(2 H. H. P. C.): Tutius semper est errare, in acquietando quam in puniendo, ex parte misericordiae quam ex parte justitiae.—"It is always safer to err in acquitting than punishing, on the part of mercy than the part of justice."
The next is from the same authority, 305:—
Tutius erratur ex parte mitiori,—"It is always safer to err on the milder side, the side of mercy."
(H. H. P. C. 509): "The best rule in doubtful cases is rather to incline to acquittal than conviction."
And on page 300:—
Quod dubitas, ne feceris.—"Where you are doubtful, never act; that is, if you doubt of the prisoner's guilt, never declare him guilty."
This is always the rule, especially in cases of life. Another rule from the same author, 289, where he says:—
"In some cases presumptive evidences go far to prove a person guilty, though there is no express proof of the fact to be committed by him; but then it must be very warily expressed, for it is better five guilty persons should escape unpunished than one innocent person should die."
The next authority shall be from another judge of equal character, considering the age wherein he lived; that is, Chancellor Fortescue in 'Praise of the Laws of England,' page 59. This is a very ancient writer on the English law. His words are:—
"Indeed, one would rather, much rather, that twenty guilty persons escape punishment of death, than one innocent person be condemned and suffer capitally."
Lord Chief-Justice Hale says:—
"It is better five guilty persons escape, than one innocent person suffer."
Lord Chancellor Fortescue, you see, carries the matter further, and says:—
"Indeed, one had rather, much rather, that twenty guilty persons should escape than one innocent person suffer capitally."
Indeed, this rule is not peculiar to the English law; there never was a system of laws in the world in which this rule did not prevail. It prevailed in the ancient Roman law, and, which is more remarkable, it prevails in the modern Roman law. Even the judges in the Courts of Inquisition, who with racks, burnings, and scourges examine criminals,—even there they preserve it as a maxim, that it is better the guilty should escape punishment than the innocent suffer. Satius esse nocentem absolvi quam innocentem damnari. This is the temper we ought to set out with, and these the rules we are to be governed by. And I shall take it for granted, as a first principle, that the eight prisoners at the bar had better be all acquitted, though we should admit them all to be guilty, than that any one of them should, by your verdict, be found guilty, being innocent.
I shall now consider the several divisions of law under which the evidence will arrange itself.
The action now before you is homicide; that is, the killing of one man by another. The law calls it homicide; but it is not criminal in all cases for one man to slay another. Had the prisoners been on the Plains of Abraham and slain a hundred Frenchmen apiece, the English law would have considered it as a commendable action, virtuous and praiseworthy; so that every instance of killing a man is not a crime in the eye of the law. There are many other instances which I cannot enumerate—an officer that executes a person under sentence of death, etc. So that, gentlemen, every instance of one man's killing another is not a crime, much less a crime to be punished with death. But to descend to more particulars.
The law divides homicide into three branches; the first is "justifiable," the second "excusable," and the third "felonious." Felonious homicide is subdivided into two branches; the first is murder, which is killing with malice aforethought; the second is manslaughter, which is killing a man on a sudden provocation. Here, gentlemen, are four sorts of homicide; and you are to consider whether all the evidence amounts to the first, second, third or fourth of these heads. The fact was the slaying five unhappy persons that night. You are to consider whether it was justifiable, excusable, or felonious; and if felonious, whether it was murder or manslaughter. One of these four it must be. You need not divide your attention to any more particulars. I shall, however, before I come to the evidence, show you several authorities which will assist you and me in contemplating the evidence before us.
I shall begin with justifiable homicide. If an officer, a sheriff, execute a man on the gallows, draw and quarter him, as in case of high treason, and cut off his head, this is justifiable homicide. It is his duty. So also, gentlemen, the law has planted fences and barriers around every individual; it is a castle round every man's person, as well as his house. As the love of God and our neighbor comprehends the whole duty of man, so self-love and social comprehend all the duties we owe to mankind; and the first branch is self-love, which is not only our indisputable right, but our clearest duty. By the laws of nature, this is interwoven in the heart of every individual. God Almighty, whose law we cannot alter, has implanted it there, and we can annihilate ourselves as easily as root out this affection for ourselves. It is the first and strongest principle in our nature. Justice Blackstone calls it "The primary canon in the law of nature." That precept of our holy religion which commands us to love our neighbor as ourselves does not command us to love our neighbor better than ourselves, or so well. No Christian divine has given this interpretation. The precept enjoins that our benevolence to our fellow-men should be as real and sincere as our affection to ourselves, not that it should be as great in degree. A man is authorized, therefore, by common sense and the laws of England, as well as those of nature, to love himself better than his fellow-subject. If two persons are cast away at sea, and get on a plank (a case put by Sir Francis Bacon), and the plank is insufficient to hold them both, the one has a right to push the other off to save himself. The rules of the common law, therefore which authorize a man to preserve his own life at the expense of another's, are not contradicted by any divine or moral law. We talk of liberty and property, but if we cut up the law of self-defense, we cut up the foundations of both; and if we give up this, the rest is of very little value, and therefore this principle must be strictly attended to; for whatsoever the law pronounces in the case of these eight soldiers will be the law to other persons and after ages. All the persons that have slain mankind in this country from the beginning to this day had better have been acquitted than that a wrong rule and precedent should be established.
I shall now read to you a few authorities on this subject of self-defense. Foster, 273 (in the case of justifiable self-defense):
"The injured party may repel force with force in defense of person, habitation, or property, against one who manifestly intendeth and endeavoreth with violence or surprise to commit a known felony upon either. In these cases he is not obliged to retreat, but pursue his adversary till he finds himself out of danger; and a conflict between them he happeneth to kill, such killing is fiable."
I must entreat you to consider the words of this authority. The injured person may repel force by force against any who endeavoreth to commit any kind of felony on him or his. Here the rule is, I have a right to stand on my own defense, if you intend to commit felony. If any of the persons made an attack on these soldiers, with an intention to rob them, if it was but to take their hats feloniously, they had a right to kill them on the spot, and had no business to retreat. If a robber meet me in the street and command me to surrender my purse, I have a right to kill him without asking any questions. If a person commit a bare assault on me, this will not justify killing; but if he assault me in such a manner as to discover an intention to kill me, I have a right to destroy him, that I may put it out of his power to kill me. In the case you will have to consider, I do not know there was any attempt to steal from these persons; however, there were some persons concerned who would, probably enough, have stolen, if there had been anything to steal, and many were there who had no such disposition. But this is not the point we aim at. The question is, Are you satisfied the people made the attack in order to kill the soldiers? If you are satisfied that the people, whoever they were, made that assault with a design to kill or maim the soldiers, this was such an assault as will justify the soldiers killing in their own defense. Further, it seems to me, we may make another question, whether you are satisfied that their real intention was to kill or maim, or not? If any reasonable man in the situation of one of these soldiers would have had reason to believe in the time of it, that the people came with an intention to kill him, whether you have this satisfaction now or not in your own minds, they were justifiable, at least excusable, in firing. You and I may be suspicious that the people who made this assault on the soldiers did it to put them to flight, on purpose that they might go exulting about the town afterwards in triumph; but this will not do. You must place yourselves in the situation of Weems and Killroy—consider yourselves as knowing that the prejudice of the world about you thought you came to dragoon them into obedience, to statutes, instructions, mandates, and edicts, which they thoroughly detested—that many of these people were thoughtless and inconsiderate, old and young, sailors and landsmen, negroes and mulattoes—that they, the soldiers, had no friends about them, the rest were in opposition to them; with all the bells ringing to call the town together to assist the people in King Street, for they knew by that time that there was no fire; the people shouting, huzzaing, and making the mob whistle, as they call it, which, when a boy makes it in the street is no formidable thing, but when made by a multitude is a most hideous shriek, almost as terrible as an Indian yell; the people crying, "Kill them, kill them. Knock them over," heaving snowballs, oyster shells, clubs, white-birch sticks three inches and a half in diameter; consider yourselves in this situation, and then judge whether a reasonable man in the soldiers' situation would not have concluded they were going to kill him. I believe if I were to reverse the scene, I should bring it home to our own bosoms. Suppose Colonel Marshall when he came out of his own door and saw these grenadiers coming down with swords, etc., had thought it proper to have appointed a military watch; suppose he had assembled Gray and Attucks that were killed, or any other person in town, and appointed them in that situation as a military watch, and there had come from Murray's barracks thirty or forty soldiers with no other arms than snowballs, cakes of ice, oyster shells, cinders, and clubs, and attacked this military watch in this manner, what do you suppose would have been the feelings and reasonings of any of our householders? I confess, I believe they would not have borne one-half of what the witnesses have sworn the soldiers bore, till they had shot down as many as were necessary to intimidate and disperse the rest; because the law does not oblige us to bear insults to the danger of our lives, to stand still with such a number of people around us, throwing such things at us, and threatening our lives, until we are disabled to defend ourselves.
(Foster, 274): "Where a known felony is attempted upon the person, be it to rob or murder, here the party assaulted may repel force with force, and even his own servant, then attendant on him, or any other person present, may interpose for preventing mischief, and if death ensue, the party so interposing will be justified. In this case nature and social duty co-operate."
Hawkins, P. C., Chapter 28, Section 25, towards the end:—"Yet it seems that a private person, a fortiori, an officer of justice, who happens unavoidably to kill another in endeavoring to defend himself from or suppress dangerous rioters, may justify the fact in as much as he only does his duty in aid of the public justice."
Section 24:—"And I can see no reason why a person, who, without provocation, is assaulted by another, in any place whatsoever, in such a manner as plainly shows an intent to murder him, as by discharging a pistol, or pushing at him with a drawn sword, etc., may not justify killing such an assailant, as much as if he had attempted to rob him. For is not he who attempts to murder me more injurious than he who barely attempts to rob me? And can it be more justifiable to fight for my goods than for my life?"
And it is not only highly agreeable to reason that a man in such circumstances may lawfully kill another, but it seems also to be confirmed by the general tenor of our books, which, speaking of homicide se defendo, suppose it done in some quarrel or affray.
(Hawkins, p. 71. section 14); "And so, perhaps, the killing of dangerous rioters may be justified by any private persons, who cannot otherwise suppress them or defend themselves from them, inasmuch as every private person seems to be authorized by the law to arm himself for the purposes aforesaid."
Here every private person is authorized to arm himself; and on the strength of this authority I do not deny the inhabitants had a right to arm themselves at that time for their defense, not for offense. That distinction is material, and must be attended to.
(Hawkins, p. 75, section 14): "And not only he who on an assault retreats to the wall, or some such strait, beyond which he can go no further before he kills the other, is judged by the law to act upon unavoidable necessity; but also he who being assaulted in such a manner and in such a place that he cannot go back without manifestly endangering his life, kills the other without retreating at all."
(Section 16); "And an officer who kills one that insults him in the execution of his office, and where a private person that kills one who feloniously assaults him in the highway, may justify the fact without ever giving back at all."
There is no occasion for the magistrate to read the riot act. In the case before you, I suppose you will be satisfied when you come to examine the witnesses and compare it with the rules of the common law, abstracted from all mutiny acts and articles of war, that these soldiers were in such a situation that they could not help themselves. People were coming from Royal Exchange Lane, and other parts of the town, with clubs and cord-wood sticks; the soldiers were planted by the wail of the Customhouse; they could not retreat; they were surrounded on all sides, for there were people behind them as well as before them; there were a number of people in the Royal Exchange Lane; the soldiers were so near to the Customhouse that they could not retreat, unless they had gone into the brick wall of it. I shall show you presently that all the party concerned in this unlawful design were guilty of what any one of them did; if anybody threw a snowball it was the act of the whole party; if any struck with a club or threw a club, and the club had killed anybody, the whole party would have been guilty of murder in the law. Lord Chief-Justice Holt, in Mawgrige's case (Keyling, 128), says:—
"Now, it has been held, that if A of his malice prepense assaults B to kill him, and B draws his sword and attacks A and pursues him, then A, for his safety, gives back and retreats to a wall, and B still pursuing him with his drawn sword, A in his defense kills B; this is murder in A. For A having malice against B, and in pursuance thereof endeavoring to kill him, is answerable for all the consequences of which he was the original cause. It is not reasonable for any man that is dangerously assaulted, and when he perceives his life in danger from his adversary, but to have liberty for the security of his own life, to pursue him that maliciously assaulted him; for he that has manifested that he has malice against another is not at to be trusted with a dangerous weapon in his hand. And so resolved by all the judges when they met at Seargeant's Inn, in preparation for my Lord Morley's trial."
In the case here we will take Montgomery, if you please, when he was attacked by the stout man with a stick, who aimed it at his head, with a number of people round him crying out, "Kill them, kill them." Had he not a right to kill the man? If all the party were guilty of the assault made by the stout man, and all of them had discovered malice in their hearts, had not Montgomery a right, according to Lord Chief-Justice Holt, to put it out of their power to wreak their malice upon him? I will not at present look for any more authorities in the point of self-defense; you will be able to judge from these how far the law goes in justifying or excusing any person in defense of himself, or taking away the life of another who threatens him in life or limb. The next point is this: that in case of an unlawful assembly, all and every one of the assembly is guilty of all and every unlawful act committed by any one of that assembly in prosecution of the unlawful design set out upon.
Rules of law should be universally known, whatever effect they may have on politics; they are rules of common law, the law of the land; and it is certainly true, that wherever there is an unlawful assembly, let it consist of many persons or of a few, every man in it is guilty of every unlawful act committed by any one of the whole party, be they more or be they less, in pursuance of their unlawful design. This is the policy of the law; to discourage and prevent riots, insurrections, turbulence, and tumults.
In the continual vicissitudes of human things, amidst the shocks of fortune and the whirls of passion that take place at certain critical seasons, even in the mildest government, the people are liable to run into riots and tumults. There are Church-quakes and State-quakes in the moral and political world, as well as earthquakes, storms, and tempests in the physical. Thus much, however, must be said in favor of the people and of human nature, that it is a general, if not a universal truth, that the aptitude of the people to mutinies, seditions, tumults, and insurrections, is in direct proportion to the despotism of the government. In governments completely despotic,—that is, where the will of one man is the only law, this disposition is most prevalent. In aristocracies next; in mixed monarchies, less than either of the former; in complete republics the least of all, and under the same form of governments as in a limited monarchy, for example, the virtue and wisdom of the administrations may generally be measured by the peace and order that are seen among the people. However this may be, such is the imperfection of all things in this world, that no form of government, and perhaps no virtue or wisdom in the administration, can at all times avoid riots and disorders among the people.
Now, it is from this difficulty that the policy of the law has framed such strong discouragements to secure the people against tumults; because, when they once begin, there is danger of their running to such excesses as will overturn the whole system of government. There is the rule from the reverend sage of the law, so often quoted before:—
(1 H. H. P. C. 437): "All present, aiding and assisting, are equally principal with him that gave the stroke whereof the party died. For though one gave the stroke, yet in interpretation of law it is the stroke of every person that was present, aiding and assisting."
(1 H. H. P. C. 440): "If divers come with one assent to do mischief, as to kill, to rob or beat, and one doeth it, they are all principals in the felony. If many be present and one only give the stroke whereof the party dies, they are all principal, if they came for that purpose."
Now, if the party at Dock Square came with an intention only to beat the soldiers, and began to affray with them, and any of them had been accidentally killed, it would have been murder, because it was an unlawful design they came upon. If but one does it they are all considered in the eye of the law guilty; if any one gives the mortal stroke, they are all principals here, therefore there is a reversal of the scene. If you are satisfied that these soldiers were there on a lawful design, and it should be proved any of them shot without provocation, and killed anybody, he only is answerable for it.
(First Kale's Pleas of the Crown, 1 H. H. P. C. 444): "Although if many come upon an unlawful design, and one of the company till one of the adverse party in pursuance of that design, all are principals; yet if many be together upon a lawful account, and one of the company kill another of the adverse party, without any particular abetment of the rest to this fact of homicide, they are not all guilty that are of the company, but only those that gave the stroke or actually abetted him to do it."
(1 H. H. P. C. 445): "In case of a riotous assembly to rob or steal deer, or to do any unlawful act of violence, there the offense of one is the offense of all the company."
(In another place, 1 H. H. P. C. 439): "The Lord Dacre and divers others went to steal deer in the park of one Pellham. Raydon, one of the company, killed the keeper in the park, the Lord Dacre and the rest of the company being in the other part of the park. Yet it was adjudged murder in them all, and they died for it." (And he quotes Crompton 25, Dalton 93. p. 241.) "So that in so strong a case as this, where this nobleman set out to hunt deer in the ground of another, he was in one part of the park and his company in another part, yet they were all guilty of murder."
The next is:—
(Kale's Pleas of the Crown, 1 H. H. P. C. 440): "The case of Drayton Bassit; divers persons doing an unlawful act, all are guilty of what is done by one."
(Foster 353, 354): "A general resolution against all opposers, whether such resolution appears upon evidence to have been actually and implicitly entered into by the confederates, or may reasonably be collected from their number, arms or behavior, at or before the scene of action, such resolutions so proved have always been considered as strong ingredients in cases of this kind. And in cases of homicide committed in consequence of them, every person present, in the sense of the law, when the homicide has been involved in the guilt of him that gave the mortal blow."
(Foster): "The cases of Lord Dacre, mentioned by Hale, and of Pudsey, reported by Crompton and cited by Hale, turned upon this point. The offenses they respectively stood charged with, as principals, were committed far out of their sight and hearing, and yet both were held to be present. It was sufficient that at the instant the facts were committed, they were of the same party and upon the same pursuit, and under the same engagements and expectations of mutual defense and support with those that did the facts."
Thus far I have proceeded, and I believe it will not be hereafter disputed by anybody, that this law ought to be known to every one who has any disposition to be concerned in an unlawful assembly, whatever mischief happens in the prosecution of the design they set out upon, all are answerable for it. It is necessary we should consider the definitions of some other crimes as well as murder; sometimes one crime gives occasion to another. An assault is sometimes the occasion of manslaughter, sometimes of excusable homicide. It is necessary to consider what is a riot, (1 Hawkins, ch. 65, section 2): I shall give you the definition of it:—
"Wheresoever more than three persons use force or violence, for the accomplishment of any design whatever, all concerned are rioters."
Were there not more than three persons in Dock Square? Did they not agree to go to King Street, and attack the main guard? Where, then, is the reason for hesitation at calling it a riot? If we cannot speak the law as it is, where is our liberty? And this is law, that wherever more than three persons are gathered together to accomplish anything with force, it is a riot.
(1 Hawkins, ch. 65, section 2): "Wherever more than three persons use force and violence, all who are concerned therein are rioters. But in some cases wherein the law authorizes force, it is lawful and commendable to use it. As for a sheriff [2 And. 67 Poph. 121], or constable [3 H. 7, 10, 6], or perhaps even for a private person [Poph. 121, Moore 656], to assemble a competent number of people, in order with force to oppose rebels or enemies or rioters, and afterwards, with such force actually to suppress them."
I do not mean to apply the word rebel on this occasion; I have no reason to suppose that ever there was one in Boston, at least among the natives of the country; but rioters are in the same situation, as far as my argument is concerned, and proper officers may suppress rioters, and so may even private persons.
If we strip ourselves free from all military laws, mutiny acts, articles of war and soldiers' oaths, and consider these prisoners as neighbors, if any of their neighbors were attacked in King Street, they had a right to collect together to suppress this riot and combination. If any number of persons meet together at a fair or market, and happen to fall together by the ears, they are not guilty of a riot, but of a sudden affray. Here is another paragraph, which I must read to you:—
(1 Hawkins, ch. 65, section 3): "If a number of persons being met together at a fair or market, or on any other lawful or innocent occasion, happen, on a sudden quarrel, to fall together by the ears, they are not guilty of a riot, but of a sudden affray only, of which none are guilty but those who actually began it," etc.
It would be endless, as well as superfluous, to examine whether every particular person engaged in a riot were in truth one of the first assembly or actually had a previous knowledge of the design thereof. I have endeavored to produce the best authorities, and to give you the rules of law in their words, for I desire not to advance anything of my own. I choose to lay down the rules of law from authorities which cannot be disputed. Another point is this, whether and how far a private person may aid another in distress? Suppose a press-gang should come on shore in this town and assault any sailor or householder in King Street, in order to carry him on board one of his Majesty's ships, and impress him without any warrant as a seaman in his Majesty's service; how far do you suppose the inhabitants would think themselves warranted by law to interpose against that lawless press-gang? I agree that such a press-gang would be as unlawful an assembly as that was in King Street. If they were to press an inhabitant and carry him off for a sailor, would not the inhabitants think themselves warranted by law to interpose in behalf of their fellow-citizen? Now, gentlemen, if the soldiers had no right to interpose in the relief of the sentry, the inhabitants would have no right to interpose with regard to the citizen, for whatever is law for a soldier is law for a sailor and for a citizen. They all stand upon an equal footing in this respect. I believe we shall not have it disputed that it would be lawful to go into King Street and help an honest man there against the press-master. We have many instances in the books which authorize it.
Now, suppose you should have a jealousy in your minds that the people who made this attack upon the sentry had nothing in their intention more than to take him off his post, and that was threatened by some. Suppose they intended to go a little further, and tar and feather him, or to ride him (as the phrase is in Hudibras), he would have had a good right to have stood upon his defense—the defense of his liberty; and if he could not preserve that without the hazard of his own life, he would have been warranted in depriving those of life who were endeavoring to deprive him of his. That is a point I would not give up for my right hand—nay, for my life.
Well, I say, if the people did this, or if this was only their intention, surely the officers and soldiers had a right to go to his relief; and therefore they set out upon a lawful errand. They were, therefore, a lawful assembly, if we only consider them as private subjects and fellow-citizens, without regard to mutiny acts, articles of war, or soldiers' oaths. A private person, or any number of private persons, has a right to go to the assistance of a fellow-subject in distress or danger of his life, when assaulted and in danger from a few or a multitude.
(Keyl. 136): "If a man perceives another by force to be injuriously treated, pressed, and restrained of his liberty, though the person abused doth not complain or call for aid or assistance, and others, out of compassion, shall come to his rescue, and kill any of those that shall so restrain him, that is manslaughter."
Keyl.: "A and others without any warrant impress B to serve the king at sea. B quietly submitted, and went off with the pressmaster. Hugett and the others pursued them, and required a sight of their warrant; but they showing a piece of paper that was not a sufficient warrant, thereupon Hugett with the others drew their swords, and the pressmasters theirs, and so there was a combat, and those who endeavored to rescue the pressed man killed one of the pretended pressmasters. This was but manslaughter; for when the liberty of one subject is invaded, it affects all the rest. It is a provocation to all people, as being of ill example and pernicious consequences."
Lord Raymond, 1301. The Queen versus Tooley et al. Lord Chief-Justice Holt says: "The prisoner (i.e. Tooley) in this had sufficient provocation; for if one be impressed upon an unlawful authority, it is a sufficient provocation to all people out of compassion; and where the liberty of the subject is invaded, it is a provocation to all the subjects of England, etc.; and surely a man ought to be concerned for Magna Charta and the laws: and if any one, against the law, imprisons a man, he is an offender against Magna Charta."
I am not insensible to Sir Michael Foster's observations on these cases, but apprehend they do not invalidate the authority of them as far as I now apply them to the purposes of my argument. If a stranger, a mere fellow-subject, may interpose to defend the liberty, he may, too, defend the life of another individual. But, according to the evidence, some imprudent people, before the sentry, proposed to take him off his post; others threatened his life; and intelligence of this was carried to the main guard before any of the prisoners turned out. They were then ordered out to relieve the sentry; and any of our fellow-citizens might lawfully have gone upon the same errand. They were, therefore, a lawful assembly.
I have but one point of law more to consider, and that is this: In the case before you I do not pretend to prove that every one of the unhappy persons slain was concerned in the riot. The authorities read to you just now say it would be endless to prove whether every person that was present and in a riot was concerned in planning the first enterprise or not. Nay, I believe it but justice to say some were perfectly innocent of the occasion. I have reason to suppose that one of them was—Mr. Maverick. He was a very worthy young man, as he has been represented to me, and had no concern in the rioters' proceedings of that night; and I believe the same may be said in favor of one more at least, Mr. Caldwell, who was slain; and, therefore, many people may think that as he and perhaps another was innocent, therefore innocent blood having been shed, that must be expiated by the death of somebody or other. I take notice of this, because one gentleman was nominated by the sheriff for a juryman upon this trial, because he had said he believed Captain Preston was innocent, but innocent blood had been shed, and therefore somebody ought to be hanged for it, which he thought was indirectly giving his opinion in this cause. I am afraid many other persons have formed such an opinion. I do not take it to be a rule, that where innocent blood is shed the person must die. In the instance of the Frenchmen on the Plains of Abraham, they were innocent, fighting for their king and country; their blood is as innocent as any. There may be multitudes killed, when innocent blood is shed on all sides; so that it is not an invariable rule. I will put a case in which, I dare say, all will agree with me. Here are two persons, the father and the son, go out a-hunting. They take different roads. The father hears a rushing among the bushes, takes it to be game, fires, and kills his son, through a mistake. Here is innocent blood shed, but yet nobody will say the father ought to die for it. So that the general rule of law is, that whenever one person has a right to do an act, and that act, by any accident takes away the life of another, it is excusable. It bears the same regard to the innocent as to the guilty. If two men are together, and attack me, and I have a right to kill them, I strike at them, and by mistake strike a third and kill him, as I had a right to kill the first, my killing the other will be excusable, as it happened by accident. If I, in the heat of passion, aim a blow at the person who has assaulted me, and aiming at him I kill another person, it is but manslaughter.
(Foster. 261. section 3): "If an action unlawful in itself is done deliberately, and with intention of mischief, or great bodily harm to particulars, or of mischief indiscriminately, fall it where it may, and death ensues, against or beside the original intention of the party, it will be murder. But if such mischievous intention doth not appear, which is matter of fact, and to be collected from circumstances, and the act was done heedlessly and inconsiderately, it will be manslaughter, not accidental death; because the act upon which death ensued was unlawful."
Suppose, in this case, the mulatto man was the person who made the assault; suppose he was concerned in the unlawful assembly, and this party of soldiers, endeavoring to defend themselves against him, happened to kill another person, who was innocent—though the soldiers had no reason, that we know of, to think any person there, at least of that number who were crowding about them, innocent; they might, naturally enough, presume all to be guilty of the riot and assault, and to come with the same design—I say, if on firing on those who were guilty, they accidentally killed an innocent person, it was not their fault. They were obliged to defend themselves against those who were pressing upon them. They are not answerable for it with their lives; for on supposition it was justifiable or excusable to kill Attucks, or any other person, it will be equally justifiable or excusable if in firing at him they killed another, who was innocent; or if the provocation was such as to mitigate the guilt of manslaughter, it will equally mitigate the guilt, if they killed an innocent man undesignedly, in aiming at him who gave the provocation, according to Judge Foster; and as this point is of such consequence, I must produce some more authorities for it:
(1 Hawkins. 84): "Also, if a third person accidentally happen to be killed by one engaged in a combat, upon a sudden quarrel, it seems that he who killed him is guilty of manslaughter only," etc. (H. H P. C. 442, to the same point; and 1 H. H. P. C. 484. and 4 Black, 27.)
I shall now consider one question more, and that is concerning provocation. We have hitherto been considering self-defense, and how far persons may go in defending themselves against aggressors, even by taking away their lives, and now proceed to consider such provocations as the law allows to mitigate or extenuate the guilt of killing, where it is not justifiable or excusable. An assault and battery committed upon a man in such a manner as not to endanger his life is such a provocation as the law allows to reduce killing down to the crime of manslaughter. Now, the law has been made on more considerations than we are capable of making at present; the law considers a man as capable of bearing anything and everything but blows. I may reproach a man as much as I please; I may call him a thief, robber, traitor, scoundrel, coward, lobster, bloody-back, etc., and if he kill me it will be murder, if nothing else but words precede; but if from giving him such kind of language I proceed to take him by the nose, or fillip him on the forehead, that is an assault; that is a blow. The law will not oblige a man to stand still and bear it; there is the distinction. Hands off; touch me not. As soon as you touch me, if I run you through the heart, it is but manslaughter. The utility of this distinction, the more you think of it the more you will be satisfied with it. It is an assault whenever a blow is struck, let it be ever so slight, and sometimes even without a blow. The law considers man as frail and passionate. When his passions are touched, he will be thrown off his guard, and therefore the law makes allowance for this frailty —considers him as in a fit of passion, not having the possession of his intellectual faculties, and therefore does not oblige him to measure out his blows with a yard-stick, or weigh them in a scale. Let him kill with a sword, gun, or hedge-stake, it is not murder, but only manslaughter.
(Keyling's Report, 135. Regina versus Mawgrige.) "Rules supported by authority and general consent, showing what are always allowed to be sufficient provocations. First, if one man upon any words shall make an assault upon another, either by pulling him by the nose or filliping him on the forehead, and he that is so assaulted shall draw his sword and immediately run the other through, that is but manslaughter, for the peace is broken by the person killed and with an indignity to him that received the assault. Besides, he that was so affronted might reasonably apprehend that he that treated him in that manner might have some further design upon him."
So that here is the boundary, when a man is assaulted and kills in consequence of that assault, it is but manslaughter. I will just read as I go along the definition of assault:—
(1 Hawkins. ch. 62, section 1): "An assault is an attempt or offer, with force or violence, to do a corporal hurt to another, as by striking at him with or without a weapon, or presenting a gun at him at such a distance to which the gun will carry, or pointing a pitchfork at him, or by any other such like act done in angry, threatening manner, etc.; but no words can amount to an assault,"
Here is the definition of an assault, which is a sufficient provocation to soften killing down to manslaughter:—
(1 Hawkins, ch. 31, section 36): "Neither can he be thought guilty of a greater crime than manslaughter, who, finding a man in bed with his wife, or being actually struck by him, or pulled by the nose or filliped upon the forehead, immediately kills him, or in the defense of his person from an unlawful arrest, or in the defense of his house from those who, claiming a title to it, attempt forcibly to enter it, and to that purpose shoot at it," etc.
Every snowball, oyster shell, cake of ice, or bit of cinder, that was thrown that night at the sentinel, was an assault upon him; every one that was thrown at the party of soldiers was an assault upon them, whether it hit any of them or not. I am guilty of an assault if I present a gun at any person; and if I insult him in that manner and he shoots me, it is but manslaughter.
(Foster. 295, 396): "To what I have offered with regard to sudden rencounters let me add, that the blood already too much heated, kindleth afresh at every pass or blow. And in the tumult of the passions, in which the mere instinct of self-preservation has no inconsiderable share, the voice of reason is not heard; and therefore the law, in condescension to the infirmities of flesh and blood, doth extenuate the offense."
Insolent, scurrilous, or slanderous language, when it precedes an assault, aggravates it.
(Foster, 316): "We all know that words of reproach, how grating and offensive soever, are in the eye of the law no provocation in the case of voluntary homicide: and yet every man who hath considered the human frame, or but attended to the workings of his own heart knoweth that affronts of that kind pierce deeper and stimulate in the veins more effectually than a slight injury done to a third person, though under the color of justice, possibly can."
I produce this to show the assault in this case was aggravated by the scurrilous language which preceded it. Such words of reproach stimulate in the veins and exasperate the mind, and no doubt if an assault and battery succeeds them, killing under such provocation is softened to manslaughter, but killing without such provocation makes it murder.
End of the first day's speech
JOHN QUINCY ADAMS (1767-1848)
No other American President, not even Thomas Jefferson, has equaled John Quincy Adams in literary accomplishments. His orations and public speeches will be found to stand for a tradition of painstaking, scholastic finish hardly to be found elsewhere in American orations, and certainly not among the speeches of any other President. As a result of the pains he took with them, they belong rather to literature than to politics, and it is possible that they will not be generally appreciated at their real worth for several generations still to come. If, as is sometimes alleged in such cases, they gain in literary finish at the expense of force, it is not to be forgotten that the forcible speech which, ignoring all rules, carries its point by assault, may buy immediate effect at the expense of permanent respectability. And if John Quincy Adams, who labored as Cicero did to give his addresses the greatest possible literary finish, does not rank with Cicero among orators, it is certain that respectability will always be willingly conceded him by every generation of his countrymen.
Some idea of the extent of his early studies may be gained from his father's letter to Benjamin Waterhouse, written from Auteuil, France, in 1785. John Quincy Adams being then only in his eighteenth year, the elder Adams said of him:—
"If you were to examine him in English and French poetry, I know not where you would find anybody his superior; in Roman and English history few persons of his age. It is rare to find a youth possessed of such knowledge. He has translated Virgil's 'Aeneid,' 'Suetonius,' the whole of 'Sallust'; 'Tacitus,' 'Agricola'; his 'Germany' and several other books of his 'Annals,' a great part of Horace, some of Ovid, and some of Caesar's 'Commentaries,' in writing, besides a number of Tully's orations. ... In Greek his progress has not been equal, yet he has studied morsels in Aristotle's 'Poetics,' in Plutarch's 'Lives,' and Lucian's 'Dialogues,' 'The Choice of Hercules,' in Xenophon, and lately he has gone through several books of Homer's 'Iliad.'"
The elder Adams concludes the list of his son's accomplishments with a catalogue of his labors in mathematics hardly inferior in length to that cited in the classics. Even if it were true, as has been urged by the political opponents of the Adams family, that no one of its members has ever shown more than respectable natural talent, it would add overwhelming weight to the argument in favor of the laborious habits of study which have characterized them to the third and fourth generations, and, from the time of John Adams until our own, have made them men of mark and far-reaching national influence.
In national politics, John Quincy Adams, the last of the line of colonial gentlemen who achieved the presidency, stood for education, for rigid ideas of moral duty, for dignity, for patriotism, for all the virtues which are best cultivated through processes of segregation. He ended an epoch in which it was possible for a man who, as he did, wrote 'Poems on Religion and Society' and paraphrased the Psalms into English verse to be elected President. It has hardly been possible since his day.
Chosen as a Democrat in 1825, Mr. Adams was really the first Whig President. His speeches are important, historically, because they define political tendencies as a result of which the Whig party took the place of the Federalist.
ORATION AT PLYMOUTH
(Delivered at Plymouth on the Twenty-Second Day of December, 1802, in Commemoration of the Landing of the Pilgrims)
Among the sentiments of most powerful operation upon the human heart, and most highly honorable to the human character, are those of veneration for our forefathers, and of love for our posterity.
They form the connecting links between the selfish and the social passions. By the fundamental principle of Christianity, the happiness of the individual is interwoven, by innumerable and imperceptible ties, with that of his contemporaries. By the power of filial reverence and parental affection, individual existence is extended beyond the limits of individual life, and the happiness of every age is chained in mutual dependence upon that of every other. Respect for his ancestors excites, in the breast of man, interest in their history, attachment to their characters, concern for their errors, involuntary pride in their virtues. Love for his posterity spurs him to exertion for their support, stimulates him to virtue for their example, and fills him with the tenderest solicitude for their welfare. Man, therefore, was not made for himself alone. No, he was made for his country, by the obligations of the social compact; he was made for his species, by the Christian duties of universal charity; he was made for all ages past, by the sentiment of reverence for his forefathers; and he was made for all future times, by the impulse of affection for his progeny. Under the influence of these principles,
"Existence sees him spurn her bounded reign."
They redeem his nature from the subjection of time and space; he is no longer a "puny insect shivering at a breeze"; he is the glory of creation, formed to occupy all time and all extent; bounded, during his residence upon earth, only to the boundaries of the world, and destined to life and immortality in brighter regions, when the fabric of nature itself shall dissolve and perish.
The voice of history has not, in all its compass, a note but answers in unison with these sentiments. The barbarian chieftain, who defended his country against the Roman invasion, driven to the remotest extremity of Britain, and stimulating his followers to battle by all that has power of persuasion upon the human heart, concluded his persuasion by an appeal to these irresistible feelings: "Think of your forefathers and of your posterity." The Romans themselves, at the pinnacle of civilization, were actuated by the same impressions, and celebrated, in anniversary festivals, every great event which had signalized the annals of their forefathers. To multiply instances where it were impossible to adduce an exception would be to waste your time and abuse your patience; but in the sacred volume, which contains the substance of our firmest faith and of our most precious hopes, these passions not only maintain their highest efficacy, but are sanctioned by the express injunctions of the Divine Legislator to his chosen people.
The revolutions of time furnish no previous example of a nation shooting up to maturity and expanding into greatness with the rapidity which has characterized the growth of the American people. In the luxuriance of youth, and in the vigor of manhood, it is pleasing and instructive to look backwards upon the helpless days of infancy; but in the continual and essential changes of a growing subject, the transactions of that early period would be soon obliterated from the memory but for some periodical call of attention to aid the silent records of the historian. Such celebrations arouse and gratify the kindliest emotions of the bosom. They are faithful pledges of the respect we bear to the memory of our ancestors and of the tenderness with which we cherish the rising generation. They introduce the sages and heroes of ages past to the notice and emulation of succeeding times; they are at once testimonials of our gratitude, and schools of virtue to our children.
These sentiments are wise; they are honorable; they are virtuous; their cultivation is not merely innocent pleasure, it is incumbent duty. Obedient to their dictates, you, my fellow-citizens, have instituted and paid frequent observance to this annual solemnity. And what event of weightier intrinsic importance, or of more extensive consequences, was ever selected for this honorary distinction?
In reverting to the period of our origin, other nations have generally been compelled to plunge into the chaos of impenetrable antiquity, or to trace a lawless ancestry into the caverns of ravishers and robbers. It is your peculiar privilege to commemorate, in this birthday of your nation, an event ascertained in its minutest details; an event of which the principal actors are known to you familiarly, as if belonging to your own age; an event of a magnitude before which imagination shrinks at the imperfection of her powers. It is your further happiness to behold, in those eminent characters, who were most conspicuous in accomplishing the settlement of your country, men upon whose virtue you can dwell with honest exultation. The founders of your race are not handed down to you, like the father of the Roman people, as the sucklings of a wolf. You are not descended from a nauseous compound of fanaticism and sensuality, whose only argument was the sword, and whose only paradise was a brothel. No Gothic scourge of God, no Vandal pest of nations, no fabled fugitive from the flames of Troy, no bastard Norman tyrant, appears among the list of worthies who first landed on the rock, which your veneration has preserved as a lasting monument of their achievement. The great actors of the day we now solemnize were illustrious by their intrepid valor no less than by their Christian graces, but the clarion of conquest has not blazoned forth their names to all the winds of heaven. Their glory has not been wafted over oceans of blood to the remotest regions of the earth. They have not erected to themselves colossal statues upon pedestals of human bones, to provoke and insult the tardy hand of heavenly retribution. But theirs was "the better fortitude of patience and heroic martyrdom." Theirs was the gentle temper of Christian kindness; the rigorous observance of reciprocal justice; the unconquerable soul of conscious integrity. Worldly fame has been parsimonious of her favor to the memory of those generous companions. Their numbers were small; their stations in life obscure; the object of their enterprise unostentatious; the theatre of their exploits remote; how could they possibly be favorites of worldly Fame—that common crier, whose existence is only known by the assemblage of multitudes; that pander of wealth and greatness, so eager to haunt the palaces of fortune, and so fastidious to the houseless dignity of virtue; that parasite of pride, ever scornful to meekness, and ever obsequious to insolent power; that heedless trumpeter, whose ears are deaf to modest merit, and whose eyes are blind to bloodless, distant excellence?
When the persecuted companions of Robinson, exiles from their native land, anxiously sued for the privilege of removing a thousand leagues more distant to an untried soil, a rigorous climate, and a savage wilderness, for the sake of reconciling their sense of religious duty with their affections for their country, few, perhaps none of them, formed a conception of what would be, within two centuries, the result of their undertaking. When the jealous and niggardly policy of their British sovereign denied them even that humblest of requests, and instead of liberty would barely consent to promise connivance, neither he nor they might be aware that they were laying the foundations of a power, and that he was sowing the seeds of a spirit, which, in less than two hundred years, would stagger the throne of his descendants, and shake his united kingdoms to the centre. So far is it from the ordinary habits of mankind to calculate the importance of events in their elementary principles, that had the first colonists of our country ever intimated as a part of their designs the project of founding a great and mighty nation, the finger of scorn would have pointed them to the cells of bedlam as an abode more suitable for hatching vain empires than the solitude of a transatlantic desert.
These consequences, then so little foreseen, have unfolded themselves, in all their grandeur, to the eyes of the present age. It is a common amusement of speculative minds to contrast the magnitude of the most important events with the minuteness of their primeval causes, and the records of mankind are full of examples for such contemplations. It is, however, a more profitable employment to trace the constituent principles of future greatness in their kernel; to detect in the acorn at our feet the germ of that majestic oak, whose roots shoot down to the centre and whose branches aspire to the skies. Let it be, then, our present occupation to inquire and endeavor to ascertain the causes first put in operation at the period of our commemoration, and already productive of such magnificent effects; to examine with reiterated care and minute attention the characters of those men who gave the first impulse to a new series of events in the history of the world; to applaud and emulate those qualities of their minds which we shall find deserving of our admiration; to recognize with candor those features which forbid approbation or even require censure, and, finally, to lay alike their frailties and their perfections to our own hearts, either as warning or as example.
Of the various European settlements upon this continent, which have finally merged in one independent nation, the first establishments were made at various times, by several nations, and under the influence of different motives. In many instances, the conviction of religious obligation formed one and a powerful inducement of the adventures; but in none, excepting the settlement at Plymouth, did they constitute the sole and exclusive actuating cause. Worldly interest and commercial speculation entered largely into the views of other settlers, but the commands of conscience were the only stimulus to the emigrants from Leyden. Previous to their expedition hither, they had endured a long banishment from their native country. Under every species of discouragement, they undertook the vogage; they performed it in spite of numerous and almost insuperable obstacles; they arrived upon a wilderness bound with frost and hoary with snow, without the boundaries of their charter, outcasts from all human society, and coasted five weeks together, in the dead of winter, on this tempestuous shore, exposed at once to the fury of the elements, to the arrows of the native savage, and to the impending horrors of famine.
Courage and perseverance have a magical talisman, before which difficulties disappear and obstacles vanish into air. These qualities have ever been displayed in their mightiest perfection, as attendants in the retinue of strong passions. From the first discovery of the Western Hemisphere by Columbus until the settlement of Virginia which immediately preceded that of Plymouth, the various adventurers from the ancient world had exhibited upon innumerable occasions that ardor of enterprise and that stubbornness of pursuit which set all danger at defiance, and chained the violence of nature at their feet. But they were all instigated by personal interests. Avarice and ambition had tuned their souls to that pitch of exaltation. Selfish passions were the parents of their heroism. It was reserved for the first settlers of New England to perform achievements equally arduous, to trample down obstructions equally formidable, to dispel dangers equally terrific, under the single inspiration of conscience. To them even liberty herself was but a subordinate and secondary consideration. They claimed exemption from the mandates of human authority, as militating with their subjection to a superior power. Before the voice of heaven they silenced even the calls of their country.
Yet, while so deeply impressed with the sense of religious obligation, they felt, in all its energy, the force of that tender tie which binds the heart of every virtuous man to his native land. It was to renew that connection with their country which had been severed by their compulsory expatriation, that they resolved to face all the hazards of a perilous navigation and all the labors of a toilsome distant settlement. Under the mild protection of the Batavian government, they enjoyed already that freedom of religious worship, for which they had resigned so many comforts and enjoyments at home; but their hearts panted for a restoration to the bosom of their country. Invited and urged by the open-hearted and truly benevolent people who had given them an asylum from the persecution of their own kindred to form their settlement within the territories then under their jurisdiction, the love of their country predominated over every influence save that of conscience alone, and they preferred the precarious chance of relaxation from the bigoted rigor of the English government to the certain liberality and alluring offers of the Hollanders. Observe, my countrymen, the generous patriotism, the cordial union of soul, the conscious yet unaffected vigor which beam in their application to the British monarch:—
"They were well weaned from the delicate milk of their mother country, and inured to the difficulties of a strange land. They were knit together in a strict and sacred bond, to take care of the good of each other and of the whole. It was not with them as with other men, whom small things could discourage, or small discontents cause to wish themselves again at home."
Children of these exalted Pilgrims! Is there one among you who can hear the simple and pathetic energy of these expressions without tenderness and admiration? Venerated shades of our forefathers! No, ye were, indeed, not ordinary men! That country which had ejected you so cruelly from her bosom you still delighted to contemplate in the character of an affectionate and beloved mother. The sacred bond which knit you together was indissoluble while you lived; and oh, may it be to your descendants the example and the pledge of harmony to the latest period of time! The difficulties and dangers, which so often had defeated attempts of similar establishments, were unable to subdue souls tempered like yours. You heard the rigid interdictions; you saw the menacing forms of toil and danger, forbidding your access to this land of promise; but you heard without dismay; you saw and disdained retreat. Firm and undaunted in the confidence of that sacred bond; conscious of the purity, and convinced of the importance of your motives, you put your trust in the protecting shield of Providence, and smiled defiance at the combining terrors of human malice and of elemental strife. These, in the accomplishment of your undertaking, you were summoned to encounter in their most hideous forms; these you met with that fortitude, and combatted with that perseverance, which you had promised in their anticipation; these you completely vanquished in establishing the foundations of New England, and the day which we now commemorate is the perpetual memorial of your triumph.
It were an occupation peculiarly pleasing to cull from our early historians, and exhibit before you every detail of this transaction; to carry you in imagination on board their bark at the first moment of her arrival in the bay; to accompany Carver, Winslow, Bradford, and Standish, in all their excursions upon the desolate coast; to follow them into every rivulet and creek where they endeavored to find a firm footing, and to fix, with a pause of delight and exultation, the instant when the first of these heroic adventurers alighted on the spot where you, their descendants, now enjoy the glorious and happy reward of their labors. But in this grateful task, your former orators, on this anniversary, have anticipated all that the most ardent industry could collect, and gratified all that the most inquisitive curiosity could desire. To you, my friends, every occurrence of that momentous period is already familiar. A transient allusion to a few characteristic instances, which mark the peculiar history of the Plymouth settlers, may properly supply the place of a narrative, which, to this auditory, must be superfluous.
One of these remarkable incidents is the execution of that instrument of government by which they formed themselves into a body politic, the day after their arrival upon the coast, and previous to their first landing. This is, perhaps, the only instance in human history of that positive, original social compact, which speculative philosophers have imagined as the only legitimate source of government. Here was a unanimous and personal assent, by all the individuals of the community, to the association by which they became a nation. It was the result of circumstances and discussions which had occurred during their passage from Europe, and is a full demonstration that the nature of civil government, abstracted from the political institutions of their native country, had been an object of their serious meditation. The settlers of all the former European colonies had contented themselves with the powers conferred upon them by their respective charters, without looking beyond the seal of the royal parchment for the measure of their rights and the rule of their duties. The founders of Plymouth had been impelled by the peculiarities of their situation to examine the subject with deeper and more comprehensive research. After twelve years of banishment from the land of their first allegiance, during which they had been under an adoptive and temporary subjection to another sovereign, they must naturally have been led to reflect upon the relative rights and duties of allegiance and subjection. They had resided in a city, the seat of a university, where the polemical and political controversies of the time were pursued with uncommon fervor. In this period they had witnessed the deadly struggle between the two parties, into which the people of the United Provinces, after their separation from the crown of Spain, had divided themselves. The contest embraced within its compass not only theological doctrines, but political principles, and Maurice and Barnevelt were the temporal leaders of the same rival factions, of which Episcopius and Polyander were the ecclesiastical champions.
That the investigation of the fundamental principles of government was deeply implicated in these dissensions is evident from the immortal work of Grotius, upon the rights of war and peace, which undoubtedly originated from them. Grotius himself had been a most distinguished actor and sufferer in those important scenes of internal convulsion, and his work was first published very shortly after the departure of our forefathers from Leyden. It is well known that in the course of the contest Mr. Robinson more than once appeared, with credit to himself, as a public disputant against Episcopius; and from the manner in which the fact is related by Governor Bradford, it is apparent that the whole English Church at Leyden took a zealous interest in the religious part of the controversy. As strangers in the land, it is presumable that they wisely and honorably avoided entangling themselves in the political contentions involved with it. Yet the theoretic principles, as they were drawn into discussion, could not fail to arrest their attention, and must have assisted them to form accurate ideas concerning the origin and extent of authority among men, independent of positive institutions. The importance of these circumstances will not be duly weighed without taking into consideration the state of opinion then prevalent in England. The general principles of government were there little understood and less examined. The whole substance of human authority was centred in the simple doctrine of royal prerogative, the origin of which was always traced in theory to divine institution. Twenty years later, the subject was more industriously sifted, and for half a century became one of the principal topics of controversy between the ablest and most enlightened men in the nation. The instrument of voluntary association executed on board the Mayflower testifies that the parties to it had anticipated the improvement of their nation.
Another incident, from which we may derive occasion for important reflections, was the attempt of these original settlers to establish among them that community of goods and of labor, which fanciful politicians, from the days of Plato to those of Rousseau, have recommended as the fundamental law of a perfect republic. This theory results, it must be acknowledged, from principles of reasoning most flattering to the human character. If industry, frugality, and disinterested integrity were alike the virtues of all, there would, apparently, be more of the social spirit, in making all property a common stock, and giving to each individual a proportional title to the wealth of the whole. Such is the basis upon which Plato forbids, in his Republic, the division of property. Such is the system upon which Rousseau pronounces the first man who enclosed a field with a fence, and, said, "This is mine," a traitor to the human species. A wiser, and more useful philosophy, however, directs us to consider man according to the nature in which he was formed; subject to infirmities, which no wisdom can remedy; to weaknesses, which no institution can strengthen; to vices, which no legislation can correct. Hence, it becomes obvious that separate property is the natural and indisputable right of separate exertion; that community of goods without community of toil is oppressive and unjust; that it counteracts the laws of nature, which prescribe that he only who sows the seed shall reap the harvest; that it discourages all energy, by destroying its rewards; and makes the most virtuous and active members of society the slaves and drudges of the worst. Such was the issue of this experiment among our forefathers, and the same event demonstrated the error of the system in the elder settlement of Virginia. Let us cherish that spirit of harmony which prompted our forefathers to make the attempt, under circumstances more favorable to its success than, perhaps, ever occurred upon earth. Let us no less admire the candor with which they relinquished it, upon discovering its irremediable inefficacy. To found principles of government upon too advantageous an estimate of the human character is an error of inexperience, the source of which is so amiable that it is impossible to censure it with severity. We have seen the same mistake, committed in our own age, and upon a larger theatre. Happily for our ancestors, their situation allowed them to repair it before its effects had proved destructive. They had no pride of vain philosophy to support, no perfidious rage of faction to glut, by persevering in their mistakes until they should be extinguished in torrents of blood.
As the attempt to establish among themselves the community of goods was a seal of that sacred bond which knit them so closely together, so the conduct they observed towards the natives of the country displays their steadfast adherence to the rules of justice and their faithful attachment to those of benevolence and charity.
No European settlement ever formed upon this continent has been more distinguished for undeviating kindness and equity towards the savages. There are, indeed, moralists who have questioned the right of the Europeans to intrude upon the possessions of the aboriginals in any case, and under any limitations whatsoever. But have they maturely considered the whole subject? The Indian right of possession itself stands, with regard to the greatest part of the country, upon a questionable foundation. Their cultivated fields; their constructed habitations; a space of ample sufficiency for their subsistence, and whatever they had annexed to themselves by personal labor, was undoubtedly, by the laws of nature, theirs. But what is the right of a huntsman to the forest of a thousand miles over which he has accidentally ranged in quest of prey? Shall the liberal bounties of Providence to the race of man be monopolized by one of ten thousand for whom they were created? Shall the exuberant bosom of the common mother, amply adequate to the nourishment of millions, be claimed exclusively by a few hundreds of her offspring? Shall the lordly savage not only disdain the virtues and enjoyments of civilization himself, but shall he control the civilization of a world? Shall he forbid the wilderness to blossom like a rose? Shall he forbid the oaks of the forest to fall before the ax of industry, and to rise again, transformed into the habitations of ease and elegance? Shall he doom an immense region of the globe to perpetual desolation, and to hear the howlings of the tiger and the wolf silence forever the voice of human gladness? Shall the fields and the valleys, which a beneficent God has formed to teem with the life of innumerable multitudes, be condemned to everlasting barrenness? Shall the mighty rivers, poured out by the hand of nature, as channels of communication between numerous nations, roll their waters in sullen silence and eternal solitude to the deep? Have hundreds of commodious harbors, a thousand leagues of coast, and a boundless ocean, been spread in the front of this land, and shall every purpose of utility to which they could apply be prohibited by the tenant of the woods? No, generous philanthropists! Heaven has not been thus inconsistent in the works of its hands. Heaven has not thus placed at irreconcilable strife its moral laws with its physical creation. The Pilgrims of Plymouth obtained their right of possession to the territory on which they settled, by titles as fair and unequivocal as any human property can be held. By their voluntary association they recognized their allegiance to the government of Britain, and in process of time received whatever powers and authorities could be conferred upon them by a charter from their sovereign. The spot on which they fixed had belonged to an Indian tribe, totally extirpated by that devouring pestilence which had swept the country shortly before their arrival. The territory, thus free from all exclusive possession, they might have taken by the natural right of occupancy. Desirous, however, of giving ample satisfaction to every pretense of prior right, by formal and solemn conventions with the chiefs of the neighboring tribes, they acquired the further security of a purchase. At their hands the children of the desert had no cause of complaint. On the great day of retribution, what thousands, what millions of the American race will appear at the bar of judgment to arraign their European invading conquerors! Let us humbly hope that the fathers of the Plymouth Colony will then appear in the whiteness of innocence. Let us indulge in the belief that they will not only be free from all accusation of injustice to these unfortunate sons of nature, but that the testimonials of their acts of kindness and benevolence towards them will plead the cause of their virtues, as they are now authenticated by the record of history upon earth.
Religious discord has lost her sting; the cumbrous weapons of theological warfare are antiquated; the field of politics supplies the alchemists of our times with materials of more fatal explosion, and the butchers of mankind no longer travel to another world for instruments of cruelty and destruction. Our age is too enlightened to contend upon topics which concern only the interests of eternity; the men who hold in proper contempt all controversies about trifles, except such as inflame their own passions, have made it a commonplace censure against your ancestors, that their zeal was enkindled by subjects of trivial importance; and that however aggrieved by the intolerance of others, they were alike intolerant themselves. Against these objections, your candid judgment will not require an unqualified justification; but your respect and gratitude for the founders of the State may boldly claim an ample apology. The original grounds of their separation from the Church of England were not objects of a magnitude to dissolve the bonds of communion, much less those of charity, between Christian brethren of the same essential principles. Some of them, however, were not inconsiderable, and numerous inducements concurred to give them an extraordinary interest in their eyes. When that portentous system of abuses, the Papal dominion, was overturned, a great variety of religious sects arose in its stead in the several countries, which for many centuries before had been screwed beneath its subjection. The fabric of the reformation, first undertaken in England upon a contracted basis, by a capricious and sanguinary tyrant, had been successively overthrown and restored, renewed and altered, according to the varying humors and principles of four successive monarchs. To ascertain the precise point of division between the genuine institutions of Christianity and the corruptions accumulated upon them in the progress of fifteen centuries, was found a task of extreme difficulty throughout the Christian world.
Men of the profoundest learning, of the sublimest genius, and of the purest integrity, after devoting their lives to the research, finally differed in their ideas upon many great points, both of doctrine and discipline. The main question, it was admitted on all hands, most intimately concerned the highest interests of man, both temporal and eternal. Can we wonder that men who felt their happiness here and their hopes of hereafter, their worldly welfare and the kingdom of heaven at stake, should sometimes attach an importance beyond their intrinsic weight to collateral points of controversy, connected with the all-involving object of the reformation? The changes in the forms and principles of religious worship were introduced and regulated in England by the hand of public authority. But that hand had not been uniform or steady in its operations. During the persecutions inflicted in the interval of Popish restoration under the reign of Mary, upon all who favored the reformation, many of the most zealous reformers had been compelled to fly their country. While residing on the continent of Europe, they had adopted the principles of the most complete and rigorous reformation, as taught and established by Calvin. On returning afterwards to their native country, they were dissatisfied with the partial reformation, at which, as they conceived, the English establishment had rested; and claiming the privilege of private conscience, upon which alone any departure from the Church of Rome could be justified, they insisted upon the right of adhering to the system of their own preference, and, of course, upon that of nonconformity to the establishment prescribed by the royal authority. The only means used to convince them of error and reclaim them from dissent was force, and force served but to confirm the opposition it was meant to suppress. By driving the founders of the Plymouth Colony into exile, it constrained them to absolute separation from the Church of England; and by the refusal afterwards to allow them a positive toleration, even in this American wilderness, the council of James I. rendered that separation irreconcilable. Viewing their religious liberties here, as held only by sufferance, yet bound to them by all the ties of conviction, and by all their sufferings for them, could they forbear to look upon every dissenter among themselves with a jealous eye? Within two years after their landing, they beheld a rival settlement attempted in their immediate neighborhood; and not long after, the laws of self-preservation compelled them to break up a nest of revelers, who boasted of protection from the mother country, and who had recurred to the easy but pernicious resource of feeding their wanton idleness, by furnishing the savages with the means, the skill, and the instruments of European destruction. Toleration, in that instance, would have been self-murder, and many other examples might be alleged, in which their necessary measures of self-defense have been exaggerated into cruelty, and their most indispensable precautions distorted into persecution. Yet shall we not pretend that they were exempt from the common laws of mortality, or entirely free from all the errors of their age. Their zeal might sometimes be too ardent, but it was always sincere. At this day, religious indulgence is one of our clearest duties, because it is one of our undisputed rights. While we rejoice that the principles of genuine Christianity have so far triumphed over the prejudices of a former generation, let us fervently hope for the day when it will prove equally victorious over the malignant passions of our own.
In thus calling your attention to some of the peculiar features in the principles, the character, and the history of our forefathers, it is as wide from my design, as I know it would be from your approbation, to adorn their memory with a chaplet plucked from the domain of others. The occasion and the day are more peculiarly devoted to them, and let it never be dishonored with a contracted and exclusive spirit. Our affections as citizens embrace the whole extent of the Union, and the names of Raleigh, Smith, Winthrop, Calvert, Penn, and Oglethorpe, excite in our minds recollections equally pleasing and gratitude equally fervent with those of Carver and Bradford. Two centuries have not yet elapsed since the first European foot touched the soil which now constitutes the American Union. Two centuries more and our numbers must exceed those of Europe itself. The destinies of this empire, as they appear in prospect before us, disdain the powers of human calculation. Yet, as the original founder of the Roman state is said once to have lifted upon his shoulders the fame and fortunes of all his posterity, so let us never forget that the glory and greatness of all our descendants is in our hands. Preserve in all their purity, refine, if possible, from all their alloy, those virtues which we this day commemorate as the ornament of our forefathers. Adhere to them with inflexible resolution, as to the horns of the altar; instill them with unwearied perseverance into the minds of your children; bind your souls and theirs to the national Union as the chords of life are centred in the heart, and you shall soar with rapid and steady wing to the summit of human glory. Nearly a century ago, one of those rare minds to whom it is given to discern future greatness in its seminal principles upon contemplating the situation of this continent, pronounced, in a vein of poetic inspiration, "Westward the star of empire takes its way." Let us unite in ardent supplication to the Founder of nations and the Builder of worlds, that what then was prophecy may continue unfolding into history,—that the dearest hopes of the human race may not be extinguished in disappointment, and that the last may prove the noblest empire of time.
LAFAYETTE (Delivered in Congress, December 31st, 1834)
On the sixth of September, 1757, Lafayette was born. The kings of Prance and Britain were seated upon their thrones by virtue of the principle of hereditary succession, variously modified and blended with different forms of religious faith, and they were waging war against each other, and exhausting the blood and treasure of their people for causes in which neither of the nations had any beneficial or lawful interest.
In this war the father of Lafayette fell in the cause of his king but not of his country. He was an officer of an invading army, the instrument of his sovereign's wanton ambition and lust of conquest. The people of the electorate of Hanover had done no wrong to him or to his country. When his son came to an age capable of understanding the irreparable loss that he had suffered, and to reflect upon the causes of his father's fate, there was no drop of consolation mingled in the cup from the consideration that he had died for his country. And when the youthful mind was awakened to meditation upon the rights of mankind, the principles of freedom, and theories of government, it cannot be difficult to perceive in the illustrations of his own family records the source of that aversion to hereditary rule, perhaps the most distinguishing feature of his own political opinions and to which he adhered through all the vicissitudes of his life....
Lafayette was born a subject of the most absolute and most splendid monarchy of Europe, and in the highest rank of her proud and chivalrous nobility. He had been educated at a college of the University of Paris, founded by the royal munificence of Louis XIV., or Cardinal Richelieu. Left an orphan in early childhood, with the inheritance of a princely fortune, he had been married, at sixteen years of age, to a daughter of the house of Noailles, the most distinguished family of the kingdom, scarcely deemed in public consideration inferior to that which wore the crown. He came into active life, at the change from boy to man, a husband and a father, in the full enjoyment of everything that avarice could covet, with a certain prospect before him of all that ambition could crave. Happy in his domestic affections, incapable, from the benignity of his nature, of envy, hatred, or revenge, a life of "ignoble ease and indolent repose" seemed to be that which nature and fortune had combined to prepare before him. To men of ordinary mold this condition would have led to a life of luxurious apathy and sensual indulgence. Such was the life into which, from the operation of the same causes, Louis XV. had sunk, with his household and court, while Lafayette was rising to manhood surrounded by the contamination of their example. Had his natural endowments been even of the higher and nobler order of such as adhere to virtue, even in the lap of prosperity, and in the bosom of temptation, he might have lived and died a pattern of the nobility of France, to be classed, in aftertimes, with the Turennes and the Montausiers of the age of Louis XIV., or with the Villars or the Lamoignons of the age immediately preceding his own.
But as, in the firmament of heaven that rolls over our heads, there is, among the stars of the first magnitude, one so pre-eminent in splendor as, in the opinion of astronomers, to constitute a class by itself, so in the fourteen hundred years of the French monarchy, among the multitudes of great and mighty men which it has evolved, the name of Lafayette stands unrivaled in the solitude of glory.
In entering upon the threshold of life, a career was to open before him. He had the option of the court and the camp. An office was tendered to him in the household of the King's brother, the Count de Provence, since successively a royal exile and a reinstated king. The servitude and inaction of a court had no charms for him; he preferred a commission in the army, and, at the time of the Declaration of Independence, was a captain of dragoons in garrison at Metz.
There, at an entertainment given by his relative, the Marechal de Broglie, the commandant of the place, to the Duke of Gloucester, brother to the British king, and then a transient traveler through that part of France, he learns, as an incident of intelligence received that morning by the English Prince from London, that the congress of rebels at Philadelphia had issued a Declaration of Independence. A conversation ensues upon the causes which have contributed to produce this event, and upon the consequences which may be expected to flow from it. The imagination of Lafayette has caught across the Atlantic tide the spark emitted from the Declaration of Independence; his heart has kindled at the shock, and, before he slumbers upon his pillow, he has resolved to devote his life and fortune to the cause.
You have before you the cause and the man. The self-devotion of Lafayette was twofold. First to the people, maintaining a bold and seemingly desperate struggle against oppression, and for national existence. Secondly, and chiefly, to the principles of their declaration, which then first unfurled before his eyes the consecrated standard of human rights. To that standard, without an instant of hesitation, he repaired. Where it would lead him, it is scarcely probable that he himself then foresaw. It was then identical with the Stars and Stripes of the American Union, floating to the breeze from the Hall of Independence, at Philadelphia. Nor sordid avarice, nor vulgar ambition, could point his footsteps to the pathway leading to that banner. To the love of ease or pleasure nothing could be more repulsive. Something may be allowed to the beatings of the youthful breast, which make ambition virtue, and something to the spirit of military adventure, imbibed from his profession, and which he felt in common with many others. France, Germany, Poland, furnished to the armies of this Union, in our revolutionary struggle, no inconsiderable number of officers of high rank and distinguished merit. The names of Pulaski and De Kalb are numbered among the martyrs of our freedom, and their ashes repose in our soil side by side with the canonized bones of Warren and of Montgomery. To the virtues of Lafayette, a more protracted career and happier earthly destinies were reserved. To the moral principle of political action, the sacrifices of no other man were comparable to his. Youth, health, fortune; the favor of his king; the enjoyment of ease and pleasure; even the choicest blessings of domestic felicity—he gave them all for toil and danger in a distant land, and an almost hopeless cause; but it was the cause of justice, and of the rights of human kind. ...
Pronounce him one of the first men of his age, and you have not yet done him justice. Try him by that test to which he sought in vain to stimulate the vulgar and selfish spirit of Napoleon; class him among the men who, to compare and seat themselves, must take in the compass of all ages; turn back your eyes upon the records of time, summon from the creation of the world to this day the mighty dead of every age and every clime—and where, among the race of merely mortal men, shall one be found, who, as the benefactor of his kind, shall claim to take precedence of Lafayette?
There have doubtless been, in all ages, men whose discoveries or inventions, in the world of matter or of mind, have opened new avenues to the dominion of man over the material creation; have increased his means or his faculties of enjoyment; have raised him in nearer approximation to that higher and happier condition, the object of his hopes and aspirations in his present state of existence.
Lafayette discovered no new principle of politics or of morals. He invented nothing in science. He disclosed no new phenomenon in the laws of nature. Born and educated in the highest order of feudal nobility, under the most absolute monarchy of Europe, in possession of an affluent fortune, and master of himself and of all his capabilities, at the moment of attaining manhood the principle of republican justice and of social equality took possession of his heart and mind, as if by inspiration from above. He devoted himself, his life, his fortune, his hereditary honors, his towering ambition, his splendid hopes, all to the cause of liberty. He came to another hemisphere to defend her. He became one of the most effective champions of our independence; but, that once achieved, he returned to his own country, and thenceforward took no part in the controversies which have divided us. In the events of our revolution, and in the forms of policy which we have adopted for the establishment and perpetuation of our freedom, Lafayette found the most perfect form of government. He wished to add nothing to it. He would gladly have abstracted nothing from it. Instead of the imaginary republic of Plato, or the Utopia of Sir Thomas Moore, he took a practical existing model, in actual operation here, and never attempted or wished more than to apply it faithfully to his own country.
It was not given to Moses to enter the promised land; but he saw it from the summit of Pisgah. It was not given to Lafayette to witness the consummation of his wishes in the establishment of a republic and the extinction of all hereditary rule in France. His principles were in advance of the age and hemisphere in which he lived. A Bourbon still reigns on the throne of France, and it is not for us to scrutinize the title by which he reigns. The principles of elective and hereditary power, blended in reluctant union in his person, like the red and white roses of York and Lancaster, may postpone to aftertime the last conflict to which they must ultimately come. The life of the patriarch was not long enough for the development of his whole political system. Its final accomplishment is in the womb of time.
The anticipation of this event is the more certain, from the consideration that all the principles for which Lafayette contended were practical. He never indulged himself in wild and fanciful speculations. The principle of hereditary power was, in his opinion, the bane of all republican liberty in Europe. Unable to extinguish it in the Revolution of 1830, so far as concerned the chief magistracy of the nation, Lafayette had the satisfaction of seeing it abolished with reference to the peerage. An hereditary crown, stript of the support which it may derive from an hereditary peerage, however compatible with Asiatic despotism, is an anomaly in the history of the Christian world, and in the theory of free government. There is no argument producible against the existence of an hereditary peerage but applies with aggravated weight against the transmission, from sire to son, of an hereditary crown. The prejudices and passions of the people of France rejected the principle of inherited power, in every station of public trust, excepting the first and highest of them all; but there they clung to it, as did the Israelites of old to the savory deities of Egypt.
This is not the time nor the place for a disquisition upon the comparative merits, as a system of government, of a republic, and a monarchy surrounded by republican institutions. Upon this subject there is among us no diversity of opinion; and if it should take the people of France another half century of internal and external war, of dazzling and delusive glories; of unparalleled triumphs, humiliating reverses, and bitter disappointments, to settle it to their satisfaction, the ultimate result can only bring them to the point where we have stood from the day of the Declaration of Independence—to the point where Lafayette would have brought them, and to which he looked as a consummation devoutly to be wished.
Then, too, and then only, will be the time when the character of Lafayette will be appreciated at its true value throughout the civilized world. When the principle of hereditary dominion shall be extinguished in all the institutions of France; when government shall no longer be considered as property transmissible from sire to son, but as a trust committed for a limited time, and then to return to the people whence it came; as a burdensome duty to be discharged, and not as a reward to be abused; when a claim, any claim, to political power by inheritance shall, in the estimation of the whole French people, be held as it now is by the whole people of the North American Union—then will be the time for contemplating the character of Lafayette, not merely in the events of his life, but in the full development of his intellectual conceptions, of his fervent aspirations, of the labors and perils and sacrifices of his long and eventful career upon earth; and thenceforward, till the hour when the trump of the Archangel shall sound to announce that Time shall be no more, the name of Lafayette shall stand enrolled upon the annals of our race, high on the list of the pure and disinterested benefactors of mankind.
THE JUBILEE OF THE CONSTITUTION (Delivered at New York, April 30th, 1839)
Fellow-Citizens and Brethren, Associates of the New York Historical Society:—
Would it be an unlicensed trespass of the imagination to conceive that on the night preceding the day of which you now commemorate the fiftieth anniversary—on the night preceding that thirtieth of April, 1789, when from the balcony of your city hall the chancellor of the State of New York administered to George Washington the solemn oath faithfully to execute the office of President of the United States, and to the best of his ability to preserve, protect, and defend the Constitution of the United States—that in the visions of the night the guardian angel of the Father of our country had appeared before him, in the venerated form of his mother, and, to cheer and encourage him in the performance of the momentous and solemn duties that he was about to assume, had delivered to him a suit of celestial armor—a helmet, consisting of the principles of piety, of justice, of honor, of benevolence, with which from his earliest infancy he had hitherto walked through life, in the presence of all his brethren; a spear, studded with the self-evident truths of the Declaration of Independence; a sword, the same with which he had led the armies of his country through the war of freedom to the summit of the triumphal arch of independence; a corslet and cuishes of long experience and habitual intercourse in peace and war with the world of mankind, his contemporaries of the human race, in all their stages of civilization; and, last of all, the Constitution of the United States, a shield, embossed by heavenly hands with the future history of his country.
Yes, gentlemen, on that shield the Constitution of the United States was sculptured (by forms unseen, and in characters then invisible to mortal eye), the predestined and prophetic history of the one confederated people of the North American Union.
They had been the settlers of thirteen separate and distinct English colonies, along the margin of the shore of the North American continent; contiguously situated, but chartered by adventurers of characters variously diversified, including sectarians, religious and political, of all the classes which for the two preceding centuries had agitated and divided the people of the British islands —and with them were intermingled the descendants of Hollanders, Swedes, Germans, and French fugitives from the persecution of the revoker of the Edict of Nantes.
In the bosoms of this people, thus heterogeneously composed, there was burning, kindled at different furnaces, but all furnaces of affliction, one clear, steady flame of liberty. Bold and daring enterprise, stubborn endurance of privation, unflinching intrepidity in facing danger, and inflexible adherence to conscientious principle, had steeled to energetic and unyielding hardihood the characters of the primitive settlers of all these colonies. Since that time two or three generations of men had passed away, but they had increased and multiplied with unexampled rapidity; and the land itself had been the recent theatre of a ferocious and bloody seven-years' war between the two most powerful and most civilized nations of Europe contending for the possession of this continent.
Of that strife the victorious combatant had been Britain. She had conquered the provinces of France. She had expelled her rival totally from the continent, over which, bounding herself by the Mississippi, she was thenceforth to hold divided empire only with Spain. She had acquired undisputed control over the Indian tribes still tenanting the forests unexplored by the European man. She had established an uncontested monopoly of the commerce of all her colonies. But forgetting all the warnings of preceding ages— forgetting the lessons written in the blood of her own children, through centuries of departed time, she undertook to tax the people of the colonies without their consent.
Resistance, instantaneous, unconcerted, sympathetic, inflexible resistance, like an electric shock, startled and roused the people of all the English colonies on this continent.
This was the first signal of the North American Union, The struggle was for chartered rights—for English liberties—for the cause of Algernon Sidney and John Hampden—for trial by jury—the Habeas Corpus and Magna Charta.
But the English lawyers had decided that Parliament was omnipotent—and Parliament, in its omnipotence, instead of trial by jury and the Habeas Corpus, enacted admiralty courts in England to try Americans for offenses charged against them as committed in America; instead of the privileges of Magna Charta, nullified the charter itself of Massachusetts Bay; shut up the port of Boston; sent armies and navies to keep the peace and teach the colonies that John Hampden was a rebel and Algernon Sidney a traitor.
English liberties had failed them. From the omnipotence of Parliament the Colonists appealed to the rights of man and the omnipotence of the God of battles. Union! Union! was the instinctive and simultaneous cry throughout the land. Their congress, assembled at Philadelphia, once—twice—had petitioned the king; had remonstrated to Parliament; had addressed the people of Britain, for the rights of Englishmen—in vain. Fleets and armies, the blood of Lexington, and the fires of Charlestown and Falmouth, had been the answer to petition, remonstrance, and address. ...