of England, (or some equivalent phrase,) but as near as
may conveniently be, their laws shall be consonant with and
conformable to those of England. There is also to be found
in all the charters, except that of Pennsylvania, (where it was
probably omitted by mistake or accident,) an express clause,
declaring, that all English subjects and their children, inhabiting in the colonies, shall be deemed natural born subjects,
and shall enjoy all the privileges and immunities thereof.
This was specially true in relation to the colony of Massachusetts, whose successive charters expressly recognize these
privileges and immunities as the right of all subjects and
their children inhabiting therein, and authorize the enactment
of laws not repugnant or contrary to the laws of England.
The common law, thus introduced into the colonies, was
not, in a strict sense, the common law in its original form,
but, as it was then existing in England, modified, amended
and ameliorated by statutes; and it was claimed as the birth



700            MISCELLANEOUS WRITINGS.
right and inheritance of all the colonists. The revolutionary
Congress of 1774, accordingly, unanimously resolved, " that
the respective colonies are entitled to the common law of
England, and more especially to the great and inestimable
privilege of being tried by their peers, in the vicinage, according to the course of that law;" and " that they were entitled
to the benefit of such of the English statutes as existed at
the time of their colonization, and which they have by experience respectively found to be applicable to their several
local circumstances."
But notwithstanding this general adoption of the common
law of England, it is obvious, that the qualifications annexed
to it must have given rise to many very perplexing doubts
and difficulties. What portions of the common law were
applicable to the situation of the colonies, was an inquiry
perpetually presented in the course of forensic discussions in
former times. And though by the gradual operation of judicial decisions, and the positive enactments of the colonial,
provincial, and state legislatures, the field of controversy has
been greatly narrowed; yet there still remain some topics of
debate upon which it would not be easy to affirm, whether
the common law of England had been adopted here or not.
Nor has the provision of the Constitution of this Commonwealth of 1780, that " the laws, which have heretofore been
adopted, used, and approved in the province, colony, or state
of Massachusetts Bay, and usually practised on in the courts
of law, shall still remain and be in full force until altered or
repealed by the legislature; such parts only excepted as are
repugnant to the rights and liberties contained in this constitution," materially changed the grounds of difficulty and controversy; for the inquiry must still be made, what are the
laws which have been so adopted, used, and approved, and
usually practised on in our courts of law?
Besides the common law of England, there are to be
found in Massachusetts some few local usages and principles, which properly constitute a part of our common law,




CODIFICATION OF THE COMMON LAW.       701
though unknown to that of England.  One of the most
striking instances of this sort is the capacity of a married
woman to dispose of her real property by a deed with the
consent of her husband; whereas, by the common law of
England, it can be done only by a peculiar process called a
fine or a common recovery.
The common law of Massachusetts, then, properly embraces, in the first place, that portion of the common law
of England, (as modified and ameliorated by English statutes,) which was in force at the time of the emigration of
our ancestors, and was applicable to the situation of the
colony, and has since been recognized and acted upon, during the successive progresses of our Colonial, Provincial, and
State Governments, with this additional qualification, that it
has not been altered, repealed or modified by any of our own
subsequent legislation now in force. In the next place, it
embraces those local usages and principles, which have the
authority of law, but which are not founded upon any local
statutes. The latter, indeed, are so few, and comparatively,
in a general sense, so unimportant, that they may, for all our
present purposes, be passed over without farther observation
or notice.
The next inquiry is, what is the true nature or character
of the common law, so recognized and established, and where
are its doctrines and principles to be found. In relation to
the former part of the inquiry, it may be generally stated,
that the common law consists of positive rules and remedies,
of general usages and customs, and of elementary principles,
and the developments or applications of them, which cannot
now be distinctly traced back to any statutory enactments,
but which rest for their authority upon the common recognition, consent and use of the State itself. Some of these
rules, usages and principles are of such high antiquity, that
the time cannot be assigned, when they had not an existence
and use. Others of them are of a comparatively modern
growth, having been developed with the gradual progress of
59 *




702             MISCELLANEOUS WRITINGS.
society; and others, again, can hardly be said to have had a
visible and known existence until our own day. Thus, for
example, many of the rights and remedies, which ascertain
and govern the titles to real estate, are of immemorial antiquity. On the other hand, the law of commercial contracts,
and especially the law of insurance, of shipping, of bills of
exchange, and of promissory notes, has almost entirely grown
up since the time (1756) when Lord Mansfield was elevated
to the bench. And again, the law of aquatic rights and water
courses, and the law of corporations can scarcely be said to
have assumed a scientific form until our day. *
In truth, the common law is not in its nature and character an absolutely fixed, inflexible system, like the statute
law, providing only for cases of a determinate form, which
fall within the letter of the language, in which a particular
doctrine or legal proposition is expressed. It is rather a system of elementary principles and of general juridical truths,
which are continually expanding with the progress of society,
and adapting themselves to the gradual changes of trade,
and commerce, and the mechanic arts, and the exigencies
and usages of the country. There are certain fundamental
maxims in it, which are never departed' from; there are others
again, which, though true in a general sense, are at the same
time susceptible of modifications and exceptions, to prevent
them from doing manifest wrong and injury.
When a case, not affected by any statute, arises in any of
our courts of justice, and the facts are established, the first
question is, whether there is any clear and unequivocal principle of the common law, which directly and immediately
governs it, and fixes the rights of the parties. If there be
no such principle, the next question is, whether there is any
principle of the common law, which, by analogy, or parity
of reasoning, ought to govern it. If neither of these sources
furnishes a positive solution of the controversy, resort is next
had (as in a case confessedly new) to the principles of natural
justice which constitute the basis of much of the common




CODIFICATION OF THE COMMON LAW.       703
law; and if these principles can be ascertained to apply in a
full and determinate manner to all the circumstances, they
are adopted, and decide the rights of the parties. If all these
sources fail, the case is treated as remediless at the common
law, and the only relief, which remains, is by some new
legislation, by statute, to operate upon future cases of the
like nature.
These remarks may be illustrated, by referring to some of
the most familiar cases which occur in the every day business
of life. In the common case of work and labor, done for any
person, or goods sold and delivered to him, the common law
implies an obligation or duty in the person, for whose benefit,
and at whose request it is done, to pay the amount of the
price of the goods, or the value of the work and labor. Now
there is no statute from which this obligation or duty is
derived. It is simply a dictate of natural justice, and from
that source was adopted into the common law. The mode,
by which this obligation or duty was enforced in the ancient
common law, was by the remedy called an action of debt.
But this remedy was in some respects, and under some circumstances, liable to embarrassments and technical objections. About three hundred years ago, it occurred to some
acute lawyers, that another remedy, which would avoid these
embarrassments and objections, might be applied. Accordingly, an action of trespass on the case, now well known by
the name of an action of indebitatus assumpsit, was brought
in the courts of Westminster Hall, to recover the amount of
the debt. It was then very gravely debated, whether such an
action would lie, and finally (after great diversity of opinion)
it was settled in favor of the action. The principal ground
of the decision was from the analogy to other well known
forms of actions on the case, and the undertaking or promise
of the debtor, implied by latw, to pay the debt, the breach of
which undertaking or promise was a wrong to the other party,
for which he was entitled to recover, not technically the debt,
but damages to the full amount of the debt. And this is




704            MISCELLANEOUS WRITINGS.
now the common mode, by which debts of this sort are
usually sued for and recovered.
Again: When a man borrows money of another to be
repaid to the lender, the common law, upon principles of
natural justice, holds him liable to repay it, upon his express
or implied agreement to that effect. But cases occurred, in
which money in the hands of one person, in justice and
equity, belonged to another; but it had not been borrowed,
nor had the possessor promised to pay it over. On the contrary, he resisted the claim. The question then arose, whether
in such a case the money was recoverable. And the courts
of law, at a comparatively recent period, held, that an action
would lie for the recovery of it, and that the proper action
was indebitatus assumpsit, for money had and received to
the use of the party entitled. Here, again, the courts acted
upon principles of natural justice, and founded themselves,
both as to the right and the remedy to recover, upon the
analogies of the law. They first inferred, from the principles
of natural justice and the analogies of the law, an implied
undertaking or promise to pay over the money, because in
conscience and duty the holder was bound so to do; and
next they applied the remedy by analogy to other cases where
there was an express promise of a similar nature.
Again: Until the reign of Queen Anne, promissory notes,
although payable to bearer or order, were held not to be negotiable; so that no person but the payee could maintain an
action for the money due on the same. The ground of this
decision was, that debts, technically called choses in action,
are not assignable at the common law, a doctrine which can
be traced back to its early rudiments. This, therefore, was a
case, where, though the principles of natural justice might
apply to create an obligation, the positive rules of the common law forbade it. Hence the interposition of the legislature became indispensable. Nay, even the payee himself
could not, according to the rules of the common law, maintain an action directly on the instrument; but he could only




CODIFICATION OF THE COMMON LAW.        705
use it as evidence of a debt in an action properly framed
upon the consideration, for which it was given. When the
Statute of 3d and 4th Anne, chapter 9, made such promissory
notes negotiable, it was found to be so convenient, that it
was generally, though not universally, nor without some exceptions and modifications, introduced either by statute or
usage into the Colonies. In Massachusetts it was adopted
by usage, and acted upon down to our day, without any other
sanction than judicial recognition.
As soon as the negotiability of promissory notes was thus established, it gave rise to innumerable questions, as to the rights
and responsibilities of the parties, which was either confessedly
new, or but faintly indicated by antecedent principles. What
were the nature and extent of the obligation of an indorser;
what were the duties of the indorsee; when demand was to
be made of payment of the maker; what notice was to be
given, and how notice was to be given, by the holder to the
indorser; these and very many questions of a like nature,
were necessarily to be resolved. And so complicated and so
various are the circumstances, which may attend cases of this
nature, that notwithstanding the long course of decisions,
which have in a great measure ascertained and qualified the
rights and responsibilities of the parties, there yet remains a
wide field for future discussions, growing out of the new and
ever-varying courses of business. The principles of natural
justice have furnished many rules for the exposition of the
contract and obligations of the parties; the analogies of the
common law have furnished others; the usages of the mercantile world have furnished others; and then again there
have been anomalies, which could not be brought within the
range of any well-defined principles, and therefore have been left
to be regulated by legislative enactments. In this branch of
the law, in an especial manner, will be found a striking illustration of the remark of an eminent judge, that the common
law is a system of principles, which expands with the exigencies. of society.




706             MISCELLANEOUS WRITINGS.
With these few preliminary observations, which seemed
necessary to a just understanding of the subject, the Commissioners will now proceed to the direct consideration of the
inquiries presented by their commission.
I. The first is, as has been already stated, the practicability
of reducing to a written and systematic Code the Common
Law of Massachusetts, or of any part thereof.
This inquiry involves, or at least may involve, two very
distinct and widely different propositions, according to the
sense in which we interpret the terms, " the Common Law of
Massachusetts." If by those terms is to be intended not only
all the general principles of that law, but all the diversities,
ramifications, expansions, exceptions and qualifications of
those principles, as they ought to be applied, not only to the
past and present, but, to all future combinations of circumstances in the business of human life, it may require one
answer. If, on the other hand, those terms are to be understood in a more restricted sense, as importing only the reduction to a positive code of those general principles, and of the
expansions, exceptions, qualifications and minor deductions,
which have already, by judicial decisions or otherwise, been
engrafted on them, and are now capable of a distinct enunciation, then a very different answer might be given. In the
former sense, the Commissioners have no doubt, that it is not
practicable to reduce the common law of Massachusetts to a
written code; in the latter sense, they have no doubt, that it
is so practicable; and the expediency of doing it will come
under review in a subsequent part of this Report.
As there appear to the Commissioners to be abroad in the
community some erroneous notions on this subject, under
both of the preceding aspects, they beg leave respectfully to
suggest the reasoning, by which they have arrived at the conclusions above stated. It is not an uncommon opinion, that
all law is capable of being reduced to a specific form, which
shall apply with equal clearness and certainty to the solution
of all cases, past, present and future. In short, it is frequently




CODIFICATION OF THE COMMON LAW.         707
supposed and frequently asserted, that a code may be compiled of all the law, which is to regulate the rights and titles,
the property, the business and the contracts of a nation, so
definite, full and exact, that it shall furnish a complete guide,
not only for the decisions of courts of justice, but for intelligent citizens throughout the country, in all cases, and shall
supersede, if not the necessity of new legislation, at least the
necessity of new rules, and the modification of old rules by
courts of justice, to reach the exigencies of every variety of
controversy. Why, it is often asked, cannot the law of a
country be reduced to a positive form? If it is law, it must
be known, or it ought to be known, so that every citizen may
govern his conduct accordingly. If it is known to a few, why
may it not be made known in a positive form to all persons?
If not fully known to any persons, ought a free nation to
remain subject to rules, of the nature and extent of which they
are ignorant, and to allow their rights to be decided by doctrines now promulgated for the first time? Questions of this
sort are often put, and suggestions of this character are often
made. They wear an air of plausibility, and therefore should
be deliberately examined, and the errors, to which they may
lead, should be corrected by expounding the sources of them.
It is very certain, that no nation, whose legal institutions are
known to us, ever had a code of the nature above supposed,
namely, one, which was comprehensive enough to embrace
all the doctrines and details required for the private concerns
and business of its whole population. That it never has been
done, however, furnishes no absolute proof, that it cannot be
done. But at the same time, since it is well known, that
many partial codes or collections of laws have been made, the
fair presumption is, that it has been deemed impracticable or
unwise to attempt more.
In proportion as nations advance in civilization and commerce, the business of the people and the rights and modifications of property, become necessarily more complicated and
difficult, and various in their relations and circumstances.




708             MISCELLANEOUS WRITINGS.
The principles of law, which might suffice for the ordinary
transactions of one age, would be wholly insufficient to answer the exigencies of the next age. Of the innumerable
questions which arise in any one age, and admit of forensic
controversy and doubt, probably not one in a hundred, perhaps it would be more correct to say, not one in a thousand,
ever comes before a court of justice to be there finally settled
by adjudication. Many are settled by compromise; many by
arbitration, or the intervention of friends; many are neglected
or abandoned, from their comparatively slight importance, or
the poverty of the claimants, or their ignorance of, or indifference to, their rights, or from other causes tending to suppress
litigation. Hence it is, that the basis of the actual administration of justice in every country must comprehend principles
of far more extensive reach than those which become the
subjects of direct adjudication in courts of justice, and be
capable of a progressive adaptation to new cases as they
arise, or the most manifold public and private mischiefs must
pervade the whole community.
It may be asked, why may not a nation require all the laws,
which are to govern it, to be clearly made known and promulgated before they are acted upon? Certainly it is competent for a nation so to act. It may declare, that the administration of justice shall be applied only to rights and titles and
claims which have been previously ascertained by the terms of
express laws, leaving nothing to the judgment of courts of jus.
tice, beyond the direct application of the text to the very cases
thus ascertained.  But what would be the consequence of
such a course of legislation? It would be, that every case
of wrong and injustice and oppression, not thus foreseen and
provided for, would be wholly remediless. And the mass of
such cases would be perpetually accumulating, since positive
legislation, however rapid and constant, can never keep up
in any just proportion with the actual permutations and comrnbinations of the business of an active, enterprising, and industrious people.  Suppose, for example, the Legislature of




CODIFICATION OF THE COMMON LAW.         709
Massachusetts should declare, that there should be no other
laws in force except what are contained in the Revised Statutes; it is obvious that the whole business of life must stop
in this State; for that code does not provide for one case in
a thousand,'perhaps not for one in a hundred thousand, which
is of daily occurrence and activity.
It is obviously impossible to make a positive code, which
shall be adequate to the business and rights and modifications
of property in any one single age, unless the Legislature can
foresee every possible as well as every probable combination of circumstances applicable to every subject-matter in
that age. Such a degree of wisdom and foresight belongs
not to any human beings. If it were possible to foresee and
provide for all such exigencies of a single age, having a determinate course of business, and institutions, no one would
be rash enough to assert, that it was possible to foresee and provide for the exigencies, rights, duties, and business of the same
nation throughout all time. A code, therefore, however full,
would be perpetually growing more and more defective, unless resort was had to new legislation; and such legislation,
to be either wise or effective, must allow a great number of
cases of the same sort to arise under various aspects, before
the proper remedy or principle, which ought to be generally
applied, could be clearly perceived, or safely adopted.  In
short, unless it were possible to compel all men to act at all
times in one way, and to prevent the occurrence of any new
combinations of circumstances, (a condition morally and physically impossible,) and unless it were also possible for a legislature to foresee and provide for all the cases that had arisen,
or could arise, (a condition equally impossible,) there is no
pretence to say, that any written code could embrace all the
provisions fitted for an active, commercial, and free people,
advancing in civilization, wealth, and industry. And if any
code could be framed, which should aspire to provide in detail for the common run of circumstances, it would be found
in practice to be not only materially defective, but so volumiGJO




710            MISCELLANEOUS WRITINGS.
nous in its precepts, that a whole life would be required to
master all its provisions, and more than a whole life to accumulate the materials fit for its composition.
It has been already stated, that perhaps not one case in
a hundred, which admits of doubt or controversy, ever comes
before a court of justice for decision. Of the reported cases,
which were decided in England before the middle of the last
century, consisting principally of cases at the common law,
an abridgment has been published in twenty-four folio volumes; and, after all, it is a very unsatisfactory and incomplete abridgment of those cases, probably not covering one
half of the minute doctrines asserted and acted on in them.
An abridgment of the reported cases at the common law,
from that time down to the present, has also been published
in fifteen volumes (royal octavo) which is equally imperfect
and unsatisfactory. These voluminous works are but specimens of what a code must be, which should attempt to
enumerate in detail the doctrines of the common law, which
have been in dispute in courts of justice, and have been established by decisions. If the enumeration of these is so voluminous, we may readily see, what space would be required
for those which are known and not disputed, and for those
which are unknown, or uncertain in their application, and
whose circumstances have never been discussed in tribunals
of justice. A code, which should embrace the doctrines of all
the reported cases of the common law, from the most important to the most minute, with accuracy and clearness, would
of itself be exceedingly voluminous, and require many years,
if not an age, for its preparation, and then would be mastered
only by those, who could afford to devote a large portion of
their lives to the study and exposition of it. For the purposes
of common life, it would be like a sealed book, which would
neither enlighten nor aid practical inquirers, and perhaps by
a partial examination might mislead them. But if a code
should attempt more, and be framed so as to comprehend, in
all their details, all the known and undisputed doctrines of




CODIFICATION OF THE COMMON LAW.        711
the common law, which on that account are only incidentally
touched or alluded to in reported cases, it would probably be
doubled in its bulk and extent. If it should attempt to go
farther, and provide for the application of those doctrines to
all other cases, which had arisen and were known, or which
could be foreseen by the exercise of the most profound and
varied wisdom and experience of the Commonwealth, it would
not only be found upon its first promulgation exceedingly
defective, but it would be of such vast size and accumulated
materials, that it would serve to perplex rather than to clear
away difficulties, and would import into the administration
of justice more mischiefs and doubts, and stimulants to litigation, than it could hope to remedy. There would be this
additional evil, that as the rules established for future cases
would necessarily be founded upon general theories, and
would not, as now, be adopted upon full argument, and
modified from time to time, to meet the circumstances of
each particular case, there would be infinite danger, that they
would in practice be found to work ill, or to defeat the main
objects, which the legislation was intended to accomplish.
The civil code and the commercial code of France are
probably as perfect specimens of legislation as ever have
been, or ever can be produced, having been prepared with
great care and diligence, by the most learned jurists of
France, after repeated revisions, and with the assistance of
the ablest and the most experienced judges of the tribunals
of all the departments of that extensive kingdom. Yet it is
well known, that a great variety of questions, as to the true
construction of the text, and a still greater variety of questions, arising from new and unforeseen cases, have been discussed in their judicial tribunals, which already occupy many
volumes of reports, and must constitute a continually augmenting mass of materials, alternately for litigation and for
legislation. This consideration furnishes no just objection,
when properly viewed, to the establishment of codes; but it
serves to show the utter impracticability of making any ade



712             MISCELLANEOUS WRITINGS.
quate provisions for all future cases; or of devising any forms
of expression, which shall not be susceptible of some diversities of interpretation. Such is the unavoidable imperfection
of all human language, and such the short-sightedness of the
most deliberate efforts of human wisdom!
Considerations of this sort, which cannot fail to force
themselves upon the mind upon a close survey of the subject,
have led the Commissioners to the conclusion, that it is not
possible to establish in any written code all the positive laws,
and applications of laws, which are necessary and proper to
regulate the concerns and business of any civilized nation,
much less of a free nation, possessing an extensive commerce,
and a great variety of manufacturing and agricultural interests, which are constantly undergoing new  modifications,
and are susceptible of being the subjects of infinitely diversified contracts, and rights of property and enjoyment. If it
were possible to provide such a written code, the Commissioners are of opinion, that the present state of the common
law does not furnish sufficient materials for the purpose. An
infinite number of new rules and doctrines, and modifications,
limitations and enlargements of old rules and doctrines, would
be required even for an approximation to such a code. And
after all, from what has been already suggested, it would be
found full of defects, inconveniences and embarrassments,
from the impossibility of foreseeing many new combinations
of circumstances, or of providing in the most suitable manner
for them, if foreseen, without the aid of long experience
and thorough argument, and a nice discrimination and balancing of opposing reasons. It is upon these grounds, that
the Commissioners have ventured to express their opinion,
that, in the broad sense of the terms already indicated, the
common law of Massachusetts is not capable of being reduced to a written and systematic code; and that any
attempt at so comprehensive an enterprise would be either
positively mischievous, or inefficacious, or futile. It seems to
them, that private convenience as well as public policy re



CODIFICATION OF THE COMMON LAW.         713
quires, that the common law should be left in its prospective
operations in future (as it has been in the past) to be improved, and expanded, and modified to meet the exigencies
of society, by the gradual application of its principles in
courts of justice to new cases, assisted from time to time,
as the occasion may demand, by the enactments of the
legislature.
But although in the broad sense of the terms, the common
law of Massachusetts is not susceptible of being reduced to
a written and systematic code, the inquiry is, in the opinion
of the Commissioners, a very different one, whether the whole
or parts thereof, in the narrower sense above stated, may not
be beneficially reduced to such a code. In this last sense,
the common law  may be said to embrace two distinct
branches, to wit: first, the well known and ascertained general principles of that law; and secondly, the well known
and ascertained applications of those general principles to
the circumstances of particular cases. The former are often
denominated, in the juridical language of Continental Europe, emphatically as law; the latter as jurisprudence. The
former are rather recognized than promulgated in our courts
of justice. The latter constitute the mass of our judicial
decisions, and can rarely be ascertained with perfect exactness from any other sources; though they necessarily compose a part of every elementary treatise upon any branch of
the common law.
In respect to the general principles of the common law of
Massachusetts, it may be affirmed, that they are not positively
incapable of being generally collected into a code. We say
generally, because there may still be some question, whether
particular principles of the common law of England constitute a part of the common law of Massachusetts. But in
relation to a very large mass, there is no difficulty whatsoever
of this nature. These general principles are to be found, for
the most part, collected in elementary treatises now extant,
upon the whole or particular branches of the common law.
60 *




714             MISCELLANEOUS WRITINGS.
They are capable of being stated in the very form and language, in which they are there enunciated, as they have, from
long examinations and critical trials, acquired a precision and
exactness, which approach very near to scientific accuracy;
and for all the ordinary uses of life, they are sufficiently clear
in their interpretations and qualifications. To this extent, at
least as far as these general principles have assumed such
a precision and exactness, they may be embodied in a written code, with such a systematic arrangement, as the nature
of the different subject-matters, to which they apply, may
require.
In respect to the details of these general principles in their
actual application to particular cases, where they have necessarily undergone modifications, exceptions and qualifications,
as they are chiefly, if not exclusively, to be gathered from
actual adjudications in courts of justice, it may also be
affirmed, that they are not positively incapable, so far at least
as reported cases go, of being generally reduced to a written
code. We say generally, because here also there are, or may
be great doubts, whether particular doctrines constitute a part
of our common law; and because there are to be found conflicting decisions upon some points, so that it may not be
easy to affirm, upon the weight of authority, what the true
doctrine is; and because some branches of the common law
of England have become so nearly obsolete, and so obscure
from lapse of time and disuse, that, if they constitute a part
of our common law, it would be very difficult to collect all
the true doctrines, and to express them in an unexceptionable
form. Time here, as everywhere else, has wrought such
great changes in rights, remedies, institutions, and usages,
that it would be almost a hopeless task to suit the ancient
forms and the ancient language of particular doctrines to the
present state of things. It is quite a different question, which
-will be presently considered, whether it would be useful or,expedient, to attempt any codification of all the details of,these general principles, as they are embodied in the de



CODIFICATION OF THE COMM0ON LAW.         715
cisions, which have been made by courts of justice in different ages.
These considerations naturally conduct us to the second
and very important inquiry, as to the expediency of reducing
the common law of Massachusetts, or any part thereof, (in
the narrower sense already stated) to a written and systematic code, so far as the same is practicable. Upon this
subject, the commissioners have employed a good deal of
deliberation; and they now propose to state the results, to
which they have arrived; to state the objections, which have
been or may be urged against any system of codification, with
the answers thereto; and lastly to state the reasons, on which
their own results are founded.
I. The Commissioners are, in the first place, of opinion,
that it is not expedient to attempt the reduction to a code of
the entire body of the common law of Massachusetts, either
in its general principles or in the deduction from, or the applications, of those principles, so far as they have been ascertained by judicial decisions, or are incontrovertibly established.
II. The Commissioners, are, in the next place, of opinion,
that it is expedient to reduce to a code those principles, and
details of the common law of Massachusetts in civil cases,
which are of daily use and familiar application to the common business of life, and the present state of property and
personal rights and contracts, and which are now so far ascertained and established, as to admit of a scientific form and'
arrangement, and are capable of being announced in distinct
and determinate propositions. What portions of the common
law properly fall under this predicament will be in some
measure considered hereafter.
1II..The Commissioners are, in the next place, of opinion,
that it is expedient to reduce to a code the common law, as
to the definition, trial and punishment of crimes, and the
incidents thereto.
IV. The Commissioners are, in the next place, of opinion,




716            MISCELLANEOUS WRITINGS.
that the law of evidence, as applicable both to civil and criminal proceedings, should be reduced to a code.
And, in order to guard against any objections founded upon
a misconception of the nature, objects, and effects of such a
codification, the Commissioners propose to insert in such a
code the following fundamental rules for its interpretation and
application.
I. The code is to be interpreted and applied to future cases,
as a code of the common law of Massachusetts, and not as a
code of mere positive or statute law. It is to be deemed an
affirmance of what the common law now is, and not as containing provisions in derogation of that law, and therefore
subject to a strict construction.
II. Consequently, it is to furnish the rules for decisions in
courts of justice, not only in cases directly (ex directo) within
its terms, but indirectly, and by analogy in cases, where, as a
part of the common law, it would and ought to be applied by
courts of justice, in like manner.
III. In all cases not provided for by the code, or governed
by the analogies therein contained, the common law of Massachusetts, as now existing, is to furnish the rules for decision,
unless so far as it is repugnant to the common law affirmed
in the code, or to the statute law of the state.
Such is the basis of the code proposed by the Commissioners, and such the principles, by which they propose, that those
who shall be called upon to perform the duty of codification,
should be guided.
The Commissioners are aware, that there are many objections, which have been and may be urged, not only against
any codification of the common law, in the broadest sense of
the terms, but also against any codification whatever,even of
the limited nature and extent, which they have ventured to
recommend. These objections have been urged not only at
home but abroad; not only in countries governed by the
common law, but in countries governed by the civil law, and




CODIFICATION OF THE COMMON LAW.          717
by their own customary law; not only in public debates, but
in elaborate treatises by jurists of distinguished reputation
and ability. A proper respect, therefore, for the opinions thus
promulgated, requires them to take notice of some of the most
prominent objections, and to submit such answers as have
occurred to them touching the subject.
One of the most general objections urged against the establishment of a code is, the utter impossibility of making it
perfect, or applicable to all future changes in the condition,
rights and property of a nation. It has been said, that no
system of laws can remain for a great length of time unchanged; for the progress, or even the regress of civil society,
must constantly call for new modifications of the existing
laws; and that one of the peculiar excellences of the common law consists in its adaptation to all circumstances, and,
in a general sense, to all the exigencies which civil society
may present. It is not necessary to controvert the general
truth of this remark. On the contrary, it may be fully admitted, and yet in no degree impair the reasoning in favor of
a code. The fact, that no system of human laws can be
made so perfect as not to require future revisions, modifications, amendments, and even partial repeals, in the new
changes of society, furnishes no just objection to the adoption
of some positive laws, providing for the ordinary concerns of
a nation. It would be deemed little short of an absurdity to
declare, that, because no perfect laws can be made, therefore
no laws should be made. Even the common law does not
pretend, in the slightest degree, to be a perfec.t system. On
the contrary, it has undergone, and is constantly undergoing
changes, to meet the new exigencies of society; and the aid
of the legislature is constantly invoked to cure its defects, and
improve its remedial justice. If the common law had the
theoretical perfection and excellence attributed to it in the
objection, (which can be admitted only with many qualifications and exceptions,) still, it is not perceived how this perfection and excellence are impaired by putting into a positive




718            MISCELLANEOUS WRITINGS.
text, what is supposed, by the objection itself, to be clear and
determinate, and to make it rest, not upon disputable deductions, but upon the positive sanctions of the legislature, declaring it to be the common law. In truth, the objection, though
in its form general, seems principally addressed to a case,
where a nation should establish a particular code of laws, and
abolish all other laws not provided for in that code. In such
a case, it may be admitted, that the unavoidable imperfections of the code would often produce very great mischief
and injustice, and require incessant enactments by the legislature to overcome them. In this view the objection has no
application to codification, as proposed by the Commissioners; for every thing not governed by the code is to be left
precisely as it now is. Courts of justice are to be at full
liberty to apply the existing common law to non-enumerated
cases, exactly as they now do. And from the materials thus
furnished by judicial decisions, improvements and additions
may, from time to time, be engrafted by the legislature on the
code itself. It will thus become, what it ought to be, a perpetual index to the known law, gradually refining, enlarging
and qualifying its doctrines, and at the same time, bringing
them together in a concise and positive form for public use.
Another objection, which has been urged by distinguished
jurists of continental Europe, is, that the jurisprudence of a
country (in their sense of the phrase) is perpetually changing
its form and character with every succeeding age; and any
attempt to give it permanency in its principles or its applications must make it inflexible, and unfit for the purposes of
social justice. Thus, for example, it is asserted, that the
customary law of some of the continental nations is in a
perpetual though gradual state of change; and that this is a
state most useful and salutary to be preserved; for otherwise
the jurisprudence of one age would become obligatory upon
another, and prevent the improvements in it, which might be
best adapted to its prosperity and social advancement. This
objection, whatever may be its force or value, when applied




CODIFICATION OF THE COMMON LAW.          719
to the state of the customary law, in some of the countries
of continental Europe, vanishes, when it is attempted to be
applied to our common law. In America and in England,
the common law is not, in the sense of the objection, of such
a changeable nature. When once a doctrine is fully recognized as a part of the common law, it forever remains a part
of the system, until it is altered by the legislature. A doctrine of the common law settled three hundred years ago is
just as conclusive now in a case, which falls within it, as it
was then. No court of justice can disregard it, or dispense
with it; and nothing short of legislative power can abrogate
it. With us the notion that courts of justice ought to be at
liberty from time to time to change established doctrines, to
suit their own views of convenience or policy, would be
treated as a most alarming dogma, subversive of some of
the best rights of a free people, and especially of the right
to have justice administered upon certain fixed and known
principles.  Our ancestors adopted in its fullest meaning
the maxim, that it is a wretched servitude, where the law is
vague and uncertain. Hence it is, that precedents in our
courts of justice are of very high authority, and, with rare
exceptions, conclusive as to the principles, which they decide
and establish; and subsequent judges are not at liberty to
depart from them, when they have once become a rule of
rights or of property. The whole of the judicial institutions
in England and America rest upon this doctrine as their only
solid foundation. But upon the continent of Europe, or at
least in some parts of it, the case is very different. The
decisions of courts of justice, (technically called jurisprudence) go no farther than to! decide the merits of the particular case. They furnish no determinate rule for other cases
of a like nature. Precedents are not of absolute authority,
or, in a general sense, of any cogent obligation. The doctrines of the judges of one age may be, and are disregarded
by those of another. And it is quite competent for an advocate to insist upon principles and reasonings which are adverse




720             MISCELLANEOUS WRITINGS.
to a long train of decisions, and entirely subversive of their
authority. The objection, therefore, so far as it can apply to
America and England, is an objection, not to a code, but to
the common law itself; for the common law has this very
inflexibility of character, and permanence of doctrine, of
which the objection complains. With us in Massachusetts,
the common law is now just as much of general obligation,
and of general fixedness in its doctrines, and as binding upon
courts of justice, as it would be if reduced to a code, and
no more. When new cases arise, they are governed (as we
have seen) by such analogies to those which have already
been decided, or by such principles of natural justice, as
are properly applicable to them.  When old cases arise, the
established doctrines furnish the sole rule, by which they are
decided.
But though this last objection is principally, if not exclusively, confined to the jurists of continental Europe, there is
one of a kindred nature, which is sometimes pressed by the
opponents of codification on both sides of the Atlantic. It
is, that the moment, that the common law shall become the
text of a positive.code, it will cease to be common law; it
will be inflexible in its applications, and subject to none of
those implied and reasonable exceptions and modifications,
which now constitute its peculiar character. This objection
would certainly have much weight, if it were a necessary
result, that the codification of the common law wxould thus
destroy its flexibility, and reduce it to a hard and unyielding
positive text. But the Commissioners are of opinion, that
no such result would or ought to follow. On the contrary,
they propose (as has been already suggested) that the reduction of the common law to a text should not be held to change
the nature or character of the interpretation or application of
its doctrines.
An objection of a different character, and which, indeed,
is that, which in one shape or another is found afloat through
the cornmunity, is, that every code of the common law must




CODIFICATION OF THE COMMON LAW.           721
necessarily be imperfect, and leave much still to be explained
by very imperfect lights; that so far as the principles and
details of the common law are capable of codification, they
are, or are supposed to be, now well known, and a code is
not necessary to ascertain or promulgate them; that the
benefits of a code must, therefore, be slight and unimportant, since it can provide for comparatively few cases of real
doubt, and may even lead to mischievous errors in reasoning
or application of the text.
This objection may perhaps be best answered by a consideration of the benefits which may be derived from a codification of the common law. It has been already admitted,
that every such codification must, from the nature of things,
be imperfect; for it never can embrace all the past, present,
and future changes in society, which may require new rules
to govern them. But this is an objection, in its general form,
founded upon the absolute infirmity of human nature, for
every purpose of perfect action, and is not limited to codification.  It by no means follows, that, because legislation
cannot do every thing, or foresee every thing, therefore no
legislation should exist, either to remedy evils, to ascertain
rights, or to secure property. The benefits proposed by a
code may be summed up in the following propositions.
I. In the first place, certainty, clearness and facility of
reference are of great importance in all matters of law, which
concern the public generally. It is desirable, in every community, that the laws which govern the rights, daties, relations, and business of the people, should, as far as practicable,
be accessible to them for daily use or consultation. No one,
indeed, is so rash as to suppose, that, with the very different
occupations, means of education, and opportunities of leisure,
of the mass of the people, it is possible for them fully or
accurately to understand all the laws in their full force and
extent, This must, under ail circumstances, require thorough
study, laborious diligenlce, and a great variety of accessary
knowledge. But it does not follow, that, because all cannot
61




722             MISCELLANEOUS WRITINGS.
be attained, therefore the more general and useful rules may
not be brought under the notice of the people, and, according
to their attainments and leisure, be made the means of
guarding them from gross mistakes in business, or gross violations of the rights of others. Now, certainly, if a rule or
doctrine of the common law exists in a determinate form or
with a determinate certainty, it is capable of being so expressed in the text of a code. If so capable, then it is not
easy to perceive why it should not be so expressed, that it
may furnish a guide for inquirers, to clear away a private
doubt, or to satisfy a hesitating judgment.
But this is not all. At present, the known rules and doctrines of the common law are spread over many ponderous
volumes. They are nowhere collected together in a concise
and systematic form, having a positive legislative sanction.
They are to be gathered from treatises upon distinct and
independent subjects of very different merit and accuracy;
from digests and abridgments; from books of practice and
from professional practice; and above all, from books of
reports of adjudged cases, many hundreds of which now
exist, and which require to be painfully and laboriously con.
sulted in order to ascertain them. These rules and doctrines
may be well known and well understood by eminent lawyers
and judges, by profound students, who possess an ample
library of law books, and by others, who devote their whole
leisure to the purpose. And yet men less eminent, less studious, or with less means to provide a library, or to consult
it, may be unable to arrive at the same certainty, and may
even be misled by their partial examinations into serious
errors and mistake,. A leading rule may have some exceptions, which have escaped the researches of the party, and
yet be as well established as the rule itself. Many law suits
are now founded upon error~ and mistakes of this sort,
which the mere imperfection of the means within the reach
of the interested party, or of his conusel, has unavoidably
produced. A single line of a code, properly and accurately




CODIFICATION OF THE COMMON LAW.        723
prepared upon such a subject, might at once have dissipated
every doubt and uncertainty, as to the nature, extent, and
operation of the existing rule.
II. And this leads the Commissioners to remark, in the
next place, that one great use of a code of the common law,
in its principal branches, will be the abridgment of professional as well as of private labor, in ascertaining and advising upon a rule or doctrine of that law. A vast deal of time
is now necessarily consumed, if not wasted, in ascertaining
the precise bearing and result of various cases, which have
been decided touching a particular topic. If the result is at
all contested by the adverse party, no counsellor would feel
safe without a thorough examination of all the leading cases,
(even though they should spread over centuries,) lest he
should be surprised at the argument by a loose dictum, a
questionable authority, or an ambiguous statement, either
distinguishing or controlling the case before him. Hence it
is, that lawyers in the fullest practice are compelled to the
most severe studies, upon points upon which they do not
entertain much if any doubt, lest, in the long array of cases
which may be cited upon any disputed or undisputed point,
there should be some intimation which might injuriously
affect their client's rights or remedy. And yet, it is not too
much to say, that often a single page of a code would contain, in a clear and explicit statement, all that the researches
of a week, or even of a month, would scarcely justify them
in affirming with an unfaltering confidence.
One great advantage, therefore, of a code, an advantage
which in a practical view can scarcely be over-estimated, is,
that it supersedes the necessity, in ordinary cases at least, of
very elaborate researches into other books; and, indeed, it
often supersedes in all cases, but those of rare and extraordinary occurrence, the necessity of consulting an immense
mass of learned collections and digests of antecedent decisions.
This has accordingly been found to be one of the ordinary




724            MISCELLANEOUS WRITINGS.
results of codification, whenever it has been successfully
accomplished. Thus, we are informed, that the codes of
Justinian superseded for ordinary use some camels' loads of
written Commentaries on the law. And it is notorious that
the civil code of France, (commonly called the Napoleon
code,) has, in like manner, thrown out of the daily consultation of jurists a voluminous bulk of treatises upon the customary and provincial law of that country. There are cases,
indeed, in which now those voluminous collections must still
be consulted. But the occasions are, probably, not one in a
hundred of what they were before that code was promulgated. In like manner, it may be unhesitatingly affirmed,
that the maritime and commercial ordinances of Louis XIV,
of 1673, and 1681, not only put an end to a vast extent of
litigation, in the different maritime provinces of that kingdom, but also furnished rules so clear and so equitable as to
have been adopted as the basis of much of the maritime law
of other countries, and especially of that of England.
III. In the next place, it may be stated, in connection
with the preceding head, and as illustrative of it, that there
are in the common law many points, which, though on the
whole now established by a considerable weight of judicial
authority, are not absolutely beyond the reach of forensic
controversy, if learned counsel should choose to stir them.
There are, for example, many questions which have given
rise to litigation in different ages, and upon which there may
be found in the reports, not only occasional diversities of
judicial opinion, but many nice distinctions and differences,
and many incidental dicta which serve greatly to perplex the
inquiries of the ablest lawyers. Where authorities are to be
found on each side of a point; where the circumstances of
cases, very nearly resembling each other in most respects, are
yet distinguishable from each other by nice shades of difference, or have been so distinguished, thus furnishing grounds
for reasoning and controversy, as to the precise extent of a
principle; no judges would feel at liberty to stop the argu



CODIFICATION OF THE COMIMON LAW.       72&5
ment, -although, in their judgment, the weight of authority
should be clearly against the suggested distinction or difference. Much of the time of courts of justice is consumed
in arguments of this sort, where there are numerous cases;
with some slight differences of circumstances, bearing on the
same general rule, all of which may be required to be examined and distinguished. It was said by an eminent judge
(Lord Eldon) upon one occasion, where some question of
artificial or technical law was under di'scusion before him,
that there were upwards of three hundred cases bearing on
that question, which had already been decided. To master
them, with all their minute distinctions of circumstances,
would of itself be a vast labor. And yet it is not perhaps
too much to say, that four or five lines of text in a code,
stating the true general rule, deducible from the best of them,
would at once have put aside the necessity of any further
consideration of most of these cases.
There are, besides, numerous points, upon which there are
now to be found conflicting decisions, or dicta of courts of
justice, which shake the authority of certain doctrines. In
cases of this sort, it seems desirable to establish, which of
these decisions constitutes the true rule, or at least to give a
positive affirmance of the true rule, when it can be fairly
ascertained what that is. -And perhaps also, in some instances
of daily practical importance, where there is a real doubt
what the true rule of the common law is, it may not be without use to fix it in a like positive form.
The Commissioners do not indulge the rash expectation,
that any code of the known existing common iaw will dry
up all the common sources of litigation. New cases must
arise, which no code can provide for, or even Ascertain. These,must necessarily be left to be disposed of by courts of justice,.as they shall occur in future. But the Commissioners are of
opinion, that a code, which shall contain the clearly established principles of the common law, will be attended with
great benefits to the public, for the reasons already stated.
615




726             MISCELLANEOUS WRITINGS.
It will show, what the existing law is, as far as it goes, in a
clear and intelligible manner. It will have a tendency to
suppress useless and expensive litigation.  It will greatly
abridge the labors of judges, as well as of the profession, by
furnishing a starting point for future discussions, instead of
imposing the necessity of constant researches through all the
past annals of the law.
Having stated these general reasons in favor of the reduction to a code of the common law of Massachusetts, to a
limited extent, we are next naturally led to the inquiry, what
portions of the common law should or may be reduced to such
a code?
For the purpose of a more exact consideration of this subject,
the common law of Massachusetts may be distinguished into
four classes.
I. That, which is potentially in existence, but, in a great
measure, obsolete; and that, which is of rare occurrence in
practice, or doubtful and obscure in regard to its nature, extent,
and operation in the Commonwealth.
II; That, which, though positively in existence and known
as a part of the common law, and admitting of general application, has yet been so modified or altered by the legislature,
as to be of but limited use in practice.
II. That, which is of daily occurrence in the common
business of life, and furnishes the rules for the rights of persons
and the rights of property of the community at large —in
civil cases.
IV. Thatwhich defines and punishes crimes, and ascertains
the rules of promeeding in criminal cases.
In regard to ihe first class, it seems to the Commissioners
wholly unnecessary to attempt any codification of so much of
our common law as ialls within its reach. It would be extremely difficult to draw up any exact text of this portion of
our common law, from the obscurity of the proper materials,
and from the difficulty in many cases of ascertaining the




CODIFICATION OF THE COMMON LAW.        727
exact boundaries between what is merely obsolete, and what
is now a component part of that law. And, after all, if any
codification thereof was made, it would rather be an incumbrance upon the general text, than any real aid to subsequent
inquiries. Thus, for example, it may be a matter of some
uncertainty, whether certain common law remedies, respecting
real estate, are, or were a part of the common law in force
here: -such as writs of assize, of common, of pasture, of
admeasurement, of pasture, of partition, of admeasurement of
dower, of cosinage, certain kinds of writs of entry, writs of
ejectione firmae, writs of warrantia chartse, and others of a
similar nature. Of others, again, there is no doubt of their
actual legal existence; such as, for example, fines and common recoveries; and yet they are now scarcely known in
practice, having been superseded by other more convenient
modes of transferring real estate. And yet the learning of
the common law upon the subject of fines and recoveries is
full of intrinsic difficulties and niceties, and technical principies, which it would require many pages to state, and many
more to make intelligible to the common reader. The same
remarks are applicable to the common law respecting markets,
outlawry, prerogative, voucher, waife, and other heads of a
like nature, remote from our ordinary inquiries.
In regard to the second class, there seems to be equal doubt
of the solid utility of any attempt at codification. The great
extent, to which legislative enactments have gone in the modification, alteration and superseding of large portions of this
class, directly or indirectly, would make the task of selecting
that, which is in force, exceedingly embarrassing, and perhaps
perilous. Thus, for example, the common law respecting
amendments of process and proceedings, bail, distress, feoffments, and other common law modes of conveyancing, forfeitures, mesne and final process, sheriffs and trials, have undergone
so many modifications, and alterations, and partial abrogations,
that it is not easy to say, how much of the very complicated
doctrines of the common law on most of these topics is now




728             MISCELLANEOUS WRITINGS.
actually in force; for in practice they are of rare occurrence
and application. But a still more striking illustration may
be found in the subject of special pleading. It is well known,
that this constitutes one of the most purely technical, acute
and intricate subdivisions of the common law; and even the
doctrines relative to a small branch only of it, that of abatement, though rare in practice, is full of nice and over curious
learning. The legislature, by an act passed at its last session,
have provided, that all matters of law or of fact in defence, in
any civil action, may be given in evidence under the general
issue, and no other plea in bar of such action shall be pleaded.
The effect of this enactment is, to abolish so much of this
branch of the law as relates to special pleas, technically so
called. But it leaves in full force all the doctrines of pleading
in regard to declarations, in regard to pleadings in abatement,
in regard to the general issue, and in regard to general demurrers to the declaration. It would seem, under these circumstances, wholly unnecessary to reduce to a code the principles
of pleading applicable to special pleas, technically so called.
The reduction to a code of the doctrines relative to pleadings
in abatement, which is full of intricacy, and to a considerable
degree, obsolete in practice, would seem equally unnecessary.
The doctrines of pleading still applicable to declarations, to
general demurrers, and to the general issue, are of a very comprehensive nature, and abound with artificial and technical
principles, and it would be a task of no small difficulty to say,
in many cases, to what extent many of these principles reach,
and how far they are governed by rules ordinarily applied to
special pleas, technically so called. For these reasons, the
Commissioners are of opinion, that it is not advisable, at
present, to codify this branch of our jurisprudence. It would
rather seem desirable, if any thing is to be done, to reduce it
to a more simple form, and disembarrass it of some of its
cumbrous and inconvenient appendages.
The third class is that, to which the Commissioners are of
opinion, that the labors of codification should be strenuously




CODIFICATION OF THE COMMON LAW.         729
and sedulously directed. This class comprehends three great
branches of the law. I. That, which respects the civil rights,
capacities and duties of persons, considered by themselves, or
in their social and other relations to other persons; and the
remedies resulting from those rights, capacities and duties.
II. That, which respects the rights and titles to real and
personal property, and the incidents thereto, and the remedies, by which they are protected and vindicated. III. The
rights, duties and claims arising from contracts, in the largest
sense of that term, comprehending express contracts, such as
bonds and obligations, conditions, conveyances, covenants,
and other positive stipulations between parties competent to
contract; and implied contracts, which result by operation of
law, either from the implied consent and intentions of the
parties, or from the dictates of natural justice in furtherance
of right, or in suppression of wrong. Connected with this
branch necessarily is the consideration of the remedies applicable to the various kinds of contracts; some of which stand
upon principles purely technical, and others again upon principles of a more general nature.
Many of the most important portions of our common law
applicable to the first and second heads, are now so well
ascertained and well defined, as to be capable of being
reduced to a positive text. Some of them are indeed of
great intricacy; but still capable of being in a great measure
reduced to such a text. Perhaps the most complicated of
these will be found to be, the rights, and capacities, and
duties of guardians and wards, of infants generally, of husband and wife, of executors and administrators and administrations, of corporations, and the rights and titles growing out
of last wills and testaments. The latter are of singular intricacy and nicety of detail, arising from the almost infinite
variety of language and provisions to be found in last wills
and testaments, from the ignorance, or peculiar views, or
imperfect expressions of intention by different testators. And
yet, it may with truth be said, that even the reduction to




730             MISCELLANEOUS WRITINGS.
a code of the rules and principles, which have been deduced
by a great writer (Mr. Fearne) from a most acute and close
survey of a single head of this subject, that of contingent
remainders and executory devises, in the very language, in
which he has expressed them, would of itself be no inconsiderable advantage to the profession, as well as to the public.
It would almost supersede, in cases constantly arising, the
necessity of a daily consultation of authorities, spreading
over centuries, and so numerous and various in their application, as to task the time and diligence of the ablest lawyers to a most exhausting extent. They would, at least,
have a point of rest, at which they might repose, secure as
to the past.
But it is principally in the third and last class, that the
Commissioners are of opinion, that the benefits of a code
will be most extensively felt, and in which the task may be
performed with the greatest certainty of success. It is true,
that some branches of the law of contracts contain rules and
principles of a technical and artificial nature, not well adapted
to the modern exigencies of society. Examples of this sort
may be found in the law applicable to obligations, conditions,
covenants, and certain classes of conveyances. But, in general, the law of contracts may be affirmed to be founded in
sound sense, and adapted to the ends of social justice. Especially may this be affirmed of the law of contracts, which
has been developed and established within the last century.
Even the law of contracts, applicable to the old forms of
obligations and covenants and conveyances, has been, by the
cautious expositions of great judges in different ages, reduced
to a high degree of certainty. But commercial contracts are
eminently entitled to be deemed in this predicament; and
under the forming hands of a succession of learned judges
and jurists for the last century, they have attained a scientific
precision, and accuracy, and clearness, which give them an
indisputable title to be treated as a fixed system of national
jurisprudence. In regard to commercial contractst it may be




CODIFICATION OF THE COMMON LAW.        731
affirmed without hesitation, that the general principles which
define and regulate them, and even the subordinate details of
those principles, to a very great extent, are now capable of
being put in a regular order, and announced in determinate
propositions in the text of a code. Among these contracts,
the Commissioners would especially recommend as the sub.
jects of a code the following titles, viz.: the law of agency,
of bailments, of guaranty, of suretyship, of bills of exchange,
of promissory notes, of insurance, and of partnership. They
would also recommend, in like manner, the law of navigation
and shipping and maritime contracts, including therein the:
law respecting the rights, duties and authorities of owners
and part-owners, and masters, and seamen, and shippers, and
passengers; the law of bottomry, of charter-parties, bills of
lading, and other contracts of affreightment, including therein
the law of freight; and the law of general average, of salvage,
and of seamen's wages. These branches of commercial and
maritime law are not only capable of being put into the
form of a positive text, but of being condensed into a text of
a comparatively small extent. It is not too much to affirms
that the whole law of insurance, as far as it has been ascertained and established by judicial decisions and otherwise,
may now be stated in a text not exceeding thirty pages of the
ordinary size of octavos. In point of fact, it is embraced in
the commercial code of France in less than half that space,
and most of the principles of that part of the code are the
same as those of our law.
In the next place, the Commissioners are of opinion, as
indeed they have already intimated, that the common law, as
to crimes and punishments, and the incidents thereto, admits
of being generally reduced to a code with accuracy and pre,
cision. If it can be done, it seems to the Commissioners, that
the public at large have a right to claim from the legislature,
that it shall be done. One of the most obvious dictates of
reason is, that public crimes, which are to affect every citizen,
should, as far as practicable, be made known to all. It is
wholly unnecessary for the Commissioners to expound the




732             MISCELLANEOUS WRITINGS.
importance of this truth, as it cannot well escape the notice
of every intelligent legislator. It is fortunate, that in the
present state of the criminal law, there is so much certainty
as to the nature and punishment of crimes, at the common
law, and the incidents and modes of proceeding therein, that
it will not be found a very difficult task, to reduce most of
the important doctrines and rules to a positive text.
Connected with these extensive branches of the common
law, both civil and criminal, there remains the grave subject
of the law of evidence, involving not merely questions respecting the competency and credibility of testimony, but the general rules for the admissibility of written and parol evidence
on particular issues. Owing to the invaluable labors of the
eminent judges of the last half century, this subject is nowv,
with a few unimportant anomalies, capable of a scientific
arrangement and determinate exposition in its general principles, and in many of its most useful details. The rules of evidence have been truly said to constitute the best, if not the only
real security for the lives, the personal rights, and the property
of all our citizens; and, therefore, the knowledge of them is
of infinite moment to the public, as well as to the profession.
Any code, which does not embrace them, must be pronounced
to be in its very constitution radically defective. The Commissioners, therefore, earnestly recommend the codification of
the law of evidence, as among the first objects for the deliberation of the Legislature.
The Commissioners have thus given a very summary view
of their opinions respecting the codification of our common
law.  Every topic, which they have ventured to suggest,
might easily have been expanded into a great variety of aux.
iliary considerations. But it has seemed to them sufficient to
point out the general grounds of their opinions, and to leave
to the wisdom of the legislature a full review of them.
In concluding this part of the subject, it seems proper for
the Commissioners to suggest, though it does not exactly fall
within the strict terms of their commission, that if a code
should be framed upon any or all of the topics which they




CODIFICATION OF THE COMMON LAW.        733
have ventured to recommend, it will afford a fit opportunity
for the legislature to supply some of the acknowledged defects, to cure some of the admitted anomalies, and to correct
some of the erroneous doctrines, which, in a long succession
of ages, have gradually been ingrafted upon our common
law. This, to be sure, ought to be done with a cautious and
skilful hand, and with a deep sense of the delicacy of intermeddling with established principles. If, however, no changes
are attempted except such as have the sanction of experience,
and the support and approbation of enlightened judges and
jurists, much may be done to introduce harmony, and consistency, and simplicity into the general system.
It now only remains for the Commissioners to express their
opinion, as to the plan or plans, by which such codification,
if undertaken, can be best accomplished. Looking to the
extent and variety of the labor, as well as to the learning and
ability required for the task, the Commissioners think, that it
will be indispensable to employ at least five commissioners, of
high standing in the profession, and otherwise suitably qualified, to reduce those portions of our common law to a code
or codes, which the Commissioners have proposed. Much
time must necessarily be devoted exclusively to the subject;
and, with all the aids which can be obtained, several years
will be required for the completion of the entire enterprise.
During the progress of it, the Commissioners must have frequent meetings for discussion, as well as for a careful examination and scrupulous review of the labors of each other.
Perhaps it may be found advisable to authorize the Commissioners occasionally to employ some assistants, having extraordinary qualifications, to bring together the materials of
a particular head for the more deliberate consideration of the
Commissioners. In this way the progress of the work might
be greatly accelerated, at a comparatively small expense.
And it may be properly left to the Commissioners to decide,
whether it will be best to lay before the legislature the result
of their labors, from time to time, as particular topics shall be
62




734            MISCELLANEOUS WRITINGS.
reduced to a text; or to await the accomplishment of the
entire scheme, and then to submit it as a whole to the legislature.
As the Commissioners may find it necessary to open a wide
correspondence with members of the profession, in various
parts of the United States, as well as to perform many incidental duties, requiring the aid of a secretary, it is respectfully
submitted, that they should be authorized to appoint one,
with a suitable compensation.
The Commissioners do not understand that they are required, by their commission, to lay before the legislature the
details of the plan or plans, by which the system of codification should be carried into effect, or the particular branches
of the common law, which it should embrace, or any analytical exhibition of the mode or arrangement, or contents of the
code. They presume, that these matters will properly appertain, and indeed ought to appertain, to the duties of the
Commissioners, who shall be appointed to prepare such a
code, if the legislature should choose to sanction the project.
It is obvious, that, in the progress of the investigations, necessary to complete so extensive a labor, many new views must
continually arise, and many amendments and improvements
of the first plan may be suggested by the experience of the
Commissioners, and a more thorough and close examination
of particular topics.
Such are the expositions, which the Commissioners have
thought it their duty to present to the consideration of the
legislature, upon the interesting and important subject of
their commission.
All which is most respectfully submitted.
JOSEPH STORY,
THERON METCALF,
SIMON GREENLEAF,
CHARLES E. FORBES,
LUTHER S. CUSHING,
Commissioners.




SPEECH AT THE CENTENNIAL CELEBRATION OF
HARVARD UNIVERSITY.
MR. PRESIDENT, I rise with unaffected diffidence to address
you on the present occasion, and to return thanks for the
toast just announced from the Chair. The novelty of the circumstances under which we are assembled, as well as my
own unexpected position at this moment, place me in a state
of great embarrassment. In the first place, if invited here as
a member of the Corporation of Harvard College, I had consoled myself with the reflection, that a matter of law would
be my especial protection for an unbroken silence. I think
that my Lord Coke has somewhere told us, and at all events
the doctrine is assuredly as old as his day, that a corporation
has no soul; nor has it any natural body; but only an artificial existence, or legal entity; so that it cannot manifest its
intentions by any personal acts or oral discourse, and therefore it can act and speak only under its common seal, or at
all events through its acknowledged living head; and through
that head our Corporation has already powerfully and eloquently spoken this day. But although I have hitherto had
great confidence in the law, as on my side, it seems that it
has failed to be my security in the present emergency.
In the next place, I had placed equal reliance upon a matter of fact. I came here with a distinct understanding, that
on this most interesting anniversary, all of us should move in
procession, and take our places at the tables, in the order of
our respective college classes; and well I knew, that, as a




736             MISCELLANEOUS WRITINGS.
member of the class of 179S, in the midst of that phalanx, I
should be secure from all intrusion from without, so that
I might comfortably say, with honest John Falstaff, " Shall I
not take mine ease in mine own inn?"  But here, again,
I have been mistaken in the matter of fact; for the place
from which I now address you, abundantly proves, that the
move and the remove have been greatly to my disquiet. In
short, sir, I am in the same unhappy predicament here, in
which many poor gentlemen find themselves in some other
places, with a total failure of matter of law and matter of fact
for my justification or defence, touching the demand for a
speech.
But, not to trouble you with any further apologies, allow
me in a graver tone to say, that few occasions could be of
more deep and permanent interest than the present. When
I look around me, and see the numerous assemblage of students and alumni who grace this celebration, I cannot but
feel a lively sensibility and unaffected gratitude, in being perrnitted to witness such a scene, under such auspices. I cannot turn my eyes towards the neighboring collegiate halls and
academical shades, without the most touching reminiscences
of former days passed there, in the season of gay and unsuspicious youth. I realize in its full force the beautiful lan.
guage of the poet: —
"I feel the gales, that from ye blow,
A momentary bliss bestow,
As, waving fresh their gladsome wing,
My weary soul they seem to soothe,
And, redolent of joy and youth,
To breathe a second spring."
Many of the topics, which naturally crowd upon the mind
under such circumstances, have already been in a great measure exhausted in the excellent address to which we have
just listened from the Chair, and in the elaborate and powerful discourse, which occupied our attention in the morning.
At this late hour, I have little to add to what has been so




CENTENNIAL CELEBRATION OF HARVARD UNIVERSITY.  737
well discussed in them. My worthy friend who last spoke
(the learned Dean of the Faculty of Divinity) has placed
before us the labors and the services of the Puritan clergy in
establishing and protecting and aiding this University, in
their true light. He has but done them the justice of bestowing warm praise upon their prompt zeal, their untiring fidelity, and their constant devotion to its interests. It was
founded by them for the cause of religion and truth; and I
trust it will forever remain steadfast and immovable in that
cause.
In regard to the complimentary notice of the Law School
of the University, in the toast from the Chair, I cannot but
receive it with a deep consciousness of the kindness which
dictated it, and of the small claim that I have to appropriate
to rmyself personally the commendation which it implies. No
one appreciates more fully than myself the general importance of the study of the law. No one places a higher value
upon that science, as the great instrument by which society
is held together, and the cause of public justice is maintained
and vindicated. Without it, neither liberty, nor property, nor
life, nor that which is even dearer than life, a good reputation,
is for a moment secure. It is, in short, the great elastic power
which pervades and embraces every human relation. It links
man to man by so many mutual ties, and duties, and dependencies, that, though often silent and unseen in its operations,
it becomes at once the minister to his social necessities, and
the guardian of his social virtues. No one, therefore, can
hold in more reverence than myself, the memory of that excellent man, the founder of the Professorship which I have
now the honor to hold, whose bounty is worthy of all praise;
for its noble object is to inculcate, through all generations,
the doctrine of the supremacy of the constitution and laws.
But although I am conscious of my own inability to carry
into full effect his admirable design, I trust that it will not be
thought presumptuous in me to indulge the hope, that there
may hereafter be found, among the pupils of this school of
62*




738            MISCELLANEOUS WRITINGS.
jurisprudence, some master spirit, who will task himself to
its accomplishment, and thereby secure to himself and the
school an enviable immortality. To such a one I would say,
"Bate not a jot
Of heart or hope; but still bear up and steer
Right onward."
But I confess that my thoughts have been led in a somewhat different direction from that of the law by the festivities of this day. The very spot where we are assembled is
consecrated by a thousand endearing associations of the past.
The very name of Cambridge compels us to cast our eyes
across the Atlantic, and brings up a glowing gratitude for our
unspeakable obligations to the parent University, whose name
we proudly bear, and have borne for two centuries. To her
we owe many of our earliest scholars and best benefactors,
many of our civil rulers and our ecclesiastical leaders. They
nursed our infant institution in their bosoms. They cherished
the cause of letters and learning with a holy ardor and unconquered diligence, in this then scarcely reclaimed wvilderness. They stamped the image of their own exalted piety
and patient virtues upon their own age. They refined, while
they animated, the strong lineaments of the Puritan character.
They planted the precious seed, whose mature fruits we are
now enjoying in a rich and luxuriant harvest. I do not say
too much then, when I proclaim, that we owe unspeakable
obligations to the ancient and venerable University of Cambridge in old England. Let it be recollected, that there our
pious founder, John Harvard, of glorious memory, received
his education.  There, also, our second President, Charles
Chauncy, gathered the solid learning, which he so liberally
bestowed upon his pupils here. There, also, the first three
ministers of the first parish of our own Cambridge, the Rev. Mlr.
Hooker, the Rev. Mr. Stone, and the Rev. Mr. Shepard, were
matriculated, and in Emanuel College laid the foundations of
5hat ample knowledge of things human and divine, which




CENTENNIAL CELEBRATION OF HARVARD UNIVERSITY.   739
made them the ornaments of their own age, and the pride of
succeeding generations. So numerous, indeed, was the class
of educated men from this stock among our civil and clerical
fathers, that it has been stated by one of our own historians,
of almost unexampled minuteness and accuracy of research,
that there were, as early as 1638, forty or fifty sons of that
University dwelling in the sparse villages of New England,
being one for every two hundred or two hundred and fifty
inhabitants.
We may, therefore, indulge a just pride in claiming our
kindred with and lineage from that University. Nor ought
we to desire to trace back to any higher origin our instruction
in literature and religion, or our love of science and liberty.
That ancient University numbers among her sons some of
the brightest names in the annals of British renown. Bacon,
Milton, Newton, were her own. And where in the history, I
do not say of England, but of the world, can we point to men
of more extraordinary genius, more profound attainments,
more comprehensive researches, or more enduring fame? It
seems scarcely the coloring of poetry to declare, that
" They passed the flaming bounds of place and time,"
and saw
"The living throne, the sapphire blaze,
Where angels tremble while they gaze."
Mr. President, I will not detain you or the company any
longer. I beg leave to offer as a toast, -
" Our Ancient Mother, the University of Cambridge in old
England. " Salve, magrna Parens, -- maggna Viruim."




LITERARY TENDENCIES OF THE TIMES.
A DISCOURSE PRONOUNCED BEFORE THE SOCIETY OF THE ALUMNI
OF HARVARD UNIVERSITY, AT THEIR FIRST ANNIVERSARY, AUGUST
23, 1842.
THERE are few occasions, on which we could have been
assembled, which would awaken more varied feelings, or possess a more profound interest, than that, which now brings
us together. We stand here, at the distance of two hundred
years, upon the very spot where stood the first class, having
completed their academical course, ready to receive the earliest honors of this our parent University. From the pious
lips of the first President, whose remains lie in the neighboring churchyard, they received their farewell benediction, -in
the presence of the venerable founders of the colony, - amidst
the deep shades of the surrounding forests, and under the
roof of the simple edifice, first reared to God and the Church
in this stranger land. Few, indeed, were they in number,
but not faint or faltering in the support of religion and learning. The little Band of Nine may well be presumed upon
that occasion to have sought utterance of their own thoughts
in the very language of the Governor of the Colony (a short
time afterwards) in his appeal to the General Court for aid
to the College. " If this work of the College be thought fit
to be upheld and continued, as we hope that considerations
of the glory of God, the honorable interest of the country,
the good of all posterity, and the experience of the benefits
and blessings thereof, will constrain all men to say it is, then
something must effectually be done for help in the premises."




LITERARY TENDENCIES OF THE TIMES.       741
And that something (said these youths) must be done by us,
that we may establish the foundations, and perpetuate the
fame, of this Institution. We are the first-born, and will not
dishonor our parentage. Wherever our lots in life may be
cast, to this blessed spot will we turn with a holy reverence.
For the prosperity of this college shall our daily prayers
ascend. Here shall our last thoughts repose. And whatever
of earthly honors shall belong to us, to this altar shall they
be brought, as the first-fruits of grateful children to the best
of mothers. Worthily, indeed, were those vows performed.
They went forth into the world with undaunted zeal to the
great work, and became eminent in the church and the state.
Their mouldering relics have, indeed, long since shared the
common fate, and returned to the dust. But their good deeds
still survive in the memories of good men, and shed a mild
and balmy light over the annals of the past, as well as over
the honors of the present days.
And we too, are assembled here, - for the first time, - on
an occasion equally worthy of commemoration, and full of
responsible duties. We meet to celebrate the first anniversary of the society of all the Alumni of Harvard. We meet
without any distinction of sect or party, or of rank or profession, in church or in state, in literature or in science. We
meet, as a band of brothers, educated in the bosom of the
same indulgent parent, and drinking from the same fountain,
which has from the beginning poured forth its pure and
sparkling streams of knowledge to give life and glory to our
land. Our fellowship is designed to be,- as it should be,of the most liberal and comprehensive character, conceived
in the spirit of catholic benevolence, asking no creed but the
love of letters, seeking no end, but the encouragement of
learning, and imposing no conditions, which may lead to
jealousy or ambitious strife. In short, we meet for peace
and for union; to devote one day in the year to academical
intercourse and the amenities of scholars. We would shake
off from our feet the dust, gathered, not only in the by-ways




742            MISCELLANEOUS WRITINGS.
and highways of life, but in the fervid race for public distinction. We would lay aside for the hour, the garlands and the
palms, and the emblems of victory. Viridesque coronce, et
palmce pretium victoribus.
W7e would enter this temple with hearts overflowing with
grateful recollections of the past, and earnest hopes of the
future. We would lay upon this family altar our tribute of
affection, and celebrate with our whole hearts the birthday of
our matriculation.  Salve, - magna Parens, - magna Virinm.
Under such circumstances I am but too conscious of my
own inability to perform the duties assigned to me in a manner suited to the dignity of the occasion.  It would have
been far more grateful to me, that the task should, according
to your first choice, have been executed by your venerable
President, whose ripe scholarship, and rare endowments, and
intellectual energy, have so long attracted the public admiration. He seems, indeed, to form the connecting link between
the present and the past, standing, as it were, upon the verge
of that dim twilight of life, where the twinkling stars, in our
catalogue, alternately appear, and vanish, as the shades of the
evening shut down upon the passing generations.  Sic itur
ad astra.
I am conscious, also, in whose presence I stand, and whose
instructed judgments I am called upon to address.  I see
before me the veterans, who, having won the laurels of their
day, seek now in retirement to enjoy the dignity and repose
of learned leisure. I see before me those, who occupy the
high ranks of professional life. The venerable ministers of
the Gospel, whose critical spirit has illumined the dark passages of Scripture, and given new vigor to the sublime truths
of religion. I see the professors of the medical art, whose
genius has curiously studied the maladies of our race, and
whose skill has administered succor to thousands, who were
ready to perish. I see the jurists, who, in the judgment-seat,
or at the bar, have applied their profound knowledge to the
support of the civil institutions of society, to the protection




LITERARY TENDENCIES OF THE TIMES.        743
of innocence, to the fearless vindication of right, and to the
triumph of justice over popular clamor and political cabal.
I see the statesmen, whose enlarged and comprehensive minds
have maintained the glorious struggle for the support of the
principles of the Constitution, which may, if any thing human
can, perpetuate the blessings of liberty, and save us from
becoming a byword and reproach among the nations of the
earth. I see the elegant and quiet scholars, who have given
their days and nights to illustrate the annals of the past, or
imparted a warm  and sunny glow to the literature of the
present. I see the ambitious youth, who, having completed
their preparatory studies, stand at the starting-post of the
course, impatient of delays, and panting for the toils and the
rewards of the victories of life. The Olympic dust has not
as yet even soiled their sandals. Nor can they as yet feel the
force of that solemn admonition: " Let not him, that girdeth
on his harness, boast himself, as he that putteth it off."
It is, I repeat it, under such circumstances, that I feel with
unaffected sensibility the difficulties of the task, which I have
assumed. Amidst a crowd of topics, which rush upon the
mind, I would fain select some one, not unworthy the interests and associations of the occasion. After some hesitation
nothing has occurred to me more appropriate, than some suggestions on the dangers and difficulties and duties of scholars
in our own age, and especially in our own country.
If I were called upon to say, in one word, what constitutes
the predominant danger of our day, I should say, that it is
the tendency to ultraism of all sorts, and in all directions. In
all ages there have probably been found among men of letters
three distinct classes in opposition to each other. But never
until our day have the lines of separation between them been
so broad, and so sharply defined. These classes are, - The
lovers of the past, —the devoted admirers of the present,the enthusiastic prophets of the future. It is of course, that
the world of letters, like the natural world, should appear
under very different aspects and relations to each of these




744             MISCELLANEOUS WRITINGS.
classes. The antiquarian dwells with intense pleasure upon
the olden times, as at once their historian and eulogist. He
lives, as it were, among the dead, and esteems it his highest
privilege to remember the forgotten, and to chisel deeper the
inscriptions upon the tombs of the renowned. He gathers
up the dilapidated fragments with a holy reverence, and finds
in each of them the ruins of a lofty mind, more precious,
because it is rescued from the remorseless hand of modern
improvement, and speaks, in its broken language, the voice of
departed ages. On the other hand, the fond admirer of the
passing literature of the day deems little else worthy of his
notice, and contemplates former works but as faded pictures,
left to moulder on the walls, or at best, as serving to show the
prejudices, or follies, or defects of taste of bygone times. And,
again, the man of ardent temperament, regardless of the known
and the tangible, casts his keen glances through the obscurities
of the future, and prophesies the surpassing grandeur of the
days to come, when new revelations of the human soul shall
be unfolded, and new truths be proclaimed, which philosophy
itself, in its boldest flights, has never yet dreamed of. He
sees, that, after the lapse of nearly six thousand years, man
is but in the infancy of his being; that he has learned little,
which might not as well be forgotten; that the lights, which
have hitherto guided him, are not from heaven, but false and
delusive phantoms, which have led him astray; that he has
yet to learn how to live, as well as how to die; and that this
instruction is to be sought, not in the meditations and writings
of the great minds of other ages, but in the depths and communings of his own spirit.
Now, I say, that these three classes of opinions, which, to
some extent, have probably prevailed in all the epochs of
literature, have acquired an unnatural impulse and acceleration in our day, from the vast powers of a free press, and the
concentrated influences of a wide-spread education. If this
state of things is to continue; if these three classes of opinions
are to flow on in separate, yet neighboring channels; if they




LITERARY TENDENCIES OF THE TIMES.       745
are to divide and distract the public mind and conduct; it is
plain, that there is no small danger to the cause of solid learning, sound religion, and social institutions. Divide and conquer,
is the cunning maxim of tyrants, in order to accomplish their
nefarious purposes. But in the republic of letters the same
rule must nourish factions at war with its safety and its
advancement. If, for example, the human mind, (as we are
sometimes proudly informed,) has never yet grappled with the
great truths belonging to its character and destiny; if neither
history, nor experience, nor philosophy, have hitherto even
reached the vestibule of those inquiries, which are to guide
us in the business of life, in the affairs of government, in the
principles of public policy, in the development of national
interests and resources, in the foundations of morals and
religion, or (passing from these to less grave topics) if genius
has never yet affixed the true value or importance to any of
its own achievements in art, or science, or learning; and the
mastery of its powers, as well as its means of excellence, are
yet to be searched out, as unknown quantities; then, indeed,
as it seems to me, man has lived in vain, and disquieted himself in vain. We can give no pledges of success in our present
efforts, which former ages have not given. We can offer no
securities, which may not hereafter crumble away, like the
fabrics, which they reared only to perish, or left, as monumental ruins, to instruct us in the meanness of the end, compared with the magnitude of the labor.
Considerations not less discouraging must arise, if either of
the other two extremes of opinion are to possess an enduring
influence. The truth is, that the past is not every thing; nor
the future every thing; nor the present every thing.  The
intellect of man is now neither in its infancy, nor in its decrepitude. Human knowledge, whether it be for ornament or
use, for pleasure or instruction, is the accumulation of the
wisdom and genius of all ages, and is, like the ocean, coinposed of contributions from infinitely various sources, whose
currents have mingled together from the beginning, and must
63




746             MISCELLANEOUS WRITINGS.
continue so to do to the end of time. Sound the depths as
you may, they will be found not entirely the same, nor entirely
different. The shoals and the quicksands may be removed
from one side; but they have often only shifted to the other.
The waters may have become more clear and transparent in
some parts; but at the same time more turbid, and shallow
in others. The general level has not materially changed in
height or the current in its breadth, although occasional tides
may have ebbed and flowed with irregular and sometimes
desolating power. In some places the alluvial deposits have
buried the ancient landmarks; while in others they have been
worn away, or submerged. So, in some measure, has it been
with the history of the human mind. What has been gained
in one direction, has been almost simultaneously lost in another.
The known of one age has become the obscure of the next,
and the lost of the succeeding. The favorite pursuits and
studies of one age have sunk into insignificance or neglect in
another. The value, as well as the interest, of particular
researches has fluctuated with the passions, and the theories
and the fashions of the day.  And while each successive
generation has imagined itself to stand upon the shoulders
of all that preceded them, and flattered itself with the belief,
that it surveyed all things with a more comprehensive power,
and a less obstructed vision, it has forgotten that on every
side there is a natural boundary to the intellectual horizon, at
which every object becomes obscure, or evanescent; and that,
just in proportion as we advance in one direction, we may
be receding from well-defined and fixed lines of light in the
other.
I have said, that the tendency in our day is to ultraismn of
all sorts. I am aware, that this suggestion may appear to
some minds of an easy good-nature, or indolent confidence, to
be overwrought, or too highly colored. But unless we choose
voluntarily to blind ourselves to what is passing before our
eyes in the daily intercourse of life, it seems to me impossible
not to feel, that there is much which demands severe scrutiny,




LITERARY TENDENCIES OF THE TIMES.       747
if not serious alarm. I meddle not here with the bold, and
yet familiar speculations upon government, and polity, upon
the fundamental changes and even abolition of constitutions,
or upon the fluctuating innovations of ordinary legislation.
These might, of themselves, furnish out exciting themes for
public discussion, if this were a fit occasion to introduce them.
I speak rather. of the interests of letters —of the common
cause of learning- of the deep and abiding principles of philosophy. Is it not painfully true, that the spirit of the age
has broken loose from the strong ties, which have hitherto
bound society together by the mutual cohesions and attractions of habits, manners, institutions, morals, and literature?
It seems to me, that what is old is no longer a matter of
reverence or affection. What is established, is not on that
account esteemed positively correct, or even salutary or useful.
What have hitherto been deemed fundamental truths in the
wide range of human experience and moral reasoning, are no
longer admitted as axioms, or even as starting points, but at
most are propounded only as problems, worthy of solution.
They are questioned and scrutinized, and required to be submitted to jealous proofs. They have not even conceded to
them the ordinary prerogative of being presumed to be true,
until the contrary is clearly shown. In short, there seems to
me, at least, to be abroad a general skepticism — a restless
spirit of innovation and change -a fretful desire to provoke
discussions of all sorts, under the pretext of free inquiry, or of
comprehensive liberalism. And this movement is to be found
not merely among illiterate and vain pretenders, but among
minds of the highest order, which are capable of giving fearful
impulses to public opinion. We seem to be borne on the tide
of experiment with a rash and impetuous speed, confident
that there is no risk in our course, and heedless, that it may
make shipwreck of our best hopes, and spread desolation and
ruin on every side, as well on its ebb, as its flow. The main
ground, therefore, for apprehension is not from undue reverence
for antiquity, so much as it is from dreamy expectations of




748            MISCELLANEOUS WRITINGS.
unbounded future intellectual progress; and, above all, from
our gross over-valuation and inordinate exaggeration of the
peculiar advantages and excellences of our own age over all
others. This last is, so to say, our besetting sin; and we
worship the idol, carved by the cunning of our own hands,
with a fond and parental devotion. To this cause, I think,
may be chiefly attributed that bold, not to say reckless spirit
of speculation, which has of late years spread itself with such
an uncompromising zeal over our whole country. It is not
indigenous to our soil; nor does it belong to the sober sagacity
and patient judgment of the Anglo-Saxon race. There are
many, even among the educated classes, and far more among
the uneducated, who imagine that we see now, as men never
saw before, in extent, as well as in clearness of vision; that
we reason, as men never reasoned before; that we have
reached depths and made discoveries, not merely in abstract
and physical science, but in the ascertainment of the moral
and intellectual powers of man, and the true structure and
interests of government and society, which throw into comparative insignificance the attainments of past ages. We
seem to ourselves to be emerging (as it were) from the darkness of bygone centuries, whose glow-worm lights "show
the matin to be near, and'gin to pale their ineffectual fires,"
before our advancing radiance. We are almost ready to persuade ourselves, that their experience is of little value to us;
that the change of circumstances is so great, that what was
wisdom once, is no longer such; that it served well enough
for the day; but that it ought not now to be an object of
desire, or even of commendation.
Nay, the comparison is sometimes eagerly pressed of our
achievements in literature with those of former ages. Our
histories are said to be more philosophical, more searching,
more exact, more elaborate than theirs. Our poetry is said
to surpass theirs in brilliancy, imaginativeness, tenderness,
elegance, and variety, and not to be behind theirs even in
sublimity, or terrific grandeur. It is more thoughtful, more




LITERARY TENDENCIES OF THE TIMES.      749
natural, more suggestive, more concentrated, and more thrilling than theirs. Our philosophy is not, like theirs, harsh, or
crabbed, or irregular; but wrought out in harmonious and
well-defined proportions. Our metaphysical systems and
mental speculations are (as we flatter ourselves) to endure
forever, not merely as monuments of our faith, but of truth,
while the old systems must fall into ruins, or merely furnish
materials to reconstruct the new, - as the temples of the
gods of ancient Rome serve but to trick out or ornament the
modern churches of the Eternal City. Ay, - and it may
be so. But, who will pause, and gaze on the latter, when
his eyes can fasten on the gigantic forms of the Colosseum, or
the Pantheon, or the Column of Trajan, or the Arch of Constantine? " It was among the ruins of the Capitol," (said
the historian of the Decline and Fall of the Roman Empire,)
" that I first conceived the idea of a work, which has amused
and exercised near twenty years of my life, and which, however inadequate to my own wishes, I finally deliver to the
curiosity and candor of the public." Among the ruins of the
Capitol! He felt, indeed, that history was philosophy, teaching by example. IHe was willing to devote a whole life to
the study of the dead, that he might learn how to instruct
posterity in their dangers and their duties.
May I not stop for a moment, and ask if there is not much
delusion and error in this notion of our superiority over
former ages; and if there be, whether it may not be fatal to
our just progress in literature, as well as to the permanent
interests of society? I would not ask those:who entertain
such opinions, to accompany me back to the days of Aristotle and Cicero, whose works on the subject of government
and politics alone have scarcely received any essential addition in principles or practical wisdom down to this very hour.
Who, of all the great names of the past, have possessed so
profound an influence and so wide an authority for so long a
period? If time be the arbiter of poetical excellence, whose
fame is so secure as that of Homer and Virgil? Whose his63 *




750           MISCELLANEOUS WRITINGS.
tories may hope to outlive those of Thucydides and Tacitus?
But I would limit myself to a far narrower space, to the period of the two centuries which have elapsed since our ancestors emigrated to America. Survey the generations which
have since passed away, and let us ask ourselves, what have
been their literary labors and scientific attainments? What
the productions of their genius and learning? What the
amount which they have contributed to ameliorate the condition of mankind, -to lay deep and broad the foundations
of theology and jurisprudence and medicine, —to establish
and illustrate the principles of free governments and international law, -and to instruct, as well as amuse, the leisure,
and to refine the taste of social life? Unless I greatly mistake, a calm survey of this whole matter would convince
every well-balanced mind, that, if we may claim something
for ourselves, we must yield much to the scholars of those
days. We shall find that much of our own fruits have been
grafted on the ancient stocks. That much of what we now
admire is not destined for immortality. That much which
we deem new is but an ill-disguised plunder from the old
repositories. And that much which we vaunt to be true,
consists of old fallacies, often refuted and forgotten, or of
unripe theories, which must perish by the wayside, or be
choked by other weeds of a kindred growth.
The truth is, that no single generation of men can accomplish much of itself or for itself, which does not essentially
rest upon what has been done before. Whatever may be the
extent or variety of his labors, and attainments, much of
them will fail to reach posterity, and much which reaches
them will be felt, not as a distinct formation, but only as
component ingredients of the general mass of knowledge.
Manv of the immortals of one age cease to be such in the
next which succeeds it; and, at best, after a fitful season of
renown, they quietly pass away, and sleep well in the common cemetery of the departed. What is present is apt to be,dazzling and imposing, and to assume a vast importance




LITERARY TENDENCIES OF THE TIMES.       751
over the distant and the obscure. The mind in its perspective becomes affected by the like laws as those of the natural
vision. The shrub in the foreground overtops the oak that
has numbered its centuries. The hill under our eye looms
higher than the the snowy Alps which skirt the edge of the
horizon.
But let us subject this matter to a little closer scrutiny, and
see if the annals of the two last centuries alone do not sufficiently admonish us of the mutability of human fame as well
as of that of human pursuits. What a vast amount of intellectual power has been expended during that period, which
is now dimly seen, or entirely forgotten. The very names of
many authors have perished, and the titles of their works are
to be gathered only from the dusty pages of some obscure
catalogue. What reason can we have to suppose, that much
of our own labors will not share a kindred fate? But, turning to another and brighter part of the picture, where the
mellowing hand of time has touched with its finest tints the
varying figures. Who are there to be seen, but Shakspeare,
and Milton, and Bacon, and Locke, and Newton, and Cudworth, and Taylor, and Barrow, not to speak of a host of
others, whose works ought to be profoundly studied, and
should illustrate every library. I put it to ourselves to say,
who are the men of this generation to be brought into comparison with these, in the extent and variety of their labors,
the powers of their genius, or the depth of their researches?
Who of ourselves can hope to exercise an influence over the
human mind as wide-spread as theirs? Who can hope to
do more for science, for philosophy, for literature, for theology,
than they? I put the argument to our modesty, whether we
can dispense with the products of their genius, and wisdom
and learning; or may cast aside their works as mere playthings for idlers, or curiosities for collectors of the antique?
I have but glanced at this subject. It would occupy a
large discourse to unfold it in its various bearings and consequences. But the strong tendency of our times to disregard




752             MISCELLANEOUS WRITINGS.
the lessons and the authority of the past must have any thing
but a salutary effect upon all the complicated interests of
literary as well as social life.  It not only loosens and disjoints those institutions, which seem indispensable to our
common happiness and security; but it puts afloat all those
principles which constitute, as it were, the very axioms of all
sound philosophy and literature. In no country on earth is
the danger of such a tendency so pregnant with fearful
results as in our own; for it nurses a spirit of innovation and
experiment and oscillation, which leaves no resting-place for
sober meditation or permanent progress. It was the striking
remark of an acute observer of the human mind, that " He
who sets out with doubting, will find life finish, before he
becomes master of the rudiments; " and that, " He, who begins by presuming on his own sense, has ended his studies
as soon as he has commenced them." 1
But another danger in our age, and especially in our
country, of no small extent, although certainly of a subordinate character, is the vast predominance of the taste for
light reading and amusing compositions over that for solid
learning and severe and suggestive studies. This has been
gradually upon the increase ever since the commencement of
the present century, and has become not only the fashion,
but I may say, the passion of the day. It has been fostered
by, and in its turn it has administered to, our periodical
literature, which, from small beginnings, has at length accumulated to such a mass, as threatens to overwhelm all the
other departments of literature and bury them under its avalanches. Novels and romances, and other exciting fictions,
increase upon us with a fearful rapidity, and, in conjunction
with periodicals, constitute the staple of nearly all the reading
of the reading public. They are circulated in prodigious
numbers through the cheap weekly and penny press. They
are found with all the studied attractions and ornaments of
1 Sir Joshua Reynolds, Discourses, p. 15.




LITERARY TENDENCIES OF THE TIMES.       753
letter-press and engraving upon the centre-tables of the refined and wealthy, piled up with a gay and varied profusion.
They line the saloons of our hotels and boarding-houses.
They fly on our railroads, and swim in our steamboats, with
a dazzling and almost dizzy activity. Not a passenger-ship
crosses the Atlantic, which is not freighted with the wet
sheets of the last weekly or monthly, or quarterly, or the last
story of the Jameses and Blessingtons and Bulwers. And,
thanks to our good stars, sometimes they bring also, for our
refreshment and delight, the thrilling pathos, and touching
humor, of that marvellous genius of all work, the author of
the "1 Old Curiosity Shop."
The consequence is, what might naturally be expected,
that many of our best minds, and especially those, who pant
for early distinction, devote all their thoughts and all their
time to labors of this sort. They are seduced by the eager
appetite of the public for novelty, and the ready returns both
of money and reputation, to abandon more serious and less
attractive studies. They turn with indifference or disgust
from topics, which require profound investigation or severe
criticism. They become impatient of the slow progress towards excellence, and of the long and cold researches, which
satisfied the desires of the men of other days, who were
content to bide their time, and await the award of posterity.
They seek not to build the lofty poetry, which shall speak
to the hearts of a thousand generations. They meditate
not those high enterprises in philosophy, in history, in theology, or in jurisprudence, which, when once accomplished,
will live on and instruct mankind, when the spot, which
covers the ashes of their authors, shall be forgotten or obliterated from the records of time. They seek the ribands
and the wreaths, and the shouts of applause of the passing
crowd, and forget that they are not fame, - but, at best, mere
glitter and show and sound. They come as shadows, and
as such they will assuredly depart. The white foam of the
combing billow dies away at the moment, when it breaks




754           MISCELLANEOUS WRITINGS.
upon the shore. But the depths of the ocean remain undisturbed and noiseless; for they belong to the things of eternity.
Who, that looks around him does not perceive, what a vast
amount of the intellectual power and energy of our own
country is expended, not to say exhausted, upon temporary
and fugitive topics, — upon occasional addresses, — upon
light and fantastic compositions,- upon manuals of education, and hand-books of instruction,-upon annotations and
excerpts, and upon the busy and evanescent discussions of
politics, which fret their hour upon the stage, or infest the
halls of legislation. Need we be told, that honors thus acquired, melt away at the very moment, when we grasp them;
that some new wonder will soon usurp their place; and, in
its turn, will be chased away or dissolved by the next bubble
or flying meteor. I know, that it has sometimes been said, that
" nothing popular can be frivolous; and that what influences
multitudes must be of proportionate importance."   A more
dangerous fallacy, lurking under the garb of philosophy, could
scarcely be stated. There would be far more general truth in
the statement of the very reverse proposition. We construct
all sorts of machinery for the ready diffusion of science, and
the circulation of philosophy. Our lecture-rooms and lyceums
are crowded, day after day, and night after night, with those,
who seek instruction without labor, and demand improvement without effort. We have abundance of zeal and abundance of curiosity enlisted in the cause, with little aim at
solid results or practical ends. It seems no longer necessary,
in the view of many persons, for students to consume their
midnight lamps in pale and patient researches, - or in communing with the master spirits of other days, — or in interrogating the history of the past, - or in working out, with a
hesitating progress, the great problems of human life. An
attendance upon a few courses of lectures upon science, or
art, or literature, amidst brilliant gas lights, or brilliant ex.
I See Sir J. Mackintosh's Life, vol. i. p. 131.




LITERARY TENDENCIES OF THE TIMES.       755
periments, or brilliant discourses of accomplished rhetoricians,
are deemed satisfactory substitutes for hard personal study, in
all the general pursuits of life. Nay, the capital stock thus
acquired may be again retailed out to less refined audiences,
and give ready fame and profit to the second-hand adventurer.
It is an old saying, that there is no royal road to learning;
and it is just as true now, as it was two thousand years ago.
Knowledge, deep, thorough, accurate, must be sought, and
can be found, only by strenuous labor, not for months, but for
years; not for years, but for a whole life. What lies on the
surface is easily seen, and easily measured. What lies below
is slowly reached, and must be cautiously examined. The
best ore may often be required to be sifted and purified. The
diamond slowly receives its polish under the hands of the
workman, and then only gives out its sparkling lights. The
very marble, whose massy block is destined to immortalize
some great name, reluctantly yields to the chisel; and years
must elapse before it becomes (as it were) instinct with life,
and stands forth the breathing image of the original. To
sketch the outlines of Hallam's noble Introduction to the
History of Modern Literature, required studies so vast and
various, that the libraries of all America would not at this
very moment furnish the means of consulting, far less of mastering, the original authors. And yet we are apt to imagine,
that few books need now be read in order to reach the depths
of any art or science.
The consciousness of this very state of public opinion cannot but operate as a discouragement upon sensitive minds, and
weaken their ambition for the attainment of high excellence.
But, above all, that which, as I think, hangs with the deadliest weight upon the literary enterprise of American authors,
is (what has been already alluded to) the perpetual necessity
of catering to the false taste and morbid appetite of the mass
of readers for temporary excitement, or for indolent amusement. How few, comparatively speaking, are found among
our scholars, who devote their lives to the study of some great




756            MISCELLANEOUS WRITINGS.
subject, with a view to embody their thoughts and acquirements, so that they may belong to the literature of future
ages. How few are there, who can see, without dismay, the
accumulation of materials around them, upon the mastery of
which they are to found their own fame. How few can, with
a calm and quiet consciousness of their own merit, see volume
after volume fall from the press almost without notice or patronage, and yet be content to wait, until the voice of praise
reaches them from a distance, -from the closets of the learned,
and the schools of the philosophers. Speaking of the first
volume of his great History of England, Mr. Hume, with quiet
modesty, remarked: "My bookseller told me, that in a twelvemonth he sold only forty-five copies. I scarcely heard of one
man in the three kingdoms, considerable for rank or letters,
that could endure the book." But with the pride of a great
mind, some years afterwards, he added: " I see many symptoms of my literary reputation's breaking out at last with
additional lustre." What a cheering, what an impressive
example!
I rejoice to say, that there are scholars in our country, who
have avoided the beaten and dusty paths of every-day reputation, and have been willing to labor, -unseen and unheeded,
- for a more enduring distinction. And they have gloriously
won the prize. There are historians, and biographers, and
mathematicians, and painters, and sculptors, and poets, and
divines, who have been content for years to live on hopes,
nourished in their own bosoms, or whispered only by the
gentle spirit of private friendship, while they have been toiling for immortality. Meanwhile the press has rung its merry
peals throughout the continent, for the favorites of the day.
And where are these favorites now? They have perished,
and their very names have died away, like the memory of an
echo. There is a fine remark of Lord Bacon,l that " He that
seeketh to be eminent among able men, hath a great task;
1 2 Bacon's Works, p. 345.




LITERARY TENDENCIES OF THE TIMES.        757
but that is ever good for the public. But he, that plots to be
only the figure among ciphers, is the decay of a whole age."
And then again another danger, following close in the train
of that, which I have been considering, is the feverish ambition for an artificial structure of style in all classes of composition. We no longer relish the quiet, easy, and idiomatic
tones of the olden literature. The flowing grace and simplicity of Addison - the terse yet transparent style of Swift,
- the natural yet elegant diction of Goldsmith, - the playful
humor, and colloquial familiarity of Lamb, mixed up with
deep reflections, and occasionally sprinkled with quaint phraseology, - these are no longer in the possession of the public
favor. If they are not deemed dull, they are passed by with
indifference. They are more often praised, than they are read.
They hold, indeed, a certain conventional rank; but it is more
as a matter of courtesy to escape debate, than of sincere love
of what is true or beautiful. We require a more intense and
exciting style, — strong and animated language - sudden and
vivid contrasts,- abrupt changes, and unexpected turns of
thought, — high coloring, and wild, and (it may be) startling figure of speech. And so that the story tells, and the
narrative flies on, or the satire scorches, or the humor is broad.
cast in its lights, we are quite content, that the composition
should be any sort of mosaic work, - interlaid with scraps
of poetry or prose, - the classical or the new, — the quaint or
the legendary, -the cant phrases of France or the mystical
combinations of Germany. Everywhere we miss the raciness
and richness of the Anglo-Saxon idiom, and even the ponderous vigor of the Roman roots forced into the native soil. To
borrow the language of an eminent critic; " The grand defect
is the want of repose, —too much and too ingenious reflection, -too uniform an ardor of feeling. The understanding
is fatigued; the heart ceases to feel." I
And this again nourishes that dangerous facility of writing,
1 Mackintosh's Life, vol. i. p. 407.
64




75S            MISCELLANEOUS WRITINGS.
which is one of the most alluring temptations, and at the same
time the most insidious foe of genius. He, who can throw
off in a few hours the brilliant passages of his own mind
upon transitory or local topics, and become the artificer of the
leading article of a review, or miscellany, or annual, that
flowers, and flourishes, and fades within the year;  he who
puts forth his hasty pamphlet, upon the engrossing interest or
stirring politics of the day; — he earns his passing fame with
an easy promptitude, and may circulate freely among the wits
of the club, and the coteries of the drawing-room. He, who
writes well enough to please and pleases well enough to be
paid, as well as to be read, is but too apt to forget, that nothing valuable is suddenly acquired; that what is enduring
must be costly, in time, in labor, in design, in intellectual
effort. The veriest tyro in colors can paint a picture with
lights and shades and false brilliancies, which may attract and
deceive the vulgar eye. The common sculptor may mould
the human features with a light and facile hand, or carve
them into the cold rigidity of stone. But the great artists of
ancient and modern times wrought not out so their mighty
labors. The Apollo, the Venus, the Gladiator, the Guliano,
and Lorenzo de Medicis, grew not thus under the chisel of
the artists. The Madonna, the Last Supper, the Day of
Judgment, sprung not from the dashing touches of the moment. Time may truly be said, with these great minds, to
have been the parent of immortality.
In close alliance with the foregoing will be found another
and kindred danger to scholarship. If the public taste thus
acts upon the studies and products of authors, and fashions
their works for the market of the day,
"If those, who live to please, must please to live,"
it is not less true, that it reacts upon readers with a reciprocal malign influence. Their time is equally wasted in the
indulgence of a varied and sometimes superficial round of
reading, which vitiates, while it pampers the appetite. All is




LITERARY TENDENCIES OF THE TIMES.       759
desultory and miscellaneous; crowded, and yet fleeting. The
viands are dressed up in new form and fantasies; but still
they are neither wholesome, nor satisfying. They cloy the
taste without nourishing the soul. According to the temperament of the reader, his love of letters melts away under the
soft sentimentalism  of fiction, or wearies itself in drowsy
indolence, or exhausts itself in private meditations, or rises
into mystical reveries, very unintelligible, but not on that
account less inviting.
It cannot admit of the slightest doubt, (at least in my
judgment,) that the habit of desultory and miscellaneous reading, thus created, has a necessary tendency to enervate the
mind, and to destroy all masculine thinking. Works of a solid
cast, which require close attention and exact knowledge to
grapple with them, are thrown aside, as dull and monotonous.
We apologize to ourselves for our neglect of them, that they
are to be taken up at a more convenient season; or we flatter
ourselves, that we have sufficiently mastered their contents
and merits from the last review, although in many cases it
may admit of some doubt, whether the critic himself has ever
read the work. Without stopping to inquire, how many of
the whole class of literary readers now study with thoughtful
diligence, the standard writers in our own language, and are
not content with abridgments, or manuals, or extracts; I
would put it to those, who are engaged in the learned professions, and have the most stringent motives for deep, thorough,
and exact knowledge, I would put it to them to say, how
many of their whole number devote themselves to the study
of the great masters of their own profession. How many of
them can, in the sober language of truth, say, We are at home
in the pages of our profoundest authors, - We not only possess them to enrich our libraries, but we devote ourselves to
the daily consultation of them. They are beside us at our
firesides, and they cheer our evening studies. We live and
breathe in the midst of their laborious researches and systematical learning.




760              MISCELLANEOUS WRITINGS.
If the seductive influences of this habit of desultory and
miscellaneous reading and indulgence in general literature,
were confined to persons of unbroken leisure, or indolent
temperament, or moderate ambition, the evil would be far:less felt, and the example far less mischievous. But it is apt
to draw within its grasp the proudest spirits of the age. Many
of the latter have the same insatiable appetite, if I may so
say, for universal reading, - the same love of change, - the
same eager search after novelty, which belong to the gay and
the frivolous in their light pursuits. They amass vast treasures of knowledge, but use them, far less for composition,
than for conversation; far less as materials, out of which they
are to create works, destined for future ages, than as means
for brilliant sallies in colloquial discourse, or for sunny disquisitions upon moral philosophy, or for picturesque sketches,
or for off-hand contributions to the forthcoming periodical.
They have learned well the lesson of Lord Bacon, that " Studies serve for delight, for ornament, and for ability. Their
chief use for delight is in privateness and retiring; for ornament is in discourse; and for ability is in the judgment and
disposition of business." 1 But they have forgotten the noble
admonition of the same great mind, that " Wise men use
their studies; and that there is a wisdom without them, and
above them, won by observation. That they read, not to
contradict or confute, nor to find talk and discourse; but to
weigh and consider." 2
There is, indeed, and for a considerable length of time, has
been, a strong temptation to scholars to establish reputation
by bringing their resources into full play in conversation among
the higher circles of social life; and in our own times it has
acquired a powerful impulse and acceleration among the
affluent in learning and the elevated in genius. Dr. Johnson
seems almost for the first time to have given it an attractive
character by his own example and gigantic powers, both in
1 Bacon's Essays. Essay 50, vol. ii. of his Works, p. 373.  2 Ibid.




LITERARY TENDENCIES OF THE TIMES.       761
reading and thinking. The glorious circle of great minds,
who clustered around him, Reynolds and Burke and Goldsmith and Jones and Scott, and the gay wits of London, who
listened with a just homage to his controversial dogmas, and
untiring flow of thought, made it a fashionable object of
ambition to become great in conversation. It may well be
doubted, whether even Dr. Johnson, owing to this seductive
influence, ever accomplished any thing commensurate with the
powers of his understanding, or the variety of his knowledge.
With the exception of his Dictionary, (a work of vast labor, if
not of critical skill,) his best writings belong almost to the very
close of his life; and if Boswell had not recorded his conversations with a graphical fidelity and fulness, which makes them
the very familiars of our household, the fame of that great
man, after a life of seventy-five years, would mainly rest upon
two poems, in imitation of Juvenal, and upon his Lives of
the Poets, which, with the exception of some half dozen
Lives, wrought out with marvellous felicity and vigor, were
but common task-work for the booksellers. I might mention
Doctor Parr as another singular example of vast erudition,
superior in this respect even to Johnson, and in general acquirements quite his equal, who has rendered himself famous
for having exhausted his long life mainly upon a Spital sermon, and an edition of Bellendenus, neither of which is now
read; and yet if he had loved reading and conversation less,
and composition more, he might have stood in classical and
other literature among the foremost of his age. He lives now,
rather by the bright sayings, preserved by his biographers,
and by his private letters, than by any literary achievement,
worthy of remembrance.
But, for an example still more instructive, and far more
interesting and affecting, let us turn to one of the most philosophical and polished scholars of our own day, I mean Sir
James Mackintosh, whose genius has illuminated whatever
it has touched, and touched almost every department of literature. Whoever has read the memoirs of that excellent man,
64 *




762             MISCELLANEOUS WRITINGS.
written with an unassuming elegance, and a just filial reverence, by an accomplished scholar, must have risen from the
perusal with mixed emotions of profound respect and profound
melancholy. What do we here see, but a mind of the brightest order and most varied attainments, perpetually struggling
with its own infirmity of purpose, — amassing, nay, devouring, all sorts of learning, with an eager and discriminating
attention, sketching the outlines of the plan of some great
work, and resolving at some future time to execute it, — rebuking its own delays, and yet persisting in the same course,
- and at last, departing from the world, in a good old age,
without having achieved any one of the loftier purposes, at
which it aimed. Everywhere about us are the mighty fragments of his genius, like the mutilated Torso, exhibiting, in its
broken proportions, the exquisite skill of the artist. His Introductory Lecture on the Law of Nations, the most magnificent
discourse in our own, or perhaps, in any other language, is but
a finished portico for the vestibule of a temple, destined never
to be erected. And, again, his Historical Dissertation upon
the Progress of Ethical Science, which it is impossible to read
without kindling into enthusiasm, leaves us, with its bright
but rapid lights, just on the threshold of the very inquiries, to
which it points its way. And then, again, his contributions
to the History of England seem but interludes between the
acts and epochs of that great drama, where the curtain dops,
just when the principal actors are about to play their parts on
that grand theatre of human life. What can be more melancholy, or more full of regrets, than the contemplation of such
a mind, so comprehensive in learning, so elevated in virtues,
which has thus passed away, leaving so many admirable enterprises unaccomplished, and so many plans for immortality:unfulfilled.
It may be said, that all this is the result of peculiar temperament. I think far otherwise; it is the natural result of the
seductive influences, of which I have spoken, and of the profuse expenditure of intellectual power upon ends and aims,




LITERARY TENDENCIES OF THE TIMES.        763
incompatible with enduring excellence, which is so much fostered by the spirit of our age. How difficult must it be to
resist the temptations to universal reading, and the fascinations of colloquial discourse, when they win instant praise,
and circulate freely to the very boundaries of the literary
world. For one, who, with a stout heart and determined
perseverance, could resist them, and die, like Sir Walter Scott,
with his pen in his hand, there are hundreds who would surrender themselves the willing, or the reluctant, victims to their
influence, and resolve and re-resolve, and yet close their lives
in the midst of hopes deferred, and expectations blasted, and
projects abandoned.
I have thus far spoken of some of the existing dangers to
the permanent interests of learning and literature; and in so
doing I have anticipated much which belongs to the consideration of the discouragements and difficulties of scholars in
our day. Many other admonitory and interesting reflections
might, however, be added upon the latter topic; but I shall
content myself with a few suggestions only, addressed partly
to our own peculiar national position, and partly to general
causes at work throughout the world. One, indeed, which
must strike even the most careless observer is the vast accumulation, in every department of knowledge, of new materials, which are to be mastered, in comparison with the old
stock. The brief but pungent apothegm, that life is short, and
art is long, could never come home to the bosoms and business
of scholars with more significance than in the present age.
Hitherto, the task of completing the round of studies for a
well-disciplined mind in any one department, seemed to lie
within a comparatively moderate compass. But the mass has
now increased to an almost overwhelming size, (to use the language of Sir Henry Spelman,) Molem non ingentem solum,
sed perpetuis humeris sustinendam. In some sciences whole
branches have sprung into being within the last fifty years,
while others have received such vast additions, that the old
foundations have been buried under the substructions of the




764             MISCELLANEOUS WRITINGS.
new. The learned professions have received a like augmentation of principles and materials.  Five hundred volumes
would, a half century ago, have been deemed sufficient for all
the ordinary exigencies of study, where five thousand volumes
would now scarcely meet the daily demands, for consultation
or instruction. Medicine has changed, not merely its systems
and theories, and its formularies, but, through the instrumentality of chemistry, it has created a new materia medica, and
a new nomenclature. Anatomy and surgery, and physiological research, have elevated into science what seemed before
but a humbler department of art. Theology, in its dogmatical, exegetical, and critical inquiries, has made our libraries
groan under the weight and variety of its contributions. In
former times the ablest divines might content themselves with
a few solid bodies of divinity, the best sermons of the old
school, and some helps to criticism and exposition, in the
shape of common-place books or concordances, illustrated by
the standard guides in Ecclesiastical History. How changed
is all this now! Jurisprudence has unfolded its stores with
an equal profusion; and it is scarcely too much to say, that
it is now practically impossible to read all that is published;
and the task of selection alone has become at once perilous
and indispensable.  In the mean time, the inquisitive and
skeptical spirit of the age makes the duty of instruction, as
well as that of the exposition and vindication of doctrines,
full of labor and difficulty. Especially is this true in theology
and the higher branches of philosophy.  Here the scholar
must give a life of patient diligence to the task; and will
find, that if he is read by many, he will be praised by few.
His very learning may make his labors repulsive; and the
very depth of his researches may discourage his faltering followers. His deficiencies will be studiously proclaimed, while
the profounder results of his analysis are unheeded. Here,
he will offend the prejudices of the day by a bold and fearless
criticism, and there, he will encounter a dogma, which staggers his faith, or brings into question his prudence or his judg



LITERARY TENDENCIES OF THE TIMES.       765
ment. If he appeals to posterity, he may, indeed, reap a just
though distant reward, when the passions and parties of the
day shall have passed away. But then it may happen, that
the appeal may never reach that tribunal; or, if it should, the
changes of fashions and feelings and opinions may make his
claim a slender inheritance, even if it should be recognized
and confirmed. Under such circumstances, well may he be
inclined to shun the toil of the enterprise, and exclaim: Ostendunt hcec tanthum fata, - neque ultra.
Look for a moment upon the exhausting demands of the
pulpit. Instead of listening to plain, calm, and practical expository discourses, as in former times, we have now become
fastidious and exacting critics. We require, every Sunday,
the exhibitions of varied talents, dressed up with all the
polished elegance and refinement of an exquisite taste. We
seek, I had almost said, we demand, one or more sermons to
be produced every week, which would require the meditations
of the most gifted mind for a whole month; and of such a
quality of excellence, that probably no single mind, in the
history of the profession, ever produced twelve of them in any
one year. This is not all. The discourses must be wrought
out with somewhat of dramatic power and effect. They
must be eloquent, as well as instructive; pointed, as well as
true; vivid, as well as thoughtful. They must win by their
persuasive approaches, even more than they strike by their
masculine reasoning. They may, indeed, reprove vice with a
bold and fearless confidence, if it shocks by its grossness
or revolting character. They may unmask hypocrisy, and
denounce error, in good round terms. But they must deal
gently with frailties, which are broadcast, and "just hint a
fault or hesitate dislike," if it be a favorite folly of the day,
which fashion has consecrated, and public opinion tolerates.
NOw, I think, that I do not exaggerate the difficulties and
discouragements of the profession in our day, when I say,
that the demands upon the preacher for ready compositions,
and parochial duties, make it almost impracticable for him to




766             MISCELLANEOUS WRITINGS.
attain eminence in biblical criticism, and disable him from
writing works, which will be enduring monuments of his
learning and ability, when he shall be gathered to his fathers.
Look again upon the scholar, who seeks eminence in classical studies. What a vast apparatus is now required to
enable him to grapple with the intricacies of Grecian and
Roman literature, its criticism, and its historical illustrations,
or even the niceties of the grammatical structure of the language. It is a startling fact, that many a ripe scholar, even
in patient and inquisitive and laborious Germany, will tell
you, that there is not time, in any one life, to learn well more
than a single language; that if one devotes himself to Greek,
Latin is out of the question; and, that the study of a whole
life may well be dedicated to the mastery of a single classical author, and even then, that much will be left untouched,
or unexplained. Nay, Roman jurisprudence, which, after the
criticisms of three centuries, seemed to have arrived at a fixed
point in its expositions and principles, has now become suddenly changed in its aspects, and some of its elements have
been displaced by the learned labors of living jurists, aided by
the discovery of the Institutes of Gaius. And, as if ancient
history itself were not secure against the inroads of modern
speculation and industry, we are now told, that the historians
of Rome totally mistook many of the facts, which they undertook to narrate from earlier traditions; and that we, in the
nineteenth century, can by more profound researches, correct
errors and explain transactions, which, for eighteen hundred
years, were unquestioned, or were deemed irretrievably lost.
It was not many years ago, that some of us were almost
startled out of our proprieties by the doubt, whether any such
person as Homer ever existed; and Niebuhr has so shaken
the public confidence in the ancient historians, that a widespread alarm has infected our belief in the credibility of their
chronicles.
Nor is the task of the instructor, or of the disciple, in intellectual or moral philosophy less formidable.  If he could




LITERARY TENDENCIES OF THE TIMES.        767
unfold the various systems of metaphysics, or of ethics, where
is he to begin, or rather, where is he to end, his researches?
His descent into the depths, and his ascent from them, are
not among the facile operations of the human mind in our
day.
"In the lowest deep a lower deep,
Still threatening to devour him, opens wide."'
If he has read half of what has been already written on
these subjects, he has achieved a most gigantic enterprise.
But if he would subdue the whole to his own purposes, and
take but a moderate survey of the stores of scholastic logic
and philosophy, deposited on the slumbering shelves of the
public libraries of both continents, human life would not be
long enough to complete his task. Here, at least, we must
be content, not only, as Lord Bacon says, to read by deputy,
but to think by deputy.
These are difficulties, which beset all scholars in our times
from the profusion, and, as it were, from the very inundations, of learning. There are others, again, which press upon
American scholars with peculiar force. Two opposite bands
of disciplined troops break in upon our academical pursuits,
as well as our literary repose, and threaten a protracted, if not
a successful, warfare. They are embodied on one side under
the leaders of what is called the Utilitarian System of knowledge, and on the other, under the clamorous advocates for
an American literature, indigenous, exclusive, and national.
Upon the former topic I do not purpose to touch. Upon the
latter I would say a few words, as it constitutes the staple
of so many of our public addresses, and ambitious essays.
What do we mean by a National Literature?  Do we mean
by it a literature fostered and cultivated by American authors,
addressing themselves to themes common to the world of
letters? Or, do we mean by it a literature, which deals
1 See Milton's Paradise Lost, B. 4,1. 76.




768             MISCELLANEOUS WRITINGS.
altogether in local topics, and busies itself only with institutions, and manners, and feelings, and discussions, peculiar to
ourselves? If the former, it would be an idle waste of time
to discuss the subject. The cultivation of literature in any
country must essentially depend upon general causes, which
rarely admit of much acceleration or retardation in their progress. An enduring literature must almost necessarily be of
slow growth. It cannot be raised in the hot-beds of patronage or of power alone. It must spring up spontaneously, and
be congenial to the soil. It can acquire excellence only, when
the process of ripening is in a healthy air and a robust climate. It presupposes the existence of a large class of educated men, beyond what the steady demands of civil, political, and professional life require, for the advancement of the
general interests of the society.  It presupposes, that the
rewards of other employments are not more certain and more
tempting; more inviting from their relative facility of being
reached; or more sure of conducting the aspirants to the
repose and dignity of independence. It presupposes general
wealth enough in the community to afford leisure to a large
class of scholars to devote themselves to the highest pursuits
of ambition, and the attainment of an imperishable fame;
so that they may be content to wait for distant results. It
presupposes, that it will afford a competent livelihood, to
repay the exhausting labors of authorship, - for painful days,
and wakeful nights, which move heavily on in the midst of
secret and solitary studies, and indifference, and ill-health,
and poverty. Until these things exist,  nay, until they in a
great measure coexist, and act and react simultaneously upon
each other, it is in vain to call for national literature and
national authors. There must be patronage, liberal, constant,
and comprehensive, as well as genius and talent, in the land.
The public must be ready to reward authors as well as to
praise them; to protect as well as to read their works; to
encourage the domestic manufacture by giving it a reciprocal
market abroad. Until this period shall arrive, it will be in




LITERARY TENDENCIES OF THE TIMES.        769
vain to ask, or even to hope for a solid advancement in
national literature. There may be, and there will be, occasional bursts of literary talent; but they will be irregular and
transitory. There may be, and there will be, here and there,
an author of exquisite elegance, or profound research; but
for the most part, the lights will be flickering and faint, and
do little more than skirt our horizon.
But if we mean by a national literature the other alternative before alluded to, a literature devoted to local thoughts,
objects, interests, habits, and feelings, which shall stand out,
like our lakes and rivers and waterfalls, with a sort of territorial magnificence or sovereignty (as is but too often the
suggestion of national pride); then it might be worth while
to consider, whether it were desirable, if attainable; or if
attained, whether it would not sink us down to the level of
a provincial dependency rather than elevate us to the rank of
equals in the republic of letters. It is true, that the vanity
of possessing the home market might lead us to address
nothing to foreign minds, or to foreign sympathies; that we
might clothe ourselves with the common fabrics and costumes, manufactured to the order and fashion of the day,
without dreaming that they might possess neither grace nor
dignity, and would be rejected by the taste, as well as be
unsuited to the good sense of other ages. To the great
author, seeking for permanent fame, may be addressed the
same language which has been addressed to the great painter.
" He must divest himself of all prejudices in favor of his age
or country; he must disregard all local and temporary ornaments; and look only to those general habits which are
everywhere, and always the same. He addresses his works
to the people of every country and every age; he calls upon
posterity to be his spectators; and says, with Zeuxis,'In
ceternitatem pingo.' " 
Nay, I will go farther, and venture to affirm, that no author
1 Sir Joshua Reynolds's Discourses, p. 59.
65




770            MISCELLANEOUS WRITINGS.
of any nation has ever attained permanent celebrity, whose
works have not in fact been addressed to sentiments, feelings,
sympathies, and experiences, common to the human soul in
all countries, and all ages. There may be found a few persons whose works paint transactions, which are purely local,
or transient, and who may thus enlist the curiosity of the
diligent antiquarian; but it is rather as specimens than as
models. The mass of authors in ancient as well as in modern times, who are familiarly read, or extensively known, -
are read and known, because their thoughts belong to all
generations, and have inflamed the genius and warmed the
hearts of the instructed as well as of the rude. The orators,
the poets, the philosophers, and the historians of Greece and
Rome are admired, not merely for the exquisite language in
which their works are clothed, but for the lessons of wisdom
which they teach; for the truths which they expound; for the
beautiful and sublime imagery which they exhibit; and for
the large results of human passions and human actions which
they narrate or suggest. These are just as striking, and just
as important and useful now as they were thousands of years
ago. The works of Aristotle and Cicero have probably furnished more materials for instruction upon all the topics, of
which they treat, than those of any other authors who have
flourished before or since their times. There is not a single
page of Sallust or Tacitus, even when professedly discussing
motives, or recording events which now seem almost evanescent points of history, which are not replete with sound philosophy, with profound reflection, with acute analysis, of
character, manners, and government, and with principles of
universal application, which deserve to be treasured up as
among the most valuable benefactions to the human race.
To no nation on earth are the truths there unfolded, and the
commentaries there condensed, of more importance than to
ourselves. We may there see, how factions are engendered
and how republics are ruined. How men in free governments become base, and servile, and corrupt, as well as, how




LITERARY TENDENCIES OF THE TIMES.            771
they must act, in order to maintain the strength, the glory,
and the well-balanced liberty of the State. Who does not
read the common fate of republics, when Sallust, with searching severity, says; " Ubi labore atque justitia Respublica crevit,- seevire Fortuna, ac miscere omnia ccepit. Qui labores,
pericula, dubias atque asperas res facile toleraverunt, iis
otium, divitime, optandae aliis, oneri miseraoque fuere. Igitur
primo pecunie, deinde Imperii Cupido, crevit; ea quasi materies omnium  malorum  fuere." I  Who does not see in his
brief, but startling sketch of Catiline, the profligate demagogue of every age and country, at once crafty, selfish, variable, bold, and ambitious. " Animus audax, subdolus, varius,
cujuslibet rei simulator ac dissimulator, alieni appetens, sui
profusus, ardens in cupiditatibus, satis eloquentire, sapientie
parurn."2 Who does not see the fawning sycophants and
base retainers, waiting upon power and patronage, who pursue its triumph and partake its gale, in a single passage of
Tacitus, of terrific grandeur, alluding to a period, when even
fallen Rome yet affected liberty.  "At Rome ruere in servitium, Consules, Patres, Eques.  Quanto quis illustrior, tanto
magis falsi ac festinantes, vultuque composite, ne laeti excessu Principis, neu tristiores primordio, lacrimas, gaudium,
questus, adulatione miscebant." 3
These great men wrote not to foster the pride, or the tastes,
or the prejudices of their own country. They wrote not for
Rome, but for the world; not for their own age, but for all
posterity. Sallust avows this to be his own motive; conscious (as he says) that virtuous fame alone is immortal.
" Mihi rectius esse videtur, ingenii, quam  virium  opibus,
gloriam  quarere, et quoniam  vita ipsa, qu'a fruimur, brevis
est, memoriam nostri, quam maxume longam efficere. Nam
divitiarum et formw gloria fluxa atque fragilis; virtus clara
amternaque habetur."4 I have reserved (said Tacitus) a more
1 Sallust. Bell. Catil. ~ 10.  2 Ibid. ~ 6.
3 Tacit. Annal. Lib. 1, cap. 7.  4 Sallust, Bell. Catil. ~ 1.




772             MISCELLANEOUS WRITINGS.
fertile and secure subject for my old age, when, owing to the
rare felicity of the times, you are at liberty to think what
you please, and to speak what you think. "Uberiorem securioremque materiam senectuti seposui, rara temporum felicitate, ubi sentire qurn velis, et qum sentias dicere licet."  A fit
lesson to be learned even in this favored land; for, here,
no mean courage is sometimes required, to speak what we
think, when it strikes at some prevalent delusion; or to abstain from flattering the prejudices of the people, when the
truth might offend them.
But I need not refer to the ancients. All countries and all
ages furnish the same illustrations. There is not (I repeat
it) a great author, who has come down to us with literary
celebrity, whose pages are not addressed to interests, affections, and principles, common to all mankind. Tell me the
author, who, since the revival of letters, has attained and
still holds a settled eminence, in Italy, or Germany, or France,
or England, whose writings are not felt to be the inheritance
of the world? His works may have a strong flavor of the soil
where they were produced; they may be tinctured with the
colors of the age, in which they lived; they may even be
soiled and stained by its vices, or its follies, or its affectations. But these blemishes and peculiarities are accidental
and unfelt, and serve but to present in a broader light their
intrinsic excellences, - as the blur in the diamond reveals its
imperfections, without diminishing the vivid sparkles from its
transparent surface. Who, for a moment, could imagine, that
Dante, or Tasso, or Shakspeare, or Milton, or Locke, or Klopstock, or Goethe, or Schiller, or Racine, wrote solely for their
own times and their own country; and did not possess the
proud consciousness, that they would be read by future generations in every nation, where letters should be cherished,
however refined and however remote. " My name and memory," (was the affecting and melancholy language of Lord
1 Tacit. Hist. lib. 1, cap. 1.




LITERARY TENDENCIES OF THE TIMES.        773
Bacon, in his last will,)'" My name and memory I leave to
foreign nations, and to mine own countrymen, after some
time be passed over."
There could not, indeed, be a more dangerous delusion,
than the attempt on the part of American authors to build up
an exclusive national literature in the sense, to which I have
last alluded. Our just ambition should be to make our literature a component part of the literature of the world, for the
use of all nations and all ages. Let it have the bold impress
of American genius, and the masculine vigor, and the brave
spirit of inquiry and expression, which fitly belong to a free
government, and an unshackled press. But let it rise to the
dignity and elevation of an appeal to the highest minds in
their highest studies, wherever their nativity may be cast.
Let it speak a universal language, and address passions, feelings, sympathies, and principles, which glow with equal
fervor at the poles and at the equator. Let the thoughts be
such, as may save the language itself from perishing. Let
them live on, and bless, and improve mankind, and unfold
to them their duty and their destiny, until the period shall
arrive, when tyrants and barbarians shall consign all books to
a common destruction, as an incumbrance upon anarchy or
despotism.
And this leads me to say a few words, and but a few
words, for
"On our quickest decrees
The inaudible and noiseless foot of time
Steals, ere we can effect them,"
upon the duties of scholars in our day, and especially of
American scholars. Much of what has been already said
points its moral to this end and object. We have seen some
of our dangers and difficulties. They may not be disguised,
or concealed; but they must be met and confronted with a
firm confidence and steady perseverance. The time has
come, when the study of the ancient classics, of the great
writers of Greece and Rome, is required to be reasoned out
65 *




774             MISCELLANEOUS WRITINGS.
and vindicated anew. While it is advancing with a steady
pace among a select class of minds, we cannot fail to see, that
it is in a proportionate degree holding a less comprehensive
influence with the community at large. The sympathies, as
well as the attractions, of other pursuits, and the brilliant
achievements of physical science, have cast it with the multitude into comparative obscurity. But a more sweeping
and impetuous cause is the strong tendency of the day to
popular education and popular schemes of instruction. Knowledge, it is now thought, may be acquired with far less labor
and in a more brief space. Compendious systems have succeeded the tardy progress and rough discipline of former
times. The youthful mind is now required to be crammed
with all sorts of learning and science, at a period of life when
it can scarcely digest any. We hurry on the work of education with an eager and crowded impatience, and seek to condense the labor of years into that of months. All things are
to be taught at the same moment; Dum fervet opus. And
the appointed course once run over, the preparations of active
life are deemed complete; the prizes of life are already within
reach; and superfluous study is dismissed, as equally without
pleasure and without profit.
It is for American scholars to rouse themselves for the
coming events, which cast their shadows before. They must
press upon the public attention, with a fearless spirit of expostulation, the utter folly of all such expectations; they
must proclaim the solemn fact, that facile methods of education are mere delusions, which cheat us out of our time, as
well as impair the vigor of our understandings; that they will
make us at once superficial and conceited, and enervate without filling the mind. It has been eloquently said, that " These
noble studies preserve, and they alone can preserve, the unbroken chain of learning, which unites the most remote
generations; the grand catholic communion of wisdom and
wise men, throughout all ages and nations of the world." 1
1 Life of Mackintosh, vol. i. p. 119.




LITERARY TENDENCIES OF THE TIMES.         775
But a duty still higher, and more imperative, and urgent, is
to stand forth as champions of truth, of sound morals, sound
principles, and sound learning. It has been often suggested,
as a matter of reproach, by foreigners, that our scholars and
statesmen do not speak out to the public their real opinions.
That they do not say, what they think, nor think, what they
say. That our public harangues, and set pamphlets, and
newspaper essays, are abundantly overlaid with flattery of
vulgar errors, or popular delusions. That the people have
perpetually trumpeted in their ears the praise of their wisdom
and virtue and intelligence, when it is apparent, that there is
the most sincere distrust of them all, and often the belief, that
we are on the downward path of ruin. In short, that the
whole body of our passing literature, and the spirit of our
public discussions, are moulded and fashioned to suit the
ever-varying forms of the popular will, and thus bring discredit upon our judgments, as well as upon our sincerity.
Admitting, that there is much of false and exaggerated
statement in these suggestions, still there is truth enough at
the bottom to challenge inquiry and demand reform. Has our
literature in general a bold, healthy, solid, reflective, masculine character? Does it possess a fearless spirit of expostulation, or reproof, and a lofty avowal of principles, suited to the
exigencies of our times? Does it tell the truth, the whole
truth, and nothing but the truth, without fear, favor, affection,
or hope of reward? Does it combat error, and expose folly,
and resist visionary but captivating theories, by stirring appeals to the sober sense of the community, and the enlightened judgments of the wise?  When the fundamental principles of republics, nay, of all governments, are assailed with
presumptuous rashness, and the rights of property, and the
securities of constitutions are assailed and questioned, does
our literature come out, and unmask the deceit, and vindicate
the truth, or does it lie by, and with indolent ease sleep over
the evils, or silently evade its duty by hoping for the best, or
softly whisper regrets, lest it should rouse opposition, or




776              MISCELLANEOUS WRITINGS.
encounter obloquy? To these interrogatories let every scho.
lar answer for himself. But let him remember, that these
are not times to blink at questions, or to push aside inquiries.
Not only is the schoolmaster abroad, but the skeptic is by his
side, and the importunate reformer with his nostrums, and the
enthusiast with his idealities and abstractions. Christianity
itself is called upon, on one side, to buckle on its armor, not
to maintain the mere creeds and dogmas of a peculiar church
or sect, but to establish its facts and its miracles, nay, the
reality of the character, if not the personal existence, of the
Founder of its hopes and its consolations. On another side,
Protestantism is again required, at the distance of three centuries after its noble triumphs, to show its title-deeds and its
rights. It is put upon its defence, and asked for reasons and
authority, —for its faith and its observances, —for its priesthood and its ordinances. The assaults come not from Rome
alone. The battlements of Oxford frown upon its heresies,
and forbid the banns of its alliance with the church. The
warders upon her towers rebuke its backslidings, and demand
a surrender of its banners and a renunciation of its errors.
The blood of the martyrs has been spilled in vain. The
warnings of the prophets have been proclaimed in vain. The
Taylors, the Cudworths, the Chillingworths, the Barrows, and
the Clarkes, have been but blind leaders of the blind. The
Puritans and the Covenanters, the Presbyterians and the
Congregationalists, the Calvinists and the Lutherans, are to
lay down their spiritual arms, and submit to the sentence of
the Vatican, pronounced on the banks of the Isis. These,
then, are not the days for scholars, and least of all, for American scholars, to relapse into indolent indifference, or to send
forth doubtful responses from their oracles, inviting double
interpretations. The contest is no longer one with ignorance,
or folly, or illiterate skepticism. The voices come from the
seats of learning, from the deep studies of the closet, and
from the bold speculations of gifted minds, capable of dealing
with human rights and human belief. Learning must now




LITERARY TENDENCIES OF THE TIMES.       777
be met by learning, talent by talent, genius by genius. The
demand is for logic and reasoning, and historical truth, and
not for mere dogmas or authority. Vague declamation will
not suffice. There must be close, forcible, clear, convincing
argumentation.
I might add, if time would allow me, that there are other
duties, devolving upon our scholars and statesmen, which
come home, at this very moment, to our business and bosoms.
To master the great questions, which now agitate, not merely
our public councils, but the minds of the whole nation, upon
topics of political economy,- of national rights and duties, —
of constitutional obligations, -and of social interests, there
are required all the resources of our knowledge and experience,
the powers of eloquence, the lights of history, the most thorough investigations of the principles of international law.
Have there been, and are there now brought to the task, free
from the admixture of all extraneous and impure ingredients,
the profound and honest judgments of our best scholars and
statesmen? Or have the passions and prejudices and interests
of the day mingled in the strife, and disturbed all the just
influences, which ought to govern the discussions? Has it
been left to the great minds, and the enlarged experience, and
the learned studies of our best men, to expound subjects, so
full of delicate and difficult relations? Have not rash men
leaped into the arena, where angels might almost fear to
tread, and eagerly sought to forestall the public judgment, by
appeals to popular or local interests, or by lofty denunciations
of all, who dared to promote calm inquiry, or the severe analysis of principles? One should have thought, that the very
gravity of such topics would have suppressed all arrogant
assertion, and put to flight all dogmatism and theories; that
we should have consulted the oracles of other times, and
sought instruction from their wisdom; that we should have
invoked the aid of Grotius, and Puffendorf, and Vattel, and
Burke, and Adam Smith, and the authors of the Federalist,
to enlighten our judgments, and purify our souls from debasing generalities.




778              MISCELLANEOUS WRITINGS.
And, again, it is the duty of our scholars to elevate the
standard of our national literature; to engage it in themes
more worthy of our destiny and rank in the republic of letters; to lift it above the petty strifes, the wild fantasies, and
the vague novelties of the. day. If we may not aspire to the
highest efforts of human genius, to the sublimer walks.of
poetry and philosophy, which dazzle by excess of light, we
may yet seek a more elevated region, and breathe a purer air,
than broods over the barren plains and misty valleys of common life.
"Largior hice campos lAEther, et lumine vestit
Purpureo, - Solemque suam, sua sidera noraIlt."
Gentlemen, —-I have done.  As I close this discourse I
cannot but turn my eyes to our venerable University, and
ask, what she demands of us, her children, for the cause of
religion, of letters, and of learning. She has stood forth for
centuries, the glorious defender of truth, -unshaken, - unseduced, - unterrified.  She has nourished in her bosom the
wise, the eloquent, the renowned, the holy. In the days of
her adversity, she has borne the brunt and burden without
fear or faltering. In the days of her prosperity, she has been
content to cultivate learning, and promote the arts of peace.
Shall not her children rise up, and call her blessedtl. At this
very moment I seem to see the shades of her departed sons
pass slowly before me, —the long procession of two hundred
years. They point with deep thoughtfulness to the past, and
with earnest solicitude to the future. Their silence, more
expressive than any human speech, addresses to us, at once,
the language of admonition, - of exhortation, - of encouragement, - of entreaty. Methinks, as their shadowy forms
glide away, the silence is for a moment broken, and I hear
their united voices, in unearthly tones, utter, from beyond
the grave,
"0! Socii,- Antiquam exquirite Matrem."




SKETCHES OF JUDGES AND LAWYERS.








SKETCH
OF THE LIFE AND CHARACTER OF SAIMUEL DEXTER.
[This sketch formed the concluding part of a Charge, delivered to the Grand Jury,
at the Circuit Court holden at Boston, in the District of Massachusetts, in May,
1816; and was then published, at the joint request of the Grand Jury and the
members of the Bar of the Circuit Court.]
I HAVE now  finished the brief review  of those offences
which are most important in the criminal code of the United
States. And happy should I be, if I could congratulate you
on the peace and general prosperity of our country, without
mingling emotions of a painful nature.  But how is it possible to enter this hall of justice, and cast my eyes among my
brethren at the bar, without missing one, who, for many years,
has been its distinguished ornament?
On ordinary occasions of the loss of private or professional
friends, we may properly bury our sorrows in our own bosoms.
In such cases the public do not feel that deep sympathy which
authorizes us to speak aloud our anguish and disquietude.
But when such men as Mr. Dexter die, the loss is emphatically a public loss, and the mourners are the whole nation.
To give utterance to our feelings is, therefore, a solemn duty.
It is fit, that the example of the great and good should be
brought forward, for the imitation of the young and ambitious; that gratitude for eminent services should find a voice
as public as the deeds; and that exalted genius, when it has
ceased to attract admiration by its living splendor, should be
66




782            MISCELLANEOUS WRITINGS.
consecrated in the memories of those whom it has instructed
or preserved.
I feel assured, therefore, that I am not stepping aside from
the path of duty, or pressing unduly upon your attention, by
devoting a few minutes of your time to a sketch of the history
and character of this illustrious lawyer and statesman.
Mr. Dexter was descended from a highly respectable parentage. His grandfather was a clergyman. His father, the Hon.
Samuel Dexter, was a merchant, and resided many years at
Boston, where his son Samuel was born in the year 1761.
The father early distinguished himself in the struggles between
the Crown and the people of Massachusetts, previous to the
Revolution; and, for his public services, was several times
elected to the Council by the House of Representatives, and
as often rejected by the royal governor of the province. He
was at length admitted to a seat in the Council by the prudence or the fears of the executive; but in 1774 was again
negatived "by the express command of his majesty."  Towards the close of his life he retired altogether from public
affairs, and engaged in a profound investigation of the great
doctrines of theology. At his death he bequeathed a handsome legacy to Harvard University, for the encouragement of
biblical criticism; and upon this honorable foundation, the
Dexter lectureship has since been established.
Mr. Dexter, the son, after the usual preparatory studies, was
matriculated at Harvard University in 1777, and received the
usual degree of bachelor of arts in 1781. During his residence at the University, he gave ample promise of those
talents, which shed so much lustre on his riper years. At a
public exhibition he delivered a poem, which was at that time
received with great applause, and is still considered as highly
creditable to his taste and judgment. On receiving his degree, he was selected for the first literary honors in his class,
which he sustained with increasing reputation.
He now determined to engage in the profession of the law,
a science, whose acute distinctions and logical structure were




SAMUEL DEXTER.                783
wonderfully adapted to invigorate and develop the powers of
his understanding. He passed the usual preparatory term at
Worcester, under the tuition of the Hon. Levi Lincoln, then an
eminent counsellor at the bar, and since Lieutenant Governor of
the Commonwealth. During this period, and for several years
after his admission to the bar, Mr. Dexter devoted himself with
unceasing assiduity to acquire the elements of law; and, as
may be easily supposed from his great abilities, he was completely successful in his purposes.  Notwithstanding many
discouragements of a public nature, which, at that time
pressed heavily on young lawyers, Mr. Dexter rose rapidly
into professional notice, and soon found himself surrounded
with clients and business. In a short time he was chosen to
the State Legislature; and his sound judgment and comprehensive policy gave him great weight and influence in all the
deliberations of that body. From the State Legislature he
was transferred to the Congress of the United States, being
first elected to the House of Representatives, and afterwards
to the Senate, by the suffrages of his native State. Perhaps
there has been no period since the establishment of the government, which more imperiously demanded all the foresight
virtue, and discretion of the ablest statesmen, than that in
which Mr. Dexter was called to assist in the national councils.
The first talents in the respective parties, which then divided
the country, were drawn into Congress. The floors of the
two houses became a vast amphitheatre, on which the struggles
for political power and principle were maintained, with all the
eloquence of rhetoric and strength of reasoning, which the
zeal of party could enkindle in noble minds. The most deep
and impassioned feelings took possession of the nation itself;
and the same thrilling sensations which agitated Congress,
electrified the whole continent. It seemed as if every power
of the human mind was summoned to its proper business,
and stretched to the most intense exertion. Many of you can
recall the emotions of those days; and to those of us who
were then reposing in academic shades, the light that burst




784            MISCELLANEOUS WRITINGS.
from the walls of Congress, seemed reflected back from every
cottage in the country. At no period of his life did Mr. Dex.
ter more completely sustain his reputation for extraordinary
talents. His clear and forcible argumentation, his earnest and
affecting admonitions, and his intrepid and original development of principles and measures, gave him a weight of authority, which it was difficult to resist. Perhaps no man was
ever heard by his political opponents with more profound and
unaffected respect.
Mr. Dexter resigned his seat in the Senate, on his appointment as Secretary of War, under the administration of President Adams. He next received the office of Secretary of the
Treasury; and, during a short period of vacancy, discharged
also the functions of the Department of State. These were to
Mr. Dexter new and untrodden paths. The habits of his life,
and the pursuits of his mind, were ill suited to that minute
diligence, and those intricate details, which the business of
war and finance unavoidably impose upon the incumbents of
office. He felt a great reluctance to engage in such employments, for which he professed no peculiar relish, and in which
his forensic discipline and senatorial experience might not
always guide him to correct results. His acceptance of these
high stations was not, therefore, without much hesitation;
but having accepted, he immediately employed the whole
vigor of his mind to attain the mastery of all their multifarious duties. That he fully accomplished his purpose can be
no surprise to those who knew him. Such was his intellectual capacity and discrimination, that what he had the wish
to acquire cost him far less than any other man. The readiness, with which he received knowledge, seemed, at times,
almost like instantaneous inspiration. He did not often
choose to engage in laborious inquiries; but he had the
necessary firmness and perseverance to attain whatever was
essential to his ambition or public duties.
Towards the close of Mr. Adams's administration, he was
offered a foreign embassy, which he declined; and upon the




SAMUEL DEXTER,                 785
accession of Mr. Jefferson to the presidency, he resigned his
public employments, and returned to the practice of the law
with unabated zeal. From this period he engaged less in
political controversies; and reserved himself principally for
professional or theological researches. He had always accustomed himself to an independence of thinking upon all subjects,
legal, political, and religious. He subscribed to no man's
creed, and dealt in the dogmas of the school of no master;
but he examined, and weighed, and decided every thing for
himself. He observed, or thought he observed, that parties
were gradually changing their policy and principles; and, on
this account, he seems to have felt less desire to engage in
controversies, where his judgment and political friendship
might not always be reconcilable. On two memorable occasions, which are yet fresh in our recollections, he took an
active political part. I refer to his opposition to the embargo
and non-intercourse system, and his support of the late war.
But, except in these instances, he rarely, if ever, appeared,
after his return to the bar, as the strenuous advocate or opposer of any of the great political measures, which agitated the
nation. It was not that he looked on with indifference, or
sought to evade responsibility by equivocation or reserve.
On the contrary, he was always frank, communicative, and
decided. But his judgment was so little in unison with the
wishes of any party, that he expressed his opinions, rather as
guides of his own conduct, than from a hope to influence
others. He was as incapable of deceiving others, as he was
of deceiving himself; and would rather surrender the popularity of a whole life, than submit his own judgment to any
sect in church or state.
It is not unusual, in men of eminence, after having withdrawn a few years from the bar, to find it difficult, if not impracticable, to resume their former rank in business. Nothing
of this sort occurred to check the progress of Mr. Dexter. He
was immediately engaged in almost all the important causes
in our highest courts; and popular favor seemed to have
66 *




786             MISCELLANEOUS WRITINGS.
increased, rather than diminished, during his temporary retirement. From the triumphs and victories of the State bar, his
reputation soon carried him to the Supreme Court of the
United States, where it has been my pride and pleasure, for
many years, to see him holding his career in the foremost
rank of advocates. This would entitle him to no ordinary
praise; for that bar has been long distinguished by the
presence of many of the most illustrious lawyers in the
Union.
In no situation have the admirable talents of Mr. Dexter
appeared with more unclouded lustre, than in his attendance
on the Supreme Court at Washington. For several years he
passed the winters there, under engagements in many of the
most important causes. Rarely did he speak without attracting an audience composed of the taste, the beauty, the wit,
and the learning, that adorned the city; and never was he
heard without instruction and delight.  On some occasions,
involuntary tears from the whole audience have testified the
touching power of his eloquence and pathos. On others, a
profound and breathless silence expressed, more forcibly than
any human language, the riveted attention of an hundred
minds. I well remember with what appropriate felicity he
undertook, in one cause, to analyze the sources of patriotism.
I wish it were possible to preserve the whole in the language
in which it was delivered. No one, who heard him describe
the influence of local scenery upon the human heart, but felt
his soul dissolve within him. I can recall but imperfectly a
single passage; and stript of its natural connection, it affords
but a glimmering of its original brightness. " We love not
our country," said the orator, " from a blind and unmeaning
attachment, simply because it is the place of our birth. It is
the scene of our earliest joys and sorrows. Every spot has become consecrated by some youthful sport, some tender friendship, some endearing affection, some reverential feeling. It is
associated with all our moral habits, our principles, and our
virtues. The very sod seems almost a part of ourselves, for




SAMUEL DEXTER.                 787
there are entombed the bones of our ancestors. Even the
dark valley of the shadow of death is not without its consolations, for we pass it in company with our friends."  In a
still more recent instance, and, indeed, in one of the last
causes he ever argued, he took the occasion of an appropriate
discussion, to expound his own views of the constitution, and,
dropping the character of an advocate, to perform the paramount duty of a citizen. He seemed, as if giving his parting
advice and benediction to his country, and as if he had
worked up his mind to a mighty effort to vindicate those
solid maxims of government and policy. by which alone the
union of the States can be upheld and perpetuated.  It
is deeply to be regretted, that his just and elevated views
are now confined to the frail memories of those who heard
him.
In the spring of 1815, Mr. Dexter was requested by President Madison to accept an extraordinary mission to the Court
of Spain; but, from a reluctance to go abroad, he declined
the appointment.
During the last winter, Mr. Dexter was, for a few days,
afflicted with the epidemic prevailing at Washington; and
was once compelled, from indisposition, to stop in the argument of a cause. He had, however, entirely recovered, and
never seemed in better health. On his return from Washington, he went, with his family, to Athens, in the state of New
York, to assist in the celebration of the nuptials of his son.
He arrived there on Tuesday, the thirteenth of April, somewhat unwell; but no serious alarm for his safety existed until
the day previous to his death. Finding his dissolution approaching, he gave the proper directions respecting his affairs,
and prepared to meet his fate with the calmness of a Christian philosopher. He could look back on a life devoted to
virtuous pursuits without reproach, and his regrets could only
be for his family and his country. About midnight, on Friday,
the third of May, he lost his senses; and, in three hours afterwards, he expired in the arms of his family, without a struggle
or a groan.




788             MISCELLANEOUS WRITINGS.
Such was the life and such the death of Mr. Dexter. I
forbear to give a minute account of the literary honors, which
he received, and of the public institutions of which he was a
~member. I am aware, how little I am qualified for the office
of his biographer; but I have this consolation, that he needs
no other panegyric but truth. I will close these hasty sketches
with a few remarks on his person, character, manners, and
acquirements.
In his person, Mr. Dexter was tall, and well formed; of;
strong, well defined features, and bold, muscular proportions.
His manners were, at a first interview, reserved and retiring;
and this was sometimes mistaken by a careless observer for
austerity or pride. But this impression vanished on a farther
acquaintance; and it was soon perceived, that, though he
made no effort to court popularity, he was frank, manly, and
accessible; and at the bar conciliatory and respectful. His
countenance was uncommonly striking; and yet, perhaps,
scarcely gave at once the character of his mind. Unless
awakened by strong interests, his features relaxed into a
repose, which betrayed little of his intellectual grandeur. In
such situations his eyes had a tranquil mildness, which
seemed better suited to an habitual indolence of temperament,
than to fervid thoughts. Yet a curious observer might read
in his face the traces of a contemplative mind, sometimes
lost in reveries, and sometimes devoted to the most intense
abstractions of metaphysics. When roused into action, his
features assumed a new aspect. A steady stream of light
emanated from his eyes, the muscles of his face swelled with
emotion, and a slight flush chafed his pallid cheeks. His
enunciation was remarkably slow, distinct, and musical;
though the intonations of his voice were sometimes too
monotonous. His language was plain, but pure and well
selected; and, though his mind was stored with poetic
images, he rarely indulged himself in ornaments of any kind.
If a rhetorical illustration, or striking metaphor sometimes
adorned his speeches, they seemed the spontaneous burst of




SAMUEL DEXTER.                 789
his genius, produced without effort, and dismissed without
regret. They might, indeed, be compared to those spots of
beautiful verdure, which are scattered here and there in Alpine
regions, amidst the dazzling whiteness of surrounding snows.
In the exordiums of his speeches he was rarely happy. It
seemed the first exercise of a mind struggling to break its
slumbers, or to control the torrent of its thoughts. As he
advanced, he became collected, forcible, and argumentative;
and his perorations were uniformly grand and impressive.
They were often felt, when they could not be followed.
Such was the general character of his delivery. But it
would be a great mistake to suppose, because his principal
favorite was ratiocination, that his delivery was cold, tame,
or uninteresting. I am persuaded, that nature had given him
uncommon strength of passions. The natural characteristics
of his mind were fervor and force; and, left to the mere workings of his own genius, he would have been impetuous and
vehement. But he seemed early to have assumed the mastery of his mind; to have checked its vivid movements by
habitual discipline; and bound his passions in the adarnantine chains of logic and reasoning. The dismissal of the
graces of fancy and of picturesque description were with him
a matter of choice and not of necessity. He resigned them,
as Hercules resigned pleasure, not because he was insensible
of its charms, but because he was more enamored of wisdom.
Yet, as if to show his native powers, he has sometimes let
loose the enthusiasm of his genius, and touched with a mnaster's hand every chord of the passions, and alternately astonished, delighted, and melted his hearers. Something of the
same effect has been produced by what may be fitly termed,
the moral sublimity of his reasoning. He opened his arguments in a progressive order, erecting each successive position upon some other, whose solid mass he had already
established on an immovable foundation, till at last the
superstructure seemed, by its height and ponderous proportions, to bid defiance to the assaults of human ingenuity. I




790            MISCELLANEOUS WRITINGS.
am aware that these expressions may be deemed the exaggerations of fancy; but I only describe what I have felt on
my own mind; and I gather from others, that I have not
been singular in my feelings.
It would be invidious to compare Mr. Dexter with other
illustrious men of our country, either living or dead.  In
general acquirements he was unquestionably inferior to
many; and even in professional science he could scarcely be
considered as very profound, or very learned. He had a disinclination to the pages of black-lettered law, which he sometimes censured as the scholastic refinements of monkish
ages; and even for the common branches of technical science,
the doctrines of special pleading, and the niceties of feudal
tenures, he professed to feel little of love or reverence. His
delight was to expatiate in the elements of jurisprudence,
and to analyze and combine the great principles of equity
and reason which distinguish the branches of maritime law.
In commercial causes, therefore, he shone with peculiar advantage. His comprehensive mind was familiar with all the
leading distinctions of this portion of law; and he marked
out, with wonderful sagacity and promptitude, the almost
evanescent boundaries which sometimes separate its principles. Indeed, it may be truly said of him, that he could
walk a narrow isthmus between opposing doctrines, where
no man dared to follow him. The law of prize and of
nations were also adapted to his faculties; and no one who
heard him upon these topics, but was compelled to confess,
that, if he was not always convincing, he was always ingenious; and that, when he attempted to shake a settled
rule, though he might be wrong upon authority and practice, he was rarely wrong upon the principles of international
justice.
In short, there have been men more thoroughly imbued
with all the fine tinctures of classic taste; men of more playful and cultivated imaginations; of more deep and accurate
research; and of more various and finished learning. But if




SAMUEL DEXTER.                  791
the capacity to examine a question by the most comprehensive analysis; to subject all its relations to the test of the
most subtle logic; and to exhibit them in perfect transparency to the minds of others; —if the capacity to detect,
with unerring judgment, the weak points of an argument,
and to strip off every veil from sophistry or error; — if the
capacity to seize, as it were by intuition, the learning and
arguments of others, and instantaneously to fashion them to
his own purposes; —if, I say, these constitute some of the
highest prerogatives of genius, it will be difficult to find
many rivals, or superiors to Mr. Dexter. In the sifting and
comparison of evidence, and in moulding its heterogeneous
materials into one consistent mass, the bar and the bench
have pronounced him almost inimitable.
His eloquence was altogether of an original cast. It had
not the magnificent coloring of Burke, nor the impetuous
flow of Chatham. In moved along in majestic simplicity,
like a mighty stream, quickening and fertilizing every thing
in its course. He persuaded without seeming to use the arts
of persuasion; and convinced without condescending to solicit conviction. No man was ever more exempt from finesse
or cunning in addressing a jury. He disdained the little arts
of sophistry or popular appeal. It was, in his judgment,
something more degrading than the sight of Achilles playing
with a lady's distaff. It was surrendering the integrity as
well as honor of the bar. His conduct afforded, in these particulars, an excellent example for young counsellors, which it
would be well for them to imitate, even though they should
follow in his path with unequal footsteps.
His studies were not altogether of a professional nature.
He devoted much time to the evidences and doctrines of
Christianity; and his faith in its truths was fixed after the
most elaborate inquiries. That he was most catholic and
liberal in his views is known to us all; but, except to his
intimate friends, it is little known how solicitous he was to




792             MISCELLANEOUS WRITINGS.
sustain the credibility of the Christian system; and how
ingenuous and able were his expositions of its doctrines.
As a statesman, it is impossible to regard his enlightened
policy and principles without reverence. He had no foreign
partialities or prejudices to indulge or gratify. All his aflections centred in his country; all his wishes were for its
glory, independence, and prosperity. The steady friend of
the Constitution of the United States, he was, in the purest
and most appropriate sense of the terms, a patriot and a
republican. He considered the union of the States as the
polestar of our liberties; and, whatever might be his opinion
of any measures, he never breathed a doubt to shake public
or private confidence in the excellence of the Constitution
itself. When others sank into a despondency at the gloomy
aspect of public affairs, and seemed almost ready to resign
their belief in republican institutions, he remained their inflexible advocate. He was neither dismayed by the intemperance of parties, nor by the indiscretion of rulers. He
believed in the redeeming power of a free constitution; and
that, though the people might sometimes be deceived, to
their intelligence and virtue we might safely trust to equalize all the eccentricities and perturbations of the political
system. He had the singular fortune, at different times, to
be the favorite of different parties, occupying in each the
same elevation. It is not my purpose to examine, or vindicate his conduct in either of these situations. I feel, indeed,
that I am already treading upon ashes thinly strewed over
living embers. The present is not the time for an impartial
estimate of his political conduct. That duty belongs, and
may be safely left, to posterity. Without pretending to anticipate their award, we may with some confidence affirm,
that the fame of Mr. Dexter has little to fear from the most
rigid scrutiny. While he lived, he might be claimed with
pride by any party; but now that he is dead, he belongs to
his country.




SAMUEL DEXTER.                 793
To conclude; — Mr. Dexter was a man of such rare endowments, that, in whatever age or nation he had lived, he would
have been in the first rank of professional eminence. It is
unfortunate that he has left no written record of himself.
The only monument of his fame rests in the frail recollections
of memory, and can reach future ages only through the indistinctness of tradition or history. His glowing thoughts, his
brilliant periods, and his profound reasonings have perished
for ever. They have passed away like a dream or a shadow.
He is gathered to his fathers; and his lips are closed in the
silence of death.
I rejoice to have lived in the same age with him; and to
have been permitted to hear his eloquence, and to be instructed by his wisdom. I mourn, that my country has lost
a patriot without fear or reproach. The glory that has settled
on his tomb will not be easily obscured; and if it shall grow
dim in the lapse of time, I trust, that some faithful historian
will preserve the character of his mind in pages that can
perish only with the language in which they are written.
67




SKETCH
OF THE CHARACTER OF WILLIA.M PINKNEY, OF MARYLAND.1
WILLIAM  PINKNEY died at Washington on the twentyfifth of February, of the present year, (1822,) in the fiftyeighth year of his age. He had been long distinguished
among the statesmen of this country, and had enjoyed many
public honors.  He had been a Commissioner, under the
British treaty of 1794; Minister Plenipotentiary, successively,
at the Courts of Great Britain and Russia; and AttorneyGeneral of the United States. At the time of his death, he
was a Senator in Congress, from the State of his birth,
(Maryland,) a situation, which he filled with the most distinguished ability.
Of his character, as a statesman, or a scholar, it is not the
design of this sketch to present any outline. It is, as an
advocate and lawyer, that he has a claim to receive a faint,
but reverential memorial in these pages. For many years he
stood at the head of the bar of Maryland; and, for the last
ten years of his life, (the period during which he principally
devoted himself to the business of the Supreme Court of the
United States,) he was universally admitted to be in the first
rank of the profession of the law, never supposed, by any one,
1 This Sketch was originally written at the request of a friend, and sent to
him. It is now printed from a rough copy, made at the time, with some few
alterations.




WILLIAM PINKNEY.                 795
to be excelled by any other advocate, and rarely deemed to
be equalled. His person was strong, compact, and muscular,
exhibiting great vigor of action, with no small grace and ease
of movement. His countenance, without being strikingly
interesting for its intelligence, or suavity, was manly and
open; and, when excited by any discussion, was capable of
the most powerful and varied expression, suited at once for
the playfulness of wit, the indignation of resentment, or the
solemn dignity of argumentation. His mind was singularly
subtile and penetrating, equally rapid in its conceptions, and
felicitous in the exposition of the truths, which it was employed to develop or analyze. In native genius, or, in other
words, in the power to invent, select, illustrate, and combine
topics for the purposes of argument, few men have been his
superiors. But he did not rely exclusively on the resources
of his genius. He chastened, improved, and invigorated it
by constant study, and laborious discipline. He was from
early life a diligent student, not only of the law but of general literature, and especially of classical literature. He was
ambitious to be not only a good, but an exact scholar; not
only a persuasive, but an elegant writer; not only a splendid,
but a solid speaker; full of matter, as well as of metaphor;
able to convince, as well as to instruct and please. His professional learning was very extensive, deep, and accurate.
It was the gradual accumulation of nearly forty years' steady
devotion to the science, as well as practice, of jurisprudence.
He possessed a minute acquaintance with the ancient common law. Its technical principles, and feudal peculiarities,
its quaint illustrations, its subtile distinctions, and its artificial, but nice, logic, were all familiar to his early thoughts,
and enabled him, in the later periods of his life, to expound
the abstruse doctrines of modern tenures and titles, with great
facility and perspicuity. But his studies were not confined
to nmere researches into the doctrines of the old law. His
reading was very extensive in all the departments of modern jurisprudence; and his practice, which was, perhaps,




796            MISCELLANEOUS WRITINGS.
more various than that of any other American lawyer, led him
to a daily application of all his learning in the actual business
of the forum. Few men, in our country, had attained so
exact, thorough, and methodized a knowledge, as he, of the
general principles of the law of nations; of the doctrines of
the prize and admiralty courts; of the broad and various
foundations of equity jurisprudence; and of the admirable
theories, as well as practical developments, of all the branches
of maritime and commercial law.
In another department of professional learning, peculiar to
these United States, he had attained a proud eminence. It
was in the thorough mastery of the principles of constitutional law.  His public life commenced about the period,
when the Constitution of the United States was formed and
adopted by the people. He was familiar with all the early
controversies, to which it gave rise, and with the commentaries and glosses, as well of its enemies as of its friends. And
his large experience as a statesman and advocate, gradually fixed in his mind all the rules for the true interpretation
of its powers, its spirit, and its language. No one, perhaps,
had weighed with more exactness or deliberation the bearing
and tendency of its various complicated provisions. No one
felt more deeply its absolute and indispensable importance to
the existence of the nation. No one more sincerely and uniformly contended for a liberal exposition of its granted powers
and privileges. Hence his arguments upon all constitutional
questions in courts of justice, as well as in the halls of legislation, were characterized by an earnestness, a gravity, an
eloquence, and force of reasoning, which convinced every
man who heard him, that he spoke his own opinions, under
the deepest sense of responsibility to his country, and that
he sunk the advocate in the higher duties of the statesman. His last thoughts rested with an anxious solicitude
upon the future destinies of his country. His last moments
were employed in profound investigations, to sustain the constitution against the attacks, made upon it, in the then pend



WILLIAM PINKNEY.                 797
ing struggles for state sovereignty. And the writer of this
sketch heard the declaration from his own lips, a short period
before the illness, which terminated his life, that he was then
preparing the materials, for a last and great effort on this
subject, which, as a commentary upon the principles and
powers of the constitution, he intended to bequeath to his
country, as the closing labor of his political life.
The celebrity of Mr Pinkney, as a public speaker, requires
some notice, in this place, of the nature and character of his
oratory. It was, in manner, original, impressive, and vehement. He had some natural, and some acquired defects, which
made him, in some degree, fall short of that exquisite conception of the imagination, a perfect orator. His voice was thick
and guttural. It rose and fell with little melody and softening of tones, and was, occasionally, abrupt and harsh in its
intonations, and wanting in liquidness and modulation. At
times, his utterance was hurried on to an excess of vehemence;
and then, as it were, per salturm, he would suffer it to fall, at
the close of the sentence, to a low and indistinct whisper,
which confused, at once, the sense and the sound. This inequality of elocution did not seem so much a natural defect,
as a matter of choice, or artificial cultivation. But the effect,
from whatever cause it arose, was unpleasing; and sometimes gave to his speeches the air of too much study, measured dignity, or dramatic energy. These, however, were
venial faults, open to observation, indeed, but soon forgotten
by those who listened to his instructive and persuasive reasoning; for no man could hear him, for any length of time,
without being led captive by his eloquence. His imagination
was rich and inventive; his taste, in general, pure and critical;
and his memory uncommonly exact, full and retentive. He
attained to a complete mastery of the whole compass of the
English language; and, in the variety of use, as well as the
choice of diction, for all the purposes of his public labors, he
possessed a marvellous felicity. It gave to his style an air of
originality, force, copiousness, and expressiveness, which struck
67 *




798             MISCELLANEOUS WRITINGS.
the most careless observer. His style was not, indeed, like
that of Junius; but it stood out, among all others, with that
distinct and striking peculiarity, which has given such fame
to that truly great unknown author. His powers of amplification and illustration, whenever these were appropriate to
his purpose, seemed almost inexhaustible; though he possessed, at the same time, the power of condensation, both of
thought and language, to a most uncommon degree. He
never used his powers of amplification and illustration for
mere ornament; but as auxiliaries to the main purposes of his
argument, artfully interweaving them with the solid materials
of the fabric. Occasionally, indeed, he would indulge him-,self in digressions, of such singular beauty and brilliancy, such
a magnificence of phrase, and an appropriateness of allusion,
that they won applause, even from those whose functions
demand a severe and scrutinizing indifference to every thing
but argument. In general, his speeches did not abound with
rhetorical flourishes, or sparkle with wit, or scorch with sarcasm; though he possessed the faculty of using each of them
with great skill and promptitude. But when the occasion
seemed to him, from its extraordinary interest, or the state of
public excitement, to require it, his speeches abounded with
poetical imagery and ambitious ornaments, and were elaborated with all the studied amplitude of phrase of Burke and
Bolingbroke.
But the principal and distinguishing faculty of Mr. Pinkney's mind, (in which few, if any, have ever excelled him,)
and which gave such solid weight to his arguments, and carried home conviction to the doubting and the reluctant, was
the closeness, acuteness, clearness, and vigor of his power of
ratiocination. His luminous analysis of the merits of his case,
his severe and searching logic, his progressive expansion of the
line of argument, sustaining itself at every step, by a series of
almost impregnable positions, and his instantaneous perception of the slightest infirmity in the arguments or concessions
f his adversary, gave him, in most debates, a captivating, if




WLILIAM PINKNEY.                 799
not a dangerous superiority, and made him, at the bar, a
formidable antagonist, always to be watched with jealousy,
and always to be approached with caution.
Mr. Pinkney entertained the loftiest notions of the dignity
and utility of the profession; and he endeavored, on all occasions, to diffuse among the members of the bar the deepest
sense of its importance, and responsibility to the public. He
was desirous of fame, of that fame which alone is enduring,
the fame which reposes on sound learning, exalted genius,
and diligent, nay, incessant study. Whatever might be the
success of his oratory in the estimate of other persons, it never
seemed to reach his own standard of excellence. He was,
therefore engaged in a constant struggle, not merely to excel
others, but to excel himself; and thus his orations (for such
many of his speeches were) and his juridical arguments were
perpetually enriched by the last accumulations of a mind,
whose ambition never tired, and whose industry never slackened in its professional meditations and readings. In these
respects, his example may fitly be propounded to all who
seek solid reputation at the bar. He knew well that genius
without labor could accomplish little; and that he who would
enlighten others, or be foremost in the race of life, must
quicken his own thoughts, by giving his days and nights, not
to the indulgences of pleasure, or the soft solicitudes of literary
ease, but to severe discipline, and the study of the great instructors of mankind in learning and science. His loss, in
this edifying and cheering career, will long be felt. It has
cast a gloom over the profession, which can be dissipated only
by the rise of some other master spirit, to guide, to cheer, and
to instruct us.
But it is time to close these hasty sketches. Peace to the
memory of so great a man. Whoever recollects him, will,
almost involuntarily, recur to a passage of Cicero, in his work
on the famous orators of antiquity, descriptive of the character
of L. Crassus: "Crasso nihil statuo fieri potuisse perfectius.
Erat summa gravitas; erat cum gravitate junctus facetiarum




800              MISCELLANEOUS WRITINGS.
et urbanitatis oratorius, non scurrilis, lepos; loquendi accu.
rata, et sine molestia diligens, elegantia; in disserendo, mira
explicatio; cum  de jure civili, cum  de aquo et bono disputaretur, argumentorum et similitudinum copia.'
1 Cicero, De Claris Orat. cap. 38.




SKETCH
OF THE CHARACTER OF ROBERT TRIMZBLE, ASSOCIATE JUSTICE OF
THE SUPREME COURT OF THE UNITED STATES.
THE melancholy rumor of the death of Mr. Justice Trimble,
of the Supreme Court of the United States, has at length
been confirmed. That excellent man is no more. The nation has sustained a loss of no ordinary magnitude; and
Kentucky may now mourn over the departure of another of
her brightest ornaments, in the vigor of life and usefulness.
It is but a few years since, that Hardin, who deservedly held
the foremost rank at her bar, fell an early victim to disease.
The death of that worthy and discriminating judge, Mr. Justice Todd, soon followed; and now Trimble is added, to
complete the sad triumvirate. It is but two years since the
latter took his seat on the bench of the Supreme Court, having
been elevated to that station, from the District Court, solely
by his uncommon merits. It is not saying too much to assert,
that he brought with him to his new office the reputation of
being at the head of the profession in his native state. Men
might differ with respect to the rank of other lawyers; but
all admitted, that no one was superior to Trimble, in talents,
in learning, in acuteness, in sagacity. All admired him for
his integrity, firmness, public spirit, and unconquerable industry. All saw in him a patience of investigation which
never failed, a loftiness of principle which knew no compromise, a glorious love of justice and the law, which overcame all obstacles. His judgments were remarkable for clearness, strength, vigor of reasoning, and exactness of conclusion.




802             MISCELLANEOUS WRITINGS.
Without being eloquent in manner, they had the full effect of
the best eloquence. They were persuasive, and often overwhelming, in their influence.
Such was the reputation, which accompanied him to the
Supreme Court. Before such a bar, as adorns that court,
where some of the ablest men in the Union are constantly
found engaged in arguments, it is difficult for any man long
to sustain a professional character of distinction, unless he
has solid acquirements and talents to sustain it. There is
little chance there for superficial learning, or false pretensions,
to escape undetected. Neither office, nor influence, nor manners, can there sustain the judicial functions, unless there is
a real power to comprehend and illustrate juridical arguments,
a deep sense of the value of authority, an untiring zeal, and
an ability to expound, with living reasons, the judgments,
which the court is called upon to express. A new judge,
coming there for the first time, may, under such circumstances, well feel some painful anxiety, and some distrustful
doubts, lest the bar should search out and weigh his attainments, with too nice an inquisition. MIr. Justice Trimble not
only sustained his former reputation, but rose rapidly in public
favor. Perhaps no man ever on the bench gained so much,
in so short a period of his judicial career. He was already
looked up to, as among the first judges in the nation, in all
the qualifications of office. Unless we are greatly misinformed, he possessed, in an eminent degree, the confidence of
his brethren, and was listened to with a constantly increasing
respect. And well did he deserve it; for no man could bestow more thought, more caution, more candor, or more
research upon any legal investigations, than he did. The
judgments, pronounced by him in the Supreme Court, cannot
be read without impressing every professional reader with the
strength of his mind, and his various resources to illustrate
and unravel intricate subjects. Yet we are persuaded, that,
if he had lived ten years longer, in the discharge of the same
high duties, from the expansibility of his talents, and his




ROBERT TRIMBLE.                  803
steady devotion to jurisprudence, he would have gained a still
higher rank; perhaps as high, as any of his most ardent friends
could have desired. One might say of him, as Cicero said of
Lysias, -" Nihil acute inveniri potuit in eis causis, quas
scripsit, nihil (ut ita dicam) subdole, nihil versute, quod ille
non viderit; nihil subtiliter dici, nihil presse, nihil enucleate,
quo fieri possit aliquid limatius."
In private life he was amiable, courteous, frank, and hospitable; warm in his friendships, and a model in his domestic
relations.
In politics, he was a firm and undeviating republican; but
respectful and conciliatory to those, who differed from him.
In constitutional law he belonged to that school, of which
Mr. Chief Justice Marshall (himself a host) is the acknowledged head and expositor. He loved the Union with an
unfaltering love, and was ready to make any sacrifice to insure its perpetuity. He was a patriot in the purest sense.
He was; — but how vain is it to say what he was  - He has
gone from us forever. We have nothing left, but to lament
his loss, and to cherish his fame.
" Salve aternum mihi, maxime Palla,
iEternumque vale."




SKETCH
OF THE CHARACTER OF THOMAS A. EMMET.
(Copy of a Letter addressed to William Sampson, Esq.)
Washington, February 27, 1829.
DEAR SIR,
I had the pleasure of receiving your letter yesterday. I
should long since have complied with your request in regard
to Mr. Emmet if I could have found suitable leisure to sit
down and make even a sketch of him, such as I thought him
to be in character and attainments. Hitherto I have sought
such leisure in vain.
It was in the winter of 1815 that I first became acquainted
with Mr. Emmet. He was then, for the first time, in attendance upon the Supreme Court at Washington, being engaged
in some important prize causes then pending in the court.
Although, at that period, he could have been but little, if
any, turned of fifty years of age, the deep lines of care were
marked upon his face; the sad remembrances, as I should
conjecture, of past sufferings, and of those anxieties which
wear themselves into the heart and corrode the very elements
of life. There was an air of subdued thoughtfulness about
him that read to me the lessons of other interests than those
which belonged to mere professional life. He was cheerful,
but rarely, if ever, gay; frank and courteous, but he soon
relapsed into gravity, when not excited by the conversation
of others.




THOMAS A. EMMET.               805
Such, I remember, were my early impressions; and his
high professional character, as well as some passages in his
life, gave me a strong interest in all that concerned him at
that time. There were, too, some accidental circumstances
which were connected with his arguments on that occasion,
which left a vivid impression upon all who had the pleasure
of hearing him. It was at this time that Mr. Pinkney, of
Baltimore, one of the proudest names in the annals of the
American bar, was in the meridian of his glory. He had
been often tried in the combats of the forum of the nation;
and, if he did not stand quite alone, the undisputed victor of
the field, (and it might be deemed invidious for me to point
out any one, as primus inter pares,) he was, nevertheless,
admitted by the general voice not to be surpassed by any of
the noble minds with whom he was accustomed to wrestle
in forensic contests. Mr. Emmet was a new and untried
opponent, and brought with him the ample honors gained at
one of the most distinguished bars in the Union. In the
only causes in which Mr. Emmet was engaged, Mr. Pinkney
was retained on the other side; and each of these causes
was full of important matter, bearing upon the public policy
and prize law of the country.  Curiosity was awakened;
their mutual friends waited for the struggle with impatient
eagerness; and a generous rivalry, roused by the public expectations, imparted itself to their own bosoms. A large
and truly intelligent audience was present at the argument
of the first cause. It was not one which gave much scope to
Mr. Emmet's peculiar powers. The topic was one with
which he was not very familiar. He was new to the scene,
and somewhat embarrassed by its novelty. His argument
was clear and forcible; but he was conscious that it was not
one of his happiest efforts. On the other hand, his rival was
perfectly familiar with the whole range of prize law; he was
at home both in the topic and the scene. He won an easy
victory, and pressed his advantages with vast dexterity, and,
as Mr. Emmet thought, with somewhat of the display of
68




806            MISCELLANEOUS WRITINGS.
triumph. The case of the Nereide, so well known in our
prize history, was soon afterwards called on for trial. In this
second effort, Mr. Emmet was far more successful. His
speech was greatly admired for its force and fervor, its variety
of research, and its touching eloquence. It placed him at
once, by universal consent, in the first rank of American
advocates. I do not mean to intimate that it placed him
before Mr. Pinkney, who was again his noble rival for victory. But it settled, henceforth and forever, his claims to
very high distinction in the profession. In the course of the
exordiumrn of this speech, he took occasion to mention the
embarrassment of his own situation, the novelty of the forum,
and the public expectations, which accompanied the cause.
He spoke with generous praise of the talents and acquirements of his opponent, whom fame and fortune had followed
both in Europe and America. And then, in the most delicate and affecting manner, he alluded to the events of his
own life, in which misfortune and sorrow had left many
deep traces of their ravages. " My ambition," said he, " was
extinguished in my youth; and I am admonished by the
premature advances of age, not now to attempt the dangerous paths of fame." At the moment when he spoke, the
recollections of his sufferings melted the hearts of the audience, and many of them were dissolved in tears. Let me
add, that the argument of Mr. Pinkney, also, was a most
splendid effort, and fully sustained his reputation.
From that period I was accustomed to hear Mr. Emmet
at the bar of the Supreme Court in almost every variety of
causes; and my respect for his talents constantly increased
until the close of his life. I take pleasure in adding, that his
affability, his modest and unassuming manner, his warm
feelings, and his private virtues, gave a charm to his character, which made it at once my study and delight.
It would ill become me to attempt a sketch of the character of Mr. Emmet. That is the privilege, and will be (as it
ought) the melancholy pleasure, of those who were familiar




THOMAS A. EMMET.               807
with him in every walk of life, to whom he unbosomed himself in the freedom of intimacy, and who have caught the
light plays of his fancy, as well as the more profound workings of his soul.
That he had great qualities as an orator cannot be doubted
by any one who has heard him. His mind possessed a good
deal of the fervor which characterizes his countrymen. It
was quick, vigorous, searching, and buoyant. He kindled as
he spoke. There was a spontaneous combustion, as it were,
not sparkling, but clear and glowing. His rhetoric was never
florid; and his diction, though select and pure, seemed the
common dress of his thoughts, as they arose, rather than any
studied effort at ornament. Without being deficient in imagination, he seldom drew upon it for resources to aid the
effect of his arguments, or to illustrate his thoughts. His
object seemed to be, not to excite wonder or surprise, to captivate by bright pictures, and varied images, and graceful
groups, and startling apparitions; but by earnest and close
reasoning to convince the judgrment, or to overwhelm the
heart by awakening its most profound emotions. His own
feelings were warm and easily touched. His sensibility was
keen, and refined itself almost into a melting tenderness.
His knowledge of the human heart was various and exact.
He was easily captivated by the belief, that his own cause
was just. Hence, his eloquence was most striking for its
persuasiveness. He said what he felt; and he felt what he
said. His command over the passions of others was an
instantaneous and sympathetic action. The tones of his
voice, when he touched on topics calling for deep feeling,
were themselves instinct with meaning. They were utter-,
ances of the soul as well as of the lips.




SKETCH
OF THE CHARACTER OF BUSUROD WASHINGTON, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES.
THE death of Mr. Justice Washington is an event, which
cannot but cast a gloom upon all the real friends of our
country. He was born.-o the 5th of June, 1762, and was, of
course, now in the sixty-eighth year of his age. It is well
known, that he was the nephew, and, we have a right to
say, the favorite nephew of President Washington.  The
latter bequeathed to him, by his will, his celebrated estate on
the Potomac, Mount Vernon, which was the residence of this
great patriot during the most brilliant periods of his life, the
delightful retreat of his old age, the scene of his dying hours,
and the spot, where, by his own order, his ashes now repose
in the same tomb with his ancestors. To him also, President Washington gave all his valuable public and private
papers, as a proof of his entire confidence and attachment,
and made him the active executor of his will. Such marks
of respect from such a man,-the wonder of his own age,
and the model for all future ages, -would alone stamp a
character of high merit, and solid distinction, upon any person. They would constitute a passport to public favor, and
confer an enviable rank, far beyond the records of the herald's
office, or the fugitive honors of a title.
It is high praise to say, that Mr. Justice Washington well
deserved such confidence and distinction. Nay, more. His




BUSHROD WASHINGTON.              809
merits went far beyond them.  lHe was as worthy an heir, as
ever claimed kindred with a worthy ancestor. He was bred
to the law in his native state of Virginia, and arrived at such
early eminence in his profession, that as long ago as 1798, he
was selected by President Adams, as a Justice of the Supreme
Court, upon the decease of the late Judge Wilson, of Pennsylvania. For thirty-one years he held that important station,
with a constantly increasing reputation and usefulness. Few
men, indeed, have possessed higher qualifications for the office,
either natural or acquired. Few men have left deeper traces,
in their judicial career, of every thing, which a conscientious
judge ought to propose for his ambition, or his virtue, or his
glory. His mind was solid, rather than brilliant; sagacious
and searching, rather than quick or eager; slow, but not torpid; steady, but not unyielding; comprehensive, and at the
same time cautious; patient in inquiry, forcible in conception,
clear in reasoning. He was, by original temperament, mild,
conciliating, and candid; and yet he was remarkable for an
uncompromising firmness. Of him it may be truly said, that
the fear of man never fell upon him; it never entered into his
thoughts, much less was it seen in his actions. In him the
love of justice was the ruling passion; it was the masterspring of all his conduct. He made it a matter of conscience
to discharge every duty with scrupulous fidelity and scrupulous zeal. It mattered not, whether the duty were small or
great, witnessed by the world, or performed in private, everywhere the same diligence, watchfulness, and pervading sense
of justice were seen. There was about him a tenderness of
giving offence, and yet a fearlessness of consequences, in his
official character, which I scarcely know how to portray. It
was a rare combination, which added much to the dignity of
the bench, and made justice itself, even when most severe,
soften into the moderation of mercy. It gained confidence,
when it seemed least to seek it. It repressed arrogance, by
overawing or confounding it.
To say, that, as a judge, he was wise, impartial, and honest,
68 *




810            MISCELLANEOUS WRITINGS.
is but to attribute to him those qualifications, without which
the honors of the bench are but the means of public disgrace,
or contempt. His honesty was a deep, vital principle, not
measured out by worldly rules. His impartiality was a virtue of his nature, disciplined and instructed by constant reflection upon the infirmity and accountability of man. His
wisdom was the wisdom of the law, chastened, and refined,
and invigorated by study, guided by experience, dwelling
little on theory, but constantly enlarging itself by a close survey of principles.
He was a learned judge. I do not mean by this that everyday learning, which may be gathered up by a hasty reading
of books and cases; but that, which is the result of long-continued, laborious services, and comprehensive studies. He
read to learn, and not to quote; to digest and master, and not
merely to display. HIwasa not easily satisfied. If he was
not as profound-a some, he was more exact than most men.
But the value of his learning was, that it was the keystone of
all his judgments. He indulged not the rash desire to fashion
the law to his own views; but to follow out its precepts with
a sincere good faith and a simplicity. Hence he possessed
the happy faculty of yielding just the proper weight to authority; neither, on the one hand, surrendered himself blindfold to the dictates of other judges, nor, on the other hand,
overruling settled doctrines upon his own private notion of
policy or justice.
In short, as a magistrate, he was exemplary and able, one
whom all may reverence, and but few may hope to equal.
But, after all, it is as a man, that those who knew him
best will most love to contemplate him. There was a daily
beauty in his life, which won every heart. He was benevolent, charitable, affectionate, and liberal, in the best sense of
the terms. He was a Christian, full of religious sensibility,
and religious humility. Attached to the Episcopal church by.education and choice, he was one of its most sincere, but
-unostentatious friends. He was as free from bigotry, as any




BUSHROD WASHINGTON.              811
man; and at the same time that he claimed the right to think
for himself, he admitted, without reserve, the same right in
others. He was, therefore, indulgent even to what he deemed
errors in doctrine, and abhorred all persecution for conscience'
sake. But what made religion most attractive in him, and
gave it occasionally even a sublime expression, was its tranquil, cheerful, unobstructive, meek, and gentle character. There
was a mingling of Christian graces in him, which showed,
that the habit of his thoughts was fashioned for another and
a better world. Of his particular opinions on doctrinal points,
it is not my intention to speak. Such as they were, though
good men may differ as to their correctness, all must agree
that they breathed the spirit of an inquisitive Christian.
He was a real lover of the Constitution of the United States;
one of those who assisted in its adoption, and steadily and
uniformly supported it through every change in its fortunes.
He was a good old-fashioned federalist, of the school of the
days of Washington. He never lost his confidence in the
political principles which he first embraced. He was always
distinguished for moderation, in the days of their prosperity,
and for fidelity to them in the days of their adversity.
I have not said too much, then, in saying, that such a man
is a public loss. We are not, indeed, called to mourn over
him, as one who is cut off prematurely in the vigor of manhood. He was ripe in honors and in virtues. But the departure of such a man severs so many ties, interrupts so many
delights, withdraws so many confidences, and leaves such an
aching void in the hearts of friends, and such a sense of desolation among associates, that, while we bow to the decree
of Providence, our griefs cannot but pour themselves out in
sincere lamentations.




SKETCH
OF THE CHARACTER OF ISAAC PARKER, CHIEF JUSTICE OF THE
SUPREME COURT OF MASSACHUSETTS.
MR. CIIIEF JUSTICE PARKER brought with him to the bench
the reputation of an able, active, and learned advocate. He
had well earned that reputation, by a course of long and
honorable practice in the then District, now State of Maine.
His talents, high as they were, were not his only recommendation. He possessed, what talents may adorn, but
what talents, however shining they may be, never can supply,
the Mens conscia recti, an inflexible integrity, a deep-rooted
and enlightened virtue. His private life was without reproach, his honor without stain, his political and civil career
straightforward and steady. His manners were frank, modest, and winning, without ostentation, and without affectation. Nature had given him a mild temperament, a quiet
and moderated cheerfulness, an ingenuous countenance, and
social kindness, which pleased without effort, and was itself
easily pleased. But his most striking characteristic was
sound sense, which, though no science, is, in the affairs of
human life, fairly worth all others, and which had in him its
usual accompaniments, discretion, patience, and judgment.
In his professional harangues he was persuasive and. interesting; he had the earnestness of one, who felt the importance
of fidelity to his client, and, at the same time, the sincerity of
one, who felt the dignity of truth, and of that jurisprudence,
whose servant he was, and whose precepts he was not at




ISAAC PARKER.                 813
liberty to disown, and was incapable of betraying. In the
sense sometimes affixed to the term, he did not possess eloquence; that is, he did not possess that vivid imagination,
which delights in poetical imagery, or in rhetorical flourishes,
in painting the passions, or in exciting them into action. He
was not addicted to a rich and gorgeous diction, or to coloring
his thoughts with the lights and shades, or the brilliant contrasts, of a variegated style. But in a just sense, if we look
to the means or the end, to his power of commanding attention, or his power of persuading and convincing the understanding, he might be deemed truly eloquent. His reasonings
were clear, forcible, and exact; his language chaste, pointed,
and select; his fluency of speech, uncommon; his action,
animated; so that in their actual union they gave a charm to
his arguments, which won upon the ears and captivated the
judgment of his audience.
Such was the reputation and character, which he brought
to the bench. He took his seat among distinguished men;
and he sustained himself as a worthy and equal associate.
He did more, and accomplished what few men do accomplish; he moved on with a continual increase of reputation,
even to the very hour of his death. He lived through times,
happily now past, of peculiar delicacy and difficulty; in the
midst of great political changes and excitements, when the
tribunals of justice were scarcely free from the approaches of
the spirit of discord, and the appeals of party were almost
ready to silence the precepts of the law. During this period,
his firmness, moderation, patience, and candor secured to him
the public confidence. When the office of Chief Justice
became vacant by the lamented death of Mr. Chief Justice
Sewall, all eyes were turned towards him as the successor.
His appointment gave universal satisfaction. And yet, if he
had died at that period, half of his real merits would have
remained unknown. His ambition was now roused to new
exertions by the responsibility of the station; his mind
assumed a new vigor; his industry quickened into superior




814             MISCELLANEOUS WRITINGS.
watchfulness; and he expanded, so to say, to the full reach
of his official duties. It was a critical moment in the progress of our jurisprudence. We wanted a cautious, but
liberal mind, to aid the new growth of principles, to enlarge
the old rules, to infuse a vital equity into the system, as it
was expanding before us. We wanted a mind to do, in some
good degree, what Lord Mansfield had done in England, to
breathe into our common law an energy suited to the wants,
the commercial interests, and the enterprise of the age. We
wanted a mind, which, with sufficient knowledge of the old
law, was yet not a slave to its forms; which was bold enough
to invigorate it with new principles, not from the desire of
innovation, but the love of improvement. We wanted sobriety of judgment; but, at the same time, a free spirit, which
should move over the still depths of our law, and animate
the whole mass. Such a man was Mr. Chief Justice Parker.
And whoever, in this age, or in any future age, shall critically
examine the decisions of the Supreme Court, during the sixteen years in which he presided over it, will readily acknowledge the truth of these remarks.
There was in his mind an original, intrinsic equity, a clear
perception of abstract right and justice, and of the best mode
of adapting it to the exigencies of the case. He felt, as Lord
Ellenborough before him had felt, that the rules, not of evidence merely, but of all substantial law, must widen with
the wants of society; that they must have flexibility, as well
as strength; that they must accomplish the ends of justice,
and not bury it beneath the pressure of their own weight.
There is in this respect much, very much, to admire, and, (if
it were possible, in our reverence for the dead,) to envy, in
his judicial career. Few men have ever excelled him in the
readiness of grasping a cause, of developing its merits, or of
searching out its defects. He may have had less juridical
learning than some men; but no man more thoroughly
mastered all that was before him, or expounded with more
felicity the reasons even of technical doctrines. He had an




ISAAC PARKER.                 815
almost intuitive perception of the real principle, pervading
a whole class of cases, and would thread it through all their
mazes with marvellous ability. His written opinions are full
of sagacity, and juridical acuteness, at the same time that
they possess a singular simplicity and ease. He rarely fails
to convince, even when he questions what seems justified by
authority. His judicial style is a fine model. It is equally
remarkable for propriety of language, order of arrangement,
neat and striking turns of expression, and a lucid current of
reasoning, which flows on to the conclusion with a silent but
almost irresistible force. In his more studied efforts, in some
of those great causes, in which the whole powers of the
human intellect are tasked and measured, he was always
found equal to the occasion. There are not a few of his
opinions, on some of these intricate subjects, which would
bear a close rivalry with the best in Westminster Hall in our
own times. There are some, which any judge might be
proud to number among those, destined to secure his own
immortality.
But we must stop; the time for mourning over such a loss
cannot soon pass away. We have lost a great magistrate,
and an excellent citizen. Vain is the voice of sorrow, and
vainer still the voice of eulogy. They cannot recall the
past. His place cannot be easily supplied; for it is difficult
to combine so many valuable qualities in a single character.
To sum up his in one sentence, we may say, that, as a judge,
he was eminent for sagacity, acuteness, wisdom, impartiality,
and dignity; as a citizen, for public spirit and elevated consistency of conduct; as a man, for generosity, gentleness,
and moral purity. His fame must rest, where it is fit it
should, upon the printed reports of his own decisions. These
will go down to future ages; and though, perhaps, beyond
the circle of the profession, they may not attract much general observation, (for the misfortune of the profession is, that
great judges and great lawyers cannot enjoy a wide-spread
popular favor,) they will yet be read and honored by the




816            MISCELLANEOUS WRITINGS.
jurists of succeeding times with undiminished reverence,
when those of us, who have known and loved him, shall be
mingled with the dust, that now gathers round his remains.
They will often recall to the classical reader the beautiful
eulogy of Cicero, upon a great character of antiquity, so
applicable to his: " Erat in verborum splendore elegans,
compositione aptus, facultate copiosus; eaque erat cum
summo ingenio, tum exercitationibus maximis consecutus;
rem complectebatur memoriter, dividebat acute, nec praetermittebat fere quidquam, quod esset in causa, aut ad confirmandum aut ad refellendum."




SKETCH
OF THE CHARACTER OF JOHN TODD, ASSOCIATE JUSTICE OF THE
SUPREME COURT OF THE UNITED STATES.
MR. JUSTICE TODD possessed many qualities admirably
fitted for the proper discharge of judicial functions. He had
uncommon patience and candor in investigation; great clearness and sagacity of judgment; a cautious but steady energy;
a well-balanced independence; a just respect for authority,
and at the same time an unflinching adherence to his own
deliberate opinions of the law.  His modesty imparted a
grace to an integrity and singleness of heart which won for
him the general confidence of all who knew him. He was
not ambitious of innovations upon the settled principles of
the law; but was content with the more unostentatious character of walking in the trodden paths of jurisprudence; super
antiquas vias legis. From his diffident and retiring habits,
it required a long acquaintance with him justly to appreciate
his juridical as well as his personal merits. His learning was
of a useful and solid cast; not perhaps as various or as comprehensive as that of some men; but accurate, and transparent, and applicable to the daily purposes of the business of
human life. In his knowledge of the local law of Kentucky,
he was excelled by few; and his brethren drew largely upon
his resources to administer that law, in the numerous cases
which then crowded the docket of the Supreme Court from
that judicial circuit. What he did not know, he never affected
69




818            MISCELLANEOUS WRITINGS.
to possess; but sedulously sought to acquire. He was content
to learn, without assuming to dogmatize. Hence he listened
to arguments for the purpose of instruction, and securing
examination; and not merely for that of confutation or debate.
Among his associates he enjoyed an enviable respect, which
was constantly increasing as he became more familiarly known
to them. His death was deemed by them a great public
calamity; and in the memory of those who survived him, his
name has ever been cherished with a warm and affectionate
remembrance.
No man ever clung to the Constitution of the United
States with a more strong and resolute attachment. And in
the grave cases which were agitated in the Supreme Court
of the United States during his judicial life, he steadfastly
supported the constitutional doctrines which Mr. Chief Justice
Marshall promulgated, in the name of the Court. It is to
his honor, and it should be spoken, that, though bred in a
different political school from that of the Chief Justice, he
never failed to sustain those great principles of constitutional law on which the security of the Union depends. He
never gave up to party, what he thought belonged to the
country.
For some years before his death, he was sensible that his
health was declining, and that he might soon leave the Bench,
to whose true honor and support he had been so long and so
zealously devoted.  To one of his brethren who had the
satisfaction of possessing his unreserved confidence, he often
communicated his earnest hope that Mr. Justice Trimble
might be his successor; and he bore a willing testimony to
the extraordinary ability of that eminent Judge. It affords
a striking proof of his sagacity and foresight; and the event
fully justified the wisdom  of his choice.  Although Mr.
Justice Trimble occupied his station on the bench of the
Supreme Court, for a brief period only, yet he has left on the
records of the court enduring monuments of talents and
learning fully adequate to all the exigencies of the judicial




JOHN TODD.                        819
office. To both these distinguished men, under such circumstances, we may well apply the touching panegyric of the
poet:
Fortunati Ambo!
Nulla Dies unquam memori vos eximet ~Evo."




SKETCH
OF THE CHARACTER OF HUGH S. LEGARE.
[The following remarks were made before the members of the Law School, at the
lecture on the Constitution, June 22, which were taken down by a gentleman
present, and afterwards published in the Law Reporter for August, 1843.]
WHEN I last met you, I little anticipated the calamitous
event, which has since occurred, in the death of a distin.
guished man, who expired in the city of Boston on Tuesday
morning last. Whoever considers the principles of the Constitution can never forget him; for he was firm and true to
its doctrines, and exhibited that elevated and comprehensive
statesmanship, which the Constitution demands of its real
friends. I refer, of course, to Mr. Legar6, the late AttorneyGeneral, with whom I had the happiness to be intimately
acquainted; whom I knew not only as an accomplished gentleman, but also as a great lawyer. I speak of him to you
here, not merely to pay a deserved tribute to his worth, but
because I know of no man whom I would sooner propound
as an example to young men entering the profession, which
he has so much adorned. I had indeed looked to him with
great fondness of expectation.  I had looked to see him
accomplish what he was so well fitted to do, -what, I know,
was the darling object of his pure ambition- to engraft the
Civil Law upon the jurisprudence of this country, and thereby to expand the Common Law to greater usefulness and a
wider adaptation to the progress of society.
Mr. Legar6 was a native of South Carolina, and was
graduated, I understand, at an early age, at Columbia College. He proceeded, soon after he left that institution, to




HUGH S. LEGARi:.                 821
Edinburgh, where he devoted himself, with great diligence
and intensity of study, to general and classic literature. He
then went to the Continent and pursued the study of the
Civil Law with great assiduity and success, and afterwards
returned to South Carolina to practise, and became soon
eminent at the Bar of that State.
It is a most singular circumstance, that eminence in general literature should, in the public mind, detract from a man's
reputation as a lawyer. It is an unworthy prejudice, for certainly the science of jurisprudence may borrow aid as well
as receive ornament from the cultivation of all the other
branches of human knowledge.  But the prejudice exists; —
and yet one would think that the public had witnessed so
many examples of men who were great scholars and great
lawyers likewise, that the prejudice might be at this day disarmed of so much of its quality, as is apt to do injustice to
the reputation of living men. Lord Mansfield was a most
eminent scholar in general letters; but he was also unsurpassed in jurisprudence. Sir William Blackstone was so
elegant a scholar, that his Commentaries are models of pure
English prose; but they are none the less the invaluable
mine of the Laws of England. Lord Stowell, the friend and
executor of Dr. Johnson, was in various attainments exceeded
by few; but his knowledge of general jurisprudence was
greater than that of any man of his day. Some of the proudest names now on the English benches are some of England's
best scholars. But there as well as here — though certainly
it is far greater here -the public prejudice almost denies to
a great scholar the right to be eminent as a jurist. Dr. Johnson has said,"And mark what ills the scholar's life assail,
Toil, envy, want, the patron and the gaol."
None of these were the evils of our friend. HIis only evil
was, that his reputation as a lawyer was sometimes underrated, because of his great general attainments. But nothing
69 *




822            MISCELLANEOUS WRITINGS.
could be more unfounded than this idea. He considered the
law as his pursuit; as his object; as the field of his ambition.
Fifteen years ago I knew him as an eminent lawyer. He
afterwards went abroad in a diplomatic capacity; and, at
Brussels, where he resided, devoted himself anew to the
study of the Civil Law, with a view to make it subservient
to the great object of his life, the expansion of the Common
Law, and the forcing into it the enlarged and liberal principles and just morality of the Roman jurisprudence. This
object he seemed about to accomplish; for his arguments
before the Supreme Court were crowded with the principles
of the Roman Law wrought into the texture of the Common
Law with great success. In every sentence that I heard, I
was struck with this union of the two systems. At the same
time, the whole was wrought in a style, beautiful and chaste,
but never passing from the line of the argument, nor losing
sight of the cause. His argumentation was marked by the
closest logic; at the same time he had a presence in speaking, which I have never seen excelled. He had a warm, rich
style, but no declamation; for he knew that declamation
belongs neither to the jurist nor to the scholar.
It was only during the last summer, that he wrote to me
that he intended to translate Heineccius's Elements; for he
wished, he said, to entice the American lawyer to the study
of the civil law. He added, that he had nothing to gain by
undertaking such a work, but that he would undergo the
labor as a homage to his country. Knowing his eminent
qualifications for the task, I advised him to make the translation, and to add to it notes of his own, so as to adapt the
principles to the existing state of the common law; telling
him that he would thereby confer a benefit on his country
which no man of the age would be likely to exceed.
A few years since, he published a paper in the New York
Review, on the origin, history, and influence of Roman
legislation, and afterwards printed it separately from the
Review itself. Whoever reads that essay -and I hope you




HUGH S. LEGARL.               823
will read it —will perceive his attainments in the civil law..You, who have not heard him, cannot judge of his attainments in the common law; but I, who heard his arguments,
know that he devoted himself to the common law with a
wise perception of its defects, and a purpose to ameliorate
them with the riches of the civil law; and I may say of him,
having seen his mastery of both systems of jurisprudence -
that he walked with them triumphantly, the one in one
hand, and the other in the other hand, in the path of a great
Jurist.
Although he might have had other places in the gift of
the government - as I have been told - yet he desired only
the office of Attorney-General, and he desired that for the
sake of the law. When, therefore, the question is asked, was
he eminent as a lawyer? I answer, no man more so. Do
you ask, what was the secret of his eminence? I answer, it
was diligence, profound study, and withholding his mind
from the political excitements of the day.
To me, his loss is irreparable. How few do I see around
me, severe in their studies in jurisprudence; willing to devote
their days and nights to the mastery and improvement of it
as a great science; and looking for the fame that comes from
devotion like his. Such study is not fanned by the breath of
popular applause, and so it is rare. But in him it shone
most brilliantly. I pronounce him a great loss, as one of the
most valuable lights of jurisprudence that it has been my
happiness to know - my misfortune to lose.
It was but the day before yesterday — and before I had
heard of his death, the news of which met me as I was going
from my own house- that I had taken down Cicero de
Claris Oratoribus, and had turned to the passage where he
begins -
" As I was leaving Cilicia to go to Rhodes, I heard of the
death of Hortensius."  Hortensius, the great Roman lawyer,
so much and so justly praised by Cicero, died as we are told,
when his usefulness had been completed.  How different
from him, who has been taken from us when we had just




824               MISCELLANEOUS WRITINGS.
learned to appreciate his inestimable value to the jurisprudence of the country. To Cethegus, another orator, Cicero
applies the remark of Ennius -
"Is dictus ollis popularibus olim,
Qui tum vivebant homines, atque evum agitabant,
Flos delibatus populi."
I say of the Attorney-General, not FLOs delibatus populi;
I say of him, Flos delibatusjuris.
As I looked a little farther, I came upon the passage,
which, by a striking coincidence, expressed what has since
been realized to my own feelings, as the full influence of such
a life; a life, the only deep lamentation for which is, that it
gave him so little time to make himself fully appreciated by
the whole republic. I give you the English first, that I may
afterwards give you the more beautiful Latin: " They therefore seem to me to have lived both fortunately and happy, not
only in other States, but especially in ours, who have been
permitted not merely to enjoy authority and the renown of
action, but also to attain the praise of wisdom, whose memory and reputation, in our gravest and severest cares, have
been truly grateful, whenever in history we have fallen upon
them." 1
I dismiss the subject, with the remark, that the Constitution has lost one of its best friends; the Supreme Court
one of its brightest ornaments; the country an inestimable
man, whose independence, whose public virtue, whose rare;endowments, and whose freedom from all the arts of popularity gave full assurance of a life of the highest value to the
State. To me, had my own career closed before his, a single
word of praise from his lips, could I have looked back to
know it, would have been as valuable a tribute as from any
other human being.
1 Itaque ii mihi videntur fortunate beateque vixisse, cum in caeteris civitatibus, turn maxime in nostra, quibus cum auctoritate, rerumque gestarum
gloria, turn etiam sapientira laude perfrui licuit. Quorum memoria et recordatio in maximis nostris gravissirnlsque curis jucunda sane fuit, cum in earn
nuper ex sermone quodam incidissemus. — Cie. De Clar. Orat. 2.




SKETCH
OF THE CHARACTER OF PHILIP P. BARBOUR, ASSOCIATE JUSTICE
OF THE SUPREME COURT OF THE UNITED STATES.
THE family from which Judge Barbour was descended,
was one of the oldest and most respectable in Virginia. His
great-grandfather was a merchant of Scotland, who immigrated to this country. His grandfather was the pioneer and
first settler of the country lying between the eastern base of
the Blue Ridge and the Southwest mountains. His father,
Thomas Barbour, inherited considerable wealth, and was a
member of the old House of Burgesses, from the then very
large county of Orange. He was one of those who, in 1769,
signed the " Non-Importation Act" between this country and
Great Britain. After the formation of the Union, he was
elected to the legislature. Richard Henry Lee, in a letter
to his brother, Arthur Lee, bore testimony to his worth, to
the effect, "that he was glad that Thomas Barbour was in
our state councils, for he was a truly intelligent and patriotic
man."
On the maternal side, as his name indicates, Judge Barbour was related to the Pendleton family, his grandmother
having been the aunt of the distinguished Judge Pendleton.
Philip Pendleton Barbour was born on the 25th of May, 1783.
Owing to his great hospitality, and a long series of disasters,
his father was unable to afford him that liberal education
which his talents and early promise would have justified. He
was, however, sent early to school, where he soon developed




826            MISCELLANEOUS WRITINGS.
many of those qualities for which he was afterwards so justly
distinguished. He exhibited great aptitude for the acquisition of languages; and, with a correct taste and strong mermory, sought out and retained through life the beauties of
the Greek and Roman classics. Even in the performance of
the tasks of a country school, he manifested that precision of
information and depth of research, which, on a broader theatre,
and carried to higher subjects, won for him a wide-spread
and enduring reputation. He remained at school until the
end of 1799. During the early part of 1800, he studied law
at home; but in October, he determined to visit Kentucky,
where, under great difficulty and embarrassment he commenced the practice of law. In the summer of 1801, he
yielded to the persuasions of his friends to return to Virginia; and, having borrowed the necessary funds, spent one
session at William and ALary College. In 1802, he resumed
the practice of law in Virginia. In October, 1804, he was
united to Frances T. Johnson, daughter of Colonel Benjamin
Johnson, of Orange county, Virginia. During the next eight
years he applied himself unceasingly to his profession. In
1812, he was elected to the Assembly, where he continued
two sessions. In 1814, he was elected to Congress, where he
continued until 1825. While there, he was chairman of the
Naval and Judiciary Committees; and in 1821, was chosen
speaker of the House of Representatives. About the year
1825, the University of Virginia went into operation. He
was offered the professorship of law in that institution, and
was pressed by Mr. Jefferson to accept it. He refused this
station, however, and was appointed a Judge of the General
Court of Virginia. In 1827, at the written request of a majority of his old constituents, he resigned his seat on the
Bench, and was reelected, without opposition, to Congress.
In 1829, together with the illustrious Madison, he was chosen
to represent the county of Orange, in the convention called
to amend the constitution of Virginia. He presided over the
deliberations of this body in a manner which elicited the




PHILIP P. BARBOUR.              827
approbation of its members. He was also president of the
Anti-Tariff Convention which met in Philadelphia. In 1830,
he retired from the practice of a profession which had yielded
him considerable wealth, and of which he had been one of
the brightest ornaments, and accepted the station of Federal
Judge for the eastern district of Virginia. The chancellorship was offered to him and declined; as was also the post
of Attorney-General. He refused the nominations for a seat
in the Court of Appeals, the gubernatorial Chair, and the
Senate of the United States. As Federal Judge, he won
new honors, and showed himself worthy of the high and
enviable station to which in 1836 he  was called, that of
Associate Judge of the Supreme Court of the United States.
Having thus reached the height of the profession which he
had chosen, he was unweariedly striving, with a virtuous ambition, to win that fame which great ability can only give
when joined with pure principles, when death cut him off in
his useful career, and robbed our country of one of its most
distinguished sons.
It remains for us to take a brief notice of the proPe~sinal
attainments and judicial character of Mr. Justice Barbour.
It has been already seen that no inconsiderable portion of
his life was employed in active political duties and pursuits,
which if not incompatible with, are (to say the least) by no
means favorable to the cultivation of juridical knowledge, or
to found a solid reputation in the law. He did not, however,
at any time relax his vigilance in his professional studies,, or
become indifferent to professional success. On the contrary,
he had the ambition to acquire all the knowledge which might
be useful in his practice at the bar, and the persevering firmness to surmount every intervening obstacle. His mind was
in a remarkable degree acute, sound, and discriminating,
inclining to subtilty in disquisition, but not misled by it.
He was earnest, candid, patient, and laborious in all his investigations; quick to discern the real points and merits of
a case; but slow in arriving at his own conclusions. His




828            MISCELLANEOUS WRITINGS.
talents were of a high order; but he was distinguished less
for brilliancy of effort, than for perspicacious, close, and vigorous reasoning. He sought less to be eloquent than to be
accurate; less to persuade by declamatory fervor, than to
convince by clear and logical deduction. The learning, therefore, that he brought to the discussion of every cause, was
pertinent, exact, and illustrative. It had point and force, and
not merely remote or loose analogies to give it effect. When
he was elevated to the Bench, he felt a deep and conscientious sense of his new duties; and was solicitous to master
all the learning appropriate to discharge them in the best
manner; and especially, after his appointment to the Bench
of the Supreme Court, he devoted his leisure, with strenuous
diligence, to attain all the various knowledge demanded for
eminence in that station. Few men ever labored with more
entire success in such a nAble pursuit. During his brief career
in that Court, he widened and deepened the foundations of his
judicial learning to an extraordinary extent; his reputation
constantly advanced, and his judgments were listened to with
increased respect and profound confidence. If he had lived
many years with good health, he could not have failed to have
won the highest distinction for all those qualities which give
dignity and authority to the Bench. It might be truly said
of him, that he was not only equal to all the functions of his
high station, but above them, — par negotiis, et supra -.
His country has lost by his death a bright ornament, and a
pure and spotless patriot.
THE END.