The dissolution of allegiance to the British crown, the severance of the colonies from the British empire, and their actual existence as independent States, were definitively established in fact, by war and peace. The independence of each separate State had never been declared of right. It never existed in fact. Upon the principles of the Declaration of Independence, the dissolution of the ties of allegiance, the assumption of sovereign power, and the institution of civil government, are all acts of transcendent authority, which the people alone are competent to perform; and, accordingly, it is in the name and by the authority of the people, that two of these acts—the dissolution of allegiance, with the severance from the British empire, and the declaration of the United Colonies, as free and independent States, were performed by that instrument.
But there still remained the last and crowning act, which the people of the Union alone were competent to perform—the institution of civil government, for that compound nation, the United States of America.
At this day it cannot but strike us as extraordinary, that it does not appear to have occurred to any one member of that assembly, which had laid down in terms so clear, so explicit, so unequivocal, the foundation of all just government, in the imprescriptible rights of man, and the transcendent sovereignty of the people, and who in those principles had set forth their only personal vindication from the charges of rebellion against their king, and of treason to their country, that their last crowning act was still to be performed upon the same principles. That is, the institution, by the people of the United States, of a civil government, to guard and protect and defend them all. On the contrary, that same assembly which issued the Declaration of Independence, instead of continuing to act in the name and by the authority of the good people of the United States, had, immediately after the appointment of the committee to prepare the Declaration, appointed another committee, of one member from each colony, to prepare and digest the form of confederation to be entered into between the colonies.
That committee reported on the twelfth of July, eight days after the Declaration of Independence had been issued, a draft of articles of confederation between the colonies. This draft was prepared by John Dickinson, then a delegate from Pennsylvania, who voted against the Declaration of Independence, and never signed it, having been superseded by a new election of delegates from that State, eight days after his draft was reported.
There was thus no congeniality of principle between the Declaration of Independence and the articles of confederation. The foundation of the former was a superintending Providence—the rights of man, and the constituent revolutionary power of the people. That of the latter was the sovereignty of organized power, and the independence of the separate or dis-united States. The fabric of the Declaration and that of the confederation were each consistent with its own foundation, but they could not form one consistent, symmetrical edifice. They were the productions of different minds and of adverse passions; one, ascending for the foundation of human government to the laws of nature and of God, written upon the heart of man; the other, resting upon the basis of human institutions, and prescriptive law, and colonial charter. The corner stone of the one was right, that of the other was power. ...
Where, then, did each State get the sovereignty, freedom, and independence, which the articles of confederation declare it retains?—not from the whole people of the whole Union—not from the Declaration of Independence—not from the people of the State itself. It was assumed by agreement between the legislatures of the several States, and their delegates in Congress, without authority from or consultation of the people at all.
In the Declaration of Independence, the enacting and constituent party dispensing and delegating sovereign power is the whole people of the United Colonies. The recipient party, invested with power, is the United Colonies, declared United States.
In the articles of confederation, this order of agency is inverted. Each State is the constituent and enacting party, and the United States in Congress assembled the recipient of delegated power—and that power delegated with such a penurious and carking hand that it had more the aspect of a revocation of the Declaration of Independence than an instrument to carry it into effect.
None of these indispensably necessary powers were ever conferred by the State legislatures upon the Congress of the federation; and well was it that they never were. The system itself was radically defective. Its incurable disease was an apostasy from the principles of the Declaration of Independence. A substitution of separate State sovereignties, in the place of the constituent sovereignty of the people, was the basis of the Confederate Union.
In the Congress of the confederation, the master minds of James Madison and Alexander Hamilton were constantly engaged through the closing years of the Revolutionary War and those of peace which immediately succeeded. That of John Jay was associated with them shortly after the peace, in the capacity of secretary to the Congress for foreign affairs. The incompetency of the articles of confederation for the management of the affairs of the Union at home and abroad was demonstrated to them by the painful and mortifying experience of every day. Washington, though in retirement, was brooding over the cruel injustice suffered by his associates in arms, the warriors of the Revolution; over the prostration of the public credit and the faith of the nation, in the neglect to provide for the payment even of the interest upon the public debt; over the disappointed hopes of the friends of freedom; in the language of the address from Congress to the States of the eighteenth of April, 1783 —"the pride and boast of America, that the rights for which she contended were the rights of human nature."
At his residence at Mount Vernon, in March 1785, the first idea was started of a revisal of the articles of confederation, by an organization, of means differing from that of a compact between the State legislatures and their own delegates in Congress. A convention of delegates from the State legislatures, independent of the Congress itself, was the expedient which presented itself for effecting the purpose, and an augmentation of the powers of Congress for the regulation of commerce, as the object for which this assembly was to be convened. In January 1786 the proposal was made and adopted in the legislature of Virginia, and communicated to the other State legislatures.
The convention was held at Annapolis, in September of that year. It was attended by delegates from only five of the central States, who, on comparing their restricted powers with the glaring and universally acknowledged defects of the confederation reported only a recommendation for the assemblage of another convention of delegates to meet at Philadelphia, in May 1787, from all the States, and with enlarged powers.
The Constitution of the United States was the work of this convention. But in its construction the convention immediately perceived that they must retrace their steps, and fall back from a league of friendship between sovereign States to the constituent sovereignty of the people; from power to right—from the irresponsible despotism of State sovereignty to the self-evident truths of the Declaration of Independence. In that instrument, the right to institute and to alter governments among men was ascribed exclusively to the people—the ends of government were declared to be to secure the natural rights of man; and that when the government degenerates from the promotion to the destruction of that end, the right and the duty accrues to the people to dissolve this degenerate government and to institute another. The signers of the Declaration further averred, that the one people of the United Colonies were then precisely in that situation—with a government degenerated into tyranny, and called upon by the laws of nature and of nature's God to dissolve that government and to institute another. Then, in the name and by the authority of the good people of the colonies, they pronounced the dissolution of their allegiance to the king, and their eternal separation from the nation of Great Britain—and declared the United Colonies independent States. And here as the representatives of the one people they had stopped. They did not require the confirmation of this act, for the power to make the declaration had already been conferred upon them by the people, delegating the power, indeed, separately in the separate colonies, not by colonial authority, but by the spontaneous revolutionary movement of the people in them all.
From the day of that Declaration, the constituent power of the people had never been called into action. A confederacy had been substituted in the place of a government, and State sovereignty had usurped the constituent sovereignty of the people.
The convention assembled at Philadelphia had themselves no direct authority from the people. Their authority was all derived from the State legislatures. But they had the articles of confederation before them, and they saw and felt the wretched condition into which they had brought the whole people, and that the Union itself was in the agonies of death. They soon perceived that the indispensably needed powers were such as no State government, no combination of them, was by the principles of the Declaration of Independence competent to bestow. They could emanate only from the people. A highly respectable portion of the assembly, still clinging to the confederacy of States, proposed, as a substitute for the Constitution, a mere revival of the articles of confederation, with a grant of additional powers to the Congress. Their plan was respectfully and thoroughly discussed, but the want of a government and of the sanction of the people to the delegation of powers happily prevailed. A constitution for the people, and the distribution of legislative, executive, and judicial powers was prepared. It announced itself as the work of the people themselves; and as this was unquestionably a power assumed by the convention, not delegated to them by the people, they religiously confined it to a simple power to propose, and carefully provided that it should be no more than a proposal until sanctioned by the confederation Congress, by the State legislatures, and by the people of the several States, in conventions specially assembled, by authority of their legislatures, for the single purpose of examining and passing upon it.
And thus was consummated the work commenced by the Declaration of Independence—a work in which the people of the North American Union, acting under the deepest sense of responsibility to the Supreme Ruler of the universe, had achieved the most transcendent act of power that social man in his mortal condition can perform— even that of dissolving the ties of allegiance by which he is bound to his country; of renouncing that country itself; of demolishing its government; of instituting another government; and of making for himself another country in its stead.
And on that day, of which you now commemorate the fiftieth anniversary,—on that thirtieth day of April, 1789,—was this mighty revolution, not only in the affairs of our own country, but in the principles of government over civilized man, accomplished.
The revolution itself was a work of thirteen years—and had never been completed until that day. The Declaration of Independence and the Constitution of the United States are parts of one consistent whole, founded upon one and the same theory of government, then new in practice, though not as a theory, for it had been working itself into the mind of man for many ages, and had been especially expounded in the writings of Locke, though it had never before been adopted by a great nation in practice.
There are yet, even at this day, many speculative objections to this theory. Even in our own country, there are still philosophers who deny the principles asserted in the Declaration, as self-evident truths—who deny the natural equality and inalienable rights of man —who deny that the people are the only legitimate source of power —who deny that all just powers of government are derived from the consent of the governed. Neither your time, nor perphaps the cheerful nature of this occasion, permit me here to enter upon the examination of this anti-revolutionary theory, which arrays State sovereignty against the constituent sovereignty of the people, and distorts the Constitution of the United States into a league of friendship between confederate corporations, I speak to matters of fact. There is the Declaration of Independence, and there is the Constitution of the United States—let them speak for themselves. The grossly immoral and dishonest doctrine of despotic State sovereignty, the exclusive judge of its own obligations, and responsible to no power on earth or in heaven, for the violation of them, is not there. The Declaration says, it is not in me. The Constitution says, it is not in me.
SAMUEL ADAMS (1723-1803)
Samuel Adams, called by his contemporaries, "the Father of the American Revolution," drew up in 1764 the instructions of the people of Boston to their representatives in the Massachusetts general assembly, containing what is said to be the first official denial of the right of the British Parliament to tax the Colonists.
Deeply religious by nature, having what Everett calls "a most angelic voice," studying sacred music as an avocation, and exhibiting through life the fineness of nerve and sensitiveness of temperament which gave him his early disposition to escape the storms of life by a career in the pulpit, circumstances, or rather his sense of fitness, dominating his physical weakness, imposed on him the work of leading in what results have shown to be the greatest revolution of history. So sensitive, physically, that he had "a tremulous motion of the head when speaking," his intellectual force was such that he easily became a leader of popular opposition to royal authority in New England. Unlike Jefferson in being a fluent public speaker, he resembled him in being the intellectual heir of Sidney and Locke. He showed very early in life the bent which afterwards forced him, as it did the naturally timid and retiring Jefferson, to take the leadership of the uneducated masses of the people against the wealth, the culture, and the conservatism of the colonial aristocracy.
After passing through the Lovell School he graduated at Harvard College, and on proposing a thesis for his second degree, as college custom required, he defended the proposition that "it is lawful to resist the supreme authority, if the commonwealth cannot otherwise be preserved." Like questions had been debated during the Middle Ages from the time returning Crusaders brought back with them copies of Aristotle and other great Greek philosophers whose authority was still reverenced at Byzantium and Bagdad when London and Paris knew nothing of them. Out of the denial of one set of schoolmen that a divine right to rule, greater than that derived from the people, could exist in kings, grew the political controversy which preceded the English revolution against the Stuarts. Our revolution grew out of the English as the French grew out of ours, and in putting on his seal Cromwell's motto, "Rebellion to tyrants is obedience to God," Jefferson, the Virginian, illustrated the same intellectual heredity which Samuel Adams, the New Englander, showed in asserting the right of the people composing the Commonwealth to resist the supreme authority when in their judgment its exercise had become prejudicial to their rights or their interests.
From 1764 when he was chosen to present the denial made by the people of Boston of the English Parliament's right to tax them, until he joined Jefferson in forcing on the then unprepared mind of the public the idea of a complete and final separation from the "Mother Country," his aggressive denunciations of the English government's attempts at absolutism made him so hated by the English administration and its colonial representatives that, with John Hancock, he was specially exempted from General Gage's amnesty proclamation of June 1775, as "having committed offenses of too flagitious a nature to admit of any other consideration than that of condign punishment."
Joining with John Adams, Franklin, and Jefferson in forcing issues for complete separation from England and for the formal Declaration of Independence, Samuel Adams was himself the author of the celebrated circular letter addressed by the assembly of Massachusetts to the speakers of the several assemblies in other colonies. In 1774 he was chosen a member of the Continental Congress, where he took a prominent part in preventing the possibility of compromise with England. In 1794 he succeeded Hancock as governor of Massachusetts, retiring in 1797 because of "the increasing infirmities of age."
Like many other statesmen of his time he lived the greater part of his life in poverty, but his only son, dying before him, left him a property which supported him in his old age.
It is said that his great oration on American Independence, delivered at Philadelphia in August 1776, and published here, is the only complete address of his which has come down to us. It was translated into French and published in Paris, and it is believed that Napoleon borrowed from it the phrase, "A Nation of Shopkeepers," to characterize the English.
Countrymen and Brethren:—
I would gladly have declined an honor to which I find myself unequal. I have not the calmness and impartiality which the infinite importance of this occasion demands. I will not deny the charge of my enemies, that resentment for the accumulated injuries of our country, and an ardor for her glory, rising to enthusiasm, may deprive me of that accuracy of judgment and expression which men of cooler passions may possess. Let me beseech you, then, to hear me with caution, to examine your prejudice, and to correct the mistakes into which I may be hurried by my zeal.
Truth loves an appeal to the common sense of mankind. Your unperverted understandings can best determine on subjects of a practical nature. The positions and plans which are said to be above the comprehension of the multitude may be always suspected to be visionary and fruitless. He who made all men hath made the truths necessary to human happiness obvious to all.
Our forefathers threw off the yoke of Popery in religion; for you is reserved the honor of leveling the popery of politics. They opened the Bible to all, and maintained the capacity of every man to judge for himself in religion. Are we sufficient for the comprehension of the sublimest spiritual truths, and unequal to material and temporal ones?
Heaven hath trusted us with the management of things for eternity, and man denies us ability to judge of the present, or to know from our feelings the experience that will make us happy. "You can discern," they say, "objects distant and remote, but cannot perceive those within your grasp. Let us have the distribution of present goods, and cut out and manage as you please the interests of futurity." This day, I trust, the reign of political protestantism will commence. We have explored the temple of royalty, and found that the idol we have bowed down to has eyes which see not, ears that hear not our prayers, and a heart like the nether millstone. We have this day restored the Sovereign to whom alone men ought to be obedient. He reigns in Heaven, and with a propitious eye beholds his subjects assuming that freedom of thought and dignity of self-direction which he bestowed on them. From the rising to the setting sun, may his kingdom come!
Having been a slave to the influence of opinion early acquired, and distinctions generally received, I am ever inclined not to despise but pity those who are yet in darkness. But to the eye of reason what can be more clear than that all men have an equal right to happiness? Nature made no other distinction than that of higher and lower degrees of power of mind and body. But what mysterious distribution of character has the craft of statesmen, more fatal than priestcraft, introduced?
According to their doctrine, the offspring of perhaps the lewd embraces of a successful invader shall, from generation to generation, arrogate the right of lavishing on their pleasures a proportion of the fruits of the earth, more than sufficient to supply the wants of thousands of their fellow-creatures; claim authority to manage them like beasts of burthen, and, without superior industry, capacity, or virtue, nay, though disgraceful to humanity by their ignorance, intemperance, and brutality, shall be deemed best calculated to frame laws and to consult for the welfare of society.
Were the talents and virtues which heaven has bestowed on men given merely to make them more obedient drudges, to be sacrificed to the follies and ambition of a few? Or, were not the noble gifts so equally dispensed with a divine purpose and law, that they should as nearly as possible be equally exerted, and the blessings of Providence be equally enjoyed by all? Away, then, with those absurd systems which to gratify the pride of a few debase the greater part of our species below the order of men. What an affront to the King of the universe, to maintain that the happiness of a monster, sunk in debauchery and spreading desolation and murder among men, of a Caligula, a Nero, or a Charles, is more precious in his sight than that of millions of his suppliant creatures, who do justice, love mercy, and walk humbly with their God! No, in the judgment of heaven there is no other superiority among men than a superiority in wisdom and virtue. And can we have a safer model in forming ours? The Deity, then, has not given any order or family of men authority over others; and if any men have given it, they only could give it for themselves. Our forefathers, 'tis said, consented to be subject to the laws of Great Britain. I will not, at present, dispute it, nor mark out the limits and conditions of their submission; but will it be denied that they contracted to pay obedience and to be under the control of Great Britain because it appeared to them most beneficial in their then present circumstances and situations? We, my countrymen, have the same right to consult and provide for our happiness which they had to promote theirs. If they had a view to posterity in their contracts, it must have been to advance the felicity of their descendants. If they erred in their expectations and prospects, we can never be condemned for a conduct which they would have recommended had they foreseen our present condition.
Ye darkeners of counsel, who would make the property, lives and religion of millions depend on the evasive interpretations of musty parchments; who would send us to antiquated charters of uncertain and contradictory meaning, to prove that the present generation are not bound to be victims to cruel and unforgiving despotism, tell us whether our pious and generous ancestors bequeathed to us the miserable privilege of having the rewards of our honesty, industry, the fruits of those fields which they purchased and bled for, wrested from us at the will of men over whom we have no check. Did they contract for us that, with folded arms, we should expect that justice and mercy from brutal and inflamed invaders which have been denied to our supplications at the foot of the throne? Were we to hear our character as a people ridiculed with indifference? Did they promise for us that our meekness and patience should be insulted; our coasts harassed, our towns demolished and plundered, and our wives and offspring exposed to nakedness, hunger, and death, without our feeling the resentment of men, and exerting those powers of self-preservation which God has given us? No man had once a greater veneration for Englishmen than I entertained. They were dear to me as branches of the same parental trunk, and partakers of the same religion and laws; I still view with respect the remains of the constitution as I would a lifeless body, which had once been animated by a great and heroic soul. But when I am aroused by the din of arms; when I behold legions of foreign assassins, paid by Englishmen to imbrue their hands in our blood; when I tread over the uncoffined bodies of my countrymen, neighbors, and friends; when I see the locks of a venerable father torn by savage hands, and a feeble mother, clasping her infants to her bosom, and on her knees imploring their lives from her own slaves, whom Englishmen have allured to treachery and murder; when I behold my country, once the seat of industry, peace, and plenty, changed by Englishmen to a theatre of blood and misery, Heaven forgive me, if I cannot root out those passions which it has implanted in my bosom, and detest submission to a people who have either ceased to be human, or have not virtue enough to feel their own wretchedness and servitude!
Men who content themselves with the semblance of truth, and a display of words, talk much of our obligations to Great Britain for protection. Had she a single eye to our advantage? A nation of shopkeepers are very seldom so disinterested. Let us not be so amused with words; the extension of her commerce was her object. When she defended our coasts, she fought for her customers, and convoyed our ships loaded with wealth, which we had acquired for her by our industry. She has treated us as beasts of burthen, whom the lordly masters cherish that they may carry a greater load. Let us inquire also against whom she has protected us? Against her own enemies with whom we had no quarrel, or only on her account, and against whom we always readily exerted our wealth and strength when they were required. Were these colonies backward in giving assistance to Great Britain, when they were called upon in 1739 to aid the expedition against Carthagena? They at that time sent three thousand men to join the British army, although the war commenced without their consent. But the last war, 'tis said, was purely American. This is a vulgar error, which, like many others, has gained credit by being confidently repeated. The dispute between the courts of Great Britain and France related to the limits of Canada and Nova Scotia. The controverted territory was not claimed by any in the colonies, but by the crown of Great Britain. It was therefore their own quarrel. The infringement of a right which England had, by the treaty of Utrecht, of trading in the Indian country of Ohio, was another cause of the war. The French seized large quantities of British manufacture and took possession of a fort which a company of British merchants and factors had erected for the security of their commerce. The war was therefore waged in defense of lands claimed by the crown, and for the protection of British property. The French at that time had no quarrel with America, and, as appears by letters sent from their commander-in-chief, to some of the colonies, wished to remain in peace with us. The part, therefore, which we then took, and the miseries to which we exposed ourselves, ought to be charged to our affection to Britain. These colonies granted more than their proportion to the support of the war. They raised, clothed, and maintained nearly twenty-five thousand men, and so sensible were the people of England of our great exertions, that a message was annually sent to the House of Commons purporting, "that his Majesty, being highly satisfied with the zeal and vigor with which his faithful subjects in North America had exerted themselves in defense of his Majesty's just rights and possessions, recommend it to the House to take the same into consideration, and enable him to give them a proper compensation."
But what purpose can arguments of this kind answer? Did the protection we received annul our rights as men, and lay us under an obligation of being miserable?
Who among you, my countrymen, that is a father, would claim authority to make your child a slave because you had nourished him in infancy?
'Tis a strange species of generosity which requires a return infinitely more valuable than anything it could have bestowed that demands as a reward for a defense of our property a surrender of those inestimable privileges, to the arbitrary will of vindictive tyrants, which alone give value to that very property.
Political right and public happiness are different words for the same idea. They who wander into metaphysical labyrinths, or have recourse to original contracts, to determine the rights of men, either impose on themselves or mean to delude others. Public utility is the only certain criterion. It is a test which brings disputes to a speedy decision, and makes its appeal to the feelings of mankind. The force of truth has obliged men to use arguments drawn from this principle who were combating it, in practice and speculation. The advocates for a despotic government and nonresistance to the magistrate employ reasons in favor of their systems drawn from a consideration of their tendency to promote public happiness.
The Author of Nature directs all his operations to the production of the greatest good, and has made human virtue to consist in a disposition and conduct which tends to the common felicity of his creatures. An abridgement of the natural freedom of men, by the institutions of political societies, is vindicable only on this foot. How absurd, then, is it to draw arguments from the nature of civil society for the annihilation of those very ends which society was intended to procure! Men associate for their mutual advantage. Hence, the good and happiness of the members, that is, the majority of the members, of any State, is the great standard by which everything relating to that State must finally be determined; and though it may be supposed that a body of people may be bound by a voluntary resignation (which they have been so infatuated as to make) of all their interests to a single person, or to a few, it can never be conceived that the resignation is obligatory to their posterity; because it is manifestly contrary to the good of the whole that it should be so.
These are the sentiments of the wisest and most virtuous champions of freedom. Attend to a portion on this subject from a book in our own defense, written, I had almost said, by the pen of inspiration. "I lay no stress," says he, "on charters; they derive their rights from a higher source. It is inconsistent with common sense to imagine that any people would ever think of settling in a distant country on any such condition, or that the people from whom they withdrew should forever be masters of their property, and have power to subject them to any modes of government they pleased. And had there been expressed stipulations to this purpose in all the charters of the colonies, they would, in my opinion, be no more bound by them, than if it had been stipulated with them that they should go naked, or expose themselves to the incursions of wolves and tigers."
Such are the opinions of every virtuous and enlightened patriot in Great Britain. Their petition to heaven is, "That there may be one free country left upon earth, to which they may fly, when venality, luxury, and vice shall have completed the ruin of liberty there."
Courage, then, my countrymen, our contest is not only whether we ourselves shall be free, but whether there shall be left to mankind an asylum on earth for civil and religious liberty. Dismissing, therefore, the justice of our cause, as incontestable, the only question is, What is best for us to pursue in our present circumstances?
The doctrine of dependence on Great Britain is, I believe, generally exploded; but as I would attend to the honest weakness of the simplest of men, you will pardon me if I offer a few words on that subject.
We are now on this continent, to the astonishment of the world, three millions of souls united in one cause. We have large armies, well disciplined and appointed, with commanders inferior to none in military skill, and superior in activity and zeal. We are furnished with arsenals and stores beyond our most sanguine expectations, and foreign nations are waiting to crown our success by their alliances. There are instances of, I would say, an almost astonishing Providence in our favor; our success has staggered our enemies, and almost given faith to infidels; so we may truly say it is not our own arm which has saved us.
The hand of heaven appears to have led us on to be, perhaps humble instruments and means in the great Providential dispensation which is completing. We have fled from the political Sodom; let us not look back, lest we perish and become a monument of infamy and derision to the world. For can we ever expect more unanimity and a better preparation for defense; more infatuation of counsel among our enemies, and more valor and zeal among ourselves? The same force and resistance which are sufficient to procure us our liberties will secure us a glorious independence and support us in the dignity of free, imperial States. We cannot suppose that our opposition has made a corrupt and dissipated nation more friendly to America, or created in them a greater respect for the rights of mankind. We can therefore expect a restoration and establishment of our privileges, and a compensation for the injuries we have received from their want of power, from their fears, and not from their virtues. The unanimity and valor which will effect an honorable peace can render a future contest for our liberties unnecessary. He who has strength to chain down the wolf is a madman if he let him loose without drawing his teeth and paring his nails.
From the day on which an accommodation takes place between England and America, on any other terms than as independent States, I shall date the ruin of this country. A politic minister will study to lull us into security, by granting us the full extent of our petitions. The warm sunshine of influence would melt down the virtue, which the violence of the storm rendered more firm and unyielding. In a state of tranquillity, wealth, and luxury, our descendants would forget the arts of war and the noble activity and zeal which made their ancestors invincible. Every art of corruption would be employed to loosen the bond of union which renders our resistance formidable. When the spirit of liberty which now animates our hearts and gives success to our arms is extinct, our numbers will accelerate our ruin and render us easier victims to tyranny. Ye abandoned minions of an infatuated ministry, if peradventure any should yet remain among us, remember that a Warren and Montgomery are numbered among the dead. Contemplate the mangled bodies of your countrymen, and then say, What should be the reward of such sacrifices? Bid us and our posterity bow the knee, supplicate the friendship, and plough, and sow, and reap, to glut the avarice of the men who have let loose on us the dogs of war to riot in our blood and hunt us from the face of the earth? If ye love wealth better than liberty, the tranquillity of servitude than the animating contest of freedom,—go from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains sit lightly upon you, and may posterity forget that ye were our countrymen!
To unite the supremacy of Great Britain and the liberty of America is utterly impossible. So vast a continent, and of such a distance from the seat of empire, will every day grow more unmanageable. The motion of so unwieldy a body cannot be directed with any dispatch and uniformity without committing to the Parliament of Great Britain powers inconsistent with our freedom. The authority and force which would be absolutely necessary for the preservation of the peace and good order of this continent would put all our valuable rights within the reach of that nation.
As the administration of government requires firmer and more numerous supports in proportion to its extent, the burdens imposed on us would be excessive, and we should have the melancholy prospect of their increasing on our posterity. The scale of officers, from the rapacious and needy commissioner to the haughty governor, and from the governor, with his hungry train, to perhaps a licentious and prodigal viceroy, must be upheld by you and your children. The fleets and armies which will be employed to silence your murmurs and complaints must be supported by the fruits of your industry.
And yet with all this enlargement of the expense and powers of government, the administration of it at such a distance, and over so extensive a territory, must necessarily fail of putting the laws into vigorous execution, removing private oppressions, and forming plans for the advancement of agriculture and commerce, and preserving the vast empire in any tolerable peace and security. If our posterity retain any spark of patriotism, they can never tamely submit to such burthens. This country will be made the field of bloody contention till it gain that independence for which nature formed it. It is, therefore, injustice and cruelty to our offspring, and would stamp us with the character of baseness and cowardice, to leave the salvation of this country to be worked out by them with accumulated difficulty and danger.
Prejudice, I confess, may warp our judgments. Let us hear the decision of Englishmen on this subject, who cannot be suspected of partiality. "The Americans," they say, "are but little short of half our number. To this number they have grown from a small body of original settlers by a very rapid increase. The probability is that they will go on to increase, and that in fifty or sixty years they will be double our number, and form a mighty empire, consisting of a variety of States, all equal or superior to ourselves in all the arts and accomplishments which give dignity and happiness to human life. In that period will they be still bound to acknowledge that supremacy over them which we now claim? Can there be any person who will assert this, or whose mind does not revolt at the idea of a vast continent holding all that is valuable to it at the discretion of a handful of people on the other side of the Atlantic? But if at that period this would be unreasonable, what makes it otherwise now? Draw the line if you can. But there is still a greater difficulty."
Britain is now, I will suppose, the seat of liberty and virtue, and its legislature consists of a body of able and independent men, who govern with wisdom and justice. The time may come when all will be reversed; when its excellent constitution of government will be subverted; when, pressed by debts and taxes, it will be greedy to draw to itself an increase of revenue from every distant province, in order to ease its own burdens; when the influence of the crown, strengthened by luxury and a universal profligacy of manners, will have tainted every heart, broken down every fence of liberty, and rendered us a nation of tame and contented vassals; when a general election will be nothing but a general auction of boroughs, and when the Parliament, the grand council of the nation, and once the faithful guardian of the State, and a terror to evil ministers, will be degenerated into a body of sycophants, dependent and venal, always ready to confirm any measures, and little more than a public court for registering royal edicts. Such, it is possible, may, some time or other, be the state of Great Britain. What will, at that period, be the duty of the colonies? Will they be still bound to unconditional submission? Must they always continue an appendage to our government and follow it implicitly through every change that can happen to it? Wretched condition, indeed, of millions of freemen as good as ourselves! Will you say that we now govern equitably, and that there is no danger of such revolution? Would to God that this were true! But you will not always say the same. Who shall judge whether we govern equitably or not? Can you give the colonies any security that such a period will never come? No. THE PERIOD, COUNTRYMEN, IS ALREADY COME! The calamities were at our door. The rod of oppression was raised over us. We were roused from our slumbers, and may we never sink into repose until we can convey a clear and undisputed inheritance to our posterity! This day we are called upon to give a glorious example of what the wisest and best of men were rejoiced to view, only in speculation. This day presents the world with the most august spectacle that its annals ever unfolded,—millions of freemen, deliberately and voluntarily forming themselves into a society for their common defense and common happiness. Immortal spirits of Hampden, Locke, and Sidney, will it not add to your benevolent joys to behold your posterity rising to the dignity of men, and evincing to the world the reality and expediency of your systems, and in the actual enjoyment of that equal liberty, which you were happy, when on earth, in delineating and recommending to mankind?
Other nations have received their laws from conquerors; some are indebted for a constitution to the suffering of their ancestors through revolving centuries. The people of this country, alone, have formally and deliberately chosen a government for themselves, and with open and uninfluenced consent bound themselves into a social compact. Here no man proclaims his birth or wealth as a title to honorable distinction, or to sanctify ignorance and vice with the name of hereditary authority. He who has most zeal and ability to promote public felicity, let him be the servant of the public. This is the only line of distinction drawn by nature. Leave the bird of night to the obscurity for which nature intended him, and expect only from the eagle to brush the clouds with his wings and look boldly in the face of the sun.
Some who would persuade us that they have tender feelings for future generations, while they are insensible to the happiness of the present, are perpetually foreboding a train of dissensions under our popular system. Such men's reasoning amounts to this: Give up all that is valuable to Great Britain and then you will have no inducements to quarrel among yourselves; or, suffer yourselves to be chained down by your enemies that you may not be able to fight with your friends.
This is an insult on your virtue as well as your common sense. Your unanimity this day and through the course of the war is a decisive refutation of such invidious predictions. Our enemies have already had evidence that our present constitution contains in it the justice and ardor of freedom and the wisdom and vigor of the most absolute system. When the law is the will of the people, it will be uniform and coherent; but fluctuation, contradiction, and inconsistency of councils must be expected under those governments where every revolution in the ministry of a court produces one in the State—such being the folly and pride of all ministers, that they ever pursue measures directly opposite to those of their predecessors.
We shall neither be exposed to the necessary convulsions of elective monarchies, nor to the want of wisdom, fortitude, and virtue, to which hereditary succession is liable. In your hands it will be to perpetuate a prudent, active, and just legislature, and which will never expire until you yourselves loose the virtues which give it existence.
And, brethren and fellow-countrymen, if it was ever granted to mortals to trace the designs of Providence, and interpret its manifestations in favor of their cause, we may, with humility of soul, cry out, "Not unto us, not unto us, but to thy Name be the praise!" The confusion of the devices among our enemies, and the rage of the elements against them, have done almost as much towards our success as either our councils or our arms.
The time at which this attempt on our liberty was made, when we were ripened into maturity, had acquired a knowledge of war, and were free from the incursions of enemies in this country; the gradual advances of our oppressors enabling us to prepare for our defense; the unusual fertility of our lands and clemency of the seasons; the success which at first attended our feeble arms, producing unanimity among our friends and reducing our internal foes to acquiescence— these are all strong and palpable marks and assurances that Providence is yet gracious unto Zion, that it will turn away the captivity of Jacob.
Our glorious reformers when they broke through the fetters of superstition effected more than could be expected from an age so darkened. But they left much to be done by their posterity. They lopped off, indeed, some of the branches of Popery, but they left the root and stock when they left us under the domination of human systems and decisions, usurping the infallibility which can be attributed to Revelation alone. They dethroned one usurper only to raise up another; they refused allegiance to the Pope only to place the civil magistrate in the throne of Christ, vested with authority to enact laws and inflict penalties in his kingdom. And if we now cast our eyes over the nations of the earth, we shall find that, instead of possessing the pure religion of the Gospel, they may be divided either into infidels, who deny the truth; or politicians who make religion a stalking horse for their ambition; or professors, who walk in the trammels of orthodoxy, and are more attentive to traditions and ordinances of men than to the oracles of truth.
The civil magistrate has everywhere contaminated religion by making it an engine of policy; and freedom of thought and the right of private judgment, in matters of conscience, driven from every other corner of the earth, direct their course to this happy country as their last asylum. Let us cherish the noble guests, and shelter them under the wings of a universal toleration! Be this the seat of unbounded religious freedom. She will bring with her in her train, industry, wisdom, and commerce. She thrives most when left to shoot forth in her natural luxuriance, and asks from human policy only not to be checked in her growth by artificial encouragements.
Thus, by the beneficence of Providence, we shall behold our empire arising, founded on justice and the voluntary consent of the people, and giving full scope to the exercise of those faculties and rights which most ennoble our species. Besides the advantages of liberty and the most equal constitution, Heaven has given us a country with every variety of climate and soil, pouring forth in abundance whatever is necessary for the support, comfort, and strength of a nation. Within our own borders we possess all the means of sustenance, defense, and commerce; at the same time, these advantages are so distributed among the different States of this continent, as if nature had in view to proclaim to us: Be united among yourselves and you will want nothing from the rest of the world.
The more northern States most amply supply us with every necessary, and many of the luxuries of life; with iron, timber, and masts for ships of commerce or of war; with flax for the manufacture of linen, and seed either for oil or exportation.
So abundant are our harvests, that almost every part raises more than double the quantity of grain requisite for the support of the inhabitants. From Georgia and the Carolinas we have, as well for our own wants as for the purpose of supplying the wants of other powers, indigo, rice, hemp, naval stores, and lumber.
Virginia and Maryland teem with wheat, Indian corn, and tobacco. Every nation whose harvest is precarious, or whose lands yield not those commodities which we cultivate, will gladly exchange their superfluities and manufactures for ours.
We have already received many and large cargoes of clothing, military stores, etc., from our commerce with foreign powers, and, in spite of the efforts of the boasted navy of England, we shall continue to profit by this connection.
The want of our naval stores has already increased the price of these articles to a great height, especially in Britain. Without our lumber, it will be impossible for those haughty islanders to convey the products of the West Indies to their own ports; for a while they may with difficulty effect it, but, without our assistance, their resources soon must fail. Indeed, the West India Islands appear as the necessary appendages to this our empire. They must owe their support to it, and ere long, I doubt not, some of them will, from necessity, wish to enjoy the benefit of our protection.
These natural advantages will enable us to remain independent of the world, or make it the interest of European powers to court our alliance, and aid in protecting us against the invasion of others. What argument, therefore, do we want to show the equity of our conduct; or motive of interest to recommend it to our prudence? Nature points out the path, and our enemies have obliged us to pursue it.
If there is any man so base or so weak as to prefer a dependence on Great Britain to the dignity and happiness of living a member of a free and independent nation, let me tell him that necessity now demands what the generous principle of patriotism should have dictated.
We have no other alternative than independence, or the most ignominious and galling servitude. The legions of our enemies thicken on our plains; desolation and death mark their bloody career; whilst the mangled corpses of our countrymen seem to cry out to us as a voice from heaven:—
"Will you permit our posterity to groan under the galling chains of our murderers? Has our blood been expended in vain? Is the only benefit which our constancy till death has obtained for our country, that it should be sunk into a deeper and more ignominious vassalage? Recollect who are the men that demand your submission, to whose decrees you are invited to pay obedience. Men who, unmindful of their relation to you as brethren; of your long implicit submission to their laws; of the sacrifice which you and your forefathers made of your natural advantages for commerce to their avarice; formed a deliberate plan to wrest from you the small pittance of property which they had permitted you to acquire. Remember that the men who wish to rule over you are they who, in pursuit of this plan of despotism, annulled the sacred contracts which they had made with your ancestors; conveyed into your cities a mercenary soldiery to compel you to submission by insult and murder; who called your patience cowardice, your piety hypocrisy."
Countrymen, the men who now invite you to surrender your rights into their hands are the men who have let loose the merciless savages to riot in the blood of their brethren; who have dared to establish Popery triumphant in our land; who have taught treachery to your slaves, and courted them to assassinate your wives and children.
These are the men to whom we are exhorted to sacrifice the blessings which Providence holds out to us; the happiness, the dignity, of uncontrolled freedom and independence.
Let not your generous indignation be directed against any among us who may advise so absurd and maddening a measure. Their number is but few, and daily decreases; and the spirit which can render them patient of slavery will render them contemptible enemies.
Our Union is now complete; our constitution composed, established, and approved. You are now the guardians of your own liberties. We may justly address you, as the decemviri did the Romans, and say, "Nothing that we propose can pass into a law without your consent. Be yourselves, O Americans, the authors of those laws on which your happiness depends."
You have now in the field armies sufficient to repel the whole force of your enemies and their base and mercenary auxiliaries. The hearts of your soldiers beat high with the spirit of freedom; they are animated with the justice of their cause, and while they grasp their swords can look up to Heaven for assistance. Your adversaries are composed of wretches who laugh at the rights of humanity, who turn religion into derision, and would, for higher wages, direct their swords against their leaders or their country. Go on, then, in your generous enterprise with gratitude to Heaven for past success, and confidence of it in the future. For my own part, I ask no greater blessing than to share with you the common danger and common glory. If I have a wish dearer to my soul than that my ashes may be mingled with those of a Warren and Montgomery, it is that these American States may never cease to be free and independent.
Saint Aelred, Ealred, or Ethelred. was abbot of the Cistercian monastery at Rievaulx, Yorkshire, in the twelfth century. Thirty-two of his sermons, collected and published by Richard Gibbon, remain as examples of the pulpit eloquence of his age; but not very much is remembered of Aelred himself except that he was virtuous enough to be canonized, and was held in high estimation as a preacher during the Middle Ages. He died in 1166.
His command of language is extraordinary, and he is remarkable for the cumulative power with which he adds clause to clause and sentence to sentence, in working towards a climax.
It is time that I should begin the journey to which the law of our order compels me, desire incites me, and affection calls me. But how, even for so short a time, can I be separated from my beloved ones? Separated, I say, in body, and not in spirit; and I know that in affection and spirit I shall be so much the more present by how much in body I am the more absent. I speak after the manner of men because of the infirmity of my flesh; my wish is, that I may lay down among you the tabernacle of my flesh, that I may breathe forth my spirit in your hands, that ye may close the eyes of your father, and that all my bones should be buried in your sight! Pray, therefore, O my beloved ones, that the Lord may grant me the desire of my soul. Call to mind, dearest brethren, that it is written of the Lord Jesus, when he was about to remove his presence from his Disciples, that he, being assembled together with them, commanded them that they should not depart from Jerusalem. Following, therefore, his example, since, after our sweet banquet, we have now risen from the table, I, who in a little while am about to go away, command you, beseech you, warn you, not to depart from Jerusalem. For Jerusalem signifies peace. Therefore, we commend peace to you, we enjoin peace to you. Now, Christ himself, our Peace, who hath united us, keep you in the unity of the spirit and in the bond of peace; to whose protection and consolation I commend you under the wings of the Holy Ghost; that he may return you to me, and me to you in peace and with safety. Approach now, dearest sons, and in sign of the peace and love which I have commended to you, kiss your father; and let us all pray together that the Lord may make our way prosperous, and grant us when we return to find you in the same peace, who liveth and reigneth one God, through all ages of ages. Amen.
A SERMON AFTER ABSENCE
Behold, I have returned, my beloved sons, my joy and my crown in the Lord! Behold! I have returned after many labors, after a dangerous journey; I am returned to you, I am returned to your love. This day is the day of exultation and joy, which, when I was in a foreign land, when I was struggling with the winds and with the sea, I so long desired to behold; and the Lord hath heard the desire of the poor. O love, how sweetly thou inflamest those that are absent! How deliciously thou feedest those that are present; and yet dost not satisfy the hungry till thou makest Jerusalem to have peace and fillest it with the flour of wheat! This is the peace which, as you remember, I commended to you when the law of our order compelled me for a time to be separated from you; the peace which, now I have returned, I find (Thanks be to God!) among you; the peace of Christ, which, with a certain foretaste of love, feeds you in the way that shall satisfy you with the plentitude of the same love in your country. Well, beloved brethren, all that I am, all that I have, all that I know, I offer to your profit, I devote to your advantage. Use me as you will; spare not my labor if it can in any way serve to your benefit. Let us return, therefore, if you please, or rather because you please, to the work which we have intermitted; and let us examine the Holy Ghost enduing us with the light of truth, the heavenly treasures which holy Isaiah has laid up under the guise of parables, when he writes that parable which the people, freed from his tyranny, shall take up against the king of Babylon. "And it shall come to pass in the day that the Lord shall give thee rest from thy sorrow, and from thy fear, and from the hard bondage wherein thou wast made to serve, that thou shalt take up this parable against the king of Babylon." Let us, therefore, understand the parable as a parable. Not imagining that it was spoken against Nebuchadnezzar, the prince of that earthly Babylon, but rather against him who is from the North, the prince of confusion. ... If any one of us, then, who was once set in the confusion of vices, and oppressed by the yoke of iniquity, now rejoices that he rests from his labors, and is without confusion for that which is past, and has cast off the yoke of that worst of slaveries, let him take up this parable against the king of Babylon. There is labor in vice, there is rest in virtue; there is confusion in lust, there is security in chastity; there is servitude in covetousness, there is liberty in charity. Now, there is a labor in vice, and labor for vice, and labor against vice. A labor in vice, when, for the sake of fulfilling our evil desires, the ancient enemy inflicts hard labor upon us. There is a labor for vice, when any one is either afflicted against his will, for the evil which he has done, or of his will is troubled by the labor of penance. There is a labor against vice, when he that is converted to God is troubled with divers temptations. There is also a confusion in vice, when a man, distracted by most evil passions, is not ruled by reason, but hurried along confusedly by the tumult of vices; a confusion for vice, when a man is found out and convicted of any crime, and is therefore confounded, or when a man repenting and confessing what he has done is purified by healthful confusion and confession; and there is a confusion against vice, when a man, converted to God, resists the temptation from which he suffers, by the recollection of former confusion.
Wonder not if I have kept you longer to-day than my wont is, because desirous of you, after so long a hunger, I could not be easily satiated with your presence. Think not, indeed, that even now I am satiated; I leave off speaking because I am weary, not because I am satisfied. But I shall be satisfied when the glory of Christ shall appear, in whom I now embrace you with delight, you, with whom I hope that I shall be happily found in him, to whom is honor and glory to ages of ages. Amen.
Fortitude comes next, which is necessary in temptation, since perfection of sanctity cannot be so uninterruptedly maintained in this life that its serenity will be disturbed by no temptations. But as our Lord God seems to us, in times when everything appears peaceful and tranquil, to be merciful and loving and the giver of joy, thus when he exposes us either to the temptations of the flesh, or to the suggestions of demons, or when he afflicts us with the troubles, or wears us out with the persecutions of this world, he seems, as it were, a hard and angry master. And happy is he who becomes valiant in this his anger, now resisting, now fighting, now flying, so as to be found neither infirm through consenting, nor weak through despairing. Therefore, brethren, whoever is not found valiant in his anger cannot exult in his glory. If we have passed through fire and water, so that neither did the fire consume us, nor the water drown us, whose is the glory? Is it ours, so that we should exult in it as if it belonged to us? God forbid! How many exult, brethren, when they are praised by men, taking the glory of the gifts of God as if it were their own and not exulting in the honor of Christ, who, while they seek that which is their own and not the things of Jesus Christ, both lose that which is their own and do not gain that which is Christ's! He then exults in Christ's glory, who seeks not his glory but Christ's, and he understands that, in ourselves, there is nothing of which we can boast, since we have nothing that is our own. And this is the way in which, in individual men, the City of Confusion is overthrown, when chastity expels luxury, fortitude overthrows temptations, humility excludes vanity. Furthermore, we have sanctification from the faith and sacraments of Christ, fortitude from the love of Christ, exultation in the hope of the promises of Christ. Let us each do what we can, that faith may sanctify us, love strengthen us, and hope make us joyful in Christ Jesus our Lord, to whom be honor and glory forever and forever. Amen.
AESCHINES (389-314 B.C.)
Professor R. C. Jebe says of Aeschines, the rival of Demosthenes for supremacy at Athens, that when the Rhodians asked him to teach them oratory, he replied that he did not know it himself. He took pride in being looked upon as a representative of natural oratorical genius who had had little help from the traditions of the schools. "If, however, Aeschines was no rhetorical artist," writes Doctor Jebb, "he brought to public speaking the twofold training of the actor and the scribe. He had a magnificent voice under perfect musical control. 'He compares me to the sirens,' says Aeschines of his rival."
First known as an actor, playing "tritagonist" in the tragedies of Sophocles and the other great Athenian dramatists, Aeschines was afterwards clerk to one of the minor officials at Athens; then secretary to Aristophon and Eubulos, well-known public men, and later still secretary of the ekklesia or assembly.
The greatest event of his life was his contest with Demosthenes 'De Corona' (Over the Crown). When Ktesiphon proposed that Athens should bestow a wreath of gold on Demosthenes for his public services, Aechines, after the bill proposing it had come before the assembly, challenged it and gave notice of his intention to proceed against Ktesiphon for proposing an unconstitutional measure. One of the allegations in support of its unconstitutionally was that "to record a bill describing Demosthenes as a public benefactor was to deposit a lying document among the public archives." The issues were thus joined between Aeschines and Demosthenes for one of the most celebrated forensic contests in history. Losing the case Aeschines went into banishment. He died at Samos, B.C. 314, in his seventy-fifth year. He is generally ranked next to Demosthenes among Greek orators. For the following from the oration of Aeschines, the reader is under obligations to Professor Jebb's admirable translation.
AGAINST CROWNING DEMOSTHENES (Against Ktesiphon)
Our days have not fallen on the common chances of mortal life. We have been set to bequeath a story of marvels to posterity. Is not the king of Persia, he who cut through Athos, and bridged the Hellespont, he who demands earth and water from the Greeks, he who in his letters presumes to style himself lord of all men from the sunrise to the sunset, is he not struggling at this hour, no longer for authority over others, but for his own life? Do you not see the men who delivered the Delphian temple invested not only with that glory but with the leadership against Persia? While Thebes— Thebes, our neighbor city—has been in one day swept from the face of Greece—justly it may be in so far as her general policy was erroneous, yet in consequence of a folly which was no accident, but the judgment of heaven. The unfortunate Lacedaemonians, though they did but touch this affair in its first phase by the occupation of the temple,—they who once claimed the leadership of Greece,— are now to be sent to Alexander in Asia to give hostages, to parade their disasters, and to hear their own and their country's doom from his lips, when they have been judged by the clemency of the master they provoked. Our city, the common asylum of the Greeks, from which, of old, embassies used to come from all Greece to obtain deliverance for their several cities at our hands, is now battling, no more for the leadership of Greece, but for the ground on which it stands. And these things have befallen us since Demosthenes took the direction of our policy. The poet Hesiod will interpret such a case. There is a passage meant to educate democracies and to counsel cities generally, in which he warns us not to accept dishonest leaders. I will recite the lines myself, the reason, I think, for our learning the maxims of the poets in boyhood being that we may use them as men:—
"Oft hath the bad man been the city's bane; Oft hath his sin brought to the sinless pain: Oft hath all-seeing Heaven sore vexed the town With dearth and death and brought the people down; Cast down their walls and their most valiant slain, And on the seas made all their navies vain!"
Strip these lines of their poetic garb, look at them closely, and I think you will say these are no mere verses of Hesiod—that they are a prophecy of the administration of Demosthenes, for by the agency of that administration our ships, our armies, our cities have been swept from the earth. ... "O yes," it will be replied, "but then he is a friend of the constitution." If, indeed, you have a regard only to his delicacy you will be deceived as you were before, but not if you look at his character and at the facts. I will help you to estimate the characteristics which ought to be found in a friend of the constitution; in a sober-minded citizen. I will oppose to them the character that may be looked for in an unprincipled revolutionist. Then you shall draw your comparison and consider on which part he stands—not in his language, remember, but in his life. Now all, I think, will allow that these attributes should belong to a friend of the constitution: First, that he should be of free descent by both parents so that the disadvantage of birth may not embitter him against those laws which preserve the democracy. Second, that he should be able to show that some benefit has been done to the people by his ancestors; or, at the worst, that there had been no enmity between them which would prompt him to revenge the misfortunes of his fathers on the State. Third, he should be virtuous and temperate in his private life, so that no profligate expense may lead him into taking bribes to the hurt of the people. Next, he should be sagacious and able to speak—since our ideal is that the best course should be chosen by the intelligence and then commended to his hearers by the trained eloquence of the orator, —though, if we cannot have both, sagacity must needs take rank before eloquence. Lastly, he must have a stout heart or he may play the country false in the crisis of danger or of war. The friend of oligarchy must be the opposite of all this. I need not repeat the points. Now, consider: How does Demosthenes answer to these conditions?
[After accusing Demosthenes of being by parentage half a Scythian, Greek in nothing but language, the orator proceeds: ]—
In his private life, what is he? The tetrarch sank to rise a pettifogger, a spendthrift, ruined by his own follies. Then having got a bad name in this trade, too, by showing his speeches to the other side, he bounded on the stage of public life, where his profits out of the city were as enormous as his savings were small. Now, however, the flood of royal gold has floated his extravagance. But not even this will suffice. No wealth could ever hold out long against vice. In a word, he draws his livelihood not from his own resources but from your dangers. What, however, are his qualifications in respect to sagacity and to power of speech? A clever speaker, an evil liver! And what is the result to Athens? The speeches are fair; the deeds are vile! Then as to courage I have a word to say. If he denied his cowardice or if you were not aware of it, the topic might have called for discussion, but since he himself admits in the assemblies and you know it, it remains only to remind you of the laws on the subject. Solon, our ancient lawgiver, thought the coward should be liable to the same penalties as the man who refuses to serve or who has quitted his post. Cowardice, like other offenses, is indictable.
Some of you will, perhaps, ask in amazement: Is a man to be indicted for his temperament? He is. And why? In order that every one of us fearing the penalties of the law more than the enemy may be the better champion of his country. Accordingly, the lawgiver excludes alike the man who declines service, the coward, and the deserter of his post, from the lustral limits in the market place, and suffers no such person to receive a wreath of honor or to enter places of public worship. But you, Ktesiphon, exhort us to set a crown on the head to which the laws refuse it. You by your private edict call a forbidden guest into the forefront of our solemn festival, and invite into the temple of Dionysos that dastard by whom all temples have been betrayed. ... Remember then, Athenians, that the city whose fate rests with you is no alien city, but your own. Give the prizes of ambition by merit, not by chance. Reserve your rewards for those whose manhood is truer, whose characters are worthier. Look at each other and judge not only with your ears but with your eyes who of your number are likely to support Demosthenes. His young companions in the chase or the gymnasium? No, by the Olympian Zeus! He has not spent his life in hunting or in any healthful exercise, but in cultivating rhetoric to be used against men of property. Think of his boastfulness when he claims by his embassy to have snatched Byzantium out of the hands of Philip, to have thrown the Acharnians into revolt, to have astonished the Thebans with his harangue! He thinks that you have reached the point of fatuity at which you can be made to believe even this—as if your citizen were the deity of persuasion instead of a pettifogging mortal! And when at the end of his speech, he calls as his advocates those who shared his bribes, imagine that you see upon this platform where I now speak before you, an array drawn up to confront their profligacy—the benefactors of Athens: Solon, who set in order the Democracy by his glorious laws, the philosopher, the good legislator, entreating you with the gravity which so well became him never to set the rhetoric of Demosthenes above your oaths and above the laws; Aristides, who assessed the tribute of the Confederacy, and whose daughters after his death were dowered by the State—indignant at the contumely threatened to justice and asking: Are you not ashamed? When Arthmios of Zeleia brought Persian gold to Greece and visited Athens, our fathers well-nigh put him to death, though he was our public guest, and proclaimed him expelled from Athens and from all territory that the Athenians rule; while Demosthenes, who has not brought us Persian gold but has taken bribes for himself and has kept them to this day, is about to receive a golden wreath from you! And Themistokles, and they who died at Marathon and Plataea, aye, and the very graves of our forefathers—do you not think they will utter a voice of lamentation, if he who covenants with barbarians to work against Greece shall be—crowned!
FREDERICK A. AIKEN (1810-1878)
In defending the unpopular cause of the British soldiers who were engaged in the Boston Massacre, John Adams said:—
"May it please your honor and you, gentlemen of the jury, I am for the prisoner at the bar, and shall apologize for it only in the words of the Marquis of Beccaria: 'If I can but be the instrument of preserving one life, his blessings and tears of transport shall be a sufficient compensation to me for the contempt of all mankind.'"
Something of the same idea inspires the fine opening of Aiken's defense of Mrs. Surratt. It lacks the sinewy assertiveness of Adams's terse and almost defiant apology for doing his duty as a lawyer in spite of public opinion, but it justifies itself and the plea it introduces.
Until within the recent past, political antagonisms have been too strong to allow fair consideration for such orations as that of Aiken at the Surratt trial. But this is no longer the case. It can now be considered on its merits as an oration, without the assumption that it is necessary in connection with it to pass on the evidence behind it.
The assassins of President Lincoln were tried by military commission under the War Department's order of May 6th, 1865. The prosecution was conducted by Brigadier-General Joseph Holt, as judge advocate-general, with Brevet-Colonel H. L. Burnett, of Indiana, and Hon. John A. Bingham, of Ohio, assisting him. The attorneys for the defense were Reverdy Johnson, of Maryland; Thomas Ewing, of Kansas; W. E. Doster, of Pennsylvania; Frederick A. Aiken, of the District of Columbia; Walter S. Cox, John W. Clampit, and F. Stone, of Maryland. The fault of the Adams oration in the case of the Boston Massacre is one of excessive severity of logic. Aiken errs in the direction of excessive ornament, but, considering the importance of the occasion and the great stress on all engaged in the trial as well as on the public, the florid style may have served better than the force of severe logic could have done.
DEFENSE OF MRS. MARY E. SURRATT
For the lawyer as well as the soldier, there is an equally pleasant duty—an equally imperative command. That duty is to shelter the innocent from injustice and wrong, to protect the weak from oppression, and to rally at all times and all occasions, when necessity demands it, to the special defense of those whom nature, custom, or circumstance may have placed in dependence upon our strength, honor, and cherishing regard. That command emanates and reaches each class from the same authoritative and omnipotent source. It comes from a superior whose right to command none dare question, and none dare disobey. In this command there is nothing of that lex talionis which nearly two thousand years ago nailed to the cross its Divine Author.
"Therefore all things whatsoever ye would that men should do to you, do ye even so unto them; for this is the law and the prophets."
God has not only given us life, but he has filled the world with everything to make life desirable; and when we sit down to determine the taking away of that which we did not give, and which, when taken away, we cannot restore, we consider a subject the most solemn and momentous within the range of human thought and human action.
Profoundly impressed with the innocence of our client, we enter upon the last duty in her case with the heartfelt prayer that her honorable judges may enjoy the satisfaction of not having a single doubt left on their minds in granting her an acquittal, either as to the testimony affecting her, or by the surrounding circumstances of the case.
The first point that naturally arises in the presentation of the defense of our client is that which concerns the plea that has been made to the jurisdiction of the commission to try her—a plea which by no means implies anything against the intelligence, fairness, or integrity of the brilliant and distinguished officers who compose the court, but merely touches the question of the right of this tribunal, under the authority by which it is convoked. This branch of her case is left to depend upon the argument already submitted by her senior counsel, the grande decus columenque of his profession, and which is exhaustive of the subject on which it treats. Therefore, in proceeding to the discussion of the merits of the case against her, the jurisdiction of the court, for the sake of argument, may be taken as conceded.
But, if it be granted that the jurisdiction is complete, the next preliminary inquiry naturally is as to the principles of evidence by which the great mass of accumulated facts is to be analyzed and weighed in the scales of justice and made to bias the minds of her judges; and it may be here laid down as a concessum in the case, that we are here in this forum, constrained and concluded by the same process, in this regard, that would bind and control us in any other court of civil origin having jurisdiction over a crime such as is here charged. For it is asserted in all the books that court-martial must proceed, so far as the acceptance and the analysis of evidence is concerned, upon precisely those reasonable rules of evidence which time and experience, ab antiquo, surviving many ages of judicial wisdom, have unalterably fixed as unerring guides in the administration of the criminal law. Upon this conceded proposition it is necessary to consume time by the multiplication of references. We are content with two brief citations from works of acknowledged authority.
In Greenleaf it is laid down:—
"That courts-martial are bound, in general, to observe the rules of the law of evidence by which the courts of criminal jurisdiction are governed." (3 Greenleaf, section 467.)
This covers all the great general principles of evidence, the points of difference being wholly as to minor matters. And it is also affirmed in Benet:—
"That it has been laid down as an indisputable principle, that whenever a legislative act erects a new jurisdiction, without prescribing any particular rules of evidence to it, the common law will supply its own rules, from which it will not allow such newly-erected court to depart. The rules of evidence, then, that obtain in the criminal courts of the country must be the guides for the courts-martial; the end sought for being the truth, these rules laid down for the attainment of that end must be intrinsically the same in both cases. These rules constitute the law of evidence, and involve the quality, admissibility, and effect of evidence and its application to the purposes of truth." (Benet, pp. 226, 327.)
Therefore, all the facts that tend against the accused, and all those that mate for her, are to be weighed and are to operate upon her conviction or acquittal precisely as they would in a court of law. If they present a case such as would there convict her she may be found guilty here; and if, on the other hand, the rules of law upon these facts would raise any presumption or create any doubt, or force any conclusions that would acquit her in a court of law, then she must be discharged, upon the same principles by the commission. This is a point which, in our judgment, we cannot too strongly impress upon the minds of her judges. The extraordinary character of the crime—the assassination that removed from us the President of the United States—makes it most desirable that the findings of this tribunal shall be so well founded in reason as to satisfy and secure public confidence, and approval; for many of the most material objects of the prosecution, and some of the most important ends of justice, will be defeated and frustrated if convictions and acquittals, and more especially the former, shall be adjudged upon the grounds that are notoriously insufficient.
Such a course of action would have a tendency to draw sympathy and support to the parties thus adjudged guilty, and would rob the result of this investigation of the wholesome support of professional and public opinion. The jurisdiction of the commission, for example, is a matter that has already provoked considerable criticism and much warm disapproval; but in the case of persons clearly found to be guilty, the public mind would easily overlook any doubts that might exist as to the regularity of the court in the just sentence that would overtake acknowledged criminals. Thus, if Booth himself and a party of men clearly proved, by ocular evidence or confession, to have aided him, were here tried and condemned, and, as a consequence, executed, not much stress, we think, would be laid by many upon the irregularity of the mode by which they should reach that just death which all good citizens would affirm to be their deserts. But the case is far different when it affects persons who are only suspected, or against whom the evidence is weak and imperfect; for, if citizens may be arraigned and convicted for so grievous an offense as this upon insufficient evidence, every one will feel his own personal safety involved, and the tendency would be to intensify public feelings against the whole process of the trial. It would be felt and argued that they had been condemned upon evidence that would not have convicted them in a civil court, and that they had been deprived, therefore, of the advantage, which they would have had for their defense. Reproach and contumely upon the government would be the natural result, and the first occasion would arise in all history for such demonstrations as would be sure to follow the condemnation of mere citizens, and particularly of a woman, upon evidence on which an acquittal would follow in a civil court. It is, therefore, not only a matter of the highest concern to the accused themselves, as a question of personal and private right, but also of great importance upon considerations of general public utility and policy, that the results of this trial, as affecting each of the accused, among them Mrs. Surratt, shall be rigidly held within the bounds and limitations that would control in the premises, if the parties were on trial in a civil court upon an indictment equivalent to the charges and specifications here. Conceding, as we have said, the jurisdiction for the purpose of this branch of the argument, we hold to the principle first enunciated as the one great, all-important, and controlling rule that is to guide the commission in the findings they are now about to make. In order to apply this principle to the case of our client, we do not propose to range through the general rules of evidence with a view to seeing how they square with the facts as proven against her. In the examination of the evidence in detail, many of these must from necessity be briefly alluded to; but there is only one of them to which we propose in this place to advert specifically, and that is the principle that may be justly said to lie at the foundation of all the criminal law—a principle so just, that it seems to have sprung from the brain of Wisdom herself, and so undoubted and universal as to stand upon the recognition of all the times and all the mighty intellects through and by which the common law has been built up. We allude, of course, to that principle which declares that "every man is held to be innocent until he shall be proven guilty"—a principle so natural that it has fastened itself upon the common reason of mankind, and been immemorially adopted as a cardinal doctrine in all courts of justice worthy of the name. It is by reason of this great underlying legal tenet that we are in possession of the rule of law, administered by all the courts, which, in mere technical expression, may be termed "the presumption of innocence in favor of the accused." And it is from hence that we derive that further application of the general principle, which has also become a rule of law, and of universal application wherever the common law is respected (and with which we have more particularly to deal), by which it is affirmed, in common language, that in any prosecution for crime "the accused must be acquitted where there is a reasonable doubt of his guilt." We hardly think it necessary to adduce authorities for this position before any tribunal. In a civil court we certainly should waive the citations, for the principle as stated would be assumed by any civil judge and would, indeed, be the starting point for any investigation whatever. Though a maxim so common and conceded, it is fortified by the authority of all the great lights of the law. Before reference is made to them, however, we wish to impress upon the minds of the court another and important rule to which we shall have occasion to refer:—
"The evidence in support of a conspiracy is generally circumstantial" (Russell on Crimes, Vol. ii., 698.)
In regard to circumstantial evidence, all the best and ablest writers, ancient and modern, agree in treating it as wholly inferior in cogency, force, and effect, to direct evidence. And now for the rule that must guide the jury in all cases of reasonable doubt:—
"If evidence leave reasonable ground for doubt, the conclusion cannot be morally certain, however great may be the preponderance of probability in its favor." (Wills on Circumstantial Evidence. Law Library, Vol. xli.)
"The burden of proof in every criminal case is on the government to prove all the material allegations in the indictment; and if, on the whole evidence, the jury have a reasonable doubt whether the defendant is guilty of the crime charged, they are bound to acquit him. If the evidence lead to a reasonable doubt, that doubt will avail in favor of the prisoner." (1 Greenleaf, section 34—Note.)
Perhaps one of the best and clearest definitions of the meaning of a "reasonable doubt" is found in an opinion given in Dr. Webster's case by the learned and accurate Chief-Justice of Massachusetts. He said;—
"The evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it." (Commonwealth versus Webster, 5 Cush., 320.)
Far back in the early history of English jurisprudence we find that it was considered a most serious abuse of the common law, "that justices and their officers, who kill people by false judgment, be not destroyed as other murderers, which King Alfred caused to be done, who caused forty-four justices in one year to be hanged for their false judgment. He hanged Freburne because he judged Harpin to die, whereas the jury were in doubt of their verdict; for in doubtful cases we ought rather to save than to condemn."
The spirit of the Roman law partook of the same care and caution in the condemnation of those charged with crime. The maxim was:—
"Satius est impunitum relinqui facinus nocentis, quam innocentem damnare."
That there may be no mistake concerning the fact that this commission is bound as a jury by these rules, the same as juries in civil courts, we again quote from Benet:—
"It is in the province of the court (court-martial) to decide all questions on the admissibility of evidence. Whether there is any evidence is a question for the court as judges, but whether the evidence is sufficient is a question for the court as jury to determine, and this rule applies to the admissibility of every kind of evidence, written as well as oral." (Benet, pp. 225, 226.)
These citations may be indefinitely multiplied, for this principle is as true in the law as any physical fact in the exact sciences. It is not contended, indeed, that any degree of doubt must be of a reasonable nature, so as to overset the moral evidence of guilt. A mere possibility of innocence will not suffice, for, upon human testimony, no case is free from possible innocence. Even the more direct evidence of crime may be possibly mistaken. But the doubt required by the law must be consonant with reason and of such a nature that in analogous circumstances it would affect the action of a reasonable creature concerning his own affairs. We may make the nature of such a doubt clearer to the court by alluding to a very common rule in the application of the general principle in certain cases, and the rule will readily appeal to the judgment of the court as a remarkable and singularly beautiful example of the inexorable logic with which the law applies its own unfailing reason.
Thus, in case of conspiracy, and some others, where many persons are charged with joint crime, and where the evidence against most of them must, of necessity, be circumstantial, the plea of "reasonable doubt" becomes peculiarly valuable to the separate accused, and the mode in which it is held it can best be applied is the test whether the facts as proved, circumstantial, as supposed, can be made to consist just as reasonably with a theory that is essentially different from the theory of guilt.
If, therefore, in the developments of the whole facts of a conspiracy, all the particular facts against a particular person can be taken apart and shown to support a reasonable theory that excludes the theory of guilt, it cannot be denied that the moral proof of the latter is so shaken as to admit the rule concerning the presumption of innocence. For surely no man should be made to suffer because certain facts are proved against him, which are consistent with guilt, when it can be shown that they are also, and more reasonably, consistent with innocence. And, as touching the conspiracy here charged, we suppose there are hundreds of innocent persons, acquaintances of the actual assassin, against whom, on the social rule of noscitur a sociis, mercifully set aside in law, many facts might be elicited that would corroborate a suspicion of participation in his crime; but it would be monstrous that they should suffer from that theory when the same facts are rationally explainable on other theories.
The distinguished assistant judge advocate, Mr. Bingham, who has brought to the aid of the prosecution, in this trial, such ready and trenchant astuteness in the law, has laid the following down as an invariable rule, and it will pass into the books as such:—
"A party who conspires to do a crime may approach the most upright man in the world with whom he had been, before the criminality was known to the world, on terms of intimacy, and whose position in the world was such that he might be on terms of intimacy with reputable gentlemen. It is the misfortune of a man that is approached in that way; it is not his crime, and it is not colorably his crime either."
This rule of construction, we humbly submit, in connection with the question of doubt, has a direct and most weighty bearing upon the case of our client. Some indication of the mode in which we propose to apply it may be properly stated here. Now, in all the evidence, there is not a shadow of direct and positive proof which connects Mrs. Surratt with a participation in this conspiracy alleged, or with any knowledge of it. Indeed, considering the active part she is charged with taking, and the natural communicativeness of her sex, the case is most singularly and wonderfully barren of even circumstantial facts concerning her. But all there is, is circumstantial. Nothing is proved against her except some few detached facts and circumstances lying around the outer circle of the alleged conspiracy, and by no means necessarily connected with guilty intent or guilty knowledge.
It becomes our duty to see:—
1. What these facts are.
2. The character of the evidence in support of them, and of the witnesses by whom they are said to be proven. And,
3. Whether they are consistent with a reasonable theory by which guilt is excluded.
We assume, of course, as a matter that does not require argument, that she has committed no crime at all, even if these facts be proved, unless there is the necessary express or implied criminal intent, for guilty knowledge and guilty intent are the constituent elements, the principles of all crime. The intent and malice, too, in her case, must be express, for the facts proved against her, taken in themselves, are entirely and perfectly innocent, and are not such as give rise to a necessary implication of malice. This will not be denied. Thus, when one commits a violent homicide, the law will presume the requisite malice; but when one only delivers a message, which is an innocent act in itself, the guilty knowledge, malice, and intent, that are absolutely necessary to make it criminal, must be expressly proven before any criminal consequences can attach to it. And, to quote:—
"Knowledge and intent, when material, must be shown by the prosecutor." (Wharton's American Criminal Law, section 631.)
The intent to do a criminal act as defined by Bouvier implies and means a preconceived purpose and resolve and determination to commit the crime alleged. To quote again:—
"But the intent or guilty knowledge must be brought directly home to the defendant." (Wharton's American Criminal Law, 635)
"When an act, in itself indifferent, becomes criminal, if done with a particular intent, then the intent must be proved and found," (3 Greenleaf, section 13.)
In the light of these principles, let us examine the evidence as it affects Mrs. Surratt. 1. What are the acts she has done? The specification against her, in the general charge, is as follows;—
"And in further prosecution of the said conspiracy, Mary E. Surratt did, at Washington City, and within the military department and military lines aforesaid, on or before the sixth day of March, A.D. 1865, and on divers other days and times between that day and the twentieth of April, A.D. 1865, receive and entertain, harbor and conceal, aid and assist, the said John Wilkes Booth, David E. Herold, Lewis Payne, John H. Surratt, Michael O'Laughlin, George A. Atzerodt, Samuel Arnold, and their confederates, with knowledge of the murderous and traitorous conspiracy aforesaid, and with intent to aid, abet, and assist them in the execution thereof, and in escaping from justice after the murder of the said Abraham Lincoln, as aforesaid."
The first striking fact proved is her acquaintance with John Wilkes Booth—that he was an occasional visitor at her house. From the evidence, if it can be relied on, it distinctly appears that this acquaintance commenced the latter part of January, in the vicinage of three months only before the assassination of the President, and, with slight interruptions, it was continued down to the day of the assassination of the President. Whether he was first invited to the house and introduced to the family by Weichmann, John H. Surratt, or some other person, the evidence does not disclose. When asked by the judge advocate, "Whom did he call to see," the witness, Weichmann, responded, "He generally called for Mr. Surratt—John H. Surratt— and, in the absence of John H. Surratt, he would call for Mrs. Surratt."