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YALE UNIVERSITY
LIBRARY

THE

MISCELLANEOUS WRITINGS,

LITERARY, CRITICAL, JURIDICAL, AND POLITICAL,

JOSEPH STORY, LL.D.,

NOW FIRST COLLEC'T'T'.TV'

Etenim omnea artes, qua ad humanitatem pertinent, habent quoddam commnne vinculum.
Cic. Oral, pro JircJua.

BOSTON:
JAMES MUNROE AND COMPANY

M DCCC XXXV.

Entered according to the Act of Congress, in the year 1835,
Bt James Munroe & Co.,
in the CleA's Office of the District Court of the District of Massachusetts.

CAMBRIDGE PRESS I
METCALF, TORRY, AND BALLOU.

TO
THE HONORABLE
JOSIAH QUINCY, LL.D.,
PRESIDENT OP HARVARD UNIVERSITT.
Sir,
In dedicating this volume to you, I may (not un
naturally) 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, gratifjing as such an
expression of reverent regard for our Parent Univer
sity would at all times be to me, I confess, that I seek
on the present occasion rather to offer it as a testimo
ny of my deep sense of the worth of your personal
character. Few men have acquired so just a distinc
tion 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 exem
plary ability, fidelity, and conscientiousness. In your

DEDICATION.

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 lan
guage of your own favorite Poet, I may say, Cura
Patrum . . . tuas virtutes in aevum per titulos memo-
resque fastos seternet.
I have the honor to remain, most truly,
your obliged friend,
JOSEPH STORY.
Cambridge, Massachusetts, October, 1835.

PREFACE.

The present volume owes its existence to an
unexpected request of the enterprising publishers, that
I would permit them to print a collection of my mis
cellaneous writings. To such a request I could not
but yield a ready compliance ; and my chief solicitude
has been to present to the public such only of my com
positions, as might be deemed least unworthy of their
favor. Some of them have never before appeared in
print ; and in regard to those, which have so appear
ed, I have availed myself of the present opportunity to
correct many errors, by which they were unavoidably
blemished, in consequence of my not having originally
examined the proof-sheets, as they passed through the
press. Although I am fully aware, that I can have
little claim to ask the public indulgence for the defects,
which may be discovered in these literary efforts, I
trust, that I may be permitted in some measure to
deprecate the severity of criticism by alluding to the
fact, that they were all written, not in hours of lite
rary leisure or ease, but in hours oppressed by
the weight of professional business, and sometimes by
anxious cares, at which the heart sickens, and the
spirit faints.
Cambridge, October, 1835.

CONTENTS.

LITERARY DISCOURSES.
Discourse pronounced at Cambridge, before the Phi Beta Kappa Society, on
the Anniversary Celebration, August 31, 1S26,  3
Discourse pronounced at the Request of the Essex Historical Society, Sep
tember IS, 1S2S, in Commemoration of the First Settlement of Salem,
Mass., .  34
Address delivered on the Consecranon of the Cemetery at Moimt Aukurn,
September 24, 1S.31, . .  SS
Discourse pronounced April o. 1?33, at the Obsequies of John Hooker
Ashmun, Esq., Roya!l Professor of L.xw in Harvard University, . 100
Discourse dehvered before the Boslon Mechmics' Institute, at the Opening
of their Annual Course of Lectures, November, 1S29, . . . 112.
Discourse Intn^duciory to a Cotirse of Lectures before the Famihes of the
Professors iu Harvard College, deUvered in Holden Chapel, December
23. ISSP, . . .  134
Lecture on the Science of Government, delivered before the American
Institute of Instruction. August, 1S34,  147
lines, written on the Death of a Daughter, in May, 1S31, . . 167

BIOGRAPHICAL SKETCHES.
Sketch of the life and Character of the Hon. Simuel Dexter, LL. D., . 173
Memoir of the Hon. John Marshal], LL. D., Chief Justice of the Su
preme Judicial Court of the United States, ..... 1S3
Sketch of the Character of the Hon. Robert Trimble, Associate Justice of
the Supreme Judicial Court of the United States, .... 201
Sketch of the Character of the Hon. Bushrod Washington, Associate Justice
of the Supreme Judicial Court of the United States, .... 204
Sketch of the Character of the Hon. Isaac Parker, Chief Justice of the Su
preme Judicial Court of Massachusetts,  20S
Sketch of the Character of the Hon. William Knkney, of Maryland, . 212
Sketch of the Character of the Hon. Thomas A. Emmet, .... 217

REVIEWS
Review of a Course of Legal Study respectfully addressed to the Students
of Law in the United Stales, by David Hoflinan, Professor of Law in the
Universitv of Marvland,

223

Viii CONTENTS.
Review of the Laws of the Sea with Reference to Maritime Commerce
during Peace and War — from the German of Frederic J. Jacobsen,
Advocate, Altona, 1815, .  245
Review of the Reports of Cases adjudged in the Court of Chancery of New
York, by William Johnson, Counsellor at Law. Vols. I, II, and III, 268
Review of a Treatise on the Law of Insurance, by Willard Phillips, . 294
Review of a General Abridgment and Digest of American Law, with Occa
sional Notes and Comments, by Nathan Dane, LL. D., Counsellor at Law, 321

JURIDICAL DISCOURSES AND ARGUMENTS.
Charge delivered to the Grand Jury of the Circuit Court of the United
States, at its First Session in Portland, for the Judicial District of Maine,
May 8, 1820,  . . 347
Argument delivered before the Board of Overseers of Harvard College, in
Januai^, 1825, upon the Discussion of the Memorial of the Professors and
Tutors of the College, claiming a Right that none but Resident Instruct-
ers in the College should be chosen or deemed Fellows of the Corporation, 368
Address dehvered before the Members of the Suifolk Bar, at their Anniver
sary, September 5, 1821, at Boston, ....... 405
Discourse pronounced upon the Inauguration of the Author, as Dane Profes
sor of Law in Harvard University, August 25, 1829, . . . 440

POLITICAL PAPERS.

Report on the Subject of an Increase of the Salaries of the Justices of the
Supreme Judicial Court of Massachusetts, made to the House of Represen
tatives of that State, in June, 1806, . .... 479
Memorial of the Inhabitants of Salem, Mass., addressed to the President and
Congress of the United States, Jan., 1806, relative to the Infringements of
the Neutral Trade of the United States, . . . _ 4g3
Memorial of the Merchants, and Others interested in Commerce, in Salem
Mass., and its Vicinity, addressed to the Congress of the United States'
June, 1820, on the Discontinuance of Credits on Revenue Bonds, the Abo
lition of Drawbacks, and other Restrictions on Commerce propos'ed hi Con-
8'-'==='  495
Sketch of a Speech dehvered in the Convention of Massachusetts assem
bled to amend the Constitution, in November, 1820, — on the Question of
the Proper Basis for the Apportionment of the State Senators, 511
Address on resigning the Speaker's Chair, in the House of Representatives
of Massachusetts, January 17, 1812, _„„

LITERARY DISCOURSES

DISCOURSE

PRONOUNCED AT CAMBRIDGE, BEFORE THE PHI BETA KAPPA SOCIETY, ON
THE ANNIVERSARY CELEBRATION, AUGUST 31, 1826.

Gentlemen,
If I had consulted my own wishes, I should not have pre
sumed 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 juris
prudence, drawn from remote antiquity, and expanding itself over
the business of many ages, must have a tendency to chill that en
thusiasm, 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 tliis 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, trust
ing to that indulgence, which has not hitherto been withheld from
well meant efforts, and not unwilling to add 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

4 LITEEAKY DISCOURSES.
deeper emotions in their effects upon future ages ; in their conse
quences 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 charac
terized 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. Heroes and patriots have successfully re
sisted 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 free
dom. 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 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 legis
lation, 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 De
mosthenes and Cicero. Who has outdone the chisel of Phid'
or the pencil of Michael Angelo, and RafFaelle ? Where are the

PHI BETA KAPPA DISCOURSE. 5
monuments of our day, whose architecture dares to contend with
the Doric, Ionic, or Corinthian of Greece, or even with the Com
posite or Gothic of later times ? History yet points to the preg
nant 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 acquire
ments, 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 satis
faction the triumph of his arms, than the triumph of the philosophy
and hterature of Rome. France yet delights to dwell on the
times of Lewis the Fourteenth, as 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.
But, though we may not arrogate to ourselves the possession of
the first genius, or the fiist era in human history, let it not be
imagined, that we do not live in an extraordinary age. It is im
possible 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 equahty in rights
and representation of all its citizens ? which commenced in a strug
gle by enlightened men for principles, and not for places ; and in its
progi-ess 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, demol
ished 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 gov
ernment in the very soil of absolute monarchy ? What shall we
say of another revolution, or rather series of revolutions, which has

LITERARY DISCOURSES.

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 retributions?
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 foot
steps of her armed oppressors. Her forests and her table lands,
her mountains and her vallies gladden with the voices of the free.
She welcomes to her ports the whitening sails of commerce. She
feels, that the treasures of her 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 indulo-e
myself even for a moment. They have been discussed here, and I
in other places, in a manner, which forbids all hope of more com
prehensive 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 lioht
and shadow of our days; to look somewhat at our own prospects
and attainments; and thus to lay before you something for re
flection, for encouragement, and for admonition.
One of the most striking characteristics of our age and that
mdeed, which has worked deepest in all the changes of its fortunes
and pursuits, is the general difTusion of knowledge This is em
phatically the age of reading In other times this was the privilege'
of the few ; in ours, it is the possession of the many LearniL
once constituted the accomplishment of those in the higher orders
of society, who had no relish for active employment, and of those
whose monastic hves and religious profession sought to escap f

PHI BETA KAPPA DISCOURSE. 7
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 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 cen
tral 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 fife.
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, punisha
ble 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 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.

LITERARY DISCOURSE:

One interesting efiect, 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 en
treated, 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 sUky page, asking admission to the counly drawingroom.
Authors are no longer the humble companions or dependents of the
nobUity : but they constitute the chosen ornaments of societv, 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, maintainmg its thousands in lucrative
pursuits. It is not with them, as it was in the days of Alilton,
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 multiphcation ", in which he
gravely enumerates five classes of beggars, ending the catalogue in
his own quaint phraseology with " poetasters," and repeating, for
the benefit of young apprentices of the law,-the sad admonition,
" Saepe pater dixit, Studium quid inutile tentas .'
MKonides nullas ipse reliquit opes."
There are certamly among us those, who are within the penalty
of this prohibition, if my Lord Coke's account of the matter is to
be 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 af^d
that the aiagician of Abbotsford is accustomed to "use the craft of
multiphcation"; and most of us know, to our cost, that he has
changed m^y strange substances into very gold and very sUver.
11L72 it"; f f " ''"^ ^^^'' ^^ - ^'^'¦--dly sus
pected, there IS little danger of his conviction in this hberal a^e •
smce, though he gams by every thing he parts with, we are never
willing to part with any thing we receive from him.

PHI BETA KAPPA DISCOURSE. 9
The rewards of authorship are now almost as sure and reo-ular,
as those of any other profession. There are, indeed, instances of
wonderful success, and sad failure ; of genius pining in neo-lect ; of
labor bringing nothing but sickness of the heart ; of fruidess enter
prise, 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 what
ever 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 con
stant 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 re
treats. It charms the traveller, as he sails over 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 Chris
tianity 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 afiections and virtues, which constitute the charm of
2

10 LITERARY DISCOURSES.
society. We had abundant homilies read upon their amiable weak
nesses 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 intellectual power was often resorted to, to
escape the dangerous imputation of masculine strength. In the
higher walks of life, the satirist was not without color for the sug
gestion, that it was
" A youth of folly, an old age of cards ; "
and that elsewhere, " most women had no character at afl," 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 hstiess hours of despondency.
These things have in a great measure passed away. The preju
dices, 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
restiess independence, which alarms by its sallies, or wounds by its
inconsistencies. We have seen, that here, as every where 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 unostentatious •
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
witinn her own command, whether she keeps the cool sequestered 1
vale of hfc, or visits tlie busy walks of fiishion.

PHI BETA KAPPA DISCOURSE. 11
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 blamelessncss 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. Hcmans, the match
less 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 gr!eat
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 estab
lished. 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. Wliat 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 aggre
gation of causes, that some stirring revolution breaks up the old
foundations, or some mighty genius storms and overthrows the
entrenchments of error. Who would believe, if history did not
record the fact, that the metaphysics of Aristotie, 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 discove
ries of Sir Isaac Newton encountered strong opposition from philoso
phers ? that Locke's Essay on the Human Understanding found its
way with infinite difficulty into the studies of the English Univer
sities ? 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

12 LITERARY DISCOURSES.

neari'

riy the whole theory of government, from the fall of the Roman
Republic to the seventeenth century ? that Christianity itself was
overiaid, 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 liberty of adoptinof 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 thoucrhts
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 fight 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

PHI BETA KAPPA DISCOURSE. 13
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 quletiy 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 encourage
ment. The efiects of this animated and free discussion have, in general,
been very salutary. There is not a single department of life,
which has not been invigorated by its influence, nor a single pro
fession, which has not partaken of its success.
In jurisprudence, which reluctantiy 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 con
cerned, is the creation of the eighteenth century. It started into
life with the genius of Lord IMansfield, 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 be
come 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 Eng
land 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.

14 LITERARY DISCOURSES.
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 wept and philosophy
shuddered, have felt the potent energy of reform, and substituted
for agonizing terror the gentie 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 meliora
tions suggested by the lamented Sir Samuel Romilly have forced
their way through Parliament to the throne ; and an enhghtened
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 nos
trums, 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
Grotlus almost to our own, a sluggish indifference to critical learn
ing fastened upon most of those who administered the hioh solem
nities of religion. Here and there, indeed, a noble spirit^was seen

PHI BETA KAPPA DISCOURSE. 15
like Old Mortality, wiping away the ancient dust and retracino- 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 littie 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 Blill, and Wetstein, and Kennicott, prepared the way
for a more profound investigation of the genuineness and authen
ticity 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 cer
tainty, to practical as well as doctrinal theology a logic and illus
tration, 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 protec
tion, 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 cor
respondent advancement. The discoveries of Newton have been
followed out and demonstrated by new methods and 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 per
turbation 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

16 LITERARY DISCOURSES.
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 meas
ure the extent of the changes in agriculture, manufactures, and
commerce, produced by the steam-engine of Watt, by the cotton-
machinery of Arkwright, by the power-looms of a later period, by
the catton-gin of ^Vhltney, 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, tiiat 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 Reld, 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 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 litera
ture, 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 philo
sophy, and ethics, and government ; from the voyager, who collects
his budget of wonders for tiie amusement of the idfe, 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 startiing us with its nsionary 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

PHI BETA KAPPA DISCOURSE. 17
most profound disquisition, can enumerate more excellent works,
as the production 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 some
times to elevate him to a height, where he faints from the mere
sense of giddiness. We have our journals of science and journals
of arts ; the J^ew Monthly, with the refreshing genius of Campbell,
and the Old Monthly, with the companionable quahties of a familiar
friend. We have the Quarterly Reviewers, the loyal defenders of
Church and State, the laudatores temporis 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 politi
cal economists, hunting out public abuses, and alarming idle gentle
men 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 transcen
dent felicity. One might approach nearer home, and, if it were
not dangerous to rouse 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 disas
trous 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
3

IQ LITERARY DISCOURSES.
Hfe ; 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 lovehness 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 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 pro
portions. The unavoidable tendency of free speculation is to lead to occa
sional 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 over
throw of error itself urges on a feverish excitement for discussion,
and a restiess desire for novelty, which blind, if they do not con
found, the judgment. Thus, the human mind not un frequently
passes from one extreme to another ; from one of implicit faith, to
one of absolute incredulity.
There is not a remark deduclble 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 nol been to present a multitude of
truths in one great step of its glory, but to gather tiiem up insensi
bly 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 oovernment 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 meditate over the pages of ancient exploits, or to listen to the
admonitions of ancient oratory.

PHI BETA KAPPA DISCOURSE. 19
We may even gather instruction from periods of another sort, in
which there was a darkness, which might be felt, as wefl 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, vjliielMnay 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 ridi
cule 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 cold indifference ; and thus,
false and glittering tiioughts, 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 for
tune and fame attendant upon that success, have had a very power
ful 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 experi-

20 LITERARY DISCOURSES.
ment ; to seek the sglid comforts of opulence, rather than the indul
gence 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 httie to policy, and
with difficulty brook opposition. The honors of the worid rarely
cluster round it ; and it cherishes with most enthusiasm those feel
ings, 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 gratifica
tion 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 pru
dence 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 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 distin
guished 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
instructers. 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 understand
ing, or in warming the heart with elevated sentiments ; but of its
power of direct, positive, necessary instruction. Until the eigh
teenth 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 tiiem only through the glimmerinas of inade
quate translations. What should we say of the jurist,%vho never
aspired to learn the maxims of law and equity, which adorn the
Roman codes? What of the physician, who could deliberately

PHI BETA KAPPA DISCOURSE. 21
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 com
mentaries of fallible man, instead of gathermg 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 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 re
sources of human learning ; which studies the manners and institu
tions 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 monu
mental trophies and triumphal arches, of palaces of princes and
temples of the Gods. I pass over all consideration of those ad
mired 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 enhghten 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,

22 LITERARY DISCOURSES.
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 elegance 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 litera
ture 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, tiierefore, 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 objec
tion. 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 North to the South of Europe, from the
bleak shores of the Baltic to the bright plains of immortal Italy,

PHI BETA KAPPA DISCOURSE. 23
whose literature is not embedded 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
m 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 inex
pressible 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 instruc
tion 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.
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 composi
tion prevail at the same moment, or succeed each other with a

24 LITERARY DISCOURSES.
fearful rapidity. On one side are to be found authors, who profess
to admire the easy flow and simplicity of the old style, the natural
ness of familiar prose, and the tranquil dignity of higher composi
tions. 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 per
fection 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 littie do we see of the simple beauty,
the cfiaste painting, the unconscious moral grandeur of Crabbe and
Cowper? We 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 extrava
gant 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 feehngs 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 wdl prefer truth to the ideal sketches of the imatrination

PHI BETA KAPPA DISCOURSE. 25
Our prose, too, has a tendency to become somewhat too ambitious
and Intense. Even in newspaper discussions of the merits or mis
deeds 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 un
affected 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 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 immor
tality, 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 per
formed at a heat." " I remember," said he, " when I was at
Rome, looking at the fighting gladiator, in company with an emi
nent 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 hterary fame
of, die present age the best gift to posterity 1 How many of our
proudest geniuses have written, and continue to write, with a swift
ness, wrhich almost rivals the operations of the press 1 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 1 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
4

26 LITERARY DISCOURSES.
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 courtiy 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.
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 indif
ferent, that respects the cause of science and literature. We have
taken a stand among the nations of the earth, and have success
fully asserted our claim to political equality. We possess an
enviable elevation, so far as concerns the structure of our govern
ment, 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 them
selves. 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 revi^ards under the guardianship of experienced guides. We
ask admission into the temple of fame, as joint heirs of the inheri
tance, capable, in the manhood of our strength, of maintaining our
tide. 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 vete
rans. 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 in
vigorate our powers by the studies of other times. We must guide
our footsteps by those stars, which have shone, and still continue
to shine, with inextinguishable light in the firmament of learning.

PHI BETA K.^PPA DISCOURSE. 27
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 os
tentatious 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 coun
try in the expressiveness of Indian rhetoric, " It is an aged hem
lock ; 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 me
diocrity ; if, in our literary career, we are content to rank behind
the meanest principality of 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 sug
gestions 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
thbse of the old worid, in foresight, in political wisdom, in effective

28 LITERARY DISCOURSES.
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 an
cestors 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 pro
found 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 their
classical lamps, while we have not a single university, whose studies
profess to be extensive enough to educate a Heyne, a Bentiey, a
Person, 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 Scrip
tures. 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 ques
tionable, 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 ex
tensive, 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 «uch

PHI BETA KAPPA DISCOURSE. 29
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 ougTit 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. Nee timeo, nee 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 institu
tions. But the time cannot 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 every where 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 Sax
ons, 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 vol
untary exile, in the midst of cares, and privations, and sufferings,
they found time to rear a littie 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 wit
nessed the prayers and gratitude of millions, ascending to heaven,
for our public and private blessings. That independence v/as 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

30 LITERARY DISCOURSES.
of them to the tomb, blest 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 inde
pendence on that memorable and blessed day of jubilee.
I may not, in this place, presume to pronounce the funeral pane
gyric 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 iUustrious 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 remem
brance 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 instructers of all future ages in the prin
ciples 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 sus
tained 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 defence 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 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

PHI BETA KAPPA DISCOURSE. 31
dear ; whose expansive mind commanded the range of almost every
art and science ; whose poUtical sagacity, like that of his iUustrious
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 Ufe, carrying the long Une of their iUumina-
tion 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 of Ufe 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 country
men, 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 jubUee 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 gentie as an infant's sleep. It was a long, lingering
twilight, melting into the softest shade.

32 LITERARY DISCOURSES.
Fortunate men, so to have lived, and so to have died ! Fortu
nate, to have gone hand in hand in the deeds of the revolution !
Fortunate, iu the generous rivalry of middle Ufe ! Fortunate, in
deserving and receiving the highest honors of their country ! For
tunate, in old age to have rekindled their ancient friendship with a
hoher 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 1 Fortu
nate, 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 Uterature, as
eminent examples of the excellence of the union of ancient learn
ing with modern philosophy. Their youth was disciplined in clas
sical studies ; their active life was instructed by the prescriptive
wisdom of antiquity ; their old age was cheered by its delightful
reminiscences. To them belongs the fine panegyric of Cicero,
" Erant in eis plurlmae Utters, nee em vulgares, sed interiores quae-
dam, et reconditae ; divlna memoria, summa verborum et gravitas
et elegantia ; atque heec omnia vltae decorabat dlgnltas et integritas."
I will ask your indulgence only for a moment longer. Since our
last anniversary, death has been unusually busy in thinning our
numbers. I may not look on the right, or the left, without missing
some of tlipse, 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 spotiess
life ; the other, whose social kindness and teve of letters made hlra
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 weU as
elegant studies. Whatever belonged to human manners and pur
suits, to human Interests and feelings, to government, or science, or
hterature, he endeavoured to master with a scholar's diligence and
taste. Few men have read so much, or so well. Few h^ve united
such manly sense with such attractive modesty. His thoughts and

PHI BETA KAPPA DISCOURSE. 33
his style, his writings and his actions, were governed by a judg
ment, in which energy was combined with candor, and benevo
lence with deep, unobtmslve, 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 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 Provi
dence 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.

DISCOURSE

PRONOUNCED AT THE KEaUEST OF THE ESSEX HISTORICAL SOCIETY, SEP
TEMBER 18, 1828, IN COMMEMORATION OF THE FIRST SETTLEMENT OP
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 connexion 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 hopes, and our destiny. He, who may
look back upori a long line of iUustrious 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

CENTENNIAL DISCOURSE. 35
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 achieve
ments. Nor let it be supposed, that this strong propensity of our nature
is attributable to the indulgence of mere personal or national van
ity. 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 evUs are overcome or diminished ; the funda
mental 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 Eng
land. I say emphatically, for the permanent plantation of New
England. There had been, before that period, various 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 disappoint
ments naturally following upon such novel enterprises. Few per
sons, comparatively speaking, had turned their thoughts to this, as
a land favorable for the cultivation of the sod, or^the arts of social
life. It promised littie to the European, who should leave his
native country with a fancy warm with descriptions of the luxuri
ance of this western worid, and hoping to pass the residue of his
Hfe, as " one long summer day of indolence " and ease. It offered

36 LITERARY DISCOURSES.
no mines, glittering with gold and silver, to tempt the avarice of the
selfish, or to stimulate the hopes of the ambitious. 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 na
ture, 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 pleas
ure, or the offerlng-s 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 own times,* " Quis poiTo,
praeter periculum horridi et ignoti maris, Asia aut Africa aut Italia
relicta, Germaniam peteret, informem terris, asperam coelo, tristera
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 neighbouring colony of Plymouth, where the renowned
PUgrims, under Carver, Bradford, and Winslow, had already raised
the standard of liberty and the cross, was encountering the severest
trials, and struggUng almost for existence. There were not a few
friends, who began to entertain fears, that unless succours 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

" Hutchinson, in his History (vol. i. p. 2.1 cites the na«<:a,r» in r rr ¦,
p. GermaniA. . -> ^ ^ ' ^"^ P^^^^S^- It is horn Tacitus,

De Germanid, c. 2.

CENTENNIAL DISCOURSE. 37
narrow factory.* 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 utteriy incompatible with the growth of a
state. It cut off, at a blow, every excitement to Individual enter
prise ; and, by its unequal distribution of burthens and benefits, sowed
far and wide the elements of discord. The followers of the excel
lent Robinson might. Indeed, comfort themselves with the present
possession of a refuge from religious oppression ; but the possibility
of a dissolution of their connexion at any period, however remote,
must, whenever it was suggested, have filled their hearts with sor
row, and, even when least indulged, sometimes have disturbed their
peace. Their own language, in defence of their settiement 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 ? " f At the
distance of ten years from their first landing, the colony could
scarcely number three hundred inhabitants ; % a proof, at once, of
the magnitude of their difficulties, and of the heroic zeal and perse
verance, which met them without shrinking or dismay.
By the blessing of God, however, our Fathers also came hither,
and, in connexion 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 recol
lections 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 bless
ings ? Let him cast his eyes over our mountains, or our vallies,
our deep forests, or our cultivated plains. Let him visit our villa
ges, 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,
* 2 Hutch. Hist. 468,469,470, 472, 476; Prince's Annals, 263; Robertson's
America, book 10 ; 3 Hist. Collect. 417.
t 2 Hutch. Hist. 469, &c.
t Robertson's America, book x. p. 267 ; Chalmers's Annals, p. 97. See also
the Commissioners' Report in 1665 (.3 Hutch. Collect. 417).

38 LITERARY DISCOURSES.
rising under his eyes in alternate order, yielding their products in
profusion, and quickened into fertlUty by the labors of man. Let
him hold communion with the inhabitants of these peaceful abodes,
with the mountaineers, and peasants, and yeomen, the lords of the
soil, the reapers of their own 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 neighbouring metropolis;
its splendid spires glittering in the sun ; its noble hospitals and
public charities ; its crowded and well-built streets ; its beautiful
harbour, floating on its bosom the commerce of the world, and
reflecting on its surface islands, and islets, and shores of ever vary
ing magnificence ; its amphitheatre of hills, whose gentie 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 hira
catch, in the distant reach, the waUs 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 eageriy 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 inspira
tions 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 stiU realize the fideUty of the description
of the voyager of 1629, who said, " We passed the curious and
difficult entrance into the large, spacious harbour of Naimkeake;
and as we passed along, it was wonderful to behold so many islands
replenished with thick wood, and high trees, and many fair green
pastures. The woods have disappeared ; but the islands and the
fair greeii pastures remain with more than native beauty ; and the
rivers still meander m their early channels. This " city of peace,"

CENTENNIAL DISCOURSE. 39
SO called by our fathers, as significant of their enjoyment of civil
and reUgious freedom, still boasts its ancient name ; stUl justifies
the original allusion to the scriptures, " In Salem also is God's
tabernacle, and his dweUing-place in Zion." * The thin and scat
tered 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 accompani
ments of opulence and knowledge, simplicity of life and manners,
unobtrusive refimement, 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 I) 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 immortaUty, 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 hum
ble, the contrite, and the pure still assemble in sweet communion,
and worship God in spirit and in truth. f The sepulchres of our
forefathers are also among us. We can trace them through all
their various labors to their last appointed home ; " sedes ubi fata
quietas ostendunt." Time has not yet leveUed the incumbent sod,
nor the moss overgrown the frail memorials erected to their worth.
But their noblest monument is around us, 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 structures 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 he the Founders of New
England ; and brief though it be, and of simple phrase, it has a

* 1 Historical Collections, 117 ; Psalm Ixxvi.
t See the excellent dedication sermon of the Rev. Mr. Upham, one of the
pastors of this church, in November, 1826.

40 LITERARY DISCOURSES.
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 aUusions not unbecoming this occasion,
and yet of a nature somewhat personal, though not, I trust, obtru
sive ? 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. 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 pilgnms,
where are they ? " where are Winthrop, and Endlcott, and Hig
ginson, and Dudley, and SaltonstaU, and Bradstreet, and Pickering,
and Sprague, and Pynchon, and Hathorne, and Conant, and Wood
bury, 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 eariy youth almost clasped the knees of the pilgrims.
He was familiar whh 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 settiers,
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 mellow
ing 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, m which the spirit of philosophy and benevolence was
sustamed by meekness and piety; in which blamelessncss of life,
cheerfulness of heart, and gratitude for past blessings, imparted
so id lustre to a faith, and hope, and joy, resting upon immortaUty.
Well may it be asked of such a being, in the tender language of

CENTENNIAL DISCOURSE. 41
Scripture, " And the old man, of whom ye spake, is he yet aUve ? "
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 aU, 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 well share this consolation, since a common sym
pathy 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 fartiier 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, whUe 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 rriarked 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 ques
tion ; 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 settiement
of New England peculiarly to gratify a national pride. We do
not trace ourselves back to times of traditionary darkness, where
6

42 LITERARY DISCOURSES.
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 nar
rative, and invest it with the colorings of his imagination. Greece
might delight to trace her origin up to the high renown and an
tiquity 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 with imaginary person
ages. Such as it is, our history lies far within the reach of the
authentic annals of mankind. It has been written by contempo
raries, with a simplicity, which admits of no embeUlshment, and a
fideUty, which invites scrutiny. The records are before us, sketched
by the first adventurers ; and there we may learn all their wan
derings, 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 con
ceal. 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 Uttie band, which, under the
guidance of the worthy, inteUigent, and intrepid Endlcott, landed
on the neighbouring shore. It was then, as it is now, the early
advance of autumn. What can be more beautiful or more attrac
tive than this season in New England? The sultry heat of
summer has passed away ; and a delicious coolness at evening suc
ceeds the genial warmth of the day. The labors of the husbandi
man 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 yeUow and
luxuriant harvests. The trees put forth their darkest foliage, half
shading and half revealing their ripened fruits, to tempt the appe
tite 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 enthusiasm. As yet,

CENTENNIAL DISCOURSE. 43
Uie forests stand clothed in their dress of undecayed magnificence.
The winds, that rustic through their tops, scarcely disturb the
silence of the shades below. The mountains and the vallies 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
Ught, and shade, and color, and slowly settling down into a pure and
transparent twUight. 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 dan
gers 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 leveUed, 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
ments, which that little word crowds into our hearts in the midst of
tiie keenest sufferings ? Where were the objects, to which they
might cling to relieve their thoughts from the sense of present deso
lation ? 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 ; " * there were many, whose
pillows were wet with bitter, though not repentant tears. Many a
* 3 Hutch. Collect. 44

44 LITERARY DISCOURSES.
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, endeavouring to retrieve
their wrecked fortunes in distant adventures. They were not idle
and luxurious wanderers, weary of society, and panting for unex
plored novelties. They had left a country fuU 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 chUdren, who dropped
upon their knees, and asked a blessing at parting, aye, 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;
fareweU, the church of God in England ; farewell, aU Christian
friends there." *
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 vrilderness.
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, Uke 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.

Eliot's Dictionary, Art. Higginson, 252.

CENTENNIAL DISCOURSE. 45
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 succours could reach them until the en
suing spring ; and even then, they were subject to many contin
gencies. 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 accom
plish these necessary defences. Beyond these, were the unknown
dangers of change of climate, and new habits of life, and scanty
food ; of the pestUence, that walketh in darkness, and the famine,
that wasteth at noonday. These were discouragements, which
might well appal 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."
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 paraUels 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 en
croachments, 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 succeed
ing years, in which it received an accession of almost two thousand
persons, we shall find abundant reason to distrust those early de
scriptions, of which the just complaint was, that " honest men, out
of a desire to draw over others to them, wrote somewhat hyper-
bolically of many things here," and " by their too large commen
dations of the country, and the commodities thereof, so strongly
invited others to go on ; " * and to express our astonishment, that
the enterprise was not instantly abandoned. Many of those, who
accompanied Endicott, died, in the ensuing winter, by disease from
exposure, and want of food and suitable medical assistance. They
* Governor Dudley's Letter, 3 Hist. Coll. 36, 38, 43.

46 LITERARY DISCOURSES.
were reinforced, the next summer, by new colonists with ftesh
supplies ; and again in the succeeding year, when the Corporation
itself was also removed, under the auspices of Wlntiirop, Dudley,
Johnson, SaltonstaU, and others. What was then the state of the
Colony? We are told by a friend and eye-witness *—" 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 plant for worldly ends, that can Uve weU at home, he commits an
error, of which he wlU 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
memorable 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 faU 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 theu' 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 contem
plate 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 eariy introduction
into a benefice of the church. The arguments of Hildershara 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 mainte
nance of his famUy ; and having received an invitation to remove

Governor Dudley's Letter, 3 Hist. Coll. 38.

CENTENNIAL DISCOURSE. 47
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 famUy, in the Talbot, in 1629. In the 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 iUustrative of his own character. "And
so," says he, " it was God's will the child died about five 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 aUu-
sion 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." * Alas ! he was destined too soon to
follow her. Not many months elapsed before a consumption settied
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 Ufe, 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 fear
ful rapidity, was that of a lady of noble birth, elegant accomplish
ments, and exemplary virtues. I speak of the Lady ArabeUa
Johnson,f 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 neighbouring shore. No stone or other memorial indicates
the exact place ; but tradition has preserved it with a holy reve
rence. The 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
* 3 Hutch. Collect. 32, 36.
1 Her name is commonly spelt in the records of that day, possibly as an abbre
viation, " Arhella."

48 LITERARY DISCOURSES.
woman ? What example more striking than hers, of uncompromis
ing 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 over
whelmed with grief at the unexpected event, and survived her but
a single month. Governor Winthrop has 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
Burying-ground 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 un-

» 1 Hutch. Hist. 16; 1 Winthrop's Journal, 34; Eliot's Dictionary, Art.
Johnson. ¦"

CENTENNIAL DISCOURSE. 49
sparing a hand, consigns statesmen and heroes, and even sages to
obUvlon, 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 solici
tude, upon some of the circumstances attending the emigration of our
forefathers. They are necessary to a full comprehension of the diffi
culties of the enterprise, and of the sufferings, which they bore, I wUl
not say with fortitude merely, but with cheerful, unreplnlng resolu
tion. 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 obsei'vation, darkei- e\'oj'y 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 appal
more than the most studied exaggerations of rhetoric. But, let
me repeat it, thanks be to God, their efforts were successful.
They laid 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 somethnes outposts of the empire, to hold in check a con
quered 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 sod
and delicious climate, by the passion for conquest, by the tempta
tions 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
7

50 LITERARY DISCOURSES.
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 barba
rians, and furnish employment for leaders and legions, too resdess
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 exclu
sively to the spirit of commerce. If power has mixed itself among
the objects of their governments, it has rather been, as a conse
quence of commerce, than an independent motive. Ships, com
merce, 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 resour
ces 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
tiirough their interior. Even England relaxed her grasp with a
slow and reluctant caution, yielding littie, 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, tiie boast of
her statesmen from the times of Cromwell down to ours, are an
undisguised appropriation of the means of the colonies to the poUcy
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 regu
lation 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

CENTENNI.A.L DISCOURSE. 51
but the Ul-managed contrivance of a private corporation for trade.
It affords a curious example of the spirit of conquest engrafted on
the spirit of commerce ; of a government founded on calculations
of profit ; of a legislation acting on the industry of sixty millions
of subjects, wholly without representation ; of a judicial establish
ment 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 com
merce. 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 councU of Plymouth had profitable objects in view, and
that capital was first embarked, and a charter obtained, to accom
plish these ends. But the scheme had littie 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 exUe 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 the most instructive
of all speculations, wh.lch can employ the intellect of man.
Paganism was indulgent in its general policy ; for it taught littie 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

52 LITERARY DISCOURSES.
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, per
haps, because the relative power, superiority, and office of each
might not be weU adjusted in their mythology. Quarrels and
divisions about faith and doctrines were of very rare occurrence, m
the heathen worid ; for their religion deaU more in rites and cere
monies than in fixed belief.* There would be littie inclination for
pubUc 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 littie 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 neariy the whole ancient worid. " The various modes of wor
ship, which prevailed in the Roman worid, were aU considered by
the people, as equally true ; by the philosopher, as equaUy false ;
and by the magistrate, as equally useful. And thus toleration
produced, not only mutual indulgence, but even reUgious con
cord." t
Far different is the case with Christianity. It propounds no
equivocal doctrines. It recognises 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, all-merciful, the God of
aU, and the Father of all. It developes one complete system of
duties, fit for all times, and all stations ; for the monarch on his
throne, and the peasant in his cottage. It brings aU men to the
same level, and measures aU 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 accounta
bility 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 sacri
fices, but of a broken and contrite spirit; no pardon, but by repent-
* Bacon's Essays ; 2 Bacon's Works, 257.
t 1 Gibbon's Hist. ch. 2, p. 46 ; Montesquieu's Spirit of Laws, b. 25, ch. 15.

CENTENNIAL DISCOURSE. 53
ance 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 worid, 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 engrossed 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 per
secution 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
sUentiy working their way from the first dawn of the revival of
letters. Learning stimidated Inquiry ; inquiry 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 ac
complish. 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 occa
sion, raUy 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 soUd 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

54 LITERARY DISCOURSES.
this last class belonged the body of the Puritans, a class as dis
tinguished 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. Dissen
ters; that they were hostile to episcopacy in every shape; and
that they pushed their alms to the overthrow of all church govern
ment. The truth was far otherwise. Many of the most distin
guished 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 instrument 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 founda
tions 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 marveUous. 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 re-
sideth, 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 unfelgnedly grieve for any
sorrow, that shall ever betide her; and, while we have breath, sin
cerely desire and endeavour die continuance and abundance of her
welfare, with the enlargement of her bounds in the kingdom of
Christ Jesus." *
The Puritans have been divided by an accomplished historian
into three parties ; the political Puritans, who maintained the high
est principles of civil liberty ; the Puritans in discipline, who were

1 Hutch. Hist. Appendix, 487, 488.

CENTENNIAL DISCOURSE. 55
averse to the ceremonies and episcopal government of the Church ;
and the doctrinal Puritans, who rigidly defended the speculative
opinions of the first reformers.* 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 great controversies touched the rites and cere
monies, and the fasts and feasts of the Church, tiie vestments of the
priesthood, kneeling at the altar, the sign of the cross, and the
mariner of celebrating the ordinances. The usages of the Church,
in some of these respects, were deemed by the Puritans unscrlp-
tural, 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 consciences, 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.f
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." ."I; And he denounced them, as " a sect unable to
be suffered in any well governed commonwealth." ¦§. 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 injunc
tions of a like nature, four hundred clergymen were ejected, sus
pended, or silenced in one single year of this reign. || With an
iU-omened perseverance in the same bigoted system, Charles the
Second, soon after his restoration, compelled two thousand clergy
men, 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. H Yet Mr. Hume, in
his eager apologies for royalty, could survey such scenes with phi
losophical indifference, and intimate a doubt, whether they deserved
the appellation of persecution, because the victims were Puri
tans.** * 6 Hume's Hist. ch. li, p. 272.
t 6 Hume's Hist. 163; 7 Hume's Hist. 41, 516. { Prince's Annals, 105.
§ Ibid. 107. II Ibid. 111. 11 6 Hume's Hist. 164.
** Hume's Hist. 384.

56 LITERARY DISCOURSES.
After all, it is not in the power of the scoffer, or tiie skeptic ;
of the parasite, who fawns on courts, or the proselyte, who doats
on the infallibility of his own sect ; to obscure die 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 strictiy a
discipline. Irksome, cheeriess, and oppressive ; that it was some
times over rigid, when it might have been Indulgent ; stern, when
it might have been affectionate ; pertinacious, when concession
would have been just, as weU 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 reve
rence and admiration of mankind. Of them it may be said, with
as much truth as of any men that have ever Uved, 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 tempe
rance, 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 worid, 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 doubt
ful, seeking no escape, and indulging no terror. When, in defence
of their faith, of what they deemed pure and undefiled religion, we
see them resign their property, tiielr 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 inliospltable 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

CENTENNIAL DISCOURSE. 57
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
shaU examples be sought or found, more fuU, 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
woridly 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." * 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." f Men,
who, in still later days, in their appeal for protection to the throne,
could say with pathetic truth and simplicity, as our forefathers did,
" That we might enjoy divine worship without human mixtures,
without offence to God, man, our own consciences, with leave, hut
not without tears, we departed from our country, kindred, and
fathers' houses into this Patmos ; in relation v^'hereunto 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." %
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 endur
ing subUmity ; — then, indeed, have I ill read the human heart ;
then, indeed, have I strangely mistaken the inspirations of reUgion.
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 Chris-
* 3 Hutch. Collect, p. 29. t Ibid. 29. 30. t Ibid. 328.
8

58 LITERARY DISCOURSES.
tian 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 remem
brance 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 batties, 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, 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 lihe 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 presumptuous-
ness of ignorance, that America was peopled much in the same
way as Botany Bay, with outcasts and convicts. So far as Vespects
New England, there could not be a more flagrant violation of the
trutii 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 Uterature and science, and could trace back their
matriculations to the Universities of Oxford and Cambridge. Many

CENTENNIAL DISCOURSE. 59
of them were ripe for public honors at home, if they had chosen
to remain there. Many of them were the friends aud compeers of
CromweO, and Pym, and Hampden, and Milton, and other illustri
ous men, who, in the midst of all the changes of party, and all the
studied disparagements of royalty, stiU continue to attract the reve
rence of mankind. Need I name Winthrop, Dudley, Endicott,
Humphrey, SaltonstaU, Johnson, Nowel, Bradstreet, and Pynchon ?
Or, among the clergy, Higginson, Skelton, Cotton, Eliot, Daven
port, WiUiams, 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, nee temere sine
laude nominandus." *
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, sta
tion, 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 integ
rity, 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 Uves, 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 tis
exultingly hail this day as one of glorious memory. Let us proudly
survey this land, the land of our fathers. It is our precious inheri
tance. 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 empire, which has been won with so much
innocence ? Where is the empire, which has been maintained with
so much moderation ?

* See Eliot's Biog. Dictionary, Art. Davenport; 2. Hist CoUect. (2d series)
p. 260.

60 LITERARY DISCOURSES.
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 per
formed 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 whUe they demanded religious fteedom 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 * has dweU with
no small complacency upon the fact, that the Puritans " maintained
that they themselves were the only pure Church ; that their prin
ciples 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 Covenanter, by Church or State,
by thejnonarch or the people. Wherever, and by whomsoever,
it is promulgated or supported, under whatever disguises, for what
ever 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 degree, 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 sepa
rated from religious liberty without danger, and ultimately without
destruction to both. Wherever religious liberty exists, it wiU, first
or last, bring in, and establish political liberty. Wherever it is
' 6 Hume's Hist. 164.

CENTENNIAL DISCOURSE. 61
suppressed, the Church establishment wiU, 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 reUgion, breathing the spirit of mercy and benevolence, teaching
the forgiveness of injuries, the exercise of charity, and the return
of good for evU ; 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 unac
countable and extraordinary moral phenomenon. StUl more extra
ordinary, 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 humUity, 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
equaUty to all- sects, and deny the power of persecution to aU.
Our fathers had not arrived at the great truth, that action, not
opinion, is the proper object of human legislation ; that religious
freedom is the birthright of man ; that governments have no au
thority 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 sepul
chres, 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 Eu
rope, if we except Holland, the practice of burning heretics still

62 LITERARY DISCOURSES.
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.* 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
twUight, had then shot up in unsteady streams to direct their
course ; — that, learned as they were, and wide as were their re
searches, and painful as was their diligence, they should have out
stripped aU 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 circum
stances to our own sense of duty. It would be deaUng 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 sup
posed coincidence with Scripture. Uniformity of faith and intoler
ance 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 eariy reformers
there may be found, here and there, passages, which recognise 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 littie 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 Catho
lic 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 modera
tion 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 aU
others the greatest scandals." At the same time, he boldly warns
us not " to propagate religion by wars, or by sanguinary persecu
tions to force consciences." f At the distance of a century, the
* 6 Hume's Hist. 57, 163; 7 Hume's Hist. 20, 41, 515.
t 2 Bacon's Works, 259.

CENTENNIAL DISCOURSE. 63
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 whUe he declares, that penal laws, in respect to reUgion, ought
to be avoided, he paradoxically maintains the doctrine, as a funda
mental principle, that, when the state 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 Ulustrative exam
ples. 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 recognised more as matter of
toleration and policy, than of right ? suffered, rather than support
ed ? 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 stiU, by their stat
utes, closed against the admission of Dissenters from the estabUshed
Church. For more than a century and a half, Protestant Dissent
ers 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 religious thraldom of one third of her whole
population, are just reaching our ears from the other side of the
Atiantic. The Catholic yet groans under the weight of disabUities
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 employ the civil arm to suppress heresy,
or to crush the weaker sects ?

* Montesquieu's Spirit of Laws, book 25, ch. 10, 12.

64 LITERARY DISCOURSES.
Whh 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 faded 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 Chris
tian sects, this was the first, which, during its prosperity as weU
as its adversity, always adopted the principle of toleration." *
But our forefathers acted far otherwise. The truth of history com
pels us to admit, that, from the first settlement down to the charter
of William and Mary, in 1692, in proportion as they gathered inter
nal 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, reconcUed them to it, and they
hailed it almost as another magna charta of liberty .f So true it
is, that accident or interest frequently forces men to the adoption of
correct principles, when a sense of justice has totally faded 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 dis
pleasure ; 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. J In truth
the clergy possessed a power and influence in the state, as great
as ever was exercised under any church estabUshment whatsoever.
There was not, until after the repeal of the first charter, in 1676, a
single Episcopal society in the whole colony ; >§> and even the cele-
* 7 Hume's Hist. 20. ( i Hutch. Hist. 75, and note.
t 3 Hutch. Collect. 478, 484, 520, note. § 8 Hutch. Hist. 430, 431.

CENTENNIAL DISCOURSE. 65
bration of Christmas was punished as a public offence.* In this
exclusive policy our ancestors obstinately persevered, against every
remonstrance at home and abroad. When Sir Richard SaltonstaU
wrote to them his admirable letter, which pleads with such a catho
lic 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." f 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 per
taining 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. J They vvent farther, imitating in this
respect the famous act of uniformity of EUzabeth, and compelled
an attendance upon their own mode of worship under a penalty.
Yes, the very men did this, who thought that paying one shUllng for
not coming to prayers in England was an unsupportable tyranny.<5>
Yes, 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 commis
sioners for Episcopalians and others. They silently evaded the
claim, or resolutely refused it, as the temper of the times enabled
them to act. II
The very efforts, made in the colony to establish this uniformity
of faith, afford striking proofs of the utter hopelessness, as weU as
injustice of such attempts. Within ten years after thejf first land
ing, the whole colony was thrown into confusion by religious dissen
sions, by controversies about faith, and about forms of church
government ; about the covenant of grace, and the covenant
of woriis ; about liberty of conscience, and exclusiveness of wor
ship ; 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 imag-
* 3 Hutch. Collect, 419, 482; Colony and Province Laws, edit. 1814, p. 119,
ch. 50.
t 3 Hutch. Collect. 401, 402. t Ibid. 403.
§ Ibid. 418, 419, 422 ; 1 Hutch. Hist. 75.
II 3 Hutch. Collect. 188, 191, 192, 193, 194, 418, 419, 422 ; 8 Hist. Collect, (sec
ond series) p. 76, 78 ; 1 Hutch. Hist. Appendix, 537 ; 3 Hutch. Collect. 478, 482,
484, 519, 520. 9

66 LITERARY DISCOURSES. 1
ine, that the reveries of Mrs. Hutchinson, and the question, \
whether ladies should wear veils, and the legality of bearing the )
cross in a miUtary 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 here
sies, by an ecclesiastical Synod convened in 1637.* Yet were the
difficulties far from being removed, although fines and imprisonment
and banishment foUovi^ed 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, constantiy 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 com
mentary upon its injustice and folly. Five sixths of the colony
were disfranchised by the influence of the ecclesiastical power.f
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 unitm
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
civU authority for observing the duties commanded by it." | They
not only tolerated the civil power in the suppression of heresy, but
they demapded and enjoined it. They preached it in the pulpit
and the synod. It was in their closet prayers, and in thek 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. § Our ancestors could, not frame such an apology for
^ ; ] !!"f f • ^]^^W^^^^^^^:^. W^^. Collect. 484.
t 1 Hutch. Hist. 434. § Montesquieu's Spirit of Laws, book 25, ch. 9.

CENTENNIAL DISCOURSE. 67
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 aUiance between church and state, on which so many enco
miums have been lavished, seems to have been littie more than
a compact between the priest and the magistrate to betray die
Uberties of mankind, both civil and religious." *
To the honor of New England be it said, that if here persecu
tion 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, wiU, by the blessing of
God, be maintained by us and our posterity at aU hazards, and
against all encroachments. Here, on this very spot, in Naumkeag,
in this " bosom of consolation," f it was proclaimed by Roger
WiUiams 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 dec
laration, which puts to shame many a realm of wider domains and
loftier pretensions. It stUl shines among her laws, with an argument
in its support in the shape of a preamble, which haapim'ely been
surpassed in power of thought or felicity of expres|^
chusetts may blush, that the Catholic colony of L3I
and the Quaker, the blameless Quaker colony of Penn^^^©*origi-
nally founded on the same generous principles of ChrisiM right,
long before she felt or acknowledged them.^^i
* Robert Hall ; " Christianity Consistent with a Love of Freedom."
1 In " The Planter's Plea," published in London in 1630, the writer says that
Mahum Keike is perfect Hebrew, and by interpretation means " The bosom of
consolation." + It is almost in totidem' verbis vrith the act of Virginia of 1785, 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.
§ I Pitkin's Hist. 56, 67; Chalmers, p. 218; 2 Proud's Hist. Append.

68 LITERARY DISCOURSES.
While, then, we joyfully celebrate this anniversary, let us re
member, 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 disci
pline ? 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 by-gone 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^^^d say, with the earnestness of the apostolical exhorta
tion, ''T^chjot, taste not, handle not." If ever there could be
a ca^ in wfflRi intolerance would rise almost into the dignity of a
virtj^ it v?(pld be, when its object was to put down intolerance.
No — l^Ds cling with a holy zeal to the Bible, and the Bible only,
as the rligion of Protestants. Let us proclaim, with 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

CENTENNIAL DISCOURSE. 69
Ups — " It is not in the power of men to believe what they please ;
and therefore they should not be forced in matters of reUgion con
trary to their persuasions and their consciences." *
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 fore--
fathers were governed, in respect to religion, by a spirit unworthy of
Protestantism, it was far otherwise in respect to their civil institu
tions. 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 gen
eral sense, added Uttie to their securities for public or private rights.
There is no reason to suppose, that they were opposed to mon
archy, as a suitable form of government for the mother country, or
that opposition to the civU estabUshments mingled in the slightest
degree with the motives of their emigration.! There is just as
Uttle 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
nobUlty, in their celebrated answer to the propositions of Lord Say
and Scale. J This attachment to the form of government of the
mother country was not only sincere, but continued down to 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 pro
fessions of loyalty. The formation of a Republic was the neces
sary result of the final separation froiD England. The controversy
was then narrowed down to the consideration of what form of gov
ernment they might properly adopt. AU their habits, principles,
and institutions prohibited the existence of a real or titular peerage.
They had no materials for a king. They were, as they had been
from the beginning, essentiaUy republicans. They foUowed 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 connexion 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

' 9 Hist. Collect. 251. t sWutch. Collect. 326. ± 1 Hutch. Hist. 490, 493, 494.

70 LITERARY DISCOURSES.
return for this protection, they were ready to admit a sovereign right
in Pariiament 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 ParUament or
the Crown to legislate generally for them, or to interfere with their
domestic polity. On the contrary, from tlie first, they resisted it,
as an encroachment upon their liberties. This was more emphati
cally true of Massachusetts than of any other of the Colonies.
The commissioners of Charies the Second, in 1665, reported, that
" she was the last and hardllest 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." * In short, the commissioners well described " their
way of government, as commonwealth lilce." f Even in relation
to foreign commerce their strong sense of independence was illus
trated by the complaint, that " no 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." J
These acts of navigation and trade were never recognised as in
force in the colony, until their own legislature required their obser
vance. <§> So strenuous were our ancestors, even at this early period,
in maintaining the doctrine, that ParUament 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 per
ceive, at every turn, a constant struggle for substantial independence.
The basis of their institutions was, from the first settiement, repub
lican. The people were the admitted source of aU power. They
chose the magistrates and executive. They established a represen
tative government ; they created a colonial legislature, whose power
to enact laws was, untU the overthrow of the first charter, deemed
for most purposes absolute and supreme. Their eariiest legislation
recognised the great rights secured by the Magna Charta of Eng
land : the trial by jury ; the free administration of justice ; the
equality of freemen; the abolition of aU slavish and feudal tenures;
* 3 Hutch. Collect. 417, 418. ^^ jl,ij_ 422
t Randolph's Letter in 1676 ; 3 Hutch. Collect. 4I6.
§ 1 Hutch. Hist. 322; 3 Hutch. Collect. 521.

CENTENNIAL DISCOURSE. 71
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 constUuted a
fundamental principle in their policy ; and, by its silent, but irresisti
ble influence, prevented the undue accumulation of estates in a few
hands, so that the introduction of a colonial nobility became abso
lutely impracticable. 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.
WhUe this great law of descents exists, it will for ever prevent the
establishment of any arbitrary power. The government, that once
admits it into its code, may remain in form a monarchy, or an aris
tocracy ; 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 fore
fathers. 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 signifi
cantly express the dignity of their design, than their own words.
" After God had carried us .safe to New-England," said they, " and
we had budded our houses, provided necessaries for our livelihood,
reared convenient places for God's worship, and settled the civil
government; one of the next things v/e longed for, and looked
after, was to advance learning and perpetuate it to posterity, dread
ing to leave an illiterate ministry to the churches, when our present
ministers shall Ue in the dust." * They were not disappointed in
their hopes. By the blessing of Providence, this littie College,
planted by their hands, and nursed by their care, has flourished.
Already she counts nearly six thousand in her matriculations. She
StiU stands erect, in the midst of her offspring, clothed with her
ancient glory and matron dignity, and lovelier by her age. Our

1 Hist. Collect. 240.

72 LITERARY DISCOURSES.
hearts stUl yearn towards her ; our thoughts stiU kindle at her praise ;
our prayers stUI rise for her prosperity. We may smUe at the early
charge made by the royal commissioners, that "it may be feared
this College may afford us many schismatics to the Church." *
But we proudly proclaim their reluctant confession, that by her
means there was " a scholar to their minister in every town or vil
lage " in Massachusetts. f
But the truest glory of our forefatiiers is in that system of public
instruction, which they instituted by law, and to which New Eng
land 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 let
ters 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 for ever remain her appropriate praise. Yes, in the
year 1647, they ordered every township of fifty householders to
maintain a public school at public expense ; and every township of
one hundred householders to maintain in Uke 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 dweUings, but
humble cottages for their own shelter and safety. When thej
were poor and unprotected, persecuted and in peril — they could
* 3 Hutch. Collect. 421. 4 j;,;^^ ^^^

CENTENNIAL DISCOURSE. 73
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 poverty ; that skiU has given polish, as
weU as strength, to talent ; that a lofty spirit of independence has
been nourislied 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 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 san/e oblivion, to which the dead they cover have
long since passed. / But here, every successive generation becomes
a living memoriaj/of our public schools, and a Uving example of
their excellence.' Never, /nWer may this glorious institution be
abandoned or/oetrayed by/ the weakness of its friends, or the power
of its adversaries. It can scarcely be abandoned or betrayed,
while New Efigland rernains free, and her representatives are true
to their trust. It must for ever counr^in its defence a majority of
all those, who ought to influence public affairs by their virtues or
their talents ; for it mustxbe, 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 ?
10

74 LITERARY DISCOURSES.
There is another topic connected with the settiement 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
worid, and deprive the Indians of that exclusive sovereignty over
the sod, which they had exercised for ages beyond the reach of
human tradition ? Men of deep reflection, and especiaUy men
who feh 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 ot conceal
the real difficulties of the inquiry.
In ascending to the great principles, upon which aU 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 recognise 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 argu
ment 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 justiy said to be the true and solid
foundation of man's dominion over it.* But this principle does
not lead to the conclusion, that any particular person may acquire
to himself a permanent and exclusive interest in the sod ; much
less, that any single nation may appropriate to itself as much of the
surface as it shaU choose, and thus narrow down the common
inheritance, and exclude all others from any participation in its

* 2 Bl. Com. 2.

CENTENNIAL DISCOURSE. 75
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 enjoyment. But where shall we find, inde-
pendentiy of maxims derived from society, the right of any nation
to exclude others from cultivating the sod, 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 civiUzed nations), that exclu
sive 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 com
munities, 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 civUized life. But if general consent should abolish it to-mor
row, 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 the mutual struggle for power, contests of the most sanguinary
nature would soon intervene, if some general principle were not
adopted, by the consent of aU, for the government of all. The
most flexible and convenient principle, which occurred, was,
that the first discovery should confer upon the nation of the
discoverer an exclusive right to the soil, for the purposes of sove
reignty 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 posses
sion acquired under it was deemed absolute and unquestionable.
In respect to desert places, the principle, as one of peace and
equality of benefits, is not perhaps obnoxious to censure. But in

76 LITERARY DISCOURSES.
respect to countries already inhabited, neither its general justice,
nor its conformity to public law, entitles it to commendation. If,
abstractiy considered, mere discovery could confer any titie, 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 entitied to the sovereignty. In short, it
is clear, that, upon the principles generally recognised by European
nations, as between themselves, the natives could not be rightfully
displaced. And if they were not entitied to the benefit of those
principles, they might stlU 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 infideUty 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 stiU receive
an ample compensation, in their admission into the bosom of Euro
pean society, with its privileges and improvements. Such were
some of 'the suggestions, by which royal ambhion sought to dis
guise 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
entitied to respect.
Our forefathers did not attempt to justify their own emigration
and settiement, upon the European doctrine of the right of dis
covery. 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 an
swer 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 dweU

CENTENNIAL DISCOURSE. 77
amongst them in their waste lands ? God hath given to the sons of
men a two-fold 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 civU right. There is more dian 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
shaU come in with the good leave of the natives.* Such argu
ments were certainly not unworthy of men of scrupulous virtue.
They were aided by higher considerations, by the desire to propa
gate 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 reUgious zeal, they compeUed the Indians, by penalties, to
attend public worship, and allured them, by presents, to abandon
their infidelity .f In truth, the propagation of Christianity was a
leading motive with many of the early promoters of the settiement;
and we need no better proof of it, than the establishment 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 fore
fathers 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. Dur
ing 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 Pil
grims of New England. Their hands were not imbrued in inno
cent blood. Their hearts were not heavy with crimes and oppres
sions engendered by avarice. If they were not wholly without
* 3 Hutch. Collect. 30, 31. 13 Hutch. Collect. 28, 32, 420, 490.

78 LITERARY DISCOURSES.
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 justi
fied by the government. It is not, then, a just reproach, some
times cast on their memories, that their religion narrowed down
its charities to Christians only ; and forgot, and despised, and
oppressed these forlorn chUdren 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 admi
ration. What can be more melancholy than their history ? By a
law of their nature, they seem destined to a slow, but sure
extinction. Every where, at the approach of the white man, they
fade away. We hear the rusding of their footsteps, like that of the
withered leaves of autumn, and they are gone for ever. They pass
mournfuUy 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 for
ests ; 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

CENTENNIAL DISCOURSE. 79
families? They have perished. They are consumed. The wast
ing 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 heart-cores — a plague, which
the touch of the white man communicated — a poison, which be
trayed them into a lingering ruin. The winds of the Atlantic
fan not a single region, which they may now caU 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 feariess still." The ashes are cold on their native
hearths. The smoke no longer curis 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 recoUections ; 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 privUeges of subjects ; — but that the red
men are incapable of .such an assimUatlon. By their very nature
and character, they can neither unite themselves with civU institu
tions, nor with safety be allowed to remain as distinct communities.
Policy may suggest, that their ferocious passions, their independent
spirit, and their wandering life disdain the restraints of society ; that

80 LITERARY DISCOURSES.
they wiU 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 sub
sist by war or hunting ; and the game of the forest is relinquished
only for the nobler game of man. The question, therefore, is ne
cessarily reduced to the consideration, whether the country itself
shaU be abandoned by civUized 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 difficul
ties. But neither philosophy nor policy can shut out the feelings
of nature. Humanity must continue to sigh at the constant sacri
fices 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 mel
ancholy 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 fanat
icism, acting under the influence of preternatural terror, and assum
ing to punish offences created by its own gloomy 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

CENTENNIAL DISCOURSE. 81
times (for so they in fact were), in which law and reason were
equaUy set at defiance, we have shocking instances of unnatural
conduct. We find parents accusing their children, chUdren 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 suffer
ings 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 con
sequences. 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, untU, at last, in its progress,
its desolations reached their own fire-sides.*
And yet, dark and sad as is this picture, it furnishes no just
reproach upon this ancient town, beyond what belongs to it in com
mon 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 in
telligent historian,! that the importance given to the New England
trials proceeded more from the general panic than from the num
ber executed ; " more having been put to death in a single county
in England, in a short space of time, than have suffered in aU
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 evU spir
its, has had in its support the belief of many enlightened nations of
the world. Mr. Justice Blackstone has not scrupled to declare,
that to deny it " is at once flady 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 eariiest times, it has been punished as a crime
in all Christian countries, and generaUy, 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 untU 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
* 2 Hutch. Hist. 16 to 60,6i,c. t 2 Hutch. Hist. 15, 16.
i 4 Bl. Cora. 60 ; 3 Inst. 43.
11

g2 LITERARY DISCOURSES.
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, devUish, and wicked offend
ers ; " * and the Pariiament 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.f 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 .J And we have high
authority for saying, that " it became a science, every where much
studied and cultivated, to distinguish a true witch by proper trials
and symptoms. ""§1
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 weU 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 for ever 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 Eng
land, 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 batde, foremost in danger ; but, as is not unusual in colonial
service, latest in the rewards of victory. An ante-revolutionary
* 3 Inst. 44. t Ibid. 44, 45. t 2 Bacon's Works, 27, 45, 69.
§ 7 Hume's Hist. 186.

CENTENNIAL DISCOURSE. 83
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 cap
ture of Quebec and the Canadas, they bore an honorable and im
portant 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 stUl possess an animating freshness. In the
struggle for independence, in which all the colonies embarked in a
common cause, and aU exhibited examples of heroism and public
spirit, in which aU 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 pubhc sacrifices, in contributions of men and
money, in firmness of resolve, or in promptitude of action. The
blood of her chUdren was freely poured out, not only on her own soU,
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 battie raged, diey were found ; and many a gallant
spirit breathed his last breath on the deck, with his thoughts stiU
warm with the love of his native New England. Let a single fact
concerning Massachusetts suffice to establish no mean claim to
respect. LTpon the final adjustment of the accounts of the revolu
tionary war, although her own soil had been but for a short period
occupied by the enemy, she had expended eighteen miUions of
doUars, and the balance then due to her exceeded one miUlon.
One state only in the Union surpassed her in expenditures, and
none in the balance in her favor.* But this would give a very
* 2 Pitkin's Hist, of United States, p. 538.

84 LITERARY DISCOURSES.
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 Uterature and sci
ence, 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
WUliams, 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 Re
public ? 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 entered, to be bright with
ages of onward and upward glory ? Or is our doom already re
corded 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, in
stitutions, 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 patrise Priamoque datum ; si Pergama dextrA
Defendi possent, etiam hdc defensa fuissent."
I would not wiUingly cloud the pleasures of such a day, even
with a transient shade, I would not, that a single care should flit

CENTENNIAL DISCOURSE. 85
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 smUes of
youthful beauty, the graces of matron virtue, the strong intellect of
manhood, and the dignity of age, and had these as the accompani
ments of peace and independence; — who can look around him,
and not at the same time feel, that change is written on aU 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 dan
gers, 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 vigUance, and moderate our confi
dence !
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
feU 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 fac
tions. She feU 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.^

86 LITERARY DISCOURSES.
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 problngs 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 vallies are not 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 institutioris,
a military road to fairer climates, scarcely worth a permanent pos
session, and protected by the jealousy of her neighbours.
We stand, the Iqigst, and, if we fail, probably the last experiment
of self-government by the people. We have begun it dnder cir
cumstances of the most auspicious nature. We are in the vigor
of youth. Our growth has never been checked by thvi oppressions
of tyranny. Our constitutions have nejrer 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 self-respect. 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 govern
ment is mUd. The press is free. Religion is free. Knowledge
reaches, or may reach, every home. What fairer prospect of suc
cess could be presented ? What means more adequate to accom
plish the sublime end ? What rngre is necessary than for the
people to preserve what they themsefves 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.

CENTENNIAL DISCOURSE. 87
moving onward to the South, has opened to Greece the lessons of
her better days.
CMijt_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, but they are
not"? Forbid it, my countrymen ; forbid it. Heaven.
I caU upon you. Fathers, by the shades of your ancestors, by the
dear ashes which repose in this precious soil, by aU you are, and
aU 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 caU upon you. Mothers, by that which never fails in woman,
the love of your offspring ; teach them, as they cUmb 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 chUdren upon the theatre
of Ufe. May God speed them and theirs. May he, who, at the
distance of another century, shall stand here to celebrate this day,
stUl 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."

ADDRESS

DELIVERED ON THE CONSECRATION OF THE CEMETERY AT MOUNT AUBURN,
SEPTEMBER 24, 1831.

My Friends,
The occasion, which brings us together, has much in it calcu
lated to awaken our sensibilities, and cast a solemnity over our
thoughts. We are met to consecrate these grounds exclusively to the ser
vice and repose of the dead.
The duty is not new ; for it has been performed for countless
mUlions. The scenery is not new ; for the hiU and the valley, the
dark, silent deU, 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 inter
vals • and, whenever it does, it must address itself to feelings intel
ligible 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 bury-
ing-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 burylng-place."
It is the duty of the Uving thus to provide for the dead. 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

address at the CONSECRATION OE MOUNT AUBURN. 89
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
restiess 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 scat
tered 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, 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 enclose 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
eardily 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 chil
dren 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, startUng
plunge, the narrow shroud of some relative or companion. Let
12

90 LITERARY DISCOURSES.
such speak ; and they will tell you, that there is nothing, which
wrings the heart of the dying, — aye, 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 burylng-place." —
" Tiiere they buried Abraham, and Sarah his wife ; there they
burled Isaac, and Rebecca his wife; and there I buried Leah."
Such are the natural expressions of human feeling, as they fall
from the Ups of the dying. Such are the reminiscences, that
for ever 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 reasonlnff.
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 should contem
plate 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 Uving mourner — to the parent, weeping over his
dear dead chdd — 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 destmation. 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 fra-
rnents of memory, and weave, as it were, into our very Jiearts, 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

ADDRESS AT THE CONSECRATION OP MOUNT AUBURN. 91
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 worid,
and we feel ourselves purer, and better, and wiser, for this com
munion 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 civiUzed — to the bond and the free — to
the inhabitant of the dreary forests of the north, and the sultry
regions of the south — to the worshipper of the sun, and the wor
shipper 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. Every where we trace them, in the characteristic re
mains of the most distant ages and nations, and as far back as
human history carries its traditionary oudlnes. They ¦ are found
in the barrows, and cairns, and mounds of olden times, reared by
the uninstructed affection of savage tribes ; and every where 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 embalming
them in their vast catacombs, or enclosing 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
theni, 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 adorning the habitations of the dead. They discouraged inter
ments within the limits of their cities ; and consigned their relics
to shady groves, in the neighbourhood 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,

92 LITERARY DISCOURSES.
Cemeteries,* or " Places of Repose." The Romans, faithflu
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, Trav
eller, — 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 !" f
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, whde the cities of the living are sub
ject 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 demon
strate, 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 ?
Why do we not make it a more 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 appals our thouo-hts ?

*«/.«T«V» — literally, places of sleep. t "Sit tibi terra levis."

ADDRESS AT THE CONSECRATION OF MOUNT AUBURN. 93
To many, nay, to most of the heathen, the burylng-place was
the end of aU 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 start
ling 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 thoughful ; and yet, at the same time, af
ford 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 Ufe's journey meet," for a single night of repose ?
" 'T is 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,
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 ave
nues to these repositories ? Why should we deposit the remains of
our friends in loathsome vaults, or beneath the gloomy crypts and
ceUs 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 supernumerary horror " on the passing
procession ? Why should we measure out a narrow portion of earth
for our grave-yards, in the midst of our cities ; and heap the dead
upon each other, with a cold, calculating parsimony, disturbing their

94 LITERARY DISCOURSES.
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 sootlied 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 con
fines 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 waUed
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 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, lightly 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 re
fuse to listen, and which all that live must hear. Trutlis may be
there felt and taught, in the silence of oiir own meditations, more
persuasive, and more enduring, than ever flowed from human lips.
The grave hath a voice of eloquence, ay, of superhuman elo
quence, which speaks at once to the thoughtlessness of the rash,
and the devotion of the good ; which addresses all times, and aU
ages, and all sexes ; which tells of wisdom to the wise, and of com
fort 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 iUustrious 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 pow-

ADDRESS AT THE CONSECRATION OF MOUNT AUBURN. 95
ers given by God should be devoted to his service, and the minds
created by his love, should return to hlin with larger capacities for
virtuous enjoyment, and with more spiritual and Intellectual brii'ht-
ness. 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 des
tiny and duty. We know, that man is the creature of associations
and excitements. Experience may Instruct, but habit, and appe
tite, and passion, and imagination, will exercise a strong dominion
over him. These are the Fates, which weave the thread of his
character, and unravel the mysteries of his conduct. The truth,
which strikes home, must not only have the approbation of his rea
son, 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 MUtiades
would not suffer him to sleep. The feeling, thus expressed, has a
deep foundation In the human mind ; and, as it is v/ell or ill di
rected, it will cover us with shame, or exalt us to glory. The
deeds of the great attract but a cold and listiess 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
Buckmlnster, 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 tUe traveller would linger on the spot with a feel
ing 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

96 LITERARY DISCOURSES.
of grief? that they might there realize, in its full force, the af
fecting beatitude of the Scriptures ; " Blessed are they that mourn,
for they shall be comforted " ?
Surely, surely, we have not done aU our duty, if there yet re
mains 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 inter
ments 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 Umits,
but admonishes us of the increasing dangers to the ashes of the
dead from its disturbing movements. Already, in other cities, the
church-yards 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 hut
exercising a decent anxiety to secure an inviolable home for our
selves 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 vaUey ; the deep
glen ; the grassy glade ; and the sUent 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 transi
tory bloom ; and the evergeen, with its perennial shoots, instructing

ADDRESS AT THE CONSECRATION OF MOUNT AUBURN. 97
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 wilderness,
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. Be
low 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 venera
ble 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 nourislied the Uterature 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, dierefore, within our reach, every variety of natural
and artificial scenery, which is fitted to awaken emotions 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 Common-
13

98 LITERARY DISCOURSES.
wealth, 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 embeUish 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 ser
vices, it is to be deemed, henceforth and for ever, so dedicated.
Mount Auburn, in the noblest sense, belongs no longer to the liv
ing, but to the dead. It is a sacred, it is an eternal trust. It is
consecrated ground. May it remain for ever inviolate !
What a multitude of thoughts crowd upon the mind, in the con
templation 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 loveUness of infancy, the beauty of youth, the vigor
of manhood, and the maturity of age, wUI lie down here, and dwell
in the bosom of their mother earth ! The ri-ch 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 I How
many bitter tears will here be shed ! How many agonizing sighs
will here be heaved ! How many trembling feet wUl cross the
pathways, and, returning, leave behind them the dearest objects of
their reverence or their love !.
And if this were aU, 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 wUl 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 grav^ or the sculptured monument. The
earliest beams of the morm%- wUl play upon these summits with a
refreshing cheerfulness ; and the lingering tints of evenmg hover on
them with a tranquillizing glow. Spring wUl invite hither the foot-

ADDRESS AT THE CONSECRATION OP MOUNT AUBURN. 99
Steps of the young by its opening foliage ; and Autumn detain the
contemplative by its latest bloom. The votary of learnino- and
science wlU here learn to elevate his genius by the holiest studies.
The devout will here offer up the sUent tribute of piety, or the
prayer of grathude. The rivalries of tiie worid wUI here drop
from the heart ; the spirit of forgiveness will gather new Impulses ;
the selfishness of avarice wlU be checked ; the restlessness of am
bition wiU be rebuked ; vanity will let fall its plumes ; and pride,
as it sees " what shadows we are, and what shadows we pursue,"
wiU acknowledge the value of virtue, as far, Immeasurably far, be
yond that of fame.
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 les
sons 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 ImmortaUty ; " 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 quandty.
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
StiU 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 kind
ling hearts will here repeat the sublirSrei declaration, " Blessed are
the dead, that die in the Lord, for they rest from their labors ; and
their works do follow them."

DISCOURSE
PRONOUNCED, APRIL 5, 1833, AT THE OBSEQUIES OF JOHN HOOKER ASH
MUN, Es(j., ROYALL PROFESSOR OF LAW IN HARVARD UNIVERSITY.

The occasion, which has brought us together, is full of melan
choly 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 contin
ually 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 wiU not say, such is human infirmity.
It is, doubtiess, in the wisdom of Providence, that it should be so.
If, with such constantiy recurring scenes of death on every side,
our sympathy should always hover round the mourners ; if we
should partake of all their agonized feelings, and dwell, as they
dwell, on the vanity of all human pursuits, and the desolateness of
aU human hopes ; if we should take counsel, like them, only from
our own dark meditations upan the fraU 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

EULOGY ON PROFESSOR ASHMUN. 101
active duties of life ; that we should be absorbed in one unchanging
reverie ; that our affections would soon be exhausted, or extin
guished ; 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 every where 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, how
ever 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, noise
less, but irresistible, to the ocean of eternity.
Thoughts, like these, if lighdy improved, have a natural ten
dency 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 compas
sionate 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 Chris
tianity has unfolded with such inexpressible glory, — "When this
corruptible shall put on incorruption, and this mortal shall put on
immortality." And the day of our own visitation is arrived. Death has
entered into our Uttle academical circle, and struck down one of its
choicest ornaments and supports. His 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 shaU rest, untU 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

102 LITERARY DISCOURSES.
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 daUy woven anew the
texture of their sorrows, that they might more diligently employ
their nightly vlgUs in separating the threads, arid 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 holler 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 falntiy, some faithful resem
blance of our departed friends. We are thus driven back to trace
out every striking feature of their minds and characters ; to recaU
every fleeting association ; and thus, by placing the Unes in their
due order, to draw out a softened image of every excellence, until,
at length, it seems to breathe with the warmth and freshness of hfe.
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 pecu-
culiarly 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 dovi^n in a settled and appalling gloom.
We can look back upon the Ufe 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 fraUty. Such as he was, we can bear him in our
hearts and on our Ups 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, littie wUl be. found to attract notice, or invite curiosity.
He, who has marked out for himself a course of habitual dUigence

EULOGY ON PROFESSOR ASHMUN. 103
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
Ufe 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 great
ness, or the finger-point of scorn.
Our departed friend, John Hooker Ashmun, was born in Bland-
ford, in Massachusetts, on the third day of July, 1800. His father
was the Honorable EU P. Ashmun, a distinguished lawyer of the
Hampshire bar, who for several years represented that county
in our State Senate, and afterwards represented this Common
wealth in the Senate of the United States. It was my good for
tune 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 iU health, and died about the year 1819. His mother was
the daughter of the Reverend John Hooker, a distinguished cler
gyman of Northampton, from whom he derived bis 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 irre
parable ; 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. Grosvener, who kept a private school at Northampton, with
whom he made such proficiency, that at nine years of age he was
deemed an extraordinary Latin scholar. He was afterwards re
moved to Blandford, and was there fitted for college by the Rev.
Mr. Keep of diat town. At the age of twelve he was deemed
weU qualified to enter upon the usual collegiate studies ; but he
was kept back untU the succeeding year by the prudence of his
father. He was then matriculated, and remained three years
at WUliamstown 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 reUsh for them ; and

104 LITERARY DISCOURSES.
his extreme youth rendered them less attractive and less instructive'
than they would otherwise have been ; so that much of 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 mis
fortune, 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 was then accustomed to practise, he stood in the very first rank
of his profession, without any acknowledged superior. It is well
known, that Judge Howe had established a Law School, at North
ampton, 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 counexlon with that accomplished statesman,
and jurist, the late Mr. Mills, he continued the establishment with
unabated celebrity and success. In fact, from the UI health of Mr.
MUls, the principal instruction in the School devolved almost en
tirely 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 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 appoint
ment. The office was not only unsought on his own part, but.

EULOGY ON PROFESSOR ASHMUN. 105
it was whoUy unexpected. It was a spontaneous movement of the
Corporation itself, acting on its own responsibUity, upon a deliberate
review of his qualifications, and after the most searching inquiry
into the soUdity of his reputation. The choice was fully justified
by the event. The honors of the University were never more
worthUy 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 profes
sional armor on him. Scarcely a fortnight is now elapsed, since
his voice was heard in the forum, mastering a case of no inconsid
erable 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 juridical instructions.
I need hardly say, in tills place, with what distinguished abUity
he filled the professor's chair. His method of instruction was
searching and exact. It disciplined, whUe it avirakened 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 occuiTed,
which he was not ready to answer, he had no reserves and no con
cealments. With the modesty, as well as the tranquU 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, and
there cannot be, a higher tribute to his memory than this, that,
whUe his scrutiny was severely close, he was most cordially beloved
by aU 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 sUent 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 simUar occasion,
that it pleased the Almighty " to make his shortened span one long
14

106 LITERARY DISCOURSES.
disease."* No man could have resisted it with a more firm yet
gentie 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 consti
tutional infirmity, he seemed constantly encouraged by the con
sciousness, 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 conceal
ment 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 in
convenience 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 pro
cess, to an Immediate catastrophe. Yet in every vicissitude the
same imperturbable resolution and the same unrepinmg calmness
marked his conduct. His intellectual energy seemed rather height
ened; than impaired, by the gradual diminution of his physical
strength. Its activity seemed to furnish a salutary stimulus, if it did
not administer a necessary aUment to his existence. I have some
times 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 Uve many
weeks, or, at most, many months ; yet the actual occurrence his
death was a calamity so sudden and startiing, that all his friends
were awakened, as it were, from a dreadful dream. He was him
self without the slightest suspicion of the impending event. He
sought repose at the usual hour on Sunday evening, bemg 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 gentie, chUd-llke 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 \vhisper in our ears the affecting aspiration of the Psalmist,

The Right Honorable George Canning's Epitaph on his eldest son.

EULOGY ON PROFESSOR ASHMUN. 107
" Oh ! that I had wings like a dove ; for then would I flee away,
and be at rest." *
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 iu 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 outUnes, and so well fitted to sustain an enduring fame.
My own acquaintance with him commenced only with his resi
dence in Cambridge. But ever since that period I have counted
it among my chief pleasures to cultivate his friendship, 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 feUowship,
and with a union of opinion, which nothing but the strongest mutual
attachment could have successfuUy cherished. I can, therefore,
with all sincerity of heart, join the general voice of his afflicted rela
tives and friends, in bearing testimony to his rare endowments and
exalted merits.
In the private and domestic circle he was greatiy 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 feel
ings he possessed an enlightened benevolence, and a warm sen
sibility ; and was gratified by an opportunity to advance those, who
were within the sphere of his influence. He was a man of the
most inflexible honor and integrity, a devout lover of truth, consci
entiously scrupulous in the discharge of his duties, and constantly
elevatino; 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
t Mr. Ashmun died on Monday morning, the first day of April, 1833.

108 LITERARY DISCOURSES.
withhold it. He habituaUy 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 UI health, he was of late years compeUed to abstain
a good deal from its public solemnities. In his opinions he was
unequlvocaUy a Unitarian, without the slightest propensity to
proselytism or bigotry. His great aim was to be good, and not
merely to seem so. He had a profound feeling of his responsible
ness 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 buUt upon transitory emo
tions ; 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 weU
as on account of his thoughtful aspect, he was often supposed, on
the first approaches, to be cold or indifferent, having littie 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 deli
cate humor, or more famlUar in easy conversation. His abstinence
from general society was partiy from choice, and partly from duty.
Besides iU 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 inteUectual advancement, in widening
and deepening the foundations of his constantiy accumulating
knowledge. Though he read much, he thought stUl 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 hon
ored, 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 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.

EULOGY ON PROFESSOR ASHMUN. 109
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 Us 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 him
self 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 profes
sion, 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 profes
sional 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 imagi
nation, the scintUlations 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 the 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 faded. His conscien
tious earnestness commanded confidence, and his powerfid expos
tulations 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

110 LITERARY DISCOURSES.
received from them more unsolicited approbation. If, to the cir
cumstances, already aUuded to, we add his ill health and deafness,
his professional success seems truly marveUous. 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 charac
teristic features of his mind, I should say they were sagacity, per
spicacity, and strength. His mind was rather soUd 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 concen
trating 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. 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 disci
plined for its dally purposes. He possessed, in a remarkable degree,
the faculty of analyzing u complicated case into its elements, and
of throwing out at once all its accidental and unimportant ingre
dients. He easily separated the gold, from the dross, and refined
and polished the former with an exquisite skUl. He rarely ampli
fied by illustrations ; but poured at once on the points of his cause
a steady and luminous stream of argument. In short, the prevail
ing character of his mind was judgment, arranging aU its materials
in a lucid order, moulding them with a masteriy 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 connexion 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 lament
ing his death, as a public calamity ?

EULOGY ON PROFESSOR ASHMUN. Ill
I must close these hasty sketches, thrown together in the midts
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 caUed upon, at some future time,
to perform a kindred office for one, who had cherished his friend
ship, 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 sublime con
templations. 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 pos
terity ; but his virtues could not have been more mature, or more
endeared. They are now beyond the reach of accident, or ques
tion. 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. WeU may we exclaim : " How beautiful is
death, when earned by virtue ! "

DISCOURSE
DELIVERED BEFORE TIIE 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 discus
sions have been presented to the public, with a view to iUustrate
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 impor
tance. It is not the sum of our attainments, but the actual augmen
tation of human happiness and human virtue thereby, of which
we may justiy be proud. If every new acquisition operates, as a
moving spirit upon the stUl 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, vyho 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 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 utUity can be traced direcdy home to
some immediate benefit, in visible operation, as an effect from a
cause. Far otherwise. There are many employments, whose

DISCOURSE BEFORE THE MECHANICS' INSTITUTE. 113
chief object seems Uttie 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 utUlty, which yet, like the thousand hidden springs,
which form the sources and streams of rivers, pour in their contribu
tions to augment the constantiy increasing current of public wealth
and happiness. We must not, therefore, when we examine an
art, or an invention, a book, or a buUding, 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 struc
ture 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
StiU 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
inutUlty is so clearly made out, that they may be parted with with
out 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, wUl be found, on a
larger survey, to be connected with the most important interests.
The fine arts, for instance, painting, music, poetry, sculpture, archi
tecture, seem almost the necessary accompaniments of a state of
high civUization. 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 care
less, 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 com
pensation 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 sculp
tured life ! before it meets us in the surpassing beauty of a Venus,
15

114 LITERARY DISCOURSES.
or the startling Indignation of an ApoUo ? Our granite would have
slumbered for ever 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 dally operations of the press ! With how many arts, with
how much commerce, with what various manufactures, is it com
bined 1 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 dUigence of many minds.
And yet, if no books were to be printed, if no newspaper or pamph
let 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 fields, or turn our miUs, or saU our ships ;
I fear, that the race of authors would soon become extinct; and
the press, 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
skUl and ingenuity, would be powerless, and no longer in its magical
works delight us, in our morning search, or in our evening lucubra
tions. 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 caUed 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 specu
lative science. Into whatever department of knowledge we may
search, we shaU 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 phdosophers; and endless were the controversies
and the subtleties, about which they distracted themselves and
their followers. The works of Aristotle, one of the greatest gen-

DISCOURSE BEFORE THE MECHANICS* INSTITUTE. 115
iuses of all antiquity, were studied with a diligence, which will hardly
be beUeved 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 worid, or in his dis
sertations on politics, and government, and literature ; but in his
metaphysics, and endless inquiries into mind, and spirit, and essen
ces, and forms, and categories, and syUogisms.
Lord Bacon, two centuries ago, in some most profound 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 subdu'ed 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 untU the close of the seven
teenth 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 compara
tively slight attention at 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

116 LITERARY DISCOURSES.
without notice, until about the year 1698, when Capt. Savary, a
man of singular ingenuity, constructed an apparatus, for which he
obtained a 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.
StiU, however, the engine was comparatively of littie use, until
Mr. Watt, a half century afterwards, effected the grand improve
ment 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 tliy arm, unconquered steam, afar
Drag the slow barge, or dri\'c 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 kerchiels, as they move.
Or warrior bands alarm the gaping crowd.
And armies shrink beneath Uie 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
budding my first steam-boat 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
setded cast of increduUty on their countenances. I felt the fuU
force of the lamentation of the poet,
" Truths would you teach, or save a sinking land .'
All fear, none aid you, and few understand."
As I had occasion to pass daily to and from the building-j^ard, while
my boat was in progress, I have often loitered unknown near the
idle groups of strangers, gathering in littie circles, and heard various
inquiries as to the object of this new vehicle. The language was

DISCOURSE BEFORE THE MECHANICS' INSTITUTE. 117
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 duU, 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
poUteness, veUing its doubts, or hiding its reproaches. At lentrth
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 wUness 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, fear
ing 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 UI made ;
many parts of it were constructed by mechanics unaccustomed to
such work; and unexpected difficulties might reasonably be pre
sumed to present 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 sUent, 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
sUence of the preceding moment now succeeded murmurs of dis
content, and agitations, aud whispers, and shrugs. I could hear
distincdy repeated, "I 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 knew not
what was the matter ; but if they would be quiet, and indulge me
for a half hour, I would either go on, or abandon the voyage for
that time. This short respite was conceded v^dthout 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
wUlino- to trust the evidence of their own senses. We left the
O
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 aU
seemed achieved, I was the victim of disappointment. Imagination
superseded the influence of fact. It was then doubted, if it could

118 LITERARY DISCOURSES.
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 fuU
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 littie satisfied with the results, and
looked forward to far more extensive operations. My ultimate
triumph, he used to say, my ultimate triumph wUl be on the Missis
sippi. 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 Uve to see it; but the
Mississippi wUl yet be covered by steam-boats ; 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 steam-boat, 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 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 steam-boat, a slight iUustration 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 prac
tical 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 unportance of facts over
mere speculative philosophy. It was formerly an occult science,
fuU of mysteries and unedifying processes, abounding in theories,
and scarcely reducible to any rational principles. It is now in the
highest sense entitied 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
phUosophy. It has become eminendy a practical science ; and its

DISCOURSE BEFORE THE MECHANICS' INSTITUTE. 119
beneficial effects are felt in almost every department of life. The
apothecary's shop no longer abounds with vlUanous compounds and
nostrums, the disgrace of the art. Chemistry has largely admin
istered to the convenience, as well as the efficacy, of medicines, by
ascertaining their quaUtles and component parts, by reipoving
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 beau
tiful 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 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 substan
ces 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 ignes fatui, 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 crowino-
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 phUosophy. The identity of the electric fluid
and Ughtning 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 pursuit 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

120 LITERARY DISCOURSES.
scanty texts, both in law and divinity. The study of pure and
mixed mathematics succeeded; and astronomy, as it deserved,
absorbed aU the attention and genius, which were not devoted to
literature. But scholars of aU 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 the arts was
so natural and immediate, that littie influence would be necessary
to bring about their union. But the laboratory and the workshop,
the study of the geometrician 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 work-shop, and
superintend its operations, and analyze and explain its principles.
And the benefits derived from this connexion 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 mathe
matician, and the philosopher, and find no churlish claim for prece
dency 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 me
chanical 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, which have been already
stimulated to the pursuit of practical science by their successful

DISCOURSE BEFORE THE MECHANICS' INSTITUTE. 121
example. Whichever way we turn, we may see minds of the first
class diverted from the estabUshed 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 sup
plied, 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 die 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 constantiy in demand, and econ
omy 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 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 em
ployed, 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, iUustrative of these remarks,
occurred in the course of my own official duties, in a suit for the
16

122 LITERARY DISCOURSES.
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 inven
tion was established by the most satisfactory evidence. The
defendant, however, caUed 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 im
proved 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 odier 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 achieve
ment. 1 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 guaranty to the individual a successful issue in his business.
Science is becoming almost indispensable, in order to master im
provements, as they occur, and to keep up, in some measure, with
the skUl of the age. It wiU otherwise happen, that a mechanic,
by the time he has arrived midway in life, wiU find himself super
seded 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 famihar 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 syste
matically for such an object, untU 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

DISCOURSE BEFORE THE MECHANICS' INSTITUTE. 123
he, who merely theorizes, without any knowledge of practical diffi
culties, 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. UntU the
nineteenth century, no one thought of a system of scientific instruc
tion, 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 unknown
in that city, which boasts herself the modern Athens ; and, seven
years ago, all the influence and reputation of Dr. Blrkbeck were
requisite to introduce them into the reluctant circles of London.
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 soci
ety, 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 consid
erations by way of encouragement to those, vs^ho, 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 discour
agements and difficulties, and, like the power of steam, acquire new
elasticity by pressure ; which ripen in the silence of solitude, as
weU 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 phe
nomena — a fixed and languishing disease of the intellectual powers,
where curiosity wastes itself in trifles, and a cold listiessness, brood-

124 LITERARY DISCOURSES.
ing over the thoughts, lets faU 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 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 Une, and enables him unerrmgly 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 constantiy 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 ami of gunnery,
and the operations of the steam-engine ; — he cannot but awaken to
some emotions of admiration. But when he has been tauo^ht, 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
ccmsideration, that the mind of man has not only been able to grasp
and demonstrate dais law, but to apply it to the solution of an bfinite

DISCOURSE BEFORE THE MECHANICS' INSTITUTE. 125
number of questions, apparentiy 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
viUage. 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 wiU enable us every where to behold new and
increasing wonders, and to remark the operations of infinite power,
for ever varied, and yet for ever 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 theU 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 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 pros
perity 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 wiU form the great balancing power,
between the conflicting interests of commerce and agriculture ;
between the learned professions and the mere proprietors of capi-

126 LITERARY DISCOURSES.
tal ; between the day laborer and the unoccupied man of ease. In
proportion to the degree of the know^ledge, which shall belong to
this collective interest, in proportion as its Industry shaU be com
bined 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 pas
sions 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 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, wUl 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 obsta-

DISCOURSE BEFORE THE MECHANICS' INSTITUTE. 127
cles, that constitutes its true value, and perhaps its noblest excel
lence. Even after tiie 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 alterations 1 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 loga
rithms 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 hira 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 steam-boat, months were consumed by him,
as I learned from his 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 ray 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 unsightiy, and cum
brous 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 naU 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 know
ledge 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, W'hether 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'

128 LITERARY DISCOURSES.
examination of the patent office at Washington, and his own sur
veys elsewhere, appeared to him the most Interesting of American
inventions, unhesitatingly answered, Whlttemore's card machine.
The remark was made by Perkins ; and periiaps no person, but
hiinseif, would have thought, that his own nail machine, which with
its toggle-joint consumes bars of iron, and returns them in nails, with
the tranquU 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 inven
tions of our age. I have already adverted to the perfection of the
steam-engine by Watt. The cotton-machine of Arkwright consti
tutes 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 inven
tions 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 diplo
matists, 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 con
sumes, in her manufactories, more than one fifth part of the eight
hundred and fifty thousand bales of cotton, the annual produce of
their soU ; 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^nventlons, — 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 1 He has enabled us, as
it were, to stereotype, and multiply, to an almost incalculable 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 Ulustrious instances of genius, successfuUy

DISCOURSE BEFORE THE MECHANICS' INSTITUTE. 129
applied to the improvement of the arts, might be selected from the
workshops and common trades of Ufe. But in most of these instances
it wiU be found, that the discovery was not the mere result of acci
dent, 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 geom
etry, that the circumferences of circles are in proportion to their
diameters, lies at the foundation of most of the operations of prac
tical 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 Ulustrations 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 mem
ory 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 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 gal
vanic battery, to which we are indebted for so many discoveries in
chemistry, owes its origin to an apparentiy 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
aborious experiments, he \vas at length conducted to the discovery
17

130 LITERARY DISCOURSES.
of animal electricity. The polarization of light, as it is caUed, —
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 philos
opher. Mains, 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 for ever gathering, with
out 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 discoveries 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 inex
haustible ; that science, while it is the master of art, is itself ulti
mately dependent upon U ; that the inteUectual power grows up in
all stations, and in aU soils ; that, aU 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'

DISCOURSE BEFORE THE MECHANICS' INSTITUTE. 131
become instructed in science, the inventions of this class wUl be
more numerous, more useful, more profitable, and more ingenious,
than those of any other class, and even perhaps of aU 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 despon
dency ! 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 he educated for,
but to 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 stiU 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 fuU 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 charac
ter 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

133 LITERARY DISCOURSES.
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 regulat
ing trades, and 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 inteUectual 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 worid, by the demonstration of the truth,
that free governments are as weU 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 over
come 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 toU 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 in
crease 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 skilly or invent new improvements. It seems to me
utteriy beyond the reach of human imagination to embody the re-
suhs, to which such a constant discipline of the intellect, strengthened
by the daUy experience of the 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 in
tense light.
Gentiemen, I will detain you no longer. The remarks, which
I have addressed to you, have been unavoidably of a loose and

DISCOURSE BEFORE THE MECHANICS' INSTITUTE. 133
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 modem 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 sub
ject, 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 aU,
from those, which form the sparkling diamond in the mine, or pre
pare 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 endea
vour to learn what we ourselves are, and consider 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."

DISCOURSE

INTRODUCTORY TO A COURSE OF LECTURES BEFORE THE FAMILIES OF THE
PROFESSORS IN HARVARD COLLEGE, DELIVERED IN HOLDEN CHAPEL, DE
CEMBER 23, 1830.

. 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 would address him
self 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 rehance
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 elo
quence (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, wdthout being just ; or just,
without being striking ; so as to lead to the bitter sarcasm, that
his discourse contains many things 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 die cause of science ; who, I

DISCOURSE IN HOLDEN CHAPEL. 135
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 pecuUarities of
opinion and comment ; that antiquity had exhausted them in its
captivating literature, never yet exceUed, 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 noth
ing, but the results of deep and various study. He would seek to
fill his mind with the thoughts of others, and elevate his own con
ceptions 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 endeavour to comprehend the large
conceptions of Lord Bacon, and, by following the method of induc
tion, pointed out by his wonderful mind, he would Invite nature to
disclose her mysteries, and aid him in the analysis of her inexhaust
ible 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 demon
strate that time, as well as dUigence, and 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, 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 por
tion of science or Uterature, 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
famUlar to the wise, that they come almost vyithout 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

136 LITERARY DISCOURSES.
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 am
bition would soar to the boundaries of literature, there are some
local considerations, which render this not undesirable or unim
portant in the circle of our famUies 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 weU as of the
dead, looks down upon us with Us ponderous and speaking volumes.
A phUosophical apparatus, which at once lifts our thoughts to the
heavens, and busies us with the motions and the changes, the pow
ers 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 attractive specimens.
We seem as if within the very purlieus of the laboratory, where
chemistry, no longer dealing with occult arts and preternatural sor
ceries, contents herself with solving and resolving bodies, with com
bining 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 beU, which
so often rouses us in our morning slumbers, seems for ever vocal
with annunciations, inviting our presence to the rooms, where learned
professors pour forth their stores upon the interesting topics of di
vinity, and physics, and metaphysics, and rhetoric, and oratory, and
botany, and anatomy, and the phUosophy of nature, and the myste
ries of art. And yet, in the midst of aU 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, forbid them
from entering upon these scenes ; they are compeUed to forego all
that curiosity and taste would covet, to nourish their home resour
ces ; 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.

DISCOURSE IN HOLDEN CHAPEL. 137
The evU 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 famUles. 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 famUies and
friends, who are necessarUy precluded from the general cultivation
of science, some chance of understanding its elements, and relishing
its truths, 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 perma
nent 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 pro
cesses 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 culti
vation. I do not address myself to the pride of scholars, as such ;
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 oudine, the praises of knowl
edge, as they have been vindicated in ancient or in modem times.
There are some places and some circumstances, in which such
topics, if not matters of impertinent detail, are, at least, matters of
supererogation. Tlie genius of the place, the literary atmosphere,
which we breathe, the very habits of our lives presuppose, that learn
ing, 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
18

138 LITERARy DISCOURSES.
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 midnight hours of adversity,
or in°the heavier darkness, whose shadows brood over the valley of
death. If I were caUed upon, indeed, to intermingle in the argu
ment of such topics, I might weU distrust my own resources, and I
should repose myself upon the sententious wisdom of the greatest
of modern phdosophers. " Studies," says my Lord Bacon,
"serve for deUght, for ornament, and for ability. Their chief use
for delight is in privateness and retiring ; for ornament, is in dis
course ; and for abUlty, is in the judgment and disposition of business.
— ^Histories make men wise ; poets, witty ; the mathematics, subtile ;
natural philosophy, deep ; morals, grave ; logic and rhetoric, able
to contend. 'Aheunt studia in mores.' " To which he might have
added, jurisprudence enlarges, invigorates, and chastens the judg
ment ; and theology fills the soul with thoughts of time and eter
nity, 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 faU to remark,
that the subdivision of intellectual, as well as of manual labor,
though it tends greatiy 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 ; untU, 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 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 Ufe. But it especially besets him in those acadeni-

DISCOURSE IN HOLDEN CHAPEL. 139
ical 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 perpet
ually compeUed 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 mere by speculative, nature, but is often
attended with practical mischiefs. The mere scholar, intent upon
the glorious products of classical literature, dweUs with a fond and
overweening delight upon the wisdom, and the beauty, and the sub
limity of the ancients, untU modern learning seems to him but the
pastework of imitative jewelry, compared with the pure sparkling of
the diamond, or the peUucid crystaUizations 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 con
trivances to him, and to answer his untiring interrogatories, delights
in the consciousness of this exercise of power, and looks with
amazement on hira, 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 exer
cise his ingenuity in searching out the laws of gravitation, and in
subjecting the motions 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 instm-
ments 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

140 LITERARY DISCOURSES.
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 en-
couragepaent 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 neighbourhood of each
other. They furnish literature with some of its most engaging ima
gery, 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 comraon stream of knowledge, so as to widen the
common means of social Intercourse and social happiness. What
ever be the science, it becomes cold and cheerless, when it casts
around a sepulchral light, in its own soUtary 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 brilUant 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." * Without yielding to the truth of this unquali
fied 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

Quarterly Review, October, 18-30, p. 327.

DISCOURSE IN HOLDEN CHAPEL. 141
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 odier 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 Uve in
an age fuU of intellectual excitement. It is not with us, as it was
in former times, when science belonged to solitary studies, or phUo
sophical 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 byways of Ufe. 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
seems 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 gas
lights 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 raUroad, in the flying steamboat,
and in the gay and gaUant 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 applica
tions 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

142 LITERARY DISCOURSES.
meeting the topic, we are obliged to redeem our credit by syUabling
out the first outiines of science.
And yet, with the busy employments and crowded interests 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 Ufe is at its close,
the student seems but just arrived on the threshold of learning.
He has done littie more than to climb up a hillock, and look to
the far distant vaUey, beyond which lie the mountains he would
ascend, that he may survey a wider scene, and inhale a purer at
mosphere. We seem, therefore, to be surrounded on every side
by difficulties. We must learn what belongs to ourov^n vocation, in
order to attain the comforts and the honors of Ufe. We 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 sci
ences, 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 vidiich we are compelled to wan
der, 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 wis
dom, 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
recently said, in the bitterness of sarcasm, that, " in this age of ex
tended and diluted knowledge, popular science has become the
staple of an extensive trade, in which chariatans are the principal
dealers."* If this be true, in any, however qualified, sense, it only

Quarterly Review, Oct. 1830. p 326.

DISCOURSE IN HOLDEN CHAPEL. 143
proves the intrinsic value of the genuine commodity ; and the in
satiable thirst for knowledge, which is abroad in the whole commu
nity. It is a fact honorable to the spirit of the age, and brino-s
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 under
stand aU 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 com
pass 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 aU 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
traveUed round the farthest limits of human knowledge.
A just estimate of human life and human wants wUI 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 Uttle variety of indul
gence. We must content ourselves with getting knowledge by
snatches ; with gathering it up in fragments ; with seizing on prin
ciples and results. We must welcome every mode, which abridges
labor, and supersedes personal search. We must take the 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 resour
ces. 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 tiuth, literature is so abundant in its products of aU
sorts, whether for instruction, or pleasure, or ornament ; whether
to gratify the taste, or improve the morals, or enlarge the understand
ing ; whether for the purpose of civil duties, or political education, or

144 LITERARY DISCOURSES.
intellectual discipline ; that the task of selection is of itself not unat
tended with difficulties, and requires talents of no ordinaiy character.
The literature of a single language, ancient or modern, is perhaps
beyond the grasp of any single mind ; but the literature of all lan
guages, 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, is to follow Lord Ba
con'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 deUghtful contem
plation 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 toUs, their disappoint
ments, and their sufferings. We learn the slow and tedious steps, by
which eminence has been acquired. We see the resuk of patient
investigation and cautious sagacity. We trace the progress of dis
covery and invention, from the first clumsy process, or the first
accidental guess, to the last glorious result. We see how the
sllohtest incident leads gradually on to the most sublime truths;
how facts, apparentiy the most remote, converge to the same
ultimate point; how human ingenuity conquers obstacles appa
rently 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 re
sources in experiments, which seem ever on the point of success,
and yet mock his toll and delude his hopes. At length the dis
covery comes. But does it always reward his toU ? No — it but
too often happens, that it is received by the public with a cold,
reluctant mdifference ; or is put in operation, to his ruin, by some
more thrifty competitor. Soraetlmes, indeed, as in the case of
Gahleo, It subjects him to a prison ; sometimes it sends him, like
DoUand, to his grave, "unwept, unhonored, and unsung"; some
times It leaves him, like Fulton, to witness fortunes reared by
others upon his labors, and yet, to find himself destined to faU a
sacrifice to the vindication of his right to his own discovery. These
are some of the misfortunes, which affect us with Uvely 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

DISCOURSE IN HOLDEN CHAPEL. 145
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 won
derful workings of genius, in its own silent studies and its 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, descend
ing 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 its subtile analysis to the decomposition of bodies,
untU at last we seem in the very presence of the monads, whose mi
raculous vitality startles us into terror of our own delicate structure.
It is in the contemplation of such minds, and such discoveries,
that we lose all grovelling thoughts and vulgar passions. We rise
into a higher moral grandeur of desire. We relish holler views of
our destiny. We see, that these are but the first fruUs, or rather
buds, of immortaUty. We enjoy^the consciousness, that they are
but emanations from that Alrtiighty 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 de
votion, 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, iu the power of the unsleeping
ocean, or the rushing cataract, or the terrific earthquake, or the
blazing volcano, than in the sUent forms of crystallization, the infi
nite 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
dwellingplaces of man. Who would imagine, if he were not told,
that the very law, which retains the planets in their spheres, en
ables the fly, by means of the pressure of the atmosphere, to walk
securely on the ceUlng over our heads, by an artificial vacuum
instinctively made by its feet ? that the very oxygen, which Ughts
up and sustains the ignition of matter, is the same admirable prin
ciple, which carries on the circulations of our own blood, and keeps
19

146 LITERARY DISCOURSES.
up, in scarcely a figurative sense, the steady flame of life ? The
truth is, that, 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 tiiousands 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 mu
tual ties and dependencies of things, such the laws of action and
reaction, of attractive support and repulsive effort, that not a single
atom could be struck out of existence, without involvmg the de
struction 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 rela
tions to the first Almighty Cause, they would not be without their
reward. They would awaken a liveUer gratitude, and more cheer
ful 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 thall break upon our souls with un
clouded glory and majesty.

LECTURE

ON THE SCIENCE OF GOVERNMENT; DELIVERED BEFORE THE AMERICAN
INSTITUTE OF INSTRUCTION, AUGUST, 1834.

The objects of the American Institute of Instruction are, as I
understand them, in a great measure, if not altogether, of a practi
cal 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, there
fore, proceed at once to the task, which has been assigned to me
on the present occasion, and endeavour to bring before you such
views as have occurred to me, touching " The Science of Govern
ment, 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 suffi
cient general importance and utility, to be taught, as a branch of
popular education ? In the next place, if it be of such importance
and UtUity, 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 phi
losophy bears upon the general concerns of human life.
First, then, as to the Importance and utUity of the scienrfe 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

148 LITERARY DISCOURSES.
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 assevera
tions. 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. The science of government,
therefore, involves the consideration of the true ends of government,
and' the means, by which those ends can be best achieved or pro
moted. And in this view it ma.y 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 littie 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. Aristotie and Cicero,
the great masters of antiquity in political philosophy, exhausted
their own 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 littie 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
Move, 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

LECTURE ON THE SCIENCE OF GOVERNMENT. 149
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 ao-e 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, cli
mates, employments, characters, passions, and even prejudices and
propensities, of different nations, present almost insurmountable ob
stacles to any uniform system, independently of the large grounds of
diversity, from their relative inteUigence, relative local position, and
relative moral advancement. Any attempt, to force upon aU nations
the same modifications and forms of government, would be founded
in just as little wisdom and sound policy, as to force upon all per
sons the same food, and the same pursuits; to compel the Green-
landers to cultivate vineyards, the Asiatics to fish in the Arctic seas,
or the polished inhabUants of the south of Europe to clothe them
selves in bearskins, and live upon Iceland moss and vphale oU.
Government, therefore, in a just sense, is, if one may so say,
the scieiice of adaptations — variable in its elements, dependent
upon circumstances, and incapable of a rigid mathematical demon
stration. The question, then. What form of government is best ?
can never be satisfactorily answered, untU 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,
inteUectual, 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 for ever 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 mili
tary 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 comprehen
sive, that it must task the greatest minds and the most mature
experience.

;¦

150 LITERARY DISCOURSES.
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 ;
Whate'er is best administered, is best."
As if every thing were to be left to the arbitrary wiU 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, 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 aU improve
ments, with all the persuasive eloquence of poetry.
" In every govei-nment, 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 littie 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 UI 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

LECTURE ON THE SCIENCE OF GOVERNMENT. 151
overwhelming, as any inflicted by the desolating march of a con
queror, or the sudden devastations of a flood.
But an error of an opposite character, and quite as mischievous
in its tendency, is, the common notion, that government is a matter
of great simplicity ; that its principles are so clear, that they are
Uttle liable to mistake ; that the fabric can be erected by persons of
ordinary skUl ; 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 en
thusiasm., which ingenuous minds are apt to indulge in regard , to
human perfectibUity. 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 wUl
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 foUowed, 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 Ameri
cans, with reference to their own political institutions. And I do
not hesitate to affirm, not only that a knowledge of the true prin
ciples 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 govern
ments ? 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 ma
licious calumny ; if he may not speak his own opinions with a

152 LITERARY DISCOURSES.
manly frankness ; if he may be imprisoned without just cause, and
deprived of aU 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 weahh, 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 castie, and his
chUdren are not yet reduced to beggary. If his public Uberties, 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 con
science, his equality with all others, who are his fellow-citizens ;
if these are at the mercy of the neighbouring 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 oth
ers. 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 be
yond 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 responsibUity 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 consid
erate 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 vvealth, 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 ol

LECTURE ON THE SCIENCE OF GOVERNMENT. 153
evaded. They must be met, and deliberately weighed. They press
upon the minds of thousands, who are most Interested in our des
tiny, 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 the 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 com
plicated frame of republican government, which was ever offered
to the world. We have endeavoured to reconcile the apparent
anomaly of distinct sovereignties, each independent of the other in
its own operations, and yet each in fuH action within the same
territory. The national government, within the scope of its dele
gated powers, is, beyond all doubt, supreme and uncontrollable ; and
the state governments are equally so, within the scope of their ex
clusive 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 at
tempting to define and limit thera. If any coUlslon shall happen,
it can scarcely be at a single point only. It will touch, or it will
trench, upon jealousies, interests, prejudices, and political arrange
ments, infinitely ramified throughout the whole extent of the Union.
The adjustments, therefore, to be made from time to time, to avoid
such coUlsions, and to carry on the general system of movements,
require a degree of forecast, caution, skiU, 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 singu
larly brief and expressive. But that very brevity becomes of itself
a source of obscurity ; and that very expressiveness, whUe it gives
prominence to the leading objects, leaves an ample space of de
batable ground, upon which the champions of all opinions may con
tend, 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 unwUllng to admit any thing to be settled ;
20

154 LITERARY DISCOURSES.
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, his
torical research, and political sagacity are required for such critical
inquiries ! Party leaders may, indeed, despatch the matter in a
few short and pointed sentences, 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
statesmen wUl approach it with a reverent regard. They wiU,
meditate upon consequences with a slow and hesitating assent.
They will weigh weU 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 councUs, 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 coun
try ; the varieties of its climates, productions^nd 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 tobadco 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. Every where 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

LECTURE ON THE SCIENCE OF GOVERNMENT. 155
speed on the weary coasts and broad 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. 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 West ; on the broad and rest
less 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 exten
sive 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 pa
tient, thorough, and laborious research into the true principles, and
policy, and objects of government.
But it is not to rulers and.^^tesmen 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 con
stitution of its government, requires, on tSe part of the people, more
vigilance and constant exertion than- all others. The Aijierican
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 inteUigence and
virtue of the people themsehes. It is founded on the basis, that
the people have wisdom enough to frame their own system of gov-|
ernment, and public spirit enough to preserve it ; that they cannot!
be cheated out of their liberties ; and that they will not submit tol
have them taken from them by force. We have sUently 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,

156 LITERARY DISCOURSES.

by the intrigues of faction, or the arts of ambition, to adopt any
measures, which shall subvert them. If this confidence in our
selves be justified, (and who among Americans does not feel a just
pride in endeavouring 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
faUen 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 steaUng 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, wUh a melancholy eloquence, the republic is
assailed with far more force and contrivances, than it is defended,
because bold and profligate men are impeUed by a nod, and move
of their own accord against it. But I know not how it happens,
the good are always more tardy. They neglect the beginning of
things, and are roused only in the last necessity. So that some
times, by their delay and tardiness, while they wish to retain ease,
even without dignity, they lose both. Those, who are wiUing to
be the defenders of the republic, if they are of the lighter sort,
tlesert ; if they are of the more timid sort, they fly. Those" alone
remain, and stand by the republic, whom no power, no threats, no
malice can shake in their resolution.* 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 barriers 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 pre;udlces of the people. There aie hereditary
honors and privileges, the claims of aristocracy, and the influences
of wealth, accumulated and perpetuated in a few famUies. We
have none of these to embarrass, or overawe us. Our statutes,
regulating the descent of estates, have entirely broken down aU the
ordinary means of undue accumulation ; and our just pride is, that
the humblest and lUgh_es^dtizen^^re^^^^^ equality.
Cicero, Oratio pro Sextio. ch. 47.

LECTURE ON THE SCIENCE OF GOVERNMENT. 157
Nothing here can resist the will of the people ; and nothing, cer
tainly, 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 grovi'th 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 facUlty of introducing changes should make us more,
scrupulous in adopting innovations ; since they often bring perma
nent evUs in their train, and compensate us only by accidental and
temporary good. What is safe, is not always expedient ; what is
theoreticaUy 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 con
stitutes the true policy and security of free governments, lies, not
unfrequendy, 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 aU governments, founded upon die common passions and
infirmities of human nature, there are in repubUcs some peculiar
causes to stimulate political discontents, 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 speaking, 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 in-

J58 LITERARY DISCOURSES.
fluences 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, unless
the people do at all times possess virtue, and firmness, and in-
tellio-ence 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 wiU rule with an unbounded and desolating energy. The
external forms of machinery of the republic may continue to
exist, Uke 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 irre
trievable decay.
I have but glanced at these considerations, each of which might
weU 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 aU 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 patriots and

LECTURE ON THE SCIENCE OP GOVERNMENT. 159
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 despondin^ '
conclusion. On the contrary, we may well Indulge a firm and
lively hope, that, by making the science of government an indis
pensable 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 cun
ning, 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 dili
gence. 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 attain
able 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 wUes
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 kw pages, and
speaks a language, which is generally clear and intelligible to any
youth of the higher classes 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 Instructer of reasonable ablUty 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,

160 LITERARY DISCOURSES.
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 every where Interposed, to Umlt power, and prevent op
pression, and ensure deliberation, and moderate action. He may
perceive, that the House of Representatives cannot make laws,
without the cooperation of the Senate ; that the- President can
not make appointments, wUhout the consent of the Senate ; and
yet, that the President can, by his qualified veto, arrest the legisla
tive action of both houses. He may perceive, that the Judiciary, in
many parts of its organization, acts through, and by, and under the
wiU 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 per
ceive, that there are certain leading principles laid down, as the
fundamental rules of government ; and that they constitute a solemn
biU of rights, which must be obeyed, and cannot be gainsaid. He
may perceive, that the trial by jury is preserved, as a matter of
right, in aU cases of crimes, and generally, also, in civil cases ; that
the liberty of speech and of the press are constitutionally vindi
cated ; that no national religion can be imposed upon the commu
nity ; that private property cannot be taken away without adequate
compensation ; and that the invlolabUity of public and private con
tracts is strenuously enforced.
Having arrived at this clear and definite view of the distribution
of the powers of government, with the appropriate restricfions
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, tiiat 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

LECTURE ON THE SCIENCE OF GOVERNMENT. 161
it is SO. Why, for instance, legislation may not as weU be confided
to one body, as to two distinct bodies ? Why unity in the Execu
tive 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 pre
serve it ? Inquiries of this sort, if they do not spontaneously rise
up in his own mind, cannot be presented to it by his instructer,
without opening new and various sources of reflection. He will
thus be conducted to the threshold of that profound science, which
begins and ends v?Uh 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 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, appUed 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 beau
tiful starlight of the wintry heavens. So it is widi political philoso
phy. Its great truths can be clearly taught, and made famiUar 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 govern
ment, than in comprehending the value of good order and discipline
in a school, or the propriety of trustees' laying down rules to regu
late 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 observa
tion ; but he may leam 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, untU he can seize on the most distant objects, and bring
21

1(52 LITERARY DISCOURSES.
them, as it were, under the eye of his mind with a close and cloud
less certainty. Every element of knowledge, which he thus grad
ually acquires, will soon become incorporated into his former stock,
untU, 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 wisdom and ability, which shaU make him at once an
ornament and a blessing to his country, even diough 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 ordinate love of innovation of the young,
the ignorant, and the restiess. He may there stand the uncon
querable friend of liberty ; recommending it by his virtues, and
sustaining it by his councUs. He may there withstand the viUage
tyrant, too often disguised under the specious character of the
village demagogue. And he may there close his hk 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 im
pressions of his desolations in the ruined hopes and fortunes of
mUlions. If, on the other hand, a higher destiny awaits him; if he is called
to take a part in the pubUc councUs 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 wo, our destiny must be
committed to the one or the other of these classes of rulers, as
pubhc opinion shaU decide. Who would wUlingly commit himself
to the skiU 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 controversy; and, if the
observations already made are well founded, it is wholly indefensi-

LECTURE ON THE SCIENCE OF GOVERNMENT. 163
ble. If it should be said, that it wiU 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 party. The principles of the consti
tution, 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, untU it could be taught with
the purity, simplicity, and energy of the apostolic age, we our
selves, 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 suppUed, 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 exer
cise of political privileges ? He may perform, or use them, weU
or iU. But the results of the use and abuse are, and ever will be,
mixed up wUh 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 ship
wreck, which shall bury the hopes of others, wiU not spare his own.
What blessings in human life can fairiy 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 tranquilhty ?

IS

154 LITERARY DISCOURSES.
where the slave is compeUed to kiss the chain, which binds him
to wretchedness, and smUe upon his oppressor, whUe his heart i
writhing in agony ? Let not Americans forget, that Greece, im
mortal 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 repubUcan grandeur ? The
Apennines stiU Uft up their bold and rugged peaks ; the sun stiU
looks down upon her plains with a warm and cloudless splen
dor ;  ¦ 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 discipUne
the mind, or to accustom it to severe and close investigation. They
combine,' in a very high degree, the speculations of phijosophy with
the varied events of history, and increase the separate interest of
each. They have a tendency to enlarge and liberaUze the mind,
by famUlarizlng 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 suk
the short and hasty intervals of the man of business. They gather
up new materials in the dally intercourse of society ; 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 natu
rally produce in ardent and inquisitive minds. Nothing is so fasci
nating, 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 tmths ; 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 littie reliance can be placed upon mere

LECTURE ON THE SCIENCE OF GOVERNMENT. 165
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 aU, 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 whh 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, whUe the
architect has been stUl 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 government, as it is
read by the lights of history. They wUl 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
sUendy 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, untU 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 pro
pose 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
iUustrate 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 classbooks. The instructer, if
he possesses common skill and ingenuity, may easily make thera,
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
wiU gradually make the pupils familiar with their bearing and value.

166 LITERARY DISCOURSES.
They may not at once arrive at the various truths, which are
designed to be taught; but they wiU 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 them to lay a broad foundation
for the due discharge of the duties of private citizens, and the more
arduous employments of public life.
Lord Brougham, one of the most powerful advocates of popular
education in our day, has made the following remarks, which can
not be more fitiy 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 opin
ions for themselves, other men will form opinions for them ; not
according to the truth and the interests of the people, but accord
ing to their own individual and selfish interest, which may, and
most probably wUl, 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 poUtical, as
weU 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 succour 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 ex
alted powers of our mind, our genius, and our judgment, for her
own benefit ; and that slie might leave for our private use such por
tions only, as might be spared for that purpose."

Cicero, De Repubhca, lib. 1. cap. 4.

LINES,

WRITTEN ON THE DEATH OF A DAUGHTER, IN MAY, 1831.

Farewell, my darling child, a sad farewell !
Thou art gone from earth, in heavenly scenes to dwell ;
For sure, if ever being, formed from dust,
Might hope for bliss, thine is that holy trust.
Spotless and pure, from God thy spirit came ;
Spotless it has returned, a brighter flame.
Thy last, soft prayer was heard — No more to roam ;
Thou art, ('twas all thy wish,) thou art gone home.*
Ours are the loss, and agonizing grief,
The slow, dead hours, the sighs without relief.
The lingering nights, the thoughts of pleasure past.
Memory, that wounds, and darkens, to the last.
How desolate the space, how deep the line.
That part our hopes, our fates, our paths, from thine !
We tread with faltering steps the shadowy shore ;
Thou art at rest, where storms can vex no more.
When shall we meet again, and kiss away
The tears of joy in one eternal day?
Most lovely thou ! in beauty's rarest truth !
A cherub's face ; the breathing blush of youth ;
A smile more sweet than seemed to mortal given ;
An eye that spoke, and beamed the light of heaven ;
A temper, like the balmy summer sky.
That soothes, and warms, and cheers, when life beats high ; ¦•
A bounding spirit, which, in sportive chase.
Gave, as it moved, a fresh and varying grace ;
A voice, whose music warbled notes of mirth.
Its tones unearthly, or scarce formed for earth ;
A mind, which kindled with each passing thought.
And gathered treasures, when they least were sought ; —
' The last words, uttered but a few moments before her death, were, " I want
to go home."

168 LINES,
These were thy bright attractions ; these had power
To spread a nameless charm o'er every hour.
But that, which, more than all, could bliss impart.
Was thy warm love, thy tender, buoyant heart.
Thy ceaseless flow of feeling, like the rill.
That fills its sunny banks, and deepens still.
Thy chief delight to Ax thy parents' gaze.
Win their fond kiss, or gain their modest praise.
When sickness came, though short, and hurried o'er.
It made thee more an angel than before.
How patient, tender, gentle, though disease
Preyed on thy life! — how anxious still to please!
How oft around thy mother's neck entwined
Thy arms were folded, as to Heaven resigned !
How oft thy kisses on her pallid cheek
Spoke all thy love, as language ne'er could speak !
E'en the last whisper of thy parting breath
Asked, and received, a mother's kiss, in death.
But oh! how vain, by art, or words, to tell.
What ne'er was told, — affection's magic spell!
More vain to tell that sorrow of the soul.
That works in secret, works beyond control.
When death strikes down, with sudden crush and power.
Parental hope, and blasts its opening flower.
Most vain to tell, how deep that long despair.
Which time ne'er heals, which time can scarce impair.
Yet still I love to linger on the strain —
'T is grief's sad privilege. When we complain.
Our hearts are eased of burdens hard to bear ;
We mourn our loss, and feel a comfort there.
My child, my darling child, how oft with thee
Have I passed hours of blameless ecstasy !
How oft have wandered, oft have paused to hear
Thy playful thoughts fall sweetly on my ear!
How oft have caught a hint lieyond thy age.
Fit to instruct the wise, or charm the sage !
How oft, with pure delight, have turned to see
Thy beauty felt by all, except by thee ;
Thy modest kindness, and thy searching glance ;
Thy eager movements, and thy graceful dance ;
And, while I gazed with all a father's pride.
Concealed a joy, worth all on earth beside !

ON THE DEATH OF A DAUGHTER. 169
How changed the scene ! In every favorite walk
I miss thy flying steps, thy artless talk ;
Where'er I turn, I feel thee ever near ;
Some frail memorial comes, some image dear.
Each spot still breathes of thee — -each garden flower
Tells of the past, in sunshine, or in shower ;
And, here, the chair, and, there, the sofa stands.
Pressed by thy form, or polished by thy hands.
My home, how full of thee ! — But where art thou ?
Gone, like the sunbeam from the mountain's brow ;
But, unlike that, once passed the fated bourn.
Bright beam of heaven, thou never shalt return.
Yet, yet, it soothes my heart on thee to dwell ;
Louisa, darling child, farewell, farewell !

22

BIOGRAPHICAL SKETCHES.

SKETCH

OP THE LIFE AND CHARACTER OF THE HON. SAMUEL DEXTER, LL. D.

[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 Gland Jury and the
members of the Bai' of the Circuit Court.]
I HAVE now finished the brief review of those offences, which
are most important in the criminal code of the UnUed 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 pub
lic loss, and the mourners are the whole nation. To give utterance
to our feelings is, therefore, a solemn duty. It is fit, that the ex
ample 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 ex
alted genius, when it has ceased to attract admiration by its Uving
splendor, should be 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 iUustrious lawyer and statesman.

174 BIOGRAPHICAL SKETCHES.
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 CouncU by the
House of Representatives, and as often rejected by the royal gov
ernor 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 bihllcal
criticism ; and upon this honorable foundation the Dexter lecture
ship 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 deliv
ered a poem, which was at that time received with great applause,
and is stiU considered as highly creditable to his taste and judg
ment. 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 wonder
fully adapted to invigorate and develop the powers of his under
standing. He passed the usual preparatory term at Worcester,
under the tuition of the Hon. Levi Lincoln, then an eminent coun
sellor at the bar, and since fijjnjiitrGovernor 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. Not-
whhstanding 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

HON. SAMUEL DEXTER. 175
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 caUed to assist in the national coun
cils. 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
poUtical 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 sensa
tions, 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 from the walls of Congress, seemed reflected back from every
cottage in the country. At no period of his life, did Mr. Dexter
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 princi
ples and measures, gave him a weight of authority, which it was
diiScult 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 Ufe, 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 en
gage 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 hav-

176 BIOGRAPHICAL SKETCHES.
ing accepted, he immediately employed the whole vigor of his
mind to attain the mastery of all their multifarious duties. That
he fully accomplished his purposes can be no surprise to those,
who knew him. Such was his intellectual capacity and discrimina
tion, 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 ne
cessary 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 accession of
Mr. Jefferson to the presidency, he resigned his public employ
ments, 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 re
searches. 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 friendships might
not always be reconcUable. 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 responsibUity by equivocation or reserve. On
the contrary, he was always frank, communicative, and decided..
But his judgment was so Uttie 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 for men of eminence, after having withdrawn a
few years from the bar, to find it difficult, if not impracticable, to

HO.\. SAMUKL OEXTKR. ^-^^
resume their former rank in business. Nothing of this sort occurred
to check the progress of Mr. Dexter. He was immediately en
gaged in almost all the important causes in our highest courts • and
popular favor seemed to have 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 UnUed States, where it has been my pride and pleas
ure, for many years, to see him holding his career in the foremost
rank of advocates. This would entltie him to no ordinary praise ;
for that bar has been long distinguished by the presence of many of
the most Ulustrious lawyers in the Union.
In no situation have the admirable talents of Mr. Dexter ap
peared 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 witiiout attracting an audience com
posed 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 au
dience have testified the touching power of his eloquence and pa
thos. On others, a profound and breathless silence expressed, more
forcibly than any human language, the rivelted attention of an hun
dred 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 de.scribe 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, stripped of its natural connexion, 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 youth
ful sport, some tender friendship, some endearing affection, some
reverential feeling. It is associated with all our moral habits, our
pnnciples, and our virtues. The very sod seems almost a part of
ourselves, for there are entombed the bones of our ancestors. Even
the dark vaUey of the shadow of death is not without its consola
tions, 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
23

178 BIOGRAPHICAL SKETCHES.
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 benedictions 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 fraU 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 com
pelled, 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 thirtieth
of April, somewhat unwell ; but no serious alarm for his safety
existed untU the day previous to his death. Finding his dissolufion
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.
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 littie 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 remarits 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 some
times 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

HON. SAMQEL DEXTER. 179
respectful. His countenance was uncommonly strikino- ; and yet
perhaps, scarcely gave at once tiie 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 contem
plative 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 enuncia-
ation was remarkably slow, distinct, and rauslcal ; 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 Ulustratlon, or striking
metaphor sometimes adorned his speeches, they seemed the spon
taneous burst of 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 struo'Sfling 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 eariy to have
assumed the mastery of his mind ; to have checked its vivid move
ments by habitual discipline ; and bound his passions in the adaman
tine 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

180 BIOGRAPHICAL SKETCHES.
because he was more enamoured of wLsdom. Yet, as if to show
his native powers, he has sometimes let loose the enthusiasm of his
genius, and touched with a master's hand every chord of the pas
sions, and alternately astonished, delighted, and melted his hearers.
Something of the same effect has been produced by, what may be
fitiy termed, the moral subUmity 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, tUl at last the superstructure seemed,
by its height and ponderous proportions, to bid defiance to the
assaults of human ingenuity. I 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 illus
trious men of our country, either living or dead. In general ac
quirements he was unquestionably inferior to many ; and even in
professional science he could scarcely be considered, as very pro
found, 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 littie of love or rev
erence. His delight was to expatiate in the elements of jurispru
dence, 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 distinc
tions 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 doc
trines, 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 hira 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 settied 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 culti-

HON. SAMUEL 13EXTEK. 181
vated imaginations ; of more deep and accurate research ; and of
more various and finished learning. But if 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 an unerring judgment, the weak points of an arim-
ment, 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 wdl be difficult to find many rivals, or superiors to Mr.
Dexter. In the sifting and comparison of evidence, and in mould
ing 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.
It moved along^ in majestic simplicity, like a mighty stream, quick
ening 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 wltii a lady's distaff. It was surrendering the integrity, as
well as honor, of the bar. His conduct afforded, in these particu
lars, 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 mucli time to the evidences and doctrines of Christianity ;
and his faith in its truths was fixed after the most elaborate inqui
ries. That he was most catholic and liberal in his views, is known
to us aU ; but, except to his intimate friends, it is littie known, how
solicitous he was to sustain the credlbUity 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 affections 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

182 BIOGRAPHICAL SKETCHES.
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 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 v/e 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.
To conclude; — Mr. Dexter was a man of such rare endow
ments, that, in whatever age or nation he had Uved, 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 reason
ings, 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, wiU not be
easily obscured ; and if it shall grow dim in the lapse of time, I
trust, that some faitiiful historian will preserve the character of his
mind in pages, that can perish only with the language, in which
they are written.

MEMOIR

OF THE HON. JOHN MARSHALL, LL. D., CHIEF JUSTICE OF THE SUPREME
COURT OF THE UNITED STATES.

[First putilished in the National Portrait Gallery, 1833.]
John Marshall, (the present Chief Justice of the United
States,) was born in Fauquier county, in the state of Virginia, on
the 24th of September, 1755. His father was Thomas MarshaU,
of the same state ; who served with great distinction in the revo
lutionary war, as a colonel in the line of the continental army.
Colonel Marshall was a planter, of a very small fortune, and had
received but a narrow education. These deficiencies, however,
were amply suppUed by the gifts of nature. His talents were of
a high order, and he cultivated them with great diligence and
perseverance ; so that he maintained, throughout his whole life,
among associates of no mean character, the reputation of being a
man of extraordinary abUity. No better proof need be adduced,
to justify this opinion, than the fact, that he possessed the un
bounded confidence, admiration, and reverence of all his children,
at the period of life, when they were fully able to appreciate his
worth, and compare him with other men of known eminence.
There are those yet living, who have often listened with delight
to the praises bestowed on him by filial affection ; and have heard
the declaration, emphatically repeated from the lips of one of his
most gifted sons, that his father was an abler man than any of his
children. Such praise from such a source is beyond measure pre
cious. It warms, while it elevates. It is a tribute of gratitude to
the memory of a parent, after death has put the last seal upon his
character, and at a distance of time, when sorrow has ceased its
utterance, and left behind it the power calmly to contemplate his
excellence.

184 BIOGRAPHICAL SKETCHES.
Colonel Marshall had fifteen children, seven of whom are now
living ; and U has long been a matter of public fame, that aU the
children, females as well as males, possessed superior intellectual
lendowments. John was the eldest child ; and was, of course, the
first to engage the solicitude of his father. In the local posUion of
the family, at that time almost upon the front'er settiements of the
country, (for Fauquier was a frontier county,) it was of course,
that the early education of all the children should devolve upon
its head. Colonel Marshall superintended the studies of his eldest
son, and gave him a decided taste for English literature, and
especially for history and poetry. At the age of twelve he had
transcribed Pope's Essay on Man, and also some of his moral
essays. The love of poetry, thus awakened in his warm and
vigorous mind, never ceased to exert a commanding influence over
it. He became enamoured of the classical writers of the old school,
and was instructed by their solid sense and their beautiful imagery.
In the enthusiasm of youth, he often indulged himself in poetical
compositions ; and freely gave up his hours of leisure to those
delicious dreamings of the muse, which (say, what we may) consti
tute some of the purest sources of pleasure in the gay scenes of
life, and some of the sweetest consolations in adversity and affliction,
throughout every subsequent period of it. It is weU known, that
he has continued to cultivate this favorite study, and to read with
intense Interest the gay, as well as the loftier, productions of the
divine art. One of the best recommendations of the taste for
poetry in early life is, that it does not die with youth ; but affords
to maturer years an invigorating energy, and to old age a serene
and welcome employment, always within reach, and always coming
with a fresh charm. Its gentie influence Is then like tiiat so hap
pily treated by Gray. The lover of the muses may truly say,
" I (eel the gales, that round 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."
The contrast, indeed, is somewhat striking between tiiat close
reasoning, which almost i ejects the aid of ornament, in the juridical
labors of the Chief Justice, and that generous taste, which devotes
itself with equal delight to the works of fiction and song. Yet
the union has been far less uncommon than slight observers are apt
to imagine. Lord Hardwicke and Lord Mansfield had an ardent

CHIEF JUSTICE M.\.RSHALL. 185
thirst for general Uterature, and each of them was a cultivator, if
not a devotee, of the lighter productions of the imagination.
There being at that time no grammar-school in the part of the
country, where Colonel Marshall resided, his son was sent, at the
age of fourteen, about a hundred miles from home, and placed
under the tuition of a Mr. Campbell, a clergyman of great re
spectability. He remained with him a year, and then returned
home, and was put under the care of a Scotch gentleman, who
was just introduced into the parish, as pastor, and resided in his
father's family. He pursued his classical studies under this gen-
tieman's direction, whUe he remained in the family, which was
about a year ; and at the termination of it, he had commenced
reading Horace and Livy. His subsequent mastery of the clas
sics was the result of his own efforts, without any other aid than
his grammar and dictionary. He never had the benefit of an \
education at any college, and his attainments in learning have been
nursed by the solitary vigils of his own genius. His father, how
ever, continued to superintend his English education, to cherish
his love of knowledge, to give a solid cast to his acquirements, and
to store his mind with the most valuable materials. He was not
merely a watchful parent, but an instructive and affectionate friend ;
and soon became the most constant, as he was at the time almost
the only inteUigent, companion of his son. The time, not devoted
to his society, was passed in hardy, athletic exercises, and probably
to this circumstance is owing that robust constitution, which yet
seems fresh and firm in a green old age.
About the time when young Marshall entered his eighteenth
year, the controversy between Great Britain and her Atnerican
colonies began to assume a portentous aspect ; and engaged, and
indeed absorbed, the attention of all the colonists, whether they
were young, or old, in private and secluded life, or in political and
public bodies. He entered into it with all the zeal and enthusiasm
of a youth, full of love for his country and liberty, and deeply
sensible of its rights and its wrongs. He devoted much time to
acquiring the first rudiments of military exercise, in a voluntary,
independent company, composed of gentlemen of the county ; to
training a miUtia company in the neighbourhood ; and to reading
the political essays of the day. For these animating pursuits, the
preludes of public resistance, he was quite content to relinquish the
classics, and the less inviting, but, with reference to his future des
tiny, the more profitable, Commentaries of Sir WiUiam Blackstone.
24

J86 BIOGRAPHICAL SKETCHES.
In the summer of 1775, he received an appointment as first
lieutenant in a company of minute-men, enrolled for actual service,
who were assembled in battalion on the first of the ensuing Sep
tember. In a few days they were ordered to march mto the lower
country, for the purpose of defending it against a small regular and
predatory force commanded by Lord Dunmore. They constituted
part of the troops destined for the relief of Norfolk; and Lieu
tenant Marshall was engaged in the battie of the Great Bridge,
where the Brklsh troops, under Lord Dunmore, were repulsed with
great gallantry. The way being thus opened by the retreat of the
British, he marched with the provincials to Norfolk, and 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 was appointed first lieutenant in the eleventh
Virginia regiment on the continental establishment ; and in the
course of the succeeding winter, he marched to the north, where,
in May, 1777, he was promoted to the rank of captain. He was
subsequently engaged in the skirmish at Iron HIU with the Ught
infantry, and fought in the memorable batties of Brandywine, Ger-
mantown, and Monmouth.
That part of the Virginia line, which was not ordered to Charles
ton, S. C, being in effect dissolved by the expiration of the
term of enlistment of the soldiers, the ofiicers (among whom was
Captain Marshall) were, in the winter of 1779-80, directed to
return home, in order to take charge of such men as the state
legislature should raise for them. It was during this season of
inaction, that he avaUed himself of the opportunity of attending
a course of law lectures given by Mr. Wythe, afterwards chan
cellor of the state ; and a course of lectures on natural phUosophy,
given by Mr. Madison, president of WiUiam and Mary College in
Virginia. He left this college in the summer vacation of 1780,
and obtained a license to practise law. In October he returned to
the army, and continued in service until the termination of Arnold's
invasion. After this period, and before the invasion of PhiUlps,
in February, 1781, there being a redundancy of officers in the
Virginia line, he resigned his commission.
During the invasion of Virginia, the courts of law were sus
pended, and were nol reopened until after the capitulation of
Lord Cornwallis. Immediately after that event, Mr. Marshall
commenced the practice of law, and soon rose into distinction at
the bar.

CHIEF JUSTICE MARSHALL. 187
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
executive councU. In January, 1783, he married Miss Ambler,
the daughter of a gentleman, who was then treasurer of the state,
and to whom he had become attached before he left the army.
This lady Uved for neariy fifty years after her marriage, to partake
and to enjoy the distinguished honors of her husband. In 1784, '
he resigned his seat at the council-board, in order to return to the
bar ; and he was, immediately afterwards, again elected a member
of the legislature* for the county of Fauquier, of which he was
then only nominaUy an inhabitant, his actual residence being at
Richmond. In 1787, he was elected a member from the county
of Henrico ; and, though at that time earnestiy engaged in the
duties of his profession, he embarked largely in the political ques
tions, which then agitated the state, and, indeed, the whole con
federacy. Every person, at all read in our domestic history, must recollect
the dangers and difficulties of those days. The termination of the
revolutionary war left the country impoverished and exhausted by
its expenditures, and the national finances at a low state of depres
sion. The powers of Congress under the confederation, which,
even during the war, were often prostrated by the neglect of a
single state to enforce them, became, in the ensuing peace, utterly
relaxed and inefficient. Credit, private as well as public, was de
stroyed. Agriculture and commerce were crippled. The delicate
relation of debtor and creditor became dally more and more embar
rassed and embarrassing ; and, as is usual upon such occasions, every
sort of expedient was resorted to by popular leaders, as well as by
men of desperate fortunes, to inflame the public mind, and to bring
into odium those, who labored to preserve the public faith, and to
establish a more energetic government. The whole^^ country was
soon divided into two great parties, the one of which'^endeavoured
to put an end. to the public evUs, by the establishment of a gov
ernment over the Union, which should be adequate to all its
exigencies, and act directly on the people ; the other was devoted
to state authority, jealous of all federal influence, and determined,
at every hazard, to resist its increase.
It is almost unnecessary to say, that Mr. Marshall could not
remain an idle or indifferent spectator of such scenes. As littie
doubt could there be of the part he would take in such a contest.
He was at once arrayed on the side of Washington and Madison.

188 BIOGRAPHICAL SKETCHES.
In Virginia, as every where else, the principal topics of the day
were paper money, the collection of taxes, the preservation of
public faith, and the administration of civil justice. The parfies
were neariy equaUy divided upon all these topics ; and the contest
concerning them was continually renewed. In such a state of
things, every victory was but a temporary and questionable triumph,
and every defeat still left enough of hope to excite to new and
strenuous exertions. The affairs, too, of the confederacy were
then at a crisis. The question of the continuance of the Union,
or a separation of tiie states, was freely discussed ; and, what is
almost startiing now to repeat, either side of it was maintained
without reproach. Mr. Madison was at this time, and had been
for two or three years, a member of the house of delegates,, and
was in fact the author of the resolution for the general convention
at Philadelphia, to revise the confederation. He was at aU times
the enlightened advocate of union, and of an efficient federal
government, and he received on all occasions the steady support
of Mr. MarshaU. Many have witnessed, with no ordinary
emotions, the pleasure, with which both of these gentlemen look
back upon their cooperation at that period, and the sentiments of
profound respect, with which they habitually regard each other.
Both of them were members of the convention, subsequently
called in Virginia, for the ratification of the federal constitution.
This instrument, having come forth under the auspices of General
Washington and other distinguished patriots of the Revolution, was
at first favorably received in Virginia ; but it soon encountered de
cided hostility. Its defence was uniformly and most powerfully
maintained there by Mr. Marshall.
The debates of the Virginia convention are in print. But we
have been assured by the highest authority, that the printed vol
ume affords but a very feeble and faint sketch of the actual de
bates on that occasion, or of the vigor, with which every attack was
urged, and every onset repeUed, against the constitution. The best
talents of the state were engaged in the controversy. The princi
pal debates were conducted by Patrick Henry and James Madison,
as leaders. But on three great occasions, namely, the debates on
the power of taxation, the power over the militia, and the power
of the judiciary, Mr. Marshall gave free scope to his genius, and
argued with a most commanding ability.
It is very difficult for the present generation to conceive the
magnitude of the dangers, to which we were then exposed, or to

CHIEF JUSTICE MARSHALL. 189
realize the extent of the obstacles, which were opposed to the
adoption of the constitution. Notwithstanding all the sufferings of
the people, the acknowledged imbecility of the government, and
the almost desperate state of our public affairs, there were men of
high character, and patriots too, who clung to the old confedera
tion with an enthusiastic attachment, and saw in the grant of any
new powers, indeed of any powers, to a national government,
nothing but oppression and tyranny, — slavery of the people and
destruction of the state governments on the one hand, and univer
sal despotism and overwhelming taxation on the other. Time, the
great umpire and final judge of these questions, has, indeed, now,
abundantiy shown, how vain were the fears, and how unsound the
principles of the opponents of the constitution. The prophecies
of its friends have been abundantly fulfilled, in the growth and
solid prosperity of their country ; far, indeed, beyond their most
sanguine expectations. But our gratitude can never be too warm
to those eminent men, who stemmed the torrent of public prejudice,
and, with a wisdom and prudence, almost surpassing human power,
laid the foundations of that government, which saved us at the
hour, when we were ready to perish. After twenty-five days
of ardent and eloquent discussion, to which justice never has
been, and never can now be done, (during which nine states
adopted the constitution,) the question was carried in its favor in
the convention of Virginia by a majority of ten votes only.
The adoption of the constitution of the United States having
been thus secured, Mr. Marshall immediately formed the deter
mination to relinquish public life, and to devote himself to the
arduous duties of his profession. A man of his eminence could,
however, with very great difficulty adhere rigidly to his original
resolve. The state legislature having, in December, 1788, passed
an act, allowing a representative to the city of Richmond, Mr.
Marshall was almost unanimously invited to become a candidate.
With considerable reluctance he yielded to the public wishes,
being principally influenced in his acceptance of the station, by
the increasing hostUity manifested in the state against the national
g9vernment, and his own anxious desire to give the latter his
decided and public support. He continued in the legislature, as a
representative of Richmond, for the years 1789, 1790, and 1791.
During this period every important measure of the national gov
ernment was discussed in the state legislature, with great freedom,
and no inconsiderable acrimony. On these occasions Mr. Marshall

190 BIOGRAPHICAL SKETCHES.
vindicated the national government, with a manly and zealous in-
dependence. After the termination of the session of the legislature, in 1791,
Mr. Marshall voluntarily retired. But the events, which soon
afterwards occurred in Europe, and extended a most awakening
influence to America, did not long permit him to devote himself to
professional pursuits. The French revolution, in its early dawn,
was hailed with universal enthusiasm in America. In its progress,
for a considerable period, it continued to maintain among us an
almost unanimous approbation. Many causes conduced to this
result. Our partiality for France, from a grateful recollection of
her services in our own revolutionary contest, was ardent and un
disguised. It vpas heightened by the consideration, that she was
herself now engaged in a struggle for liberty, and was endeavour
ing to shake off oppressions, under which she had been groaning
for centuries. The monarchs in Europe were combined in a
mighty league, for the suppression of this new and alarming insur
rection against the claims of legitimacy. It was not difficult to
foresee, that, if they were successful in this enterprise, we ourselves
had but a questionable security for our own independence. It
would be natural for them, after having completed their European
conquests, to cast their eyes to the origin of the evU ; and to feel,
that their dynasties were not quite safe, (even though the Atiantic
rolled between us and them,) while a living example of liberty, so
seductive and so striking, remained in the western hemisphere.
It may be truly said, that our government partook largely of the
general interest, and did not hesitate to express it in a manner not
incompatible with the strict performance of the duties of neutrality,
Mr. Marshall was as warmly attached to the cause of France, as
any of his considerate countrymen.
After the death of Louis XVL, feelings of a different sort
began to mix themselves, not only in the public councUs, but in
private life. Those, whose reflections reached beyond the events
of the day, began to entertain fears, lest, in our enthusiasm for the
cause of France, we might be plunged into war, and thus jeopard
our own vital interests. The task of preserving neutrality was of
itself sufficientiy difficult, when the mass of the people was put ia
motion by the cheering sounds of liberty and equaUty, which were
wafted on every breeze across the Atiantic. The duty, howeverj
was imperative ; and the admmistration determined to perform it
with the most guarded good faith.

CHIEF JUSTICE MARSHALL. 191
The decided part taken by Mr. MarshaU could not long re
main unnoticed. He was attacked with great asperity in the
newspapers and pamphlets of the day, and designated, by way of
significant reproach, as the coadjutor and friend of Alexander
Hamilton. Against these attacks he defended himself with a zeal
and ability, proportioned to his own sincere devotion to the cause,
which he espoused.
At the spring election for the state legislature in the year 1795,
Mr. Marshall was not a candidate ; but he was, nevertheless,
chosen under somewhat pectdiar circumstances. From the time
of his withdrawing from the legislature, two opposing candidates
had divided the city of Richmond ; the one, his intimate friend,
and holding the same poUtical sentiments with himself ; the other,
a most zealous partisan of the opposition. Each election between
these gentlemen, who were both popular, had been decided by a
smaU majority, and the approaching contest was entirely doubtful.
Mr. Marshall attended the polls at an early hour, and gave his
vote for his friend. WhUe at the polls, a gentleman demanded,
that a poll should be opened for Mr. Marshall. The latter was
greatiy surprised at the proposal, and unhesitatingly expressed his
dissent ; at the same time, he announced his willingness to become
a candidate the next year. He retired from the polls, and imme
diately gave his attendance to the business of one of the courts,
which was then in session. A poU was, however, opened for him,
in his absence, by the gentieman, who first suggested it, notwith
standing his positive refusal. The election was suspended for a
few minutes ; a consultation took place among the freeholders ; they
determined to support him ; and in the evening he received the
information of his election. A more honorable tribute to his
merits could not have been paid ; and his election was a most
important and timely measure in favor of the administration.
It will be recoUected, that the treaty with Great Britain, nego
tiated by Mr. Jay in 1794, was the subject of universal discussion
at this period. No sooner was its ratification advised by the senate,
than public meetings vsrere called in all our principal cities, for the
purpose of inducing the president to withhold his ratification ; and
if this object were not attained, then to prevent in Congress the
passage of the appropriations, necessary to carry it into effect.
The topics of animadversion were not confined to the expediency
of the treaty in Us principal provisions ; but the bolder ground was
assumed, that the negotiation of a commercial treaty by the ex-

292 BIOGRAPHICAL SKETCHES.
ecutive was an unconstitutional act, and an infringement of the
power given to congress to regulate commerce. Mr. MarshaU
took an active part in the discussions upon the treaty. Feeling, that
the ratification of it was indispensable to the preservation of peace,
that its main provisions were essentially beneficial to the United
States, and comported with its true dignity and mterests ; he
addressed himself with the most diligent attention to an examina
tion of the nature and extent of all its provisions, and of all the
objections urged against it. No state in the Union exhibited a
more Intense hostility to it than Virginia, upon the points both of
expediency and constUutionality ; and in no state were the objec
tions urged with more impassioned and unsparing earnestness.
The task, therefore, of meeting and overthrowing them was of no
ordinary magnitude, and required all the resources of the ablest
mind. Mr. Marshall came to tiie task with a thorough mastery
of every topic connected with it. At a public meeting of the
citizens of Richmond, he carried a series of resolutions, approving
the conduct of the executive.
But a more difficult and delicate duty remained to be performed.
It was easy to foresee, that the controversy would soon find its way
from the public forum into the legislative bodies ; and would be
there renewed with the bitter animosity of party spirit. Indeed, so
unpopular was the treaty in Virginia, that Mr. Marshall's friends
were exceedingly solicitous, that he should avoid engaging in any
debate in the legislature on the subject, as it would be a sacrifice of
the remains of his well deserved popularity ; and it might be even
questioned, if he could there deliver his sentiments, without expo
sure to some rude attacks. His answer to all such suggestions was
uniform ; that he should not move any measure to excite a debate ;
but, if the subject were brought forward by others, he should, at
every hazard, vindicate the administration, and assert his own opin-
' ions. He was incapable of shrinking from a just expression of his
own independence. The subject was soon introduced by his
poUtical opponents, and the constitutional objections were urged
with triumphant confidence. That, particularly, which denied the
constitutional right of the executive to conclude a commercial
treaty, was selected and insisted on as a favorite and unanswerable
position. The speech of Mr. Marshall on this occasion has
been always represented as one of the noblest efforts of his genius.
His vast powers of reasoning were employed with the most grafw ,
fying success. He demonstrated, not only from the words of the

CHIEF JUSTICE M.\RSHALL. 193
constitution, and the universal practice of nations, that a commer
cial treaty was within the constitutional powers of the executive •
but that this opinion had been maintained and sanctioned by Mr.
Jefferson, by the whole delegation of Virginia in Congress, and by
the leading merabers in the convention on both sides. His argu
ment was decisive ; the constitutional ground was abandoned ; and
the resolutions of the assembly were confined to a simple disappro
bation of the treaty in point of expediency.
The constitutional objections were again urged in Congress in
the celebrated debate on the British treaty, in the spring of 1796 ;
and there finally assumed the mitigated shape of a right claimed on
the part of Congress, to grant or withhold appropriations to carry
treaties into effect. The higher ground, that commercial treaties
were not, when ratified, the supreme law of the land, was aban
doned ; and the subsequent practice of the government has,
without question, under every administration, conformed to the
construction vindicated by Mr. Marshall. The fame of this
admirable argument spread throughout the Union. Even with his
political enemies, it enhanced the elevation of his character; and
it brought him at once to the notice of some of the most eminent
statesmen, wlio then graced our public councUs.
After this period. President Washington invited Mr. MarshaU
to accept the office of attorney general ; but he declined it, upon
the ground of its interference with his lucrative practice in Vir
ginia. He continued in the state legislature ; but did not, from his
other engagements, take an active part in the ordinary business.
He confined his attention principally to those questions, which in
volved the main Interests of tiie country, and brought into discus
sion the policy and the principles of the national parties.
Upon the recall of Mr. Monroe, as minister to France,
President Washington solicited Mr. Marshall to accept the ap
pointment as his successor ; but he respectfiUly declined it ; and
General Pinckney, of South Carolina, was appointed in his stead.
Mr. Marshall was not, however, long permitted to act upon his
own judgment and choice. The French government refused to
receive General Pinckney, as minister from the United States ;
and the Administration, being sincerely anxious to exhaust every
measure of conciliation, not incompatible with national dignity, for
the preservation of peace, resorted to the extraordinary measure of
sending a commission of three envoys. Within a year from the
time of the first offer, Mr. Adams, having succeeded to the presl-
25

194 BIOGRAPHICAL SKETCHES.
dency, appointed Mr. Marshall one of these envoys, in conjunction
with General Pinckney and Mr. Gerry.
After some hesitation, Mr. Marshall accepted the appointment,
and soon afterwards embarked for Amsterdam. On his arrival at
the Hague, he met General Pinckney ; and, having received pass
ports, they proceeded to Paris. The mission was unsuccessful ; the
envoys were never accredited by the French government, and
Mr. Marshall returned to America in the summer of 1798. Upon
him principally devolved the duty of preparing the official despatch
es. They have been universally attributed to his pen ; and are
models of skilful reasoning, forcible Ulustration, accurate detaU, and
urbane and dignified moderation. In the annals of our diplomacy,
there are no papers, upon which an American can look back with
more unmixed pride and pleasure.
Mr. Marshall, on his return home, found, that ho had sustained
no loss by a diminution of professional business, and looked forward
to a resumption of his labors with high hopes. He peremptorily
refused, for a considerable time, to become a candidate for Congress,
and avowed his determination to remain at the bar. At this junc
ture, he was invited by General Washington to pass a few days at
Mount Vernon ; and having accepted the invitation, he went there
in company with Mr. Bushrod Washington, the nephew of General
Washington, and afterwards a highly distinguished judge of the
Supreme Court of the United States, whose death the public have
recently had occasion to lament.
What took place upon that occasion we happen to have the
good fortune to know from an authentic source. General Wash
ington did not for a moment disguise the object of his invitation ; it
was, to urge upon Mr. Marshall and Mr. Washington the propriety
of their becoming candidates for Congress. ' Mr. Washington yield
ed to the wishes of his uncle without a struggle. But Mr. MarshaU
resisted, on the ground of his situation, and the necessity of attend
ing to his private affairs. The reply of General Washington to
these suggestions will never be forgotten by those, who heard it.
It breathed the spirit of the loftiest virtue and patriotism. He said,
that there were crises in national affairs, which made it the duty of a
citizen to forego his private for the public interest. He considered
the country to be then in one of these. He detailed his opinions
freely on the nature of the controversy with France, and expressed
his conviction, that the best interests of America depended upon
the character of the ensuing Congress. The conversation was long,

CHIEF JUSTICE MARSHALL. 195
animated, and impressive ; full of the deepest interest, and the
most unreserved confidence. The exhortation of General Wash
ington had its effect. Mr. Marshall yielded to his representations,
and became a candidate ; and was, after an ardent contest, elected,
and took his seat in Congress in December, 1799. While he was
yet a candidate, he was offered a seat on the bench of the
Supreme Court, then vacant by the death of Mr. Justice Iredell.
Upon his declining it. President Adams appointed Mr. Justice
Washington, who was thus prevented from becoming a member of
Congress. The session of Congress, in the winter of 1799-1800, will for
ever be memorable in the annals of America. Men of the high
est talents and most commanding influence in the Union were there
assembled, and arrayed, with all the hostility of party spirit, and
all the zeal of conscious responsibUity, against each other. Every
important measure of the Administration was subjected to the
most scrutinizing criticism ; and was vindicated with a warmth
proportionate to the ability of the attack. Mr. Marshall -took an
active part in the debates, and distinguished himself in a manner,
which wiU not easily be forgotten.
In May, 1800, Mr. MarshaU was, without the slightest personal
communication, nominated by the President to the office of secre
tary of war, upon the dismissal of Mr. M'Henry. We believe,
that the first Information received of it by Mr. Marshall was at the
department itself, where he went to transact some business previously
to his return to Virginia. He immediately wrote a letter, request
ing the nomination to be withdrawn by the President. It was
not ; and his appointment was confirmed by the senate. The
rupture between the President and Colonel Pickering, who was
then secretary of state, soon afterwards occurred, and Mr. Marshall
was appointed his successor. This was, indeed, an appointment
in every view most honorable to his merits, and for which he was
in the highest degree qualified.
On the 31st day of January, 1801, he became chief justice of
the United States ; and has continued, ever since that period, to fill
the office with increasing reputation and unsullied dignity.
Splendid, indeed, as has been the judicial career of this eminent
man, it is scarcely possible, that the extent of his labors, the vigor
of his intellect, or the untiring accuracy of his learning, should be
duly estimated, except by the profession, of which he is so great
an ornament. Questions of law rarely assume a cast, which intro-

196 BIOGRAPHICAL SKETCHES.
duces them to extensive, public notice ; and those, which require the
highest faculties of mind to master and expound thera, are commonly
so intricate, and remote from the ordinary pursuits of life, that the
generality of readers do not bring to the examination of them the
knowledge, necessary to comprehend them, or the curiosity, which
imparts a relish and flavor to thera. For the most part, therefore,
the reputation of judges is confined to the narrow limits, which
embrace the votaries of jurisprudence ; and many of those exqui
site judgments, which have cost days and nights of the most elabo
rate study, and, for power of thought, beauty of Illustration, variety
of learning, and elegant demonstration, are justiy numbered among
the highest reaches of the human mind, find no admiration beyond
the ranks of lawyers, and live only in the dusty repositories of
their oracles. The fame of the warrior is for ever embodied in
the history of his country, and is colored with the warm lights,
reflected back by the praise of many a distant age. The orator
and the statesman live, not merely in the recollections of their
powerful eloquence, or the deep impressions made by them on the
character of the generation, in which they lived ; but are brought
forth for public approbation in political debates, in splendid vol--
umes, in collegiate declamations, in the works of rhetoricians, in
the school-books of boys, and in the elegant extracts of maturer Ufe.
This is not the place to enter upon a minute survey of the offi
cial labors of Mr. Chief Justice Marshall. However instructive or
interesting such a course might be to the profession, the considera
tions, already adverted to, sufficiently admonish us, that h would not
be very welcome to the mass of other readers. But there is one
class of cases, which ought not to be overiooked, because it comes
home to the business and bosom of every citizen of this country,
and is felt in every gradation of life, from the chief magistrate
down to the inmate of the cottage. We allude to the grave dis
cussions of constitutional law, which, during his time, liave°attracted
so much of the talents of the bar in the Supreme Court, and
sometimes agitated the whole nation. If all others of the Chief
Justice's juridical arguments had perished, his luminous judgments,
on these occasions, would have given an enviable immortality to his
name. There is, in the discharge of this delicate and important duty,
which IS peculiar to our institutions, a moral grandeur and interest,
which It IS not easy to overestimate, either in a poUtical or civil
view. Jn no other country on earth are the acts of the legislature

CHIEF JUSTICE MARSHALL. 197
liable to be caUed in question, and even set aside, if they do not
conform to the standard of the constitution. Even in Eno-land O ?
where the principles of civil liberty are cherished with uncommon
ardor, and private justice is administered with a pure and elevated
independence, the Acts of Pariiament are, by the very theory of
the government, in a legal sense, omnipotent. They cannot be
gainsaid or overruled. They form the law of the land, which
controls the prerogative, and even the descent, of the Crown itself,
and may take av/ay the Ufe and property of the subject, without
trial and without appeal. The only security is in the moderation
of Parliament itself, and representative responsibUity. The case is
far otherwise in America. The state and national constitutions
form the supreme law of the land ; and the judges are sworn to
maintain these charters of Uberty, or rather these special delega
tions of power by the people, (who, in our governments, are alone
the depositaries of supreme authority and sovereignty,) in their
original vigor and true intendment. It matters not, how popular a
statute may be, or how commanding the majority, by which it has
been enacted ; it must stand the test of the constitution, or it faUs.
The humblest citizen may question its constitutionality ; and its
final fate must be settled upon grave argument and debate by the
judges of the land.
Nor is this the mere theor)' of the constitution. It is a func
tion, which has been often performed ; and not a few acts of state,
as well as of national legislation, have been brought to this severe
scrutiny ; and, after the fullest consideration, some have been pro
nounced to be void, because they were unconstitutional. And
these judgments have been acquiesced in, and obeyed, even when
they v?ere highly offensive to the pride and sovereignty of the
state itself, or affected private and public interests to an incalculable
extent. Such, in America, is the majesty of the law. Such is
the homage of a free people to the institutions created by them
selves. This topic is so copious, and of such everlasting consequence to
the wellbeing of this republic, that it furnishes matter for volumes ;
but we must escape from it with the brief hints already suggested,
and resume our previous subject.
It is impossible even to look forward to the period, when, ac
cording to the course of human events, the grave must close upon
the labors of this great man, without a profound melancholy. Such
men, as he, are not the ornaments of every and any age ; they arise
Only at distant intervals, to enlighten and elevate the human race.

198 BIOGRAPHICAL SKETCHES.
They are beings of a superior order, belonging only to centuries, and
designed by the beneficence of Providence to work deeply and pow
erfully upon human affairs. As the American nation advances in its
general population and wealth, the constitution is arriving at more
and more critical periods of the trial of its principles. The warmest
patriots begin to hesitate in their confidence, whether a system of
government so free, and so beneficent, so just to popular rights, and
so true toward national interests, can and will be enduring. The
boldest and most sanguine admirers of republics are pausing, as
upon the eve of new events, and new inquiries. They perceive,
that it is more than possible, that prosperity may corrupt or enervate
us as it has done all former republics ; that there are elements
of change and perturbations, which have not hitherto been subjected
to rigid calculation, which may endanger, nay, which may perhaps
overthrow, the system of movements, so beautifully put together,
and bring on a common ruin, as fearful and as desolating, as any
which the old world has exhlbUed. In the contemplation of such
a state of things, who would not lament the extinction of such a
mind, as that of the Chief Justice ? Who would not earnestly
implore the continuance of that influence, which has hitherto,
through all the mutations of party, borne him along with the public
favor, as, at once, the wisest of guides, and the truest of friends ?
iWhen can we expect to be permitted to behold again so much
moderation united with so much firmness, so much sagacity with so
much modesty, so much learning with so much experience, so much
solid wisdom with so much purity, so much of every thing, to love
and admire, with nothing, absolutely nothing, to regret? What,
indeed, strikes us, as the most remarkable in his whole character,
even more than his splendid talents, is the entire consistency of his
public life and principles. There is nothing in either, which calls
for apology or concealraent. Arabition has never seduced him from
his principles, nor popular clamor deterred him from the strict per
formance of duty. Amid the extravagances of party spirit, he has
stood with a calm and steady inflexibility ; neither bending to the
pressure of adversity, nor bounding with the elasticity of success.
He has Uved, as such a man should live, (and yet, how few deserve
the coraraeridation 1) by and with his principles. Whatever changes
of opinion have occurred, in the course of his long life, have been
gradual and slow ; the results of genius acting upon larger materials,
and ol^ judgment matured by the lessons of experience. If we
were tempted to say, in one word, what it was, in which he chiefly
excelled other men, we should say, in wisdom ; in the union of that

CHIEF JUSTICE MARSHALL. 199
virtue, which has ripened under the hardy discipline of principles,
with that knowledge, which has constantly sifted and refined its old
treasures, and as constantly gathered new. The constitution, since
its adoption, owes more to him than to any other single mind, for
its true interpretation and vindication. Whether it Uves or perishes,
his exposition of its principles wUl be an enduring monument to his
fame, as long as solid reasoning, profound analysis, and sober views
of government, shall invite the leisure, or command tiie attention
of statesmen and jurists.
But, Interesting as it is, to contemplate such a man in his public
character and official functions, there are those, who dwell with far
more delight upon his private and domestic qualities. There are few
great men, to whom one is brought near, however dazzling may be
their talents or actions, who are not thereby painfully diminished in
the estimate of those, who approach them. The mist of distance
sometimes gives a looming size to their character ; but more often
conceals its defects. To be amiable, as well as great ; to be kind,
gentie, simple, modest, and social, and at the same time to possess
the rarest endowments of mind, and the warmest affections ; is a
union of qualities, which the fancy may fondly portray, but the sober
realities of life rarely establish. Yet it may be affirmed by those,
who have had the privilege of Intimacy with Mr. Chief Justice
Marshall, that he rises, rather than falls, with the nearest surveys ;
and that in the domestic circle he is exactiy what a wife, a child,
a brother, and a friend would most desire. In that magical circle,
admiration of his talents is forgotten, in the Indulgence of those
affections and sensibilities, which are awakened only to be gratified.
More might be said with truth, if we were not admonished, that he
is yet living, and his delicacy might be wounded by any attempt tO'
fiU up the outline of his more private life.
Besides his judicial labors, the Chief Justice has contributed a
valuable addition to the historical and biographical literature of the
country. He is the author of the Life of Washington, and of the
History of the American Colonies, originally prefixed to the former
work ; but, in the second edition, with great propriety, detached from
it. Each of these works has been so long and so favorably known to
the public, that it is whoUy unnecessary to enter upon a critical ex
amination of them in this place. They have all the leading features,
which ought to distinguish historical compositions ; fidelity, accu
racy, impartiality, dignity of narrative, and simplicity and purity
of style. The Life of Washington is, indeed, entitied to a very

200 BIOGRAPHICAL SKETCHES.
hi-h rank ; as it was prepared from a dUigent perusal of the original
papers of that great man, which were submitted to the liberal
use of his biographer. Probably no person could have brought to
so difficult a task more various and apt qualifications. The Chief
Justice had served threugh a great part of the revolutionary war,
and was famUiar with most of the scenes of Washington's exploits.
He had also long enjoyed his personal confidence, and feh the
strongest admiration of his talents and virtues. He was also an early
actor in the great political controversies, which, after the revolu
tionary war, agitated the whole country, and ended in the establish
ment of the national constitution. He was a decided supporter of
the administration of Washington, and a leader among his able advo
cates. The principles and the measures of that administration had
his unqualified approbation ; and he has, at all times since, main
tained them in his public life, whh a sobriety and uniformity, which
mark him out, as the fittest example of the excellence of tiiat school
of patriots and statesmen. If to these circumstances are added his
own peculiar cast of mind, his deep sagacity, his laborious dUigence,
his native candor, and lofty sense of duty, it could scarcely be
doubted, that his Life of Washington would be Invaluable, for the
truth of its facts, and the accuracy and completeness of its narrafive.
And such has hitherto been, and such ought for ever to continue
to be, its reputation. It does not affect to deal with mere private
and personal anecdotes, to amuse the idle, or the curious. Its object
is, to expound the character and public services of Washington, and
to give a faithful outiine of his principles and measures. To a
statesman, in an especial manner, the concluding volume is of the
highest importance. He may there find traced out, with a masterly
hand, and with a sedulous impartiality, the origirr and progress of
the parties, which, since the adoption of the constUutlon, have
divided the United States. He will there be enabled to treasure up
the fundamentals of constitutional law ; and to purify himself from
those generalities, which are so apt to render politics, as a science,
impracticable, and government, as a system, unsteady and visionary.
Every departure from the great principles and policy, laid down by
Washington, wUl be found to weaken the bonds of union, to jeopard
the interests, and to shake the solid foundations of the liberties of
the republic*
* While this was passing through the press, Mr. Chief Justice Marshall diei
at Philadelphia, on the sixth day of July, 1835.

SKETCH

OF THE CHARACTER OF THE HON. ROBERT TRIMBLE, ASSOCIATE JUSTICE
OF THE SUPREME COURT OP THE UNITED STATES.

[First published in the Boston Columbian Centinel, September 17, 1828.]
The melancholy rumor of the death of Mr. Justice Trimble, of
the Supreme Court of the United States, has at length been con
firmed. That excellent man is no more. The nation has sus
tained 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 dis
criminating 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 acute-
ness, in sagacity. AU 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 conclu
sion. Without being eloquent in manner, they had the fuU effect
of the best eloquence. They were persuasive, and often over
whelming, in their influence.
26

203 BIOGRAPHICAL SKETCHES.
Such was the reputation, which accompanied him to the Su
preme Court. Before such a bar, as adorns that court, where some
of the ablest men in the Union are constantiy 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 influ
ence, nor manners, can there sustain the judicial functions, unless
there is a real power to comprehend and illustrate juridical argu
ments, a deep sense of the value of authority, an untiring zeal, and
an abUity 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. Mr. 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 aU the
qualifications of office. Unless we are greatiy 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 cau
tion, 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 iUustrate
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 steady devotion to juris
prudence, he would have gained a stiU 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, — " NihU acute inveniri
potuit in eis causis, quas scripsit, nihU (ut ita dicam) subdole, nihil
versute, quod Uie non viderit ; nihil subtiUter dici, nihU presse, nihil
enucleate, quo fieri possit aliquid limatius."
In private life he was amiable, courteous, frank, and hospita
ble ; warm in his friendships, and a model in his domestic relations.
In poUtics, he was a firm and undeviating republican; but
respectful and concUiatory to those, who differed from him. In
constitutional law he belonged to that school, of which Mr. Chief

HON. ROBERT TRIMBLE. 203
Justice Marshal] (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 ensure 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 for ever. We have nothing
left, but to lament his loss, and to cherish his fame.
" Salve Eeternum mihi, maxima Palla,
jEternumque vale."

SKETCH

OF THE CHARACTER OF THE HON. BUSHEOD WASHINGTON, ASSOCIATE
JUSTICE OF THE SUPKEiVIE COURT OF THE UNITED STATES.

[First published in the Boston Daily Advertiser, 1829.]
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 on 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 Pres
ident Washington. The latter bequeathed to him, by his wUI, his
celebrated estate on the Potomac, Mount Vernon, which was the
residence of this great patriot during the most briUiant 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 aU his valuable public and private papers, as a
proof of his entire confidence and attachment, and made him the
active executor of his wiU. Such marks of respect from such a
man, — the wonder of his own age, and the model for aU future
ages, — would alone stamp a character of high merU, 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 titie.
It is high praise to say, that Mr. Justice Washington weU de
served such confidence and distinction. Nay, more. His merits
went far beyond them. He was as worthy an heir, as ever claimed
kindred with a wortiiy ancestor. He was bred to the law in his
native state of Virginia, and arrived at such eariy eminence in
his profession, that, as long ago as 1798, he was selected by Pres-

HON. BUSHROD WASHINGTON. 205
ident 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 constantiy 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 am
bition, 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 unyieldiag.; comprehensive,
and at the same time cautious ; patient In inquiry, forcible in
conception, clear in reasoning. He was, by original temperament,
mUd, concUlating, and candid ; and yet he was remarkable for an
uncompromising firmness. Of him it may be truly said, that
the fear of man never feU 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 master-spring of
all his conduct. He made it a matter of conscience to dis
charge 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, every where 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 scarce
ly 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, 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 littie on theory, but constantiy enlarging itself
by a close survey of principles.
He was a learned judge. I do not mean by this that every
day learning, which may be gathered up by a hasty reading of

206 BIOGRAPHICAL SKETCHES.
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.
He was not easily satisfied. If he was not as profound as 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 iiidulged
not the rash desire to fashion the law to his own views ; but to
follow out its precepts with a sincere good faith and simplicity.
Hence he possessed the happy faculty of yielding just the proper
weight to authority ; neither, on the one hand, surrendering himself
blindfold to the dictates of other judges, nor, on the other hand,
overruling settied 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 aU, it is as a man, that those, who knew him best, will
most love to contemplate hira. 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 sensibUity, 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 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, unobstrusive, 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 worid. 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 uni
formly supported it through every change of its fortunes. He was
a good old-fashioned federalist, of the school of the days of Wash
ington. He never lost his confidence in the poUtical principles,
which he first embraced. He was always distinguished for modera-

HON. BUSHROD WASHINGTON. 207
tion, 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, caUed 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,
whUe we bow to the decree of Providence, our griefs cannot but
pour themselves out in sincere lamentations.

SKETCH

OF THE CHARACTER OP THE HON. ISAAC PARKER, CHIEF JUSTICE OF THEJ
SUPREME dOURT OF MASSACHUSETTS. t

Mr. Chief Justice Parker brought with hini 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
civU career straightforward and steady. His manners were frank,
modest, and winning, without ostentation and without affectation.
Nature had given hira a mild temperament, a quiet and mod
erated cheerfulness, an ingenuous countenance, and social kind
ness, 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 per
suasive 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, vi'ho felt the dignity of truth, and of that juris
prudence, whose servant he was, and whose precepts he was not
at liberty to disown, and was incapable of betrayino-. 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

CHIEF JUSTICE PARKER. 209
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 rea
sonings 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 sus
tained 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. Dur
ing 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
SewaU, aU 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 quick
ened into superior 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 tiie system, as it was expanding before j
us. We wanted a mind to do, in some good degree, what Lord 1
Mansfield had done in England, to breathe into our common law an i
energy, suited to the wants, the commercial interests, and the enter-/
prise of the age. We wanted a mind, which, with sufficient knowl-j
edge 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 stiU depths of our law, and animate the whole mass.
Such a man was Mr. Chief Justice Parker. And whoever, in this
27

210 biographical sketches.
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 per
ception of abstract right and justice, and of the best mode of adapt
ing it to the exigencies of the case. He felt, as Lord EUenborough
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 exceUed 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 aU, that was before him, or
expounded with more felicity the reasons even of technical doctrines.
He had an almost intuitive perception of the real principle, per
vading a whole class of cases, and would thread it through aU their
mazes with marvellous abUity. His written opinions are fuU of
saoacity, 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 lan
guage, 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 inteUect 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,

CHIEF JUSTICE PARKER. 211
impartiality, and dignity ; as a citizen, for public spirit and elevated
consistency of conduct; as a raan, for generosity, gentieness, and
moral purity. His fame must rest, where It is fit it should, upon
the printed reports of his own decisions. These wdl go down to
future ages; and though, perhaps, beyond the circle of the profes
sion, they may not attract much general observation, (for the misfor
tune of the profession is, that great judges and great lawyers can
not enjoy a wide-spread popular favor,) they will yet be read and
honored by the jurists of succeeding times with undiminished rev
erence, when those of us, who have known and loved lilni, 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, composltione aptus, facultate
coplosus ; eaque erat cum sumrao ingenlo, tum exercltationibus
maximis consecutus ; rem complectebatur meraoriter, dividebat
acute, nee praetermlttebat fere quidquam, quod esset in causa, aut
ad confirmandum aut ad refeUendum."

SKETCH
OP THE CHARACTER OF THE HON. WILLIAM PINKNEY, OF MARYLAND.*

William Pinkney died at Washington on the twenty-fifth of
February, of the present year, (1822,) in the fifty-eighth year of
his age. He had been long distinguished among the statesmen of
this c'ountry, and had enjoyed many public honors. He had been
a coramissloner, under the British treaty of 1794 ; Minister Plenipo
tentiary, successively, at the Courts of Great Britain and Russia ;
and Attorney General 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
abUity. Of his character, as a statesman, or a scholar, it is not the design
of tills sketch to present any outline. It is, as an advocate and
lawyer, that he has a claim to receive a faint, but reverential me
morial in these pages. For many years he stood at the head of
the bar of Maryland; and, for the last ten years of his Ufe, (the
period, dtiring 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, to be exceUed 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 InteUigence, or suavity,
was manly and open ; and, when excited by any discussion, was
capable of die most powerful and various expression, suited at
once for the playfulness of wit, the indignation of resentment, or the
* This Sketch was originally wi'itten at the request of a fi'iend, and sent to
him. It is now printed from a rough copy, made at the time, with some few
alterations.

at

HON. WILLIAM PINKNEY. 213
solemn dignity of argumentation. His mind was singulariy subtile
and penetrating, equally rapid in its conceptions, and felicitous in tiie
exposition of the truths, which it was employed to develope or analyze.
In native genius, or, in other words, in the power to Invent, se
lect, iUustrate, 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 invio--
orated it by constant study, and laborious discipline. He was from
early life a dUigent student, not only of the law, but of general
hterature, 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 ;
fuU of matter, as weU as of metaphor ; able to convince, as well
as to instruct and please. His professional learning was very ex
tensive, deep, and accurate. It was the gradual accumulation of
nearly forty years' steady devotion to the science, as well as prac
tice, 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 tides, with great facility and per
spicuity. But his studies were not confined to mere researches
into the doctrines of the old law. His reading was very exten
sive in all the departments of modern jurisprudence ; and his
practice, which was, perhaps, 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 know
ledge, 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 adrairable
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

214 BIOGRAPHICAL SKETCHES.
its friends. And his large experience, as a statesman and advocate,
oradually 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 bearmg and tenden
cy of its various complicated provisions. No one felt more deeply
its absolute and indispensable importance to the existence of the
nation. No one raore sincerely and uniformly contended for a
liberal exposition of Its granted powers and privUeges. Hence his
arguments upon all constitutional questions in courts of justice, as
well as in the halls of legislation, were characterized by an earnest
ness, a gravity, an eloquence, and force of reasoning, which con
vinced every man, who heard him, that he spoke his own opinions,
under the deepest sense of responsibUity 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 des
tinies of his country. His last moments were employed in profound
investigations, to sustain the constitution against the attacks, made
upon it, in the then pending struggles for state sovereignty. And
the writer of this sketch heard the declaration from his own Ups,
a short period before the Ulness, which terminated his life, that he
was then preparing the materials, for a last and great effort on this
subject, which, as a coraraentary 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 ora
tory. 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 imagi
nation, a perfect orator. His voice was thick and guttural. It
rose and fell wUh little melody and softening of tones, and was, oc
casionally, abrupt and harsh in its intonations, and wanting in liquid-
ness and modulation. At times, his utterance was hurried on to an
excess of vehemence ; and then, as it were, per solium, 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

HON. WILLIAM PINKNEY. 215
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 elo
quence. 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 weU 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 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 amplifi
cation and iUustration, whenever these were appropriate to his pur
pose, seemed almost inexhaustible ; though he possessed, at the
same time, the power of condensation, both of thought and lan
guage, to a most uncommon degree. He never used his powers of
amplification and illustration for mere ornament ; but as auxlUarles
to the main purposes of his argument, artfully interweaving them
with the solid materials of the fabric. Occasionally, indeed,
he would indulge himself in digressions, of such singular beauty
and brilliancy, such a magnificence of phrase, and an appropriate
ness of allusion, that they won applause, even fiora 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. Plnkney's
mind, (in which few, if any, have ever excelled him,) and which
gave such solid weight to his arguments, and carried home con
viction to the doubting and the reluctant, was the closeness, acute
ness, 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.

216 BIOGRAPHICAL SKETCHES.
and his instantaneous perception of the slightest infirmity in the
arguments or concessions of Ills adversary, gave hlra, in most
debates, a captivating. If not a dangerous superiority, and made him,
at the bar, a formidable antagonist, always to bo watched with
jealousy, and always to be approached with caution.
Mr. Pinkney entertained the loftiest notions of the dignity and
UtUity of the profession ; and he endeavoured, on all occasions, to
diffuse among the members of the bar the deepest sense of its
importance, and responsibUity 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 dUlgent, nay, inces
sant study. Whatever might be the success of his oratory in the
estimate of other persons, it never seemed to reach his own stand
ard 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 accumu
lations 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 with
out labor could accomplish littie ; 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 indul
gences of pleasure, or the soft solicitudes of literary ease, but to
severe discipline, and the study of the great instructers of mankind
in learning and science. His loss, in this edifying and cheering
career, wdl 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 hira, will, almost
involuntarily, recur to a passage of Cicero, in his work on the
famous orators of antiquity, descriptive of the character of L. Gras-
sus : " Crasso nlhU statuo fieri potuisse perfectius. Erat summa
gravitas ; erat cum gravitate junctus facetiarum et urbanitatis ora
torios, non scurrilis, lepos ; loquendi accurata, et sine molestia
dUigens, elegantia ; in dlsserendo, mira expllcatio ; cum de jure
civili, cum de aequo et bono dispiitaretur , argumentorum et simill-
copia.' * Cicero, De Claris Orat. cap.

SKETCH

OP THE CHARACTER OP THE HON. 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 attain
ments. 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 impor
tant 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 thoughtful
ness about him, tiiat read to me the lessons of other interests than
those, \vhich 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.
Such, I remember, were my early impressions ; and his high
profes.sional character, as well as some passages in his life, gave me
a strong interest in all that concerned hira, at that time. There
were, too, some accidental circumstances, which were connected
with his arguments on that occasion, which left a vivid impression
upon aU, who had the pleasure of hearing him. It was at this time,
that Mr. Pinkney, of Baltimore, one of the proudest names in the
28

218 BIOGRAPHICAL SKETCHES.
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 wrestie 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 onl}^ 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 inteUigent 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
perfectiy farailiar 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. Eipmet
thought, with somewhat of the display of 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 advo
cates. 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 for ever, his claims to very high distinction in the
profession. In the course of the exordium of this speech, he took
occasion to mention the embarrassment of his own situation, the
novelty of the forum, and the public expectations, which accom
panied 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

HON. THOMAS A. EMMET. 2] 9
life, in which misfortune and sorrow had left many deep traces of
their ravages. " My ambUion," said he, " was extingviished 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 constantiy increased until the close of his
life. I take pleasure in adding, that his affabUity, 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 famUiarwith 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 weU
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 Ulustrate 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
startiing apparitions ; but by earnest and close reasoning to convince
the judgment, 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 persua-

220 BIOGRAPHICAL SKETCHES.
siveness. 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 mean
ing. They were utterances of the soul, as well as of the lips.

REVIEWS

REVIEW

OF A COURSE OF LEGAL STUDY RESPECTFULLY ADDRESSED TO THE
STUDENTS OF LAW IN THE UNITED STATES, BY DAVID HOFFMAN,
PROFESSOR OF LAW IN THE UNIVERSITY OF MARYLAND.

[First published in the North American Review, 1817.]
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 sUent, 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, 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

224 reviews.
those maxims of civil right, which, by their intrinsic justice and
propriety, commend themselves to the bosoms of all men. The
narrow maxiras of one age have not been permitted to present
insurmountable obstacles to the improveraents of another ; but they
have become gradually obsolete, or confined to a very insignificant
range. If it were not beside our present purpose, we might iUustrate
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 Ira-
perfectiy 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 entitied 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 Caseregls, 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 tiie common law.
The doctrine of bailments too, (which lies at the foundation of the
law of shipments,) v/as almost struck out at a single heat by
Lord Holt,* who had the good sense to incorporate into the En
glish code that system, which the text and the commentaries of
the civil law had already built up on the continent of Europe.
What remained, to give perfect symmetry and connexion 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 difiicult to say, which is
most vs'orthy of admiration, the splendor of his genius, the rareness
and extent of his acquirements, or the unspotted purity of his hfe.
Had he never written any thing but his Essay on Bailments, he
would have left a name, unrivalled in the common law, for philo
sophical accuracy, elegant learning, and finished analysis. Even
cold and cautious, as is the habit, if not the structure, of a profes
sional mind, it is impossible to suppress enthusiasm, when we con
template such a man.

' The case of Coggs ti. Bernard. 2 Ld. Raym. R. 909.

Hoffman's course of legal study. 225
We recall ourselves to the more immediate topics, on which we
have already touched. Of the law of bills of exchange and promis
sory notes, how little can be gleaned from worics before the reign
of WiUiam and Mary ! And how many of its most useful prin
ciples 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 aU the preced
ing ages. And here, again, we may remark, how much has been
gained by the accessions and alluvions of the clvU law. It is im
possible to read the older decision.'*, 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 improveraents not less striking, nor less impor
tant. MoUoy and Malynes, feeble and inaccurate as their trea
tises are now confessed to be, were, untU comparatively a recent
period, the principal, tiiough 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
relative to the earning and loss of freight and wages, or relative to
charter parties, bills of lading, stoppage in transitu, and Uens, so
familiar to the modem merchant and lawyer, traced out with the
important practical distinctions belonging to them ? What was then
despatched in a few pages, would now require a large volume.
Much might, even at that period, have been acquired by a dUi
gent study of the maritime jurists of the continent ; but they were
either unknown, or, with one or two exceptions, passed over in
sUent neglect. The truth is, that maritime law had then but
litde attracted the attention of the courts of common law ; and
the only court, in which the subject was much considered, (we
mean the Admiralty,) labored under the severe hostUity of these
courts, and had to maintain an arduous struggle even for existence.
Under such circumstances, its judgments and opinions carried littie
weight in Westminster Hall ; for few were wUllng to listen to prin
ciples, which had no authority beyond the narrow walks of Doc
tors Commons. If we except the aid borrowed from the civilians
of the continent, tiie masterly treatise of Mr. Abbott on the law
of shipping is principally founded on the adjudications since the
elevation of Lord Mansfield to the bench ; and in these adjudica-
29

226 REVIEWS.
tions, 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 elementary principles, and a few decisions,
turning upon nice distinctions, we have now a regular system ;
which, though not entirely perfect, exhibits such a scientific ar
rangement and harmony of principles, that, in most of the ques
tions arising in practice, the profession are enabled to relieve
themselves from those distressing doubts, which never fail to bring
discredit upon the law for its supposed uncertainty. But improve
ment has not been confined to commercial law. A spirit of
scientific 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 dUigence, 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 wUls and testaments, of contingent remain
ders, 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 metho
dize the common law, and give it a systematic character, so that
we may, not only arrive at its principles by regulai- 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 littie uncertainty
in applying it to the solution of those questions, which perpetually
arise in human transactions. To a certain extent, law must for
ever 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

HOFFMAN S COURSE OF LEG.\L STUDY. 227
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 an exact equi
poise. UntU 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 enume
rated ; 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 abso
lutely pure and perfect in our actions, and perfectly conusant of all
the operations of the past, the present, and the future ; there wUI
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 enhghtened 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 inde
pendence 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 greatiy
facUitated the means of acquiring a thorough knowledge of the
science ; but they have also widened the circle to an almost incal
culable 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, niethodum inconcinnam, molem
non ingentem solum, sed perpetuis humeris sustinendam, excidit,
fateor, animus, blandioribusque subridens musis, rigidam banc
minervam, ferreis amplexibus coercendam, leni molimine delibari."
To be sure, the discouragements of that day were not inconsidera
ble ; the 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

228 REVIEWS.
body of the law was to be principally extracted from the Year
Books, and the elaborate, though immethodlcal abridgments of
Statham, Fitzherbert, and Brooke. The only guides, which could
be said to illumine the way, were the brief, but profound text of
Littieton on Tenures, the authoritative and methodical sketch of
GlanvUle, the comprehensive, exact, and learned treatise of Brac-
ton, (whom Sir WiUiam 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 foot
steps the path of his master. If to these we add the old Tenures,
the old and the new Natura Brevlum, tiie Register of original
writs, the works of Britton and Staundford, tiie very able dialogues
of St. German between a Doctor and Student, the acute and
subtUe notes of Perkins, and the diffuse, but accurate and learned,
commentaries of Plowden,* 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 ac
quired only by the dry practice of a black letter office, and a con
stant 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 tiie 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, but drink deep
at the ancient fountains of the law. He must acquire an accurate
knowledge of the feudal tenures, aud of the ancient doctrines con
nected therewith, because they constitute the rudiments of the law
of real estates ; and yet, much of this learning is remote from com
mon use, and lies deep in the dark and uncouth text of the primi
tive 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 EUzabeth, these actions have gradually sunk into
neglect ; and unless he thoroughly coraprehends 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
vigoi', and remain the great remedies for deciding titles. If we
add to this the necessary learning of personal actions, founded on
* 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.

Hoffman's course of legal study. 229
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 appaUlng to young gentie
men, who are just quitting our universities, with the intention of
devoting their Uves to the science of jurisprudence. It ought,
however, to be a great consolation to them, that the elementary
writers are more faithful, raore 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 wUl
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 those, which were most useful, and he con
tents 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.* 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 wdiole
period. f
The publication of Blackstone's Commentaries (in 1765)
constituted a new epoch in the annals of the common law. Pre
viously to that period, the learned author had published his Analysis
of the laws of England, f which exhibited the outiine of the
method and principal divisions, which the Commentaries were
* Lord Hale's preface to RoUe is well worth the diligent perusal of students.
t The letter of Lord Chief Justice Reeve is published in the Collectanea
Juridica, vol. i. p. 79.
i' t The Analysis was first published in 1756,

230 REVIEWS.
intended to fill up, in pursuance, indeed, of the plan, which had
been previously sketched by the masteriy 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
Ulustration, or ornament, or instruction, it is not too much to say,
that it stands unrivaUed in ours, and, perhaps, in every other lan
guage. There have not, however, been wanting, of late years,
attempts to undervalue the importance of 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 fuU 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 ex
press our own sentiments better than in the language of that admi
rable ornament of juridical literature. Sir William Jones : " His
Commentaries are the most correct and beautiful outiine, that ever
was exhibited of any human science ; but they alone wiU no more
form a lawyer, than a general map of the world, how accurately
and elegantiy soever it may be delineated, wUl make a geographer.
If, indeed, all the tities, which he professed only to sketch in ele
mentary discourses, were fiUed up with exactness and perspicuity,
Englishmen might hope at length to possess a digest of their own
laws, which would leave but littie room for controversy, except in
cases depending on their particular circumstances." — (Jones- on
Bailments, 3, 4.)
But the most incontestible 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,

HOFFMAN S COURSE OF LEGAL STUDY. 231
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 reUeved them at once from many of the discourage
ments 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
poUtical distinction and public office,) has contributed in a very
high degree to that great increase of the bar, and that ascendency
m 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 detaUs a design, which had
been so nobly conceived and executed by the Ulustrious commen
tator. 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
Uttle 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 speak at present of
Comyn's Digest, intending hereafter to notice it in another place.
Among the modem 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

232 REVIEWS.
the student would have searched in vain in the abridgments and
treatises of former ages. Where, for instance, shaU 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 for ever remain one of the most intricate
tities of the common law, had been already sketched out by the
masterly hand of Lord Chief Baron Gilbert ; * 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, ex
hausted the subject ; and this chef d'ouvre wiU for ever remain a
monument of his skUl, 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 char
acter. It has traced out the nature and extent of the jurisdiction
and practice of courts of chancery with so much brevity, perspi
cuity, and analytical exactness, that probably to this, more than any
other work, we owe some of the most valuable improvements in
the principles, as weU as tiie proceedings, which regulate the ad
ministration 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 weU as of aU future
works, must rest on tiie solid foundations, laid by the noble Chan
cellor. Lord Eldon pronounced its etdogy in his best manner,
when he declared, that "it is a wonderful effort to collect what is
deduced from authorities, speaking so littie what is clear, that the
surprise is not from the difficulty of understanding aU he has said,
but that so much can be understood."
There are many other treatises upon particular tities of the law,
which might property 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 giring a

See Bacon's Abridgment, Guillim's Edition, title, Remainder and Reversion.

HOFFMAN S COURSE OF LEGAL STUDY. 233
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 Emerlgon, which (strange to tell) has never been trans
lated, although we have been almost overrun with transfusions 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 Emerlgon, and Valin will be accessible in our
native tongue to every lawyer, and wlU 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 faciU-
ties in the study of law have a tendency to make as profound and
accurate lawyers, as the old dry and desultory course. It is sup
posed, 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 dlsci-
pUned the lawyers of the black-lettered times. For ourselves, we
do not perceive the sUghtest foundation for the opinion, and we
deem it radically erroneous. It might as well be contended, that
turnpikes through every part of a thickly settied country have a ten
dency to obUterate 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 facUity of intercourse,
and the interchange of every thing important in the commerce of life,
are greatiy 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 devel
opment 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 or
dinary 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 Ufe ; and time, in the science of law, as
weU 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 bounda
ries between the known and unknown more exactiy defined. In
stead of sparse and scattered maxims, we have regular systems, built
up with general symmetry of parts ; and the necessary investiga-
30

234 REVIEWS.
tions in new and difficult cases are conducted with more safety,
because they are founded on inductions from rules better estabUshed
and more exactiy limited. Yet, with all these advantages, to be
come 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 some
times, perhaps, accumulate a fortune ; but this is no more than what
the experience of aU 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 ac
quirements 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 exceUence, or
for the concealment of quackery in the repetition of a technical
jargon. That some titles of the common law are not as well un
derstood, as in former times, may be safely admitted ; and it is
because they are either obsolete, or their relative importance is
greatiy diminished. But as to all the law in modern practical use,
we are distinctiy 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, viUanage, grand sergeanty, homage, frank
marriage, profession, attaints, and others of a simUar nature, are
now very little known ; but, surely, it is not to be inferred, because
subjects so utteriy 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 intiraately 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 pro
fessional education, when the subject-matter, upon which it can
operate, has no existence in the United States.

HOFFMAN S COURSE OF LEGAL STUDY. 235
The same remarks are in a good degree applicable to real ac
tions, 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, besaiel, and mort d'ancestor,
cessavit, quo jure, ne injuste vexes, de ratlonabUlbus divisis, secta
ad molendinum, nuper obiit, quod permittat, and the trial by bat
tie ; and though, in our own state, writs of entry, formedon, and
right StiU exist, yet they have been moulded into so simple a form,
that most of the ancient pecuUarities are utterly extinct ; * and in
England, as well as in most of the states of the Union, they
are gone whh the years beyond the flood, and the action of eject
ment has almost universally superseded all real actions. It is, per
haps, 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 sys
tem 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 Ulus
trative of these remarks occurred in the modern case of Taylor vs.
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 raore we-
read, unless we are careful to distinguish, the more we shaU be
confounded." — We have heard it questioned by a late learned
judge, whether Lord Mansfield had gone to the bottom of this doc
trine. But, however this may be, the case abundantiy instructs us,
how many distressing doubts may arise from the partial eclipse of
* We take this occasion to correct an error, into which Mr. Hoffman has inad
vertently fallen, in supposing, (p. 144,) that real actions are in daily use in Mas
sachusetts, 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 pecuUarities of process, essoins, and vouchers, and counterpleas, &c., are obso
lete, and superseded by a great simplicity of proceeding, greater, perhaps, than
attends even tlte formal proceedings in ejectments.

236 REVIEWS.
lights once so farailiariy 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 conven
ient 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 taU, or an estate for life ; the limitations of estates are some
times very numerous, and the cases, in which they have lapsed, and
the links of descent and heirship, are often imperfectiy known. In
aU 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 ac
tions, much (at least in England) has probably been gained in sub
stantial justice and convenience, and even certainty of remedy.
It has been also suggested, that special pleading has suffered
greatiy 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 disappeared in practice; and almost every defence, except
that of the statute of limitations, is now determined under the gen
eral 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 pres
ent 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

HOFFMAN S COURSE OF LEGAL STUDY. 23T
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 de
clarations 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, ob
serves, " 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 mind for an accurate investigation of prin
ciples, and accustoming it, by a sort of inteUectual chemistry, to the
most subtUe 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 instru
ments 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 WUUam Jones, in his preface to
the speeches of Isasus, 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 scientificaUy 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
effectuaUy as the famed peripatetic system, which, how ingen-

238 REVIEWS.
ious and subtile soever, is not so honorable, so laudable, or so
profitable, as the science, in which Littieton exhorts his sons to
employ their courage and care." Such commendation supersedes
the necessity of all farther discussion of the importance of plead
ing. But we doubt the fact, that special pleading is not as weU un
derstood, 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
subtUty has passed away, and the quaint trifling, which disfigured
and disgraced the science, is no longer in fashion. Special plead
ing is now applied to its original and proper purpose, the attain
ment 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 aU 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 learnino- 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 mod
ern pleaders should endeavour to imitate, more generally, the
pointed brevity and precision of RastaU'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 Uttie, 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 m the vindication and support of its principles and practice.

Hoffman's course of legal study. 239
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 was so well under
stood, nor so weU 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 profes
sional gentieman. 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 law3'-ers
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 acute
ness, and erudUion, 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 dUigence, which a lofty ambition of excellence has stimu
lated 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 w-ell worthy the perusal of every gentleman of the bar.
Many works have been heretofore written, professedly for the di
rection of persons engaged in the study of the law ; but, for the
most part, these works have, in a didactic form, laid down elemen
tary precepts for the moral conduct, the preparatory attainments,
or the style of elocution and oratory, proper for an eminent advo
cate. Some, indeed, are little more than a distillation from Quinc-
tUlan'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 tities of the law. The
introduction is written with a good 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 ac
quirements of the author.

240 REVIEWS.
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 Muni
cipal Law of England ; 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.
" 111. 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 foUowed by a particular syllabus under every titie 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 impor
tance of the topics, which they discuss, interspersed with many
judicious observations of a more general nature, which exhibit to
great advantage the liberality, sound judgment, and juridical know
ledge of the author. As a specimen of the style and spirit of the
work, we subjoin the note on the reading of reports, and particu
larly of leading cases.
******
These observations of Mr. Hoffman are perfectiy 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 gentieman. We are far from thinking it the
safest abridgment for reference. It is a very irregular fabric, bulk
up on the basis of Rolle's Abridgment, with an incorporation of
the principal matter of Fitzherbert, and Brook, and other old
abridgers. It abounds with inaccuracies and repetitions; and it

HOFFMAN S COURSE OF LEGAL STUDY. 241
is quite obvious, that the author more frequentiy consulted the
works of other abridgers, than the original reports, to abbreviate
and digest for himself We agree, however, with Mr. Harorave,
(Co. LUt. 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 raore
studious in avoiding repetitions." Bacon's (or, more properly,
Gilbert's) Abridgment is more full in the development of princi
ples and the statement of cases ; and, in every respect but copi
ousness, 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 iUustrations, 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 U laid down by the Lord 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 contem
poraries, as the most able lawyer in Westminster HaU." 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,* an honor, which, we believe, has never been con
ceded to any other compiler. It has frequently occured to us, that
our professional brethren of the South did not sufficientiy appre
ciate 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, entitied to littie either of praise or
blame. How, otherwise, can we account for Mr. Hoffman's omis-
* 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 ibiio (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 connexion. 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. 31

242 REVIEWS.
sion, under the article of pleading, to recommend the admirable
titie, Pleader, in the Digest, a titie, which has collected and ex
hausted, in a most scientific order, the wholo principles of the
science. The tUle, " Pleas and Pleadings," in Bacon's Abridg
ment, is an excellent sketch; but it is but a sketch, and, compared
with the titie of Comyns just mentioned, is but twUight to the
meridian day. We would respectfully ask the attention of Mr.
Hoffman, and of southern lawyers in general, to the foUowing
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 excel
lence 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. Lltt. 17. a. note 1.)
The remark, too, of Mr. Hoffman, that " The books of reports
contain the law in the precise phraseology, in which it was admin
istered 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 Bur
row. 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 UtUity 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 particulariy pleases us is the enlarged and liberal view,
with which Mr. Hoffman recommends the student of the common
law to a fuU and careful study of the admiralty, maritime, and civil
law. If the note on the excellence of the civU law (p. 254)
were not too long, we should gladly insert it in this place. We
commend it, however, as weU as his observations on the law of
nations and the admiralty law, most earnestly, to aU 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 CivU 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.

Hoffman's course or legal study. 243
with whom he is acquainted on any subject." * We also recom
mend Ferriere's Dlctionnaire de Droit et de Pratique, Calvinus's
Lexicon Juridlcum, M. Dessaules' Dlctionnaire du Dlgeste, Exton,
and Zouch, and Spelman on the Admiralty Jurisdiction, Cleirac's
Us et Coutumes de la Mer, Emerigon Traite des Assurances,
Pothier's Works, and particulariy his Treatises on Maritime Con
tracts, Boucher's translation of the Consolato del Mare, Peckius
ad Rem Nautlcum, 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 dis
cussions, 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 con
sume seven years of close study. Btit much may be omitted,
where time and opportunity are wanting to exhaust it. We cor
dially 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 Ught and glory upon the land and the
law of our forefathers.
We have another motive, besides the intrinsic value of the work,
for recommending 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 Gov
ernment of Harvard College have, so honorably to themselves,
estabUshed at Cambridge. No work can sooner dissipate the
common delusion, that the law may be thoroughly acquired in
the immethodlcal, interrupted, and desultory studies of the office
of a practising counsellor. Such a situation is indispensable after
* 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.

244 REVIEWS.
the student shall have laid a foundation in elementary principles,
under the guidance of a learned and discreet lecturer. He wUl
then be prepared to reap the full benefits of the practice of an
attorney's office. But, without such elementary instruction, he wiU
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 recentiy
been appointed to preside over the law-school there, would lay a
foundation of solid learning, upon which our ingenuous and ambi
tious 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.

REVIEW

OF THE laws of THE SEA WITH REFERENCE TO MARITIME COMMERCE
DURING PEACE AND WAR — FROM THE GERMAN OF FREDERICK J. JACOB-
SEN, ADVOCATE, ALTONA, 1815.

[First published in the North American Review, 1818.]
The Ancients have left us but little on the subject of commer
cial law ; and that Uttle has lost much of its value iu modern times.
It may, perhaps, be supposed, that a great deal has perished amidst
the ruins of the dark ages ; or has been swaUowed 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 Rho-
dians, 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 indus
trious 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 desUe of gratifying curiosity, should create an active interchange
of these commodities, both by sea and land. The spirit of com
merce, once excited, is not easUy extinguished or controlled. It is
a useful spirit, which imparls 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 humanity. Many usages must neces
sarUy 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

246 REVIEWS.
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
smaU 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 arras, 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 govern
ments, 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 en
gaged, to prevent any effort to systematize their civil polity. Under
such circumstances, it is not very probable, that any public regula
tions could be framed in respect to maritime contracts, except 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. I., part 3., art. 2.,) that " Though the laws of the Twelve
Tables were many of thera 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 eariy." Nor do we recoUect, 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 weU as the importance, of this code
has been greatiy overrated, we think there are very strong reasons

MARITIME LAW. 247
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 Plthou, a
celebrated jurist of the sixteenth century, which was published,
first at Basle in 1561 by Simon Scardlus, and afterwards at Frank
fort 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
civlUans has not hesitated to reject these fragments, as raore 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, Godefrol, Vln-
nius, and other eminent jurists. Bynkershoek first boldly denied
their authenticity ; the cautious and accomplished Heineccius
foUowed in the same path ; and their opinion has been generaUy
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 tities of the Corpus Juris Civilis. The circum
stances, under which the Roman codes were compUed, 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 aU that conquest can bestow, and which seems des
tined to endure to the end of time) — • the Roman empire had passed
through its brightest ages of military, civil, and commercial gran
deur. She had been for centuries as renowned for her jurispru
dence, 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.

248 REVIEWS.
. 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 aU
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 aU the other
civilized nations of the eastern continent, including those, which had
been most distinguished in coraraerce ; 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 eraperors, 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 coun
tries. We have direct evidence of this position in the fourteenth
book of the Pandects, titie second, ad Legem Rhodiam de Jactu,
where, in a case of maritime law, put to the emperor Antoninus,
he answered " Lege id Rhodia, quas de rebus nauticis praescripta
est, judlcetur ; " plainly importing, that the doctrines of the Rhodian
Laws on this subject had been recognised 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 titie of the
Pandects, where we should expect to find them, if they had been
adopted in mass, contains nothing but the commentaries and opin
ions of Roman lawyers, on the principles, wliich regulate the ap
plication of the law of jettison, and some few other nautical ques
tions 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 an
tiquity, 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 1 It scarcely fills a
half dozen short tities in the Pandects, and about as many in the

MARITIME LAW. 249
Justinian Code,* mixed up with matter properly appertaining to
other subjects.
The most Interesting and important are the tities in the Pandects;
three of which treat of the responsibility of the owners and em
ployers (exercitores) of ships for the safe keepUig 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 niaritirae 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 wUl, however, find the elements of
our own law on this subject, expressed with exceUent sense, and
often illustrated by apt examples. And brief, indeed, as are these
texts of the civU 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 littie 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 comprehen
sive liberality, is owing to a familiarity with the Roman digest,
with that beautiful distribution of civU justice, which the labors of
Labeo, Capito, Proculus, Gains, Papinianus, Paulus, and Ulpianus
so much contributed to perfect and adorn. The whole of our own
law of contracts rests upon Roman foundations ; and we daUy
feel, how much of the enlarged equity, which pervades the doctrines
* The principal titles in the Pandects are, Lib. 4, tit, 1. Nautse, caupones, stabu-
larh, ut recepta restituant. Lib. 14, tit. 1. De exercitoria actione. Lib. 14, tit. 2.
Ad legem Rhodiam de jactu. Lib. 22, tit. 2. De nautico foenor :. Lib. 47, tit. 5.
Furli 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
exejci'o ii actione. Lib. 4, tit. 33. De nautico foenore. Lib. 6, tit. 62. De
hacreditatibus decurionum, naviculariorum, cohortallum militum et fabricensium.
Lib. 11. De naviculariis seu naucleris pubHcas species transportantibus. Varus
titulis. There are a few supplementary regulations in the Novels and Authen-
tics of Justinian, on the subjects of maritime loans aud the plunder of wrecks.
32

250

REVIEWS.

relative to navigation, charter-parties, liens, and shipments, is de
duced by a regular descent from the lines of Tr.bonian.
Let it not, therefore, be imagined, that the maritime law, as ac
knowledged and piaci'.sed upon by the most enlightened nations of
the present day, \^as produced j;er saltum, 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 pres
ent 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 thou.-and points through the dim vista of past
ages ; and phUosophy 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 Em
pire, and the introduction of the feudal system, seem for a while to
have suspended the operations of commerce. But as soon as man
kind 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
mercantUe usages into some regular system, at least for its own
government. One of the earliest, if not the earUest, and, consider
ing its age, the most extraordinary collection of this kind, is the
Consolato del Mare. The question, what country is entitied to the
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 pub
lication has been enveloped in the like obscurity. It has been vari
ously assigned to a date, as early as the tenth century, and as late
as the fourteenth. Vinnius and Cruslus appear to have thought,
that it was composed in the time of St. Louis, King of France.
Grotlus 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, endeavours to establish, that U is a
revision of the maritime code, which existed in very early times in

MARITIME LAW. 251
the republic of Pisa. On the other hand, Capmany, an eminent
Spanish jurist, asserts that the compilation was first made at Barce
lona ; and in this opinion he is followed by Boucher, the learned
editor of a late French translation. The earliest ed:t'on of the
work, which can be traced by the diligence of its editors, is ad
mitted on all sides to be that published by Celelles at Barcelona in
1494. This, as Boucher informs us, is the original of aU editions
and translations, that have subsequentiy appeared in the Castihan,
the Italian, the Dutch, and French langua.;es. The English lan
guage has not as yet been honored by any translation, except of
two chapters on prize law by Dr. Robinson.*
The titie of this curious collection, Consolato del Mare, (Consulate
of the Sea) is derived from the name consolato, (consulate or con
sular court) which was, by almost all the commercial nations of the
Mediterranean, given to their maritline 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 UI
chosen mass of maritime usages and positive ord, nances of the mid
dle ages, or of times very littie enlightened, which are now obsolete,
and of no authority. Bynkershoek, in his usual bold and deter
mined manner, treats it with as little ceremony. After approving
of its decision in a particular case, he adds, " Vellem omnia, quae in
Ula farraglne legum nauticarum reperiuntur, seque proba et recta es-
sent, sed non omnia ibi sunt tarn bonae frugls." To these opinions we
might justly oppose the discreet yet liberal praise of Casaregis,
Emerigon, 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 imme
diately incorporated into the usages and the ordinances of all the
maritime nations of the continent, pronounces an eulogy on its
merits, which no formal vindication can surpass. Emerigon very
justiy states, that its decisions have united the suffrages of all na-
* The principal editions, as they are collected by the best authors, are, the edi
tion of 1494 by Celelles, printed at Barcelona iu 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 1377 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 Castihan at Madrid; of 1808 by
Boucher in French.

252 REVIEWS.
tions ; and it has furnished ample materials for the maritime ordi
nance of France of 1681, an ordinance, which has imraorlallzed
the ministry of Louis XIV., and which, perhaps, more than
the maritime code of any otiier 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 assert
ing 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 justiy sought to establish, and which has stood
approved to the good sense of the three greatest civihans of
modern times, Grotius, Bynkershoek, and Heineccius.
As the Consolato del Mare is a rare work in our country, it
may not, perhaps, be useless to give a general outiine 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 chap
ters.* Of these the first forty-three chapters do not, properly
speaking, belong to the original collection, but treat of the juris
diction and forms of proceeding in the consular court of Valentia.
The forty -fourth chapter is the proper comraencetnent 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 ap
proved 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 cus
toms, in the course of which wUl 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 freight for his person, as well as merchan
dize, is denominated a passenger." The work then proceeds, in
an order, not very exact or methodical, to state the doctrines rela
tive to the ownership, building, and equipment of ships ; the
* In the edition of Boucher, which is a translation from the original edition of
Celelles, the whole number of chapters is 297.

MARITIME LAW. 253
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.
Such is the Consolato del Mare, tiie grand reservoir, from which,
as we have already Intimated, have been drawn the principal ordi
nances 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 ear
liest 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.*
The history of commercial jurisprudence, since the publication
of the Consolato, including therein also the law of biUs of ex
change and promissory notes, would be very interesting and instruc
tive, at least to the professional reader. He would there have an
opportunity to trace the numerous rivulets, which, in dlfterent ages
and nations, have contributed to form the vast and perpetually
increasing stream of coraraerclal 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 unre
mitted labor, to the development of those principles of moral
propriety and justice, which distinguished this branch of the law.
Above all, he would, perhaps, catch a spark from the altar, which
would light him on stUl farther in the paths of virtuous glory, and
* Stypmannus, Gibalinus, Ausaldus and Casaregis suppose, that the contract of
insurance was introduced in the fifteenth century. Emerigon relies on this
article in the laws of Wisbuy to establish the contrary. Marshall, in his Insu
rance, (p. 18,) doubts, whether the latter part of this article, as it stands iu 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.

254 REVIEWS.
would stimulate him stUl 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 bustie
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 uninstructlve 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 distin
guished civUian of Belgium, pubUshed an edition of the principal
texts in the Pandects and Code, on nautical affairs, and enriched
them with an ample coraraentary, 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 reedited with supple
mentary 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.* Vinnius himself com
plains of these deficiencies: " Apparetque ex toto illo PeckUopere,
non vidlsse eum ullas alias leges de rebus maritimis quam quae in
Corpore Juris Justinian! continentur." He then very justiy re
proves the long digressions, in which Peckius had indulged ; but
concludes : " Ostendlt 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 v/ork 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,
* 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 pubhshed in 1556 ; and repubUshed, with the commentary
of Vinnius, in 12mo. at Leyden, in 1647. Vinnius died in 1657.

MARITIME LAW.

255

most probably compUed ; 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 U into Latin, and put it at
the beginning of the third volume of his works wUh the notes of
Van Leeuwen and Malhleu de Vicq.
Straccha and Santerna, the first an Italian, and the last a Portu
guese 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 subsequentiy at
Amsterdam in 1679.* The principal tracts of Straccha are
De Mercatura, De Nautis, De Navibus, De Navlgatione, 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) mer
chandising may be; 5., of the contracts of merchants; 6., of man
dates, or orders on coramission ; and 7., of some miscellaneous
questions relative to merchandise. In the second tract, (De Nautis)
he treats generally of the rights, duties, and responsibUity of the
masters and mariners of ships, arising from their contracts or their
defaults. In the tiiird (De Navibus) he treats of the ownership,
building, repairing, and freighting of ships, and other contracts
relative to shipments. In the fourth (De Navlgatione) he dis
cusses 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 ex
amines every sentence by itself and in a perpetual gloss, or com
mentary, explains the doctrines of insurance applicable to the
contract. The treatise of Santerna, which is entitied De Assecu
rationibus et Sponsionlbus Mercatorura, 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
* The title of the work is " Benevenuti StracchE aliorumque clarissimorum
jurisconsultorum de mercatura, cambiis, sponsionlbus, creditoribus, fidejussoribus,
debitoribus, decoctoribus, navibus, navlgatione, assecurationibus, subhastionibus,
aliisque mercatorum negotiis, rebusque ad mercaturam pertinentibus, decisiones
et tractatus varii."

256 REVIEWS.
Code, wherever U 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 vralment 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, entitied " 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 bot
tomry, in which the various doctrines are examined in a very scien
tific manner, and with a practical accuracy, greatiy surpassing aU
preceding works on the same subject. Tlie author of the work,
and the exact time of its first publication, are unknown. In 1647,
Cleirac 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 lant d'adresse el de
subtilite tant dillce, que I'auteur d'icelui, en expllcant les contrats
OU polices d'assurance, a inslnud et fait entendre avec grande facilite
tout ce que est des autres contrats rnaritiines, et tout le general du
commerce naval ; de sorte qu'il n'a rlen orals, si ce n'est seulement
d'y mettre son noni pour en conserver la memoire et I'honneur qu'il
merite, d'avolr tant oblige sa patrie, et toutes les autres nations de
I'Europe ; lesquelles peuvent trouver en son ouvrage I'accompllsse-
ment de ce qui manque, ou la correction de ce qui est mal ordonne
aux reglemens, qui chacune a fait en particuUer 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.* And to his collections and commentaries Lord Mans
field was unquestionably indebted for many of the best principles
of coraraerclal law, which he has infused into the English system. It
is most obvious, from his decisions, that he had studied Cleirac with
extraordinary attentlon.f 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.

* 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.
t See, among other cases, Luke v. Lyde. 2 Burr. R. 882.

MARITIME LAW.

257

About the middle of the sevententh century, appeared the works
of Stypmannus, of Loccenius, of Kuricke, and of Roccus, on
maritime law.* Stypmannus, in his treatise, entitied Jus Mariti-
mum, discusses in a prolix manner most of the 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 ordi
nance of 1614. The second, Diatriba de Assecurationibus, is a
very short discussion on the law of insurance. The third, Reso-
lutlo Questionum Illustrium ad Jus Maritimura 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 insig
nificant criticism. One of these " Ulustrious 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 burled
matter of more worth and virtue under a cumbrous load of scho
lastic learning and metaphysical subtUties. 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 NotablUa,)
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 utUity
even in our days. His learned Dutch editor, Westerveen, has
justiy observed of these treatises, " Usque casus quotidianos tam
breviter et absolute complexus est [Roccus], tam luculenter
* Stypmannus was first published, as VaHn says, at Stralsundin 1661. Wester
veen, io his edition of Roccus, refers to an earliei' edition, printed at Gryphiswaldia
in 1652. Loccenius was first published, at Stockholm in 1652; Kuricke, at Ham
burg in 1667 ; and Roccus, at Naples in 1655. 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 Maritimo
Fasciculus.
33

258 REVIEWS. '
proposuit, tam dUucide expUcavit, ut omnium Scriptorum indicera
seu compendium fecisse videatur." * Roccus has, indeed, drawn
Uberally from his predecessors, and from none more frequently, or
more correctly, than from Juan de He via Bolanos,f a most learned
and exceUent 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 marifime
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 tiraes of Bynkershoek and Cas
aregis, two of the most eminent civilians, that ever adorned the
courts of any nations. . In the short review already made of mari
time 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 readUy done this, not because there are not very
ample materials for historical and critical disquisition, but because
war, and conquest, and national calamUy, have but too frequently
brought them before the public. Who, indeed, is there, that is
ignorant of the fame, or the wrUings, of Grotlus and Puffendorf?
Bynkershoek has immortalized himself by his treatise De Foro
Legatorum, and bis Questiones Publici Juris de Rebus Bellicis.J It
is not, perhaps, as generally known, that he has written a very neat
sketch of the law of bottomry, and some very exceUent disserta
tions on the subject of commercial law, and particularly of insurance.
* 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. Westerveen 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
Assecui-atione, by Joseph R. IngersoU, Esq. of Philadelphia.
t 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 insti
tute of the law of Spain, called Curia Philippica.
\ 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 entitied to the attention and study of American lawyers ?

MARITIME LAW. 259
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, " Haec etiam adhibuU, qui ante aUquot annos hunc contractum
commentariolo illustrare conatus est ; sed, sat scio, manes ejus non
offendam, si et ipse ex penu meo aliquid proferam ; Uie mercatorem
egit, ego cum maxirae jurisconsultum agam, et sine jurlsprudentia
etiam haec 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
wkhout 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 pub
lished in four folio volumes, and consist of two hundred and twenty-
six discourses on various topics of commercial law, of a Latin trans
lation of Weytsen on Averages, as already mentioned, of a new
edition of the Consolato del Mare, with an excellent explanation
or commentary (Spiegazione) of his own, and a treatise, entitied
" II Cambista istrulto," upon bills of exchange, and other com
mercial 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, uniU the whole subject
matter is exhausted. Rarely have we looked into his works upon
* The best edition of Casaregis's works is that printed at Venice in 1740 (which
is now before us) in 4 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 ResoluUones ad Statuta Januas de
Decretis ac de Successionibus ab intestato.

260 REVIEWS.
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 aU contradiction, the best
of all the maritirae authors. In recoraraending hira, therefore, to
the dUigent study of our own lawyers, we are confident, that we do
them a substantial service, which wUl 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 wkh great respect and approbation. We allude to Targa,
who, in his Reflections on Maritime Contracts, (Ponderazioni sopra
la Contractazlone Marittlraa,) 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 prac
tice, by coUecting the forms of the various contracts, with hints for
their proper application. He is generaUy esteemed as an indus
trious and correct author ; but his fame seems lost in the superior
blaze of his iUustrious countryman.*
France was, during the seventeenth century, behind Italy, in her
attention to the great interests of commerce ; and her truly admira
ble 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. MarshaU, 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." ExceUent, however, as this code is, it stood in
need of a philosophical commentator, to explain its principles, to
follow them out into aU their minute consequences, and to iUustrate
and strengthen them by the lights borrowed from the whole body
* The works of Targa are not very common in our country. A good edition
was pubhshed 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.

MARITIME LAW.

261

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 equaUy high with the positive regulations of the royal
ordinance. The iUustrious author published his great work in 1760, and it
immediately circulated over all Europe. He has justly observed,
" Un commentaire sur I'ordonnance de la marine est un de ces
projets hardls, dont le succes peut seul justifier I'entreprise. L'au-
teur des notes (imprimees in 1714) sur cette ordonnance, loin d'en
avoir compris la difficulte, U ne I'a pas meme soup9onnee, et
j'avoue qu'elle ne m'a ete bien connue, que lors qu'il n'etoit 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 vviU 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.f 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,
* Monsieur Valin died in 1765. His works are 1., " Nouveau Commentaire
sur rOrdonnance de la Marine," in 2 vols. 4to., first printed in 1760; the edition
before us is 1766. 2., Traite des Prises, in 2 vols. 8vo., printed in 1763. 3., Com
mentaire sur la Coutume de la Rochelle, in 3 vols. 4to., printed in 1768.
t Lord Mansfield came upon the bench on the 11th of November, 1756.

262 REVIEWS.
for its solid principles and equity. Lord Mansfield was an accom
plished scholar, whom Pope has elegantiy praised in lamenting,
" How sweet an Ovid in a Murray lost ! "
He was an exceUent 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 aU 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. What
ever 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 in
structive and interesting, and rarely without producing an instanta
neous conviction. He broke down the narrow barrier of the com
mon law against the prejudices of the age, and infused into U an
attractive equity, which it seemed to aU his predecessors incapable
of sustaining. AU Westminster HaU 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 piUar 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 tech
nical 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 immortaUty, 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
• Lord Mansfield died on the 20th of March, 1793, in the 89th year of his age.

MARITIME LAW.

263

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 exquisUe 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 run
ning his splendid career, two eminent scholars on the continent
were devoting themselves with equal ardor to the pursuit of com
mercial jurisprudence. We aUude 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.* Whether Lord Mansfield was acquainted
with the works of either of tiiese iUustrious 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 WiUiam Jones, in his Essay on BaUments,
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 treatises], tiiat, if my undissem-
bled 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,
Emerigon and Pothier were unknown to Lord Mansfield, they have
since his time instructed both the lawyers and the judges of West
minster HaU. 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 hirn ?) whose acknowledged learning

* The treatise of Em6rigon is entitled Traitfe 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 Emferigon.

264 REVIEWS.
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 ex
hausted more time than we can properly devote to such specula
tions. We quU 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 wiU 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 learn
ing 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 and his acquirements. We should, indeed, have been
better pleased, if the notes had been more extensive, and had em
braced 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 civUity to insist, that he ought to have made
it StUl more valuable. Mr. Frick wiU 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 caUed
for, we think our hint wiU 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

MARITIME LAW. 265
have made the subject of maritime law the study of their Uves ;
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 sys
tematic form, relative to ships' papers, on which depend the for
tune and the peace of so many famUies ; for the ships' papers,
with reference to the 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 litera
ture 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 contri
butions, which Mr. Jacobsen had levied from the English authori
ties. He appears perfectiy 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 Eu
rope 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, U 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 exclu
sively to the doctrines and opinions of that celebrated man, whose
unrivalled decisions on maritime law, Uke the judgments and opin-
34

266 REVIEWS.
ions of the Roman jurists in the civil law, will constitute an essen
tial part of ma;itine law for centuries to come ; if was hecause 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 p;-ejudlces
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 por
tion of the work to an English lawyer. It is a remarkable fact,
that no systematic treatise upon the law of prize has, as yet, ap
peared in England. The very superficial, hasty, and imperfect
sketch of Mr. Chitty does not deserve the title, which it bears,
and has been egreglously 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 connex
ion with his extensive notes on prize law in his Reports, it ap
proaches 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 EngUsh bar ?
What, however, constUutes the principal value of Mr. Jacob-
sen's work to an American lawyer, is the minute accuracy and
fullness, with which it gives us the positive and customary law of
all the maritime nations of the continent. And this, in our judg
ment, is a most interesting, and, in a practical view, a most impor
tant accession to our juridical Uterature. Of the maritime law of
Russia, Prussia, Denmark, Sweden, and Germany, we have hUh-
erto known very Uttle. Yet with all of them we carry on an
extensive trade ; and the principles of their jurisprudence as to
marUirae 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
perpetuaUy arising in our judicial tribunals, where the positive
regulations or usages of other commercial nations would greatiy

MARITIME LAW. 267
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 usa;^e oui^lit to Incllhe the scale. We
owe, indeed, a full moiety of our present commercial law to the
positive ordinances or u^^ages of Fra.ce, Ita'y, and Spa n, 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 estabUsh a nearly uniform system of
commercial jurisprudence throughout the whole civUized world.
We have no hesitation, therefore, to recommend Mr. Jacobsen's
treatise to the favorable attention of our lawyers and merchants.
They cannot fall 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 gentieman 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 para
phrase, 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 dangerous ; 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.

REVIEW

OP the REPORTS OF CASES ADJUDGED IN THE COUET OF CHANCERY OF
NEW YORK, BY WILLIAM JOHNSON, COUNSELLOR AT LAW. VOLS. I, II,
AND III.

[First published in the North Araerican Review, 1820.]
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 dUigence and enthusiasra, which excite the
adrairation 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 vigUance, and a sacred reverence for juridical
authorities. For him the easy course of general reasoning, popu
lar 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 equky, measured by his own abstract notions of what is
fit or reasonable. He contents himself with administering the
common law, as he finds U, without the rashness to presume him
self wiser than the law, or the vanity of distinguishing himself by
innovations. His life has been devoted, sedulously and earnestly,
to professional studies. He has fathomed the depths and searched

chancery jurisdiction. 269
the recesses of the ancient law, the black-lettered relics of former
tiraes, 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 sUentiy 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 GlanviUe, and Fleta, and Britton, and the
almost classical Bracton. He has dared to examine the Abridg
ments of Brook, 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 princi
ples 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 commer
cial 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 VaUn,
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 di.scernment of the judge, or the
attractive excellence of the materials. If his attainments had
found their boundary here, they would have entitled hlra to great
praise ; but he has nobly extended his inquiries beyond the com
mon 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 an-
dquarian 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 marveUous system of doctrines, which
Justinian collected wUh so much care, and which stands unrivalled
in the worid for its general equity, and nice adaptation to tiie ne
cessities of mankind ; a system, which was gradually matured by
the labors of jurists and praetors, during centuries, in which Rome

270 reviews.
was the mistress of the worid ; and which had the singular advan
tage of being the combined results of experience, and general rea
soning, and judicial interpretation, aided very Uttle 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
triumphantiy sustained. They will perceive the vivid lights,
which U 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 raan, with such a mind, at once liberal, com
prehensive, 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 thera the most persuasive equity ; — it re
quired 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, who had
devoted themselves to courts of equity. In general, the ablest
men found the courts of common law the most lucrative, as weU
as the most attractive, for the display of their talents. They con
tented theraselves with occasional attendance at the chancery bar;
and placed their solid fame in the popular forura, where the public
felt a constant interest, and where the great business of the coun
try 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 dis
tinct judicature, there is great reason to fear, that the practice was
very poor, and the principles of decision buUt 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 settied analogies of the system, than upon the char
acter 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

chancery jurisdiction. 271
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, pre
viously 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 tiiere had been
a constant, setded channel, in which it had previously flowed.
Nor is it difficult to account for this state of things, consistentiy
with the highest deference for the learned judges, who had admin
istered equity. In England, the court of chancery is, and for a
long time has been, the most active, 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 mairlage settiements, apportioning
the property among all the children, and looking to very remote
contingencies for their completion. Tlie 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 marrlage-settiement, 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, wUhout the direction of a court of equity; and that,
in complicated settiements and wUls, there must be a great variety

272 reviews.
of clauses, whose exact meaning and extent can never be ascer
tained, until they receive a judicial interpretation. This is an
inexhaustible source of hostile or amicable litigation ; and of Uself
would create raore business than the diligence and talents of a
half dozen chancellors could despatch, wUliin any reasonable time.
And it often happens, with aU the exertions of the chancellor, the
master of the rolls, the vice-chancellor, the chancery court of
the exchequer, and many local courts of equity, that suits of this
nature are still pending, after the lapse of twenty years, and some
times survive all the original parties, and their immediate de
scendants and representatives.
It is fortunate for our country, that the genius of our insti
tutions, and the happy structure of our laws of descents, by
dividing and subdividing property among Immediate and remote
relatives by equitable rules, sUenily 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 difficul
ties, rather than to accomplish any valuable purposes. We may,
therefore, easily see in the past circumstances of our country, very
strong reasons, why the chancery jurisdiction has hitherto had hut
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 gov
erned 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 gener
alizing 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 goods sold in
smaU parcels. Policies of insurance, biUs of exchange, and

chancery jurisdiction. 273
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 appointraent. 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
fruitiess 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 incli
nation to become either an equity lawyer, or an equity judge. In
better times, many years must have elapsed before there was a
regidar 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 of Mr. Chan
cellor 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 aUuded to some of these sources.
35

274 reviews.
But, before we proceed to answer this inquiry, it may not be im
proper to advert to a few more of the subjects of chancery juris
diction in England, which are not likely to have an extensive
operation here, or, at least, to be drawn here within the same juris
diction. We may at once disraiss all consideration of the coramon
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 recognisances, &.c
These properly fall within the cognizance of our courts of comraon
law, and are no appendages of chancery. In respect, also, to the
statutable jurisdiction of the chancellor, such as that under the
bankrupt laws, littie need be said ; because it must depend upon the
will of the legislature, to whom shall be entrusted the suraraary
powers exercised in such cases. Another iraportant 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 iramediate delegate of the crown, acting
as parens patrice. We allude to his jurisdiction in cases of charita
ble uses, a subject of great extent and difficulty, and of the deepest
interest to the whole community. 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, 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 aU 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 charita
ble uses of 9 Geo. IL, ch. 36., he emphatically concludes with the
following remarks — "And it deserves the consideration of every
wise and enlightened Araerican legislator, whether provisions simUar
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

CHANCERY JURISDICTION. 275
danger, and from the same natural causes, which are for ever 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 admin
istration of their charities by trustees and by corporations, and
which parliament are now seeking to redress ; and let us ask our
selves, 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 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 fuUest 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 for
ever 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 well-wishers 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 scien
ces. But this is not the time or occasion for such a discussion.
At present, we must go dryly on with our examination of the chan
cery 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 diUgence and their virtue.
There is another authority, which has been, from time imme
morial, 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

276 REVIEWS.
of their persons, and the management of their estates, and the
protection of their rights. Of an analogous character is the au
thority 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 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 conven
ient, that it is highly probable they wiU always retain, if not an
exclusive possession of this jurisdiction, at all events, such a con
current 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 settiement 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 aqua et bono. We allude to bills for specific per
formance of contracts, in contradistinction to mere actions for dama
ges 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 littie 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 compUance 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 con
ception of the obligation of contracts, and of the right of the par
ties to stand upon their own stipulations, as well as to general
convenience and justice, that one wonders, that such an extraordi-

CHANCERY JURISDICTION. 277
nary 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 entitied 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 fortultus,)
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 intelli
gible 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 reluctantiy denied,
after the lapse of more than thirty years, when all the original par
ties were dead, and the land, which was a wilderness, was become
a settied 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. 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 cor
responding degree in our country. In England, from causes already
attended to, conveyancing has become extremely coraplicated ;
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,

278 REVIEWS.
(especially if the estate has passed through two or three great
landholders' hands, or has been linked to a marrlage-settiement,)
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 aU latent
defects, and gives a new start to the titie. But in many cases these
remedies are impracticable, and sometimes they fail, (as unfortu
nately happens in respect to remedies administered for physical
diseases,) even in the most skUful hands, and a latent taint first
infects, and, in the hands of a cunning solicitor, soon eats up or
destroys the titie, though cased, as it were, in its triple mail of
parchment, and surrounded by its concords and its vouchees.
Hence, it rarely happens, upon the purchase of an estate in En
gland, 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 hastUy imagine, into a few short deeds of a folio
page in length, but into volumes of dark and mouldy parch
ment, 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 attendant on the inheritance, or to be subsisting
for trusts, which are exhausted, or stiU 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 obsti
nate party to discover the titie, 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, accus
tomed merely to our local practice, it might seem otherwise. A
treatise has already appeared, or is just about appearing, (and a

CHANCERY JURISDICTION. 279
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 vender 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
abundantiy 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 difficul
ties, 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, v;hen the parties are a little quickened in their
course, and after reference to a master in chancery to report
upon the titie, and other interlocutory proceedings, a decree 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 foUowing re
marks of Tristram Shandy : " Upon looking into my mother's
marriage-settlement, in order to satlfy myself and reader in a point
necessary to be cleared up, before we could proceed any farther in
this history — / 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 talcen 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 tities 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 diflerent in our
own country. Tities 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 tities 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

280 REVIEWS.
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 per
formance 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 wiU long continue. A strict equity on this subject
is the best equity. It discourages sloth, and chicanery, and man
agement ; compelling parties 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 sub
ject, 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 de
parture from the common law, and ought to be granted only in
cases, where the party, who seeks it, has strictiy entitied 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 con
tracts 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 circum
stance." Having glanced, in a cursory manner, at some of the subjects of
equity jurisdiction, which wUl be found of but limited application
in tiie United States, we may now turn to other subjects, in which
it will for ever operate with a constant and salutary influence.
These are cases, where reUef becomes necessary, from accident, or
mistake of the parties ; cases of coraplicated accounts, whether
between partners, or factors, or merchants, or assignees, or execu
tors 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

CHANCERY JURISDICTION. 281
sinking their roots deep and firm through aU the foundations of
refined life and domestic relations ; cases, where bills of discovery
are indispensable to promote public justice ; and, lastly, cases,
where bills of injunction are the only solid security against irrepa
rable 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 equUy 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 succour the injured, to
interpose preventive checks against malice and oppression, or mis
taken clainls 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 adraitted 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 states
man, can fairiy 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 existing at law is inapplicable, or the estabUshed
forms cannot be pursued, there is an end of relief Now it is
very easy to see, that such cases must frequentiy 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 necessarUy upon principles
36

282 REVIEWS.
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 plain
tiff 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 judgraent against them in the aggre
gate, or without adjusting these equities, might lead to the most
mischievous results. Now a court of law cannot shape its judg
ments 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.
Farther, 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 compensation or a remedy. If in some
cases, as in ejectments, real actions, and replevins, it acts in rem,
it touches only the gross and palpable interests of property ; but it
cannot, and does not pretend to reach the subtUe rights growing out
of incidental trusts, or equitable claims and liens. If we are stiU
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 unhal
lowed usurpation. In short, such an inquiry might be at once
stopped by a question of another sort ; Why may not courts of
equity perform all the functions of a court of law ? But the true
answer is, that each is adapted to its own objects, and cannot ac
complish the objects of the other, without breaking in upon all the
settled analogies of the comraon 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 gene
ral UtUity 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 independ
ent estabUshment of such a court. At aU events, the subject wiU
more and more engage the attention of the legislature, as well as

CHANCERY JURISDICTION. 283
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 juris
prudence 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 Umits, 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 juris
prudence ; 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 popular
governments, the mass of the community are most unaccountably
wedded to it. The raaxim of comraon sense, as well as of pro
found investigation, is, Mlsera est servitus, ubi jus est vagum aut
incertum. And yet, what can raore tend to perpetuate this uncer
tainty, 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
apostacy from the law. Mr. Justice BuUer has, somewhere, em
phatically said, that he had a dread of hard cases ; they were the
shipwrecks of the law. The same observation appUes quite as
forcibly to the practice of mixing up all sorts of considerations and
circumstances in judicial decisions. It confounds all clear dis
tinctions 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 ad
ministered 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

284 REVIEWS.
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 imposUion ; if it may indulge in
notional equities, upon its own views of what raay 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
unskUful or rash 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 con
tracts ; and, what is a stUl raore 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 Uttie 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 instantane
ous 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 titie-deeds before they lock thera
up, and, what is of quite as much consequence, look at them dili
gently 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 bUl, that shall relieve us from all the ill effects of delay,
and forgetfulness, and hardship, and folly. Our laws, hitherto,
have secured only the vigUant, and not the sound sleepers. Vigi-
lantibus, non dormientibus, leges subveniunt. Now, U 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 chan-

CHANCERY JURISDICTION. 285
ceUor, such as Lord Eldon, or Mr. Chancellor Kent, would accom
plish ; 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 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.*
In the next place, we think, that the administration of equity
should be by a distinct court, having no connexion with, or depen
dence 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 reladons and objects. The prac
tice and proceedings have littie or nothing in common. The prin
ciples 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 undam.
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 isj 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 necessa
rily the same ; and 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

* It need not now (1835) be concealed, that this allusion is to the Hon. William
Prescott, LL. D.

286 REVIEWS.
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 entrusted 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 incon
venience 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 subject-matter, 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.
Novi- 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 wUl 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 aU 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 equUy. 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 wiU
not escape the attention of the convention, which raay 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 circum
stance as to the courts of the United States is, that, in six out of the
seven circuUs, state courts of equity have an existence, either con
nected with the courts of law, or with an independent organization.
So that the learned judges have the fullest opportunities of becom-

CHANCERY JURISDICTION. 287
ing famUiariy acquainted with the practice and principles of equity
through their whole professional career ; and, thus, may readily trans
fer 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 entrusted 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 ol 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 jealou
sies ; or that the decrees will be affirmed without much considera
tion, 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 pre
vent any undue ascendancy by either. England owes much of the
perfection of her jurisprudence to this striking feature in the struc
ture 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 faU to stir up in
ambitious minds.
While on this subject, we are disposed to recall the public atten
tion 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

288 REVIEWS.
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 repu
tation 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 pub
lic inquiry ? We doubt, whether there exists, in the whole Com
monwealth, at this raoraenl, a single regular series of the reports,
bills, and other proceedings of our legislature, which have been
printed at the expense of the governraent, 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
thera. It should be raade the special duty of our Secretary of
State, to have bound, and kept in his office, at least twenty copies
of aU docuraents printed by order of the legislature ; and to have
a transcript in bound volumes of all manuscript proceedings, re
ports, bUls, &c., acted upon in any shape, by the legislature at
every session, with a suitable index for reference. In this way the
next generation woidd 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 aUuded, 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 raade, the legislature has by law
cured sorae of the defects enumerated in the Report ; but the sub
stance of it is just as true now, as it was at that time. We transcribe
from U the following paragraphs, %vhich we commend to the careful
perusal of our statesmen and jurists.

"This Report was made by a committee, of which the writer of this article was
chairman.

CHANCERY JURISDICTION. 289
" 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 justice.
Whenever a complete, certain, and adequate remedy exists at law,
courts of equity have generally no jurisdiction. Their peculiar
province is to supply the defects of law in cases of frauds, acci
dents, misiaJces, or trusts. In cases of fraud, where an instrument
is fraudulentiy suppressed, or withheld from the party claiming
under U ; where an unconscientious advantage has been taken of
the situation of a party ; where a beneficial property is injuriously
misappropriated ; equity interferes, and compels complete resti
tution. 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, wUl, or otherwise, is confided to one person for the ben
efit of another ; where creditors are improperly preferred or ex
cluded ; 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 neces
sarily make that court an instrument of injustice, if the suit be
suffered ; and equity, to prevent such a manifest wrong, wiU
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, wiU
compel a discovery of the facts, and measure substantial justice
to all. Sometimes the administration of justice is obstructed, by
certain impediments 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
37

290 REVIEWS.
injured, pending a Utigation ; equity there interposes to preserve
it. Sometimes oppressive and vexatious suits are wantonly pur
sued, 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 univer
sal 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 constantiy accumulate ; and, unless the legisla
ture 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 Common wealth, no adequate remedy
exists at law to unravel long and intricate accounts between mer
chants 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 par
ties are equaUy honest, and equally wUling. Great evUs have
already arisen from this cause ; and stUl greater must arise, unless
equity be brought in aid of law. In cases of pecuniary and spe
cific legacies, no complete remedy lies to corapel a marshaUing
of the assets, or an appropriation of them according to the inten
tion of the testator ; and, where the interests of the parties are
complicated, great injustice must often ensue. In cases of trusts,
created by last wUls 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
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, whh 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

CHANCERY JURISDICTION.

291

of crafty chicanery. Perhaps, too, in assignments of dower and
partition of estates, where the tities of the parties are questionable
and intricate, or the tenants in possession are seized of particular
estates only ; it wiU 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 to a trial by jury is preserved inviolate ; and the decisions
of the court must be governed as much by settied principles, as
courts of law. Precedents govern in each, and establish rules of
proceeding. The reUef granted is precisely what a court of law
would grant, if it could ; for equity follows the laiv. 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, how
ever remote, before it ; and the power to adapt the form of its
judgments to the various rights of the parties, as justice and con
science 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.
Mr. Johnson, if we do not mistake, began the business of Report
ing 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 goodly 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 obliga
tions 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, per
haps, it raay be thought almost superfluous to say a word upon the
merits of his Reports. We wUl venture, however, to give them a pass
ing notice, at the hazard of repeating what almost every body knows,
and none would incline to disbelieve. He is a sientieman, as we

* The Reports of Mr. Johnson are now (1835) completed, and embrace thirty
volumes, including those stated in the text.

292 REVIEWS.
have the pleasure to know, of great literary accomplishments, weU
instructed in the law, and of most comprehensive research. He
loves, too, — and it is no inconsiderable praise in what are caUed
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 judgraent. His notes, too, are all
good ; so good, that we wish we had a great raany raore of them.
He leaves Uttie 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 the
materials of an independent judgraent. 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 necessUy 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 comraendable dUi
gence 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 opin
ions. It gives dignity to the bench, and certainty to the law.
Who, but jnust read with delight and instruction the opinions of such
men as Mr. Chief Justice Spenser, to say nothing of his learned co
adjutors and predecessors ? For ourselves, we have no heskation in
avowing the opinion, that the New York Reports, for the last twenty
years, wiU 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 weU considered and ingenious
arguments of the bar, or the deep reasoning and learning of the
bench, or the accuracy and abUity of the reporter. And as to the
chancery decisions of Mr. Chancellor Kent, they are as full of
learning, and pains-taking 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 atten
tion of our professional readers to the volumes, referred to at the be
ginning of this article. If we had room, we might be tempted to

CHANCERY JURISDICTION. 293
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 littie advantage, as in attempting to revise the sentences pro
nounced by courts of justice. The only fit and efficient tribunal,
except in very gross cases, seems to be that provided for by the
law itself, an appeal to a higher tribunal to review the sentence, or
to the same court to reconsider, at another time, its own judgments.
We cannot quit these volumes, however, without expressing our
gratitude to Mr. Johnson for presenting thera to the public.
No lawyer can ever express a better wish for his country's juris
prudence, than that it may possess such a chancellor and such a
Reporter.

REVIEW

OF A TREATISE ON THE LAW OF INSURANCE, BY WILLARD PHILLIPS.

[First published in the North American Review, 1825.]
The progress of coraraerce in raodern tiraes will appear more
surprising, the more minutely it is examined. It steadily advanced
araong the nations of Europe during the whole of the eighteenth
century ; and in the latter half notwithstanding occasional inter
ruptions 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 compeUed to
mourn the departure of the tiraes, 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, en
joyed the most signal triumph. Her merchants and mariners were
famiUar wkh the whole globe, with the Baltic and the Levant,
the Black and the White Sea, the Atiantic 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
probably short of the real state of the case to assert, that the com
mercial capital of Great Britain was quadrupled during the reign
of George the Third. Of the causes of this vast increase, k is
beside our present purpose to enter into an examination. But
there can be no doubt, that her navigation has been essentially
aided by the improved state of her manufactures, arising as well

PHILLIPS ON INSURANCE. 295
from superior sldll and workmanship, as from her wonderful inven
tions in cotton-machinery. She now exports to the East Indies
and China cotton goods of her own manufacture, to an iminense
value, which she formeriy imported from those countries. And
the unrivalled beauty and excellence of her fabrics have not only
suspended the use of those of foreign origin within her own do
minions, but have enabled her, in a great measure, to command all
the open markets of the world.
Under such circumstances, k 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 coramercia! activity
and enterprise, must have been under the protection of a weU
settied system of commercial jurisprudence. Philosophers and
practical jurists would ask, how it would be possible for the infi-
nke 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 littie progress in commercial law,
at so late a period, as the comraenceraent of the reign of George
the Third. Yet she had been a coraraerclal nation, to a conside
rable 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 sUght historical review will put this matter beyond any rea
sonable controversy. One of the earliest English works on raari-
tinie law is Malynes's Lex Mercatoria, published in 1622, in the
reign of James the First. Welwood had a few 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 comraon to aU the maritime states of Eu
rope. 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 farailiar on the Continent,
were not much known in England, except as usages among mer
chants. He laments, that negotiable promissory notes, which then

296 REVIEWS.
circulated araong all the commercial cities of the neighbouring na
tions, were strangers to the jurisprudence of England. In fact,
they were not introduced into general use, untU near the close
of the reign of Charies the Second. Lord Holt, in the case
of BuUer 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 cus
tom between London and Bristol, and k 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
negotlabUky of promissory notes ; and, in this very case of BuUer
V. Crisp, it was proved, that these notes had then 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 ahoui fifteen folio pages, to the subject of insurance. We do
not recollect, that, in the whole of the discussion, a single reference
is made to any English adjudication. It is, indeed, sufficienUy
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, enti
tled, " 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, untU after the lapse of a cen
tury. It is altogether a practical treatise, referring for authority to
the coramon 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, pub
lished 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, littie progress
had been made in the true understanding of this branch of the

PHILLIPS ON INSURANCE. 297
law. Indeed, its real importance was so imperfectiy estimated by
the common lawyers, that Molloy triumphantiy 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, &tc., is pro
vided for." This would be strong language to use even in our
days, when the legal construction of the terms and the risks of
policies has been settied, after very numerous and expensive litiga
tions. 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 coraraerclal law, the information given by these treatises
is miserably defective. It is given in three or four chapters, con
taining Uttie more than abstracts from the laws of Oleron, and
from the short maritime tities in the civU 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 sub
stance of all English elementary collections of maritime jurispru
dence, 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 civU
law of bailments into the common law, led the way to a more
exact understanding of the law of shipping ; but the actual appli
cation of his principles belongs to a later age.
That there is no exaggeration in this statement of the uncer
tainty and defects of the English law on maritirae subjects, wUl
be still raore fully evinced by reference to sorae of the best authors.
Mr. Justice Blackstone, in his very elegant and classical Commen
taries, a work professing to contain a summary of the principles of
English law, treats the subject of insurance in a single paragraph ;
38

298 REVIEWS.
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 greatiy improved by a series of judicial decisions,
which have now established the law in such a variety of cases, that,
if well and judiciously coUected, they would form a very complete
titie in a code of commercial jurisprudence. But, being founded
on equitable principles, which chiefly result from the special cir
cumstances of the case, it is not easy to reduce thera to any
general heads in raere elementary treatises." Such was the
view of a very corapetent 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 poli
cies of assurance in the reign of Queen Elizabeth, and its hav
ing subsequentiy 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 EUzabeth 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 terras confirms these observa
tions. After referrino to the establishment of the two great En-
glish insurance companies by the statute of 6th George I., ch. 18,
he proceeds to say, " From this time, it may be reasonably sup
posed, that all suits on policies of insurance were brought in the
courts of comraon law ; and yet but few questions on this subject
appear to have been deterrained in the courts of Westminster,
before the miiddle of the last [eighteenth] century. Whether this
arose from the number of insurances in Entrland beino inconside-
rable, compared to what it has since become, or from the parties
being still in the habit of settiing their difference by arbitration, or
from both these causes united, it is not now easy to determine."
Mr. MiUer gives a similar view of the English law, and in marked
terms attributes its great improvement to Lord Mansfield; and

PHILLIPS ON INSURANCE. 299
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 slov/er 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, strictiy
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 extraordi
nary, is the fact, that almost all the iraportant general principles of
coinraerclal 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 repub
lished by Cleirac, in his Us et Coutumes de la Mer, in 1671. In
1673, Louis the Fourteenth published his Ordinance upon Com
merce, which, among other things, deals largely upon the doctrines
of bUls 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 col
lected in a most systematic and masterly manner. It would be a
very narrow and unjust view of these ordinances, to consider them
as raere 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 busi
ness, and the necessities of trade, had gradually introduced into
favor among all modern maritime nations. Yet the English com
mon lawyers, if not profoundly ignorant of the value of this code,
then passed k by with obstinate indifference, and contented them
selves 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, especiaUy 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 daUy made here on adventures by foreign .ships, as
well as others, whose risks are wholly determinable in foreign do-

300 REVIEWS.
minions." 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 fallibUky of the system. It is, that the
common law was an utter stranger to the principles of commer
cial jurisprudence, and slowly and reluctantly admitted them into
its bosom ; so that the age was always greatiy in advance of the
doctrines of the judicial tribunals. The ancient law dealt alto
gether in feudal tenures and doctrines, abounding in scholastic
subtUties 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 stUl more narrow and unsatisfac
tory mode of enforcing them. Instead of widening its channels to
accommodate the active business of Ufe, the whole was compelled
to pass, as it might, within the ancient boundaries. The subtUties
of pleading, the difficulty of enforcing various defences, and the
inconveniencies of screwing down general merks into established
forms, embarrassed 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 coraraerce had embarked vast inter
ests in trade, it found itself without any encouragement from the
law, and endeavoured to work its way to its rights and its duties, by
the aid of lights reflected from other countries. English merchants
became famUiar 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 recognised 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
universaUy admitted, of giving equitable defences in evidence,
and sustaining equitable claims in the action of assumpsk, would

PHILLIPS ON INSURANCE. 301
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 woidd 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 Ue for any
breach, untU 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 note for money, payable by instalraents, untU 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 con
tract ; and to support an action for each instalment would be to
make the contract divisible. Such a conclusion, though readUy re
concilable wkh 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 iu supporting the new device of the action of general
assurapsk, the history of which has been given, with great abUity,
by Lord Loughborough, in the case of Rudder v. Price, in Henry
Blackstone's Reports. How utterly inadequate raust such a sys
tem have been for the infinite diversity of contracts in our day !
If the difficulties, wdiich have been adverted to, applied to con
tracts 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.

302 REVIEWS.
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 hampered 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 law merchant is a part of the common law of
Enoland ; and ray Lord Coke has spoken of it in this manner in
his Instkutes ; 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 comraon 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 tirae to time established among merchants, and which,
from their convenience, policy, and consonance with the general
system, are proper to be recognised 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 engrafted into the old stock
of the law by the skUl of philosophical, as well as practical, jurists.
One of the leading cases, in which there is some flourish raade
about this maxira, that the law merchant 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 raerchant himself or all the company, or
any one in particular, raay be charged to pay that; and he showed,
that one raerchant was factor of the company, of which the defen
dant was one, and that merchant did substkute one G., to whom
the plaintiff delivered £100 upon a bUl of exchange, to which biU
one B., being one of the company, set his hand in England, and so
the action accrued to the plaintiff. The defendant pleaded, nil

PHILLIPS ON INSURANCE. 303
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 biU 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 littie did the common law
recognise 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 comraon law make a substitute, the substitute is not charge
able, 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 com
pany 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 raay send for the raerchants to know their custora, 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, independ
ently 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, which of kself would almost ex
tinguish the negotiability of bills, it would sound very odd at this
day to hear any such doctrine assumed, as that respecting the bad
ness 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 substkute, bind the part
nership, for which he acts ; and the acts of a partner in the partner
ship 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 baUiffs and customs, to which the old lawyers

304 REVIEWS.
clung with a pertinacious idolatry. The truth is, that these gentie
men were, from habit and professional feeling, wedded to the artifi
cial 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 administra
tion of insurance law, during the days of Lord Mansfield, and of
the improvements made by hira. We do not know, that it can be
done wkh raore brevity than by quoting an extract from Mr.
Park. " In former times," says he, " the whole of the case was left
generaUy to the jury,* without any minute statement from the
bench of the principles of law, on which insurances were estab
Ushed ; and, as the verdicts were general, it was almost impossible
to determine from the reports we now see, 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, ivho 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 coun
sel to consent to a special case, &tc. &,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 iraportant questions are now not hastily and unadvisedly
decided ; but the parties have their case seriously considered and
debated by the whole court ; the decision becoraes 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."

* Very much as it used to be within our early recollection in the courts of
Massachusetts.

PHILLIPS ON INSURANCE. 305
The commendation of Lord Mansfield, which this extract im
plies, falls very far short of his real merits. The change in the
course of proceedings did much ; but the genius, liberaUty, and
extensive learning of this extraordinary man gave a new and en
during 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,
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 suc
cessors have here and there added some pUlars to the edifice ;
but the plan, the proportions, the ornaments, the substructions, aU,
that is solid, and fundamental, and attractive, belong to him, as the
original architect. Standing in the teraple of commercial law, the
most sober jurist, while contemplating Lord Mansfield's labors,
might with enthusiasm exclaim, Si monumentum quceris, circumspice.
Dropping, however, figurative language, we may with plain gravity
venture to suggest a doubt, whether the deviations from his doc
trines, 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, intel
ligent, and learned magistrate ; but from habit, and education, and,
perhaps, original cast of mind, he does not seem ever to have en
tered 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 EUenborough 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 exten
sive ; 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
39

306 REVIEWS.
mind, but devoted to England, and feeling Uttie enthusiasm and
less curiosity to embark in foreign studies. The times too, in which
he lived, were not propitious to any extensive researches into con
tinental jurisprudence. They were times of deep political and
national struggles, when the spirit of war and conquest attempted
to overturn the estabUshed 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 wUl 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 raen, to look
down, soraetimes with contempt, but more generaUy with indiffer
ence, upon the usages, laws, and institutions of other countries.
Nil admirari is not always a safe or useful national raotto. The
English bar is not exempt from this infirmity, and betrays it some
times, when it would be more honorable to seek instruction from
foreign sources. It is curious to observe, how Uttle of foreign
jurisprudence is brought into the discussions of their courts of com
mon 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 I Ireland is separated but by a
narrow strait. Her jurisprudence is in substance that of England.
Her most distinguished lawyers and judges have been bred in the
English Inns of Court. In eloquence, in learning, in general abUit}',
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 EngUsh society to his elevated rank in the
House of Lords, we scarcely recollect any in the course of our read
ing. Why should they not be cited ? Was Sir John Mltford, 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 distin
guished, as an Irish chancellor, than when he filled the office of a
baron of the EngUsh exchequer ?

PHILLIPS ON INSURANCE. 307
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 decis-
sions of English judges are alone of authority ; and it is unwise and
impoUtic 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 justiy refuse any foreign admixture. But no one will
be so rash as to advance a pretension of this sort. The common
law is graduaUy changing its old channels, and wearing new. It
has continual accessions on some sides ; and, on others, leaves behind
vast accumulations, which now serve Uttie 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 be
come of real actions, with all the complicated apparatus of proceed
ings, 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 aU
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, in
Lord Coke's time, and in eariier periods, exercised all the inge
nuity of the profession ? In a practical 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 shaU 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
marshaUing assets, of the execution of charities, in short, of the
mass of business, in which modern legal and equkable 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 for ever be inadequate to the
business of a nation increasing in wealth and commerce, and con-

308 REVIEWS.
necting 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 trans
actions are dividing and subdividing themselves into such innumera
ble varieties, that they cannot be adjusted or bounded by any
written or positive legislation. The law, to be rational and practi
cable, must, as was finely said by Lord EUenborough 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 for ever 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 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 very great utUity.
No nation can be so vain as to imagine, that she possesses all wis
dom and all excellence. No civUized nation is so humble, that her
usages, laws, and regulations do not present many things for instruc
tion, and some for imitation. In respect to the general principles
of jurisprudence, those which are applicable to the ordinary con
cerns 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 faU to iUustrate 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 civiUan 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 conscientice, or the Lord Chief Justice, when expound
ing commercial contracts at the GuildhaU 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 per
fection, owes to the civil law, and its elegant and indefatigable

PHILLIPS ON INSURANCE. 309
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 Prstorian. And there never
has been a period, in which the common lawyers, wkh all their
hostility to the civil law, have not been compelled to borrow its
precepts. The early work of Bracton shows, how solickous some
of the sages were, even in that rude age, to infuse into their own
code sorae of that masculine sense, which found favor in the days
of Justinian.
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 Eraerigon ? Mr. Du
ponceau, in his late excellent Dissertation on the Jurisdiction of
the Courts of the Unked States, — a work, that should be pro
foundly studied by all Araerican lawyers, — ^has said, that the
works of Pothier were warmly recomraended 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 Emerigon, 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
iUustration, and authorities, and usages, is stUl unrivalled.
We think, indeed, that we perceive tiie dawn of a brighter age
in the English law, when the foreign lights, which have been, slowly
and by steakh, admitted into Westminster Hall, will be haUed with
a Uberal spirit, and will irradiate its bar and benches. Mr. Joy, in
the case of M'lver 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 Aid. 72,) showed a
famiUar 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 Emerigon was cited.
Lord EUenborough said, " Emerigon, whose name has been so
frequentiy mentioned in the course of the argument, is entitled to

310 REVIEWS.
all the respect, which is due to a very learned writer, discussing a
subject with great ability, diligence, and learning, and adverting to
aU the authorities relating to it." Mr. Justice Bailey and Mr.
Justice Best, who are judges of uncommon abUity, have repeat
edly, of late, adverted to the French maritime authors with dis
criminating accuracy, and in terms of the most unreserved respect.
We consider these indications of a liberal study of foreign juris
prudence, as extremely creditable to this age of the coramon law ;
and, we augur frora 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 coramon lawyers, we do not know how we could better do
it than by pointing out some illustrious examples of its successful
accomplishraent in our own age. Sir James Mackintosh, of late
years so distinguished in Parliament, as a friend to liberty, to sci
ence, and liberal institutions, and who is, at the sarae tirae, a raost
huraane and philosophical jurist, has, in his incomparable Introduc
tory Discourse to his Lectures on the Law of Nations, given us a
finished specimen of the advantages resulting frora the mastery of
foreign public writers. It would, perhaps, be difficult to select from
the whole mass of raodern literature a discourse of equal length,
which is so just and beautiful, so accurate and profound, so cap
tivating and enlightening, so enriched with the refinements of mod
ern 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 thera above the narrow influences
of a dry and hardening practice.
But a StUl more striking example is Lord Stowell, (better known
in this country, as Sir WUliara Scott,) the present venerable Judge
of the High Court of Adrairalty, of whom it may be justly said,
in the language of Cicero, that he is jurisperitorum eloquentissi-
mus. This great man has presided in the Court of Admiralty
since the year 1798 ; and during this period he has commanded
the admiration of all Europe, by the learning, acuteness, and fin
ished elegance of his judgments. There was a time, when it was
somewhat the fashion in this country to undervalue the solid excel
lence 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

PHILLIPS ON INSURANCE. 311
deep an interest, and were so liable to indulge strong animosities.
But time has dissipated many delusions dn 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 beUigerents. We can now look back upon his decisions with
somewhat of the calmness and sobriety of a phUosophical 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 Governraent 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 b)' him,
which has been deliberately overruled by the Supreme Court ; and
on that occasion there was a serious difference of opinion araong
the judges.
But it is not in respect to prize law, that we intend to speak of
Lord Stowell, though he every where exhibits the raost 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 coraraerclal jurisprudence. His su
periority in this departraent over the technical reasoning of the
comraon lawyers is most signal. He discusses every question with
a persuasive and comprehensive liberality, with a tone of general
equity, a knowledge of maritime usages, and a disposition to con
sider maritirae jurisprudence as the unwritten law of the world,
rather than the raunicipal monopoly of a single nation ; and he
draws from all sources, ancient and modern, the best and purest
principles, to aid, to Ulustrate, and to confirm his own judgment.
With him the grave learning of Grotius, the acute, bold, and
somewhat vehement discussions of Bynkershoek, the reverend
testitnonles 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 famUlar, as the writers of his own age
and country. He evidently reposes upon thera, even when he
does not cite them ; and transfuses into his own eloquent and im-

312

REVIEWS.

pressive judgments, whatever they afford of general doctrine, or
just interpretation, upon all the doubtful questions of maritime law.
One scarcely knows, which raost to admire, the simplicity of his
principles, the classical beauty of his diction, the calm and dispas
sionate spirit of his inquiries, his critical but candid estimate of evi
dence, 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 specu
lations, 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 wkh what adrairable 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 raaster the results of foreign
jurisprudence ; and, as in the very interesting case of Dalrymple
V. Dalrymple, compose the strifes of the learned advocates of the
Scottish bar, and fix for ever upon an imraovable basis a question,
which had vexed the doraestic forura of Scotland for a long period
with its doubts and difficulties. We say, without hesitation, that
the character of this erainent 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 hy
pothecate the cargo, as well as the ship and freight, for the neces
sities of the voyage ; or the case of the JuUanna, in 1822, on the
invalidity of a stipulation in the shipping-paper to cut off the sea
men 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 refer
ence to principles absolutely universal in their justice and conven
ience of application. We wish Araerican lawyers would study the
fine models of this sagacious judge with a diligence proportionate
to their importance and utility.

PHILLIPS ON INSURANCE. 313
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 systeras ; for
we should as little advise this, as we should to our own lawyers
the study of the EngUsh law of tythes, and moduses, and copy
holds, from which we are separated toto coelo. What we do re
commend is, the study of our commercial adjudications. This is
not said, we hope they wUl believe, from vanity, under a false
estimate of our own attainments. American lawyers are in the
constant habit of reading 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 abUity. But we
" also are painters." The American courts, collectively consid
ered, 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 com
posing the Union, arising from local circumstances. But in the
principal Atiantic States, the system of maritime law is of daUy
application to business, and is studied with earnest dUigence.
In one respect, there is a striking contrast between the state of
the English and that of the American bar. In England, the pro
fession 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 counseUors. The barristers and Ser
jeants of the common law generally confine themselves to the
practice of their own particular courts. The attorney is a being,
who deals wkh 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, aU this is different.
The same gentleman acts, or may act, (with scarcely an excep
tion,) in aU these different capackies ; and in the course of a single
term of a court may assume many of the functions of aU of them.
He is, or may be, at once, proctor, advocate, solicitor, attorney, con
veyancer, and pleader ; he may draw libels and bills, frame pleas and
40

314 REVIEWS.
answers, direct process, prepare briefs, sketch drafts of conveyances,
argue questions of fact to the jury, and questions of law to the court ;
and find himself quke 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 facUity in the use of his materials,
they carry with thera, on the other hand, some disadvantages.
The general tendency of such close pursuits is to narrow down
¦the raind 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
discriraination, rather than a solid and coraprehensive understand
ing. What is gained by skUl in the raanipulation, is lost in the
vigor of the blow.
The course of the American lawyer does not, it must be con
fessed, 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 briUiant 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 wUl 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 exceUence 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 free
dom frora restraint, and an habitual eagerness to expand our law,
which favor every atterapt to build up coraraerclal 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 to excite an
ambition for such studies and attainments, and that the genius of
the profession is perpetuaUy attracted in its researches and reason
ings to those general principles, which constitute the phUosophy of
the law. We could point out living models, who exemplify all,
that we have suggested in comraendation of the Araerican system ;
and among the Ulustrious dead, within our own brief career, we

PHILLIPS ON INSURANCE. 315
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 Massachu
setts, upon questions of maritime and commercial law, as they
stand in the Reports of Messrs. Tyng, Binney, Johnson, and Ser
geant and Rawle. It is impossible not to feel, that the arguments
in these causes, and the judgments, which foUowed them, would
do credit to the tribunals of any country. They are full of learn
ing, fine reasoning, acute distinctions, and solid principles, such as
might well guide the sober sense of Westminster Hall, and cast a
strong light upon ks oracles. Look to the chancery decisions of
New York. Where shall we find in our times a more thorough
mastery of the civil and maritirae, of the comraon and equity law,
where a raore untiring research, a raore critical exactness, a more
philosophical spirit, than is displayed in the elaborate arguraents
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 frora 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 admiiUstration of coraraerclal law, since the Revo
lution, is very extraordinary ; and in no branch 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 impor
tant 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 aU accurate
observers, that the subject was new to the studies of the bar. The
eariiest, 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. DaUas in the
first volume of his Reports. It was not untU the French revolu
tion, by opening new and extensive sources of profitable trade,
gave an impulse to our maritirae enterprise, that the contract

316 REVIEWS.
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 commend
able dUigence 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 Araerican courts, upon points of difficulty and extensive
application, as in the courts of England in the sarae period. We
do not heskate 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 wUl 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 compli
cated 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 Ship
ping 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
titie. Insurance, in the collections of Postiethwayte 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 ob
servation. It has not, however, received a great share of public
favor, nor, as we believe, reached a second edition, probably, be
cause 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 gen
eral excellence of his System of the Law of Insurance. The best

PHILLIPS ON INSURANCE. 317
testimony to its value is the continued approbation of the profes
sion, which has already carried it through seven large edkions. As
a collection of authentic cases in tiie fuUest and most accurate
form, it StUl remains unrivaUed. Although it professes to be prin
cipally " a coUection of cases and judicial opinions," the learned
author occasionally discusses general principles with a good deal of
ability. In 1802 Mr. Serjeant 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 coUection of cases, but an examination and coUection of princi
ples. It is certainly a work of high merit, analyzing and criticising
the cases with great acuteness and vigor ; and citing the foreio-n
authorities, with which the learned author appears farailiar, with a
creditable liberality. Whenever he ventures to give his own cora-
ments, they indicate perspicacity and closeness of observation.
But, after all, the work seems to promise more than it performs.
It contains Uttle of doctrine or discussion, beyond what the English
decisions exact or furnish. We look in vain for any atterapt to
extend the boundaries of the law beyond actual adjudications, and
for any satisfactory argument upon topics, which yet remain un
settled by the courts. And a great defect in the work, as indeed
in all others — a defect, which has been but iraperfectly supplied
by the late treatise of Mr. Stevens — is the want of a practical trea
tise upon averages and the adjustment of losses. We beUeve, that
the learned author is now dead, so that there is Uttle probabUity,
that the work will be rendered more complete.
But, whatever may be the value of the English treatises on insu
rance, 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 coraraerclal
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 princi
ples, 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 outiines and detaUs. AI-

318 REVIEWS.
though our own law of insurance 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 con
clusions embodied in it, which are at variance with those of West
minster 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 con
venient. 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 judg
ment on the subject. But we raust pass frora these topics, and
hasten to the close of an article already extended far beyond the
liraits, which we had originally intended. We wiU just mention,
however, the point, that the right of abandonment depends upon
the state of the fact at the tirae, 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 conjec
tured, as to the indispensable necessity of a new treatise on insu
rance, for the use of American lawyers ; and Mr. PhUllps has done
a most acceptable service to the profession by the publication of
that, the titie 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 Araerican decisions in the shape of
perpetual notes, which would have formed a very inconvenient and
bulky coraraentary, not easUy 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. PhiUlps has chosen the latter course, and in our opinion, with
great sagacity and sound judgraent ; and he 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 actuaUy 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 intro
duced any comments of his own, of which he has been somewhat

PHILLIPS ON INSURANCE. 319
too sparing, he has shown sound sense, and a liberal juridical spirk.
In respect to America, his work wiU probably supersede altogether
the use of Mr. MarshaU's ; but Mr. Park's, as the fullest repertory
of aU the cases, will continue to retain the public favor. The
labor of such a compUation must unavoidably have been great,
and required the raost patient research and various study. The
author, as a scholar, a gentleman, and a lawyer, has now put him
self 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 quaUties of brevity and copiousness, a
condensed summary of principles, and an elaborate discussion of
the minute detaUs and distinctions of cases. Whoever writes a
merely practical treatise, raust leave ranch raatter worthy of obser
vation 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, whUe lawyers plunge into folios of
a thousand pages, to ascertain a possible shade of distinction in the
construction of contracts. If therefore, there should be any per
sons disposed to think, tiiat cases and comments should have been
given more at large, the true answer is, that such was not Mr.
PhiUips'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, how
ever, 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 keras, which are to be adraitted or
rejected ; having had occasion to know, that nothing is more various,

320 REVIEWS.
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 inappUca-
bUity. The form of Mr. Phillips's Index also might be advanta
geously 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 tkles.

REVIEW

OF A GENERAL ABRIDGMENT AND DIGEST OF AMERICAN LAW, WITH OCCA
SIONAL NOTES AND CO.M.MENT.S, BY NATHAN DANE, LL.D., COUNSELLOR
AT LAW.

[First published in the North American Review, 1826.]
The UtUity 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 thera, which are not easily overcome by the
most powerful genius, or the most retentive meraory. Those, who
are to learn, raust 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 theraselves instructed, find that meraory is often treach
erous, and that the constant deraand for knowledge corapels them
to use raany 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 constantiy refreshed,
and the obscure traces of past acquirements carefully retraced, if
we aspire to any thing like a vigorous coinraand of that department
of knowledge, to which we are most devoted. Dr. Priestiey, whose
various scientific, as weU as general knowledge, wUl scarcely be
questioned, has somewhere stated, that he made use of many
mechanical aids in the course of his own studies, some of which
might be thought so humble, as to excite a smUe, or even a doubt
of the abilities of the author. Indeed, the general auxiliary of
41

322 REVIEWS.
most students used to be a common-place book, in which the various
readings aud accumulations of their learned hours were coUected,
sometimes with, and sometimes without method. In whatever shape
these were preserved, they had the good effect of fixing the im
pressions of many iraportant truths, and of saving many hours of
fruitiess 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 be
cause 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 gentieman, and the scientific
student. It is true, therefore, what of old was said. Qui compen-
diariam 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 dili
gent 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 aU
praise, The labor, indeed, of these venerable jurists almost trans
cends the belief of students of the present day. They noted
every case, in all its points and principles. 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 addkion to their knowledge, or any increased
faculties 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

323
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 perUous, and brought in its train an abatement of the suk, 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 publislied, the labor was not mate
rially diminished. The decisions were not uniformly reported at
stated tiraes ; and many cases were not reported at aU. The early
reports contain no indexes. The Year-Books have not a single
line to direct the student to their contents, and leave their bulky
and abbreviated text without title or comraent, so mixed up in one
coraraon mass, that it requires no small share of historical knowledge
to ascertain, who, at any given period, speak as judges or as coun
sel. When tables of contents came subsequently into fashion,
they were so incomplete and incorrect, that they were compara
tively 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 in
dexes 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 k generaUy
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 com-

324 REVIEWS.
pUing 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, untU the legislature provided for the
regidar pubhcation of reports.
It is to sources like those already adverted to, that we owe the
early, and perhaps all the abridgments hitherto raade of the common
law. What was introduced originally, from the raere scantiness of
public materials, in process of tirae obtained a continued favor, from
the unwieldy bulk of adjudications. Lord Coke poured the con
tents of his coraraon-place book into his Commentary upon Little
ton, and his superabundant Reports. Plowden may well be
suspected of the same overlearned zeal ; and Lord Hale has at
tested 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 (1468). It is a
very curious book, printed, as it would seem, before tkle-pages
were in use, for it is without any titie-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 k
was printed at Rouen, by WUllam Le TaiUeur, who printed Little
ton's Tenures, for Pynson. The latter was bred in the service of
Caxton, the first printer wkh metal types in England, and he suc
ceeded his master in the business. Stathara'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 littie substantial improveraent 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 Eari 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 partiy composed of abbreviated
characters, has a sharp and distinct face ; and the mechanical

Dane's digest of American law. 325
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 tiraes. 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 as sorae cases not elsewhere to be found. It has now very
littie 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 An
thony Fitzherbert, first printed by Pynson about 1516, and after
wards 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 respon
sibility. The raarginal tities and numbers, in the common editions
of the Year-Books, refer to the titles and numbers of this abridg
ment. 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 tiraes, in which the points are accurately stated, but without
any attention to order, or any attempt at classification. As reposi
tories of the old law, they now maintain a very considerable value,
and may be consulted wltii advantage. Whoever examines them
(for a thorough perusal of thera will be a mere waste of time) wUl
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 them
selves in a careless transcription, or a loose statement, of the law.
In our own practice we have frequentiy 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 originaUy

326 REVIEWS.
published, they must have been very acceptable presents to the
profession. But many of the tities are now obsolete ; and the
works lie on the dusty shelves of our libraries, rarely disturbed,
except upon some extraordinary inquiry, touching the feudal ten
ures, 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 supe
rior work of Lord Chief Justice Rolle, which was published under
the auspices of Sir Matthew Hale, in 1668. Lord Hale contribu
ted to it a very able and learned preface, in which he bestows just
comraendation 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 judg
ment ; 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 consti
tution of body, which rendered him fit for study and business, and
indefatigable in it." Tlie 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 compUations,
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, instead of heaping
them up into one undistinguishing mass. Mr. Hargrave, in his
edition of Coke on Littieton (note 1 to page 9), speaks of k, as a
" work most excellent in its kind ; and, in point of method, suc
cinctness, legal precision, and many other respects, fit to be pro
posed as an example for other abridgments of law." In prac
tice, 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.

Dane's digest of American law. 327
D'Anvers's Abridgment, printed early in the eighteenth century,
which Mr. Viner informs us was thirty-two years in passing through
the press,* is a mere translation of Rolle, with the addition of more
modern cases, and is incomplete, extending only to the title " Ex
tinguishment." 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
pubUshed in 1736, and has passed through six large editions. The
contents of the work owe very little to the nominal author, (Mat
thew Bacon, Esquire, of the Middle Temple,) and were chiefly
extracted from the manuscript coUectlons of Lord Chief Baron
GUbert. Mr. GwiUira has well observed, that " It was the hard
fate of his exceUent writings to lose their author before they had
received his last corrections and Improvements, and in that unfin
ished 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 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 wiUing to
appropriate to himself the labors of another, without due acknowl
edgment, 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 titie, " 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 disserta
tions, upon various topics of the law, generally illustrated by adju
dications, and, though incomplete, exhibiting a rare union of sagacity
and industry. As a textbook 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 ks reasons, it must for ever hold a high rank among the
* Preface to the eighteenth volume of his Abridgment.

328 REVIEWS.
treasures of the profession. Mr. Gwillim's edition is far the best,
which has appeared in England, and is entitied to much praise
for the manner in which the duties of the editor have been per
formed. This edkion has been repubUshed in America, under the
superintendence of Bird Wilson, Esquire, who has enriched it with
many valuable additions. Still it must be adraitted, that there is
great awkwardness and inconvenience in ingrafting such an abun
dance of raarginal notes upon the original text, threatening, in
every new edition, to overiay, if they do not bury k 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, raay be thought by some not to have a very apt
titie. The learned author passed a whole life in corapUing the
work, and superintending the printing of it, wdiich, by the consent
of the law patentees, was done at 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 thir
teenth volume,* occasioned by the author's having begun with the
titie " Factor," where D'Anvers ended his Abridgment,) he states,
that he comraenced the undertaking with the eighteenth century,
and it was, of course, for nearly fifty years under his revising hand.
Mr. Hargrave (Co. Lltt. 9. a. note 3.) calls it an immense body of
law and equity, which, notwithstanding all its defects and inaccu
racies, must be allowed to be a necessary part of every lawyer's
library. He adds, that it is a most useful compUation, and would
have been infinitely more so, if the author had been less singular
and raore nice in his arrangeraent and method, and more studious
in avoiding repetkions. 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 some
times so ill arranged, that the search is almost as troublesome,
* There is a second preface in the eighteenth volume.

Dane's digest of American law. 329
as it would be to run over the whole title in Fitzherbert or
Brooke. The author has observed, in the preface to his thir
teenth volume, that " The study of the law is a very long jour
ney, 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, which he seems to approve by the above allusion ! He
has, by no means, made the roads very plain or smooth ; and the
signposts, 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
hrevis esse laboro, ohscurus 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 sorae parts it is
redundant, in others defective, and in all Irregular, it is a vast
index of the law, which tirae and patience can master ; and it
often rewards the labor, when all other resources have failed the
dUigent 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 raost elegant and classical works in
our language, " The Coramentarles on the Laws of England," by
Sir William Blackstone. From a zeal for the studj' 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 estabUsh some fellowships and scholarships for the study of the
law there.*
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
* 1 Blackstone's Commentaries, 28.
42

330 reviews.
most publications of that nature, it was left by its learned author
in a state very fit to meet the eye of the public. Lord Chief
Baron Comyns died sometirae 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 raay be, and extensive as may he
their professional labors, whUe living, they rarely leave a perma
nent impression upon the public mind ; and after the lapse of a
few years, the most dUigent search enables us to collect littie more
than the facts of their birth, death, and parentage. This distin
guished judge is a very striking iUustration 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 conteraporaries as
the most able lawyer in Westminster HaU." (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 pubhc stations. Mr. Rose says, " It
was the editor's wish, for the purpose of satisfying a laudable curi
osity in respect to so eminent a man, to have stated some particu
lars 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 Ex
chequer, 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 extrava
gant. Mr. Hargrave (Co. Lltt. 17. note 96.) says, " The whole
of Lord Chief Baron Comyns's work is equally remarkable for
its great variety of matter, its corapendious and accurate expres
sion, 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 suc
cessful. It does not, like Bacon's Abridgment, affect to enter
into disquisitions upon the various doctrines of the law, or to ex
plain the reasons, on which it is buUt. 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, iUustrated and supported in the same manner. By this
means, each head or titie exhibits a progressive argument upon the

Dane's digest or American law. 331
subject, and one paragraph. Sic. 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 carefully com
pared with, and corrected by, the original, and with very great
labor has also been compared ivith, and corrected by, the several
hooks 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 tklepage 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
edkion 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, wkh 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 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 indiffer
ence 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
exceUence 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 para
graphs, 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 ad
juncts ; and sometimes a half page is to be run over by the

332 reviews.
reader, before he can gather up the disjecta membra, the scattered
fragments, of the author.
In the art of bookraaking, there is scarcely any thing more rep
rehensible 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
Utigation 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 constantiy 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 inter
woven a miserable patchwork ; and Mr. Hamraond's, in 1824, has
even less merit, containing the substance of his indexes to the
coraraon 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
siraple principles and brief Ulustrations, in the raanner of Comyns,
it might easily have been compressed into two supplementary vol
umes. 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 edifion
worthy of his labors. We are confident, that the task of coUecting
and digesting, the modern raatter, however operose it raay seem, is
within the power of any one learned and dUigent lawyer, and that
its accomplishment would receive an ample reward from the pro
fession. 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 reraarks on this subject, 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

Dane's digest of American law. 333
diminished by the loose and unskilful manner, in which they are
introduced. There are, however, some exceptions to this reraark ;
and none are entitied to more praise than tiie 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 ?
In respect to England, there may, perhaps, be some doubt,
whether such a work would be of any extensive utility. A con
tinuation of Comyns's Digest seeras all that is necessary for law
yers 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 mate
rial 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
thera 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 readUy, as such a pursuit perfectly accorded
with his professional and political employments, in which he en
gaged in the spring of 1782. He early found, there was in the
United States nothing like one collected body of American law,

334 reviews.
or one collected system of American politics ; but all was found in
scattered fragments. Scarcely any native American law was in
print, but the colony statutes, charters, and some of the constitu
tions. 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 large part of which was of no real use here.
" No measures had ever been taken to ascertain, with any ac
curacy, 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 in use
here ; and our students at law often studied as laboriously the use
less, 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 Gerraans, 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 iraportant object naturally pre
sented itself to one, who for several years had been in a situation
highly to appreciate American principles, especiaUy those of the
Araerican Revolution ; which was, a collected body of American
law, forraed 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 under
taking comraenced, and pursued raany years. The title, " A Gen
eral 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. Digest, in law
books, meant much more than an alphabetical arrangeraent 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 wk, " Abridgment, Notes, and Com
ments." The first object has been to abridge and compress cases

DANE S DIGEST OF AMERICAN LAW. 335
within narrow Umits, but not so as to lose or obscure the law,
decided or settied 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 vol
umes, 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 Ufe too short, to be well read in the imraense 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 tirae 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 prop
erty, 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 civU code of France, since it is adopted in sub
stance by Louisiana, one of our states." Introd. pp. 3-5.
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 Ingraft on such a work those tities 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 Ulus
tration 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 raost 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

336 REVIEWS.
what is unknown, and to bring to light what is buried in dark and
remote antiquity.
In regard lo the plan raost proper for an Araerican 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 raust 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,
wkh cases to iUustrate thera, a more perfect model than Comyns's
Digest can scarcely be devised ; and an order, if not strictiy alpha
betical, at least neariy 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
to deal with all parts of the sarae general subject in the mode of
dissertation, he will bring together all the incidental topics ; and
then, of course, to sorae extent, he raust desert an alphabetical
arrangeraent. 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 indispen
sable 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 expe
rience. 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 sorae degree, the general principles with the
remedies, which accompany a violation of them ; so that the student
may perceive, tiiat 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 raust often be separated, where, upon
another plan, they would be joined, and joined, where they would
otherwise stand at great distances. The only rule, then, that can

DANE S DIGEST OF AMERICAN LAW. 337
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 abridgraent " to be useful to American
lawyers, especially to students, and those of the profession, who
cannot possess many books ; " " to make our Araerican charters
and constitutions, statutes and adjudged cases, the groundwork of
each subject, and therewith to incorporate that portion of the
English law, recognised 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 raost iraportant 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 adjudi
cations, not in print.
Thus far, as to the objects of the work. It appears to us, that
these objects are sufficientiy coraprehensive, 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 wiU
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 Massachu
setts, as a basis, is judicious. On this point let Mr. Dane speak
for himself; and we think no one wUl deny, that his suggestions are
of very great weight. In enumerating the objects of the work, he
says, one is,
" To examine the charters, constkutions, 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 wUl be found, that the
courts in one state have not often noticed the laws and decisions in
other states. 43

338 REVIEWS.
" This being the case in regard to state law, it was found best
to select the state law of sorae one state, to be included much at
large in this work. Accordingly, the laws of Massachusetts, 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 frora Massachusetts, her laws were the root of theirs.
4. Her laws, as to the rights of persons, property. Sic, were raade
the root or gerra of nearly all our territorial law east of the Missis
sippi, by being raade the material parts of the ordinance of Con
gress, passed July 13, 1787, for the governraent 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
raade 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 forraed in substance frora English statutes, and many
others of our colonies and states having done the sarae, her statutes
in these respects are substantially theirs ; for instance, Massachu
setts, Virginia, &c., nearly copied their statutes of liraitations from
the statutes of Umitations 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 wiU be found, that raore than four fifths
of the decisions raade in Massachusetts, New York, and Virginia,
stated in this work, have been made on principles and authorities
coramon to twenty-three states, and so practised on in all. Though
in the statutes of the several states there is a sameness in principle,
yet there is a vast variety in words and detaU, when not formed
from one source, as above ; but not a tenth part of the law in a
state is found in its statute-books. 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.

Dane's digest of American law. 339
We would refer the reader to the fourteenth page of the Intro
duction, 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. Be
sides, 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 raore judicious than to give a view of
the general principles of each branch of the law, and to Ulustrate
thera with cases, and then to proceed to the raore rainute and sub
ordinate particulars. The remarks and comments, which accom
pany 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 sarae connexion,
and consequently introduces, in no inconsiderable degree, in the
discussions of remedies, the most important rules of property. In
this respect it pursues a 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 advo
cates of different systems may rest plausible arguments. The

340 reviews.
system, however, adopted by Mr. Dane, is not a rash innovation ;
and, in our judgment, has much In it entitied to commendation.
If it do not unite the whole profession in its favor, it will always
count araong 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, occupy
ing, with the names of cases, a volume. This Index we venture
to pronounce absolutely unrivalled in fulness and accuracy, bring
ing within the reach of the most ordinary diligence aU the leading
positions and doctrines of this extensive compilation.
As to the execution of the plan, the nature of which we have
endeavoured 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. Even to examine the divisions and subdivisions of a
single title would be a most exhausting process, and occupyj^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 aU
his juridical reading in a compendious and accurate form. His
coratnents exhibit various learning and close reflection ; and his
Ulustrations cannot fail to assist such, as seek for aid in those ob
scurer parts of the law, which perplex by their intricacy and
equivocal direction. We choose rather to subjoin extracts exhibit
ing the actual execution of the work, from wdiich the reader wiU
be able to form a fair judgment, tha.n, 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, k 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.

Dane's digest or American law. 341
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 par
ties, and is brought into discussion in cases bet>veen citizens of
different states. The complicated relations of the states with each
other make the administration of this branch of jurisprudence
(which may, not unfitiy, be denominated international private law)
a task of no inconsiderable deUcacy and difficulty. Above all, it
embraces the discussions of those 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 arrangeraent 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 iraportant 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 discre
pances of the different systeras are thus presented in a single view;
and the best opportunity afforded of correcting errors, and intro
ducing graduaUy homogeneous and consistent regulations on these
vital interests of tiie Union.
Moreover, it embraces a large collection of decisions, raany of
which have never before appeared in print, and are valuable, frora
their general applicability, as well as the fidelity, with which they
are reported. Before the publication of regular reports in our
country, raany questions of the highest rnoraent were litigated and
decided in our courts, which form rules of property ; and it is no
inconsiderable present to the profession to erabody these in an
authentic form, as well as to add to some of the cases now in print
reports raore full, exact, and satisfactory.
Again, large extracts are introduced from the civU, the French,
and other foreign law. The utility of this part of the work can
not escape the observation of the profession. The civil law, modi
fied by French and Spanish ordinances and usages, constkutes 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,

342 reviews.
which there regulates civil and commercial rights and remedies,
is of great practical importance to emigrants, to merchants, and to
relatives 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 raany questions.
Fortunately for Louisiana, no inconsiderable portion of her civil
jurisprudence has been reduced into a systeraatic code, whose basis
is that adrairable performance, the Napoleon Code. Mr. Living'
ston is now executing, under her patronage, a Digest of her Crimi
nal 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
coramon law, and still more so by the overheated zeal and extrava
gance 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 civU and foreign law
have claims upon those, whose province it is to cultivate the study
of the comraon law. The civU law itself is an inexhaustible
treasury of general principles, .solid distinctions, and just doctrines,
applicable to the concerns of a busy commercial age, and espe
cially 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 con
tracts 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 Roman fountains. The splendid panegyric of Gibbon, in the
forty-fourth chapter of his Decline and FaU of the Roman Empire,
is not a raere 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

Dane's digest of American law. 343
care, the civU jurisprudence was digested in the iraraortal 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 civU law principles, as are Ulustrative of the com
mon law, into an abridgraent, is of great value to students, and
especiaUy to those, who wish to acquire philosophical views of
jurisprudence, and aspire to soraething beyond the reach of an
ordinary attorney ? The author well remarks, that,
" A complete system of law and equity, best calculated to pre
serve 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 thera, 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 combina
tion of ideas, founded in nature, experience, and cultivated mo
rality, 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 thoughts and actions are not restrained by relig
ious or poUtical 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 raatters, must be uniform, and pervade
the whole nation." Introd. pp. 14, 15.

JURIDICAL DISCOURSES

ARGUMENTS.

44

CHARGE

delivered to the grand jury of the circuit court of the united
states, at its first session in PORTLAND, FOR THE JUDICIAL DIS
TRICT OF MAINE, MAT 8, 1820.

Gentlemen of the Grand Jury,
On this, the first occasion, that I have had the pleasure of meet
ing 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 coun
cils ; and though our foreign coraraerce is considerably abridged,
both in its enterprise and prosperity, and our doraestic intercourse
is thus sensibly dirainished ; yet we have abundant reason to
rejoice, as well in our exeinption 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 pro
ducts, 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 wUderness, and making our forests resound with
the cheering sounds of the axe and the hararaer. In addition to
these substantial comforts, we are indulged by a kind Providence
with the blessings of civU, political, and religious liberty — bless
ings of inestimable value, without which Ufe loses half its charms,
property all its 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 adraitted into
the Union, as a free, sovereign, and independent state, possessing.

348 JURIDICAL DISCOURSES AND ARGUMENTS.
in coraraon with aU the others, an equality of national rights and
honors, and protected by an excellent constitution, framed by its
own deliberations upr inciples 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 resist
ance, 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 gov
ernment 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 de
liberation, and cautious examination of the interests of both parties.
It has been conducted in a spirit of mutual conciliation and friend
ship, with an anxious desire to proraote the real happiness and
prosperity of the people. It has been emphatically, and by no
fanciful analogy, like the separation of a parent frora his chUd,
when the latter has attained maturity of years and experience.
And, like that separation, I trust, it wiU only lay more surely the
foundation of a mutual respect, sustained by the sense of inde
pendence, and chastened by grateful recollections of the past, and
an earnest solicitude for the solid glory of the future.
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 pubhc
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 Uberal
and comprehensive policy, in respect to your public institutions and
judicial establishments, cannot faU 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

CHARGE TO THE GRAND JURY AT PORTLAND. 349
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 conse
quence to yourselves and to our coramon country, than that you
should cherish an habitual devotion to the constitution and gov
ernment 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 do
mestic feuds, against the inroads of military arabition, and the more
subtile, though not less dangerous, designs of civic deraagogues. 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 affec
ted devotion to popular rights, to take advantage of temporary
prejudices, and thereby gradually withdraw the affections of the
people from those principles, which the 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 FareweU 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
horae, 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, frora different causes, and frora different quarters, much
pains will be taken, raany artifices eraployed, 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 exter
na! enemies will be most constantiy and actively (though often cov-
ertiy and insldioasly) 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 ; accus
toming yourselves to think and speak of it, as of the palladium of
your political safety and prosperity ; watching for its preservation

350 JURIDICAL DISCOURSES AND ARGUMENTS.
with jealous anxiety ; discountenancing whatever may suggest even
a suspicion, that it can in any event be abandoned 
" For this you have every inducement of sympathy and interest.
Citizens, by birth, or choice, of a coraraon 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, raore 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 inde
pendence and liberty you possess are the work of joint councils,
and joint efforts, of common dangers, sufferings, and successes."
Such is the language, now speaking, as it were, from the grave,
of hira, who was " first in war, first in peace, and first in the hearts
of his countryraen."
Having preraised these remarks, which are drawn frora me by
a sense of duty, and a sincere regard to the welfare of your rising
state, and which, I trust, v/lU be received in the spirit of candor, in
which they have been delivered, permit me now to call your atten
tion to the subjects, which more immediately belong to your cog
nizance, as a Grand Jury of the United States.
You are irapannelled 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 guUty, 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 tranquUUty 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 succour of virtue, and the re
lief of the injured and oppressed ? Nor can any one, who seri-

CHARGE TO THE GRAND JURY AT PORTLAND. 351
ously reflects upon the invaluable blessings of a free government,
hesitate to give all his aid to the due and regular 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 for ever. 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
habUiments, 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, " be
lieveth all things, hopeth all things, endureth all things," the sullen
spirit of persecution inhabited there. The halls of legislation re
sounded 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 sukors ; 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 indiffer
ent to the progress of vice ; if we sUentiy wink at violations of
the laws ; if we habituaUy follow the current of public opinion,
without pausing to consider its direction ; if we cherish a sullen and
irreverent disregard of the constitution of government, under which
we live, or resign ourselves to factious discontent under the exer
cise of its legitimate powers ; the time is not far distant, when we
shaU be separated into rival states, engaged in furious contests for
paltry objects, and ultimately become the prey of some unprin
cipled chieftain, who wUl first arrive at power by flattering popular
prejudices, and then secure his bad eminence by the destruction of
the liberties of his country.

352 JURIDICAL DISCOURSES AND ARGUMENTS.
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 wiU
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, Gentiemen of the Grand Jury, in par
ticular, to whom is entrusted the high responsibility of watching
over the public rights, and suppressing public offences, you may do
much to perpetuate our Uberties, 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 detaU of aU the crimes, of which you are to lake
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 animadversion of all good men, frora their mani
fest tendency to foster the foulest passions and the raost unnatural
cruelties. As to other crimes, as I am not aware, that any of them
require your very particular examination, I shaU leave them to your
general consideration ; and, if you shall have occasion for raore
exact information, the learned counsel for the United States, and
the Court, will most cheerfully aid your inquiries.
And first, Gentiemen, let me call your attention to the crime of
Piracy. This offence has in former tiraes crimsoned the ocean
with much innocent blood, and in its present alarming progress
threatens the most serious mischiefs to our 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 coramon tie but the love of plunder, they assume frora tirae to
tirae the flag of any nation, which may best favor their immediate
projects ; and depredate, with indiscriminate ferocity, upon the com
merce 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 theraselves about the divis
ion of their spoils, and their quarrels end in involving theraselves
in the blood of their comrades. Persons of this description are, in
the most general sense of the terra, pirates or freebooters, and are
aptiy denominated the enemies of the human race, and as such

CHARGE TO THE GRAND JURY AT PORTLAND. 353
become amenable to the tribunals of all civUized nations for their
crimes, and by the laws of all, as I believe, are punished with
death. While, therefore, we may properiy indulge towards the South
Americans a reasonable sympathy in their struggle for civU and
religious liberty, and whUe we respect, with the most guarded cau
tion, the rights of the regular commissioned ships of their Govern
ments, (as by law we are bound to do,) we should take care, that
our feelings are not wasted upon men, who falsely assume the pro
tection 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 comraon law, consists in comraitting
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 coramission, he fraudulently, or with a thievish intent, despoUs
those, with whom he is not warranted to fight or meddle ; that is,
such as are at peace with the prince or state, from which he derives
his commission. Piracy at sea is, indeed, the same crime as rob
bery 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 con
cur. Such is the definition of piracy at the comraon 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 fraudu
lent 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 vio
lence, 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 de.scription of the offence, according to the sense of the
law of nations, when he declares a pirate to be " one, who, to enrich
45

354 JURIDICAL DISCOURSES AND ARGUMENTS.
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 effectu
ally 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 raanifestiy
designed to apply to aU cases, whether the crirae be perpetrated on
board of an American ship or a foreign ship, and whether the
offender be a foreigner or citizen.
But there are other acts, which the laws of the United 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 faU within the exclusive cogni
zance of such governments.
The acts, to which I have alluded, I wUl now proceed to enu
merate. 1. The first act is the perpetration of murder, robbery, or any
other offence on the high seas, which, if commkted on land, would
by the laws of the United States be punishable wkh death.
The crime of robbery, here referred to, is that crime, as defined
by the coraraon law, which we have already considered.
Murder consists in the unlawful killing of any reasonable crea
ture in being, under the peace of the government, with malice
aforethought. It is this malice, which essentially distinguishes
murder frora every other kind of horaicide ; and it raay be express,
as when the crirae is perpetrated with a sedate and deliberate mind
and formed design ; or k may be implied, as when the fact is at
tended wkh such circumstances, as are the ordinary symptoms of a
wicked, depraved, and malignant spirk. It matters not, how sudden
the transaction raay have been, nor whether there was a particular
malevolence or spke to the deceased or not ; it is sufficient, if there
be either deliberate malice, or circumstances of cruelty and de
pravity, carrying in them " the plain indications of a heart regard
less of social duty, and fataUy bent on mischief"
In aU charges of murder, the fact of killing being first proved, aU
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

CHARGE TO THE GRAND JURY AT PORTLAND. 355
him ; for the law presuraes the fact to be founded in malice, untU
the contrary appears.
2. A second act declared piracy, by our laws, is the piraticaUy
and feloniously running away with any ship or vessel, or any goods
or merchandise to the value of fifty dollars, or the voluntarily yield
ing up any ship or vessel to any pirate.
To constitute the offence within this clause, the crirae must be
coraraitted 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 wUl 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 searaan 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, lo which he belongs.
It is not easy to enumerate aU the various circumstances, which
constkute a " revolt," a word, which in this clause is used in the
sense of mutiny or rebelUon. A raere 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 manageraent
of the ship; these and the like acts seem properly to constitute .a
revolt. 5. A fifth and last act of piracy, by our laws, is, when any citi
zen commits any piracy or robbery aforesaid, or any act of hostility
against the Unked 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.

356 JURIDICAL DISCOURSES AND ARGUMENTS.
From this clause it is apparent, how deeply involved in guilt are
those of our citizens, who enlist theraselves in the armed ships of
foreign states, and commit hostilities upon their countryraen, or
plunder their property ; since the law declares, that they shall be
" adjudged and taken to be pirates, felons, and robbers," and shaU
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 sarae capital punish
ment ; 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 rela
tions with foreign states. It has at all times been the wise deter
mination of our governraent to endeavour, amidst the contests of
beUigerent nations, to preserve its own peace by a strict and impar
tial 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, coraraerclal,
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, raany of our citi
zens have been deluded by the glare of a false and hoUow patri-
olisra, deliberately to violate these laws, and to engage in enter
prises, 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 oppressed ? With what justice can
we complain of the wrongs of other nations, if we assume the char
acter 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 ckizens 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 na
tions 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 confidentiy trust they always will, let us at least take counsel

CHARGE TO THE GRAND JURY AT PORTLAND. 357
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 wUl be visited, sooner or later, with national
degradation and ruin. And, Gentiemen, I entreat you, as guard
ians of the laws, to endeavour by your own presentments, as weU
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, ivithin 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 enter
ing 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 jurisdic
tion, frora fitting out and arming, or attempting to fit out and arm,
or procuring to be fitted out and armed, or being knowingly con
cerned in the furnishing, fitdng out, or arming, of any ship, with
intent, that such ship shall be employed in the service of any for
eign prince or state, colony or people, to cruise or commit hostUi-
ties against the subjects or property of any foreign state, colony,
or people, with whom we are at peace ; and frora issuing or deliv
ering 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 shaU be employed to cruise or commit hos
tilities upon our citizens or their property ; or from taking com
mand of or entering on board of any such, for the intent aforesaid ;
or frora purchasing any interest in any such ship, with a view to
share in the profits thereof. They have also prohibited any per
son whatsoever, within our jurisdiction, from increasing or aug
menting, 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,

358 JURIDICAL DISCOURSES AND ARGUMENTS.
colony, or people, at war wkh any foreign state, colony, or peo
ple, by. adding to the nuraber of her guns, or by changing those
on board for guns of a larger calibre, or by the addition of any
equipraent solely applicable to war. And lastly, our laws have
prohibited any person whatsoever, ivithin 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 ckizens will aid the officers of the
government in a vigilant discharge of their duties, and grand juries
wUl 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 some
what 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 pre
serve the good habits and sound morals of our seamen — a class of
men of inestimable importance to our coraraerce, 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 easUy downward into, the gulf of
infamy and crime. He, who is in the pursuit of guUty 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 diffi
cult to find for it any adequate justification. It undoubtedly
had its origin in tiraes 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 con
sequence might weU bind him to perpetual servitude. But the
position itself on which this supposed right is founded, is not true.

CHARGE TO THE GRAND JURY AT PORTLAND. 359
No man has a right to kUl his eneray, 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 right of slavery, as to the prisoner himself, it is
impossible, that it can justiy extend to his innocent offspring
through the whole Une 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 ray province on the present occasion. It is to be laraented,
indeed, that slavery exists in any part of our country ; but it should
be considered, that it is not an evU 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, wliich 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 coraraerce
brought wkh 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 Unked States, having granted to
Congress the power to regulate foreign commerce, imposed a restric
tion, for a Umited period, upon its right of prohibiting the raigration
or importation of slaves. Notwithstanding this, Congress, wkh 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 witiiin the reach of the constitu
tional restriction ; and thus cut off the whole traffic betiveen for
eign ports. In the year 1800, an additional law was passed to
enforce the former enactments ; and in the year 1807, (the epoch,
when the constitutional restriction was to cea.se, beginning with the
ensuing year,) a general prohibition of the traffic, as weU in our
domestic as foreign trade, was proudly incorporated into our statute-
book. About the sarae period the British Government, after the
most severe opposition from slave-dealers and their West Indian

360

JURIDICAL DISCOURSES AND ARGUMENTS.

friends, achieved a similar measure, and enacted a genera] prohibi
tion of the trade, as well to foreign ports, as to their colonies.
This act was, indeed, the triumph of virtue, of reason, and of hu
manity, over the hard-heartedness of avarice ; and, while it was
adorned by the brilliant talents of Pitt, Fox, Romilly, and Wilber-
force, 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 immor-
taUzed by his virtues, the intrepid Thomas Clarkson.
It is a raost cheering clrcurastance, 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
generaUy approved throughout the continent of Europe. The
Governraent of Great Britain has, indeed, employed the most
indefatigable and persevering diligence to accomplish this desirable
object; and treaties have been raade 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 glo
rious 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 raade an offence for
any citizen or other person, as raaster, 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 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 ves
sel frora 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 hold
ing, 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

CHARGE TO THE GRAND JURY AT PORTLAND. 361
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 Unked
Stales 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
pecun'ary and personal penalties, as with the forfeiture of the ves
sels 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 thera to conviction.
The President of the United States is also authorized to eraploy
our arraed 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 out laws ; and bounties, as well as a moiety of the
captured property, are given to the captors to stiinulate thera 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 punishraents. But, unfortunately,
the case is far otherwise. We have but too raany melancholy proofs,
frora unquestioned sources, that it is still carried on with all the
implacable ferocity and insatiable rapacity of former times. Ava
rice has grown raore subtUe in its evasions ; and watches and seizes
its prey with an appetite, quickened, rather than suppressed, by its
guilty vigils. Araerican 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, adven
tures. I wish I could say, that New England and New England
men were free from this deep poUution. But there is reason to
believe, that they, who drive a loathsome traffic, " and buy the
muscles and the bones of raen," are to be found here also. It is
to be hoped the nuraber is sraall ; but our cheeks raay well burn
with sharae, while a solitary case is permitted to go unpunished.
And, Gentiemen, how can we justify ourselves or apologize for
an indlfferlhce to this subject ? Our constitutions of government
have declared, that all men are born free and equal, and have cer-
46

362 JURIDICAL DISCOURSES AND ARGUMENTS.
tain unalienable rights, araong which are the right of enjoying their
lives, Uberties, and property, and of seeking and obtaining their own
safety and happiness. May not the ralserable 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 sub
jects ; 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 raen ; to love our neighbours, as ourselves ; and to
do unto all raen, as we would they should do unto us. It declares
our accountabUity to the Supreme 'God for all 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,
caUing theraselves Christians, who degrade the negro by ignorance
to a level with the brutes, and deprive hira 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 ac
tions 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 equaUy 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 caUed this an inhuman traffic ; and. Gentlemen, with a
view to enUst your sympathies, as well as your judgments, in its
suppression, permit me to pass from these cold generalities, to sorae
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, whUe the subject
of the abolition was before it ; taken, too, from persons, who had
been engaged in, or eyewitnesses 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 contra
dicted or disproved can be accounted for only upon the ground,
that it was the truth, and nothing but the truth. What, therefore,
I shaU briefly state to you on this subject, wUl be drawn principaUy
frora 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

CHARGE TO THE GRAND JURY AT PORTLAND. 363
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 vigi
lance in the enforcement of the laws on this subject, we may hope,
that public opinion, following these laws, will very soon extirpate
the trade araong our citizens.
The nuraber of slaves taken frora Africa in 1768 araounted to
one hundred and four thousand ; and though the nurabers some
what fluctuated in different years afterwards, yet it is in the highest
degree probable, that the average, untU the abolition, was not much
below one hundred thousand a year. England alone, in the year
1786, eraployed 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. Husbands are stolen from their wives, chUdren from
their parents, and bosom-friends from each other. So generally
prevalent are these robberies, that it is a first principle of the na
tives 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 incon-
siderahle, consists of those, whose villages have been depopulated
for obtaining thera. The parties eraployed 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. Tlie practice is, indeed, so coraraon, that
the remains of deserted and burnt villages are every where to be
seen on the coast. — The third class consists of such persons as are
said to have been convicted of criraes, 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 thera within the reach of the royal traders. — The fourth
class includes prisoners of war, captured soraetimes in ordinary wars,
and sometiraes in wars originated for the very purposes of slavery.
— The fifth class coraprehends those, who are slaves by birth ; and
sorae traders on the coast make a practice of breeding from their
own slaves, for the purpose of selling thera, like cattie, 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 ac-

364 JURIDICAL DISCOURSES AND ARGUMENTS.
cording 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 seacoast.
Some belong to the neighbourhood ; others have Uved in distant
parts ; and others are brought a thousand railes 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 v^ood, 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 corapel 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 aflerpart, 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 thera, whUe the ships are wait
ing for their full lading in sight of their native shore, raanifest great
appearance of distress and oppression ; and sorae instances have
occurred, where they have sought relief by suicide, and others,
where they have been afflicted with deliriura and raadness. 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 raade 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 iniserable meals, consisting
of horsebeans, rice, and yams, with a littie pepper and palm oU.
After their meals, it is a custom to make thera jump for exercise
as high as their fetters will allow them ; and if they refuse, they are
whipped until they coraply. This the slave-raerchants caU danc
ing, and it would seem literaUy to be the dance of death.
When the number of slaves is completed, the ships begin what
is called the raiddle passage, to transport them to the colonies. The

CHARGE TO THE GRAND JURY AT PORTLAND. 365
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 im
possible to stand erect in most of the vessels, and in sorae scarcely
possible to sit down in the sarae 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, thirty-
two 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 raan
has in his coffin. They are, indeed, so crowded below, that it is
almost impossible to walk through the groups, witiiout 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 skua-
tion 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 wkh
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 victims. Some go down apparentiy well at nioht,
and are found dead in the morning. Sorae faint below, and die frora
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 raany,
in so confined a state, renders -thera also very sickly, and the vicis
situdes 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 fet
tered and wedged close together, the utmost disorder arises from
endeavours to relieve themselves in the necessities of nature ; and
the disorder is still further increased by the healthy beino not unfre
quendy chained to the diseased, the dying, and the dead. When
the scutties in the ship's sides are shut in bad weather, the grat
ings 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 airpump. 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

366 JURIDICAL DISCOURSES AND ARGUMENTS.
one fourth part, or twenty-five thousand per annum, are destroyed ;
a mortality, which may be easily credited after the preceding state
ment. 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 pri
vate sale. With this view, they are examined by the planters;
who want them for their farms ; and in the selection of thera, friends
and relations are parted without any hesitation ; and when they
part with rautual embraces, they are severed by a lash. Others
are sold at public auction, and becorae the property of the
highest bidder. Others are sold by what is denoralnated a "scram
ble." In this case the main and quarter decks of the ship are
darkened by saUs hung over thera 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 endeavour 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 raen 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 annu
ally 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 toUs, 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 lo portray, and frora which (one should
think) the raost 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 earth
quakes, the natural scourges of mankind ; but is inflicted by man
on man, from the accursed love of gold. May we not justiy dread

CHARGE TO THE GR.4ND JURY AT PORTLAND. 367
the displeasure of that Almighty Being, who is the common Father
of us all, if we do not by all means within our power endeavour to
suppress such Infamous cruelties? If we cannot, like the good Samar
itan, bind up the wounds and soothe the miseries of the friendless
Africans, 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 raen struggling in the cause of oppressed
huraanity ? 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, Gentiemen, for having detained you so long
upon this interesting subject. In vain shall we expend our wealth
in raissions abroad for the promotion of Christianity ; in vain shall
we rear at home raagnificent 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.

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 COLLRGB, CLAIMING A RIGHT THAT
NON'E BtJT RESIDENT I.XSTRUCTERS LV THE COLLEGE SHOULD BE CHOSEN
OR DEEMED "FELLOWS" OF THE CORPORATION.*

[First publighed in the American Jurist, April, 1829.]
[ It will be at once perceived, that the argument is strictiy con
fined to the mere question of legal right. The author, in opening
his speech, expressly disclaimed any intention to inquire into the
* The following statements, on the subject of the claim of the resident Instruc
ters, are chiefly borrowed from a pamphlet pubUshed in 1825, entitled " Remarks
on Changes lately pjoposed or adopted in Harvard University. By George Tick-
uor. 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 Gen
eral 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.
" 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 Instructers, amounfing 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 othei- Colleges, is too large for the
prompt, consistent, and efficient discipUne 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 Kev. W. E. Channing, reside in Boston ; one,
Mr. Justice Story, resides in Salem ; and one, Rev. E. Porter, resides in Roxbury.

BEFORE THE OVERSEERS OF HARVARD COLLEGE. 369
expediency of such a choice, supposing it not a raatter of right ;
considering that to be a topic of a very large and coraprehensive
nature, and that no case was then before the Board, which required
or invited such a discussion.]
The Corporation have the management of the funds and revenues of the College ;
appoint its instructers and other officers, aud assign them their duties and pay ;
make laws for the government of the instructers and the students; and fill vacan
cies in their 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 Col
lege. 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 Com
monwealth, 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 Pro
fessors engaged in the instruction of undergraduates, two engaged in the instruc
tion of graduates, and four Tutors, offered a memorial to the Corporation," contain
ing 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
he constituted' (Memorial, p. 1.) and preferring to the Coi-poration as 'matter
of chartered right,' ' the claim of the resident Instructers to be elected to vacan
cies in the Board of the President and Fellows.' (Mem. p. SI.)
" To this memorial the Corporation I'etui'ned no formal answer, on the ground,
as has been stated by the memorialists, that, if the claim were well founded, the
members of the Coi-poration, 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, Instructers, or Stipendiaries. The memorialists
desired to be heard in reply. They wei-e so heard on the 4th of February ; Pro
fessor 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 unani
mously adopted, at a remarkably full meeting of the Overseers: ' Resolved, that
it does not appear to this Board, that the resident Instructers in Harvard University
have any exclusive right lo 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.'
47

370 JURIDICAL DISCOURSES AND ARGUMENTS.
I REGRET that I ara corapelled, by a sense of duty, to enter upon
the discussion of the question presented by the Meraorial, at the
distance of raore than a century and a half after the foundation
and charter of the college. I entertain a very great respect for
" It may be added to this, that, as a legal question, few have ever been exam
ined 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 memoi-ial in a long argument. He was succeeded,
on the same side, by Chief Justice Parker, of the Supreme Court of Massachu
setts, 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,
1 believe, in favor of the memorial. The profession, in particular, seemed unani
mous 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," (Remarks, 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, lega
cies, 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 there
of, 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 Over
seers [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 Fel
lows of Harvard College, and shall from time to time be eligible as aforesaid." —
Mass. Col. Laws, Ifc, 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 Instructers, namely,
" Remarks on a Pamphlet printed by the Professors and Tutors of Harvard Uni
versity, touching their Right to the exclusive Government of that Seminary." " A
Letter to John Lowell, Esq., in Reply to a Pubhcation entitled. Remarks on a Pam
phlet," &c. This Letter is from the Hon. Edward Everett, then a Professor in the

BEFORE THE OVERSEERS OF HARVARD COLLEGE. 371
the memorialists. Some of thera were the instructers of my youth,
while I was a student at the University, and for thera I feel much
of filial reverence ; others of thera I have the pleasure of being
well acquainted with by their literary and scientific acquireraents ;
and others of them I feel myself at liberty to name among the
friends, whom I raost honor. Under such circurastances, I should
be glad, if I could, to escape from the embarrassment and respon
sibUity of a public discussion, in which my judgment requires me to
dissent frora clalras, which, whatever may be my personal respect
for the memorialists, I ara convinced are utterly unfounded in law.
Considerations of this nature have pressed upon ray feelings ;
but I have yielded them up to a sense of duty. This Board has
a right to demand frora the raembers 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 suggestion of my friends
have led me to believe, that, upon such an occasion, sUence 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 infirrakies in ray argument. The ques
tion is one quite remote frora 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
mate study of all the peculiarities, as well of their language and
legal constiTiction, 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, therefore, to rely upon books and au
thorities, which, though perfectiy satisfactory upon the leading
principles, are less fuU 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 iUustrate
College. " Speech delivered before the Overseers of Harvard College, February 3,
1825, in behalf of the Resident Instructers 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.'' Editor Am. Jurist.

372 JURIDICAL DISCOURSES AND ARGUMENTS.
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 viskers of a college, or their assessors, upon legal
principles, they are either locked up in works not generally acces
sible, or left merely upon the manuscript records of the coUeges,
to which we have no access.
Notwithstanding these disadvantages, I have an entire confidence,
that the conclusions, to which I have arrived, are perfectly weU
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 shaU be able to establish by suitable Ulustrations,
that they are justified by the highest authority.
I wUl now, after these prefatory reraarks, beg the indulgence
of the Board, while I invite their attention, and particularly that
of ray legal friends, who are raerabers of it, to my argument.
Some of its details raay be dry and uninteresting ; some of them
may be thought superfluous ; and sorae of thera, 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 defer
ence 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, shoidd not be
met and answered with directness and in a spirit of candor, what
ever may be the value, which others may attribute to it.
I shall have occasion, in the course of the discussion, to aUude
to a pamphlet containing a vindication of the doctrines of the
Memorial, which has been attributed to one of the learned profes
sors, and which I shall the more freely allude to, because it pur
ports to invke 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 " Fel
lows," in the charter, is meant a particular description of persons,
known in English coUeges, and, at the time of the charter, existing
in Harvard College, and having known rights and duties. The Me
raorial then asserts, and endeavours to prove, that " Fellow" imports

BEFORE THE OVERSEERS OF HARVARD COLLEGE. 373
a person resident at the coUege, and actually engaged there in
carrying on the duties of instruction or government, and receiving
a stipend frora its revenues." * In the view of the Meraorial, 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 raemorialists, that this is the raeanlng
attached to the word in the charters of the English colleges ; that
it was so actually applied in Harvard College "before 16-50 ; and that,
consequentiy, 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. f But if it does not go to this extent, it
maintains, that, after the choice, the party must be a resident, an
instructer or governor, and a stipendiary.
My first object wUI 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
endeavour to show : 1. That the terra, " Fellow," when used in
the charters of English coUeges, has no peculiar raeanlng, 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 succes
sive statutes of the particular foundations : 3. That, as an enume
ration 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 generaUy, if not uni
versally, of a nature wholly distinct from any, which the Memorial
itself supposes to be the principal object of the charter.
I. The meaning of the word, " Fellow." — This word is by
no means confined to coUege charters. It occurs in charters of a
very different description. Thus the Royal Society is incorpo
rated 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 thinor
more than member or associate. Johnson, among his definitions of
" FeUow," enumerates as one, " a member of a coUege, 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
» Page 2. t Pages 2, 4, 7, 30.

374 JURIDICAL DISCOURSES AND ARGUMENTS.
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 IndifFerentiy for Fellow. If there be any
peculiar force in the term, it is, that it imports equality'm general
rights. Why, then, should it be supposed to be used in any other
sense in a coUeoe charter ? It cannot be 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 col
lege 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 dis
tinct body, as by incorporating the college instructers. 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 meraorialists must be, that the word
has a fixed raeanlng as to English colleges ; and is, as it were, so
appropriated by art, as necessarily to import in a coUege charter
soraething raore than associate. If so, then the word would natu
rally 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 CoUege in Ox
ford." * Yet there are in this college twenty fellows, thirty-two
scholarships, and fifteen exhibitions, on the foundation.
Trinity CoUege ; founded in 1554, by name of the " Master,
Fellows, and Scholars of the College," &tc. he. f 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-X
Christ Church College ; founded by Cardinal Wolsey and Henry
VIII., 1532 : a coUegiate church. Name — " Dean and Chapter of

* Oxford Guide, ed. 1822, p. 67.
t Oxf. Guide, 119. 2 Bro. Par. Cas. 221. 1 Ayliffe, Hist. Oxf. 40.
X 1 Ayl. 418, 419.

BEFORE THE OVERSEERS OF HARVARD COLLEGE. 375
the Cathedral Church, &c. in Oxford," &c.* 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 con
vocation." f This college is governed solely by the laws of the
Dean and Chapter of the Cathedral Church. J
Corpus Christ! College ; founded 1516. Name — " CoUegium
Corpus Chrisli Oxonii." It originally had on ks foundation a presi
dent, twenty scholars, and two chaplains : it now has a president,
twelve fellows, twenty scholars, four exhibitions, two chaplains. "§>
Merton College ; founded 1274. Its name originally, " Custos et
Scholares Doraus de Merton ; " || and also, " Guardiani et Schola-
rium Doraus, sive Collegii Scholarium de Merton in Universkate
Oxonii." 11 The old colleges sometiraes used more than one name.
This coUege has now a warden, twenty-four fellows, fourteen
postmasters (postrinistfE), four scholars, two chaplains, two clerks.
Peter House College, founded Cambridge ; 1284. Name — " The
scholars of the Bishop of Ely." " The nuraber of persons on the
foundation, being the number mentioned in the statutes, consisted
of a master and fourteen felloivs, sometimes called perpetual
scholars, eight poor scholars, and two bibliotists. There had been
other felloivships 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 society."** The statutes given by Simon de Montacute, Bishop
of Ely, 1344, are addressed "Magistro et Scholarihus doraus nos
tras Sancti Petri. Cantab." ; and he directs that these fourteen
"Scholares essent perpetui et studios!," Stcff The statutes con
stantly designate what are now called " FeUows" as scholares. XX
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 foun-
* 2 Ayl. 47. Oxf. Guide, 159. t Page 180 - 179 t 1 Ayl. 246.
§ 1 Ayl. 394. Oxf Guide, 169. || 1 Ayl. 273, 275. IT 2 Ayl.
** Rex V. Bishop of Ely, 2 T. R. 290, 291. tt Id. 296.
M Id. 299,302-305.

376 JURIDICAL DISCOURSES AND ARGUMENTS.
dation ; that it is sometiraes used as synonymous with st
(studens), soraetimes wkh scholar (scholaris) ; whUe at other times
it imports something different, depending upon the usages and stat
utes 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 coUege,* two classes, the scholars and the fellows,
each class having sorae rights and privUeges 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 generaUy 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."!
In corroboration of these remarks, I may add, that the Univer
sities both of Oxford and Cambridge, which embrace all the colle
ges, and in convocation all the raembers of the government of the
respective coUeges, are incorporated by the name of " The Chan
cellor, Masters, and Scholars of the University " of Oxford and
Cambridge, respectively. J
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 indiscrimi
nately to all members of the Univei-sky. 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 raerabers of that
name at Christ Church, whose rank is siraUar to that of fellow 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 head has different names in different colleges — Dean, Rector, Provost,
Warden, President, Master, Principal. — Oxf. Guide, 179.
t 1 Kyd. Corp. 329, 330. t Stat. 13 Eliz. Prynne, Animad. 156 ; 1 Ayl. ISI

BEFORE THE OVERSEERS OF HARVARD COLLEGE. 377
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, wiU 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, Collega, and FeUows, as
synonymous ; and every socius or collega as a meraber 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 sarae in all the
colleges, but vary, being entirely governed by the charter and
statutes of the foundation.
The Oxford Guide says, (p. 180,) " The qualifications for fellow
ships vary in alraost every society. The FeUows are, according to
the statutes of the coUege, 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 par
ticular 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 CoUege, Oxford, founded in 1437. The col
lege is composed of a warden and forty fellows, two chaplains, six
clerks, of kin to the founder, or, born in the province of Can
terbury.* — New CoUege, founded in 1379. The foundation is
seventy fellows from Winchester CoUege, ten chaplains, &c.f —
Wadham College, founded in 1613. The fellows are chosen from
the scholars of the college. J — Corpus-Christi College. The fel
lowships must be distributed among natives of different counties. <§>
So, the Bishop of Durham in 1403 gave a manor to University Col
lege, for the maintenance of three fellows born in York or- Dur
ham, without respect to degrees, and though undergraduates. ||
" Oxf. Guide, p. 58. t Id. 95. t Id 101.
§ 1 Ayl. 394. II Id. 152.
48

378 JURIDICAL DISCOURSES AND ARGUMENTS.
It is remarkable, that in no instance is previous residence required,
as a distinct qualification ; though in some instances it may be
inferred, in connexion with other qualifications ; as where the quali
fication 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 incor
rect and incomplete. It refers to three things, as constituting ne
cessary 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,* where a fel
low-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 sociorura." It
was said, that this had already been considered in construction, as
raeanlng, of the Fellows resident in the college.f 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. RadcUffe's foundation in University College. J It is ex
pressly 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 Fel
lows and members of the college, though not required to be resi
dents. But what is decisive, as coming from the highest authority, is
what Lord Camden says, in Hayes v. Long.'^ It was a case against
a non-resident Fellow of Christ Church CoUege. It is to be re
membered, 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
" Cowper, 315. -f Id. 322.
} Atty. Gen. v. Stephens, 1 Atk. 358, 360. § 2 Wils. 310.

BEFORE THE OVERSEERS OF HARVARD COLLEGE. 379
of Oxford,) was a non-resident Fellow ; and none but resident Fel
lows were entitled to the benefit. Lord Camden said, " Great num
bers of persons remain on the books, long after they have left the
University, on purpose to vote for members, &ic.; many, who are
Fellows of colleges never go thither at all. I myself was one for
a long tirae, and never ivent there at all." So Sir William Jones,
(Oxford,)* Mr. Justice Blackstone (All-Souls CoUege,)f were Fel
lows, long after they ceased to reside at college ; Mr. Blackstone
from 1743 lo 1761 ; Sir William Jones from 1766 to 1783. John
son, 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 Instructers 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 nuraber 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, mathe
matical, 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 general 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 Mas
ter and twelve Fellows. " Ten of the Fellows were usually lay
men ; and two were in holy orders, who performed the duty in the
chapel, and were usually the college tutors." X This shows, that
the other ten were not.
Ayliffe, in his History of Oxford, says,'§> 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
* See Lord Teignmouth's Life, 36, 93, 113, 142, 221.
t Preface to W. Blackstone's Rep. 7, 9, 10, IS, 16.
t Ex parte Wrangham, 2 Ves. jr. 609. § 2 Ayliffe, 116.

380 JURIDICAL DISCOURSES AND ARGUMENTS.
house, wherein he lives. How can this be, if the FeUows are ex
officio " Tutors ? "
The very case, cited in page third of the Memorial, as to Dr. E.
Calamy, as Tanquam Socius of Perabroke 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 privUege of some,
instead of a common duty of all FeUows.
3. As to the government of the coUege. — This, probably, more
generally than any other thing, attaches to the Fellows. But k
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.* The Oxford Guide says, " The raembers of the University may
be divided into two classes ; those on the foundation, coinraonly
called dependent members; and those not on the foundation, terraed
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 claira on the estate of the society, to which they belong,
so they possess no voice or authority in its manageraent ; and dur
ing their residence in a college or hall, they are supported at their
own expense."!
"The dependent members, or raerabers on the foundation, are as
foUows : — The head of the college, the felloivs, (called students
at Christ Church,) the scholars, (called demies X at Magdalen,)
chaplains, and Bible clerks.
" The dependent merabers derive emolument from the revenues
of their societies ; and on some of them the management and dis
cipline of the whole body devolve." '^
" The independent merabers are noblemen, gentlemen-commoners,
(at Worcester called fellow-commoners,) and commoners." \\
In Christ Church College we have already seen that there are
Fellows on the foundation ; but the governraent of the college
belongs exclusively to the Dean and Chapter. If
* 2 Ayliffe, 29. t Oxf. Guide, p. 179.
t So called originally on account of their being entitled to half commons only.
§ Oxf. Guide, 179. || Id. 183. H 1 Ayliffe, 240.

BEFORE THE OVERSEERS OF HARVARD COLLEGE. 381
In many of the colleges the original foundation provided for a
Umited number of fellowships only. Where the charter adraitted
of an increase of the number without violating its provisions, new
fellowships have frora time to time been ingrafted on the college ;
and in such cases the new ingrafted FeUows enjoy the sarae privi
leges 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,* k 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 nura
ber, there, though there raay 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 adraitted by the
Court, Id. 674. The same doctrine was held in Rex v. Bishop of
Ely, 2 Term Rep. 290.
Therefore, in Peter-House College, where the number of Fel
lows 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.!
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 coramon to all (and that I only
conjecture) is, that they are all stipendiaries, or members on the
foundation. And here I might advert to sorae other circurastances
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 EngUsh Fellow
ship are very materially different frora those, which the Memorial
supposes to be the main objects of the sarae office in our college.
I need not advert to the known fact, that all colleges are
eleemosynary corporations. Lord Holt says, " There is no dif
ference between a college and an hospital, except only in
degree. A hospital is for those, that are poor, and mean, and
* 1 Burr, 158. t 2 T. R. 291.

382 JURIDICAL DISCOURSES AND ARGUMENTS.
low, and sickly. A college is for another sort of indigent per
sons ; but k hath another intent, to study in, and breed up
persons in the world, that have not otherwise to live."*
What I mean to assert is, that the sole scope and design of the
English coUeges were lo provide maintenance and funds lo educate
persons ; that the Fellows (by whatever name they were called,
whether Fellows, Scholars, Students, or otherwise) were not in
tended to be instructers, but to be theraselves instructed; that
the object was to enable the Fellows to go lo the colleges to learn,
and not to give learning to others. If this be established, how
will it be possible lo affirra, that the charter of Harvard College
of 1650 could intend the same sort of persons ? The whole
Memorial disavows it.
Colleges were founded ad orandum et studendum, says Ayliffe,!
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 lo 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. X
In Magdalen College, sorae of the Fellows are expressly re
quired 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. "§>
In Brazen-Nose College, the original statutes confine the Fel
lows to the study of divinity and philosophy ; " For a principal
and sixty scholars to receive an education in philosophy and
divinity here." ||
In University College, the Bishop of Durham founded three
fellowships, for the maintenance of three Fellows, though under
graduates. IT
In New CoUege, the founder divided his Fellows into artists and
lawyers ; viz., ten civil law, ten canon law, and the remaining fifty
to study the arts and divinity.**

* Phillips V. Bury, 2 T. R. 291. 1 2 Ayl. 3. t 1 Ayl. 338.
§ Id. 347. II Id. 378. IT Id. 152. ** Id. 315, S19.

BEFORE THE OVERSEERS OF HARVARD COLLEGE. 383
In Exeter College the original statutes direct, that the persons to
live on this charity shall not exceed thirteen ; viz., one student in
divinity, one in law, the other in philosophy.*
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 of philoso
phy and divinity ; eight called scholars, to be educated in logic,
rhetoric, &,c.!
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. J
In Perabroke College, seven of the fourteen Fellows are to he
in holy orders.
In Christ Church College, originally, of the one hundred stu
dents or Fellows, forty were required to be grammar scholars;
and Queen Elizabeth converted these forty into students.^
And I believe it will be found, that the object uniformly was to
educate the Fellows, so as to fit thera 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. RadcUffe's fellowships, already referred to, were of this
nature. They were for the raaintenance of two persons, for ten
years, in the study of physic, to travel half the time.||
This leads me lo another topic, the duration of fellowships. —
The English fellowships are not all perpetual, that is, during Ufe,
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 studiosl, insistentes studio literarum.M
But this is far from being universal. We see Dr. RadcUffe's are
only for ten years.
In Wadham College, founded in 1613, by the statutes, the Fel
lows are superannuated, and resign their fellowships, on the com
pletion of eighteen years from the expiration of their regency.**
In Baliol College, founded in 1263, at first each Fellow received
only 8d. per week, and was under an obligation of leaving the
college, as soon as he had taken a master's degree.W
* 1 Ayl. 207. t Id. 412. t Id. 418, 419. § Id. 440.
II 1 Atk. R. 358. H 2 T. R. 296, 297. »* 1 Ayl. 434.
tt Id. 263, 268.

384 JURIDICAL DISCOURSES AND ARGUMENTS.
Probably most fellowships were not looked upon as permanen
cies, 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
behaviour. So Mr. Everett agrees in his pamphlet.
There are sorae 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 them
selves for the church.
So " the Fellows cannot marry, nor succeed to a college living,
nor indeed to another, beyond a certain value, without relinquish
ing their fellowships."*
Probably there are many other pecuUarities 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 suraraary. Fiom these remarks, we perceive,
that it cannot be maintained, for a moment, that the term "Fel
low " necessarily imports a resident, an instructer, 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 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 raust be residents ; raany of the
English Fellows are non-residents.
If it be said, that they raust be instructers ; many (I presume
most) of the English Fellows are not instructers. 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 raay now teach ; but it is a dis
tinct business frora their fellowships, for which, I doubt not, they
receive a distinct corapensation. * Oxf. Guide, 190.

BEFORE THE OVERSEERS OF HARVARD COLLEGE. 385
If it be said, that they must be Corporators, or members of the
Corporation, entitled to exercise the governraent, and conduct the
revenues of the governraent ; there are many English Fellows, who
have no such authority, and are not corporators. Even a part of
the body named in the charter raay not have a title to such gov
ernment. Sorae 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 frora the governhnent by the statutes or char
ters. Traces are to be found in our books leading to this conjec
ture ; but I affirra nothing positively, because I have not yet seen
a direct case. Where " scholars " are, or may be, undergraduates,
or grammar scholars, (as sorae 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 civU 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 years ;
sorae merely untU they graduate as masters. Acceptance of church
livings, or possession of church livings of a certain value, vacates
some fellowships, and constitutes ineligibUity. Livings of a less value
constitute no vacancy or ineligibility. Absence for six months
vacates some feUowships.* Travelling for five years is indispen
sable as a qualification in others, (Dr. RadcUffe's Fellowships.)
Some English Fellows are chosen from particular schools ; sorae
frora particular colleges, counties, dioceses ; sorae from inferior
grades of persons in their own college, as scholars, probationary
Fellows ; some from the University at large ; some must be gradu
ates ; sorae raust 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 sorae are ? that all must be
tutors, though all originaUy were pupils or students ? that all must
be corporators, or collegiate governors, when a part only are, or
» 2 Term. Rep. 231.
49

386 JURIDICAL DISCOURSES AND ARGUMENTS.
were ? Why not tak e the opposite course ; and say, that all may
be non-residents, because sorae are, &c. ?
If universality of qualification be the ground of adoption of a
siraUar qualification here, then all our Fellows ought to be in celi
bacy. 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 Fel
lows in fact, though not in name. Why ? Because they are
known admitted members on the foundation. Ingrafted Fellows
are not the less FeUows, 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, or Member of the foundation, entitied to such
privUeges, 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 char
ter itself provides, and no other. Where the charter is sUent, 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 aU, that foUows.
If there be not an identity between our Fellows and the English
FeUows, or between all of the latter as to rights, duties, and privUe
ges, I do not see, how any argument can be bottomed on it. Conjec
tural similarity is of no importance. Until we can definitely affirm,
what ours are, and theirs are, we cannot proceed ; for untU that
is done, we can institute no process of comparison, as to simUarity
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 " Fel
lows." This I freely admk. The preamble of the charter states k;
the form of admission states it ; and other College records recognise it.
The Memorial does not pretend, that there is any thing in the Col
lege records before the formula of admitting Fellows, that recog
nises k. When that formula was first adopted is not stated, or ex-

BEFORE THE OVERSEERS OF HARVARD COLLEGE. 387
actly 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, 16.50. The next pre
ceding entry in the book is the 26th of March, 1650. President
Leverett in his Journal states, that it was written by the Rev. Jona
than Mitchell, one of the members of the 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 CoUege,
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 meet
ing or concourse of people, " in the tirae or hours of the College
exercise, public or private." It is added, in the same orders,
" Nekher shall any scholar exercise himself in any railitary band,
unless of knovim gravity, and of approved sober and virtuous con
versation, and that with the leave of the president and his tutor."
These orders clearly show, that at this tirae 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
" Fellows " in the charter raeant Instructers 1 So, in the " Formula
admittendi scholares sediles," the scholar is, by one article, to show
reverence to the President " una cum sociis singulis," and, in the
next article, to obey his tutor.
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

388 JURIDICAL DISCOURSES AND ARGUMENTS.
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 tiieir studies, to qualify them for some
profession, and probably they were beneficiaries. It would be nat
ural, 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, " Fel
lows," there used, is loosely used to designate the Immediate Gov
ernment 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 inarti-
ficially drawn.
In respect to the Formula.* It does not show, who the sodi
were, or what was their occupation. The third article requires thera
to instruct all the students coraraitted to their charge. But it does
not prove, that they were the general tutors. If they were bene
ficiaries, 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, iu another article, a similar engage
ment is required of the scholars, in the form entitled " In scholari
hus admittendis," or, according to the record in Lib. 3, p. 9, " For
mula admittendi scholares eediles." The words in the 4th arti
cle are, " Sedulo prospicies ne quid detrimenti collegium capiat,
quantum in le situra est, sive in ejus sumptibus, sive in edificiis et
structura, fundis, proventibus, fenestris, ceterisque omnibus, quae
nunc ad coUegiura pertinent, aut dum egerls, pertinere possint."!
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 engageraent to prevent
any wanton dilapidations or mischiefs.
It is also perfectiy clear, that " Fellows " and " Tutors," or
general Instructers, were not used after the charter as identical
terms ; because, though there were five Fellows, there never were
» Memo. p. 4. f College Records, under date December 10th, 1646.

BEFORE THE OVERSEERS OF HARVARD COLLEGE. 389
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 coUegiate corporator,)
be any such persons as FeUows in Harvard College before 1650 ;
for the charter of 1642 did not authorize any such ofiicers to be
created. That act (for k is a subsisting part of the chartered
authority of the College) gives to the governor, deputy governor,
magistrates, and teaching elders of the six neighbouring towns, the
powers of governing, regulating, and managing the CoUege and
its members, its revenues and concerns. And by impUcation they
are created a corporation, for they are made capable of taking be
quests, donations, revenues, Sic, 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, instructers,
and other officers, and the students. But they could not delegate
their corporate powers to other persons. Nor could they make the
president and instructers corporators. Nor could the president, or
instructers, or persons called Fellows, take in succession by any
bequest to them as a corporate body ; for they were not so incorpo
rated. The gifts and donations, given to the CoUege, must have been
given, in legal construction, to the governor and magistrates and
elders. They must comply with the wiUs of the donors ; and they
only could take the donation. If any donor gave a fund to sup
port any poor persons in their studies at the CoUege, or any Fellows
in the College ; the words could import no raore than this, that per
sons 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 FeUows, 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 CoUege records do not
show, that before the time of the charter of 1650* any donations
had been made for the maintenance of persons at the CoUege,
answering the description of Fellows at the English colleges, in
* See as to Tutor's Pasture, post.

390 JURIDICAL DISCOURSES AND ARGUMENTS.
the sense of the Memorial.* Some indigent students were pro
vided 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 Col
lege correspondent to English Fellows. The only persons on per
manent foundations are, as I believe, our Professors. The gifts of
Glover, Keyne, and Pennoyer, might have authorized such founda
tions ; but none have been 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 FeUows, but merely persons " resi
dent at the College, and actually engaged there in carrying on the
duties of instruction or governraent, and receiving a stipend for their
services." Thus, Proctors and Regents fall within the description,
as well as Tutors 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 Meraorial now raeans by FeUows, it
would in no respect help us to an understanding of what the charter
meant by Fellows ; for that is expressly argued in the Memo
rial to be what is meant in EngUsh colleges by Fellows.
It is incumbent on the Meraorialists to show, that there were in
Harvard CoUege, before 1650, fellowships on foundations, like the
EngUsh, 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 admkted,
that whatever is recked 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, Sic, "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 educa
tion of the English and Indian youth of this country in knowledge
and godliness." * Memo. p. 2.

BEFORE THE OVERSEERS OF HARVARD COLLEGE. 391
Now the sole question is. In what sense is the word, "Fellows,"
here used ?
The CoUege charter was doubtiess drawn under the direction of
the College ofiicers, as I shall show from a document by and by.
At that time there were persons known in the CoUege by the name
of " Fellows." What were they ? We are certain they were not
FeUows on any foundation like those in EngUsh coUeges, be
cause none such then ' existed. We have strong proof that they
were not tutors, for they are contradistinguished frora tutors. They
must, therefore, have 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 iraraediate business of the College.
It cannot be presumed, that the word raeant to designate mere
beneficiaries ; for that would exclude tutors; and yet, I presume, the
main grants must have been for instructers. I conclude, then, the
sense is general, that grants had been raade for the maintenance of
the President and his Associates, that is, the other officers in the Col
lege, 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 CoUege, Sic, 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 Ameri
can 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 tirae ? 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.

392 JURIDICAL DISCOURSES AND ARGUMENTS.
If it meant to select from the " Fellows," &c., then existing,
then it created the select few a corporation, and ascertained them
to be the present incumbents, without providing who should be the
future incumbents.
If it is supposed, that the existing collegiate officers were incor
porated, because it is said, that " the College shall be a corporation,"
the argument proves too much ; for then it means the aggregate of
the instkution, scholars and pupils, as well as instructers and offi
cers. But the truth is, that the phrase is a very common one,
though not a very ex-act one. It is only saying, that thereafter the
College shall be under a corporate government. All-Souls College
in Oxford, 1437, was incorporated by the name of " Collegium
Animarum omnium defunctorum OxonU." No one, however, sup
poses, 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, Sarauel Mather, Sarauel Danforth, Masters of Arts,
Jonathan Mitchell, Corafort Starr, and Samuel Eaton, Bachelors of
Arts, shall be the five Fellows, and Thomas Danforth to be pres
ent 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 Instructers or Fellows of the College ? Why
is it not said, that they are, and shall continue to he. Fellows, instead
of, shall be Fellows 1 Why are they described as " all of them
being inhabitants of the Bay," instead of aU 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 Fellows; " then the persons,
who are to be successors, are not FeUows until elected. And there
is no restriction as to the persons, from whom they shall be chosen ;
of course they may be chosen at large. Even in the English col
leges 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 frora the
duties of the Corporation itself It is not said, they shall be, before

BEFORE THE OVERSEERS OF HARVARD COLLEGE. 393
or after the choice, residents or instructers. But, doubtiess, they
have authority as Corporators to regulate the College, because the
charter confers it on the Corporation.
The charter adds, " Which said President and Fellows for the
time being shall lor ever hereafter, in name and in fact, be one body
politic and corporate in law to aU 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 FeUows," the Treasurer, though not so called, is
properiy, and in fact, a FeUow, in the sense of law ; but he is also
something more, namely, Bursar.
The President and FeUows are further authorized to " meet and
choose such officers and servants for the College, and make such
allowance to thera, &c., as they shall think fit." It seeras 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 sarae purpose.
There was an order of the General Court in May, 1650, a few
days only before the grant of the charter, which Ulustrates this
subject. It is in these words : " In answer to the petition of
Henry Dunster, President of Harvard CoUege in Carabridge, 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 CoUege, the Court is ready to grant a Corporation to the Col
lege, so as meet persons be presented to the Court, wkh a draft of
their power and ability, neither magistrates, who are to be judges
in point of difference, that shall or raay fall out, nor ministers, who
are unwilling to accept thereof," Stc.
Now, this appears to rae to show, that the legislature did not
contemplate, that none should be in the Corporation, except residents
and instructers. Why otherwise should the exception be confined
to magistrates, and to such ministers as would not accept ? Why
not exclude aU ministers, not resident in the College ? Why not
exclude all persons, not then in office at the CoUege ?
Further. If there were Fellows in the CoUege at the time of
the charter, they were then Fellows of the House, or Academical
FeUows ; but they were certainly not corporate Fellows, that is,
not Fellows of the existing Corporation, for that was by law com
posed only of the governor, &c., magistrates, and elders. If there
were more than five, then those, not appointed of the Corporation
50

394 JURIDICAL DISCOURSES AND ARGUMENTS.
by the charter, remained simply Academical Fellows. Whether
there were any such, I know not.
The Meraorial lays stress on the supposed incongruity of saying,
that Felloiv raeans only member or associate ; because it is said,
that then the Corporation consists of seven and not of five Fellows.
To me it is clear, from the words of the charter, that the Treas
urer is necessarUy a Felloiv. 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 corpo
rate body. How can this be, unless under the terra, " Fellows,"
is here included the Treasurer! If he is one of the Corporation,
and yet the Corporation is composed of the President and Fellows,
he raust be a Fellow, or nothing.
The Meraorial, too, supposes, that it would be absurd lo say a
FeUow of the Corporation.
This is an extraordinary assertion. The words of the charter
expressly declare, that " The said College shall be a 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 CoUege, says the Memorial.
The words of the charter are not so ; they are Fellows of the Cor
poration ; 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
coraraon parlance we call thera President, Fellows, and Treasurer
of the College ; but, strictly speaking, they are FeUows of the
Cordoration. The Memorial confounds the corporate name of
" President and Fellows of Harvard College," with the character
of the parties as resident members.
Nor is there any thing unusual or incorrect in the phrase. In
the EngUsh colleges, there are Fellows, who are not Corporators,
in other, words who are not FeUows of the Corporation ; and there
are others, who are Corporators. Thus, in Christ Church College,
the Dean and Chapter constitute the sole Corporation. The Fel
lows of the College (one hundred and one in number) are not
members of the Corporation. They are, therefore, strictiy, only
Fellows of the House, or Academical Fellows. So, in all those
colleges, where the Corporation consists of a liraked number of Fel
lows by the original statutes, those Fellows, and those only, are
Fellows of the Corporation, that is, Corporators. And all the

BEFORE THE OVERSEERS OF HARVARD COLLEGE. 395
ino-rafted Fellows, who are very numerous, are only Fellows of
the House, or Academical Fellows. In St. John's College, Cara
bridge, there are thirty-two original Fellows, and twenty-seven
Fellows upon ingrafted foundations.* 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 indicating the thing
meant. Nay, more ; if by " FeUows" were raeant resident instruc
ters or governors, &c., as the Memorial asserts, there would now be
many Fellows in Harvard College, (supposing the five FeUows
were all resident instructers,) 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 raust be some phrase lo distinguish Merabers on the foun
dation and Corporators, from resident students, whether graduates
or not. In many of the English colleges they are called common
ers, in some cases fellow-commoners, &c.
In this connexion 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 lo prove what sort of Fellows the Corpo
ration 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 CoUege. But it is a clear rule of law, that a
statute for the governraent of a college may be presumed to be
repealed frora long disuse.! -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 regu
lations were not confirmed, either by the charter of 1650, or by
any subsequent order, they fell with the old establishraent.J This
" 1 Burr, R. 202. i Attorney General v. Middleton, 2 Ves. 330.
t President Dunster, in his letter of 10th June, 1654, resigning his office, states
the fact, " that our former laws and oj-ders, by which we have managed our place,
be declared illegal and null." CoUege Charters, Ap. 17.

396 JURIDICAL DISCOURSES AND ARGUMENTS.
accounts, and satis factorUy, why nothing was done about or under
them. But, in point of fact, were the FeUows first named all resident
instructers at the lime of the charter ? It seeras almost incredible,
that they should all have been so ; for the College had not more
than thirty scholars, and to have eraployed five tutors at that time,
or before, would seem utterly inconsistent with the acknowledged
poverty of the College. It is probable, that Sarauel Mather was an
instructer ; Mitchell may have been an instructer ; Samuel Dan
forth was, probably, an instructer, or one of those, who were de
nominated Fellows. Whether Eaton and Starr were, I have no
means of knowing. The probabiUty 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 char
ter, 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 narae. Why are they designated as Masters, and
Bachelors, and Inhabitants of the Bay, and not as FeUows ?
As to Sarauel 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 recomraended and dismissed from Cambridge
church, and admitted here." This shows, that he either had then
removed, or contemplated a removal, frora Cambridge. On the
24th Septeraber, 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 settie at
Roxbury was known to the College officers. If residence and
instruction were indispensable for a FeUow of the Corporation,
would his name, under these circurastances, have been inserted
originally in the charter ? He accepted the office. There is no
proof that he ever resigned k, or was removed. If not, then the
legal presumption is, that he remained in office untU 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 " FeUow 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,"

BEFORE THE OVERSEERS OF HARVARD COLLEGE. 397
"Teacher of the church," "Master of Arts," &ic. In a note in
the College Records (No. 3, p. 63) stating his death, it is said,
" This day died Sarauel Danforth, Senior Fellow of the College."
These facts would, probably, be tiiought decisive proof that, not
withstanding Danforth's non-residence, he remained a meraber of
the Corporation unlU 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 thera." *
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
FeUow at the tirae ; but only not then a resident of the society.
It is coraraon, but it is loose language.
Another clrcurastance 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 is, what the writer
means by " FeUow." If he meant a Fellow in the sense of Tutor,
or resident instructer, and as a mere synonyrae, there is no diffi
culty ; and if the Memorial is right, that the instructers 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 CoUege ? 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 wiUing to concede, (what
has not been proved,) that aU the persons named in the charter
were at the tirae Tutors and Fellows, in the sense of the Merao
rial, in the College. What then ? It proves, that they were
eligible as FeUows 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 eUgible as members of the Corpo
ration. * Hist. Collect, vi. 103.

398 JURIDICAL DISCOURSES AND ARGUMENTS.
Mr. Everett now surrenders this point. He adraits, that any
person raay be elected as a Fellow into the Corporation, whether a
resident or non-resident instructer, or not. All he now contends for is,
that, after iheU 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 insliuction were not indispensable qualifications for the office,
the charter did not refer to the existing Fellows. It did not de
signate them ; it did not make it a condition precedent, that they
should be resident and instructers. But, at raost, ex vi termini,
" Fellow" imported a subsequent obligation to reside and instruct.
This point has been already fully considered ; and I leave it, and
proceed lo notice some other documents, introduced by the friends
of the Memorial.
First. In August, 1652, two years after the charter, a collec
tion was directed to be raade 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 after the charter the main
tenance should be for the individual Fellows of the College. I ap
prehend in law, that such a gift, generally made, would be construed,
as a mere gift lo 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, cer
tain Fellows, and poor scholars," and therefore may be construed
justiy lo apply to individuals. But what does this prove ? that
aU the FeUows were to be maintained ? No ; " certain Fellows "
only. At this very time, some of the Fellows, named in the
charter, were doubtless instructers ; all of them probably were not.
This accounts for the distinction.*
The like reraarks are generally applicable to the donation of the
General Court, in June, 1653, " for the more comfortable main
tenance of the President, Fellows, and Students " of the College.!
And the grant is made, in terras, " unto the said Society and Cor
poration." The charter then had an existence, and the Corporation
was recognised, as a subsisting body, governing the CoUege. 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 CoUege ; and if any surplus, it was " to be
* Letter to John Lowell, Esq., p. 62. t Ibid.

BEFORE THE OVERSEERS OF HARVARD COLLEGE. 399
and remain for the College stock, and for further clearing and set
tiing aU matters in the College, in reference to the yearly raainte
nance of the President, Fellows, and necessary officers thereof,
and repairing the houses."* Now this only shows, that there were
Fellows at the College at that tirae, 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 Col
lege ; among thera, 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, this shows,
that the General Court contemplated, that aU the FeUows 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 dona
tions should be continued " to the care and trust of the Overseers
of the College ; " and the produce was " to be for the raaintenance
of the President, Felloivs, and other necessary charges of the
CoUege, and the several yearly allowances of the President and
FeUows ; to be proportioned, as the said Overseers shall determine."!
Now, this proves no more than the fact, that there were then "Fel
lows " 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 im
posed on the College, and the former laws annulled ; [by whom ?] but
he says, " that, whatever we do is to myself and the FeUows unwar
rantable, 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 Fel
lows of the House, who had no authority at all, unless so far as
the Corporation gave them authority. But if he refers to the Fel
lows of the Corporation, he then alludes solely to the negative of
the Overseers. It appears to rae, therefore, that the charter was
really acted upon from its original grant, though feebly.
The grant of Charlestown ferry, in 1654, &ic., is to the sarae
efliect.J * Letter, pp. 63, 64. t Id. 65. t Colony Laws, 1672, p. 30 ; Letter, p. 66.

400 JURIDICAL DISCOURSES AND ARGUMENTS.
In respect to the Fellows' or Tutors' Lot, I can say but littie,
as I have not seen the deed, which is said to be in Latin.* 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 " FeUows " of
the College, eo nomine.-f If so, it was a void grant; for they were
not at that tirae a Corporation, capable of taking in succession by
that or any other name. If given to the existing Body or Corpo
ration, that is, to the governor, fee, for the use of the FeUows,
doubtless it referred to that class of persons, known there at that
time by the name of Fellows, whether they were instructers or
not. We have already seen, that in 1650 " Tutors " and " Fel
lows " were contradistinguished in the CoUege orders. But I ara
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 disraiss this point, there
fore, as one, upon which I ara 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 totaUy 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 CoUege,J I apprehend it is a grant to the Cor
poration in its corporate character.
Glover's legacy, in 1653, to Harvard College, " for and towards
the maintenance of a Fellow there five pounds for ever,"^ 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.
So, Keyne's legacy of £320, in 1653, " for poor and hopeful
scholars, and for some addition yearly to the poorer sort of Fel
lows." II This surely refers to a class of Fellows resident at the
CoUege, 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." H This answers exactly to the
* Memo. 5. t Letter 25, 39, 69. t Id. 69. § Id. 70. || Id. It Id. 170.

BEFORE THE OVERSEERS OF HARVARD COLLEGE. 401
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 FeUows, who did receive thera, 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 sala
ries paid them out of the treasury, shall have their constant resi
dence 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
CoUege ; so that they may be better enabled to inspect the manners
of the scholars, and prevent all unnecessary damage to the so
ciety." 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 too Juniors £15; but no diet aUowed. These
are' tutors to aU such as are adraitted students."*
Now, if Randolph is accurate at aU, it is clear, that all the Fel
lows of the Corporation were not residents at that tirae ; for the
Corporation consisted of five Fellows. In point of fact we know, that
three of the then existing Corporation, to wit, Mr. Shepard, Mr.
Mather, and Mr. Oakes, were not tutors, and two of them were
non-residents. This leads rae 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 wUl tend to explain the meaning of
them."! But what was the case, to which his remarks appUed ? It was one
respecting the borough of Portsmouth, a corporation by presump
tion, and also by a charter of Charles I. The corporation consisted
of a Mayor, twelve Aldermen, and an indefinite nuraber of Bur
gesses. The charter declared, that the election of Mayor should
* Letter 70. Hutch. Collect, of Papers, 477, 5i)2. I 1 Cowper, R. 250.
51

402 JURIDICAL DISCOURSES AND ARGUMENTS.
be thus: that the Mayor, Aldermen, and Burgesses, or the greater
part of them, should assemble, and should there continue, tiU 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 Corpora
tion, that would certainly prove that tutors were not ineligible.
But if from the first institution of the College lo 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 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 FeUow 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 frora 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 appointraent is not required by the charter ;
and the usage could aflirra no raore than that it was not inconsistent
with the charter.
Now, take the case in the raost favorable view, which the Memo
rial states, that for the space of twenty-two years (namely, from 1650
to 1672), the Fellows were residents and instructers. 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 instructers. Now, what are
the admkted facts on this point ? That the usage has been, without

BEFORE THE OVERSEERS OF HARVARD COLLEGE. 403
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 tirae a majority of the Fellows have been non-residents,
and not instructers. Now, this usage, if usage is of any avaU, 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
settie it. An early usage for twenty-two years cannot be permitted
to prevaU 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 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
respectabiUty , talents, or virtues of the different parties. It is clear,
that there was a difference of opinion araong raen of high standing.
Upon full arguraent, and after much excitement, the point was settled
against the exclusive right of the resident instructers ; and for a
century past the Corporation has remained organized with non-resi
dents in the Board. The usage of a century, after such a contro
versy 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 FeUows of
Harvard College in their corporate capacity, and their successors
in that capacity, &c., shall have, he, aU the powers, he, which
they now have, or are entitled to have, fee, and the same are here
by ratified and confirmed unto them, the said President and Fellows
of Harvard College, and to their successors, he, for ever."
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 reUed 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.

404 JURIDICAL DISCOURSES AND ARGUMENTS.
This argument has no foundation in law. In general. Corpora
tions may be said to have no locality ; though the Corporators raay
be local, and entitled to be such only by 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 habi
tation, though it has a name. 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 frequentiy the case with
regard to banks, insurance companies, bridge and turnpike corpora
tions, acaderaies, manufactories, &c. In Sutton's Hospital, 10 Co.
32 b., the Court say, " A Corporation aggregate of many is invisi
ble, immortal, and rests only in intendment of law." So, in Inhabi
tants 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
any where, unless expressly prohibited by the charter. The law
never imputes locality to Corporators, simply because the objects of
the Corporation 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.*
* [The foregoing is not the Argument actually delivered by Judge Story before
the Board of Overseers, but merely the minutes, from which he spoke. It is,
therefore, a mere sketch of the outlines of his Speech.]

ADDRESS

DELIVERED BEFORE THE MEMBERS OF THE SUFFOLK BAR, AT THEIR AN
NIVERSARY, ON THE 4th SEPTEMBER, 1821, AT BOSTON.

[First published in the American Jurist, January, 1829.]
In comparing the present state of jurisprudence with that of
former times, we have much reason for congratulation. In govern
ments purely despotic, the laws rarely undergo any considerable
changes through a long series of ages. The fundamental institu
tions, (for such there must be in all civiUzed 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 sorae temporary exigency. These
edicts rarely touch any general regulation of the state, and still
more rarely atterapt any general melioration of the laws. For the
most part they affect only to express the arbitrary wUl 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 oppres
sion ; 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 slum
bers 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 summarUy, and more with 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.

406 JURIDICAL DISCOURSES AND ARGUMENTS.
Under such circurastances the lapse of centuries scarcely disturbs
the repose of the laws, and men find theraselves 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 tradi
tions. The laws of the Medes and Persians were proverbially immuta
ble. 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 raay be affirraed of some of the Eastern
nations, that, through all the revolutions of their dynasties, k is diffi
cult to point out any fundaraental changes in the powers of the
governraent, the rights of the subject, or the laws, that regulate
the succession to property, since the Christian era.
In free governraenls, and in those, where the popular interests
have obtained sorae representation or power, however Uraited, 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 refine
ment's and elegancies of Ufe. In the heroic and barbarous ages,,
the laws are few and siraple, administered by the prince in person,
assisted by his compeers and councU. But, as civilization advances,
the judicial powers are gradually separated from the executive and
legislative authorities, and transferred to raen, 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, 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, wiU
perceive in the strong lines, which may every where be traced, the
truth of these remarks. And it is raatter of curious reflection,
that, whUe the laws and customs of the East seem in a great meas
ure 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 obscurky and barbarism, under the northern invaders ; and

ADDRESS BEFORE THE SUFFOLK BAR. 407
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 philo
sophical 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 sorae 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
atterapt notiiing 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 coraraon law raay be divided into three great
epochs ; the first extending frora the reign of WUliara the Con
queror to the Reformation ; the second frora 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
establishment of the feudal system, with all its curious burdens
and appendages ; its primer seizins, its aids, its reUefs, its escheats,
its wardships, its fines upon marriages and alienations, and its chiv
alric and soccage services. Connected with these were the dis
tinct 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 forras 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 alraost classical Bracton ; the
neat and perspicuous GlanvUle ; the exact and unknown autiior of
Fleta ; the criminal treatise of Britton ; the ponderous coUections
of Statham, Fitzherbert, and Brooke ; and, above all, the venerable
Year-Books themselves, the grand depositories of the ancient com
mon law, whence the Littletons and the Cokes, the Hobarts and
the Hales, of later times, drew their precious and almost inexhaus
tible 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

408 JURIDICAL DISCOURSES AND ARGUMENTS.
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 phan
toms to perplex, to bewilder, and sometiraes to betray. This, too,
was the age of strained and quaint arguraentation, when the discus
sions of the bar were perilously acute and cunning. And yet,
though ranch of the law of these times is grown obsolete, and the task
of attempting a general revival of it is 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 explored its depths, rough and difficult
as they are, without bringing back instruction fully proportioned to
his labor.
The coraraenceraent of the second period is rendered reraarka-
ble by the enactraent of two statutes, which have probably con
duced 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 aUude to the great statutes of WiUs
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 Chari
table 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 wholesome principles of justice. The
whole modern structure of Trusts, infinitely diversified as k is, by
marriage settlements, terms to raise portions, or to pay debts, contin
gent and springing appointments, resulting uses and implied trusts,
grew out of this statute, and the constructions put upon k. And
it is scarcely figurative language to assert, that the scintilla juris
of Chudlelgh's case is the spark, which kindled the flame, which
has burned so brightly and benignantly in the courts of equity in
modern tiraes.
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 aboUshing the
burdensorae tenures of the Feudal Law. These were the triumphs of
sound reason and free inquiry over the dictates of oppression and igno-

ADDRESS BEFORE THE SUFFOLK BAR. 409
ranee. 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 whole of
this period we may trace a steady improveraent in the great de
partments of the law. Under the guidance of Lord Bacon, the
business of chancery a.ssuraed 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 profound
ness of his, genius, and of the wisdom and comprehensiveness of
his views, can scarcely be imagined. And it may be truly affirmed,
that his Novum Organum scarcely introduced a more salutary
change in the study of physics and experimental philosophy, than
his Ordinances did in the practical administration of equity. The
coramon law, too, partaking of the spirit and enterprise of the tiraes,
gradually shifted and widened its channels. Courts of justice were
no longer engaged in settling ecclesiastical or feudal rights and ser
vices. The intricacies of real actions were laid aside for the more
convenient and expeditious trial of titles by ejectment. Assizes
and writs of entry fell into neglect, and the subtilties of logic were
exchanged for the more useful inductions of coraraon sense. Argu
ments were no longer buried under a mass of learning ; and
reports, instead of overwhelming the profession, as in the pages of
the venerable Plowden, with a flood of ancient authorities and
curious analogies, began to be directed to the points in controversy
wkh brevity and exactness. PhUosophy, too, lent its aid to illus
trate the science ; and the criminal law, though occasionally dis
graced by abuses, was softened by the humanity, Ulustrated by the
genius, and methodized by the labors of the great luminaries of
the law.
The third period may not inaptiy be termed the Golden Age of the
law ; since it embraces the introduction of the principles of com
mercial law, and the application of them with wonderfrd 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 insurance. Lord Holt, wkh great sagacity and
boldness, led the way to sorae of the most important improvements,
by his celebrated judgment in Coggs v. Barnard, in which the law
of baUments is expounded with philosophical precision and fulness.
It is true, that the leading maxims are borrowed from the Roman
52

410 JURIDICAL DISCOURSES AND ARGUMENTS.
law, as the beautiful treatise of Sir William Jones sufficientiy
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 tirae settied, and how
much we owe to the achievements of a single mind. " I have said
thus much " (is his language) " on this case, because it is of great
consequence, that the law should be settied on this point. But I
don't know, whether I may have settied it, or may not rather have
unsettied it. But however that may happen, I have stirred these
points, which wiser heads in tirae may settle." Wiser heads have
not settied these points. This branch of the law stands now, at
the distance of more than a century, on the immovable foundation,
where this great man placed it, the foundation of reason and jus
tice. And, if he had left no other judgment on record, this alone
would justify the eulogy of an erainent raodern judge, that " he
was as great a lawyer as ever sat in Westrainster Hall."
The doctrines of the courts of equity during this last period
have attained a high degree of perfection, though the origin of them
raust in many cases be admitted to belong to the preceding age.
Lord Nottingham brought to the subject a strong and cultivated
mind, and pronounced his decrees after the most cautious and pains
taking study. Lord 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 boundaries be
tween the departraents of the coramon 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 ex
actness as the coraraon law ; and at this moraent there is scarcely
a branch of its jurisprudence, that is not reduced to method, and
does not in the harraony of its parts rival the best examples of the
comraon law. Our own age has witnessed in the labors of Lord
Eldon, through a series of more than twenty-five volumes of re
ports, a diligence, sagacity, caution, and force of judgment, which
have seldom been equaUed, and can scarcely be surpassed ; which
have given dignity, as well as finish, to that curious moral ma
chinery, which, dealing in an artificial system, yet contrives to
administer the most perfect of human inventions, the doctrines of
conscience ex cequo et bono. ,

ADDRESS BEFORE THE SUFFOLK BAR. 411
There is another great name, which adorns this period, respecting
whom it is difficult to speak in terms of moderated praise, and stiU
more difficult to preserve silence. England, and America, and the
civUized world lie under the deepest obligations to hira. Wherever
commerce shall extend its social influences ; wherever justice shall
be administered by enlightened and Uberal rules ; wherever contracts
shaU 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 raen 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 wUl
be held in reverence by the good and the wise, by the honest mer
chant, the enlightened lawyer, the just statesman, and the consci
entious judge. The raaxims of maritirae jurisprudence, which
he engrafted into the stock of the coramon law, are not the exclu
sive property of a single age or nation ; but the common property
of all times and all countries. They are built upon the most
comprehensive principles, and the most enlightened experience of
mankind. He designed them to be of universal application ; con
sidering, 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 Romae, aUa
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 honestiy
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 gen
eral principles, unexampled in extent and unequaUed 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 Chat
ham and Camden, would immortalize him. But the proudest
monument of his fame is in the volumes of Burrow, and Cowper,

412 JURIDICAL DISCOURSES AND ARGUMENTS.
and Douglass, which we may fondly hope wUl 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 ex
treme 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 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 coraraerclal law, bor
rowed from the usages of merchants, the dissertations and commen
taries of foreign jurists, and the inductions of phUosophical 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 bUl 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 rea
soning. Without doubt, many of these changes were brought about by
the enterprise of coraraerce and the philosophizing spirit of the
tiraes. 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 accustom
ing the profession to more comprehensive argumentations and more
perfect generaUzations, gradually wore away that exclusive devo
tion 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 comraon law had its origin in
ignorant and barbarous ages ; it abounded with artificial distinctions

ADDRESS BEFORE THE SUFFOLK BAR. 413
and crafty subtilties, partly from the scholastic habits of its early
clerical professors, and partiy from its subserviency to the narrow
purposes of feudal polity. When this polity 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 venera
ble 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 corapelled
the profession to look abroad for doctrines of more general applica
tion. 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 brUliant
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 BuUer, a proud narae in the English law, in the case of
Lickbarrow v. Mason, fuUy confirra 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 estab
lished 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 under
standing." Although the causes, to which I have aUuded, 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 behaviour. This measure
of consummate wisdom forms a part of the solemn act of settle
ment, which fixed the succession of the throne of England in the
house of Hanover, and was adopted, not merely to secure the per
sonal independence of the judges, but the purity and independence
of the law. The first effect was to check the undue influence c^
the Crown through its judiciay|atronage ; the next, and not least
important, was to restrain the tumultuary excitements of the people.

414 JURIDICAL DISCOURSES AND ARGUMENTS.
Men, for the most part, are wiUing to submit to the laws, when faith
fully and impartially administered. If they are satisfied, that the
judges are incorruptible, they acquiesce in their decisions, even
when they may suspect thera to be erroneous, as the necessary
horaage, by which their own rights and liberties are perraanently
secured. But if the fountain of justice is irapure, and sends forth
bitter waters, stained by influences, which are not avowed, and yet
are scarcely covered ; if judges are removed at pleasure, and ap
pointed 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, wUl 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 inde
pendence 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 in
effectual, 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 reraark 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 proceed
ings, " that he would do that, which would befit a judge to do," is
worthy of everlasting remembrance. But it was his solitary an
swer. 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 com
mands of the Crown. And even Lord Coke, for his conduct on
other occasions, drew from the king the bitter, though perhaps
unjiist, rebuke, " that he was the fittest instrument for a tyrant, that
ever was in Enig]Md;'xTn the reign of Charles II. the conduct of
the Crown was mor^»Beht»M3roflip-ate . and its influence was exerted
to affect the judgmentsOT^^I^^ts, even in private suits. It is
matter of history, that Sir Edmum^aunders, after having advised
the proceedings in the Quo Warranto against the city of London,

ADDRESS BEFORE THE SUFFOLK BAR. 415
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 raore offensive forras, under which the tenure
of ofiices during pleasure wiU 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 wiU 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 comraon-law
judges. But we should have searched in vain for those bright displays
of independence and virtue, for those beautiful arguments in defence
of private rights, for those finished illustrations of pure and exalted
equity, and for those comprehensive commentaries upon commer
cial law, which have immortalized their memories. If their places
were of any value, they must have resigned thera, or reraained the
timid followers of the old law, without the ambition to improve ks
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 falls 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 dally 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 rae the whole artillery of libels, all that
falsehood and malice can invent, or the credulity of a deluded pop
ulace can swallow. I can say, with another great magistrate, upon
an occasion and under circumstances not unlike, ' Ego hoc animo
semper fui, ut invidiam virtute partam, gloriam, non invidiam,
putarem.' "

416 JURIDICAL DISCOURSES AND ARGUMENTS.
The review, which has been hitherto sketched, of the history of
the coraraon 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 compensation for professional services was moderate, and the
judges were not generally selected frora those, who were learned
in the law. The colonial systera restrained our foreign commerce ;
and, as the principal trade was to or through the mother country,
our most iraportant contracts began or ended there. That there
were learned men in the profession in those tiraes, it is not necessary
to deny. But the number was small. And frora 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 com
pletely establish this fact, if it could be seriously controverted.
Our land tkles were simple. Our contracts principally sprung
up frora 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 stUl 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 refine
ments, not belonging to our own age or country ? The few manu
scripts of adjudged cases, which now remain, confirm these remarks.
If here and there, a learned arguraent appears, it strikes us wkh
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 Ulustrated or settied an adju
dication. The progress of jurisprudence since the termination of the War
of Independence, and especiaUy 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 uncomraon devotion to the study of the
law, and uncoraraon ambition to acquire the highest professional
character. The best of our reports scarcely shrink from a com-

ADDRESS BEFORE THE SUFFOLK 1!AR. 417
parison 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 able reports, but that we
shall be overwhelmed by their number and variety.
In this respect, our country presents a subject of very serious
contemjjlation and interest to the profession. There are now
twenty-four states in the Union, in all of which, except Louisiana,
the coramon law is the acknowledged basis of their jurisprudence.
Yet this jurisprudence, partly by statute, partly by judicial inter
pretations, and partly by local usages and peculiarities, is perpetually
receding farther and farther frora the coraraon standard. WhUe the
states retain their independent sovereignties, as they raust 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 con
venience are concerned, a greater uniformity would in raost respects
be desirable. The task, however, of administering justice in the
state as well as national courts, from the new and pecuUar relations
of our systera, must be very laborious and perplexing ; and the
conflict of opinion upon general questions of law, in the rival juris
dictions of the different states, will not be less distressing to the
phUosophical jurist, than to the practical lawyer.
It may not be without utility to glance, for a few moments, at
some of those circurastances, in which the coincidences and differ
ences 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
chUdren and lineal descendants inherit in coparceny, without any
distinction as to primogeniture or sex. In descents in the collateral
Une, there are sorae peculiar modifications in alraost all the states.
In some states there is a difference between the half and the whole
blood ; in others, a difference between inheritances ex parte pa-
ternd and ex parte maternd ; in others, a difference in the order of
succession and representation. Frora the genius of our political
institutions, as well as the habits of the people, there is every
probability, that inheritances wiU continue to descend substantially
in the same manner, as long as our free governments endure. An
53

418 JURIDICAL DISCOURSES AND AKGUMENTS.
attempt to establish the English canons of descent could hardly
succeed, but upon the ruins of all those institutions, which are con
sidered the best protection of a republican governraent. Then, as
to conveyances inter vivos. Lands are universally conveyed by a
deed, acknowledged by the parlies before sorae competent magis
trate, and recorded in sorae 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 forras of conveyance are in general use, and the statute of
Uses being recognised as a part of the common or statute law of
the states, the English doctrines on these subjects are generaUy
adopted. As to testamentary dispositions. Lands are universally
disposable by will. The ceremonies, by which solemn testaments
are evidenced in most of the stales, do not materially differ from
the English statute on this subject. In Virginia and Kentucky,
however, a wUl wholly written and signed by the testator is good,
although there is no subscribing witness. In Louisiana the like
provision exists ; audit is to be observed, that the preceding re
marks are in general inapplicable to this latter state, whose juris
prudence being founded on the civil law, the forms of conveyances,
whether they be donations inter vivos, or donations causa mortis,
are regulated in general conformity to the rule of that law.
2. As to commercial law. From mutual comity, from the natu
ral tendency of maritirae usages to assimilation, and frora rautual
convenience, if not necessity, it raay reasonably be expected, that
the raaritime law will gradually approximate to a high degree of
uniformity throughout the coraraerclal world. This is, indeed, in
every view exceedingly desirable. Europe is already, by a silent,
but steady course, fast approaching to that state, in which the same
commercial principles wUl constitute a part of the public law of all
its sovereignties. The unwritten commercial law of England at
this moment differs in no very iraportant particulars from the
positive codes of France and Holland. Spain, Portugal, and the
ItaUan States, the Hanseatic Confederacy, and the Powers of the
North, have adopted a considerable part of the same systera. And
the general disposition in the maritirae states, to acknowledge the
superiority of the courts and code of England, leaves littie doubt,
that their own local usages wUl soon yield to her more enlightened
doctrines. What a magnificent spectacle will it be, to witness the
estabUshment of such a beautiful system of juridical ethics ; to
realize, not the oppressive schemes of holy alliances in a general

ADDRESS BEFORE THE SUFFOLK BAR. 419
conspiracy against the rights of mankind, but the universal empire
of juridical reason, mingling with the concerns of coraraerce
throughout the world, and imparting its beneficent light to the dark
regions of the poles, and the soft and luxurious climates of the
tropics I Then, Indeed, would be realized the splendid visions of
Cicero, dreaming over the majestic fragments of his perfect repub
lic ; 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 Atiantic states has, indeed, already
attained to a very striking simUarity 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 frora the general doctrines
of that law, but because the nature and extent of those doctrines
have been differently understood. In all the states the sarae law
prevails as to contracts of shipping and affreightraent. In most of
the states bills of exchange and promissory notes are negotiable,
and rest upon the principles, which since the statute of Anne have
won their way into the coraraon law. Virginia affords the most
striking exception to this remark ; for, there, a limited negotiability
only is recognised by law, and parties, who are remote endorsers,
have no remedy against reraote endorsers, except by a suit in equity.
Massachusetts, as far as I know, stands alone in her local usage of
denying days of grace to proraissory notes, unless expressed on the
face of the contract. And it is seriously wished, that by a legisla
tive 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.* There are some few other dissonances frora the
general coraraerclal 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 coin
cidences and differences between the various states. Remedies
are necessarUy modified by the wants and manners of the com
munity ; and processes, which from habk are thought useful and
* 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.

420 JURIDICAL DISCOURSES AND ARGUMENTS.
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 judgraent, if the plain
tiff recovers in the suit. This process, except so far as it be
longs to foreign attachments, (analogous to our trustee process,)
is utterly unknown elsewhere ; and the existence of it among our
selves 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 judiciaUy, that a good cause
of action exists against hira ; 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 aUow this mode of proceeding.
Personal arrests are rare here, even when properly 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 re
sulted principaUy from the sound discretion and integrity of the
Bar. And it is most desirable, that some summary practice,
analogous to that of discharging on coraraon bail, should be au
thorized by the legislature, so that fraud, and circuravention, 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 ti-ying land-tities in all the states in the Union,
except Louisiana and sorae of the New England states, is the
English action of ejectment. It is scarcely modified even in its
sUghtest forras ; and John Doe and Richard Roe are the familiar
guests, hospites antiqui et constantes, of the courts on the pictu
resque 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 civU law
governs all judicial proceedings, and administers all remedies in
personam and in rem. And I cannot help paying my humble
"i homage to the excellence of this code, which, adapting its remedies
!to the exigency of the case, gives complete relief without tram-

ADDRESS BEFORE THE SUFFOLK BAR. 421
melllng itself with prescribed forms, which often perplex, and some-/
times defeat, the ends of justice. In one or two of the adjoining
states, the old anomalous proceeding, known as a plea in eject
ment, still prevails. The use of writs of entry 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 raust be con
fessed, that they are not easily moulded to all the uses, which
modern conveyances and devises render convenient and necessary.
The abandonment of these forras in England, frora a general sense
of their inadequacy to the purposes of justice, and the adoption
there, as well as in most of the Araerican states, of the action of
ejectraent, which has been ascertained by experience to be a per
fect and convenient reraedy, 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 com
mon law. I am not aware, that in any part of New England any
serious difficulties are to be found on this subject, all titles having
had their origin in separate grants, derived directly from the govern
ment 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 fol
lowing the regulations pointed out by certain statutable provisions.
These provisions are very complex, and embrace a variety of stages
of titie, in each of which the purchaser is obliged to observe great pre
cision, 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.

422 JURIDICAL DISCOURSES AND ARGUMENTS.
before the titles are consumraated by grants frora 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 governraent 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, sometiraes at law and
soraetimes in equity, according to the local jurisprudence, by prior
inchoate rights or equitable claims, whether arising under preemp
tions, or settiements, or entries, or other matters, which have been
held to confer upon an adverse claimant a legal preference.
These remarks apply with considerable force to the land laws of
Pennsylvania, Maryland, North Carolina, and Tennessee. But k is
in Virginia, and more especially in Kentucky, which derives its titles
under the Virginia land laws, that they are reaUzed in their fuUest
extent. The systera of land-tities in Kentucky is, indeed, one of
the most abstruse branches of local jurisprudence, built up on arti
ficial 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 approxiraations to certainty in descriptions strangely
vague and inaccurate, thus preserving the legislative intention, and
yet proraoting the great purposes of justice. The vice of the
original systera consisted in enabling any 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, perraanent, 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 atterapt 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 thera, and must have received dif
ferent 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, foUowed close upon the heels of speculation ; if
we consider the infinite diversity, which, under such circumstances,

ADDRESS BEFORE THE SUFFOLK BAR. 423
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, tiiat 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
aUuded, 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 aU certainty, or to
objects not generally known at the tirae by the particular naraes
given to them, or known gerlerally by another name ; and then the
description would be fatally defective for want of what is technically
called " notoriety." Time would faU me to enumerate the doc
trines, 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 pre
cision. But ages wUl probably elapse, before the litigations founded
on k wUl 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 wUl for ever remain an unknown code with a
pecuUar dialect, to be explored and studied, like the jurisprudence
of some foreign nation.
In order to avoid such serious evils, the governraent of the
United States, with a wisdom and foresight, which entltie it to the
highest praise, has, in the system of land laws, which regulate the
sales of its own territorial demesnes, given great certainty, sim
plicity, 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 mUe 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 frac-

424 JURIDICAL DISCOURSES AND ARGUMENTS.
tional sections are formed by navigable rivers, or by an Indian
boundary line. The subdividing lines of quarter sections are not
actuaUy 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 sorae few
exceptions, the public lands in Alabaraa, Mississippi, Louisiana,
Ohio, Indiana, and Illinois, have been sold ; and the system applies
universally to all our remaining territorial possessions. The com
mon law doctrines 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 perraanent boun
dary of their respective territorial possessions, than the different
origin of their land-tities does in the character of their local juris
prudence. 5. Another clrcurastance, which will probably continue to form
a leading diversity in the jurisprudence of the states, is the exist
ence of slavery. This condition of society must necessarUy in
volve 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 pro
hibit its introduction and existence. The property in slaves, par
taking, as it does, of the double aspects of real and personal estate,
being transmissible by descent, and being sold as personalty ; being
perpetuaUy in deraand 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 must
sink deep into the mass of jurisprudence of the slave-holding states,
and furnish ranch litigation in the shape of contracts, conveyances,
torts, or crimes, which other stales 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 aU the other New England states,
equity powers are confined to a few cases, which are specified and

ADDRESS BEFORE THE SUFFOLK B.\R. 425
Umited by legislative acts. In Pennsylvania, a mixed system
exists. No court of 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 recognise and enforce, courts of law, follow
ing equity in this particular, endeavour to give efficacy to these
rights through the instrumentality of remedies at law. Thus, a
tide to land raerely equitable, or resting in a contract, of which a
court of equity would compel a specific performance, is sufficient to
sustain an ejectment at law. 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 coraraon law ; and, as far as I have been enabled to learn,
in the reniairiing states the equity jurisdiction is generally adminis
tered by the courts of coramon law. Wherever the equity jurisdic-
fion is exercised, its adraitted 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 lo give, or lo deny relief, however unequivocally those
guides might speak, whom he was accustoraed to consult. If I
were obliged to speak frora my own very imperfect knowl
edge 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 coraraon law. A
more broad and undefined discretion has been assumed, and a less
stringent obedience to the dictates, of authority, flluch 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 in
vidious to point out, though it would be of great importance to follow.
The slight sketches, which I have thus ventured to draw, of sorae
of the prorainent features of state jurisprudence, do, as I think,
justify the suggestion already raade, that Araerican jurisprudence
can never acquire a horaogeneous character ; and that we must
look to the future rather for increasing discrepancies, than coinci
dences, in the law, and the administration of the law. This is a
consideration of no small moraent to us all ; lest, by being split up
into distinct provincial Bars, the profession should becorae devoted
to mere state jurisprudence, and abandon those raore enhghtened
54

426 JURIDICAL DISCOURSES AND ARGUMENTS.
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 Gov
ernment ; such as treat of the great doctrines of prize and maritime
law ; such as involve the discussion of grave constitutional powers
and authorities; — ills natural to expect, that these courts wiU
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 potentiy, as
when it grasps principles, which fix the destiny of nations, or strike
down lo the very roots of civU polity.
In comparing the extent of Araerican jurisprudence with that
of England, we shall find, that, if in some respects it is more narrow,
in others it is raore coraprehensive. The whole ecclesiastical law
of England, unless so far as it may operate on past cases, is obso
lete. 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 suc
cessfully introduced here, except by the strong arm of marti-al law,
forcing its way by conquest. It was always resisted during our
colonial dependency ; and would now be thought at war with aU,
that we prize in religion or civil freedora. The nuraerous questions
respecting tithes and raoduses, quare irapedits, and advowsons, and
presentations, the fruitful progeny of that establishment, are gone
to the sarae 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 aU estates descending in
coparceny, and entails being practically changed into fee siraple
estates, there is no necessity for those intricate conveyances, settle-

ADDRESS BEFORE THE SUFFOLK BAR. 427
ments, 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 araong us ; and tlie 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 prasmunlre cannot be in
curred ; for we neither court nor fear papal bulls or excorainunica-
tions. Outiawry, as a civU process, if it have a legal entity, is
almost unknown in practice. An appeal of death or robbery
never drew its breath araong us ; nor can it now be brought forth
to batde in its dark array of armor, to astonish and confuse us, as
it recendy did all Westrainster Hall. These are no sraall depart
ments of the common law. A few of thera, 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 claira precedency.
Wkh all these abridgments, however, our law is stUl sufficientiy
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 grap
pled 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 cog
nizable 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 maritirae law, but seizures also for the breach of raunicipal reg
ulations ; when to these are added the interpretation of the treaties

428 JURIDICAL DISCOURSES AND ARGUMENTS.
and statutes of the United States, and the still more grave discus
sion of constitutional question^;, and the relative rights of states and
their citizens, in respect to other states ; — it cannot weU be doubted,
that the administration of justice is there filled with perplexifies,
that strain the human raind to its utmost bearings.
The raost delicate, and, at the same time, the proudest attribute
of Araerican jurisprudence is the right of its judicial tribunals to
decide questions of constitutional law. In other governments, these
questions cannot be entertained or decided 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 becoraes 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
brino'ino every law to the test of the constitution belongs to the
humblest citizen, who owes no obedience lo any legislative act,
which transcends the constitutional limits. Sorae visionary states
men, indeed, who affect lo believe, that the legislature can do no
wrong, and some zealous leaders, who affect to believe, that popu
lar opinion is the voice of unerring wisdom, have, at tiraes, ques
tioned this authority of courts of justice. If they were correct in
their doctrine, we might as well be without a written constitufion
of government, since the minority would always be in complete
subjection to the majority ; and it is to be feared, that the expe
rience of mankind has never shown, that the despotism of numbers
has been raore raild or equitable than that swayed by a single hand.
This heresy, as questionable in point of sound policy, as it is un
constitutional in its language, has hitherto made but littie 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. Lawyers are here,

ADDRESS BEFORE THE SUFFOLK BAR. 429
emphatically, placed as sentinels upon the outposts of the constitu
tion ; and no nobler end can be pioposed for their ambition or
patriotism, than lo stand as faithful guardians of the constitution,
ready to defend its legitimate powers, and to stay the arm of legis
lative, 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 super
human 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 nlory belongs to ihem, 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 des
tinies 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 lo 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 governraent. 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 preroga
tives; or a nobility graced with wealth, and knowledge, and heredi
tary honors ; or a stubborn national spirit, proud of ancient institu
tions, 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 ages before
they are sanctioned by public reverence. The youthful vigor of
our constitutions of governraent, and the strong encouragements,
held out by free discussion to new inquiries and experiments, expose
us to the opposite inconvenience of loo littie regard for what is estab
lished, 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 per-

430 JURIDICAL DISCOURSES AND ARGUMENTS.
suade 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 raust be imperfect,
and leave soraething to discretion, and ranch lo public virtue. It
is in vain, that we insert bills 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 ks chief support is the integrity and in
dependence 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 hos-
,tilky 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 raust stand
rebuked in their ambitious career for power. And it requires no
uncommon spirit of prophecy to foresee, that, whenever the liber
ties of this country are to be destroyed, the first step in the con
spiracy will be to bring courts of justice into odium; and, by over
awing the timid, and removing the incorruptible, to break down the
last barrier between the people and universal anarchy or despotism.
These are dangers common lo all the stales of the Union ;
but there are others, again, not less formidable to the National Gov
ernment. State jealousies and state excitements, arising from acci
dental causes, or stimulated by local feelings or political disappoint
ments, wUl 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 point
ed prohibitions, that no state shall coin money, emit bills of credk,
make any thing but gold and sUver -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 cor
rect, will annihilate their supposed importance ; which wiU make
them an unreal mockery ; a false and hollow sound ; a dead and
polluting letter ; a letter which killeth, when the spirk would make
alive. We have lived to see this constitution, the great bond and

ADDRESS BEFORE THE SUFFOLK BAR. 431
bulwark of the Union, subjected to a minute and verbal criticism,
which the coramon law repudiated even in its most rigorous con
struction 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 raeans, when
the end is required ; to interpret a form of government, necessarily
dealing in general expressions, if it mean to deal with any thino-
except legal entitles and metaphysical notions, Uke 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 Procrustes. And what, let me ask,
with becoming solemnity, what would be the consequence, if these
attempts, repudiating ihe old and settied doctrines of the constitu
tion, should succeed ? What but to subject it to the independent
and uncontrollable interpretation of twenty-four sovereign states;
to give it in no two stales the same power and efficiency ; to wea
ken 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 thera ; 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 slates to remember or to redeem them ?
If the union of the states is to be preserved, (and most earnestiy
must we all hope, that it may be perpetual,) it can only be by sus
taining the powers of the National Government in their fuU vigor,
and holding the judicial jurisdiction, as the constitution holds it, co
extensive 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 con
stitution will sink into a premature and hopeless decline. It wUl
add another, and probably the last, to the long list of experiments to
establish a free governraent, which have alternately Ulumlnated
and darkened the annals of other nations, as renowned in arts and
arms, as they were for their advancement in literature and jurispru
dence.

432 JURIDICAL DISCOURSES AND ARGUMENTS.
Something more I would say on this subject ; but tirae fails me,
and I feel, that I ara 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 tiraes is of deep responsibility and Interest. It depends upon
the present age, whether the national constitution shall descend to
our children in its raasculine 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 rae, 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 ex
tensive range of studies.
In the first place, it cannot be disguised, that we are far behind
the EngUsh Bar in our knowledge of the practice, and of the ele
mentary forms and doctrines of special pleading. I do not speak
here of the technical refiHements of the old law in special plead
ing, 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 suc
cessfully pursued. There is a looseness and Inartificial structure in
our declarations and other pleadings, which betray an imperfect
knowledge both of principles and forras, an aberration frora 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 Iraputation of slov
enliness. The forms of pleading are not, as some may rashly sup
pose, mere trivial forms ; they not unfrequentiy involve the essence
of the defence ; and the discipline, which is acquired by a minute
attention lo their structure, is so far from being lost labor, that it,
probably raore ihan all other employments, leads the student to that
close and systematical logic, by which success in the profession is
alraost always secured. Of the great lawyers and judges of the
English forura one can scarcely be named, who was not distin
guished by uncomraon depth of learning in this branch of the law ;
and raany have risen to celebrity solely by their attainments in k.
We should blush to be accused of perpetual mistakes in grammati
cal construction, or of a gross and unclasslcal style of composition.
Yet these are venial errors, compared with those, with which the

ADDRESS BEFORE THE SUFFOLK BAR. 433
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 under
standing distressed by omissions, which betray the genuine " crassa
neghgentia " 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 me
diocrity, when excellence is within our reach. The time is arrived,
when gentiemen should be scrupulously precise in their drafts of
pleadings, and when the records of our courts should not be de
formed by proceedings, which could not stand the most rigorous
scrutiny of the common law, in form as well as in substance. Ex
emplifications of our judgments raay pass, nay, do already pass, to
England ; and it ought to be our pride to know, that they wiU not
be disgraced under the inspection of the sober benchers of any Inn
of Court. We should study ancient forras and cases, as we study
the old English writers in general literature ; because we raay ex
tract from them, not only solid sense, but the best examples of pure
and undefiled language. There is a belter 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 raeans made a
profound lawyer.
Another source of improveraent 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 thera it is
almost unnecessary to say, that the study is indispensable. But I
address the reraark lo those, who are conversant only with courts
of common law. The principles of equity jurisprudence are of
a very enlarged and elevated nature. They are essentially rational,
and moulded into a degree of moral perfection, which the law has
rarely aspired to. The arguraents in courts of this sort abound
with new views and eleraeniary discussions. They present strong
and brilliant contrasts to sorae of the perplexed notions of the old
common law ; and not unfrequentiy confirra and illustrate doctrines
stricdy legal, by unfolding new analogies, and expounding the na
ture 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
55

434 JURIDIC-iL DISCOURSES AND ARGUMENTS.
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 mutu
ally iUustrate 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 coraraon law becomes familiar
with the lights of equity, its own code will become raore useful and
more enlightened. In our country, the study of equity jurispru
dence 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 branch
es of the law woidd justify or excuse.
Connected with this, and, as a raine 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 civU 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 la
bors of Eraerigon ? 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 shaU
we find the general doctrines of commercial law so 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 deposite of the learn
ing 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 sUently to borrow raany of its best principles from
this enlightened code.* 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 pro
fessors of the civil law.
There is no countrj'- on earth, which has raore 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 comraend them-
* See 12 Mod. 482, by Lord Holt.

ADDRESS BEFORE THE SUFFOLK BAR. 435
selves by their intrinsic convenience and equity. Let us not vainly
imagine, that we have unlocked and exhausted all the stores of
juridical wisdora and policy. Our jurisprudence is youno- and flex
ible; but it has withal a raasculine 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 k 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 raany of our law
yers becorae legislators, it seems to be the study, to which, of all
others, they should raost seriously devote theraselves. Indepen-
dentiy of these considerations, there is nothing, that can give so high
a finish, or so brilliant an ornaraent, 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 ori
gin and extent of moral obligations ; upon the great truths and
dictates of natural law ; upon the imrautable principles, that regu
late 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 raore transcendent dig
nity, or better fitted to employ the highest faculties of genius, than
the development of those iraportant truths, which teach the duties
of magistrates and people ; the rights of peace and war ; the Umits
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 jurisprudence 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 in
struments 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

436 JURIDICAL DISCOURSES AND ARGUMENTS.
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 Puffendorf and Bynkershoek, and Wolfius, and Vat-
tel ? How few have read wkh becoming reverence and zeal the
decisions of that splendid jurist, the ornament, I will not say 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
narae of Sir WUliara Scott ? How few have aspired, even in vision,
after those comprehensive researches into the law of nations, which
the Introductory Discourse of Sir James ftlackintosh has opened and
explained with such attractive elegance and truth ?
Such are some of the studies, frora which American jurispru
dence may, in ray humble judgment, derive essential improve
ments ; 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
alraost incredible rapidity, and with this accuraulation, the labor
of students, as well as of professors, is seriously augraenting. It is
impossible not to look without some discouragement upon the
ponderous volumes, which the next half century wiU 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 recomraend, 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 dis
cordant 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, that such a digest can apply only to
the law, as it has been applied to human concerns in past times.

ADDRESS BEFORE THE SUFFOLK BAR. 437
But by revisions at distant periods it may be made to reflect all the
light, which intermediate decisions may have thrown upon our juris
prudence. To attempt more than this would be a hopeless labor,
if not an absurd project. We ought not lo permit ourselves to
indulge in the theoretical extravagances of sorae well meaning
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 raan
ner so triumphant, that no cavil has been able to le.ssen the fame
of the authors. The Pandects of Justinian, imperfect as they are,
from the haste, in which they wore 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 imraense collections of forraer times, and left them to
perish in oblivion ; so that, of all the ante-Justinlanean jurisprudence,
litde 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 raodern code of France,
— embracing, as it does, the entire elements of her jurisprudence in
the rights, duties, relations, and obligations of civil life ; the expo
sition of the rules of contracts of every sort, including coraraerclal
contracts ; the descent, distribution, and regulation of property ;
the definition and punishraent of criraes ; the ordinary and extra
ordinary police of the country ; and the enumeration of the whole
detail of civil and criminal practice and process, — ^is perhaps the
most finished and inetliodlcal treatise of law, that the world ever
saw. This code forms also the law of Holland, and, with com-
parafively few alterations, has been solemnly adopted as its funda
mental law by the state of Louisiana. The materials of it were
to be sought for araong an alraost infinite variety of provincial
usages and customary laws ; and were far more difficult to reduce
into systera than any, which belong to the coramon 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
successfuUy to accomplish.

438 JURIDICAL DISCOURSES AND ARGUMENTS.
Gentiemen, — I have thus endeavoured, not as I could wish, but
as I have been able, amidst the cares of private life, and the dis
tractions 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 raay derive iraproveraent. May I add,
in the language of the eminent living jurist (Sir James Mackin-
' tosh)* 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 suc
cession of wise raen through a long course of ages, withdrawing
every case, as it arises, frora the dangerous power of discretion, and
subjecting it to inflexible rules ; extending the dominion of jusfice
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 sinide
advocate another motive to quicken his eloquence or zeal, my
humble labor wUl not be without its consolations. We are all
bound by the strong ties of civil obUgatlon, by professional charac
ter, by patriotic pride, and by moral feelings, to cultivate and ex
tend this interesting science. No Bar in America is more justly
entitied to public confidence than that of my native stale ; and
none raay more justiy claira respect for its moral, literary, and
juridical elevation, than that, which I have now the honor to address.
Much, however, remains lo be done, lo 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 araong 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 raany a brilliant hope of his
parents, friends, and country. I will not dwell upon his distin
guished talents and virtues, his blaraeless innocence of life, his
* Introd. Disc. 62.

ADDRESS BEFORE THE SUFFOLK BAR. 439
elevated piety, his unwearied dUigence, his extensive learning, his
ardent devotion to Uterature, his active benevolence, exhausting
itself in good deeds, and " blushing to find it fame." You knew
hiin well, and your sympathies have mingled with the tears and
sorrows, that embalm his memory. But I may propose hira 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 meraory of my
laraented friend and pupil ? " Placide quiescas, nosque, domum
tuam, ab infirmo desiderio et raullebribus laraentls ad contempla-
tionem virtutum tuarura voces, quas neque lugeri, neque plangi
fas est ; adniiratione te potius quam temporallbus laudlbus, et si
natura suppedltet, ffirnulatione decoremus. Is verus honos, ea con-
junctlsslmi cujusque pietas."
We, too, must soon pass away to the torab, where our friends and
instructers, the Ameses, the Sullivans, and the Dexters, the Low
ells, the Danas, the Parsonses, and the Sewalls, are gone before us.
We cannot be indifferent to the fate of our chUdren, or our coun
try; 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 arabition of our manhood, has ranch in its railder
studies to sooth and cheer us in the infirraities of old age. Nor
can k be deeraed a huraan 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 tribu
nals, however dimly they raay 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 recoUections.
May they cherish our memories with that gentie reverence, which
belongs to those, who have labored earnestly, though it raay be
humbly, for the advanceraent of the law. May they catch a holy
entbusiasni from the review of our attainments, however limited
ihey may be, which shall make them aspire after the loftiest pos
sessions of human learning. And thus may they be enabled to
advance our jurisprudence to that degree of perfection, which shaU
make k a blessing and protection to our own country, and excite
the just admiration of mankind.

DISCOURSE

PRONOUNCED UPON THE INAUGURATION OF THE AUTHOR, AS DANE PEO-
FESSOR OP LAW IN HARVARD UNIVERSITY, AUGUST 25th, 1829.

It has been custoraary 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 raay 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 endeav
our not wholly to disappoint the just expectations of my audience
in both respects ; preraising, however, that much reliance raust be
placed upon their indulgence, since the subject affords littie scope
for elegant disquisition, and alraost 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 considera
tions touching the general utility of the study of the law ; and to
address thera with more pointed application to those, who, propose
to make it the business of their lives. In the next place, I shaU
briefly unfold the nature and objects of the professorship, which I
have now the honor to occupy, and the particular studies, which k
comprehends ; so that the noble design of the founder may be
amply vindicated, and receive, as it deserves, the public approba
tion. In proportion, however, to the value and importance of these
studies, I cannot but feel a diffidence, lest they should faU under
my care of becoming as attractive and interesting as they ought
to be ; and lest my own imperfect execution of duty should cast a
shade upon the bright prospects, which the foundEt 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 cora
prehensive, as that of jurisprudence. In its widest extent k raay

INAUGURAL DISCOURSE. 441
be said alraost 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 sup
ported by the eternal law of revelation. It is in this sense, that it has
constkuted 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, naturae congruens, diffusa in omnes, constans, sempi-
terna, quae vocet ad officium jubendo, vetando a fraude deterreat,
quse tamen neque probos frustra jubet aut vetat, nee iraprobos
jubendo aut vetando raovet. Huic legi nee obrogari fas est, neque
derogari ex hac aliquid licet, neque lota abrogari potest. Nee
vero, aut per senatum aut per populum, solvi hac lege possuraus."*
It is in this sense, also, ihat 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, ci-owning 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, and wrongs redressed ; by which
contracts are interpreted, and property is secured, and the institu
tions, which add strength to government, and solid happiness to
domestic life, are firmly guarded ; — if, I say, we contemplate k 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 coramon 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 appeUation of
the dvil law. The latter has been adopted, or, if I may so say,
inosculated, into the juridical polity of all continental Europe, as a
fundamental rule. The former is emphatically the custom of the

' Cic. de Repub. Lib. iii. § 22. See also, Cic. de Legg. Lib. i. § 6.
56

442 JURIDICAL DISCOURSES AND ARGUMENTS.
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 sraall proof of its exceUence, 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 com
mon 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 frora
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 such high antiquity,
that history does not reach its exact origin. Much, indeed, of this
unwritten law may now be found in books, in eleraeniary 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 frora their supposed conformity to those
rules. When our ancestors emigrated to Araerica, they brought this
common law with them, as their birthright and inheritance ; and
they put into operation so much of it, as was applicable to their
situation. It became the basis of the jurisprudence of aU 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 instructer, 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 watch
ful and inflexible guardian of private property and public rights.
It is of this comraon law, in its largest extent, that the Law Insti
tution 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 gentiemen, desire to learn its general
principles.

INAUGURAL DISCOURSE. 443
Nor let any scholar or gentleman imagine, that the study is littie
worthy his attention, unless he is to engage in it for professional
objects. I do not exaggerate its value, when I express the delib
erate opinion, that there is not within the compass of human
attainment any science, which has so dkect 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 com
petent judge, has said,* 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. John
son, 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." f
But there is Uttie 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 conver
sant, and the almost infinite diversity of huraan transactions, to
which it applies ; whoever wiU consider, how ranch 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 saUies of enterprise ; wiU be at no loss to under
stand, that there wUl be ample employment for the highest facul
ties. 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

* Introductory Discourse on the Study of the Law of Nature and Nations.
p. 62, (3d edition.)
t Speech on Amei-ican Taxation, 1774.

444 JURIDICAL DISCOURSES AND ARGUMENTS.
seeks to measure the future by approxiraations to certainty, derived
solely from the experience of the past ; that it must for ever 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 accom
modate and support new interests ; * if, I say, he wUl but add these
things to the account, it wUl soon becorae matter of surprise, that
even the mightiest efforts of genius can keep pace with such inces
sant demands ; and that the powers of reasoning, tasked and sub
tilized, as they must be, to an imraeasurable extent, should not be
absolutely overwhelraed in the atterapt to administer justice.
From its nature and objects, the comraon law, above all others,
employs a most severe and scrutinizing logic. In some of its
branches it is compelled to deal with metaphysical subtUties and
abstractions, belonging to the depths of inteUectual phUosophy.
From this cause it has sometimes been in danger of beina: enslaved
by scholastic refinements, by the jargon of the old dialectics, and
the sophisms of over curious minds. It narrowly escaped ship
wreck in the hands of the schoolmen of the middle ages ; and for
a while was alraost 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 in the coraraon law, and sUently
brought back its votaries to that, which is the end of all true logic,
the just application of principles to the actual concerns of human
life. One cannot but sralle, 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 -(vhich he is followed by Lord Coke, that
the true reason, why by the common law a father cannot inherk
real estate by descent from his son, is, that inheritances are heavy,
and descend, as it were, by the laws of gravitation, and cannot
* See Lord Hale's noble Discourse on the Amendment ol^ the Law, ch. 3.

INAUGURAL DISCOURSE. 445
reascend.* We are again told, that, when the titie to an estate is
suspended upon future contingencies, the inheritance is in the mean
time in abeyance, that is, (as we are taught by the accompanying
explanations,) the inheritance is in gremio legis, or in nubibus, in
the bosom of the law, or in the clouds, which seeras 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 k be now exhausted ; 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 vkal
power executes at once the possession of the estate to those uses,
by some sort of legal legerdemain.f Shakspeare has immortalized
by his genius the report of a case in that book of painful learning,
Plowden's Comraentaries,| 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 kiUed himself in his Ufetime, 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
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 k is reasona
ble 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, in
deed, 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 comraon
law foUows out its principles with a closeness and simplicity of rea
soning, which approach, as near as any artificial or moral deductions
can, to the rigor of demonstration.

" " Descendit itaque jus, quasi ponderosum quid cadens deonsum rectS linea,
vel transversali, et nunquam reascendit ek vik qu4 descendit." Bracton, lib. 2,
ch. 29; Co. Lltt. 11 ; 2 Bl. Com. 212.
t Chudleigh's case (1 Co. Rep. 120) contains some curious reasoning on this
subject. t Plowden's Com. 258, 262.

446 JURIDICAL DISCOURSES AND ARGUMENTS.
How, indeed, can it be otherwise ? It is not employed in closet
speculations, in the sUence 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.
The advocate is stimulated, not merely by the hope of reward,
and devotion to his client, but by the love of fame, to exert aU his
talents in order to detect fallacies and answer objections. He is
not at liberty, from mere courtesy or kindness, from private respect,
or popular feeling, to gloss over the mistakes, or conceal the blun
ders, or suppress the inconsistencies of the argument of his adver
sary. In such places, and on such occasions, the law expects
every raan 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 alraost said, is
never won, without an arduous struggle. Mere fanciful analogies,
and set phrases, and fine turns of expression, and plausible state
ments will not do. They are but shadows or mists, which hover
over the pathways to truth, but do not impede them. They may
blind the novice, or betray the ignbrant ; but they do not deceive
the wary and experienced traveller. There must be a firraer and
closer grapple with realities. The contest is fit for raen 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 gentieman, therefore, the law wiU
be found a study full of instruction, and admirably adapted to brace
his mind to a wholesome discipline. He wUl thus avoid what
Lord Bacon considers sorae of the greatest obstacles to knowledge.
For, says he, " FacUity to believe, impatience to doubt, temerity to
answer, glory to know, doubt to contradict, end to gain, sloth to
search, seeking things in words, resting in part of nature ; these, and
the like, have been the things, which have forbidden the happy
match between the mind of man, and the nature of things." *
I might comraend the study of the law to American citizens gen
erally upon considerations of a broader cast. From the structure
of our institutions, there is much to provoke the vigUance, 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,
* Praise of Knowledge, 2 Bacon's W^orks, 125.

INAUGURAL DISCOURSE. 447
beyond aU others, it is subject to the control and influence of public
opinion. Its whole security and efficiency depend upon the intelli
gence, virtue, independence, and moderation of the people. It can
be preserved no longer than a reverence for settied, uniform laws
constkutes the habit, I had a:lmost said the passion, of the commu
nity. 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 liberty, or compels a surrender of personal privi
leges, upon any pretext, plausible or otherwise, it matters little,
whether it he 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 stiU 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.
Unfortunately, at such tiraes the majority prevail by mere numbers,
and not by force of judgment; numerantur, non ponder antur. 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 Ue at the very foundation of its strength.
An American citizen has many political duties to perform ; and his
activity is constantly demanded for the preservation of the public
interests. He must watch the exercise of power in every depart
ment of governraent; and ascertain, whether it is within the pre
scribed Uraits of the constitution. He is to study deeply and
thoroughly, the elements, which compose that constitution; ele
ments, 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 buiU, (may it be as dura
ble, as k is beautiful! ) are to be examined and weighed. Slight
inconveniences are not to gverturn them ; slight objections are not
to undermine thelS. Whatever is human is necessarily imperfect ;
whatever is practical necfessarily deviates from theory ; whatever
works by human agency works with some inequality of movement and
result. If is easier to point out defects than to devise remedies ; to
toucl» blemishes than to extract tifteoi ; to demolish an edifice than
to erect a convenient substitute. We may not say of forms of
government,'" Whate'er is best adifiinistered is best." But we

448 JURIDICAL DISCOURSES AND ARGUMENTS.
may say, that that, which generally works well, should rarely be
hazarded upon the chances of a better. It has been observed by a
profound statesman, that the abstract perfection of a government,
with reference to natural rights, raay be its practical defect. By hav
ing a right to do every thing, men may want every thing.* 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 raore coraraon 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 nobUity the
general superintendence of legislation and property. But in a re
public, every citizen is himself in some measure entrusted with
the public safety, and acts an important part for its weal or woe.
Our governraent also opens the widest field for talents and exer
tion to every rank of life. Few men, comparatively speaking, may
not indulge the hope, if they covet the distinction, at some tirae to
have a seat in the public councils, and assist in the public legisla;;'
tion. What can be more iraportant 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 injudi
cious araendment introduce 1 One would hardly trust to an unskil
ful 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 born
legislators ; that no qualifications beyond plain sense and common
honesty are necessary for the management of the intricate machine
of governraent ; 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 judg
ment of the best. The least perturbation at the centre may trans-
* Burke on the French Revolution. The whole passage is worthy of commen
dation. 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 alistract perfection. But their abstract
perfection is their practical defecl."'

INAUGURAL DISCOURSE. 449
mit itself through every line of its moveraents ; 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 wUl, 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 legisla
tion is designedly universal in its terms, infinite caution is necessary,
to prevent its working greater iTiischiefs 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 told 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 comraon law," said
Lord Coke, " I should be asharaed 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." * 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 1
But to gentlemen, who contemplate public life with higher
objects, who indulge the ambition of being, not sUent 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
* Teignmouth's Life of Sir W. Jones, 268.
57

450 JURIDICAL DISCOURSES AND ARGUMENTS.
bringing solid wisdom in aid of popular declamation. But I would
speak to the consciences of honorable raen, and ask, how they can
venture, without any knowledge of existing laws, to recommend
changes, which raay cut deep into the quick of remedial justice,
or bring into peril all that is valuable in jurisprudence by its cer
tainty, its policy, or its antiquity. Surely, they need not be told,
how slow every good systera qf laws must be in consolidating;
and how easily the rashness of an hour raay destroyj 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.* Perhaps this is pressing
the reasoning too far. It is more often the result of a strong
imagination and ardent lemperaraent, working upon the materials
of the closet. But it is well in all cases to remember the wise
recomraendation of Lord Bacon, " that men in their innovations
would follow the example of tirae itself; which, indeed, innovateth
greatiy, but quletiy, and by degrees scarce to be perceived." f
And nothing can introduce raore sobriety of judgraent 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.|
It is not, therefore, frora mere professional pride or enthusiasm,
that I would urgentiy recommend to gentiemen, ambitious of pub
Uc life, sorae 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 Uttle raore than
adopt the precept of Mr. Locke, who says it is so requisite, that
he knows of no place, frora a justice of the peace to a rainister of
state, that can be well filled without k.*5> And in the days of For
tescue it was esteeraed alraost a necessary accomplishraent for a
gentiemen of rank.||
* Burke on the French Revolution, t Essay 24.
i Lord Hale in Harg. Tracts, 255. § Locke on Education, p. 84.
II Fortescue De Legg. ch. 49.

1NA.UGURAL DISCOURSE. 451
But my principal object in this discourse is, to address myself to
those, who intend to make die law a profession for life. To them
h 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 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 endeavours 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 recognise Christianity as lying at
its foundations.* For many ages it was almost exclusively admin
istered by those, who held its ecclesiastical dignities. It now
repudiates every act done in violation of its duties of perfect obli
gation. It pronounces illegal every contract offensive to its morals.
It recognises 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 wicked
ness. 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.

* See the remarks of Mr. Justice Park, in Smith v. Sparrow, 4. Bing. R.
84, 88.

452 JURIDICAL DISCOURSES AND ARGUMENTS.
But, apart from this defect, the morals of the law are of the
purest and most irreproachable character. And, notwithstanding
the sneers of ignorance, and the gibes of wk, no men are so con
stantly called upon in their practice to exemplify the duties of good
faith, incorruptible virtue, and chivalric honor, as lawyers. To
them is often entrusted the peace and repose, as well as the prop
erty, of whole families ; and the slightest departure from profes
sional 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 cUents, but it
punishes the offenders, by disqualifying thera from practice. The
rebuke of public opinion, also, foUows 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
corapelled to wear the Uvery of virtue, and to pay her horaage. If
he secretly cherishes a grovelling, vice, he must there speak the
language, and assume the port of innocence. He 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 hlra not debase it by a low and narrovv 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 titie, or to 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
sophisras. Let hira not iraagine, that it is sufficient, if he be the
thing described by Cicero in his scorn ; — "jurisconsultus ipse per
se nihil, nisi leguleius quidara cautus et acutus, praeco actionum,
cantor forraularura, auceps syllabarura ; " * "a sharp and cunning
pettifogger ; a retailer of lawsuits ; a canter about forras, and a
cavUler upon words ; " — or one of the tribe, defined by a inaster-
* Cicero, De Orat. Lib. i. § 55.

IN.\.UGURAL DISCOURSE. 453
spirit of the last age, as the rainisters of municipal litigation, and
the fomenters of the war of village vexation.* God forbid, that
any man, standing in the temple and in the presence of the law,
should imagine that her rainisters are called to such unworthy
offices. No. The profession has far higher airas and nobler
purposes.f In the ordinary course of business, it is true, that
sound learning, industry, and fidelity are tiie principal requisites,
and may reap a fair reward, as they may in any other employment
of hfe. But there are some, and in the Uves of most lawyers
many occasions, which demand qualities of a higher, nay, of the
highest order. Upon the actual administration of justice in aU
governments, and especially in free governments, raust depend
the welfare of the whole community. The sacred rights of prop
erty are to be guarded at every point. I call them sacred, because,
if they are unprotected, all other rights become worthless or vis-
ronary. 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 lo us and all pur pos
terity ? What is the privilege of a vote, if the majority of the
hour may sweep away the earnings of our whole lives, lo 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 reraorse ? If the very graveyards, which contain
the memorials of our love and our sorrow, are not secure against
the hands of violence ? If the church of yesterday raay be the
barrack of to-day, and becorae the gaol of to-morrow ? If the
practical text of civil procedure contains no better gloss than the
Border maxira, that the right to plunder is only bounded by the
power ?
One of the glorious, and not unfrequentiy 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
" Burke's Reflections on the French Revolution.
t I would comraend 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 tinpretending eloquence. Its matters and its
style are excellent.

454 JURIDICAL DISCOURSES AND ARGUMENTS.
parental authority. The lawyer is placed, as it were, upon the out
post of defence, as a public sentinel, to watch the approach of dan
ger, and to sound the alarm, when oppression is at hand. It is a
post, not only fuU of observation, but of difficulty. It is his duty
to resist wrong, let it come in whatever form it raay. The attack
is rarely commenced in open daylight ; but it makes its approaches
by dark and insidious degrees. Sorae captivating delusion, some
crafty pretext, some popular scheme, generally masks the real de
sign. Public opinion has been already won in its favor, or drugged
into a stupid indifference lo 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 unfrequentiy finds
himself at such a moment, putting at hazard the popularity of a
life devoted to the public service. It is then, that the denuncia
tions of .the press may be employed to overawe or intimidate him.
It is then, that the shouts of the multitude drown the still, sraall
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, he is branded as the betrayer of his trust. If he fails in his
labor, he raay be cut down by the sarae blow, which levels his
client. If he succeeds, he raay, indeed, achieve a glorious triuraph
for truth, and justice, and the law. But that very triuraph may be
fatal to his future hopes, and bar up for ever the road lo political
honors. Yet what can be raore interesting than arabition thus no
bly directed ? that sinks itself but saves the state? What sacri
fice raore pure, than in such a cause ? What raartyrdom more
worthy to be canonized in our hearts ?
It may be, that his profession caUs him to different duties. He
may be required to defend against the arm of the government a
party standing charged with sorae odious crirae, real or imaginary.
He is not at Uberty to desert even the guUty wretch in his lowest
estate ; but he is bound to take care, that even here the law shaU
not be bent or broken to bring him to punishment. He will, at such
times, from love of the law, as well as frora compassion, freely give
his talents to the cause, and never surrender the victim, untU the
judgment of his peers has convicted him upon legal evidence. A
duty, not less common, or less interesting, is the vindication of in-

INAUGURAL DISCOURSE. 455
rocence against private injustice. Rank, and wealth, and patron
age may be on one side ; and poverty and distress on the other.
The oppressor may belong lo 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 doraestic
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 raay
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 atterapt to unravel the fraud, and ex
pose the injury, is full of delicacy, and raay incur severe displeasure
among friends, and yield a triuraph to eneraies. But it is on such
occasions, that the advocate rises to a full sense of the dignity of
his profession, and feels the power and the responsibUity of its
duties. He raust then lift hiraself 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 lo iraagine, that little raore
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 imagi
nation, 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 clear
ness 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.

456 JURIDICAL DISCOURSES AND ARGUMENTS.
Whoever shall indulge in such visionary views wUl find his
career end in grievous disappointment, if not in disgrace. I know
not, if among huraan sciences there is any one, which requires such
various qualifications and extensive attainraents, as the law. While
it deraands the first order of talents, genius alone never did, and
never can, win its highest elevations. There is not only no royal
road to sraooth the way lo the summit ; but the passes, like those
of Alpine regions, are sometimes dark and narrow ; sometiraes bold
and precipitous ; soraetimes dazzling from the reflected light of
their naked fronts ; and sometiraes bewildering frora the shadows
projecting from their dizzy heights. Whoever advances for safety
must advance slowly. He raust cautiously follow the old guides, and
toil on with steady footsteps ; for the old paths, though well beaten,
are rugged ; and the new paths, though broad, are still perplexed.
To drop all raetaphor, the law is a science, in which there is no sub
stitute for diligence and labor. It is a fine reraark of one, who is him
self 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." * But this truth is no where raore
forcibly raanifested than in the law. Here, moderate talents with
unbroken industry have often attained 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 raerely to guard
hiraself against despondency on account of expectations too san-
guinely indulged ; but also to stimulate his zeal, by a proper
estimate of the value of perseverance. He, who has learned to
survey the labor without dismay, has achieved half the victory.
I will not say, with Lord Hale, that " The law wiU 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 a lavish horaage.
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 elegantiy said, " The gathered wisdom of
* Chancellor Kent's Introductory Discourse, p. 8. Why has this finished Dis
course been withdrawn from his Commentaries ?

INAUGURAL DISCOURSE. 457
a thousand years; "* 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 one age ; but of the wisdom, coun
sel, experience, and observation of many ages of wise and observino-
men."t 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 lo real estate, is princi
pally derived from the feudal polity and usages, and is in a great
measure uninteUigible without an intimate acquaintance with the
pecuharities of that system. This knowledge 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 appear
ance ; 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
Spelman f depicted his own distress on entering upon such
studies, when at the very vestibule he was met by a foreign lan
guage, a barbarous dialect, an inelegant method, and a mass of
learning, which could be borne only upon the shoulders of Adas ;
and frankly admitted, that his heart sunk within hira at the prospect.
The. defects of a foreign tongue, and barbarous dialect, and inele
gant 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 greatiy accumulated in the interraediate period.
He may, perchance, escape from the dry severity of the Year-
Books, and the painful digestion of the Abridgments of Statham,
Fitzherbert, and Brooke. He may even venture to glide by the
exhausting arguments of Plowden. But Lord Coke, wkh 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 ;
• Teignmouth's Life of Sir W. Jones, 100.
t Lord Hale, in Preface to Rolle's Abridgment, 1 Coll. Jurid. 266.
» Preface to his Glossary. The passage is partially quoted in 1 Blackstone's
Com. 31, note. See, also, p. 227, supra.
58

458 JURIDICAL DISCOURSES AND ARGUMENTS.
and he may deem himself fortunate, if after many years' devotion to
Fearne, he may venture upon the interpretation of that darkest of aU
mysteries, a last wiU and testament. So true it is, that no man
knows his own wUl so ill, as the testator ; and that over-solicitude to
be brief and siraple ends in being profoundly enigmatical. " Dum
hrevis esse laboro, ohscurus fio."
In the next place, as has been already hinted, every successive
aoe 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 Utigation is dried up, raany new ones break out in un
suspected places. In fact, there is scarcely a single branch of the
law, which belonged to the age of Queen Elizabeth, which does
not now corae within the daUy conteraplation of a lawyer of extensive
practice. And all these branches have been spreading to an incal
culable extent since that period, by the changes in society, wrought
by coraraerce, agriculture, and manufactures, and other efforts of
huraan ingenuity and enterprise.
We are, therefore, caUed upon at this moment to encounter, ay,
and to master, the juridical learning of the three last centuries,
during which the talents of the Bar, and the researches of the
Bench are embodied in solid and enduring volumes. Fortescue *
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 pleas
ure ; so that it seemed rather a life of conteraplation than of much
action ; and that their time 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 admk
the heavy and almost overwhelraing burdens of the law. And
we in the nineteenth century may well look with sorae apprehen
sion upon the accuraulations of our own times. It is not an
over-statement 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
• Fortescue, De Laud. Legum Angliae, cap. 51.

INAUGURAL DISCOURSE. 459
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, raore
than two hundred volumes. If to these we add the exceUent
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, wUl scarcely suffice to attain the
requisite learning.
In truth, the coramon law, as a science, must be for ever in
progress ; and no limits can be assigned to its principles or improve
ments. 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 more than a
declaration, that the human mind cannot compass all human trans
actions. 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 for ever
an unapproached degree of excellence ; that it moves onward in
the path towards perfection, but never arrives at the ultimate point.
But the student should not imagine, that enough is done, if he
has so far mastered the general doctrines of the comraon law, that
he may enter with sorae 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 narrow
ness, wkh a low chicane, with a cunning avarice, and with a defi
ciency 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 under
standing ; and that men too much conversant in office are rarely
minds of remarkable enlargement.* And Lord Bacon complains,
that lawyers have never written as statesmen.f The reproach is
in some measure deserved. It is, however, far less true in our age
than in former times ; and far less true in America than in Eng-
* See Burke's Reflections on the French Revolution, and Speech on American
Taxation. t Lord Bacon on the Advancement of Learning, 1 Bacon's Works, 218.

460 JURIDICAL DISCOURSES AND ARGUMENTS.
land. Many of our most Ulustrious statesmen have been lawyers ;
but they have been lawyers liberalized by philosophy, and a large
intercourse with the wisdom of ancient and raodern tiraes. The
perfect lawyer, like the perfect orator, raust accoraplish himself for
his duties by famUiarity with every study. It may be truly said,
that to hira nothing, that concerns huraan nature or huraan art, is
indifferent or useless. He should search the huraan heart, and
explore to their sources the passions, and appetites, and feelings of
mankind. He should watch the motions of the dark and malig
nant passions, as they silently approach the chambers of the soul
in its first slumbers. He should catch the first warm rays of sym
pathy and benevolence, as they play around the character, and are
reflected back frora its varying lines. He should learn to detect
the cunning arts of the hypocrite, who pours into the credulous and
unwary ear his leperous distUment. He should for this purpose
make the raaster-spirils of all ages pay contribution to his labors.
He should walk abroad through nature, and elevate his thoughts,
and warm his virtues, by a conteraplation of her beauty, and mag
nificence, and harraony. He should examine well the precepts of
religion, as the only solid basis of civU society ; and gather frora
thera, not only his duty, but his hopes ; not raerely his consolations,
but his discipline and his glory. He should unlock all the treasures
of history for Ulustration, and instruction, and adraonition. He will
thus see raan, as he has been, and thereby best know what he is.
He wUl thus be taught to distrust theory, and cling to practical
good ; to rely more upon experience than reasoning ; more upon
institutions than laws ; raore upon checks lo vice than upon
motives to virtue. He wiU become more indulgent to human
errors ; more scrupulous in means, as well as in ends ; raore wise,
more candid, raore forgiving, raore 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 raust 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 philoso
phy, which dweUs, not in vain imaginations, and Platonic dreams ;
but which stoops to life, and enlarges the boundaries of human

INAUGURAL DISCOURSE. 461
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 literature 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 dic
tion 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 famUiar, but disembodied spirits.
It is by such studies, and such accomplishments, that the means
are to be prepared for exceUence in the highest order of the pro
fession. The student, whose ambition has measured thera, 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 unked in the same person,
human genius has approached as near perfection, as it may. They
are kindred arts, and flourish best in the neighbourhood of each
other.* ' X
The eloquence of the bar is far more various and difficult than
that, which is required in the pulpit, in the legislative haU, 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 raay be said to be grave, deliberative, and
earnest, allowing littie indulgence to fancy, and less to rhetoric.
But, as it raust 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 littie plays of phrase, the vivid touches of the
pencU, and the pomp and parade of diction. It is plain, direct,
and authorkative. Its object is to convince the understanding, and
captivate the judgment, by the strength and breadth of its reasoning.
* " Prfficlaras duas artes," says Cicero, " atque inter se pares, et ejusdem socias
dignitatis." Cic. de Oratore, Lib. i. § 55.

462 JURIDICAL DISCOURSES AND ARGUMENTS.
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 argu
ment, which crushes, in its fall, what it has not levelled in its pro
gress. At other tiraes 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 tiraes it is earnest, irapassioned, and electrify
ing ; awing by its bold appeals, or blinding by its fiery zeal. At
other tiraes it is searching, and acute, and rigorous ; now briUiant
in point, now gay in allusion, now winning in insinuation. At other
times it addresses the very souls of raen in the most touching and
pathetic admonitions. It then mingles with the close logic of the
law those bewitching graces, which soothe prejudice, disarm resent
ment, or fix attention. It utters language, as the occasion demands,
which melts to pity, or fires with indignation, or exhorts to clem
ency. But, whatever may be the variety of effort demanded of forensic
eloquence, whether lo convince, or captivate, or persuade, or in
flame, or raelt ; slid its main character must for ever be like the
" grave rebuke," so finely sketched by our great epic poet, " severe
in youthfid beauty," that it may possess an " added grace invinci
ble." * It may not stoop to ribaldry, or vulgar jests, or sickly
sentiraentality, or puerile conceits. It forbids declaraation, and
^efflorescence of style. There is no room for the loquacity of
ignorance, or the insolence of pride. If wit be allowable, it raust
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.
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 Dex
ter, and Pinkney, and Eramett 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 Uving.
Long, long may they enjoy the privilege of being nameless here,
whose names are every where else upon the lips of praise. y
" Paradise Lost, Book iv. line 844.

INAUGURAL DISCOURSE. 463
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, stUl he wiU
have risen by the attempt, and will sustain a nobler rank in the
profes.sion. If he raay not rival the sagacity of Hardwicke, the
rich and lucid learning of Mansfield, the marvellous judicial elo
quence of StoweU, the close judgment of Parsons, the comprehen
sive reasoning of Marshall, and the choice attainments of Kent ; —
yet he wiU, by the contemplation and study of such models, exalt
his own sense of the dignity of the profession, and invigorate his
own inteUectual 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
k moves on, until it is lost in that common distance, which buries
aU 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 Institu
tion here, under the guidance of its present Professors, can fill up
the outiine, which has thus been traced. My learned brother wiU,
indeed, bring to the task of instruction, the ardor, the attainments,
and the experience, which elsewhere have given him such an elevated
reputation. Littie, 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 littie, 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, famUiar 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 littie I can bring to the
task, worthy of the occasion. The perpetual round of judicial
duties, fuU of anxious thoughts and anxious vigils, might, even at
an eariier 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

464 JURIDICAL DISCOURSES AND ARGUMENTS.
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." * 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." f 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 Uberal donation, I should have declined a post, which others
might fill with more undivided attention, though not, perhaps, with
more sincere zeal. Under such circurastances, I hope, that I raay
be permitted to occupy a few moments more, in expounding the
objects of this professorship, and thus demonstrate the wisdom and
raunificence 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, Maritirae and Commercial Law, Equity Law, and, lastiy,
the Constitutional Law of the United States. No reflecting raan
can hesitate to admit the importance of these branches of jurispru
dence, and their intimate connexion with the best interests of
civilized society. To comraent on either of them fully and
worthily might well employ the diUgence of a long life, without
exhaustion or repetition. A course of lectures, therefore, which
erabraces thera all, must necessarily treat them in a brief summary,
and imperfect raanner. It must suggest matter for inquiry, rather
than expound principles with copiousness. It must excite, rather
than satisfy, curiosity. It must Ulustrate by examples, rather than
exhaust by analysis. It must display the foundations, rather than
the size or exact proportions, of the edifice. It raust, if I may
venture upon such a raetaphor, conduct the inquirer to the vestibule
of the temple of jurisprudence ; and leave lo his future curiosity
the survey of its magnificent haUs, its decorated columns, its splen
did porticos, its harmonized orders, its massive walls, its varied
crypts, its lofty domes, its " ever-during gates, on golden hinges
moving." * Lord Redesdale. t Chancellor Kent.

INAUGUR.iL DISCOURSE. 465
And first, the Law of Nature. This lies at the foundation of all
other laws, and constitutes the first step in the science of jurispru
dence. The law of nature is nothing more than those rules, which
human reason deduces from the various relations of raan, to form
his character, and regulate his conduct, and thereby ensure his
permanent happiness. It embraces a survey of his duties lo God,
his duties lo himself 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 thera in return. It is, therefore, in the largest sense,
the philosophy of morals ; what Justinian has defined justice to be :
" Constans el perpeiua voluntas jus suum cuique trlbuendi ;" or
what may be denominated national jurisprudence, as expounded by
the same authority : " Divinarum atque humanarura rerum notitia,
justi atque injusti scientia." With us, indeed, who form a part of
die 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 wkh far more clearness and
perfection than had been known before its promulgation ; and has
given a commanding force to those of imperfect obligation. It
relieves the raind from many harassing doubts and disquietudes ;
and imparts a blessed influence to the peaceful and benevolent
virtues, to mercy, charity, hurailky, and gratitude. It seeras to
concentrate all morality in tiie simple precept of love to God and
love to man. It points out the original equality of aU mankind in
the eyes of the Supreme Being, and brings down the monarch to
the level of his subjects. It thus endeavours to check the arro
gance of power, and the oppression of prerogative ; and becoraes
the teacher, as well as the advocate, of rational Uberty. Above aU,
by unfolding, in arTilore authoritative raanner, the doctrine of the
immortality of theVsoul, it connects all the motives and actions of
man in his present g-^ate wkh his future interminable destiny. It
thus exhorts him to the practice of virtue, by all, that can awaken
hope, or secure happiness. It deters him from crimes, by all, that
can operate upon his fears, his sensibility, or his conscience. It
59

466 JUltlDICAL DISCOURSES AND ARGUMENTS.
teaches hira, 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 elevating its precepts.
In this manner it is, that the law of nature involves a considera
tion of the nature, faculties, and responsibilities of raan. From his
intellectual powers, and the fi-eedom of his will, it deduces his moral
perceptions and accountability. From his love of happiness, as ihe
end and aira of his being, it deduces the duty of preserving that
happiness. Frora his dependence upon the Supreme Being, whose
will has indissolubly connected virtue with happiness, it deduces
the primary duty of obedience to that will. Frora 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 obliga
tions and duties. It considers him as a solitary being, as a member
of a family, as a parent, and lastly, as a raeraber of the comraon-
wealth. 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.*
Upon many of these topics, of which a very imperfect 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, every where 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
recognised among nations (as seeras to have been the prevaUing
* Mr. Hoffman's Legal Outlines, of which the first volume only is yet pub
lished, contains sorae 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.

INAUGURAL DISCOURSE. 467
sense of the phrase in the Roman code) ; but that portion of public
law, which regulates the intercourse, adjusts the rights, and forras
the basis, of the commercial and political relations of states with
each other. Perhaps the most appropriate name would be, Inter-
nafional 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 ap
plied 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 con
venience ; and, thirdly, the conventional or diplomatic law of
nations, which embraces positive compacts by treaties and conven
tions between nations, and derives its sole obligation from the sarae
sources as other contracts. Under this last head many regulations
win now be found, which at first resulted from custora, or a general
sense of justice, and are now raade 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 raost extraordinary raan, Grotius, whose treatise,
de Jure Belli et Pads, was the first great effort in modern times to
reduce into any order the principles belonging to this branch of
jurisprudence, by deducing them from the history and practice of
nations, and the incidental opinions of philosophers, orators, and
poets. His eulogy has been already pronounced in terras of high
commendation, but so just and so true, that it were vain to follow,
or add to his praise.* Puffendorf in a dry, didactic raanner, has
drawn out, in the language of the tiraes, much to strengthen the
conclusions of his master upon natural law; and the sagacity of
Barheyrac, 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 elabo
rately 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. Bynker-
shoeck is a writer of a very different cast ; and in a clear, bold, and
uncompromising manner lays down his principles, as practical
Sir James Mackintosh, in his Introductory Discourse on the Law of Nations.

468 JURIDICAL DISCOURSES AND ARGUMENTS.
results, with a brevity and vigor, which give them almost the
authority of a text-book. He is not, however, a raere apologist,
or collector of usages; but he insists, with an aniraated vehemence,
that reason is the very soul of the law of nations. " Ratio ipsa,
inquara, ratio juris gentium est anima."*
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 ex
pectations of a scholar or a publicist. There is yet living, a man,f
whose character, as a phUosophical moralist, enlightened statesman,
and liberal jurist, commands universal respect, who taught us in his
early performances, that lo his genius we might thereafter owe such
an invaluable donation. But the lapse of thirty years, and the se
ductive influence of otiier 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 inde
pendence of nations ; the rights of public domain, and territorial
jurisdiction in rivers, bays, lakes, and streams, and the ocean ; the
intercourse of nations in limes of peace in respect to commerce
and navigation ; the imraunilles, and Uabilities, and privileges of
foreioners ; the rights and duties of ambassadors and other minis
ters ; the grounds of just war; the rights and duties of belligerents
and neutrals, and the limits of just hostilities; the rights of con-'
quest ; the nature of piracy ; the nature and effect of alliances,
armistices, passports, and safe-conducts ; and the negotiation, inter
pretation, and obligation of treaties of peace and other treaties.
My object wUl be, in the discussion of these topics, to expound the
general theory with as much conciseness as the nature of the case
wUl adrait ; and to devote my principal labor to the development of
those practical results, which are of perpetual application in the
comraon business of Ufe, and regulate the daily concerns of indi
viduals and nations, in peace and in war. For this purpose, I shall
adventure far raore than has been usual with publicists, into an
examination of those general principles of jurisprudence, which
* 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.
1 Sir James Mackintosh. [He is since dead.]

INAUGURAL DISCOURSE. 469
affect the contracts, govern the tities, 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 belonging to the operation of
foreign jurisprudence, or, as it is sometimes called, the lex fori et
lex loci. Among these are the law of foreign domicil and expa
triation ; 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 jurisdic
tion, exercised by courts of law in enforcing rights between foreiun-
eis, 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 suraraary 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 lime adorned the
English and American courts of admiralty. And, above all, I
shall endeavour 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,* lo whom,
in my deliberate opinion, the worid 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, Equky Jurisprudence. This is a very cora
prehensive head of our municipal law, and in its actual administra
tion probably embraces as great a variety and extent of learning,
as the aggregate of all those, which now fall within the jurisdiction
of the courts of coraraon law, in the strict sense of the terras.
The jurisdiction in equity is soraetiraes concurrent with courts of
common law, as in matters of account, partition, and dower; and
* Lord Stowell (late Sir William Scott).

470 JURIDICAL DISCOURSES AND ARGUMENTS.
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, which the remedial justice
of the comraon law courts cannot reach. It is a common, 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 settied 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 boni jurisconsulti. There
is, therefore, among those, who have not cultivated it as a science,
a spectral dread of it, as if sorae unquiet spirit walked abroad to
disturb the repose of tities, 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 Umited 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 con-
clu.slons. 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 tirae, or the occasion.
In the next place, Coraraerclal and Maritirae Law. By com
mercial law, we are accustomed to understand those branches of
jurisprudence, which regulate the operations of trade at home and
abroad ; and by maritirae law, those, which concern navigation,
shipments, coraraerce, and other transactions on the sea. In truth,
they are perpetually running into each otiier, as the streams of
many rivers flow into the ocean, and form a part of its mass of
waters, and are alraost incapable of an absolute separation. There
can be little need to descant upon the value and iraportance 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 horae to every man's business and bosom ; and is
as captivating by the philosophy of its doctrines, as it is commen
dable for its sound morals, its flexible adaptations, and its enlight-

INAUGURAL DISCOURSE. 471
ened policy. Much of its excellence, it must be admitted, is the
growth of raodern tiraes. Its history may be easily traced back to
the classical shores of the Mediterranean, where maritime enter
prise, upon the revival of letters, spread itself with wonderful
rapidity and success. It succeeded the age of chivalry ; and, by
blending the coraraon 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 Cala
bria to the frozen Baltic. The Consolato del Mare, which stiU
instructs us by the wisdom of its precepts, is but a collection of
the rules and maxiras of this voluntary international code. The
celebrated Ordinance of Louis the Fourteenth (which wUl be
gratefully remembered, when his ambitious projects are lost in the
dimness of tradition) is little more than a text gathered frora 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 beautiful effort
of human reason. Littie more than a century has elapsed, since
she could scarcely be said to possess any commercial jurisprudence.
The old coramon lawyers repelled it with a sullen inhospilality 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 thera to protect the interests, which the
enterprise of her subjects had created ; it may be reasonably ques
tioned, 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 certainly, which
surprise us more and more, as we examine and study his decisions.
That he borrowed much frora foreign jurisprudence is adraitted ;
but he raore 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.

472 JURIDICAL DISCOURSES AND ARGUMENTS.
It is almost universally followed and obeyed ; not, indeed, as of
positive institution ; hut 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 re
proach. A treatise upon this branch of law must necessarily comprehend
a wide range of subjects. It raust discuss, among other things,
the law of principals and agents, brokers, factors, and consignees;
of partnerships, and other joint ownerships; of negotiable instru
ments, such as bills of exchange, proraissory notes, checks, and
bills of lading ; of contracts of bailment, shipments, and affreight
ment ; and, as incidents, of charter-parties, freight, demurrage, and
stoppage in transitu; 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 wliich every system of lectures raust be circum
scribed. In the last place, the Constitutional Law of the United States.
In the correct exposition of this subject there is not a single
Araerican citizen, who has not deep stake and perraanent interest.
" In questions raerely political," says Junius, " an honest raan may
stand neuter. 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?"* 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 govern
ments, and tends, or should always tend, to bring thera into a due
equUibriura. There is no safety lo our civil, religious, or political
rlu-hts, except in this union. And it is scarcely too ranch to affirm,
that the cause of liberty throughout the world is in no small meas
ure suspended upon this great experiment of self-government by
the people. I shall endeavour, in my commentaries upon this
important branch of political law, to discuss it with all the delicacy
and reserve becoming ray official station, and with all the sobriety
appertaining to the fundaraental law of organization of a free gov-

* Letter 41, to Lord Mansfield.

INAUGURAL DISCOURSE. 473
eminent. My object wiU 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
littie with speculative discussions, and still less with my own per
sonal opinions. But I shall rely with undoubting confidence upon
the eariy commentaries of its framers, upon the legislative recogni
tions 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 * of HaraUton,
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 restiessness 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 outiine 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 outiine is, it raust strike the most superficial ob
server, 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 sagacity, and 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 tirae ad
monishes 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 feariess confidence
in the midst of dangers, which appall the traveller, who has never
made trial of his strength. Lord Coke, himself a prodigy of pro
fessional learning, has somewhere laid down, for the benefit of
students, the various employments for every day, and has assigned

* The Federalist.
60

474 JURIDICAL DISCOURSES AND ARGUMENTS.
six hours for the pursuit of the law.* Lord Hale has Uraited his
exactions to the same period ; f and Sir William Jones, whose eariy
ambition thought, that all the departments of law might be mas
tered by a single mind in satisfactory coraraentaries, has not ven
tured upon a different asslgnraent of labor.;]: I feel justified in
saying, that for raore than fifty years our generous patron has daily
devoted to his favorite studies of politics and jurisprudence more
than double that nuraber of hours.
I trust, it wUl not be deeraed an intrusion, if upon this occasion
I venture to speak soraewhat of the pubhc services of this distin
guished lawyer, which are already raatter of notoriety, and, con
sidering his age and character, may alciiost be deeraed matter of
history. It is now raore 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
iraproveraents 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 interraediate period he served
many years 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 advanceraent to public life was always un
sought for by hiraself; 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 funda
mental law of the states northwest of the Ohio. It is a monument
of political wisdom, and sententious skilfulness of expression. It
' Co. Lltt. 64 b.
" Sex boras somno, totidem des legibus acquis,
Quatuor orabis, des epulis duas.
Quod superest, ultro sacris largire camcenis."
t Boswell's Life of Johnson, iii. 398.
i 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, 12.3.

IS

INAUGURAL DISCOURSE. 475
was adopted unanimously by Congress, according to his original
draft, with scarcely the alteration of a single word. After hi.
refirement frora 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 fathel- of the
profession in his own county. In the raidst of an extensive prac
tice, he found leisure to compile his Digest and Abridgment of
American Law, which, in eight large octavo volumes, coraprehends
a general survey of all our jurisprudence, and attests the depth of
his learning, his unwearied industry, and his independent, but cau
tious, judgraent. It is now sorae years since he bade farewell to
the bar, but not to his favorite studies.* In contemplating his pro
fessional character, one is perpetually reminded of the fine portrak
of Lord Chief Justice Rolle, drawn by Lord Hale, in his Preface
to Rolle's Abridgment of the Law, which has so close a resem
blance, that k seems another, and the same. " He aro-ued fre
quently and pertinentiy," says Lord Hale ; " his arguments were
fitted to prove and evince, not for ostentation ; plain, yet learned ;
short, if the nature of the business perraitted, yet perspicuous.
His words few, but significant and weighty. His skill, judgraent,
and advice, in points of law and pleading, were sound and excel
lent. — In 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 raust stop ; and that to pursue it farther would
cover hira with hurailiation, who now addresses you. To the lib
eral 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 text-book, it probably stands un
rivalled 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 simUar achievement blend his
A supplementary volume (now constituting the ninth) of his Digest and
Abridgment, w.-is published by Mr. Dane a short time after this Discourse was
delivered, — which contains an abstract of thirty volumes of reports.

476 JURIDICAL DISCOURSES AND ARGUMENTS.
own immortality with the fame of the founder. Would to God,
that it may be so ! Then would this fair seat of science becorae
the pride of the law, as it now is the pride of the Uterature 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 Coramon-
wealth ; when we recollect, how many distinguished men have been
nourished in her bosora, and warmed by her bounty, and cheered
by her praise ; * it is impossible to suppress the wish, the earnest
wish, that this last triumph may yet crown her matron dignity.
What consolation could be more affecting to her grateful chUdren,
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 raature their genius, and
deepen their learning, and purify their arabition ; 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, fraU man ; but, without any
regard to persons, commands that, which is good, and punishes evU
in all, whether rich or poor, high or low. It is deaf, inexorable,
inflexible." f
* 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.
t Works of Algernon Sidney, sect. 15, p. 69.

POLITICAL PAPERS

REPORT
ON THE SUBJECT OF AN INCREASE OF THE SALARIES OF THE JUSTICES
OF THE SUPltEME COURT OF MASSACHUSETTS, MADE TO THE HOUSE OF
REPRESENTATIVES OF THAT STATE, IN JUNE, 1806.*

The Coramittee, to whom was referred the order of the House
of Representatives, " to consider, whether any addition is necessary
to be made to tiie salaries of the judges of the Supreme Judicial
Court of this Comraonwealth," report: That the constitution of
this Comraonwealth has provided, " that permanent and honorable
salaries shaU 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 perraanent corapensations of the said justices,
they being debarred by law from receiving any fees or perquisites.
By occasional resolves, from 1794 to 1804, temporary grants have
been made to the said justices, of suras, varying frora $166.66 to
$600; but these grants have been Uraited to one year. By a
resolve of March, 1804, a grant was made to the said justices of
|800 annually for three years, commencing in January, 1804,
which, of course, expires with the present year.
* " Permit me to recommend to your consideration the contents of a letter, ad
dressed to me by Theophilus Parsons Esq., Chief Justice of the Supreme Judicial
Court, relating to the compensation allowed to justices of that court, and particu
larly to the grants made by the Legislature in part of it, which are not permanent."
— Extract from Gov. Strong's Message, June, 1806.

480 POLITICAL PAPERS.
The Committee further report, that, although it would be unbe
coming in thera to decide, that the acts of the legislature are in any
manner a violation of the constitution ; yet, they respectfully sub
mit, whether the temporary grants aforesaid can be considered such
a permanent compensation, as is within the purview of the article of
the constitution above recked, 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 Com
mittee 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 pur
pose the words of the constitution, applied to the salary of the
governor, and which seem, frora their connexion with the clause
relative to the salaries of the judges, as weU 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 raerabers of the General Court, by a
dependence on thera 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 frora that object to his private
concerns; and that he should maintain the dignity of the Common
wealth 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."
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 properly, 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 hon
orable 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 from any consideration of irame-

REPORT ON THE S.\LARIES OF THE JUDICIARY, 481
diate support, and placed as a refuge and protection in times of
political heal, beyond the necessity of bending to the changes of
those times, in order lo gather favor, or avert calamity? Whether
they should not be placed beyond even the temptation of accom
modating the law to present purposes ; and, by gratifying ambition
or interest, to break down the rules, that guard the security of prop
erty and the safety of rights ? Whether, indeed, their compensation
ought not to be such, as to command the first talents in the com
munity, and insure lo those, who are learned and honest, as well
as those, who are great and rich, the iiarticipation 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 inde
pendence in corapensation, as well as in tenure of office, is essential
to the permanent respectability of the judicial department.
The Coramittee further report, that, since the year 1790, the
business of the justices of the Supreme Judicial Court has increased
at least four fold. They are obliged to travel into raany counties
twice a year, where formerly they travelled but once ; and in some
counties terras 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 com
merce, and the almost endless other subjects of litigation, conse
quent 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 ou demurrer, and other questions of law,
referred solely to the Court for decision, which are too intricate for
judgraent 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, raust be devoted to the
public. Doraestic concerns, and, rauch raore, 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 becorae the
guardians of their families, and the supporters of their indepen-
61

482 POLITICAL PAPERS.
dence. Considering, therefore, the salaries established in 1790,
either in regard to the increased duties of the judges, the greater
nuraber 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 Coraraittee cannot but think,
that double those salaries at the present tirae would hardly be
a corapensation equivalent to those permanentiy estabUshed in
1790 ; which, frora grants almost immediately succeeding, seem to
have been then deemed insufficient by the legislature.
With these views, the Coramittee respectfully report, that in their
opinion it is necessary lo make an addition to the salaries of the
judges of the Supreme Judicial Court of this Comraonwealth ; and
they report a biU accordingly.* By order of the Coraraittee.
Joseph Story, Chairman.
* The Bill passed into a Law ; and the salaries were again increased by another
act, passed in 1809.

MEMORIAL

OP THE INHABITANTS OF SALEM, MASS., ADDRESSED TO THE PRESIDENT
AND CONGRESS OF TIIE UNITED STATES, JAN., 1806, Ki:LATIVE TO THE
INFRINGEMENTS OF THE NEUTRAL TRADE OF TIIE UNITED STATES.

The Meraorial 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 wisdora 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 Memo
rialists, 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
lias reached the farthest shores, and embraced the most inhospitable
climes. This coraraerce, prosecuted wkh increasing vigor, and
fostered by new aids, has continually brought to our ports the
wealth of aU nations, and, by opening a liberal intercourse, added
fresh zeal to foreign industry and domestic labor.
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 believ
ing it the sound policy of the United States to avoid every entan
glement in it, as injurious to internal improvement and external
interests, have witnessed with unhesitating approbation the disposition

484 POLITICAL PAPERS.
to neutrality patronized by the General Government, at times when
national wrongs have been pressed upon us with peculiar aggrava
tions, and seemed to point to a summary redress. Firmness and mod
eration have happily secured all the advantages of successful war;
and the sober appeal of reason has carried conviction to foreign nations.
Frora considerations of a simUar nature, your Memorialists have sub
mitted to the injuries of belligerents during the late European war,
and awaited with confidence the decisions of prize tribunals, insti
tuted 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 award. 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 Meraorialists, however, have witnessed, wkh deep regret
and deep anxiety, that to some of these tribunals they can no longer
appeal for safely. New Interpretations of old rules, and new glosses
on ancient doctrines, have been put forth to control the course of
neutral coraraerce, and restrain, if not annihilate, its raost beneficial
operations. Thelrj surprise has been greater in this respect, be
cause the nation, which has adopted thera, is one frora which we had
a right to expect the most conciliatory conduct; since with her ulti
mately centre the proceeds of our coraraerce, and from her we pur
chase the greatest portion of her staple manufactures. The interests
of Great Brkain and the Unked Slates seem in this respect mutual.
We consume the products of her industry, and give her in return, be
sides large sums of money, raw materials, by which she raay levy new
contributions upon us. Sirailarity of raanners 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 incon
siderately forfeited. On all occasions, the United States have exhib
ited towards her an araicable disposition, and ajust, and, it maybe add
ed, 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 pub-

SALEM MEMORIAL RELATIVE TO BRITISH AGGRESSIONS. 485
lie 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 dis
cretion of the belligerents. Whether peace or war prevail, the
baneful Influence of these principles will every where be felt; and
in the latter predicament we shall, as neutrals, share the mischiefs
of the war, witiiout the chances of the benefits of it.
With these impressions, your Meraorialists 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 respect
ing the freedom of commerce, on which civilians have entertained
different opinions. Tliey would avoid the question, how far even a
direct trade, carried on by neutrals between the colony and mother
country, with bona 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, though important, subjects,
and meet the principle of the EngUsh 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 accustomed to do in
peace ; and that he shall not be permitted to effect that in a cir
cuitous, which is inhibited in a direct, trade. As corollaries frora
this principle, she insists, that the colonial trade, exercised by neu
trals, shaU not extend beyond the accustoraed peace establishraent ;
and that whenever the neutral Ira ports into his own country colonial
produce, with the intention to tranship 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 properly, confiscable within
ordinary rules; but as a distinct, substantial, principle of condemna
tion, independent of the other both in efficacy and application.
For k yields not to the most clear proof of neutral property, or
innocent, thouoh 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, however mis
chievous they may be in operation, the United States raust subrait
to them, untU they are relaxed by particular conventions. Though

486 POLITICAL PAPERS.
our coraraerce should be oppressed, and our enteprise crushed, yet
we are bound to acquiesce, if the sanction of universal justice
require it.
Your Meraorialists, however, beg leave, before they consider the
law of nations in this particular, to advert to a few of the conse
quences resulting frora this rule ; and, if they do not greatiy mistake,
frora thence will arise a strong argument of its inadmissibility.
In the first place, great evils raust, in the nature of things, result
from the indefiniteness of what is the accustoraed trade. Nations
are continually changing their policy, their imports and exports,
their manufactures, their staples, and their commercial connexions.
In peace, as well as in war, peculiar circumstances induce them
to open or close a traffic ; and these circurastances arise as often
frora 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 an uniform course. It seems conceded on all sides, that the rule
shall not apply to every case ; and that those changes, which seera not
to be the result of a necessity imposed by an eneray, are exerapted
frora its operation. But how shall these Umits be defined ? Every
nation varies its policy in this respect in time of war ; and even
'Great Britain relaxes her navigation acts lo meet the ordinary exi
gencies 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 predomi
nance of the enemy's force, or out of any necessity resulting there
from, her own civilians avow, that the rule of accustoraed trade ought
not lo 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
eneray, that can be adraitted lo produce such an effect. But in
what raanner shall this irapossibilky be deterrained? How shaU
we distinguish between the ordinary and the extraordinary neces
sities of war ? — between those evils inflicted by a superior force,
and those resulting from general embarrassment? How shall we

SALEM MEMORIAL RELATIVE TO BRITISH AGGRESSIONS. 487
distinguish, which is the predominant power, when one raay 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 tirae 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 lo exclude neutrals is coextensive
with this ability to bloclcade. If any other test be resorted to ; if
the unlimited ingenuity of the discretion of courts of adrairalty be
exercised in the application or denial of the rule ; the rights of neu
trals wUl change with the policy of every administration, and rise
and fall with the pressure of hosliUties, and the safety of depreda
tion. Surely, no principle of the law of nations can be bottoraed
on so fluctuating a basis. It would reverse the nature of all law,
which is fixed and determinate, and substitute a discretion littie less
injurious than despotism.
In another view, the rule appears to your Memorialists not less
untenable and unjust. It is staled, as a part of it, that, if colonial
produce be imported by any person with an intention to tranship
k on his own account to the mother country, it is subject to con
fiscation ; but if imported for the purpose of general commerce,
and thrown into the market for general transhipment, it is within
the exception. To distinguish between general and particular
intentions, and to separate things so subtUe in their own natures,
and almost incapable of proof for the purposes of national
decisions, seems a refineraent 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 forraed
and fixed at one moraent, and abandoned frora a change of cir
cumstances at another. The fluctuations of foreign markets, the
plenty or deficiency of the supply at home, the nature of the funds,
the success of the incipient voyage, and numerous other accidents,
must continuaUy 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 deter
mination to export. Indeed, as his intention must frequentiy 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, iu which it would be impossible to

488 POLITICAL PAPERS.
form a criterion for judgment. All must be doubt, caprice, or spec
ulative construction.
These objections apply to the embarrassments attending the exer
cise of the rule respecting intentions of raerchants. But a more seri
ous one raay 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 properly will be iramediately
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 sub-
mil 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 com
municate a titie lo 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 wiU ultimately pre
vaU ; but by degrees the restriction will becorae absolute against all
neutral carriage of colonial produce to the raother country under
every variety of intention. In any other way ihe 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 Memo
rialists deem it a conclusive answer, that the proposition proves too
rauch ; 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 hlra in resistance,
and dirainishes 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

SALEM MEMORIAL RELATIVE TO BRITISH .\GGRESSI0NS. 489
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 reraarks. It is
weU 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 lo 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 bene
fits arising to neutrals from war are not more than a just equivalent.
But, if the obstructions be enforced, and no new channels perraitted,
it seems hardly too much to say, that they must lead to an extinc
tion of all neutral commerce. If one beUigerent adopt the rule,
another has the sarae 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 eneray ; 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 coraraerce to
fluctuating decisions, overthrows the ordinary rules of evidence,
and places an immense power lo 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 applica
bility. It would, in their opinion, if established, create greater evils
than it professes to redress, by perpetuating strife, destroying the
emoluraents 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.
62

490 POLITICAL PAPERS.
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 recognised by usage or
prescription among nations. They admit, that uninterrupted and
general usage, fortified by open acquiescence, forms a strong argu
ment, 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 lo 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
pursuk of his commerce, when carried on wkh his own property,
at all events in a direct trade from his own country. Such your
Memorialists deem to have been the incontestible rights of neutrals,
estabUshed for raore than two centuries by universal acknowledg
ment, and acted upon, while a flourishing intercourse subsisted
among all maritirae nations. During the same period. Great Britain,
France, Spain, Portugal, and Holland, have possessed extensive
colonies, and engaged in commercial enterprises wkh 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
terras, as your Meraorialists.
Your Meraorialists are aware, that even the advocates of Great
Britain have not pretended to ascertain the existence of the pre
tended rule previous to the year 1756. To this period they refer
for its first estabUshment, and from this origin deduce its universal
reception. They pretend not to quote any foreign adjudications as in
point ; but rest satisfied, that their own courts were competent to
establish the law, and to give it binding efficacy over all nations.
To such conclusions your Memorialists confess themselves unable

SALEM MEMORIAL RELATIVE TO BRITISH AGGRESSIONS. 491
to bow. They conceive, that it is not within the authority of any one
nation to legislate for tiie 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, there
fore, a binding autiiority araong nations, it must have been recog
nised as such by them ; and no argument of its adraission can be
drawn frora their silence, when the subject did not necessarily
engage their immediate interest. An injurious pretension, when
not applied lo a particular state, might be easily dismissed without
consideration. But your Memorialists, after aU 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 ca-^es, in which Dutch vessels
became the carriers of colonial produce, the property of the ene
mies of Great Biitain. This trade was vindicated on the ground of
a special treaty between Great Britain and Holland, which provided,
that fi-ee ships should make free goods; and it was ultiraately de
clared 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 cir
cumstances. 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 cases seem, therefore, certainly to fall in
analogy to those, which they are cited to govern. In the one class,
the property is neutral; in the other, hostile; in tlie 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 slmUitude ; and is traversable in every
Variety of its application.
Yet, admitting the precedent to be in point, if it stands solitary,
if it has subsequentiy slumbered during nearly fifty years, unac-

492 POLITICAL PAPERS.
knowledged abroad, and unenforced at horae ; it surely cannot weigh
on the present occasion. It is conceded by the British civilians,
that during the Araerican revolution the doctrine was entirely pre
termitted, and the commerce of neutrals was pursued according to
the ancient code. Many cases of this period might be cited frora
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 wlU
appear, that in the year 1756 the doctrine was first assumed, and
in the year 1801 was first executed.
So far, however, from being recognised, this pretended rule of
the year 1756 was pointedly denied, at the moment of its introduc
tion, by the power affected by it ; and on its late resuscitation it has
met the determined reprobation of the United States. Our rainis
ter at the Court of London, on the development of it in the year
1801, remonstrated against it in a spirited meraorial. Indeed,
Russia, France, Sweden, Denmark, Prussia, Portugal, and Austria,
in the celebrated League of the armed neutrality in the year 1780,
expressly declared, and Great Britain was then corapelled to admk,
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 admkted exceptions.
This solemn protest of Europe, after an elaborate discussion, in
which all neutral nations assisted, is singly opposed by the instruc
tions of Great Britain, and is to be outweighed by an obscure and
resisted precedent. Nay raore, the united voice of the raaritime
world, and the practice of ages, raust yield to the interested decis
ions 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
arguraent of ancient usage is of deep concern in national preten
sions, it is too often a cover for unjustifiable spoliations.
With these prelirainaries, your Meraorialists feel confidence in
asserting, that goods not contraband, fairly purchased by the neu
tral, are free to the market of every country, and protected from

SALEM MEMORIAL RELATIVE TO BRITISH AGGRESSIONS. 493
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 attending the conduct of the present
war, that Great Britain has licensed herown subjects in a trade, which
she declares fraudulent in others ; that she admits them unmolested
to supply her enemy wkh means of resistance, when she declares, that
confiscation is the penalty of neutral succour. Were the rule ever
so just in itself it certainly demands relaxation, when the bellige
rent partakes the profits, and connives at the breach. If its founda
tion be the unlawfulness of affording assistance to a distressed
enemy, surely it ought not to be enforced, when that assistance is
an authorized object of speculation with the distressing bellige
rent. 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 succour. Fraud may occasion
ally 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 distin
guished 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 con
duct 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, notwithstand
ing clear proofs of citizenship, the violation of our jurisdiction by
captures at the mouths of our harbours, and the insulting treatment
of our ships on the ocean, are subjects worthy the serious considera
tion 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

494 POLITICAL PAPERS.
our national honor will not long be unsupported by a national
naval force.
These are the considerations, which your Meraorialists beg lei'ave
to subrait 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, rand
the feelings should be the same. They cherish the hope, that a
sense of rautual 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 commerce
with its ordinary privileges, and lo 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 arras be the last and necessary protec
tion of our honor, they feel no disposition to decline the coramon
danger, or shrink from the common contribution.
Relying on the wisdora and firmness of the General Government in
this behalf they feel no hesitation to pledge their lives and proper
ty 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 ever pray.
Signed in behalf of the said Inhabitants by their authority,
John Hathorne,
Joseph Sprague,
Jonathan Mason, i ^
T-, r^ ' T > Committee.
Henjamin Crowninshield, Jr.
Joseph White, Jr.
Joseph Story.

MEMORIAL

or THE MERCHANTS, AND OTHERS INTERESTED IN COMMERCE, IN SALEM,
MASS., AND ITS VICINITY, ADDRESSED TO THE CONGRESS OF THE UNITED
ST.^TES, JUNE, 1820, 0.\ THE DISCO.N'TINUANCE 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: — Thafthey
have seen, with unfeigned regret and surprise, some propositions
recentiy 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 Meraorialists have not the slljihtest intention of castin"
any imputation of unworthymotives upon those, from whom on this
occasion they feel themselves corapelled to differ in the most decided
manner. They are ready toadmit, that many of those, who are inclin
ed 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 inter
ests. 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 the interests of commerce are not
less vital lo the welfare and prosperity of the Union, than manu
factures; and that it never can be a sound 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

496 political papers.
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 toUs. It has also materlaUy sustained the credk
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 lo the building, preservation, and equipment
of ships. It has greatly enlarged, and, the Memorialists had almost
said, created, the monled capital of the country. And the Merao
rialists believe, that it cannot be too frequently or deeply inculcated
as an axiora in political econoray, that productive capital, in what
ever 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 frora the blessings, which it dis
penses. A million of dollars added lo the productive capital by
coraraerce, is at least as useful as the sarae sum added by manufac
tures. 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 tirae our capital was sraall, and had suffered for
a series of years a continual dirainution. Our agriculture was
depressed, and our finances were embarrassed. The changes,
which a thrifty commerce 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, v.'e have every where flour
ishing towns and cities, the busy haunts of industry, where the pro
ducts 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 ralUlons, to
whom even our very name was but a short time ago utteriy un
known. 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 ?

MEMORIAL OF THE SALEM MERCHANTS. 497
Is k 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 capkal, thus
wkhdrawn from coraraerclal pursuits, could be as usefully or as
profitably employed in any other branch of business ? It is per
fectiy certain, that such a change must be attended with severe
losses to the merchants, and with ruin to nuraerous classes of our
clfizens, to ouv 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 raay be justly sacrificed ; but they are cases of extrerae
public necessity ; not cases, where the rivalry and the interests of
one class of men seek lo sustain themselves by the destruction of
another. In a free country, too, it may well be asked, if it be a
legitimate end of governraent to control the ordinary occupations
of men, and to corapel thera 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 governraent, the Meraorialists trust, that it is no
undue claim on their own part to plead for the freedom of coraraerce
also, as the natural ally of agriculture and naval greatness. Noth
ing, however, can be more obvious, than that many of the manu
facturers and their friends are attempting, by fallacious statements,
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 raonopoly and the
competkion of foreign nations.
It is not a littie 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 Worid, in admiration of the success of our
63

49.8 POLITICAL PAPERS.
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 coraraodlties, upon principles of
perfect reciprocity. May the Meraorialists be perraitted to say,
that it would be a strange anomaly in America to adopt a system,
which sound phUosophy is exploding in Europe ; to attempt a
monopoly of the horae market, and yet claira an entire freedom of
commerce abroad ; to stimulate our own manufactures to an un
natural growth by the exclusion of foreign manufactures, and yet
to expect, that no retaliatory measures would be pursued by other
nations. If we are unwilling to receive foreign manufactures, we
cannot reasonably suppose, that foreign nations wUl receive our raw
raaterials. We 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 raay corapel 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 sufficientiy dangerous to sorae 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, wUl 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 Meraorialists would
respectfuUy suggest, that is entitied, in their opinion, to great weight
on questions of this nature, and that is, the dangers and inconven
iences, which fluctuations in the coraraerclal policy of a nation
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 neces
sary to give k a settled course. It insinuates itself into the general
coraraerce of the world with difficulty ; and when incorporated into
the raass, its ramifications are so numerous and intricate, that they
cannot be suddenly withdrawn, without iramense losses and injuries.
Even the teraporary stoppage of but a single branch of trade throws
thousands out of eraployment ; and by pressing the raass of capital
and shipping, which it held engaged in its service, into other
branches, it is sure lo produce erabarrassment and depression, and
not unfrequentiy ruin to the ship-holders and the raerchants. Be
sides all this, men are slow to engage their capital in new pursuits.
They have a natural timidity in embarking in enterprises, to which

MEMORIAL OF THE SALEM MERCHANTS. 499
they are not accustomed ; and, if the commercial policy of the
nation is fluctuating, they feel so much insecurity in it, that they
are unwilUng 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 specu
lators; but it can never be safe for a nation to found its revenue
upon a trade, that is not uniform in its operations. The Memori
alists 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 wUI be its prosperity, and that of the nation. Every restric-
fion, which is not indispensable for purposes of revenue, is a shoal,
which will impede its progress, and not unfrequentiy 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 atten
tion of Congress to the measures, which have been recentiy pro
posed, and apparentiy 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 Unked 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 agri
cultural interests of the nation.
It has been suggested, both in and out of Congress, when meas
ures have been heretofore proposed, having a direct bearing upon
commercial interests, that the sUence of merchants ought justiy 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, 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 beUeved, (nor is k
an idle or vain credulity,) that our statesmen, selected from the

500 POLITICAL PAPERS.
whole community, would watch with anxiety and diligence over^he
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 assaUed, 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 inter
ests were safe, when they were understood ; and that the national
legislature could not be presumed to want knowledge or incUna-
tion to protect thera. 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, sorae of their
doctrines, that the Memorialists feel themselves caUed 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 inti
mately connected in their general aspects ; but at the same tirae
admit of some distinct views, which may weU entitle them to sep
arate 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 nearly thirty years of experience in their favor. At
no period of our political history, untU the present, has any 'doubt
been publicly breathed, at least to the knowledge of the Memo
rialists, of their practical advantages ; and during this whole period,
our coraraerce has been progressively increasing. Alraost all com
mercial nations, too, have a system, analogous to ours, engrafted into
their revenue regulations. In all, it is believed, a discriraination is
made between goods iraported 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 credk 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

MEMORIAL OF THE SALEM MERCHANTS. 501
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 com
mercial city, and numerous officers, and is attended with injurious
delay. Its object is to give the benefit of credit to the merchant,
and k has that effect ; but it is at a heavy expense to the govern
raent. In this country the same object is obtained, at a very sraall
expense, in a much more simple way ; and where the officers of the
customs act with prudence and vigUance, the risk of loss to the
government from the non-payment of the bonds given with sureties
for the duties is smaU, very small indeed, compared with the ex
pense 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 miUions to the revenue of
the United States.
The fact, however, that, in all foreign coraraerclal nations, a credit
is aUowed for duties upon goods iraported, and a drawback is
allowed directly or indirectiy upon exportation, seeras to justify,
in an erainent degree, the opinion, that the system is useful lo the
public, and salutary to coraraerce. And the experience of this
country is entirely in its favor. It may, then, with sorae confidence
be asked. Why should k 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, UI adapted to
the state of our country, and whose success is yet to be ascer
tained ? 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 experi
ence. But k may, perhaps, be inquired, what are the benefits derived to
commerce from a credit upon duties ? The Memorialists are per
fectly wiUing to state some of the leading benefits, public as weU
as private ; for in this, as in almost all the like cases, public and
private interest go hand in hand.

502 POLITICAL PAPERS.
It wiU not be denied, that the United States, even at the present
tirae, does not, when compared with the great nations in Europe,
abound in monled capital. This is in almost every nation a subject
of slow accuraulation, even under circurastances peculiariy favora
ble 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 eraployment presented by flourishing nations. At the tirae,
when the United States adopted its systera of credits and drawbacks
on duties, its monled capital was very sraall ; and the great pohcy
of the government was to give every facility for its full employ
ment. It is obvious, that the more capital is eraployed in com
merce, the raore extensive will be its reach, and the raore revenue
wiU be acquired by the governraent. Whatever of capital, natu
rally 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
twenty-five per cent of the value of those goods, or of the capital
eraployed. It follows, that, if this is iraraediately withdrawn from
the funds of the merchant, it is so rauch loss of his commercial
capital. A littie detail will render this apparent. Whenever a
voyage is undertaken, the raerchant invests as much capital, as he
thinks necessary for the purchase of the goods to be iraported, and
also as much raore as will be necessary to meet all the disburse
ments and expenses of the voyage. All this is paid in advance.
When the goods are iraported, they are not . immediately sold.
The market may be depressed, or the goods be of slow consump
tion, or not be adapted to the wants of this country, or be ultimately
destined for a foreign market. In these cases, and these are com
mon cases, it is obvious, that no immediate sale can be made without
great sacrifices, 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 aUowed to
the purchaser, varying according to the nature of the commodity
and the demand in the market, from four lo eight, and even twelve
months. LTnder such circumstances, if a cash payment is required
for the duties, it is obvious, that the merchant must either, in an
ticipation of this deraand, graduaUy withdraw frora his other busi
ness a portion of his capital equal to the duties ; or he raust divert
an equal portion ready lo be employed in another voyage ; or he
must procure money upon credit from other sources, loaded with

MEMORIAL OF THE SALEM MERCHANTS. 503
the payment of interest ; or he must consent to make enormous
sacrifices by an iramediate, forced sale. If he be a prudent, cau
tious raerchant, this very circumstance will operate lo prevent him
from employing his whole capital in commerce, lest he should be
compeUed to make ruinous sacrifices ; or, by a mere temporary
depression of the market, be exposed to the raost painful embar
rassments. 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
porfions 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 Meraorialists would
respectfully call the attention of Congress to ihe 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 LTnited States, and yields not in
importance to any other branch of commerce. Voyages to the
East Indies are undertaken at very heavy expense, and witii pro
portionably large capitals. The goods, which are brought home,
consist of articles, either of such high prices, or such slow consump
tion, 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 horae market, too, for
raany 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 raarket. It is not uncom
mon for cargoes, designed for home consumption, to remain on hand
for six months, and sometimes a twelvemonth ; and, when 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
usuaUy happens, that the first and second instalments become due
before the proceeds of the sales have been realized, and not un
frequentiy before the cargoes have been finally disposed of Yet the
duties on these voyages are exceedingly heavy, amounting in some

504 POLITICAL PAPERS.
cases to $100,000, — a sum, which even our wealthiest raerchants
could not readily advance, and which would raaterially check even
their commercial expeditions. It is not too much to declare, that
in all probability an abolition of the credit on duties would imme
diately 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 eraployraeiit to those, whose bread is as hardly
earned, and whose lives are as dear, and whose welfare is as impor
tant to the country, as those of the manufacturers, who seek to
found their own fortunes upon the ruins of this coraraerce.
Sorae of the UI effects, which would result frora the abolition of
this credit, wiU be obvious to the most careless observer. There
is no pretence lo say, that there is a superabundance of monled
capital in our country. The universal opinion proclaims, in a man
ner 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 diminu
tion of active capital engaged in trade and yielding a profit. It
would be hoarded up to meet the anticipated demands of the gov
ernraent for accruing duties. The revenue would, as has been
already intiraated, immediately suffer. But other evUs, of a stiU
graver cast, would ensue. Men of sraaU 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 coraraerce ; and in their
hands it would become a raonopoly, which they raight wield and
manage at their own pleasure. The young and enterprising mer
chants would be crushed in their attempts at competition, and would
be compelled to navigate only in those narrow channels, where
trade alraost stagnates, or yields a scanty subsistence. Another
necessary result would be the enhanceraent of the prices of aU
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 aU such charges ultiraately faU, would pay these additional
charges, together with the enhanced price, which a smaller impor
tation, wkh an equal deraand, would necessarily produce. These
are evUs of no ordinary magnitude ; and it is confidently believed,
that no wise legislature would introduce them upon mere specula
tions, thus taxing the whole for the conjectural benefit of the few.

MEMORIAL OF THE SALEM MERCHANTS. 505
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 governraent derives a direct
revenue of two and one half per cent, on the duties of the reex
ported 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 con
sumption would ever be imported. For, upon such reexportation,
the goods would be loaded wltii 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, 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 LTnited States.
In respect to tho other portions of the carrying trade, the aboli
tion of drawbacks would imraedlately lead to a direct trade between
foreign ports, whenever foreign nations would permit our raerchants
to engage in it. This would compel them to equip, repair, and man
their ships in Europe, and thus to give all their disbursements in this
great trade to foreigners. No goods would be iraported into the
United States either from Europe or India, which were not indispen
sable 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 lo a high mar
ket. Commercial adventures would be thereby rendered more hazar
dous and precarious, since the foreign market would be ordinarily cut
64

506 POLITICAL PAPERS.
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 iraportant the
carrying trade has hitherto been, and how much it has increased
our monled 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 three last of which were the most prosperous
years of our coraraerce, 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, soraewhat dimin
ished, yet it StUl 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 respect
fully inquire, whether the abolition of drawbacks would not be disas
trous 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 aU 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. WiU 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

MEMORIAL or THE SALEM MERCHANTS. 507
manufacturers, the Memorialists had supposed would have been
freely admitted. Whatever articles are useful for domestic manu
factures 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 if indeed
enormous, and practically amounts to a total prohibition. 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 no where
been raore sensibly or injuriously felt than in Salem. It has ope
rated, too, as an excessive tax upon the poorer classes of the com
munity, who have been compeUed 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 eightiis 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 coraraerclal artisans, has been proportionably great. And the
Memorialists cannot refrain from expressing their decided convic
tion, 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

508 POLITICAL PAPERS.
would be satisfied with the destruction of one branch of commerce,
and the heavy duties imposed upon aU others. These expecta
tions, 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 boun
ties, absorb the whole monled capital of the nation. The Memo
rialists would raost respectfully, but most solemnly, protest against
the policy and the justice of such measures.
And what are the clalras, the Meraorialists beg leave respectfuUy
to ask, of any one class of our citizens, to throw such enormous
burdens upon the other classes of the cominunky ? Is the agricul
tural 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 encourage
ment of a profit of from thirty to thirty-five per cent, more than the
European manufacturers possess, if the same articles can be manufac
tured 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 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 farraer, and the planter, and the raerchant, and the
mechanic, and the laboring classes of the coraraunky, be taxed
for the necessaries of life a sura equal to more than one quarter
part of their whole expenditures on these objects, that the manu
facturers may put this sum into their own pockets ?
The Memorialists are no enemies to raanufactures ; but they
raost sincerely express it as their deliberate judgraent, that no
raanufactures ought to be patronized in the country, which wUl not
grow up, and support theraselves, in every corapetition in the mar
ket, under the ordinary protecting duty ; that the only manufac
tures, which can ultimately flourish here, are those, which are of
slow growth, and moderate profit ; such as can be carried on by

MEMORIAL OF THE SALEM MERCHANTS. 509
capitalists with economy and steadiness ; and that a change of sys
tem, 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 com
pletely 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 lo those engaged in them. But when
the embargo and non-importation systems produced a deficiency in
the foreign supply, a feverish excitement was produced ; manufac
tories were established without sufficient capital ; extravagant ex
penditures 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 now succeed in accom
plishing 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 perraanent. It raay not encourage spec
ulation ; 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
systera. It will encourage smuggling and frauds, to an extent truly
formidable, and never yet practised in our country ; and the sarae
effect will arise, though in a more Umited degree, from the abolition
of drawbacks and credit on duties. The utter impossibiUty of
suppressing frauds and smuggling, where the markets are very high,
and the prohibkions very extensive, has been demonstrated by the
experience of all Europe. During the raost rigorous enforcement
of the continental exclusion of British manufactures, aided by civil
vigilance, and military bayonets, and despotic power, these manu
factures 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

510 POLITICAL PAPERS.
United Kingdom, notwithstanding the vigUance of her custom
houses, and the unwearied jealousy of her manufacturers. In the
United States, with a thousand mUes of seacoast, indented with
innumerable bays and harbours, 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 spectacle not
unworthy of a free people. Frauds upon the revenue have been
comparatively few ; and smuggling has been repressed by the gen
eral sense of the mercantile community. What system could be
more disastrous than that, which should hold out perraanent temp
tations 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 auxUiary to the
preservation of the morals of the people, by interfering as littie as
possible with pursuits consonant with their habks and feelings,
useful in their objects, and adapted to their wants.
LTpon the whole, the Meraorialists would respectfully state their
unequivocal opinion, that all the raeasures, to which they have
aUuded, are calculated to impair our naval strength' and glory ; to
injure our most profitable commerce ; to diminish, in an alarming
deoree, the public revenue ; to promote unjustifiable speculation ; to
enhance the prices of raanufactures ; to throw the great business and
trade of the nation into the hands of a few capitalists, to the exclu
sion of the industrious and enterprising of other classes ; to intro
duce general distress araong commercial artisans and agriculturists ;
to aggravate the present distress of the other classes of the com
munity ; 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 interposi
tion 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 flour
ished, — a system conceived in political wisdom, justified by expe
rience, and approved by the soundest maxims of national econoray.

SKETCH
OF A SPEECH DELIVERED IN THE CONVENTION OP MASSACHUSETTS AS
SEMBLED TO AMEND THE CONSTITUTION, IN NOVEMBER, 1820, — ON THE
QUESTION OF THE PROPER BASIS FOR THE APPORTIONMENT OP THE
STATE SENATORS.*

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
iUustrations of my own views, as have not been completely presented
by others.
If it were necessary for my purpose, I might say, with the gen
tieman from Worcester, that I come here pledged to no raan 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 confi
dence. 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 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
* This is a mere sketch, taken principally by the reporter, and was not
written out at large by the speaker.

512 POLITICAL PAPERS.
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 entitied. But I throw away all narrow
considerations of this kind, and consider myself as a delegate of the
Comraonwealth, bound lo 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 moraent, to look at what is the true
state of the question now before us. The proposition of ray friend
from Roxbury is, to make population the basis for apportioning the
Senate ; and this proposition is to be followed up, as the gentieman,
with the candor and frankness, which have always marked his char
acter, has intimated, by another, to apportion the House of Rep
resentatives in the same manner. The plan is certainly entitied 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 atterapt to introduce a new principle in
favor of wealth into the constitution. There is no atterapt to dis-
crirainate 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 raan but one. The
qualifications are to reraaln 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, rauch has been introduced into the
debate about the rights of the rich and the poor, and the oppression
of the one by the elevation of the other. This distinction between
the rich and poor, I raust be perraitted to say, is an odious distinc
tion, and not founded in the raerits of the case before us. I agree,
that the poor man is not to be deprived of his rights, any raore 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 raan may possess as much patriotism as the
rich ; but it is unjust to suppose, that he necessarily possesses raore.
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

SPEECH IN MASSACHUSETTS CONVENTION. 513
scorpions, stinging every one within its reach, and planting its feet
of oppression upon the needy and the dependent. Such a repre
sentation 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 tities, by entaUs, 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 preserva
tion. 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 gentiemen 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 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 buUd 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
dweU 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 hira 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 to 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
65

514 POLITICAL PAPERS.
kind, and dispenses its blessings in every form. In this way it
conduces to the public good by promoting private happiness ; and
every raan, from the humblest, possessing property, to the highest
in the state, contributes his proportion to the general raass of com
fort. The man wkhout any property may desire to do the same ;
but he ig necessarily shut out from this most interesting charity.
It is in this view, that I consider property as the source of aU 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.
Government, indeed, stands on a combination of interests and cir
cumstances. It must always be a question of the highest raoraent,
how the property-holding part of the coraraunky raay be sustained
against the inroads of poverty and vice. Poverty leads to terapta-
tion, and temptation often leads to vice, and vice to mUitary despo
tism. 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 evUs, by flying for refuge to sorae foreign land.
But the hardy yeoman, the owner of a few acres of the soU, and
supported by it, cannot leave his home without becoming a wan
derer on the face of the earth. In the preservation of property
and virtue, he has, therefore, the deepest and most perraanent
interest. Gentieraen have argued, as if personal rights only were the
proper objects of governraent. But what, I would ask, is life worth,
if a raan cannot eat in security the bread earned by his own indus
try ? if he is not permitted to transmit to his chUdren the little
inheritance, which his affection has destined for their use ? What
enables us to diffuse education araong 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 par-
aUel to be run between them, founded on permanent constitutional
distinctions. The rich help the poor, and the poor, in turn, adminis
ter to the rich. In our country, the highest man is not above the peo
ple ; 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 chUdren divide their
estates. Property is thus divided quite as fast as it accumulates. No
famUy can, without its own exertions, stand erect for a long time under

SPEECH IN MASSACHUSETTS CONVENTION. 515
our Statute of descents and distributions, the only true and leoitimate
agrarian law. It sUentiy 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 liraits, falls
gently away, and is succeeded by yet another, which, in its turn,
breaks, and dies away silentiy on the shore. The richest man
among us may be brought down to the humblest level ; and the
child, wkh scarcely clothes to cover his nakedness, may rise to the
highest office in our government. And the poor man, whUe he
rocks his infant on his knees, may justiy indulge the consolation,
that, if he possess talents and virtue, there is no office beyond the
reach of his honorable ambkion. It is a mistaken theory, that
governraent is founded for one object only. It is organized for the
protection of life, liberty, and properly, and aU 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 frora Worcester, to show the injustice and inequality of
the present system, has alarmed us with a reference to the town of
HuU. Suppo^, said he, five of the richest men in Boston should
remove to HuU, that removal would enable Hull to have six Sena
tors. 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 proportionally 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 k, possesses a right to.as many
Senators, as the constitution allows to any district. The case sup
posed by the gentleman is so extreme, that it could scarcely be
supposed to exist ; and, if k 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 k more. I have already stated what I conceive to be the
true answer ; that a representation in the Senate, founded on a valua-

516 POLITICAL PAPERS.
tion 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 Uke raanner, be chosen
by the same class of voters. The basis of valuation was undoubt
edly 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. LTpon the basis of valua
tion, property is not directiy represented ; but property in the aggre
gate, 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, CounseUors, Senators, Judges, and other
public officers are paid out of the public treasury ; our Represen
tatives by their respective towns. The former are officers for the
benefit of the whole Coraraonwealth. But the right of sending
Representatives is a privUege granted to corporations ; and, as the
more iraraediate 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 Comraonwealth, from its greater proximity
to the capital. Thus, the principle of equalizing burdens is exem
plified. But even if it were true, that the representation in the
Senate is founded on property, I would respectfully ask gentie
men, if its natural influence would be weakened or destroyed by
assuming the basis of population ? I presume not. It would stiU
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 axiora, that population is, in all cases and under aU
circumstances, the safest and best basis of representation. I beg
leave to doubt the proposition. Cases may be easUy supposed, in
which, from the peculiar state of society, such a basis would be
universally deemed unsafe and injurious. Take a state, where the

SPEECH IN MASSACHUSETTS CONVENTION. 517
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 hun
dred thousand artisans, reduced to a state of vice, and poverty,
and wretchedness, which leave them exposed to the most dange
rous political excitement. I speak of them, not as I know, but
as the language of British statesmen and parliamentary proceed
ings exhibit them. Who would found a representation on such a
.(..j,. 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 weU 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 policy, which
every nation must decide for itself, with reference to its own wants
and circurastances.
The gentleman from Worcester has asserted, that intelligence is
the foundation of government. Are not virtue and morality equally
so? InteUigence 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
frora Worcester is to assume population for tiie Senate, and corpo
rate representation for the House. The latter gentleman wishes
his last proposition to be considered distinctiy frora the first. It
might suit the purposes of the gentieman's arguraent so to separate
them. But in the nature of things, with reference to the doctrine
of checks and balances, avowed and supported by the gentieman
himself they are inseparable. I feel myself constrained so to
consider them, as parts of a system, the value of which raust be
ascertained by examining the effects of the whole combination. I
am not opposed in principle to population as a basis of representa
tion. There is much to recommend it. It has simplicity, and

518 POLITICAL PAPERS.
uniformity, and exemption from fraud in its application ; circumstan
ces 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 beUeved by others, that
the towns could not be brought to consent to yield up the Corpo
rate privileges of representation, which had been enjoyed so long,
and was so intiraately connected with their pride and their inter
ests. 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.
ConcUiation and coraproraise lie at the origin of every free govern
ment ; and the question never was, and never can be. What is abso
lutely best ? but. What is relatively wise, just, and expedient ? I
have not hesitated, therefore, to support the plan of the Select
Coraraittee, as one, that, on the whole, was the best, that, under
existing circurastances, could be obtained.
To the plan of the gentieraan from Roxbury two objections
exist. The first is, that it destroys the system of checks and
balances in the governraent ; a systera, which has been approved
by the wisdom of ages. The value of this system has been forci
bly illustrated by the gentleman from Boston, in the extract, which
he read from the reraarks of Mr. Jefferson on the constitution of
Virginia. I wiU 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 sqciety. 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 comraon
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 gentieraan from Roxbury, however,
not only obliterates thera ; but, at the same tirae, is supposed to
affect the interests and corporate representation of the towns ; a
representation, which, with aU 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

SPEECH IN MASSACHUSETTS CONVENTION. 519
corporate representation of the towns, as the basis of the House, has,
both as a system of checks and balances, and convenient and prac
tical 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 constitu
tion. It may be so ; though the venerable gentieman from Quincy
has endeavoured to show, that it is in principle as old as the repub
lics of Greece and Rome. But be it novel ; it is no objection to
k. Our whole system of government is novel. It is a great
experiment in the science of politics. The very principle of rep
resentation, 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 Sena
tors. 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 equaliza
tion was provided for in forming the House of Representatives, and
is now more completely observed in the system of the Select
Committee. After aU, what will be the effect of changing the basis of the
Senate from valuation to that of population ? It wiU take three
Senators from Suffolk, give two more Senators to the old county of
Hampshire, leave Berkshire and Plymouth to struggle for one raore,
and Norfolk and Bristol to contend for another, the disposition of
which maybe doubtful. All the rest of the Comraonwealth 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 in the nuraber
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. Popu
lation will probably, from the like causes, continue to increase on the
seaboard, or at least in the capkal, from its great attractions, in a
ratio quke as great beyond that of the interior. So that, in a short
time, the difference of the two systems wUl 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

520 POLITICAL PAPERS -
by the basis of population. In fifty years, Suffolk, upon this basis,
may entitie 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 erabarrassraents
of the revolutionary war ; through the troubles and discontents of
1787 and 1788 ; through collisions of parties unexarapled in our
history for violence and zeal ; through a second war, marked with
no ordinary scenes of division and danger ; and it has corae out of
these trials, pure, and bright, and spotless. No practical inconven
ience has been felt, or attempted to be pointed out by any gentle
man, in the present system, during this long period. Is it, then,
wise, or just, or poUtic to exchange the results of our own experi
ence for any theory, however plausible, that stands opposed to that
experience ? for a theory, that possibly may do as weU ?
A few words, as to the proposition of the gentieraan from Wor
cester for representation in the House. It seems to me, I hope
the gentieman wiU 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 endeavoured to sustain that doc
trine. The gentieman considers popidation as the only just basis
of representation in the Senate. Why, then, I ask, is it not as just,
as the basis for the House ? Here, the gentieraan deserts his favor
ite principle ; and insists on representation of towns, as corporations.
He alleges, that in this way the system of checks and balances
(which the gentieraan approves) is supported. But it seems to rae,
that it has not any raerit as a check ; for the aggregate population
of the county wUl express generally the sarae voice, as the aggre
gate Representatives of the towns. The gentieraan 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 gentieman himself? A voter in
Chelsea now votes for but one Representative, while his neighbour,
a voter in Charlestown, votes for six. Upon the gentleman's own
plan there would be a like inequality. He presses us also, in refer
ence to his plan of representation in the House, wkh 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

SPEECH IN MASSACHUSETTS CONVENTION. 521
is vkal to a free government, the latter not. One Representative
in the British Pariiament 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 k be not unequal or unjust in the House, how can it be so in the
Senate ? Is not Berkshire wkh its two Senators, or Barnstable
with its one Senator, or Worcester wkh its four Senators, upon
this principle just as fully represented in the Senate, as Suffolk with
its six Senators ? The arguraent of the gentleman may therefore
be thrown back upon himself
The gentleman from Worcester has iUustrated his views, by a
reference to the structure of the two houses under the constitution
of the LTnited States ; and he conceives the Senate of the United
States as analogous to his system of representation in our House,
a representation of corporations. It certainly bears no analogy to
his basis of representation for the Senate. I take it, that the Sen
ate of the LTnited States is a representation of sovereignties, coor
dinate 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 repre
sentation 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 pubhc taxes ; and then, and then
only, wUl there be a well founded analogy to the constitution of the
United States. I thank the gentieman for his illustration ; an argu
ment more pertinent to my purpose could not have been found.
I beg, however, for a moment, to ask the attention of the com-
mktee to the gross inequalities of the plan of the gentieman 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 entitied to send more
than one Representative. These twenty-four- towns, with a popula
tion of one hundred and forty-sis thousand, would send fifty-eight
66

522 POLITICAL PAPERS.
Representatives, or only one, upon an average, for every two thousand ,
five hundred, and twenty-six inhabkants ; whUe 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. I lay not the venue here or there in the
Commonwealth, in the county of Worcester, or the county of
EJssex ; but such would be the result throughout the whole Com
monwealth, 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 hun
dred inhabitants ; whUe every town, but the twenty-four largest, would
send one for every one thousand one hundred and forty-four inhabi
tants. What, then, becomes of the favorite doctrine of the basis
of population ? I would ask the gentieman, in his own emphatic
language. Is not this system unjust, unequal, and cruel ? If it be
equal, it is so by some political arithraetic, 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 valua
tion ; but because I deeraed it all-important to retain sorae 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 gentieraan from Northarapton. 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 princi
ples ; 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 evU, and alarming to the,
future peace and happiness of the state. My dread has never been
of the Senate ; but of that multitudinous assembly, which has been
seen within these walls, and may again be seen, if times of poUtical
excitement should occur. The more numerous the body, the
greater the danger from its movements, in times, when it cannot or

SPEECH IN MASSACHUSETTS CONVENTION. 523
wiU 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
k be called a deUberative assembly. From the excess of numbers
deUberation became almost impossible ; and, but for the good sense
and discretion of those, who usuaUy 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 respec
tive parties. If the state should go on, increasing in its population,
we might hereafter have eight hundred, or nine hundred, Represen
tatives, 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 earnestiy,
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
circurastances. I should feel the liberties of the state secure, if
this point were once fairly gained. I would yield up the little
privUeges of my own town, and of any others, that our children
raay enjoy civU, religious, and political liberty, as perfectiy, nay,
more perfectly than their fathers. With these views I am ready to
support the report of he Select Commktee, not in part, but as a
whole, as a system ; and if part is to be rejected, 1 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 repre
sentation. By the plan of the Select Committee, the sraaU towns
are great gainers ; a sacrifice is made by the large towns, and by
them only. They wUl bear a heavier portion of tiie pay of the
Representatives, and they wUl have a less proportionate representa
tion than they now possess. And what do they gain in return ?
I raay say, Nothing. All that is gained is pubhc gain ; a reaUy

524 POLITICAL PAPERS.
deliberative legislature ; and a representation in the Senate, which
is in fact a popular representation, emanating frora and returning to
the people, but so constructed, that it operates as a useful check
upon undue legislation, and as a security to property.
I hope, that this systera will be adopted by a large raajority,
because it can scarcely otherwise receive the approbation of the
people. I do not know, that it is even desirable, that the people
shotdd, nay, I raight go further, and say, that the people ought not
to, adopt any araendment, which comes recomraended by a bare
raajority of this Convention. If we are so littie agreed among
ourselves, as to what will be for the future public good, we had
much better Uve under the present constitution, which has aU our
experience in its favor. Is any gentleman bold enough to hazard
the assertion, that any new measure, we raay adopt, can be raore
successful ? I beg gentieraen to consider, too, what will be the
effect, if the araendraents, we now propose, should be rejected by
the people, having passed by a scanty raajority. We shall then
revert to the old constkution ; and new parties, embittered by new
feuds, or elated by victory, will be formed in the state, and distin
guished as Constitutionalists, and Anti-constitutionalists ; and thus
new discontents and struggles for a new convention wUl agkate 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 tiraes 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 ray 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
wiU not say the evU, 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 tranquUUty of the tomb. To those
in middle life it will not be of great iraportance ; 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 wUl fade away. But we have youth, who are just
springing into life ; we have children, whom we love ; and famUies,

SPEECH IN MASSACHUSETTS CONVENTION. 525
in whose welfare we feel the deepest interest. In the name of
Heaven let us not leave to them the bitter inheritance of our con
tentions. 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 pUlars of the
constkution, 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.

ADDRESS

ON RESIGNING THE SPEAKER'S CHAIR IN THE HOUSE OF REPRESENTATIVES
OF MASSACHUSETTS, JANUARY 17, 1812.

[" COMMONWEALTH OF MASSACHUSETTS.
'* Irr THE House of Representatives. " Thursday, IGth January, 1813.
" The Speaker signified that his duty elsewhere would not permit him to officiate in the House,
after to-morrow. " Friday, nth January, 1819.
•' 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 ahle, 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 gratkude. To
the good opinion of my feUow-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 sen
sibility. The tirae has now arrived, when it becomes necessary for rae to
ask your indulgence to retire from the chair, which your suffrages
heretofore assigned me. On this occasion, which is probably the
last, on which I shall ever have the privUege to address you, I feel
an unusual interest mingled 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 wkh success, and sometiraes wkh 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, wiU 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
tiie House, have smoothed a seat, which, though adorned with

ADDRESS ON RESIGNING THE SPEAKEr's CHAIR. 527
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 exceUence 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 enforce
ment of these rules, whUe 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 vehe
mence of opposition — ^if any thing can awaken the glow of ora
tory, and the spirit of virtue — if any thing can preserve the cour
tesy of generous minds, amidst the rivalries and jealousies of con
tending 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, earn
estly to recommend to your attention a steady adherence to these
venerable usages.
CaUed, as I now am, to act in other scenes, I cannot but feel the
deepest huniUity in weighing my own deficiencies, and the new
responsibUity imposed upon me ; at the same time I cannot but
recoUect, that I leave my legislative associates amidst perils, which
may truly be said to try men's souls. I ara not unconscious of the
difficulties, which surround the pubUc 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 SuUivan. 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 con
tend for their injured country. I persuade myself that the flame
kindled in the Revolution wUl burn with inextinguishable splendor ;
that, when the voice of the nation shall call to arms, this hall wUl
witness an heroic firmness, an eloquent patriotism, and a devotion
to the public weal, which have not been exceeded in the annals of
our country.

Note to Page AOO.
Since this volume was printed, I have been furnished with a copy
of the deed of the "Tutors' Lot," so called, referred to on page 400, by
John Bulkley, It is dated 26th of December, 1645; and contains a
grant of a quarter part of an orchard or lot, owned in common with
three other persons, to President Dunster, during his continuance in
the office of President of the College ; and after his resignation or
death, it is given to the College. " Tum velim," says the grant, "ut
Collegium tanquam Xi^trrh tenue ab alumno maxime benevolo sibi in
perpetuum appropriaret." There is not the slightest allusion to any
particular use, to which it was to be specially applied. It was most
probably called "Tutors' Lot," because some of the owners then were,
or afterwards became, Tutors ; or the Lot was occupied by Tutors
under the College. Of the then four owners, three received their
education at the College ; namely, George Downing, John Alcock, and
John Bulkley.

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